Findings Of Fact By application dated March 3, 1983, Respondent ITT Community Development Corporation (ITT) requested a permit from Respondent Department of Environmental Regulation (DER) to dredge 815 cubic yards of material from the Intracoastal Waterway In Flagler County, Florida, as part of the construction of a high-level concrete highway bridge over the intracoastal Waterway. The proposed bridge project will extend Palm Coast Parkway from the end of existing pavement to State Road A1A east of the Intracoastal Waterway, and thus complete the Interstate 95 connector link with coastal State Road A1A. At the present tine, there are two drawbridges across the Intracoastal Waterway some ten miles south at Flagler Beach. and approximately 15 miles north at Crescent Beach. Existing high bridges across the Intracoastal Waterway are further north and south of the proposed bridge project. (Testimony of Smith, ITT Exhibits 1, 9- 12) The proposed bridge is a fixed concrete bridge approximately 2,598 feet long and 52 feet, 7 inches in width. The bridge will have a minimum vertical clearance of 65 feet above mean high water and 66.4 feet above mean low water, with a horizontal clearance of 90 feet between fenders. It will involve a cast- in-place concrete deck set upon prestressed concrete columns. The bridge will be supported by sets of concrete beams and placed on top of pilings, which will be driven into the surface to a depth of approximately 80 feet. The center two support piers, which are the subject of the requested permit, will be set upon concrete seals constructed inside of cofferdams, which will be located within the right-of-way of the Intracoastal Waterway. It is the construction of these two piers within the limits of the cofferdam that involves the removal of material which is considered dredging pursuant to DER rules. (Stipulation) The cofferdams will be made of steel and will be driven into place to encompass the pier foundations, with the 815 cubic yards of material excavated from inside the cofferdams being placed on a barge and transported to the adjacent uplands as part of the bridge approach construction. During construction of each support pier, a turbidity curtain will be placed around the cofferdams and the barge. Bridge deck drains will be omitted over the Intracoastal Waterway, and first flush storm water runoff will be retained in a stormwater management system which meets the requirements of Chapter 17-25, Florida Administrative Code. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Turbidity controls will be used during the the construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs. (Stipulation, Greene) The bridge will connect two parcels of land under the ownership of ITT, and will facilitate access between Palm Coast Parkway and the State Road A1A. (Stipulation, ITT Exhibits 1, 9-12) After receiving the ITT application, DER solicited comments from adjoining landowners, the Flagler County Board of Commissioners, and the Florida Game and Fresh Water Fish Commission, but none were received. By letter dated April 13, 1983, the Department of Natural Resources gave its authority for the project under Section 253.77, Florida Statutes. An onsite inspection of the proposed site was made by DER in June 1982 and March 1983, who found that the project site was devoid of literal vegetation and that minimal impact could be expected from the project provided that turbidity is contained during construction. They further determined that the bridge pilings would not eliminate valuable habitat or alter the natural flow of the Intracoastal Waterway, a Class III body of water. Further, in view of the fact that the dredging activities would be isolated by the cofferdams, no turbidity problems re expected. On May 18, 1983, the DER District Manager issued a notice of its intent to issue the requested permit for the reason that reasonable assurance had been provided that the short-term and long-term effects of the proposed activity would not result in violation of water quality criteria under Chapter 17-3, Florida Administrative Cede, and that the proposed activity would not interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interests, or create an navigational hazard or impediment, or alter or impede the natural flow of navigable waters so as to be contrary to the public interests. The intent to issue provided that the permit would be subject to the condition that turbidity controls would be used during construction if the level of turbidity produced exceeds 50 JTU above background. (Testimony of Tyler, ITT Exhibits 2-5, 7) By Resolution No. 83-13, dated August 18, 1983, the Flagler County Board of County Commissioners expressed its support of the concept of the proposed project as long as the cost of construction is funded through ITT funds or bridge tolls. (ITT Exhibit 13) In their prehearing and posthearing stipulations, the parties agreed to the following: That reasonable assurance has been provided by ITT that the short-and long-term effects of the bridge construction will not adversely affect the surficial aquifer to such an extent that it will cause harm to its use by Petitioners as a potable water supply. That the construction and operation of the proposed bridge will not interfere with the conservation of the Florida Scrub Jay, the Gopher Tortoise, or the Indigo Snake. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Reasonable assurance has been provided by ITT that the short-term effects of turbidity will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. The proposed bridge will not create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interests, and the proposed bridge will not result in the destruc- tion of oyster beds, clam beds, or marine productivity, including but not limited to destruction of natural marine habitats, grass- flats suitable as nursery or feeding grounds for marine life, and establish[ed] marine soil(s] suitable for producing plant growth of the type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests. If the permit is issued, it shall be issued with the following conditions: Turbidity controls will be used during construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs above background. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. In view of the above stipulations by the parties, the only remaining disputed issues of material fact are whether the proposed project will interfere with the conservation of the Florida panther and Florida black bear to such an extent as to be contrary to the public interests. The black bear is considered to be a "threatened" species of wildlife by the State of Florida. A wildlife survey of some 2,000 acres of land surrounding and including the project area during the period 1979-82 by an expert in the field of wildlife ecology revealed traces indicating the presence of the black bear on two occasions in a location east of the proposed project area. On those occasions, bear tracks were found east of State Highway A1A in a hammock area north of the bridge corridor in 1979. However, the signs were insufficient to indicate that there was a resident bear population in the area. Signs of the black bear are fairly common on the west side of the Intracoastal Waterway in swampy wilderness areas, such as Long's Creek area and Graham's Swamp. It is possible that, on occasion, a black bear may wander into or cross the bridge area; however, construction and operation of the bridge should have little or no adverse impact on any black bear population which is located either several miles south or north of the proposed bridge area. (Testimony of Brown) The Florida panther is classified as an "endangered" species by the State of Florida. The four-year survey of wildlife undertaken by ITT during the period 1979-82 failed to disclose any traces of the panther in the area surrounding the proposed project site. There are only approximately 20 to 30 Florida panthers in the state, and all are located to the south and west of Lake Okeechobee in the Everglades. The Florida panther requires a vast area of undisturbed habitat. Approximately 400 square miles are necessary for males and some 50 to 100 square miles for a female. They avoid populate areas. Several state personnel saw a tan catlike animal near the entrance to Washington Oaks State Gardens which is located a number of miles north of the proposed bridge site, on May 13, 1983. They reported to the Florida Game and Fresh Water Fish Commission that the animal was a Florida panther, and plaster casts of the animal's tracks were submitted to that agency for verification. However, the casts were insufficient upon which to base an identification of the animal as a Florida panther, and the park personnel admittedly lacked sufficient qualifications to determine if the animal was, in fact, a Florida panther. There have been other purported sightings of panthers in the general area during past and recent years by Petitioner Gerald D. Schatz and others who reported such sightings to him for investigation. However, it has never been confirmed that the said sightings were of the Florida panther. Although a suitable habitat for the panther is the Graham Swamp, that area is not large enough to be sustain the Florida panther, and It is unlikely that any of that species are present in the area of the proposed bridge. It is accordingly found that construction of the bridge would have no impact on the Florida panther. (Testimony of Brown, Wood, Ganson, Nichols, Schatz; Petitioner's Exhibits 3-5)
Recommendation That the Department of Environmental Regulation issue the requested permit pursuant to Chapter 253 and 403, Florida Statutes, and Public Law 92-580, subject to standard conditions, and the special conditions set forth in paragraph 6 above of the Conclusions of Law herein. DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
Findings Of Fact Leamington (Petitioner herein), is a road maintenance and construction contractor doing business since approximately 1985. John Hummell is Petitioner's President and is responsible for all bids submitted for contract awards. Petitioner contracts primarily with the Florida Department of Transportation (Respondent herein). Since 1985, Petitioner has entered into approximately forty-one (41) contracts with Respondent. Petitioner was one of seven bidders on State Job #17030-3536, Contract E-1706, let by Respondent in District I. Respondent notified Petitioner of its decision to award the bid to the second lowest bidder, Simco, by notice posted on April 19, 1993 stating that Leamington's bid was rejected because it was considered not to be responsible and was not in the best interest of the Department (to contract with Leamington). The work in question involves the repairs of the bridge located at SR- 789 at Little Ringling Causeway west of Sarasota in Sarasota County. The work entails removal and replacement of silicone sealant on the bridge deck and replacement and rejacketing of piling with grout epoxy. The bid tabulations revealed that Petitioner's bid was approximately $500.00 less than that of the second lowest bidder, Simco, Inc., of Sarasota. The Department has a procedure called the "district contracts procedure". Part of the procedure calls for the awards committee to review bids and determine who the bid should be awarded to. The awards committee, which was chaired by Glenn Ivey, the District Director of Operations, reviewed the bid submitted for project E-1706. The awards committee voted unanimously to reject Leamington's bid on Contract E-1706. The decision to reject Petitioner's bid, by the awards committee, was based on Petitioner's performance on its more recent Department contracts. Specifically, the awards committee considered projects E-1649, for sidewalk repair in several counties; contract E-1545, a concrete repair job in Lakeland; and contract E-1652, a roadway shoulder repair job. Leamington's contract on the concrete repair job (E-1545) was rated as being poor when Leamington was, in effect, asked to leave the job. Based on Leamington's poor workmanship and difficulties encountered on that contract, Respondent terminated work on the contract after approximately sixty percent (60 percent) of the work was completed. The remainder of that project was completed by another contractor. Specifically, Job No. E-1545 called for Petitioner to remove and replace portland concrete slabs on Memorial Boulevard in Lakeland. Petitioner failed to restore the concrete slabs to a smooth surface, making it necessary for Respondent to have the slabs ground such that motorists had a smooth driving surface. After several warnings, Respondent cancelled the project and, as noted, approximately forty percent (40 percent) of the work was completed by another contractor. Another project reviewed by the awards committee was Contract E-1652, a roadway shoulder repair contract. On that project, Petitioner was advised that the shoulder had to be graded at a certain angle and was shown, by several of Respondent's engineers, the proper manner in which to accomplish the task. Petitioner failed to grade the shoulder at the correct angle as requested. Petitioner also routinely failed to provide proper traffic control during the performance of Contract E-1652 and frequently disputed Respondent's employees advice as to work instructions and ways to eradicate the poor workmanship on that project. Additionally, Petitioner failed to use skilled workers and did not have ample equipment on the job to perform the work on Contract E-1652. Initially, Petitioner had limited equipment at the beginning of the work on Contract E-1652. After Petitioner received a letter from Respondent advising that there wasn't adequate equipment to complete the project, Petitioner obtained additional equipment. The Department terminated Petitioner's work under Contract E-1652 because Petitioner had approached the contract deadline for completion and due to of the numerous problems the Department experienced with Petitioner in getting the work completed acceptably. Bobby Cranford, the Assistant Maintenance Engineer for the Petitioner's Sarasota Maintenance Unit, recommended that Petitioner not be awarded any more roadway shoulder repair contracts based on the difficulties experienced by Petitioner's "poor" workmanship on contract E-1652. Another project reviewed by the awards committee was Petitioner's work performance on Contract E-1649, a sidewalk repair job which encompassed several counties. Petitioner did not have the required personnel and expertise to perform the sidewalk job correctly. Petitioner was kept informed of deficiencies and necessary corrections to correctly perform the sidewalk repair job, however, the proper repairs have not been made. The Respondent introduced a composite of twenty-three (23) photos showing the extent of the problems Petitioner needed to correct the sidewalk repairs with notes as to the corrective action that was needed. Specifically, Petitioner used little expansion joint materials and no edging tools were utilized on the project. Similar problems were found throughout the four county area in which Petitioner was engaged on the sidewalk project. By letter dated May 13, 1993, Respondent advised Petitioner of the numerous problems on contract E-1649. Specifically, Petitioner's President was told of visual inspections which showed substandard work on the original work as well as the work wherein Petitioner attempted to correct deficiencies which were discovered by Respondent. For example, Petitioner was advised that at 506 First and Main Streets in Wachula, there were sections of concrete sidewalk removed and scheduled for replacement with adjacent sections now damaged. Petitioner was further advised that workers had driven trucks on the sidewalk damaging several slabs not marked for replacement. Finally, Petitioner was asked to correct broken sprinklers at the work site and to resolve a claim filed by a Mrs. Campbell, which was registered with Respondent. The awards committee also relied upon an independent inspection report prepared by Bobby Cranford. That report is a forty (40) page report citing numerous deficiencies on the sidewalk repair project. Respondent requires that contractors employ english speaking superintendents at each work site to assist in communicating with its inspectors. Petitioner utilized superintendents who did not speak english and thereby created a language barrier making communication difficult with Respondent's personnel. Respondent had to monitor Petitioner's projects extensively and at a cost which increased the Department's overhead disproportionately when compared to other projects let to other district contractors. Based on a review of Respondent's work on Petitioner's recent contracts, no other contractors performing contracts in District I had a performance record as poor as Petitioner. When the awards committee made its decision to reject Petitioner's bid on the subject contract, it also relied on a memorandum from , Wally Clark, a District I attorney. In the memorandum it was concluded that Petitioner had subcontracted work to Hummell, Inc., a separate entity and that the required prior written approval of the subcontracting had not been obtained from Respondent. The investigation also revealed that the subcontractor, Hummell, Inc., had not been paid for its services (by Petitioner). An internal audit also prepared by Wall revealed that Hummell, Inc. was an unpaid subcontractor of Petitioner. The awards committee also considered allegations from Phillip Spears, a subcontractor of Petitioner, who had not been paid for work performed on Respondent's contracts. The committee also considers a newspaper article which stated that Petitioner was under investigation by local law enforcement officials for failure to pay subcontractors on the Interstate 75 project. Dennis Hall is the District Investigator for District I. Hall accompanied Wall, the author of the internal audit report, on investigations and interviews in compiling the audit report. One of the persons interviewed by Wall and Hall was Larry Zavitz. Zavitz was an inspector employed by Petitioner in excess of twenty- eight (28) years and had performed the inspection on Petitioner's sidewalk repair project under Contract E-1649. During the interview of Zavitz, he admitted to receiving a loan of $1,000.00 from John Hummell which Zavitz had not fully repaid at the time of the interview. Upon Zavitz admission of accepting the loan, he was asked and later resigned from the Department.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that: Petitioner's protest of the rejection of its bid on Contract E-1706 be rejected and the Department enter its award of the subject contract to the second lowest responsible bidder, Simco, Inc. of Sarasota. DONE AND RECOMMENDED this 8th day of September, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 8th day of September, 1993. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Haydon Burns Building 562 Suwannee Street Tallahassee, Florida 32399-0458 William H. Roberts, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Michael E. Riley, Esquire 106 East College Avenue Post Office Box 10507 Tallahassee, Florida 32302
