19-005130 Network Engineering Services, Inc., D/B/A Bolton Perez And Associates vs. Department Of Transportation Status: Closed Recommended Order on Friday, April 17, 2020.

Summary: DOT's reliance on the OSHA report and NTSB's investigation into the FIU bridge collapse was insufficient "good cause" to deny BPA's request for qualification for 2019. DOT failed to demonstrate BPA failed to exercise independent judgment as a CEI.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

N ETWORK E NGINEERING S ERVICES , I NC .,

D/B/A B OLTON P EREZ A ND A SSOCIATES ,

Petitioner ,

Case No. 19 - 5130

vs.

D EPARTMENT OF T RANSPORTATION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a formal administrative hearing was conducted before

Administrative Law Judge ( " ALJ " ) Mary Li Creasy in Tallahassee, Florida,

on February 13, 14, and 17, 2020.

A PPEARANCES

For Petit ioner: George Richard Truitt, Esquire

Anthony Lopez, Esquire

Cole, Scott & Kissane, PA

9150 South Dadeland Boulevard, Suite 1400

Miami, Florida 33156

For Respondent: George Spears Reynolds, IV, Esquire

John Ashley Peacock, Esquire

Florida Department of Transportation

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

S TATEMENT OF T HE I SSUE

The issue in this administrative proceeding is whether the Florida

Department of TransportationÔs ( " DO T " or " the Department " ) denial of

PetitionerÔs, 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 PetitionerÔs participation in the construction of the

Florida International University ( " FIU " ) City Prosperity Project ( " FIU Bridge

p roject " ).

P RELIMINARY S TATEMENT

On July 11, 2019, DOT issued a Notice of Intent to Deny Request for

Qualification ( " NOID " ) to BPA. The NOID removed BPA from consideration

for award of professional service contracts with DOT. DOT issued the NOID

based upon BPAÔs failure to appropriately exercise independent professional

judgment required of a constructio n engineering and inspection firm ( " CEI " ) ,

as evidenced by the reports issued by the Occupational Safety and Health

Administration ( " OSHA " ) and the investigation of the National

Transportation Safety Board ( " NTSB " ) concerning the collapse of the FIU

Bridge p roject on March 15, 2018.

On August 1, 2019, BPA filed a Petition for Formal Administrative

Hearing. On September 24, 2019, the petition and accompanying documents

were filed with DOAH.

A formal hearing was held as scheduled on February 13, 14, and 17, 2020,

in Tallahassee, Florida. At the final hearing, BPA presented the testimony of

Joaquin " Jake " Perez, BPAÔs President and Director of Engineering ; Jose

Morales, BPAÔs CEI Services Manager ; and Gustavo Quesada, BPAÔs expert

witness. BPAÔs Exhibi ts 5, 7, 9, 11 through 18 , 29 through 32, 39, and 40

were admitted into evidence.

DOT presented the testimony of William Watts, P.E., Chief Engineer for

the Departmen t ; Robert V. Robertson, Jr., P.E., State Structures Design

Engineer for the Departmen t ; and Carlos Chapman, BPAÔs S enior I nspector.

DOTÔs Exhibits 1, 6, 9 through 16(c), 18 through 29, 33, and 34 were admitted

into evidence. DOT's deposition designations of BPAÔs corporate

representatives, Mr. Perez and Mr. Morales were also admitted and acce pted

into evidence.

DOT marked the OSHA report as Exhibit 2 for identification. BPA

objected to the admissibility of the OSHA and NTSB reports as unreliable

hearsay expert testimony and objected to the admissibility of the statements

within the report a s hearsay within hearsay. Prior to the final hearing, by

O rder dated January 24, 2020, the undersigned ALJ , upon motion filed by

Petitioner, took official recognition of both the OSHA and the NTSB reports.

However, despite multiple references to it, the OS HA report was neither

moved nor admitted into evidence.

The six - volume final hearing Transcript was filed on February 26, 2020.

The parties requested and were granted several extensions of time within

which to file proposed recommended orders. Both partie s submitted proposed

recommended orders which were considered in the drafting of this

Recommended Order. All references to statutes refer to the 2019 version ,

unless otherwise specified.

F INDINGS OF F ACT

T HE P ARTIES

1. DOT is the state agency responsible for coordinating the planning,

construction, and maintenance of a safe, viable, and balanced state

transportation system. DOT relies on qualified contractors and professional

consultants to provide services for FloridaÔs transportation needs.

2. Section 28 7.055(3), Florida Statues, requires that any firm or individual

desiring to provide professional serv ic es to a governmental agency must first

be certified by the agency as qualified , pursuant to law and the regulations of

the agency. The agency must find t hat the firm or individual to be employed

is fully qualified to render the required service. Among the factors to be

considered in making this finding are the capabilities, adequacy of personnel,

past record, and experience of the firm or individual. Each agency is also

required to evaluate professional services, including capabilities, adequacy of

personnel, past record, and experience of the firm or individual.

3. Section 337.105 and Florida Administrative Code Chapter 14 - 75 also

govern s the qualification s of professional consultants and other contractual

services providers to DOT. Section 337.105 authorizes DOT to deny or

suspend an application for qualification based upon a determination of " good

cause , " which includes, but is not limited to, nine illust rative examples

specified in s ection 337.105(1)(a) Ï (i) . DOT may, for good cause, deny or

suspend for a specified period of time a person or firm from consideration for

award of a professional service contract for a particular type of work.

4. BPA is a mult idiscipline engineering firm specializing primarily in

transportation related engineering services, including bridge design, roadway

design, civil works, construction engineering inspection ( " CEI " ), and program

and construction management. At the time of t he hearing, BPA had

approximately 38 employees. BPA was formed by Joaquin " Jake " Perez, P.E. ,

and John Bolton, P.E. , in 1997 to provide transportation - related engineering

services.

5. BPAÔs CEI qualifications are independent from, and do not necessarily

m irror, BPAÔs design qualifications. In some instances, BPA was qualified to

serve as a CEI for categories of structures that the firm was not qualified to

design. This is because BPA was internally divided into two core groups:

design and CEI. Since incept ion, BPAÔs design group was and continues to be

headed by Mr. Perez, and the CEI group headed by Mr. Bolton.

