STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSIEK CONSTRUCTION CO., )

INC., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

Case No. 04-2059BID

)

RECOMMENDED ORDER

Notice was provided and on June 20, 2005, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569, and 120.57(1) and (3), Florida Statutes (2004). The hearing location was the offices of the Division of Administrative Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Bradley S. Copenhaver, Esquire

Mary Piccard Vance, Esquire

Venzina, Lawrence and Piscitelli, P.A.

318 North Calhoun Street Tallahassee, Florida 32301

For Respondent: C. Denise Johnson

Robert C. Downie, II Assistant General Counsels Department of Transportation Hayden Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

On May 12, 2004, did Respondent, Department of Transportation (DOT), act illegally, arbitrarily, dishonestly, or fraudulently when it cancelled the posting and noticed its intent to reject the bid of Rosiek Construction Co., Inc. (Rosiek), in relation to financial project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement, SR 682 (the Project)? § 120.57(3)(f), Fla. Stat. (2004).

PRELIMINARY STATEMENT

On March 4, 2004, DOT issued a bid solicitation notice for the Project. The deadline for submitting sealed bids for the work was April 28, 2004. Rosiek timely submitted a standard bid for the project totaling $49,340,378.12. On May 12, 2004, DOT informed Rosiek of the Cancellation of Posting and a Notice of Intent to Reject that bid, the only bid received in response to the bid solicitation.

On May 14, 2004, Rosiek filed a Notice of Protest of the decision by DOT to reject the Rosiek bid. § 120.57(3)(b), Fla. Stat. (2004).

On May 24, 2004, Rosiek and DOT entered into an Extension Agreement to allow Rosiek additional time to file its Formal Written Protest of the Intent to Reject the Bid. On May 28, 2004, the Formal Written Protest was filed. In that pleading Rosiek requested the transfer of its petition to the Division

of Administrative Hearings (DOAH) for a hearing consistent with Sections 120.569 and 120.57(1) and (3), Florida Statutes

(2004).

On June 9, 2004, DOT forwarded the case to the DOAH for assignment and conduct of the formal hearing.

By stipulation the parties waived the necessity to conduct a formal hearing within 30 days after receipt of the Formal Written Protest by the Division. § 120.57(3)(e) Fla. Stat. (2004). Given the waiver, the hearing was initially scheduled to be heard on July 12, 2004.

On June 24, 2004, the parties entered into a stipulation allowing Rosiek to file an Amended Formal Written Protest of that same date. On June 24, 2004, an order was entered accepting the Amended Formal Written Protest as the basis for this dispute. Concerning the dispute, the Amended Formal Written Protest in pertinent part alleges:

DOT's decision to reject all bids in connection with the Project is illegal and arbitrary. DOT purportedly rejected all bids because Rosiek was the only contractor to bid on the Project, and Rosiek's bid exceeded DOT's estimate (official cost estimate). In view of DOT's practice of routinely awarding contracts to single bidders and to bidders submitting bids that substantially exceed DOT's estimates, this decision is arbitrary and not supported by facts or logic. As reflected by DOT's track record, DOT has not made proper adjustments to some of its estimates for certain projects to account for various market factors.[1/]

The Amended Formal Written Protest also refers to the consequences to Rosiek should DOT be permitted to re-let the Project for bid, in which Rosiek alleges that the re-letting would give competitors to Rosiek an opportunity to assess the pricing and other details of the initial bid response, impairing the integrity of the bidding process.

In preparation for the hearing, Rosiek propounded discovery to DOT concerning the official cost estimate for the Project. Within the discovery was found interrogatories numbered 6, 7, and 8 of the first interrogatories directed to DOT and paragraphs numbered 4, 5, and 12 in the first request for production of documents propounded to DOT. DOT objected to the discovery on the general ground that the official cost estimate in relation to the Project was confidential in nature and more specifically that Section 337.168(1), Florida Statutes (2004), protects against disclosure of the official cost estimate as confidential and not available until the contract has been executed and the project is no longer under active consideration. Rosiek moved to compel responses to its discovery, or in the alternative offered a motion in limine asking that DOT be precluded from presenting or asserting a defense to its position based upon the official cost estimate. DOT filed in opposition to the motion to compel responses to discovery and the motion in limine.