The Issue The issue is whether Petitioners are entitled to an award of attorneys’ fees and costs pursuant to section 57.111, Florida Statutes (2017).1/ Petitioners are entitled to such an award if: Petitioners were the prevailing parties in a previous administrative proceeding initiated by the Department of Transportation (“the Department”); (b) the Department’s actions were not substantially justified; and (c) no special circumstances exist that would make an award of fees and costs unjust.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties The Department is the state agency responsible for coordinating the planning of a safe, viable, and balanced state transportation system that serves all regions of Florida. § 334.044(1), Fla. Stat. As part of its duties, the Department regulates “[v]ehicular access and connections to or from the State Highway System . . . in order to protect the public health, safety, and welfare.” § 335.182(1), Fla. Stat. Crum’s Service is owned by Ronald Crum and has been in operation for over 50 years. It is located in Panacea, Florida, adjacent to State Road 30/61 (“Highway 98”). Crum’s Service has less than 10 employees, and Mr. Crum’s net worth is less than two million dollars. Coastal Restaurant is owned by Rita Sadler and has been in her family since the 1950s. It is next to Crum’s Service and is also adjacent to Highway 98. Coastal Restaurant has approximately seven full-time employees, and Ms. Sadler’s net worth does not exceed two million dollars. Kelli Boxberger operates The Funky Fiddler located on Highway 98 in Panacea. The Funky Fiddler has been in operation since the 1950s. Driveway connections on state roads must be permitted or grandfathered. § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). Because Petitioners’ driveways were in place before 1988, they are grandfathered. § 335.187(1), Fla. Stat. Facts Specific to the Instant Case On April 7, 2014, the Wakulla County Board of Commissioners voted unanimously to support the design and construction of sidewalks and multiuse paved paths. In order to further that effort, Wakulla County requested that the Department fund sidewalk construction from Piney Street to Jer Be Lou Boulevard in Panacea. The proposed sidewalk was intended to address safety concerns associated with people walking along Highway 98. The Department funded the sidewalk project and incorporated it into a separate project to resurface a seven mile portion of Highway 98 running through Wakulla County. The sidewalk project required the Department to evaluate whether existing driveways along Highway 98 needed to be modified for pedestrian safety. If the Department determined that particular driveways needed to be modified, then it sent written notification to the property owners. On August 4, 2017, the Department issued letters to Mr. Crum, Ms. Sadler, and the Boxbergers referencing work on the portion of Highway 98 running from the Franklin County line to Boykin Road in Wakulla County. The letters stated the following: While developing the above-referenced project, [the Department] is required to evaluate existing driveway access connections and modify those which will create a traffic operations or safety problem. As part of this project, sidewalk will be constructed between Piney Street and Dickson Bay Road. The existing driveways adjacent to the proposed construction work for this project also required evaluation for safety of pedestrians. The Department has completed this evaluation and is notifying you of its proposed action with this Notice of Intent to Modify Driveway Connection(s). The letters then state that “[p]ursuant to Sections 334.044(14) and 335.182, Florida Statutes, the Department is initiating action to alter the existing connection of your property to [Highway 98] as identified on the enclosed “DRIVEWAY DETAIL.” In other words, the Department was providing notice that it intended to install a sidewalk in front of Crum’s Service and Coastal Restaurant. The proposed sidewalks would have modified the driveways onto the properties, but would not have closed them. The Department’s proposed modification to the Boxberger property involved a 39-foot wide driveway connection and a sidewalk on either side of the driveway. All of the Department’s proposed modifications pertained to land completely within the Department’s right-of- way. The Department’s August 4, 2017, letters closed by advising Mr. Crum, Ms. Sadler, and the Boxbergers that they had 21 days to request a formal administrative hearing if they disagreed with the Department’s proposed action. Mr. Crum was concerned that the proposed sidewalk would “totally annihilate” his business. Many of his customers use cars or trucks to tow boats. According to Mr. Crum, the Department’s proposal would have resulted in there being insufficient space in his parking lot for vehicles towing boats. Ms. Sadler was concerned that the proposed sidewalk would destroy the parking spaces in front of her restaurant. On August 17, 2017, staff members from the Florida House and Senate organized a constituent meeting at a local restaurant to hear concerns about the resurfacing project. Mr. Crum, Ms. Sadler, a handful of constituents, two legislative staff members, and Reid Carter Johnson, a government affairs liaison from the Department, attended the meeting. Business owners told Mr. Johnson that the proposed sidewalk would impair access between their property and Highway 98. Mr. Johnson told those present that the Department’s engineers would confer with anyone who had concerns about the proposed sidewalk.2/ On approximately August 18, 2017, Mr. Crum and Ms. Sadler hired Ronald A. Mowrey, Esquire, to represent them in this matter. On August 23, 2017, Crum’s Service and Coastal Restaurant filed petitions seeking to challenge the Department’s proposed action through formal administrative hearings. Engineers from the Department conducted a site visit with Mr. Crum, Ms. Sadler, and their attorney on August 29, 2017, at Crum’s Service and Coastal Restaurant. After listening to Mr. Crum and Ms. Sadler’s concerns, the engineers stated that they would review all of the information. Engineers from the Department also met with Ms. Boxberger on August 29, 2017, in order to conduct a site visit pertaining to the location of The Funky Fiddler. At that time, Ms. Boxberger had not retained counsel. Ms. Boxberger was concerned that the Department’s proposed modification would prevent her from displaying merchandise in front of her store on the Department’s right-of- way. She was also concerned that the Department’s proposal would deprive her business of three parking spaces. On September 18, 2017, Ms. Boxberger filed a petition to challenge the Department’s proposed action through a formal administrative hearing. Petitioners did not hear from the Department again until the Department issued each of them an “Amended Notice of Intent to Modify Driveway Connections(s)” (“the Amended Notice(s)”), on November 20, 2017. The Amended Notices stated that: [P]ursuant to Sections 334.044(14), 335.182 and 335.187, Florida Statutes, as well as Rules 14-96.011 and 14-96.015 Florida Administrative Code, the Department has reviewed the existing connection of your property to [Highway 98]. Subsequent to the initial Notice of Intent to Modify Driveway Connections, the Department met with you on- site on August 29, 2017 and engaged in other coordination efforts with your representative to consider information, documents, reports and alternative solutions. After taking into consideration the concerns expressed in these discussions, the Department has amended its plans as detailed in “EXHIBIT A”. The Amended Notices indicated that the Department decided against placing a sidewalk in front of Crum’s Service and Coastal Restaurant.3/ The Department’s Amended Notice to Ms. Boxberger clarified the substance of the Department’s proposed action but set forth no material changes. The Amended Notices to all three Petitioners stated that they could request a formal administrative hearing if they disagreed with the proposed action set forth in the Amended Notices. Mr. Crum and Ms. Sadler were satisfied and did not challenge the Department’s proposed action. As a result, the Department issued Final Orders dismissing the petitions filed by Mr. Crum and Ms. Sadler. As of August 31, 2017, the Department had not disposed of the petition filed by Ms. Boxberger.
The Issue The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation ("FDOT"), acted contrary to the agency’s governing statutes, rules or policies, or the proposal specifications, in rejecting the proposal of Petitioner, Old Tampa Bay Enterprises, Inc. ("Old Tampa Bay"), to RFP-DOT-97/98-1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties (the "RFP" or "RFP 1003"), and awarding the contract to Intervenor, General Electric Industrial Systems ("GE"). GE also raises the issue whether Old Tampa Bay lacks standing because it submitted a materially false or fraudulent proposal.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 10, 1998, FDOT issued RFP 1003, requesting proposals for a bridge-tending, maintenance and repair service contract for five movable bridges within Manatee and Sarasota Counties. The contract would run for a period of one year, with an option for two annual renewals. FDOT contemporaneously issued RFP 1004, for the performance of identical bridge tending, preventive maintenance and repair services on four other movable bridges in Sarasota County. The RFP required, among other things, that proposers must employ an experienced bridge tender supervisor and an experienced registered electrical engineer. The RFP required that the contractor must be licensed to perform electrical and mechanical work in the State of Florida, and that a copy of the license be submitted as part of the proposal package. RFP 1003, Section 1.7.5. (In this and some other sections of the RFP, FDOT employed the undefined term "Consultant" rather than the term "Contractor" or "Proposer" used through the bulk of the RFPs. Absent a clarifying explanation, it is assumed that all three terms are used interchangeably.) The RFP required the proposers to provide the names of "key personnel," a resume for each of these individuals, and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively to this project was also to be provided. FDOT’s prior written approval was required for the removal and substitution of any of the key personnel proposed. "Key personnel" included project engineers, bridge superintendents, mechanics, and electricians. Under the heading "preventive maintenance," the RFP required the proposers to provide "sufficient and competent personnel to perform the inspection, troubleshooting and work for all bid item requirements." The electrician must be "a licensed electrician with experience in industrial maintenance and troubleshooting." RFP 1003, Exhibit A-3, Section 3.0. The RFPs incorporated by reference the "Bridge Operations and Maintenance Manual" (the "Bridge Manual"), an FDOT document establishing procedures for bridge operations and maintenance requirements statewide. The Bridge Manual set forth the following qualifications for electricians: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have skills in industrial electrical work. Ability to read and understand blueprints and written instructions. Ability to communicate effectively orally and in writing. Ability to plan, organize and coordinate work assignments. Ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-3. Another section of the Bridge Manual elaborated on the minimum qualifications for electricians as follows: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have at least two years experience in industrial electrical work. Vocational/training in industrial electricity can substitute at the rate of 720 classroom hours for each year of the required experience. After employment, they should attend the Bridge Inspection school and Movable Bridge Inspection school. They should also receive continuing training on motor controls, National Electric Code and applicable safety training. They should be able to read blueprints, and written instructions, communicate effectively, be able to plan, organize, and coordinate work assignments, and have the ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-17 through 2-18. The RFP awarded a maximum of 100 points to responsive proposals. A maximum of 60 points could be awarded for the technical proposals, which were scored by a three-member technical committee that included Hendrik Ooms, FDOT’s assistant maintenance engineer for District One. Each member of the committee scored the proposals independently. Their scores were then averaged to arrive at the final technical score. The RFP listed Richard Marino, the head of contracts for District One, as the project manager who should receive all technical questions from prospective proposers. Regardless of the formal designation, Mr. Ooms was in fact the project manager and the person capable of answering technical questions. The technical proposal scoring subsumed a maximum of 35 points for the "management plan," including 20 points for identified "key personnel." A maximum of 35 points could be awarded for the price proposal. The low price proposal received the maximum 35 points, with the remaining proposals scored according to the formula: (Low price/proposer’s price) x Price points = Proposer’s total points. The technical committee was not aware of the contents of the price proposals prior to scoring the technical proposals. Finally, proposers could obtain 5 preference points for Disadvantaged Business Enterprise (DBE) participation of at least 10 percent of the total dollar amount of the contract, or 2 preference points for DBE participation of between 5 and 10% of the total dollar amount. On or about May 11, 1998, three companies submitted proposals for RFP 1003 and 1004: GE; Old Tampa Bay; and C & S Building Maintenance Corporation. GE is the incumbent vendor for these contracts. Until this bid, Old Tampa Bay was a subcontractor to GE on these contracts. On May 22, 1998, FDOT posted the proposal tabulations indicating the intended awardees of the two contracts. Old Tampa Bay was the apparent awardee of the contract for RFP 1003, the contract at issue in this case, with a total score of 79.67 points. GE was the second high scorer, with 79.45 points. GE was the apparent awardee of the contract for RFP 1004. As to RFP 1003, the averaged technical score for Old Tampa Bay was 39.67 points. The averaged technical score for GE was 49 points. All three members of the technical committee awarded GE more points than Old Tampa Bay, though Mr. Ooms saw a greater difference between the two bids than did the other committee members, Richard Marino and Kenneth Clark. Mr. Marino awarded 56 points to GE and 52 points to Old Tampa Bay. Mr. Clark awarded 53 points to GE and 47 points to Old Tampa Bay. Mr. Ooms awarded 38 points to GE and 20 points to Old Tampa Bay. Despite the difference in the technical proposals, Old Tampa Bay was named the intended awardee for RFP 1003 on the strength of 35 points for its significantly lower price proposal ($539,915 per year, versus $621,340 per year for GE) and obtaining the full 5 points for DBE participation. GE was awarded 30.45 price points according to the RFP formula and obtained no DBE points. No formal protest having been received, FDOT moved forward to the next step in the award process. The agency sent substantially identical letters to Old Tampa Bay as the intended awardee of the contract for RFP 1003 and to GE as the intended awardee of the contract for RFP 1004. The letters, dated June 15, 1998, and signed by Felipe Alvarez, FDOT’s purchasing agent, informed the vendors that they had each proposed the same people as "key personnel" who would devote 100 percent of their time to the project. This situation "concerned" FDOT, as these persons obviously could not devote 100 percent of their time to RFP 1003 as employees of Old Tampa Bay and 100 percent of their time to RFP 1004 as employees of GE. The letters requested each of the vendors to clarify the employment of the following persons: Mr. W. Bruce Chapman, whom GE had identified as its bridge superintendent and Old Tampa Bay had identified as its project manager; Mr. Gary Berkley, whom GE had identified as its mechanic and Old Tampa Bay had identified as its primary mechanic; Kelly Green, whom both GE and Old Tampa Bay had identified as primary electrician; and John Vance, whom both GE and Old Tampa Bay had identified as supporting electrician. The letters concluded with the following statement: The Proposal Package stated that if awarded the Agreement, the Consultant is to provide the services of the key personnel proposed. Removal and substitution of any of the key personnel proposed will require the Department’s prior written approval. Please advise the Department if your firm plans to provide the same key personnel or will be providing an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, and expertise or better than the individual originally proposed. (Emphasis added.) As noted in FDOT’s letter, the Old Tampa Bay proposal listed Kelly Green and John Vance as electricians. Old Tampa Bay’s proposal emphasized that Vance and Green were the current electricians performing electrical maintenance and repairs on the bridges, with nine years combined experience on the District One contract. Old Tampa Bay's proposal emphasized the ease of transition to the new contract that FDOT would enjoy should it select Old Tampa Bay: There will be no transition pain from the existing prime contractor [GE] to [Old Tampa Bay] as ALL personnel currently serving are already on the [Old Tampa Bay] payroll and have been for several years. FDOT will have no new relationships to establish or unknowns with which to be concerned. (Emphasis in original.) Old Tampa Bay’s proposal emphasized in several places that Old Tampa Bay would provide the same electricians who were already working on the bridges. In describing its technical approach to the electrical systems, Old Tampa Bay emphasized that its electricians would require no orientation before commencing work: The electrical system is a critical link in the operation of the bridge. Its maintenance is crucial to reliable operation. [Old Tampa Bay's] comprehensive