07-001020 Amec Civil, Llc vs. Department Of Transportation Status: Closed Recommended Order on Friday, January 18, 2008.

Summary: Petitioner, who failed to comply with specification 9-9, was determined to be "non-responsible," for 90 days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 0 7 - 1020

)

AMEC CIVIL, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was convened in

this cause on September 20, 2007 , in Jacksonville , Florida,

before Ella Jane P. Davis, a duly - assigned Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Erik Fenniman , Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

For Respondent: F. Alan Cummings, Esquire

S. Elysha Luken, Esquire

Smith, Currie & Hancock

1004 DeSoto Park Drive

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Department of Transportation (Petitioner) may

declare AMEC CIVIL , LLC, (Respondent) non - responsible for 90

days and ineligible to bid on Department contracts d uring that

period, based upon Respondent's alleged failure to timely submit

contract documents and comply with contract requirements on

Contract Numbers 21349 and 21350 ( Financial Project Numbers

209600 - 1 - 52 - 01 and 213290 - 1 - 52 - 01 ) .

PRELIMINARY STATEMENT

O n January 17, 200 7 , the Department of Transportation (D OT )

notified AMEC Civil, LLC, of the Department’s intent to declare

AMEC non - responsible for a period of three months based upon

AMEC 's failure to timely comply with contract requirements on

DOT Contra ct numbers 21349 and 21350.

Respondent filed a Petition for Formal Administrative

Proceedings, and on March 1, 2007, DOT referred the matter to

the Division of Administrative Hearings.

The hearing was initially scheduled for May 3, 2007, but

was twice co ntinued. All interlocutory Motions and Order s

appear in the case file.

At the disputed - fact hearing held September 20, 2007, the

style of this cause was orally amended , as set - out above, to

reflect the duty to go forward . (TR - 19)

The parties stipulated that Florida Stat ut es ( 2006 ) apply,

in particular Sections 337.14, 337.16 , and 337.164.

At hearing, Florida Administrative Code Rule 14 - 22. 0 141 as

presented, was officially recognized . AMEC was granted 10 days

from the close of hearing to object in writin g to any other

portions of Chapter 14 - 22, as presented at hearing . (TR - 18 - 19)

No written objection was filed, so Chapter 14 - 22 , has been

officially recognized for purposes of this Recommended Order.

Petitioner D OT presented the oral testimony of Terri

To wers, its Final Estimate s Manager for District II, and B rian

Blanchard, its Director , Office of Construction. Petitioner's

Exhibits P - 1 through P - 10 were received in evidence. Respondent

AMEC presented the oral testimony of Carlos Rosand, AMEC’s

Project Manager, and had Exhibits R - 1 through R - 6 admitted in

evidence .

A Transcript was filed with the Division on October 10,

2007. The parties had stipulated to 30 days thereafter for the

filing of their respective Proposed Recommended Orders. Each

party’s P roposed Recommended Order has been considered in

preparation of this Recommended Order. 1/

FINDINGS OF FACT

1 . Respondent AMEC Civil, LLC, is a Florida corporation

whose principal business is road and bridge construction.

2. DOT is the state agency respon sible for entering into

contracts for the construction , improvements , and maintenance of

state roads. DOT’s legislative authority includes preserving

the integrity of the public contracting process and determining

contractors non - responsible. §§ 337.164 and 337.16, Fla. Stat.

(2006). The point in contention herein is DOT’s January 17,

2007, L etter of I ntent to D eclare AMEC N on - responsible.

3. This case arises from two separate contracts Respondent

AMEC entered into with Petitioner DOT to construct the

i nterchange at Interstate 295 and Interstate 95 in Duval County,

which construction project stretched over five years.

4. AMEC has filed no challenge, pursuant to Section

120.57(3), Florida Statutes, to the specifications of either

contract. AMEC waived any Section 120.57(1 )( e) issues with

regard to forms utilized by DOT , but which forms had not been

adopted as rules in their own right. (TR - 26)

5. The interchange was comprised of two separate financial

project numbers with two separate sets of plans, o ne using the

metric form of computation and the other using the English form

of computation. The two projects were bid together and were

combined for purposes of the total construction.

6. The contract and bid specification package incorporated

by refer ence the 2000 Edition of DOT’s Standard Specifications

for Road and Bridge Construction, and also included supplemental

specifications for each element. Therefore, all these items

became part of the contracts between the parties.

7. The construction was supposed to be completed in 1461

days, but suffered significant delays.

8 . DOT made periodic pay estimates to AMEC on the two

separate contact numbers . Contract No. 21349, Financial Project

209600 - 1 - 52 - 01, was the smaller project, in English Units, for

w hich DOT paid AMEC $11,388,417.98. Contract No. 21350,

Financial Project 213290 - 1 - 52 - 01 was the larger project, in

Metric Units, for which DOT paid AMEC $98,816,947.85.

9 . AMEC’s two contracts are still open and will be closed

only when all claims are resolved.

10 . DOT’s contracts provide a mechanism at the end of

construction projects for a final “settling up” between the

parties, recognizing that the periodic payments were only

estim ates of quantities installed. This mechanism , handled by

DOT’s Fi nal Estimates Office, affords the contractor and the

Agency an opportunity to make a final identification of the full

particulars of any payment issues within 90 days of final

acceptance. This contractual “ACCEPTANCE AND FINAL PAYMENT”

process, found at S ection 9 - 9 of the Supplemental Specifications

of the instant contracts, states, in pertinent part:

* * *

. . . The Department will pay the estimate,

less any sums that the Department may have

deducted or retained under the provisions of

the Contract, as soon as practicable after

final acceptance of the work , provided the

Contractor has met the requirements of (a)

through (g) below.

If the Contractor fails to furnish all

required Contract Documents within 90 days

of the Department’s offer of final payment

or request for refund of overpayment, the

Department may suspend the Contractor’s

Certificate of Qualification under the

provision of Florida Administrative Code,

14 - 22.