6. The operations of BPAÔs CEI and design groups were completely

segregated within the firm. CEI personnel did not work on design projects,

and des ign personnel did not work on CEI projects. As President, Mr. Perez

was involved in pursuing contracts for CEI services, but CEI services were

provided only by CEI personnel.

7. In or about 1999 or 2000, BPA first became qualified to respond to

DOTÔs requ est for qualifications to provide professional services to DOT.

Mr. Bolton qualified the firm to provide CEI services, and Mr. Perez qualified

it to provide design services. BPA remained qualified with the Department on

an annual basis for both CEI and des ign work for nearly 20 years until

July 2019. At that time, DOT issued a NOID removing BPA from

consideration for award of professional service contracts with DOT for 2019 -

2020. DOT issued the NOID based solely upon a report issued by OSHA and

the investig ation of NTSB regarding the collapse of the FIU Bridge p roject on

March 15, 2018.

T HE F IU P EDESTRIAN B RIDGE P ROJECT

8. In 2014, DOT entered into a Local Agency Program ( " LAP " ) Agreement

with FIU for its pedestrian bridge project, a Category II, complex bri dge, that

would be constructed along Southwest 109 th Avenue and Southwest 8 th

Street in the City of Sweetwater, Florida (the " project " ). As the supervising

agency of the LAP program, DOT was responsible for supervising and

authorizing work by the local age ncy.

9. The design of a Category II structure required an independent peer

review by a firm with no other involvement in the project, which was

prequalified with DOT. In September 2016, FIGG Bridge Engineers, Inc.

( " FIGG " ), the Engineer of Record ( " EOR " ) f or the project, hired Louis Berger

to review FIGGÔs plans for bridge foundation, substructure (end bents and

center tower), and superstructure. Those plans included construction

sequencing (including construction sequence drawings), the covered main

span p re - casting, transport of main span, and placement of the main span

between end bent 1 (south pier) and the pylon pier. The plans also included

the post - tensioning stressing and destressing sequences.

10. As the Local Agency, FIU was in responsible charge o f the day - to - day

activities, including project safety issues. Alfredo Reyna, P.E. , was the

DepartmentÔs LAP Coordinator for the project. Mr. Reyna is a licensed

professional engineer, although he is not a structural engineer.

1 1. In January 2016, FIU ente red into a design - build contract 1 with

Munilla Construction Management, LLC ( " MCM " ) , to design the bridge and

to perform all work and furnish all materials, equipment, supplies, and labor

necessary to construct the project. The bridge was designed by FIGG, a

member of the MCM design - build team and the EOR. FIGG is a reputable

designer who has been recognized internationally for its work. FIGG has

experience in designing complex bridges, such as the Sunshine Skyway

Bridge near Tampa, Florida.

12. On Septembe r 23, 2016, FIU entered into a Standard Professional

Services Agreement with BPA for CEI services (the " CEI Contract " ). At the

1 The interaction of the local agency, contractor, designer, EOR , DOT, and the CEI is

different between a " conventional " and a " design build " bridge project. In a conventional

project, the designer is hired by DOT or owner to cr eate a new bridge. The design goes

through a review process at DOT and a final set of plans goes to bid for a contractor. By the

time the contractor is selected, the EOR has completed the plans. The EOR is essentially " on

call " for the construction phase o f the project because the design work is complete. The CEI

begins its work when the contractor begins construction. If there is a question in the field,

the CEI makes a request for information from the EOR. DOT supplies design and

construction managers thr oughout the process.

In contrast, for a " design build " project, the owner has a conceptual plan for the project.

The designer and contractor bid for the job based on the preliminary conceptual plan. The

Designer/EOR and contractor work hand in hand from the beginning of the project and are in

constant communication. The CEI begins work when the contractor starts work on the

project. The CEI facilitates the resolution of any issues between the EOR/designer and the

contractor who continue to plan thro ughout the duration of the project. Like a conventional

build project, DOT has construction managers and design project managers involved from

the beginning of the project.

If concrete cracking occurs , it is the CEI's obligation to document the crack ing and speak

to people in the process who can assess and address the cracking. For a conventional build

bridge, if cracking is observed, the CEI documents it, copies DOT , and sends it to the EOR

for assessment. The EOR provides an assessment by conducting a site visit. The EOR then

prepares an Engineering Assessment Report (EAR) for the project team. In a design build

bridge job, if cracks are observed, they are documented by the CEI who notifies the EOR. The

EOR, who is already on the job site, assesses t he cracks and works with the contractor to

devise a solution.

time, John Bolton was the CEI qualifier for BPA. As CEI, BPA was to act as

the liaison between the project owner (FIU) and the co ntractor (MCM). The

CEI handles quality control, materials, schedules, payments, documents the

entire process, and monitors the project.

13. Jose Morales, P.E. , worked under John Bolton as the Senior Project

Engineer for the project. Mr. Morales first obta ined his professional

engineerÔs license in 2006. He had approximately 12 years of CEI experience

at the time of the collapse. Although he was the Senior Project Engineer for

the project, Mr. Morales had little - to - no design experience.

14. Mr. Morales was first involved in the early stages of pursuing the CEI

Contract for the project. After the project was awarded, BPA was not involved

in the design phase, but was later brought back into the fold beginning in

October 2016, when BPA received the Notice to Pr occed and fully staffed its

CEI scope of services when construction was scheduled to begin in or about

March of 2017.

15. The " Scope of Services " section (Exhibit B) to the CEI Contract

required BPA to be prequalified with the Department in the following w ork

categories: Work Type 10.1 -- Roadway CEI ; Work Type 10.4 -- Minor Bridge

and Miscellaneous Structures CEI ; and Work Type 10.5.1 -- Major Bridge CEI -

- Concrete. For the FIU bridge project, Categories 10.1 and 10.4 were

considered to be the " major " type of wor k while 10.5.1 was considered to be

the " minor " type of work. As expressly permitted by the Standard

Professional Services Agreement, BPA satisfied the 10.5.1 prequalification

requirement through its sub - consultant, The Corradino Group, Inc.

