Findings Of Fact The Petitioner (Foley) is a large construction company, a Florida corporation. It has extensive experience in government contracting for construction projects for various government agencies. The Respondent (DBC) is an agency of the State of Florida responsible for the procurement, operation and maintenance, of office facilities for use by the various agencies of the government of the State of Florida. In the situation at hand, the Respondent engaged in a bid procurement process by which the Petitioner was awarded a contract to construct an office building project, which would be occupied by the Department of Health and Rehabilitative Services. On November 17, 1992, the above-named parties entered into a contract calling for the construction of a facility or office building known as the "Fort Pierce Regional Service Center" (Project). The contract called for a price of $5,063,000.00. The architect's initial budget for the construction Project, excluding professional fees, was $6,454,150.00. The Petitioner provided a payment and performance bond on the Project, in accordance with Section 255.05, Florida Statutes, in the amount of $5,063,000.00 for the benefit of DBC to insure the Petitioner's performance. An additional bond in the same amount, to insure payment to subcontractors, was provided. Early in the procurement process before the formulation and execution of the contract, DBC entered into an agreement with an architect/engineer to act as its architect, agent and project manager. That firm was Anstis, Ornstein Association, Architects and Planners, Inc., a Florida corporation. The individual architect for the Project was James Anstis (the Architect). Mr. Anstis' services consisted of the preparation of construction documents, including plans and specifications and contract administration for the Project. His duties included site visits, observations and inspections, approval of the contractor's pay requests, attendance at construction progress meetings, reporting on the status of the Project to the owner, determination of quantity and quality of the work for compliance with the contract documents, issuance of certificates of substantial completion, and final completion. The Architect was assisted by certain consultants in preparation of contract documents and in administering the contract itself, on behalf of DBC. These persons included a structural engineer, electrical engineer, mechanical engineer, civil engineer, and landscape architect. Over 146 planned visits to the site were required by the Architect's contract with DBC during the anticipated thirteen-month period of construction. The Architect visited the site on the average of at least once per week, at which time he conducted his weekly inspection. On a monthly basis, he held construction progress meetings with DBC and the Petitioner's representatives, with others in attendance, as well. The Architect filed monthly status reports to the owner concerning the quantity and quality of the work as it progressed. Thomas Young is an architect and employee of DBC, with extensive experience in both private and governmental projects. He was appointed project manager on behalf of DBC. He was designated as the on-site representative for the agency and had the responsibility of working as a full-time consultant on the site. When the Architect visited the site on a weekly basis, he inspected the Project in the company of Mr. Young, conferred with him, and used Mr. Young's office. Under the contract with the Petitioner, the Architect was declared to be the exclusive agent for the owner; and the chain of command required both DBC, through Mr. Young, and the contractor, to communicate through DBC's Architect, Mr. Anstis. Under the Petitioner's contract, the Architect was required to report deficiencies to the Petitioner, approve payment requests, including approval of quantity and quality of work prior to payment, to inspect the Project prior to the issuance of the certificate of substantial completion, and to determine final completion and approve final payment. On April 6, 1993, the parties executed a "partnering charter", in which both parties and the Architect agreed to complete the Project in a cooperative, efficient, and expeditious way by promoting the following positive steps in carrying out the contract by all concerned: Open and honest communication. Follow the schedule for early completion. Use objective, open-minded cooperation and consideration. Timely response. Proper coordination. Contract document compliance. Involve everyone in the process. Anticipate problems. After execution of the contract, DBC issued certain change orders to the Petitioner requiring the Petitioner to do additional work beyond the scope of the original contract. This increased the contract price by $598,485.00 and added additional time to the contract term to complete the Project. DBC approved, in writing, time extensions of 21 days and 90 days for change order numbers 4 and 5, which were accepted by the Petitioner. On May 8, 1995, change order number 10 was belatedly approved and issued by DBC, adding additional money and approving, in effect retroactively, an additional 50-day time extension. The new contract time for substantial completion, after adding 161 days for change order numbers 4, 5 and 10, thus, became September 14, 1994. However, under the contract, the Petitioner had the option of scheduling completion earlier than the contract completion date. A notice to proceed was provided from DBC to the Petitioner in January of 1993. The Petitioner's initial construction schedule showed an expected substantial completion date of the Project of January 11, 1994. Indeed, the Petitioner's bid for the Project was based upon an October 28, 1992 estimate, in which the Petitioner anticipated 12 months would be required to complete the Project. Various items of the bid in Exhibit 2.4.3 show that the Petitioner anticipated a 12-month construction date based upon its estimate that superintendent services, office manager services, telephone, temporary electric, and other cost items would be of approximately 12-months' duration. DBC recognized this initial schedule by paying the Petitioner for an extension of these "general conditions" beyond 12 months by virtue of change order numbers 5 and 9. Throughout the course of the Project construction, the Petitioner submitted monthly construction schedules in the form of bar charts. Each schedule submitted was accepted by DBC and the Architect at monthly construction progress meetings. The construction schedule submitted on March 29, 1994 reflected an anticipated substantial completion date of May 23, 1994. At the construction progress meeting of March 29, 1994, the Petitioner reported that it anticipated a substantial completion date of "about June 1, 1994". On April 4, 1994, DBC's Project Manager, Thomas C. Young, scheduled the installation of the carpet to begin on or about June 6, 1994. On May 9, 1994, the Petitioner submitted a revised schedule to the Architect reflecting the Petitioner's anticipated substantial completion date of June 6, 1994. The May 9, 1994 schedule was revised after the May 6, 1994 construction progress meeting, to reflect DBC's carpet installation as approved by Mr. Young at that meeting. Thus, "carpet by owner", to begin after June 6, 1994, was added to the Petitioner's construction schedule. The May 6, 1994 construction progress meeting minutes, prepared by the Architect reported an anticipated substantial completion date of "about June 1, 1994". At the May 6, 1994 construction progress meeting, the Petitioner was advised for the first time, approximately one month before its anticipated substantial completion date, that the building would be subjected to a formal building "commissioning procedure," a detailed inspection and approval procedure for all building spaces and systems and phasing of occupancy, and that upon completion, the building would be operated and maintained by a private contractor ("privatization". Consequently, the Petitioner was advised at this time that requests for proposals for a commissioning entity and procedure and for "privatization" of the building maintenance and operation functions would be issued for bids as of May 6, 1994, with a mandatory, pre-proposal conference scheduled for May 20, 1994. This was the first occasion where DBC had utilized a building commissioning procedure. It had also never used privatization for the operation and maintenance of a State building by a private contractor. The DBC was unaware, as of May 6, 1994, what the commissioning agent and operation and maintenance privatization firms' duties would be, since negotiations were not entered into as of that date. The Petitioner, on its part, was unfamiliar with the building commissioning procedure and was not clear on what the duties and activities of the commissioning and privatization agents would be. However, it did not anticipate that it would affect the Petitioner's ability to obtain the certificates of substantial completion and final completion for the Project. Likewise, the Architect and Mr. Young had never been involved in such a commissioning procedure, either, prior to this Project and were not aware, as of May 6, 1994, what the precise activities and duties of the commissioning agent would be. The Architect was paid $24,604.50 for additional services required of him in working with the commissioning agent. On May 11, 1994, the Petitioner submitted, at DBC's request, prices for 24 items of additional work, contingent upon DBC's agreement to take over all utilities and service costs at the point of substantial completion of the interior of the building. The Petitioner anticipated that DBC would begin paying all utilities and service costs during the first week of June, 1994 and did not include, as part of the change order price submitted, an amount covering utilities after June, 1994. On May 6, 1994, the Architect scheduled a special construction progress meeting for May 20, because of anticipated substantial completion on or about June 1, 1994. On May 20, 1994, the Petitioner reported at the construction progress meeting that substantial completion was anticipated to occur in the week of June 6-10, 1994. On this date, the parties agreed that a comprehensive list of deficiencies would be sent out by the Petitioner by May This was the list envisioned by section 9.8.2 of the general conditions of the contract for construction (AIA Document A201, 1987 Edition), also known as contractor's "section 9.8.2 punch list". On May 20, 1994, DBC reported that it had anticipated a bid date of June 1, 1994 for the privatization of building operation and maintenance, with award of the contract for June 17, 1994. The commissioning agent, Sun Belt, Inc., submitted its proposal on June 12. Also, on May 20, 1994, at the construction progress meeting, the Architect and DBC reported that all carpeting (not in the Petitioner's contract) was scheduled for installation on June 13, 1994. A construction progress meeting was next held on June 6, 1994. At this meeting, the Architect reported the following: Foley's comprehensive list of deficiencies has been received (section 9.8.2 punch list). The Project was on schedule. The contractor's application for payment number 17 was submitted, received, and approved in the amount of $290,380.00. Substantial completion was anticipated for the week of June 6, 1994. The Project was to be substantially complete as per the current status of the contract notwithstanding RFP No. 10, items which are to be accepted by the owner to be accomplished after substantial completion. "Building is not quite substantially complete as of this date." "Tom Young, Eddie Lawrence, and Jim Anstis will develop a list of items that must be completed prior to Substantial Completion". On May 27, 1994, Robert Kemmer, a Foley superintendent, prepared and submitted to the Architect the Petitioner's section 9.8.2 punch list or "comprehensive list of items to be completed or corrected". A three-page handwritten list, identified as Exhibit P.2.3 in evidence, is the Architect's list, which he completed following his and Mr. Young's inspection of June 6, 1994 ("Architect's section 9.8.2 punch list"). None of the items on the Architect's punch list prevented the DBC from using the building for the purpose for which it was intended at the time the list was prepared. The Architect's punch list was ultimately completed by the Petitioner. Final inspections were accomplished by June 6, 1994 by the City of Fort Pierce Building Official, Engineer, Landscaping Inspector, Electrical Inspector, Plumbing Inspector, as well as the State Elevator Inspector. By that date, the Division of the State Fire Marshal's Office inspected the Project and approved "occupancy of the building." On June 6, 1994, the City of Fort Pierce issued a certificate of occupancy for the Project. The Petitioner, therefore, considered that it had achieved substantial completion on June 6, 1994. The Architect, however, delayed the issuance of the certificate of substantial completion until September 14, 1994. There are substantial differences of opinion concerning the reasons for the delayed issuance of the certificate of substantial completion. There were two reasons stated to the Petitioner by the Architect for the Project not being substantially complete during the summer of 1994. First, the interior railings were purported not to comply with industry standards. The second reason was that exterior landscaping features were deficient. The Petitioner disputed these issues. In fact, the railings initially had been accepted by the Architect and DBC and had been paid for in full in the payment for application for payment no. After initially accepting the railings and then rejecting them, the Architect suggested that the Petitioner retain Jim Bailey, a "railing expert", to review the railings. Mr. Bailey inspected the railings and agreed that they met industry standards. The objections to the railing amounted to dissatisfaction by the Architect with the welds by which the railing bars were fabricated into the various railing sections. In essence, the objection was that the welds were not properly ground and smoothed so that they presented an objectionable appearance. This was purely an aesthetic consideration and had nothing to do with the safety or effectiveness of the railings for the purpose for which they were designed and installed. This objection in no way prevented the Project from being used as an office building on the date the railings were first installed. Throughout the summer of 1994, the Petitioner believed that the interior railings were in compliance with industry standards and with the provisions of the contract. Nonetheless, the Petitioner believed that resolving the railings issue was critical to issuance of the certificate of substantial completion. Therefore, the Petitioner attempted to resolve the issue by several different methods, in an attempt to cooperate with the Architect and DBC. Thus, the railings were removed, taken to a plant, and the welds were re-ground. They were then taken to another plant and repainted, returned to the Project and reinstalled. They were still not accepted. When they were still not accepted, a credit of $12,000.00 was then offered by the Petitioner to the owner. The $12,000.00 credit was not acceptable to the owner, and the Petitioner then offered to remove the railings and replace them with new railings. Despite the Architect's view that the railings prevented a finding of substantial completion, in reality, they should not have been an impediment to that. This was shown by Mr. Young's agreement (in testimony) that they did not themselves impact substantial completion, as well as by the fact that the railings were paid for in full after initial approval by both the Architect and DBC on payment application number 17, although they later reversed their position. Even the Architect ultimately agreed with the Petitioner and recommended to DBC, the owner, after August 25th, that it accept the Petitioner's proposed credit of $12,000.00 for the railings and use the credit to pay for part of late change orders. Instead, DBC rejected its Architect's advice and still insisted on removal and replacement of the railings, an additional withholding of $50,000.00 in monies due the Petitioner until new railings were installed, and a continued holding of approximately $278,000.00 in retainage due Petitioner. When the Petitioner refused to accept DBC's position regarding the railings, DBC later withheld $87,000.00 for railing issues ($40,000.00 for interior railings), in addition to $277,999.00 which it was holding for retainage as of November 4, 1994. Eight months after the Petitioner initially offered the $12,000.00 credit to attempt to satisfy the owner and Architect concerning the railings question, DBC reversed its position and accepted the railings with the Petitioner's credit on April 20, 1995, as part of final approval of change order number 10. The Architect's second and only other stated reason in the summer of 1994 for withholding the certificate of substantial completion concerned "landscape issues". However, there is some evidence that the parties had an understanding or agreement that outside work, such as landscaping, would not impact or delay a determination of substantial completion, as shown by Mr. Kemmer's testimony. In fact, the landscaping issues raised by the Architect had nothing to do with rendering the building and Project suitable for occupancy for the purpose for which it was intended, which is the essence of the definition of substantial completion contained in the contract between the parties. The landscaping issues were essentially about various conditions which the Architect wished corrected, concerning the sod and the soil upon which the sod was planted. These purported deficiencies in sodding and top soil did not, in any way, prevent the occupation and use of the building in normal operation for the purpose for which it was intended by the owner. Final landscaping inspection by the City of Fort Pierce was approved on June 6, 1994, resulting in the issuance by that municipality of the certificate of occupancy on that date. When the Architect complained about sod being placed in a few limited areas on undesirable soil, the Petitioner immediately removed and replaced the sod in those areas complained of. The Architect also complained, in June, about top soil and planting soil not being in conformance with the specifications. The landscape subcontractor, "Atlantic Landscape", retained a horticultural expert to inspect the landscaping and review the specifications for the soil. The expert submitted his report to the Petitioner on July 1, 1994; and the Petitioner submitted it to the Architect shortly thereafter. Finally, four months later, on November 8, 1994, the Architect agreed with the Petitioner's position on this issue. When the Petitioner was advised that a small portion of the soil had cinch bugs in it, the Petitioner replaced the affected sod without