16-002567 M And B Lawn Maintenance Service, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Monday, December 5, 2016.

Summary: Petitioner's conduct in not signing or providing documents concerning mowing contracts awarded by DOT, did not justify finding Petitioner non-responsible, particularly in light of DOT's discontinuation of payments on another contract with Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

M AND B LAWN MAINTENANCE

SERVICE, INC.,

Petitioner,

vs. Case No. 16 - 2567

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case was heard before Administrative Law Judge

Robert L. Kilbride, of the Division of Administrative Hearings

( " DOAH " ) , via video teleconference on September 15, 2016, in

Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul J. Kneski, Es quire

Paul J. Kneski, P.A.

Suite 110

333 Northwest 70th Avenue

Plantation, Florida 33317

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner ' s conduct, omissions or actions in

failing to execute and provide required documentation regarding

roadway maintenance contracts awarded by Respondent, warrants a

finding that Petitioner is " non - responsible " for a two - year

period and prohibited from contracting with the state for that

period of time.

PRELIMINARY STATEMENT

On March 28, 2016, Respondent, Department of Transportation

( " D epartment " ), took written action to declare Petitioner , M

and B Lawn Maintenance Service, Inc. ( " M&B " ) , a non - responsible

contractor for a two - year period pursuant to section 337.16 ,

Florida Statutes.

This intended action wo uld prohibit M&B from bidding on any

state maintenance contracts for the debarred period of time.

Likewise, a declaration of non - responsibility would prohibit M&B

from being a supplier, subcontractor, or prime contractor on any

Department projects for the specified period of time.

Taking exception to this determination, M&B timely requested

a hearing pursuant to sections 120.569 and 120.57(1), Florida

Statutes , and the matter was referred to D OAH .

The final hearing was held on September 15, 201 6 . M&B

pres ented the testimony of Jonathan McIntyre and submitted

Exhibits 1 through 6, which were admitted into evidence pursuant

to the parties ' stipulation.

The Department offered the testimony of Michael E.

Sprayberry and Alan Autry and offered Exhibits 1 through 4 8 ,

which were admitted into evidence pursuant to the parties '

stipulation.

The Transcript was filed with DOAH on October 19, 2016. The

parties were granted an extension of time to file their proposed

recommended orders .

Both parties ' p roposed r ecommende d o rders were then timely

filed and considered by the undersigned in preparing this

Recommended Order.

References to Florida Statutes are to the 2015 version,

unless otherwise indicated.

FINDING S OF FACT

The undersigned makes the following findings of rele vant and

material facts:

1 . M&B bid on Department Contract E7J12 let on October 9,

2013.

2 . M&B bid on Department Contract E1N43 let on January 16,

2014.

3 . M&B bid on Department Contract E3082 let on August 13,

2015.

4 . M&B bid on Department Contracts E6K44, E6K45, E6K46, and

E6K51 let on January 28, 2016.

5 . M&B bid on Department Contract E4R75 let on February 5,

2016.

6 . M&B does not have a certificate of qualification from

the Department, nor is it required to have one.

7 . The Department is the s tate agency responsible for

coordinating the planning of a safe and efficient state

transportation system. To accomplish that, the Department relies

on qualified contractors to provide roadway mowing and other

landscap ing maintenance services in order to meet Florida ' s

transportation needs.

8 . Jonathan McIntyre owns and operates M&B, a company that

provides mowing and landscaping maintenance services for the

Department. The company was previously owned by his father.

9. The company has been a contractor for the Department for

over 30 years and has adequately performed many mowing and

landscap ing maintenance contracts for the state. " One hundred

percent " of M&B ' s business is derived from mowing and landscaping

maintenance contacts with the Department, an d the state is its

exclusive client.

10 . During the hearing, Alan Autry, m anager of Contract

Administration for the Department, provided an overview of the

bidding process. The bidding process begins with a bid

solicitation notice which is also known as the advertisement.

The solicitation outlines the requirements for bidders and

includes project specific information. It also establishes when

bids will be received. Resp. Ex. 46 .

11 . The next step in the bidding process is for the

Department to receive and open bids on the date and time

identified in the solicitation. Depending upon the nature of the

bid, a technical review is done.

