STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VILA & SON LANDSCAPING )

CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4556BID

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent, )

and )

)

HAYSLIP LANDSCAPE, )

)

Intervenor. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing pursuant to Sections 120.53(5) and 120.57 F.S. in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings, on September 2-3, 1993.

APPEARANCES

For Petitioner: F. Alan Cummings,

Mary M. Piccard, and Jeffrey V. Nelson

Cummings, Lawrence & Vezina, P.A. Post Office Box 589

Tallahassee, Florida 32302-0589

For Respondent: William H. Roberts

Florida Department of Transportation Office of the General Counsel

605 Suwannee Street

Tallahassee, Florida 32399-0450

For Intervenor: James W. Anderson

Savlov and Anderson Post Office Drawer 870

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

Whether or not the Florida Department of Transportation improperly rejected Petitioner's bid on the agency's project 94030-3502.

PRELIMINARY STATEMENT

No one filed a timely notice of protest or formal protest with regard to the invitation to bid State Project 94030-3502.

This case arises from a notice of protest and formal protest timely filed by Petitioner (Vila) after Respondent (FDOT) announced its intent to award a contract to Intervenor (Hayslip) after opening and processing all bids on State Project 94030-3502.

At formal hearing, Petitioner presented the oral testimony of Ricardo Leal, Vilma Croft, Robert Griner, and James Lairscey and had ten exhibits admitted in evidence. Respondent also presented oral testimony by Robert Griner and had three exhibits admitted in evidence. Intervenor presented the oral testimony of Tom Hayslip and had two exhibits admitted in evidence.

Hearing Officer Exhibit 1, the Joint Prehearing Stipulation, was also admitted in evidence.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Prior to May 26, 1993, FDOT issued an invitation to bid (ITB) on a contract for landscaping approximately 3.6 miles of roadway in St. Lucie County, State Project No. 94030-3502.

   
   

2. The ITB required bidders to submit unit prices for 31 items of work. Bidders were to multiply the unit price by the estimated quantity of the item to arrive at a total quote for each item. The item totals were to be added together to arrive at the total bid. FDOT provided the estimated quantities upon which the bids were to be based.

   
   

3. In preparing its ITBs, FDOT utilizes standard unit price designations. These standard unit price designations are not altered on a job-by-job basis and are not altered after bids are opened.

   
   

4. The ITB herein included two bid items for mulch work: item no. 580-173 for bed preparation and mulching, and item no. 580-326-3 for shredded cypress bark mulch. The two mulching items result in one task: spreading the mulch under the landscaping plants.

   
   

5. FDOT always designates item no. 580-326-3, mulch shredded cypress bark, to be paid on a square yard basis. This is not an uncommon procedure. FDOT never pays contractors on this item in other than square yard computations. FDOT's Basis of Estimates Manual (FDOT Exhibit 3) contains all the measurement units for all bid items and lists shredded cypress bark mulch as being measured and paid for in square yards. None of the mulch items are paid for in cubic yards. FDOT considers itself bound by this Manual as to method of payment (unit of measure). See Findings of Fact 17 and 24-25 infra.

   
   

6. Project plans, typically prepared by consultants, may designate units of measurement differently from FDOT's standard unit price designations. It is not unusual for a unit of measurement to be expressed one way on the project plans and another way on the ITB.

7. It is not unusual for a bidder to be required to adjust a plan quantity in order to arrive at a different unit price. Bidders are expected to convert measurements of items to correlate with how the item will be paid.

   
   

8. With regard to ITB 94030-3502, four certified landscape contractors submitted bids. Among them were Intervenor Hayslip, Weekly Asphalt, Inc. (Weekly), Central Florida Landscaping of Tampa, Inc. (Central), and Petitioner Vila.

   
   

9. Bids were opened on May 26, 1993. After the bids were opened, each bid was reviewed by FDOT's Technical Review Committee to determine whether the bid was mathematically and materially unbalanced, contained all appropriate signatures, contained all appropriate documents, and otherwise met the technical requirements of the ITB. In essence, the Technical Review Committee reviews each bid to determine whether it is responsive to the ITB and, if not responsive, whether the bid's lack of responsiveness is immaterial and waiveable by FDOT. Only after reaching that determination does the Technical Review Committee make a recommendation to FDOT's Contract Awards Committee as to whether or not a bid should be rejected for material nonresponsiveness to the ITB.