On July 1, 2004, a telephone hearing was held to consider oral argument on the motions. On July 2, 2004, an order was entered in response to the motions requiring responses to the discovery as requested in the motion to compel, or alternatively precluding DOT in its use of the official cost estimate and its derivation to support the rejection of Rosiek's bid. The alternative provision in the order on discovery addressed the motion in limine.

DOT sought reconsideration of the order on discovery and in relation to the motion in limine and an order granting a stay if the decision on the motion to reconsider did not favor DOT. DOT also requested cancellation of the final hearing.

On July 8, 2004, a telephone conference was held to entertain oral argument on DOT's motions. Petitioner filed in opposition to the motion to reconsider. On July 8, 2004, an order was entered denying the motion for reconsideration, granting the stay, and canceling the final hearing scheduled for July 12, 2004.

DOT petitioned the Florida First District Court of Appeal to address the interlocutory orders on discovery. That petition was brought pursuant to Rules 9.100(c)(3) and 9.190(b)(2), Florida Rules of Appellate Procedure, as well as Section 120.68(1), Florida Statutes (2004). The court declined DOT's petition requesting immediate relief from the

discovery orders in Department of Transportation v. Rosiek Construction Co., Inc., 899 So. 2d 1187 (Fla. 1st DCA 2005).

Following the court decision, a case management conference was held by telephone, during which counsel for DOT indicated that the agency would proceed to hearing on the alternative basis contemplated by the discovery orders. Under those terms DOT was not allowed to address the significance of its official cost estimate at final hearing. This meant that the hearing would be limited to the propriety of the DOT decision to reject the Rosiek bid on the basis that it was the only contractor to bid on the Project.

During the hearing counsel for DOT attempted to present proof concerning the importance of the "Proposal Budget Estimate," the budget of $37,087,000.00 set out in the Bid Solicitation Notice, as a means to justify its decision to reject the Rosiek bid. This budget figure is not the official cost estimate. Part of that argument concerned the failure by Rosiek to challenge the Proposal Budget Estimate within 72 hours after the posting of the bid solicitation notice. § 120.57(3)(b), Fla. Stat. (2003). In addition DOT referred to the comparison of the Proposal Budget Estimate and the Rosiek bid. Through its counsel DOT made reference to Section 339.135(6)(a), Florida Statutes (2004), pertaining to the DOT.2/ The budget information in the bid solicitation for the

Project, described as a Proposal Budget Estimate is not part of terms, conditions and specifications contained in the solicitation, is thereby subject to challenge as contemplated in Section 120.57(3)(b), Florida Statutes (2003). See also Cappeletti Brothers Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986).

The importance of the Proposal Budget Estimate had never been addressed prior to the final hearing in any pleading filed by DOT. More importantly, as was explained in the hearing, the budgetary process described in Section 339.135(6)(a), Florida Statutes (2004), as it supports the Proposal Budget Estimate in this case, is a subject that is inappropriate for consideration in the bid dispute hearing.

Budget considerations may ultimately determine whether the Project is constructed or not, but Rosiek as part of the process for resolving the bid dispute was not entitled to challenge the execution of the budget as it influences the Project nor may DOT advance budgetary matters as a means to defend itself in the present case.

Consistent with a pre-hearing order, the parties filed a pre-hearing stipulation which contained, among other items, a statement of facts that were agreed to. Those factual stipulations are available for fact-finding.

DOT served Rosiek with requests for admissions. In response Rosiek admitted certain facts. Those factual admissions are available for fact-finding.

At hearing Rosiek presented Michael Rosiek, Juanita Moore and Louis Wenick, P.E. as its witnesses. Rosiek's Exhibits numbered 1 through 5 were admitted as evidence. DOT called Donald Skelton, P.E. as its witness. DOT's Exhibit numbered 1, the deposition of Juanita Moore was admitted as evidence.

Joint Exhibits numbered 1 through 4 and 6 were admitted as evidence.

On July 12, 2005, a hearing transcript was filed. On July 22, 2005, the parties filed proposed recommended orders which have been considered in preparing the recommended order.