( " Corradino " ).

16. BPAÔs scope of services for the project did not include any design

responsibilities. BPA performed constructability review of the plans as part of

its CEI scope of work, but it did not review the plans or drawings on a

technical level.

17. The FIU bri dge was a Complex Category II structure as defined by the

DepartmentÔs Design Manual. The structure had a unique, complex design

that was meant to be a signature, architectural feature for the area.

18. The relevant construction sequence for the main span (Span 1) of the

FIU bridge consisted of:

a. c asting the main span superstructure in the casting yard;

b. i nstalling post - tension bars in the diagonal and vertical members of

the structure;

c. s tressing of the main - span post - tensioning while the main span i s in

the casting yard;

d. r emoving the temporary formwork and supports;

e. t ransporting the main span from the casting yard using a self -

propelled modular transporter and placing the structure in a " simply

supported " condition on the south pier and pylon p ier; and

f. d e - tensioning truss members 2 and 11 .

19. Generally, cracks in concrete are common and are not, in and of

themselves, a cause for concern. On a design - build job, when cracks manifest

themselves in a concrete element, the CEI must document the c racking and

report it to the design - build team, which includes the EOR. Depending on the

nature of the cracks, the CEI may request an EAR from the EOR. This

process is set out in s ection 400, subsection 400 - 21, of DOTÔs Standard

Specifications for Road and Bridge Construction (the " Standard

Specifications " ).

20. DOT's Construction Project Administration Manual ( " CPAM " ) includes

the procedures to be followed by a CEI in addressing cracks in concrete. The

CPAM requires that the CEI identify and document its o bservations and

convey the information to the EOR for a final disposition as to the potential

danger of the crack or the need for further evaluation.

The FIU Bridge Cracking and Inspections by BPA

21. On or about February 6, 2018, while Span 1 of the brid ge was still in

the casting yard, BPA became aware of certain cracks that had developed in

the structure. Mr. Morales personally inspected the structure after the

tendons on truss members 2 and 11 were stressed, and he noted that cracks

had developed in ot her locations on the bridge. The cracks observed were very

small, approximately 0.004 of an inch wide.

22. On February 13, 2018, BPA submitted Crack Report # 1 to MCM, FIU,

and Corradino, documenting the cracks that had developed in the concrete

truss membe rs after completing the post - tensioning operations in the casting

yard. Despite the small size of the cracks, BPA requested that the EOR

provide an assessment of the cracks.

23. FIGG, the EOR, responded to BPAÔs request by stating that the

current conditio n observed was temporary in nature and that the cracks were

not an issue.

24. BPA exercised independent professional judgment when it exceeded

the requirements of s ection 400 of the Standard Specifications and the CPAM

by documenting and reporting these in itial cracks.

25. In late February 2018, before the placement of the main bridge span

on the permanent pylon and south pier supports, cracks were observed in

certain truss members. BPA prepared and submitted Crack Report # 2 to FIU

and MCM on February 28, 2 018, documenting the size and location of these

cracks and requested that FIGG evaluate the cracks and provide a

disposition.

26. In its report, BPA called attention to certain cracks that were

significant in size. As CEI, BPA was not qualified to determin e whether these

larger cracks posed an imminent danger of collapse. Further, BPAÔs design

team was not involved in the design of the bridge and was not qualified to

evaluate these cracks from a design engineering perspective due to the

category and complex ity of the bridge.

27. At this point, the cracks were not " structural " as defined by

Section 400 of the Standard Specifications. Cracks more than one - half inch in

depth are deemed " structural " and trigger the obligation of the CEI to notify

the EOR. Nevert heless, BPA, again, exercised its independent professional

judgment above and beyond the requirements of the Standard Specifications

and CPAM by requesting that the report be forwarded to the EOR and

requesting that the EOR provide a response and dispositi on of the cracks.

28. On March 7, 2018, FIGG replied to Crack Report # 2, stating, in part,

that the cracks appeared small, that they were not concerned about these

types of cracks in the particular region shown in the report, and that MCM

would need to sea l the cracks in accordance with the DepartmentÔs

specifications. As the EOR, FIGG did not have any structural concerns

regarding the cracks in Crack Report #2.

29. On March 7, 2018, FIGG representatives were on site and observed

the cracks referenced in Cr ack Report #2. After observing the cracks, FIGG

did not delay the bridge movement that was scheduled to take place three

days late r on March 10th.

30. As of March 8, 2018, BPA had no concerns regarding the integrity of

the structure or public safety becaus e the EOR had looked at the cracks in -

person and assured the project team that the cracks were not a safety issue

or structurally significant. These assurances came two to three days prior to

the bridge being moved over Southwest 8 th S treet and placed on t he

permanent pylon and pier supports. The bridge movement was not delayed

due to the cracks observed by the EOR.

31. On March 10, 2018, Span 1 was moved from the casting yard and

placed on the permanent pylon and south pier supports. After the placement

an d de - tensioning of diagonal members 2 and 11, cracks began to appear at

the construction joint of diagonal 11, the deck, and at the top of diaphragm II.

32. At approximately 11 :00 a.m. on March 13, 2018, two days before the

collapse, BPA circulated a draft of Crack Report #3 to MCM, recommending

further monitoring and documenting of the cracks to determine whether they

were active or dormant, and requesting that BPA be informed of the outcome

of the EORÔs EAR and course of action. At 5:18 p . m . on March 13, 2018, the

EOR responded to MCM with additional recommendations and stated

" [a]gain, we have evaluated this further and confirmed that this is not a

safety issue. "

33. Because BPAÔs design team was not involved in the project, no BPA

design personnel were a ware of the documented cracking on the structure

until sometime after Crack Report #3 was generated. At that time,

Mr. Morales provided Mr. Perez with a copy of a draft of Crack Report #3.

Mr. Perez briefly reviewed the draft report and confirmed with Mr. Morales

that the CEI team had elevated the issue to the EOR.

34. At all times in the documented communication relating to the cracks,

the EOR and members of the FIGG design team represented to BPA that the

cracks were not a safety concern, without reservat ion.

