The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, School Board of Brevard County, Florida, is empowered to designated the personnel positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees for the school district. The Respondent, Arthur Douglas Barna, has been employed by the Petitioner since the early 1970s. The Respondent has a degree in mechanical engineering, is a registered professional engineer, and has twenty years of experience in the construction field. Respondent's first position with the Petitioner was as construction manager. In 1976, Respondent's title was amended to staff engineer and construction manager. In 1981, Respondent was made Director of Facilities a position he held until February, 1991, when he was returned to the staff engineer position and John Allen was retained to be Director of Facilities. On April 23, 1991, Respondent was recommended for appointment to the position of staff engineer for the 1991-92 contract term by the school superintendent. The qualifications for appointment as staff engineer/project manager are: Graduation from a college or university with a degree in engineering. Registered as an engineer in the State of Florida. Experience (five years minimum) in educational design and facility planning administration. Experience in administration of educational construction contracts. Knowledge of Uniform Building Code and Florida School Laws and Regulations. On April 23, 1991, by a 3-2 vote, the Petitioner rejected the superintendent's recommendation to employ Respondent. Prior to April 23, 1991, Respondent had received satisfactory personnel evaluations. Prior to April 23, 1991, Respondent had not been reprimanded or disciplined for any act or omission regarding the performance of his duties. In the two years prior to April 23, 1991, Respondent had participated in numerous construction and remodeling projects for the Petitioner. Such projects exceeded $46,000,000.00 in cost to the public. One of projects Respondent was involved with during his tenure with the Board was Stone Middle School (Stone). That project originated with a bid proceeding to choose a contractor to perform the construction work. One of Respondent's duties was to represent the Board at bid openings. In the case of the Stone project, within a short time after the bid opening, the apparent low bidder on the job, Speegle Construction (Speegle), advised Respondent that an error had been made on the bid form. That error was claimed to be in the amount of $40,000.00. Speegle's bid was $90,000.00 lower than the next low bidder. Speegle had tendered a bid bond in the amount of $50,000.00. After reviewing the matter with the bidder, Respondent took the matter to his supervisor who then took the issue to the school superintendent and board staff. Among the staff who considered the issue was the school board attorney. Regardless of any dispute regarding the computation of the $40,000.00 error (such are deemed irrelevant to the essential issue), the Board was presented its options: to take the bid bond and award the contract to the next lowest bidder; to give Speegle the additional $40,000.00 and award it the contract; or, presumably, rebid the project. Since awarding Speegle the contract, with the $40,000.00 addition, still saved the public $50,000.00, over the next lowest bidder, Respondent recommended that option. His recommendation was supported by his superiors. After public discussion of the matter, the Board unanimously voted to select Speegle as recommended by staff. No evidence supports the assumption that the Board's decision, based in part on Respondent's recommendation, was found to be illegal, unethical or challenged by the other bidders on the project. The Stone project had additional problems since the architectural firm hired to complete the drawings did not meet the guidelines established by the Department of Education. On at least two occasions the plans had to be returned to comply with state standards. Consequently, the project was late commencing. Such lateness was not due to the fault or error of the Respondent. To the extent he was involved, Respondent properly supervised the Stone construction project and did not approve inferior work. All specifications of the contract were met and verified by Respondent and then assistant superintendent for facilities, Leon Cowling. Issues regarding performance of the Stone project arose between Respondent and Cliff Gordon, president of the architectural firm involved with the job. Such issues related to the lockers and an athletic field which Mr. Gordon claimed did not meet specifications. Such allegations are not supported by the record in this case. When the Stone project was not completed on time, Respondent assessed liquidated damages against Speegle in accordance with the contract terms. Respondent was not responsible for the lateness, and Speegle, in fact, made good on the damages. Respondent and Mr. Gordon did not agree on aspects of the Stone project. Mr. Gordon became disgruntled when Respondent would not approve payment to Mr. Gordon's firm for work allegedly done. Mr. Gordon attended Board meetings regardless of his claim that Respondent had advised him to stay away. Respondent was not responsible for the removal or encapsulation of asbestos found in several schools. Respondent's position placed him in a position over construction, not maintenance. Moreover, another school administrator was assigned to be responsible for overseeing issues related to asbestos at all times material to this case. Respondent did not supervise a project wherein the treatment of asbestos was at issue. Anderson Elementary School (Anderson) has a noise problem in that sound travels from one area to another. The ceiling tile used in the Anderson project was the same product used in the other schools and was the contractor's choice. At the time of installment an issue arose as to whether the tile to be used met the specifications of the contract. Ultimately, the architect signed off on the use of the tile requested by the contractor. Unfortunately, the tile used does not buffer noise. Whether the tile originally requested would more effectively buffer the noise is unknown. Whether the design of the facility contributes to the noise problems is also unknown. That there is a noise problem at Anderson is not due to an act, omission, or the negligence of the Respondent. In connection with the air conditioning system installed at Southwest Junior High School (Southwest) a problem arose as to that system's design. Respondent did not design the system. In fact, a design firm was retained to complete the work and the system was installed based upon that work. The Board does not have the personnel or the staff expertise to verify whether outside consultants perform their jobs correctly. Presumably, the Board utilizes such consultants because it does not have the internal resources to do the work requested. In the case of Southwest, the firm hired designed the system improperly. As a result, the Board made a claim, and collected, against the firm's errors and omissions insurance. Thus, the Board received damages for the design defect. Cambridge Elementary School (Cambridge) is located adjacent to a housing subdivision developed by Centex Homes. Due to drainage problems associated with the development, the homeowners' association and the developer requested that the Board execute a drainage easement on the Cambridge property so that the properties might be enhanced. The homeowners' proposal made to the Board gave the expense of preparing and maintaining the easement to the association. Respondent was approached regarding the drainage easement and considered the matter to benefit the school site. Respondent and Mr. Cowling recommended granting the easement. Such easement was to be preceeded by an agreement setting forth the homeowners' obligations to the Board. For reasons not addressed by this record, an agreement was not prepared and returned to the Board as had been directed. In fact, the Board chairman and superintendent executed the drainage easement without evidence of an agreement. Nothing in this record suggests Respondent had anything to do with the execution of the easement or the failure to obtain a written agreement regarding it. Moreover, these events occurred in May and November, 1988, some three years prior to the nonappointment of Respondent. The construction of the educational services facilities at Viera posed many novel and complicated construction issues for the Board and its staff. For one thing, the Board had not utilized a "design/build" format in construction before. Based upon the record in this case, it is unlikely that the format will be used again. The design/build format requires the construction of some phases of a project while the design is still occurring. As a result, unlike situations where a contractor has a determined set of plans to follow, the builder in the design/build format is in a constant state of flux and change. As may be expected, the owner is tied to the same constant amendment to plans. In the case of Viera, Respondent served as the owner's representative on the project. By contract, all notices and changes went through Respondent who was then responsible for coordinating with the Board staff. At all times material to the Viera project, Respondent kept his supervisor aware of the progress of the project and of the changes to plans or specifications. It was not Respondent's responsibility to report directly to the Board regarding the Viera project (or any other for that matter). Respondent routinely made reports to his supervisor who then coordinated matters with finance and the superintendent. Respondent was available to the Board for any matters that might require his input. Early on in the Viera project Respondent advised his supervisor and the Board that they had little control over how the building was constructed. As long as the project stayed within the general design concept, the specifications were fairly open. Respondent's first priority was to try to keep the Viera project on budget as to the changes that occurred. To that end, items such as the carpet allotment were reduced to capture more funding for other requested items. In each such case Respondent made his superior aware of the changes. Ultimately, the changes requested by Respondent, the superintendent, or John Forbes were placed before the Board as change order #1 and approved. While some of the changes had already occurred, there is no evidence that the Board took action to prohibit Respondent and the administration from making the day-to-day decisions on the project. In fact, the contractor make changes on the Viera project without authorization from any Board administrator. Presumably, necessity caused the Board to accept such work. There is no evidence that the changes authorized by Respondent on the Viera project were arbitrary or in violation of the contract. Respondent did not fail to abide by the contract terms. Respondent did not act improperly regarding the Viera project and is not responsible for the quality of the workmanship of the job. As energy costs became a concern to the Board, the Respondent participated in a conservation effort whereby energy firms were solicited for proposals as to how the Board might save on energy expenses. Initially five contractors showed interest in the project but only three filed proposals with the facilities department. To evaluate the proposals, which was deemed a "win/win" deal by the Board, an outside consultant was hired to review each of the submittals. The proposals, along with input from the consultant, was then heard and considered by a committee of eleven school board employees. The Respondent was not a voting member of the group. After receipt of the proposal and the foregoing review, the committee and Respondent recommended to the Board that Facility Masters Incorporated (FMI) be selected for the contract. The Board also reviewed the proposals and recommendations and approved the recommendation to hire FMI. The contract between FMI and the Board was reviewed by the school board attorney. The scope and terms of the project were outlined to the Board and the administrative staff. The concept of the proposal was to replace, at no initial cost to the Board, the outdated and inefficient equipment with new, efficient units so that the energy savings would actually pay for the equipment. None of the persons who reviewed the FMI project was aware that the proposal might require a performance bond. Respondent and others aware of the project were familiar with bonds and the necessity to have same on certain types of projects. In this instance, the superintendent, the assistant superintendent for facilities, the school board attorney, and Respondent did not request a bond for this job. No Board member questioned whether a bond should be requested for the project. All of the foregoing operated under the assumption that the replacement of equipment and the construction incidental to that did not require a bond. The principals employed at FMI had a satisfactory work history on similar projects. Their qualifications were investigated by Mr. Cowling, the assistant superintendent. No prior poor work performance was discovered. Under the terms of the FMI contract, the Board was to receive and approve a list of subcontractors before FMI was to "commence the installation of the System." There was no requirement that FMI submit a list for subcontractors of subcontractors. After commencement of the installation of the system, the Board and several of its individual members were sued for amounts allegedly owed Miller Electric, a subcontractor of a subcontractor on the FMI project. That suit brought to light the issue of the performance bond, or lack thereof, and the discovery that an individual, identified in the record as Armondo Diaz, had somehow obtained the balance of $167,000 from the Shawmut Bank. Such monies represented the final draws due on the FMI project. Respondent, however, did not authorize the final draw from the bank nor is there any evidence that he supported Mr. Diaz in that matter. Subsequently, the Board sued the bank over the release of the funds and settled the suit with Miller. Whether the $167,000 (quickly released) would have settled Miller Electric's claim is unknown. Certainly, it would have greatly reduced it. At the time of Respondent's departure from employment, the FMI system was operating in seven of the twelve schools in an acceptable manner. The other five schools were operational but not to the efficiency level anticipated. The Respondent acted reasonably in the selection and award of the contract to FMI, the administration of the project, and is not responsible for the improper release of the final draw. Three Board members testified that they have lost confidence in Respondent's ability to perform the duties of staff engineer/project manager. None of the three had registered complaints regarding his work performance with Respondent or his supervisor, Mr. Cowling, prior to the Board meeting April 23, 1991. None of the three Board members was able to articulate the factual basis for her lost confidence when asked to do so in December, 1991. The Respondent meets all of the qualifications for employment as staff engineer/project manager as that job title is described by the Board. The Respondent acted appropriately and within the scope and description of his job duties on each of the following projects: Stone Middle School; asbestos; Anderson Elementary School; Southwest Junior High School; Cambridge Elementary School; Viera; and FMI.
Recommendation Based on the foregoing, it is RECOMMENDED: That a final order be entered appointing Respondent to the position of staff engineer/project manager with all back pay and benefits withheld him from the date of his termination. DONE and ENTERED this 31st day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1992. APPENDIX TO CASE NO. 91-5645 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER, THE SCHOOL BOARD: It should be noted that Petitioner did not number the paragraphs in its proposed findings of fact. The numbers indicated below were assigned as follows: paragraphs 1 through 20 related to Respondent's general job description and responsibilities; paragraphs 21 through 31 are under the heading related to Viera; paragraphs 32 through 53 are under FMI; paragraphs 54 through 66 are under the Stone Middle School heading; paragraphs 67 and 68 are under Southwest Jr. High School; paragraphs 69 through 73 are under the asbestos heading; and 74 through 79 are under Cambridge Elementary School heading. No proposed findings of fact were submitted for the allegations related to Anderson Elementary School. Paragraphs 1 through 16 are accepted but do not necessarily reflect accurate quotes of the cited material as there are minor, insignificant irregularities. Paragraph 17 is rejected as contrary to the weight of the evidence. While it is accepted that three board members testified they had lost confidence in Mr. Barna, it is not concluded that they had objective reasons for that opinion prior to the vote on the Superintendent's recommendation. Paragraph 18 is accepted. With regard to paragraph 19, it is accepted that the job description had been held by Mr. Barna prior to the Board decision and would have been afterwards had they accepted the Superintendent's recommendation. Paragraphs 20 and 21 are accepted. Paragraph 22 is rejected as irrelevant. Paragraph 23 is accepted. Paragraph 24 is rejected as contrary to the weight of the credible evidence. Paragraph 25 is accepted. With regard to paragraph 26, it is accepted that some, but not all, of the changes addressed by change order 1 were completed prior to the submission of the item to the Board. Paragraph 27 is rejected as contrary to the weight of the evidence, and contrary to the facts established at hearing. Mr. Barna did not authorize changes without making his superiors aware of the items to be considered. The contract speaks for itself as to his authority. Paragraph 28 is rejected as contrary to the weight of the evidence; see also comment re: paragraph 27 above. With regard to paragraph 29, it is accepted that change order 1 represented an increased cost to the project; otherwise rejected as not supported by the record cited. Paragraph 30 is accepted but is irrelevant since evidence established that Mr. Barna did not approve some of the changes to the project and that they were done without any authorization. Paragraph 31 is accepted but is irrelevant; Mr. Barna did not stand as the guarantor on the work performed by others. Paragraph 32 is accepted. Paragraph 33 is rejected as contrary to the weight of the evidence. Paragraphs 34 and 35 are accepted. Paragraph 36 is rejected as not supported by the record cited; weight of the evidence supports the fact that Miller Electric was a subcontractor for a subcontractor and that the contract did not require the disclosure of subs of subs. Paragraph 37 is rejected as contrary to weight of the evidence; see comment paragraph 36 above. Paragraph 38 is accepted but is irrelevant. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the evidence. Paragraph 41 is rejected as irrelevant. Paragraph 42 is rejected as contrary to the weight of the credible evidence. Paragraph 43 is rejected as not supported by the evidence; to the extent that the paragraph suggests Mr. Barna was generally familiar with bond requirements and that he compiled "boiler plate" forms it can be accepted, otherwise must be rejected since no evidence that Mr. Barna prepared or drafted documents. The bond form on its face shows it is an AIA document A310 form. Paragraph 44 is rejected as argument. Paragraph 45 is rejected as a conclusion of law. The facts of this case establish that no one associated with the School Board side of the project realized it was, or should have been, a bond job until the lawsuit was filed. Had anyone suspected a bond should be required, it would have been requested. Mr. Barna was not at fault for not requesting a bond anymore than Mr. Walker was, or Mr. Cowling, or Mr. Collingsworth, or the individual Board members who know when bonds are required. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is rejected as contrary to the weight of the evidence as it suggests Mr. Barna knew a bond was required (as it was a construction job); clearly, neither he nor anyone else realized a bond would, or should, be required. Paragraph 48 is rejected as irrelevant. Paragraph 49 is rejected as contrary to the weight of the evidence. Paragraph 50 is rejected as irrelevant. Paragraph 51 is accepted. Paragraph 52 is contrary to the weight of the evidence. Paragraph 53 is contrary to the weight of the evidence. Paragraphs 54 through 57 are accepted. Paragraph 58 is rejected as a conclusion of law not supported by the record and contrary to the weight of the evidence. Paragraph 59 is rejected as a conclusion of law not supported by the record and contrary to the weight of the evidence. Paragraph 60 is accepted but is irrelevant. Paragraphs 61 through 66 are rejected as contrary to the weight of the evidence, irrelevant, or assuming facts or conclusions of law not evidence. Paragraph 67 is accepted. Paragraphs 68 through 73 are rejected as contrary to the weight of the evidence, conclusions based upon facts not in evidence, or irrelevant. Paragraph 74 is accepted. With regard to paragraph 75, it is accepted that Mr. Barna represented that drainage would be improved by the proposed easement drainage; as to the suggestion that Mr. Barna assured "no water" would be drained unto the property, such proposed fact is rejected. Paragraphs 76 and 77 are rejected as contrary to the weight of the evidence. The Board's decision to accept the concept was not solely based upon Mr. Barna's recommendation. Paragraph 78 is accepted. Paragraph 79 is rejected as irrelevant, beyond the scope of this proceeding, and to the extent it suggests Mr. Barna to be at fault, is contrary to the weight of the evidence. Mr. Barna was not responsible for drainage problems at the school. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT, BARNA: 1. Paragraphs 1, 2, 7 through 18, 20, 22, 23, 25 through 38, 41, 43, 46 through 56, 58 through 61, 66 through 71, 77 through 79, 93 through 97, 101, 102 through 105, 109 through 111, 113, 114, 116, 120, 123, 124, 127, 129, 130, 132, 135 through 146, 148, 149, 151 through 157, 159, 160, 162 through 165, 167 through 169, 171, 172, 174, 176, 177, 179, 181, 182, 186, 188, 189, 190, 191 are accepted. Paragraphs 3, 4, and 5 are accepted but are irrelevant. Paragraph 19 is rejected as irrelevant; reiteration of charges, not fact; or argument. With regard to paragraph 21, it is accepted that projects described in statement of cause were extent of Board consideration (if that); otherwise, not supported by record cited. 5. Paragraph 24 is rejected as irrelevant and argument. 6. Paragraph 39 is rejected as repetitive or argument. 7. Paragraph 40 is rejected as argument. 8. Paragraph 42 is rejected as conclusion of law. 9. Paragraph 44 is rejected as restatement of document not fact. 10. Paragraph 45 is rejected as argument or comment. 11. Paragraph 57 is rejected as restatement of document not fact and argument. Paragraph 62 is rejected as hearsay not supported by direct evidence. Paragraph 63 is rejected as restatement of document not fact and argument. Paragraph 64 is rejected as comment, not fact. Paragraph 65 is rejected as hearsay not supported by direct evidence. Paragraphs 72 and 73 are rejected as recitation of testimony. Paragraph 82 is rejected as restatement of document not fact and irrelevant. Paragraph 83 is rejected as irrelevant. Paragraph 84 is accepted but is irrelevant to this case. Paragraphs 85 and 86 are rejected as argument. Paragraph 87 is rejected as restatement of document not fact. Paragraph 88 is rejected as argument. Paragraph 89 is accepted but is irrelevant to this case. Paragraph 90 is rejected as restatement of document not fact. Paragraphs 91 and 92 rejected as argument and recitation of testimony. Paragraph 98 is rejected as irrelevant. Paragraph 99 is accepted but is irrelevant to this case. Paragraph 100 is rejected as restatement of document not fact. Paragraph 106 is accepted but is irrelevant to this case. Paragraphs 107 and 108 are rejected as restatement of document not fact. Paragraph 112 is accepted to the extent that the terms outlined were Mr. Barna's understanding but such terms were not reduced to writing in accordance with the Board's directive. Why the easement was signed prior to an agreement being drafted and approved by the Board is unknown. No evidence suggests Mr. Barna was responsible for the oversight. With regard to paragraph 115, see comment regarding paragraph 112 above. Paragraph 117 is rejected as irrelevant. Paragraph 118 is accepted but is irrelevant to this case. Paragraph 119 is rejected as restatement of document not fact. Paragraph 122 is rejected as argument. Paragraph 128 is rejected as not supported by evidence cited. Paragraph 131 is rejected as hearsay. Paragraph 133 is rejected as hearsay. Paragraph 134 is rejected as restatement of document not fact. Paragraph 147 is accepted but is irrelevant to this case. Paragraph 150 is rejected as restatement of document not fact. With regard to paragraph 155, the phrase "which ultimately recommended" should be added before "FMI" to clarify the statement instead of "recommending." Paragraph 158 is rejected as restatement of document not fact. Paragraph 161 is rejected as restatement of document not fact. With regard to paragraph 166, it should be added that at all material times to the review of the project before the letting of the job, the FMI project was considered as described. Paragraph 170 is accepted with the substitution of the word "acceptably" for "perfectly." It is the view of the trier of fact that no system can be perfect. Paragraph 173 is rejected as contrary to the weight of the evidence. From this record it would appear that Mr. Walker gave no definitive statements regarding the FMI project. Paragraph 175 is rejected as contrary to the weight of the evidence. It is accepted that Mr. Barna and Mr. Walker, together with other persons in authority, discussed the FMI project. Paragraph 178 is rejected as argument. Paragraph 180 is rejected to the extent it concludes funds were obtained by fraud; clearly that is the Board's position as no one authorized the final draw. Paragraph 183 is accepted but is irrelevant to this case. Paragraph 184 and 185 are rejected as argument not fact. Paragraph 187 is rejected as irrelevant and argument. Paragraphs 192 through 196 are rejected as argument, conclusion of law, or not supported by the weight of the evidence. COPIES FURNISHED: Stanley Wolfman David J. Wolfman STANLEY WOLFMAN, P.A. 200 W. Merritt Island Causeway Post Office Box 540513 Merritt Island, Florida 32954-0513 Louis V. Cianfrogna James H. Earp CIANFROGNA, TELFER, REDA & FAHERTY, P.A. Suite 102 1990 West New Haven Avenue Melbourne, Florida 32904 Abe Collingsworth Superintendent of Schools Brevard County School District 2700 St. Johns Street Melbourne, Florida 32940
The Issue Whether, in accordance with Section 4.1(l)(f), State Requirements for Education Facilities (SREF), Respondent has grounds to ratify the Superintendent's determination that Petitioner is delinquent, so as to be disqualified for a period of one year from bidding on any construction contracts with Respondent that require certification.
Findings Of Fact Introduction This case involves the construction of lighted aluminum walkway covers at several dozen of Respondent's existing schools. Walkway covers are the canopies that are erected over sidewalks to protect pedestrians from rain and sun. The construction of lighted walkway covers is not complicated. The job requires electrical, aluminum, drainage, and concrete work. The contractor lays a new sidewalk or widens an existing sidewalk; erects columns to support the cover or canopy, accommodate the conduit to drain stormwater from the covers to the ground, and support light fixtures; fabricates and installs the canopy; installs in-ground drainage features; excavates trenches for electrical service and drainage; and restores the construction site. Prior to the period in question, Respondent contracted with Walker Design & Construction Co. (Walker) for the construction of lighted walkway covers at Respondent's schools. In the summer of 2009, contemplating the construction of a large number of walkway covers over a short period of time, Respondent decided to broaden its pool of contractors. For schools with urgent needs, which constituted about one-quarter of the construction budget, Respondent assigned the work to Walker through its competitively bid annual contract that had been in place since 2007. Walker's work on these urgent-needs schools is not addressed in this recommended order. For the remaining schools, Respondent decided to issue a request for proposals to obtain as many as four contractors from which it could later solicit bids for groups of projects. Respondent sought design/build contracts, in which the contractors would assume the responsibility of designing lighted walkway covers that met the stated requirements of Respondent. Contract Documents RFP and Selection of Four Design Builders By Request for Proposal for the Design/Build of Aluminum Walkway Covers (RFP) published in August 2009, Respondent requested proposals by September 21, 2009, for the design, permitting, fabrication, and installation of lighted aluminum walkway covers over existing and new sidewalks at about 50 sites at an estimated budget, per site, of $50,000-$500,000 and at a total approved budget of $8 million. The RFP Instructions to Proposers is identified as Section 00100.2/ Paragraph 00100.7.2 states that Respondent will award up to four contracts "to establish a pool of qualified Design Builders to [construct] . . . walkway covers at locations requested by the District on an as needed basis" for the ensuing two years. Paragraph 00100.7.2 explains that Respondent will request the selected Design Builders to participate in an invitation to bid for each project that Respondent chooses to undertake. Paragraph 00100.9 provides that Respondent will issue a Notice to Proceed after the selected Design Builder3/ has submitted to Respondent the necessary documents. Paragraph 00100.9.2 requires the Design Builder, within 14 days after being awarded a specific project, to submit a performance bond, a labor and materials payment bond, proof of insurance, a list of subcontractors, a "preliminary progress schedule," and a "Schedule of Values," which is detailed in Paragraph 00700.9.2. This paragraph is in the General Conditions of the Contract for Design/Build, which is discussed below. In November 2009, Respondent selected four proposals submitted in response to the RFP. The winning contractors were Petitioner, Walker, Pirtle Construction Co. (Pirtle), and Hardy Industries. Hardy Industries later decided not to bid on any of the projects, so only three Design Builders competed for the projects. With each Design Builder, Respondent entered into a master contract, a copy of which had been attached to the RFP as a Sample Owner-Design/Builder Agreement. As Respondent identified specific projects, each Design Builder conceptualized the work sufficiently to prepare an estimated cost, so as to permit the Design Builder to submit a bid for the project. Respondent then selected the lowest bid for each project. Ultimately, Petitioner won contracts for 17 schools, Pirtle won contracts for six schools, and Walker won contracts for the remaining schools, which probably numbered at least 27. Owner-Design/Builder Agreement, General Conditions, Special Conditions, Supplementary Conditions, and Design-Build Criteria Owner-Design/Builder Agreement Petitioner and Respondent executed an Owner- Design/Builder Agreement on November 6, 2009. This document is identified as Section 000510 and contains Articles, not Paragraphs. References to Article 1, for instance, will thus be to Article 000510.1. Article 000510.1 provides that the Contract Documents are the RFP, the Owner-Design/Builder Agreement, the performance and payment bonds, the Design Builder's proposal, documentation submitted by the Design Builder before and after the awarding of the contract, General Conditions, Special Conditions, Supplemental Conditions, Educational Specifications, District Master Design Specifications and Criteria, each project's Design/Build Criteria Package, Preliminary and Final Drawings, the Project Manual, and all addenda and modification issued-- respectively--before and after the submittal of the Proposal. Article 000510.3 states that the Contract Time begins with the issuance of the Notice to Proceed, and the Work must be Substantially Completed by the date specified in the Notice to Proceed. Article 000510.3 adds that a failure to complete the Project in the specified time "shall result in substantial injury to the Owner," and a failure to meet the Substantial Completion deadline shall result in the payment of Liquidated Damages. 2. General Conditions As already mentioned, the General Conditions of the Contract for Design/Build is identified as Section 00700. Paragraph 00700.1.1.1. defines the Contract Documents as the Owner-Design/Builder Agreement, the General, Supplementary and other Conditions of the Contract, the Drawings, the project manual, and all addenda and modifications. Paragraph 00700.1.1.1 adds that Contract Documents "also include [the RFP], sample forms, the Proposal or portions of Addenda related to any of these, or any other documents, unless specifically enumerated in the Owner-Design Build Agreement, unless [sic] specifically enumerated in the Owner-Design/Builder Agreement." Count I cites Paragraphs 00700.4.12 and 00700.4.14, which are in the General Conditions. Article 00700.4.12 addresses the use of the site. The sole provision in this article is Paragraph 00700.4.12.1, which states: "The Design/Builder . . . shall not unreasonably encumber the Site with any materials or equipment." Article 00700.4.14 addresses cleaning up. The sole provision in this article is Paragraph 00700.4.14.1, which states: The Design/Builder at all times shall keep the Project and surrounding areas free from accumulation of waste materials or rubbish caused by his operations. At the completion of the Work, he shall remove all his waste materials and rubbish from and about the Project as well as all his tools, construction equipment, machinery and surplus materials. The Owner may, at any time deemed necessary, direct the Design/Builder to clean up the site to the Owner's standard. Count II cites Article 00700.8.2 and Paragraphs 00700.8.2.1 and 00700.8.2.2 of the General Conditions. Article 00700.8.2 addresses progress and completion. Paragraph 00700.8.2.1 states that all time limits in the Contract Documents are of the essence. Paragraph 00700.8.2.2 requires the Design Builder to start the work on the date of commencement, as defined in Paragraphs 00700.8.1.1 and 00700.8.1.2, and complete the work within the Contract Time. Paragraph 00700.8.1.1 provides that the Contract Time starts with the issuance of the Notice to Proceed. Paragraph 00700.8.1.1.3 defines Final Completion as the date set forth in the Proposal, unless the Owner agrees to amend this date. Paragraph 00700.8.1.2 defines Substantial Completion as the date certified by the Owner that construction is sufficiently complete in accordance with the Contract Documents that the Owner "can occupy or utilize the Project for its intended purpose." Paragraph 00700.8.1.2 adds that all warranties begin the next day. Count III cites Paragraph 00700.9.5.4 of the General Conditions. This paragraph requires the Design Builder, within ten days of receipt of payment from the Owner, to pay each Subcontractor, out of the amount paid to the Design Builder on account of the Subcontractor's Work, the amount to which the Subcontractor is entitled, less any retainage withheld by the Owner on account of such Subcontractor's Work. Paragraph 00700.1.1.1 defines a Modification as an amendment to the Contract that is signed by both parties, a Change Order, a "written interpretation" issued by the Owner under Paragraph 00700.2.2.8, a "written order for a minor change in the Work" issued by the Owner, and a "Constructive [sic] Change Directive." Paragraph 00700.13.1.1A defines a Change Order as a "written order to the Design/Builder signed by the Owner issued after execution of the Contract, authorizing a change in the Work or an adjustment in the Contract Sum or Contract Time." This provision warns, "The Contract Sum and the Contract Time may be changed only by a Change Order." Under Paragraph 00700.13.1.3, the cost or credit to the Owner may be determined by mutual agreement, unit prices, or costs plus a mutually acceptable fixed or percentage fee. In addition to these options, Paragraph 00700.13.1.4 authorizes the Design Builder to proceed with Work that is described by a written order. The compensation will be based on a determination of the Owner based on its analysis of the Design Builder's "itemized accounting . . . with appropriate supporting data" covering the cost of materials, cost of labor, bond premiums, rental value of equipment and machinery, and the additional cost of supervision and field office personnel directly attributable to the change. Paragraph 00700.13.1.4.1 limits the cost allowance for overhead and profit to no more than 15 percent of the net cost. The meaning of a "written instruction" that may support a Modification is unclear because there is no Paragraph 00700.2.2.8. Other provisions under Paragraph 00700.2.1 discuss the authority of the School Board designee to interpret the Contract Documents, but do not suggest that such interpretations would constitute Modifications. Paragraph 00700.13.2 addresses Construction Change Directives. According to Paragraph 00700.13.2.1, such a directive is a "written order signed by the Owner, directing a change in the Work and stating a proposed basis for adjustments, if any, in the Contract Sum or Contract Time, or both." Paragraphs 00700.13.2.3 and 00700.13.2.5 incorporate similar provisions to those discussed above in connection with Change Orders for determining the appropriate adjustment in the Contract Sum for a Construction Change Directive. Paragraph 00700.13.4.1 provides that, if the Design Builder wishes to claim an increase in the Contract Sum, it shall give the Owner written notice within 20 days after the start of the occurrence of the event giving rise to the claim. Any change in the Contract Sum resulting from such a claim shall be authorized by a Change Order. Untimely claims are waived. Other relevant provisions of the General Conditions deal with the School Board designee, through whom the Owner's instructions are transmitted to the Design Builder, according to Paragraph 00700.2.1.2. This paragraph states that the School Board designee has authority to act on behalf of the Owner only to the extent provided in the Contract Documents, "unless otherwise modified by written instruments in accordance with Subparagraph [00700.]2.2.15." The elusiveness of this provision--initially because the all-inclusive definition of the Contract Documents would likely capture any such written instrument--is reinforced by the nonexistence of Subparagraph 00700.2.2.15. Paragraph 00700.2.1.3 advises that the School Board designee will visit the Site at appropriate intervals to familiarize himself with the progress and quality of Work and determine if the Work is proceeding in accordance with the Contract Documents. Paragraph 00700.2.1.3 requires the Design Builder to inform the Owner of its progress by providing written monthly reports "defined as follows:." Nothing follows. Paragraph 00700.2.1.4 states that the School Board designee "will not be responsible for the Design/Builder's failure to carry out the Work in accordance with Contract Documents," nor will the designee "be responsible for or have control or charge over acts or omissions of the Design/Builder . . . ." Paragraph 00700.2.1.6 states that, "[b]ased on the School Board designee's observation and an evaluation of the Design/Builder's Application for Payment," Respondent will recommend the amounts owing to the Design Builder and issue a Certificate for Payment of such amounts. Paragraph 00700.2.1.7 identifies the School Board designee as the "interpreter of the requirements of the Contract Documents." The School Board designee has the authority to reject Work that fails to conform to the Contract Documents, according to Paragraph 00700.2.1.11, and he has the authority to determine the date of Substantial Completion, according to Paragraph 00700.2.1.13. However, the School Board designee may order only minor changes in Work and is authorized only to prepare Change Order Requests, as provided by Paragraph 00700.2.1.12. Paragraph 00700.2.1.9 states that, if the Project Manager cannot resolve any disputes relating to the execution or progress of Work or interpretation of Contract Documents, the dispute shall be referred to the Director of Program Management.4/ Paragraph 00700.3.3.1 states that if the Design Builder "fails to correct defective work as required in Paragraph 00700.13.2 or persistently fails to carry out the Work in accordance with the Contract Documents, the Owner . . . may order the Design/Builder to stop the Work or any portion thereof until the cause for such order has been eliminated[.]" Paragraph 00700.13.2 does not address defective work or the failure to correct such work. However, Paragraph 00700.14.2.1 provides: "The Design/Builder shall promptly correct all Work rejected by the Owner as defective or as failing to conform to the Contract Documents whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Design/Builder shall bear all costs of correcting such rejected Work." Paragraph 00700.3.4.1 authorizes the Owner to correct any deficiencies in the Design Builder's Work if the Design Builder fails to carry out the Work in accordance with the Contract Documents and fails to commence corrections within seven days of the receipt of written notice of such failure. Paragraph 00700.3.6.1 provides that a failure of the Design Builder "to make prompt payments to " Unfortunately, the sentence, which appears at the bottom of page 00700-7, is never completed. At the top of the next page is the beginning of Paragraph 00700.3.6.2, which provides, among other things, that the failure of the Subcontractors to comply with the Contract Documents is a ground for the Owner to find the Design Builder in default. Dealing with the Design Builder's failure to comply with the Contract Documents, Paragraph 00700.4.3.4 states: "The Design/Builder shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 00700.4.11. Paragraph 00700.4.11.1 identifies Shop Drawings as drawings prepared by the Design/Builder or a Subcontractor to illustrate some part of the Work. Paragraph 00700.4.10.1 requires the Design/Builder to maintain onsite a copy of all Drawings, Specifications, Addenda, Change Orders, and Modifications "marked currently to record all changes made during construction." Various provisions address the work schedule and progress payments. Paragraph 00700.4.9.1 requires the Design Builder to submit to the Owner a Construction Schedule, which must include at least three weeks for permitting of the Foundation, Shell, and Building. The Design Builder must promptly inform the Owner of any proposed change to the Schedule and revise the Schedule with ten days of Owner approval of such change. Monthly progress payments will not be approved until the Owner receives required updates to the Schedule. Paragraph 00700.4.9.3 requires the Design Builder to submit to the Owner, with each Application for Payment, a copy of the approved progress schedule marked to show the percentage completed for each part of the Work. The monthly submission must state the estimated total number of days that the Work is ahead of or behind the Contract Completion Date. This paragraph concludes: Should the Design/Builder fail to meet the approved schedule, documentation acceptable to the Owner shall be required of the Design/Builder to show just cause for delays or for additional time requests. Failure to comply with this subparagraph shall be sufficient grounds for the Owner to find the Design/Builder in substantial default and certify that sufficient cause exists to terminate the Contract or to withhold Payment to the Design/Builder until an updated progress Schedule acceptable to the Owner is submitted. Such failure shall not be cause for additional time. Paragraph 00700.9.3.1 requires the Design Builder to submit to the Owner an Application for Payment at least 14 days before the date of the sought progress payment. Prior to receipt of all payments after the first payment, the Design Builder must furnish to the Owner a Release of Lien/Verification of Payments proving that all labor and materials furnished through the date of the preceding requisition have been fully paid, less any retainage. Paragraph 00700.9.4.1 states that, within three days of receipt of the Application for Payment, the Owner shall issue a Certificate for Payment or notify the Design Builder why it is withholding a certificate. Paragraph 00700.9.4.2 states that the Certificate for Payment constitutes a representation by the Owner that the Work has progressed to the point indicated on the Application and the quality of the Work is in accordance with the Contract Documents, subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion. Paragraph 00700.9.5.1 requires the Owner to make monthly progress payments of 90% of the amount otherwise due within 11 days after issuance of the Certificate of Payment. Paragraph 00700.9.11.1 requires the Design Builder, prior to receiving the Final Payment, to furnish to the Owner one complete set of drawings "indicating all construction changes." Paragraph 00700.7.7.1 provides that Respondent's Building Department is the designated inspector of the Owner. The Building Department shall inspect the Work for compliance with the Florida Building Code and other legal requirements. The School District's designee shall inspect for compliance with the Contract Documents. Several provisions deal with the Contract Time, in addition to those cited in Count II. Paragraph 00700.8.1.1.1 states that the Contract Time starts with the date of issuance of the Notice to Proceed. Paragraph 00700.8.1.1.3 states that the Final Completion Date of the Project is the date established by the Proposal unless amended by consent of the Owner. Paragraph 00700.8.1.2 states that the Date of Substantial Completion of the Work is the date certified by the Owner when the construction is sufficiently complete in accordance with the Contract Documents, so the Owner can use the Project for its intended purpose. Paragraph 00700.8.3.1 provides that the Owner shall extend the Contract Time, by Change Order, for "such reasonable time as the Owner may determine" for any delays caused by the neglect of the Owner or Owner's subcontractor, Change Orders, or other justifiable cause. The Design Builder must present a claim for extension of time not more than 20 days after the commencement of the delay, or else the claim will be waived. Paragraph 00700.8.4.1 provides for Liquidated Damages for failing to meet the Substantial Completion and Final Completion deadlines. 3. Special Conditions As already mentioned, the Special Conditions is identified as Section 00830. These conditions apply directly to the RFP process and are identified as part of the Contract Documents. Count IV cites Paragraph 00830.1.4 of the Special Conditions. This paragraph incorporates, among other documents, the District Master Specifications. Likewise, Paragraph 00830.8.1 provides that the walkway covers will be constructed in accordance with the District Master Specifications, although it erroneously asserts that "[a] design criteria package is not applicable to this RFP." (Count IV's citation to "Article 2" is unclear, but unnecessary, as Paragraph 00830.1.4, as well as other provisions, incorporate the District Master Specifications into the Contract Documents.) Paragraph 00830.2.3 states that Respondent intends to award a two-year contract, subject to a renewal of two years, to as many as four contractors, whose proposals in response to the RFP are ranked the highest by an evaluation committee. Paragraph 00830.10.1 states that, as a prerequisite for final payment, the Design Builder must furnish the Owner with drawings of all "modifications, additions, deletions, etc. to construction which are at variance with or in addition to the information show on the original drawing," and all "modifications, additions, deletions, etc. to utilities, pipes, conduits, etc. for all site work and construction which are at variance with or in addition to information shown on original drawings." 4. Supplementary Conditions 45. The Supplementary Conditions of the Contract for Design/Build is identified as Section 00850. None of these provisions is relevant to this case. 5. Walkway Cover Design-Build Criteria The Aluminum Walkway Cover Design-Build Criteria Package (Design/Build Criteria) does not bear a section number. This document is attached to the RFP. (Respondent Exhibit 106) Paragraph 1.C of the Design/Build Criteria states that Walkway Covers shall cover the existing or specified width of indicated sidewalks plus at least one foot on either side. Paragraph 1.E requires that designs must comply with SREF, the Florida Building Code, the District Master Specifications, the Design Criteria, and other materials. The District Master Specifications and Design Criteria are discussed below. Paragraph 3 advises that Design Builders must provide enough information in their plans to be able to obtain Individual Building Permits. Paragraph 3.iii. warns, "This is a critical function in order to meet contract timeframes." Paragraph 3.iii.2. identifies the items for which the Design Builder may obtain approval from the Building Department prior to bidding. These items include engineering and drawings for typical concrete foundations and light fixtures. Paragraph 3.iii.4.a.i. requires the drawings to show all drainage discharge points from the walkway canopies. This provision adds: "If permitted, [the drainage discharge points] can discharge to a grassed area where there is an inlet that will route drainage to the storm sewer system. Otherwise the discharge must be collected by storm water leaders that directly discharge to the storm sewer system." Paragraph 3.iii.4.a.i.1 requires that all "storm water leader or collection design shall be clearly shown on the drawings." Paragraph 3.ix. requires the Design Builder to "[f]inish the construction completion punchlists in a prompt and workmanlike manner. Restore work sites equal or better." Paragraph 3.x requires the Design Builder to provide a simple Gantt chart illustrating a schedule of progress. The Design Builder must provide this schedule after the issuance of the Purchase Order and before the issuance of the Notice to Proceed. The schedule must show the design, the acquisition of the Building Permit, the fabrication of components, mobilization, foundation construction, the Covered Walkway installation, electrical/lighting construction, site cleanup and restoration, the Substantial Completion date, and a four-week period for completion of the final punchlists and issuance of the Certificate of Completion. Paragraph 3.xi. requires the Design Builder to provide a Schedule of Values after the issuance of the Purchase Order and before the issuance of the Notice to Proceed. The cost breakout must include Design and Permitting, fabrication, shipping and delivery, foundation construction, drainage construction, installation of covered walkway structures, installation of electrical and lighting features, and site restoration. Paragraph 3.xii. states that a PPE will accompany each progress payment. Paragraph 3.xiii. requires the Design Builder to provide Lien Releases for payments made in the previous progress payment. Paragraph 4 provides details of the scope of Work. Paragraph 4.i.10. requires the Work to include "[s]tormwater downspouts . . . with Concrete precast splash blocks where they are permitted to be used, or they shall be hard-piped to offsite discharge where necessary to avoid erosion and ponding issues on site." This provision adds that the latter option "may include construction of stormwater piping, yard drains and connection to existing drainage structures. . . . Positive drainage may be needed. . . . When drainage features are included, provide inlet and invert elevations and piping details." Paragraph 4.iii. addresses Lighting. Paragraph 4.iii.2. requires a "minimum illumination of 2 footcandles on the sidewalks being covered, to be verified with charted photometrics and computations." Paragraph 4.iii.3 specifies that "Light Fixtures shall be Model number LVP 58-1 PL T42- 12/277-HPF-Prismatic-WHT-WET-AL or equal." This specification is for a fluorescent fixture. The Design Builder is required to install the lights so they are "securely mounted to the canopy columns." This provision concludes: "Provide a submittal for District acceptance before procuring." Paragraph 4.vii. states that "Time is of the essence." This provision warns that Liquidated Damages are tied into the Contract Time, as set forth in the Purchase Order and Notice to Proceed. Attached to the Design/Build Criteria is Attachment 1: "List of Items That Can Be Approved Prior to Bid." This form instructs each Design Builder to submit to the Building Department various items prior to bidding for particular projects--obviously, in an effort to expedite permitting. The listed items are the Demountable Anchorage System, which would permit the nondestructive relocation of columns as portable buildings are removed or relocated; engineering and drawings for columns, beams and decks, as well as all standard installation features and designs, so that a Design Builder would later only have to submit drawings for site-specific improvements; the engineering and drawings for typical concrete foundations; and the proposed light fixtures and timers. District Master Specifications and District Design Criteria District Master Specifications The District Master Specifications provides requirements for several elements of construction. Each element bears its own Section number, but each section also bears parenthetically a number in the format "xx xx xx," which format, as noted above, is used in Count IV. Except for the Section cited in the Count IV, citations to the District Master Specifications shall not include the parenthetical identification number. Count IV cites Section 01540 (01 56 00) of the District Master Specifications. This Section addresses security barriers and enclosures. Section 01540 provides: SECTION INCLUDES Security Program Entry Control Personnel Identification SECURITY PROGRAM Protect work, existing premises, and Owner's operations from theft, vandalism, and unauthorized entry. Initiate program in coordination with Owner's existing security system at project mobilization. Maintain program throughout construction period until Owner acceptance precludes the need for Contractor security. ENTRY CONTROL Restrict entrance of persons and vehicles into Project site and existing facilities. Allow entrance only to authorized persons with proper identification. Maintain log of workers and visitors, make available to Owner on request. Coordinate access of Owner's personnel to site in coordination with Owner's security forces. PERSONNEL IDENTIFICATION Provide identification badge to each person authorized to enter premises. Maintain a list of accredited persons; submit copy to Owner on request. For Earth Moving, Paragraph 02200.3.16.A requires the contractor to "[u]niformly grade areas to a smooth surface, free from irregular surface changes." Paragraph 02200.3.19.A states that the contractor must "[r]emove surplus satisfactory soil and waste material, including unsatisfactory soil, trash, and debris, and legally dispose of it off Owner's property." For Storm Drainage Utilities, Paragraph 02700.1.1.C.1. requires the contractor to "[p]rovide storm water branches to roof leaders (8" dia. 1% min slope)." For Sodding, Paragraph 02938.1.2.B states: "Unless otherwise indicated, the Contractor is responsible for the repair of any existing low areas disturbed during the construction process." For Walkway Coverings, Paragraph 10532.1.4.A. requires the contractor to submit "shop drawings including plans, elevations and details, with dimensions and grades, for approval by Architect." The architect is an employee of the Building Department. For Summary of Work/Contractor Conduct on Campus, Paragraph 01010.1.3.B states: "Do not unreasonably encumber site with materials or equipment." For Procedures for Payment, Paragraph 01027.1.3.C. requires the use of data from the approved Schedule of Values. Paragraph 01027.1.4.D requires the submittal of Release of Lien waivers. For Contract Modification Procedures, Paragraph 01028.1.3.B. requires the contractor requesting a change in cost or time to provide sufficient data to support the request. Paragraph 01028.1.3.C lists data supporting computations as quantities of products, labor and equipment, taxes, insurance and bonds, overhead and profit, justification for any change to Contract Time, and credit for deletions from the Contract. Paragraph 01028.1.3.D lists supporting documentation for additional costs as the origin and date of the claim, dates and times that work was performed and by whom, time records and wage rates paid, and invoices and receipts for products, equipment and subcontracts. For Project Management and Coordination, Paragraph 01039.1.2.E requires the contractor to "[c]oordinate completion and clean up of Work of separate sections in preparation for Substantial Completion and for portions of Work designated for Owner's partial occupancy." For Alteration Project Procedures, Paragraph 01120.3.6.A. requires the contractor to "[p]atch or replace portions of existing surfaces damaged, lifted, discolored, or showing other imperfections." 