1 2 . Once the contract is awarded, the vendor is notified

and sent an award letter along with the contract and other

pert inent documents for execution. The award letter identifies

the date for which the signed contract along with other documents

are to be returned to the Department for review to ensure

conformance with the solicitation and specifications.

Subsequently, the Department has a specific timeframe to execute

and enter into the agreement.

13 . After being awarded several maintenance contracts as

the low bidder, the Department issued a Notice of Intent to

Declare Non - responsible ( " Notice " ) to M&B on March 28, 2016 ,

concerning its failure to " execute " eight contracts that had been

awarded. 1/

14. A noteworthy document that must be returned to the

Department, along with the signed contract, is a payment

performance bond, also known as a contract bond (a document that

is signed by or executed by the vendor, and the vendor ' s surety).

Other documents that must be promptly returned include a contract

affidavit and insurance confirmation, such as policies and

certificates as required by the contract specifications or

" spec s. " Resp. Ex. 46 Î 48.

1 5 . According to contract specifications 3 - 6 and 3 - 7, if

the Department does not receive the executed documents from the

vendor within ten days, excluding weekends and holidays, the

D epartment may annul the contract, award it to anot her vendor, or

perform the work by other means. Resp. Ex. 47 .

1 6 . The solicitations for the contracts in this case

expressly incorporated contract specifications 3 - 6 and 3 - 7.

Resp. Ex s . 1, 5, 10, 16, 22, 28, 35 , 40.

1 7 . The contracts at issue in this c ase are considered " low

bid " contracts, meaning that the award of these contracts is made

to the vendor that submits the lowest cost bid in response to the

solicitation, without further inquiry or analysis. R esp . Ex. 48.

1 8 . Concerning Department C ontrac t E7J12, M&B was the

initial lowest bidder. The Department awarded the contract to

M&B; however, M&B failed to return a signed contract form,

contract bond, contract affidavit, and/or sufficient insurance

documentation within the ten - day time period. Res p. Ex s . 3, 4,

4b.

19 . Concerning Department C ontracts E1N43, E3082, E6K46,

and E4R75, M&B was also the initial lowest bidder. The

Department awarded the contracts to M&B; however, M&B failed to

return a signed contract form and required documents within the

allotted time period. Resp. Ex s . 7 Î 9 , 12 - 15 , 30 - 33 , 42 Î 4 5.

20 . Concerning Department C ontracts E6K44, E6K45, and

E6K51, M & B was not the initial lowest bidder according to

preliminary bid tabulations. However, the initial lowest bidder

(another compa ny) was found to be non - responsive , and M&B

subsequently became the lowest bidder and was awarded those

contracts as well. However, M&B also failed to return the

executed contract and accompanying documents to the Department

within the ten - day period. Re sp. Ex s . 18 - 21 , 24 - 27 , 36 Î 39.

2 1. There was no dispute regarding the calculation of the

ten - day timeframe for M&B to sign the contract(s) and return the

required contract documents.

22 . McIntyre admitted during testimony to never signing

these contracts or obtaining bond approval " certificates " in a

timely fashion for the subject contracts.

2 3 . In enforcement actions like this, the Department

considers several factors to determine the appropriate length of

time to declare a contractor non - responsible. T he Department

considers the severity of the situation and makes an evaluation

on a case - by - case basis .

24. Maintaining the integrity of the bidding process is

also a focus of concern. Typically, the Department will impose

six months to a year of non - resp onsibility per incident. Resp.

Ex. 48.

2 5 . Throughout all the evidence and testimony presented, it

was clear to the undersigned that a lack of contract work

performance or anticipated work performance by M&B was not the

ground(s) for finding M&B " non - res ponsible. " Rather, it was

M&B ' s failure to (1) sign the subject contracts and (2) provide

required supporting documents that formed the basis for finding

M&B non - responsible.

26 . Despite his candid testimony that he did not sign or

timely provide the sup porting documents, M&B raised several

defenses claiming there was not sufficient cause to hold M&B

" non - responsible. "

27. McIntyre explained that a series of events with the

Department regarding another maintenance contract prevented him

from complying wi th the bonding requirement. He argued that

other conduct of the Department, inextricably intertwined with

these contracts, belies any finding that M&B was at fault, or

non - responsible. 2/

2 8 . More specifically, M&B asserted that the failure on

the part of M&B to " execute " the 2016 contracts cited in the

Department ' s Notice was caused by the Department ' s failure

to timely pay M&B for five months of work which M&B had

completed for the Department on a prior contract , Department

C ontract E4Q26.