maintenance program is designed to meet and exceed contract requirements. The [Old Tampa Bay] electrician (Resume attached) is knowledgeable and experienced in the performance of this program. He has performed this service under other FDOT contracts. Old Tampa Bay's proposal emphasized the experience of its electricians with respect to the electro-mechanical control systems, stating that "All [Old Tampa Bay] service personnel including electricians have been trained to work on, maintain, and troubleshoot as required each intricate system." Old Tampa Bay emphasized the experience of Vance and Green, and stated that they had "never failed to correct any problems on this system on any of the bridges in this contract." Old Tampa Bay made similar representations in regard to equipment malfunctions and computerized control systems, emphasizing the quick, successful responses by and experience of its electricians. The evidence indicated that Old Tampa Bay knew, or should have known, at the time it submitted its proposal, that John Vance had no intention of working for Old Tampa Bay on these contracts. Old Tampa Bay included Mr. Vance’s name and license in its proposal without his consent. Mr. Vance never stated orally or in writing that he agreed to be included in Old Tampa Bay's proposal. Old Tampa Bay never asked Mr. Vance’s permission to include his name as a proposed supporting electrician. Old Tampa Bay never asked Mr. Vance’s permission to include a copy of his electrical contractor’s license in Old Tampa Bay's proposal. About two weeks prior to the proposal submission date, Old Tampa Bay's president, Donald Abernathy, asked Mr. Vance for a copy of his license, but did not tell him that Old Tampa Bay intended to include the license in its proposal. Rather, Mr. Abernathy told Mr. Vance that Old Tampa Bay needed the license for purposes related to insurance. Mr. Vance refused to provide Old Tampa Bay with a copy of his license. Old Tampa Bay obtained a copy of Mr. Vance’s license by making a public records request to Manatee County, and submitted that copy with its proposal. Mr. Bruce Chapman has served for nearly four years as a bridge tender supervisor, employed by Old Tampa Bay under a GE contract with the FDOT. At the time of the hearing, Mr. Chapman was still an Old Tampa Bay employee. Mr. Chapman assisted Mr. Abernathy in trying to obtain permission of various people to use their names in Old Tampa Bay's proposal. Mr. Chapman testified that he knew from conversations with Mr. Vance that Mr. Vance did not want to work for Old Tampa Bay on the new contract. Old Tampa Bay also knew at the time of proposal submission that it had obtained no assurances from Kelly Green that he would work for Old Tampa Bay on the contract for RFP 1003. As detailed below, Mr. Green ultimately signed a letter-of-intent to work for GE on the contract for RFP 1004. Mr. Abernathy contended that Old Tampa Bay was entitled to include Vance and Green in its proposal without permission because they were Old Tampa Bay employees. However, Mr. Abernathy also conceded that Vance and Green were at-will employees, and his prior attempt to secure their permission to use their names in the Old Tampa Bay proposal was a tacit admission that Old Tampa Bay had no control over them. Further, in the fall of 1997, Mr. Abernathy attempted to obtain the signatures of Mr. Vance and several other bridge employees to a non-compete agreement for the purpose of binding them to Old Tampa Bay. Mr. Vance refused to sign the agreement. Old Tampa Bay provided payroll services to Vance and Green during their work on the bridges under GE’s existing contract with the FDOT, but Old Tampa Bay never supervised the work of the bridge electricians, never provided Vance or Green with the tools, equipment or supplies they used in their work as bridge electricians, and never had any control over the day-to- day activities of any electricians on any FDOT contract. The electricians worked on a daily basis with GE’s project engineer, Douglas Blake. Mr. Blake had trained Mr. Vance on bridge electrical equipment when the latter commenced work on the bridges. The electricians looked to Mr. Blake for technical and substantive assistance in working on the bridges. Mr. Vance testified that he considered himself an employee of GE. Mr. Green did not testify at the hearing. On June 26, 1998, both Old Tampa Bay and GE submitted responses to the FDOT letter of June 15, 1998. In a letter signed by William Trainor, contract leader, GE set forth its staffing plan for RFP 1004. GE identified the following as "key personnel" proposed for the positions discussed in the FDOT letters: John Vance as bridge superintendent (replacing W. Bruce Chapman); Bruce Morris as mechanic (replacing Gary Berkley); Kelly Green as primary electrician; and John Vance as Supporting electrician. GE attached résumés for each of these personnel. GE indicated that it would utilize PRM, Inc. as a subcontractor to secure the required contract personnel for the contract under RFP 1004, and GE attached letters-of-intent for employment for each of the named key personnel. Each of these letters was signed either by the named employee or by the president of PRM, Inc. FDOT accepted GE’s response in full. The award of the contract for RFP 1004 to GE was not protested. In a letter dated June 26, 1998, signed by Donald R. Abernathy, president, Old Tampa Bay proposed the following key personnel: W. Bruce Chapman as project manager; Gary Berkley as mechanic; Charles Adam Kenney as bridge superintendent (not mentioned in the FDOT letter); and Kelly Green as primary electrician. Old Tampa Bay attached résumés for each of these personnel. The letter made no mention of a supporting electrician. Old Tampa Bay also attached agreements of the employees to serve in their respective positions. However, the signature line on Kelly Green’s statement of acceptance was left blank. Mr. Abernathy testified that he asked Mr. Green to sign the document indicating his acceptance of employment with Old Tampa Bay, but Mr. Green refused. Mr. Abernathy did not reveal this information to FDOT, continuing to maintain that he was within his rights as Mr. Green's employer to include his name in the proposal. FDOT knew from its review of the GE submission that Mr. Green had in fact signed a letter of intent for employment with PRM, Inc. to work on the GE contract. Mr. Alvarez, the FDOT purchasing agent, acted chiefly as a coordinator and as the person ensuring that the procedural requirements of competitive bidding laws were met by FDOT. He admittedly lacked the expertise to make decisions as to the technical aspects of the project. Thus, Mr. Alvarez forwarded the vendors’ responses to Mr. Ooms, the project manager, for his evaluation. Mr. Ooms is a professional engineer, and for the past five years has supervised the operations of all nine bridges covered by RFPs 1003 and 1004. In a memorandum to Mr. Alvarez, dated July 2, 1998, Mr.. Ooms reported his findings and conclusions regarding the vendors’ submissions. As noted above, he found the GE submission acceptable in its identification of PRM, Inc. as a subcontractor and its naming of Vance, Morris, and Green as intended key personnel. Mr. Ooms found acceptable the submission of Old Tampa Bay insofar as it named Chapman, Kenney, and Berkley as key personnel. However, Mr. Ooms noted that the Old Tampa Bay submission provided no documentation of Kelly Green’s commitment to work for Old Tampa Bay. Mr. Ooms also noted that the Old Tampa Bay submission made no mention of John Vance, who had been listed as support electrician in Old Tampa Bay’s original proposal, and listed no substitute who would take over those duties. Mr. Vance had also accepted an offer from PRM, Inc. to work on the GE contract. Thus, Mr. Ooms concluded that the proposed key personnel roster submitted by Old Tampa Bay was not acceptable. By letter to Donald R. Abernathy dated July 8, 1998, Mr. Alvarez conveyed to Old Tampa Bay the "discrepancies" found by FDOT in the Old Tampa Bay submission of June 26, 1998. While stating that FDOT accepted the proposal of Chapman, Kenney, and Berkley for their respective positions, Mr. Alvarez pointed out the problems noted by Mr. Ooms as to Green and Vance. The letter concluded that "the Department still requires that your firm provide, in writing, clarification as to the positions of Primary and Supporting Electricians," and required the response by July 13, 1998. Old Tampa Bay responded by letter to Mr. Alvarez from Mr. Abernathy dated July 10, 1998. The letter provided no explanation as to Mr. Green’s unsigned agreement or Old Tampa Bay's failure to mention Mr. Vance or otherwise address the position of supporting electrician. The letter stated no objection to any of the conclusions contained in FDOT’s letter of July 8, 1998. The letter took no issue with the standard described for "equivalent" electricians. Old Tampa Bay's letter stated that it had selected Mr. Gary McCormick as its primary electrician. The letter noted that Mr. McCormick was finishing a project but would be available for this contract no later than July 27, 1998. The letter stated that while Mr. McCormick was a "skilled and valuable electrical and hydraulic specialist," he had never been required to have an electrician’s license by any prior employer. The letter requested that FDOT waive the license requirement for 90 days, during which time Mr. McCormick would obtain the required license. The letter attached Mr. McCormick’s résumé, which indicated that he had been involved with the Stickney Point bridge from September 1997 until July 1998. The résumé provided no dates for any of his other employment since 1973. The résumé indicated that most of Mr. McCormick’s electrical experience involved repair and installation of elevators. Old Tampa Bay's submission made no attempt to relate Mr. McCormick’s elevator experience to the electrical specifications of the RFP. The letter further stated that Old Tampa Bay was "actively seeking" a supporting electrician, and that Mr. Abernathy would fill the position until the search was completed over the "next few weeks." The letter gave no further indication of the status of Old Tampa Bay's attempt to locate a support electrician. The letter attached the résumé of Mr. Abernathy. Mr. Alvarez forwarded Old Tampa Bay’s July 10, 1998, letter to Mr. Ooms for his review. By memorandum dated July 15, 1998, Mr. Ooms responded to Mr. Alvarez, concluding that the proposed key personnel roster of Mr. McCormick and Mr. Abernathy as primary and supporting electricians was not acceptable. Mr. Ooms’ memorandum first addressed Old Tampa Bay's original statements in its proposal as to Vance and Green, noting that Old Tampa Bay represented both electricians as follows, in his words (punctuation and capitalization not corrected): [Mr. Green] "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair" . . . "an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electricians license. * * * [Mr. Vance] has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties. The maintenance he performs covers the entire bridge--the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Ooms contrasted Mr. Green’s qualifications with those of Mr. McCormick, whose résumé showed that he had less than one year’s experience with bridges, did not hold a journeyman electrician’s license, and thus was not "an equivalent substitution for Mr. Kelly Green." Mr. McCormick’s résumé listed his current employer as "Acutec Inc.," his position as "project electrical foreman," and stated that he was "currently finishing Stickney Point drawbridge rehabilitation project. In charge of electrical, PLC, and hydraulic systems installation, trouble-shooting, and start-up. Working closely with Gregg Martin of FDOT, Sarasota." Mr. Ooms testified that Mr. McCormick did not have the qualifications claimed in his résumé. He testified that Mr. McCormick was not in charge of electrical, PLC and hydraulic systems installation on the Stickney Point bridge. He testified that Mr. McCormick was strictly a "wire puller," with "no experience whatsoever to do this type of work." Mr. Ooms took issue with Mr. McCormick’s claim that he was "in charge" of the installation of the PLC, or programmable logic controls. Mr. Ooms testified that Mr. McCormick’s employer, Acutec, was involved with writing the PLC program, setting up the parameters, checking out the hydraulics, and performing the interfacing, but that Mr. McCormick was simply running wires from point-to-point pursuant to instructions from others. Mr. Ooms testified that he knew these facts from watching at first-hand the work being performed on the Stickney Point bridge. Mr. Ooms did not call Acutec to verify the statements in Mr. McCormick’s resume. Mr. Ooms stated that there was no need to call Acutec, as he was out on the bridge and could see for himself what Mr. McCormick was doing. PLCs, or programmable logic controls, are the means by which newer bridges are controlled by computer. The PLC sequences the computer program to constantly monitor the condition and operation of the bridge. The PLC technology is not unique to bridges. It is common in many manufacturing operations, and is in place on two of the five bridges covered by RFP 1003. The remaining three bridges have a manual relay control system. Old Tampa Bay did not dispute that PLC experience is necessary to perform the work as an electrician on this contract. Mr. Ooms noted that Mr. McCormick’s résumé claimed PLC experience, but that when the time came for the contractor to deliver the laptop computer with the PLC programs to run the renovated Stickney Point bridge, Mr. McCormick could not even run the program on the computer. Mr. Ooms testified that if one cannot run the computer program, one cannot do anything on a computer controlled bridge. Mr. Ooms’ testimony as to the qualifications of Mr. McCormick is credited. While Mr. Ooms might have confirmed his conclusions with Mr. McCormick’s employer, he cannot be found to have acted arbitrarily in relying on his own extensive observations of Mr. McCormick’s job performance. Old Tampa Bay offered no evidence to dispute the factual underpinnings of Mr. Ooms’ decision that Mr. McCormick was not an equivalent substitute for Kelly Green. Mr. Ooms’ July 15, 1998, memorandum also rejected Mr. Abernathy as the temporary supporting electrician. As quoted above, the memorandum noted Old Tampa Bay's representation that John Vance, the supporting electrician it originally proposed, has worked on FDOT movable bridge contracts for the past five years in Sarasota and Manatee counties, has intimate knowledge of these bridges, and has an electrical contractor’s license. Mr. Ooms noted that Mr. Abernathy does not have an electrical contractor’s license. Mr. Ooms also took issue with Mr. Abernathy’s résumé statement that he has acted as a bridge inspector for the past eight years for Kisinger Campo and Associates, a company that FDOT hires to perform bridge inspections. Mr. Ooms wrote that in the five years that FDOT has let out the operations and maintenance contracts, he has never "seen or known of Mr. Abernathy visiting a Sarasota or Manatee county bridge or troubleshooting a bridge problem." He testified that Kisinger Campo could not have used Mr. Abernathy as a bridge inspector because he lacked the required engineer’s license or certification as a bridge inspector. Mr. Ooms admitted that Kisinger Campo does not always tell him who is performing the inspections. Mr. Ooms made no inquiries of Kisinger Campo to verify Mr. Abernathy’s résumé. Mr. Abernathy testified that he was in fact an electrical inspector for Kisinger Campo for eight years and that in 1997 he personally performed inspections on every bridge covered by RFP 1003, including the electrical, lighting, and PLC systems. Mr. Abernathy conceded that he does not have an electrical contractor’s license. Mr. Abernathy’s testimony is credited as to his experience as a bridge inspector. In the case of Mr. McCormick, Mr. Ooms reasonably relied on his own extensive observations. As to Mr. Abernathy, Mr. Ooms attempted to rely on what he did not observe. Mr. Ooms chose to assume, without knowledge or verification, that Mr. Abernathy’s résumé was false. This assumption was arbitrary, and cannot be credited. Mr. Ooms’ decision to reject Mr. Abernathy was nonetheless reasonable. Mr. Abernathy did not possess the requisite license, and admitted that his most recent experience in actually performing bridge electrical maintenance and repair was more than twenty years ago. By letter to Mr. Abernathy dated July 17, 1998, Mr. Alvarez conveyed FDOT’s rejection of Old Tampa Bay’s proposal pertaining to the electrician positions. The reason for rejection was stated as follows: As stated within the Request for Proposal Package, if you are proposing to substitute key personnel you must provide an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, expertise or better than the individual originally proposed. . . . Please understand, the Department is looking forward in [sic] entering into an Agreement with your firm, [sic] however, it cannot accept anything less than what was originally proposed. Mr. Alvarez’ letter enclosed Mr. Ooms’ memorandum of July 15, 1998, and offered Old Tampa Bay another opportunity to submit substitute electricians no later than July 27, 1998. By letter from Mr. Abernathy to Mr. Alvarez, dated July 27, 1998, Old Tampa Bay submitted a new list of proposed substitutes. The text of the letter stated, in full: We have selected Mr. Steven Manning, Master Electrician License Number 3994, Hillsborough County to be our primary electrician. Attached is his resume. We have selected Mr. Adrian Cook as the supporting electrician, Journeyman License Number JE776, Hillsborough County. We have selected Mr. Wayne Cano as an electrician’s helper. Hillsborough County licenses have full reciprocity with Manatee and Sarasota Counties. Résumés of all three proposed employees were attached, along with copies of the relevant licenses and certificates of completion of various professional training courses. Mr. Manning’s résumé contained sketchy descriptions of the kinds of electrical work he had performed, and gave no indication that he had any experience working with computers or PLCs. Mr. Manning’s résumé revealed no experience with moveable bridge maintenance or repair. Mr. Manning had no experience as an electrician on the FDOT bridges. Mr. Manning’s résumé indicated that his experience included industrial electrical experience intermittently during eight years of electrical work. The résumé indicated "industrial and commercial electrical work," "working in fuel terminals, working with motor controls," "remodeling tenant spaces," "working