2. District Design Criteria The District Design Criteria is sometimes referred to as the Design Criteria, but is not to be confused with the Design/Build Criteria. One of the sections, the Architectural Design Criteria, presents a broad set of criteria. Paragraph I.A explains that the District Design Criteria and District Master Specifications are to inform the preparation of design and contract documents for particular projects. Another section, the Electrical Design Criteria, presents a broad set of electrical criteria. Paragraph II.B.3.a. requires at least two footcandles of lighting for walkway covers and canopies. Paragraph II.B.3.e. requires that all exterior light fixtures be high-pressure sodium or metal halide. D. Interpretation of Contract Documents The various Contract Documents do not provide for the means by which to resolve any conflicts among the provisions of these various documents. The most notable such conflict in this case is between the specification of high-pressure sodium or metal halide5/ light fixtures in the District Design Criteria and the specification of fluorescent fixtures in the Design/Build Criteria. Among Respondent's employees, it is common knowledge that the documents that are more specific to a particular project control over more general documents that pertain to all projects. (Tr. 283, 1402, 3974). Thus, the Design/Build Criteria would control over the District Design Criteria. Petitioner's Projects For each of the 17 schools for which Petitioner submitted the lowest bid, Petitioner and Respondent entered into a brief Short Form Agreement, which states the Contract Price and various deadlines. For these 17 schools, the total Contract Prices exceeded $1.75 million. In January 2010, the parties entered into Short Form Agreements for Binks Forest Elementary School (Binks) for $51,280, Grassy Waters for $91,450, and Egret Lake for $145,345.26. In February 2010, the parties entered into Short Form Agreements for Spanish River for $233,439, Atlantic for $81,930, Jupiter Elementary School (Jupiter) for $18,748, Lighthouse for $129,796, Limestone Creek for $147,469, Watkins for $145,097, Independence for $212,272, Jupiter Farms for $69,957, Olympic Heights High School (Olympic Heights) for $97,946, and Poinciana Elementary School (Poinciana) for $86,901. In April 2010, the parties entered into Short Form Agreements for Lake Worth Middle School (Lake Worth) for $135,982, Lantana Elementary School (Lantana) for $24,918, Indian Pines Elementary School (Indian Pines) for $81,628, and Crosspointe Elementary School (Crosspointe) for $40,292. Based on the individual Short Form Agreements, the milestone dates for the submission of plans and drawings, the issuance of the building permit, and the installation of the cover for the 17 projects were as follows (all dates are in 2010): School Drawings Permit Cover Installed Binks February 5 March 15 April 15 Grassy Waters February 5 March 15 May 20 Egret Lake Spanish River Atlantic February March 31 March 31 5 March 15 April 31 April 31 May 31 June 31 June 31 Jupiter April 20 May 20 June 20 Lighthouse April 20 May 20 June 20 Limestone Creek April 20 May 20 June 20 Watkins April 20 May 20 June 20 Independence April 20 May 20 July 20 Jupiter Farms April 20 May 20 July 20 Olympic Heights March 31 April 31 June 31 Poinciana March 31 April 31 June 31 Lake Worth June 15 July 29 September 15 Lantana June 15 July 29 September 15 Indian Pines July 15 August 29 October 15 Crosspointe July 23 August 27 October 5 For the purpose of this procurement, Respondent divided all of the schools in the walkway cover projects into various groups. The 17 above-mentioned schools were in six groups. Group 2 included Binks, Grassy Waters, and Egret Lake. Groups 5 and 6 included Atlantic, Olympic Heights, Poinciana, Spanish River, Watkins, Independence, Jupiter, Jupiter Farms, Lighthouse, and Limestone Creek. Groups 7, 8, and 9 included Lake Worth, Lantana, Indian Pines, and Crosspointe. As can be seen from the construction milestone dates listed in the charts immediately above and below, the three schools in Group 2 were the earliest projects, and the four schools in Groups 7, 8, and 9 were the latest projects. Count I raises issues of Petitioner's site management and cleanup at Limestone Creek. Count II raises the issue of Petitioner's timeliness of construction at the previously identified Six Schools, which are within Groups 5 and 6.6/ Count III raises the issue of Petitioner's payment of a subcontractor and a supplier at an unspecified number of schools. Count IV raises an issue as to Petitioner's return of keys at Grassy Waters, Egret Lake, Atlantic, Lighthouse, Limestone Creek, and an 18th school, Dwyer. As noted in the Contract Documents, Respondent was to issue a Notice to Proceed as soon as Petitioner had submitted the necessary preliminary documentation for each project. As provided in the General Conditions and Owner-Design/Builder Agreement, the Contract Time for determining the Substantial Completion Date started with the issuance of the Notice to Proceed for each project. On their face, the Notices to Proceed provide the following dates for Commencement, Substantial Completion, and Final Completion for the 17 projects (all dates are in 2010): School Commencement Substantial Final Binks March 9 July 6 August 5 Grassy Waters March 9 July 6 August 5 Egret Lake March 9 July 6 August 5 Spanish River March 9 July 30 August 29 Atlantic March 9 June 30 July 30 Jupiter March 9 June 28 July 28 Lighthouse March 9 July 16 August 16 Limestone Creek March 9 July 16 August 16 Watkins March 9 July 15 August 14 Independence March 9 July 28 August 27 Jupiter Farms March 9 July 12 August 12 Olympic Heights March 9 July 13 August 12 Poinciana March 9 June 29 July 29 Lake Worth June 14 September 14 October 14 Lantana Indian Pines Crosspointe June 13 July 14 July 14 September October 5 September 13 29 October 13 November 4 October 29 As shown on this chart, the approximate duration of construction--following the receipt of a building permit--was 90-120 days. The preliminary documentation that resulted in the issuance of a Notice to Proceed did not include the drawings and plans on which a Design Builder would obtain a building permit for a particular project. Each Design Builder submitted these drawings and plans after the Commencement Date, as discussed in more detail below. As noted below, the Building Department was expected to take about 30 days to act on the drawings and plans. If a Design Builder were prepared to submit the drawings and plans at or a few days after the Commencement Date and, assuming that the drawings and plans were adequate to support the issuance of a building permit without the submittal of any revisions, the Design Builder would therefore have a building permit and could begin construction a little more than one month after the Commencement Date. For all but the last four projects, if Petitioner had obtained building permits in four or five weeks after Commencement, it would have had about three months to reach Substantial Completion on all but two of the projects and another month to reach Final Completion on all of the projects.7/ Respondent's Main Personnel and Departments At the time of the hearing, James Kunard was the director of the Facilities Services Department; at the time of the events in question, Mr. Kunard was the general manager of the Facilities Services Department. The director of the department was Martin Mets. Mr. Kunard directly supervised Terrence Bailey, who was the project manager for the walkway cover projects. Mr. Kunard and Mr. Bailey directly supervised the Facilities Management Coordinators, who served as the liaisons between the school principals and the Facilities Services Department. Although herself a Facilities Management Coordinator, Dorothy Banaszewski generally supervised the other coordinators because of her education in civil engineering, her licensing as a professional engineer, and her superior experience in construction. At the time in question, as previously noted, Ms. Swan was the director of the Purchasing Department. Additionally, Thomas Hogarth was the director of the Building Department, and Robert Upson was a professional engineer in the Project Controls Department. Supervising Mr. Kunard, Ms. Swan, Mr. Hogarth, and Mr. Upson was Joseph Sanches, who was the Chief of Support Operations. Mr. Sanches' supervisor was Joe Moore, who was the Chief Operating Officer. After executing Owner-Design/Builder Agreements with each of the Design Builders, the Facilities Services Department prepared the Design/Build Criteria to provide the Design Builders with the basic information necessary for them to price individual jobs in the course of preparing bids. Ms. Banaszewski conducted mandatory prebid site visits so that the Design Builders could acquaint themselves with the sites on which they would be bidding. During these visits, Ms. Banaszewski gave the Design Builders site plans showing the locations of the walkways to be constructed and where they would connect to existing buildings, as well as floor plans indicating the location of electric closets and energy management system devices. Ms. Banaszewski and Mr. Kunard also described the early phases of the walkway cover projects, including such critical matters as that the Building Department would require 30 days to examine applications and issue building permits. After the commencement of construction, the Facilities Services Department assumed a wide range of duties, including monitoring the work, enforcing the Contract Documents, processing Change Orders, preparing punchlists and monitoring their completion, and pursuing liquidated damages. Operating autonomously from Respondent's other departments, the Building Department had three discrete tasks in connection with the walkway cover projects. First, the Building Department issued building permits after assuring that the proposed construction, as evidenced by the drawings and other documentation submitted to the Building Department, conformed to the Florida Building Code, the District Master Specifications, and the District Design Criteria. In issuing building permits, the Building Department might examine plans for compliance with the Design/Build Criteria, but the primary responsibility for this review was with the School Board Designee. Because of the absence of a School Board Designee, ultimate responsibility for ensuring compliance with the Design/Build Criteria was with the Facilities Services Department. Second, the Building Department issued any stop work orders for work that did not conform to the drawings and other documentation on which a permit was based. Third, marking Final Completion, the Building Department issued a certificate of completion (CC) after determining that the construction conformed to the Florida Building Code and other applicable law, as well as the approved plans and drawings. The Building Department's issuance of a CC is not conditioned on the Design Builder's completion of any punchlist, unless a punchlist item raises an issue of compliance with the Florida Building Code or other law or compliance with the approved plans and drawings. In coordination with the principal of the school, the Facilities Services Department prepares a punchlist when the job reaches Substantial Completion. Substantial Completion occurs when Respondent is able to take beneficial possession of the improvements.8/ The job of ensuring the completion of the punchlist falls to the Facilities Services Department, so the incentive for the Design/Builder to complete the punchlist is not the obtaining of a CC, but the payment of the retainage and avoidance of a determination of delinquency or a suspension of its certification to bid on Respondent's projects. The Purchasing Department manages the purchasing of goods and services, including construction work. The Purchasing Department conducts solicitations, but only at the request of schools or other departments. After concluding the procurement process, the Purchasing Department turns over the duties of contract management to the Facilities Services Department, although the Purchasing Department remains available to provide support to the Facilities Services Department, as requested. Early in the walkway cover projects, Mr. Kunard and Ms. Swan discussed in detail how to structure the procurement of the necessary work. These discussions included the allocation of the schools with urgent needs to Walker under its existing design/build contract, and the use of new design/build contracts for work on the remaining schools. As will be seen below, the Purchasing Department must also approve change orders proposed by the Facilities Services Department. Thus, the Purchasing Department retains the ability to prevent the Facilities Services Department from agreeing to the purchase of additional work from a Design Builder, even if the related work is related to the work for which Respondent has already contracted. The Project Controls Department also exercises responsibilities as to change orders. The Project Controls Department is an independent watch-dog department whose financial-accountability responsibilities include assisting the Facilities Services Department in determining fair and reasonable costs for change orders. Mr. Upson provided assistance in these matters to Mr. Kunard. Timeframes of Counts I-IV The timeframe of Count II spans much of the time period covered by this case, which starts in first half of 2009. The timeframe of Count III starts in the summer of 2009, as the alleged claims of the supplier and subcontractor arose during this period. The timeframe of Count I covers most of the time period covered by this case. The timeframe of Count IV extends over the period that starts with the completion of work at the earliest schools to be finished. Count II: Timeliness of Construction at Spanish River, Watkins, Lighthouse, Limestone Creek, Independence, and Jupiter Farms Permitting As noted above, the milestones for drawings and permitting for five of the Six Schools are the same: April 20 and May 20, respectively. For Spanish River, these milestones are March 31 and April "31," respectively. The deadlines for Substantial Completion for the Six Schools ranged from July 12-30, 2010, and the deadlines for Final Completion for the Six Schools ranged from August 12-29, 2010. Slippage occurred immediately, as Petitioner did not timely submit drawings to the Building Department for any of the Six Schools. For Spanish River, Petitioner submitted drawings on April 27, 2010--about four weeks late. For the remaining five schools, Petitioner submitted drawings on May 27, 2010-- about five weeks late. The main reason for the loss of time was probably that Petitioner's aluminum walkway subcontractor unexpectedly discontinued business in the first quarter of 2010. According to the minutes of a meeting that took place on March 4, 2010, Hydn Rousseau, the president of Petitioner, and Ed Vlock, the construction manager of Petitioner's walkway cover projects, discussed this development with Mr. Kunard and Mr. Bailey. Mr. Kunard warned that there would be financial consequences if Petitioner tried to back out of its contractual obligations. According to the minutes, Mr. Rousseau and Mr. Vlock assured Mr. Kunard they intended to perform their obligations under the contracts, but needed the help of the Facilities Services Department to urge the Building Department to expedite the issuance of building permits. This request was premature. As noted above, from the time of this meeting, nearly eight weeks would pass before Petitioner would submit its first set of plans and drawings--for Spanish River--and 12 weeks would pass before Petitioner would submit the plans and drawings for the other five schools. The minutes document an alternative proposed by Respondent's representatives: for each project, Petitioner could request an extension of the Contract Time, free of liquidated damages, as long as the Contract Price did not change and the construction was completed before school started in August. The minutes note: "[Petitioner] will consider this, noting that it is juggling the timing of projects to ensure profitability." This is an early appearance of Respondent's concern with time juxtaposed with Petitioner's concern with costs. However, Petitioner accepted Respondent's offer. By letter dated March 4, 2010, regarding the "Design/Build of Aluminum Walkway Covers," Petitioner asked for an extension of the time stated in "the" Notice to Proceed due to the need to substitute Perfection Architectural Services (Perfection) as the new aluminum walkway subcontractor "for Projects related to RFQ awarded on November 3, 2009." This reference suggests that the request is for all 17 projects. The March 4 letter states that work will start by June 5, 2010, and will be complete prior to the resumption of school on August 17, 2010. The letter states that Petitioner will honor its bid prices, but asks for a waiver of liquidated damages for any delay. By undated memo from Mr. Bailey to Petitioner, Respondent granted the request to substitute Perfection for the former aluminum walkway subcontractor. The memo requests a revised schedule of completion of work and states that all construction must be completed by August 1, 2010. The memo concludes that Respondent will issue a Notice to Proceed on receipt and acceptance of the revised schedule. Although Mr. Bailey uses the singular form, it is likely that he meant to refer to all 17 of Petitioner's projects.9/ But for the problem with the original aluminum walkway subcontractor, confusion caused by Respondent's representatives might have caused some delay in the start of Petitioner's projects. In early April 2010, Shams Moghadam, a professional engineer assigned to Respondent's Building Department, met with Malcolm Cooper, a civil engineer employed by the civil engineering consultant hired by Petitioner. In this meeting, Mr. Moghadam "confirmed" to Mr. Cooper that Petitioner was prohibited from mounting light fixtures on wet columns, which are those columns that support drainage conduits routing stormwater from walkway canopies to in-ground drainage features. By email dated April 12, 2010, to Mr. Moghadam, as well as Mr. Rousseau and Mr. Bailey, Mr. Cooper documented this communication. According to Mr. Moghadam, Mr. Cooper stated that he did not want to locate light fixtures on wet columns. This is Mr. Cooper's recollection, as well. (Pet. Ex. 233, p. 81) But the process by which Mr. Cooper's preference became Respondent's prohibition is unclear. Two things are clear, though. First, wet columns may support light fixtures without posing any increased risk of electrocution; for many years, Respondent has allowed this practice at its schools. Second, by his own admission, Mr. Moghadam never contacted Mr. Cooper to "correct" the prohibition stated in his April 12 email. This failure by Mr. Moghadam led to Respondent's implementation of the prohibition and its label in this recommended order as the Moghadam Prohibition. The Moghadam Prohibition had a significant impact on the lighting design of a project. Generally, every other column was wet, so the prohibition against locating light fixtures on wet columns removed half the columns as locations for light fixtures. A Design Builder suddenly found itself with the challenge of meeting the existing criteria of two footcandles at ground level using a specified fixture of a specified wattage or an approved substitute--all while meeting the new criterion of the Moghadam Prohibition. Mr. Moghadam seems to have been aware of the difficulties in satisfying all these criteria. Mr. Cooper's April 12 email continues: Shams suggested considering the same fixture but with two 26 Watt bulbs, rather than a single 42 Watt bulb.[10/] See attached technical data sheet Lamp No. 2PLC26. You will therefore need to revise the photometric analyses for Groups 2 and 4, as a priority, avoiding the wet columns meeting the 2 foot candle minimum criterion. We can then incorporate these changes on our electrical drawings along with any . . . Building Dept. comments, which we may receive, in the same revision. As is evident from these comments, the timing of the Moghadam Prohibition affected the timing of the plans and drawings for the first three schools, which are in Group 2, rather than any of the Six Schools. Mr. Cooper believed that the lighting changes necessitated by the Moghadam Prohibition, if done promptly, could be incorporated into any revisions required by the Building Department to issue the building permits for the three schools in Group 2 and posed little, if any, impact in terms of timing on the remaining schools, including the Six Schools. Mr. Cooper was right. The Moghadam Prohibition had no significant impact on the timing of the Six Schools. As of April 12, Petitioner still had eight days until the milestone of submitting drawings for five of these schools. For Spanish River, the milestone had passed on March 31--unmet due to reasons, such as the loss of the original aluminum walkway subcontractor, having nothing to do with the as-yet-undeclared Moghadam Prohibition. As indicated below in the discussion of the early phase of the Spanish River project, the time spent in incorporating design changes necessitated by the Moghadam Prohibition likely amounted to no more than ten days. Unsurprisingly, due to Petitioner's late submittals of plans and drawings, the building permits were also late-- through no fault of Respondent. The Building Department issued the building permit for Spanish River on June 8, 2010. The milestone for this permit was April "31"--i.e., May 1. The Spanish River project, which was behind by 27 days when Petitioner submitted the plans and drawings, was now behind by 38 days. The Building Department withheld approval of the initial drawings because, among other things, they failed to depict the connection of proposed drainage pipes to existing pipes and failed to specify all main drainage leader sizes and lengths--deficiencies that were not corrected until June 28--20 days after the Building Department issued the permit. The criticality of these missing items emerges below in the discussion of the stop work order that was later issued at Limestone Creek. The Building Department issued the building permits for Lighthouse, Limestone Creek, Watkins, Independence, and Jupiter Farms--the remaining five schools of the Six Schools--on June 24, 2010. The milestone for these permits was May 20. These five projects, which were behind by 37 days when Petitioner submitted the plans and drawings, were now behind by 35 days. The Facilities Services Department employees urged the Building Department to issue permits, even in the face of missing items. In June, Mr. Kunard and Ms. Banaszewski offered Mr. Hogarth any and all assistance necessary to expedite the issuance of the building permits. By email dated June 23, 2010, to Mr. Hogarth, Ms. Banaszewski stated that Petitioner "is geared up and ready to roll. They have been installing at an incredible rate. They feel they can still meet their completion dates if they have permits this week. We are very anxious for them to proceed because they can move much more quickly during the summer when school is not in session." Later the same day, Victor Chodora, an architect in the Building Department, noted that the plans for Watkins, Independence, Jupiter Farms, and Lighthouse were missing drainage details--again, as noted below, items that turned out to be important regarding the stop work order described below. Trying to expedite the permits, though, Mr. Chodora stated: "I suggest that [Petitioner] at least send email indicating that revised plans addressing the [missing] items will be submitted and approved prior to the first inspection for underground drainage. With the understanding that [for] the next project the items need to be addressed before permit." Yielding to the pressure brought to bear by the Facilities Services Department, later on the same day, Mr. Hogarth emailed Mr. Kunard: "I will issue the permits subject to the following condition: [Petitioner] first must send me a message accepting the plan review comments and agreeing to submit revised drawings and obtain approval prior [to] calling for the first inspection." By email to Mr. Hogarth at 7:35 a.m. the next day, Mr. Vlock accepted the conditions and thanked Mr. Hogarth for his consideration in this matter. It is only for these extraordinary efforts and accommodations of the Building Department that Petitioner obtained the building permits for the Six Schools as soon as it did. Attempting to reinforce an element of uniformity on the aluminum walkway cover projects, on May 25, 2010, Mr. Bailey sent an email to the principals of all four Design Builders, including Mr. Rousseau and Mr. Vlock. In its entirety, the email states: [A]s I inspect the projects in construction I will be taking special note [of] a few of the specific design criteria that we have outlined on each project, i.e., no splash block and all drainage connected with 8" minimum pipes except at parent drop off and bus loops, No High Pressure Sodium Lights, demountable column footings, and no lights on wet columns. If you have a project under this current contract that may have missed my eye while reviewing your drawings for these issues please review and revise the design accordingly as this will not be acceptable at final inspection. In a note to Mr. Moghadam and Patrick Joyce, a civil engineer in the Building Department, Mr. Bailey asked for the assistance of the Building Department to ensure that these criteria were met as projects proceeded through the Building Department's periodic inspections. This seemingly innocuous email is interesting for three reasons. First, Mr. Bailey is acknowledging that he may have missed noncompliances in Design Builders' plans and drawings. As noted above, Petitioner's plans and drawings for Spanish River had been submitted one month earlier, and its plans and drawings for the remaining five schools were submitted two days after the issuance of Mr. Bailey's email. Second, even though the Building Department is not responsible for this task, Mr. Bailey tried to enlist its aid in ensuring that the work conformed to the Design/Build Criteria and such additional requirements, such as the Moghadam Prohibition--even if such assistance were provided as late as the point at which the project is otherwise eligible for a CC. Third, Mr. Bailey provided a clear statement that the lighting was not to be high-pressure sodium and the drainage pipes were to be 8" in diameter.11/ In response to his copy of Mr. Bailey's May 25 email, also by email dated May 25, Mr. Kunard advised the Design Builders, including Mr. Rousseau and Mr. Vlock, that Respondent had required light fixture "Model number LVP 58-1 PL T42- 120/277-HPF/Prismatic-WHT-WET-AL or equal. . . . Provide a submittal for District acceptance before procuring." Mr. Kunard's repetition of the Design/Build Criteria requirement of a 42-watt fluorescent bulbed fixture regrettably fails to respond to Mr. Cooper's statement that Mr. Moghadam had suggested two 26-watt bulbs in place of a single 42-watt fixture. Perhaps Mr. Bailey had failed to copy his supervisor, Mr. Kunard, with Mr. Cooper's email. By email dated July 26, 2010, to the Design Builders, including Mr. Rousseau and Mr. Vlock, as well as Mr. Kunard and Ms. Banaszewski, Mr. Bailey noted that a contractor had proposed a different light fixture from the 42-watt fluorescent lamp specified in the "RFP." The contractor had proposed an 85-watt fluorescent lamp, and Respondent had accepted the change to avoid delaying the projects. The email allows all Design Builders to use this fixture because its use reduces the number of required light fixtures, even though the fixture "does not look as ecstatically as pleasing." Mr. Bailey's etymological innovation aside, this email illustrates two principles of later importance in this case: first, it is an example of Respondent's treating all contractors fairly by notifying all of them of the option of using this cheaper solution to the lighting design; and second, it is an example of Respondent's recognition of the need for expediting construction to outweigh other considerations--here, aesthetics. The force of the first principle, though, is somewhat attenuated by the apparent fact that Respondent had approved the single 85-watt solution two months prior to informing other contractors that this was an option. As is true of much else in their discharge of contract-management responsibilities in this case, Respondent's representatives appear to have failed to have advised other Design Builders of the availability of the 85-watt solution due to mere neglect, not favoritism. Summer 2010: Construction Activity Petitioner's pay applications approximate the progress of Petitioner's work. With each pay application at each job, Petitioner represented the extent to which it had completed the work by type, such as site drainage or concrete. The record does not disclose any disputes concerning these pay applications, so they are suitable guides to Petitioner's progress on each job. During the early phase of construction, Respondent issued PPEs coinciding with the submittal of the pay applications; Respondent later discontinued the issuance of PPEs. Petitioner started actual construction first at Spanish River among the Six Schools. The first pay application that Petitioner submitted for Spanish River is dated April 13, 2010. The payment application seeks full payment for bonds and insurance premiums and structural drawings, but not the civil and electrical drawings being prepared by Mr. Cooper's civil engineering firm. Ten days later, on April 23, Petitioner submitted its second pay application for Spanish River. This application includes the charge for the civil and electrical drawings-- suggesting that Mr. Cooper was able to incorporate the Moghadam Prohibition in the 10-day interval between the first and second pay applications. (Likely, if it could have done so, Petitioner would have included these drawings in the initial pay application because it did so with the remaining five schools when it submitted their initial pay applications in mid-May, as detailed below.) On May 3, 2010, Ms. Banaszewski issued a PPE for Spanish River and assigned Petitioner an average score of 2.8. A "0" is "unacceptable, a "1" is "poor," a "2" is "satisfactory," a "3" is "good," and a "4" is "excellent." Petitioner's lowest score, a 2, was for scheduling and coordination. On May 25, Ms. Banaszewski issued PPEs for the other five schools; the average scores and scheduling and coordination scores for these five schools were the same as for Spanish River. On May 14, 2010, Petitioner submitted its initial pay applications for four of the other five schools. For Watkins, the date of the first pay application is April 13, 2010. Petitioner submitted its third pay application for Spanish River on June 10, 2010. At this point, although work at Spanish River was further along than at the other five schools, Petitioner largely synchronized the submittal of pay applications for the Six Schools for the remainder of the summer. The following chart reflects the pay applications submitted on May 14 (April 13 for Watkins and June 10 for Spanish River), July 31, and September 1 (except for Jupiter Farms, for which Petitioner submitted no pay application between July 31 and October 1).12/ Under each date column, the dollar amount represents the value of the work billed on that date, and the percentage represents the percentage of work remaining. The percentage of work remaining reflects the work already billed plus the value of stored materials. General Conditions $5205-70% $6246-34% $5899--0% Site Drainage $2968-70% $5934-10% $991--0% Concrete $13,500-70% $31,500-0% done Aluminum Walkways $10,212-70% $1506-69% $11,750-7% Electrical $2235-70% $745-60% $0-60% School May 14 July 31 September 1 Spanish River Watkins General Conditions $0-100% $5021--28% $1000--14% Site Drainage $0-100% $5603---0% $0---0% Concrete $0-100% $21,978--0% $0---0% Aluminum Walkways $0-100% $23,656--0% $0---0% Electrical $0-100% $8640--40% $4608---8% Independence General Conditions $0-100% $6640--58% $6165-29% Site Drainage $0-100% $9396---0% done Concrete $0-100% $48,000--7% $0-7% Aluminum Walkways $0-100% $4269--25% $25,002-0% Electrical $0-100% $2462--67% $2462-37% Limestone Creek General Conditions $0-100% $1500--83% $3322-44% Site Drainage $0-100% $0--100% $3648-20% Concrete $0-100% $0--100% $27,145-13% Aluminum Walkways $0-100% $3090--23% $0-23% Electrical $0-100% $0--100% $7208-60% Lighthouse General Conditions $0-100% $3000--68% $1100-57% Site Drainage $0-100% $0-100% $4889--0% Concrete $0-100% $0-100% $11,818-50% Aluminum Walkways $0-100% $2587--26% $0--26% Electrical $0-100% $0-100% $7840-60% Jupiter Farms General Conditions $0-100% $1200--79% no pay app. Site Drainage $0-100% $0-100% no pay app. Concrete $0-100% $0-100% no pay app. Aluminum Walkways $0-100% $1493--26% no pay app. Electrical $0-100% $0-100% no pay app. The June 10 pay application for Spanish River incorporates Change Order #1: to avoid incurring sales tax, Respondent would pay Perfection directly the $119,000, less sales tax, scheduled to be paid this subcontractor for aluminum fabrication and installation. Change Order #1 reduces the Contract Price by this amount, less sales tax. This process is referred in the record to as a Direct Purchase Order (DPO). The July 31 pay application for Spanish River incorporates Change Order #2, which reduces the Contract Price by the sales tax avoided through the use of the DPO. On July 23, 2010, Respondent and Petitioner entered into Change Order #3, which is for additional canopies that were required when Respondent was forced to alter its sidewalks at Spanish River due to requirements of the Americans with Disabilities Act. Change Order #3 added about $14,000 to the Contract Price, but did not extend the Contract Time. The PPEs for Spanish River reflect Respondent's satisfaction with Petitioner's work. A PPE for Spanish River dated June 30, 2010, assigned 3.5's in all categories. Another PPE dated July 27, 2010, assigned 3.2's for the average score and for scheduling and coordination. The July 31 pay applications for the remaining five schools disclosed the use of DPOs to pay Perfection at these schools, as reflected in Change Order #1 and #2 for all schools but Lighthouse. (Lighthouse's change orders were numbered differently due to the presence of two change orders for additional work not relevant to this case.) On July 27, 2010, Respondent issued PPEs for Watkins and Independence with nearly identical scores. At Watkins, Petitioner earned an average score of 2.9 and a score of 3.0 for scheduling and coordination. At Independence, these respective scores were 3.0 and 2.8. Other PPEs at this time are not included in Respondent Exhibit #67. On August 31, Respondent issued PPEs for Independence, Lighthouse, and Limestone Creek. The average score for Independence was 3.7 with 3.5 for scheduling and coordination. The average score for Lighthouse was 3.3 with 3.0 for scheduling and coordination. The average score for Limestone Creek was 3.4 with 3.3 for scheduling and coordination, 3.5 for project management, and 3.0 for customer sensitivity. The latter scores were improvements on the same scores issued for this school--and all the others--on May 25, 2010, when Petitioner earned a 2.5 for project management and a 2.3 for customer sensitivity. Summer 2010: Meetings Between Petitioner and Respondent As spring wore into summer, Petitioner continued to show little regard for the Contract Times applicable to the Six Schools. Despite the early loss of five weeks' time on jobs whose duration was only 90-120 days, nothing in the record discloses any concerns among Petitioner's representatives about the increasingly likely prospect that they would not achieve timely Substantial Completion and Final Completion for the Six Schools. At a meeting on June 10, 2010, with Mr. Kunard, Mr. Bailey, Ms. Banaszewski, and others apparently from the Facilities Services Department, Mr. Rousseau and Mr. Vlock addressed costs, not time. Mr. Vlock and Mr. Rousseau complained that Respondent was not dealing fairly with Petitioner. Specifically, they claimed that Respondent had allowed Walker to design drainage with a structural engineer, rather than a civil engineer, and they wanted to know if a civil engineer was required by the Building Department. Respondent's representatives logically suggested that Mr. Rousseau and Mr. Vlock take this question to the Building Department, but Mr. Rousseau declined, expressing a fear of reprisal from the Building Department. The Facilities Services Department representatives assured Mr. Rousseau and Mr. Vlock that the Building Department representatives were professionals and would not seek retribution against Petitioner for such inquiries. The Facilities Services Department staff added that the design/build method allowed Design Builders some flexibility in approaching design matters. They noted that Walker had been designing walkway covers for decades and Petitioner was new to the industry, implying that Walker might find the process easier to navigate. Petitioner's representatives countered that their civil engineer cost them $4000 for each job, and this expenditure made them uncompetitive. Petitioner's representatives asked to change its design submittals so it could be competitive. The minutes state that Respondent's representatives replied "that submittals only need to meet minimum requirements." This complaint of unfair treatment is groundless for the reasons stated at the time by Respondent's representatives. Additionally, the claim of competitive harm arising from the employment of a civil engineer is unpersuasive. Much more than $4000 separated each of Petitioner's winning bids from each of Walker's bids, at least for the projects as to which such information is available. For the Group 6 schools--Jupiter Farms, Limestone Creek, Jupiter, Lighthouse, Independence, and Watkins--a bid tabulation appears in Respondent Exhibit #62. For Jupiter Farms, Petitioner's bid of $74,818 was more than $10,000 less than the next lowest bid--Walker's bid of $85,421. For Limestone Creek, Petitioner's bid of $157,410 was almost $8000 less than the next lowest bid--Walker's bid of $165,341. For Lighthouse, Petitioner's bid of $148,427 was more than $30,000 less than the next lowest bid--Pirtle's bid of $179,312--and more than $50,000 less than Walker's bid of $198,650. For Independence, Petitioner's bid of $225,398 was more than $20,000 less than the next lowest bid--Walker's bid of $247,003. For Watkins, Petitioner's bid of $160,087 was more than $9000 less than the next lowest bid--Pirtle's bid of $169,183--and almost $22,000 less than Walker's bid of $181,897. For Jupiter, which is the only one of these six projects for which less than $4000 separated Petitioner's bid ($19,852) from the next lowest bid--Walker's bid of $21,784--the contention that the savings associated with using a structural engineer instead of a civil engineer would have saved 25% of the entire, relatively modest contract price cannot be credited. This claim of unfair treatment, though, dramatically underscores Petitioner's concern with costs, not time. Except for an apparently minor matter involving a possible patent infringement, which may have caused a delay of a "few days," nothing discussed at the June 10 meeting addressed the significant delays that already existed at the start of construction at the Six Schools. Petitioner's proposal that it resubmit its drawings and plans--somehow, to avoid the added cost of a civil engineer--would have thrown all Six Schools further behind schedule. At this point, as noted above, Petitioner had just received a building permit for Spanish River, where it was already 38 days behind schedule. Even if Petitioner could have submitted new drawings and plans on June 10, this submittal would have added another 30 days to this deficit, leaving Petitioner two months behind schedule. For the remaining five schools, for which the drawings had been submitted only two weeks earlier and no permits had yet issued, the additional delay would have been about 16 days and would have resulted in a total of about 50 days behind schedule for each of these projects. For their part, the Facilities Services Department employees do not seem to have seriously entertained the prospect of the resubmittal of plans and drawings, but instead recognized the emerging time issues and tried to spare Petitioner the consequence of its tardiness. As already noted, at this time, Facilities Services Department employees contacted the Building Department and urged expedited processing of the pending permit applications. On July 15, 2010, Mr. Kunard sent a certified letter (and email) to Mr. Rousseau advising that it appeared that Petitioner would not be able to complete on schedule the work at nine schools, including, among the Six Schools, Watkins, Jupiter Farms, Lighthouse, and Limestone Creek. The letter reminds Petitioner of the provisions for liquidated damages in the General Conditions and advises that, if Petitioner feels an extension of time were justified, it should submit the information required by Paragraph 00700.8.3. The letter concludes by requesting an explanation or a submission of a recovery schedule for how Petitioner intended to meet the time requirements of the Contract Documents. On July 15, 2010, Mr. Rousseau submitted a letter to Mr. Kunard acknowledging receipt of his letter. Mr. Rousseau's letter states that, at a June 30 meeting involving the Building and Facilities Services departments, as well as Petitioner, "all questionable design issues were resolved, standardized, and documented." Mr. Rousseau's July 15 letter proceeds with the request for an extension of time. In its entirety, the request states: "At this time we are requesting an extension." The letter invites Mr. Kunard to contact Mr. Rousseau or Mr. Vlock if Mr. Kunard has any questions or requires additional information. The letter discloses that Mr. Rousseau had not bothered to read the provision of the Contract Documents to which Mr. Kunard's email had referred him. The next day, by letter dated July 16, 2010, to Ms. Swan, Mr. Rousseau requested that Respondent place Petitioner on an early-payment program. The program would provide Respondent with a .75% discount for payments of payment applications within five days of receipt, which, as noted above, is six days fewer than the 11 days allowed by the Contract Documents. Respondent appears to have paid ensuing pay applications within this timeframe whenever circumstances permitted. Contrary to Petitioner's later contention, this election by Petitioner did not amend the Contract Documents so as to obligate Respondent to pay with five days of receipt of pay applications. By email dated September 8, 2010, to Mr. Rousseau and Mr. Vlock, Mr. Kunard asked if they had submitted a request for an extension of time with justification, as required by the General Conditions. This letter implicitly informs Mr. Rousseau that his July 15 email was not such a request. Mr. Kunard's email identifies five schools that had been late, including Watkins, Jupiter Farms, Lighthouse, and Limestone Creek, and three more schools, including Spanish River, that were now late. Stop Work Order On August 27, 2010, Building Department plumbing inspector Dwayne Betts inspected the Limestone Creek work site and found that Respondent had installed 3" drainage pipes of 40- 50' in length where its approved drawings had specified 8" drainage pipes. Mr. Betts failed the work for its noncompliance with the approved plans. Mr. Betts expected Petitioner to call for a reinspection, but it did not do so. On September 8, 2010, Mr. Betts revisited the Limestone Creek work site for another inspection and found that Petitioner had not corrected the noncompliant work. Mr. Betts described the situation to his supervisor, Terry Summerell, who is the senior construction inspector in the Building Department. Mr. Summerell advised Mr. Betts to issue a stop work order. No one in the Building Department notified Mr. Kunard that Petitioner's Limestone Creek project was about to receive a stop work order, and Mr. Kunard was initially unaware of its issuance. (Tr. 1490) On September 8, 2010, evidently at the request of Mr. Betts, the Building Department issued a stop work order on the Limestone Creek site. The stop work order states at the top in boldface: "STOP WORK." The next line states: "The work now in progress is in violation of the following code: " Following this language are five boxes. The issued order shows a check in the box beside "plumbing." For corrective action, the issued order advises any interested person to contact Mr. Hogarth. The parties dispute whether the issued order prohibited all work at the Limestone Creek work site or prohibited only further plumbing work at the Limestone Creek work site. Petitioner is correct that the issued order prohibited all further work. The top of the notice states unconditionally to stop work. The explanation for the order is that the work underway violates the plumbing code, but this explanation does not limit the scope of the unconditional command at the top of the notice. Two days later, on September 10, Building Department structural inspector, Adrian Morse, inspected the Limestone Creek work site and noticed that the boots of wet columns varied from the approved drawings. He failed this work too. Although this action would provide additional support for the issuance of the stop work order two days earlier, as noted below, the issue concerning the wet column boots was resolved prior to the issue involving the size of the drain pipe, so the pendency of the dispute concerning the boots never held up work. Also on September 10, Mr. Cooper emailed a letter to Mr. Kunard claiming that Petitioner was entitled to an increase in the Contract Price for Respondent's insistence that Petitioner install 8" pipes and for Respondent's requirement of fluorescent lighting that effectively resulted in the need to mount a light on every column. A meeting took place on September 10, 2010, among Mr. Rousseau, Mr. Vlock, Mr. Mets, Mr. Kunard, Ms. Banaszewski, Mr. Hogarth, Mr. Upson, and other officials. According to the "Background" section of the minutes of this meeting, the main concern of Petitioner was costs, and the sole concern of Respondent was timeliness. Petitioner raised concerns about lighting fixtures and the size of drainage pipes. As for the lighting fixtures, Petitioner noted a conflict between the lighting fixture designated in the Design/Build Criteria and the District Master Specifications. This had been resolved by Mr. Bailey's email of May 25, as noted above. Petitioner complained about the Moghadam Prohibition. As explained above, the inception of this unfortunate specification was mid-April and did not have a significant impact on the timeliness of any of the Six Schools. But Petitioner's complaint was justified to the extent that it contended that the Moghadam Prohibition added unnecessary costs to each project. Relying in part on Mr. Cooper's letter dated September 10, Petitioner also objected to changes to the means by which levels of illumination were calculated. The record permits no means to credit or discredit this lighting complaint. Turning to the size of the drainage pipe, Petitioner estimated a $100,000 cost difference in 8" pipe versus 4" pipe. This complaint, if true, is irrelevant because Petitioner's drawings specified 8" pipe, as did the Contract Documents, as noted above. Petitioner complained that the Building Department only "began enforcing" the 8" requirement recently. The complaint is at least partly correct, although it is not clear that enforcement actually started with Petitioner's project. Mr. Kunard testified that, to some extent, Walker and Pirtle had also installed drainage pipes smaller than 8" in diameter. (Tr. 1998) Interestingly, Mr. Betts testified that he has never learned that any Design Builder had installed drainage pipes smaller than specified on its plans. (Tr. 3725) Mr. Betts' point may have been only that plans for some of the earlier walkway cover projects specified small drainage pipes--not that the Building Department allowed any Design Builders to install smaller pipes than specified in its plans. Mr. Cooper testified that Mr. Rousseau showed him Pirtle's walkway cover plans that depicted 4" pipes for at least one of its walkway cover projects. (Pet. Ex. 233, pp. 58-59) But Mr. Cooper also recalled that Petitioner's plans for one of its early projects were based on 4" pipes. (Id. at p. 58) At this point, it is impossible to determine the size of the drainage pipes specified in the drawings of Walker and Pirtle; it is clear only that all three Design Builders installed pipes smaller than 8" in diameter, and Petitioner was the first whose smaller pipes were discovered in a plumbing inspection. The larger point is that Petitioner did not install the pipes specified in its drawings.13/ This appears to have been a matter of mere neglect. Mr. Cooper testified that he was surprised at this fact and determined that the plumbing subcontractor had deviated from the plans and installed 3" and possibly 4" pipe because that is all that he had in his truck. Likewise, neglect describes various elements of Respondent's contract management efforts. Here, the Building Department either failed to note that Walker and Pirtle had submitted drawings with undersized drainage pipes, or it failed to detect the installation of pipes smaller than specified in their drawings. Given the ineptitude of the Building Department inspectors concerning the boot details on the wet columns, as described below, neither of these alternatives seems especially unlikely. Given the absence of any direct evidence of unfairness directed by the Building Department toward Petitioner, either of these alternatives is likelier than a deliberate attempt to favor Walker or Pirtle over Petitioner. Lastly, the minutes of the September 10 meeting record a concern of Petitioner regarding the above-described September 8 email, in which Mr. Kunard had advised Mr. Rousseau and Mr. Vlock that their July 15 email requesting an extension of time was insufficient, and they had not submitted a request for extension of time that provided justification for an extension in the manner prescribed by the General Conditions. Oddly, though, Petitioner's representatives do not acknowledge specifically that, prior to the issuance of the stop work order, it was late on all Six Schools. The absence of such a specific acknowledgement does not mean that Petitioner's representatives were completely unaware of their untimely performance. According to the minutes of the September 10 meeting, Petitioner's representatives claimed that the above-discussed lighting and drainage changes had slowed production rates, but said that they were still analyzing the issue. The justification of this contention concerning lighting matters, if not drainage, likely accounts for the willingness of Respondent's representatives to agree not to press a claim for liquidated damages until the parties had resolved Petitioner's claim for an extension of time. Once Petitioner's representatives learned that another inspector had failed the boot of a wet column at Limestone Creek, they claimed that the Building Department was treating them unfairly because other Design Builders were installing the identical boots on wet columns.14/ Again, they were right as to the installation of identical boots on wet columns by Walker or Pirtle, according to Mr. Kunard. (Tr. 1999) In this case, the Building Department inspectors had failed to inspect the wet column boots of any of the three Design Builders. Even though all boots served as anchors of the columns to which they were attached, the structural inspector had not inspected wet column boots, thinking that these were drainage details under the jurisdiction of the plumbing inspector. Even though the wet column boots contained important drainage fittings and connections, the plumbing inspector had not inspected these boots, thinking that these were structural details under the jurisdiction of the structural inspector. Again, though, Petitioner's drawings depicted a connection quite different from that installed by Petitioner. In the drawings, Petitioner had proposed to construct, at the base of each wet column, a welded connection between the underground drainage pipe and the conduit running down the column. In reality, Petitioner instead had constructed a connection using duct tape, grout, and concrete, using the tape as a temporary measure to prevent the wet concrete from entering the pipe. At first, it appeared that the parties would resolve the drainage pipe issue more quickly than the wet column boot issue. It seems that Mr. Vlock himself was unpersuaded by his employer's claim as to the drainage pipes. By email dated September 17 to Mr. Hogarth and Mr. Summerell with copies to Mr. Rousseau, Mr. Bailey, and Ms. Banaszewski, Mr. Vlock assured Mr. Hogarth that, as he had said during a telephone call earlier that day, Petitioner was "prepared to install drainage on the above project as per the approved drawings." This meant, of course, 8" pipes. In his response by email also dated September 17, Mr. Hogarth addressed the boot issue by asking for "the answer on the wet column to leader connection" and whether it too will match the approved drawings. On the same date, Mr. Rousseau responded to Mr. Hogarth's email by showing a "universal detail signed & sealed [three days earlier] by the Design Engineer for all current projects in Palm Beach County." In a fourth email dated September 17, Mr. Hogarth told Mr. Rousseau, Mr. Vlock, and Mr. Summerell that he was reluctant to accept the duct tape and grout connection without further thought. He noted that aluminum would be in contact with concrete and thus would require coating. It was unclear whether Petitioner intended to tape the pipe to the aluminum before or after it was coated, but, in either case, Petitioner would rely on the grout to hold the pipe in place tight against the column. The coating would prevent the grout from bonding to the aluminum, but the grout would be expected to leak. Given these circumstances, Mr. Hogarth asked how this boot detail would not leak. Both issues seemed on the verge of resolution in an email dated September 28, 2010, from Mr. Hogarth to Mr. Rousseau. In this email, Mr. Hogarth offered to permit the use of the as-built boot detail on the wet columns, but future projects would have to be built in accordance with the approved drawings. In the same email, Mr. Hogarth offered to release the stop work order, but only if Petitioner replaced the existing noncompliant drainage pipes with the pipes shown in the approved drawings. Another meeting took place on October 4, 2010, among Mr. Vlock, Ms. Rousseau, Mr. Kunard, Mr. Mets, Mr. Hogarth, Ms. Banaszewski, Mr. Sanches, and others. Ms. Rousseau is the vice president of Petitioner. The minutes accurately state the background as the issuance of the stop work order for drain pipe size and, a couple of days later, "wet-column fittings." At the meeting, Petitioner claimed that the Building Department was treating Petitioner differently in reviewing plans and inspecting construction than it was treating other Design Builders. Petitioner's complaint about unfairness in reviewing plans was as untimely as it was groundless. Although the record reveals nothing of how the Building Department reviewed the plans of Walker and Pirtle, as noted above, Petitioner submitted flawed plans, and the Building Department expedited the issuance of the building permits for the Six Schools at the repeated urging of the Facilities Services Department. According to the minutes, Petitioner trotted out its recurrent complaint about the Moghadam Prohibition, even though it had nothing to do with the stop work order. Evidently, Respondent had permitted Pirtle to co-locate lighting fixtures and wet columns. Given the eventual issuance of change orders to reimburse Petitioner for these costs and time lost in complying with the Moghadam Prohibition, it is unnecessary to comb through the existing