29 . Stated di fferently, M&B argued that it did not obtain

required performance bonds on the subject contracts let in 2016

because M&B did not have the funds needed to pay the performance

bonds on those contracts. This in turn was due to the

Department ' s failure to pay M&B for five months of work it had

completed for the Department on a prior contract, Department

Contract E4Q26. 3/

30 . As a part of this defense, evidence was presented that

on March 8, 2016 , M&B, through its counsel, sent a letter to the

Department deman ding payment that was overdue on Department

C ontract E4Q26 . Pet. Ex. 1. This included a claim for payment

for five months of work M&B had already completed for the

Department.

31 . A fter M&B retained counsel and demanded payment , the

Department, on March 28, 2016, mailed notice to M&B that the

Department was declaring M&B " non - responsible . "

32 . McIntyre testified that when M&B bid on the subject

contracts in 2016 , he anticipated that the Department would have

timely and regularly paid it the monies the D epartment owed it on

Department C ontract E4Q26. The undersigned finds that b ased on

his longstanding relationship with the Department and its

practice of paying M&B each month on Department C ontract E4Q26,

this reliance was not unreasonable.

33 . By all a ccounts and the reasonable inferences drawn

from the evidence and testimony of McIntyre, M&B would have been

in a solvent financial position to post performance bonds on the

subject contracts let in 2016, but for the fact that the

Department had delayed mo nthly payments for work M&B had

performed on Department C ontract E4Q26. There was no persuasive

or credible evidence presented to dispute this.

34. Likewise, there was no persuasive evidence presented to

show or suggest that there were any performance is sues related to

Department C ontract E4Q26 which would have justified a material

or significant offset or deduction of what was due to M&B on that

contract.

35 . When Autry was reviewing the file and evaluating the

enforcement options available to the Depar tment, he was not aware

that counsel for M&B had already written the Department and

asserted that M&B had not been paid for five months of work M&B

had performed on a prior contract, Department Contract E4Q26.

36. The Department ' s ongoing monthly payment for work M&B

had completed on Department C ontract E4Q26 was interrupted and

significantly delayed because of problematic language in the

E4Q26 contract prepared by the Department. More specifically,

the Department had been paying M&B for work on Departmen t

Contract E4Q26 on a monthly basis, for seven months. At some

point, the Department was audited by the D epartment of Financial

Services and learned that monthly payments were not permitted

under that contract ' s language, as written.

37. In a legitimate and good faith effort to correct the

payment delay, the Department drafted and requested that M&B sign

a supplemental contract that it felt would have corrected the

payment delay. As it turned out, when it submitted the

supplemental contract to M&B, nearl y all 12 months of the work

under Department C ontract E4Q26 had been completed, and only a

few weeks remained on that contract.

38. McIntyre, not being particularly skilled at

understanding supplemental contracts, was skeptical and concerned

that signing a supplemental contract could jeopardize his ability

to insist on getting all the money he was due on Department

Contract E4Q26.

39. While McIntyre grappled with how to respond to the

supplemental contract proffered by the Department, Michael E.

Sprayberr y was aware and mulling over the March 8, 2016 , letter

from M&B ' s counsel demanding that the Department pay M&B

$66,666.65 owed for the five months of work it had completed.

40. In M&B ' s counsel ' s March 8, 2016 , letter to the

Department, which attached M& B ' s Invoice No. 8 for $66,666.65, he

asked for an explanation as to why payment was not being made to

M&B and why the Department was asking M&B to sign a supplemental

contract when the contract had been completed by M&B.

41. The Department failed to provi de an y detailed

explanation before issuing its Notice on March 28, 2016 .