protest. Throughout the summer and fall, the Petitioner contended that the sod and landscaping issues raised by the Architect were warranty issues and not related to substantial completion. Warranty issues involve the contractor's obligation to make good on defects in his work regardless of whether substantial completion or even final completion has been reached and, thereafter, so long as the repairs or corrections to be done are within the term and conditions of the warranty as depicted in the contract. Indeed, that is found to be the case, that the sod and landscaping issues were matters related to warranty claims or disputes and did not relate to or affect the question of attainment and time of attainment of substantial completion. These issues have no significant effect on the owner's ability to occupy and use the building as intended (or its tenants). On November 4, 1994, the Architect withheld $2,150.00 from the Petitioner's application for payment representing "sod/landscaping" complaints by the Architect. The Petitioner agreed that some of the items under sod and landscaping were "warranty" items and corrected them. In its letter of November 11, 1994, the Petitioner took issue with most of the other landscaping complaints, some of which it maintains were simply not true. The Architect responded to the November 11, 1994 letter by increasing the amount withheld from the Petitioner's application for payment on landscaping from $2,150.00 to $5,950.00. During the summer of 1994, the Architect wrote a letter dated July 6, 1994 to the Petitioner, in which he contended that all items on the Petitioner's section 9.8.2 punch list, which had to be completed before final completion, had not yet been completed. This was the only written communication to the Petitioner from the Architect between June 8, 1994 and September 6, 1994. However, that July 6th letter did not specifically list what work was considered incomplete. The July 6th letter from the Architect also indicated that "industry standards" would no longer govern relative to approval of the Petitioner's work, as set forth in section 1.4 "Industry Standards" at page A1A95-3 of the Project specifications portion of the contract. The new standard for reviewing the Petitioner's work was set forth by the Architect as follows: The situation is now such that the scrutiny that will be given the facility will be very intense and the final workmanship must then necessarily be absolutely of the highest quality. Coincidentally, this letter was written while Sun Belt, Inc. (Sun Belt), the commissioning agent, was on the site performing its inspections for substantial completion, as per its June 12, 1994 proposal to DBC. Because the July 6th letter was non-specific about what work the Architect claimed needed to be completed, but referred instead to "owner concerns", the Petitioner immediately arranged to meet the owner's representatives on the site on July 8, 1994. On that day, William Scaringe, Harold Barrand, and Thomas Young were present when the Petitioner asked what it needed to do, from the owner's perspective, to get finished with the Project. Mr. Scaringe stated that the ceiling tiles needed work and that the Petitioner's painter was the problem. During the July 8th meeting, the Petitioner was told that the ceiling tiles were his responsibility even though the Petitioner believed and contended that the design, tile system, and the tiles themselves were all to be furnished by DBC; and the scope of the Petitioner's work delineated in the contract did not include the ceiling tile work at issue. However, under protest and without a written change order, the Petitioner completed the ceiling tile work with the expectation that this was a reason for the owner not allowing the Architect to issue the certificate of substantial completion. Later, the additional tile work cost was included in the Petitioner's claim filed with the DBC and the Architect on October 4, 1994, giving rise to this proceeding. In July, the Petitioner believed that the only impediment to receiving the certificate of substantial completion, from the owner's perspective at least, was the ceiling tile work. Harold Barrand, the DBC architect and Projects Manager, testified that he knew on July 8th that the ceiling tile work was not the Petitioner's responsibility but was, instead, additional work not in the Petitioner's contract. More than nine months after completing that work and six months after payment was requested by the Petitioner for the additional ceiling tile work, DBC issued change order number 10 and paid the Petitioner $13,686.00 for the ceiling tile work. The Petitioner has acknowledged, and the parties agree, that the defective paint issue is, indeed, a "warranty issue"; and an expert has been retained to analyze and determine what needs to be done to correct this problem with fading and discoloration on the exterior of the building. The exterior paint issue is not an issue to be resolved in this proceeding by agreement of the parties. It is not an impediment to substantial or final completion. After completing the additional tile work for the owner, providing a landscaping report of July 1, 1994 by the Architect, and re-installing the interior rails on July 19, 1994, the Petitioner believed that all arguments advanced by the Architect and owner, as impediments to substantial completion, had been resolved. Indeed, the Petitioner's application for payment number 18 and the manner in which it was handled by the Architect and paid by DBC likewise indicated that final completion was virtually obtained on July 1, 1994. Application for payment number 18 was submitted on July 15, 1994 in the amount of $143,547.00. However, it was returned by the Architect on August 1, 1994, after Mr. Young noted "too many corrections" on the application. Application for payment number 18 was re-submitted in the amount of $127,547.00 by the Petitioner on August 11, 1994, after deducting $16,000.00 for an interior railings credit, as directed by the Architect. This resulting amount was paid by DBC on August 26, 1994. Application for payment number 18, which was accepted by the Architect and DBC, was for work accomplished by the Petitioner for the period ending July 1, 1994. The Petitioner showed, on its application for payment number 18, a "balance to finish" amount of $115,402.00, which, according to the Petitioner, consisted of: $64,781.00 for change orders numbers 3, 7, 8 and 9. $16,000.00 for interior railings withheld on the direction of the Architect. $16,034.00 for bollards (exterior light fixtures), which the Architect agreed, on August 3, 1994, "will not, in my view, hold up the issuance of the Substantial Completion Certificate". $11,683.00 for work which DBC deleted from the Petitioner's contract ("Asphalt Walks"). None of the foregoing items should be considered as the Petitioner's balance to finish for determining whether the Project was substantially complete as of July 1, 1994 and, consequently, should be deducted from the balance to finish to determine the net amount of work the Petitioner showed, and the Architect and DBC agreed to, as the net balance to finish on July 1, 1994. If one deducts the items (a) through (d) referenced above from the gross figure of $115,402.00, the deduction of those items totals $108,498.00. This leaves a net balance to complete the Project, as of July 1, 1994, of $6,904.00. That $6,904.00 net balance to complete the Project includes the amount of $5,950.00 withheld by the Architect concerning the dispute about sod and landscaping. The amounts withheld for sod and landscaping were subject to dispute by the Petitioner and, in any event, were exterior warranty items and did not relate to substantial completion issues. Substantial completion could occur even if the Architect was correct and those items were undone or incorrectly done, as he maintained. After one deducts the $5,950.00 sod and landscaping item withheld by the Architect, the only remaining amounts arguably related to substantial completion issues in application for payment number 18 are $511.00 for site concrete; $133.00 for caulking; and $311.00 for vinyl tile, leaving a net balance to finish the Project of $955.00. This actual net balance to finish of $955.00 represents .0002 or 00.02 percent of the original contract amount of $5,063,000.00. This payment thus represented 99.98 percent completion of the base contract and payment of the base contract amount. The fact that the Architect and owner, after deducting the $16,000.00 for the interior railing issue, paid the $127,547.00 balance of application number 18 indicates that, as to quantity and quality of the work, substantial completion had occurred and, indeed, 99.98 percent of final completion had occurred. This tends to substantiate the Petitioner's position that substantial completion was obtained on June 6, 1994, that a certificate of substantial completion should have been issued by the Architect by June 19, 1994, and that final completion was obtained (not considering late change orders not germane to this proceeding) on July 19, 1994, when the railings had been returned to the site awaiting further approval and/or direction from the Architect and owner as to acceptance and re- installation. During July, August and September, 1994, the Petitioner pursued resolutions of the issues raised by the Architect involving the railing and landscaping disputes, which the Architect claimed were substantial completion issues, as well as the ceiling tile issue raised by DBC. Although it did not agree with the Architect and DBC on these issues, the Petitioner was attempting to cooperate in an effort to secure completion of the contract at the earliest possible date. The testimony of witnesses Barrand, Young and Anstis, shows, however, that Sun Belt's schedule was having an effect of delaying the Project completion. DBC had determined to enter into a "commissioning" services contract on the Project for the first time during early 1994. DBC interviewed Sun Belt on May 18, 1994 and negotiated the scope of its services without informing the Petitioner. On June 23, 1994, DBC issued a notice to proceed for Phase I of the Project to Sun Belt to act as commissioning agent for the Project. See, Exhibit 2.4.34 in evidence. During this same time period, DBC entered into an agreement with Johnson Controls, Inc. providing for that firm to operate and maintain the building. The Project scope for Sun Belt was set forth by Sun Belt in a letter dated June 7, 1994 to the owner. The scope of services proposed by Sun Belt, including among other things, inspections for a normal class of office building, including verification of all the main building systems, such as HVAC, power distribution, hydronic systems, controls, energy management system, life safety systems, and fire protection system, and other inspections. These inspections had all been required by the Architect's contract with DBC, the owner. The Architect and his consultants had conducted more than 146 site visits and had completed their substantial completion inspections before Sun Belt ever began its duties and inspections. Sun Belt's proposal for the work it was to do was sent to DBC on June 7, 1994. Negotiations between DBC and Sun Belt occurred on June 8, 1994. Sun Belt's schedule presented to DBC on June 7, 1994, as part of its proposal, included the following: STEP NUMBER SCHEDULED DATES ACTIVITIES 1 6/17-6/23 Review all contract documents, including plans and specifications 2 6/20-6/27 (a) Meet with DBC (b) Meet with Architect/Design Team (c) Meet with FOLEY 3 7/4-7/8 Return to site "to assist the contractors in achieving substantial completion" 4 7/8-7/31 (a) Meet with DBC to confirm testing, scope of work, etc. (b) Witness and documents tests 5 August to Develop manuals Beneficial detailing system Occupancy schematics, equipment locations, general operations and maintenance procedures 6 End of Phase in occupancy over August to a period of a few weeks Mid-September starting at end of August (P.1.13; P.4.34). The June 7, 1994 proposal submitted by Sun Belt to DBC clearly envisioned that Sun Belt would be significantly involved with the substantial completion determination process: We will return to the site during the week of July 4-8, providing a technician for the entire week, to assist the contractors in achieving substantial completion inclusive of all testing requirements defined in the Contract Documents. See, P.4.34 in evidence. Sun Belt's June 24, 1994 report was provided to the Petitioner by DBC only on September 19, 1994 as an attachment to the certificate of substantial completion. Sun Belt's report had a section entitled "Regional Service Center, Fort Pierce: Recommended Substantial Completion Program". That June 24, 1994 report included the advice that: We would recommend asking that the Contractor review and sign off to his satisfaction all of the items listed below and sign off this document as complete prior to requesting the inspection that would constitute substantial completion. Sun Belt's June 7, 1994 proposal included, without the Petitioner's knowledge, a contemplated mid to late July systems testing regimen on site with the Petitioner and the development of job-specific manuals for Johnson Controls to use during the month of August. Sun Belt also suggested, on June 7, 1994, that DBC should consider phasing in occupancy during several weeks starting in late August, 1994, stating: We are not aware of the program requirements but have experience with turmoil relating to instantaneous full occupancy. Mr. Barrand and Mr. Young, both architects for DBC and actively involved in management of the Project, testified that they were not aware of the above-stated provisions relating to Sun Belt's involvement in the substantial completion process. The Architect testified that he was not aware of Sun Belt's role, as stated above, with respect to substantial completion. Mr. Scaringe, the Director of DBC, established, however, that Sun Belt and the Architect were intended to act as a "team" in carrying out inspections for substantial completion. The Petitioner was unaware of Sun Belt's proposed involvement with substantial completion. The contract between the Petitioner and DBC did not provide for such a commissioning agent to have any involvement in the substantial completion determination and attainment process. Sun Belt was not a party to that contract, nor was the Petitioner a party to Sun Belt's contract with DBC. Sun Belt completed its commissioning report on July 11, 1994, but this report was not provided the Petitioner until September 19, 1994. The Petitioner was aware that Sun Belt and Johnson Controls were conducting inspection and punch list preparation activities on the Project but did not know that substantial completion was being delayed because of Sun Belt's or Johnson Controls' activities. The Petitioner operated under the impression that the interior railings and exterior sod issues were the problems that the Architect felt at the time inhibited substantial completion. The Architect had previously provided his section 9.8.2 punch list to the Petitioner on June 7, 1994, and the Petitioner completed those items within approximately one week. All items on the Petitioner's 39-page punch list delivered to the Architect were completed within four weeks. The Architect did not provide another punch list to the Petitioner until September 19, 1994. Throughout the summer of 1994, the Petitioner operated under the assumption that it had obtained substantial completion, that it had accomplished all punch lists required by section 9.8.2 of the general conditions of the contract, and that all punch lists delivered to it had to be accomplished in order to finally complete the Project and get paid in terms of final completion. Both Mr. Young and Mr. Anstis testified that the only section 9.8.2 punch list for the Project was the Petitioner's list dated May 23, 1994 and supplied to Mr. Anstis, and the Architect's three-page handwritten list of June 7, 1994. Mr. Young testified that upon completion by the Petitioner of the Architect's three-page handwritten list, the Petitioner had obtained substantial completion. The Architect opined that upon completion of both the Petitioner and the Architect's punch lists of June 7, 1994, substantial completion would have been attained by the Petitioner. Neither Mr. Young nor Mr. Anstis knew when the items on both punch lists had actually been completed. The Petitioner, through James Comer, Robert Kemmer, and Tom Squires, all stated that the only item on either punch list, submitted under section 9.8.2, which prevented substantial completion, was a general note that stated "install fire extinguishers prior to substantial completion." Mr. Squires testified that he specifically discussed this item with both the State Fire Marshal and the Architect to advise them that he had the fire extinguishers on site ready to install but that he did not want to install them until DBC (its tenant) was ready to actually occupy the building, because they had a tendency to be stolen if installed too early. Both the Fire Marshal and the Architect agreed that this was an appropriate procedure for installing the fire extinguishers. Consequently, by agreement, the placement of the fire extinguishers on site was delayed and was not a factor in determining when substantial completion occurred. Because the Project could be used for the purpose for which it was intended, as an office building, even while punch list items were being completed prior to final completion, it was unnecessary to call for another substantial completion inspection by the Architect because substantial completion had been achieved. Mr. Young showed that the punch lists and the failure to perform punch list work were not the stated reason given by the Architect in denying substantial completion during June, July and August, 1994, in any event. Rather, the Architect stated that the interior stair railings and the exterior sod conditions prevented the building from being substantially complete. Mr. Young did not agree with the stated reasons enunciated by the Architect for lack of substantial completion. During the months of June, July and August, 1994, the Architect did not issue any further punch lists. He did not report, in monthly reports to DBC, concerning any deficient work nor "correction of previous deficiencies". The Architect did not call any monthly construction progress meetings to discuss any construction issues. The last construction status report to DBC, required monthly by the Architect's contract with that owner, was signed on May 6, 1994. At that time, the Architect noted no contract deficiencies and no correction of previous deficiencies required. The last construction progress meeting for the Project was June 6, 1994; and the Architect reported "building is not quite substantially complete as of this date". The last weekly inspection report, Field Report No. 58, prepared by the Architect on June 7, 1994, stated that the project was not yet substantially complete. Before issuing the certificate