record to determine if one of the Building Department's inspectors, perhaps more versed in Respondent's longstanding approval of this practice, inspected the handful of projects on which Pirtle was working and failed to enforce the Moghadam Prohibition. Once again, though, the circumstances do not readily suggest a coordinated effort of any sort among the Building Department inspectors, but especially not a coordinated effort focusing on Petitioner. More to the point, Petitioner pointed out that it and Pirtle were using the same aluminum subcontractor and, thus, the same wet column boots, but Pirtle had not been cited for deviating from its drawings. This argument, though, missed a couple of facts. First, the record does not disclose if Pirtle's approved drawings depicted welded pipes, as had Petitioner's approved drawings. Second, if offered to prove unfair treatment, Petitioner's argument fails to account for the fact, noted above, that, until one month earlier, Respondent had no idea what any Design Builder was installing in terms of wet column boots due to the remarkable omission of its inspectors to inspect wet column boots. Turning to Walker, Petitioner complained--again--that it was evidently not using a licensed civil engineer for drainage design. As was the case with the complaint about preferential treatment in plan review by the Building Department, this complaint about whether Walker had had to retain a civil engineer was untimely and groundless for the reasons stated above. At this point, given the pressing matters at hand in terms of late construction, a stop work order, and deviations from approved drawings, Petitioner's reprisal of its earlier complaints about the time it took the Building Department to review plans and whether Walker had been required to retain a civil engineer seem to amount to nothing more than an attempt by Petitioner to distract from the real issues: more immediately, whether it must install fixtures that conform to its drawings and, more generally, whether it would be able to avoid liquidated damages for untimely construction at the Six Schools. A Building Department representative responded that the inspectors are told to inspect according to the approved plans. Evidently without providing specifics, but not entirely implausibly, Petitioner asserted that, although it had not built according to its plans, other Design Builders had done the same thing--without earning stop work orders. Mr. Hogarth promised that the Building Department would investigate these issues. Turning to the more pressing topic of the pending stop work order, Mr. Hogarth stated that the Building Department had issued the previous week a list of changes that Petitioner could undertake to lift the stop work order: essentially, Respondent would accept the duct-taped joint at Limestone Creek only, but would insist on the installation of 8" drainage pipes. Petitioner's representative responded that Petitioner had already agreed to replace the installed 3" pipes with 8" pipes, at its cost, but it objected to the withholding of the use of the duct-taped joint on future projects. In response to unrelated complaints about Petitioner's PPEs, Respondent agreed to remove the offending PPEs from the PPE tracking system. After the meeting, Mr. Hogarth relented on the duct- taped joints. By email dated October 7, 2010, from Mr. Vlock to Mr. Hogarth, Mr. Vlock memorialized a discussion that had taken place between the two representatives after the October 4 meeting: Respondent would lift the stop work order and allow Petitioner to use the duct-taped boot detail on wet columns at all previous and pending projects if Petitioner reinstalled the drainage pipes to comply with the approved drawings. By email later the same day to Mr. Vlock, Mr. Hogarth stated that he would remove the stop work order at Limestone Creek, effective that day, based on the reworking of the installed piping and the submission of revised drawings at Limestone Creek and other projects where Petitioner proposed to use the duct-taped joints in the boots of wet columns. Mr. Hogarth performed his end of the deal by lifting the stop work order on October 7. Evidently, Petitioner submitted the required revisions to its drawings of the boots of the wet columns. But, rather than remove the undersized pipes and install 8" pipes, Petitioner challenged the stop work order by seeking a variance from the approved plans calling for 8" pipes. By email dated December 10, 2010, to Mr. Bailey, Mr. Vlock transmitted a December 8 revision to the Limestone Creek drainage plan--obviously, featuring pipes of diameters smaller than 8". The Facilities Services Department allied itself with Petitioner and against the Building Department on this issue. By email the same date to Mr. Chodora, Mr. Bailey, on behalf of Petitioner, requested a variance from the 8" drainage pipes to allow 4" drainage pipes. Mr. Chodora referred the variance request to a variance committee, which comprises eight employees of Respondent and four outside consultants. By email dated December 10, Mr. Chodora informed the committee members that the issue was whether, at Limestone Creek, Petitioner should receive a variance from the requirement in the District Design Criteria to permit it to use 3" and 4" drainage pipes instead of 8" drainage pipes. The assignment to the committee members called for their recommendations by December 21, 2010, which was later changed to December 14. The responses reflect a range of informed comments. Several persons expressed the reasonable concern that the smaller pipes would clog. Manifesting a spirited independence from his immediate supervisor, Mr. Joyce voted to approve the variance to test a smaller diameter pipe for sidewalk canopies, which drain smaller areas than building roofs. Another member of the committee, who was a project coordinator in Respondent's Department of Program Management, also voted to approve the variance. By the time the votes were tallied, though, five members had voted to deny, three members had voted to approve, and four members had not voted. As Mr. Cooper had warned Mr. Rousseau, there was a "low probability" that Respondent would allow 3" pipes in the place of the 8" pipes shown in the drawings. (Pet. Ex. 233, p. 109) Following the vote, Mr. Sanches was required to review the recommendations of the committee members and make a final decision on the variance request. By this time, Petitioner had buried the drainage pipes. However, on December 22, Mr. Sanches concurred with the majority of the committee and denied the request. By email dated January 3, 2011, to Mr. Rousseau, Mr. Vlock, Mr. Cooper, and Mr. Bailey, Mr. Chodora advised that the request for variance was denied. By email dated January 4, 2011, to Mr. Sanches, Mr. Rousseau appealed the denial of the variance request. Notwithstanding Mr. Sanches' role in denying the request, the appeal went to Mr. Sanches. Concerned that the Limestone Creek project was now five months late and still unfinished, Mr. Kunard contacted Mr. Sanches and asked him to grant the variance. After a meeting in his office on January 11, 2011, with Mr. Rousseau and possibly others, Mr. Sanches reversed his earlier decision and granted the variance subject to four conditions set forth in an email dated January 12 to Mr. Rousseau: 1) Petitioner must install approved screening over the canopy inlets leading to the column drains; 2) Petitioner must add a concrete collar for each pipe cleanout and a sidewalk-level cover for each cleanout; 3) Petitioner must extend the already-required warranty of one year to two years for cleanout and pipe breakage; and 4) Petitioner must submit revised plans depicting these changes. Mr. Rousseau cites this resolution as evidence of the unreasonableness of Respondent's initial action in issuing the stop work order. This claim is rejected. Mr. Sanches never believed that Petitioner was justified in installing smaller pipes than had been approved in Petitioner's plans. Mr. Sanches agreed to accept what was already in the ground only to spare the students and staff at Limestone Creek the inconvenience of further delay in a project that Respondent had planned was to have been finished before the start of the 2010-11 school year. Regrettably, the record fails to convey Mr. Hogarth's reaction to the granting of the variance, which effectively enabled Petitioner to escape obligations that it had assumed twice--once in its drawings and once in Mr. Vlock's settlement agreement with Mr. Hogarth. The Superintendent's Letter may constitute the reaction of Mr. Sanches and ultimately even Mr. Kunard to the fact that the granting of the variance did not hasten the completion of construction at Limestone Creek, as discussed below. Construction Activity During Fall and Winter 2010 The general conditions item of pay applications filed through September 1, 2010, indicates the following percentages of construction remaining at each of the Six Schools: Spanish River--0%; Watkins--14%; Independence--29%; Limestone Creek--44%; Lighthouse--57%; and Jupiter Farms (July 31 pay application)--79%. Construction in the fall of 2010 proceeded in accordance with the following pay applications submitted on October 1, November 8 (November 16 for Watkins), and December 1 (except for Spanish River and Independence, for which Petitioner submitted no pay application at that time). School Oct. 1 Nov. 8 Dec. 1 Spanish River General Conditions done done no pay app. Site Drainage done done no pay app. Concrete done done no pay app. Aluminum Walkways $8003--0% done no pay app. Electrical $2608-25% $1862--0% no pay app. Watkins General Conditions $300--10% $0-10% $692-0% Site Drainage done done done Concrete done done done Aluminum Walkways done done done Electrical $0---8% $0-8% $1152--0% Independence General Conditions $1000--13% $1500---3% no pay app. Site Drainage done done no pay app. Concrete $0---7% $3720---0% no pay app. Aluminum Walkways done done no pay app. Electrical $1044--20% $0--20% no pay app. Limestone Creek General Conditions $260--41% $2410--13% $300-10% Site Drainage $0--20% $0-20% $0-20% Concrete $0--13% $0-13% $4000--0% Aluminum Walkways $0--23% $13,200---5% $1893--2% Electrical $3601--40% $2702--25% $0-25% Lighthouse General Conditions Site Drainage $1500--41% done $1700--23% done $100--12% done Concrete $0--50% $9543--10% $2364--0% Aluminum Walkways $6819--15% $0--15% $9406--0% Electrical $2940--45% $1960--35% $0-35% Jupiter Farms General Conditions $0--79% $2160--40% $896--24% Site Drainage $0-100% $0-100% $1500--50% Concrete $0-100% $4785--60% $5982--10% Aluminum Walkways $0--26% $3640--15% $3651---5% Electrical $750--90% $2130--60% $2160--30% This chart reveals that, by early December 2010, Petitioner had completed Spanish River and Watkins and had very little remaining work at Independence. Petitioner was almost 90% done at Limestone Creek and Lighthouse and was about 75% done at Jupiter Farms. On January 7, 2011, Petitioner filed pay applications for three of the four schools at which construction was not yet complete. Limestone Creek was billed $300 of general conditions, $1500 of aluminum walkways, and $3000 of electrical, leaving only 6% of general conditions, 20% of site drainage, and 8% of electrical to be done. Lighthouse was billed $500 of general conditions and $1800 of electrical, as well as additional work, leaving only 7% of general conditions and 26% of electrical to be done. Jupiter Farms was billed $700 of general conditions, $1500 of site drainage, $1196 of concrete, and $1750 of aluminum walkways, leaving only 11% of general conditions and 30% of electrical to be done. Independence was not billed. This left Petitioner at least 90-95% done at the four remaining schools. But Final Completion did not immediately follow, and it is difficult to understand why Petitioner did not prosecute the little work remaining to achieve Final Completion. On January 7, 2011, Wes Christie, the Facilities Management Coordinator for Limestone Creek, issued a PPE with an average score of 2.1 and scores of 1.5 for scheduling and 1.8 for project management. The scheduling score was due to Respondent's failure to give Mr. Christie a schedule of construction. When Mr. Christie asked Mr. Vlock for this schedule, which is required by the Contract Documents, Mr. Vlock replied that any schedule would be a "wild guess." (Tr. 926) This remark is especially startling, given the little work remaining on the job. Disregarding a set of pay applications reflecting change orders discussed in the next section, the next pay application submitted for Limestone Creek was on April 18, 2011. Limestone Creek was billed for $519 of general conditions, $913 of site drainage, and $1502 of electrical, finishing this project. The record is missing the final pay application for Lighthouse, although it was also submitted after the pay application for the change orders discussed in the next section and prior to another pay application on September 2, 2011. The record contains the last pay application for Jupiter Farms, but it is undated. Submitted between February 24 and September 2, 2011, this pay application reflects that Jupiter Farms was billed $644 for general conditions and $2160 for electrical, finishing this project. By this time, it is impossible to presume that Petitioner was even submitting pay applications promptly. But even assuming a close relationship between the work and the pay application, Petitioner did not obtain CCs for a considerable period of time after the pay applications showed the work had been finished. First Round of Change Orders in Fall 2010 and Winter 2010-11 It is possible that Petitioner's failure to prosecute the work after the start of 2011 was linked to its dissatisfaction with Respondent's handling of Petitioner's requests for increases in Contract Prices. In October 2010, Petitioner submitted a number of claims seeking change orders adding to the Contract Prices for extra work not caused by Petitioner. Generally, these claims were insufficient for numerous reasons, including a failure to identify subcontractors or projects and a lack of information as to additional work, such as retrenching. On or about December 15, 2010, Petitioner refiled its claims. These claims bear one or more dates in November and request change orders at 12 schools, including the Six Schools. The 12 schools included all of the Group 2 schools and all of the Groups 5 and 6 schools except Jupiter. The December claims propose a total increase in the Contract Prices of $274,758. The largest component of these claims is $161,000 of electrical. The next two largest components are about $61,000 of general conditions and $47,000 of drainage. Under the Contract Documents, the October and December claims were untimely. Like the October claims, the December claims, although more detailed than the October claims, were also deficient for lack of documentation. However, upon receiving the December claims, Mr. Kunard tried to work with them as best that he could. For example, Mr. Kunard directed the Facilities Management Coordinators for each school to measure the length of each trench that Petitioner had been obligated to dig following the issuance of the Moghadam Prohibition, so as to move light fixtures from wet columns to dry columns on the opposite side of the sidewalk. Even though Petitioner was already months past the deadlines for Substantial and Final Completion for the Six Schools, the Facilities Services Department was favorably predisposed to much of the electrical claim because of the time and money expended by Petitioner in complying with the Moghadam Prohibition. As previously noted, though, the Moghadam Prohibition had not resulted in significant delays in submitting plans, but may have resulted in delays in obtaining suitable light fixtures. The resulting electrical claims applied to all of the 12 schools except Lighthouse, Limestone Creek, and Jupiter Farms, where work evidently was not far enough along for Mr. Kunard to have satisfied himself that the Contract Times for these schools had been unaffected by the Moghadam Prohibition. On January 28, 2011, Mr. Kunard, Mr. Bailey, Ms. Banaszewski, Mr. Rousseau, and Ms. Rousseau met to discuss Petitioner's December claims on the 12 projects. Mr. Rousseau acknowledged that the December claims did not comply with the Contract Documents, but he outlined the elements of their requests for additional compensation. Mr. Rousseau identified five items. First, the Moghadam Prohibition was not an item in dispute as to additional Contract Prices or Contract Time. The Facilities Services Department representatives readily conceded liability on this item, but Petitioner was unprepared to itemize the costs attached to it. Second, Mr. Rousseau complained about faulty lighting calculations that Petitioner had received from a consultant that it had hired. Obviously, this was a matter between Petitioner and its consultant, and the record does not support Petitioner's contention that Respondent in some fashion encouraged or required Petitioner to retain this consultant. At some point, Mr. Rousseau made a related claim that Pirtle had installed lights based on faulty lighting calculations. Respondent later required Pirtle to recalculate its photometrics and determined that Mr. Rousseau's assertion was incorrect. Mr. Rousseau's claim of unfair treatment on this point was thus unfounded. Although Respondent allowed minor deviations from the lighting standards from time to time, it did so for all the Design Builders, and the deviations were insignificant, typically involving small areas of covered sidewalks. Third, Mr. Rousseau complained that Petitioner had been required to install many more lighting fixtures than it had bid on. As noted above, Petitioner's winning bids on the Six Schools were not so much lower than the next lowest bidder as to suggest a major mistake in Petitioner's calculations. If Petitioner had to install many more lighting fixtures than it had bid--a fact not established by the record--this may have been due to any number of reasons, including Petitioner's incompetence, the faulty lighting calculations performed by Petitioner's consultant, and the Moghadam Prohibition. In a related complaint, Mr. Rousseau raised a fourth item, noting that other Design Builders had installed alternate lighting fixtures without obtaining permission from Respondent. In at least one case, this had been true, as noted above, and Respondent had belatedly advised the other Design Builders of the availability of the alternative that it had allowed one Design Builder to install. It is impossible, though, on this record, to determine the extent to which Respondent's handling of alternative lighting fixtures may have cost Petitioner money or time. Fifth, Mr. Rousseau complained that the Building Department was treating Petitioner differently from other Design Builders. From the minutes, this appears to have been a generic complaint without particulars. This recommended order has addressed specific claims of unfair treatment as they emerged. As noted elsewhere, most complaints of differential treatment are unsupported by the record, and the few instances of differential treatment were more likely the product of haphazard contract management practices of some of Respondent's employees, rather than a coordinated--or individual--effort to discriminate against Petitioner. The January 28 meeting closed with Mr. Kunard's offering to recommend to the Projects Control Department additional compensation of about $45,000--provided all issues were resolved. Petitioner countered that it could not accept this small amount and remain in business, but possibly could accept $230,000. Mr. Rousseau contended that his claim was not really about the money, but was about ensuring that other minority businesses were treated better by Respondent. The meeting closed with Mr. Kunard's request for additional information, so that Respondent could prepare a formal offer to Petitioner. As it had tried to help Petitioner to expedite permitting, the Facilities Services Department tried to help Petitioner in presenting these claims. First, the Facilities Services Department overlooked the fact that these claims were not timely submitted. Second, Mr. Kunard worked with Mr. Rousseau to assemble the required supporting paperwork because the claims were initially submitted without the required documentation and itemization. Third, Mr. Kunard himself suggested two additional claim categories involving reproduction; even those these totaled only about $3100, Petitioner had omitted them. Fourth, Mr. Kunard advocated Petitioner's case within Respondent. Fifth, for the first time in the memory of Respondent's principals, Mr. Moore agreed to sever a claim into two parts, so the Facilities Services Department could, in effect, grant part of a claim. Mr. Kunard had already determined, by the end of 2010, that Respondent should pay most of the electrical portion of Petitioner's claims together with association portions of the accompanying costs, such as in recalculating photometrics. Most, if not all, of these sums arose due to the Moghadam Prohibition. Notwithstanding some language to the contrary among the documents, neither Mr. Kunard nor Respondent ever determined that Petitioner was entitled to any--or at least substantial--more money for the size of the drainage pipes, which was a problem that Petitioner had caused by deviating from its approved drawings. Mr. Kunard estimated that no more than $10,000 of the additional cost to which Respondent agreed could be attributed to the stop work order. (Tr 1643) Mr. Kunard also agreed to pay 30 days of staff time for the approval of the boot detail on the wet columns, even though this too was the result of Petitioner's deviation from its approved plans. In determining how much to offer Petitioner in additional Contract Price, Mr. Kunard enlisted the help of Mr. Upson. By email dated February 16, 2011, to Mr. Upson, Mr. Kunard outlined the means by which he had arrived at an offer for Petitioner. The email notes that Mr. Kunard had obtained Mr. Sanches's authorization for the amount of the offer with the "understanding that we would still look at [Petitioner's] data if we could get it." This statement anticipates the approval of a portion of Petitioner's claim and reconsideration of the remainder of the claim upon presentation of supporting data. Mr. Kunard's February 16 email states that he was working "under pressure." He noted that Petitioner's "subs are in arms [and] [Petitioner] is lobbying heavily above me, so I am moving forward with the 12 [change orders] for which I have enough data to act upon." The demands of Petitioner's subcontractors and Mr. Kunard's awareness that Petitioner was pressing its case with higher officials within Respondent created a very unfavorable atmosphere for unfair treatment of Petitioner. In a reply email later that day, Mr. Upson stated that he "believed you have come to a fair settlement based upon the restrictions, timelines and issues you must juggle at this point." The portion of Petitioner's claim to which Respondent rapidly assented totaled $126,124. By Change Orders executed March 1 and 2 (in one case, March 3), the parties agreed to amendments to the Six Schools' Short Form Agreements. All of the dates are confirmed in an email dated April 4, 2011, to Mr. Rousseau from Mr. Kunard.15/ In the following chart, the "Old F.C." is the Final Completion Date stated in the Short Form Agreement. The "New F.C." is the new Final Completion Date as a result of these change orders. This first round of change orders effected the following changes to the Contract Price and Final Completion Date: School Additional Price Old F.C. New F.C. Jupiter Farms $1625 8/12/10 3/28/11 Watkins $14,570 8/14/10 3/25/11 Limestone Creek $1625 8/16/10 3/28/11 Lighthouse $1625 8/16/10 3/28/11 Independence $14,579 8/27/10 4/6/11 Spanish River $20,528 8/29/10 3/18/11 To obtain the additional compensation authorized by these change orders, Petitioner submitted another round of pay applications.16/ The pay application for each school is for the amount set forth above. The pay application for Jupiter Farms is dated February 24, 2011. Although the pay applications for the other five schools are undated, given the dates on which the change orders were executed, the pay applications for the other five schools were probably submitted at the same time as the Jupiter Farms pay application. Respondent paid Petitioner these amounts in late February and early March 2011. Proposed Second Round of Change Orders: Spring 2011 If Mr. Kunard believed that the first round of change orders, like the variance for the drainage pipe, would hasten the completion of construction at the Six Schools, produce progress on the work at the Six Schools, he was again mistaken. With the new deadlines for Final Completion only days away, Mr. and Ms. Rousseau met with Mr. Kunard, Mr. Bailey, and Ms. Banaszewski on March 24, 2011, to discuss documentation to support a second round of change orders. The minutes reflect that Respondent had not received additional documentation from Petitioner before implementing the first round of change orders, which had been based on Respondent's--probably Mr. Kunard's-- "unilateral judgment on what was owed." At this meeting, the principals discussed the grounds for additional change orders, but the minutes disclose little progress. Negotiations over the remainder of Petitioner's claim were never successful. Petitioner asserted entitlement to compensation for items that Respondent did not agree justified compensation. By the end of March, when all of the schools except Independence were to have achieved Final Completion under the first round of change orders, Respondent began to interpose its own claims for liquidated damages. Undeterred, Mr. Kunard continued to seek a settlement that would extend the completion dates and spare Petitioner costly liquidated damages. Toward this end, Mr. Kunard asked Mr. Rousseau to select realistic deadlines for new completion dates. Using the new dates selected by Mr. Rousseau, Mr. Kunard confirmed, by email dated April 4, 2011, to Mr. Rousseau, that a second round of change orders would incorporate the following new Final Completion Dates: April 15, 2011, for Spanish River; April 30, 2011, for Independence; and April 20, 2011, for the remaining four schools of the Six Schools. Although the purpose of the April 4 email was to establish new Final Completion Dates for a second round of change orders that never went into effect, the email notifies Petitioner that it is already untimely on five of the Six Schools. The normal font indicates Mr. Kunard's email; the italicized font indicates Mr. Rousseau's response.17/ In relevant part, these emails state: The following projects are now late or will soon be late again: HL Watkins. Final Date was 3/25/11. Work is complete with the except [sic] of Perfection punch list item and sprinkler head installation. New Final date for HL Watkins is 4/20/2011. Independence MS. Final Date is 4/6/11. 3 lights on back order and grass will be installed on 4/7/2011. New Final date for Independence MS is 4/30/2011. Jupiter Farms ES. Final Date was 3/28/11. New Final date for Jupiter Farms ES is 4/20/2011. Lighthouse ES. Final Date was 3/28/11. New Final date for Lighthouse ES is 4/20/2011. Limestone Creek ES. The Final Date was 3/28/11. New Final date for Limestone Creek ES is 4/20/2011. Spanish River HS. The Final Date was 3/18/11. New Final date for Spanish River HS is 4/16/2011. Mr. Kunard advocated a second round of change orders to the Project Controls Department. Normally, the Project Controls Department requires the contractor to file such a request on its letterhead. In the interest of time, Mr. Kunard forwarded Mr. Rousseau's emails and documentation and, as he had done with the Building Department when issuing the permits, pressed for a favorable decision. Mr. Upson helped Mr. Kunard determine a reasonable amount of additional compensation to include in a second round of change orders. By email dated March 31, 2011, to Mr. Kunard, Mr. Upson advised that he had considered the documentation supporting a proposal of $81,676--evidently, the proposal of Mr. Kunard--but the fair and reasonable costs totaled only $27,638. By email on the following day to Mr. Upson, Mr. Kunard provided additional analysis of retrenching in an obvious attempt to raise Mr. Upson's determination. In reply, Mr. Upson emphasized that he was using the excavation production that Petitioner had proposed. He noted a certain tension in scrutinizing closely one category of expenses--to secure greater compensation for Petitioner--without subjecting all categories to this level of scrutiny. Mr. Upson added: "Keep in mind, we are taking their word on a lot of these changes and have no verification on our side." Rejecting Petitioner's attempt to base its costs on the charges of other contractors, Mr. Upson noted that an excessive excavation rate might be offset by a relatively tight compensation rate for electrical work; he advised that it all evened out. Nevertheless, Mr. Upson advised Mr. Kunard that he had the ability to settle above Mr. Upson's suggestion, if he could state reasons for doing so. In a final email, also dated April 1, Mr. Kunard told Mr. Upson that he would "absorb your input and recommend a settlement amount." Evidently, it did not take Mr. Kunard long to absorb Mr. Upson's input. On April 1, Mr. Kunard prepared a spreadsheet for the 12 schools that were the subject of the change orders, including the Six Schools. In rounded numbers, the spreadsheet itemizes a total offer of $69,331 for the proposed second round of change orders consisting of $52,246 of electrical, $14,565 of general conditions, and $2520 of photometric. All 12 schools were included in each of the these three work categories except that Lighthouse, Limestone Creek, and Jupiter Farms did not bear any electrical costs. In particular, only three of the Six Schools were included for additional electrical costs arising from the Moghadam Prohibition: Spanish River, Watkins, and Independence. In presenting the proposed second round of change orders to Mr. Rousseau, Mr. Kunard stressed that Respondent's offers of $69,331 of additional compensation and additional time for Final Completion of the Six Schools was conditioned on a full settlement of all of Petitioner's claims for additional compensation. Absent Petitioner's release of all future such claims, Respondent would not agree to pay the additional compensation of $69,331 or extend the Final Completion Dates again. If Mr. Rousseau sensed that he was posed with a dilemma, nothing in the record so indicates. By April 6, all of the Final Completion Dates set forth in the first round of change orders for the six schools had arrived, and Petitioner had reached Final Completion on none of them. As was his practice, rather than focus on Contract Time, Mr. Rousseau focused on Contract Price--demanding the additional compensation of $274,758 stated in its December claim--and refusing to forego any additional claims. Final Completion: Summer 2011 As noted above, at the start of 2011, Petitioner had largely completed Spanish River and Watkins and was 90-95% done with Independence, Lighthouse, Limestone Creek, and Jupiter Farms. The following chart lists the Final Completion Dates, as set forth in the first round of change orders, and the dates on which Respondent issued CCs. School F.C. Date Date of CC Days Late Spanish River 3/18/11 5/11/11 54 Watkins 3/25/11 5/13/11 49 Lighthouse 3/28/11 8/9/11 134 Limestone Creek 3/28/11 8/26/11 151 Jupiter Farms 3/28/11 8/26/11 151 Independence 4/6/11 8/12/11 128 By email dated July 13, 2011, to Mr. Rousseau, Mr. Kunard stated that he had learned that Petitioner could obtain the CCs for Spanish River and Watkins "now," if Petitioner would merely file a request for them. This statement appears to be incorrect because the CCs for these schools bear dates of May 11 and 13, 2011,18/ as indicated in the chart immediately above. Preceding the Superintendent's Letter by a day, the July 13, 2011, email adds: Your projects cannot be determined to have achieved Final Completion until you have your CCs. Please do what ever it takes to complete your projects. They are very late. I. Conclusion Substantial deviations from the Contract Times had occurred by the time of the first round of change orders. For the portion of those delays for which no justifiable cause existed, such delays were substantial and remained so after the written notice by letter and email dated July 15, 2010, from Mr. Kunard. The time extensions contained in the first round of change orders corresponded to the portion of these delays attributable to Respondent and much more. The question is whether, without justifiable cause, Petitioner substantially deviated from the Final Completion Dates set forth in the first round of change orders. It did. By the time of the first round of change orders, Petitioner had not been prosecuting the work since the start of 2011. Work rates well within those established during the summer or even fall of 2010 would have achieved timely Final Completion at all Six Schools, if Petitioner had chosen to rededicate itself to these jobs after the first round of change orders. But it did not. Instead, at four schools, Petitioner missed its extended deadlines by periods in excess of the expected durations of the jobs.19/ At the other two schools, Petitioner missed its extended deadlines by periods of nearly two months, or one-half to two-thirds of the expected durations of the jobs. These deviations from the extended time schedules are substantial. Notwithstanding the mass of paper that Respondent has introduced into evidence, only two pieces might serve as Respondent's written notice to Petitioner of its substantial noncompliance with the extended time deadlines contained in the first round of change orders. One piece of paper can be dismissed readily. The July 13, 2011, email from Mr. Kunard to Mr. Rousseau, which is cited at the end of the preceding section of this recommended order, is not notice of anything, coming one day prior to the declaration of default by the Superintendent's Letter. This notice also fails as to Spanish River and Watkins because Petitioner had already obtained CCs for these schools. The other piece of paper is the April 4, 2011, email from Mr. Kunard to Mr. Rousseau. This email applies only to five of the Six Schools because it preceded the extended Final Completion Date for Independence by two days. As to the remaining five schools, this email constitutes the bare minimum required of notice. Although the purpose of the email was to elicit from Mr. Rousseau yet another set of Final Completion Dates for use in a second round of change orders that never was finalized, the email identifies a Final Completion Date for each school and communicates the simple fact that Petitioner has already missed this date for each of the Six Schools except Independence. A determination of the adequacy of Respondent's notice is facilitated by the basic nature of its subject: untimeliness. Reduce to their essentials, the many Contract Documents provide what Petitioner is to build and how much Respondent is to pay--and when each party must perform its respective duties. Petitioner's principals knew this much, if, for no other reason, than the repeated attempts by Respondent's representatives to encourage timely performance of work. And the notice that Petitioner was substantially20/ behind again at five of the Six Schools could not have been news to Mr. Rousseau. By this point, it is not surprising that the sole means by which Respondent satisfies the notice requirement is an email that Mr. Kunard wrote primarily for a different purpose. The serendipity of this email--happily, from Respondent's perspective--fits neatly in the above-described portrait of Respondent's haphazard approach to contract management. Contemplation of this thin reed by which Count II hangs is a suitable preparation for the ultimate findings as to Petitioner's charges of unfair treatment. Many specific instances of neglect, inattention, ignorance, confusion, inexperience, and lack of coordination in Respondent's efforts at contract management have been identified above. Although the Facilities Services Department was far from flawless in its work, Petitioner's complaints of unfair treatment cannot fairly be focused on the efforts of Mr. Kunard and his employees. Repeatedly, Mr. Kunard went to remarkable lengths to rescue Petitioner from its neglect of its contractual undertakings and spare Petitioner the prospect of liquidated damages. As noted in the next section, relatively late in the process, Ms. Swan, vetoed an ill-advised attempt by Mr. Kunard to award Petitioner additional work at Limestone Creek through another change order. But, otherwise, the Purchasing Department has not had any significant role in this case, at least until the very end, as described below. It is thus unlikely that Petitioner's charges of unfair treatment can be directed at Ms. Swan and her employees. The same is true for the Project Controls Department. Mr. Upton's work was relatively limited, and Mr. Rousseau was probably unaware of his involvement. The main, if not sole, target of Petitioner's unfairness complaints is probably the Building Department. However, its issuance of the building permits was above reproach. Petitioner's plans and drawings were flawed as to matters that proved quite material to this case. At the urging of the Facilities Services Department, the Building Department issued building permits on the promise of post-permit filing of necessary revisions to the plans and drawings. The Building Department's issuance of the stop work order was also above reproach. The wet column boot is irrelevant to this issue because resolution of this issue did not extend by one day the stop work order. In any event, Petitioner installed wet column boots and 3" and 4" drainage pipes that did not conform to the drawings that Petitioner had submitted in order to obtain building permits. Petitioner bore the risk that these noncompliant installations would hold up work while Building Department employees considered whether to allow them to remain in place. And there is no showing of delay by the Building Department in this process. Where Petitioner perceives unfair treatment by the Building Department, the record reveals, at worst, an unevenness in the department's discharge of its responsibilities. The ill- fated Moghadam Prohibition emanated from a Building Department employee. The failure of Building Department inspectors to examine the boots of wet columns was unfortunate. The prospect that the plumbing inspector may have missed some undersized drainage pipes on the projects of other Design Builders cannot, regrettably, be attributed to anything but carelessness. These misadventures of the Building Department in this case do not establish bad faith in dealing with Petitioner. There is absolutely no evidence of any intent to disfavor Petitioner, relative to the other Design Builders. The Moghadam Prohibition was announced to Petitioner's civil engineer, but applied to all of the Design Builders. The two inspectors failed to inspect any Design Builder's wet column boots; they discovered their omission only after work had been stopped for the installation of undersized pipes. Only the discovery of the undersized pipes was focused on Petitioner, but, if the inspectors were ever to realize that undersized pipes were being installed on these jobs, the odds were about one in three21/ that the discovery would be made at one of Petitioner's work sites-- and maybe even greater, if the other Design Builders were not behind schedule, as Petitioner was. Significantly, nothing in the record suggests any delays attributable to the Building Department in Petitioner's obtaining CCs for the Six Schools. For reasons not very clear, at the start of 2011,22/ Petitioner stopped prosecuting the little remaining work at the Six Schools. On balance, the Building Department treated Petitioner in a professional manner. Whatever shortcomings existed in the Building Department's discharge of its responsibilities, they were not reflective of bad faith of any sort. Moreover, when the innocent missteps of the Building Department are weighed against the many accommodations provided by the Facilities Services Department, the net result is unearned benefit, not burden, conferred upon Petitioner by Respondent. Ultimately, questions of notice and unfairness are overshadowed by the fact that, for Petitioner, time was never of the essence on the projects for the Six Schools, and, to such a crucial part of the bargain, attention must be paid. For these reasons, Respondent has proved by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of substantial deviations from project time schedules after written notice of such noncompliance with respect to the Six Schools, except Independence. Count III: Nonpayment of Subcontractor and Supplier From July 14 to September 21, 2010, Cemex supplied concrete materials to Respondent on walkway cover job sites. During March, June, July, and September 2010, Perfection performed aluminum subcontracting work on walkway cover job sites. A Cemex representative called Mr. Kunard in December 2010 and stated that Petitioner had not paid Cemex for supplies that it had provided to Petitioner's walkway cover projects. Mr. Kunard immediately called Mr. Rousseau, who promised to take care of this matter. (Tr. 416) At the hearing, counsel for Petitioner stipulated that Petitioner concedes that it did not pay Cemex an unspecified amount that it owed the supplier. (Tr. 453) In late January or early February of 2011, Cemex sought a writ of garnishment against Respondent to secure sums that it claimed that Petitioner owed Cemex. By Final Judgment entered April 4, 2011, the Fifteenth Judicial Circuit Court in Palm Beach County approved a settlement agreement between Cemex and Petitioner that provided for a judgment of $64,044.85, which amount the court ordered Respondent to pay directly to Cemex. As Mr. Kunard testified, Respondent paid Cemex. (Tr 417-18) Later in April, a Perfection representative called Mr. Kunard and stated that Petitioner had not paid Perfection for work on Petitioner's walkway cover projects. In a hearing involving a legal action brought by Perfection against Petitioner and Respondent, Mr. Rousseau testified, on August 31, 2011, that Petitioner owed Perfection about $48,000. (Resp. Ex. 57) In a deposition of a general manager of Perfection taken in connection with this administrative case, counsel for Petitioner stipulated that "there is no question that [Petitioner] owes Perfection money." (Resp. Ex. 227, p. 34) By Final Judgment of Garnishment entered October 20, 2011, the Fifteenth Judicial Circuit Court in Palm Beach County determined that Perfection shall recover $5406.66 from Respondent. By Satisfaction filed December 14, 2011, Perfection advised that Respondent had satisfied this judgment. It is unclear whether Mr. Rousseau blames Respondent for Petitioner's failure to pay Cemex and Perfection. There is no suggestion in the record that Respondent ever failed to pay Petitioner timely on any pay application. Mr. Rousseau complained that Respondent discontinued the DPOs with Perfection. It appears that Respondent did so with one or more schools in the last group of four schools on which Petitioner worked. The timing of the emergence of Perfection's claim and the discontinuation of DPOs suggests that Petitioner had failed to pay Perfection at an earlier point in time. In any event, Petitioner had no contractual right to the use of DPOs. Also, a change order reduced the Contract Prices by the amount of the DPO plus saved sales tax for every school at which DPOs were used. Therefore, the presence or absence of DPOs would have not had a material impact on Petitioner's cash flow and its ability to pay this supplier and subcontractor. The evidence establishes a nonpayment of over $60,000 to Cemex and a nonpayment of nearly $50,000 to Perfection. These constitute substantial nonpayments. Although the record does not reveal how many times Petitioner failed to pay each obligee, even if there were only one nonpayment of each obligee, such nonpayments are repeated. For these reasons, Respondent has proved by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of a substantial or repeated failure to pay a subcontractor after Respondent has paid Petitioner for the work performed by this subcontractor and in accordance with approved requisitions for payment. Count I: Maintenance and Cleanup of Limestone Creek Limestone Creek employees were greatly inconvenienced by the construction at their school. Janitors were required to carry cleaning supplies extensive distances, students and teachers were unable to use a portion of the school grounds, the principal daily had to resecure the job site to ensure that students did not wander into areas that had not been restored, and the entire school community was unable to use the part of the campus where an annual fundraising celebration was held each October. Much of this inconvenience was the result of the excessive duration of construction at Limestone Creek, as discussed in connection with Count II. But the long duration of construction must be distinguished from maintenance and cleanup for the purpose of determining the facts relevant to Count I. Any anecdotal evidence to the contrary notwithstanding, satisfactory PPEs for Limestone Creek preclude findings adverse to Petitioner as to Count I from the start of construction through October 2010. As noted above, Respondent issued Petitioner PPEs for Limestone Creek on May 25, 2010, and August 31, 2010. Their respective scores for project management, customer sensitivity, and safety--which are the only categories on the PPE that might have a bearing on site maintenance and clean up--are 2.5, 2.3, and 3.0 and 3.5, 3.0, and 3.0. As noted above, a "2" is satisfactory, and a "3" is good. These scores indicate that Petitioner's site maintenance was satisfactory through about September 1, 2010. The stop work order prohibited all activity on the Limestone Creek site for almost the entire month of September. On its face, the stop work order is unconditional, so Petitioner's responsibility for site maintenance was interrupted until October 7 when Respondent lifted the stop work order. As noted above, on January 7, 2011, Respondent issued a PPE for Limestone Creek that contained a 1.8 for project management. For customer sensitivity and safety, however, Respondent assigned Petitioner scores of 2.0 and 2.5, respectively. Although more helpful to Respondent's Count I claims than the relevant scores in the two previous PPEs, these scores do not support a finding by clear and convincing evidence that Petitioner's site maintenance and clean up practices were deficient. Turning to site conditions in 2011, by this time, about 96% of the work at Limestone Creek had been done, so site disruption from active construction should have been limited. According to Mr. Kunard, as of January 7, 2011, the Limestone Creek construction site was deficient as to 11 items: lack of grading, lack of sodding, missing light fixtures, missing aluminum conduit covers, cracked concrete sidewalks, colored construction marking on sidewalks, loose rock in graded areas, excessively elevated drain pipe cleanouts, lack of touch up painting, damaged sprinklers, and an unresolved waiver request. However, the overall effect of this items was not so great as to produce a failing PPE on the same date. The evidence most supportive of Count I is an email dated April 13, 2011, to Mr. Rousseau from Mr. Christie. Mr. Rousseau had asked for final payment, less the retainage, for Limestone Creek. Mr. Christie visited the site and found a substantial amount of sod that had not yet been placed, a missing light fixture, spattered concrete on several new columns, colored markings on sidewalks, and cracked sidewalks where construction vehicles accessed part of the site. He declined to authorize final payment. By email dated May 12, 2011, to Mr. Christie with a copy to Mr. Sanches, Principal Gibbs asked when the project would be completed. She noted among the items that were still unfinished as the leveling of the ground, the replacement of all of the sod, and the cleaning up of the sidewalks, which still had construction marking on them. In this email, Principal Gibbs mentioned that Limestone Creek was scheduled for another walkway cover job, and she hoped that Respondent would not use "this incompetent vendor" again. By email dated later in the day, Mr. Christie informed Principal Gibbs that he rechecked the work area earlier that morning and found things about as he had found them a couple of weeks earlier. Mr. Christie noted cracked sidewalks where construction vehicles crossed the walkways, red lead chalk marks, and incomplete and uneven sod. Nonetheless, Principal Gibbs' concern was well- founded. Despite having noted the above-described deficiencies, Mr. Christie advised the principal that Petitioner "will be awarded this addition to their original contract." Mr. Christie added that he thought that Petitioner had requested additional time to complete the project. Declining to comment further on discussions to which he had not been privy, Mr. Christie assured Principal Gibbs that he would "continue to work cooperatively and proactively" with Petitioner "to bring both the current project and the new . . . project to fruition." He added that he shared Principal Gibbs' frustration. Mr. Christie's ability to provide such a facile assurance establishes only that he was unaware of the depth of the principal's frustration--with Petitioner, no doubt, but perhaps with the Facilities Services Department by this time too. At about this time, Mr. Kunard signed a change order to authorize Petitioner to perform a substantial amount of additional walkway construction work at Limestone Creek. Ms. Swan vetoed Mr. Kunard's decision because she refused to sign the purchase order, without which the change order was a nullity. Mr. Kunard was caught by surprise by this action because he had been previously unaware of the ability of the Purchasing Department to withhold approval of a change order. In the face of satisfactory PPEs and a decision by the Facilities Services Department to award Petitioner additional work at Limestone Creek in May 2011, the recitation of unfinished items does not supply clear and convincing evidence of poor site maintenance and cleanup practices. Although he has had considerable experience in contract management, Mr. Kunard tried to explain that he had incorrectly believed that he was required to award this additional work to Petitioner. He did not identify the source of this so-called requirement. This explanation is rejected as implausible. For these reasons, Respondent has failed to prove by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of a substantial or repeated failure to comply with the Contract Documents failing to maintain and clean up the Limestone Creek site after written notice of such noncompliance. Count IV: Return of Keys To enable Petitioner to perform the work, Ms. Banaszewski gave Petitioner's representatives keys to the 17 schools for which Petitioner had won contracts. The keys were of two types: gate keys and master keys. The gate keys unlocked the gates so as to provide access to the school grounds, but not any school buildings. The master keys unlocked the school buildings so as to provide access to every classroom, office, and other secure areas within these buildings. Ms. Banaszewski provided master keys for those schools to which Petitioner required access to electric closets and other utility rooms in order to perform its work. Ms. Banaszewski gave keys to Mr. Rousseau, Ms. Rousseau, Mr. Vlock, and other employees of Petitioner. The employee receiving the keys signed an Assignment of Facilities Keys form that provides: I accept the responsibility for the security of the above referenced keys and on [sic] the event any such keys are lost or stolen. I agree to immediately report the same to my department head or principal. I further agree that I will at no time reproduce or copy the above-referenced keys or keep any unauthorized keys in my possession. The reference to the "my department head or principal" reveals this form is for use when a school assigns keys to its employees, such as teachers. The only other potentially relevant provision of this form states at the bottom: "All keys Returned to Window/Lock Department." These provisions do not impose upon the person receiving a key and signing this form a contractual duty to return the key. By email dated June 21, 2011, to Mr. Rousseau, Ms. Banaszewski identified the keys assigned to Petitioner and the sites at which Petitioner was not conducting work and asked that Petitioner return these keys "as soon as possible." By return email the same day, Mr. Rousseau stated: "I am aware of the keys that need to be returned. All project that has [sic] a CC and no Perfection punch list, will be returned on Monday." In reply, by email on the same day, Ms. Banaszewski asked, "Please return all keys" and suggested that Petitioner obtain keys from individual schools, if Petitioner's employees needed access. Construing these three emails together, Ms. Banaszewski and Mr. Rousseau agreed that Petitioner would return the keys to the schools for which Petitioner had obtained CCs. At the time of these emails, among the schools that are the subject of Count IV, Petitioner had obtained CCs for only the following schools (CC issue date in parentheses): Spanish River (as noted above, May 11, 2011); Atlantic (February 4, 2011); Egret Lake (January 19, 2011), and Grassy Waters (January 19, 2011). Petitioner did not obtain CCs for Lighthouse and Limestone Creek until August 2011--after the Superintendent's charging letter of the previous month. The record does not reveal when Respondent issued the CC for Dwyer. Thus, Respondent has failed to prove by clear and convincing evidence in the form of these three emails a clear demand for the return of the keys to Lighthouse, Limestone Creek, and Dwyer. Except for testimony that changing the locks is expensive, the record is otherwise undeveloped as to the keys. Two omissions are particularly important. First, no employee of Petitioner admitted that Petitioner failed to return the keys. Ms. Banaszewski testified only that no one returned the keys to her. (Tr. 831, 840) This does not preclude the reasonable possibility that an employee of Petitioner may have returned keys to school administrators, the Facilities Management Coordinator for the school, or another of Respondent's employees. Second, Ms. Banaszewski admitted that she had never imposed a deadline on Petitioner for the return of the keys (Tr. 834). On July 16, 2012, Mr. Kunard sent Mr. Rousseau a comprehensive demand letter that covered the allegedly unreturned keys, but this letter is one year after the Superintendent's letter of July 2011, which is the charging document. Complementing the above-described failure of proof concerning the keys is a failure of the Contract Documents to require Petitioner to return the keys. Count IV relies instead on provisions of the Contract Documents requiring site security, but, especially where there are no indications of any breaches in site security, such provisions cannot be construed to require Petitioner to return the keys. For these reasons, Respondent has failed to prove by clear and convincing evidence that, without justifiable cause, Petitioner is guilty of a substantial or repeated failure to comply with the Contract Documents by failing to return the keys after written notice of such noncompliance. Aftermath The Superintendent's Letter and School Board's ratification have been detailed in the Preliminary Statement. After the School Board's ratification, but before the time had run for Petitioner to request a formal hearing on the still- preliminary delinquency determination, Ms. Swan advised Petitioner's insurers or sureties, or both, of the action of the School Board, as though it were final action. Ms. Swan admits that she has not worked on a delinquency previously. Unfortunately, even though the final determination of delinquency, subject to judicial review, will not take place until the issuance of a final order following this recommended order, Petitioner's sureties canceled Petitioner's bonds, and an individual who had guaranteed repayment to one or more sureties of $5 million withdrew his guaranty. Ms. Swan did not attempt to rescind her letter, although Mr. Kunard, who had sent a similar letter to a surety, rescinded his. Mr. Rousseau testified that the damage had been done and, specifically, that Petitioner was no longer an active corporation and is out of business. (Tr. 2980) In fact, Petitioner was still an active corporation at the time of the hearing, although it may be out of business. More importantly, the record does not reveal whether Mr. Rousseau exerted reasonable efforts to restore his company's bonding and, if necessary, the $5 million guaranty. Obviously, if Petitioner is out of business, the record does not provide a basis for determining the cause or causes for this development.