(a) The Contractor has agreed in writing

to accept the balance due or refund the

o verpayment, as determined by the

Department, as full settlement of his

account u nder the Contract and of all cla ims

in connection therewith, or the Contractor,

has through the use of the Qualified

Acceptance Letter, accepted the balance due

or refunded the overpayment, as determined

by the Department, with the stipulation that

his acceptance of such payment or the making

of such refund does not constitute any bar,

admission, or estoppel, or have any effect

as to those payments in dispute or the

subject of a pending claim between the

Contractor and the Department. To receive

payment based on a Qualified Acceptance

Letter, define in writing the dispute or

pending claim with full particular of all

items of all issues in dispute, including

itemized amounts clai med for all particulars

of all items, and submit it as part of the

Qualified Acceptance Letter. The Contractor

further agrees, by submitting a Qualified

Acceptance Letter that any pending or future

arbitration claim or suit is limited to

those particulars , including the itemi zed

amounts, defined in the orig inal Qualified

Acceptance Letter, and that he will commence

with any arbitration claim or suit within

820 calendar days from and after the time of

final acceptance of the work and that his

failure to fil e a formal claim within this

period constitutes his full acceptance of

the Engineer’s final estimate and payment.

The overpayment refund check from the

Contractor, if required, will be considered

a part of any Acceptance Letter executed.

* * *

(d) The surety on the Contract bond

consents, by completion of their portion of

the affidavit and surety release subsequent

to the Contractor’s completion of his

portion, to final payment to the Contractor

and agreed that the making of such payment

doe s not relieve the surety of any of its

obligations under the bond.

* * *

(g) The Contractor has submitted the Form

FHWA - 47 (formerly known as PR - 47) Record of

Materials and Labor on Federal - a id Projects,

to the Engineer for transmittal to the FHWA.

. . . (Emphasis supplied)

11 . Section 5 - 12 .2 of the contracts provides , in pertinent

part :

5 - 12.2 Notice of Claim .

5 - 12.2.1 Claims For Extra Work : . . .

On projects with an original Contract amount

greater than $3,000,000 within 180 calendar

days after final acceptance of the project

in accordance with 5 - 11, the Contractor

shall submit full and complete documentation

as described in 5 - 12.3 . . . .

12 . By contract, a contractor’s claim is a pre - requisite

to filing a circuit court action, and there is a Claims Office

and a complete claims resolution procedure within DOT, including

utilization of a three - member Dispute Resolution Board.

13. Contrary to Contract Specification 9 - 9, AMEC filed

suit against DOT prior to final acceptance of the projects.

Tha t lawsuit became Duval County Circuit Court Case 03 - CA -

005462. Exactly when that lawsuit was instituted is not clear

on this record, but the prefix “03 , ” suggest s it was filed in

2003, even before AMEC made its first formal claim . (See

Finding of Fact 14 .) DOT’s Director of the Office of

Construction, Brian Blanchard, was not aware of any prior

instance of a contractor suing DOT before the issuance of a

Qualified Acceptance Letter.

1 4 . On May 5, 2006, AMEC submitted to DOT’s Claims Office,

a claim docu ment , addressing both project numbers , allegedly

pursuant to the contracts’ Section 5 - 12 , in relation to the

issue of “night work . ” Apparently, AMEC felt DOT had forbidden,

or put significant impediments on, AMEC’s doing “night work” on

the projects in or der to speed up construction by spending more

on labor , so th is claim involved the equivalent of time delays

as well as overtime costs.

1 5 . On July 19, 2006, DOT issued to AMEC a single “Offer

of Final Payment” authored by Terri Towers, District II Fina l

Estimates Manager, for each of the two financial project s . This

letter essentially ask ed what balance AMEC w ould accept to close

the contract s . In this letter, DOT acknowledged May 5, 2006, as

the da te of “final acceptance of work . ” The effect of DOT’ s

designation of May 5, 2006, as the date of final acceptance was

that AMEC then had 180 days from May 5, 2006 (until November 5,

2006) , to submit any and all claims , pursuant to Specification

5 - 12 , to DOT’s Claims Office, while having 90 days from DOT’s

O ffer of Final Payment to submit all documents required by the

contract and to state a balance AMEC would accept for each

project , with all the particulars , pursuant to Supplemental

Specification 9 - 9. Under that contract specification, AMEC's

f ailure to ti mely challenge the amount(s) offered by DOT would

cut AMEC off from claiming more than was offered and constituted

AMEC’s a greement to take the amount DOT’s Final Estimates Office

had offered on each project . C hallenging the amount offered

through timely filing a qualified acceptance with full

particulars would not have preclude d payment of any additional

amounts AMEC claimed . However, within 90 days of DOT’s offer,

AMEC was required either to submit a signed regular acceptance

of the amount offered for e ach project or to submit a signed

qualified acceptance of the amount offered for each project .

Whichever type of acceptance AMEC elected to file, the contract

required, and DOT’s July 19, 2006, Offer of Final Payment letter

instructed, that AMEC’s accepta nce, the surety release, and the

FHWA - 47 form must be filed within 90 days of the Offer of Final

Payment. It is un - refuted that either a regular acceptance or a

qualified acceptance is a “contract document . ”

1 6 . Ms. Towers acknowledged that the July 19, 2006 , Offer

of Final Payment letter incorrectly referred to “Article 9 - 9 of

the Standard Specifications,” when it stated, "P lease be advised

that this letter constitutes an offer of final payment and is

being made pursuant to an d subject to all requirement s and

conditions set out in Article 9 - 9 of the S tandard

S pecifications . " However, there is no material difference, for

purposes of this case, between that item and Supplemental

Specification 9 - 9, ( See DOT Exhibit 10, showing revision dates

and contents ) . Moreover, subsequent correspondence clarified

which specification was involved, and n o one testified that AMEC

was misled or confused as to which contract specification was

being invoked by DOT's July 19, 2006 , letter or which

specification is applicable to this case.