35. Starting on March 13, 2018, FIGG directed MCM to implement an

initial, temporary measure to address observed cracking in the member 11/12

nodal region. At that time, BPA was not aware of this communication

between the EOR and the c ontractor. To re store the temporary support

conditions when the structure was in the casting yard, MCM placed shims

between diaphragm II and the pylon on March 13, 2018.

36. FIGG also directed re - tensioning the post - tensioning rods in truss

member 11 to begin on March 15, 2018. The re - tensioning operation was

made as a " rushed request " to the post - tensioning subcontractor by MCM on

March 14, 2018. " FIGG recommends to stress these PT bars as soon as

possible but again, this is not a safety concern. "

M ARCH 15, 2018 , A ND T HE B RIDGE C OLLAPSE

37. Rather than waiting for the EAR, BPA once again exercised its

independent , professional judgment and went above and beyond the

requirements of the Standard Specifications, CPAM, and Contract

Documents when it further escalated the issu e of the cracks by calling for a

meeting with the EOR. On the morning of March 15, 2018, a meeting

requested by BPA and coordinated by MCM, was held in Miami, Florida.

Representatives of FIGG, MCM, DOT, FIU, and BPA were present.

38. At the March 15 th meet ing, BPA first became aware of the EORÔs

instruction to MCM to proceed with a second temporary measure. This

subsequent temporary measure was to reinstate the post - tensioning

compression force back in member 11 as per the previous construction phase.

As ex plained by the EOR, both temporary measures (shims and re -

tensioning) were intended to restore the temporary support conditions when

the structure was in the casting yard.

39. Prior to the start of the meeting, the EOR, other FIGG engineers, and

DOTÔs LAP Coordinator inspected the bridge and the cracks in the nodal

region of members 11/12.

40. Only FIGG had structural engineers at the meeting. No other

engineers present at the meeting had a background in structural

engineering, including those in attendance on behalf of BPA. The meeting

was called for purposes of discussing the concrete cracking on Span 1, and

specifically the concrete cracking in nodal connection between truss members

11 and 12 and the bridge deck. At this meeting, BPA informed FIGG that th e

cracks in the bridge were lengthening and growing daily. Though not

formally invited, Mr. Reyna attended this meeting in his capacity as DOTÔs

consultant/Assistant LAP Coordinator.

41. At the March 15 th meeting, the EOR presented FIGG's assessment of

the cracking after having reviewed the three BPA crack reports and having

personally inspected the cracks on at least the following two occasions:

( 1) prior to the bridge being moved from the casting yard over Southwest 8th

S treet; and ( 2) on the morning of t he March 15 th meeting. The EORÔs

presentation consisted of a lengthy and comprehensive PowerPoint slide

presentation on the conditions of the bridge, structural analysis by

calculation s and 3D modeling of the loads and forces the area of member

11/12 nodal region cracks, and an evaluation of the safety of the span over

Southwest 8 th Street for workers and the public.

42. Throughout the March 15 th meeting, BPA exercised its independent

professional judgment by actively participating in the EORÔs presentation ,

questioning and challenging the EOR. For example, BPA:

a. inquired as to whether temporary shoring was needed;

b. sought clarification regarding the mechanism being used to

capture the load from the node and whether it would have to be

integrated with th e pylon diaphragm;

c. requested clarification on the amount of transferred post -

tensioning assumed for the nodal shear stability analysis;

d. inquired as to whether there were any restrictions on load;

e. inquired as to whether there would be a crack mon itoring plan;

f. requested a copy of the EORÔs presentation;

g. inquired as to whether it had been peer reviewed and commented

that it wanted more eyes on the presentation calculations; and

h . BPA requested a copy of the stressing procedure that was bei ng

recommended by the EOR.

43. Throughout the presentation, and during the question and answer

phase of the meeting, the EOR assured BPA and the other attendees that the

structure was safe. These assurances were based on statements made by the

EOR as well as its calculations and modeling, which were part of its slide

presentation at the meeting.

44. In the presentation on the slide entitled " Safety, " FIGG stated that

" È[it] had conducted sufficient supplemental/independent computations to

conclude that ther e is not any concern with safety of the span suspended over

the road. " At the end of the presentation, the EOR concluded the meeting

with " [b]ased on conservative calculations, it is concluded that the design

meets LRFD strength requirements for this tempo rary condition and

therefore there is no safety concern relative to the observed cracks and minor

spalls. "

45. During the meeting, the EOR stated that some cracking similar to the

ones on the structure , were expected. The EOR further stated during the

meet ing that the top deck spalls could not be replicated, but that the spalled

areas were minor and they should be repaired during the next phase of work

when the pylon concrete was to be placed.

46. No engineer at the meeting, including DOT's representative,

Mr. Reyna, requested or recommended a complete road closure to protect the

public safety or that the bridge be shut down. BPA had no reason to request a

full road closure of Southwest 8 th S treet. There was no preplanned complete

road closure, there was no maintenance of traffic ( " MOT " ) deficiency, and,

based on the EORÔs presentation, BPA was reasonably satisfied that no

safety issues required a road closure.

47. Towards the end of the meeting on March 15 th , MCM informed BPA

that a specialty contractor, Str uctural Technologies ( " VSL " ), was already

onsite to conduct the re - tensioning operation. Without BPAÔs knowledge, VSL

had already mobilized on site to perform the remedial re - tensioning. BPA was

not involved in pre - coordination for the re - tensioning operat ion. Therefore,

BPAÔs sub - consultant, Corradino, was not onsite to participate in monitoring

of the re - tensioning procedure.

48. CorradinoÔs role, as BPA's sub - contractor, was that of a 10.5.1 CEI

(Major Bridge CEI -- Concrete). Corradino was responsible for monitoring and

documenting the post - tensioning operations. The post - tensioning operation

after placement of the span had already occurred and therefore, Corradino

was not on - site on March 15 , 2018 .

49. Based on the safety assurances and conservative calc ulations

presented by the FIGG EOR that the structure was safe, BPA , and the other

professional engineers present at the meeting, including those representing

FIU and DOT, followed the recommendations of the FIGG EOR to bring the

main span condition back t o its pre - existing state when the span was in the

casting yard.