Recommendation It is RECOMMENDED that the School Board enter a final order ratifying Count II of the Superintendent's Letter for five of the Six Schools (except Independence Middle School), ratifying Count III of the Superintendent's Letter, declining to ratify Counts I and IV of the Superintendent's Letter, and determining that Petitioner is delinquent for one year from the date of final order. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of December, 2013.
The Issue Whether Respondent, Department of Transportation’s (“Department” or DOT”), notice of intent to award a contract to Intervenor, Archer Western De-Moya, Joint Venture (“AWD”), for a transportation project involving the design and reconstruction of federal and state roadways in Miami, Florida (“the Project”), is contrary to governing statutes, DOT’s rules, or the bid specifications; and, if so, whether the award is contrary to competition, clearly erroneous, or arbitrary and capricious.
Findings Of Fact Project, Parties & Participants Respondent, DOT, is the state agency authorized by section 334.30, Florida Statutes, to issue requests for proposals to solicit competitive bids for private-public (“P3”) partnership projects. The Project was located in District VI of the Department. Greg Schiess is the manager of the Strategic Initiatives Office for DOT. Mr. Schiess oversaw the Project and was the agency representative for DOT at the final hearing. Nadine Chinapoo was DOT’s procurement officer who oversaw the RFP process for the Project. The RFP had strict rules of contact between bidders and any DOT employee or officer. The Department designated Ms. Chinapoo as the “single contact and source of information” for the RFP. The Miami-Dade Expressway Authority (“MDX”) is a state agency created in 1994, authorized by Miami-Dade County, and funded through toll revenues. MDX has regional oversight of five expressways in Miami-Dade County, including State Road 836 (“SR 836”). On February 6, 2017, DOT issued the “Design-Build Request for Proposal for SR 836/I-395 from West of I-95 to MacArthur Causeway Bridge and I-95 Pavement Reconstruction and I-95 Southbound to SR 836 Westbound and SR-836 from West of NW 17th Avenue to Midtown Interchange (SR-836/I-395/I-95)” (“RFP”). The Department developed the RFP pursuant to section 334.30, Florida Statutes, which allows DOT to enter into a P3 to finance, design and build transportation construction and facilities. No one timely filed an objection to any of the RFP specifications. The RFP involves two contracts: (1) the DOT contract for federal interstates 95 (“I-95”) and 395 (“I-395”), and a portion of SR 836 leading to and from MacArthur Causeway Bridge; and (2) the MDX contract which involves another portion of SR 836 from Northwest 17th Avenue to the Midtown Exchange at I-95. A key component of the RFP was the replacement for “Bridge No. 8/9” of I-395, which would run east to west (“Signature Bridge”). According to the RFP, the Signature Bridge would take traffic over a portion of downtown Miami to and from the MacArthur Causeway. Ultimately, the winning bidder or design-build firm (“DB Firm”) would provide preliminary designs, coordinate design services with the Department to finalize the engineering and construction plans, and perform construction of the finalized designs. It would also need to self-finance the design and construction of the Project, because payment would be made by DOT into an escrow account and then disbursed to the selected DB Firm on periodic intervals. This form of payment was referred to as “gap financing.” BCC is a private civil engineering firm based in Florida specializing in roadway projects. The Department engaged BCC to advise and draft concept plans and portions of the RFP related to roadway design, roadway geometrics and temporary traffic control (also known as maintenance of traffic (“MOT”)). Staff from BCC also represented the Department in meetings with bidders as allowed by the RFP.4/ The Project Selection Committee (“PSC”) was made up of three members: Javier Rodriguez, Executive Director of MDX; Gerry O’Reilly, Secretary of DOT for District IV; and Dat Huynh, District Planning and Environmental Administrator of DOT for District VI. The PSC selected the Best Value Proposer (“BVP”) based on scores given for the bidders’ Technical Proposals, contract time, price proposals, and a passing grade for the bidder’s financial health. The PSC also met publicly at various times during the RFP process. The Technical Review Committee (“TRC”) was the group in the RFP process responsible for reviewing and scoring the Technical Proposal. The TRC was made up of four DOT engineers and one MDX engineer. The Technical Proposal was made up two volumes. Volume 1 was worth a total of 60 points and included criteria such as construction methods, MOT plans, and innovation. Volume 2 was worth up to 30 points, and addressed aesthetic criteria such as streetscapes, lighting and enhancements. The Aesthetic Review Committee (“ARC”) was the group assigned to review and pass acceptable Signature Bridge options. The ARC also was responsible for reviewing and scoring Volume 2 of the Technical Proposals from each bidder. There were originally five members: four non-DOT representatives from the local community; and Brian Blanchard, the DOT assistant secretary. Mr. Blanchard withdrew from the ARC prior to the scoring of Volume 2, when his duties at DOT increased after the DOT Secretary resigned. Each bidder could submit three bridge designs or options. The ARC members gave a “pass” or “fail” grade to each Signature Bridge option submitted. These pass/fail grades determined which proposals moved to the next phase of the RFP involving the technical aspects of the entire proposal. Although the ARC members also ranked each of the bidders’ options, these rankings were for “informational purposes only.” Leon Corbett, the Department’s finance manager for the RFP, was responsible for overseeing the final phase of the RFP process of evaluating the financial fitness of the intended DB Firm. Mr. Corbett was experienced in evaluating financial proposals submitted in response to requests for proposals, and specifically had experience in evaluating bidders for proposals involving P3s. Mr. Corbett and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. Petitioner, FAM, is a joint venture organized specifically to submit a response to the RFP. The corporate members of FAM are Fluor Enterprises, Inc. (“FEI”), Astaldi Construction Corporation and Munilla Construction Management, LLC (“MCM”). All three members of FAM are civil construction contractors that were prequalified by DOT to submit bids to the RFP. Hope Grumbles, FEI’s director of sales and infrastructure, served as the corporate representative for FAM at the hearing. AWD was also organized to submit a response to the RFP. AWD is composed of Archer Western Contractors, LLC (“Archer”), and the de Moya Group, Inc. (“de Moya”), both DOT- prequalified contractors. Ultimately, DOT issued a notice of intent that AWD had been chosen as the winning proposer or DB Firm. Kevin McGlinchey, the vice-president over Florida and the Caribbean for Archer, served as the corporate representative for AWD at the hearing. History and Groundwork for Project and RFP Planning for improvements to I-395 and the bridge to the MacArthur Causeway began in the early 1990s, but did not result in any renovations. Research on the project began again in 2004 with the beginning of a project development and environmental study (“PD&E”) and culminated in 2010 with the issuance of a Final Environmental Impact Statement and the Record of Decision.5/ The purpose of the PD&E study was to produce a recommendation for final designs and construction. Separate PD&E studies were done for the I-395 and SR 836 projects. The original PD&E premise was simply to replace the bridge on I-395, but that project did not move forward because of concerns that the bridge and the construction itself may have negative impacts on the area underneath and adjacent to the bridge, including Overtown, a historic black neighborhood located adjacent to I-395. At some point after the release of the PD&E studies, DOT created a Project Advisory Group which met numerous times until 2013. The Project Advisory Group consisted of representatives of numerous stakeholders in the road improvements, including governmental agencies and civic organizations from the local area. Meanwhile in 2010 and early 2011, BCC, on behalf of the Department, began developing the RFP language. Although it was not involved in the original I-395 PD&E, BCC reevaluated the PD&E for factors, such as environmental and socioeconomic impacts, traffic issues, and right-of-way requirements. These changes were incorporated in the concept plans and procurement language for the final advertisement requesting proposals for the Project. In 2013, a lawsuit filed against DOT in Miami-Dade County sought equitable relief relating to any bridge renovations by DOT. As a result, DOT agreed that any renovation or improvements by DOT to the I-395 interchange would include a “Signature Bridge” as part of the Project. In furtherance of this goal and to allow local input regarding the visual impact of the bridge on the area, DOT created an Aesthetic Steering Committee to review alternatives for the “Signature Bridge” and recommend a specific bridge design to DOT. Despite meeting numerous times, however, this committee was unable to reach consensus on any one specific design. The committee disbanded, but the concept of the committee’s role was incorporated in the RFP process in the form of the ARC. During this time, MDX also had plans to reconstruct portions of SR 836. DOT and MDX agreed to conduct the SR 836 renovations and the bridge replacement as part of the same project for convenience and to save resources. As a result, DOT partnered with MDX to conduct a multi-phased and comprehensive reconstruction project that would address the traffic and aesthetic concerns of the local citizens. The project would include three major components: (1) a “Signature Bridge”; (2) SR 836 renovations; and (3) I-395 renovations. Also as a result of the public’s concerns related to the visual impact of the Project to the surrounding areas, the Department developed an Aesthetic Manual (found at Joint Exhibit 3) for the Project. This manual focused on the Signature Bridge and area underneath the bridge. As explained in the Aesthetic Manual: [T]he signature bridge will be the crown jewel of the Project. The purpose of this structure is two-fold: to provide Downtown Miami with a contemporary infrastructure icon, and to improve the quality of the space below 1-395 by relieving it of obstructing piers and columns. . . . Irrespective of the ultimate design, the Signature bridge shall still adhere to [certain] constraints: [The] Signature bridge shall have a constant depth superstructure. The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Concept Plans To provide bidders with an established set of design objectives (i.e., an idea of what it was looking for in the final product), DOT created concept plans that identified the project’s physical boundaries, the scope of the interstate reconstruction and proposed layouts. The RFP concept plans were developed and approved as part of the PD&E studies that were conducted for the I-395 and SR 836 projects prior to the issuance of the RFP. It is clear from the RFP itself and the testimony at the hearing that changes to the concept plans were anticipated and encouraged. A bidder’s improvements to the basic requirements and layouts to the concept plans could garner more points in the final bid score. The RFP described the purpose of concept plans. The Concept Plans have been developed to illustrate the work required for the Total Project. The Design-Build Firm may make use of the design in the Concept Plans as a starting point for the design. However, the Design-Build Firm is not limited to only the work identified in the Concept Plans but must stay within the constraints of the Department Commitments and the requirements of the RFP. Anthony Jorges, a civil engineer and the BCC consultant working with the Department on the roadway design, geometrics and MOT requirements of the RFP, gave clear and convincing testimony. He testified the concept plans were to serve as a launching pad for the proposals. [The concept plans are] essentially a starting point for the design-build teams. [I]t really is a conceptual level, about a 30 percent level design, but it gives the teams a point to start. It by no means is final or unmodifiable. It’s just a starting point . . . a baseline to start off with. No one timely filed any protest of the concept plans. RFP Timing and Process The procurement process took place over a year, from the date of advertisement to the selection of the DB Firm. The RFP process was broken down into four phases. Phase I: Short Listing Phase II: Aesthetic Signature Bridge Submission Pass/Fail Phase III: Technical Proposal Submissions and Scoring Phase IV: Price Proposal and Financial Proposal Submittals Although addressed in detail below, in summary, prequalified bidders were first required to submit a letter of response with specific preliminary information about the bidder. DOT then created a shortlist of bidders based on review of these letters. Each shortlisted entity was then given the opportunity to submit Aesthetic Signature Bridge Proposals. Each bidder that had a passing Aesthetic Bridge submission was permitted to submit a Technical Proposal and Financial Proposal. After the Technical Proposals were scored, the scores were announced along with each bidder’s price proposal and proposed contract time. After getting a pass grade on its financial proposal from the Department, the PSC selected the BVP. Phase I In Phase I, each proposer was to provide DOT a “Letter of Response” with general information, such as the proposer’s past projects and résumés of designated key staff positions. Specific to this protest, bidders were to designate a bridge architect and engineer of record for the Signature Bridge. Each timely Letter of Response submitted to the Department was to be evaluated on specific criteria by the PSC. DOT would then post a shortlist of bidders authorized to submit proposals. Petitioner and Intervenor submitted a Letter of Response and the PSC selected both for the shortlist, thereby advancing both to the second phase of the RFP process. Phase II Each proposer that was shortlisted provided a draft submittal of its Signature Bridge design or design options. These drafts were vetted by DOT through meetings that allowed the proposers and the Department to discuss any questions or concerns either had about the draft proposals. No members of PSC, TRC or ARC attended these “vetting” meetings; the meetings were solely intended to provide feedback and answer questions between DOT staff and the proposers. After the “vetting” meetings, each shortlisted proposer submitted up to three final Signature Bridge options to the ARC. Each ARC member then gave each option a “pass” or “fail” grade. If a proposer submitted more than one option, the ARC members ranked that proposer’s options by preference. These grades and rankings were provided to the PSC for review. To move to the third phase, a proposer must have received at least one “pass” rating. The RFP specifically provided the ARC’s rankings of individual options “are purely for informational purposes only, and will have no direct impact on the Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal.” On August 19, 2016, DOT issued the “Aesthetic Bridge Proposals Pass/Fail Posting Notice” indicating that the PSC had reviewed the ARC’s rankings. As allowed by the RFP, the PSC determined that the bidders that received three out of five passes would move on. AWD’s Signature Bridge proposal was a fountain-like design with multiple arches sprouting from a unified point. FAM’s Signature Bridge design consisted of two cabled structures that were similar, but inverted. Each had an arm with a rotating disk extending into the air. Ultimately, the PSC approved these submissions from FAM and AWD to proceed to the third phase of the RFP process. Phase III Whereas Phase II focused on the Signature Bridge, Phase III involved the Technical Proposals from the bidders. Each Technical Proposal was made up of a Technical Volume (Volume 1) and Aesthetic Volume (Volume 2). The TRC members reviewed and scored both volumes; the ARC members only scored Volume 2. According to the RFP, the technical scores were based on an “adjectival scoring system” that required each of the TRC and ARC members to review the volume or volumes of the proposals he or she was assigned and give each section an “excellent,” “very good,” “good,” “fair,” or “poor.” These descriptive ratings were later converted to a numerical value and announced at the public meeting held on April 24, 2017, to open the contract time and price proposals. Ms. Chinapoo provided the Technical Proposals, the individual scores of the evaluators, and a spreadsheet compiling all the scores to the PSC for review prior to the April 24 public meeting. Unlike the other bidder’s proposals, AWD’s Technical Proposal included a viaduct made up of two by-pass lanes in each direction on an elevated freeway along the center of the existing SR 836. The viaduct had construction and safety advantages over traditional “parallel lane” formats and would eliminate interaction between I-95 traffic and special event traffic in downtown Miami. Because this was a novel concept not addressed in the RFP or concept plans, AWD was required to get DOT’s approval before submitting the preliminary designs. After the TRC and ARC members reviewed the Technical Proposals, AWD received a 53.980 out of 60 points on Volume I and 24.389 out of 30 points on Volume II; FAM received 50.180 points for Volume I and 28.656 on Volume II. ATC Process Bidders were allowed to obtain permission to deviate from the concept plans and RFP requirements in certain aspects. The RFP outlined a process for approving requests for an Alternative Technical Concept (“ATC”), which included any deviation from a component of the technical requirements, or any proposed material or technology not addressed in the RFP. The RFP schedule anticipated that bidders would submit their ATC requests after Phase I and, if approved, incorporate them in the Technical Proposals submitted in Phase III. The purpose of the ATC process was to allow “innovation, flexibility, time and cost savings on the design and construction of Design-Build Projects while still meeting the Department Commitments.” The ATC process included one-on-one discussion meetings between the Department (or its representatives from BCC) with bidders “to describe proposed changes to supplied basic configurations, Project scope, design criteria, and/or construction criteria.” The purpose of these one-on-one ATC meetings was to discuss the ATC proposals, answer questions that the Department may have related to the requested deviations, review other relevant information, and establish whether the ATC proposal met the requirements for approval when possible. Representatives from the bidders and/or their engineers or designers, and DOT staff were involved as needed to provide feedback on the ATC. None of the TRC, ARC, and PSC members attended ATC meetings or participated in the ATC process. An ATC was deemed worthy of approval if the concept suggested was equal to or better than the existing requirements of the RFP, as determined by the Departments. ATC requests, which reduced scope, quality, performance or reliability, would be rejected. The Department retained discretion to approve or deny an ATC without a need to state justification. Once approved, an ATC was treated one of two ways: with an addendum to the RFP so all proposers were aware of the deviation; or (2) without an addendum so only the proposer that submitted the ATC would be permitted to utilize the approved ATC in its design. Not all concept plans or RFP requirements were modifiable; some could not be changed through an ATC. Specific to these proceedings, the RFP had “specific ATC restrictions” (or what the parties referred to as “nonmodifiables”) on the following requirements: Minimum basic number of lanes [for I-395 and I-95] as shown in Attachment A-33. All Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL). Minimum basic number of lanes [for SR 836] as shown in Attachment MDXA-02. Minimum widths of mainline lanes and ramp lanes [for MDX]. Preliminary Plans and Confirmation Letter During Phase III, each remaining bidder was required to submit a technical proposal in which the bidder provided design concepts with preliminary plans. The RFP did not seek proposals of final designs that were ready for construction. Rather, as explicitly stated, the actual preparation of final plans and designs was to be part of the contract work being solicited, and would be performed after contract execution. As was clear from the RFP and testimony at the hearing, the goal of the procurement was not for the award recipient to provide final signed and sealed plans. Instead, it would provide plans as deliverables in the contract, submitted to DOT engineers for review, comment, and approval. More precisely, the RFP and contract required the winning bidder to submit--during contract performance--60- percent plans (plans that are 60-percent complete) for DOT comment and approval, followed by 90-percent plans for further DOT review. Only after the 90-percent plans were finalized, were they to be signed, sealed, and submitted to DOT for construction. In other words, the final design plans were to be developed by the DB Firm’s designers in collaboration with DOT’s (and MDX) staff as part of contract performance and deliverables--not as part of the procurement itself. Because of the unique fluid nature of the proposal drawings, the RFP provided that DOT may waive minor irregularities in proposals as follows: Waiver of Irregularities The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposals by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Any design submittals that are part of a Proposal shall be deemed preliminary only. Preliminary design submittals may vary from the requirements of the Design and Construction Criteria. The Department, at their discretion, may elect to consider those variations in awarding points to the Proposal rather than rejecting the entire Proposal. In no event will any such elections by the Department be deemed to be a waiving of the Design and Construction Criteria. Because the proposal plans were merely preliminary, DOT required each bidder to submit a “Written Confirmation Letter” (“Compliance Letter”) stating that regardless of the preliminary plan, if chosen as the DB Firm, it would comply with and be bound by all requirements in the contract documents during contract performance. The winning bidder was required to fully comply with the Design and Construction Criteria and other RFP requirements for the price bid, regardless of the preliminary designs or if the proposal was based on a variation. AWD and FAM each submitted Compliance Letters. Phase IV and Selection of AWD as BVP In Phase IV, FAM, AWD, and two other bidders submitted their price proposal and total project calendar days. During the public meeting on April 24, 2017, price proposals from each proposer were opened. The price proposals also included each proposer’s total estimated contract time. Based on the formula set forth in the RFP, each proposal received a score for its price proposal. The members of the PSC were not involved in evaluating the price proposals or the contract time. Instead, the prices and contract times were evaluated by DOT staff, who were to alert the PSC members to issues with a proposer’s price or contract time. The record established DOT staff were not concerned and did not alert the PSC members to any issues. Both AWD and FAM received a score of 4.99 points for their price proposals. AWD proposed a total contract time of 1,460 days; FAM proposed a total contract time of 1,825 days. The RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Using this formula, AWD received 5.00 out of 5 points; and FAM received 4.00 points. The total scores were then noticed by the Department. The next step in this phase was for the Department to evaluate the financial fitness of the intended award. The Department’s finance manager for the RFP, Leon Corbett, and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. As noticed in the RFP, the financial review portion for this RFP was to occur after the April 24 public meeting announcing the technical scores and price proposals. The RFP states that the “PSC shall select the BVP for the Total Project.” It also states that “[t]he Proposer with a responsive Proposal will be evaluated by the PSC for award of the I-395 Agreements as the Best Value Proposer as set forth in this RFP.” Finally, the RFP provides as follows: The PSC will review the evaluations of the Technical Proposal and the scores for the Proposed Contract Time and Scored Price Proposal for each Proposer and make a final determination of the highest score. The PSC has the right to correct any errors in the evaluation and selection process that may have been made. The Department is not obligated to award the I-395 Agreements and the PSC may decide to reject all Proposals. If the PSC decides not to reject all Proposals, the I-395 Agreements will be awarded to the Proposer determined by the PSC to be the Best Value Proposer. Before the scheduled PSC meeting on May 12, 2017, Ms. Chinapoo provided each PSC member with the technical proposals submitted by the vendors, the individual scores of the evaluators, and a spreadsheet compiling the scores. On May 12, 2017, the PSC met to consider the scores, as well as DOT staff’s evaluation of the AWD financial proposal. The PSC unanimously determined that AWD was the “Best Value Proposer” based on the highest technical score, the best value proposer and the best contract time. One PSC member, Mr. Rodriguez, testified that before the May 12 meeting he spent about 12 hours reviewing the material before making the final decision as to which bidder would be BVP. He also testified that he considered AWD the BVP because “they had the best score, after they were scored, they had a compliant price, and they had the best time.” Mr. Rodriguez indicated he would have asked any questions at the meeting had he seen anything unusual, untoward, or problematic about the scoring of the proposals. Mr. Rodriguez noted there was one anomaly in the technical scores of one ARC member who preferred the FAM’s proposal. Whereas the other members of the ARC gave AWD scores of 26.2, 24.6, and 17.80 out of 30 points for Volume 2, John Richard gave AWD a score of 7.20 points; while awarding FAM a nearly perfect score of 29.300. Mr. Richard awarded the other two proposals (not FAM or AWD) 9.00 and 2.5 points. Mr. Rodriguez considered, but was not concerned about Mr. Richard’s individual scores because Mr. Rodriguez felt the scores were based on “aesthetics” and just “an opinion” about which proposal Mr. Richard thought offered the prettier bridge. There is no evidence establishing the PSC failed in its responsibilities or did not follow the RFP process in selecting the BVP as described in the RFP. After the PSC determined the intended award, the Federal Highway Administration was required to concur, the DB Firm was required to submit final financial documents, and the parties would then execute the contracts. DOT’s Scoring In the Amended Protest, FAM asserts the bid award should be rejected because the Department used the wrong methodology for assigning the technical scores for Volume 2. DOT took all of the reviewers’ scores, added them together and divided them by the number of reviewers. FAM claims that correct methodology would be to take the ARC members’ individual scores and average them to one score (x); take the TRC members’ individual scores and average them to another score (y); and then average x and y to arrive at a technical score for Volume 2. Although the RFP was specific as to what criteria the ARC and TRC members were to use in grading the technical proposals, and how those grades were converted to numbers, it was silent as to how the individual reviewers’ scores would be combined to come up with one score for Volume 2. As explained previously, all members from the TRC and the ARC used an “adjectival scoring system” that required individual evaluators to rate portions of the proposals as “excellent,” “very good,” “good,” “fair,” or “poor.” Consistent with the RFP, non-reviewers (Mr. Schiess and a DOT in-house attorney) assigned numerical equivalents to the adjectival scores. These individual numerical conversions were delivered to Ms. Chinapoo, who kept them secure until the scores of all proposers were presented in a spreadsheet during a public meeting on April 24, 2017. As established by the evidence at the hearing, typically in DOT procurements there are technical reviewers scoring the technical part of proposals. In that situation all of the reviewers’ scores are averaged (i.e., added all together and divided by the total number of reviewers). Unlike other procurements that are based only on technical components and price, this RFP involved an additional component relating to aesthetics. Therefore, in this RFP process there were two separate scoring committees, ARC and TRC, each starting out with five members each. Mr. Rodriguez testified the method used by DOT-– calculating the final score by adding up the scores from the individual reviewers and then dividing it by the number of reviewers--was common practice. Theoretically, under this typical method, for the Aesthetic volume of the Technical Proposals, DOT would have added the scores from each of the ten committee members and divided by ten to reach the technical score. During the course of the procurement, however, one of the members, Brian Blanchard (the sole DOT representative on the ARC) resigned from the committee, and was not replaced. The RFP is silent as to how the absence of a committee member should be treated. DOT addressed the reduction in ARC membership by notifying the proposers that Mr. Blanchard was no longer on the ARC; and explaining the “scoring of your Technical Volume 1 will be done by the five-member Technical Review Committee (TRC), who will also score your Aesthetic Volume 2, along with the four remaining members of the ARC.” It did not clarify how the individual scores would be used to arrive at a total score. As reflected in Joint Exhibit 46, DOT converted the adjectival description provided by each ARC and TRC member and then calculated the scores of each of the reviewers to reach a total sum, which was then divided by the number of reviewers for each volume of the technical proposal. The language in DOT’s notice announcing Mr. Blanchard’s departure from the ARC is ambiguous. The fact, however, that the Department did not provide a formula (as it did for scoring the price proposal or contract time scores) and that it mentioned the “members,” and not the committees, supports the use of the typical averaging methodology, averaging scores of all nine evaluators. As Mr. Schiess testified, this is the way an evaluator’s scores would be treated in any other procurement. Q.: Do you know who made the decision on how to average those numbers? A.: The decision to average the scores has been something the Department has been doing. That’s just common practice. Q.: And what is the common practice? A.: To average the scores of the evaluators. Q.: Just take a straight average, add up all the evaluators and divide the scores by the number of evaluators? A.: Correct. Similarly, the testimony of the PSC members established this was common practice. Mr. Rodriquez testified that he has served on numerous DOT project selection committees over the years and that scores of evaluators are typically averaged. Dat Huynh, another PSC member, described the process as “regular averaging” as “just combining the number and dividing by the number of people that were in participation.” The testimony established any contrary method would need to have been clearly spelled out in the RFP. At the May 12 public hearing, FAM’s representatives raised the issue of the scoring and claimed it defeated the public’s role in the process. The evidence, however, established the public did have a key role in the selection of the Signature Bridge. The ARC’s role was to provide public input. In addition to scoring Volume 2, the ARC evaluated the Signature Bridge design proposals on a Pass/Fail basis and served as the “gate-keeper” keeping any designs it did not approve from moving further in the process.6/ John Morris, president of the third-place proposer, also indicated at the May 12 public meeting that based on his experience the process was not unusual: My team came in third in that process. And I’m not really here representing my joint venture team. I’m really more here as someone who has done a great deal of work with the Department of Transportation and bid on a lot of design-build projects over the last 20 years, and as far as I’m concerned, the DOT followed the process that they laid out in the RFP. Additionally, a plain reading of the RFP indicates it was the weight of the individual ARC members, not the ARC as a whole, that was valued. For example under the section titled “Aesthetic Signature Bridge Proposals Pass/Fail,” the RFP stated in relevant part: Each ARC member will independently pass or fail each option submitted. Each ARC member will also rank the options provided by a Proposer against the other options provided by the same Proposer against the other options provided by the same Proposer. * * * Although the ARC members will rank the different options . . . these rankings are purely for information purposes only, and will have no direct impact on Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal. * * * [T]he PSC will recalculate the options based on “passing” being lowered to three (3) out of five (5) passes from the ARC members. (RFP at 20)(emphasis added). There is also support for using individual scores in the RFP section titled “Final Selection Process,” which provides that at the public meeting where the price proposals are opened, “the Department will announce the adjectival scores for each member of the TRC and ARC, by category, for each Proposer.” (emphasis added). This interpretation makes sense given that the previous form of the ARC, the Aesthetic Steering Committee, could not come up with a consensus regarding a style or appearance for the Signature Bridge. Moreover, given that it was the DOT’s representative and not a public member that resigned, it cannot be said that the method used by DOT undermined the public’s participation in the process. There is no evidence that the method put forth by FAM is supported by the RFP, any rules or by any industry or departmental precedent; nor is there evidence that the ARC and TRC were to contribute to the scoring process equally. There is no evidence that the averaging methodology used by DOT is contrary to any statute or rule. The Department’s deriving the total score for Volume 2 by averaging all the evaluator’s scores was not clearly erroneous, contrary to competition or arbitrary and capricious. AWD’s Contract Time As stated previously, the RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Additionally, the RFP noted: “The Proposed Contract Time should incorporate and set forth an aggressive but realistic time frame for the required completion of the Total Project.” According to the RFP, any time more than 1,825 days would be nonresponsive. AWD’s Proposed Contract Time was 1,460 days; FAM’s Proposed Contract Time was the maximum provided by the RFP-– 1,825 days. This comes out to be a 365-day or a one-year difference. As a result, using the formula in the RFP, AWD achieved a score of 5.0 out of 5 points for its contract time, and FAM achieved a score of 4.0 points. FAM challenges AWD’s contract time, claiming it was not realistic. FAM argues the 1,460 days proposed by AWD was unrealistic and insinuates this number was done solely to manipulate the scoring. AWD counters, not only was it realistic, it was aggressive, as requested by the RFP. There is no evidence of collusion or that AWD knew the individual technical scores before it came up with its proposal or that there was any kind of unethical or improper conduct relating to the contract time. Rather there was competent and convincing evidence that AWD’s shorter time proposal was realistic given its resources and experience. Kevin McGlinchey, who was involved in developing AWD’s contract time, testified the calculation of AWD’s contract time was an on-going process and was not finalized until a short time before the price and time submission was due. The evidence established AWD’s joint members had previous experience with DOT and P3/design-build projects. In addition, AWD was a very large contractor in the state with access to adequate local labor. Archer employs 1,300 workers in the area; de Moya employees up to 300 workers in the area. For example, depending on equipment availability AWD could have five eight-hour shifts, five ten-hour shifts, or six eight-hour shifts; or AWD could increase the number of crews working each shift. This access to labor afforded AWD the ability to increase its crews and shifts, thereby reducing the length of total work time. AWD also reduced its contract time over the procurement process by changes in its construction plan that allowed it to overlap construction phases and work on more than one segment of the Project concurrently, instead of running consecutively as originally anticipated when it submitted preliminary design documents and MOT plans. Mr. Schiess testified that he and a DOT bridge expert reviewed AWD’s Proposed Contract Time to determine whether it was realistic. This review was conducted between the time the scores were publicly released on April 24, 2017, and the PSC meeting on May 12, 2017. Mr. Schiess testified “based on our experience in Florida and other projects [with] these contractors [Archer and de Moya], that [1,460 days] was not an unrealistic time.” Because there was competent evidence AWD had the resources and a plan to complete the Project in the 1,460 days, its contract time proposal was aggressive, realistic, and responsive to the RFP. AWD’s Financial Proposal FAM also challenges the “Pass” grade DOT awarded AWD on its Financial Proposal. It argues (1) DOT failed in not reviewing FAM’s financial proposal; (2) AWD’s original financial proposal was non-responsive; and (3) DOT improperly allowed AWD to supplement information to its original financial proposal. Section VI, M., of the RFP addresses the financial requirements of the RFP and the documentation that must be provided by bidders. The financial evaluation is a two-step process with an initial Financial Proposal to be submitted on the due date for the price proposals. After the PSC chose a BVP, Mr. Corbett and his staff was also responsible for reviewing a final letter of commitment or credit provided by the DB Firm, which was due 15 days following the Department’s posting of its Intent to Award. Mr. Corbett and his staff conducted the initial financial review for this procurement after the public meeting, announcing the technical scores, price proposals and contract times. The Department was to give the highest scoring bidder either a pass/fail grade, which was relayed to the PSC to make its final decision. During this period, the RFP specifically allowed Mr. Corbett to obtain additional financial information. It states: The Department’s evaluation of a Financial Proposal is solely for the benefit of the Department and not for the benefit of the Design-Build Firm, any entity related thereto, the public or any member thereof, nor create for any third party rights. . . . The Departments evaluation of each Financial Proposal will be on a pass/fail basis. Analysis of the Design-Build Firm’s Financial Proposal by the Department will include, but not be limited to the following: * * * d. Review of the Lender Letter(s) of Commitment or Demonstration of Line(s) of Credit to determine if it meets the financing needs established in the Project Financial Plan. * * * The Department reserves the right to request any additional information or pursue other actions required to meet its obligations to complete the financial due diligence. (RFP at 70.) As an initial matter, although Mr. Corbett did not conduct a concurrent pass/fail review of the financial proposal submitted by FAM (or the other bidders who made it to Phase IV), nothing in the RFP required the Department to review and assess the financial proposals of all the bidders. FAM asserts by failing to have its financial proposal evaluated, the PSC was deprived of the option of awarding the contract to FAM. However, if the PSC had opted not to award the contract to AWD despite its status as the highest scoring bidder, nothing in the RFP would have precluded the Department from initiating a pass/fail review of the FAM financial proposal at that point to assess FAM’s financial viability for the contract award. The Department did not err in evaluating only the highest scoring bidder, AWD. Regarding AWD’s responsiveness to the financial requirements of the RFP, AWD timely submitted its financial proposal to DOT on August 24, 2017, which included a preliminary letter of commitment (“PLOC”) from BankUnited. According to the RFP, the PLOC was required to contain the following information at a minimum: The lender was interested in providing financial support for the project; The lender had reviewed the financial requirements of the RFP; The amount of financial support the Lender intended to provide (no minimum amount was required by the RFP); Any special conditions to the PLOC. After AWD was ranked as the highest scoring bidder, Mr. Corbett and his staff conducted DOT’s initial review of AWD’s financial proposal. There is no dispute that DOT had the right to request any additional information or pursue other actions required to meet its duty of due diligence. The evidence established the original financial proposal met the minimum requirements of the RFP, but DOT requested additional assurances and clarification regarding its PLOC, which AWD provided. As Mr. Corbett explained, AWD’s Financial Proposal was responsive to the RFP requirements, but he had questions relating to the PLOC. Q.: And so this determination of responsiveness was made after you had the original financial proposal, Archer Western- de Moya, the first supplemental proposal and a second supplemental proposal that we just went over, correct? A.: So I mean, there is responsiveness and there is pass/fail, and I think that’s where we have to explore a little bit more. The letter states responsive, meaning it meets the minimum requirements. And then there is the pass/fail, which I don’t know why I didn’t address pass/fail, why I didn’t say it’s a pass in the letter. But the pass came at that point, too, yes. * * * So my answer is it wasn’t an additional proposal, it was--the original proposal was what was evaluated for responsiveness. We asked for additional assurances to make sure they were headed towards a path of getting the resources necessary to finance the project. So the determination was made after receiving all that information. It is evident on the face of the BankUnited PLOC that it is responsive, as it complies with the following minimum RFP requirements. BankUnited confirmed “its interest in providing financing” for the project. BankUnited stated it “has taken careful consideration to review and understand the financial elements of the Project.” BankUnited specified it was “prepared to provide a credit facility up to” $125 million; and the $125 million credit facility consists of $75 million from BankUnited and another $50 million from other participating banks. It is this reference to “other participating banks” that triggered Mr. Corbett to request further information. Attached to the PLOC was a term sheet from BankUnited that sets forth the conditions for its $125 million credit facility. Although FAM contends that the BankUnited PLOC is nonresponsive because BankUnited is only committing to provide $75 million of the $125 million credit to AWD, the evidence at the hearing established BankUnited was proposing to provide a single credit facility totaling $125 million, some of which BankUnited may obtain through group or a “pool” of lenders. The financial proposal was that BankUnited would be the lead arranger of multiple banks participating in the “lending pool.” Nothing in the RFP prohibited this type of “pool,” and the testimony at the hearing established DOT has accepted this kind of loan structure in the past. Where a single credit facility in the form of a loan pool is being proposed, there is nothing in the RFP that precluded BankUnited, as the lead arranger, from submitting the PLOC on behalf of all of the lenders that are or would be participating in the credit facility. Regardless, even if BankUnited’s PLOC is treated as offering a credit facility in the amount of $75 million rather than the full $125 million, this does not render the AWD financial proposal nonresponsive since the RFP merely requires that the PLOC state the “amount the Lender intends to lend,” and does not require what amount that should be. The RFP only states that the commitments “should meet the required amount [of gap financing] identified in the Project Financial Plan.” Obviously, the goal was to ensure the winning bidder had the ability to secure preliminary commitments equaling the amount it may have to put forward for completion of the Project because DOT would be making period payments, but not until after the DB Firm had incurred the expenses. Given BankUnited’s PLOC meets the minimum requirements of the RFP, AWD’s financial proposal was responsive. Moreover, the RFP allowed DOT to look beyond the bare minimum requirements of the RFP to obtain a higher level of assurance before finalizing a “passing” grade. Mr. Corbett also wanted the information in anticipation of questions that the PSC members may have. Specifically, the evidence established that on April 25, 2017, Ms. Chinapoo’s requested AWD to provide additional information regarding the proposed pooling loan being offered by BankUnited. In particular, Mr. Corbett sought “additional assurances” that BankUnited would be able to obtain the balance of the “pool” financing from other participating banks. On April 27, 2017, AWD responded to DOT’s request for additional assurances. In this response, AWD reaffirmed that BankUnited was committed to provide the Final Letter of Commitment that was required under DOT’s RFP. Because AWD’s compliance with the request for information was provided prior to the agency’s announcement that it intended to award the contract to AWD, these additional documents did not violate section 120.57(3)(f). On April 28, 2017, AWD also confirmed to DOT that it had taken steps toward finalizing the $125 million pooling credit facility described in the BankUnited PLOC. AWD also provided another PLOC from Private Bank indicating Private Bank also had an interest in participating in the BankUnited credit facility. Private Bank’s PLOC proposed that it would participate in BankUnited’s credit facility (rather than offering its own credit facility) and that its proposed $50 million loan to the $125 million pool would be the same as the conditions set forth in BankUnited’s term sheet. AWD’s April 28 response also advised that it was continuing to explore the possibility of having BankUnited provide a credit facility for the entire $125 million in gap financing needed. The details regarding this alternative credit facility were described in a letter from BankUnited that was attached to AWD’s April 28 response. Mr. Corbett admitted he considered the additional information received from AWD before announcing his final decision to “pass” the AWD financial proposal; and this information solidified his decision to give AWD a passing grade. Although hypothetically it is possible that had AWD provided different information, Mr. Corbett would have not been assured and may have reached a different result, this is not evidence of an error. Rather it is the essence of conducting “due diligence.” It is also true the additional information BankUnited provided included information that was not contained in AWD’s April 24 financial proposal. Based on this, FAM argues that the April 27 and April 28 responses constitute modified or amended financial proposals that were submitted after the RFP’s financial proposal deadline in violation of section 120.57(3)(f). However, FAM’s position must be rejected for several reasons. First, the RFP expressly authorized DOT “to request any additional information or pursue other actions” in furtherance of its financial due diligence. This clearly is broad authority that does not limit DOT’s inquiry to information that merely clarifies the financial proposal. Having failed to challenge this “due diligence” language in the RFP provision within the time permitted by section 120.57(3)(b), FAM has waived any objection to DOT’s use of this provision. Further, in both its April 27 and 28 responses, AWD reaffirmed that it was prepared to move forward with the BankUnited credit facility proposed in AWD’s April 24 financial proposal. Although AWD’s April 28 response included information from Private Bank, this information did not propose a new or different credit structure, it simply provided additional information regarding the pool structure expressed originally by BankUnited. Because the BankUnited credit facility indicates that there would be other lenders participating in its credit facility, the identification of Private Bank is consistent with, rather than amending or modifying, the financing plan presented in AWD’s financial