1 7 . Ms. Towers testified that the Offer of Final Payment

is the last estimate of the total job and is the summary of

DOT’s whole estimate for each financial project.

1 8 . DOT’s Offer of Final Payment dated July 19, 2006,

stated, i n sum, “We think that we owe AMEC nothing on No.

209600 - 1 - 52 - 01 and that we owe AMEC $752.63 on No. 213290 - 1 - 52 -

01.” DOT’s accompanying pay estimates included categories for

item descriptions, item numbers, quantities, unit price and the

total payment amount to date for each financial project number.

The letter , which referenced both project numbers, requested

that AMEC , “Please sign and return the enclosed Letters of

Acceptance to this office (one for each financial project

number ) .” A form for AMEC to fill out on each project number

was attached.

1 9 . The DOT form s AMEC was requested to sign (one form for

each financial project number) were entitled “Acceptance on

Offer of Final Payment.” They permitted AMEC to either accept

the final balance payment offered by D OT or to disagree with the

amount offered, stating the alternative balance AMEC believed to

be due from DOT; stating the additional amount separately , with

a breakdown of project number, pay item, and dollar amount; to

acknowledge that by accepting payment , AMEC was not subject to

any bar or estoppel, or to any effect as to those payments in

dispute or which w ere the subject of a pending claim. The form

also stated in all capital letters, “NOTE: FULL PARTICULARS OF

THE ABOVE DISPUTE OR PENDING CLAIM MUST B E SUBMITTED WITH THIS

ACCEPTANCE LETTER. ANY OUTSTANDING CONTRACT DOCUMENTS,

INCLUDING THE 21 - A, MUST BE RECEIVED BEFORE THIS PAYMENT CAN BE

ALLOWED.”

20 . Blank Acceptance on Offer of Final Payment forms , with

the respective project number on each of the m , were attached to

the Offer of Final Payment letter . Ms . Towers acknowledged that

neither the Offer of Final Payment letter , no r the attached

forms upon which AMEC was expected to itemize the amounts still

in dispute, bore the specific words “qualified a cceptance

letter , ” a term used in Supplemental Specification 9 - 9 ( s ee

Finding of Fact 10 ) or the term “qualified letter of

acceptance.”

2 1 . Behind the Acceptance on Offer of Final Payment form

for the English project/contract, which the July 19, 2006, O ffer

of Final Payment letter requested that AMEC fill - out, were DOT’s

final audit, or accounting of, the amounts the Final Estimates

Office believed were owed by DOT to AMEC for the English

project/contract number s . Behind the Acceptance on Offer of

Final Payment forms for the Metric project/contract, which the

July 19, 2006, Offer of Final Payment letter requested that AMEC

fill - out, were DOT’s final audit, or accounting of, the amounts

the Final Estimates Office believed were owed by DOT to AMEC for

the Metric project/contract numbers.

2 2 . A “ 21 - A ” is a surety release form. An “ FHWA - 47 ” is a

form required by the Federal Highway A dministration for release

of funds on a federally - funded project , such as the two projects

in the instant case. It is un - refu ted that each of these forms

qualifies as a “contract document.” A blank DOT - approved 21 - A

f orm and a blank FHWA - 47 f orm were supposed to be attached to ,

and transmitted to AMEC, with DOT's July 19, 2006, Final Offer

of Payment letter, but these forms wer e not attached.

2 3 . On A ugust 16 , 2006, AMEC acknowledged receiving DOT’s

Offer of Final Payment letter on August 9, 2006 .

2 4 . On August 31, 2006, DOT responded that , due to mailing

problems, the timetable for AMEC to submit the re q uired contract

docume nts was adjusted to 90 days from August 7, 2006. This

response date for AMEC would have been November 7 , 2006. DOT 's

August 31, 2006, letter re - stated that the FHWA - 47 form and the

Surety Release (Form 21 - A) also must be submitted with the

response.

25. Having received nothing from AMEC in response to the

July 19, 2006 , Offer of Final Payment, the Final Estimates

Office, on October 11, 2006, sent AMEC a Notice of Missing or

Incomplete Contract Documents, advising that 60 days had elapsed

since DOT’s Offe r of Final Payment. DOT routinely sends this

type of letter to alert contractors that the 90 days from the

Offer of Final Payment in which to submit their regular

acceptance or qualified acceptance and required contract

documents is running out. The lett er to AMEC also specifically

named the 21 - A and FHWA - 47 forms. If the time provided by

S pecification 9 - 9 runs out without a challenge to the amount

offered by DOT, then the contractor loses the opportunity to

contest the amount offered. Therefore, when c ontractors receive

DOT’s Notice of Missing or Incomplete Documents letter, they

usually communicate with DOT’s Final Estimates Office or

otherwise coordinate the submittal of the appropriate missing

documents within the remaining 30 days allowed. DOT’s

Oc tober 11, 2006, letter contained boilerplate language warning

AMEC that its certificate of qualification to bid could be

suspended for failure to submit the necessary documents.

2 6 . On October 30, 2006, AMEC submitted to DOT’s Claims

Office a second claim , again addressing both project numbers,

and allegedly pursuant to Contract Sectio n 5 - 12, on all

remaining issues besides the night work issue which had been

raised on May 5, 2006. (See Finding of Fact 14.)

2 7 . The supporting documents for AMEC's two c laims

constitute 10 large notebooks , observed at final hearing but not

admitted in evidence . AMEC’s Project Engineer testified that

t here were also five or more boxes of paper related to impact

delay . It is not clear whether these boxes were or were not

sent to DOT ’s Claims Office with the two claims.