FINDINGS OF FACT FACTS BASED UPON STIPULATION

1. The subject of this protest is financial project Nos.

   
   

   256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement.

2. Respondent and 12 other pre-qualified bidders received copies of the bid solicitation notice, plans and specifications for the Project at issue.

3. Rosiek submitted a responsive bid for the Pinellas Bayway Bridge Replacement on April 28, 2004. There were no other bidders.

4. Rosiek is pre-qualified to bid and receive the contract for the Project and therefore is a responsible bidder.

5. On May 12, 2004, DOT posted its notice of intent to reject all bids.

6. Rosiek timely filed this bid protest on May 14, 2004, with DOT, along with the statutorily required bid protest bond.

7. DOT's 2004 Standard Specifications for Road and Bridge Construction is applicable to this project. FACTS BASED UPON ROSIEK'S ADMISSIONS

8. DOT had advertised its bid solicitation notice for Financial Project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement on or about March 4, 2004.

9. Rosiek received the copy of the Bid Solicitation Notice for the Project.

10. Rosiek did not file a specifications challenge with respect to the referenced Project.

11. DOT advertised the amount of $37,087,000.00 as its budgeted amount for the Project.

12. Rosiek submitted a total bid of $50,470,378.12 for the Project (total bid A+B).

    ADDITIONAL FACTS

    
    

13. Juanita Moore is a manager of the DOT Contracts Administration Office. She served as a member of the Technical Review Committee and the Awards Committee in relation to the Project.

14. When the Technical Review Committee is confronted with a bid, such as the Rosiek bid, which is from a single bidder, something is missing from the bid or for certain differentials in price between the bid received and the official cost estimate, the Technical Review Committee considers these to be "problem jobs."

15. In connection with terminology, Ms. Moore explained that the budget figure, referred to in the Bid Solicitation Notice for the Project as a Proposal Budget Estimate, is derived from an earlier estimate in the process and in turn an official cost estimate was established for the Project. The official cost estimate is also referred to simply as the estimate. The official cost estimate has not been disclosed as has been explained in the Preliminary Statement to the Recommended Order.

16. The official cost estimate here is broken down into component items within the Project pertaining to cost for Mobilization, Concrete Class IV, Concrete Class V, etc.

17. After the Technical Review Committee considered the Rosiek bid, the bid was passed on to the Awards Committee where it was decided to reject the bid. According to

    Ms. Moore the bid was rejected as too high when compared to the official cost estimate. The reference to a bid being too high relates to a bid which is more than 10 percent in excess of the official cost estimate. The budget figure and the official cost estimate are not necessarily the same in a given instance. The fact that it was the only bid was also a factor considered in the rejection. As Ms. Moore explained, at the time the Rosiek bid was rejected, it was principally because it was too high in relation to the official cost estimate.

    Given the posture in this case, the rejection as the only bid will form the basis for resolving this dispute, absent DOT's willingness to divulge the amount of the official cost estimate or how it was established.

18. DOT does not have an established policy for rejecting bids based upon the fact that only a single bidder responded to the solicitation. In her experience, Ms. Moore does not remember DOT rejecting a bid solely on the ground that there was only one bidder.

19. The minutes of the Awards Committee meeting held on May 12, 2004, detail the response by that committee to the Rosiek bid. In the copy of that document provided for this

    proceeding, DOT's official cost estimate is redacted. The percentage differential between the official cost estimate and the Rosiek bid is likewise redacted. The item number 0101-1 for Mobilization reflects Rosiek's bid of $4,900,000.00 compared to the official cost estimate which is redacted.

    Similarly, Item No. 0400-4-4, Concrete Class IV refers to the contractor bid price of $800.00 per cubic yard compared with the official cost estimate which is redacted. There are other comparisons between several additional categories or items in which the contractors bid price is reflected but the official cost estimate in comparison is redacted. The minutes go on to describe how the review being made by the Awards Committee led to the conclusion that the official cost estimate could be adjusted, placing the bid received by Rosiek a certain percentage above the estimate on a 10 percent criteria job but the differential between the adjusted official cost estimate and the Rosiek bid is not revealed as a percentage because of redaction.