proposal. Again, the purpose of the Financial Proposal and PLOC was not to obtain a final commitment from the DB Firm to a particular financing arrangement with a particular lender. Instead, the RFP only required the proposer to present its “preliminary” or possible financing plans so that DOT could evaluate the likelihood that the final award would go to a proposer that had the financial resources necessary to finish the project on time. Only after the contract was awarded would AWD be required to present DOT with its final financing plan in the form of a final letter of commitment. Nothing in the RFP required that this final financing plan be identical to the preliminary financing plan that was presented in AWD’s initial Financial Proposal. As such, the Department’s request for and consideration of the information from AWD regarding the BankUnited PLOC and the pooling credit structure did not violate section 120.54(3)(f), and was not clearly erroneous, contrary to competition or arbitrary and capricious. FAM also argues the Preliminary Term Sheet (“PTS”) attached to the BankUnited PLOC conflicts with the RFP, which specifies the circumstances under which money paid under the proposed contract may be assigned to a lender as security for a loan. The RFP provision at issue, referred to by the parties as the “Assignment Clause,” states in relevant part, as follows: Reimbursement shall be made to the Design- Build Firm by warrant mailed to the Project Specific Escrow Account [“PSEA”] using a unique vendor number sequence. The Design-Build Firm may, with the express written consent of the Surety(ies) and the Lender(s) Financier(s), sell assign or pledge any monies paid into the Project Specific Escrow Account by the Department in favor of third parties and including but not limited to the Design-Build Firm’s Surety(ies) and Lender(s)/Financier(s); however, any such sale, assignment or pledge must only attach to payments made by the Department after such funds have been paid by warrant mailed to the Project Specific Escrow Account, and no sale, assignment or pledge of any receivable from the Department is authorized nor will be permitted by the Department. (RFP at 63)(emphasis added). AWD submitted with its Financial Proposal the BankUnited PLOC, which had an attachment with the following relevant language: Seller [AWD] proposes to sell the right of certain future [DOT] payments . . . to one or more Purchasers in order to finance the Project. As established by Mr. Corbett and Department e-mails, the intent of the Assignment Clause was to make “each [contract] payment payable to the vendor/contractor executing the agreement.” In this regard, the RFP treats the deposit of funds into the PSEA as payment to the contractor. The assignment is permitted under the RFP’s Assignment Clause if AWD’s assignment of a contract payment to a lender does not divert DOT’s payments away from the PSEA to BankUnited. In other words, there is no violation if the funds continue to be deposited into the PSEA. If, however, the assignment gives BankUnited the right to receive payments from DOT before the payments are mailed to the escrow account, it violates the RFP’s Assignment Clause. There is no dispute that the BankUnited PTS purports to assign certain rights held by AWD to the BankUnited as collateral for the proposed credit facility. The terminology used to describe the assignment is non-specific and creates ambiguity as to what the particular right is that is being assigned or sold. For instance, there is language in the PTS indicating that AWD is selling or assigning its “right to payment from DOT” without describing what that right is. In order to know what “right to payment” is being assigned, it has to be determined what right to payment AWD would actually have under its DOT contract since AWD cannot sell or assign contract rights that it does not have. See Cole v. Angora Enters., Inc., 403 So. 2d 1010 (Fla. 4th DCA 1981). As established by the RFP and testimony at the hearing, AWD will have no right under the DOT contract to receive payments directly from DOT; rather, payments from DOT will first be deposited into the PSEA, which will then be available for disbursement to the DB Firm. Because AWD will have no right to direct payment from DOT (as opposed to indirectly through disbursement from the PSEA), AWD cannot assign or sell a right to direct payments from DOT to any lender, including BankUnited. Stated differently, the only “right to payment” that AWD can assign is its right to payment from the PSEA. Moreover, the plain meaning of the PTS establishes AWD does not intend to assign or sell to BankUnited the right to receive payments from DOT before the payments are deposited into the Project Specific Escrow Account. The PTS states as follows: The Seller [AWD] shall establish a project specific escrow account (the “Project Specific Escrow Account”) with the Escrow Agent. All payments payable by DOT under the Department Contract will be deposited into the Project Specific Escrow Account. (emphasis added). Consistent with this directive, the PTS requires the parties, including BankUnited, to execute the “DOT Project Specific Escrow Account Form” as part of their financing transaction. As established by the Department’s exhibits, the purpose of DOT Project Specific Escrow Account Form, which must be signed by both the bidder and lender (or in this case AWD and BankUnited), is to “irrevocably” request, authorize and direct DOT “to process, issue and transmit any and all future payments otherwise payable directly to [the DB Firm] to now be processed, issued and transmitted using DB Firm’s Project Specific Escrow Account . . . in lieu of DB Firm’s regular vendor account. . . .” This irrevocable request to DOT would be made in the name of AWD as the DB Firm contracting with DOT. As the lender, BankUnited’s signature on the form would indicate its consent and agreement “to be so bound by the entirety of the terms of [AWD’s] Request for Specific Escrow Account ” In other words, by signing this form, BankUnited will be agreeing to be bound by AWD’s irrevocable request to have all DOT payments deposited into the Project Specific Escrow Account. This means that, in accordance with the RFP’s Assignment Clause, BankUnited will be irrevocably agreeing not to receive payments from DOT before payments are deposited into the Project Specific Escrow Account. The arrangement between AWD and BankUnited does not violate the Assignment Clause and is, therefore, responsive. AWD’s Technical Proposal FAM challenges a number of aspects of AWD’s technical plan as being non-responsive to the RFP. Specifically, it claims AWD’s proposal violates the non-modifiable requirements for the number of lanes on certain portions of the Project and the lane width requirements. Basic/Continuous Lane Requirements for I-395 (Attachment A-33) As described earlier, AWD made substantial changes to the RFP’s concept plans for I-395 and SR 836 by proposing a two- tiered road formation made up of a two-lane viaduct on an upper level and a collector road system on the lower level. In order to pursue this design, AWD submitted an ATC proposal which was eventually approved as “ATC 12C”. The proposed viaduct would have two continuous lanes in each direction between the two major highway systems, SR 836 and I-395, without being impeded by local SR 836 traffic. The local traffic would be carried on a lower roadway or Collector- Distributor (“CD”) road underneath the viaduct. This lower CD road would also have one continuous lane in each direction, for a total of three continuous lanes in each direction. DOT determined that the viaduct concept and changes were an improvement over the RFP concept plan. As explained by Anthony Jorges, a traffic roadway engineer for BCC: First with the viaduct, by separating the traffic, it provides you unimpeded access to and from Miami Beach to the east, so it improves the emergency evacuation and improves access for emergency services. This addresses the event traffic issue that I brought up earlier. While you have events that may cause backups on the lower level for local traffic, we do have a separate level for the mainline that’s going to carry through. So you have those two lanes on top free at all times. So that was a significant advantage that we were looking at. And in addition to that, there is also the additional lane on the westbound to northbound--I am sorry, the eastbound to northbound movement, and that is taking it from the one lane that was in the RFP concept to the two lanes that Archer Western de Moya provided. That provides significant improvements to the operations of the mainline. It also provides safety benefits because now traffic that was queuing up on this ramp back on to the mainline is separated. Whatever traffic queues up here is separate from the mainline, and you won’t have the possibility for the speed differential, which contributes significantly to accidents. FAM contends that DOT erred in approving a technical proposal ATC 12C, because the number of continuous basic lanes on the highway was a non-modifiable requirement of the RFP. According to the testimony at the hearing and American Association of State Highway and Transportation Officials Policy on Geometric Design of Highways and Streets (“AASHTO Manual”), highway lanes can be grouped into two categories: basic lanes and auxiliary lanes.7/ A basic lane is essentially one that is designated and maintained over a significant length of a route, irrespective of changes in traffic volume and lane balance needs. The parties also referred to a “basic lane” as a “continuous” lane-–one that allows traffic to move over a “significant length of route” without having to change lanes. An auxiliary lane is essentially all lanes other than the basic lanes. It is defined as “the portion of the roadway adjoining the through lanes for speed change, turning, storage for turning, weaving, truck climbing and other purposes that supplement through-traffic movement.” As part of the 2010 I-395 PD&E, DOT found that I-395 lacks sufficient capacity “for system linkage” with SR 836 and other roadways due, in part, to the fact that it has only one continuous lane in each direction while the linking roadways have three. One continuous lane on I-395 was inadequate to provide the necessary access or linkage to the other road systems. Initially, the Federal Highway Authority (“FHWA”) approved a plan to address I-395’s deficiencies which added one additional continuous lane in each direction. On June 15, 2015, however, the FHWA approved the Final Re-Evaluation (completed by BCC) for the I-395 PD&E. This version included a design change allowing “three (3) continuous lanes in each direction to match 836 on the west and MacArthur Causeway on the east.” (emphasis added). DOT noted that this design change was supported by AASHTO design principles, including the basic lane concept. A concept plan for the I-395 project, which included the three continuous lanes and later became the RFP concept plan, was attached to the Final Re-Evaluation. Section VI of the Final Re-Evaluation addressed DOT’s commitments for the I-395 project, including commitment number 14: “[m]aintain and enhance continuity between SR 836/I-95 facility on the west and the MacArthur Causeway on the east.” DOT concluded on page 18 of the Final Re-evaluation that the addition of the third continuous lane on I-395 was necessary to support this commitment, stating: STATUS: [ ] Design Changes No. 1 and No. 7 describe the need to add an additional lane in each direction and widen a portion of the westbound MacArthur Causeway Bridge in order to accommodate the changes to the ingress and egress points of the Port of Miami Tunnel. These changes allow the I-395 project to be compatible with both roadways to the east and west and provide system continuity. DOT also noted that the I-395 project would be constructed concurrently with the SR 836 project, which was the subject of a separate PD&E that was completed in 2011. The SR 836 PD&E Study noted on page 6: More specific improvements potentially involve the provision of a minimum of six continuous (i.e., 3 directional) mainline lanes and the provision of parallel collector distributor facilities to separate the system to system traffic from the local to system traffic. This language establishes MDX also intended that there be three continuous lanes in each direction as proposed by DOT for the I-395 project. In short, DOT’s intent was to have three continuous lanes that would extend from the western boundary of SR 836 to the eastern boundary of I-395. This would allow a driver in any of these lanes to travel from one end of the project to the other without having to change lanes. As a result of the re-evaluation of the PD&E, BCC developed the language for the RFP that related to continuous lane requirements also found in Attachment A08. This language states, in relevant part: The Department has prepared a set of Reference Documents, which include Concept Plans. These plans convey an established set of design objectives to which the Design-Build Firm is required to accomplish in [the I-395] component of the project. The Department’s design objectives include: * * * Provide 3 continuous through lanes to the I-395 Mainline in the Eastbound and Westbound direction. The RFP also provided “[t]he Design-Build Firm shall not modify the following requirements with an ATC Proposal . . . Minimum basic number of lanes shown in Attachment A-33.” Mr. Jorge’s testimony was that the purpose of this language was to be consistent with the objective to provide three continuous lanes in each direction on I-395 to and from the Signature Bridge. The reason the word “minimum” was included in there was we wanted to make sure that we were getting at least three lanes in each direction, and that is the intent behind having the word “minimum.” We did understand that there would be a possibility for changes. But we wanted to make sure that we had at least three lanes in each direction. Attachment A-33 is titled, “I-395 Lane Schematic” and includes information relating to the number of “basic lanes,” “auxiliary lanes,” and the “direction of lanes” at various points of entry via connector roads and ramps onto I-395. For the Signature Bridge, Attachment A-33 has a footnote that states, “The Signature Bridge Shall Accommodate a Minimum of Four 12’ Lanes in Each Direction[.]” The plain reading of Attachment A-33 in the context of the RFP is that the three continuous or basic lane requirements applied to the roadways, but that the Signature Bridge was required to have four continuous lanes. On its face, Attachment A-33 is a schematic drawing that shows all of the lanes in the RFP concept plan for I-395. Although four of the lanes depicted in Attachment A-33 are identified as auxiliary lanes, the rest are identified as basic lanes. However, absent is any indication of some “minimum” number of basic lanes that must be maintained and that cannot be altered through the ATC process, except at one location, which is at the Signature Bridge. For that specific location, Attachment A-33 states that there must be a “minimum of four 12’ lanes in each direction.” (emphasis added). The fact that a minimum is specified at one location on Attachment A-33, but not others, is an indication that DOT did not intend to establish a minimum for other locations on the schematic. Indeed, if DOT had intended for all basic lanes depicted at each location to be the minimum number of lanes for that location, then there would have been no point to including a specific note to express that the number of lanes at the Signature Bridge location was a minimum of four lanes. Mr. Jorges confirmed that this language requiring four lanes in each direction in Attachment A-33 applied only to the Signature Bridge. Q.: And what is the minimum number of basic lanes that there need to be at that [the Signature Bridge] location? A.: Four. Q.: And is a minimum number of basic lanes indicated on attachment A-33 at any other location? A.: No, it’s not. Q.: Can you explain how indicating a minimum number of lanes at the signature bridge is consistent with the PD&E? A.: The PD&E called for three lanes in each direction of I-395, so at the signature bridge, you have 16 a situation where you have the three lanes from I-395 plus the one lane from the eastbound connector, and that’s how we arrived at the four. Like I mentioned before, it was beyond the minimum three that we were expecting, and that’s why we felt it was necessary to identify minimum for that specific location. * * * Q.: Do you have a view or an opinion as to whether or not it would make sense to have a minimum basic number of lanes at every location that’s depicted on A-33? A.: Well, if every lane there was designated as a minimum requirement, there would be no room for any sort of modification or changes by the team, so it essentially eliminates any possibility for innovation and really negates the design- build process. Q.: Can you explain whether or not that would be consistent or inconsistent with the objective of the RFP? A.: It’s--the attachment is consistent with the objectives. One of the key objectives was to have three lanes in each direction. And there is other objectives stated, but they are not specific as to the number of lanes. Although Petitioner’s roadway engineer offered its own interpretation of the Attachment A-33 and the RFP language regarding continuous lanes, Mr. Jorges’ testimony was more reliable and convincing. Mr. Jorges was familiar with the history of “continuous lane” requirements and the reasons for including that requirement in the RFP. He and others from BCC were involved in drafting the concept plans and the RFP language that included the “three continuous-lane” requirement in the RFP. In reality, while the RFP stated the proposals were to “adhere to the number of lanes” in the concept plans, each bidder also had the option of pursuing an ATC that would allow it to deviate from this requirement. The purpose of the ATC process was to encourage the proposers to offer innovative solutions or an approach that was equal to or better than the RFP concept plans or other requirements in the RFP. The viaduct design offered by AWD was found to be “equal to or better” to the concept plan and thus meets the standard for issuing an ATC because (1) AWD’s ATC proposal does not preclude DOT from “meeting the Department Commitments,” which are defined to include the ones “listed in the PD&E, FEIS/ORS and any Reevaluations attached” and (2) AWD’s ATC proposal did not violate the Specific ATC Restrictions set forth in the RFP. Attachment A-33 plainly states there must be a minimum number of basic lanes at the Signature Bridge location only. FAM’s argument that every basic lane identified on Attachment A-33 should be treated as a “minimum” continuous lane that cannot be modified is rejected. The Department did not violate the RFP by issuing ATC 12C, and AWD’s proposal with this ATC is responsive to the RFP. Basic Lane Requirements for SR 836 (Attachment MDXA-02) FAM also challenges the number of lanes proposed by AWD for the MDX’s portion of SR 836 of the Project, which are established by attachment MDXA-02. Specifically, FAM argues AWD’s plan is “one basic lane short of the four basic lanes required by the RFP from Northwest 10th Avenue going eastbound through to I-395.” (FAM’s PRO, p. 16 at para. 45) The issue to be determined is whether the RFP and MDXA-02 requires four continuous lanes for this portion of the Project. Unlike Attachment A-33, Attachment MDXA-02 is not a schematic of all the lanes on the SR 836 concept plan. Instead, Attachment MDX-A02 contains only “typical sections” or a view of a cross-section (not a linear) of the roadway at a particular location. It is not possible to determine from only a cross- section view of a segment of the roadway whether any of the lanes are continuous over a significant length of SR 836. Thus, Attachment MDX-A02 does not reveal which lanes on SR 836 are basic or continuous. Although Mike Madison, FAM’s roadway engineer, testified it was “possible” by reference to the typical sections “to determine what the basic lane requirements are for State Road 836 even if they are not identified as basic lanes on those typical sheets,” he did not rely on (or even refer to) Attachment MDX-A02. Instead, he relied on the RFP concept plan and the industry definition of “basic lane.” The RFP’s SR 836 concept plan referenced by Mr. Madison does identify which lanes are continuous. Again, the concept plans were to serve as reference documents for proposers to build off of and improve. The SR 836 concept plan serves as “general information only,” except as “specifically set forth in the body of” the RFP. Regardless, both parties offered evidence that AWD’s SR 836 proposal includes three basic or continuous lanes. Mr. Jorges’ testimony established the SR 836 concept plan has three basic lanes on the mainline and no basic lanes on the adjacent collector ramp. Instead, the fourth lane that FAM claims was necessary and non-modifiable was actually an auxiliary lane, not a basic lane. The evidence established the “fourth lane” in question is a CD road. Although a CD road can be a continuous lane, here it was not. In the concept plan, the CD road merely collects traffic from Northwest 12th Avenue, which it then distributes to I-395 without providing any access to or from SR 836. Because the CD road on the concept plan does not serve traffic that originates from SR 836, the concept plan’s CD road does not serve the function of a continuous or basic lane for SR 836. Further, the alleged “fourth lane” on the RFP concept plan’s CD road is not continuous and, thus, cannot be considered a “basic” lane. Mr. Madison admitted the concept plan’s CD road does not originate at the western boundary of the SR 836 project. Instead, the concept plan’s CD road originates at Northwest 12th Avenue, nearly halfway between the Project’s western and eastern boundaries. Thus, traffic cannot navigate the length of the SR 836 project on this fourth lane without changing lanes as required by the PD&E. Hypothetically, as explained by Mr. Jorges, a driver would not have access to a continuous lane on the concept plan’s CD road; on the concept plan, a driver entering the CD road via the northbound Northwest 12th Avenue entrance cannot reach the interchange and I-395 without shifting to another lane. After the interchange, this same driver would be forced to shift to another lane again to reach the MacArthur Causeway. By contrast, a driver accessing AWD’s CD road at the western boundary of SR 836 would be able to reach the MacArthur Causeway with no lane changes. Finally, as noted above, the Final Re-Evaluation for the I-395 PD&E proposed the addition of a third continuous lane to I-395 so that I-395 would have “three continuous lanes to match 836 on the west.” (emphasis added). The goal of the I-395 project was therefore symmetry in the number of basic lanes to improve linkage between the I-395 and SR 836 systems. The RFP required three basic or continuous lanes for the MDX portion of SR 836. AWD’s proposal was responsive to this basic lane requirement. Minimum Lane Width Requirements FAM next contends AWD’s proposal is non-responsive because it reduces the lane width for the lane and ramps for the SR 836/I-95 interchange. There is no dispute AWD’s lanes were reduced by an ATC from 12 feet to 11 feet at the ramp in question, but at issue is whether the ramp is in the I-95 portion of the Project, which is modifiable (i.e., not subject to the ATC restrictions); or is in the MDX portion of the Project, which is non-modifiable. The RFP states that “services performed by the Design-Build Firm shall be in compliance with” DOT’s Plans Preparation Manual (“PPM”). (RFP at 77.) Included in the PPM is a 12-foot lane-width requirement. For that portion of the roadwork within the scope of the MDX project, the RFP states that the winning bidder “shall not modify” through the ATC process the “[m]inimum widths of mainline lanes and ramp lanes.” (RFP at 84.) However, pursuant to Addendum 11, this ATC restriction was removed from the RFP for roadwork that is part of DOT’s I-395 project. In ATC 12C, AWD indicated it would be reducing the lane width of the SR 836 west-north connector from 12 feet to 11 feet starting at the physical gore. A “gore” is the area where a ramp joins the mainline or where two streams of traffic converge. Although there was testimony about a “theoretical gore” as opposed to a “physical gore,” engineers use the physical gore to mark the point where the ramp ends and the highway begins. In this case, AWD, through ATC 12C, sought to narrow the width of the traffic lanes at the point where the northbound ramp physically joins and transitions onto I-95. According to FAM’s roadway engineer, this reduction in the lane width is necessary because this ramp connects eastbound SR 836, which has 12-foot lanes, with northbound I-95, which has 11-foot lanes. The evidence establishes the portion of the connector road at issue is not part of the MDX project because it is owned and maintained by DOT, not MDX. This is confirmed by the fact that DOT owns the Northwest 17th Street Bridge (Bridge ID 870369), which is on the connector road to the south of the lane-width reduction area. DOT’s ownership of the lane-width reduction area is also consistent with DOT’s I-395/I-95 maintenance map, which shows that DOT (and not MDX) maintains this part of the roadway. FAM does not rely on the jurisdictional or maintenance maps, but rather relies on two documents in AWD’s ATC 12C application in which AWD referred to “836” as the applicable “State Road Number” and “MDX” as the “Approving Agency” for the proposed lane-width reduction. FAM also noted that AWD used station markers referring to SR 836 to identify the lane-width reduction area. However, as confirmed by the attachments to the RFP, including the DOT maintenance maps and DOT’s bridge inspection report, AWD was mistaken that MDX owned this segment of the roadway. This does not make DOT’s granting of the ATC erroneous. Moreover, FAM offered no document prepared by either DOT or MDX, including the RFP itself, which established MDX’s jurisdiction over this portion of the roadway. Here, the lane-width reduction occurs north of the physical gore, which is the point where the lanes originating from the ramp become physically connected to the lanes on the existing highway, I-95, via pavement that lies between the converging lanes. For safety purposes, according to the AASHTO Manual, once a roadway becomes physically connected to the highway, it is good engineering practice to design the roadway to match the criteria for the highway (e.g., 11-foot lanes) rather than to continue using the ramp criteria (e.g., 12-foot lanes). Even FAM’s roadway engineer acknowledged that, at some point before reaching I-95, the lanes joining I-95 from the connector road must transition from 12 feet to 11 feet to match the I-95 lanes, and that good engineering practice requires that this transition be done gradually rather than “suddenly.” He conceded that the lane-width transition proposed by AWD was reasonable, but disagreed whether the ramp ended at the physical or theoretical gore point. Q.: Right. You agree with me that at some point the lanes that are coming in to I-95 have to transition from 12 to 11 to match? A.: They would have to at some point. Q.: You can’t just go from 12 and all of a sudden have an 11-foot lane, right, that’s bad engineering practice? A.: Yes. Q.: As a matter of fact, the PPM won’t let you do it that way and AASHTO, too, you’ve got to have a transition? A.: Correct. Q.: Okay. So we are not questioning the reasonableness of having a transition? A.: Reasonableness, no. Q.: Okay. So I think to figure out the disconnect again, do you think the ramp doesn’t end at the gore? A.: No, it ends north of the gore, the other side of the gore point. Q.: But you just said there are two points. A.: Theoretical gore points. Q.: You believe the ramp ends at the theoretical gore point? A.: Yes. At the same time, FAM offered no evidence to show that it would still be possible to comply with the gradual transition requirement in the PPM and AASHTO if the lane reduction were delayed until after the theoretical gore when there is no longer any pavement separating the 12-foot lanes from the connector road and the existing 11-foot I-95 lanes. Because MDX neither owns nor maintains that part of the roadway where the lane is narrowed to 11 feet, this road segment is not within MDX’s portion of the Project or jurisdiction. Because the portion of AWD’s proposed lane narrowing for the ramp to I-95 was in the Department’s I-95 jurisdiction, it was modifiable. Therefore, AWD’s ATC proposal with the lane-width reduction was responsive and also a reasonably safe way to transition traffic to I-95. FAM’s Proposal Prior to and at the hearing, AWD argued FAM’s proposal was non-responsive to the RFP and to DOT’s regulations in a number of ways: (1) FAM’s engineer of record, FIGG-WGI, was a joint venture and, as such, could not work on the Project; FAM’s bridge architect, Linda Figg, was not qualified to serve in that capacity; (3) FAM’s Financial Proposal lacked the requisite audited financial statements; and (4) FAM’s technical proposal was inconsistent with the RFP requirements. FIGG-WGI, Inc. First, AWD claims FAM’s designation of FIGG-WGI as an engineer of record violates Florida Administrative Code Rule 14- 75.003(2), which states as follows: (2) The Department shall not recognize joint ventures for purposes of qualifying consultants to work for the Department. Each individual or firm will be annually qualified based upon individual or firm capability. FAM designated in its Letter of Response both “FIGG Bridge Engineers, Inc.,” and “Wantman Group, Inc.” as two subcontractors as part of the FAM team. Later, however, FAM designated FIGG-WGI as FAM’s “Lead Design Firm.” Prior to submitting its Letter of Response, David Wantman asked DOT what information a design joint venture needed to submit to receive DOT approval to participate in this procurement. Carla Perry, a DOT procurement manager, was responsible for the prequalification process for this RFP. She informed FIGG-WGI engineering joint ventures “are not recognized” and that WGI would need to be designated as the engineering firm instead of the joint venture. She suggested the following: The foreign firm could sub to the Construction JV (or to Wantman), but the Engineering JV you referenced below would not be recognized for purposes of fulfilling the technical qualification in the engineering work types, and would be found non-responsive. . . . FAM’s position at final hearing and in its PRO was that FIGG–WGI was not a “legal joint venture.” This position is contrary to the evidence in FAM’s technical proposal noting FIGG–WGI was “organized as a fully integrated, single-purpose entity, which is the engineering firm of record” and the testimony at the hearing establishing FIGG-WGI was formed for legal reasons to insulate its members (Figg Engineering and Wantman) from third-party liability on large construction projects. FIGG-WGI is a joint venture and its participation in the Project, had FAM been chosen, would have violated DOT’s rules regarding what type of business structures can work on DOT projects. The violation, however, was curable. The RFP allows changes in designated key personnel and “teaming arrangements” subject to the Department’s approval. Approval of changes would be based on “whether or not the proposed substitutions in Partner/Teaming Arrangements are comparable to the Partner/Teaming Arrangements identified in the Letter of Response and/or Technical Proposal.” Here, the evidence establishes that the members of the joint venture are both individually prequalified to do work for DOT. In reality, their employees are the same employees of the joint venture which would have been working on the Project had FAM been chosen as the BVP. Moreover, the testimony at the hearing established that if FAM was chosen, both Figg Bridge Engineers, Inc., and Wantman Group, Inc., would have individually contracted with FAM in whatever corporate form would have been required by DOT. The RFP “Waiver or Irregularities” also provides FDOT may waive irregularities in proposals “where such is merely a matter of form and not of substance, and the correction . . . of which is not prejudicial to other Proposers.” Here, AWD failed to sufficiently establish how it suffered (either potentially or actually) from FAM’s designation of FIGG-WGI, LLC. Nor was there any evidence of how AWD would have been prejudiced if FAM was allowed to substitute the individual members of the joint venture, if FAM had been chosen to be the BVP. Any error in designating FIGG-WFI, LLC, as its lead designer and engineer of record was a curable minor irregularity that would not have made FAM’s proposal non-responsive. Linda Figg Second, AWD makes the same arguments regarding Linda Figg’s designation as “Bridge Architect” as it did in its pre- hearing motions as to why FAM’s proposal was non-responsive: the RFP required bidders to designate a bridge architect; and Linda Figg, the person designated by FAM, is not an architect. FAM designated Ms. Figg in its Letter of Response as its “Lead Bridge Architect.” Ms. Figg is not licensed as an architect with the State of Florida under chapter 481, Florida Statutes, (Architecture, Interior Design, and Landscape Architecture) nor is she licensed in any other state. The RFP is silent as to the qualifications of a bridge architect. Nothing in the RFP indicates the designated bridge architect must be registered or licensed; nor does it require the designated bridge architect to meet specific educational or other qualifications. No evidence was provided at the hearing as to how the Department defined “bridge architect.” In fact, FDOT did not join with AWD in this argument. Nor was there evidence at the hearing establishing the industry standard for defining a “bridge architect.” Merriam-Webster defines “architect” as “a person who designs buildings and advises in their construction.” Architect, Merriam-Webster Online (2017), https://www.merriam- webster.com/dictionary/architect (accessed on February 23, 2017). Ms. Figg meets this definition of “architect.” Moreover, Figg Engineering is prequalified by DOT and has available professional staff (other than Ms. Figg) who are licensed architects and/or professional engineers. As such, FAM’s designation of Ms. Figg as its Lead Bridge Engineer did not make its proposal non-responsive. FAM’s Bridge Design – Load AWD also asserts FAM’s Signature Bridge proposal violates the RFP’s non-modifiable requirement that “[a]ll Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL).” “Dead load” is the actual weight of the bridge structure; “live load” is the added weight of the traffic traveling on the bridge. As explained at the hearing, “components” are the necessary parts of the bridge: superstructure (what cars drive on); substructure (pylons or columns); and foundation (what the pylons and columns are set on). In contrast, railings are safety devices and considered “appurtenances” as opposed to “components.” FAM’s bridge design contained two rotating disks, each on top of an extended arm. Bridge components that do not serve a purpose or carry any weight were not allowed by the RFP, and bidders could not obtain an ATC to change this requirement. FAM’s own bridge engineer, Denny Pate, testified that nonstructural parts of the bridge were prohibited by the RFP. Q.: Can you give the judge an example of a nonstructural bridge component that would be noncompliant under the RFP? A.: The RFP requirement, obviously, is--in my opinion, is saying: We don’t want fake bridge components. For example, there is a project development over here just west of Port St. Joe on the coast there called WindMark. And as part of their entrance to their development, they have a very standard short-span girder bridge, but they have put up steel, fake steel trusses along the sides that basically add interest to the bridge, make it visually more unique, but they don’t do anything. They are not structural. Mr. Pate went on to testify that the rings on the tops of FAM’s proposed bridges do not carry any live load. They were not necessary and could be removed without any effect on the bridge’s structural integrity.8/ This was consistent with the testimony of John Corven, AWD’s bridge engineering expert. Mr. Corven explained the loads in FAM’s Signature Bridge proposal picked up by the cables into the pylon did not find their way into the single arm with a rotating disc and, thus, the arm and disc would not be part of the load-carrying capability of the bridge. The inclusion of non-load bearing components was more than a minor irregularity. One could imagine a scenario where an aesthetic design may compromise safety concerns. More importantly, failure to adhere to the restriction requiring only load-carrying components had the potential of prejudicing other bidders who complied with this requirement from coming up with more eye-pleasing bridge designs. Mr. Corven testified: Q.: As an engineer, what would be the impact if that restriction were lifted in terms of the work you are doing from an engineering standpoint, meaning if you no longer had to worry about dead and live load components, how does that impact how you go about designing a structure? A.: Well, I think it would free the engineer to more artistic and aesthetic expressions for elements that might capture a visual appeal but not be functional structurally. Although the rotating ring may have been aesthetically and architecturally interesting, it was prohibited by the RFP. As such, FAM’s Signature Bridge design with the arm and rings was non-responsive. Twin Structures AWD also asserted FAM’s Signature Bridge proposal violated the RFP’s prohibition against “twin structures” found in the Aesthetic Manual for the RFP which states: The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Elsewhere the RFP notes, the bridge proposals must adhere to the following minimum requirements: “No twin structures.” The common sense meaning of “twin structures” is two bridges that are identical or exact duplicates. Simply looking at the design, FAM’s proposal’s eastbound and westbound structures are not identical, but rather inversely similar. Moreover, as established by Mr. Pate’s unrefuted testimony, there were a number of “non-twinning” aspects of FAM’s Signature Bridge proposal. The westbound bridge runs straight, whereas the eastbound bridge contains a horizontal curve. The towers are mirrored so that the features are not in the same direction. The features on the two structures are staggered. There are a different number of spans in the overall length of the structures. The overall structures are different lengths: Bridge 8 (eastbound) has a signature bridge length of 980 feet and 1,432 feet of overall length between the spans; and Bridge 9 (westbound) has 977 feet for the Signature Bridge and 1,207 feet in overall length. FAM’s proposed Signature Bridge design did not contain twin structures prohibited by the RFP requirements. Constant Girder Depth AWD also challenges FAM’s Signature Bridge as being non-responsive to the Aesthetic Manual’s requirement “the signature bridge shall have a constant depth superstructure.” The language of the RFP does not include this reference, but does require “[g]irder depth on each side of the expansion joints shall be the same, i.e., no steps allowed.” As explained at the hearing “girder depth” is “basically what your eye sees as the distance from the top to the bottom of the roadway surface.” Both AWD’s and FAM’s bridge engineering experts testified the girder depth on each side of the expansion joint was the same in FAM’s Signature Bridge design and complied with the RFP language requiring equal girder depth on each side of the expansion joint. FAM’s Signature Bridge was responsive to the RFP’s girder depth requirement. MOT Plan Next, AWD contends FAM’s MOT plans are non-responsive because (1) the plans do not illustrate pedestrian access; (2) the plans do not have the requisite number of traffic lanes; and (3) the plans contain two reverse curves without a tangent. The RFP requires the following: The Construction Phasing/Sequencing Plan shall provide information regarding Traffic management for Total Project . . . [and] shall include a narrative describing the means by which the Design Build Firm will move vehicular, bicycle and pedestrian traffic along the Project Limits. The evidence established FAM provided a narrative description of pedestrian access in its technical proposal and submitted MOT plans that allow for the same level of pedestrian access as exists in the present condition. As such, FAM met the pedestrian access requirements of the RFP, and its MOT was responsive to the pedestrian access requirements. AWD next contends that the RFP requires that three lanes of traffic be maintained during all MOT phases because that is what exists in the present condition. However, DOT clarified in writing during the Q&A phase that proposers need only provide the same number of lanes shown in the RFP concept plans during MOT. The evidence at the hearing established FAM provides the same number of traffic lanes shown in the Concept Plans, and as such its MOT plans are responsive to this requirement. Finally, AWD contends FAM’s MOT plans are deficient because one of the ramps (Ramp D1) contains two reverse curves without a tangent. A tangent is the straightaway leading a driver in a certain direction when he or she comes around the curve. Although the testimony surrounding the curves in the MOT plan was highly technical, Mr. Madison, FAM’s roadway engineer, convincingly explained that the two reverse curves in FAM’s MOT are not super-elevated or abnormally cross-sloped. A cross-slope is the pitch of the roadway from one side to the other; a normal cross-slope is two percent. The testimony at trial established FAM’s MOT plan contains two curves that are two percent in one direction at all times and meet industry safety standards. Thus, they do not require a tangent. Regardless, even if the curves required a tangent, there was no evidence that failure to include this tangent put other bidders at a disadvantage. Finally, if Ramp D1 required a tangent, the plans AWD complains about are preliminary in nature. During the Q&A phase, DOT notified FAM that its Ramp D1 design needed a tangent between two curves or otherwise needed to be redesigned to meet the standards. FAM agreed to do so. Because this was a “modifiable” aspect of the MOT, had the PSC selected FAM as BVP, adjustments and corrections to Ramp D1 could be achieved per FAM’s commitment to comply with the RFP in its Confirmation Letter. FAM’s MOT plans were responsive to the RFP, and any need for an adjustment to include a tangent could have been provided in the final plans as allowed and anticipated by the RFP. Audited Financial Statements AWD argues FAM’s Financial Proposal was non- responsive because it did not contain audited financial statements from one of the members of its joint venture. The winning bidder was required to self-finance portions of its work as it would not receive full payment from DOT until after it had incurred costs for design and construction. This type of structure is often referred to as “gap financing.” The RFP required each bidder to submit a Financial Proposal “so the Department can be assured that the Design-Build Firm has sufficient financial resources to construct the Department Project within the allotted Contract Time, based on the Cash Availability Schedule.” To satisfy itself that the entity who would ultimately design and build the Project was able to finance the labor and construction costs, the Department required each bidder to provide a financial proposal that contained, among other things, audited financial statements. The RFP required the following in the Financial Proposals: The minimum required documents the Design- Build Firm must submit to the Department as part of the Design-Build Firm’s Financial Proposal shall include, but may not be limited to, the following: . . . Financial Statements of members of the Design-Build Firm or any partners of the joint venture that make-up [sic] the Design-Build Firm that will be responsible for the repayment of financial support related to the Department Project or directly provides financial support related to the Department Project. Lenders that are not members of the Design-Build Firm or partners of the joint venture that make up the Design-Build Firm are not required to provide Financial Statements. Financial Statements shall include: For the most recent two (2) fiscal years in which audited Financial Statements are available, audited Financial Statements prepared in accordance with U.S. Generally Accepted Accounting Principles. Required Financial Statements shall include: Opinion Letter (Auditor’s Report); Balance Sheet; Income Statement; Statement of Retained Earnings or Changes in Stockholders Equity; Statement of Cash Flows; and Notes to Financial Statements. * * * If audited Financial Statements are unavailable for the most recently completed fiscal year, unaudited Financial Statements, prepared in accordance with U.S. Generally Accepted Accounting Principles, shall be provided for such fiscal year. An affirmative statement shall be provided indicating that the Financial Statements for the most recently completed fiscal year are still being audited. These unaudited Financial Statements shall be certified as true, correct and complete by the Chief Financial Officer or treasurer of the entity. Requirements for unaudited Financial Statements are the same as for audited Financial Statements, except an Opinion Letter (Auditor’s Report) is not required. (RFP at 67–68.) As described in the RFP, the RFP required a joint- venture bidder to submit the audited financial statements of each of its members in accordance with U.S. Generally Accepted Accounting Principles (GAAP); if a partner of a joint-venture member would provide financial support for the project, that partner’s audited financial statements were required to be submitted as well. There is no dispute FAM did not and could not include any audited financial statements for one of its members, FEI, because FEI is not audited. There is also no dispute that FEI will be responsible for the repayment of financial support related to the Project or would directly provide financial support related to the Project. FAM did not qualify for the alternative included in the RFP for providing audited financial statements when such statements are unavailable for the most recent fiscal year. Moreover, it was clear from the testimony put on by FAM that such audited statements could not have been provided in a timely matter, even if the Department had allowed FAM to supplement its financial proposal. Brian Smith, the assistant corporate controller for Fluor Corporation, testified if FAM had been selected BVP and the Department had requested the audited financial statements for FEI, it could not have provided them until well after the May 18, 2017, date set forth in the RFP for selecting the BVP. Q.: Had you been asked by DOT for an FEI audited financial statement for 2016 back in April of 2017, what is the soonest that FEI could have provided that information to DOT? A.: An audit of this nature would generally take four to six weeks, on an expedited basis, probably four weeks. FAM counters it provided equivalent information and thus there was no effective harm. The RFP, however, specifically requires audited financial statements, not the information in those statements. This seems especially prudent given the size of the Project and when, as in this case, the bid was awarded as a public–private transportation facility under section 334.30, Florida Statutes, which emphasizes the financial health of bidders. Moreover, the failure to submit audited financial statements has been found to render a proposal non-responsive when such statements are required by an RFP. See Jani-King Gulf Coast Region v. Escambia Cnty. Sch. Bd., Case No. 16-2762BID, RO at 23 (Fla. DOAH Aug. 26, 2016) (explaining the importance of audited financial statements, noting they “provide a much higher level of assurance as to the validity of the financial information presented,” than unaudited statements). Nor can FAM satisfy the requirement for audited statements from FEI simply by submitting such statements from FEI parent corporation. See Consultec, Inc., d/b/a Gen. Am. Consultec, Inc. v. Fla. Dep’t of Admin., Case No. 91-5950BID, RO at 29 (Fla. DOAH Nov. 25, 1992) (finding submission of financial information from parent company failed to satisfy RFP requirement to provide audited financial statements and thus proposal was non-responsive). As explained in Consultec, FAM would have had an advantage had it not been required to provide such statements. Succinctly, . . . its failure to comply with the audited financial statement requirement of the RFP gave it an advantage not enjoyed by other bidders since by submitting the balance sheet of its parent company, as opposed to its own financial statements, HCPP effectively precluded any assessment of its own financial soundness. Id. As such, FAM’s failure to include the audited financial statements of FEI renders its Financial Proposal non- responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioner Fluor-Astaldi-MCM, Joint Venture’s Amended Formal Written Protest, and affirming Respondent Florida Department of Transportation’s Notice of Intent to award to Intervenor Archer Western-de Moya, Joint Venture. DONE AND ENTERED this 10th day of April, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 10th day of April, 2018.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer 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 3rd day of February, 1983.
