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RANGER CONSTRUCTION INDUSTRIES, INC. vs DEPARTMENT OF TRANSPORTATION, 15-005535BID (2015)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Sep. 30, 2015 Number: 15-005535BID Latest Update: Dec. 22, 2015

The Issue The ultimate issue presented in this part of the bifurcated proceeding is whether the Petition should be dismissed as an untimely protest to the RFP specifications. Subsidiary issues presented are whether any such timeliness defect could be cured by allowing Petitioner to amend its Petition, and whether the points of entry provided to Petitioner with the RFP, as amended, were ineffective to operate as clear points of entry because Respondent did not also post the RFP and addenda amending the RFP on the MyFloridaMarketPlace vendor bid system.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Formal Written Protest be DISMISSED. DONE AND ENTERED this 20th day of November, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2015.

Florida Laws (12) 11.12, 120.53, 120.569, 120.57, 120.68, 287.012, 287.042, 287.055, 287.057, 288.703, 337.11, 337.251

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CRAIG A. SMITH AND ASSOCIATES vs. DEPARTMENT OF TRANSPORTATION, 86-000892BID (1986)

Division of Administrative Hearings, Florida Number: 86-000892BID Latest Update: May 14, 1986

Findings Of Fact Background On January 18, 1985, respondents Department of Transportation (DOT), gave notice through the Florida Administrative Weekly to qualified and interested engineering firms that it desired "letters of interest" from firms interested in providing construction, engineering and inspection (CEI) services on State Job Nos. 87170-3525 through 871703530. 1/ Those jobs related to the construction of two major double leaf bascule bridges across the Intracoastal Waterway "flyover" bridge connecting State Road 826 (N.E. 163rd Street), A1A and continuous roadway sections in northern Dade County, Florida. The project is more commonly known as the Sunny Isles Causeway project. After receiving and evaluating ten letters of interest, a DOT selection committee compiled a "short-list" of the four engineering firms considered most qualified and capable of performing the job. The short-list included petitioner, Craig A. Smith and Associates (petitioner or CAS), Beiswenger Hoch and Associates (BHA), Post, Buckley, Schuh and Jernigan (PBSJ), and Reynolds Smith and Hill (RSH). The four consulting firms were invited to a scope of services meeting on October 14, 1985. At that meeting DOT discussed in detail the services required on the project, answered all inquiries by the firms' representatives, and provided each firm with the scope of services package, which contains the technical specifications and plans. The firms were also given DOT's recommended staffing chart which identified the individuals required on the job and the anticipated man-months required from those personnel. According to DOT's recommended staffing plane the project would require approximately 105,070 man hours. It was emphasized that this staff chart would be used as a "critical" measuring tool to evaluate the proposed staffing plans submitted by the firms, but that the firms would have an opportunity to change the number of man hours if such were necessary. The four firms were told to review the specifications and plans and to submit separate technical and price proposals with DOT no later than November 12, 1985. As a part of the technical proposals the firms were required to estimate the man hours to be provided on the project, keeping in mind the 105,070 figure utilized by DOT in its plans and specifications. The man-hour estimates submitted by the four firms were as follows: BHA 66,011 CAS 74,800 RSH 83,214 PBSJ 97,328 After receiving the technical and price proposals an evaluation of the technical proposals was begun by personnel at both the Miami district office and the Tallahassee central office. The two reviews were conducted independently and without the benefit of the price proposal. The district review committee was made up of three district employees while the central office review was made by a construction engineer. Each firm was numerically ranked based upon the firm's (a) technical plan, (b) management plan, (c) project schedule, and (d) "other" factors. In determining the scores, the Miami and Tallahassee offices used an internal written DOT "procedure" which provides guidelines for evaluating a CEI technical proposal. After the grades were assigned, they were totaled and the firms were ranked according to their scores. The two grades were then averaged on a weighted average basis by DOT's Bureau of Contractual Services. The districts central office and weighted average scores were as follows: Firm District Central Office Average RSH 71 74 74 PBSJ 72 54 63 BHA 62 59 62 CAS 61 57 59 The firms were also ranked in accordance with their price proposals. The following price bids were made by the four firms: CAS $2,129,105 BHA 2,136,417 PBSJ 2,862,929 RSH 2,978,462 It is noted that DOT initially estimated its cost for the CEI services to be $3,033,873. All firms were below this estimate. The grades and comments were forwarded to the office of the state construction engineer. Under his supervision, the two sets of comments and scores were "merged" together into a single recommendation as to which firm was the most qualified to perform the work. This recommendation, which was in the form of a memorandum was then forwarded to the chief of the Bureau of Contractual Services on January 9, 1986. In his memorandum the state construction engineer pointed out that although RSH and PBSJ were both technically qualified, he favored RSH for the project. The memorandum also recommended that neither CAS or BHA "be considered" for the work. The adverse recommendation for CAS was based upon its "inadequate staffing" estimates (some 30,000 man hours less than the DOT estimate), and its proposed resident engineer not being registered as a professional engineer in Florida. A selection committee made up of DOT's secretary, assistant secretary and deputy assistant secretary met on February 10, 1986, to make a final selection. The state director of construction (Murray Yates) was also present for the purpose of giving his recommendation to the committee. In preparing his recommendations Yates reviewed public hearing documents and studies relating to the project, and analyzed the DOT evaluation data and the CEI proposals. He also had discussions with both the district and central office personnel who originally evaluated the proposals. Finally, he relied upon his own experience as the DOT design engineer for the project. Prior to their meeting the members were furnished copies of the staff comments and the technical and price proposals of the four firms. At the first meeting, it was agreed to postpone the decision until February 17, 1986, so that the staff could reevaluate the number of man hours needed on the project. As a result of the further staff study, DOT revised its estimated man hours required on the job from 105,000 to approximately 95,000. At the second meeting PBSJ was tentatively selected as the successful firm subject to the Federal Highway Administration's (FHA) approval. The latter approval was necessary since the project is federally funded and PBSJ did not have the lowest price proposal. According to committee notes, PBSJ was selected because of its "sound technical plan for the project," its familiarity "with basculate construction, having provided similar services on the Miami River crossing," "inadequate" staffing requirements having been proposed by CAS and BHA and their lack of experience on bascule construction, and because the top technical firm, RSH, did not propose a fee acceptable to the selection committee." On February 18, 1986, DOT advised petitioner by letter that it "was not selected to provide engineering services on the above referenced project." No reason was given for rejecting petitioner's proposal. However, DOT orally advised CAS that its rejection was based upon inadequate man hours and the lack of qualifications of CAS personnel. Further, in a letter to the FHA dated February 19, 1986, DOT noted that CAS had been rejected because (a) CAS "did not propose adequate manpower to satisfactorily perform the services," (b) its "staffing plan did not provide the expertise desired" for the project, and (c) CAS has no "demonstrated proven ability in the performance of CEI services for the construction of bascule bridges in Florida." The federal agency gave its approval of PBSJ's selection on a later undisclosed date. There was no published notice of the meetings on February 10 and 17, 1986, nor was specific notice given to the four firms. However, there was no intent to bar any persons from attending the meetings, and had any appeared, they would have been permitted to observe the meetings. There is no indication of record that CAS made any inquiry to DOT as to when such meetings would take place, or that it be given notice of any meetings. No formal minutes of the meetings were kept. In accordance with DOT procedures, CAS was allowed to attend a "settlement meeting" with DOT personnel after the bid protest was filed. Such a meeting gave CAS the opportunity to discuss its proposal and presumably to seek DOT to change its mind. However, DOT did not change its position, and this proceeding followed. The Project Requirements DOT required an outside consultant on this project for additional expertise and manpower. The CEI contract calls for the consultant to administer construction activity by inspecting the work of the contractor. By having the work inspected DOT insures that it will receive the type and quality of work necessary to satisfactorily complete the