   
   

10. As a result of the responsiveness review, Central's bid was declared irregular due to an altered bid bond and was rejected. Central filed no protest and no petition and has not moved to intervene herein.

    
    

11. The thrust of the instant proceeding involves item no. 580-326-3, mulch shredded cypress bark, stated in the ITB as "500 square yards."

    
    

12. All the bidders utilized the consultant's plans which specified the correct quantity of mulch contrary to the ITB.

    
    

13. Hayslip's bid for item no. 580-326-3 was $2.50 per square yard. Weekly's bid for that item was $2.25 per square yard. Central's bid for that item was $2.12 per square yard. Petitioner's bid for that item was $8.50 per square yard. Clearly, Petitioner's bid on this item was mathematically unbalanced since Petitioner's unit price bid of $8.50 per square yard far exceeded each of the other bidders' responses on that item on this ITB. Petitioner's bid was also exceptionally high in comparison with its own usual bid price in square yards of mulch, averaging $1.95 to $2.50 per square yard and unaccountably low in comparison with its own usual bid price in cubic yards of mulch, averaging $20.00 to $30.00.

    
    

14. Mr. Ricardo Leal, Petitioner's General Manager and Chief Estimator, prepared Petitioner's bid herein and testified with regard to how its mathematical imbalancing occurred. When Mr. Leal received the ITB package approximately fourteen days before the May 26, 1993 bid date, he performed some preliminary work on the bid, such as getting prices from subcontractors, obtaining a bond for the job, and making copies of the plans. He then did nothing with the bid until approximately two days before the May 26 bid letting. Despite Mr. Leal's testimony that crucial discrepancies between the consultant's plans and the ITB could not have been discovered within 72 hours of receiving the ITB, it is clear that his decision to delay concentrated work on this bid was based on extensive experience with a constant cycle of bidding. In preparing Petitioner's bid during the last two days before the letting, Mr. Leal formed the opinion that the plans' 500 cubic yard requirement for cypress bark mulch was correct and the ITB's 500 square yard requirement was a typographical

    error and that the project would probably require 6,000 square yards of cypress bark mulch. He based his calculations on 6,000 square yards (which equals 500 cubic yards from the plans) but expressed the unit price on Petitioner's bid according to the square yard unit FDOT had used in the ITB. Despite testimony concerning confusion arising from the ITB and plans, Mr. Leal candidly stated that he consciously bid in that manner to protect Petitioner in case FDOT required the successful bidder to provide 500 cubic yards (6,000 square yards) instead of 500 square yards, and he then split the final number he came up with between the two items so as to bid $.95 per square yard on item 580-173 and

    $8.50 per square yard on item 580-326-3. In so doing, he relied on his own judgment.

    
    

15. The ITB also contained other questionable items including meter fees and contradictory specifications on plant size and color. Despite testimony that Vilma Croft, FDOT Project Manager was not helpful, it appears that in preparing Petitioner's bid, Mr. Leal asked Vilma Croft to clarify a concern about local meter fees, which she did late on the day before bid letting. He also asked her three additional questions about plant list specification discrepancies, and she told him he must use his own judgment. However, he then did not ever pose his prepared question with regard to the mulch discrepancy (TR-47-54).

    
    

16. Unbalancing to some extent is discernible in virtually all bids. FDOT does not, therefore, reject all bids that are unbalanced. Only when unbalancing results in reasonable doubt that an award to the mathematically unbalanced bidder will result in the lowest ultimate cost to the state does FDOT consider the unbalancing "material." Unbalancing in a bid is determined by computerized program. The FDOT computer program figures in the bids on every item, does a bell curve distribution, keeping a center of 1 and 1/2 deviations and then discards the high and low bids. It then re-averages the remaining bids to determine a reasonable cost for any particular pay item. Any bids falling outside a certain tolerance window, either above or under, are flagged as mathematically unbalanced. FDOT's computer assessment identified as mathematically unbalanced five items in Petitioner's bid, among them the mulch item already referenced, and three items in the Intervenor's bid.