28 . O n November 1, 2006, AMEC sent DOT a letter headed

“Qualified Acceptance” , stating:

This will acknowledge receipt of your

letter dated August 7, 2006, and a copy of

the Department’s Offer of Final Payme nt. We

agree to accept $752.63 payment as the

amount due to us under said contract with

the understanding that acceptance of such

payment shall not constitute any bar,

estoppels, or have any effect as to those

payments in dispute or those matters which

ar e the subject of a pending claim or

lawsuit.

The matters which are the subject of

pending claims and lawsuits are hereby

adopted by referenc e. The lawsuit is styled

AMEC C ivil, LLC v. State of Florida,

Department of Transportation, Duval County

Circuit C ourt, Case No: 03 - CA - 005462. The

Department is in possession of the complaint

and other pleadings, as well as matters

obtained through discovery. The documents

are extremely voluminous and too burdensome

to attach to this letter. All pending

claims have been certified and submitted to

the Department. Many of these claims have

already gone through the DRB process. The

Department is aware of all of AMEC’s

lawsuits and pending claims, in regard to

which AMEC reserves all of its rights.

29 . “DRB” stands for “Dispute Resolution Board . ” AMEC had

provided a copy of the voluminous documentation supporting its

two claims (see Finding of Fact 2 7 ) to each of the three members

of the DRB as well as to DOT’s Claims Office.

30 . Terri Towers testified that AMEC’s November 1, 2006,

letter to the Final Estimates Office was not sufficient to

constitute a Qualified Acceptance Letter, because it incorrectly

incorporated a lawsuit and the lawsuit’s pleadings and

referenced DOT’s possession of a circuit court complaint, a nd

because it did not give a separate dollar amount for each of the

two respective financial project number s . Brian Blanchard ,

Director of Construction, also testified that AMEC’s letter was

unacceptable for compliance with Supplemental Specification 9 - 9,

because the letter did not give the Department a high - level view

of the itemized amounts in dollars and time. Both DOT witnesses

were concerned because AMEC had provided no breakdown of the

dollar amount AMEC was still requesting for each respective

proj ect/ contract. The purpose of S pecification 9 - 9, is to cut

off any additional requests for payment , claims, amendments to

claims, or law s uits that could raise the dollar amount specified

in the qualified offer of acceptance . The statement of

particulars w ould limit how claims might move money demands

around. In short, a qualified acceptance letter is designed to

work as a final cut - off of demands , and AMEC’s submittal was

unclear and missing two respective “bottom line s .”

31 . Ms. Towers testified that DO T would have accepted from

AMEC the filled - in Acceptance on Offer of Final Payment forms

she had enclosed with her July 19, 2006, Offer of Final Payment

letter (see Finding s of Fact 19 - 21 ); would have accepted a

summary of the 10 three – ring binders submitt ed with the two

claims; probably would have accepted the equivalent information

in another format; and would even have accepted AMEC’s

November 1, 2006, Q ualified Acceptance Letter, provided AMEC had

submitted the final separate totals (balances) it claime d on

each project and the supporting particulars for each amount by

project .

32. Mr. Blanchard understood the concept AMEC was

attempting to use in its November 1, 2006, letter of

“incorporat ion by reference , ” but stated that the goal of an

acceptance o r qualified acceptance letter to the Final Estimates

O ffice , as required by 9 - 9, was to avoid overlaps and redundancy

and to limit amounts claimed , and accordingly, AMEC’s vague

November 1, 2006, incorporation by reference was unacceptable .

33 . AMEC’s Nov ember 1, 2006 , letter referred to “lawsuits”

and “claims’ in the plural . It left Ms. Towers unsure about

wh e ther the final amount AMEC was seeking was included in the

lawsuit named and further unsure about how the two claims were

related to that lawsuit o r possible other lawsuits. Ms. Towers

did not consult DOT’s l egal staff about the status of any

lawsuits, but t here is no certainty that even if she had

con sulted DOT’s Legal Section conc er n ing the lawsuit

specifically named in AMEC’s November 1, 2006, le tter , she would

have gotten a current “bottom line” dollar amount request ed for

final payment on each project .

34. Ms. Towers knew AMEC had filed claims on May 5, 2006,

and October 3 0 , 2006, but she did not take it upon herself to go

to DOT’s Claims Off ice in the same building and try to analyze

all AMEC’s claim documents, either as they had existed when they

had been submitted or as they may have been modified over time.

She thought that at least one payment of about $50,000 , was

about to be made by DO T upon negotiations that had occurred

since May 5, 2006, ( ultimately, $50,000 was actually paid to

AMEC in mid - 2007 ) , but how on - going negotiations might have

affect ed the balance AMEC was willing accept for the respective

projects 90 days past August 7, 2 006 ( November 7, 2006 ) , was not

up to Ms. Towers to ferret out. AMEC was required t o clarify

th ese amount s in writing and sign - off on them .

35 . At hearing, AMEC’s P roject E ngineer testified that

each of AMEC’s two claims constituted “all particulars.” H e

also stated that both claims were covered in the single -

referenced lawsuit. He further testified that AMEC’s May 5,

2006 , claim clearly demand ed a balance of $18,164,105.00 . This

amount is supported by the exhibit related thereto. However,

the October 3 0 , 2006, claim was divided into at least four

sections , and although each section was totaled, the reader

would have to add together the several sections’ bottom lines to

get the total $51,534,615.00 claim amount . Therefore, it

appears that only with su ch addition would even the DOT Claims

Office be able to discern the fiscal extent of AMEC’s second

claim. Moreover, the two claims AMEC had attempted to

incorporate by reference in its November 1, 2006, letter

contained at least one cross - over or redundan cy. AMEC

calculated a bonus amount into its May 5, 2006, claim and listed

the same bonus in the October 3 0 , 2006, claim with a caveat to

the effect of “DOT, don’t pay us a second time if you paid us

under the first claim.” This bonus redundancy constitut ed a

potential five - million dollar overlap of the two claims . AMEC's

P roject E ngineer did not know if there were any other

duplications within AMEC’s two claims. Finally, the two claims

each combined material concerning both project /contract numbers.