job. The Sunny Isles Causeway project is considered to be a major project by DOT and was characterized by its state director of construction as being an "extremely complex project." Among other things, it involves the construction of two bascule bridges. A bascule bridge is one that can be raised or lowered to allow boat traffic to pass underneath. The total project cost is approximately $24.4 millions and will require 1,365 calendar days (or almost four years) for completion. The six jobs and their respective contract numbers are the west bound roadway and approach (87170-3525), Casino Canal work (87170- 3526), fly over bridge and roadway (87170-3527), east bound roadway and approach (87170-3528), west bound bascule bridge (87170-3529), and east bound bascule bridge (87170-3530). Despite some assertions to the contrary, it is found that the construction of a bascule bridge is indeed complex in nature. In addition, the Sunny Isles project is unique in the sense that the contract calls for the existing bridge to be demolished and removed, and the new bridge to be placed in the same location. The existing foundation will be widened and incorporated into the foundation of the replacement bridge. Further some of the major utilities crossing the intracoastal waterway, such as the 48 inch force main, will remain in place during construction and cannot be disturbed or damaged. Finally the project is located in an affluent area of Dade County, and the contractor must be careful not to infringe upon adjacent private properties. Because of these features, the successful firm would be expected to have an experienced resident engineer, and other key personnel, who was familiar not only with bascule bridge construction, but also with DOT procedures regarding contractual claims, utility problems maintenance of traffic, and interfacing with the community on any other problems that might arise. DOT's Selection Process DOT is required by state law to "adopt administrative procedures for the evaluation of professional services, including, but not limited to capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business . . . and such other factors as may be determined by the agency to be applicable to its particular requirements." In accordance with the foregoing legislative mandated DOT has informally adopted a document known as "Guidelines and Philosophy on Consultant Selections." These guidelines are set forth in an agency memorandum dated January 29, 1985, prepared by its then chief of Bureau of Contractual Services, John S. Berry, III. This memorandum has been disseminated to all district consultant coordinators. In general terms, the memorandum provides district personnel with guidelines to be used in grading the short-list firms in the various technical non-technical and management categories. More specifically, the graders are given factors to be considered and scores to be given when assessing a firm's technical ability and capability to meet time and budget requirements. Specific guidelines are also given for non-technical and non- management factors such as workload and past performance. Further guidelines are given to assess the firms' managerial skills. On October 20, 1983, DOT adopted Procedure No. 146-002 which governs the selection process for engineering consulting firms. However, the procedure has not been formally adopted as a rule. It covers everything from the initial DOT decision to use an outside consultant through the execution of the final contract. Among other things, the procedure sets forth in detail guidelines for (a) initial selection evaluation, including the duties of the requesting unit, contractual services officer and selection committee, (b) scope of services meeting, (c) technical review committee evaluations and (d) final selection evaluation. Once the proposals have reached the final selection stage, DOT procedure No. 146-002 requires that the contractual services office provide the final selection committee with a summary of all evaluations and grade point averages and the volume of work previously awarded to each firm. The committee must then review these summaries; the volume of work previously awarded the firms, the price proposals, and assign a rating factor to each firm. Although the contents of the memorandum and procedure have not been "formally" adopted as rules, there was testimony from DOT personnel explaining the purpose, meaning and contents of both. In the case at bar the agency adhered to its January 29, 1985 memorandum and procedure No. 146-002 in evaluating the various technical proposals. More specifically, the evaluation process considered each firm's capabilities personnel past record experience and other relevant factors. Prior to the selection of the successful firm DOT met with each firm including petitioner, at the scope of services meeting on October 14, 1985. At that meeting each firm was given the opportunity to ask questions, seek clarification on any ambiguous matter, and learn the specific needs of DOT. In addition it was emphasized to each firm that DOT placed special significance on the staffing plan that would be submitted by each firm. Finally, each step in the review and selection process was documented in writing by DOT, and such documents have been made available to petitioner and all other interested parties. These documents have been amplified on by DOT personnel through discovery and oral testimony at final hearing. DOT Concerns With CAS's Proposals DOT expressed several concerns with CAS's technical proposal, two of which were valid. First DOT was concerned that CAS did not propose adequate staffing and manpower for the jobs. This concern was based on staffing problems CAS is now experiencing on another pending CEI project, and the inadequate number of hours (74,800) proposed in CAS's technical plan for the Sunny Isles project. A failure to provide adequate staffing can create serious potential problems. These include inaccurate recordkeeping, loss of federal funding, contractual claims, insufficient personnel to perform all necessary tasks, a failure to adhere to public concerns, and the possibility of having to obtain another consulting firm to finish the job. In preparing the job specifications, DOT estimated that 105,070 man hours would be required from the CEI firm during the life of the project. After further evaluations this was reduced to approximately 95,000 man hours to eliminate around 10 percent of "fat" in the estimate. CAS estimated that only 74,800 man hours would be required, which was some 21 percent below DOT's revised estimate. Although the DOT resident engineer who initially prepared the 105,070 man hours estimate did not have the plans and specifications for the project when his original estimate was made, he relied upon his extensive experience and familiarity with CEI contracts in preparing his estimate. The engineer had estimated man hours on twelve other CEI contracts, utilized information from the project manager, reviewed available design data, and made a visit to the job site. These calculations were not subsequently reviewed in detail by any other DOT employee. However, the same procedure was followed by the engineer who prepared the estimate for PBSJ and he reached a comparable figure. The methodology and results thereof were not shown to be unreasonable or unreliable, and it is found that the estimates by DOT and PBSJ were both reasonable and appropriate. Three experienced CAS personnel were involved in preparing that firm's estimate, and they had the benefit of the plans and specifications in doing so. In contrast to the 173 hour manmonths used by DOT and PBSJ in their calculations, CAS "absorbed" 13 hours into its overhead and accordingly used a 160 hour man month in its calculation. It also included the project directors' man hours in its overhead cost. This results in CAS having a lower man-hour estimate for its staffing plan. Even so, CAS made no effort to determine the DOT methodology at the scope of services meeting, or to advise DOT that it was calculating man hours in a different manner. Given the low number of man hours, and CAS's problems on another pending job, DOT's concern was well- founded. DOT also expressed concern over the expertise of CAS's staff to be assigned to the job. Although the resident engineer had many years of experience as an engineer, he had just moved to Florida and had no prior construction experience in the State. There was no evidence that he was familiar with DOT procedures, which is of particular importance where a complex and sensitive project is involved. Moreover, the firm itself has never constructed a bascule bridge. Given these considerations, DOT properly found the expertise and qualifications to be less than that of the successful firm. Finally, at the initial stage of the review process, DOT personnel were concerned that CAS's proposed resident engineer was not a registered professional engineer in the State of Florida. However, this concern was unfounded since the engineer in question was granted his registration on February 4, 1986, which was prior to the final selection. The Successful Firm PBSJ is currently working on three CEI contracts for DOT. It has just successfully completed a CEI contract on a major bascule bridge project in downtown Miami which is comparable to the Sunny Isles project. The firm's proposed resident engineer has been involved on five bascule bridge projects in prior years. The firm's man-hour estimate of 97,328 was in line with DOT's revised estimate, and was prepared by the proposed resident engineer in a manner consistent with that used by DOT's estimator. Given the type and amount of experience on the part of PBSJ, and its adequate staffing plan DOT properly selected PBSJ as the consulting engineer on the project.

Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that a final order be entered awarding the contract on State Job Nos. 87170-3525--87170-3530 to Port, Buckley, Schuh and Jernigan, Inc., and that Craig A. Smith's bid protest be DENIED. DONE and ORDERED this 14th day of May 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.

Florida Laws (5) 120.57, 120.68, 287.042, 287.055, 337.105

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OLD TAMPA BAY ENTERPRISES, INC. vs DEPARTMENT OF TRANSPORTATION, 98-005225BID (1998)

Division of Administrative Hearings, Florida Filed:Tampa, Florida Dec. 01, 1998 Number: 98-005225BID Latest Update: Apr. 13, 2000

The Issue The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation ("FDOT"), acted contrary to the agency’s governing statutes, rules or policies, or the proposal specifications, in rejecting the proposal of Petitioner, Old Tampa Bay Enterprises, Inc. ("Old Tampa Bay"), to RFP-DOT-97/98-1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties (the "RFP" or "RFP 1003"), and awarding the contract to Intervenor, General Electric Industrial Systems ("GE"). GE also raises the issue whether Old Tampa Bay lacks standing because it submitted a materially false or fraudulent proposal.

Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the protest filed by Old Tampa Bay Enterprises, Inc. and awarding the contract for RFP-DOT-97/98- 1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties, to General Electric Industrial Systems. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1999. COPIES FURNISHED: Jonathan Sjostrom, Esquire Steel, Hector & Davis LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804 Brian F. McGrail, Esquire Office oif the General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Robert A. Rush, Esquire Robert A. Rush, P.A. 726 Northeast First Street Gainesville, Florida 32601 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458

Florida Laws (2) 120.57, 287.057

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BOARD OF PROFESSIONAL ENGINEERS vs. SHYAMIAL B. VIRANI, 82-000960 (1982)

Division of Administrative Hearings, Florida Number: 82-000960 Latest Update: Apr. 21, 1983

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.

Florida Laws (3) 120.57, 471.025, 471.033

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MORSE DIESEL CIVIL, LLC vs DEPARTMENT OF TRANSPORTATION, 00-001202 (2000)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Mar. 20, 2000 Number: 00-001202 Latest Update: Nov. 09, 2000

The Issue Whether Respondent, Department of Transportation (DOT), properly denied Petitioner's Application for Qualification to perform work on DOT contracts which exceed $250,000.00 pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code.