of substantial completion, the Architect was contractually required, under section 3.3.3 of its contract, to conduct inspections to determine the dates of substantial and final completion. "Inspections" denotes an obligation to search for deficient or defective work, according to Mr. Anstis. Section 9.8.2 of the general conditions of the contract requires an inspection by the Architect at the time of the issuance of the substantial completion punch list. After that inspection, in which he looked for items to be completed or corrected, the Architect prepared a three- page handwritten list. That list was consistent with the Petitioner's list; and substantially all items indicated by Mr. Kemmer on the Petitioner's 39-page list as being acceptable, or not noted at all, were also not included on the Architect's three-page list, as requiring any additional punch list work. The Architect's certificate of substantial completion indicated a substantial completion date of September 14, 1994, as determined by the Architect. Attached to the certificate of substantial completion were the following punch lists: Punch list prepared by Robert Kemmer dated May 23, 1994. Architect's three-page handwritten punch list of June 6, 1994. John Purcell's list (undated). Johnson Controls' "deficiency list". Sun Belt's June 24, 1994 letter. Anstis' nine-page document dated September 14, 1994. Anstis' two-page list dated September 6, 1994. Johnson Controls was contracted by DFM (not the contracting party, DBC) to be the "privatization" firm to provide operation and maintenance for the building, in the stead of DFM. Johnson Controls' "deficiency list" was provided to the Petitioner for the first time on September 19, 1994, as an attachment to the certificate of substantial completion. At the September 14, 1994 meeting between DBC, the Petitioner, the Architect, Johnson Controls, and DFM, Mr. Comer, of Petitioner Foley, requested a copy of the certificate of substantial completion. He was advised by Mr. Anstis and DBC that it could not receive the certificate until Ed Lawrence, a Project Manager with DFM, and Johnson Controls had completed their inspections of the Project. On September 19, 1994, Johnson Controls' deficiency list was prepared and attached to the certificate of substantial completion, along with all punch lists generated throughout the course of the Project, from June 6, 1994 to September 19, 1994. Included in the punch lists attached to the certificate was Sun Belt's June 24, 1994 list. Sun Belt's July 11, 1994 report, however, which showed that virtually all of the items were either completed or not in the Petitioner's contract to begin with, was not provided to the Petitioner at this time. The Petitioner obtained this updated Sun Belt list through a document production only after filing its claim and beginning this proceeding. The certificate of substantial completion signed by the Architect and DBC specifically stated "a list of items to be completed or corrected is attached hereto." Therefore, Sun Belt's punch list, Johnson Controls' punch list, John Purcell's punch list, and all others attached to the certificate had to be completed or corrected by the Petitioner, in the view of the owner's representative and the Architect/owner's agent. The Petitioner signed the certificate of substantial completion on October 3, 1994, noting thereon that the Petitioner contends that substantial completion was achieved on June 6, 1994, contrary to the owner's position. Ed Lawrence, of DFM, established that Johnson Controls' contract with DMS/DFM required Johnson Controls to complete its inspection prior to issuance of the certificate of substantial completion. The contract between this different division of DMS and Johnson Controls, however, was a separate contract to which the Petitioner was not a party, which did not bind the Petitioner, who is not in privity to a party to this separate contract. After September 14, 1994, until final completion, the Petitioner continued to supervise and work on the various punch lists provided by Sun Belt, Johnson, John Purcell, Thomas Young and Mr. Anstis. Substantially all of the items had either been completed by September 14, 1994 or were new items added for the first time on September 19, 1994, or thereafter. The Petitioner's general practice and its schedule and initial estimate in the Project at issue called for its removing field offices and its superintendent off the Project, upon the obtaining of a certificate of occupancy and achievement of substantial completion. Its practice in the past was to leave an experienced foreman on the Project thereafter to supervise performance of remaining punch list items and change order work that had to be completed after substantial completion and before final completion was achieved. Under the contract, final completion was to be 30 days after substantial completion. Instead, the Petitioner left a superintendent on the Project and continued to direct its own forces and subcontractors on a piecemeal basis as new lists were provided to complete the Project during the summer and fall of 1994, until DBC ultimately declared final completion. Payment Issues The Petitioner prepared drafts of each monthly pay application and submitted them to the Architect several days prior to the monthly construction progress meeting. Through Application for Payment Number 16, the Architect and DBC made no deductions from the Petitioner's proposed monthly application for payment. The payment problems began only after the June 6, 1994 construction progress meeting. Typically, upon submission of a pay application, the Architect would review the quantity and quality of work while on site and at the progress meeting, would sit down with the Petitioner and review each line item. On application for payment number 10, DBC reduced the retainage withheld from the Petitioner from 10 percent of the work accomplished to date to 5 percent, as permitted by the contract when the Project is on schedule and the work is of good quality. Monthly pay request number 17 was submitted by the Petitioner on June 2, 1994 in the amount of $290,380.00. During the construction progress meeting of June 6, 1994, that application was approved. On June 13, 1994, however, Mr. Kemmer received a telephone call from the Architect, who stated that "They won't approve your estimate". This was five days after DBC's negotiations with Sun Belt and ten days prior to DBC's notice to proceed directed to Sun Belt. From that point on, the Petitioner had substantial difficulties receiving monthly payments from DBC. During that June 13, 1994 telephone conversation with the Architect, Mr. Kemmer and the Petitioner were instructed to revise the previously-approved application for payment, reduce $117,856.00 from the previously-approved amount and re-submit it. On June 13, 1994, the Petitioner complied with this instruction and re- submitted application for payment number 17 in revised form in the amount of $172,524.00, reflecting the above-referenced reduction mandated by the Architect. This reduced amount, which included all general conditions (job office and other on-site overhead) was then recognized as complete by the owner and Architect and paid to the Petitioner on July 11, 1994, 39 days after initial submittal. Application for payment number 18 was submitted to the Architect on July 15, 1994 in the amount of $143,547.00. The only reduction mandated by the Architect on application for payment number 18, as found above, was in the amount of $16,000.00 for interior railings, for which the Petitioner had previously been paid 100 percent. The Petitioner, however, re-submitted application for payment number 18, reflecting the $16,000.00 reduction mandated by the Architect, and that resubmittal was subsequently paid on August 26, 1994. Thus, it was paid some 42 days after its initial submission. After the certificate of substantial completion was issued by the Architect on September 19, 1994, the Petitioner submitted its claim on October 4, 1994. This is the claim which ultimately gave rise to this proceeding. Two days later, the Petitioner submitted to the Architect application for payment number 19 on October 6, 1994 in the amount of $102,837.00. On November 4, 1994, 30 days after submission of the claim, the Architect rejected the entire amount of application for payment number 19 (which did not include the claim amounts but only amounts due under the contract). The Architect included with the rejected application a letter of November 4, 1994 and a copy of his letter to Thomas C. Young of November 2, 1994 attempting to justify the reductions. Some of the deducted items and the amount contended included the following: 13. Planter beds need to be weeded through- out. Some areas have been done but this task is not complete. (A $600.00 deduction was made. FOLEY test- ified that this work had been accomplished as of June 6, 1994, and that five months later, some weeds had grown in the planter beds. Notwithstanding, FOLEY testified that this punchlist work was completed by one man working two or three hours for a total of approximately $16.00.) (J. Comer, T.170). 24. Room C-124 - screw missing in kick plate at east door. (A reduction of $50.00 was made for this item. FOLEY testified this was a 50 item.) (J. Comer, T.170). Room 315-B - vinyl base missing. (A $150.00 deduction was made for this item. FOLEY contended this was not in its contract since DBC was to provide the carpet and did not want vinyl bases installed in those areas. The May 20, 1994 construction progress meeting minutes, Item 22A, 6, clearly identify this as one of the rooms in which "contractor is not to install the rubber base in those rooms where HRS is to install carpet".) (P.4.22). 49. Testing, training and documentation required by various sections of the specifica- tions need to be completed. ($10,000.00 was held for this item. FOLEY contended that DBC had no one to train on June 6, 1994, and FOLEY was there with its subcon- tractors to provide testing and training. Ultimately this was accomplished, but FOLEY objects that this price was outrageously high.) (J. Comer, T.171). The Petitioner contested each item, as explained in the Petitioner's letter of November 11,1994 to the Architect. The $21,700.00 held for "other items" primarily related to the sod/landscaping dispute ($2,150.00) and testing, training, and documentation categories ($10,000.00), all of which the Petitioner contested. The major amounts being withheld, however, as indicated by the Architect's calculations included with his letter to Mr. Young of November 2, 1994, included $87,875.00 for railings: Item 38. Steel railings (interior) 200 L/F x $200.00/L/F = $40,000.00. (The Architect had previously recommended to DBC to accept these railings in exchange for a $12,000.00 credit from FOLEY to DBC.) Item 7. Bridge railings 383 L/F x $125.00/ L/F = $47,875.00. Item 7 concerned aesthetic, minor problems related to the exterior railings, primarily those involving change order work requested late in the Project due to the raising of the slope and height of the bridge from the elevation originally depicted in the Petitioner's contract documents. The two railing problems amounted to a total of $87,875.00 in withheld money from the Petitioner. DBC, at this time, was also holding $277,999.00 in retainage. The additional withholding of $102,837.00 (for application for payment number 19) resulted in DBC actually withholding from the Petitioner, as of November 4, 1994, the sum of $380,836.00, which excludes the additional amount claimed by the Petitioner in its claim filed with the owner on October 4, 1994. On November 18, 1994, after explaining to the Architect its position in its November 11 and 17, 1994 letters, the Petitioner re-submitted application for payment number 19 for the identical amount of $102,837.00. This time, the Architect and DBC agreed with virtually all of the Petitioner's November 11 and 17, 1994 comments by letter and reduced only $21,950.00 from the re-submittal. This consisted of a landscaping reduction of $5,950.00 and the railings reduction of $16,000.00. The reduced amount of $87,887.70 for application for payment number 19, which had been withheld on November 4, 1994, was finally paid to the Petitioner on December 12, 1994. The initial application for this payment had been submitted on October 6, 1994 and, consequently, partial payment was made 66 days after initial submission. Application for payment number 20 was the application for final payment on the contract. It was submitted to the Architect on October 14, 1994 in the amount of $241,204.00. This included the amounts subject to the claim filed initiating this proceeding. The Architect rejected this application in its entirety and returned it to the Petitioner. The Petitioner re-submitted it on November 18, 1994 in the identical amount and, again, this was returned by the Architect without comment. In March, 1995, DBC finally agreed to accept the $12,000.00 credit for the interior railings, which the Petitioner had offered to accept as a voluntary reduction to its contract price with regard to the railings and which the Architect had recommended to the owner seven months earlier. DBC also agreed, in March of 1995, finally, to pay the Petitioner for the ceiling tile work as a change order. This had previously been claimed by DBC as defective or deficient work by the Petitioner, when, in reality, it was not within the Petitioner's contract. The Petitioner re-submitted application for payment number 20, for the third time, for the total amount of $318,883.30. On May 8, 1995, DBC paid the Petitioner $16,385.93, withholding $24,500.00 for liquidated damages for claimed delays by the Petitioner "after substantial completion of the Project". DBC also released to the Petitioner at this time the "securities" of $277,993.30 (retainage), which enabled the Petitioner to then request payment in that amount from the State of Florida. This was ultimately paid on May 30, 1995. None of the other amounts of the Petitioner's claim have been paid. Claim for Damages The Petitioner presented the testimony of James Foley, James Comer, Robert Kemmer and Tom Squires as to the amount of additional time and out-of- pocket expenses incurred on the Project after the Petitioner's substantial completion date of June 6, 1994. This related to additional work performed and expenses incurred over and beyond those relating to the section 9.8.2 punch list work required by the general conditions of the contract. Mr. Molsick, Chief Financial Officer of the Petitioner, established that none of the amounts claimed included duplicate charges for late-ordered change order work that continued separately throughout the summer of 1994. The Petitioner planned for an experienced foreman to remain on the project to complete punch list items and change order work required by section 9.8.2 of the contract documents. Instead, Superintendent Squires remained on the Project throughout the summer, along with Superintendent Robert Kemmer, who had to devote substantial time to the Project. The Petitioner and Mr. Comer continued to devote substantial time on the Project to complete it over and beyond that called for by the contract documents. Mr. Molsick described the additional "home office overhead" incurred as a result of interference and delay in the Petitioner's ability to complete the Project as planned. Using the "Eichleay formula", Mr. Molsick compared the contract billings for the Project with the total Petitioner billings for the period of time from January 6, 1993 to June 6, 1994. He then determined the total overhead incurred for the Fort Pierce Project from January 6, 1993 to June 6, 1994 and the days of performance and determined that the allocated overhead of the company to the Project was $354.59 per day or $35,459.25 overall. Concerning the issue of interest on unpaid and late payments, Mr. Molsick established that the Petitioner was entitled to $30,932.00 for late payments and unpaid amounts at the rate of 12 percent on all claims, except retainage. The retainage portion was calculated at 8 percent since the State had already paid the Petitioner 4 percent interest on its retainage, for a total of $30,932.00, as of May 15, 1995. An additional $84.46 per day for amounts after May 15, 1995 was due. In addition to the above-referenced time and expense items described by Mr. Molsick, there were other cost amounts incurred by the Petitioner as a result of DBC's interference with its ability to obtain substantial and final completion of its contract on a timely basis. These amounts are as follows: ITEM Project Office $ AMOUNT 61.00 Warehouse 150.00 Temporary Toilets 246.00 Water 10,891.00 Power 30,334.00 Telephone 3,385.00 Mail 387.00 Gas/Oil 1,112.00 Travel 4,056.00 Subsistence 3,771.00 Office Supplies 78.00 Temporary Cleanup 2,894.00 Punch List 14,266.00 Builders Risk 1,538.00 Vehicle 4,000.00 Payroll Burden 6,263.00 Landscaping 1,492.00 Key Blanks 85.00 SUB-TOTAL $85,009.00 In summary, amounts due the Petitioner pursuant to its claim and based on the above-found facts are as follows: FOLEY Cost-Coded Expenses $ 85.009.00 Squires 30,584.00 JLF/JC/RBK 47,778.00 Interest 30,932.00 Overhead (Eichleay) 35,459.00 Additional Liability Insurance 976.00 Additional Bond Premium 1,673.00 TOTAL CLAIM PORTION $232,411.00 Balance of Contract (adding liquidated damages withheld by DBC) + 24,500.00 TOTAL OUTSTANDING AMOUNTS DUE $256,911.00 Interest at 1 percent per month from 05/15/95 to date of Payment of Claim by DBC 456.98 $257,367.98 ($277,999.00 retainage paid 5/30/95: 15 days (from 5/15 to 5/30); $277,999.00 x 490 x 15 days = $456.98) + 84.46/day (after 5/30/95)