with new commercial," "working with commercial remodeling, and service work," "traveling around Florida and Georgia remodeling Pizza Huts," "residential and commercial sales, estimating jobs, job foreman, billing and scheduling, handling of permits," and "working with industrial and commercial, service work, remodeling and new construction." Old Tampa Bay's submission offered no specific information or explanation of how Mr. Manning’s varied experience related to the specifications for electrical maintenance and repair in the RFP. Old Tampa Bay had obtained Mr. Manning’s name by calling an electrical company, Southern Power and Controls, and asking for recommendations of personnel with qualifications and experience equivalent to Mr. Green’s. Southern Power and Controls is an industrial electrical firm specializing in industrial controls, motor controls, switch gears, limit switches, and PLCs. Old Tampa Bay would have paid a finder's fee to Southern Power & Controls for any employees who went to work for Old Tampa Bay on this contract. Old Tampa Bay provided Southern Power and Controls with the documentation it had submitted to FDOT regarding the qualifications and experience of Vance and Green. Robert Harwell, a registered electrical engineer and principal of Old Tampa Bay, had discussions with Southern Power and Controls as to the qualifications of the candidates it sought. No person from Southern Power and Controls appeared at the hearing to explain the process by which they selected Mr. Manning. No person from Old Tampa Bay ever interviewed Mr. Manning. Mr. Manning did not testify at the hearing. Old Tampa Bay proposed Adrian Cook as a supporting electrician. Mr. Cook’s résumé indicated that he was a licensed journeyman electrician, with four years’ experience as an electrician and two years as an apprentice. Mr. Cook’s résumé indicated two years of unspecified commercial and industrial work, but no moveable bridge experience. Old Tampa Bay obtained Mr. Cook’s name from Southern Power & Controls, asking for personnel with qualifications and experience equivalent to Mr. Green’s. No person from Southern Power & Controls appeared at the hearing to explain the rationale for choosing Mr. Cook. No person from Old Tampa Bay ever interviewed Mr. Cook. Mr. Cook did not testify at the hearing. Old Tampa Bay submitted Mr. Wayne Cano as an "electrician’s helper." Old Tampa Bay did not specify what function Mr. Cano would serve or what actions he would perform as an "electrician’s helper." Neither the RFP nor Old Tampa Bay's proposal contains any mention of an "electrician’s helper." Mr. Cano’s résumé did not indicate an electrician’s license. Old Tampa Bay did not state that it had any intention to require Mr. Cano to obtain an electrician’s license. Mr. Cano’s résumé did not indicate any moveable bridge experience or experience on other FDOT projects. Again, Mr. Alvarez forwarded the Old Tampa Bay letter and attachments to Mr. Ooms for his review. Mr. Ooms provided his response by memorandum dated August 6, 1998. Again, Mr. Ooms outlined the qualifications and experience of the electricians originally proposed, Kelly Green and John Vance, as set forth in Old Tampa Bay's own proposal. Mr. Ooms wrote as follows (punctuation and capitalization not corrected): Mr. Green’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair . . . an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electrician license. Mr. Vance’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties." "The maintenance he performs covers the entire bridge-- the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Green and Mr. Vance each have over four years of "on the Bridge" experience trouble shooting non functioning systems. They have worked on nine different bridges that were 30-40 years old with antique controll [sic] systems and on bridges recently rehabilitated with modern computer controlled systems. They have years of experience in reading and analyzing bridge ladder logic programs and trouble shooting problems and solutions. All these bridges were operational and any loss of service was quickly reported. An outage can easily block traffic for several miles in minutes generating calls from the sherrifs [sic] department. In addition, any breakdown in service has severe political consequences due to the Ringling bridge and Anna Maria Bridge replacement program. A problem on Ringling Bridge can cause a [sic] hour detour and missed flights. On page C-1 of the contract it states "The Contractor’s personnel that will perform the work required by this Section shall be trained and well experienced in start-up and maintenance of equipment . . . and will have headquarters within Sarasota/Manatee County" . . . On page A-3.2 is [sic] states "the Contractor shall initiate corrective action within fifteen (15) minutes following the malfunction." further down on Page C-1 of the contract "the Contractor agrees to provide men and equipment to a bridge sites [sic] within 30 minutes of notification of any emergency equipment failure". Mr. Ooms contrasted the experience and qualifications of the proposed substitutes as follows (punctuation and capitalization not corrected): Mr. Steven Manning experience [sic] in industrial electrical work does not start until 1997. It does not show any bridge related work. His training certificate in Electrical ladder Drawings" is for a one day 7 contact hours session. The "well experienced" requirement is not clearly indicated by his resume. Mr. Adrian Cook also does not show any bridge related work and the "well experienced". Mr. Wayne Cano has 11 years of industrial experience but no bridge experience or electricians license. In conclusion Old Tampa Bay enterprises needs to provide us with equivalent substitutions. Specifically licensed electricians with a minimum of four years experience in diverse bridge electrical configuration; with old relay logic operation, well experienced in PLC controllers from various manufactures [sic]; the ability to read and interpret ladder logic drawing; the ability to program plc’s. The Department’s inclusion of response time in the contract clearly indicates our desire for prompt and efficient emergency repair work. In other words the Department would like the equivalent of Mr. Green and Mr. Vance in the original proposal who’s [sic] experience will "keep bridge down time and repair time to a minimum." By letter to Mr. Abernathy dated August 13, 1998, Mr. Alvarez forwarded FDOT’s rejection of Old Tampa Bay’s proposed substitutes. The letter essentially reiterated the contents of the memorandum quoted above, and informed Old Tampa Bay that it would have one last opportunity to provide FDOT with equivalent or better substitutions for the electrical key personnel. Old Tampa Bay’s response would be due no later than August 24, 1998. Mr. Alvarez testified that as to this and his prior letters to Mr. Abernathy, he essentially acted as a conduit for the actual decision-maker, Mr. Ooms. Mr. Alvarez wrote the letters because he was the designated contact person in the FDOT contracts office, not because of any personal expertise or authority he possessed to deal with the issue of the qualifications of the proposed key personnel. By letter from Mr. Abernathy to Mr. Alvarez, dated August 21, 1998, Old Tampa Bay informed FDOT that "we are unable to locate electricians which meet or exceed the qualifications of those we proposed, i.e., Mr. Green and Mr. Vance. Please proceed as necessary." Old Tampa Bay’s letter did not take issue with any of the conclusions set forth in Mr. Alvarez’ letter of August 13, 1998. On August 24, 1998, FDOT posted a revised proposal tabulation finding Old Tampa Bay nonresponsive and listing GE as the intended awardee of the contract for RFP 1003. At the hearing, Mr. Ooms testified that he did not know Mr. Manning, Mr. Cook, or Mr. Cano, had no personal knowledge of their background or experience, and relied on their résumés in making his decision. Mr. Ooms felt that Mr. Manning, while a master electrician, lacked sufficient experience on PLCs and had no experience working on bridges. Mr. Ooms noted that the only indication of electrical ladder drawing or computer experience on Mr. Manning’s résumé was a seven-hour continuing education course in electrical ladder drawing. Mr. Ooms’ undisputed testimony was that a single seven-hour course was insufficient to provide the expertise needed to perform the duties required of an electrician on these bridges. Mr. Ooms admitted that John Vance and Kelly Green lacked PLC experience when they started working on the bridges, and were trained by FDOT. However, Mr. Ooms rejected Old Tampa Bay’s suggestion that Mr. Manning could be similarly trained on the job. Vance and Green were trained in connection with the installation of PLC equipment on the Cortez Bridge in 1996. Mr. Ooms testified that this training was simply a part of the rehabilitation of the bridge, and that PLC experience was not a prerequisite at the time Vance and Green were hired. Mr. Ooms further distinguished this situation by noting that the issue here is not simply qualifications, but equivalency. Mr. Ooms stated that because Old Tampa Bay’s winning proposal was based on the presence of Vance and Green, any substitutes for Vance and Green must not only meet the RFP specifications but must be equivalent to the experience of Vance and Green, which included PLC experience. Mr. Ooms testified that he rejected Adrian Cook for the same lack of PLC experience. Mr. Cook held the required journeyman electrician’s license, but his résumé gave no indication of PLC or troubleshooting experience. Mr. Ooms testified that he called Mr. Cook’s current employer, who vouched for him as a "good man," but provided no details as to his PLC experience. Mr. Ooms also admitted that he did not ask the employer about Mr. Cook’s PLC experience. As to Mr. Cano, Mr. Ooms testified that he appeared well qualified but lacked the required journeyman electrician’s license, and lacked bridge experience. Mr. Ooms was impressed by Mr. Cano’s PLC and ladder logic experience, and might have approved him but for the lack of the required license. Mr. Ooms acknowledged that Kelly Green did not have his journeyman electrician’s license when he started work on the bridges. Mr. Ooms testified that he was unaware of that fact at the time Mr. Green was hired. Douglas Blake, project engineer for GE, affirmed that in the five years GE has been performing bridge operations and maintenance, FDOT has never asked any electrician to produce a license. Mr. Blake testified that performance of an electrician’s job on these bridges does not require permitting, and that there is no license exposure to an electrician working these jobs. Mr. Blake’s opinion was that the license requirement is merely a contract tool FDOT can use to eliminate substandard bids. No witness for FDOT assented to Mr. Blake’s characterization of the license requirement. FDOT’s consistent position was that a prospective electrician must have at least a journeyman electrician’s license, as set forth in the RFP and the Bridge Manual. Mr. Blake testified that Manning, Cook, and Cano all appeared to be worthy candidates to be bridge electricians, insofar as their electrical technical qualifications appeared to compare favorably to those of Vance and Green. No evidence was presented that Mr. Ooms had any knowledge of Mr. Blake’s opinion at the time he made his decision, or that such knowledge would have altered that decision. Lane Tyus, a GE electrical engineer with experience on these bridges, likewise testified that the résumés of Manning, Cook, and Cano would pass his initial screening and that he would make a final decision in a face-to-face interview. No evidence was presented that Mr. Ooms had any knowledge of Mr. Tyus’ opinion at the time he made his decision, or that such knowledge would have altered that decision. At the hearing, Old Tampa Bay produced a list purporting to show 25 electricians whose hiring for bridge work was approved by FDOT for various districts during the period 1991 through 1998, despite the fact that none of the 25 had prior bridge experience. This list included Mr. Vance and Mr. Green in District One, where Mr. Ooms works. Mr. Ooms disclaimed knowledge as to the approval practices of other districts, which in any event have no relevance to this proceeding. Mr. Ooms again averred that this situation is different than that prevailing when Vance and Green were hired, because the substitutes here proffered by Old Tampa Bay must not only meet the RFP requirements but must be the equivalent of Vance and Green in experience and expertise. Mr. Abernathy testified that he believed the team of Manning, Cook and Cano was the equivalent of Vance and Green. He testified that any modern industrial electrician must have experience with PLCs, and will not necessarily spell-out that experience on his résumé. He testified that it was his "absolute firm belief" that no matter whose names he submitted to FDOT as substitute electricians, they would be rejected. Mr. Ooms testified that he neither favored GE nor disfavored Old Tampa Bay. He admitted having greater familiarity with GE’s personnel because they have been working on the bridges for the last five years. He testified that he considers it his professional obligation to work with whoever holds the contract. Aside from the obvious licensure deficiency for Mr. Cano, these proposed substitutes may well have been equivalent to Vance and Green. However, their equivalence could not be ascertained from Old Tampa Bay's submissions. Their résumés did not clearly establish their qualifications in areas that Old Tampa Bay knew or should have known were critical to FDOT. The agency made its expectations very clear to Old Tampa Bay as to what was expected of equivalent substitutes. Old Tampa Bay did nothing to expand upon the sketchy résumés of these persons, or to explicate the relationship between their experience and the work to be performed on the bridges. Mr. Ooms cannot be faulted for failing to consider information that the proposer did not provide. It is found that Mr. Ooms was not biased in rejecting Manning, Cook, and Cano. Old Tampa Bay argues that the disparity in the scoring of the technical proposals between Mr. Ooms and the other two evaluators demonstrates his bias in favor of GE. However, as noted above, all three evaluators gave GE the highest marks for RFP 1003. In fact, the scores for GE’s proposal given by the other two evaluators were significantly higher than the score Mr. Ooms gave to GE’s proposal. The fact that Mr. Ooms found an 18-point disparity between the proposal of GE and the proposals of the other two bidders does not of itself indicate bias in favor of GE on his part, any more than the fact that his score for GE was 15 to 18 points lower than the GE scores by the other evaluators indicates a bias against GE. FDOT demonstrated no bias against Old Tampa Bay in this process, providing Old Tampa Bay repeated opportunities to provide satisfactory substitutes for Green and Vance. Old Tampa Bay attempted to show disparate treatment by introducing evidence showing that FDOT allowed GE to substitute Kelly Green for an electrician named Charles Cave in 1995, after award of the previous contract, despite the fact that Green at the time had no experience working on the bridges and did not obtain a journeyman electrician’s license until approximately two months after he commenced work. Assuming arguendo that FDOT’s actions in awarding this contract may be attacked by showing different agency behavior in prior contracts, the evidence adduced by Old Tampa Bay is insufficient because it gives no indication of the qualifications of Charles Cave, the electrician replaced by Mr. Green. There is no way to determine whether Mr. Green was or was not an equivalent substitute for Mr. Cave, and thus no way to establish disparate treatment by FDOT from one contract to the next. Old Tampa Bay further asserts that FDOT’s treatment of Mr. Green when he commenced work indicates that FDOT had the discretion to allow Mr. McCormick to obtain his journeyman electrician’s license after commencing work. Assuming arguendo that Old Tampa Bay’s assertion is correct, the facts establish that the lack of a license was a secondary concern in the rejection of Mr. McCormick. Mr. Ooms testified that his rejection of Mr. McCormick was primarily based on lack of bridge and PLC experience, and the overstatement of qualifications on Mr. McCormick’s résumé. Even if Mr. McCormick possessed the required license, Mr. Ooms would have properly rejected him. Old Tampa Bay challenged FDOT’s allowing GE to make changes in its management personnel after being awarded the contract for RFP 1003. The three upper-level managers in question were located in Atlanta, had nothing directly to do with the operation of the bridges, and were not "key personnel" as described in the RFP and Bridge Manual. GE informed FDOT of the change in a courtesy letter, dated October 20, 1998, more than five months after submission of the original proposals. The RFP did not require these remote persons to be identified by name at all, let alone require GE to freeze them in place as a condition of its contract. As noted above, the facts established that Old Tampa Bay included the name of John Vance in its proposal though it knew or should have known that Mr. Vance had no intention of working for Old Tampa Bay on this project. Old Tampa Bay attempted to demonstrate that GE did substantially the same thing when it included the name of Mr. Lane Tyus in its proposal as its registered electrical engineer. Mr. Tyus indeed testified that he did not know that GE had included his name in the proposal at the time it was submitted, and was not made aware of his inclusion until some time after Old Tampa Bay filed its protest. However, Mr. Tyus also testified that he knew his résumé was kept on file by GE precisely for inclusion in proposals. Further, he testified that he has been involved with the contract for these bridges since 1992, that he was not surprised at his inclusion, and that he was prepared to undertake the tasks described in the GE proposal. Thus, there is no comparison between Mr. Tyus’ situation with GE and that of Mr. Vance with Old Tampa Bay. Finally, Old Tampa Bay attempted to demonstrate bias in the fact that FDOT allowed GE to submit John Vance's name as bridge superintendent for RFP 1004, despite his lack of experience in that position. However, Mr. Ooms testified that Mr. Vance was in fact more than qualified for the position, in that the training requirements set forth in the Bridge Manual for electricians such as Mr. Vance include all the requirements for bridge superintendents as well as electrical courses.