    
    

17. FDOT's computer for purposes of determining imbalancing is programmed according to FDOT's interpretation of its Basis of Estimates Manual and its Standard Specifications for Roadway and Bridge Construction, which interpretation is to the effect that the agency may not alter the method of payment (unit of measure) without letting a new ITB/contract but may alter quantities without such a new bid letting procedure. (TR 159-160; 271-272. FDOT Exhibits 3 and 4). The square yard pay unit is entered in the computer program for these reasons and is standard FDOT practice. (See Findings of Fact 5 and 24-25.)

    
    

18. When a mathematical unbalancing is discovered, FDOT analyzes the bid further for purposes of discovering whether the bid is materially unbalanced. FDOT personnel conducted further investigation to determine whether there was a likelihood of an overrun in the quantity of shredded cypress mulch which would be sufficient to change the order of the bidders. Vilma Croft, FDOT's Project Manager, acted as a conduit between FDOT's design consultant and Robert Griner, FDOT's Preliminary Estimating Engineer. At her request, the consultant who had designed the project plans, filled in unbalanced review sheets stating that the quantity of 500 square yards for cypress bark mulch was not correct in the ITB and that the correct quantity was 6,000 square yards. Croft relayed the adjusted quantity to Griner's office, noting that page LD28 of the plans had

    expressed 500 cubic yards. Thus, the quantity of cypress mulch to be placed on the project was not 500 square yards but 500 cubic yards which translates into 6,000 square yards, amounting to a likely overrun of 5,500 square yards. After multiplying the likely quantity overrun by the Petitioner's unbalanced unit price of $8.50 per square yard, FDOT personnel adjusted Petitioner's contract price by $46,750.00, reaching an adjusted total contract price of $793,351.45.

    
    

19. FDOT made similar adjustments for mathematically unbalanced items in both Intervenor's and Weekly's bids. After those adjustments, the contract prices were $763,346.15 and $920,278.45, respectively.

    
    

20. FDOT's further investigation and reconciliation of the remaining unbalanced items in Petitioner's bid and the unbalanced items in the Intervenor's bid and Weekly's bids are not at issue here.

    
    

21. Mr. Griner made a presentation to FDOT's Technical Review Committee that there would be an overrun of 5,500 square yards of cypress bark mulch and that the overrun had resulted in a switch in the order of the bids. Again, square yards is FDOT's standard unit of calculation. The Technical Review Committee recommended rejection of Petitioner's bid as materially unbalanced and award of the contract to Intervenor. The Contracts Award Committee followed this recommendation. It voted to reject Petitioner's bid and declared FDOT's intent to award the bid to Intervenor.

    
    

22. Intervenor was declared to be the apparent low bidder. Petitioner timely protested. Intervenor timely moved to intervene and was granted intervention. Both have standing in this proceeding.

    
    

23. Weekly filed no protest and no petition and has not moved to intervene.

    
    

24. It is not unusual for a mistake to be made in the estimated quantity of a project. FDOT routinely corrects mistakes that show up in quantities after bids are opened. FDOT does not assume responsibility that final quantities in a project will remain in accordance with quantities as "estimated" in its ITBs. Put in layman's terms, ITBs are created upon FDOT's "best estimates," but FDOT reserves the right to pay only for actual work done. Sometimes, this means contractors get more work/pay than they initially anticipated and sometimes they get less. ITBs do not guarantee successful bidders a dollar amount of work.

    (TR 271-272; FDOT Exhibits 3 and 4).