Findings Of Fact Petitioner, Morse Diesel Civil, LLC ("Morse Diesel"), is a new company created to perform heavy civil construction, in particular large road and bridge projects. Morse Diesel is owned 80 percent by Morse Diesel Civil, Inc., and 20 percent by KPG, Inc. Morse Diesel Civil, Inc., is owned by AMEC Holdings, Inc. KPG, Inc., is owned by Richard Kelly ("Kelly") and Jack Palmer ("Palmer"). Together, Kelly and Palmer have over 50 years' experience in heavy civil construction. On October 8, 1998, Morse Diesel filed an application for qualification with the Florida Department of Transportation ("DOT") to perform all classes of road and bridge work except for bascule bridge rehabilitation. Since the company was new and had not yet performed any work, the letters of recommendation provided in the application related to Morse Diesel International, Inc. ("MDI"). MDI is a large commercial construction management company owned by AMEC Holdings, Inc. Through DOT requests for additional information, Morse Diesel learned that DOT was interested in the experience of its principals and recommendations regarding their work. The work experience of Kelly, Palmer, John Zito, and Grant Ralston was provided to DOT in response to those requests. Under Rule 14-22.003, Florida Administrative Code, DOT thoroughly evaluated Morse Diesel and awarded it an Ability Score of 75 out of 100. DOT found that Morse Diesel had the necessary organization and management, adequate equipment, and a satisfactory work performance record which included an evaluation of the quality of completed work, any history of payment of liquidated damages, untimely completion of projects for which liquidated damages were not paid, cooperative attitude, contract litigations, claims, and defaults. Their score of 75 also included an evaluation of their integrity and responsibility. To date, Morse Diesel's ability score remains unchanged and in effect. On January 11, 1999, Morse Diesel was granted a Certificate of Qualification to perform all classes of work requested except major bridges and provided a maximum capacity rating of $200,000,000; that is, the total aggregate dollar amount of uncompleted work a contractor may have in progress at any time. Thereafter, Morse Diesel applied for a revised Certificate of Qualification to include major bridge classifications. DOT requested and was supplied additional information regarding the work experience of Kelly, Palmer, Zito and Ralston. DOT served a Notice of Intent to Deny the application for additional classes of work and Morse Diesel filed a request for a Section 120.57, administrative hearing. That case was dismissed as moot when Morse Diesel did not renew its Certificate of Qualification. On February 2, 2000, Morse Diesel applied for a Certificate of Qualification for all classes of road and bridge work except for bascule bridge rehabilitation. DOT denied its application on March 3, 2000. The decision to deny an application for Qualification is a very serious matter and each application is thoroughly evaluated by DOT. Less than one percent of all applications are denied. The decision to deny the February 2, 2000, application of Morse Diesel was made by the DOT pre-qualification engineer, Lewis Harper. The Notice of Intent to Deny the Application ("Notice of Intent") was written by Mr. Harper and Brian McGrail of the legal staff and identified the factual bases for the denial of the application and all the statutory and rule criteria utilized in the review of the application. Summary of Allegations The grounds for denial identified by DOT in the written Notice of Intent are: (a) a record of contract litigation, claims, uncooperative attitude, untimely completion of projects without payment of liquidated damages, and defaults by the management of Morse Diesel (Kelly and Palmer) when they worked for S. J. Groves and Sons, Inc., and Balfour Beatty Construction, Inc., on major bridge projects in Alabama, West Virginia, and Florida; (b) S. J. Groves was defaulted on the Cochrane Bridge Project by the State of Alabama; (c) Kelly and Palmer had substantial supervisory and management responsibilities for the Cochrane Bridge project and contributed substantially to the difficulties experienced by the Alabama Road Department; (d) The answer to Question 19-2 of the application regarding Kelly's and Palmer's involvement in the Cochrane Bridge project does not accurately reflect their role and is considered false, deceptive or fraudulent; (e) Kelly and Palmer had responsibility for prosecuting work and making decisions for filing claims on the Wierton-Stubenville Bridge project in the State of West Virginia and there were substantial delays and disputes over settlement of claims; (f) Kelly and Palmer were litigious and claims-oriented when they were associated with Balfour Beatty in Florida; (g) MDI is an affiliate of Morse Diesel because Norm Fornella is an officer is both companies and MDI was not listed in the application as an affiliate; (h) Morse Diesel did not advise DOT of the default of MDI; and (i) KPG is an affiliate of Morse Diesel because Kelly is an officer in both companies and KPG was not listed in the application as an affiliate. The application was not denied due to a lack of adequate experience or equipment. Although Morse Diesel listed the same affiliates in its 1998 application as it did in its 2000 application, the 1998 application was partially granted and the failure to list affiliates was not a ground for denial of the request for additional classes. Allegations (a)-(d): Record of Contract Litigation, Claims, Uncooperative Attitude, Untimely Completion of Projects and Defaults by Management of Morse Diesel The right to submit a claim is a valuable right of the contractor. If a contractor contends he/she is due additional time and money, it is common for him/her to pursue his/her claims rights. If the liability for unforeseen circumstances falls on the owner, the contractor typically pursues claims based upon the increased cost associated with the extra time and expense occasioned by the unforeseen circumstances. Kelly and Palmer have been involved in very difficult, highly technical jobs throughout their careers. It is common for these projects to involve a number of problems and related change items. Industry-wide, complex projects often involve change item costs ranging between 12 percent and 20 percent of the contract price. The Cochrane Bridge Project; Kelly's and Palmer's Involvement; and Application Question 19-2 Construction on the Cochrane Bridge was begun in 1985. Kelly was an executive vice president of S. J. Groves at the time and was also responsible for 30 or 40 other projects. At the same time, Palmer was a vice president of operations for S. J. Groves responsible for 10 to 12 projects. The project manager for the Cochrane Bridge project reported to Palmer and Palmer visited the project every two weeks, mainly to solve problems. The Cochrane Bridge was one of the first cable-stayed bridges built in the United States. It was designed by an Italian design firm and could not be built in accordance with the method of construction proposed by the designer. Moreover, each time there was a design problem, the Italian design firm had to be consulted, which took a great deal of time and caused delays. The Cochrane Bridge was designed to withstand a certain maximum load after construction was completed. The bridge, however, was undergoing greater stress while it was under construction. Consequently, disagreement ensued over the sequence of erection, whose responsibility it was to develop the erection sequencing, whether additional strengthening was needed during construction and, if so, who would pay for it. While these issues were addressed, S. J. Groves stopped work on the project. The State of Alabama requested Groves to work on other areas of the project during the down-time, but Mr. Groves refused for economic reasons. Alabama threatened to default Groves if they did not return to work. Kelly and Palmer attended several high-level company meetings where the issue of whether to continue the project was discussed by Franklin Groves, the owner of S. J. Groves, as well as the company's president and general counsel. Although Kelly and Palmer recommended that S. J. Groves remain on the project, their recommendation was overruled and a default was entered by the State of Alabama. Kelly and Palmer left S. J. Groves within 6 months of the default and formed their own company, RNE, in 1989. There is no reliable evidence that they "contributed substantially to the difficulties experienced by the Alabama Road Department" as charged in the Notice of Intent to Deny. S. J. Groves pursued litigation against the Alabama road department regarding the default and a settlement was reached. The contractor chosen to take over the job after the Groves default, filed claims of approximately $10,000,000 to $12,000,000, and also wound-up in litigation with the State of Alabama. There were thirty to forty vice presidents of S. J. Groves. Neither Kelly nor Palmer understood that they served as a corporate officer of S. J. Groves until after Morse Diesel had filed the 1998 application and were shown corporate forms filed with the Secretary of State. In response to Question 19-2 in the application, Morse Diesel stated: "Richard Kelly and Jack Palmer were denominated vice presidents of S. J. Groves, which defaulted on a job in Alabama in 1989. S. J. Groves had a number of people denominated as Vice Presidents and neither Mr. Kelly nor Mr. Palmer was at the level of management responsible for the decision to abandon the Cochrane Bridge Project. Both Mr. Kelly and Mr. Palmer recommended against abandoning the project and were overruled. They then left the company." There is no evidence which contradicts this finding. Allegation (e): Kelly's and Palmer's Involvement in the Wierton- Stubenville Project DOT presented no evidence to support its