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 protest filed by Old Tampa Bay Enterprises, Inc. and awarding the contract for RFP-DOT-97/98- 1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties, to General Electric Industrial Systems. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of May, 1999. COPIES FURNISHED: Jonathan Sjostrom, Esquire Steel, Hector & Davis LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804 Brian F. McGrail, Esquire Office oif the General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Robert A. Rush, Esquire Robert A. Rush, P.A. 726 Northeast First Street Gainesville, Florida 32601 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
Findings Of Fact On or about December 16, 1985, Petitioners submitted an application requesting qualifications in five major classes of work and two incidental classes of work. At the hearing, qualification in cement paving was not pursued. The Department denied the applications for qualification to bid on contracts for Minor Bridges, Portland Cement Concrete, Hot Plant-mixed Bituminous Base and Surface courses, and the two incidental classes of fencing and grassing, seeding and sodding. Petitioner here contests the Minor Bridge, Hot Plant-mixed Bituminous Base and Surface courses and the two miscellaneous categories. Superior Paving has been in the road building business for many years and the sole basis for denying qualification for Hot Plant-mixed Bituminous Base and Surface courses is that Superior does not own an asphalt plant. During the years Petitioner has worked in road construction for DOT its work has been satisfactory, contracts have been completed on time, and there has been no default. Petitioner has the financial ability to perform the work for which qualification is requested and has experienced personnel necessary for this work. With respect to construction work on minor bridges, Petitioner's general manager and superintendent both have extensive experience in this work area. During the past two years, Petitioner has done no work on DOT projects as the result of a two year suspension for a contract crime. Prior thereto on DOT construction involving minor bridge work in which Superior was the prime contractor, this work was subcontracted out to a contractor specializing in bridge construction. However, Superior has the resources to obtain all equipment needed for minor bridge work. Also Petitioner has been the successful bidder on jobs involving fencing as well as grassing, seeding and sodding. Petitioner has used this type work to meet its quota for subcontracting at least ten percent of the job to minority and female subcontractors. On one occasion when the sodding subcontractor failed to complete the project, Petitioner used its own personnel and equipment to do so. Petitioner's request for qualification for these incidental classes was denied because its application failed to show that the company accomplished fencing, grassing, seeding and sodding with its own forces and equipment. (Exhibit 14.) Most of the evidence submitted in these proceedings involved the denial of qualification for the type work that has been Petitioner's primary category for many years, viz. asphalt paving. The sole reason for denying Petitioner qualification in this class of work is that Petitioner does not have its own asphalt plant (Exhibit 14.) This requirement imposed by Respondent is a recent one which was placed into effect in 1985 following the amendment to Rule 14- 22.03 F.A.C. That amendment added "and the adequacy of equipment to perform the specific classes of work." At the time this change to the rule was made DOT was applying the policy of requiring a contractor to own an asphalt plant in order to qualify for this work class. When asked why this unwritten policy was not included in the rule when amended in 1985, the witnesses involved in incorporating the change involving equipment into the rule replied he could not answer that. The policy of DOT that in order to qualify for asphalt paving the bidder must own an asphalt plant has general applicability and has been applied during the past year to all contractors bidding on DOT road projects. DOT personnel who testified in these proceedings stated the purpose of adding the phrase regarding having the necessary equipment to the requirement for qualification, was to bring the rule more in line with the statutory provisions. The adverse publicity DOT received in recent years because of contractor delays in completing projects and deficiencies in some of the work performed resulted in the tightening of the requirements for qualification. Two contractors in particular were late in completing contracts on which they were successful bidders and part of the delay was due to their inability to get the necessary road paving material. However, both of these contractors owned asphalt plants. One had delays in getting a permit from the Department of Environmental Regulation to erect a plant near Destin, Florida, and the other had a falling out with his supplier and could not get the required material. In neither of these cases did the ownership of an asphalt plant alleviate the problem. No evidence was presented showing that a delay in the completion of a project was due solely to the failure of the contractor to have his own asphalt plant. Several asphalt producers submitted letters to the effect that they had supplied paving material to Petitioner for many years and would continue to supply him as much as he would buy. One plant owner testified that he had been in the production and laying of asphalt pavement for many years and much preferred to have the role only of supplier. He also testified that most producers felt the same way. There is no policy or rule requiring contractors who bid on jobs requiring the use of road aggregates to have their own rock quarry in order to qualify for this work class. Petitioner has the necessary equipment to transport mix from the plant to the job site and to install the mix at the job site. Hot Plant-mixed Bituminous Base and Surface courses can be successfully trucked approximately 60 miles from the plant. Accordingly, under DOT's policy, a successful bidder will frequently have to erect an asphalt plant near the job site. This will require him to obtain permits and negotiate the environmental problems associated therewith. The effect of not being qualified for Minor Bridge and Hot Plant-mixed Bituminous classes is that Petitioner is not qualified to bid as a prime contractor when one or more of these classes, in the aggregate, comprises fifty percent or more of the work.
Findings Of Fact On May 23, 1978, the Department of Environmental Regulation received Petitioner's application for activities in waters of the State of Florida. According thereto, Petitioner desired to construct approximately 225 feet of riprap seawall and to dredge a channel 50 feet wide by 1,250 feet long in order to provide access for a proposed marina. The application recited that the project involved dredging 3,670 cubic yards of material, and further advised Respondent that the planned motorboat fueling facilities will meet all prevailing codes and regulations, and that an approved holding tank for sewage pump-out will be installed. On May 30, 1978, Respondent forwarded to Petitioner its completeness summary form itemizing the additional information needed in order to determine the merits of Petitioner's application. In Response thereto, Petitioner provided additional information and assured the Respondent that the remainder of the information required would be forthcoming. On June 14, 1978, the Department again requested additional information from the Respondent, some of which information had been previously requested in the May 30, 1978, completeness summary. On September 11, 1978, the Department again wrote to Petitioner requesting the information requested by it on June 14, 1978. Petitioner responded to the most recent correspondence on September 25, 1978, by advising why some of the information had not yet been provided and requesting the Respondent to delay his application in order that he might continue to attempt to obtain the required information. On December 20, 1978, the Department again wrote to the Petitioner requesting the information previously requested on May 30 and June 14 and advising Petitioner that it would issue an intent to deny the application unless Petitioner contacted the Department by January 4, 1979. On January 29, 1979, Respondent received from Petitioner a new application for activities in waters of the State of Florida. This application obviously involved the same project, except that the channel to be dredged is widened to 100 feet and the amount of material to be dredged is increased to 11,700 cubic yards. The information regarding the planned motorboat fueling facilities and the approved holding tank for sewage pump-out remain the same. This application was considered by the Respondent to be a revision of the original application, rather than a new application, for the reasons that some of the required documents were already on file and the filing of a new application would require a new application fee. An additional completeness summary was forwarded to the Petitioner, although possibly not until March 26, 1979. Petitioner was again advised on July 3, 1979, as to the need for additional information, and Petitioner returned that form letter and requested an additional 30 to 45 days to complete his application. On August 6, 1979, Respondent received Petitioner's response to its July 3, 1979, request, and on October 29, 1979, the Respondent again advised Petitioner of additional required information. On April 7, 1980, Respondent directed additional correspondence to Petitioner. On April 8, 1980, the Department completed Its biological and water quality assessment, which assessment contained the recommendation that the project be denied as proposed. On July 2, 1980, Respondent forwarded to Petitioner its intent to deny the project. During the entire time period described above, discussions regarding information needed by the Respondent occurred between Jeremy Craft, one of Respondent's administrators, and both the Petitioner and the Petitioner's engineer. By the time of the final hearing in this cause, Petitioner's application was still not complete. Curtis Kurer, a former employee of the Department of Environmental Regulation, performed an on-site inspection on April 4, 1980, as part of the biological and water quality assessment of Petitioner's project as revised by the January 29, 1979, application filed by the Petitioner. His report extensively analyzes the adverse impacts expected from Petitioner's dredging activities and placement of a marina at the project site. His conclusion is that the project, as proposed, be disapproved. On October 23, 1980, the Respondent received a copy of the report of the Florida Game and Fresh Water Fish Commission, which report also concluded that the application for permit should be denied because of the adverse environmental effects of Petitioner's project.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is
The Issue The issue in this administrative proceeding is whether the Florida Department of Transportation’s ("DOT" or "the Department") denial of Petitioner’s, Network Engineering Services, Inc. d/b/a Bolton Perez & Associates ("BPA"), 2019 application for qualification pursuant to section 337.105, Florida Statutes, and Florida Administrative Code Chapter 14-75, was for good cause due to Petitioner’s participation in the construction of the Florida International University ("FIU") City Prosperity Project ("FIU Bridge project").