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Building Construction, consistent herewith and awarding the Petitioner the sum of $257,367.98, plus the per diem amount referenced in the above Findings of Fact, as such amounts due and owing are more particularly explained in the Findings of Fact herein. DONE AND ENTERED this 29th day of December, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7070 Petitioner's Proposed Findings of Fact 1-35. Accepted. 36-43. Accepted. 44. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 45-54. Accepted, but subordinate to the Hearing Officer's specific findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's specific findings of fact on this subject matter. 57-70. Accepted. 71. Accepted, but subordinate to the Hearing Officer's specific findings of fact on this subject matter. 72-91. Accepted. Accepted. Rejected, as unnecessary and immaterial. 94-98. Accepted. Respondent's Proposed Findings of Fact 1-28. Accepted, but not as materially dispositive. 29-30. Accepted, in terms of a description of the terms of the contract concerning liquidated damages. Accepted, as a general proposition, although not materially dispositive in itself; however, in any event, this is more of a conclusion of law. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, in terms of what this portion of the contract provides but not for its material import. 34-37. Accepted, but not necessarily for their purported material import. 38. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 39-43. Accepted, but not necessarily as materially dispositive of the issues presented. 44-46. Accepted, but not itself materially dispositive. Accepted, in terms of there being this general, non- specific information provided to Foley concerning commissioning, but subordinate to the Hearing Officer's findings of fact to the effect that Foley was not informed that the commissioning and privatization firms or agents would have an unavoidable influence over the substantial completion attainment process. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. What Mr. Scaringe felt was shown not to be correct as a matter of fact and law. 50-51. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and not entirely in accord with the preponderant weight of the evidence, although it is observed as the Hearing Officer has found in the Recommended Order that the delaying of the issuance of the certificate of substantial completion was not due to intentional misleading of Foley. Accepted, but not itself dispositive of the material issues presented for resolution. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accord with the preponderant weight of the evidence. While DMS obviously intended that Foley's work conformed to the specifications, it was not shown that a commissioning procedure was necessary to accomplish that goal. Accepted, but immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accord with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Whatever DMS' intention may have been concerning Johnson Controls' inspection process, substantial completion was delayed until Johnson Controls' and other inspecting persons and entities had submitted their deficiency lists, which was an effort outside the bounds of the contract between the Petitioner and DBC, the Respondent. Rejected, as not dispositive of the material issues presented for resolution, and as subordinate to the Hearing Officer's findings of fact concerning substantial completion. Work on punch list and warranty items is expected to continue after the substantial completion date, whether or not it may delay carpet installation, which effort was not part of Foley's contract in the first place. Accepted, in terms of a statement of Mr. Anstis' responsibilities concerning the substantial completion determination under the contract terms. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter, even though it may be an accurate statement of Mr. Anstis' position or thought process at the time. 62-64. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, as not entirely in accord with the preponderant weight of the evidence, and as immaterial to resolution of the issues presented in and of themselves. 65. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and not itself materially dispositive. 66-67. Accepted, but not itself materially dispositive. Accepted, in terms of this being a statement of Mr. Anstis' viewpoint, but rejected in that it is subordinate to the Hearing Officer's findings of fact on this subject matter predicated on the preponderant weight of the evidence and the Hearing Officer's determination of witness credibility. Accepted, in terms of why Mr. Anstis concluded to increase retainage, but rejected as subordinate to the Hearing Officer's finding of fact concerning the factual circumstances and legal rights of the parties as to this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, which are based upon the preponderant weight of the evidence determined by weighing the credibility of witnesses and evidence. 71-72. Accepted, but not itself materially dispositive. Rejected, as contrary to the preponderant weight of the evidence and the Hearing Officer's findings of fact on this subject matter. Accepted, only in terms of its being a statement of Mr. Anstis' position in this regard, but not accepted as to its legal or factual correctness. Rejected, as immaterial and, in part, as not in accord with the findings of fact made by the Hearing Officer after his determination of the preponderant weight of the evidence based upon the credibility of witnesses and evidence. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary and subordinate to the Hearing Officer's findings of fact on this subject matter, and rejected as to its purported material import and subordinate to the Hearing Officer's findings of fact on this subject matter. 79-86. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely material to the resolution of the issues presented. Accepted. Accepted, but immaterial. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, and not materially dispositive. Accepted, but not materially dispositive. Accepted, but not for its purported material import. 92-95. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: S. LaRue Williams, Esquire KINSEY, VINCENT, PYLE, P.A. 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Davisson F. Dunlap, Jr., Esquire PENNINGTON & HABEN, P.A. Post Office Box 10095 Tallahassee, FL 32302-2095 Stephen S. Mathues, Esquire Department of Management Services Knight Building, Suite 312 2737 Centerview Drive Tallahassee, FL 32399-0950 William H. Lindner, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, FL 32399-0950 Paul A. Rowell, Esquire General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, FL 32399-0950
The Issue Whether the construction activities undertaken by Respondent at the home of George Scantland which lies seaward of the Sarasota County Coastal Construction Control Line constitute a violation of Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, and, if so, should an administrative fine be assessed against the Respondent.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. George Scantland owns a single-family home on Casey Key in Sarasota County, Florida, which lies seaward of the Sarasota County Coastal Construction Control Line ("CCCL"). Scantland contracted with the Respondent to perform certain construction activities at his home. At the time Respondent entered into the contract, Garry Battaglia was President of the Respondent corporation. On February 13, 1990, the Respondent requested a consultation from the Department regarding the proposed construction activities at Scantland's home. The Respondent submitted a plan of the proposed construction along with the consultation request. At the time of the consultation request, Scantland's single-family home consisted of an on-grade slab on the ground floor level and an elevated second floor with a wooden cantilevered deck on the north and south sides of the property. The consultation request and plan indicate that the Respondent wished to construct a third-story addition including a cupola above the existing second floor, an elevator within the existing wall on the south side of the home, and an enclosure for stairs outside on the existing south side wall. On June 4, 1990, a Department engineer responded to the consultation request in a letter notifying the Respondent that the proposed third-story addition, the cupola and the elevator qualified for an exemption. However, construction of the stairwell enclosure did not qualify for an exemption pursuant to Section 161.053(12), Florida Statutes, because the enclosure modified the existing structure outside the limits of the existing foundation. And, pursuant to Rule 16B-33.004(4), Florida Administrative Code, a permit was required for the proposed stairwell enclosure because the enclosure constituted an addition to a major structure proposed above a preexisting concrete deck. On October 18, 1990, the Department's area inspector visited Scantland's home, prepared a site inspection report, and took photographs. The site inspection report indicates that Respondent was engaged in construction activities at Scantland's home and requested comment from the Department's staff as to whether the work was exempt or required a permit. The first photograph (Exhibit 2A) taken on October 18, 1990, by the area inspector indicates that the existing concrete deck on the ground floor of the north side of the house had been drilled and rebar had been inserted and that concrete blocks were being placed at the bottom of the drills and rebar locations. Another photo (Exhibit 2C) taken on October 18, 1990, by the area inspector depicts the southern wall of the house with temporary shorings supporting the remains of the second floor wooden deck located on top of the preexisting concrete deck. The photo shows that wooden posts in the concrete deck, which had supported the second floor elevated wooden deck, had been flush cut to the ground. After reviewing the site inspection report and photographs, the area engineer in Tallahassee asked the inspector to revisit the site to gather further information regarding Respondent's construction activities. The area inspector revisited the site on October 24, 1990, and prepared a Warning Notice and Violation Report which he hand-delivered to an employee of the Respondent on the job site. The area inspector also took additional photographs (Exhibits 5A-5C) during this visit. The Warning Notice was issued for the placement of drilled rebar and block columns atop an existing concrete slab and placement of a tie-beam system atop the block columns. The Warning Notice put the Respondent (owner's agent) on notice that a violation has possibly occurred and instructed the Respondent to stop construction pending a determination from the Department's Tallahassee office. The Violation Report, which begins the formal entry into the violation process, was issued to both Scantland and the Respondent for the construction of new perimeter block walls atop an existing ground floor concrete deck seaward of the CCCL without obtaining a permit from the Department. The area inspector's initial determination that Respondent's construction activities constituted a statutory violation was confirmed by the Department's engineering staff in Tallahassee. The photographs (Ex. 5A - 5C) taken by the area inspector on October 24, 1990 demonstrate that even after receipt of the Warning Notice, the Respondent continued construction at Scantland's home. The first photograph (Ex. 5A) taken from the north side of the house, shows that placement of the rebar and columns had been completed and a beam had been constructed across and underneath the existing wooden deck on the second floor. A second photograph (Ex. 5B) taken from the south side of the house, shows the new columns and new tie-beams constructed atop the preexisting concrete deck. On November 16, 1990, the area inspector conducted a follow-up inspection of the site, prepared a site inspection report, and took photographs (Ex. 7A -7B). The site inspection report confirms that Respondent was still engaged in construction activities at the site. The report indicates that the area inspector spoke with Garry Battaglia on the site and that Battaglia planned to continue construction until a stop work order was received. Battaglia advised the area inspector at this time that he was applying for a permit for the work. The first photograph (Ex. 7A) taken by the area inspector on November 16, 1990 is an exterior view of the south side of the house which shows that the wall atop the preexisting concrete deck on the southern addition was completed. The second photograph (Ex. 7B) shows the interior of the southern wall where construction of the second story was taking place over the new column wall and tie-beam system built atop the preexisting concrete deck. The Respondent received a copy of a Notice of Apparent Violation of Section 161.053(2), Florida Statutes, dated November 20, 1990, issued by the Department to Scantland for unauthorized construction/excavation seaward of the Sarasota County CCCL. The Notice advised the parties to stop construction activities pending compliance with the law. On December 10, 1990, the Department received an after-the-fact permit application, plan of construction, and survey of the property from the Respondent as agent for Scantland. The plan of construction accurately depicts the structure which is currently on the property, as modified by the Respondent. The completed construction is totally different from the construction activities described in Respondent's consultation request of February 13, 1990. The consultation request submitted to the Department by Respondent in February, 1990 did not indicate that any construction would occur on the north or west side of the structure above the preexisting concrete deck or that the elevator would be constructed on the southwest corner of the home outside the existing wall or that an enlarged garage/storage area would be constructed. All of the above were ultimately constructed by Respondent. The survey of the property, dated March 23, 1990, shows that there was preexisting concrete deck on the ground floor level and a wooden deck on the second floor and that the concrete deck was a separate entity from the strip footing supporting the preexisting structure and that there was no enclosed space above the preexisting concrete deck. On December 19, 1990 the area inspector returned to the site and took additional photographs (Ex. 10A - 10C) and filed a site inspection report. The Respondent continued to engage in construction on the house even after receipt of the Warning Notice and Notice of Apparent Violation. The construction on the south and west sides of the house were never completed, there was a new corridor wall between the elevator shaft and the interior wall of the house, a new column and some new slabs on the ground outside the preexisting foundation of the house. On January 2, 1991, in response to the after-the-fact permit application, plan and survey filed by the Respondent, the Department staff advised the Respondent by letter that the application was incomplete and told the Respondent to stop any further construction activities on the site that had been identified as requiring a Department permit. On January 10, 1991, the Department received from Respondent another plan of the existing structure entitled "Existing First Floor Drawing" drawn on October 25, 1990. The drawing indicates that there was open lattice on the south side of the house; and, the drawing refers to the concrete on the north and south sides of the home as "concrete walk". On January 17, 1991, the area inspector visited the site again, took additional photographs (Ex. 12A -12C) and filed a site inspection report. Again, it was evident that Respondent continued construction on the house despite receipt of the Department's notice of January 2, 1991 advising Respondent to cease any further construction activities. The Respondent received a Notice of Violation, Cease and Desist Order issued by the Department on January 17, 1991 for unauthorized construction seaward of the CCCL. On July 22, 1991, the Department issued Permit No. ST-807 ATF CF to the Respondent as agent for Scantland, authorizing the after-the-fact activities and the proposed minor structures with the condition that the violation would be addressed by the Department through a separate agency action. The generally-accepted definition of "foundation" states that a foundation is the support part of a structure and is restricted to the structural member that transmits the superstructure load to the earth. The strip footing, or wall footing, directly beneath Scantland's home transmits the load of the superstructure to the ground and thus constitutes the foundation of the preexisting structure. The footings on the north and south sides of the home underneath the concrete deck did not support the preexisting structure but rather only supported the preexisting second story wooden deck. As such, the footings below the concrete deck did not constitute part of the foundation of the preexisting structure. The construction at Scantland's home constitutes construction outside the foundation of the Scantland's home and additions to the Scantland's home above the preexisting concrete deck. Respondent knew, or should have known, that a construction permit was required for the construction activities at the Scantland home based on the Department's response to the consultation request. Respondent's continued construction activities at the Scantland home constitutes a violation of the statutes and rules and was intentional in that the Respondent continued the construction activities at the Scantland home despite the repeated notices and warnings by the Department to cease construction until the matter was resolved. The Respondent was agent for Scantland and responsible for obtaining all necessary permits. The construction activities conducted at the Scantland home by the Respondent does not come within the exemption provided for in Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, adopted in accordance with the Department's statutory authority. Therefore, the construction was a violation of the statute and Department rule in that Respondent failed to obtain a permit before beginning construction. And, such violation could subject the Respondent, as the owner's agent responsible for obtaining the permit, to a possible assessment of an administrative fine pursuant to Section 161.054, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That the Department enter a final order assessing an administrative fine in the amount of One Thousand Five Hundred and No/100 Dollars ($1,500.00) against Respondent. In making this recommendation, I am mindful of Respondent's repeated failure to comply with the repeated notices and warnings without any attempts to resolve the matter. Another basis for the fine is to ensure immediate and continuous compliance in the future as set forth in Section 161.054(4), Florida Statutes. DONE AND ENTERED this 28th day of October, 1992 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 28th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2292 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted as modified in substance in the Recommended Order. The number(s) in parenthesis is the Finding of Fact which so adopts the preceding proposed finding(s) of fact: 1-9(1-9 respectively): 10(10-11); 11(12); 12(13); 13(13, 14); 14(15); 15(16); 16(17); 17(18-20); 18(21); 19(22); 20(23-24); 21(25); 22(26); 23(27); 24(28-29); 25 (30); 26-28(31); 29(32); 30(33); 31-33(34); 34(35); 35(36); 37(37); 38(38-39); 39(40); and 40-42(41-44). The Department's proposed finding of fact 36 is covered in the Preliminary Statement. The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Lanette M. Price, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Garry Battaglia, Qualified Representative G & R builders of Distinction, Inc. 107 Corporation Way, Suite B Venice, Florida 34292 Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
The Issue Whether the Department of Health and Rehabilitative Services' rejection of the Petitioner's bid, based on the facts and figures available on August 12, 1994, was a proper exercise of the Agency's discretion and was not arbitrary, fraudulent, illegal, or dishonest as to HRS lease No. 590:2500.