charge in the Notice of Intent that Kelly and Palmer were responsible for making the decision to file claims on the Wierton-Stubenville Bridge in the State of West Virginia and that there were substantial delays and disputes over settlement of claims. The only direct evidence is that Kelly was not involved in the preparation of claims or claims settlement on the Wierton- Stubenville project. The record is silent as to Palmer's involvement, if any. Allegation (f): Kelly's and Palmer's Involvement in Litigation and Claims at Balfour Beatty Kelly and Palmer were involved in Balfour Beatty's initial foray into the heavy civil construction business in Florida. In the early 1990's, Kelly met with DOT on Balfour Beatty's application for qualification to bid. At that time, DOT was on notice and inquired about Kelly's and Palmer's involvement in the S. J. Grove's default in Alabama. The Cochrane Bridge project was discussed in detail during a meeting held at DOT headquarters in Tallahassee. After being qualified, Balfour Beatty bid $82,000,000 on a large I-95 project in Broward County and was the successful low bidder by $1,000,000. In the beginning of the project Kelly and Palmer acquired staff and equipment, wrote purchase orders for materials, and supervised the project. On December 31, 1991, Dan White was hired as the project manager and Palmer visited the site every couple of weeks until problems on the project escalated. As the project manager, Dan White was in charge of the job and was responsible for the filing of claims. There were right-of-way problems and contaminated soil which delayed the project from the beginning. An initial design problem resulted from the project having been designed by two different design firms operating from different types of surveys. Consequently, the road was not aligned at the same elevation to match existing structures. These elevation problems shut down the project for months. None of the design, right-of-way, or soil contamination problems was the fault of Balfour Beatty. Nonetheless, DOT rejected all change items and required Balfour Beatty to file claims. A lawyer for DOT eventually became involved in the project in an attempt to settle the disputes which resulted in the preparation of Supplemental Agreement Number 73. SA-73 settled the claims up to that date, set new dates for project completion and paid money for completion by those dates. SA-73 was entered into based upon DOT's assurance that a constructibility review had been completed to make sure that the remainder of the project could be constructed in accordance with the existing plans and there would be no further design problems. However, the constructibility review was not complete and new design problems occurred immediately. The design of the parking lots was changed as they were being built. Core holes, used to determine the depth and density of the pavement had not been drilled. This caused more delays and claims. Balfour Beatty filed a lawsuit against DOT, Morrison Knudsen, the CEI on the project, and DOT personnel on site. The case was settled against DOT and its personnel for $4,750,000 and a jury awarded $4,300,000 against Morrison Knudsen. Balfour Beatty remains qualified to bid on DOT projects and was awarded a contract to build the Fuller Warren Bridge in Jacksonville. Kelly and Palmer, as consultants to Balfour Beatty, participated in preparing the bid for the Fuller Warren Bridge and that project is currently staffed with many of the same personnel who worked on the Broward County I-95 project, including the project manager, Dan White. The Broward County I-95 project was awarded on a bid of $82,000,000. DOT paid Balfour Beatty $97,000,000. The completion of the I-95 project was one to two years late and resulted in over 100 claims being filed. The Fuller Warren Bridge project was awarded on a bid of $81,000,000 and has cost to date approximately $94,000,000 to $96,000,000. None of the problems on the I-95 project were caused by Kelly or Palmer. Neither Kelly nor Palmer was involved in the preparation of the lawsuit or its settlement. ALLEGATION (g): Statements in the Application on Affiliations According to DOT's application, "The term 'affiliate' means a predecessor or successor of a contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term 'affiliate' includes the officers, directors, executives, shareholders active in management, employees and agents of the affiliate. The ownership by one business entity of a controlling interest in another business or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another." In its application for bid qualification, Morse Diesel listed Morse Diesel Civil, Inc. and AMEC Holding, Inc. as its affiliates. Morse Diesel did not identify either MDI or KPG as "affiliated companies" in response to question number 8 in the application. The application was prepared under the direction of Morse Diesel's President, Mitchell Becker who has a master's degree in civil engineering and a law degree. Based upon his interpretation of the definition, he determined in good faith that MDI and KPG were correctly omitted from the response to question 8 because neither met the criteria for "affiliate" as defined in the application. The answer to question 8 is the same in both the 1998 application and the 2000 application and DOT did not request additional information in the 1998 application related to the response nor did it list the failure to name MDI and KPG as affiliates as a ground for denial of the additional classes of work in 1999. There was a notation on page 2 of 19 in the 1998 application referring to MDI as a "sister company." The question requested letters of recommendation. Morse Diesel was a newly formed company, and did not have recommendations for projects it had completed. Instead, it supplied the recommendations of MDI. It became apparent to Morse Diesel through subsequent requests for additional information that DOT was interested in recommendations about the principals and management of Morse Diesel, not MDI. Consequently, when filing its 2000 application, Morse Diesel did not supply MDI letters of recommendation and instead provided recommendations on previous work completed by Morse Diesel personnel while associated with other companies. The only entities that are predecessor entities or have any control over Morse Diesel are Morse Diesel Civil, Inc. and AMEC Holding, Inc. KPG is not a predecessor or successor of Morse Diesel and has no ability to control it with 20 percent ownership. Similarly, MDI is not a predecessor or successor entity and has no controlling interest in Morse Diesel. There was no intent to hide the nature of Morse Diesel's relationship with MDI or KPG. The fact that Mr. Becker and Mr. Fornella are officers of both Morse Diesel and MDI is clearly stated in their résumés in the application. It is DOT's policy to deny application for misrepresentation only when it is intentional. Morse Diesel listed MDI as an affiliate in its Virginia application because the definition of "affiliate" in that application was broader and appeared to encompass MDI. Footnote 3 on page 7 of the audited financial statements refers to a transfer of funds from MDI to Morse Diesel. Mr. Becker, as president of Morse Diesel testified that the footnote in the financial statement attached to the application was a mistake. MDI has never advanced money to Morse Diesel. The advances made to Morse Diesel were made by Morse Diesel Civil, Inc. Mr. Becker as president of Morse Diesel is aware of the financial condition of the company and reviews the financial statements each month. There is no pooling of equipment or income between Morse Diesel and MDI. Allegation (h): Notice of the MDI Default Question 19-2 on page 16 of 23 of the application asks whether "any officer or partner of your organization has ever been an officer, partner or owner of some other organization that has failed to complete a construction contract?" In response to that question, Morse Diesel explained in the application that Kelly and Palmer had been associated with S. J. Groves when it defaulted on the Cochrane Bridge project in Alabama, but otherwise answered the question "no." Although Mr. Becker and Mr. Fornella are officers of both MDI and Morse Diesel, the application did not reveal the default of MDI on a project in St. Louis because the company is contesting the default and has not as yet failed to complete that construction contract; it is in litigation. There is no credible evidence that Morse Diesel or Mr. Becker intentionally omitted any information from the 2000 application. Allegation (i): See Findings for Allegation (g). Morse Diesel has demonstrated that it is competent and has experience to prosecute the work requested in the application. DOT has allowed at least one other applicant to amend its application to identify related companies as affiliates after DOT has denied certification on that basis. The résumés in the application and evidence presented at hearing reflect the work experience of the management of Morse Diesel and indicate extensive experience in heavy civil construction, including highly complex projects. The management of Morse Diesel has experience constructing all the types of road and bridges for which qualification is sought. Morse Diesel has been qualified in New Jersey, North Carolina, South Carolina, Virginia, Delaware, and Pennsylvania. Furthermore, Pennsylvania qualified Morse Diesel on the condition that Mr.Palmer remain associated with Morse Diesel and involved in any project awarded there.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Morse Diesel be permitted to supply DOT with corrections to the unintentional inaccuracies in its application and be pre-qualified in the classifications for which it applied. DONE AND ENTERED this 5th day of July, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 5th day of July, 2000. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458