Findings Of Fact DOT is the state agency responsible for coordinating the planning, construction, and maintenance of a safe, viable, and balanced state transportation system. DOT relies on qualified contractors and professional consultants to provide services for Florida’s transportation needs. Section 287.055(3), Florida Statues, requires that any firm or individual desiring to provide professional services to a governmental agency must first be certified by the agency as qualified, pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual. Each agency is also required to evaluate professional services, including capabilities, adequacy of personnel, past record, and experience of the firm or individual. Section 337.105 and Florida Administrative Code Chapter 14-75 also governs the qualifications of professional consultants and other contractual services providers to DOT. Section 337.105 authorizes DOT to deny or suspend an application for qualification based upon a determination of "good cause," which includes, but is not limited to, nine illustrative examples specified in section 337.105(1)(a)–(i). DOT may, for good cause, deny or suspend for a specified period of time a person or firm from consideration for award of a professional service contract for a particular type of work. BPA is a multidiscipline engineering firm specializing primarily in transportation related engineering services, including bridge design, roadway design, civil works, construction engineering inspection ("CEI"), and program and construction management. At the time of the hearing, BPA had approximately 38 employees. BPA was formed by Joaquin "Jake" Perez, P.E., and John Bolton, P.E., in 1997 to provide transportation-related engineering services. BPA’s CEI qualifications are independent from, and do not necessarily mirror, BPA’s design qualifications. In some instances, BPA was qualified to serve as a CEI for categories of structures that the firm was not qualified to design. This is because BPA was internally divided into two core groups: design and CEI. Since inception, BPA’s design group was and continues to be headed by Mr. Perez, and the CEI group headed by Mr. Bolton. The operations of BPA’s CEI and design groups were completely segregated within the firm. CEI personnel did not work on design projects, and design personnel did not work on CEI projects. As President, Mr. Perez was involved in pursuing contracts for CEI services, but CEI services were provided only by CEI personnel. In or about 1999 or 2000, BPA first became qualified to respond to DOT’s request for qualifications to provide professional services to DOT. Mr. Bolton qualified the firm to provide CEI services, and Mr. Perez qualified it to provide design services. BPA remained qualified with the Department on an annual basis for both CEI and design work for nearly 20 years until July 2019. At that time, DOT issued a NOID removing BPA from consideration for award of professional service contracts with DOT for 2019- 2020. DOT issued the NOID based solely upon a report issued by OSHA and the investigation of NTSB regarding the collapse of the FIU Bridge project on March 15, 2018. THE FIU PEDESTRIAN BRIDGE PROJECT In 2014, DOT entered into a Local Agency Program ("LAP") Agreement with FIU for its pedestrian bridge project, a Category II, complex bridge, that would be constructed along Southwest 109th Avenue and Southwest 8th Street in the City of Sweetwater, Florida (the "project"). As the supervising agency of the LAP program, DOT was responsible for supervising and authorizing work by the local agency. The design of a Category II structure required an independent peer review by a firm with no other involvement in the project, which was prequalified with DOT. In September 2016, FIGG Bridge Engineers, Inc. ("FIGG"), the Engineer of Record ("EOR") for the project, hired Louis Berger to review FIGG’s plans for bridge foundation, substructure (end bents and center tower), and superstructure. Those plans included construction sequencing (including construction sequence drawings), the covered main span pre-casting, transport of main span, and placement of the main span between end bent 1 (south pier) and the pylon pier. The plans also included the post-tensioning stressing and destressing sequences. As the Local Agency, FIU was in responsible charge of the day-to-day activities, including project safety issues. Alfredo Reyna, P.E., was the Department’s LAP Coordinator for the project. Mr. Reyna is a licensed professional engineer, although he is not a structural engineer. In January 2016, FIU entered into a design-build contract1 with Munilla Construction Management, LLC ("MCM"), to design the bridge and to perform all work and furnish all materials, equipment, supplies, and labor necessary to construct the project. The bridge was designed by FIGG, a member of the MCM design-build team and the EOR. FIGG is a reputable designer who has been recognized internationally for its work. FIGG has experience in designing complex bridges, such as the Sunshine Skyway Bridge near Tampa, Florida. On September 23, 2016, FIU entered into a Standard Professional Services Agreement with BPA for CEI services (the "CEI Contract"). At the 1 The interaction of the local agency, contractor, designer, EOR, DOT, and the CEI is different between a "conventional" and a "design build" bridge project. In a conventional project, the designer is hired by DOT or owner to create a new bridge. The design goes through a review process at DOT and a final set of plans goes to bid for a contractor. By the time the contractor is selected, the EOR has completed the plans. The EOR is essentially "on call" for the construction phase of the project because the design work is complete. The CEI begins its work when the contractor begins construction. If there is a question in the field, the CEI makes a request for information from the EOR. DOT supplies design and construction managers throughout the process. In contrast, for a "design build" project, the owner has a conceptual plan for the project. The designer and contractor bid for the job based on the preliminary conceptual plan. The Designer/EOR and contractor work hand in hand from the beginning of the project and are in constant communication. The CEI begins work when the contractor starts work on the project. The CEI facilitates the resolution of any issues between the EOR/designer and the contractor who continue to plan throughout the duration of the project. Like a conventional build project, DOT has construction managers and design project managers involved from the beginning of the project. If concrete cracking occurs, it is the CEI's obligation to document the cracking and speak to people in the process who can assess and address the cracking. For a conventional build bridge, if cracking is observed, the CEI documents it, copies DOT, and sends it to the EOR for assessment. The EOR provides an assessment by conducting a site visit. The EOR then prepares an Engineering Assessment Report (EAR) for the project team. In a design build bridge job, if cracks are observed, they are documented by the CEI who notifies the EOR. The EOR, who is already on the job site, assesses the cracks and works with the contractor to devise a solution. time, John Bolton was the CEI qualifier for BPA. As CEI, BPA was to act as the liaison between the project owner (FIU) and the contractor (MCM). The CEI handles quality control, materials, schedules, payments, documents the entire process, and monitors the project. Jose Morales, P.E., worked under John Bolton as the Senior Project Engineer for the project. Mr. Morales first obtained his professional engineer’s license in 2006. He had approximately 12 years of CEI experience at the time of the collapse. Although he was the Senior Project Engineer for the project, Mr. Morales had little-to-no design experience. Mr. Morales was first involved in the early stages of pursuing the CEI Contract for the project. After the project was awarded, BPA was not involved in the design phase, but was later brought back into the fold beginning in October 2016, when BPA received the Notice to Procced and fully staffed its CEI scope of services when construction was scheduled to begin in or about March of 2017. The "Scope of Services" section (Exhibit B) to the CEI Contract required BPA to be prequalified with the Department in the following work categories: Work Type 10.1--Roadway CEI; Work Type 10.4--Minor Bridge and Miscellaneous Structures CEI; and Work Type 10.5.1--Major Bridge CEI- -Concrete. For the FIU bridge project, Categories 10.1 and 10.4 were considered to be the "major" type of work while 10.5.1 was considered to be the "minor" type of work. As expressly permitted by the Standard Professional Services Agreement, BPA satisfied the 10.5.1 prequalification requirement through its sub-consultant, The Corradino Group, Inc. ("Corradino"). BPA’s scope of services for the project did not include any design responsibilities. BPA performed constructability review of the plans as part of its CEI scope of work, but it did not review the plans or drawings on a technical level. The FIU bridge was a Complex Category II structure as defined by the Department’s Design Manual. The structure had a unique, complex design that was meant to be a signature, architectural feature for the area. The relevant construction sequence for the main span (Span 1) of the FIU bridge consisted of: casting the main span superstructure in the casting yard; installing post-tension bars in the diagonal and vertical members of the structure; stressing of the main-span post-tensioning while the main span is in the casting yard; removing the temporary formwork and supports; transporting the main span from the casting yard using a self- propelled modular transporter and placing the structure in a "simply supported" condition on the south pier and pylon pier; and de-tensioning truss members 2 and 11. Generally, cracks in concrete are common and are not, in and of themselves, a cause for concern. On a design-build job, when cracks manifest themselves in a concrete element, the CEI must document the cracking and report it to the design-build team, which includes the EOR. Depending on the nature of the cracks, the CEI may request an EAR from the EOR. This process is set out in section 400, subsection 400-21, of DOT’s Standard Specifications for Road and Bridge Construction (the "Standard Specifications"). DOT's Construction Project Administration Manual ("CPAM") includes the procedures to be followed by a CEI in addressing cracks in concrete. The CPAM requires that the CEI identify and document its observations and convey the information to the EOR for a final disposition as to the potential danger of the crack or the need for further evaluation. The FIU Bridge Cracking and Inspections by BPA On or about February 6, 2018, while Span 1 of the bridge was still in the casting yard, BPA became aware of certain cracks that had developed in the structure. Mr. Morales personally inspected the structure after the tendons on truss members 2 and 11 were stressed, and he noted that cracks had developed in other locations on the bridge. The cracks observed were very small, approximately 0.004 of an inch wide. On February 13, 2018, BPA submitted Crack Report #1 to MCM, FIU, and Corradino, documenting the cracks that had developed in the concrete truss members after completing the post-tensioning operations in the casting yard. Despite the small size of the cracks, BPA requested that the EOR provide an assessment of the cracks. FIGG, the EOR, responded to BPA’s request by stating that the current condition observed was temporary in nature and that the cracks were not an issue. BPA exercised independent professional judgment when it exceeded the requirements of section 400 of the Standard Specifications and the CPAM by documenting and reporting these initial cracks. In late February 2018, before the placement of the main bridge span on the permanent pylon and south pier supports, cracks were observed in certain truss members. BPA prepared and submitted Crack Report #2 to FIU and MCM on February 28, 2018, documenting the size and location of these cracks and requested that FIGG evaluate the cracks and provide a disposition. In its report, BPA called attention to certain cracks that were significant in size. As CEI, BPA was not qualified to determine whether these larger cracks posed an imminent danger of collapse. Further, BPA’s design team was not involved in the design of the bridge and was not qualified to evaluate these cracks from a design engineering perspective due to the category and complexity of the bridge. At this point, the cracks were not "structural" as defined by Section 400 of the Standard Specifications. Cracks more than one-half inch in depth are deemed "structural" and trigger the obligation of the CEI to notify the EOR. Nevertheless, BPA, again, exercised its independent professional judgment above and beyond the requirements of the Standard Specifications and CPAM by requesting that the report be forwarded to the EOR and requesting that the EOR provide a response and disposition of the cracks. On March 7, 2018, FIGG replied to Crack Report #2, stating, in part, that the cracks appeared small, that they were not concerned about these types of cracks in the particular region shown in the report, and that MCM would need to seal the cracks in accordance with the Department’s specifications. As the EOR, FIGG did not have any structural concerns regarding the cracks in Crack Report #2. On March 7, 2018, FIGG representatives were on site and observed the cracks referenced in Crack Report #2. After observing the cracks, FIGG did not delay the bridge movement that was scheduled to take place three days later on March 10th. As of March 8, 2018, BPA had no concerns regarding the integrity of the structure or public safety because the EOR had looked at the cracks in- person and assured the project team that the cracks were not a safety issue or structurally significant. These assurances came two to three days prior to the bridge being moved over Southwest 8th Street and placed on the permanent pylon and pier supports. The bridge movement was not delayed due to the cracks observed by the EOR. On March 10, 2018, Span 1 was moved from the casting yard and placed on the permanent pylon and south pier supports. After the placement and de-tensioning of diagonal members 2 and 11, cracks began to appear at the construction joint of diagonal 11, the deck, and at the top of diaphragm II. At approximately 11:00 a.m. on March 13, 2018, two days before the collapse, BPA circulated a draft of Crack Report #3 to MCM, recommending further monitoring and documenting of the cracks to determine whether they were active or dormant, and requesting that BPA be informed of the outcome of the EOR’s EAR and course of action. At 5:18 p.m. on March 13, 2018, the EOR responded to MCM with additional recommendations and stated "[a]gain, we have evaluated this further and confirmed that this is not a safety issue." Because BPA’s design team was not involved in the project, no BPA design personnel were aware of the documented cracking on the structure until sometime after Crack Report #3 was generated. At that time, Mr. Morales provided Mr. Perez with a copy of a draft of Crack Report #3. Mr. Perez briefly reviewed the draft report and confirmed with Mr. Morales that the CEI team had elevated the issue to the EOR. At all times in the documented communication relating to the cracks, the EOR and members of the FIGG design team represented to BPA that the cracks were not a safety concern, without reservation. Starting on March 13, 2018, FIGG directed MCM to implement an initial, temporary measure to address observed cracking in the member 11/12 nodal region. At that time, BPA was not aware of this communication between the EOR and the contractor. To restore the temporary support conditions when the structure was in the casting yard, MCM placed shims between diaphragm II and the pylon on March 13, 2018. FIGG also directed re-tensioning the post-tensioning rods in truss member 11 to begin on March 15, 2018. The re-tensioning operation was made as a "rushed request" to the post-tensioning subcontractor by MCM on March 14, 2018. "FIGG recommends to stress these PT bars as soon as possible but again, this is not a safety concern." MARCH 15, 2018, AND THE BRIDGE COLLAPSE Rather than waiting for the EAR, BPA once again exercised its independent, professional judgment and went above and beyond the requirements of the Standard Specifications, CPAM, and Contract Documents when it further escalated the issue of the cracks by calling for a meeting with the EOR. On the morning of March 15, 2018, a meeting requested by BPA and coordinated by MCM, was held in Miami, Florida. Representatives of FIGG, MCM, DOT, FIU, and BPA were present. At the March 15th meeting, BPA first became aware of the EOR’s instruction to MCM to proceed with a second temporary measure. This subsequent temporary measure was to reinstate the post-tensioning compression force back in member 11 as per the previous construction phase. As explained by the EOR, both temporary measures (shims and re- tensioning) were intended to restore the temporary support conditions when the structure was in the casting yard. Prior to the start of the meeting, the EOR, other FIGG engineers, and DOT’s LAP Coordinator inspected the bridge and the cracks in the nodal region of members 11/12. Only FIGG had structural engineers at the meeting. No other engineers present at the meeting had a background in structural engineering, including those in attendance on behalf of BPA. The meeting was called for purposes of discussing the concrete cracking on Span 1, and specifically the concrete cracking in nodal connection between truss members 11 and 12 and the bridge deck. At this meeting, BPA informed FIGG that the cracks in the bridge were lengthening and growing daily. Though not formally invited, Mr. Reyna attended this meeting in his capacity as DOT’s consultant/Assistant LAP Coordinator. At the March 15th meeting, the EOR presented FIGG's assessment of the cracking after having reviewed the three BPA crack reports and having personally inspected the cracks on at least the following two occasions: (1) prior to the bridge being moved from the casting yard over Southwest 8th Street; and (2) on the morning of the March 15th meeting. The EOR’s presentation consisted of a lengthy and comprehensive PowerPoint slide presentation on the conditions of the bridge, structural analysis by calculations and 3D modeling of the loads and forces the area of member 11/12 nodal region cracks, and an evaluation of the safety of the span over Southwest 8th Street for workers and the public. Throughout the March 15th meeting, BPA exercised its independent professional judgment by actively participating in the EOR’s presentation, questioning and challenging the EOR. For example, BPA: inquired as to whether temporary shoring was needed; sought clarification regarding the mechanism being used to capture the load from the node and whether it would have to be integrated with the pylon diaphragm; requested clarification on the amount of transferred post- tensioning assumed for the nodal shear stability analysis; inquired as to whether there were any restrictions on load; inquired as to whether there would be a crack monitoring plan; requested a copy of the EOR’s presentation; inquired as to whether it had been peer reviewed and commented that it wanted more eyes on the presentation