Findings Of Fact The Respondent Department issued an Invitation to Bid (ITB) for Lease Number 590:2500 for office space in an existing building in a geographic area near Apopka, Florida for a ten (10) year lease with options. The ITB called for net square footage of 14,910 + 3 percent, measured in accordance with the Standard Method of Space Measurement. The ITB and Bid Submittal, including at page 16, Paragraph 10(c) of the Bid Submittal Form lists the documentation that is to be provided to the Respondent at the time of the bid submittal. Included in this list is a requirement that a bidder provide the calculation of the proposed net rentable square feet. Paragraph 10(c) indicates that the square footage calculations are to be based on measurements from the floor plan. Sealed bids were received until 10:00 a.m. on August 5, 1994. Petitioner submitted a completed Bid Submittal form in a timely manner. Petitioner's Bidder Response reflected 14,463 as the net square feet proposed. Respondent Department has occupied the building being offered since 1986. 14,463 is the absolute minimum net square/footage that could be submitted to meet the bid specifications. Petitioner provided no calculations indicating how the net square footage proposed in their bid submittal was calculated, other than page 85 which contained the exterior dimensions of the building bid. The Respondent was entitled to know how the Petitioner calculated the net square feet proposed to determine whether the Petitioner's bid was responsive. Following the bid opening but prior to the rejection of the Petitioner's bid, Petitioner was asked to provide calculations which would provide reasonable assurances to the Department that Petitioner in fact had the minimum net square footage available. The Respondent had no obligation to go back to the Petitioner and ask for such calculations. One day prior to the rejection of the Petitioner's bid, Petitioner faxed a handwritten note to the Department which read as follows: HRS 590-2500 No 5 Bld Size 117'10" x 130'8" Gross Space 115 x 10" x 12810" 115.833 x 128.833 = 14,923.113 deduct 2-sets Bath Rooms - 355.873 Net Rentable 14,567.240 Jim we have calculated our space based on your standard measurements The bid specifications called for a minimum of 2 sets of restrooms for public and 2 sets of restrooms for staff use, for a total of 4 separate sets of restrooms, each set to provide for male and female and meet other requirements. Based on these representations from Petitioner, the Department rejected its bid on August 12, 1994, as non-responsive. This decision was based on the Department's interpretation which concluded that the bid submitted failed to meet the minimum square footage requirements and to provide for the proper number of bathrooms as set forth in the bid specifications. The Department's evaluation concluded that the Petitioner's bid only proposed two sets of restrooms at 355.823 square feet. Deducting another two sets of restrooms at the same size in order to comply with the bid specifications would cause the Petitioner's bid to fall below the minimum square foot requirements as set forth in the bid submittal. Petitioner asserts that the required restrooms can be located within the Petitioner's building, and that there are sufficient minimum square feet available per the bid specifications. In the alternative, Petitioner would show that, under the bid specifications, restrooms could be located either in or out of the building. The Department's decision to seek clarification prior to rejecting the Petitioner's bid was reasonable. The Department having done so, the subsequent submittal by Petitioner of calculations in response to the request for clarification was considered as an addendum to the original bid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order dismissing the Petitioner's protest and proceed with the award of bid for HRS Lease No. 590:2500. DONE AND ENTERED this 29th day of December, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 29th day of December, 1994. COPIES FURNISHED: Terrence William Ackert, Esquire P. O. Box 2548 Winter Park, Florida 32790 Ronald M. Schirtzer, Esquire Foley & Lardner 111 North Orange Avenue Suite 1800 Orlando, Florida 32801 James A. Sawyer, Jr., Esquire District 7 Legal Counsel Hurston Tower, Suite S-827 400 W. Robinson Street Orlando, Florida 32801-1782 Ladd H. Fassett, Esquire Warlick, Fassett, Divine & Anthony, P.A. Post Office Box 3387 Orlando, Florida 32802-3387 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Charles F. Geisler, was and is a licensed architect in Florida holding license NO. AR 00006750, and the Petitioner, Board of Architecture, is the state agency responsible for regulating the practice of architecture in this state. Respondent has been engaged in the practice of architecture primarily in the design of residential and commercial structures within Sarasota County continuously since 1976. Over the past several years, he has worked on occasion, with Howard T. Bertram, also an architect, with whom he had worked for several years in an architectural firm in Sarasota. During that period, they worked together on several residential projects. Mr. Bertram was not registered as an architect at the time the project in question was designed. Under Florida law and the provisions of Sarasota's building code, any individual, not necessarily an architect, may legitimately prepare plans for a single family residence. Mr. Bertram was contacted by Chester Kuttner, a Chicago real estate developer who also has worked in Florida, to design a single family residence for him on Ringling Point in Sarasota. Because this site is located in a coastal high hazard area, and a V-20 zone, Regulations promulgated by the United States Federal Emergency Management Agency, (FEMA), established certain requirements to include the requirement that a residence to be constructed in the V-20 zone must be designed by a registered architect; must have an elevation no less than 16 feet above sea level; and must be designed and build so as to resist a certain wind velocity. All this was explained to Mr. Kuttner by Mr. Bertram. Nonetheless, Mr. Kuttner desired that Mr. Bertram design his home. Bertram agreed and began the development of the design concept, but once the project reached the point where working and construction drawings were necessary, and the involvement or a registered architect was required, Mr. Bertram proposed to Kuttner that Respondent be employed to work with him to insure that all FEMA and other requirements were met. Mr. Kuttner agreed. Respondent thereafter submitted a set of plans to the Sarasota building office for review as a prerequisite to the issuance of a building permit. The initial set of plans submitted in September was rejected because of the failure of the plan to meet requirements regarding fill, slab, and the elevation of the swimming pool. None of the original objections had any relationship to those areas in issue here. A second set of plans was submitted by Respondent in November, and approved by the city. These plans bore his seal as architect, and it was his responsibility to determine whether the plans were in compliance with FEMA and State requirements. Though the city officials reviewed the plans, they did not do a complete structural analysis to see if the plans complied with FEMA structural requirements. The plans did, however, comply with local elevation and zoning requirements. According to Mr. Hewes, the building official, the house involved here is similar to many built in coastal areas. It is an elevated house with the bottom portion open, and the living quarters up and over the open parking area below. Because of FEMA criteria, the lower level could not be used for habitation at this location. Respondent admits to sealing both the original and modified plans for the Kuttner house. With regard to the original plans, he prepared sheets 5-1 and 5-2, the structural plans, but merely reviewed sheets 1 - 7 which had previously been prepared by Mr. Bertram. In that regard, Respondent and Bertram went over the plans together and discussed them, and in light of their review, the matter seemed to be appropriate to Respondent who, admittedly, did no calculations. As to the second set of plans, again Respondent drafted sheets 5-1 and 5-2, dealing with the structure, which he revised from the September plans to meet the changed conditions. This applies to the other pages as well, which he checked only as to the required changes. Respondent knew these plans were to be used to get a building permit, and he was aware that the building was to be constructed in a V-20 zone, with an elevation of 16 feet. The original plan for the Kuttner home called for the use of fill to support a concrete slab which would form the floor of the upper habitation area. When, after consultation with governmental authorities, it was decided to remove the fill, Respondent recognized he had to redesign the structure as a wooden frame with truss joists. The use of pilings, as called for in the original plan, remained as a part of the second set. The structure was built as planned. Respondent was present when the piles were driven to insure they were put in the right place; he was on the scene when the steel beams were put in; and came out again to solve a problem regarding plumbing vents and air conditioning ducts. He indicates there was an upgrade in the steel beam size in the floor beam supporting the master bedroom area as a matter of economic convenience to the supplier. These larger beams were installed at no additional cost as was an additional roof beam. "Detail" drawings were provided in some areas, especially the footing areas, (detail A on S-I; detail B on S-1; and base plate and anchor bolt on S-2; and frame sections on S-2). There were no details as to stair framing. Wall sections are detailed in the first 7 sheets, and details of the roof tiedowns are show there as well. Respondent provided for lateral wind loads through a device which called for this load to be transferred to the outer walls. Petitioner's expert claims this was improperly done. The plans do not show plumbing details, but there is no requirement for plumbing details to be shown in single family residence drawings. The drawings must show the location of the structure on the property foundation, floor plans, elevations, and a typical wall section. Requirements in the electrical area include only the locations of outlets and switches. Respondent admits to being compensated by Mr. Kuttner for the services rendered in the design and construction of the building. The comment appearing on the first page of the plans regarding the seal being applied at no charge as a political statement was made as a result of the Respondent's philosophical disagreement with the short-lived Florida sales tax on services. He claims his comment was true: that no charge was imposed for the placement of the seal, but he readily admits he was compensated for his architectural services. This seal comment apparently prompted inquiry by the Board and colored the thinking of several Board witnesses who believed Respondent "sold" his seal to an unlicensed architect. This is not true, however. Respondent performed bona fide architectural services and his seal was properly utilized. Mr. Bertram, who at the time he designed the Kuttner residence, was not registered as an architect in Florida, received his license in January, 1988. His participation in the Kuttner project included development of the design concept, and the accomplishment of the working drawings on which he brought in Respondent as a licensed architect to work with him on the FEMA zone portions. According to Mr. Bertram, he and Respondent met many times on the project. Mr. Bertram's testimony fundamentally supports and confirms in major detail that of the Respondent. He points out that the residence as ultimately constructed, was little changed from the concept design on the September plans. The major difference was the removal of fill and the structural concrete slab as a base for the living area portion of the house, and the substitution of truss joists therefor. What is incontrovertible is that the house, as designed by Bertram and the Respondent, is still on the site where it was constructed, and is occupied by the original owner who is quite satisfied with it. According to both Bertram and Mr. Kuttner, no material changes have been made since it was completed. The project was not, however, so well thought of by Mr. Philip V. Scalera, an architect licensed in both Florida and Georgia, and a consultant for the Board, whose primary architectural practice deals with commercial structures. He does, however, have some experience in residential design, and in his opinion, the subject building, multistory in design and constructed of steel beams on pilings is no different, structurally, from a commercial building. Mr. Scalera, at the request of the Board, reviewed the drawings encompassed in both sets of plans submitted to the Sarasota building office. According to the plans, the structure was to be a wood frame structure above a slab. The first set of drawings indicated the property was to be a conventional slab on grade construction. The structural drawings show no location or information, however, concerning the pilings, and in Mr. Scalera's opinion, it would not be easy to understand the type, location, or load bearing capability of the pilings based on these drawings. He feels this type of structure should be designed for uplift and load bearing. In his opinion, therefore, the first set of drawings regarding the foundation are inadequate. However, the first set of plans were withdrawn and not utilized by the contractor for the construction of the project. It is noted, however, that the first and second set of plans are quite similar, and in that regard, Mr. Scalera points out, as to the second set, his comments regarding the foundation support are not changed. In his opinion, there is insufficient information provided as to the capability of the piling. Other defects found by Mr. Scalera in the second set of plans included: The "details" for retaining walls were non existent. Mr. Scalera feels that in this case, such details were required due to the critical nature of the walls, which included the support and retention of the structure. The "details" for the superstructure were inadequate. The "columns to footage anchorage" are critical and must be evaluated. This can be done only through the use of "details." Here, there is only one "detail" with no calculations by engineers shown and, in Scalera's opinion, this is insufficient. The "detail" regarding the "moment connection", drag bracing, or a means to prevent distortion of the structure by horizontal wind force is absent. There is a "diaphragm" method which can be used for this which is a panel to absorb pressure, and an outer wall, (shear wall). Here, however, no shear wall is shown. Only a glass wall is indicated and glass walls are not capable of resisting lateral wind pressure. On a steel building, with a steel frame, as here, steel or masonry would have been the natural material to resist the wind force, and there is no indication that this is provided. The "details" for stair landings and wall sections are needed but not provided. S-1 on the second set of plans shows joists which bear on the beam which has no support. S-2 shows a stair opening, but the detailing contained in the drawings does not show sufficient detail to allow reviewing officials to oversee construction. The "tie-down" anchors the roof joist to the wall plate and is used to prevent the wind from lifting the roof off the structure. The instant plans call for an overhang of 9 feet, and the uplift force for such an overhang is such as would cause the hurricane clips called for in Respondent's plans to fail. Scalera believes that the fact that the house is still standing means nothing. The design should be sufficient to meet the requirements of an unusual occurrence, in this case, a 50 to 100 year hurricane, and since the construction of this residence, no such winds have been experienced. The lateral bracing used by Respondent is insufficient. The only lateral bracing called for in this plan is made of plywood sheeting on one side. More detail should be shown, with specifications which were absent. Floor beams were, in the opinion of Mr. Scalera, inadequate in size. The glass type, thickness, and means of support called for in the plans are not detailed. In the absence of appropriate detail, neither Mr. Scalera nor the building officials would be able to determine whether the plans came up to standards. The plans do not appear to comply with the requirements for buildings in a V-20 zone, (16 feet elevation), in that: They are on compacted fill contra to the code, (changed in the second plans) The sewage and waste water control is not designed through the use of plumbing drawings, and The structural integrity of the building appears to be beyond the architect's responsibility area. Many structural designs for moment connections and joints are improper or uncalculated. In Scalera's opinion,; these designs should have been done by an engineer, not an architect. Turning to the second, (November) set of plans, Mr. Scalera also believes these are not of a sufficiently high standard to inform the user properly. The documents do not clearly and accurately identify the design of all segments to which they relate. The drawings have lent themselves to a lack of continuity. The plans appear to be detrimental to the client because the project, based on these plans, could not be bid accurately and the actual cost would exceed competitive bidding by a large margin. They are also detrimental to the public at large because the building has the definite potential for failure under stress conditions. Taken together, in Mr. Scalera's opinion, the Respondent has not conformed to the standards for the practice of architecture in Florida, and has been negligent. He believes the structural components are not incidental to the plans but are of paramount importance, and, in his opinion, Respondent was not competent to design the structural components used herein. Mr. Geisler and Mr. Bertram both pointed out that they had worked with the contractor selected to build the structure in issue here and he was familiar with their way of doing things which would lead to a better job even if not all detail was contained in the plans. Mr. Scalera discounts that contention, stating that the fact that the architect had worked with a particular contractor previously would not justify his putting less detail in his plans than would be required in plans to be used by a contractor not familiar with the architect. This is accepted and so found. Many of Mr. Scalera's conclusions were supported by the testimony of Mr. Power, a licensed structural engineer, who described the Kuttner residence as "a very unusual steel skeleton and wood constructed building." Mr. Power examined the property and the drawings and found the latter to be inadequate to make an evaluation of the superstructure. Nonetheless, he felt the plans were inadequate for several reasons. In less detail than that utilized by Mr. Scalera, he opined that: The details of the superstructure as to wind loads were inadequate. The column to footing anchorage details were less than as he would wish, but he was unable to form an opinion as to whether they were adequate. He did point out, however, that there were no details available on those areas of the project related to resistance to lateral wind loads, and those details are required because wind exerts pressure in the form of lift on the top of the roof; uplift on the bottom of the roof; uplift from under the building; and pressure on the windward side of the building as well as suction on the leeward side. Mr. Power points out that the requirements applicable here indicate that the design must provide for the structure to sustain a 10 foot wall of water driven by 110 mile per hour winds, as well as the impact of the wave and debris pileup on the pilings. Mr. Power also points out that one way of resisting wind load is through duplication, and in his opinion, the detail as to that in these plans is insufficient. With regard to the tie downs, designed to hold the roof to the structure, the detail provided calls for a particular type of commercially produced joinder. Power's calculations indicate that the type of joinder called for in the plans is inadequate in that the clip called for is inadequate to hold the roof under the conditions possible. Another of Mr. Power's concerns deals with the indications for lateral bracing on the outside wall of the mezzanine floor, where he felt the bracing was inadequate, and the failure to provide specifications for such is a defect. Mr. Power also reviewed the plans in regard to the adequacy of the floor beams, and concluded that the floor beam on line 2 from grid line B to D was inadequate under dead and live gravity loads. The beams themselves are not properly braced, and appear grossly inadequate when subjected to lateral wind load. Further, the beam on line B, from 2 to 4, at elevation 26' 3 3/4", and the beam on line B from 6 to 8 at elevation 30" 3 3/4", are inadequate because the are adjacent to openings in the floor. Mr. Power concluded that the plans do not comply with the FEMA requirements for a zone V-20 location because they fail to provide the required safety called for in the building codes. The steel columns which are 6 x 9 would be insufficient even if details for the moment connection were provided, and they were not. The provision of the other beam, which is much stronger, as was claimed by Mr. Geisler in his testimony, would make it safer. Nonetheless, he believes the design in these plans, as they relate to beams and columns, would be inadequate to withstand the code specified wind loads in either direction. In substance, Mr. Power is of the opinion that Respondent's initial and revised plans here are not of sufficiently high standard to inform the users of the requirements intended; they do not clearly and accurately indicate the design of all essential parts of the work to which they refer; and, as drawn, may well be detrimental to the client and the public at large. According to Mr. Power, when the Respondent signed and sealed these plans, he assumed responsibilities for them as submitted, and could not rely on any supplier or contractor to make changes which would rectify an otherwise unacceptable situation. Here, Mr. Power