3 6 . Mr. Blanchard had looked at the two claims only in

preparation for hearing , but he had noted a lot of duplication,

“over - accounting,” overlap, and redundancy, and testified that

Supplemental Specification 9 - 9 was designed to weed out such

problems by req uiring that the contractor list a tot al balance

claimed for each project.

3 7 . Ms. Towers testified that AMEC did not provide the

three required contract documents ( a sufficient qualified

acceptance lette r, Form 21 - A, and Form FHWA - 47) within 90 days

of Au gust 7, 2006 (November 7, 2006).

3 8 . On November 16, 2006, Ms. Towers notified AMEC that

AMEC’s November 1, 2006 , letter was materially unacceptable,

stating that the letter failed to comply with Supplemental

Specification 9 - 9 (a) - (g) and :

The Qualified Acceptance Letter

submitted by AMEC materially failed to meet

the express requirements set f orth in

Supplemental Specificati on 9 - 9, of the

Contract as previously stated. Specifically

AMEC requested to have “matters which are

the subject of pending claims and lawsuits

adopt ed by reference.” AMEC cited “C ase No.

03 - CA - 005462” and stated that “the

Department is in possession of the complaint

and other pleadings.” Are the pending

claims referenced by AMEC included in the

cited Case No. 03 - CA - 005462? AMEC mu st

clearly provide the particulars, regarding

dollar amount, all issues and time being

requested in order to have the Qualified

Acceptance Letter properly processed. In

addition, as requested in the Offer of Final

Payment letter, AMEC must provide the

pro perly executed Form 21 - A (Affidavit as

noted in (c) and (d) above) and Form FHWA - 47

(as noted in (g) above). (Emphasis supplied)

3 9 . The emphasized language explicitly stated DOT’s

problem with reconciling AMEC’s multiple claims with a single

lawsuit as described within AMEC’s November 1, 2006, Qualified

Acceptance letter . The rest of DOT’s November 16, 2006 , letter

also clearly enumerated the remainder of what was required under

Supplemental Specification 9 - 9 (a) through (g), and again listed

the missin g 21 - A and FHWA - 47 form s .

40 . DOT's November 16, 2006 , letter also stated that

AMEC’s failure to comply with 9 - 9, within the 90 days provided

in 9 - 9, was sufficient for DOT to invoke Rule 14 - 22.012, to

suspend the contractor’s certificate of qualification , and if

the certificate of qualification were already suspended, DOT

would invoke Florida Administrative Code Rule 14 - 22.0141(a) and

Section 337.16(2)( c ), Florida Statutes, to declare the

contractor non - responsible. The language concerning non -

responsibi lity was apparently suggested by DOT’s Legal Section.

4 1 . DOT's November 16, 2006, letter closed with the

language, “ As 90 days have already passed , please provide the

documentation as requested in the Offer of Final Payment within

14 days from receipt of this letter so we may process the

pending payment . " (Emphasis supplied)

4 2 . On November 16, 2006, DOT was still seeking 21 - A and

FHWA - 47 forms, even though DOT now viewed the balances DOT had

offered on July 19, 2006, as uncontested , due to AMEC ’s fai lure

to timely submit a qualified acceptance letter with sufficient

particulars.

4 3 . AMEC did not return the executed 21 - A and FHWA - 47

forms within 14 days of DOT’s November 16, 2006, letter, so on

January 17, 2007, DOT issued its Notice of Intent to D ec lare

Non - Responsible, which is the subject of th e instant case. DOT

sought to declare AMEC non - responsible for only 90 days , since

theirs was a first offense.

4 4 . DOT's January 17, 2007, letter cited AMEC’s failure to

submit an Acceptance Letter, Form 21 - A, and FHWA - 47 , within 90

days of August 7, 2006.

4 5 . DOT’s January 17, 2007, letter stated that the

determination of non - responsibility would become "conclusive"

if, within 21 days, AMEC did not either submit the required

contract documents or reque st an administrative hearing.

4 6 . The decision to cite AMEC as non - responsible was made

by Brian Blanchard, Director of Construction , after consultation

with employees of the Office of Construction , D istrict II

personnel, the Chief Engineer , and DOT legal staff, but the

January 17, 2007 , letter was signed by DOT’s Chief Engineer.

4 7 . O n February 14, 2007, DOT receive d a l etter dated

February 13, 2007, from AMEC , entitled “O ffer of Final Payment.”

AMEC’s February 13, 2007, letter incorporated by referen ce

AMEC’s November 1, 2006, letter as its Qualified Acceptance

Letter . Th e letter dated February 13, 2007, attempted to

incorporate both claims into the only named lawsuit, but it also

refer red to actions both prior to , and since , each of AMEC’s

claims h ad been filed. The letter again stated that “As the

Department is fully aware, the documentation requested by the

Department in the lawsuit is already within the Department’s

possession, and constitutes several hundred boxes . The Claims

themselves, also within the possession of the Department,

comprise over ten three - inch ring binders, which included

detailed itemization and documentation.” (Emphasis added.)

This language only further complicated and undermined any

attempt to incorporate other materials by reference.

48 . Attached to AMEC’s February 13, 2006, letter was a

completed FHWA - 47 Form and a completed Form 21 - A. February 1 4 ,

2006, when the letter was received by DOT’s Final Estimates

Office, was 1 91 days after the Offer of Final Payment (see

Fi nding of Fact 24 , counting from August 7, 2006 ) ; 90 days after

DOT’ s Nov ember 16, 2006 , letter requesting tha t the executed

forms be filed within 14 days ; and 2 8 days after DOT’s

January 17, 2007 , letter gave AMEC another 21 days to submit the

forms.