calculations; and BPA requested a copy of the stressing procedure that was being recommended by the EOR. Throughout the presentation, and during the question and answer phase of the meeting, the EOR assured BPA and the other attendees that the structure was safe. These assurances were based on statements made by the EOR as well as its calculations and modeling, which were part of its slide presentation at the meeting. In the presentation on the slide entitled "Safety," FIGG stated that "…[it] had conducted sufficient supplemental/independent computations to conclude that there is not any concern with safety of the span suspended over the road." At the end of the presentation, the EOR concluded the meeting with "[b]ased on conservative calculations, it is concluded that the design meets LRFD strength requirements for this temporary condition and therefore there is no safety concern relative to the observed cracks and minor spalls." During the meeting, the EOR stated that some cracking similar to the ones on the structure, were expected. The EOR further stated during the meeting that the top deck spalls could not be replicated, but that the spalled areas were minor and they should be repaired during the next phase of work when the pylon concrete was to be placed. No engineer at the meeting, including DOT's representative, Mr. Reyna, requested or recommended a complete road closure to protect the public safety or that the bridge be shut down. BPA had no reason to request a full road closure of Southwest 8th Street. There was no preplanned complete road closure, there was no maintenance of traffic ("MOT") deficiency, and, based on the EOR’s presentation, BPA was reasonably satisfied that no safety issues required a road closure. Towards the end of the meeting on March 15th, MCM informed BPA that a specialty contractor, Structural Technologies ("VSL"), was already onsite to conduct the re-tensioning operation. Without BPA’s knowledge, VSL had already mobilized on site to perform the remedial re-tensioning. BPA was not involved in pre-coordination for the re-tensioning operation. Therefore, BPA’s sub-consultant, Corradino, was not onsite to participate in monitoring of the re-tensioning procedure. Corradino’s role, as BPA's sub-contractor, was that of a 10.5.1 CEI (Major Bridge CEI--Concrete). Corradino was responsible for monitoring and documenting the post-tensioning operations. The post-tensioning operation after placement of the span had already occurred and therefore, Corradino was not on-site on March 15, 2018. Based on the safety assurances and conservative calculations presented by the FIGG EOR that the structure was safe, BPA, and the other professional engineers present at the meeting, including those representing FIU and DOT, followed the recommendations of the FIGG EOR to bring the main span condition back to its pre-existing state when the span was in the casting yard. BPA did not have the expertise or the contractual duty to perform its own analysis of the cracking on this complex bridge and override, or even call into question, FIGG’s unequivocal assessment that the bridge was safe. During the restressing operation of member 11, the roadway below the bridge had two westbound lanes closed as per the blanket, two-lane, closure permit issued by DOT. This blanket, two-lane, closure permit was obtained by MCM to provide workspace underneath the bridge to conduct the remedial action. MCM obtained the blanket, two-lane, closure permit from the Department the morning of March 15, 2018, before conducting the remedial action. A CEI’s authority to request a partial or complete road closure is defined by the contract plans and roadway closure permits, which is implemented using the procedures outlined by the CPAM and the CEI Scope of Services of the CEI Contract. A CEI is authorized to request the contractor to either partially or fully close a road if there is an MOT deficiency, as contemplated by CPAM Section 9.1.8--"Recommended Action to Shut Down a Project Due to MOT Deficiencies." Lastly, a CEI has authority to request a partial or full road closure if it is aware of a safety issue. None of these conditions existed on the project in the days leading up to the collapse in light of the EOR’s comprehensive presentation regarding the cracking conditions of the bridge, strength in the area of member 11/12 nodal region, safety of the span over Southwest 8th Street, and repeated, unequivocal reassurances that the structure did not pose a safety concern. Ultimately, BPA’s authority to request a partial or complete road closure on the project was a collective effort with the Department and FIU. BPA did not have the authority or ability to act on its own to close the road. The FIU Pedestrian Bridge collapsed during the re-tensioning of the truss member 11 post-tensioning rods on the afternoon of March 15, 2018. Six people died as a result of the FIU bridge collapse, including one bridge worker and five vehicle occupants. Ten people were critically injured as a result of the FIU bridge collapse, including two BPA employees, Mr. Morales and Carlos Chapman. Mr. Chapman was on the canopy of the bridge during the re- tensioning operation, observing the work being performed by VSL and communicating the progress to Mr. Morales who was on the deck of the bridge. Because of the representations made by the EOR, neither Mr. Chapman nor Mr. Morales was concerned for his own safety or well-being when they went on the bridge on the day it collapsed. BPA’s role, responsibilities, and scope of work on the FIU Bridge project as the CEI was that of a contract administrator, not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. BPA had no basis, ability, or contractual obligation, to perform its own analysis of this complex structure sufficient to override the FIGG EOR’s unequivocal safety assessment and recommendations. BPA performed its CEI duties and utilized its independent professional judgement when it documented and monitored the cracks and requested an immediate structural evaluation by the FIGG EOR. Ultimately, the bridge collapse was caused by a fundamental design error. THE OSHA AND NTSB INVESTIGATIONS Shortly after the collapse, both OSHA and NTSB began investigating the causes of the collapse. OHSA completed its investigation and released a written report of its findings in June 2019.2 The June 2019 OSHA report was 2 DOT failed to enter into evidence the OSHA report on which it relies. However, prior to the final hearing, DOT filed a Motion for Judicial Notice of Reports Issued by Federal Agencies Concerning the FIU Bridge Collapse ("Motion"). The Motion was opposed by BPA on the basis that the first OSHA report was not final because a second report was issued, and is hearsay. By Order dated January 24, 2020, the undersigned officially recognized both the issued without prior review or comments from all party members who willingly cooperated with and were involved in the investigation, including NTSB and BPA. OSHA released an amended report on the collapse of the FIU Bridge project in July 2019; however, none of the amendments in the report pertained to the actions of BPA on the FIU Bridge project. NTSB completed its investigation and issued its report in October 2019. Significantly, no evidence was presented at the final hearing regarding from whom either agency conducted the investigations or drafted the reports, the qualifications or expertise of the investigators, the methodology used in the investigations, or the ability of any of the participants in the investigation to rebut the findings or conclusions. BPA willingly participated in both the OSHA and NTSB investigations, working with investigators and providing them with information, photographs, and details on the FIU Bridge project. Both OSHA and NTSB also conducted interviews of BPA personnel involved with the FIU Bridge project as part of their investigations. In its report, OSHA found that BPA failed to classify the concrete cracks, which were structural in nature, in accordance with DOT requirements. OSHA determined that BPA, as CEI, was expected to exercise its own independent professional judgment in accordance with their contract with FIU and DOT requirements. With intimate knowledge of extensive initial OSHA report and the NTSB report. Accordingly, references to the report in this Recommended Order are based upon the official recognition. As noted in the Order on the Motion, official recognition of the OSHA and NTSB reports, however, does not make the statements contained therein automatically admissible. "The distinction between noticing the contents of a record and noticing the truth of the contents resembles the distinction in the hearsay doctrine between offering an out-of-court statement simply to show it was said, and offering it for the truth of the matter asserted." C. Ehrhardt, Florida Evidence § 201.1 (2011 Edition)(quoting Wright & Graham, Federal Practice and Procedure: Evidence § 6337). Although the existence of the report and its findings were officially recognized, the greater weight of the evidence supports that the contents were not accurate as to the exercise of independent judgment of BPA. cracking on the bridge, BPA failed to recognize the bridge was in danger of collapsing, and did not recommend to FIU, MCM, or others to close the street and shore the bridge, regardless of the opinion held by the EOR. As a result, OSHA imposed a monetary fine on BPA for its conduct and failure to take appropriate action in the days leading up to the collapse of the main bridge span. In its October 2019 report (issued after the NOID to BPA in this case), NTSB found that beginning with the cracking identified on February 24, 2018, the distress in the main bridge span was active, continued to grow, and was well documented by all parties involved in the design, construction, and oversight of the bridge. Neither FIU, MCM, FIGG, nor BPA took responsibility for declaring that the cracks were beyond any level of acceptability and did not meet DOT standards. Further, NTSB concluded that under the terms and conditions of the CEI Contract, BPA had the authority to direct or authorize partial or complete road closures as necessary, acting in concert with DOT and FIU; however, none acted to close the road under the bridge, contributing to the severity of the impact of the bridge collapse. BPA POST-COLLAPSE ACTIVITIES AND 2018 APPLICATION FOR QUALIFICATION On May 3, 2018, BPA submitted its Request for Qualification for the July 1, 2018, through June 30, 2019, fiscal year ("2018 Application"). BPA’s 2018 Application was for the same Work Groups that would eventually be included in the 2019 Request for Qualification. Each work category is tied to a distinct job function. There is no relationship or similarity between CEI services (Work Group 10) and the other work groups. On June 27, 2018, DOT accepted BPA’s Request for Qualification in all work categories. In processing the application, the Department did not ask BPA any questions regarding its involvement in the project, offer any criticisms of BPA in response to the application, request to interview any BPA employees, or raise any concerns at all regarding BPA’s participation in the project. From the date of the collapse on March 15, 2018, to December 2018, DOT awarded two contracts to BPA directly for CEI and design services, respectively. During the same period, DOT allowed BPA to participate as a qualified sub-consultant on one CEI contract, three design contracts, and one traffic task work order contract. During the 2018-2019 fiscal year, before DOT attempted to suspend BPA’s qualifications, BPA was able to win several jobs in both the prime and sub-consultant role, including projects in which BPA would be providing CEI services. In October 2018, approximately seven months after the collapse, BPA applied to change its CEI qualifier from John Bolton to Jose Morales because John Bolton wanted to retire. DOT approved the request and did not object or raise any concerns with respect to Jose Morales serving as BPA’s qualifier for CEI services. On December 19, 2018, nine months after the collapse, DOT expressed concern for the first time about BPA’s role in the bridge project, staffing of current DOT projects, quality assurance/quality control ("QA/QC") plans, and professional liability insurance. DOT sent BPA a "Qualifications Letter of Concern," stating that it had "serious concerns regarding [BPA]’s involvement as the Construction Engineering Inspection consultant on the Florida International University (FIU) pedestrian bridge project[.]" DOT requested in its letter, among other things, "a detailed explanation of the firm’s actions on the FIU pedestrian bridge project and… any controls or changes in personnel, policies or practices that [BPA] has implemented subsequent to the collapse." On December 21, 2018, BPA responded to the Letter of Concern addressing each concern raised by the Department, in detail, including providing a copy of its Certificate of Liability Insurance demonstrating that there was no lapse in professional liability insurance coverage. On February 12, 2019, DOT responded to BPA’s correspondence dated December 21, 2018, requesting additional detail from BPA relative to its revised QA/QC plan and punctuated the correspondence by stating that DOT would refuse to process any further qualification requests from BPA, including ministerial prequalification name changes, until the matter was addressed to the Department’s satisfaction. Around this time, BPA submitted a request to change its name with DOT to reflect its business name with the Division of Corporations. BPA requested that DOT update this information on its website, but DOT refused to process the request due to its concerns with BPA’s qualifications. On February 20, 2019, BPA provided further detail regarding the specific policies and procedures that have been implemented to its CEI services. Specifically, BPA provided extensive detail regarding its revised QA/QC plan, which included a section dedicated to Category II type bridge structures and included a copy of the revised QA/QC program for DOT review. DOT never responded or requested any additional information in this regard. On March 15, 2019, one year to the day after the collapse, DOT issued a Notice of Intent to Suspend BPA’s existing certificate of qualifications. DOT attempted to suspend BPA’s qualifications in all Work Groups and declare BPA non-responsible for a period of one year for good cause. DOT further claimed that BPA "failed to adequately address the Department’s concerns regarding the firm’s performance of the contract, and the [BPA] staff directly involved with the FIU project who continue to work on other Department structural contracts." No further explanation was provided as to how BPA failed to address these concerns. BPA timely responded to the Notice of Intent to Suspend by way of a Notice of Contest, requesting an administrative hearing on the issues raised therein. Despite the Notice of Contest, DOT suspended BPA’s qualification, and sent written notice to its various offices stating, among other things, that BPA had been removed from DOT’s prequalification list. Ultimately, DOT reinstated BPA’s qualifications, but never formally withdrew the Notice of Intent to Suspend. However, in reinstating BPA’s qualifications, DOT neglected to reinstate BPA’s Small Business Enterprise ("SBE") designation, which negatively affected BPA’s ability to obtain points for SBE participation. The points add value in scoring competing responses to Requests for Proposals for DOT contracts. BPA repeatedly requested that this be corrected. BPA’s requests went largely ignored for nearly two months. On April 2, 2019, after BPA had an in-person meeting with Courtney Drummond, DOT's Assistant Secretary of Engineering and Operations, BPA submitted a qualifications modifications package to replace Jose Morales, P.E., with John Bolton, P.E., as the qualifier for the CEI Work Group to address Mr. Drummond's and DOT’s concerns about BPA staff involved on the FIU project working on other DOT contracts. On April 5, 2019, in response to the Notice of Intent to Suspend, BPA provided specific facts in support of BPA’s proper performance of the CEI Contract. As an accommodation to DOT, BPA further proposed a solution to DOT's concern about the staff involved in the FIU project. BPA stated that it was "willing to immediately remove the BPA staff directly involved in the FIU Bridge project from working on any Department contracts or qualifying the company for CEI services" and resubmitted its qualifications application with those changes. 2019 BPA REQUEST FOR QUALIFICATION REJECTION On May 7, 2019, BPA submitted its 2019 Request for Qualification to the Department early due to the lack of response from DOT on BPA's April 5, 2019, correspondence. BPA sought qualifications for design work and CEI services in the same work categories it was qualified in for the prior fiscal year. On June 10, 2019, BPA’s counsel met with DOT representatives in Tallahassee to discuss several outstanding issues relative to BPA’s current qualification, the upcoming renewal, and DOT’s failure to reinstate BPA’s SBE designation. DOT responded by promising to correct the "mistake" that same day. Inexplicably, it took another two weeks and several reminders from BPA for DOT to finally correct the SBE designation. BPA’s 2018-2019 qualifications expired on June 30, 2019. The next day, on July 1, 2019, DOT untimely responded to BPA’s Request for Qualification with a letter titled "Incomplete Renewal Applications for Pre- Qualification." DOT's letter raised the same concerns regarding BPA’s involvement in the bridge project and, again, requested "a detailed explanation of BPA’s actions on the FIU pedestrian bridge project and…any controls or changes in personnel, policies or practices that BPA has implemented subsequent to the collapse." This is the same request that had been previously made by DOT in its December 19, 2018, Qualifications Letter of Concern, February 12, 2019, Qualifications Letter of Concern, March 15, 2019, Notice of Intent to Suspend, and April 26, 2019, denial of BPA’s Submittal for Modification. BPA had already provided the information requested several months prior to DOT's July 1, 2019, correspondence. On July 11, 2019, DOT issued its Notice of Intent to Deny Request for Qualification directed to BPA’s 2019 Request for Qualification. In issuing its denial of BPA’s Request for Qualification, DOT relied solely on the findings and conclusions of the June 2019 OSHA Report as they relate to the CEI services provided by BPA on the project and referenced the pending NTSB investigation. The Department’s Notice of Intent to Deny was executed by William Watts, the Department’s Chief Engineer. Mr. Watts admitted at final hearing that he does not have the training or experience necessary to evaluate a CEI’s performance on a CEI contract. Moreover, neither Mr. Watts nor DOT retained or consulted with any individuals with CEI expertise prior to issuing the Notice of Intent to Deny. When he issued the Notice of Intent to Deny, Mr. Watts was completely unfamiliar with the following: the terms of BPA’s CEI Contract; BPA’s Request for Qualification; BPA’s past performance on CEI or any other Department contract; and BPA’s professional reputation. Mr. Watts did not evaluate BPA under the criteria required by Florida Statutes and the Florida Administrative Code prior to denying BPA’s Request for Qualification for good cause. Mr. Watts did not receive any analysis from the Department’s