50. BPA did not have the expertise or the contractual duty to perform its

own analysis of th e cracking o n this complex bridge and override, or even call

into question, FIGGÔs unequivocal asses sment that the bridge was safe.

51. During the restressing operation of member 11, the roadway below the

bridge had two westbound lanes closed as per the blanket, two - lane, closure

permit issued by DOT. This blanket, two - lane, closure permit was obtained

b y MCM to provide workspace underneath the bridge to conduct the remedial

action. MCM obtained the blanket, two - lane , closure permit from the

Department the morning of March 15, 2018, before conducting the remedial

action.

52. A CEIÔs authority to request a partial or complete road closure is

defined by the contract plans and roadway closure permits, which is

implemented using the procedures outlined by the CPAM and the CEI Scope

of Services of the CEI Contract. A CEI is authorized to request the contractor

to either partially or fully close a road if there is an MOT deficiency, as

contemplated by CPAM Section 9.1.8 -- " Recommended Action to Shut Down a

Project Due to MOT Deficiencies. " Lastly, a CEI has authority to request a

partial or full road closure if it is aware of a safety issue .

53. None of these conditions existed on the project in the days leading up

to the collapse in light of the EORÔs comprehensive presentation regarding

the cracking conditions of the bridge, strength in the area of member 11/12

n odal region, safety of the span over Southwest 8th Street, and repeated,

unequivocal reassurances that the structure did not pose a safety concern.

54. Ultimately, BPAÔs authority to request a partial or complete road

closure on the project was a collectiv e effort with the Department and FIU.

BPA did not have the authority or ability to act on its own to close the road.

55. The FIU Pedestrian Bridge collapsed during the re - tensioning of the

truss member 11 post - tensioning rods on the afternoon of March 15, 2018.

Six people died as a result of the FIU bridge collapse, including one bridge

worker and five vehicle occupants. Ten people were critically injured as a

result of the FIU bridge collapse, including two BPA employees, Mr. Morales

and Carlos Chapman.

56 . Mr. Chapman was on the canopy of the bridge during the re -

tensioning operation, observing the work being performed by VSL and

communicating the progress to Mr. Morales who was on the deck of the

bridge. Because of the representations made by the EOR, nei ther

Mr. Chapman nor Mr. M orales was concerned for his own safety or well - being

when they went on the bridge on the day it collapsed.

57. BPAÔs role, responsibilities, and scope of work on the FIU Bridge

project as the CEI was that of a contract administra tor, not as a structural

engineer with the capability to analyze the structural behavior of the bridge

sufficient to determine if the cracks posed any danger of collapse. BPA had no

basis, ability, or contractual obligation, to perform its own analysis of this

complex structure sufficient to override the FIGG EORÔs unequivocal safety

assessment and recommendations. BPA performed its CEI duties and utilized

its independent professional judgement when it documented and monitored

the cracks and requested an im mediate structural evaluation by the FIGG

EOR.

58. Ultimately, the bridge collapse was caused by a fundamental design

error.

T HE OSHA A ND NTSB I NVESTIGATIONS

59. Shortly after the collapse, both OSHA and NTSB began investigating

the causes of the collapse. OHSA completed its investigation and released a

written report of its findings in June 2019. 2 The June 2019 OSHA report was

2 DOT failed to enter into evidence the OSHA report on which it relies. However, prior to the

final hearing, DOT filed a Motion for Judicial Notice of Reports Issued by Federal Agencies

Concerni ng the FIU Bridge Collapse ( " Motion " ). The Motion was opposed by BPA on the

basis that the first OSHA report was not final because a second report was issued, and is

hearsay. By Order dated January 24, 2020, the undersigned officially recognized both the

issued without prior review or comments from all party members who

willingly cooperated with and were involved in the investigation , including

NTSB and BPA. OSHA released an amended report on the collapse of the

FIU Bridge p roject in July 2019; however, none of the amendments in the

report pertained to the ac tions of BPA on the FIU Bridge p roject. NTSB

completed its investigation and issued its report in October 2019.

60. Significantly, no evidence was presented at the final hearing regarding

from whom either agency conducted the investigations or drafted the reports,

the qualifications or expertise of the investigators, the methodolog y used in

the investigations, or the ability of any of the participants in the

investigation to rebut the findings or conclusions.

61. BPA willingly participated in both the OSHA and NTSB

investigations, working with investigators and providing them with

i nformation, photographs, and details on the FIU Bridge p roject. Both OSHA

and NTSB also conducted interviews of BPA personne l involved with the FIU

Bridge p roject as part of their investigations.

62. In its report, OSHA found that BPA failed to classify t he concrete

cracks, which were structural in nature, in accordance with DOT

requirements. OSHA determined that BPA, as CEI, was expected to exercise

its own independent professional judgment in accordance with their contract

with FIU and DOT requirements. With intimate knowledge of extensive

i nitial OSHA report and the NTSB report. Accordingly, references to the report in this

Recommended Order are based upon the official recognition.

As noted in the O rder on the Motion, official recognition of the OSHA and NTSB reports,

however, does no t make the statements contained therein automatically admissible. " The

distinction between noticing the contents of a record and noticing the truth of the contents

resembles the distinction in the hearsay doctrine between offering an out - of - court statement

simply to show it was said, and offering it for the truth of the matter asserted. " C. Ehrhardt,

Florida Evidence § 201.1 (2011 Edition)(quoting Wright & Graham, Federal Practice and

Procedure: Evidence § 6337). Although the existence of the report and its findings were

officially recognized, the greater weight of the evidence supports that the contents were not

accurate as to the exercise of independent judgment of BPA.

cracking on the bridge, BPA failed to recognize the bridge was in danger of

collapsing, and did not recommend to FIU, MCM, or others to close the street

and shore the bridge, regardless of the opinion held by the EOR. As a result,

OSHA imposed a monetary fine on BPA for its conduct and failure to take

appropriate action in the days leading up to the collapse of the main bridge

span.