49 . On February 21, 2007, one of Ms. Towers ’ subordinates

sent AMEC a letter acknowledging the February 14, 2007, receipt

of AMEC’s letter . This DOT letter re ferenc ed both contract

numbers and both project numbers and request ed that AMEC fill

out and submit a n attached two - page Acceptance on Offer of Final

Payment form (see Finding s of Fact 19 - 20 ) on Project 213290 - 1 -

52 - 01. Only the second page of the two - page Acceptance on Offer

of Final Payment form for Project 209600 - 1 - 52 - 01 was attached .

The letter als o stated that Form 21 - A, which had been received

with AMEC’s February 14, 2007 , letter, was unacceptable because

the accompanying power of attorney did not grant the proper

authority to execute consents.

50 . No testimony was presented at hearing concern ing the

sufficiency vel non of the 21 - A form submitted by AMEC on

February 14, 2006.

5 1 . T he most common procedure DOT employs when a

contractor fails to comply with 9 - 9 or other DOT requirements in

the execution of a contract is one in which a pre - qualif ied

contractor is declared “not qualified,” or “de - certified.” That

procedure , technically called a “suspension of qualification,”

renders the previously pre - qualified contractor ineligible to

bid on DOT projects.

5 2 . However, p ursuant to Florida Admini strative Code Rule

14 - 22.0141, a contractor who wishes to bid for the performance

of construction contracts less than $250,000, or to work on any

DOT maintenance project is presumed to be a responsible bidder

unless DOT determines good cause exists to decl are the

contractor non - responsible.

5 3 . There was credible testimony herein that, in order to

prevent a de - certified contractor from “subbing” or “supplying”

on a DOT contract while disqualified, DOT uniformly follows - up

its de - certification to bid with a determination that the de -

certified contractor is also “non - responsible.”

5 4 . The credible testimony herein also shows that DOT has

de - certified at least two contractors who failed to timely

submit Letters of Qualified Acceptance after a job was

complet ed. Whether or not these particular contractors also

were declared non - responsible is not in this record.

55 . When DOT entered its intent to declare Respondent AMEC

non - responsible o n January 17, 2007, AMEC had not been pre -

qualified with DOT since May 2 004, and AMEC has not applied for

pre - qualification/certification with DOT since May 2004. A

settlement agreement regarding resolution of AMEC’s pre -

qualification application from 2004, indicates that DOT agreed

that “[n]o further action will be taken by the Department in

relation to the May 26, 2004, Application for Qualification.”

56 . Since 2004, AMEC also has not attempted to obtain any

DOT bid documents for construction projects of less than

$250,000 , for which a contractor need not be pre - qualified, and

has not attempted to “sub” or to do maintenance work on any DOT

project. AMEC’s Project E ngineer testified that AMEC has no

current intent to apply for jobs with such a low financial

return .

57 . However, absent a de - certification or declaration of

AM EC as non - responsible, AMEC remains eligible at any time to

apply for certification or to apply for the low financial return

work that does not require pre - certification.

58 . DOT’s Construction Director, Brian Blanchard , manages

the State’s 2.5 billion do llar work program, and testified that

the integrity of the bidding process depend s upon treating all

contractors alike , and therefore , AMEC should be declared non -

responsible because it did not meet the contract requirements

that all other contractors had to meet, such as the timely

filing of its final acceptace figures and the appropriate forms

in compliance with a contract specification.

59 . On or about March 1, 2007, AMEC filed its petition for

formal hearing herein, and the case was referred to the Div ision

of Administrative Hearings. DOT has not challenged the

timeliness of the petition .

CONCLUS IONS OF LAW

60 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (200 7 ) .

61 . The duty to go forward and burden of proof is upon

DOT , which seeks to change the status quo . See Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1 st DCA

1981). Pursuant to Section 337.167 (1), de - certification is not

equivalent to revocation of a license, and it is concluded here

that a declaration of non - responsibility also is not equivalent

to revocation of a license. Therefore, the standard of proof

herein is “ by a prep onderance of the evidence . ”

62 . Supplemental Specification 9 - 9, quoted in Finding of

Fact 10 , is adopted by reference here. Although that

specification only provides for de - certification, the statutes

and rules permit a declaration of non - responsibility.

63 . Section 337.16(2), Flor ida Statutes, provides, in

pertinent part :

[T]he department, for good cause, may

determine any contractor not having a

certificate of qu alification nonresponsible

for a specified period of time or may deny,

suspend, or revoke a ny certificate of

qualification. Good cause includes, but is

not limited to, circumstances in which a

contractor or the contractor’s official

representative:

* * *

(c) Fails to comply with contract

requirements, in terms of payment or

performance record, or to timely furnish

contract documents as required by the

contract or by any state o r f ederal statute

or regulation ; (E mphasis supplied)

6 4 . Florida Administrative Code Rule 14 - 22.0141, which

implements this statute , provides in pertinent part:

(1) Contractors who wish to bid for

the performance of construction contracts

less than or equal to $250,000, or any

maintenance contracts, are presumed to be

responsible bidders unless the Department

determines that good cause exists to declare

the contractor non - responsible, which shall

include the following:

(a) One of the circumstances specified

in Section 337.16(2), Florida Statu t es,

occurs ;

* * *

(e) The contractor failed to comply

with contract requirements, or failed to

follow Department direction in the execution

of the contract ;

* * *

(j) When the Department determines

that any other circumstance constituting

“good cause” under Section 337.16 (2), F.S.,

exists.

* * *

(2) Determination o f Contractor Non -

Responsibility . The Contractor will be

determined to be non - responsible and

ineligible to bid on Department Contracts

for a period of time, based on the

seriousness of the deficiency.

(a) Examples of factors affecting th e

seriousness of the deficiency.