prequalification staff regarding their evaluation of BPA’s application under the statutory criteria. Mr. Watts admitted that he was aware that BPA documented the cracking on the bridge, reported the cracking to the design-build firm, and requested an EAR from the EOR--actions which were all in accordance with BPA's obligations as CEI pursuant to the CPAM and its contractual obligations with FIU. Mr. Watts’ only reason for issuing the Notice of Intent to Deny, as Chief Engineer for DOT, was because BPA was under investigation by OSHA and the NTSB, and OSHA’s release of its June 2019 Report. However, Mr. Watts did not know the author of the June 2019 OSHA Report, whether the author of the report was qualified to evaluate the performance of a CEI under Florida Statutes and the Florida Administrative Code, or whether the author of the OSHA report did anything to evaluate BPA’s performance relative to any other CEI, at the same time, and/or in the same community. DOT did not investigate the structure or organization of BPA to determine whether the issues raised in the OSHA report, regarding BPA’s performance of the CEI Contract, would reflect negatively on other groups or divisions within BPA that provided services exclusively under other non-CEI work categories (design services). Prior to issuance of the NOID, Mr. Watts did not undertake a review of BPA’s past performance or professional reputation--both of which were beyond reproach. DOT evaluates its consultants’ performance on all projects approximately every six to eight months. These evaluations produce a score that ranges from one to five, five being the highest possible score. A perfect score of five is uncommon and a score of four is outstanding. In the five years prior to the final hearing, DOT evaluated BPA’s performance on projects involving both design and CEI services. Specifically, DOT scored BPA’s performance in Work Groups 3.1, 3.2 (Highway Design), 4.12 (Bridge Design), 5.1 (Bridge Inspection), 7.2 (Traffic Operations Design), and 10.1 and 10.3 (CEI). During that period, BPA averaged a score of outstanding to nearly- outstanding on all projects, including outstanding and nearly-outstanding scores for inspection services on bridge rehabilitation projects, which involved cracking concrete elements. In May of 2019, prior to denying BPA’s request for qualifications for the fiscal year July 1, 2019, through June 20, 2020, Mr. Drummond personally presented BPA with an award from the American Council of Engineering Companies ("ACEC"), for excellence in major urban reconstruction. Specifically, the award was for CEI services on the State Road 7 project, and the ACEC recognized two-and-a-half-years of excellence in CEI services from late-2016/early-2017 through 2019. DOT's District Construction Engineer, District 6 Secretary, and Headquarters were intimately involved in the selection and vetting process that, ultimately, resulted in BPA receiving the award. In September 2019, after denying its request and three months after the release of the June 2019 OSHA Report, DOT voted that BPA receive another award for excellence in CEI services. As a member of the selection committee, DOT chose BPA to receive an award from the Florida Transportation Builders Association ("FTBA"), for excellence on the Baker’s Haulover Bridge rehabilitation project. By this award, FTBA and DOT recognized BPA’s excellence in CEI services, which spanned from one year before the collapse to one year after the collapse. The Experts 3 Gustavo Quesada, P.E. At the Final Hearing, BPA presented the expert testimony of Gustavo Quesada, P.E., a CEI with over 30 years of experience. The ALJ finds that Mr. Quesada is a qualified expert on the standard of care for a CEI and his opinions in that regard are based on competent substantial evidence. As explained by Mr. Quesada, the role of a CEI with respect to cracks in concrete is to identify the cracks and make sure they do not go unseen or undetected and that an EOR is engaged for purposes of addressing the cracking. Pursuant to the CPAM, when a CEI encounters cracks in concrete, a CEI is required to document the observation and make a disposition on the cracks based on Section 400 of the Standard Specifications. Moving forward, the CEI is also required to monitor any changes in the cracks. A CEI is not responsible for making a determination as to whether a crack is potentially dangerous. This is a determination for the EOR, who has an understanding of the structure, its design, and how the structure is expected to behave. A CEI is not charged with making judgment calls on the design of a structure or whether its integrity has been jeopardized. BPA documented, monitored, and reported the cracks on the project in compliance with the industry standards for CEIs working on Complex Category II Bridges, as well as the relevant sections of the CPAM and Section 400 of the Standard Specifications. BPA’s Senior Project Engineer, Mr. Morales, exercised his independent professional judgment in elevating 3 DOT intended to offer Mr. Watts at hearing as an expert to testify to the "good cause" DOT had when issuing the NOID to BPA. BPA filed a Motion in Limine to exclude or limit the testimony of both Mr. Watts and Mr. Robertson. The motion was argued at the outset of the final hearing. The undersigned precluded Mr. Watts from testifying as an expert in the field of CEI. Mr. Watts was allowed to testify as to DOT's qualification process and did so as a fact witness, rather than an expert. the issue of the cracks to the EOR even before he was required to do so under the CPAM and Section 400 of the Standard Specifications. At the meeting called by BPA on the morning of March 15, 2018, BPA exercised its independent professional judgment and complied with the applicable standard of care when Mr. Morales asked the EOR a series of questions in response to the EOR’s presentation and evaluation of the cracks on the bridge. According to Mr. Quesada, professional engineers are expected to rely on other engineers with superior or specialized knowledge when exercising their independent professional judgment. BPA’s role, responsibilities, and scope of work on the project as the CEI was largely that of a contract administrator, and a liaison between FIU and MCM--not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. Robert V. Robertson, P.E. DOT presented the testimony of Robert V. Roberson as an expert on the standard of care for CEIs. Mr. Robertson has served as DOT's State Structure’s Design Engineer for 13 years. Mr. Robertson has been a professional engineer for 35 years. Although preliminarily accepted by the undersigned as an expert in this field, it became apparent through cross-examination that Mr. Robertson has no significant CEI experience. Mr. Robertson has not worked in the CEI industry in the last 26 years, nor has he ever graded a CEI’s performance. Mr. Robertson was not involved in the Department’s evaluation of BPA’s performance of the CEI Contract. Accordingly, Mr. Robertson's testimony was of limited value. Mr. Robertson acknowledged that the FIU bridge was a complex concrete bridge structure that required a separate design qualification and that BPA did have such qualification. Mr. Robertson admitted that BPA’s contract with FIU did not require BPA to be qualified to inspect complex concrete bridges because BPA was allowed to satisfy that particular qualification requirement of the contract through a sub-consultant (Corradino). Mr. Robertson testified that any licensed engineer with a college degree in engineering should have known, based on the photographs in Crack Report #3, that the cracks were dangerous and should have acted to stop work on the project and close the road. However, DOT's LAP representative at the March 15, 2018, meeting held prior to the bridge collapse, Mr. Reyna, a licensed professional engineer with a college degree in engineering, failed to raise any concerns at the March 15th meeting or act to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge. Mr. Robertson opined that the re-tensioning operation of the bridge should have been peer reviewed. In his opinion, BPA failed to use sufficient independent judgment. BPA, as the CEI, should have recognized the bridge was in danger and known to stop traffic and shut down the road. However, Mr. Roberston admitted that he did only a cursory review of the PowerPoint presentation provided on the morning of March 15, 2018, in which FIGG, as the EOR, stated it had no safety concerns. Mr. Robertson stated that he performed no analysis on anything other than BPA's CEI work relative to the FIU bridge. He had no information about BPA's design group or its qualification in any work category. However, he suggested the denial of BPA's application for qualification across the board, in all work categories because he questioned "the culture at BPA." Significantly, concerns regarding "the culture" of BPA was not cited by DOT as a basis for the NOID. Most significantly, Mr. Robertson testified that six months prior to the issuance of the NOID, he had a conversation with Mr. Drummond during which Mr. Drummond recommended that the qualification of all parties involved with the FIU Pedestrian Bridge project should be suspended. Importantly, this was prior to the issuance of either the OSHA or NTSB reports and seemingly with no analysis of the role of any party to the possible prevention of the bridge collapse, injuries, or loss of life. Ultimate Findings of Fact DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise its independent professional judgment by not acting to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge in light of the documented cracking on the structure in the days leading up to the collapse. The evidence shows that BPA documented, monitored, and reported the cracks pursuant to the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA involved the EOR in evaluating the cracks even before it was required by the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA was assured time and again by the EOR that the bridge did not pose a danger to the travelling public and that the structure was safe. At the meeting on the morning of March 15, 2018, BPA inquired as to whether temporary shoring was needed, and the suggestion was rejected by the EOR who had inspected the cracks on the structure just moments before the meeting. There is no evidence that BPA deviated from the standard of care for CEIs on design-build projects or that BPA failed to exercise its independent professional judgment. To the contrary, BPA met all of its obligations pursuant to contract and state regulation. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge pending a peer review of the re-tensioning plan proposed by the EOR at the March 15th meeting. At the March 15th meeting, BPA was reasonably convinced by the EOR that the structure was safe and that the re-tensioning plan was a temporary measure that should be implemented as soon as possible. BPA had already engaged the EOR to prepare an EAR to address the cracking observed on the bridge, which would have included signed and sealed calculations and a repair protocol that would have been implemented in a later phase of construction. On March 15, 2018, the cracks were not a safety concern such that BPA should have overridden the EOR’s directive to MCM and required that the re-tensioning operation be postponed pending a peer- review of the re-tensioning plan. There is no evidence in the record that BPA deviated from the standard of care for CEIs on design-build projects or allegedly failed to exercise its independent professional judgment by allowing the re-tensioning procedure to proceed as directed by the EOR. Conversely, the evidence supports a finding that BPA acted appropriately in relying on the recommendations of the EOR who was uniquely qualified to evaluate the safety of the structure and who had specialized knowledge of its design. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge until the Corradino Group could arrive on the project site to observe the re-tensioning operation proposed by the EOR during the meeting on March 15, 2018. Corradino’s role on the project was to monitor and document post-tensioning operations. By the time the meeting was over, MCM’s specialty contractor, VSL, was mobilized and prepared to proceed with the re-tensioning operation. BPA was not involved in the pre- coordination of this work. Ultimately, the bridge collapsed due to an inherent design error in the plans and not due to Corradino’s absence from the re- tensioning operations. The findings of the OSHA report and the pendency of the NTSB investigation, standing alone, were insufficient "good cause" for DOT to deny BPA’s 2019 Request for Qualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that good cause does not exist to deny BPA’s 2019 Request for Qualification. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2020. COPIES FURNISHED: George Spears Reynolds, IV, Esquire Florida Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Scott Kirschbaum, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 Anthony Lopez, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 George Richard Truitt, Esquire Cole, Scott & Kissane, PA 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 (eServed) John Ashley Peacock, Esquire Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transporation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact Petitioners own residential property near South Florida Water Management District (SFWMD) Canal C-24. The canal is owned and maintained by SFWMD, an agency of the State of Florida. The State property includes the banks and bottom of Canal C-24 and a 50-foot-wide strip of land which separates Petitioners' property from the canal. However, some of the Petitioners have obtained permits from SFWMD to maintain boat docks in the canal and to cross the 50 feet of intervening property as necessary. Canal C-24 is closed to navigation immediately west of Petitioners' property by a SFWMD dam used to control the water level. However, the canal is open to navigation east of the dam and connects with the St. Lucie River which flows into the Atlantic Ocean. Respondent GDC plans the residential development of property east of that owned by Petitioners. Construction of the proposed bridge will improve access to the GDC property and other portions of southeast Port St. Lucie which are now blocked on the north and east by water and on the west by the Florida Turnpike. On August 28, 1980, Respondent Department of Environmental Regulation (DER) issued its Notice of Intent to grant a permit for construction of the bridge with 17 feet clearance. The bridge was originally planned to provide 12 feet clearance which was approved by SFWMD and the City of Port St. Lucie. Based on Petitioner's objections and the recommendation of the US Coast Guard, the clearance was increased to 17 feet. However, Petitioners maintained their opposition, giving rise to these proceedings. At 17 feet the bridge would be approximately six feet below the Florida Turnpike bridge which is situated between the GDC residential development and Petitioners' property. Thus, Petitioners are currently limited to a 23-foot navigation clearance by the Florida Turnpike bridge which was present when they purchased their property. None of the Petitioners operates any boat at his Port St. Lucie residence which would be affected by construction of the proposed bridge. Rather, Petitioners' objections are based on the obstruction of larger boats they might acquire and on the belief that resale value of their property would be diminished. They also content that use of the canal as a hurricane refuge for large boats will be restricted. Finally, Petitioners argue that bridge pilings will cause erosion and thus create a surface hazard in addition to the height impediment. The Petitioners indicated no plans to acquire any power boats of such size as to be restricted by a 17-foot clearance, nor did their plans include the purchase or use of any sailboats which would not already be blocked by the 23- foot turnpike bridge. No studies, appraisals or together evidence was introduced to establish that property values would be affected by construction of the proposed bridge. Conflicting evidence was presented on the use of the canal by third parties as a hurricane refuge. However, the expert testimony given by Respondents' witnesses established that use of the canal during storms was unsafe and impractical due to the narrowness of the canal, the absence of trees to reduce the force of the wind or secure the boats, and the possibility of strong currents caused by operation of the flood control dam. Further, this testimony established that safer moorings are available on the adjacent portion of the St. Lucie River, which has the added advantage of being directly accessible to the ocean. Such moorings are preferable because of the greater maneuverability in the river and the presence of mangroves which provide anchorage and wind protection. The alleged erosion problem was not supported by any studies or expert testimony, but was based on Petitioners' observations of some soil erosion around turnpike bridge pilings. GDC's construction proposal has been considered by DER, and its engineering plans will be reviewed by the City of Port St. Lucie before it authorizes construction. This process should insure that any potential erosion problems are minimized. Furthermore, there was no evidence to indicate that soil erosion, even if it did occur at the site of the proposed bridge, would create any hazard to navigation. The City Manager of Port St. Lucie supports construction of the bridge at its present level. His concern, and that of the City Commission, is centered on the need to deliver police, fire and ambulance service to the area south of the proposed bridge. Additionally, opening of the bridge will result in the improved flow of vehicular traffic in the community. A local contractor who owns lots on both sides of the canal opposes any further elevation of the bridge as it would reduce the view from houses he intends to construct in this area. The GDC evidence established that raising the height of the bridge would also enlarge the property on either side of the canal required for bridge purposes. Finally, the cost of construction of further increasing bridge height would be substantial, amounting to approximately $40,000 per foot.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation grant the permit to General Development Corporation as reflected in the Notice of Intent issued on August 28, 1980. DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Mr. Kenneth J. Thomas 2649 SW Harem Circle Port St. Lucie, Florida 33452 Ms. Anita R. Cockerham 2549 SW Harem Circle Port St. Lucie, Florida 33452 Mr. Walter J. Konrad Ms. Victoria Konrad 2657 Harem Circle, SW Port St. Lucie, Florida 33452 Mr. Henry Albright Ms. Nancy Albright 2651 Harem Circle, SW Port St. Lucie, Florida 33452 Mr. William Isaacs 2645 SW Harem Circle Port St. Lucie, Florida 33452 Mr. and Mrs. Frederick C. Walrath 2647 SW Harem Circle Port St. Lucie, Florida 33452 Ms. Mary Bruins Kars 2659 Harem Circle Port St. Lucie, Florida 33452 Mr. Norman Zlinkoff 1814 Erwin Road Port St. Lucie, Florida 33452 Mr. Donald M. Homer General Development Corporation 111 South Bayshore Drive Miami, Florida 33131 Randall E. Denker, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Joseph Z. Fleming, Esquire 620 Ingraham Building 25 SE Second Avenue Miami, Florida 33131
Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