42 . Other important events are worth noting. Prior to

issuance of the Notice declaring it non - responsible, M&B had

obtained four necessary Bond Approval Advisories dated March 10

an d 14, 2016, which verified that all the subject contract bonds

were pre - approved by the insurer and were ready to be issued

pending receipt of the premium payment s. P et. C omposite Ex . 4. 4/

43 . Payment to M&B on Department C ontract E4Q26 in the

amount of $48,102.65 finally came from the Department on May 16,

2016. Pet . Ex. 5. 5/

44 . Sprayberry acknowledged that the Department quit paying

M&B after the seventh month on Department C ontract E4Q26, which

was a 12 - month contract. Sprayberry testified that the

Department was " very surprised " when the Department of Financial

Services directed the Department to discontinue paying M&B

because of the language of the contract entitling M&B to be paid

monthly. 6/

45 . Sprayberry forthrightly acknowledged that M&B shou ld

have been paid on contract #E4Q26 and that he had difficulty

understanding the language of the contract which prompted the

Department of Financial Services to suddenly direct the

Department to stop paying M&B on a monthly basis. See generally

Pet. Ex. 6.

46 . Sprayberry also acknowledged that the " snafu " the

parties experienced with the payment provisions of Department

C ontract E4Q26 was, indeed, " a problem " that " we need to get

solved. "

47. Insofar as the interruption in monthly payments under

Departm ent C ontract E4Q26 was concerned, Sprayberry went on to

add that the Department was " very surprised " by the audit

response by the Department of Financial Services and " didn ' t

count on that . " He went on to explain that the Department was

also certain that " McIntyre didn ' t count on that " (meaning the

abrupt discontinuation in monthly payments) .

48 . Once M&B was paid the monies that the Department owed

on Department C ontract E4Q26, M&B was awarded two additional

Department contracts for which it timely retur ned all required

documents and the performance bonds.

CONCLUSIONS OF LAW

49 . DOAH has jurisdiction over the parties and subject

matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(201 6 ).

50 . Proceedings conducted by DOAH are " de novo " in na ture.

§ 120.57(1)(k), Fla. Stat. A hearing before DOAH is intended to

assist in formulating final agency action, not to review and

approve action taken earlier and preliminarily by the agency.

Fla. Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1s t DCA

1981).

51 . As the party asserting the affirmative of the issue

(seeking to designate the contractor as " non - responsible " for a

two - year period), the Department bears the burden of pro of.

J.W.C . Co. , supra , and Balino v. Dep't of HRS , 348 So. 2d 349

(Fla. 1st DCA 1977).

52. In preparing a recommended order, it is the evidence

presented at the hearing upon which the A dministrative L aw J udge

should rely. As a result, he or she may consider facts and

circumstances not previously considered by the agen cy. See J.D.

v. Fla. Dep ' t of Child. & Fams. , 114 So. 3d 1127, 1132 (Fla. 1st

DCA 2013), citing with approval Couch Const. Co. v. Dep ' t of

Transp. , 361 So. 2d 172 (Fla. 1st DCA 1978). See also Caber

Sys . , Inc. v. Dep ' t of Gen. Servs. , 530 So. 2d 325, 334 (Fla. 1st

DCA 1988).

53. Within the context of c hapter 337 and its related state

contracting rules and provisions, the discretion reposed in the

Department to suspend the ability of contractor s to bid on state

projects " for cause " has been characterized as being in the

nature of " drastic authority and responsibility " involving an

important matter and has likewise been described as " highly penal

in nature . " White Constr. Co. v. Div . of Admin . , State Dep ' t of

Transp. , 281 So. 2d 194, 197 (Fla. 1973). 7/

54. In a similar vein , the right to engage in business is

an important right and interference with that right is a serious

matter and should only be done in strict compliance with law.

Id.

55 . Additionally, w hen suspending a malfeasant contractor ' s

right t o bid on public contracts, the First District Court of

Appeal approved the determination by an Administrative Law Judge

that there must be a showing of fault by the contractor to

support a suspension of its certificate of qualification. See

generally Whit e Constr. Co. v. State, Dep ' t of Transp. , 535 So.

2d 684 (Fla. 1st DCA 1988). 8 /

56. Since several statutes and rules are implicated in this

case, a brief overview is useful.