1. Impacts on project schedule,

cost, or quality of work;

2. Unsafe conditions are allowed

to exist;

3. Complaints from the public;

4. Delay or interference with the

bidding process ;

5. The potential for repetition;

6. Integrity of the public

construction process; and

7. The effect on the health,

safety, and welfare of the

public. (Emphasis supplied)

6 5 . Florida Administrative Code Rule 14 - 22. 012 addresses

only de - certifications, but DOT submits that rule is

instructional for this non - responsibility case , because the

situations and actions are analogous . Therein, s ub - paragraph

(b)(1) states that a suspension of 90 days shall occur for pre -

qual ified contractors who fail to timely provide contract

documents.

6 6 . Section 337.164, Florida Statutes, states:

Recognizing that the preservation of

the integrity of the public contracting

process of the department is vital to the

development of a balance d and efficient

transportation system and is a matter of

interest to all the people of the state, the

Legislature determines and declares that :

(1) The procedures of the department

for bidding and qualification of bidders on

department contracts exist to secure the

public benefits of free and open competition

and to secure the quality of public works.

(2) The opportunity to bid on

department contracts or to supply goods or

services to the department is a privilege,

not a right.

* * *

To this end, it is the intent of the

Legislature to provide sufficiently broad

authority to the department to ensure the

integrity of its public contacting process.

6 7 . AMEC submits the following propositions: (1) That

AMEC does not meet the definition of “contractor” under Section

337.165, because AMEC has neither “bid” or “applied to bid”;

(2) That because Rule 14 - 22.0141 addresses only “contractors who

wish to bid” and AMEC does not wish to bid, that rule does not

apply to AMEC; (3) That contract S pecif ication 9 - 9 lists only

the penalty of de - certification, and accordingly DOT cannot

declare AMEC “non - responsible”; (4) That, in the present

situation, the appropriate and required information was timely

provided by AMEC, but the information just was not pu t on the

appropriate Acceptance on Offer of Final Payment form, provided

with DOT’s July 19, 2006, Offer of Final Payment (see Findings

of Fact 18 and 21) , and that AMEC’s incorporation by reference,

of voluminous documents associated with AMEC’s two pendi ng

claims plus the circuit court case citation, in a separate

November 1, 2006, letter labeled “Qualified Acceptance,” was

sufficient to comply with Specification 9 - 9, which uses the term

“qualified acceptance letter,” and which does not use the term

“acce ptance on offer of final payme nt" or “total”; and (5) t hat

DOT’s January 17, 2007 , n otice of intent to declare non -

r esponsible was selective enforcement , used by DOT as leverage

in the parties’ circuit court case, because th e portion s of the

November 16, 2 006 , and January 17, 2007, letters concerning the

“non - responsible” declaration were drafted by DOT’s legal staff,

without any precedent .

68 . AMEC’s first three argument s ( “ not a contractor ” , “ not

a contractor wishing to bid ” , and “ exclusivity of contrac t

specification penalty ” ) are without merit. AMEC admits it is

the “contractor” pursuant to the existing interchange contracts

between the parties . DOT can not be expected to “get inside the

head” of every corporate contractor to determine if that

contrac tor will ever , in the future , “ wish to bid.” Just as a

statute must be construed in a reasonable manner so as to avoid

absurd results ( see State v. Webb , 398 So. 2d 820 (Fla. 1981) ) ,

so must rules. Finally, just because Supplemental Specification

9 - 9 onl y threatened de - certification as a penalty, DOT is not

required to ignore applicable statutes and rules and restrict

itself to the contract specifications when it administers State

contract s and addresses the contractors it employs. Herein, the

quoted sta tute s , rules, and contract terms all apply to AMEC.

69 . There are two branches to AMEC’s fourth argument .

B oth are related to DOT’s a nswers to AMEC’s interrogatories.

Interrogatory No. 1 requested a detailed statement of DOT’s

basis for its January 17, 2007, declaration of non -

responsibility . A s part of a much longer answer, DOT responded

“ . . . AMEC had not submitted the proper forms or itemized the

total amount claimed in a Qualified Acceptance Letter.” In

response to AMEC’s Interrogatory No. 4, DOT responded, in

sum mary , that it agreed it could not require AMEC to use its

“Acceptance on Offer of Final Payment " forms ( see Findings of

Fact 19 - 21 ), but it did require the substance of the form.

70. First, there is no significant difference between

thes e interrogatory answers and the DOT witnesses’ testimony at

hearing , nor are these interrogatory answers and the testimony

contrary to contract specifications or any of the correspondence

between the parties. While AMEC is entirely correct that the

word “ total” does not appear in Specification 9 - 9, the overall

thrust of that specification and of all DOT’s correspondence was

that AMEC was expected to provide “itemized amounts” for each

project number . These amounts had to be stated so that DOT’s

Final Esti mates Office could rely upon them as being truly final

claim s for each project, much as an insurance company sets up

reserves against outstanding accident claims, and so that the

final finite amount requested by the contractor could be

analyzed by DOT for payment and/or negotiation, ultimately

leading to a close - out of the contract file(s). Likewise, even

th e truncated portion of DOT’s full answer to Interrogatory No.

1 , clearly does not omit DOT’s view that, in addition to

“itemized amounts,” certain mand atory forms were required of

AMEC and that AMEC was being held non - responsible for not timely

submitting those forms.

71. Specification 9 - 9 states that a contractor can be de -

certified for failure to follow DOT’s instructions in the

execution of a contrac t. The letters of instruction by DOT were

clearly ignored by AMEC.

72. Ms. Towers ’ July 19, 2006, written instructions were

to submit itemized amounts by project/contract numbers . ( See

Finding of Fact 18 ) . If anything, the blank forms made these

instru ctions even clearer. ( See Finding of Fact 19). Without

determin ing whether or not a total on each project/contract was

absolutely necessary to comply with 9 - 9, it is concluded that

DOT was clearly entitled to seek “itemized amounts” (the term

specificall y used in 9 - 9) by various components within each

project number. Each of AMEC’s two claims commingled components

of the two project numbers. The November 1, 2006, AMEC letter

did not itemize any amounts. Th erefore, th at letter’s attempt

to incorporate t he two claims, each claim combining the two

projects, still did not provide any “itemized amounts” by

project number. That was one material flaw in the November 1,

2006, and the February 13, 2007, proposed “qualified

acceptances”.