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 The issues in this case are whether the Department of Transportation abused its discretion in deciding to replace an existing drawbridge with a fixed-span, high-level bridge and whether the Department of Transportation violated the statutory requirement of public hearings with effective public participation prior to selecting, siting, and designing the fixed-span, high-level bridge. Prior to referring this matter to the Division of Administrative Hearings, the Department of Transportation determined as a matter of law that Petitioners lacked standing to challenge the Florida Transportation Plan. The Department of Transportation therefore declined to refer to the Division Petitioners' challenge to the Florida Transportation Plan. For this reason, the recommended order does not address the issue whether the Florida Transportation Plan appropriately includes the proposed bridge or whether the Department of Transportation correctly determined that Petitioners lacked standing to raise this issue.
Findings Of Fact Parties Intervenor Save Anna Maria Island, Inc. (SAM) is a not- for-profit corporation organized to inform the residents of Anna Maria Island about the proposal of the Department of Transportation (DOT) to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The general purpose of SAM is to preserve the environment and character of Anna Maria Island by persuading DOT not to proceed with the proposed project and encouraging local officials to join SAM in opposing the project. Some members of SAM live in Sunbow Bay and West Bay Cove, which are condominiums near the proposed project. Most members of SAM and at least some Petitioners reside on Anna Maria Island. Intervenor Robert E. VanWagoner lives on Anna Maria Island. Petitioners, Intervenor VanWagoner, and members of SAM use the Anna Maria Island Bridge, driving motor vehicles across the bridge on errands to the mainland, fishing from the bridge, and walking, jogging, and bicycling on the bridge. Due to their proximity to the bridge and Sarasota Pass, Petitioners and Intervenors have a heightened interest in the environmental, cultural, and aesthetic ramifications of the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. Petitioners and Intervenors would be uniquely impacted by any abuse by DOT in the exercise of its planning discretion in deciding to build the fixed-span, high-level bridge. Petitioners and Intervenors have participated in the transportation- planning process culminating in DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Petitioners and Intervenors would be expected beneficiaries of additional public hearings or enhanced public participation concerning the proposed project. Petitioners and Intervenors would be uniquely impacted by any violation by DOT of statutes requiring public hearings with effective public participation. Anna Maria Island Bridge and Proposed Bridge Manatee Avenue, which is part of State Road 64, connects Bradenton on the east with Anna Maria Island on the west. The road segment between the mainland and the island is a minor urban arterial. The road spans Sarasota Pass, which is also known as Anna Maria Island Sound, by the Anna Maria Island Bridge about 7.2 miles west of U.S. Route 41 (Business) in downtown Bradenton. The Anna Maria Island Bridge is a drawbridge or bascule bridge that was built 37 years ago. The deck of the drawbridge is 25 feet above the water at mean water, and the vertical clearance with a closed bascule is 17.5 feet at mean high water. (All elevations over the water and all water depths are relative to mean water, unless otherwise stated.) The bridge spans are 48 feet long, and the bascule span is 128 feet long. The bridge is scuppered so that untreated stormwater runs off the edge of the bridge into the water below. The Anna Maria Island Bridge is 3123 feet long and 37.4 feet wide. It contains two 12-feet traffic lanes, no shoulders, and two five-foot sidewalks separated from the traffic lanes by nine-inch curbs. The bridge is not lighted except for navigation lighting in its below-deck structure. Manatee Avenue consists of two lanes on both sides of the Anna Maria Island Bridge. A shorter, two-lane bridge lies between the Anna Maria Island Bridge and the mainland. The speed limit along the approaches and on the Anna Maria Island Bridge is 50 miles per hour. The approach roadway consists of two 12-foot traffic lanes with 8-foot gravel shoulders. There are no sidewalks or bicycle paths along the approaches to the bridge. Gulf Drive is the major north-south road on Anna Maria Island, intersecting Manatee Avenue one-half mile west of the Anna Maria Island Bridge. At least partly designated as State Road 789, Gulf Drive is a two-lane arterial under state jurisdiction south of Manatee Avenue and a two-lane collector under city jurisdiction north of Manatee Avenue. There is little if any opportunity to expand the capacity of Gulf Drive or other roads on the largely developed island; though heavily travelled during peak periods, most if not all of these roads are constrained. Average daily traffic across the Anna Maria Island Bridge in 1988 was 14,000-15,000 vehicles. A traffic signal at Gulf Drive is the major cause of traffic congestion on Manatee Avenue at the bridge. On Friday and Saturday nights, traffic at the light often backs up past the bascule. Compared to the Anna Maria Island Bridge, the proposed bridge would be a little longer, at 3372 feet long, and half again as wide, at 54 feet wide. On a 4 percent grade, the deck would be 75 feet high at the center with two 12-foot travel lanes, two 10- foot shoulders, and one six-foot sidewalk separated from the traffic lane by a sturdier divider than those separating the sidewalks from traffic lanes on the Anna Maria Island Bridge. The spans of the proposed bridge would be three times longer than the spans of the Anna Maria Island Bridge. The tripling of widths between supports under the bridge would open up the view under the bridge and facilitate the bypassing of the channel by small boats cutting under the bridge. At mean high tide, the vertical clearance at the edge of the navigation channel would be 65 feet. At 800 feet from either shore, the slightly asymmetrical bridge would be 40 feet high at the west end and 45 feet high on the east end, according to the bridge profile in the Final Bridge Concept Report. The northern edge of the proposed bridge would be 20 feet south of the southern edge of the Anna Maria Island Bridge. Construction of the proposed bridge would take about two years. Demolition of the existing bridge would be by unspecified means, probably explosives, following completion of the construction of the new bridge. The proposed bridge would combine stormwater treatment with scuppers. The stormwater treatment would extend from the ends of the bridge 300 feet toward the center, leaving untreated stormwater along most of the proposed bridge. The untreated area on the proposed bridge would exceed the untreated area on the Anna Maria Island Bridge by over one-half acre. However, the additional amount of stormwater contaminants entering the water would be limited to road surface particles and road cleaners because no additional traffic would use the proposed two-lane bridge. Anna Maria Island and Sarasota Pass Anna Maria Island is a barrier island between Sarasota Pass to the east and the Gulf of Mexico to the west. For the most part, Anna Maria Island is less than one-half mile wide, except for a canalized area at the north end where a minor bridge connects the island to a small key. The Anna Maria Island Bridge connects the island to the mainland indirectly by way of Perico Island, a noncoastal barrier island to the east of Anna Maria Island. Sarasota Pass is about 6000 feet wide at the Anna Maria Island Bridge. However, when the bridge was constructed, the contractor deposited long fingers of fill at the east and west ends of the bridge. The west finger is about 2000 feet long, and the east finger is about 1000 feet long. Thus, as a result of artificial constrictions, Sarasota Pass at the existing bridge is a little over 3000 feet wide. The City of Holmes Beach lies at the west end of the Anna Maria Island Bridge, although its jurisdiction probably does not include the 2000 feet of fill added when the bridge was built. The City of Anna Maria lies to the north of Holmes Beach at the north end of Anna Maria Island. The Anna Maria Island Bridge is about three miles south of the north end of the island. About two miles south of the Anna Maria Island Bridge lies the Cortez Bridge, which is also a drawbridge of the same vintage as the Anna Maria Island Bridge. The Cortez Bridge, which is shorter than the Anna Maria Island Bridge, serves Cortez Road and connects the mainland to the island at the City of Bradenton Beach, which is the third municipality on Anna Maria Island. Bradenton Beach is a little less than two miles from the south end of the island. The remaining major bridge on Anna Maria Island connects Gulf Drive to Longboat Key to the south. A bridge at the south end of Longboat Key runs to Lido Key, which is joined to the mainland at Sarasota by the Ringling Bridge. The Anna Maria Island Bridge is about 9000 feet south of the confluence of Sarasota Pass and Lower Tampa Bay. The estuarine waters of Sarasota Pass connect the expansive Tampa Bay estuary to the north with the Sarasota Bay estuary to the south. Sarasota Pass and Sarasota Bay are Outstanding Florida Waters. The water in the vicinity of the Anna Maria Island Bridge is Class II water. Seagrass is a key component of the Sarasota Pass estuary. Seagrass is vital to water quality and provides essential habitat and food for wildlife, including wading and diving birds, fish, shellfish, and manatee. Seagrass beds provide nursery habitat for juvenile marine life of considerable importance at maturity to recreational or commercial fishermen and are important foraging areas for snook, spotted seatrout, and red drum or redfish. Seagrass aids water quality by filtering suspended material from the water column and stabilizing the bottom. The resulting improvements in water transparency increase the depths to which sunlight can penetrate. Seagrass is dependent on sunlight. Thus, the deeper that sunlight can penetrate due to water transparency, water color, and other water-quality parameters, the deeper the water in which seagrass can grow. Seagrass is not hardy and is especially sensitive to changes in the amount of light that it receives. Submerged in water, seagrass can be killed by reductions in water transparency, such as those typically accompanying nutrient loading, which can lead to phytoplankton in the water blocking light generally and epiphytes on the seagrass leaves directly interfering with the plant's absorption of light. Seagrass can also die off due to the introduction or resuspension of sediments in the water column, which may result from stormwater runoff, agricultural drainage, boat prop dredging, and construction (references to "construction" include demolition). Another source of seagrass mortality is the introduction or elevation of certain toxic substances in the water column or sediments by way of stormwater runoff, agricultural drainage, boat emissions, or construction activities. Toxic substances include heavy metals and petrochemicals, such as those associated with urban stormwater runoff. Discrete patches of seagrass may also be destroyed by the burrowing and feeding of marine life such as rays. Relatively small reductions in sunlight can destroy seagrass over a wide area. If, while all other factors remain constant, reductions in transparency or increases in turbidity reduce by one foot the maximum water depth at which seagrass can grow, the effects may be widespread in estuarine bottoms, which are often gently sloped. Two factors discourage seagrass recolonization following their destruction, even assuming the elimination of the cause of the seagrass mortality in the first place. First, the species of seagrass involved in this case spread very slowly. Second, even a temporary loss of seagrass may change background conditions to discourage recolonization. Once the seagrass in an area is destroyed, bottom sediments may build up, turbidity may increase, and water transparency may decrease. This process may effectively prevent seagrass recolonization at depths at which seagrass previously grew, regardless whether recolonization is through natural means or artificial transplantation. If an area is so well-flushed as to remove sediments, the loss of the stabilizing bottom vegetation may result in erosion, critically deepening the water depth so that seagrass cannot capture enough light to recolonize the area. The Anna Maria Island Bridge is at the north end of a flourishing seagrass meadow featuring Thalassia, Halodule, and Syringodium. Important areas of seagrass exist north of the bridge, but the dense, lush seagrass meadow to the south is more prolific. Near the Anna Maria Island Bridge, seagrass grows in water as deep as six feet. The record lacks evidence of a comprehensive, detailed bathymetry, but several important facts are clear from available evidence of water depths. First, the water in the middle of the pass under the existing or proposed bridge is too deep for seagrass. Seagrass would not grow in the middle of the pass at this location even if there were no bridge. Second, the water is deeper under the existing bridge than it would be under the proposed bridge. The only place where the water under the Anna Maria Island Bridge is not deeper than the water under the proposed bridge is the westernmost 100 feet, where the water depths are about the same. Most importantly, the depths under the Anna Maria Island Bridge are too great for seagrass growth along nearly the entire length of the bridge, even if the bridge were removed. On the other hand, seagrass thrives upon the bottom that would be under at least 1600 feet of the proposed bridge. Suitably shallow depths exist 800 feet along either end of the proposed bridge, and seagrass occupies these areas, which amount to about two acres of seagrass. Despite the known sensitivity of seagrass to changes in lighting, DOT and its consultants never considered how much the proposed bridge would shade these two acres of seagrass. There was no analysis of such factors as the area or duration of the shadow that would be cast at different times of the year by the proposed bridge or the variation in the shadow from the low east and west ends of the proposed bridge to the 40- and 45-foot heights where the seagrass ends. Thus, there is also no evidence of any analysis of the effect of such shading on the seagrass presently growing in the area that would be covered by the proposed bridge. It is more likely than not that the two acres of seagrass presently growing in the area that would be covered by the proposed bridge would be destroyed by the proposed project. If, as is probable, the seagrass did not survive disturbances from construction, including temporary turbidity, recolonization is unlikely due to shading from the new bridge and either long- term turbidity from stirred-up, destabilized sediments or deeper water from erosion. In the unlikely event the seagrass survived the construction, shading from the new bridge would likely kill it anyway and prevent recolonization. But more than two acres of seagrass are imperilled by the proposed project. The record is devoid of any analysis of bottom sediments. For 37 years, the scuppered Anna Maria Island Bridge has dumped untreated stormwater into the water below. The new bridge would add even more untreated stormwater to Sarasota Pass. Stormwater contaminants include a wide variety of potentially toxic materials, such as road materials, tire materials, lubrication, road cleaners, paint, building materials, and virtually anything that might be loaded onto vehicles using the bridge. Common runoff contaminants are heavy metals, hydrocarbons, oil and grease, zinc, and copper. Stormwater pollution of the sediments along the drip line of the Anna Maria Island Bridge is more than a theoretical possibility. Seagrass is generally absent at all depths in the 20 feet immediately south of the existing bridge. (Increased water depths account for seagrass conditions north of the bridge.) The general absence of seagrass in the 20 feet immediately to the south of the bridge is unlikely the result of shading because dense seagrass grows in the 20 feet immediately to the south of the west end of the bridge, and off-bridge shading appears to exist to the north of the bridge, not the south. The general absence of seagrass in the 20 feet immediately south of the bridge is unlikely the result of prop dredging because adjacent seagrass is dense. The general absence of seagrass along the south dripline may be attributable due to the biochemical or mechanical disturbance caused by the stormwater rushing off the bridge. To the extent of mechanical disturbance, the presence of seagrass in the adjacent 20 feet at the west end of the bridge may be due to a lack of proximity to an unblocked scupper drain at that location. To the extent the disturbance may be biochemically caused, this anomaly may reflect variations in flushing. At least 1000 feet of seagrass (500 feet at either end of the new bridge) just south of the proposed bridge would receive untreated stormwater rushing through the scuppers of the proposed bridge. The width of the affected band would presumably be the same 20 feet as the width affected by the existing bridge. It is more likely than not that this half acre of seagrass would not survive the proposed project, especially after consideration of additional seagrass losses from prop dredging caused by small boats bypassing the channel and running between the new bridge's widely spaced supports. Foundations for the proposed bridge would occupy 0.12 acres of seagrass. However, this seagrass would be under the deck of the proposed bridge, so this area has already been taken into account in the shading analysis. In addition to the likely permanent destruction of 2.5 acres of seagrass under, and 20 feet south of, the proposed bridge, it is more likely than not that construction would at least temporarily destroy additional seagrass farther to the south. The proposed project calls for the construction of large work platforms parallel to, and south of, the new bridge and small fingerplatforms running from the work platforms toward the new bridge. The work platforms would be placed in water shallower than six feet and would cover areas vegetated by seagrass. The platforms would be 1100 and 1200 feet long and 40 feet wide and would thus cover a little about two acres of seagrass. The platforms would be low on the water--lower than the existing bridge--and effectively shade the seagrass below them. DOT witnesses promised the use of slatted platforms to minimize shading, but, again, there was no showing that the slats would pass sufficient sunlight at critical water depths for sufficient periods of time. What seagrass survived the construction of the platforms would not survive the shading and turbidity during construction, as this area is well within the mixing zone allowed by the dredge-and-fill permit tentatively approved by the Department of Environmental Protection (DEP; references to DEP include the predecessor agency, the Department of Environmental Regulation (DER), except where references to DER are necessary for clarity). The likely loss of the two acres of seagrass from the work platform would not be permanent absent permanent alteration of the bathymetry, introduction of persistent contaminants, or collection of substantial amounts of sediment during construction in the area under the work platform. Recolonization would probably begin upon completion of the project. The platforms would not remain in place during the entire two-year period of construction. There would be no need for the platforms on the south side of the proposed bridge during the demolition of the existing bridge to the north. It is also possible that the platforms would be removed as construction was finished along the bridge. However, the slow growth of the seagrass suggests that considerable time would be required for the recolonization of the two acres to the present density. There is no reason to calculate lost seagrass from the construction of the fingerplatforms. They will span the area from the south edge of the proposed bridge to the north edge of the work platforms. Thus, they cover the area already affected by the stormwater running off the bridge. The 600- by 20- foot area proposed to be served by the stormwater management system, where adjacent seagrass presumably would not be affected, might be affected by the fingerplatforms, but the small size of the platforms renders the loss unnecessary to consider for purposes of this recommended order. DOT has proposed mitigation to compensate for some seagrass losses. But DOT did not account for the permanent loss of 2.5 acres of seagrass and temporary loss of 2.0 acres of seagrass. The proposed mitigation is ineffective for a number of reasons. The seagrass transplant receiving area proposed for mitigation is too small. It is 0.19 acres as compared to the likely permanent loss of 2.5 acres and temporary loss of 2.0 acres. This is a dramatic departure from the normal seagrass mitigation ratio of 1:1 required by DEP. Although less important due to the gross inadequacy of the size of the transplant receiving site, there is also a major discrepancy between the densely vegetated donor area and the sparse transplantation pattern specified for the receiving area. The primary seagrass mitigation is too speculative. The transplant receiving area is near the natural western shore of the pass. Unlawful boat use of a nearby fishing pier and bioturbation have resulted in barren patches in the transplantation area, but the recolonization process is proceeding naturally. Consistent with the slightly more colored water and somewhat poorer flushing than is found at the bridge, natural recolonization in the transplant receiving area is already establishing as extensive and dense a seagrass bed as boating and bioturbation will permit. The natural recolonization process now taking place in the transplant receiving area will revegetate more quickly and completely the portion of the bottom capable of supporting seagrass than would DOT's mitigation effort. DOT's proposed seagrass transplantation might even disrupt the natural recolonization process. The success of the proposed seagrass transplantation is speculative at best. Seagrass transplantation is complicated and remains experimental. Under the best of circumstances, seagrass transplantation is a complicated process that has not consistently prevented net habitat loss. The DEP witness who reviewed DOT's application is an Environmental Specialist III who has been with DEP nearly nine years and has reviewed over 500 dredge-and-fill permits. Testifying against the permit and particularly the seagrass mitigation plan, he noted that DOT's seagrass mitigation plan promises uncertain benefits. Unsupported by comprehensive bathymetric and water-quality data, the primary seagrass mitigation plan, which is the only one sufficiently detailed to evaluate, more likely than not would fail. The overall seagrass mitigation plan is excessively contingent. The importance of alternative and contingent seagrass mitigation plans is underscored by the likelihood of the failure of the main transplant receiving site and the unlikelihood that seagrass will recolonize under the existing or proposed bridge. But the alternative and contingent mitigation plans are illusory. The alternative and contingent mitigation plans lack success criteria, detailed guidelines for identifying donor and receiving areas, and practicality. The alternative and contingent mitigation plans amount to nothing more than vague and unenforceable undertakings to find seagrass somewhere and transplant it somewhere else. Such a difficult task demands more detail. One of the two crucial functions of seagrass in the immediate area of the Anna Maria Island Bridge is that it is consumed by manatee. Manatee are especially prevalent in an area just north of the bridge. Between 1985 and 1991, there were 432 adult manatee sightings and 44 manatee calf sightings in the vicinity of the Anna Maria Island Bridge. About two-thirds of these 476 sightings were north of the bridge and one-third south of the bridge. Manatee use Sarasota Pass to travel between Tampa Bay and Sarasota Bay. The fill added during the construction of the Anna Maria Island Bridge already constrains the manatee passageway under the Anna Maria Island Bridge by artificially narrowing the pass by about one-third. Construction at either end of the bridge would tend to concentrate the manatee even more toward the center of the bridge where they would more likely encounter boats in the main channel. Estimates in 1987 were that Florida's manatee population is about 1200, with equal numbers on the east and west coasts. Manatee populations are slow-breeding. Gestation runs 13-15 months with one or sometimes two calves born. The breeding cycle is 3-5 years. The natural life expectancy and reproductive life of a female are unknown. The risk of extinction heightens when the low reproductive rate and manatee mortality attributable to collisions with boats and barges are combined with the permanent and temporary loss of seagrass, two-year constriction of the already-reduced passageway at the bridge, and permanent dispersal of small boats through shallow seagrass beds where manatee are likely to feed. The other crucial function of seagrass is in maintaining water quality through the assimilation of nutrients and stabilization of bottom sediments. The water-quality data in this case are limited. DOT never determined the extent to which sediments at the existing bridge may have been contaminated over the years by stormwater-borne heavy metals or oil and grease. DOT never analyzed these sediments by grain size and percentage of fine organic materials. Instead, DOT proceeded with the proposed project in Outstanding Florida Waters without knowledge of these sediments in terms of their chemical composition or susceptibility to resuspension into the water column. IV Planning and Hearing Process DOT's Project Development and Environmental Guidelines Pursuant to its Project Development and Environmental (PD&E) Guidelines, DOT conducts a PD&E study at the start of the planning process for projects of the scope of the proposed bridge. The PD&E manual, which "fully reflects the Department's policy for projected development . . .," assists project managers and district engineers by informing them of various requirements imposed by law on transportation projects and identifying the documentation required in the various stages of the transportation-planning process. Section 2-1 of the PD&E manual describes the Advance Notification process as the means by which DOT advises other federal, state, and local agencies of proposed projects. Chapter 25 of the PD&E manual explains DEP's role in determining whether a proposed project is consistent with the Coastal Zone Management Act. Section 25-2.4 warns that an agency finding of consistency may be changed. Section 3-1 divides proposed projects into three types in terms of environmental impact. Projects with the least impact qualify for a categoric exclusion. Projects with a categoric exclusion include actions that "do not have a significant impact on any natural, cultural, recreational, historic, or other resources [or] do not involve significant air, noise, or water quality impacts[.]" Section 18-2.4 states that a project qualifying for a categoric exclusion "may have an involvement with wetlands so long as this involvement is determined not to be significant." The next class of proposed projects are those subjected to an environmental assessment. For such projects, "the significance of the environmental impact is not clearly established." The environmental assessment is prepared "whenever there is a need to determine the appropriate class of environmental determination required." The last class of proposed projects are those subjected to an environmental impact statement. Such projects "significantly affect the human environment " Projects with a categoric exclusion typically require less public involvement and environmental review than projects requiring an environmental assessment or environmental impact statement. However, Section 8-2.7.2.3 provides: "A public hearing must be held to comply with Chapter 339 F.S. regardless of funding [federal or state] . . . [w]hen a project is controversial in nature." Section 8-2.8 describes public hearings: A public hearing is the official public forum used by the Department through which citizens and government officials express their concerns, opinions, and comments regarding a project. It is by no means the only opportunity whereby citizens have access to the Department about the project, but it is the official point in the project development process where information developed to date [is] shared with the community and the community can go on record officially concerning the project. Much of what is shared with the community has been developed with citizen and local government input during early stages of project development. Section 8-2.8.1 requires a DOT representative to appear at each public hearing to discuss briefly all alternates studied and the advantages of each. The DOT representative must outline the social, economic, and environmental impacts of the project. Revised Section 9-2.1 explains that the Project Concept Report marks the start of the "project development process." This report identifies the activities required to conduct the PD&E study. Section 9.1 describes the engineering reports to be developed during the planning process: The preliminary engineering report is prepared by the District or consultant during the early stages of project development .... After the public hearing has been held and a recommended alternative has been selected the final engineering report is prepared. The final engineering report is submitted after the recommended alternative has been approved by the Federal Highway Administration. . . . Section 9-2.2.1 explains that the Final Engineering Report must follow a sufficient amount of engineering so as to consider types of bridges. Section 10-2.4 identifies the Permit Coordination Package, which DOT sends to all agencies from which it must obtain a permit. The package evaluates the impacts of the project upon permittable areas, addressing such issues as the "elimination of habitat" and "destruction of vegetation." The package also contains a discussion of proposed mitigation. Section 10-2.5 directs DOT to submit permit applications when the "design of the project is 65 to 70 percent complete." Section 13-1 addresses nonfederally funded projects, which the proposed project eventually proved to be. The manual sets forth a number of policies and objectives which DOT "must address to comply with the [Florida Transportation Plan.]" These include provisions to "prohibit the destruction of endangered species and protect their habitats," "promote rehabilitation and reuse of existing facilities, structure and buildings as an alternative to new construction," and "encourage citizen participation at all levels of policy development, planning, and operations." These provisions guide DOT in the preparation of the Florida Transportation Plan and do not apply to individual transportation projects, such as the proposed bridge. Section 13-1 states: "It shall be the policy of the Department to develop environmental studies on all major transportation projects regardless of funding to comply with state and federal laws." Section 13-1 requires DOT to prepare a state environmental impact study on "all major transportation projects" in which state monies are used. Section 13-2.2 defines a "major transportation project" as, among other things, "Replacement of an existing bridge that could have substantial adverse effect on land use, community development patterns, community cohesion or natural ecological systems." If a project is a "major transportation project," DOT must prepare and circulate an Advance Notification Package and conduct a hearing, which must be announced by letters to all owners or property within 300 feet of the centerline of the alternates under consideration. Section 13-2.5 imposes upon DOT the same public hearing procedures as set forth in Chapter 8 of the PD&E manual. Proposed Project 1. 1987-89 In 1987, DOT started a bridge replacement program to identify bridges for possible replacement or widening. According to Robert Crim, DOT's project manager for the proposed bridge, one objective of the bridge program was to eliminate drawbridges. A statewide consultant, Sverdrup Corporation, studied numerous bridges of all types for inclusion in the program and ultimately recommended that DOT widen or replace some, but not all, of them. DOT submitted the Anna Maria Island Bridge to Sverdrup for possible inclusion in the bridge-replacement study program. But before doing so, DOT obtained the approval of the local Metropolitan Planning Organization (MPO) for replacing the bridge. On the recommendation of Sverdrup to include the Anna Maria Island Bridge in the bridge-replacement study program, DOT included the replacement bridge in its five-year work program in 1988 and each subsequent year. DOT conducts annual public hearings on the work program. At the public hearing, DOT's representatives discuss each project, and members of the public may comment on projects. On March 29, 1988, Sverdrup issued a Project Concept Report, which is intended to identify the ideal transportation solution. The Project Concept Report starts the PD&E process, which eventually determines if it is feasible to implement the ideal solution identified in the Project Concept Report. The Project Concept Report proposes the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. The report refers to the proposed project as a "major bridge replacement project." The report anticipates a categoric exclusion for the project despite the classification of Sarasota Pass as Outstanding Florida Waters and the presence of considerable seagrass and manatee around the Anna Maria Island Bridge. In April 1988, DOT circulated an Advance Notification Package to interested agencies informing them that DOT was starting a study of the construction of a two-lane bridge. The Manatee County Board of County Commissioners responded to the April 1988 Advance Notification Package. By letter dated June 14, 1988, to DOT's then-Secretary Kaye Henderson, the County Commissioners expressed "strong support" for the replacement of the Anna Maria Island Bridge with a fixed- span, high-level bridge. The letter cautions that two lanes are inadequate for existing and projected traffic. In a letter to Sverdrup dated October 3, 1988, the Chairman of the Board of County Commissioners emphasized the Board's position: "it is the unanimous feeling here that planning to build anything less than a four-lane replacement would be disastrous, or simply planned obsolescence." In August 1988, DOT hired Figg and Muller Engineers, Inc. (references to Figg and Muller include Figg Engineers, Inc., which prepared certain reports) to perform the PD&E study. The role of Figg and Muller in conducting the PD&E study was to identify the means of accomplishing a predetermined goal--in this study, the best way to replace the Anna Maria Island Bridge. DOT asked Figg and Muller specifically to evaluate a fixed-span, high-level bridge, but, in discharging its duties, Figg and Muller considered all viable alternatives, including the no- build option, and considered all environmental impacts of these alternatives. After DOT issued the Advance Notification Package in April 1988, the MPO asked DOT to evaluate the possibility of expanding the facility to four lanes. Despite a strong preference to limit the new facility to two lanes, DOT evaluated the four-lane option to comply with local transportation plans. DOT thus directed Figg and Muller, which had already begun its work, to consider four-lane alternatives as well. Anticipating its formal retention in August 1988 to conduct the PD&E study, Figg and Muller had earlier retained an environmental subconsultant. On May 31, 1988, Figg and Muller sent a letter with a proposed contract and related materials to Peninsula Design and Engineering, Inc. (references to this company and Mangrove Systems, Inc. shall be to "Peninsula"; the same person, first employed by Peninsula and later Mangrove Systems, performed the environmental work). Figg and Muller described the proposed project as the "replacement of a two-lane bascule bridge . . . with a fixed- span, high-level bridge." Enclosed materials describe the new bridge as 54 feet wide with a 40-foot roadway, five-feet sidewalks on each side, and a 65-foot vertical clearance. The new bridge, which would be next to the existing bridge, is described, as it was then conceived, as a federal-aid project. The attachment warns that aesthetics, grassbeds, and manatees, among other things, would be important considerations during the study and design. The subconsulting contract requires Peninsula to quantify wetland encroachments and endangered species. The contract warns that the environmental sensitivity of the area requires the identification of an "intensive baseline environmental assessment" to identify the best environmental alternatives regarding alignment and construction techniques. The contract warns further that "accurate description of floral and fauna communities in submergent habitats requires a greater level of effort than is typically necessary in [terrestrial] habitat evaluations." Because environmental permits could be "challenging to obtain" without intensive evaluation of submergent communities, the contract requires Peninsula to develop transects of flora communities in the impacted area and identify endangered species and their habitats. The contract requires Peninsula to develop additional biological information necessary for environmental assessment, including sampling the bottom sediments for, among other things, heavy metal concentrations. The contract also requires Peninsula to prepare a Permit Coordination Package to develop proposed mitigation plans and evaluate project impacts, including the elimination of habitat, changes in sedimentation, and destruction of vegetation. Peninsula conducted a macrophyte investigation on September 27, 1988. The Peninsula employee established eight stations--four just offshore from the filled-in bridge approaches and four closer to the channel, north and south of the existing bridge. The Peninsula employee set 100-meter transects with ten data- collection sites along each transect. The transects for the stations near the approaches ran perpendicular to the bridge. The Peninsula employee followed a "similar" approach with the stations near the channel, although ambiguous language in the report leaves it unclear if the transects for the four "offshore" stations ran perpendicular or, as stated at one point, "parallel" to the bridge. In either case, the transects run on September 27, 1988 do not travel under the existing or proposed bridge. The fieldwork thus yielded information about seagrass in the general area of the project, but no data that could be directly used to study and analyze the effects of shading from the existing or proposed bridge. The Peninsula report notes a continuing chronic loss of seagrass south of the existing [bridge] in the vicinity of [two] stations. . . . The causal factors contributing to these losses include continuing historic degradation of water quality in the area and more importantly, the hydraulic conditions created by the configuration and construction of the [bridge] approach fills and the submerged borrow areas. The report also records "unusual foraging signatures" at one station, possibly indicative of manatee foraging. Figg and Muller, Peninsula, and other consultants prepared the Site Characteristics Inventory Report dated November 8, 1988, and updated December 20, 1988. The inventory report summarizes the data "necessary for adequate evaluation of the location, design and impacts of the project." The Site Characteristics Inventory Report describes various features of the Anna Maria Island Bridge. Stating that the bridge's overall vehicular accident rate is low, the inventory report notes the high percentage of rear-end collisions and concludes: "The high percentage of rear end collisions suggests a high amount of vehicle cueing [sic]. This could be attributed to vehicles stopped for a left turn, stopped for the SR 789 signalized intersection or stopped for a bridge opening." Peninsula prepared the Permit Coordination Package by May, 1989. The package misidentifies the waters around the Anna Maria Island Bridge as Class III waters, though it reports more importantly that these waters are Outstanding Florida Waters. However, the Permit Coordination Package grossly understates the area of subtidal and intertidal seagrass within 1000 feet of the Anna Maria Island Bridge. The Permit Coordination Package considers seagrass mitigation only in passing, assuming without any analysis of water depths, water transparency, turbidity, or sediment composition, that seagrass would recolonize under the removed part of the existing bridge. The mitigation discussion is directed mostly to mangroves. The Permit Coordination Package contains an extensive discussion of manatee as an endangered species. Peninsula reported 163 manatee sitings north of the Anna Maria Island Bridge from 1985 through 1988 and 63 sitings south of the bridge during the same time. The Permit Coordination Package contains a reasonably detailed set of suggestions for minimizing construction-related impacts to manatee. Peninsula considered the impact of the proposed bridge on the seagrass beds upon which manatee feed. Peninsula reported that the impact on seagrass of the south alignment would be an order of magnitude greater than the impact on seagrass of the north alignment. The Permit Coordination Package reviews research suggesting that manatee mortality from boat collisions is higher when the mammals are feeding in seagrass beds, are in areas frequented by small recreational boats that operate at relatively high speeds and move in unpredictable ways in shallow water, and are in shallow, restricted navigation channels. The Permit Coordination Package notes that bicycles, joggers, and pedestrians use the Anna Maria Island Bridge, but not extensively. However, the Permit Coordination Package acknowledges that the bridge is "heavily used by fishermen, principally recreational or low volume commercial mullet netters using large castnets." These fishermen use the 400 feet at either end of the bridge and up to 200-300 feet of the margins of the pass. Figg and Muller conducted a study of ship impacts, culminating in the Ship Impact Analysis Data Collection dated November 7, 1988. The document describes the proposed project as the replacement of the Anna Maria Island Bridge with a fixed- span bridge with a 65-foot clearance. The ship-impact study notes that, from January 1985 through September 1988, 650 vessels monthly required bridge openings to navigate the Intracoastal Waterway, which runs under the Anna Maria Island Bridge. Over nearly four years, these vessels comprised 24,889 sailboats (83.5 percent), 4447 powerboats (14.9 percent), 467 tugs/barges (1.67 percent). The tugboats were typically 35 feet by 195 feet. A variety of the sailboats had masts requiring a vertical clearance greater than 65 feet. Sailboats with masts as high as 80 feet-- including a number of boats manufactured in Florida--have passed through the opened drawbridge. The growing importance of a clearance greater than 65 feet is evidenced by the closing of other nearby passes into the Gulf and the increasing use of taller-masted boats. The ship-impact document includes a survey of bridge tenders and commercial boating interests. One tender, who had worked at the Anna Maria Island Bridge for 12 years, reported that he had never seen or known of an marine vessel colliding with the bridge. No one else reported any such collisions. In general, persons surveyed agreed that winds and currents present no navigational difficulties at the fendered channel of the Anna Maria Island Bridge. Figg and Muller prepared the Draft Preliminary Engineering Report dated December 20, 1988, and revised February 13, 1989, "to examine the most feasible and prudent locations and conceptual designs for the construction of the proposed bridge replacement structure . . . at Sarasota Pass ...." The study's objective was to "develop a bridge replacement that will provide an efficient, economical and safe transportation facility with minimal adverse impacts on both the human and natural element." The introduction to the Draft Preliminary Engineering Report notes that DOT has classified the Anna Maria Island Bridge as functionally obsolete. The draft report states that the proposed bridge replacement project is necessary to correct the primary deficiencies of a "lack of emergency shoulders, obsolete design load of H-15 and low overall clearance." The introduction to the draft report states that the current project would be either a two- or four-lane facility. The actual size and need would be consistent with the Manatee County comprehensive plan and MPO transportation plan. The next section of the Draft Preliminary Engineering Report describes existing conditions. This section accurately details most aspects of the existing condition of the Anna Maria Island Bridge. The draft report identifies the bridge's H-15 design load, posted speed limit of 50 miles per hour, and absence of posted weight restrictions. The draft report reveals that the bridge has 36 scheduled daily openings most of the year. Based on a 1988 DOT inspection, the draft report states that the bascule is in "good" condition, meaning that there was "moderate incidence of significant early deterioration." Based on a 1987 DOT inspection, the draft report states that the deck, superstructure, and substructure are in "fair" condition, meaning that there was "early to moderate deterioration that does not reduce element capacity," and the channel protection was in "excellent" condition. The draft report collects detailed accident data for the Anna Maria Island Bridge. The draft report states that the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" was 14,300 vehicles with an average daily traffic of 17,000 vehicles projected for 2010. Based on accident data for 1984 through 1986, the draft report concedes that the accident rate for the bridge is low. For the two approaches, bascule, and remainder of the existing bridge, there were a total of 62 collisions during the three-year period, with the most prevalent being 27 rear- end collisions. None of these 27 rear-end collisions occurred on the bascule. Most of the rear-end collisions--17--occurred on the two approaches. The remaining ten rear-end collisions occurred on the bridge between the bascule and the approaches. The approaches were also the sites of more total collisions than the bridge itself, including the bascule. For the three-year period, 61 percent of the collisions occurred on the two approaches, 5 percent occurred on the bascule, and 34 percent occurred on the remainder of the bridge. There was only one collision involving a vehicle and a pedestrian during the three years in question. This took place on the eastern approach. There were no collisions involving bicyclists. The draft report states that a high percentage of the rear-end collisions occurred near a boat ramp on the west approach and a marina and convenience store on the east approach. The marina and convenience store are about one-quarter mile east of the Anna Maria Island Bridge. The boat ramp is between the west end of the bridge and the signal at Gulf Drive. The draft report suggests that rear-end collisions on the approaches may involve vehicles slowing for right turns into these destinations. The draft report opines that the "high percentage of rear-end collisions on the bridge (39 percent)" may involve vehicles stopping quickly for a bridge opening. This suggestion ignores the queuing effect from vehicles turning into the boat ramp or convenience store and marina. The draft report tries to limit the effect of these traffic backups to rear-end collisions on the bridge approaches. However, attributing a high percentage of rear-end collisions on the bridge to bridge openings ignores the traffic backups from these off-bridge sources, as well as the traffic light at Gulf Drive. Figg and Muller's analysis of the sources of rear-end collisions lacks support, such as through analysis of accident reports. The analysis even cites the wrong figure. The 39 percent figure applies to total collisions on the bridge compared to total collisions; the percentage of total rear-end collisions occurring on the bridge is 37 percent (10/27). The draft report also falters when describing cultural and environmental features. Noting low pedestrian volumes on the Anna Maria Island Bridge, the draft report contends three times in one paragraph that "pedestrian activity is not a major consideration for this project," "pedestrian activity does not warrant special consideration on the project," and "sidewalks ... are used very little by pedestrians." As for environmental factors, the draft report incorrectly identifies the Class II waters surrounding the Anna Maria Island Bridge as Class III waters, although the draft report correctly notes that these waters are Outstanding Florida Waters. But the omissions in the draft report are more significant. The draft report omits any mention of manatee or the seagrass located under what would be the new bridge. The draft report does not discuss the effects of shading, water transparency, and water depth on seagrass. The section following the description of existing conditions is entitled "Need for Improvement." As the name of the section suggests, this part of the Draft Preliminary Engineering Report contains less data and more analysis of the existing and proposed bridges. The discussion is at times more promotional than it is analytic. This section of the draft report starts by noting that the existing bridge has had no significant upgrades to its two, 12-foot shoulder-less traffic lanes. The draft report finds that the lack of shoulders presents a traffic hazard when traffic is stalled on the bridge. The opening of the drawbridge is another source of danger to motorists due to stopped traffic, according to the draft report. The draft report argues that this hazard is "substantiated" by the previously discussed data on rear-end collisions. The draft report summarizes the above-described accident data "for the existing facility" without disclosing that more than half of the accidents occurred on the bridge approaches and not the bridge itself. The draft report adds that opening the drawbridge would also present a danger during evacuations by preventing people from evacuating the island. However, there is no discussion of Coast Guard policy, which is not to order bridge openings during an evacuation, nor is there any mention of the frequency of evacuations, which take place about once every six years. There is also no discussion of the widely known necessity of early evacuations from the island due to early flooding of island roads and bridge approaches. On incomplete data, the draft report merely contends that "evacuation efforts would be severely hampered" by the need to open the drawbridge. The draft report suggests that bicycle traffic would be better accommodated by a new bridge. The draft report observes that the two existing five-foot sidewalks on the Anna Maria Island Bridge create an unsafe condition by mixing bicycle traffic with pedestrians and fishermen. The draft report neglects to discuss the discouraging effects on bicyclists, pedestrians, and fishermen of using a single six-foot sidewalk running up a 4 percent grade to a final height of 75 feet over the water. The draft report states that the MPO's 2000 Plan identified a need for a four-lane facility over Sarasota Pass. However, the 2010 Plan, which was prepared after the draft report, identifies no such need. The draft report notes that the proposed project is also in compliance with the Manatee County comprehensive plan. Addressing social and economic issues, the draft report accurately describes the area surrounding the proposed project as a "naturally beautiful site" with the proposed project promising to be "highly visible from both land and water." The draft report assures that engineers would design a bridge profile "to ensure a pleasing visual effect." The draft report acknowledges that the proposed project is not directly needed to meet any economic demands. But the "social demands for the project would be based on a more efficient and convenient transportation system linking Anna Maria Island with the mainland." The draft report suggests that the improved link "could foster economic development in the area" and everyone would be served by a more dependable evacuation route. However, there is no evidence that the existing drawbridge has ever impeded vehicular or vessel traffic during an evacuation or that the proposed bridge would result in more traffic on Anna Maria Island by way of Manatee Avenue or other routes. The next section of the Draft Preliminary Engineering Report is the analysis of alternative alignments. This section first considers the no-build alternative. The cited advantages of not building the project are that there would be no disturbance to the environment, even though these impacts, according