Florida Laws (9) 120.52, 120.54, 120.569, 120.57, 120.60, 120.68, 337.14, 337.16, 337.167 Florida Administrative Code (5) 14-22.002, 14-22.003, 14-22.012, 14-22.014, 14-22.0141

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THE WEITZ COMPANY, LLC vs BROWARD COUNTY SCHOOL BOARD, 10-008182BID (2010)

Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Aug. 23, 2010 Number: 10-008182BID Latest Update: Feb. 18, 2011

The Issue Whether Respondent's intended rejection of all responses to its solicitation of "qualifications" from entities interested in contracting with Respondent to perform construction management at risk services in connection with a project at Fort Lauderdale High School is illegal, arbitrary, and/or dishonest, as alleged by Petitioner.

Recommendation We recommend that Facilities & Construction Management discontinue developing construction procurement packages (i.e. RFQ and RFP) for award of CM at Risk agreements when construction management services requested are associated with reused, prototypical or otherwise sufficiently developed construction documents. Kitchen/Cafeteria program data indicates that the benefits associated with the CM at Risk delivery method were not realized using prototypical designs, as the program resulted in over $24 million in avoidable fees while circumventing applicable laws and regulations. On May 10, 2010, Mr. Herrmann sent a letter to Respondent's General Counsel requesting, in light of the April 2010 Audit Report, a "legal opinion related to the award of a Construction Manager at Risk Agreement (CM) to [Petitioner] and whether such an award would comply with Chapter 1013.45(1)(c), S. and State Requirements for Educational Facilities 1999 (SREF)," given that the FHS Project (as scaled back) was then "in the design phase and Phase III 100% Construction Documents [were] being prepared." The concluding paragraph of the letter read as follows: In this project, The Weitz Company has been selected by the board and we intend to recommend award of a contract within several months. An award of a CM agreement in this case would not violate the specific audit recommendation and we believe such an award does not violate statute or SREF. Please advise whether you concur. Mr. Herrmann has since changed his opinion. He now believes (reasonably so, in the undersigned's view) that "award of a CM agreement" in the instant case would be inconsistent with the "audit recommendation" inasmuch as the FHS Project (as scaled back) now has "sufficiently developed construction documents." On May 18, 2010, Mr. Herrmann sent another letter to Respondent's General Counsel. This letter read as follows: This is to provide you with additional information relating to a request for a legal opinion regarding the award of a Construction Manager at Risk Agreement (CM) to The Weitz Company. Please also refer to the attached memos dated 10/14/09, 11/16/09 and 5/10/10. In summary, we have requested opinions based on the following: Whether such an award would comply with applicable statutes, SREF, and board policy given the extent of the changes to the scope and budget. Whether such an award would comply with Chapter 1013.45(1)(c), F.S. and State Requirements for Educational Facilities 1999 (SREF). We have recently revised the construction cost estimate as a result of current market conditions, and the project consultant, Manuel Synalovski [Associates], LLC agrees with the revised estimate. The change in the cost estimate is as follows: In the RFQ: $29,150,340 October 2009 (Change in scope): $21,770,000 November 2009 (Market conditions): $18,297,367 May 2010 (Market conditions) $16,950,000 Please advise whether we should proceed with the award or reject all bids. Respondent's General Counsel responded to neither of these May 2010, letters from Mr. Herrmann. As the parties stipulated in Admitted Fact 34, "[o]n June 15, 2010, [Respondent] approved Item J-15 during its June 15, 2010, Regular Meeting." The "Requested Action" and "Summary Explanation and Background" section of the Agenda Request Form for this agenda item (J-15) provided as follows: REQUESTED ACTION Approve the change in the delivery method from Construction Management at Risk to Design/Bid/Build and the First Amendment to the Professional Services Agreement with Manuel Synalovski Associates, LLC (MSA) for Fort Lauderdale High School, Phased Replacement Project No. 095-27-01, dated February 12, 2008. SUMMARY EXPLANATION AND BACKGROUND Scope of Work: Basic Services Amended 6/15/10: This item changes the delivery method from Construction Management at Risk to Design/Bid/Build. Demolish existing Swimming pool (Buildings 15 and 16); demolish existing tennis courts; demolish Buildings 1, 2, and 3; construct two 3-story buildings (1 administration and 1 classroom) of approximately 68,940 gross square feet combined to include administration, 3 general classrooms, 5 resource rooms, 4 science labs and related spaces, 4 ESE classroom suite, 1 business technology lab, 1 family and consumer science (ProStart) lab, 1 health occupations lab, 1 pre-law public service education lab, custodial spaces, textbook storage, and student, staff, and public restrooms. Remodel existing science building (Building 8). Construct new parent drop off and pick up areas and staff/visitor parking. Construct new student parking area on the west side of site to increase parking capacity by 92 spaces. Modify existing temporary bus loop to meet SREF, Florida Building Code and ADA Standards. ADA modifications will include barricades and covered sidewalk. Remodel existing courtyard for ADA access to gym and auditorium. MSA and the Superintendent's Negotiations Committee negotiated a total reduction in [architectural] fees from the February 12, 2008 Board approved amount of $2,021,000 to $1,683,650. This decrease in the Basic Services Fees totals $337,350 and is decreased as follows: Phase IV (Bidding and Award) by $54,357, Phase V (Construction Administration) by $269,250, and Phase VI (Warranty) by $13,743. This fee reduction is as a result of a reduction of the original scope as per Attachment 2 to the First Amendment. This First Amendment also reduces the Fixed Limit of Construction Cost (FLCC) from $29,150,340 to $16,950,000 as a result of the reduction in scope and construction costs resulting from current market conditions. The Risk Management Department and the Office of the Chief Auditor have reviewed this First Amendment. The School Board Attorney has approved this First Amendment as to form and legal content. As the parties stipulated in Admitted Fact 35, on June 30, 2010, "[Respondent] posted its Revised Recommendation[] and Tabulation for [the FHS Project, which] set forth the following recommendation": Per Article VII.A of the RFQ, based upon the recommendation of the Qualification Selection Evaluation Committee, the Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on July 20, 2010, reject all responses received for Fort Lauderdale High School Project No. P.000687. The original, intended scope of work as set forth in the original RFQ is substantially and materially different than the revised scope of work and budget in the proposed contracts and such work should be re- advertised and re-bid. This decision to "reject all responses" and "re- advertise[] and re-bid" was based on an honest and good faith exercise of discretion, intended, ultimately, to allow Respondent to receive (in the words of Mr. Herrmann) "more bang for [its] buck." As the parties stipulated in Admitted Facts 39 through 41, Petitioner timely protested Respondent's intended "reject[ion] [of] all responses." As the parties stipulated in Admitted Facts 42 through 44, after the parties had unsuccessfully attempted "to resolve the protest by mutual agreement," Respondent, at Petitioner's request, referred the matter to DOAH on August 23, 2010.

Florida Laws (19) 1010.04, 1011.01, 1011.012, 1011.06, 1013.35, 1013.45, 1013.46, 1013.61, 120.569, 120.57, 120.68, 255.05, 255.103, 287.012, 287.017, 287.055, 287.09451, 320.03, 481.229

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BOARD OF DENTISTRY vs. DENNIS SOUCEK, 82-002947 (1982)

Division of Administrative Hearings, Florida Number: 82-002947 Latest Update: Dec. 29, 1983

Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /

Florida Laws (2) 120.57, 466.028

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BAXTER`S ASPHALT AND CONCRETE, INC. vs. DEPARTMENT OF TRANSPORTATION, 83-003373 (1983)

Division of Administrative Hearings, Florida Number: 83-003373 Latest Update: May 21, 1990

The Issue Whether DOT should disqualify Baxter's bid on State Job 55320-3425, because Baxter's uncompleted work might hinder prompt completion of Job No. 55320-3425, or on account of Baxter's not being "responsible" within the meaning of Section 337.11(3), Florida Statutes (1983), or, under Rule 14-22, Florida Administrative Code, on account of Baxter's falsely certifying current capacity?