    
    

25. Specifically, FDOT's "Contract Bible," the Standard Specifications for Roadway and Bridge Construction (FDOT Exhibit 4), which is incorporated by reference in its agency rules and in its ITBs, provides as follows:

    
    

    2-3 Interpretation of Estimated Quantities. For those items which are to be constructed within authorized plan limits or dimensions, the quantities shown in the plans and in the proposal form are given as the basis of bid and also for final payment as limited by the provisions for the individual items. For those items having variable final pay quantities which are dependent on actual field conditions, use and measurement, the quantities shown in the plans and in the proposal form are approximate and are given

    only as a basis of calculation upon which the award of the contract is to be made. Where items are listed for payment as lump sum units and the plans show estimates of component quantities, the Department's responsibility for the accuracy of those quantities is limited to the provisions of 9-3.3. Where items are listed for payment as lump sum

    units and the plans do not show estimates of component quantities, the contractor shall be solely responsible for his own estimates of such quantities.

    The Department does not assume any responsibility that the final quantities will remain in accordance with estimated quantities, nor shall the contractor claim misunderstanding or deception because of such estimate of

    quantities. The estimated quantities of work to be done or materials to be furnished may be increased, decreased, or omitted as hereinafter provided.

    
    

    FDOT interprets this specification/rule to permit the agency to adjust quantities under the circumstances of this case with regard to its ITBs.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.53(5) and 120.57(1), F.S., except as set out infra.

    
    

27. Petitioner, Respondent, and Intervenor all have standing except as set out infra.

    
    

28. Petitioner's notice of protest and formal protest were filed within the appropriate time frames provided in Section 120.53(5) F.S. for a protest of an award of contract. However, it is clear from the record evidence and post- hearing proposals that the proper vehicle to address Petitioner's concerns with discrepancies between the quantities of mulch expressed in the plans and the quantities expressed in the ITB for State Project 94030-3502 was a bid solicitation protest. Bid solicitation protests must be made within 72 hours of Petitioner's receipt of the ITB, or in this case, approximately eleven days before the bid opening on May 26, 1993. Petitioner did not avail itself of that window of opportunity. The 72 hour time frame is jurisdictional, and the undersigned technically has no jurisdiction to resolve this dispute. See, Capeletti Brothers, Inc. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986) and its progeny. Therefore, the protest should be dismissed upon that basis alone.

    
    

29. Essentially, Petitioner had the plans and the ITB two weeks before the bid letting but did not notice the discrepancy between the plans and the ITB with regard to mulch amounts until just before the bid opening. Even then, instead of pressing for clarification on item numbers 580-173 and 580-326-3, Petitioner elected to use the plans' quantity, introduce its own compensatory factor, and split its estimated price between the two items instead of bidding item number 580-326-3 strictly in the unit price and amount set forth in the ITB.

30. Petitioner has argued that FDOT had a duty to figure the total mulching operation on the two items, one at $.95 per cubic yard unit for preparation and one at $8.50 per cubic yard for mulch, to come to an increase in Petitioner's bid of only approximately $20,000.00 instead of calculating it as FDOT did. More particularly, Petitioner asserted that if FDOT's recalculations had altered the unit of measurement on item no. 580-326-3 on the bid sheet from square yards to cubic yards, instead of multiplying the square yard unit of measurement times the total 6,000 square yard quantity, Petitioner's bid would not be unbalanced. Petitioner further argued that FDOT had no authority to convert quantities after the bid opening and had no right to adhere to its standard operating procedure of calculating in square yard pay units.

    
    

31. Clearly, FDOT has long-standing authority for both these procedures within its Basis of Estimates Manual and its Standard Bid Specifications, implemented by computer programming and standard practice. Moreover, Petitioner's argument is not persuasive in light of the fact that when the overrun calculated by FDOT using the square yard pay unit was applied equally against all the bidders, thereby increasing the bids of all the bidders across the board, Petitioner no longer constituted the low bidder. No economic or other advantage was directed to another bidder and away from Petitioner.

    
    

32. Consequently, Petitioner also may not prevail on the merits because it has not met its burden of proof. Section 337.11 F.S. requires FDOT to award contracts to the lowest bidder in a competitively bid process. The standard of review in a bid protest is to determine whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. See, Department of Transportation v. Groves Watkins Constructors, 530 So.2d (Fla. 1988).