20. The DOT district where the project would be located is District 7, the Tampa office. The minutes of the Awards Committee meeting indicate that the district and the Technical Review Committee recommended to the Awards Committee that it reject the Rosiek bid and re-advertise. That was the decision

    made by the Awards Committee on May 12, 2004, to re-let in June.

21. Nothing in the minutes prepared by the Awards Committee refers to the significance of Rosiek as the only bidder and any concern which the Awards Committee had about that fact.

22. On May 12, 2004, when DOT provided a Cancellation of Posting and a Notice of Intent to Reject to Rosiek, it did not state the rationale for that decision. It merely indicated to Rosiek that it was DOT's intent to reject all bids on the project and advised Rosiek of its opportunity to contest that decision.

23. On May 5, 2004, Kenneth A. Hartmann, P.E., the District 7 Secretary, prepared the District Response to Post- Bid Evaluation of Bids in Excess of Approved Award Criteria. The document is presented in question-and-answer form. In response to the question numbered 4 within the document, related to the prospect of critical safety deficiencies in the existing system being corrected by the construction of a new bridge, Mr. Hartmann responded with the answer "No." In relation to question numbered 2, excluding normal inflation, the question was asked whether re-advertising the project would likely result in a higher bid. Mr. Hartman answered "No." In response to question numbered 16, related to his

    recommendation as the district secretary, for action that should be taken by the Awards Committee he stated "This project should be rejected and re-advertised for a June 2004 1st [sic]. Considering that the project is medium to large and was competing against two other large bridge projects on the same day it is understandable that the contractor's bid was higher than our estimate." In response to question numbered 15 concerning the work load level of the contracting industry in the locality where the project would be constructed, Mr. Hartmann referred to "a high level of work load."

24. At hearing Donald Skelton, P.E., the District 7 Secretary testified in support of the rejection of the Rosiek bid. In the past he had served as Director of Transportation Development with DOT, a position that made him responsible for preparation of the design plans and contract packages that are bid. He had involvement with this Project pertaining to the preparation of design plans and getting the Project to contract letting. He reviewed the Rosiek bid.

25. In discussions related to the Rosiek bid during the post-bid evaluation period, there was a concern over a lack of competition and the differential between, what Mr. Skelton refers to, as the budget amount and the bid amount by Rosiek. Mr. Skelton was mindful of potential safety issues that might

    warrant the prospect of trying to find additional money to fund the Project, if it was necessary to replace the existing bridge for safety reasons. If the bridge were structurally deficient or in bad shape, that would need to be addressed, versus the additional time necessary to potentially rebid the project. No safety issues of that sort were found by Mr.

    Skelton.

    
    

26. Mr. Skelton explained that the fact that there was single bidder made it difficult, if not impossible, to make a comparison between that bid and what the true market value of the bridge construction would be. Mr. Skelton expressed the hope by the DOT, that there would be more than one bidder in the future to truly get an impression of the degree of competition and whether the competition would result in a realistic price for the public. He recognized that there is no guarantee that DOT is going to get a lower bid if the project is re-bid.

27. Mr. Skelton indicated that when you have multiple bids you can compare what the economic system would support in relation to the affordability of the project. That comparison is of similarity in prices among the competitors trying to win the job, with the belief that bidders put their best effort forward to prevail in the competition. A single bid does not give any indication of market factors, in his view.

28. Michael Rosiek is the vice-president for Rosiek. In his testimony, he expressed a concern that if the project was re-let for bid, Rosiek's competitive position would not be good, in that the other contractors would have read the Rosiek bid that was made in the first letting, informing the competitors of the Rosiek price to its detriment. Further, Mr. Rosiek expressed a concern that in a re-letting the company would be bidding "against ourselves."

29. Louis Wenick, P.E., has a business consulting service. The nature of the business is consulting work relating to the construction industry. A considerable part of the business involves DOT projects. In his work Mr. Wenick is involved with scheduling, cost analysis, and entitlement analysis in DOT projects. He is familiar with DOT's specifications, policies, and procedures. Mr. Wenick is a registered engineer in Florida and a certified general contractor in Florida.