63. In its October 2019 report (issued after the NOID to BPA in this case) ,

NTSB found t hat beginning with the cracking identified on February 24,

2018, the distress in the main bridge span was active, continued to grow, and

was well documented by all parties involved in the design, construction, and

oversight of the bridge. Neither FIU, MCM, FIGG, nor BPA took

responsibility for declaring that the cracks were beyond any level of

acceptability and did not meet DOT standards. Further, NTSB concluded

that under the terms and conditions of the CEI Contract, BPA had the

authority to direct or auth orize partial or complete road closures as

necessary, acting in concert with DOT and FIU; however, none acted to close

the road under the bridge, contributing to the severity of the impact of the

bridge collapse.

BPA P OST - C OLLAPSE A CTIVITIES A ND 2018 A PPLI CATION F OR Q UALIFICATION

64. On May 3, 2018, BPA submitted its Request for Qualification for the

July 1, 2018, through June 30, 2019, fiscal year ( " 2018 Application " ). BPAÔs

2018 Application was for the same Work Groups that would eventually be

included in the 2019 Request for Qualification.

65. Each work category is tied to a distinct job function. There is no

relationship or similarity between CEI services (Work Group 10) and the

other work groups.

66. On June 27, 2018, DOT accepted BPAÔs Request for Qual ification in all

work categories. In processing the application, the Department did not ask

BPA any questions regarding its involvement in the project, offer any

criticisms of BPA in response to the application, request to interview any

BPA employees, or r aise any concerns at all regarding BPAÔs participation in

the project.

67. From the date of the collapse on March 15, 2018, to December 2018,

DOT awarded two contracts to BPA directly for CEI and design services,

respectively. During the same period, DOT a llowed BPA to participate as a

qualified sub - consultant on one CEI contract, three design contracts, and one

traffic task work order contract. During the 2018 - 2019 fiscal year, before

DOT attempted to suspend BPAÔs qualifications, BPA was able to win sever al

jobs in both the prime and sub - consultant role, including projects in which

BPA would be providing CEI services.

68. In October 2018, approximately seven months after the collapse, BPA

applied to change its CEI qualifier from John Bolton to Jose Morale s because

John Bolton wanted to retire. DOT approved the request and did not object or

raise any concerns with respect to Jose Morales serving as BPAÔs qualifier for

CEI services.

69. On December 19, 2018, nine months after the collapse, DOT expressed

conc ern for the first time about BPAÔs role in the bridge project, staffing of

current DOT projects, quality assurance/quality control ( " QA/QC " ) plans, and

professional liability insurance. DOT sent BPA a " Qualifications Letter of

Concern, " stating that it had " serious concerns regarding [BPA]Ôs

involvement as the Construction Engineering Inspection consultant on the

Florida International University (FIU) pedestrian bridge project[.] " DOT

requested in its letter, among other things, " a detailed explanation of t he

firmÔs actions on the FIU pedestrian bridge project andÈ any controls or

changes in personnel, policies or practices that [BPA] has implemented

subsequent to the collapse. "

70. On December 21, 2018, BPA responded to the Letter of Concern

addressing each concern raised by the Department, in detail, including

providing a copy of its Certificate of Liability Insurance demonstrating that

there was no lapse in professional liability insurance coverage.

71. On February 12, 2019, DOT responded to BPAÔs correspo ndence dated

December 21, 2018, requesting additional detail from BPA relative to its

revised QA/QC plan and punctuated the correspondence by stating that DOT

would refuse to process any further qualification requests from BPA,

including ministerial prequa lification name changes, until the matter was

addressed to the DepartmentÔs satisfaction.

72. Around this time, BPA submitted a request to change its name with

DOT to reflect its business name with the Division of Corporations. BPA

requested that DOT updat e this information on its website, but DOT refused

to process the request due to its concerns with BPAÔs qualifications.

73. On February 20, 2019, BPA provided further detail regarding the

specific policies and procedures that have been implemented to its CEI

services. Specifically, BPA provided extensive detail regarding its revised

QA/QC plan, which included a section dedicated to Category II type bridge

structures and included a copy of the revised QA/QC program for DOT

review. DOT never responded or req uested any additional information in this

regard.

74. On March 15, 2019, one year to the day after the collapse, DOT issued

a Notice of Intent to Suspend BPAÔs existing certificate of qualifications. DOT

attempted to suspend BPAÔs qualifications in all Wor k Groups and declare

BPA non - responsible for a period of one year for good cause. DOT further

claimed that BPA " failed to adequately address the DepartmentÔs concerns

regarding the firmÔs performance of the contract, and the [BPA] staff directly

involved w ith the FIU project who continue to work on other Department

structural contracts. " No further explanation was provided as to how BPA

failed to address these concerns.

75. BPA timely responded to the Notice of Intent to Suspend by way of a

Notice of Contes t, requesting an administrative hearing on the issues raised

therein. Despite the Notice of Contest, DOT suspended BPAÔs qualification,

and sent written notice to its various offices stating, among other things, that

BPA had been removed from DOTÔs prequal ification list. Ultimately, DOT

reinstated BPAÔs qualifications, but never formally withdrew the Notice of

Intent to Suspend.

76. However, in reinstating BPAÔs qualifications, DOT neglected to

reinstate BPAÔs Small Business Enterprise ( " SBE " ) designation, which

negatively affected BPAÔs ability to obtain points for SBE participation. The

points add value in scoring competing responses to Requests for Proposals for

DOT contracts. BPA repeatedly requested that this be corrected. BPAÔs

requests went largely ig nored for nearly two months.

77. On April 2, 2019, after BPA had an in - person meeting with

Courtney Drummond , DOT's Assistant Secretary of Engineering and

Operations, BPA submitted a qualifications modifications package to replace

Jose Morales, P.E. , with John Bolton, P.E., as the qualifier for the CEI Work

Group to address Mr. Drummond's and DOTÔs concerns about BPA staff

involved on the FIU project working on other DOT contracts.

78. On April 5, 2019, in response to the Notice of Intent to Suspend, BPA

pr ovided specific facts in support of BPAÔs proper performance of the CEI

Contract. As an accommodation to DOT, BPA further proposed a solution to

DOT's concern about the staff involved in the FIU project. BPA stated that it

was " willing to immediately remov e the BPA staf f directly involved in the

FIU B ridge project from working on any Department contracts or qualifying

the company for CEI services " and resubmitted its qualifications application

with those changes.