    
    

33. Petitioner herein has not met its burden of proof to show by a preponderance of the evidence that FDOT has acted fraudulently, arbitrarily, illegally or dishonestly, or has subverted the competitive bid process by electing to correct a misestimated quantity, which its rules permit it to do, instead of correcting a mis-designated unit of measurement, which is the course of action urged by Petitioner. An agency's interpretation of its own rules is entitled to great deference. FDOT demonstrated a standardized method of payment which is also a unit of measurement in square yards and reasons the agency considers itself bound thereby. Just because FDOT demonstrated no specific prohibition against changing the unit of measurement, that alone does not mean FDOT's standard preferred method of recalculation was fraudulent, arbitrary, illegal, dishonest, or subversive of the competitive bid process.

    
    

34. Agencies have wide discretion in interpretation of their own rules and in solicitation of bids and awards of contracts. Their decision, when based on an honest exercise of discretion, will not be overturned even if it may appear erroneous and even if reasonable persons do not agree. See, Department of Transportation v. Groves Watkins Constructors, supra, and Liberty County v. Baxter's Asphalt Concrete, Inc., 421 So.2d 505 (Fla. 1982).

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the Petitioner's protest and awarding the contract to the Intervenor.

RECOMMENDED this 22nd day of October, 1993, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1993.

APPENDIX TO RECOMMENDED ORDER 93-4556BID

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's (Vila's) PFOF:

1. Accepted. (Findings of Fact 1, 4).

2. Accepted but subordinate material not adopted. (Findings of Fact 4- 6, 11-12, 14, 18).

3. Accepted but subordinate material not adopted. (Findings of Fact 5, 6, 11, 12, 14, 18).

4. Accepted. (Findings of Fact 13- 14).

5. Accepted in part in Finding of Fact

   13. Remainder rejected as not supported by the record as a whole. Covered in the conclusions of law as legal argument.

6. Accepted but subordinate material not adopted. (Findings of Fact 6, 12, 14).

7. Accepted. (Findings of Fact 5, 6, 12, 13, 14, 17, 24-25).

8. Accepted in part in Findings of Fact 5, 12, 14, 18. Rejected in part as unnecessary, subordinate or cumulative to the facts as found. The last sentence is rejected as not supported by the record and as argument contrary to law.

9. Accepted. (Findings of Fact 14- 15).

10. Accepted in part and rejected in part as not supported by the record as a whole. (Findings of Fact 14- 15).

11. Rejected as immaterial and/or not supported by the record as a whole. Accepted that Petitioner usually bids in cubic yards, but the record demonstrates that mulch items are bid in all variety of ways and that FDOT typically requires bids in square yards for payment purposes. (Findings of Fact 2-3, 5-7, 13, 17, 21, 24-25).

12. Accepted. (Findings of Fact 12, 14).

13. Accepted but not dispositive or adopted.

14. Accepted. (Findings of Fact 6, 18).

15. Accepted but not adopted because unnecessary, subordinate, or cumulative to the facts as found, or immaterial. (Finding of Fact 18).

16. Accepted. (Finding of Fact 16).

17. Accepted. (Finding of Fact 16).

18. Accepted. (Findings of Fact 16, 18).

19. Accepted. (Finding of Fact 16).

20. Accepted. (Findings of Fact 16, 20).

21. Accepted. (Findings of Fact 16, 19-20).

22. Rejected as irrelevant and

    immaterial.

23. Accepted. (Finding of Fact 18).

24. Accepted but unnecessary,

    subordinate, or cumulative material. Not adopted. (See Finding of Fact 18).

25. Accepted in Finding of Fact 18 except to the degree unnecessary, subordinate, or cumulative to the facts as found. Also, the motivations of the project manager and the fact that this has not occurred before, is deemed irrelevant and immaterial.

26. Accepted but not adopted to the degree unnecessary, subordinate, or cumulative to the facts as found. (See Finding of Fact 18).

27. The first sentence is accepted but not adopted to the degree unnecessary, subordinate, or cumulative to the facts as found. The second sentence is rejected as out of context and contrary to the

    greater weight of the evidence as a whole. (Findings of Fact 2-3, 5-7,

    17, 21, 24-25).

28. Rejected as stated because not supported by the record as a whole. There is no secret in this case as to the discrepancy between the plans and ITB. (Findings of Fact 12, 18).