5 7 . Section 337.16(2), which serves as the foundation of

the Department ' s positi on , states:

For reasons other than delinquency in

progress, the department, for good cause, may

determine any contractor not having a

certificate of qualification non - responsible

for a specified period of time or may deny,

suspend, or revoke any certificat e of

qualification. [ 9 /]

58 . Florida Administrative Code Rule 14 - 22.0141, which more

fully implements the statu t e, states:

(1) Contractors who do not possess a

Certificate of Qualification shall be

determined non - responsible if the Department

determines that good cause exists. Good

cause shall exist when any one of the

circumstances specified in subsection 14 -

22.012(1), F.A.C., occurs.

(2) Determination of Contractor Non -

Responsibility. The Contractor will be

determined to be non - responsible based upo n

good cause as set forth in subsection 14 -

22.012(1), F.A.C., for a specific period of

time based on the factors specified in

subsection 14 - 22.012(5), F.A.C.

(a) This rule does not limit the

Department ' s ability to reject a bid or

cancel an award for a p articular contract

based upon the contractor being non -

responsible.

(b) A determination of non - responsibility

shall prohibit a contractor from bidding,

subcontracting, or acting as a material

supplier on any Department contracts or

projects during the pe riod of non -

responsibility.

(c) If a contractor is declared non -

responsible and the contractor receives an

additional determination of non -

responsibility, the time periods shall run

consecutively.

59 . Relevant provisions of r ule 14 - 22.012 state:

As pro vided in Section 337.16(2), F.S., the

Department, for good cause, may deny,

suspend, or revoke a contractor ' s Certificate

of Qualification. A suspension, revocation,

or denial for good cause pursuant to this

rule shall prohibit the contractor from

bidding on any Department construction

contract for which qualification is required

by Section 337.14, F.S., shall constitute a

determination of non - responsibility to bid on

any other Department construction or

maintenance contract, and shall prohibit the

contrac tor from acting as a material supplier

or subcontractor on any Department contract

or project during the period of suspension,

revocation, or denial Good cause shall

include the following:

* * *

(f) The contractor failed to comply with

contract or warranty requirements, or failed

to follow Department direction in the

performance of a contract.

(g) The contractor failed to timely furnish

all contract documents required by the

contract specifications, special provisions,

or by any state or feder al statutes or

regulations. If the contractor fails to

furnish any of the subject contract documents

by the expiration of the period of

suspension, revocation, or denial set forth

above, the contractor ' s Certificate of

Qualification shall remain suspended ,

revoked, or denied until the documents are

furnished.

6 0 . Insofar as the arguments raised by M&B a re concerned,

there is a body of jurisprudence addressing defenses and excuses

for the nonperformance of the specific terms of a contract. 10 /

This body o f law indirectly speaks to the "good cause" finding

required by chapter 337 that is needed to invoke the

discretionary decision to find a contractor "non - responsible."

6 1 . The Restatement of Contracts, s ection 261 , provides:

§ 261 Discharge by Supervening

Impracticability. Where, after a contract is

made, a party ' s performance is made

impracticable without his fault by the

occurrence of an event the non - occurrence of

which was a basic assumption on which the

contract was made, his duty to render that

perf ormance is discharged, unless the

language or the circumstances indicate the

contrary.

See generally , Leon Cnty . v. Gluesenkamp , 873 So. 2d 460,463

(Fla. 1st DCA 2004) , and J.C. Gibson Plastering Co. v. XL

Specialty Ins. Co. , 521 F. Supp. 2d 1326 (M.D. Fl a. 2007) , both

applying the Restatement of Contracts, section 261. The same

restatement of the law is adopted and can be found at 11 Fl orid a

Jur isprudence 2d Contracts s ection 263 , note 11 .

6 2 . In this case , there was ample and compelling proof that

McIn tyre anticipated the continuation of monthly payments by the

Department, and it was at no fault of his own that he was unable

to promptly pay for the performance bonds due to the state ' s

abrupt and unexpected discontinuation of monthly payments on

Departme nt C ontract E4Q26.

6 3 . This expectation on his part was reasonable and

justified based on the past course of dealings and custom and

usage between the parties involving several months of

uninterrupted monthly payments.

6 4 . To that point, a general princi ple of law is

instructive. In Carr v. Stockton , 84 Fla. 69, 92 So. 814 (Fla.

1922), the Florida Supreme Court held that custom or trade usage

is implied to be a part of a written contract, and a contract

should be interpreted in light of the custom or usa ge (course of

dealings) between the parties. See also 11 Fla . Jur . 2d

Contracts § 167. This principle of law is still followed and is

well entrenched in Florida ' s jurisprudence concerning contracts.