believes that the standard of practice, as it relates to structural design only, as contained in the plans in issue, was not met by the Respondent. Admittedly, this analysis is based upon review of the plans only, and if he could see the specifics of the project, it might change his opinion on the adequacy and safety of the superstructure. It would, however, not change his opinion as to the adequacy of the plans. Respondent points out that his plans had a note requiring shop drawings and the steel joist and concrete reinforcing people submitted them. They were reviewed by Respondent and he feels that they complied with his instructions and with the standards of the practice in Florida. Mr. Power admits that shop drawings are very common and almost all buildings are built through the use of these drawings in addition to the architect's plans. Shop drawings are used to establish dimensions so that prefabricated elements can be constructed, and to indicate to the designer that what is on his drawings was understood. Shop drawings do not bear the seal of the professional, and it must not be overlooked or forgotten that the responsibility in architecture lies with the architect's seal, not the shop drawings. In Mr. Power's opinion, what the Respondent accomplished here was not at all consistent with what Power has seen as acceptable practice in the profession. In defense of his plans, Respondent pointed out that he has designed several properties for FEMA locations in Florida in both the V zone and the A zone. He has worked with structural steel components on at least two occasions, and in his opinion, his design of the superstructure on the Kuttner house complied with FEMA requirements. Respondent also claims his plans provided for column to footage anchorage at S-2. All steel joists were to be fully welded to develop maximum moment resistance and to create a rigid frame. The plywall insert panels were designed to carry a wind load sufficient to resist deformation in their plane, and the floor joists were designed to resist wind deformation in the horizontal plane. According to Respondent, an expert in soils analysis did borings of the soil on the site and recommended the type and size of the footings, and here, Respondent called for the use of a 12 inch instead of a 10 inch piling. Both the Respondent and Mr. Kuttner are of the opinion that the complaint in this case was initiated by one of Mr. Kuttner's neighbors, an architect himself, who wanted to design the Kuttner residence. When Kuttner refused, this neighbor allegedly took umbrage and resisted the project down the line. When Respondent designed the superstructure, he claims to have considered the wind effect as outlined by Mr. Power, but did not specify the thickness of glass to be used since it was not required. Where the plans call for welding steel joints at S-2, this appears to conform to AISE standard practice. The plywood walls were to serve as a diaphragm to counter wind effect. The framing and connections for those is found in the plans at PA-4. Bolts at 48 inches on center at the bottom plane are called for with studdings to be tied in there and plywood attached in accordance with the undetailed standard nailing pattern set out in the building code and known to all certified contractors. He admits that his plans did not specify a nailing pattern at the truss joinders, but he claims they did not have to. This is not necessarily so if the plywood is being used to address lateral wind load. Admitting that the requirements for nailing patterns is incorporated into the building code which governs all construction and compliance with the code is required by all contractors, Mr. Power nonetheless feels that the nailing pattern is dependent upon the load to be supported and that determination should not be left up to the contractor, but should be specified by the architect in the plans. This would seem to be a logical and supportable position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that by Final Order of the Board of Architecture, the Respondent, Charles F. Geisler, be reprimanded, be assessed a total administrative fine of $1,000.00, and be placed on probation for a period of two years under such terms and conditions as may be prescribed by the Board. RECOMMENDED this 14th day of August, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Aministrative 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 14th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6934 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. Accepted and, as appropriate, incorporated herein. Accepted and incorporated herein. -11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.-15. Accepted and incorporated herein. 16. Accepted as it states Mr. Bertram prepared all with the Exception of S-1 and S-2, but rejected as it implies Respondent did not work on the other with Bertram or assume responsibility for his work. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. 8.- 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected in that the first plans did not comply with stated requirements. Accepted as to Respondent's contentions without conceding the detail, specifications, and requirements were adequate. Rejected. Scalera's objections went to the professional quality of Respondent's work. As an expert, his testimony is accorded same weight. Irrelevant. & 20. Accepted. Accepted. Finding for Respondent on this point. Not a Finding of Fact but merely a statement of the allegation. Respondent's courses in the area of structural engineering appear to be no more than a normal architectural student takes. This issue was resolved against the Respondent. Accepted but not controlling in light of the evidence on the effectiveness and weight of shop drawings. Accepted but irrelevant to the issue of quality of quality of performance. See 22. Rejected. Accepted and treated herein. Rejected. 30.- 33. Accepted and incorporated herein. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 S. Sterling Street, Suite 201 Tampa, Florida 33609 Stanley Marabel, Esquire 1800 Second Street, Suite 715 Sarasota, Florida 34236 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Ard Executive Director Board of Architecture 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue Whether that portion of Respondent's leasing manual, HRSM 70-1, which defines the term "dry and measurable" should be declared an invalid exercise of legislatively delegated authority?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: Earlier this year, Respondent issued an Invitation to Bid for Lease No. 590: 2286 (hereinafter referred to as the "ITB"). The first page of the ITB contained the Bid Advertisement, which read as follows: The State of Florida, Department of Health and Rehabilitative Services is seeking an existing facility in Dade County to lease for use as office space containing approximately 30,086 net rentable square feet. The space proposed must be an office environment. Converted factories/warehouses in industrial areas are not acceptable. The facility shall be located within the following boundaries: North By S.W. 8th Street, South By S.W. 88th Street, East By S.W. 37th Avenue, Southeast By South Dixie Highway, and West By S.W. 87th Avenue. Any facility located on a parcel of land which abuts any of the street boundaries is consider[ed] within the boundaries. Occupancy date of 8/01/91. Desire a Ten (10) year lease with three (3)- two (2) year renewal options. Information and specifications may be obtained from Mr. Philip Davis, Facilities Services Manager, 401 N.W. 2nd Avenue, Suite S721, Miami, Florida 3312, (305) 377-5710. Please reference lease number 590: 2286. Program requirements will be discussed at a pre-proposal conference to be held at 10:00 a.m. on 4/22/91 at 401 N.W. 2nd Avenue, Suite S721 Miami, Florida 33128. Bid opening date will be on 5/30/91 at 10:00 a.m. at the above mentioned address. Minority business enterprises are encouraged to attend the pre-proposal conference and participate in the bid process.The Florida Department of Health and Rehabilitative Services reserves the right to reject any and allbids and award to the bid judged to be in the best interest of the state. The ITB contained the definitions of various terms used therein. Among the terms defined were "dry and measurable" and "existing building." "Dry and measurable" was defined as follows: These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measurable" the proposed space must be enclosed with finished roof and exterior walls in place. Interior floors need not be completed. Exterior windows and doors need not be installed. The proposed area is not required to be completed. These characteristics conform to standard lessor construction practices. This definition is identical to the definition of this term found on page 1-5 of Respondent's leasing manual, HRSM 70-1. 2/ "Existing building" was defined as follows: To be considered as existing the entire space being bid must be dry and capable of being physically measured to determine net rentable square footage. at the time of bid submittal. Attached to the ITB and incorporated therein was a document entitled "Standard Method of Space Measurement." It read as follows: The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variances in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and a clear understanding of what is being measured. Area Measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, private sector leased, State-owned, or other publicly owned shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, public corridors, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closets, electrical closets, telephone equipment rooms, - - and such other rooms not actually available to the tenant for his furnishings and personnel - - and their enclosing walls. No deductions shall be made for columns and projections structurally necessary to the building. The attached typical floor plan illustrates the application of this standard. 3/ Petitioners submitted a bid in response to the ITB. 4/ In their bid they proposed to lease to Respondent space on the first and second floors of a building located at 8500 S.W. 8th Street in Miami, Florida. The space offered by Petitioners is currently occupied. At the time of bid submittal, all of the proposed space on the second floor was "dry and measurable," as that term is defined in the ITB. It encompassed a total of 26,540 square feet. At the time of bid submittal, only a portion of the proposed space on the first floor, amounting to 4,400 square feet, was "dry and measurable," as that term is defined in the ITB, inasmuch as the proposed space on this floor included a breezeway area that did not have either a front or back exterior wall in place. 5/ Subsequent to the submission and opening of bids, Petitioners enclosed this breezeway area by erecting exterior walls. Accordingly, the entire space offered by Petitioners was not "dry and measurable" at the time of bid submittal as required by the ITB. Bids were opened by Respondent on May 30, 1991. By letter dated June 18, 1991, Respondent notified Petitioners that their bid had been deemed non-responsive. The letter read as follows: The bid you submitted for lease No. 590: 2286 has been determined to be non-responsive because the proposed space is not dry and measurable. The breezeway area proposed on the ground level of your premises at 8500 S.W. 8 Street, Miami, does not have exterior walls in place. The invitation to bid on lease No. 590: 2286 provides on page 2: "Dry and Measurable- These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measurable," the proposed space must be enclosed with finished roof and exterior walls in place. You have the right to file a protest. The protest must be filed in accordance with S.120.53(5), Florida Statutes and Chapter 10-13.11 Florida Administrative Code. Failure to file a protest within the time prescribed in S.120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. To comply with the referenced statute, a written notice of intent to protest must be filed with the contact person listed on the Invitation to Bid for lease No. 590: 2286 within 72 hours after receipt of this notice. Within ten calendar days after the notice of protest is filed, a formal written protest and protest bond must be filed with the contact person. The bond must be payable to the department in an amount equal to one percent of the total lease payments over the term of the lease or $5,000, whichever is less. This determination was the product of, not any unlawful bias or prejudice against Petitioners, but rather the honest exercise of the agency's discretion. Petitioners subsequently filed a protest of this preliminary determination to find their bid non-responsive. They also filed a rule challenge petition alleging that Respondent's leasing manual, HRSM 70-1, to the extent that it purports to define the term "dry and measurable, represents an invalid exercise of legislatively delegated authority. It is this petition that is the subject of the instant proceeding.
The Issue The sole issue in this cause is whether the Petitioner should have received a passing grade on the design and site planning portion of the National Architectural Examination, which he took in June, 1982. Both parties submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Daniel T. Canavan, is an applicant for licensure by examination to practice architecture in Florida. The architectural examination in Florida is administered in two parts: a written examination given in December of each year, and the design and site planning examination given in June of each year. Canavan met all requirements for admittance to the licensure examination. Canavan took the design and site planning portion of the National Architectural Examination in June, 1982. This examination consisted of various design and site problems to be resolved in drawings to be completed within 12 hours. The examination is administered by the Office of Examination Services of the Department of Professional Regulation. The examination is prepared and supplied to the Office of Examination Services by the National Council of Architectural Registration Boards (NCARB). The design and site planning portion of the examination for June of 1982 required the design of a small airport terminal by the applicant to include drawings of the structure on the site, exterior elevations, interior floor plans and cross-sections of the building interior. Canavan, together with the other applicants, was supplied information and a preexamination booklet setting forth generally the architectural program to be accomplished and the various requirements which the applicants would be expected to sketch. At the time of the examination, other information was supplied to the applicants to enable them to more adequately design the structure requested and meet the necessary architectural requirements. The examination of the Petitioner, together with the examinations of the applicants from some 20 states using the NCARB standardized examination, were graded at one time by graders of the NCARB. Each state participating in the examination process provides at least two qualified architects to function as graders. These graders are given specific training by NCARB to standardize their grading approach to the examination. The examinations of all the applicants are divided among the various graders on a blind grading basis in such a manner that the grader has no knowledge of the name or state of origin of the applicant whose examination he is grading. Graders look at the applicant's overall plan to determine whether the applicant has met or failed to meet the requirements. The grader makes notations of specific areas of weakness based upon the grading criteria and based upon the overall conception of the applicant's submission. Each examination is graded by a minimum of two graders, who grade the examination independently. If the examination receives a failing grade from each of the independent graders, it is graded by a third grader. The Petitioner's examination was graded in accordance with the above process and received a failing grade, indicating that it was graded by three independent graders. The Petitioner was notified of his failure to pass the examination and given notice of his right to a formal hearing. Jeff Hoxie, who was one of the graders on the June 1982 examination and who is an experienced architect licensed in the State of Florida, reviewed the Petitioner's examination in the manner that it would have been assessed by the graders, explaining the process generally and explaining the specific deficiencies which he noted. He used the original grader's comments regarding the deficiencies noted as a point of departure to explain his assessment of the Petitioner's examination. The Petitioner failed to follow specific examination requirements as to the required sizes of specific floor areas, failed to follow building code requirements in his design of the kitchen and restaurant, and failed to properly draw the sketch required of the structural and mechanical elements of the building. While there were other areas of weakness noted, Mr. Hoxie stated that the major failures listed above would justify a failing grade. Petitioner's testimony revealed that he had made a mistake in sketching one plan, and that, because of this mistake and the corrections which Petitioner made, he ran out of time, which resulted in the specific failings noted by the three graders at the national level and confirmed by Mr. Hoxie.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Board of Architecture of the State of Florida fail the Petitioner, Daniel T. Canavan, on the design and site planning portion of the National Architectural Examination taken by Canavan in June, 1982. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 11th day of April, 1983. COPIES FURNISHED: Mr. Daniel T. Canavan 814 Avenida Hermosa West Palm Beach, Florida 33405 John J. Rimes, III, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Herbert Coons, Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Petitioner is the holder of CON No. 1863 authorizing construction of a 120-bed nursing home in Plant City, Hillsborough County, Florida. The original CON was issued November 30, 1981, but due to protracted litigation, the CON was not finally effective until July 1, 1982. In the meantime, an initial conference was held between the CON holder, Palm Court, and the Office of Licensing and Certification on February 23, 1982. As a result of that meeting, preliminary plans for the nursing home were submitted to the Office of Licensure and Certification (OLC) on March 29, 1982. These plans were not approved but comments were suggested concerning HRS' position as to changes to be made. On May 20, 1982, revised preliminary plans were approved subject to comments. On April 11, 1983, final plans were initially submitted for approval. These were received on April 14, 1983 by Respondent HRS. Palm Court received no communication regarding these plans from HRS until June 10, 1983,_at which time they were denied approval with certain "comments and suggestions" attached to the denial communication. While in the process of responding to the June 10, 1983 letter of denial, Palm Court filed for a six month extension of its Certificate of Need's validity period, which was granted by HRS on June 28, 1903. Palm Court thereafter submitted its response to the "denial with comments" on June 30, 1983. On September 6, 1983 HRS communicated with Palm Court informing it that the drawings had been approved subject to additional "comments. The September 6, 1983 comments raised for the first time certain additional new items or matters HRS Plan reviewers were concerned about. The comments raised by HRS on September 6, 1983 were responded to by letter by the Petitioner on September 27, 1983. HRS rejected the proposals contained in the September 27, 1983 response letter on November 1, 1983. Thereafter, on November 28, 1983, after it had received another informal interpretation by HRS of the comments and suggestions in its September 6 letter, Palm Court responded to the November 1st HRS rejection letter. The plans ultimately were not approved by HRS until January 10, 1984. In the meantime, on December 31, 1983, the 18-month period of validity for the petitioner's CON expired. On January 19, 1984, Palm Court received a letter from HRS declaring its CON null and void as of December 31, 1983. All parties acknowledge that Chapter 100-29, Florida Administrative Code applies to the submission and approval of construction plans and that contained in these rules is the incorporation of standard publications which, at the time of Palm Court's plan review, included the "1976 NFPA Life Safety Code." Contained in this Life Safety Code are references to corridors to be contained in nursing home facilities and their descriptions and dimensions. Preliminary plans for Palm Court's project were submitted at a conference on, March 19, 1982. On April 5, 1982 the OLC denied approval of those plans with the "comment, No. A 5," which read "provide a six-foot staff corridor to med-prep." Subsequent to that April 5, 1982 letter of denial, Palm Court resubmitted the preliminary plans, making no change concerning corridors or the med-prep room. These plans were then approved by OLC subject to comment, none of which related to corridors or the med-prep room. No testimony by Petitioner or HRS has explained why comment A-5 was not mentioned either in the resubmittal of Palm Court or the approval with further comments by HRS. Due to litigation contesting Palm Court's CON entitlement and delays surrounding the hearing process, construction plans were not submitted for final approval until April 11, 1983. These plans again contained the layout for the nurses station, med-prep room and corridor as originally submitted March 29, 1982 and preliminarily approved on May 20, 1982. HRS did not respond until June 10, 1983 as mentioned above, at which time it withheld approval with comments. The comments submitted with the June 10, 1983 letter denying approval made no reference to the nurses station, med-prep room or corridor. The Petitioner responded to the June 10, 1983 comments of HRS on June 30, 1983 submitting responses to all comments raised in HRS' June 10, 1983 letter of denial. On September 6, 1983, more than 60 days after Petitioner's response of June 30, OLC responded to Petitioner's June 30, 1983 letter, this time granting conditional approval of Petitioner's final construction plans, subject to "comments." The September 6, 1983 letter however, contained a section labeled "new comments", one of which was "A-17." Comment A-17 stated: "Provide 6'-0" circulation space to Med Prep room in addition to space required to work behind nurses station. Revise plan as required. . ." Comment A-17 contained no reference to comment A 5 which had been contained in the April 5, 1982 letter from OLC to Petitioner. Comment A-17 contained no reference to any area on the drawings, HRS rules, or the 1976 Life Safety Code. Mr. Levin, the Petitioner's architect and drafter of Petitioner's plans, made numerous attempts to contact personnel at OLC after the September 6, 1983 letter to learn what would be required to satisfy comment A-17. He was given to understand that only an explanation of the med-prep room was required to satisfy comment A-17. He learned that in a conversation with Mr. Joseph Alcure of the OLC. Mr. Levin also informed Mr. Alcure that an exact duplicate of the plans had already been submitted and finally approved without comment to construct a similar nursing home in New Port Richey, Florida. The New Port Richey facility was nearly completed as of the time of this hearing. In spite of Petitioner submitting a response on September 27, 1983 referring to the fact that the New Port Richey facility had already been approved with a duplicate set of plans, on November 1, 1983 the OLC again gave petitioner only conditional approval with comments again, including comment A-17, without definitive explanation. The reassertion of comment A-17 in the November 1, 1983 conditional approval letter was as follows: "Respond correctly to the previous comments. 