2019 B PA R EQUEST FOR Q UALIFICATION R EJECTION

79. On May 7, 2019, BPA submitted its 2019 Request for Qualification to

the Department early due to the lack of response from DOT on BPA's April 5,

2019 , correspondence. BPA sought qualifications for design work and CEI

services in the same work categorie s it was qualified in for the prior fiscal

year.

80. On June 10, 2019, BPAÔs counsel met with DOT representatives in

Tallahassee to discuss several outstanding issues relative to BPAÔs current

qualification, the upcoming renewal, and DOTÔs failure to reins tate BPAÔs

SBE designation. DOT responded by promising to correct the " mistake " that

same day. Inexplicably, it took another two weeks and several reminders

from BPA for DOT to finally correct the SBE designation.

81. BPAÔs 2018 - 2019 qualifications expired on June 30, 2019. The next

day, on July 1, 2019, DOT untimely responded to BPAÔs Request for

Qualification with a letter titled " Incomplete Renewal Applications for Pre -

Qualification. " DOT's letter raised the same concerns regarding BPAÔs

involvement in t he bridge project and, again, requested " a detailed

explanation of BPAÔs actions on the FIU pedestrian bridge project andÈany

controls or changes in personnel, policies or practices that BPA has

implemented subsequent to the collapse. " This is the same req uest that had

been previously made by DOT in its December 19, 2018, Qualifications Letter

of Concern, February 12, 2019, Qualifications Letter of Concern, March 15,

2019 , Notice of Intent to Suspend, and April 26, 2019 , denial of BPAÔs

Submittal for Modifi cation.

82. BPA had already provided the information requested several months

prior to DOT's July 1, 2019, correspondence.

83. On July 11, 2019, DOT issued its Notice of Intent to Deny Request for

Qualification directed to BPAÔs 2019 Request for Qualificat ion. In issuing its

denial of BPAÔs Request for Qualification, DOT relied solely on the findings

and conclusions of the June 2019 OSHA Report as they relate to the CEI

services provided by BPA on the project and referenced the pending NTSB

investigation.

8 4. The DepartmentÔs Notice of Intent to Deny was executed by

William Watts, the DepartmentÔs Chief Engineer. Mr. Watts admitted at

final hearing that he does not have the training or experience necessary to

evaluate a CEIÔs performance on a CEI contract. M oreover, neither Mr. Watts

nor DOT retained or consulted with any individuals with CEI expertise prior

to issuing the Notice of Intent to Deny. When he issued the Notice of Intent to

Deny, Mr. Watts was completely unfamiliar with the following: the terms o f

BPAÔs CEI Contract; BPAÔs Request for Qualification; BPAÔs past

performance on CEI or any other Department contract; and BPAÔs

professional reputation.

85. Mr. Watts did not evaluate BPA under the criteria required by Florida

Statute s and the Florida Adm inistrative Code prior to denying BPAÔs

Request for Qualification for good cause. Mr. Watts did not receive any

analysis from the DepartmentÔs prequalification staff regarding their

evaluation of BPAÔs application under the statutory criteria.

86. Mr. Watt s admitted that he was aware that BPA documented the

cracking on the bridge, reported the cracking to the design - build firm, and

requested an EAR from the EOR -- actions which were all in accordance with

BPA's obligations as CEI pursuant to the CPAM and its contractual

obligations with FIU.

87. Mr. WattsÔ only reason for issuing the Notice of Intent to Deny, as

Chief Engineer for DOT, was because BPA was under investigation by OSHA

and the NTSB, and OSHAÔs release of its June 2019 Report. However,

Mr. Watts d id not know the author of the June 2019 OSHA Report, whether

the author of the report was qualified to evaluate the performance of a CEI

under Florida Statutes and the Florida Administrative Code, or whether the

author of the OSHA report did anything to ev aluate BPAÔs performance

relative to any other CEI, at the same time, and/or in the same community.

88. DOT did not investigate the structure or organization of BPA to

determine whether the issues raised in the OSHA report, regarding BPAÔs

performance of t he CEI Contract, would reflect negatively on other groups or

divisions within BPA that provided services exclusively under other non - CEI

work categories (design services).

89. Prior to issuance of the NOID, M r . Watts did not undertake a review

of BPA Ô s pas t performance or professional reputation -- both of which were

beyond reproach.

90. DOT evaluates its consultantsÔ performance on all projects

approximately every six to eight months. These evaluations produce a score

that ranges from one to five, five being the highest possible score. A perfect

score of five is uncommon and a score of four is outstanding. In the five years

prior to the final hearing, DOT evaluated BPAÔs performance on projects

involving both design and CEI services. Specifically, DOT scored BPAÔs

performance in Work Groups 3.1, 3.2 (Highway Design), 4.12 (Bridge Design),

5.1 (Bridge Inspection), 7.2 (Traffic Operations Design), and 10.1 and 10.3

(CEI). During that period, BPA averaged a score of outstanding to nearly -

outstanding on all projec ts, including outstanding and nearly - outstanding

scores for inspection services on bridge rehabilitation projects, which involved

cracking concrete elements.

91. In May of 2019, prior to denying BPAÔs request for qualifications for

the fiscal year July 1, 2019 , through June 20, 2020, Mr. Drummond

personally presented BPA with an award from the American Council of

Engineering Companies ( " ACEC " ) , for excellence in major urban

reconstruction. Specifically, the award was for CEI services on the State

Road 7 pro ject, and the ACEC recognized two - and - a - half - years of excellence

in CEI services from late - 2016/early - 2017 through 2019. DOT's District

Construction Engineer, District 6 Secretary, and Headquarters were

intimately involved in the selection and vetting proc ess that, ultimately,

resulted in BPA receiving the award.