6 5 . A reasonable conclusion to draw from the unique fa cts

of this case, based on the long course of dealings between the

parties, is that M&B had valid and compelling reasons for failing

to promptly execute the contracts.

6 6 . At no fault of its own, payment was abruptly

discontinued by the state frustrating and preventing M&B from

securing the performance bond certificates, as it had regularly

done in prior cases.

6 7 . Answers from the Department were not forthcoming to its

counsel ' s letter requesting an explanation for the abrupt

discontinuation of monthly p ayments.

68 . Even the Department and its staff were confused and

very surprised by the Department of Financial Services ' audit

response, not to mention the confusion in the mind of McIntyre.

69 . Based on the more persuasive and credible evidence, the

und ersigned concludes that had monthly payments on Department

C ontract E4Q26 continued in early 2016, M&B would have promptly

secured the performance bond certificates and performed the other

tasks necessary to execute the contracts.

7 0 . Despite the good fai th efforts by the parties to work

out the contract problem , time, logistics , and poor

communications prevented this , and it was not accomplished.

Regardless, under this unique set of facts and on this record ,

the undersigned cannot conclude that there was good cause to find

M&B non - responsible.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law , it is RECOMMENDED that the Department of Transportation

reconsider its preliminary decision and reverse its determination

that M&B was n on - responsible.

DONE AND ENTERED this 5th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

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 5th day of December , 2016 .

ENDNOTE S

1/ Failure to sign a contract and return spe cific contracts

documents within ten days of receiving the award letter is

considered by the Department to be a failure by the vendor to

" execute " the contract.

2/ This theory, and lack of good cause to support a determination

that it was non - responsible , was raised in the various pleadings

and responses M&B filed throughout the proceedings.

3/ Although there was some dispute regarding what was owed, the

Department ultimately paid M&B $48,000.00 of M&B ' s invoice for

$66,666.65.

4/ It is also significa nt to note that despite having the bond

approvals in hand, M&B had not received the payment it needed to

pay for the bonds. While these were not the " certificates "

confirm ing that the bonds were, in fact, secured, they

nonetheless are convincing evidence that M&B was diligently

attempting to get the documents it needed to be in compliance .

5/ Unfortunately, the payment date fell more than 45 days after

the Notice had already been issued and was too late to forestall

the issuance of the Notice.

6/ M&B h ad been paid monthly through the seventh month of that

12 - month contract when the Department of Financial Services made

this decision .

7/ While White Construction Co. involved a contractor who held

a certificate of qualification, this distinction is not

controlling . C ontractors with or without certification of

qualifications are both subject to similar sanctions under

section 337.16(2) . For instance, a finding of non - responsible

for a contractor without a certificate of qualification and

subsequent deba rment is no less penal than suspending or revoking

a contractor's certificate of qualification. Both are prohibited

from providing services on state contracts .

The effect upon either is "drastic" and "highly penal in nature."

Therefore, White Constructi on Co. is instructive in either

instance and bears upon either certificate d or non - certificated

contractors under section 337.16(2).

8 / This legal concept remains viable since chapter 337 continues

to require p r oof of "good cause" for debarment .

9 / It is significant to note that the "good cause" finding does

not mandate a finding of "non - responsible." Rather, by use of

the word "may," it gives the agency the discretion to make the

finding.

10 / This analysis does not require the undersigned to interpr et

ambiguous provisi ons of the parties' contracts.

COPIES FURNISHED:

Paul J. Kneski, Esquire

Paul J. Kneski, P.A.

Suite 110

333 Northwest 70th Avenue

Plantation, Florida 33317

(eServed)

Kimberly Clark Menchion, Esquire

Department of Transportation

Mai l Station 58

605 Suwannee Street

Tallahassee, Florida 32399

(eServed)

Andrea Shulthiess, Clerk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail St ation 58

Tallahassee, Florida 32399 - 0450

(eServed)

To m Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail S tation 58

Tallahassee, Florida 32399 - 0450

(eServed)

James C. Boxold, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail St ation 5 7

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 s hould be filed with the agency that

will issue the Final Order in this case.