29. Accepted. (Findings of Fact 18, 21-22).

30. Accepted but not adopted because immaterial. Covered in the Conclusions of Law.

31. Rejected as misleading and contrary to the record evidence supporting Findings of Fact 2-3, 5-7, 17, 21, 24-25. Covered in the Conclusions of Law.

32. Rejected as not material, as speculative, and as not dispositive. Also rejected as use of isolated testimony as legal argument. FDOT is entitled to alter quantities. The substance is discussed in Findings of Fact 18, and 21-25 and the Conclusions of Law.

33. Accepted. (Finding of Fact 21).

34. Accepted but not adopted because unnecessary to disposition.

35. Accepted but not adopted because unnecessary to disposition.

36. Accepted but not adopted as cumulative. See Findings of Fact 4-5, 17, 24-25.

37. Rejected as stated. Covered in substance in Findings of Fact 3, 11-12, 18 and the Conclusions of Law.

38. Rejected as legal argument. Covered in substance in the Conclusions of Law.

39. Rejected as use of isolated testimony for argument.

40. Rejected as not supported by the record evidence as a whole. (Findings of Fact 5, 17, 24-25).

41. Rejected as legal argument. Not dispositive. See Findings of Fact 2-4, 14 and Conclusions of Law.

42. Accepted but not dispositive. See Findings of Fact 2-4, 14, 18, and the Conclusions of Law.

43. Accepted. (Findings of Fact 12, 14, 18).

44. Rejected as stated as not supported by the record evidence as a whole. Covered in Finding of Fact 14 and Conclusions of Law.

45. Rejected as not supported by the record and as argument contrary to law. See Finding of Fact 14 and the Conclusions of Law.

46. Rejected as Immaterial.

47. Rejected as Immaterial.

Respondent's (FDOT's) PFOF:

1. Accepted. (Findings of Fact 1, 10).

2. Accepted. (Finding of Fact 14).

3. Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 14).

4. Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 2, 4, 11, 14).

5. Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 2-3, 5-7, 13, 17, 21-25).

6. Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 16).

7. Accepted. (Finding of Fact 16).

8. Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Findings of Fact 2-3, 5-7, 13, 17, 24-25).

9. Accepted. (Finding of Fact 18).

10. Accepted. (Finding of Fact 18).

11. Accepted. (Findings of Fact 6-7).

12. Accepted as modified to better conform to the record. (See Findings of Fact 5, 17, 24-25 and Conclusions of Laws).

13. Accepted as modified to better conform to the record and eliminate mere argument. (Findings of Fact 24-25).

14. Accepted. (Findings of Fact 18- 22).

15. Accepted. (Findings of Fact 9, 16, 21-22).

16. Accepted. (Findings of Fact 9, 16- 18, 21-22).

17. Accepted. (Finding of Fact 2, 4, 14).

Intervenor (Hayslip's) PFOF:

1. Accepted as modified to eliminate mere argument. (Finding of Fact 13).

2. Accepted. (Finding of Fact 13).

3. Accepted as modified to better conform to the record. (Finding of Fact 16).

4. Accepted as modified to better conform to the record and eliminate cumulative material. (Finding of Fact 18).

5. Accepted. (Findings of Fact 18, 21-22).

6. Accepted. (Findings of Fact 21- 22).

7. Accepted. (Finding of Fact 19).

8. Accepted. (Finding of Fact 3).

9. Accepted. (Finding of Fact 5).

10. Accepted. (Finding of Fact 6).

11. Accepted. (Finding of Fact 7).

12. Rejected as unnecessary,

subordinate, or cumulative to the facts as found or immaterial.

COPIES FURNISHED:

F. Alan Cummings, Esquire, Mary Piccard, Esquire, and

Jeffrey V. Nelson, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589

Tallahassee, Florida 32302-0589

James W. Anderson, Esquire Savlov & Anderson

Post Office Drawer 870 Tallahassee, Florida 32302-0870

William H. Roberts, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Floirda 32399-0458

Thornton J. Williams, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-004556BID

Orders for Case No: 93-004556BID