to the draft report, "are nearly all of short term duration and can be considered as minor over the life of the new structure." On the other hand, the benefits of building the bridge include the elimination of the inconvenience of the drawbridge to motorists and boaters and the cost of operation of the typical bascule bridge. The draft report states that maintenance costs for a typical bascule bridge are about $150,000 annually plus estimated major rehabilitation costs of $500,000 to $750,000 every 15-20 years. Additional reported benefits to replacing the Anna Maria Island Bridge are eliminating the safety hazards posed by the lack of shoulders and raising by 25 percent the design load from H-15 to H-20. The draft report concludes that the benefits of the no-build alternative are outweighed by the "substandard design and safety concerns." The draft report considers a two-lane bridge, a four- lane bridge, and two two-lane bridges. Additionally, the draft report considers alignments north and south of the Anna Maria Island Bridge with three structure levels: high-level fixed, mid-level bascule (i.e., a 45-foot closed vertical clearance drawbridge), and low-level bascule. These options account for 18 alternatives. Figg and Muller studied each of the 18 alternatives for traffic flow, ease of construction, bicycle accessibility, operation, safety, aesthetics, environmental impacts, right-of- way impacts, and project costs. As to the north alignment, the draft report notes several problems, including the need to relocate a power line and water line and modify two navigation channels. The draft report states that the boat ramp just west of the bridge and the marina on the east would be impacted if DOT constructed a single four- lane bridge, which would also impact right-of-way. As to the south alignment, the draft report notes several problems, including the need to relocate a water line. Any structure would also impact right-of-way. As to the low- and mid-level bascules, the draft report contends without significant supporting data that few boats could pass through an unopened mid-level bascule that could not also pass through an unopened low- level bascule. The draft report cannot justify any bascule options due to the "additional expenses of the bascule construction, bascule maintenance and bascule operations." The draft report cautions that the bascule alternatives are not "a practical, improved replacement to the existing bascule bridge." The final section of the Draft Preliminary Engineering Report is entitled "Preliminary Design Analysis." The draft report offers rough summaries of projected construction costs for various alternatives. The projections are of greater value for the comparison of differences in probable costs of various alternatives than they are for identifying the estimated cost of a particular alternative. According to the draft report, a two-lane, fixed- span, high-level bridge on the north alignment would cost $9.9 million, and a two-lane, mid-level bascule on the north alignment would cost $12.5 million. On the south alignment, these bridges would cost $10 and $12.6 million, respectively. Discussing the benefits of replacing the Anna Maria Island Bridge, the draft report states that the "most obvious" benefit would be the elimination of the delays to vehicular and vessel traffic from drawbridge openings. A fixed-span bridge also would offer a dependable evacuation route. The draft report suggests that shallow-draft boaters would find navigation enhanced by the tripling of the widths between the supports under the fixed-span, high-level bridge as compared to the more narrowly spaced supports under the existing bridge. The draft report again asserts that the new structure would also offer improved aesthetics, both in terms of the view of the proposed bridge and the view from the proposed bridge. Page VIII-13 of the draft report is missing from SAM Exhibit No. 32. In the final report, and possibly in the draft report, Figg and Muller admitted on this page that the proposed grade of the new bridge would "limit fishing activities and pedestrian use." A brief discussion of rear-end collisions and economic and community development was probably present on the omitted page, but this section generally summarizes discussions from earlier sections. The draft report also considers wetland impacts of new two-lane bridges on the north and south alignments. Relying on the understatements of Peninsula, the draft report states that the area of subtidal seagrass is only 0.63 acres 500 feet north of the existing bridge and 0 acres 500 feet south of the existing bridge. The draft report concludes that a two-lane bridge 25 feet north or 25 feet south of the Anna Maria Island Bridge would not impact any subtidal seagrass and would impact only 0.06 acres of intertidal seagrass on the north alignment and 1.65 acres of intertidal seagrass on the south alignment. The draft report also considers the impacts of new four-lane bridges on the north and south alignment. All of this analysis understates seagrass loss by considerable amounts. Based on these data and analysis, the Draft Preliminary Engineering Report concludes that [a]lignment se[le]ctions based solely on a vegetative impact evaluation would focus on the northern alternative. However, alignment selection will necessarily need to be tempered with a consideration of endangered species involvement and impacts to navigation, partic- ularly when addressing the northern alignment. Sverdrup reviewed Figg and Muller's Draft Preliminary Engineering Report prior to its revision in February 1989. Addressing the discussion of bascule alternates, one Sverdrup engineer stated in a Review Comment Sheet dated January 6, 1989: Information presented thus far does not support premature rejection of bascule options. Vessel height distribution may require some detective work. Consider visits to local marinas, corre- lation with vessel numbers/names on bridge tender logs, additional data recorded by bridge tenders for a few weeks. . . . Objective is to establish relations between traffic benefit vs. reduced openings for different vessel clearances. Ultimate rejection or viability of bascule alternate must have adequate foundation. . . . Sverdrup's environmental representative, Don Smith, reviewed the work of Peninsula. Despite Peninsula's excessively conservative estimates of seagrass loss, Mr. Smith rejected even these estimates as too pessimistic. By review comment sheet to Figg and Muller dated December 28, 1988, Mr. Smith wrote: "As presently written, this section grossly overestimates the extent of possible wetland impact & must be redone." Adamantly rejecting Mr. Smith's criticism, the Peninsula employee wrote on his copy of the review comment sheet: Table 7 does not grossly over estimate wetland impacts. . . . The acreage figures are not grossly overestimated at all. I resent the grossly! Does Sverdrup have any DATA! that reflects my gross overestimates! NO, SHIT A memorandum dated January 23, 1989, memorializes the conclusions of a meeting involving Sverdrup and Figg and Muller representatives. Figg and Muller argued that its subconsultant did not overestimate wetlands and asked Sverdrup to substantiate Mr. Smith's contrary assertion. Sverdrup appears to have relented, and the two consultants agreed to remove a drawing. On January 11 and 12, 1989, the value engineering (VE) team met to define the goals of the first phase of review. The VE team is a multidisciplinary group of engineers unrelated to the project who determine the suitability of the proposal and the feasibility of any more cost-effective proposals. VE responds to the design alternatives presented in the draft report. The VE team listened to a Figg and Muller representative discuss alignment issues, including the presence of seagrass beds immediately south of the Anna Maria Island Bridge. The VE team understood that concerns about the north alignment included navigation and "occasional manatee sitings," and concerns about the south alignment included greater seagrass impact. The VE team visited the Anna Maria Island Bridge, which they found to be in "good condition." They found "no severe deterioration which would endanger the capacity of the bridge." Preliminary VE considers the maintenance and operation costs of bascule alternates, although the memorandum omits mention of the costs of the no-build alternate. Preliminary VE does not identify the no-build alternative as a viable option requiring further consideration. On February 27, 1989, DOT conducted its first public meeting on the proposed project. DOT conducted a public information workshop at the Manatee County public library in Bradenton. DOT regarded the February 1989 workshop as an opportunity for the public and DOT, as equal partners, to gather and make basic plans about whether to replace the Anna Maria Island Bridge and, if so, with what. In March 1989, the MPO adopted an updated long-range transportation plan, which still showed State Road 64 as a four- lane road, including the segment over Sarasota Pass. A memorandum dated March 31, 1989, from a Sverdrup representative to a Figg and Muller representative transmitted new traffic data with the direction: "This data must be analyzed and documented in a revised Traffic Report in order to reach the conclusions necessary to proceed with the project development." The Sverdrup representative relieved Figg and Muller from the obligation of doing certain traffic calculations for bascule alternatives "since it is evident that the fixed high-level structure will be recommended due to lower overall cost." A review comment sheet dated June 13, 1989, from Mr. Smith to Figg and Muller suggested that they revise the draft report to state that the "no- build alternate is eliminated from further consideration; i.e, definitively close the door." On July 7, 1989, Mr. Crim, two Figg and Muller representatives, and two Sverdrup representatives, including Mr. Smith, discussed the north and south alignments to try to agree on the preferred alternative. Someone mentioned that they needed to take a closer look at the environmental impacts because a DEP representative had implied to Sverdrup that the "documentation must show very good reasons for selecting anything but the most environmentally sound alternative." A Figg and Muller representative added that manatee frequently use an area north of the bridge, but the participants felt this was not a significant issue for alternative selection "since manatees can be found throughout the area, north and south." The agenda for the July 7 meeting contains numerous items. Under seagrass, it identifies a need to confirm the area impacted, adding parenthetically "3.65 acres vegetated and 0.63 acres non-vegetated?" On July 7, 1989, Mr. Crim and a Sverdrup representative met with three representatives of the Federal Highway Administration to obtain their comments on the Draft Preliminary Engineering Report. The Sverdrup representative explained that the existing bridge was functionally obsolete due to the lack of shoulders and substandard design load. She explained that the proposed project would be a new four-lane bridge and did not identify a no-build alternative. She disclosed that seagrass impacts were 3.65 acres for the south alignment and 1.55 acres for the north alignment and said that the Federal Highway Administration would receive an application for a categoric exclusion in mid-September, 1989. On July 20, 1989, two Sverdrup representatives, including Mr. Smith, participated in a teleconference with five DOT representatives, including Mr. Crim. They discussed the north and south alignments to try to agree on a preferred alternative to present at the August 10 public hearing. The participants discussed the navigational problems with the north alignment and seagrass problems with the south alignment. Sverdrup tended to agree with Figg and Muller's recommendation of the south alignment. The participants agreed that it should be possible to negotiate an acceptable mitigation plan with DEP, even though one of the DOT representatives warned that DOT District 1, in which the proposed project is located, "has not had much success with seagrass mitigation in the past and that it can be very expensive and still not work." This DOT representative suggested that they present both alignments at the public hearing and defer the recommendation until after receiving public comments. The participants decided to do this. On August 10, 1989, DOT conducted the first public hearing on the project. The public hearing took place at the Anna Maria Island City Hall. DOT uses public hearings to present to the public a preferred alternate and give the public a chance to present information to show that DOT or its consultants have made any mistakes or omitted any considerations or that circumstances have changed materially. Transcribed by a court reporter, a public hearing is tightly structured. The hearing begins with opening remarks of representatives of DOT and its consultants describing the proposed project. These opening remarks are followed by a break during which members of the public may approach representatives of DOT or the consultants, ask questions, and presumably receive answers. However, these questions and answers are not recorded by the court reporter. Following the break, back on the record, members of the public may make oral comments to the DOT and consultant representatives, who almost invariably decline to respond to general questions or engage in any give-and- take with a speaker. Likewise, the DOT and consultant representatives almost invariably insist that speakers limit their comments to the individual project and not discuss other projects, even if relevant (e.g., the Cortez Bridge and a new bridge farther south). After the hearing is concluded, the public may submit written comments for a short period. After this period ends, DOT and the consultants meet privately, consider the record, make a decision on the project, and announce the decision publicly. About 50 persons attended the August 10 public hearing, which was held at Anna Maria City Hall. DOT, Sverdrup, and Figg and Muller provided comment sheets, displays, and reports for public inspection at the public hearing. Representatives of the consultants and DOT encouraged the audience to examine the materials, ask questions of knowledgeable individuals during the off-the-record break, and then make public comments. According to Mr. Crim, DOT intended the August 1989 public hearing to serve as a combined location and design public hearing. However, DOT had failed to give notice to owners of condominiums within 300 feet of the centerline of the west terminus of the proposed project. DOT instead had notified only the condominium association. In his opening remarks to the persons attending the public hearing, Mr. Crim stated that the Anna Maria Island Bridge was one of about 60 bridges in the statewide program "being studied for future replacement." He explained that DOT was "evaluating viable options for either improving or replacing these bridges, obtaining public input and then completing the environmental documentation and design for any recommended improvements." Mr. Crim told the audience: Our study to replace the Anna Maria Island Bridge is nearing the completion of the project development phase. Tonight's hearing is an important step in that phase where we present preferred project alternates for your input prior to selecting a final alternate and then proceeding with preliminary design. Mr. Smith told the audience that DOT had three options: build a new bridge on the north alignment, build a new bridge on the south alignment, or not build a bridge. He stressed that displays in the hearing room did not represent "final plans" and that "absolutely no decisions have been made to this point." Later during the public-comment portion of the public hearing, Mr. Smith stated that there would be no more public hearings, unless so much time passed without construction that the project had to undergo additional review. A Figg and Muller representative told the audience that the 36 drawbridge openings daily "is a cause of a significant number of rear end collision accidents." She identified as the preferred alternative two fixed- span, high- level, two-lane bridges with a single such bridge initially. The Figg and Muller representative noted the seagrass impacts of both alignments. She stated that manatee are in the area, but that DOT expected no impacts due to the use of protective measures. After an hour and a half, the representatives of DOT and the consultants finished their initial presentations. During the break, members of the audience spoke with the representatives of DOT and the consultants. Public comments were divided as to the proposed fixed-span, high- level bridge. Speakers informed DOT of impending recreational and commercial development on the north side of the bridge, as well as navigational concerns, that would be adversely affected by the north alignment. Explaining DOT's practice of typically presenting a preferred alternate, Mr. Crim testified that DOT "can't go to a public hearing and say we don't know what we're going to do. Anybody got any comments?" Instead, DOT presents its recommendation to sharpen the focus of the public hearing. The February 1989 workshop was to help form the decision; the August 1989 public hearing was to show whether DOT should change a tentative decision. On November 1, 1989, Figg and Muller issued the Final Preliminary Engineering Report. The text of the final report is not materially different from the text of the draft report issued nine months earlier except as noted below. Mr. Crim testified that, at this point, DOT had decided to replace the bridge, but had not decided to build a fixed-span, high-level bridge. The final report recites the same "primary deficiencies" of the Anna Maria Island Bridge cited in the draft report, but adds a new deficiency--delays due to bascule openings. Acknowledging the existence of the marina and convenience store one-quarter mile east of the bridge, the final report suggests that collisions on the bridge approaches could be due to vehicles stopping for left turns, as well as right turns. Discussing traffic projections, the final report mentions that, when the draft report was first drafted in December 1988, traffic projections disclosed a need for a two- lane facility with possible expansion to four lanes at some future point. New traffic information demonstrated that the four-lane facility would be needed prior to 2015. The final report increases, without discussion, the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" to 15,400, from 14,300 vehicles reported in the draft report for the same period. The final report adds that the two-lane bridge would reach a level of service E in 2006, so "it is recommended that a four lane facility be constructed prior to this date." The final report contains a new section on endangered and threatened species. This section contains data showing that the area around the Anna Maria Island Bridge is frequented by manatee. The final report relays the information from the Permit Coordination Package that, from 1985 through 1988, there were 163 manatee sitings north of the bridge and 63 manatee sitings south of the bridge. Early in the section analyzing alternative alignments, the final report notes, as does the draft report, that the benefits of the no-build alternative are outweighed by the disadvantages of "substandard design and safety concerns." Recognizing that only the no-build alternative would avoid impacts to the wetlands, the Final Preliminary Engineering Report states: "this alternative is not feasible considering the structural deficiency of the bridge, the absence of shoulders (functional obsolescence) and projected traffic increases indicating the need for two additional lanes." The final report concludes: "Therefore, the No-Build Alternative is not a viable alternative and is hereby eliminated from further consideration in this report." The final report revises the comparative cost estimates, reducing the north and south alignment costs for a two-lane bridge by a little over $1 million. The final report continues to understate the area of subtidal seagrass north and south of the bridge. The final report describes the public involvement on the proposed project. Referring to the public workshop that took place on February 27, 1989. the final report states that, of the 36 individuals who supplied written comments on the proposed bridge, 21 favored a two-lane bridge, six favored a four-lane bridge, 30 favored a high-level, fixed-span bridge, 21 favored the south alignment, and two favored the north alignment. Summarizing the results of the public hearing held on August 10, 1989, the final report recounts that, among oral comments, five favored two lanes, three favored four lanes, five favored the south alignment, no one favored the north alignment, and seven favored the no-build alternative. Written comments were two favoring four lanes, one favoring two lanes, four favoring the south alignment, no one favoring the north alignment, and one favoring the no-build alternative. A new section of the final report is entitled, "Preferred Alternative." Recommending that four lanes be built, the final report recommends the south alignment, mostly on the basis of impediments to navigation posed by the north alignment. There is little discussion of seagrass impact. Relying on the needs of boat traffic, although ignoring the needs of high- masted boats, the final report recommends a fixed-span, high- level bridge and proceeds to analyze the projected costs in greater detail than did the draft report. The remaining material differences between the draft and final reports are that the final report drops the repeated references to the unimportance of pedestrian activity on the Anna Maria Island Bridge, the description of the area surrounding the proposed bridge as "a naturally beautiful site," the assurance that the proposed bridge would be "highly visible from both land and water," and the exhortation that DOT consider the "aesthetics or visual impacts of the project." The final report continues to misidentify the waters around the Anna Maria Island Bridge as Class III waters. On November 27, 1989, DOT circulated a revised Advance Notification Package, noting that the new proposal was for two two-lane, high-level bridges to be constructed in two phases. The notice states that the project is a federal-aid project and that DOT and the Federal Highway Administration would determine the degree of environmental documentation necessary. 2. 1990-92 Various state agencies responded in early 1990 to the revised Advance Notification Package. Several agencies expressed reservations about the proposed project, although ultimately all state agencies dropped their objections at this stage. By letter dated January 4, 1990, DER objected to the loss of seagrass from construction and shading. DER also warned that seagrass mitigation had met with little success in this general area. DER suggested that DOT consider rebuilding the bridge at its current location at or near its current width. The letter suggests that DOT take several steps. In particular, the letter states that the proposed project is in Outstanding Florida Waters, and DOT must, among other things, show that "existing ambient water quality will not be lowered." Representatives of DOT, Sverdrup, Figg and Muller, Peninsula, and DER met on March 23, 1990, to discuss DER concerns about impacts to seagrass and the ability to mitigate. The Peninsula employee estimated seagrass losses of 0.1 acre from pier placement, 0.5 acres (worst case) from construction, and an overshadow effect. Due to the greater height of the new bridge, someone at the meeting said that the overshadow effect would be minimized. As to mitigation, someone reported DER's concern that seagrass typically was already growing where conditions were favorable and, where seagrass was absent, conditions were unfavorable. The Peninsula employee suggested that they could fill holes in the area, raising the bottom elevation to a depth at which seagrass could grow. Someone reported DER's insistence to consider mitigation now, to avoid problems in the permitting stage. In response, DOT "proposed to commit to studying the overshadow effects of the new bridge and the rate of re- colonization of seagrasses in the alignment of the old bridge." DOT agreed to develop alternative mitigation prior to construction of the second two-lane bridge, if recolonization failed. DER agreed to this approach. The agreement between DOT and DER was memorialized by letter dated March 30, 1990, from a DOT representative to a DER representative. The letter promises that, after completion of the construction of the first two-lane bridge, DOT would start monitoring recolonization where the Anna Maria Island Bridge had stood and the effect of shading from the new bridge. If at the end of a monitoring period of unspecified duration an unspecified entity determined that recolonization had been unsuccessful, DOT would implement mitigation at an unspecified location. The letter concludes that DOT's commitment to this procedure will "alleviate DER's concerns regarding the impacts to seagrass and allow for a determination of consistency with the Florida Coastal Management Program." By letter from DER to the Office of the Governor dated April 13, 1990, DER stated that DOT had provided reasonable assurance of seagrass mitigation in part by assuring that seagrass would recolonize under the existing bridge once it was removed. DER noted that DOT promised to monitor recolonization and shading following removal of the existing bridge and construction of the first two-lane bridge. DER recommended a bathymetric survey and stated that a permit would contain success criteria for natural recolonization and require alternate mitigation plans. Withdrawing its earlier objection, the DER letter finds that the project is "consistent with our authorities in the Florida Coastal Management Program at this time." The letter concludes with the promise of a more detailed review during permitting. In the meantime, consultants continued to work on the project. Figg and Muller prepared a draft of the Final Engineering Report and submitted it to Sverdrup for review. In a Review Comment Sheet dated February 15, 1990, directed to Figg and Muller, Mr. Smith again protested high estimates of seagrass losses, stating: "Shading is a non-issue which is not even addressed in any agency regulations. Revise the document accordingly." Other work early in 1990 included final VE review of the project. The second VE memorandum was completed March 26, 1990. Memorializing a meeting that took place February 28, 1990, final VE describes the proposed project as a 65-foot clearance bridge 20 feet north of the Anna Maria Island Bridge. The memorandum concludes that VE could offer no significant improvements to the proposed project. The memorandum does not consider the no- build alternative. However, the memorandum recommends that DOT consider relaxing the ship-impact standard at the ends of the bridge based on the shallow depths at the ends of the bridge, the absence of reported marine collisions with the bridge, and the existence of alternative access to Anna Maria Island. While Figg and Muller spent most of 1990 and early 1991 preparing the Final Engineering Report, consultants or subconsultants prepared additional reports, such as the geotechnical report and bridge hydraulic report. In December 1990, DOT made some changes to the new design, widening the shoulders and adding a sidewalk. Figg and Muller issued the Final Engineering Report about a year after the date of January 31, 1990, shown on its title page. The first paragraph of the Final Engineering Report makes the case for the replacement of the existing bridge, but without any mention of structural deficiency. The report states that the Anna Maria Island Bridge is narrow, without shoulders, and functionally obsolete. . . . In addition to safety concerns associated with a lack of shoulders, accident data show a high number of rear end collisions. One factor contributing to these collisions is the delays to the traffic caused by the opening of the bridge's drawspan. These factors, combined with a need for efficient and safe transportation routes to and from the islands, determined the need to replace the existing bridge at this time. The Final Engineering Report states that DOT and its consultants evaluated 18 alternatives, plus the no-build alternative, and describes the Final Preliminary Engineering Report. The Final Engineering Report notes that the Federal Highway Administration issued a categoric exclusion July 23, 1990. The categoric exclusion was based on, among other things, a DOT representation that the project had no "controversy potential," which may have seemed plausible at the time. DOT District 1 Secretary David May contended that such a representation, which preceded his appointment as District Secretary, would be correct if the controversy were based on unfounded information. In any event, the Federal Highway Administration did not withdraw the categoric exclusion in 1995, even after DOT disclosed the controversy surrounding the proposed project. The Final Engineering Report explains that the original traffic data were faulty. Correct data revealed that the "original concept of a two-lane replacement bridge was unworkable." Thus, DOT and the consultants decided to pursue a two-phase project with the first phase being the demolition of the existing bridge and construction of a single two-lane bridge. The Final Engineering Report states that the decision to build ultimately four lanes warranted reissuance of the Advance Notification Package. The Final Engineering Report states that, in a meeting between representatives of DER and DOT, DOT representatives suggested that the advance notification stage was premature for the development of mitigation commitments, but acceded to DER's insistence due to the availability of a "great deal" of information. The two agencies reportedly reached an understanding of what would be required to offset environmental impacts. The Final Engineering Report states: "Based on that agreement, DOT proceeded with completing the environmental study process and the final design at a cost of approximately $1,000,000 of public funds." The Final Engineering Report discloses that the consultants eliminated the existing alignment in the PD&E study and selected the south alignment due to fewer adverse impacts. The report notes direct and indirect impacts to 3.01 acres of vegetated wetlands, including 1.65 acres of seagrass. The report calculates the seagrass impacts as 0.25 acres from pier placement and 1.4 acres from shading. DOT and the consultants selected the south alignment based on "strong public support" and DER's suggestion that impacts could be offset. The Final Engineering Report explains that DOT eliminated the alternate of the existing alignment because of the loss of access to the island from Manatee Avenue during the two- year construction period. The Final Engineering Report does not mention the reasons for the elimination of the no- build alternative. On July 8, 1991, Figg and Muller issued the Final Bridge Concept Report. The concept remained the construction of two, two-lane fixed-span, high-level bridges in two phases and the removal of the Anna Maria Island Bridge. The purpose of the Final Bridge Concept Report is to provide detailed findings of different types of structures and recommend the appropriate alternatives for consideration in the "final phase of the design and plan preparation." The recommendation is based on comparative analyses of cost and design features. The Final Bridge Concept Report refers the reader to the Final Preliminary Engineering Report for information about environmental conditions. In a brief synopsis, the Final Bridge Concept Report continues erroneously to describe the waters around the Anna Maria Island Bridge as Class III waters, but recognizes that they are Outstanding Florida Waters, so "special emphasis must be placed on the water quality." The Final Bridge Concept Report notes that the total area of seagrass "involved" with the proposed bridge is 1.65 acres and that manatee use the area. Describing the two phases of the overall project, the Final Bridge Concept Report states that the first two-lane bridge would be constructed in the same "corridor alignment," just south of the existing bridge. DOT would build the second bridge when traffic warranted, which is projected to be 2006. In mid-1991, DOT entered into a new contract with Figg and Muller to prepare final design and construction plans for the proposed bridge. DOT included funding for construction of the bridge in its work program adopted in July 1991 with work scheduled for fiscal year 1996. In June and July 1992, the Peninsula employee conducted additional fieldwork to determine the extent of seagrass. This time, though, his work focused specifically on the area under the existing and proposed bridge. The resulting Baseline Seagrass Survey, which Peninsula submitted to DEP in November 1992, states that the purpose of the fieldwork was to collect sufficient baseline data so that DOT could determine the success of natural recolonization under the existing bridge and seagrass shading under the new bridge. The 1992 fieldwork is more intensive than the 1988 fieldwork. The Peninsula employee made ten north-south transects across Sarasota Pass. Although still lacking a bathymetric survey of bottom elevations and effective water depths, the employee calculated approximate water depths at each of 20 data- collection points along each transect and determined, for each point, the species, shoot density, and areal density of any seagrass. He also collected water-quality data for temperature, salinity, conductivity, dissolved oxygen, and water clarity (secchi depth) and recorded "incidental faunal observations." According to Mr. Crim, DOT had completed about 90 percent of its final design and construction plans in August 1992. At this time, DOT applied to the Army Corps of Engineers for a dredge-and-fill permit, DER for a dredge- and-fill permit, Coast Guard for a bridge permit, and Southwest Florida Water Management District for a management-and-storage-of-surface- water permit. In November 1992, residents of Anna Maria, Holmes Beach, and Bradenton Beach voted on a referendum concerning the 65-foot clearance, fixed- span bridge proposed to replace the Anna Maria Island Bridge. The vote was 1961 opposed and 515 in favor. On December 11, 1992, the City Council of Bradenton Beach voted for DOT to place the proposed bridge project on hold pending further study. However, by memorandum dated December 1, 1992, to Mr. Crim, District Secretary May stated: You may be aware that there is concern currently being expressed by some local officials about the design of the Anna Maria Bridge replacement project. We will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project "production ready" as rapidly as possible. 3. 1993 Public opposition to the proposed bridge--in any alignment--continued in 1993. DOT participated in two MPO- sponsored public hearings on January 8, 1993, where numerous bridge opponents expressed disapproval of the proposed project. At the 1:00 pm meeting, a DOT representative disclosed that the bridge construction plans were 95 percent complete and right-of-way acquisition was underway. At the 7:00 pm meeting, the DOT representative responded to a question whether DOT could change its plans. He acknowledged that DOT and the MPO could change their plans, but a discussion of such a change three years earlier would have been better because dropping the project now would mean that "we have thrown away a million dollars of tax money." On January 13, 1993, a special MPO task force met and voted 4-3 to oppose the proposed bridge. There was some support on the task force for a 45- foot-high bascule bridge instead of a fixed-span, high-level bridge. On January 19, 1993, area mayors and city council members met with District Secretary May, who discussed the DOT five-year work program. Addressing the proposed bridge, District Secretary May said: . . . one of the primary components of the program is the Anna Maria Bridge and I know that's a great concern to all of you. It's a concern to the department too. So, rather than get into a big discourse on that, it is a 65', fixed span bridge. It's been designed as such. We're in the middle of purchasing right-of-way for that bridge. . . . In response to a question as to the extent of completion of design work and the ability of the MPO to stop the project, District Secretary May stated that 100 percent of the design was completed and, by law, both the MPO and DOT had to concur to stop the project. In response to criticism about the limited extent of public participation, District Secretary May conceded that DOT had improved public participation compared to seven or eight years ago, when DOT "didn't go to . . . near the level of public involvement that we do now." For the Ringling Bridge, for example, he said that he was "soliciting all sorts of input from all those people," referring to the public. Conceding that the Anna Maria Island Bridge is "not structurally deficient," District Secretary May explained that rehabilitation was not a cost- effective solution. When asked if it was a "done deal that the new bridge is coming in," District Secretary May answered, ". . . Yes, there's a new bridge going to be put there." Responding to a follow-up question, District Secretary May repeated the message: "Without a doubt. As opposed to rehabilitation. The MPO has not come to us with any requests yet so we'll respond once we get a request from them. Yes, ma'am." When asked what DOT would do if the MPO now suggested a 45-foot bascule, District Secretary May said he would "respond at that point in time. But that's a million dollars worth of throw-away design." Asked if public reaction to the proposed bridge would not justify dropping the project, District Secretary May replied: . . . First, if I IMPLIED that we were not doing a good job several years ago [in public participation], that, that is incorrect. We did as good a job as we could do then. We're trying . . . we're exceeding that now. He added that the results of the island-wide referendum were based in part on public misunderstanding of the safety issue and advised that the bridge is of interest to the region, not merely the island. Asked at the end of the meeting if he meant that the proposed bridge was "going to happen," District Secretary May answered, "A bridge is going to happen here." He added, "We need a replacement. We need to replace that bridge. We need to have a bridge replacement," rejecting rehabilitation as not cost effective. Still supported by the Manatee County Commission, the bridge was now opposed by the city councils of Anna Maria and Bradenton Beach. The executive director of the MPO mentioned that the Mayor of Holmes Beach reported that the city approved the 75-foot-high bridge, but this support was short-lived. About 40 residents spoke at an MPO meeting on January 25, 1993; nearly all of them opposed the bridge. A SAM attorney argued that DOT's notice preceding the August 1989 public hearing had been defective. Following discussion, with some support for a 45-foot-high bascule bridge, the MPO voted 10-4 to recommend that DOT proceed with the 75-foot-high bridge. Meanwhile, DEP was again expressing concern about the proposed project. By letter dated January 21, 1993, to James Wilt, the DOT district permit engineer responsible for the bridge project, a DEP administrator in the Tampa office advised that he could not recommend the project for approval. Although the letter was not final agency action, it was sent "to allow applicant time to assess fully the further commitment of financial resources for this project." By letter dated February 3, 1993, Mr. Wilt informed the DEP administrator in Tampa that DEP had long known of seagrass impacts from the proposed bridge in the southern alignment. The February 3 letter complains that DEP neglected to mention the possibility that the bridge project might not be permitted in a September 1992 letter stating that the application was complete or in a December 1992 letter stating that processing of the application had begun. The February 3 letter also complains that a DOT representative called DEP in late December "to inquire about the anticipated date of issuance of the Dredge/Fill permit. [She] was advised that a final field review of the site had to be conducted and the DOT could expect to receive a permit the 2nd or 3rd week in January, 1993." Concluding the February 3 letter, DOT warned DEP: Based upon the early and extensive coordination that has occurred on this project, the absence of any adverse comments during the processing of the application and the fact that DER estimated the issuance of a permit in January of this year, anything other than the issuance of a permit for the southern alignment is unacceptable. On February 10, 1993, DEP issued a Notice of Permit Denial, stating that the proposed bridge would "run directly through the most productive and prolific seagrass nursery areas and impact approximately 2.5 acres of productive shallow bottom." Noting that DEP had expressed concerns about the likely inadequacy of mitigation three years earlier, it had recommended that any new bridge be located at the current location. The Notice of Permit Denial acknowledges that DEP had found the proposed project consistent with the Florida Coastal Management Program, "pending a more detailed review during the permitting stage." However, DOT had failed to substantiate its assurances to offset seagrass impacts, according to the Notice of Permit Denial. The Notice of Permit Denial reports that DEP expressed "significant concerns" about the project in January 1990, including the concern that DEP "'could not expect the applicant to be able to provide reasonable assurances that they could offset the loss of this valuable resource (seagrass beds) through mitigation.'" Thus, DEP recommended that the proposed bridge should be located at the location of the existing bridge. The Notice of Permit Denial denies the application because DOT failed to provide reasonable assurance that the project would be clearly in the public interest and would not significantly degrade Outstanding Florida Waters. DEP found that the project would be adverse to endangered species and threatened habitats, adverse to fishing and marine productivity, and adverse to the current condition and relative value of functions being performed because nutrient assimilation would be reduced by the loss of at least 2.5 acres of seagrass serving as viable nursery area. DEP also concluded that DOT had failed to provide a plan to protect Class II, Outstanding Florida Waters, from significant damage or to provide reasonable assurance that the project would not result in the violation of water-quality standards. The Notice of Permit Denial notes in particular that the project could not lawfully reduce below ambient conditions the following water-quality parameters: biological oxygen demand, dissolved oxygen, iron, mercury, nutrients, phosphorus, turbidity, zinc, and biological integrity. On April 27, 1993, the City Council of Anna Maria voted unanimously to reject the proposed bridge. On May 4, 1993, the City Council of Holmes Beach voted 4-1 to reject the proposed bridge. The mayor vetoed the resolution, and the City Council overrode the veto. On July 4, 1993, the Sarasota Herald-Tribune published the results of a survey asking if readers preferred replacing drawbridges on the Intracoastal Waterway with fixed-span, high- level bridges. The results were 73 percent favored replacement and 26 percent opposed replacement. The newspaper reprinted about 75 responses, ranging in emotion between the following: Yes. Don't let the old-timers sway the decision. Let's go with the modern time. Some of them will be long gone before the bridge is completed. No. Keep the unique and lovely part of our country as it was when you were first attracted to it--or move away. Environmental work on the proposed project stepped up after DEP denied the permit. On July 13, 1993, Peninsula forwarded to DEP the Seagrass Mitigation Plan, which later became part of the permit. At the same time, responding to public concerns about wind safety on high-level bridges, DOT retained Dr. Robert C. Sheets, former director of the National Weather Service, to advise on the effects of high winds at high elevations. Dr. Sheets explained why the higher bridge did not pose a significantly greater risk to bridge users than the lower bridge. According to Dr. Sheets, the vertical exchange of energy characteristic of predominantly convective storms like thunderstorms and hurricanes precludes much difference in wind speeds at the two heights in question. The difference in wind speeds during nonconvective storms like "no- name storms" or "storms of the century" is larger, but still not great. No-name storms lack the vertical exchange of energy of hurricanes and thunderstorms, so wind speeds at 75 feet are greater than at 25 feet. Local emergency management and law enforcement officials would close any bridge when wind speeds at the deck reach 45 miles per hour. A 75-foot-high bridge might encounter such winds in nonconvective storms about 20 minutes earlier than would the 25-foot-high existing bridge. In June 1993, Petitioners filed a petition alleging, among other things, that DOT's notice preceding the August 1989 public hearing was legally insufficient because DOT failed to send it to owners of condominiums within 300 feet of the proposed project. Abating any proceedings on the petition, DOT decided to conduct another public hearing on the project. Agreeing to requests of residents to schedule the public hearing in the fall when seasonal residents could attend, DOT scheduled the public hearing for October 26 and 27, 1993. On October 1, 1993, DOT mailed letters to all required persons, including owners of condominiums within 300 feet of the proposed project, advising them of the times, dates, and locations of the public hearing on October 26 and 27, 1993. DOT also advertised the public hearings. The letter and advertisement state: This hearing is being conducted to solicit input from area residents, local public officials, and other interested persons or organizations relative to the location, design, and social, economic and environmental effects of the proposed improvements. . . . The purpose of the project is to replace the existing bascule bridge with a fixed-span high level bridge. To encourage public participation, DOT conducted one public hearing on the mainland and another public hearing on the island. The two public hearings were really a single, two-day public hearing. About 200 persons attended the October 26 hearing in Bradenton and 550 persons attended the October 27 hearing in Holmes Beach. The hearing format for both nights was identical and tracked DOT's typical practice in conducting public hearings, such as the August 1989 hearing. However, each hearing began, after a brief introduction, with an eight-and-one- half minute videotape instead of a live project description. During a break following the videotape, persons in attendance could talk to representatives of DOT and the consultants and ask them questions off the record. The final part of the hearing was devoted entirely to recorded comments from the audience. At the start of the first night's hearing, the DOT representative identified the fixed-span, high-level bridge as DOT's preferred alternate, stating: The reason for holding the public hearing and the purpose of this public hearing is to allow you to present to us any new, any additional information that has not been considered in the past and was not looked at during the study that was held some several years ago on this bridge. At the start of the second night's hearing, the same DOT representative said: "This public hearing . . . involves the replacement of the Anna Maria Bridge. . . . The proposed improvement involves a replacement of the . . . Anna Maria Bridge with a 65-foot minimum clearance, high level, fixed span bridge." The DOT representative added, referring to the fixed- span, high- level bridge: . . . We refer to this as the DOT preferred alternative. It has been said that you did not have the choices that you hear that others have. The public hearing that was held, several people in this room remember that were there about five years ago, presented many different alternatives at that time. In the normal course of a project development and environmental study allows us to go through many different alternatives, and through the weeding out process we then select a preferred alternative based on all of the elements that we can possibly get into in making this decision. We did that. The preferred alternative was chosen and what we have here tonight, for you tonight is the preferred alternative, two level, high level-- 2-lane, high level, fixed bridge. With that, we will now have the presentation. The professionally produced videotape features background music, narration, computer graphics, and skilled editing and cinematography. The videotape begins by stating that DOT has determined the "aging drawbridge to be functionally obsolete because it fails to meet current design standards and has no emergency shoulders for breakdowns." The narration explains that traffic congestion is compounded by bridge openings for marine traffic. The videotape generates an artificial tone of anxiety by fast editing of closeups of existing road traffic and the drawbridge warning light, then zooming in ominously on the warning light and chipped-away concrete revealing steel-reinforcing bars. The narrator tells the audience that these obsolete conditions led DOT to recommend replacing the bridge. As the videotape explains, "Several alternatives were considered when plans for upgrading the Anna Maria Island Bridge were made." The videotape identifies these alternatives as the no-build option, north alignment, and south alignment. The videotape states that the no-build alternative would require extensive and expensive repairs, including the complete renovation of the drawspan and extensive substructure, but this is not economically viable. A new bridge using the existing alignment would eliminate Manatee Avenue access to Anna Maria Island for two years. The north alignment would impact the nearby boat ramp and require a new navigational channel, which would destroy seagrass. The videotape reports that the preferred alternative is the south alignment, which "affects about one and one-half acres of seagrass" that "will be closely monitored." The videotape assures the viewer that the "Florida Department of Transportation is committed to minimizing impacts to the seagrass in the project area." The narration and block letters on the screen add: "The benefits of the recommended alignment constitute the most favorable balance of environmental concerns, welfare of the community and achieving the objective of providing a modern and effective bridge." The videotape mentions that drawbridges require regular openings to allow vessel passage. A computer-graphic rendering of the bascule opening shows the bridge opening quickly without a gate or warning lights, a bus suddenly stopping less than a bus length from the vertical bridge span, and a convertible car stopping quickly behind the bus with a second car immediately queuing up behind the delayed bus and car passengers. The videotape concedes that a mid-level bascule bridge would "alleviate much of the traffic delay," but warns that it is a "greater financial burden." The videotape states that the initial construction cost of a drawbridge would be $11.4 million, and the annual operation and maintenance costs of a drawbridge average at least $150,000 plus a $500,000 major repair job every 20 years. On the other hand, the videotape states that the cost of a fixed- span, high-level bridge would be $8.4 million, so the preferred alternative would save at least $3 million over the life of the project. The videotape displays a sailboat with a mast under 65 feet cruising under the proposed bridge just as emergency vehicles pass cars pulled over onto the spacious shoulder. To the extent of any implication that emergency vehicles could be delayed by an opened drawbridge, the videotape ignores the radio coordination that exists between such vehicles and the bridge tenders. The videotape next considers emergency evacuations. Noting that wave effects and flooding on approaches would more likely close a bridge than would high winds, the videotape warns of conflicts between marine vessels and vehicles during evacuations. This warning ignores the Coast Guard practice not to order bridge openings so as to interfere with evacuations and the effect of the need of islanders to get off the island early due to the flooding of island roads and bridge approaches, typically well in advance of the worst of the storm. Displaying photographs from the same perspective of the existing bridge and the proposed bridge superimposed by computer, the videotape assures that "the bridge blends gracefully with the surrounding area." One photograph depicting the proposed bridge was on display with a photograph displaying the existing bridge, both as seen from the east, slightly south of Manatee Avenue. The actual photographs were also on display at the public hearings. The obvious purpose of the two photographs was to encourage viewers to compare the two bridges. However, the comparison was distorted so as to underrepresent the size of the proposed bridge. The photograph of the proposed bridge was taken with a wide-angle lens with the sides cropped, which removed the distortion and extra field of vision accompanying a wide-angle photograph. Because the photograph of the existing bridge was taken with a normal lens, the photograph of the proposed bridge underrepresented its height and width by 20 percent relative to the height and width of the existing bridge. The videotape concludes: An aesthetically appealing and environmentally sound structure that safely spans the Intracoastal Waterway is the Department's goal. A bridge that blends with the unique ambience of this island paradise while guaranteeing Manatee County's residents and visitors safe and efficient travel is of paramount importance to us all. Though not unanimous, public comment at the public hearings was vastly against the proposed project. Figg and Muller summarized the comments by stating that 374 persons favored the project and 940 persons opposed the project. The most popular reasons against the new bridge were in descending order: environmental problems, high-level wind problems, accelerated development, bad aesthetics, and failure to solve evacuation problems. Among the oral or written comments were comments from an orthopedic surgeon who has lived in Holmes Beach for 24 years, opposed the proposed bridge, and said that the existing bridge had never been a problem in treating his patients on the mainland. The Manatee Chamber of Commerce supported the proposed bridge. The Mayor of the City of Anna Maria complained that DOT took its direction from the MPO, from which the island municipalities had been denied voting membership until late 1989 when they obtained one voting member. The mayor also complained of a bridge-by-bridge approach to bridge construction, rather than a regional plan addressing the uniqueness of the barrier island. Mr. Crim testified at the January 1996 formal hearing in this case that DOT's position at the October 1993 public hearings, compared to the August 1989 public hearing, was "even more defined." Unless "something significant" came up, DOT was "going to build the bridge that it had already planned." Mr. Crim testified that the only other viable option at the 1993 public hearings was the no-build alternative. After the public hearings on October 26 and 27, 1993, District Secretary May reported to the MPO, during its meeting of November 22, 1993, that comments were about 3-1 opposed to the bridge. The MPO voted 6-8 not to reconsider its support for the 75-foot-high bridge. 