73 . T he second branch o f AMEC’s fourth argument is a non -

issue. L egally, AMEC waived any Section 120.57(1)(e) issues

with regard to whether or not the Acceptance on Offer of Final

Payment form constituted a “rule” or should have been adopted as

a rule . ( S ee Preliminary Statemen t) . F actually, this is not a

situation of DOT arbitrarily requiring a specific form. DOT did

not require that AMEC use its Acceptance on Offer of Final

Payment forms. (See Finding of Fact 31 .) In fact, as AMEC is

quick to point out, DOT’s answer to AME C’s Interrogatory No. 4 ,

states that DOT believes it cannot require that contractors use

that specific form but can require that contractors submit the

substance of the form.

74. The evidence shows that DOT’s Final Estimates Office

probably would have acc epted a reasonable incorporation by

reference, with minimal supporting documentation on each

project, provided AMEC had broken down the disputed amounts into

the two separate project numbers. Based on the evidence

presented ( see Findings of Fact 35 - 36), D OT might have regretted

such leniency , but use of a printed form for the balances

claimed was not required. Non - use of a standardized form is not

a genuine issue herein. What does matter here is that the

claims themselves, even if incorporated by referen ce, did not

break the balance claimed by AMEC down by project number, so

AMEC did not provide “itemized amounts,” the term used in

Specification 9 - 9.

75. The remainder of AMEC’s fourth argument seems to be

that it is up to DOT's District II Final Estima tes Office to

sift through voluminous papers in other offices of DOT in order

to determine what are “the particulars” of a contractor’s

qualified acceptance, before DOT can close out a contract, and

that the contractor is not required to timely submit eith er a

regular acceptance or qualified acceptance that meets DOT’s

instructions by contract or by letter. This interpretation is

inconsistent with the clear language of Supplemental

Specification 9 - 9 and DOT’s Offer of Final Payment.

76. Supplemental Spe cification 9 - 9 clearly requires that

specificity “in the particulars” of any disputed amount is

required from the contractor and that the specificity

requirement is designed to prevent any further claims or claim

amendments after the disputed amount and su pporting particulars

have been presented. AMEC’s Project Engineer’s testimony is

insuf ficient to show that even with a diligent search “upstairs

and downstairs and in my lady’s chamber , ” as it were, Ms. Towers

could have deciphered AMEC’s respective balan ces to resolve the

two projects . Therefore, DOT could reject AMEC’s November 1,

2006, and February 13, 2007, letters as qualified acceptance

letters. T he second material flaw in AMEC’s November 1, 2006,

and February 13, 2007 , letters was the lack of part iculars.

7 7 . Specification 9 - 9 clearly states the contractor must

submit either the regular acceptance or the compliant qualified

acceptance within 90 days of the Offer of Final Payment. AMEC

did not do either. It is un - refuted that the 21 - A and FHWA - 47

forms are “contract documents” that must be submitted under DOT

direction ; that direction of when to submit them was repeatedly

given by DOT ; and that the dates required by DOT for filing them

were repeatedly missed by AMEC.

78 . It is no t necessary to belabor whether F orm 21 - A, when

finally submitted on February 14 , 2007, was compliant. The

evidence is clear that AMEC did not timely (by November 7,

2006 , ) or by any other date instructed by DOT, submit any

variety of the 21 - A or FHWA - 47 forms . It is a lso clear that

AMEC did not timely submit either a regular or qualified

acceptance letter which was materially compliant with

Supplemental S pecification 9 - 9 . AMEC thereby render ed itself

subject to being declared non - responsible under the cited

statutes a nd rules.

79 . F inally, AMEC’s fifth argument, that DOT’s intent to

declare AMEC non - responsible was related to the parties' lawsuit

simply because DOT’s legal staff contributed to the contents of

DOT’s November 16, 2006, letter, is pure speculation. No

c redible evidence to that effect was presented.

80. AMEC’s corollary argument that this was selective

prosecution on a theory that " there have been no prior

declarations of non - responsibility separate from de -

certifications and therefore the non - responsi ble declaration in

this case must have been selective prosecution due to the

parties' lawsuit, ” is not supported in fact . While admittedly

not identical, there have been similar declarations of non -

responsibil ity which are discussed in Findings of Fact 51 - 54 .

AMEC's fifth argument also is not supported in law , because the

instant case is not, strictly speaking, a case of first

impression . Although the declarations as non - responsible in the

cases of CPW Enterprises, Inc. d/b/a Cherokee Construction

Compa ny v. DOT , DOAH Case No. 03 - 1253 (RO: 9/18/03; FO:

12/02/03), and Larry Holley Tree and Lawn Spraying, Inc. v. DOT,

DOAH Case No. 02 - 3373 (RO: 3/11/03; FO: 4/24/03), were not based

on f ailure to submit a Letter of Qualified Acceptance after a

job was compl eted, DOT did, therein, successfully declare those

contractors “non - responsible,” without a concurrent de -

certification .

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Transportat ion enter a

final order ratifying its January 17, 2007, declaration of AMEC

as non - responsible for 90 days, the 90 days to run from the date

of the Final Order .

DONE AND ENTERED this 18th day of January , 200 8 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of January , 200 8 .

ENDNOTE

1 / One Proposed Re commended Order was filed three days late,

but has been considered, anyway.

COPIES FURNISHED:

Erik Fenniman, Es quire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

F. Alan Cummings, Esquire

S. Elysha Luken, Esquire

Smith, Currie & Hancock

1004 DeSoto Park Drive

Tallahassee, Florida 32301

Jam es C. Myers, Clerk of the Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.