6'0" is required in addition to the required 100 square foot nurses station." Petitioner's architect, Mr. Levin, again made repeated attempts at clarification of what this meant. He eventually was contacted by OLC's architect, John DeLoe, on or about November 21, 1983. Mr. DeLoe finally explained the problem to which he had been referring, namely that he interpreted the Life Safety Code (which all parties agree is applicable to the issues and facts of this case) to mean that the space behind the nurses station "counter" was corridor or exit access because the med prep room was required to open onto a six-foot corridor. Mr. DeLoe suggested that the problem could be solved by reversing existing plans to the extent that the nurses lounge and the med prep rooms would be exchanged in the positions they occupied on the plans and ultimately as they would be built. The Petitioner made the suggested revisions and submitted the final set of plans incorporating this change on November 28, 1983. The OLC finally approved that November 28, 1983 submission without comment on January 10, 1984. There was significant confusion between the Petitioner and HRS as to what the comment concerning the six-foot corridor space, into which the med-prep room was required to open, actually required. There was conflicting testimony by representatives of both petitioner and Respondent concerning the application of the Life Safety Code to the condition referred to by OLC as "A-5" in the April 5, 1982 letter and "A-17" in the letters dated September 6, 1983 and November 1, 1983, concerning the "flip-flop" of the med-prep room's location and the nurses lounge location. The provisions of the Life Safety Code raised by the petitioner and Respondent are vague and it is difficult to determine whether the six-foot requirement actually exists. Mr. Bruce Sharp, project manager for the construction of Palm Court Nursing Center, testified on behalf of petitioner. Mr. Sharp moved to St. Petersburg, Florida in August, 1983 to manage the development of the project. Mr. Sharp began taking bids and doing visual site work immediately after his arrival at the construction site. As a result of engineering studies performed, he determined that the site was too low in elevation, which could cause flooding. Because of this, on or about October 29, 1983, another site was selected at which Mr. Sharp continued his work of selecting subcontractors and vendors to develop the project. Mr. Sharp did not have to begin work entirely anew, however, and engineering previously performed was transferred to the new site to the extent applicable. Because of the higher elevation at the new site, it was far more suitable for the project than the original site had been. As part of his site preparation, Mr. Sharp had numerous discussions concerning acquisition of a building permit for the project from the Plant City Building Department. These discussions began in mid-September, 1983 and continued until a foundation permit ultimately was secured on December 29, 1983. Initially the Building Department was reluctant to issue the permit because of the proposed municipal annexation and improper zoning of the new building site. These problems were resolved on or about November 1, 1983. Mr. Sharp, at that point, could have taken an approved set of construction plans to the Plant City Building Department for their review and could have had a permit issued. However, he did not yet have an approved set of plans from HRS. Thus, the Plant City Building Department refused to issue any type of building permit at that time. Upon failing to get a full building permit because he did not yet have an approved set of construction plans, Mr. Sharp attempted to obtain a foundation permit so that he could operate within the local building code and commence construction and thus be able to comply with his 18-month deadline with HRS. Efforts to obtain a foundation permit from the Plant City Building Department were not initially successful, but finally, after a great deal of difficulty, he was able to obtain a "foundation only" construction permit, after he was able to convince the director of the Building Department that an approved set of construction plans was imminently forthcoming from HRS. In the meantime, Mr. Sharp had tentatively scheduled a subcontractor to pour concrete and commence construction prior to December 31, 1983. The concrete could not legally have been poured prior to December 29, 1983 because the foundation permit (nor a full building permit) had not been secured before that date. Between December 29, 1983 and December 31, 1983, concrete could not actually have been poured because of the physical condition of the site having deteriorated due to severe rains. Concrete was eventually poured on January 10, 1984 and continuous construction work was performed until and including January 19, 1984 when the OCMF notified the principals of the project that the CON was considered "terminated." There is no question that the building permit could have been obtained from the Plant City Building Department and the necessary concrete and steel could have been erected to conform with the statutory definition of "commence construction" prior to December 31, 1983 if the Building Department could have been supplied plans approved by the Office of Licensure and Certification "without comment." The dispute concerning the OLC approval of the plans concerned the location of the med-prep room and the nurses lounge. If the Petitioner could have obtained a permit from Plant City to pour the foundation based on the construction plan "approved subject to" comment A-17, then later was required to flip-flop the two rooms, several problems would have arisen. This would not be merely a cosmetic change. If the Petitioner had obtained a building permit from the Plant City Building Department based on construction plans approved subject to that comment and then later was required to actually flip-flop the two rooms, the concrete slab involved would have to be removed, the electrical work removed and the plumbing removed. Concrete would be removed in order to relocate a doorway into a corridor and to relocate certain engineered structural posts required to bear the weight of the four-ton air conditioning unit on the roof. The electrical wiring would have to be reworked since the decision had been made, pursuant to an option in the project 7 specifications, to locate the wiring underground in the interest of limiting electrical exposure to patients. The plumbing would require removal which also involves destroying the concrete slab in order to reinstall the plumbing for the changed location of the two rooms. The air conditioning unit was shown to be most efficient when located above the nurses station because that permits locating the monitor or thermostat in close proximity to the nurses station and away from the patient corridor. The Respondent HRS presented, through Mr. Richard Rosenvold, its architect supervisor, an informal, unpublished non-rule policy to the effect that an applicant can request a letter from HRS authorizing the issuance of a "foundation only" permit and that this would be in compliance with the statute cited above. Admittedly, however, constructing under such a "foundation only" permit would be at the applicant's peril if the conditional comments of HRS, when ultimately complied with, would affect the structural foundation of the building. There is no question that the comment A-17 concerning the "flip-flop" of the two rooms clearly affected the foundation, the electrical and plumbing installations and so forth. Inconsistent interpretations of the Life Safety Code provisions, together with the ambiguous comments themselves, put the petitioner in an uncertain position regarding the wisdom of proceeding with construction even if it could have obtained a foundation permit. A foundation permit is not the same as a building permit. A building permit authorizes construction of the entire facility while a foundation permit only authorizes approval of the foundation or concrete and steel protruding from the ground of the site. Mr. Eugene Nelson, the Administrator of the Office of Community Medical Facilities (OCMF), testifying concerning agency policy and practice, knows of no prior case where issuance of a foundation permit has been held to fulfill the requirement of the definition of "commencement of construction" enunciated in the above statute. If the petitioner had received a foundation permit and been able to pour concrete prior to December 31, 1983, it could not have maintained continuous activity on the site, which is another requirement of the definition of "commencement of construction." A full building permit would be required to actually conduct continuous activity on the site culminating in the erection of the structure. In all likelihood, if Petitioner had relied upon Mr. Rosenvold's enunciated policy concerning a request for a letter authorizing issuance of a foundation only permit and then had obtained a foundation permit in reliance thereon and proceeded to the point of pouring the concrete slab prior to resolving the issue about the corridor and room location and dimensions, then the Petitioner would have run the risk of having to tear out part of the foundation slab because of Mr. DeLoe's suggested change. This would have placed an absurd burden on the Petitioner, merely in the interest of ensuring compliance with the 18-month deadline, especially in view of the Petitioner's good faith effort otherwise, in the course of its preparation and development of the project, to comply with that deadline. Such a course of action would have defeated the cost containment purpose behind enactment of Chapter 381, Florida Statutes. In summary, the CON holder here accomplished substantially all of the "indicia of construction", accepted in the construction industry as establishing the point when construction begins, prior to December 31, 1983. Financing was arranged, site preparation was arranged, initial site development work had begun several months before that date and, in essence, the only remaining hurdles to overcome in order to actually pour concrete were the lack of a building permit and the lack of unconditional approval of the final construction plans because of the events discussed above. It was not shown to be entirely the fault of the CON holder, the Petitioner, for failing to obtain its building permit so that it could timely start physical construction on the site before December 31, 1983, inasmuch as the building permit was denied Petitioner because of HRS' failure to approve the plans on a timely basis.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, hereby RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services providing that Certificate of Need No. 1863 for a 120- bed nursing home in Plant City, Florida, remain valid and in full force and effect. DONE and ORDERED this 18th day of December, 1984, in Tallahassee, Florida. R. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1984. COPIES FURNISHED: Robert S. Cohen, Esquire Post Office Box 669 Tallahassee, Florida 32302 Douglas L. Mannheimer, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302-3300 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact By Invitation to Bid for Lease NO. 590:1944, Respondent invited lease proposals for approximately 15,206 square feet of office space "located within the following boundaries: On the North, Aloma Avenue/Fairbanks Avenue the East, Semoran Boulevard the South, Colonial Drive, and on the West, Mills Avenue." The geographic area includes as many as 100 office buildings, although the invitation only generated three bids. The Invitation to Bid announced a Pre-Bid Conference on December 22, 1987. Interested parties were directed to contact Linda N. Treml, whose telephone number was provided, for "bid specifications and information regarding the space." The Invitation to Bid stated that "[a]ny questions concerning this project are to be directed to [Ms. Treml]" and "prospective bidders are encouraged to consult with [Ms. Treml] beforehand in an attempt to enable as correct a bid submittal as possible." The Invitation to Bid required that certain attachments accompany the bid proposal and referred the prospective bidder to paragraph 9 of the Bid submittal Form. The required attachments included a scaled floorplan "showing present configurations with measurements," net rentable square footage calculations using floorplan measurements, and a preliminary site layout. The Invitation to Bid stated that Respondent reserved the right to waive any minor informalities or technicality and seek clarification" of bids received, when such is in the best interest of the state. Responding to Respondent's newspaper advertisement and direct-mail solicitation for bids, James W. Boyle, who is a real estate broker active in leasing and property management, requested from Ms. Treml an Invitation to Bid and Bid Submittal Form. Mr. Boyle regularly reviews announcements of forthcoming leasing activity by state agencies. If he is aware of a building that appears to meet the agency's requirements, he contacts the building's owner or manager and informs him or her that he may have a prospective tenant. After receiving the bid materials for Lease No. 590:1944, Mr. Boyle contacted Kathryn Doyle, who is the leasing manager of Petitioner, and learned that Petitioner could accommodate Respondent's space needs for the term sought in the Lakeview 436 office building. Mr. Boyle assisted Ms. Doyle in the preparation of the Bid Submittal Form for Petitioner. In his first conversation with Ms. Doyle, Mr. Boyle ascertained that Petitioner's building carried a Semoran Boulevard street address and in fact had direct access to Semoran Boulevard. Petitioner's building lies on the east side of Semoran Boulevard, which serves as the eastern boundary of the geographic area described in the Invitation to Bid. Three bids were submitted in response to the subject Invitation to Bid. When they were opened, Ms. Treml and her supervisor, George A. Smith, determined that bids of Petitioner and a third party were nonresponsive because their office buildings were outside the geographic area specified in the Invitation to Bid. These bids were not considered further. Mr. Boyle had previously represented the owners of the FARE building several months earlier in a bid for Lease No. 590:1895. The Invitation to Bid in that case, which was issued by Respondent and named Ms. Treml as the contact person, provided that the proposed office space must be located within the following boundaries: Beginning at the intersection of US 17-92 and Colonial Drive, then west on Colonial Drive to the intersection of Edgewater Drive, then north on Edgewater Drive to the intersection of Kennedy Blvd. . ., then east on Kennedy Blvd. . . . to the intersection of US 17-92, then south on US 17- 92 to the point of beginning." Although Mr. Boyle's client was not awarded Lease NO. 590:1895 for reasons not relevant here, his client's bid, as well as the bid of another unsuccessful bidder owning a building on the east side of the highway serving as the east boundary of the geographic area, were considered responsive and thus within the specified geographic area. Ms. Treml interpreted the boundary description in Lease NO. 590:1944 differently from the boundary description in Lease NO. 590:1895. The description for Lease NO. 590:1895 defined the boundaries by "beginning" at a certain intersection, then proceeding "on" a highway, and so on. The description for Lease NO. 590:1944 defined the boundaries by identifying landmarks "on the north," then the "east," and so on. At the time of assisting in the preparation of Petitioner's bid, Mr. Boyle was also aware of an Invitation to Bid issued by Respondent for Lease NO. 590:1875. In this case, Respondent specified office space "in the following area of Brevard County, Florida: Beginning at the intersection of U.S. Highway 1 and State Road 50, then West on SR-50 to the intersection of 1-95, then North on 1-95 to the intersection of SR-406 . . . then East on SR-406 to the intersection of U.S. 1, then South on U.S. 1 to the point of beginning." In the case of Lease NO. 590:1875, the bid contact person, Lynn Mobley, issued a clarification letter stating that any building located on either side of the boundary road with an address on the boundary road would be considered to be within the boundary. Ms. Mobley and her supervisor, Ernest Wilson, who are Respondent's District 7 Facilities Services Assistant Manager and Manager, respectively, have consistently advised potential bidders that a building located on a boundary highway is included in the geographic area even though it would be outside the area if the dividing line were the centerline of the highway. Mary Goodman, Chief, Bureau of Property Management of the Department of General Services, testified that, in the course of her review of leasing activities by various state agencies, she has historically guided agencies that, if a building abuts a boundary highway but is not, strictly speaking, within it, the agency "could waive that as a minor technicality and consider it a responsive bid." Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner spoke to Ms. Goodman prior to submitting the subject bid proposal. Ms. Treml customarily waives minor irregularities in bid submittals. However, she does not treat the location of a building outside the geographic area as a minor irregularity. To do so would be unfair to owners of other buildings outside the geographic area who took the geographic description at its face value and never submitted bids. Ms. Doyle received the bid materials from Mr. Boyle after the Pre-Bid Conference had taken place. However, Mr. Boyle elected not to attend the Pre- Bid Conference at which Ms. Treml explained, among other things, her interpretation of the specific geographic area. He chose not to attend because he felt that he would not learn anything relevant at the conference, which was attended by a representative of Intervenor. Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner contacted Ms. Treml prior to submitting Petitioner's bid. Mr. Boyle, whose compensation in this case is entirely contingent upon a successful bid, estimates that he spent about 20 hours working on Petitioner's bid. Ms. Doyle estimates that she spent about 40 hours working on the bid. Petitioner also spent $800 in obtaining an "as-built" drawing of the space that accompanied its proposal. By letter dated February 22, 1988, Respondent notified the bidders of its decision to award the lease contract to Intervenor. Petitioner filed a notice of intent to protest the award by letter dated February 24, 1988. Ms. Treml met Mr. Boyle and Ms. Doyle on March 1, 1988, and cited the location of Petitioner's building as the only reason for the determination of nonresponsiveness. The attempt at mediation having failed, Petitioner filed a formal written protest of the award by letter dated March 3, 1988. Petitioner attached to its bid proposal an "as-built" drawing. Although drawn to scale, the drawing did not bear the measurements of the then- present interior tenant improvements, mostly walls, nor did it disclose on its face any calculations showing how the rentable area was computed from the gross area. These omissions were due to Mr. Boyle's advice to Ms. Doyle that such information would be unnecessary in this case. The omissions from Petitioner's "as-built" drawing were rendered less critical by the fact that Respondent would have the right under the lease to require the landlord, at its expense, to remove the present improvements and re- configure the space to Respondent's demands. However, one purpose of the floorplan is to show where the space is located within the building. Another purpose is to verify the rentable area calculation by showing the measurements of items, such as restrooms, that should not be included in the rentable area for which Respondent is charged rent. The drawing is supposed to show the rentable area computation. Additionally, even though Respondent could insist on a total renovation of the premises, Respondent might wish to evaluate whether it could use a portion of the existing space in order to reduce the possibility of construction delays. George A. Smith, the Senior Management Analyst for Respondent who reviewed Ms. Treml's determination of nonresponsiveness prior to the award of the subject lease, testified that the deficiencies in Petitioner's "as-built" drawing were not a "minor irregularity."
The Issue The issue in this case is whether the Respondent, the Department of Labor and Employment Security, acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting the bid of the Petitioners to lease office space to the Respondent on the ground that the proposed space was not "dry and measurable" at the time of the bid.