Findings Of Fact In their prehearing stipulation, the parties agreed that: Baxter submitted the lower bid on Project No. 55320-3425, on August 31, 1983. On September 19, 1983, DOT advised Baxter its bid would not be considered the lowest, responsible bid because of the failure of Baxter's to complete Job Nos. 49010-3535, 50060-3503, 49060-3508, 50030-3522, 50050-3506, 56010-3510, and 50010-3531 within the time allowed by their contract . . . . [E]ach of these projects w[a]s not completed within the allowed contract time and requests for extension of time are pending. The parties further stipulated that DOT's Bid Award Committee voted unanimously to award the job to Solomon and caused notice of intent to award Job No. 55320- 3425 to Solomon to be posted on October 10, 1983. At hearing, the parties stipulated on the record that Solomon is ready, willing and able to perform Job No. 55320-3425, and will perform, if the contract is awarded to Solomon. In Baxter's proposed findings of fact, Baxter concedes that "[t]here is no dispute that SOLOMON is a "responsible bidder?" In their prehearing stipulation, the parties also agreed that the form Certificate of Current Capacity filed by Baxter on August 31, 1983, did not list the status of the contracts it had on hand to which DOT was not a party. SPECIALTY JOB Solomon and Baxter were the only bidders on Project No. 1R-10-3 (71)198-55320-3425 (Job No. 55320-3425). The job involves light grading, installing underdrains and some small drainage structures, covering the underdrains with type III asphalt course, sealing the shoulder joint, miscellaneous asphalt and concrete paving, paving a ditch with concrete, installing guardrails, striping and marking the pavement, and grassing the shoulders on Interstate Highway 10, from Timberlane Road to a point 0.6 miles east of the intersection of I-10 and U.S. 90, a stretch of 6.903 miles, in Leon County. Installation of the underdrains would require about 300 tons of asphalt and some 2800 tons of asphalt would be required to do the whole job, but the production and spreading of asphalt is a relatively minor part of the whole project. Baxter's bid of $936,554.57 was lower than Solomon's by $21,255.63. The work is to be performed within 230 calendar days. TIME OVERRUNS Baxter finished on time at least five projects under contracts DOT let to Baxter in 1981, using all or virtually all of the time allowed to complete Job Nos. 56010-3508, 56020-3508 and 61080-3418, aggregating $2,568,784, but finishing substantially ahead of schedule on Job Nos. 51010-3522 and 53070- 3506, aggregating $384,069. Under contracts DOT let to Baxter in 1982, however, only two projects were finished within the time allowed. In all, DOT let twelve or thirteen contracts to Baxter in 1982. DOT's Exhibit No. 1. Of the 1982 contracts on which Baxter fell behind, DOT cited only five or six 1/ as evidence of Baxter's irresponsibility, in Secretary Pappas' letter of September 19, 1983. LATE STARTS Only one of the 1982 contracts was begun on or before the date specified in the contract as the date time charges were to begin to run. On Job No. 49010-3535 (U.S. 98 or SR 30 in Franklin County) Baxter did not begin work until after the completion date called for in the contract. The contract on U.S. 98 in Franklin County was for $1,170,887.72. On Job No. 50060-3503 (SR 65 in Gadsden County), on which time charges began to run on August 10, 1982, and which was to have been completed within 200 days, Baxter began work on January 7, 1983, which was 235 days after the contract was executed. The contract on SR 65 in Gadsden County was for $744,134.34. The contract DOT awarded Baxter for Job No. 49060-3508 (SR 65 in Franklin County) was for $1,380,270.15. Under the contract, time changes on SR 65 in Franklin County began on September 1, 1982, but Baxter did not begin work until February 23, 1983, which was 250 days after the contract was executed. The SR 65 Franklin County contract between DOT and Baxter contemplated completion of the project within 276 calendar days from the start of work. Both Job Nos. 50030-3522 and 50050-3506 (State Roads 10 and 12 in Gadsden County) were let under an agreement specifying that time charges would begin on November 4, 1982. Baxter started work on the first of these on February 11, 1983, and did not begin the second till well after the date it had agreed to have it finished. Baxter started work on Job 56010-3510 (State Road 20 in Liberty County) on April 13, 1983, about six months after the contract was executed and about four and a half months after time charges began. 1983 Secretary Pappas also cited Job No. 50010-3531 in his letter of September 19, 1983, as one of the jobs on which Baxter's performance had indicated, at least to DOT, Baxter's irresponsibility. This contract was for work on State Road 10 in Gadsden County and was referred to at hearing as the "mini-contract." The contract allowed 30 days for completion of the work and was in the amount of $34,975. Under this contract, time charges began on May 30, 1983, so that work should have been completed by the end of June. Baxter began work on September 9, 1983, more than two months after it had agreed it would finish the job. On the three other DOT jobs that Baxter was to begin in 1983, Job Nos. 53030-3521 (U.S. 231 in Jackson County), 61040- 3515 (SR 79 in Washington County), 54030-3507 (SR 19 in Jefferson County) , Baxter started work 26, 44 and 81 days late respectively. DELINQUENCY DISPUTED Whenever a contractor falls behind to the point that he has completed 20 percent less than he projected he would have on his progress chart and the amount he has completed expressed as a percentage of the whole is 20 points or more less than the amount of time elapsed expressed as a percentage of the total time allowed, DOT issues a preliminary notice of delinquency. The contractor has 15 days thereafter in which to request extensions of time. DOT may grant extension requests that render the contractor no longer delinquent, or it may issue a final notice of delinquency. Only if the contractor fails to file timely a petition for administrative proceedings does the "final" notice become final in law. Otherwise final agency action must await the outcome of proceedings pursuant to Section 120.57, Florida Statutes (1983). DOT has issued final notices of delinquency to Baxter with respect to both jobs on SR 10 in Gadsden County, and the jobs on SR 79 in Washington County, SR 19 in Jefferson County, State Road 20 in Liberty County, State Road 10 in Gadsden County, State Road 65 in Franklin County, State Road 65 in Gadsden County, and U.S. 98 in Franklin County. Since 1973, Baxter has received more final notices of delinquency from DOT than any other road contractor. As of final hearing, there was no other road contractor in the Tallahassee residency with as many as two jobs uncompleted as of the date time expired. With respect to each contract as to which DOT has issued a final notice of delinquency to Baxter, Baxter has filed requests for extensions of time. Some of these requests were granted. Others were not. If all of them had been granted, final notices of delinquency would not have issued. Baxter has also timely filed for formal administrative proceedings as to each final notice of delinquency directed to Baxter. At least one of these was scheduled for final hearing as early as August 5, 1983, but was, on Baxter's application, enjoined by court order. Baxter's Asphalt and Concrete, Inc. v. State of Florida, Department of Transportation; State of Florida, Division of Administrative Hearings; and R. T. Benton, II, No. 7-83-123 (Fla. 14th Cir.; Aug. 4, 1983). The parties stipulated that they have since agreed that the injunction be dissolved, although no order dissolving it has been entered. In arriving at the times specified in DOT road contracts, DOT staff estimates the number of work days necessary to complete the project, then multiplies by 1.825, on the assumption that the road contractor will only be able to work four days a week, fifty weeks a year. On paving jobs, considerable additional time is built into the estimates to allow contractors to bid on and schedule several jobs. DOT allows time extensions nevertheless for inclement weather, when the weather interferes with the controlling items of work, and also allows time extensions for certain unforeseen problems beyond the contractor's control. At hearing in the present case, Baxter made a colorable showing of a design problem on the SR 20 job in Liberty County, of a shortage of "friction course one materials" throughout 1982 and the first half of 1983, and of a shortage (of much shorter duration) of a chemical used to recycle milled asphalt, called HMA. Even if established, these claims would not excuse Baxter's lateness on all of the contracts mentioned in the Secretary's letter of September 19, 1983. For example, the evidence showed work had not progressed to the point that Baxter could have used the HMA during the time of the shortage. Baxter has even contended that it is not delinquent on jobs it did not begin until after the date by which Baxter had agreed to have finished. The evidence showed, however, that Baxter was delinquent in fact on these and other jobs. The specifications for Job No. 55320-3425 included the 1982 Edition of the Standard Specifications for Road and Bridge Construction, Section 2-11 of which provides that a bidder may be disqualified on account of "Uncompleted work which in the judgment of the Department might hinder or prevent the prompt completion of additional work if awarded." Section 2-6 provides for rejection of qualified or conditional bids. ASPHALT PRODUCTION At all pertinent times, Baxter has had an asphalt plant in operation in Marianna, Florida (Plant No. 1). In the summer of 1982, Baxter erected a second asphalt plant in Liberty County. (Plant No. 2) After failing to obtain rezoning for a Gadsden County site, Baxter caused a third asphalt plant to be built in Franklin County. (Plant No. 3) By February of 1983, Baxter had obtained the requisite environmental permits for all three plants, although technical problems at Plant No. 3 were not overcome until later. Baxter can operate two, but not all three, of these plants simultaneously. The capacity of the Marianna plant is such that all the asphalt necessary for all the jobs Baxter contracted with DOT could have been produced there in time for Baxter to perform the DOT contracts on time. Baxter had other uses for some of its asphalt, however. Among them was a $4,000,000 job in Alabama in 1982 which Baxter finished more than 100 days early. The fraction of Baxter's total production used on DOT jobs varied from .02 percent in March of 1982, when Baxter produced 10,769.9 tons, and 7.31 percent in June of 1983, when Baxter produced 16,109.26 tons, to 97.96 percent in August of 1982, when Baxter's total production was 37,846.72 tons and 92.88 percent in April of 1983, when Baxter produced 13,210.34 tons. CAN DO William D. Baxter, who owns petitioner, and Louis W. Seay, Jr., petitioner's vice-president since 1979, are capable and successful businessmen. According to J. Vern Williams, a C.P.A. familiar with Baxter's operations, Baxter is very well managed, with the possible exception of the accounting department. Mr. Baxter began with a pick-up truck and a hot pot, and his company now has some $10,644,000 in heavy equipment and transportation equipment (original cost). If anything, Baxter's equipment inventory is larger than necessary. Baxter could perform Job No. 55320-3425 without buying or leasing any heavy equipment other than a trencher. Bonding companies reportedly stand ready to write an additional $14,000,000 in bonds for Baxter's. Its working capital and its capitalization generally are adequate for what it has undertaken. Among its 150 employees are 15 who have been with Baxter for ten to fifteen years, including H. H. Barber, the general superintendent, and Timmy Jones and Spud Berry, each of whom has worked as an asphalt superintendent for ten years. CHOSE NOT TO Baxter's managers deliberately postponed work on DOT jobs closer to the sites chosen for Plants Nos. 2 and 3 (including the Gadsden County site originally chosen for Plant No. 3), in order to avoid the costs of transporting asphalt the longer distances from Plant No. 1, even when it was uncertain when Plant Nos. 2 and 3 would go into production. They also decided not to purchase asphalt from any other producer closer to the job sites, as a means of performing timely under the DOT contracts mentioned in Secretary Pappas' letter of September 19, 1983. Notwithstanding the number of DOT contracts Baxter undertook to perform and notwithstanding the extent to which work fell behind on many of them, Baxter never had more than a single asphalt crew at work at any one time on the whole group of jobs listed in Secretary Pappas' letter of September 19, 1983. Since DOT indicated its intention to award Job No. 55320-3425 to Solomon, Baxter has made significant progress on the jobs listed in Secretary Pappas' letter. By January 18, 1984, it had completed four of them, all behind schedule, and was nearing completion on SR 65 in Gadsden County. Work on SR 65 in Franklin County was behind schedule and about one quarter completed. Delays of this kind cause problems for DOT, whose employees are permanent and full-time. Months in advance, DOT schedules at least one employee on each job site, for at least part of each day for the duration of the job. These schedules are based on the road contractors' commitments under the contracts DOT lets and on the progress charts they file. Inefficient use of DOT staff time is a common result when road contractors fail to perform work as scheduled. DOT schedules supervisory and testing personnel for 500 to 600 jobs annually. DOT WAFFLES On January 25, 1984, DOT issued a corrected notice of intent to award Job No. 59010-3514 to Baxter. This $594,174.56 asphalt paving job in Wakulla County will require significantly greater quantities of asphalt than Job No. 55320-3425, at issue in these proceedings. None of the other bidders on Job No. 59010-3514 protested the award to Baxter within the time allowed. ERRONEOUS CERTIFICATE Until recently, Baxter's consistent practice has been to omit contracts with parties other than DOT on the certificate of current capacity filed with bids on DOT jobs. Mr. Seay testified he had not realized that contracts with parties other than DOT were required to be listed. On the form certificate filed on August 31, 1983, in conjunction with its bid on Job No. 55320-3425, Baxter failed to report about $500,000 in uncompleted work under private contracts, while reporting $5,478,000 in uncompleted work for DOT. At the time, Baxter had approximately $22,000,000 in unused capacity. Perhaps this is why Peter J. White, Director of DOT's Division of Construction testified that there was no material irregularity in the bid papers. Petitioner submitted Baxter's proposed findings of fact and respondent filed a proposed recommended order which the intervenor adopted. Proposed findings have been adopted, in substance except to the extent they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.

Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DOT award Job No. 55320-3425 to Solomon. DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 30th day of March, 1984.

Florida Laws (5) 120.53, 120.57, 337.11, 337.16, 7.31

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NETWORK ENGINEERING SERVICES, INC., D/B/A BOLTON PEREZ AND ASSOCIATES vs DEPARTMENT OF TRANSPORTATION, 19-005130 (2019)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Sep. 24, 2019 Number: 19-005130 Latest Update: Apr. 17, 2020

The Issue The issue in this administrative proceeding is whether the Florida Department of Transportation’s ("DOT" or "the Department") denial of Petitioner’s, Network Engineering Services, Inc. d/b/a Bolton Perez & Associates ("BPA"), 2019 application for qualification pursuant to section 337.105, Florida Statutes, and Florida Administrative Code Chapter 14-75, was for good cause due to Petitioner’s participation in the construction of the Florida International University ("FIU") City Prosperity Project ("FIU Bridge project").

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that good cause does not exist to deny BPA’s 2019 Request for Qualification. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2020. COPIES FURNISHED: George Spears Reynolds, IV, Esquire Florida Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Scott Kirschbaum, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 Anthony Lopez, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 George Richard Truitt, Esquire Cole, Scott & Kissane, PA 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 (eServed) John Ashley Peacock, Esquire Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transporation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 (eServed)

Florida Laws (7) 120.569, 120.57, 287.055, 337.105, 455.227, 471.003, 471.033 Florida Administrative Code (3) 14-75.0022, 14-75.0051, 61G15-19.001 DOAH Case (1) 19-5130

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FLORIDA ENGINEERS MANAGEMENT CORPORATION vs FRED JONES, P.E., 08-006238PL (2008)

Division of Administrative Hearings, Florida Filed:Bradenton, Florida Dec. 16, 2008 Number: 08-006238PL Latest Update: Dec. 26, 2024

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