30. Mr. Wenick obtained information from DOT concerning its history in receiving sole bids for a project and the instances in which the sole bidder was awarded the contract. Mr. Wenick looked at procedures followed by DOT in awarding contracts. Mr. Wenick looked at the DOT experience in re- letting bids to determine if a company was a low bidder in the first letting when bids were rejected, and what percentage of

    the time that low bidder would succeed in being awarded the contract upon a re-letting.

31. Mr. Wenick prepared certain charts intended to depict the DOT response in the areas examined by the witness. Rosiek's Exhibit numbered 3 is referred to as Problem Jobs for the April 28, 2004, letting, with two posting dates of May 20, 2004, and June 7, 2004, respectively. The chart depicts the proposal I.D. number (bid), the project number and the type of problem identified in reviewing bid responses and a brief statement of the Technical Committee's comments and the Awards Committee's disposition in those projects depicted. Nothing more is described in the chart. In no case set forth in the chart was the type of problem described in any detail or, limited to an experience with a single bidder, as opposed to perceived problems in relation to the bid that was too high, as well as having a single bidder or to the problem of having a bid that was too high alone. Seven projects were awarded. Two were not. The rejections were based upon the bids being too high. One of the projects initially awarded was later rejected due to the unavailability of local funding to support the project.

32. Mr. Wenick prepared a chart, Rosiek's Exhibit

    
    

    numbered 4. This reflects the DOT award results for sole or single bidders from the period July 1999 through April 2005.

    The columns in the chart show the numeric count of sole bids, at certain letting dates, with the contracts numbers, the name of the low bidder, and the disposition of the bids. The numeric count of sole bids is a running tally over the period. This reflects 52 sole bids of which eight were rejected, making the percentage accepted 84.62 percent. Again the nature of the projects is not shown in the chart, and this chart does not indicate the basis for rejection.

33. Rosiek's Exhibit numbered 5 is another chart prepared by Mr. Wenick. It reflects instances in which projects were re-let for bid in the period July 1999 to April 2005. The letting dates are reflected. The project numbers, the low bidders names, if known, and the amount quoted is set out. The re-let date if the project was re-let is reflected. The low quote on re-bid and the low bidder's name on re-bid are reflected, as is the percentage difference between the low quote in the first letting and the low quote in the re- letting. Where data is established in all columns in the chart, 18 of the projects are shown to have been re-bid out of

    24 projects that were bid initially. Within that group, five bidders who bid in the initial letting were awarded the contract in the re-letting, while 13 low bidders in the first letting were disappointed in the re-letting. This equates to

    27.78 percent success rate by the low bidder in the initial letting when re-bidding in the re-letting.

34. Having considered the exhibits prepared by

    
    

    Mr. Wenick, the information is insufficient to discern the reason for DOT's past policies and practices and to compare them to the present case for consistencies in the application of those policies and practices when rejecting bids.

    Additionally, the reason for the choices in any single project described in the charts cannot be appropriately understood from the charts and compared to the experience here.

35. On the topic of the success rate for contractors who provided the low bid in the original letting and the low bid in the re-letting, it is so general an analysis, that it cannot be relied upon to determine the real significance for contractors who provided the low bid in the original letting, only to be disappointed in the re-letting when the contractor did not receive the contract.

    CONCLUSIONS OF LAW

    
    

36. There is jurisdiction over the subject matter and the parties in this case in accordance with Sections 120.569 and 120.57(1) and (3), Florida Statutes (2004).

37. This case examines DOT's decision to reject the Rosiek bid on the Project, the only bid received. The case must be decided pursuant to the direction found in Section

    120.57(3)(f), Florida Statutes (2004), which states in pertinent part:

    Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. . .

    . In any bid-protest proceeding contesting an intended agency action to reject all bids . . . the standard of review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest or fraudulent.

    
    

38. Section 337.11(4), Florida Statutes (2004), grants DOT the authority to reject Rosiek's bid and to re-bid the work but not outside the opportunity for Rosiek to challenge the intended agency action to reject its bid through proceedings afforded by Section 120.57(3), Florida Statutes (2004).

39. In this instance the dispute revolves around the decision to reject the Rosiek bid as the single bid and the explanation offered for that choice.