Findings Of Fact The bid specifications in the solicitation by the Respondent, the Department of Labor and Employment Security (DLES) for its Lease No. 540:0977 (office space in Orange County) required that proposed space be in an existing building "dry and capable of being physically measured to determine net rentable square footage at the time of bid submittal." The requirement that proposed office space in response to Lease No. 540:0977 be "dry and measurable," as described in the preceding finding, is a long-standing, standard requirement found in the bid specification form developed by the Department of Management Services (DMS) (formerly the Department of General Services (DGS)) for use by all agencies of the State of Florida. DMS' (and, formerly, DGS') long-standing interpretation of the "dry and measurable" requirement in the standard bid specification form is that the building must have a roof and walls, with windows either in place or covered over so that the building interior stays dry in adverse weather conditions. In response to the DLES solicitation for bids for its Lease No. 540:0977, the Petitioners submitted a bid for space in a former Publix strip shopping mall, formerly known as the Northgate Shopping Center, located at 5023 Edgewater Drive, in Winter Park, Florida. At the time of the bid, the mall was unoccupied and in the process of being renovated and was a designated construction site. The building had been gutted, and the glass in the front of the building had been removed. The glass could be referred to as "windows" but actually would make up the top two-thirds of the front wall of the building. As a result, without the glass, the front "wall" consisted of a three to four foot rise of concrete blocks, and the front of the building was otherwise open. There was a 12-foot, eight-inch overhang over the front "wall," but wind-blown rain could enter the building, and apparently did. (There was standing water on the floor of the gutted building. There also were missing or unsecure doors along the back wall of the building.) When Susan Early, the DLES employee in charge of the bid solicitation, received the Petitioners' bid and saw the photographs of the building required by the bid solicitation, she questioned whether the building was "dry and measurable." To help answer her question, she asked another DLES employee, who was located in the Orlando area, to go to the site, take pictures, and send a report of her findings, together with the photographs. The report and photographs indicated to Early that the building was not "dry and measurable." But, instead of relying on the information she had, she sent another, Tallahassee-based DLES employee to the site and received confirmation of her understanding as to the condition of the building. She then contacted Mary Goodman, the person at DMS who had the most experience in the area of soliciting and evaluating bids of leased office space, and who ultimately would be responsible for approving the DLES lease. Goodman advised Early that the DLES should reject the Petitioners' bid as non-responsive because it was not "dry and measurable." The DLES also rejected, as being non-responsive, the only other bid received in response to the bid solicitation. In the Final Order, The Koger Company v. Div. of Admin. Hearings, DOAH Case No. 88-3357BID, entered September 21, 1988, the Division of Administrative Hearings rejected a bid as not offering "dry and measurable" space because the building "had a roof, a slab, and walls, which comprised 50 percent of the vertical plane from the slab to the roof." The bidder's argument that the building "had a four foot overhang" and that "the overhang prevented rain from entering the building" was rejected as not being credible "given the large amount of window space which was not enclosed." The winning bid, which was upheld as being a "dry and measurable" was an abandoned bowling alley that "had walls, a slab, and portions of the exterior walls were boarded over, possibly in the location of existing windows or window openings. The roof did have a hole, which was approximately three feet in length and allowed water to leak into the building." (Citations to the record omitted.) The facts derived from the Final Order, The Koger Company v. Div. of Admin. Hearings, supra, do not in themselves prove that the DLES acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting the Petitioners' bid. Although the Petitioners' bid in this case was for a building that once had a certificate of occupancy, the Petitioners' bid in this case is more similar in other respects to the rejected bid than the successful bid in the Koger Company case. For example, like the rejected bid in the Koger Company case, the Petitioners' bid had partial exterior walls. The Petitioners proved that they also submitted a bid for the lease of office space in the Northgate Shopping Center in response to a bid solicitation by the Florida Department of Corrections (Parole and Probation Commission). The bid was evaluated, along with others, and the lease was awarded to another bidder. It can be inferred from this that the Department of Corrections made a determination that the Petitioners' bid was "dry and measurable." However, those facts alone do not prove the DLES, in this case, acted fraudulently, arbitrarily, illegally, or dishonestly. They only would prove that the two agencies interpreted the phrase "dry and measurable" differently. There also was evidence that the Department of Health and Rehabilitative Services (HRS) interprets the phrase "dry and measurable" differently than DLES does. But it was not proven whether HRS would have accepted a bid for space having the characteristics of the Petitioners' bid. The Petitioners argued persuasively from the evidence presented that the requirement that bid space be "dry," as interpreted by the DMS and the DLES, can be impractical when applied to the real world of building renovations and may exclude possible good lease opportunities. Sometimes, space in a building under construction or substantial renovation can be leased at lower rates. Presumably for that reason, the Department of Corrections (Parole and Probation Commission) and HRS interpret the requirement differently. But, given the requirement that bid space be "dry," it cannot be said that the DLES acted fraudulently, arbitrarily, illegally, or dishonestly in rejecting the Petitioners' bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Labor and Employment Security, enter a final order rejecting the bid of the Petitioners to lease office space to the Department in Winter Park, Florida, Lease Number 540:0977. RECOMMENDED this 9th day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 9th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3922BID To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. It should be noted, however, that the missing "windows" in front made up approximately two-thirds of the front wall of the building. Rejected as not proven, according to the DLES interpretation of the "dry and measurable" requirement, that the bid space was "existing." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. It should again be noted that the missing "windows" in front made up approximately two-thirds of the front wall of the building. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected in part as not proven, in part as argument, and in part as irrelevant. It also should again be noted that the missing "windows" in front made up approximately two-thirds of the front wall of the building. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. In part, rejected as irrelevant and not proven. (Evidence as to the HRS manual and related facts was excluded as being irrelevant.) The rest is accepted but largely subordinate and unnecessary. Irrelevant and unnecessary. (It was established at the hearing that the Petitioners' bid was rejected only because the bid space was not "dry"; DLES does not contend that it was not "measurable.") Accepted but subordinate and unnecessary. In part, irrelevant, subordinate and unnecessary (what Mr. Taylor's definition is.) In part, cumulative. In part, rejected as argument. In part, accepted and incorporated (that the requirement that bid space be "dry," as interpreted by the DMS and the DLES, can be impractical when applied to the real world of building renovations and may exclude possible good lease opportunities.) Rejected as irrelevant and unnecessary. (Assuming it acts consistently from case to case, an agency's choice not to waive technicalities cannot be called "acting fraudulently, arbitrarily, illegally, or dishonestly.") Rejected as being argument and as not proven. Respondent's Proposed Findings of Fact. 1. Except for the number of square feet, which is in error, accepted and incorporated. 2.-5. Accepted and incorporated. 6. Rejected as contrary to the findings of fact and the greater weight of the evidence that there were no walls in front. (They extended only about a third of the way up to the ceiling.) 7.-8. Accepted and incorporated. 9. Accepted but subordinate and unnecessary. COPIES FURNISHED: Alan Taylor 170 East Lake Elbert Winter Haven, Florida 33881 Edward A. Dion, Esquire Assistant General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle South East Tallahassee, Florida 32399-2189 Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle South East Tallahassee, Florida 32399-2152 Cecilia Renn, Esquire Chief Legal Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle South East Tallahassee, Florida 32399-2152
The Issue Whether the Respondent, School Board of Broward County, Florida (Respondent or Board), may reject all bids as proposed for Bid No. 2002-02-FC, Group A1, or whether such action is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact The Respondent is the entity charged with the responsibility of governing the public schools within the Broward County School District. As such, the acquisition of school properties and attendant improvements fall within the Board's legal authority. These cases involve the procurement of relocatable buildings suitable for classroom purposes. Pursuant to its authority, on or about December 27, 2002, the Respondent issued a bid that is the subject matter of the instant challenge. The bid, identified in this record as Bid 2002-02-FC, sought proposals for the procurement of district-wide relocatable buildings. In a prior time these buildings were known as "portable classrooms" or "portables." In the post-Hurricane Andrew world, these structures are now pre-engineered and constructed of concrete or steel (or a hybrid of both) and must be, by design, capable of being relocated to various sites. The Petitioners, Royal and Padula jointly, and the Intervenor, James B. Pirtle Construction Company, Inc. (Pirtle or Intervenor), design, construct, and install such structures. In these cases the bid sought several distinct proposals. First, the project sought vendors who would provide and deliver concrete relocatable buildings (Group A1). Group A2 (not at issue in this proceeding) sought steel relocatable buildings. Group B (also not at issue in the instant case) sought site adaptation prices for landscaping, lighted covered walkways, steps, ramps, and other engineering incidental to the installation of the buildings. The advertisement for the bid carried the same generic information as to all groups. The bid documents also contained many terms that were applicable to all groups. Pertinent to the issues of these cases are the following excerpts from the bid document (Joint Exhibit 2). The order of the excerpts should not suggest any significance. The excerpts are listed in this manner solely for convenience sake: BASIS OF AWARD In order to meet the needs of the school system . . . each Award will be . . . up to three responsive and responsible bidders meeting specifications, terms and conditions. Individual projects will be issued . . . based upon lowest cost among one or more bidders per project as determined by the project manager. Therefore, it is necessary to bid on every item in the group, and all items in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on Document 00410 Bid Form. SBBC [the Respondent] reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) work may be issued to multiple contractors if in the opinion of The School Board of Broward County, Florida or its staff the work cannot be completed by a single contractor in the specified time such as a Summer, Winter or Spring Break or if it is in the best interest of SBBC to do so regardless of reason. ARTICLE 4 BIDDING PROCEDURES 4.01 FORM AND STYLE OF BIDS A. Bids shall be submitted on forms identical to Document 00410, Bid Form, and other standard forms included with the Bidding Documents. The following documents are required to be submitted with the Bid: * * * SIGNED SEALED ARCHITECTURAL AND ENGINEERING DESIGN DRAWINGS OF THE STRUCTURES TO BE PROVIDED (FOR RELOCATABLE BUILDINGS BID ONLY) 5.03 REJECTION OF BIDS AND IRREGULAR PROPOSALS * * * The Owner shall have the right to reject any or all Bids, reject a Bid not accompanied by a required bid security, good faith deposit, or by other data required by the Bid Documents, or reject a Bid which is in any way incomplete, irregular or otherwise not Responsive. The Owner may waive any formality in the bid requirements and award or not award the contract in the best interests of The School Board of Broward County, Florida. (Emphasis in original not shown) In addition to the foregoing, the bid documents contained detailed and specific design criteria that set forth information such as the slope of roofs, the roof spans, the mechanical systems, ventilation, plumbing, windows, and stoops. These design criteria covered hundreds of topics and encompassed virtually every facet of the structures. To review each bid proposal as to whether each design specification was met would require countless man-hours. The issue of how to review the bid proposals was not adequately anticipated by the Respondent. From the outset the bid document evolved from unusual circumstances. Whether the bid document was intended to be a request for proposals (RFP) or an invitation to bid (ITB) was a primary confusion among the Board's staff. If the proposals were to be deemed responsive or not and then ranked solely on price (thus making the bid process more like an ITB) how could staff effectively determine the threshold question of responsiveness? If the proposals were to be ranked based upon a point or qualitative approach (more like an RFP) where were the criteria by which to score the proposals? In fact, there were no objective criteria disclosed in the bid document by which a proposal could be evaluated. More curious is that no bidder brought this lack of evaluation criteria to the Board's attention during the mandatory bidder's conference. Moreover, no one challenged the bid specifications. Presumably, the bidders believed it was an "all or nothing" award. That is, if they were the lowest responsive bidder, they would receive the award. The question of who would be responsive and how that decision would be resolved did not come to light until after the bids had been opened. At the mandatory bidders' conference conducted on January 14, 2003, the bidders posed questions in the form of requests for information. In response, the Respondent issued six addenda intended to cover the questions posed. None of the responses addressed how the bid proposals would be evaluated. If anything, Addendum No. 3 added to confusion related to what documents must be submitted with the bid proposal. More specifically, Addendum No. 3 provided, in pertinent part: [Addendum 3, question and response to inquiry] 9. Can schematics be submitted with the bid instead of the signed and sealed architectural and engineering design drawings of the structures that are requested in Document Article 4.01.A.6? Response: Signed and Sealed Architectural/Structural Drawings are required to be submitted with the Bid. The Requirement for Mechanical and Electrical signed and sealed drawing is waived, however all engineering associated with the Relocatable Buildings will require engineer of record signed and sealed drawings and calculations prior to issuance of building permit DRC review. Nevertheless, when the bid proposals were opened on March 4, 2003, the Petitioners and the Intervenor were found to be the three lowest bidders. If responsive, the Intervenor would be considered the lowest bidder with the Petitioners being considered alternate vendors for the procurement. Unsatisfied with the preliminary determination that the Intervenor was the lowest bidder, the Petitioners timely challenged the bid award. The Petitioners maintained that the Intervenor had not timely provided sealed design drawings as required by the bid document. Petitioners argued that the Intervenor had attempted to impermissibly amend their proposal by late-filing a set of structural drawings for the bid. Thus the initial bid protest sought to determine what design drawings were required by the bid and whether the Intervenor had timely supplied such drawings. The Petitioners contended that the Intervenor's submittal should be rejected as non-responsive to the bid. Whether they had complied with the full dictates of the bid requirements was potentially at issue as well. While the initial bid protest was referred to the Division of Administrative Hearings and scheduled for formal hearing, the parties continued to attempt to resolve the issues. It was apparent that the bidders had not submitted identical proposals. How the proposed products had been compared and evaluated was difficult to determine. From the Respondent's committee members came the disclosure that the decision of determining whether the bidders had complied with the bid ultimately came from three fashioned questions. If the structure proposed was pre- engineered, relocatable to various sites, and suitable for educational purposes, the entry was deemed responsive. Based upon this assessment the Petitioners and the Intervenor were deemed responsive and their bids ranked based upon price. This approach did nothing to discern if the designs were comparable in quality, if they met the bid design criteria, or if the drawings were even sufficient to comply with the dictates of the bid. The first posting of the bid award for Group A1 was entered March 18, 2003. On March 21, 2003, the Petitioners timely filed their notices of intent to protest the award of Group A1 to the Intervenor. Thereafter they timely filed the petitions to protest the award and the initial protest was forwarded to the Division of Administrative Hearings. The protests did not encompass Group A2 or Group B. No bidder protested the proposed awards for Group A2 or Group B. In fact, the Respondent went forward on those procurements and awarded contracts for those groups on April 1, 2003. The Respondent did not award the contract award for the Group at issue in this proceeding. It must be noted that the instant procurement is not the Board's first experience with the procurement of concrete relocatable classrooms. In fact, the Board has purchased similar structures through a procurement contract that the Palm Beach County School Board holds with its vendors. One of the Respondent's concerns when the instant bids were reviewed was why the cost per unit for the bids in this case was higher than the Palm Beach County amount. As it turned out, the installation economy of multiple units at one site directly impacts the cost of the relocatable structures. Royal confirmed this information after the bids had been opened. When the Respondent's staff met with its counsel in preparation for the initial bid dispute (before the Board elected to reject all bids) the cost of the bid, the lack of full evaluation of the bidders' proposals, and the issues of the first protest were openly discussed. By that time any irregularities with the bid documents could not be repaired as to the contracts already awarded, but as to the instant matter the Respondent could revisit the circumstances and determine its best course. As a result of that reassessment, the Respondent elected to reject all bids regarding this group and attempt to re-bid the procurement with more certain terms. To that end on May 9, 2003, the Respondent issued a revised bid decision that provided in pertinent part: The Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on June 3, 2003, reject all bids received for Group A1 and authorize revising the bidding documents and re-bidding. The rejection of all bids received for Group A1 is made due to serious flaws and ambiguities contained in Document 00200 4.01.A-6 as modified by Addendum No. 3. The Division intends to revise the bidding documents to delete the requirements that bidders submit plans with the bids; include ranges of unit quantities within the bid form; include one or more additional types of construction of the classroom buildings including a composite concrete/steel structure; and incorporate within the new Invitation to Bid all revised terms and conditions that were released through addenda in this procurement. The Petitioners timely filed protests regarding this new decision by the Board and the instant action ensued. By issuing the revised decision to reject all bids the Respondent intended to resolve all issues and to cure the perceived problem with the lack of consistent evaluation of the bidders' proposals. More specifically, the Respondent would be able to assure that the project design could comport with the specifications sought; specify whether architectural or engineering drawings were required and when (it was hoped that the confusion over "architect" vs. "engineer" could be eliminated); and obtain a substantial discount based upon economies from multi-unit purchases for a single site. None of the objectives sought were pre-textual or contrived. Additionally, by avoiding any process that would require a detailed reviewed of the bidders' proposals, countless man- hours could be saved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a Final Order affirming the decision to reject all bids in this matter. DONE AND ENTERED this 20th day of November 2003 in Tallahassee, Leon County, Florida. S ___________________________________ D. PARRISH 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 20th day of November 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Usher Larry Brown, Esquire Brown, Salzman, Weiss & Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Steven L. Schwarzberg, Esquire Schwarzberg & Associates Esperante, Suite 210 222 Lakeview Avenue West Palm Beach, Florida 33401 Thomas R. Shahady, Esquire Adorno & Yoss, P.A. 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