4. 1994-Present Following the October 1993 public hearings, Petitioners filed a petition with DOT in January 1994 challenging DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The procedural history of this case is set forth in the Preliminary Statement and is incorporated by reference. Between the October 1993 public hearings and the formal hearing in this case in January 1996, the MPO dropped the four-lane bridge from its 2020 needs plan based on updated traffic projections that indicate no need for the additional capacity. The needs plan continues to limit Manatee Avenue to two lanes east of the Anna Maria Island Bridge to 75th Street, which is substantially east of the bridge. At the January 1996 formal hearing, Mr. Crim was unaware that the MPO had dropped from its 2020 needs plan the four-laning of Manatee Avenue over Sarasota Pass. However, DOT policy is that once a project has reached a certain stage of development, which this proposed project has, it can only be stopped if both DOT and the MPO agree. As District Secretary May testified, DOT no longer begins the planning process with the MPOs, as it did here, but instead starts with local communities. But even if the MPO voted to eliminate the proposed project, District Secretary May intends for DOT to proceed with the fixed-span, high-level bridge because, by the January 1996 formal hearing, DOT had spent over $2 million on the proposed project. DOT acceded to an MPO request to stop the Cortez bridge- replacement project, but this action preceded District Secretary May's appointment. After more than two years of discussions with DOT following the Notice of Permit Denial, on May 2, 1995, DEP issued an Intent to Issue a dredge- and-fill permit for the demolition of the Anna Maria Island Bridge and construction of a fixed-span, high-level bridge on the originally proposed south alignment. Intervenors filed petitions with DEP in June and July 1995 challenging DEP's Intent to Issue the dredge-and-fill permit. After the formal hearing in December 1995 and issuance of a recommended order recommending that DEP deny the permit, DEP has not yet issued a final order. Ultimate Findings of Fact DOT's Exercise of Discretion in Deciding to Replace the Anna Maria Island Bridge with a Fixed-Span, High-Level Bridge The proposed project would permanently destroy 2.5 acres of seagrass and temporarily destroy 2.0 acres of seagrass. Proposed mitigation is vague, contingent, and ultimate illusory. Degradation of water quality is likely, and DOT never obtained the baseline water-quality data from which analysis must begin. The proposed project would adversely affect the conservation of fish and wildlife, including endangered species and their habitats; adversely affect navigation on the Intracoastal Waterway for tall-masted boats currently using Sarasota Pass; and adversely affect fishing and recreation values by destroying vast areas of seagrass and removing the existing bridge as a popular area for fishing, bicycling, jogging, and walking. A permanent improvement, the proposed project would be sited in a productive marine environment performing crucial functions of feeding endangered manatee and other wildlife and cleaning Outstanding Florida Waters through nutrient assimilation and stabilization of sediments. The proposed project would poorly serve important cultural and aesthetic concerns expressed by an overwhelming majority of island residents, who would be uniquely affected by the proposed project. A large majority of the people of Anna Maria Island do not want the proposed bridge. The island-wide referendum conducted by the three municipalities in November 1992 reveals that opponents outnumber proponents by nearly a 4:1 margin. Some residents reject the bridge because they believe that it is only the first of two bridges, which would double the lanes onto the island and result in greater traffic on the island. DOT does not presently intend to build a second bridge, nor is the MPO seeking such a bridge at present. Some bridge opponents distrust DOT and the mainland-dominated MPO on this point, but the record does not indicate that such plans are presently under active consideration. Most if not all residents opposing the bridge focus on the height of the proposed bridge from the perspective of wind safety, but these concerns are largely ungrounded. However, the concerns of bridge opponents about the height of the proposed bridge extend beyond wind-safety issues. Some residents oppose the proposed bridge because they believe that it is unsuitable for their small island community. A high-level bridge would not permit fishing from anywhere but the extreme ends. Many area residents--many of whom are older persons--who walk, bicycle, or jog on the existing bridge would find the 4 percent grade and bridge height forbidding. It is difficult to see how a single six-foot sidewalk on the proposed bridge would better accommodate walking, bicycling, jogging, and fishing better than the two five-foot sidewalks on the existing bridge. Objections to the bridge height involve more than reduced access for nonmotorists. Except for one condominium permitted under prior law, nothing manmade on the island stands over 38 feet high. Bridge opponents claim that the size and appearance of the bridge would not blend well with the subdued appearance and casual ambience of their island. Bridge opponents prefer their timeworn drawbridge, which allows motorists, bicyclists, and pedestrians to view the water just a few feet below them as they approach or leave the island. Better scaled to the island community, the drawbridge, occasionally interrupting vehicular traffic, provides a marked boundary between the island and the mainland. Such a boundary is less apparent from a wide expanse of new roadway across a fixed- span, high-level bridge, from which motorists, bicyclists, and pedestrians would have little if any view or feeling of the water separating the island from the mainland. Most if not all bridge opponents resist the bridge as a dramatic alteration of the daily gateway to their community. These residents are trying to preserve the special lifestyle-- the pace and rhythm of their lives--that they sought in moving to the island in the first place. At the same time, the reasons for the proposed bridge are insubstantial. Interestingly, DOT recently completed the rehabilitation of the Cortez Bridge. Abandoning earlier plans to replace the bridge, DOT instead repaired and rehabilitated the drawbridge without widening the bridge or bascule spans. The Anna Maria Island Bridge has not proved unsafe over 37 years. Collisions on the bridge approaches are 50 percent more numerous than on the bridge itself. Superficial analysis of the accident data does not alter the fact that the bridge's accident rate is low. Most of the rear-end collisions on the bridge and bridge approaches are attributable to traffic backups from the Gulf Drive light and turns into the boat ramp on the west and convenience store and marina on the east. The drawbridge has not been a material cause of collisions on the bridge and bridge approaches, and the fixed-span, high-level bridge therefore would probably not reduce the number of collisions in this area. If vehicular safety were a problem on the Anna Maria Island Bridge, the sensible response would be to analyze the data carefully. If, for instance, numerous collisions were at night, DOT should considering adding street lights to the bridge. If, as is likely, most of the rear-end collisions are attributable to traffic backups, then DOT should consider the effects of lowering the speed limit through an increasingly congested area with boat ramps, a marina, and a convenience store. Perhaps such a study would present DOT an opportunity to revisit the wisdom of maintaining a 50-mile-per-hour speed limit on a road segment that, to the west, quickly ends at the Gulf of Mexico on a narrow barrier island with constrained and congested roads and, to the east, passes through increasingly urbanized areas. In promoting the proposed bridge, DOT has oversold the planning and design standards that arguably militate against the Anna Maria Island Bridge. In reality, these standards reveal that the decision to add shoulders is conditioned on consideration of numerous other factors, including the environmental, cultural, and aesthetic factors militating in favor of retaining the Anna Maria Island Bridge. DOT claims that the Anna Maria Island Bridge is functionally obsolete in large part due to the absence of shoulders or breakdown lanes on the bridge. Although the safety of a road segment is enhanced by the presence of breakdown lanes, the added margin of safety is not as great as DOT implies in this case. Countering suggestions of greater safety, the shouldered approaches to the bridge have experienced 50 percent more collisions than the unshouldered bridge. The record contains three sources of design standards for bridges: DOT's Index No. 700 or Design Criteria Related to Highway Safety, dated September 1991 (SAM Exhibit No. 123); Chapters 1 and 2 of Volume I of DOT's Plans Preparation Manual (SAM Exhibit No. 126); and the 1990 standards of the American Association of State Highway and Transportation Officials (AASHTO) (SAM Exhibit No. 105). The Plans Preparation Manual specifies that through lanes should be "as wide as practical, up to 12 feet." Index No. 700 specifies that clear widths for bridges with undivided travel lanes on urban arterials with design speeds of 30-50 miles per hour, such as this road segment, should be the "travel lanes plus approach shoulder widths." The introduction to Chapter 1 of the Plans Preparation Manual states that projects are normally based on established design standards for the various elements of the project, such as width of roadway . . .. Selection of the appropriate standards is influenced by traffic volume and composition, desired levels of service, terrain features, roadside developments, environmental considerations and other individual characteristics. Addressing the aesthetics of road projects, Chapter 1 states that the designer should consider, after functionality, how a highway will be perceived by users, ensuring that "[h]orizontal and vertical alignment should be coordinated so that a driver has an opportunity to gain a sense of the local environment." Notes to Index No. 700 stress the conditionality of the design standards. One note states: "Values shown above shall be used on all new construction and on reconstruction projects to the extent that economic and environmental considerations and [right-of-way] limitations will allow." Another note adds for clear zones: Standard values are to be used for all new construction projects. These values may be reduced only where individually justified to mitigate critical social, economic, and environ- mental impacts or to lessen right-of- way costs. Standard values are also to be used for recon- struction projects; however values down to AASHTO minimum may be used where individually justified due to critical social, economic and environmental impacts and/or excessive right-of-way costs or when existing roadside obstacles are not considered hazardous as evidenced by field review and by accident history or accident potential. AASHTO standards call for a minimum width of the travel lanes plus three feet per side. But AASHTO standards recognize that reasonably adequate bridges . . . that meet tolerable criteria may be retained. Some of the nontechnical factors that should be considered are the esthetic value and the historical signifi- cance attached to famous structures, covered bridges, and stone arches. The bridge approaches have eight-foot gravel shoulders, although no design shoulders. However, the design standards do not require bridge shoulders of eight feet or even three feet without consideration of environmental, aesthetic, social, and economic factors. After consideration of all the factors, the cited design standards do not mandate the widening of the existing bridge to add shoulders. As for the failure of the Anna Maria Island Bridge to meet current load standards for bridges, the AASHTO minimum design standard for new bridges "should be HS-20." The existing bridge is rated HS-15. However, the same conditions attach to the load standard of a bridge as apply to the presence and width of shoulders. HS-15 is a "tolerable" criterion. There is nothing in the record suggesting that the current load limit of the Anna Maria Island Bridge is unsafe. If DOT were concerned about the load capacity of the bridge, it would have imposed weight limits on the bridge. After consideration of all the factors, the design standards no more call for a new bridge to increase the load rating to HS-20 than they call for adding shoulders to the bridge. As for the failure of the Anna Maria Island Bridge to meet current ship-impact standards, the record does not clearly establish that the existing bridge fails to meet these standards. Even if it fails to meet these standards, the VE team itself recommended relaxing the H-20 bridge-impact standard outside of the channel, partly based on the faultless marine safety record of the bridge and the availability of alternative access to Anna Maria Island. Even DOT does not cite a 25 percent improvement in ship- impact resistance as a compelling reason, in isolation, for a new bridge. The Draft Preliminary Engineering Report contends that the Anna Maria Island Bridge should be replaced due to its low overall clearance. But the proposed bridge would effectively close the Intracoastal Waterway at Sarasota Pass to a growing number of sailboats that can presently navigate the pass. And there is no evidence that the 36 daily bridge openings unduly delay vehicular traffic, especially in view of the traffic delays already caused by the traffic light at Gulf Drive. The Final Preliminary Engineering Report adds two more reasons for replacing the Anna Maria Island Bridge. The first is the need to accommodate traffic increases. However, updated analysis has reduced traffic projections, and the proposed bridge is now clearly limited to two lanes in any event. The second reason cited in the Final Preliminary Engineering Report is "structural deficiency." There is absolutely no evidence in the record suggesting that the Anna Maria Island Bridge is structurally deficient. Nine months prior to this statement appearing in the Final Preliminary Engineering Report the VE team inspected the bridge and found it was in "good condition" with "no severe deterioration which would endanger the capacity of the bridge." Coming from engineers, the assertion that the bridge is "structurally deficient," without support or qualification, was irresponsible. The driving force behind DOT's decision to replace the Anna Maria Island Bridge seems to be cost. DOT contends that it is less expensive to replace the Anna Maria Island Bridge now than it is to rehabilitate and repair it for the remainder of its useful life. When built, the Anna Maria Island Bridge had a life expectancy of 50 years. The bridge remains in "good condition," and traffic demands on this segment of Manatee Avenue can be satisfied by two lanes for a period in excess of the remaining useful life of the bridge. DOT projects the cost of the new bridge at $8.4 million. However, DOT has spent $2 million without commencing construction and still has not identified aspects of construction that might be dictated by environmental concerns, such as the construction of work platforms or use of specialized demolition techniques. The $8.4 million figure is probably low. The $8.4 million projection for the proposed bridge is definitely low once environmental costs are considered. Perhaps incapable even of approximation as to lost seagrass beds, degraded water quality, and reduced wildlife, including manatee, environmental costs can be partly quantified in terms of lost recreational opportunities, property values, and business income in the event of degraded waterbodies and increased governmental expenditures to reverse environmental degradation. It is even more likely that DOT's cost figures for retaining the Anna Maria Island Bridge are high. DOT projects "minor" (i.e., without widening) rehabilitation costs for the Anna Maria Island Bridge as $2.0-$3.8 million. They are based on general experience, which has not proved reliable for this bridge. General experience suggests that a bridge of this type and vintage should have needed to be rehabilitated at 20 years; yet, 37 years later, still without such a rehabil- itation, the Anna Maria Island Bridge remains in good condition. The Anna Maria Island Bridge could benefit from a "minor" rehabilitation costing at least $500,000. This probably would be the only substantial rehabilitation required for the remaining useful life of the bridge. DOT typically replaces rather than rehabilitates when rehabilitation will cost at least 60 percent of the cost of replacement. If so, using DOT's numbers, replacement would not be indicated unless rehabilitation were to cost over $5 million. Several provisions in the state comprehensive plan tend to sustain DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Three of these provisions are in the transportation section of the state comprehensive plan calling for transportation planning to manage growth, enhance system efficiency, and ensure efficient access to services, jobs, markets, and attractions. A provision in the public facilities section calls for planning and financing new facilities in a timely, orderly, and efficient manner. These provisions favor the new bridge only to the extent of a need for the new structure. Absent a need, some of these provisions, such as favoring timely and efficient planning of new facilities, actually militate against the new bridge because DOT could advance the funding of another, needed project if it did not spend the money on the replacement bridge. Arrayed against these provisions of the state comprehensive plan are numerous other provisions clearly disfavoring the new bridge. Some of these provisions are in the sections on transportation and public facilities. One provision admonishes that, in addition to enhancing system efficiency, it is also important to minimize adverse environmental impacts. Another transportation provision is to promote timely resurfacing and repair of roads and bridges to minimize costly reconstruction and enhance safety. A final applicable transportation provision is to avoid transportation improvements that encourage increased development in coastal high-hazard or productive marine areas. According to the Draft Preliminary Engineering Report, the proposed bridge "could foster economic development in the area," meaning the barrier island. Provisions in the section on public facilities are to protect substantial investments in already-existing public facilities and promote rehabilitation and reuse of existing facilities rather than commence new construction. Numerous provisions of the state comprehensive plan disfavor the new bridge on environmental grounds. Florida must ensure that development in coastal areas does not endanger important natural or marine resources and must protect and restore long-term productivity of marine fisheries habitat and other aquatic resources. Other provisions are to conserve wetlands, fish, and marine life to maintain their environmental, economic, aesthetic, and recreational values; to prohibit the destruction of endangered species and protect their habitats; and to protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. One provision explicitly links Florida's environmental health with its economic health by requiring that Florida maintain the environment as one of its primary economic assets. The proposed bridge project is inconsistent with the state comprehensive plan, taken as a whole. The proposed project disregards the requirements to rehabilitate and reuse existing facilities where possible, to avoid transportation improvements that encourage development in coastal high- hazard areas, and to repair and resurface roads and bridges in time to avoid more costly expenses. The inconsistencies between the proposed project and environmental provisions of the state comprehensive plan are evident. Another group of provisions disfavors on a different basis the decision to replace the Anna Maria Island Bridge with the new bridge. These provisions call for improved intergovernmental coordination, maximized citizen involvement, and encouraged citizen participation at all levels of policy development, planning, and operations. The record does not support a finding that DOT seriously addressed the various elements in the state comprehensive plan that must guide state agencies in their capital expenditures. In so doing, DOT undermined citizen participation in this important planning process. DOT and its consultants collected some environmental data, but too little, too late. Also, DOT never subjected the environmental data to detailed, careful analysis. Motivated by cost considerations, which offer scant support for the proposed bridge project, DOT sought to replace old drawbridges and wanted to replace them as inexpensively as was reasonably possible. In pursuing its drawbridge-replacement policy in this case, DOT did not assess sufficiently the relevant environmental, cultural, and aesthetic factors. This failure undermined citizen participation and the planning process itself. For instance, before collecting the detailed seagrass data in June and July 1992, DOT had already proceeded far into the planning for the present project, rejecting the no-build alternative, selecting the south alignment, and possibly selecting the fixed-span, high-level design. Yet, informed consideration by DOT and the public of all of the alternatives demanded early knowledge of the area and functions of seagrass to be destroyed by the project. The seagrass issue came as no surprise to DOT. Sarasota Pass is Outstanding Florida Waters. A DOT representative had warned other DOT representatives in July 1989 that they had not had much success with seagrass mitigation. Over a year earlier, at the very inception of this long planning process, Figg and Muller amply identified in its subconsulting contract with Peninsula the various environmental problems posed by this project. In early 1990, DER warned DOT about the importance of seagrass and mitigation. Yet, DOT elected to avoid federal environmental review by obtaining in mid-1990 a categoric exclusion on the basis that the proposed supposedly had no significant impact on any natural, cultural, or recreational resources and had no significant impact on water quality. Instead of seriously confronting the seagrass issue, Sverdrup twice tried to influence Figg and Muller and its subconsultant to understate the amount of seagrass that would be destroyed by the proposed project. These efforts are not merely unreasonable in retrospect, but were unreasonable at the time, as evidenced by the angry reaction of the Peninsula employee and the more businesslike resistance of Figg and Muller. The resulting atmosphere was not conducive to a vigorous investigation of environmental conditions and thoughtful analysis of the impact of the proposed alternatives on these conditions. DOT and its consultants never obtained much data that various parties demanded. When entering into the subconsulting contract with Peninsula, Figg and Muller required Peninsula to do an analysis of bottom sediments for heavy metal concentrations, but this was never done. In early 1990, DER warned DOT about the strict water-quality standards applicable to the project. Yet, DOT and its consultants never obtained vital water-quality data. Still in the first half of 1990, DEP recommended that DOT obtain a bathymetric survey, which DEP promised to review in detail at the permitting stage. But DOT and its consultants never obtained this crucial data either. In fact, it was not until two years later--after DOT had rejected the no-build alternative and south alignment, if not also the bascule designs--that Peninsula obtained seagrass data of the level of detail even approaching what DEP had sought. The treatment of manatee in the planning process was also inadequate. Omitted entirely from the Draft Preliminary Engineering Report, manatee were discussed in later documents. But at no time did any consultant address two distinct threats posed to manatee by the proposed project. First, the wider-spanned bridge would, as promised by the Draft Preliminary Engineering Report, enhance navigation for shallow-drafter boats by facilitating their bypassing of the channel and cutting under the bridge. In addition to destroying seagrass by prop dredging, small boats cutting under the bridge would threaten manatee feeding in shallow water in exactly the manner described in the Permit Coordination Package. Second, construction of the new bridge would effectively narrow the pass, which has already been constricted by fill placed when the Anna Maria Island Bridge was built. This would drive manatee into a narrower area within the channel and increase the chances of injury from collisions with boats. 335. More than once in this planning process, DOT and its consultants tried unreasonably to wring support for the proposed project from unfavorable data and analysis. Mr. Smith's attempts to coerce the analysis of seagrass losses is perhaps the most glaring example of this unfortunate treatment of data and analysis. Another Sverdrup representative discouraged independent analysis of new traffic data by Figg and Muller when he sent Figg and Muller a memorandum with the instructions to analyze and document the data "to reach the conclusions necessary to proceed with the project development." A more pervasive example of this practice is in the treatment of the accident data. In the Site Characteristics Report prepared at the end of 1988, the consultants noted the low accident rate of the Anna Maria Island Bridge and suggested reasonably that the high percentage of rear-end collisions might be due to traffic backups, which might be due to backups from the Gulf Drive traffic light, nearby left turns, or drawbridge openings. A month or two later, in the Draft Preliminary Engineering Report, Figg and Muller tried, without detailed analysis of accident reports, to limit the effects of the boat ramp, marina, convenience store, and traffic signal to rear-end collisions on the approaches and attribute rear-end collisions on the bridge to the opening of the drawbridge. A later reference in the draft report to accident data "for the existing facility" is misleading for its failure to differentiate between the bridge and the bridge approaches. By the August 1989 public hearing, the Figg and Muller representative was telling the public that the drawbridge openings were a cause of a "significant number" of rear-end collisions. No evidence supports this conjecture, which does not rise to the level of analysis. DOT and its consultants failed to substantiate other vehicular safety concerns when they failed to account for the coordination that exists between drawbridge openings and emergency vehicles and drawbridge openings and hurricane evacuation. Yet, DOT and its consultants continued to cite these nonissues, like they cited rear-end collisions, prominently in their arguments about functional obsolescence and safety, at least through the rejection of the no- build alternative in the Final Preliminary Engineering Report issued on November 1, 1989. At the formal hearing, DOT tried to bolster its safety arguments with two new arguments that are hopelessly anecdotal. DOT presented evidence that bridge tenders are susceptible to crime: a DOT witness testified that the shelter of a bridge tender in Dade County was pockmarked by numerous bullet holes. Another DOT witness testified that a bridge tender was crushed by the gears of a drawbridge he was trying to fix when the power company suddenly restored power after an outage. Neither narrative establishes widespread problems with drawbridges. There is nothing to suggest that a bridge tender on the Anna Maria Island Bridge must contend with drive-by shootings. If so, motorists and other users of the bridge might be safer if a bridge tender were available to telephone the police. The death of the bridge tender crushed by the drawbridge gears was tragic, but easily avoidable simply by shutting down the power to the bridge before working on it. Likewise, DOT tried at the formal hearing to support the functional- obsolescence argument by contending that the additional lanes would hasten evacuation efforts by the ability to convert to more lanes one-way east. But island evacuation does not require the addition of two shoulders that could be converted into travel lanes during evacuations. Successful evacuations have taken place with the existing bridge, whose two lanes can be used one-way east in emergencies. The two-lane bridge is not a bottleneck considering the two- lane facility to the east and the floodprone bridge approaches and island road system to the west. DOT's premature commitment to project implementation discouraged objective analysis of the data. Nor was DOT receptive to DEP's role in reviewing the proposed project. When DER withdrew its early objections to the Advance Notification Package in April 1990, it promised a more detailed review during permitting. But the Final Engineering Report in early 1991 sounded what proved to be an ominous note when it stated that, based on the agreement with DER, DOT had spent about $1 million of public funds on the completion of the PD&E process and final design of the new bridge. Not applying for permits when the design work was 65- 70 percent complete, as directed by the PD&E, DOT waited instead until August 1992, when the final design and construction plans for the project were 90 percent complete. When DEP expressed concern about the project, DOT, ignoring another opportunity to focus on the substantive environmental and public welfare issues, responded instead with an insubstantial estoppel argument and stern warning that "anything other than the issuance of a permit for the southern alignment is unacceptable." Not every transportation project will serve all provisions of the state comprehensive plan. Some planning processes and decisions may even conflict with more provisions of the state comprehensive plan than they serve, but still not conflict sufficiently with the entire state comprehensive plan, construed as a whole, to constitute an abuse of discretion. But in this case, the proposed project is marginally consistent with a few provisions and markedly inconsistent with numerous, material provisions of the state comprehensive plan. And the inconsistencies appear to be the direct result of the repeated failures of DOT and its consultants to collect necessary data and their repeated efforts to wring support from unsupportive data and analysis. These inconsistencies with the state comprehensive plan amount to an abuse of discretion in deciding to replace the Anna Maria Island Bridge with the fixed- span, high-level bridge. DOT's Compliance with the Statutory Requirement of Public Hearings, Including Effective Public Participation, Prior to Selecting, Locating, and Designing the Fixed-Span, High-Level Bridge The replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge is a major transportation improvement. The proposed bridge would cost millions of dollars, destroy 2.5 acres of seagrass permanently and 2.0 acres of seagrass temporarily, imperil manatee, and degrade Outstanding Florida Waters. The proposed project has generated considerable public controversy, which triggers the requirement of a public hearing in the PD&E manual. The proposed project is a "major transportation project," under the definition in the PD&E manual requiring an environmental impact study. Sverdrup's Project Concept Report calls the proposed project a "major bridge replacement project." DOT was amenable to public input on all issues at the February 1989 workshop, but there is no indication that DOT provided sufficient notice as to permit the public to participate effectively. DOT was clearly amenable to public input at the August 1989 public hearing as to the location of the proposed bridge. DOT still was in the formulative stage of deciding the alignment of any new bridge. DOT opted for the south alignment only after hearing public comments concerning the impact of the north alignment on navigation, recreation, and business. The notice for the August 1989 public hearing, though insufficient to satisfy the statutory requirement for a design public hearing, was reasonable in that it was sufficient to satisfy the requirement of effective public participation. It is less clear that DOT had not, prior to the August 1989 public hearing, already selected the facility-type--namely, a new bridge over the no- build option. But Petitioners and Intervenors failed to show that DOT had in fact already made this decision before the August 1989 public hearing. DOT announced the rejection of the no-build alternative on November 1, 1989, in the Final Preliminary Engineering Report. Although Mr. Smith's June 13, 1989, memorandum to Figg and Muller recommended the rejection of the no-build alternative, Figg and Muller proved able to resist Sverdrup's suggestions as to seagrass losses, and other evidence does not point clearly to an earlier rejection of the no-build option. But the preponderance of the evidence establishes that, long prior to October 1993, DOT had selected and committed to the design of the new fixed- span, high-level bridge over such alternatives as a low-, mid-, or high-level bascule bridge. DOT representatives and consultants thought that they had already conducted the design public hearing four years earlier. Only in early 1993 did DOT decide to hold another design public hearing after reconsidering the legal sufficiency of the notice before the August 1989 public hearing. So, for at least three and one-half years, DOT and its consultants operated on the assumption that DOT had satisfied the requirement of a design public hearing and could proceed to the next step. It is unreasonable to expect, given DOT's strong commitment to project implementation, that the project did not proceed through design in these three and one-half years. DOT spent $1 million on planning and design for this project through the Final Engineering Report issued on November 1, 1989. If the total cost of the fixed-span, high-level bridge on the south alignment was to be $8.4 million and construction had not yet begun, one would infer that the $1 million covered a lot of the required design. By the formal hearing in January 1996, DOT had spent $2 million on the proposed bridge. Although part of that sum may have gone toward litigation expenses, most of it presumably went toward additional design and construction planning. Additional evidence that DOT selected the design prior to the October 1993 public hearings comes from two sources: the preparation of documentary milestones in the planning process and statements of DOT representatives. According to the PD&E manual, DOT issues the Final Engineering Report after the public hearings and selection of the recommended alternate. The Final Engineering Report, which was issued in late 1990 or early 1991, follows the approval by the Federal Highway Administration of the recommended alternative, according to the PD&E manual. According to the PD&E manual, DOT applies for permits when the project design is 65-70 percent done. In August 1991, DOT applied for permits after retaining Figg and Muller in mid-1991 to prepare final design and construction plans. All this time, the Draft Preliminary Engineering Report had all but eliminated bascule alternatives in February 1989. Public comments of DOT representatives disclose with greater certainty than milestone documentation the design progress on this project. As early as March 31, 1989, Sverdrup advised Figg and Muller not to do traffic calculations for bascule alternatives "since it is evident that the fixed high- level structure will be recommended due to lower overall cost." Later comments consistently portray the bridge design as finished or all but finished by the end of 1992 and start of 1993; there is no doubt that DOT had selected and committed to a design by this time. When DOT submitted the dredge-and-fill application in August 1992, final design and construction planning was 90 percent complete, according to Mr. Crim. On December 1, 1992, District Secretary May, sensing increasing community resistance to the proposed bridge, acknowledged local resistance to the "design" of the replacement bridge and directed Mr. Crim that "we will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project 'production ready' as rapidly as possible." On January 8, 1993, a DOT representative told MPO representatives that construction plans were 95 percent done and acquisition of right-of-way had begun. Referring to the new bridge, District Secretary May told a meeting of local government officials on January 19, 1993, that "it's been designed" as a fixed-span, high-level bridge. He stated that 100 percent of the design work was done and changing to a 45-foot bascule bridge would mean that DOT had thrown away $1 million on design work. According to Mr. Crim, the options at the October 1993 public hearing were the fixed-span, high-level bridge or the no- build alternative; the bridge design was thus no longer in doubt. DOT's misplaced reliance on the August 1989 public hearing as a design hearing did not preclude the possibility that DOT could have conducted a design public hearing at a later date with effective public participation. The key factual questions would be whether DOT had already decided upon a design and, if so, whether it had restarted the design-selection process so as to approach the curative public hearing with no precommitment toward the fixed- span, high-level design. It is unnecessary to explore in any detail what restarting the design selection process would entail. DOT could have approached the October 1993 public hearing differently than it approached other public hearings. DOT could have engaged the public, on the record, in a give-and-take analysis of the engineering, traffic, environmental, cultural, and other data. DOT could have abandoned its customary approach requiring the public to show an error, an omission, or changed conditions, or else DOT's tentative decision would become final. Instead, DOT approached the October 1993 public hearing, as Mr. Crim admitted, with an "even more defined" position than usual. Unless something "significant" came up at the hearing, the fixed-span, high-level bridge was going in. Presenting a blatantly promotional videotape and a distorted comparative photograph, DOT tried to rescue the $1-2 million it had invested in this project rather than risk a wide-ranging public discussion on the design of the proposed bridge with a meaningful exchange of information and analysis. The resulting burden placed on the public to change DOT's mind was inordinate, precluded effective public participation, and revealed DOT's commitment to the fixed-span, high-level design.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order cancelling the proposed project to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. ENTERED on May 6, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 6, 1996. APPENDIX Rulings on Proposed Findings of Petitioners and SAM 1-5: adopted or adopted in substance. 6: same rulings as in prior recommended order except to extent of any contrary rulings in this recommended order. 7: adopted or adopted in substance, during the early part of the planning process. 8: adopted or adopted in substance, except as to the date of the public hearing. 9-17: adopted or adopted in substance. 18: rejected as irrelevant. 19-23: adopted or adopted in substance. 24: rejected as irrelevant. 25: adopted or adopted in substance. 26: adopted or adopted in substance, except as to author and recipient of memorandum. 27: rejected as unnecessary. 28: adopted or adopted in substance. 29-35: rejected as unnecessary. 36-37: adopted or adopted in substance. 38-41: rejected as subordinate. 42-43: rejected as irrelevant. 44: rejected as unsupported by the appropriate weight of the evidence. 45-46: rejected as subordinate. 47-54: adopted or adopted in substance. 55: rejected as unsupported by the appropriate weight of the evidence. 56: rejected as recitation of evidence. 57: rejected as subordinate. 58-63: adopted or adopted in substance. 64: rejected as subordinate. 65-66: adopted or adopted in substance. 67-79: rejected as subordinate. 80-83: adopted or adopted in substance. 84: rejected as recitation of evidence. The selection of the type of facility in this case is a bridge--specifically whether to build a new bridge or rehabilitate the old one. 85: adopted or adopted in substance. 86: adopted or adopted in substance, except that DOT did not select the facility-type (a bridge) and the site (the south alignment) until after the August 1989 public hearing. 87: rejected as not finding of fact. 88: adopted or adopted in substance. 89: rejected as unnecessary. It is only necessary to find that DOT selected the fixed-span, high-level design prior to the October 1993 design public hearings. 90-91: rejected as subordinate. 92: adopted or adopted in substance. 93: rejected as subordinate. 94-98: adopted or adopted in substance. 99: adopted or adopted in substance, but the approaches have actual, gravel shoulders of eight feet. 100: rejected as unsupported by the appropriate weight of the evidence. 101-43: adopted or adopted in substance. 144: rejected as subordinate. 145: adopted or adopted in substance. 146-47: rejected as unsupported by the appropriate weight of the evidence. 148-53: adopted or adopted in substance. 154-57: rejected as unsupported by the appropriate weight of the evidence. 158-60: adopted or adopted in substance. Rulings on Proposed Findings of Intervenor VanWagoner Any proposed findings referring to statements of counsel that have been adopted were adopted because of evidence in the record supporting such findings. Counsel's statements are not support for such proposed findings because these statements are not evidence. Any proposed findings referring to views taken by the undersigned that have been adopted were adopted because of evidence in the record supporting such findings, such as road maps. 1-11: adopted or adopted in substance. 12: rejected as subordinate and unnecessary. 13: adopted or adopted in substance, as to removal of four- laning project from MPO needs plan. 14: rejected as speculative. 15: rejected as unsupported by the appropriate weight of the evidence, as to safety being an issue. 16: adopted or adopted in substance. 17: rejected as subordinate, except as to a design change. 18: rejected as unsupported by the appropriate weight of the evidence. 19-20: rejected as subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 21 (remainder): rejected as recitation of evidence. 22-24: rejected as unnecessary. 25: adopted or adopted in substance. 26-27: rejected as unsupported by the appropriate weight of the evidence. 28-33: rejected as recitation of evidence. 34-37: adopted or adopted in substance. 38: rejected as recitation of evidence. 39: adopted or adopted in substance, except that proposed finding as to disclosure is rejected as unnecessary. 40-43: rejected as subordinate. 44: adopted or adopted in substance. 45-47: rejected as recitation of evidence. 48: adopted or adopted in substance. 49: rejected as unnecessary. 50-51: rejected as subordinate and recitation of evidence. 52-53: adopted or adopted in substance. 54-64: rejected as subordinate. 65-66 (first paragraph): rejected as recitation of evidence. 66 (remainder): adopted or adopted in substance. 67-70: rejected as recitation of evidence. 71: adopted or adopted in substance. 72-73: rejected as subordinate. 74: adopted or adopted in substance. 73 (second 73)-75: rejected as not findings of fact. 76: adopted or adopted in substance. 77 (first clause): rejected as unsupported by the appropriate weight of the evidence. 77 (second clause): adopted or adopted in substance. 78: adopted or adopted in substance. 79-80: rejected as unsupported by the appropriate weight of the evidence. 81-83: rejected as not findings of fact. 84: adopted or adopted in substance. 85: rejected as unsupported by the appropriate weight of the evidence. 86: adopted or adopted in substance. 87: rejected as unsupported by the appropriate weight of the evidence. Rulings on Proposed Findings of DOT 1-2: adopted or adopted in substance except for the date of construction. Most references in the DOT documentation are to 1959, although there are some references to 1957. 3 (first two sentences): adopted or adopted in substance. 3 (last sentence): rejected as subordinate. 4-13: adopted or adopted in substance. 14: adopted as to 4 percent grade, but rejected as irrelevant as to remainder. 15: rejected as subordinate. 16 (first sentence): adopted or adopted in substance. (second sentence): rejected as subordinate. (first sentence): rejected as subordinate. 17 (second sentence): adopted or adopted in substance. 18-21: adopted or adopted in substance. 22-24: rejected as irrelevant and subordinate. 25-26 (first sentence): adopted or adopted in substance. 26 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 27: adopted or adopted in substance. 28: adopted or adopted in substance, except that there are conditions attached to the standard criteria. Also, replacement remains a factual determination requiring consideration of all the circumstances. 29: adopted or adopted in substance. 30: adopted in the sense that the decision to replace the Anna Maria Island Bridge accompanied the PD&E process. 31 (first sentence): adopted or adopted in substance. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32-34: adopted or adopted in substance. 35: rejected as subordinate, irrelevant, or unsupported by the appropriate weight of the evidence. 36-39: adopted or adopted in substance, except as to no foregone conclusions reached as a result of DOT's studies, which is rejected as unsupported by the appropriate weight of the evidence. 40-53: adopted or adopted in substance. 54: adopted or adopted in substance, except the public lacked effective participation in the February 1989 workshop because of lack of notice and lack of factual background. If the references to "workshop" are to the August 1989 public hearing, this format too leaves something to be desired as to effective public participation given the refusal of DOT and consultant representatives to engage in any give-and-take with member of the public except off the record during the break and the refusal to discuss anything but the project under consideration. 55-60: adopted or adopted in substance. 61: adopted or adopted in substance, except willingness to continue with public involvement is rejected as unsupported by the appropriate weight of the evidence. 62: adopted or adopted in substance. 63 (first two sentences): rejected as unsupported by the appropriate weight of the evidence. 63 (third sentence): adopted or adopted in substance, as the sole reason for the October 1993 public hearings. 64-65 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 65 (remainder)-68: adopted or adopted in substance. 69: rejected as unsupported by the appropriate weight of the evidence; the fixed-span, high-level bridge was the selection, not merely a preferred alternative. 70-71: adopted or adopted in substance. 72 (first sentence): rejected as irrelevant. District Secretary May does not need to attend the public hearings or remain in the hearing room during the public hearings, if he attends. If he is to be involved in the decision, he needs only to familiarize himself with the public comments. 72 (second sentence)-74: rejected as unsupported by the appropriate weight of the evidence. 75: rejected as subordinate and unnecessary. 76: rejected as unsupported by the appropriate weight of the evidence. 77-78: rejected as subordinate. 79: rejected as unsupported by the appropriate weight of the evidence, although cost was a major factor in the design decision, whenever it was actually made. 80: rejected as subordinate. 81-82 (first sentence): adopted or adopted in substance. 82 (second and third sentences): rejected as unsupported by the appropriate weight of the evidence. 82 (fourth sentence): adopted or adopted in substance, although this projection is probably too low. 83-84: rejected as unsupported by the appropriate weight of the evidence. 85-87: adopted or adopted in substance, as recitals of DOT's reasoning-- not as persuasive reasoning under all of the circumstances. 88: adopted or adopted in substance, as recital of Final Preliminary Engineering Report. 89: rejected as unsupported by the appropriate weight of the evidence. 90: rejected as subordinate and irrelevant. 91-92 (except last sentence): adopted or adopted in substance. 92 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 93-94 (first sentence): adopted or adopted in substance. 94 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 95: adopted or adopted in substance. 96: adopted or adopted in substance, as recital of DOT's thinking. 97: adopted or adopted in substance. 98: adopted or adopted in substance, except as to not meeting design standards. 99: adopted or adopted in substance, as recital of DOT's thinking. 100-04: rejected as irrelevant. 105: adopted or adopted in substance, as recital of thinking of these individuals. 106: rejected as repetitious. 107: adopted or adopted in substance. 108 (first sentence): rejected as irrelevant. 108 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 109: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 110: rejected as unsupported by the appropriate weight of the evidence. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 113 (first sentence): adopted or adopted in substance. 113 (second sentence): rejected as irrelevant and as unsupported by the appropriate weight of the evidence. 114-16: rejected as unsupported by the appropriate weight of the evidence. 117 (except second sentence): rejected as subordinate. (second sentence): adopted or adopted in substance. (first sentence): rejected as subordinate and irrelevant. 118 (second sentence): adopted or adopted in substance. 119: rejected as irrelevant and subordinate. 120: rejected as unsupported by the appropriate weight of the evidence. 121 (first clause): adopted or adopted in substance. 121 (remainder): rejected as irrelevant and subordinate. 122-26: adopted or adopted in substance. 127-28: adopted or adopted in substance. 129-30: rejected as subordinate and unnecessary. 131 (first sentence): adopted or adopted in substance. 131 (remainder)-32: rejected as subordinate and unnecessary. 133 (first sentence): adopted or adopted in substance. 133 (remainder): rejected as subordinate and unnecessary. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, Mail Station 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 David M. Levin Icard Merrill 2033 Main Street, Suite 600 Sarasota, Florida 34237 Paul Sexton Chief, Administrative Law Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Francine Ffolkes, Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert E. VanWagoner Post Office Box 4121 Anna Maria, Florida 34216 Christine C. Stretesky, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