40. To prevail, Rosiek must prove by a preponderance of the evidence that the DOT intended action to reject its bid was illegal or arbitrary, as pled in the Amended Formal Written Protest. § 120.57(1)(j), Fla. Stat. (2004). To understand the agency rationale for rejecting the bid, the process engaged in when making the decision to give the Notice of Intent to Reject and its refinement beyond that point has been considered.

41. Particular insight concerning the meaning of the word arbitrary as used to decide the outcome is gained by a reading of the decision in Agrico Chemical Co. v. Dep't of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978), which explained, "An arbitrary decision is one not supported by facts or logic, or despotic."

42. The proof did not reveal any policy or trend that would identify DOT's past practices when rejecting bids limited to the ground that it had received only one bid in a letting. Without it, the case must be decided on the impression created by the facts presented in support of the decision to reject Rosiek as the sole bidder.

43. Nothing about the DOT decision to reject the Rosiek bid violated statutes or rules. The decision was not despotic. There remain the questions of whether the decision had support in facts and logic. If not, it was arbitrary.

44. Ultimately, the justification for rejecting the Rosiek bid because it was the only bid comes from the present District 7 Secretary Mr. Skelton, and to a lesser extent

    Mr. Hartmann, the former District 7 Secretary. They explained that there was no urgency to build the project based upon safety issues. In his testimony, Mr. Skelton went on to describe the difficulty, if not impossibility of comparing the true market value of constructing the bridge when there is a

    single bidder. If re-bid, DOT hopes that there would be more than one bidder to get a picture of the competition, and whether competition would result in a realistic price for the public. As Mr. Skelton describes the matter, with multiple bids you can compare what the economic system will bear in determining whether DOT can afford the Project. With competition contractors are trying to win the job, they put their best effort forward. Market factors are unknown with a single bid, according to Mr. Skelton; with only a single bid you cannot determine if it is a fair bid. In his testimony Mr. Skelton concedes that Rosiek, realizing that this was a competitive bid process, would have put forth its best effort; however, Mr. Skelton continues in his belief that there is a problem in the lack of another bid or bids with which to compare it.

45. It is understood that 13 contractors expressed an

    
    

    interest in the project when first bid. One contractor offered a

    formal bid. It is not certain what that portends for the future should the project be re-let in the interest of gaining participation by more than one bidder.

46. Nevertheless, Mr. Skelton in his testimony has articulated a factual basis for the decision to reject the

    Rosiek bid. One may have reason to question the logic that supports his explanation, but it is not illogical.

47. Accepting as fact Mr. Rosiek's concern that other competitors could discover the details of Rosiek's initial bid in the first letting, in the event there was a re-letting, it has no influence in deciding whether DOT acted arbitrarily in deciding to reject the Rosiek bid.

48. DOT did not act illegally or arbitrarily when it rejected the Rosiek bid solely on the basis that it was the only bid received.

RECOMMENDATION

Upon consideration, it is RECOMMENDED:

That a final order be entered dismissing the Rosiek Amended Formal Written Protest challenging the DOT decision to reject its bid.

DONE AND ENTERED this 17th day of August, 2005, in Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2005.

ENDNOTES

1/ An allegation was also made concerning alleged illegality by DOT in rejecting the Rosiek bid as "a non-local contractor." That claim was not litigated at final hearing.

2/ That provision states:

(6) EXECUTION OF THE BUDGET.--

(a) The department, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The department shall require a statement from the comptroller of the department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing

herein contained shall prevent the making of contracts for periods exceeding 1 year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years; and this paragraph shall be incorporated verbatim in all contracts of the department which are for an amount in excess of $25,000 and which have a term for a period of more than 1 year.

COPIES FURNISHED:

Bradley S. Copenhaver, Esquire Mary Piccard Vance, Esquire

Venzina, Lawrence and Piscitelli, P.A.

318 North Calhoun Street Tallahassee, Florida 32301

C. Denise Johnson Robert C. Downie, II

Assistant General Counsels Department of Transportation Hayden Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

James C. Myers, Clerk of Agency Proceedings Department of Transportation

Hayden Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Hayden Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of 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: 04-002059BID

Orders for Case No: 04-002059BID