92. In September 2019, after denying its request and three months after

the release of the June 2019 OSHA Report, DOT voted that BPA receive

another award for excellence in CEI services. As a membe r of the selection

committee, DOT chose BPA to receive an award from the Florida

Transportation Builders Association ( " FTBA " ) , for excellence on the BakerÔs

Haulover Bridge rehabilitation project. By this award, FTBA and DOT

recognized BPAÔs excellence in CEI services, which spanned from one year

before the collapse to one year after the collapse.

The Experts 3

a. Gustavo Quesada, P.E.

93. At the Final Hearing, BPA presented the expert testimony of Gustavo

Quesada, P.E., a CEI with over 30 years of experience. The ALJ finds that

Mr. Quesada is a qualified expert on the standard of care for a CEI and his

opinions in that regard are based on competent substantial evidence.

94. As explained by Mr. Quesada, the role of a CEI with respect to cracks

in concrete is to identify the cracks and make sure they do not go unseen or

undetected and that an EOR is engaged for purposes of addressing the

cracking. Pursuant to the CPAM, when a CEI encounters cracks in concrete,

a CEI is required to document the obser vation and make a disposition on the

cracks based on Section 400 of the Standard Specifications. Moving forward,

the CEI is also required to monitor any changes in the cracks. A CEI is not

responsible for making a determination as to whether a crack is pot entially

dangerous. This is a determination for the EOR , who has an understanding of

the structure, its design, and how the structure is expected to behave. A CEI

is not charged with making judgment calls on the design of a structure or

whether its integri ty has been jeopardized.

95. BPA documented, monitored, and reported the cracks on the project in

compliance with the industry standards for CEIs working on Complex

Category II Bridges, as well as the relevant sections of the CPAM and

Section 400 of the St andard Specifications. BPAÔs Senior Project Engineer,

Mr. Morales, exercised his independent professional judgment in elevating

3 DOT intended to offer Mr. Watts at hearing as an expert to testify to the " good cause " DOT

had when issuing the NOID to BPA. BPA filed a Motion in Limine to exclude or limit the

testimony of both Mr. Watts and Mr. Robertson. The motion was argued at the outset of the

final hearing. The undersigned precluded Mr. Watts from testifying as an expert in the field

of CEI. Mr. Watts was allowed to testify as to DOT's qualification process and did so as a fact

witness, rather than an expert.

the issue of the cracks to the EOR even before he was required to do so under

the CPAM and Section 400 of the Standard Specifica tions.

96. At the meeting called by BPA on the morning of March 15, 2018, BPA

exercised its independent professional judgment and complied with the

applicable standard of care when Mr. Morales asked the EOR a series of

questions in response to the EORÔs pr esentation and evaluation of the cracks

on the bridge.

97. According to Mr. Quesada, professional engineers are expected to rely

on other engineers with superior or specialized knowledge when exercising

their independent professional judgment. BPAÔs role, responsibilities, and

scope of work on the project as the CEI was largely that of a contract

administrator, and a liaison between FIU and MCM -- not as a structural

engineer with the capability to analyze the structural behavior of the bridge

sufficient to d etermine if the cracks posed any danger of collapse.

b. Robert V. Robertson, P.E.

98. DOT presented the testimony of Robert V. Roberson as an expert on

the standard of care for CEIs. Mr. Robertson has served as DOT's State

StructureÔs Design Enginee r for 13 years. Mr. Robertson has been a

professional engineer for 35 years.

99. Although preliminarily accepted by the undersigned as an expert in

this field, it became apparent through cross - examination that Mr. Robertson

has no significant CEI experie nce. Mr. Robertson has not worked in the CEI

industry in the last 26 years, nor has he ever graded a CEIÔs performance.

Mr. Robertson was not involved in the DepartmentÔs evaluation of BPAÔs

performance of the CEI Contract. Accordingly, Mr. Robertson's tes timony was

of limited value.

100. Mr. Robertson acknowledged that the FIU bridge was a complex

concrete bridge structure that required a separate design qualification and

that BPA did have such qualification. Mr. Robertson admitted that BPAÔs

contract with FIU did not require BPA to be qualified to inspect complex

concrete bridges because BPA was allowed to satisfy that particular

qualification requirement of the contract through a sub - consultant

(Corradino).

101. Mr. Robertson testified that any licensed e ngineer with a college

degree in engineering should have known, based on the photographs in Crack

Report #3, that the cracks were dangerous and should have acted to stop

work on the project and close the road. However, DOT's LAP representative

at the March 15, 2018, meeting held prior to the bridge collapse, Mr. Reyna, a

licensed professional engineer with a college degree in engineering, failed to

raise any concerns at the March 15 th meeting or act to cease bridge work,

shore the bridge, or close Southwest 8 th Street under the bridge.

102. Mr. Robertson opined that the re - tensioning operation of the bridge

should have been peer reviewed. In his opinion, BPA failed to use sufficient

independent judgment. BPA, as the CEI, should have recognized the bridge

was in danger and known to stop traffic and shut down the road. However,

Mr. Roberston admitted that he did only a cursory review of the PowerPoint

presentation provided on the morning of March 15, 2018, in which FIGG, as

the EOR, stated it had no safety conc erns.

103. Mr. Robertson stated that he performed no analysis on anything

other than BPA ' s CEI work relative to the FIU bridge. He had no information

about BPA ' s design group or its qualification in any work category. However,

he suggested the denial of BP A ' s application for qualification across the

board, in all work categories because he questioned " the culture at BPA. "

Significantly, concerns regarding " the culture " of BPA was not cited by DOT

as a basis for the NOID.

104. Most significantly, Mr. Robert son testified that six months prior to

the issuance of the NOID, he had a conversation with Mr. Drummond during

which Mr. Drummond recommended that the qualification of all parties

involved with the FIU Pedestrian Bridge project should be suspended.

Import antly, this was prior to the issuance of either the OSHA or NTSB

reports and seemingly with no analysis of the role of any party to the possible

prevention of the bridge collapse, injuries, or loss of life.

Ultimate Findings of Fact

105. DOT failed to demo nstrate that BPA, as the CEI, fell below the

standard of care by failing to exercise its independent professional judgment

by not acting to cease bridge work, shore the bridge, or close Southwest 8 th

Street under the bridge in light of the documented crack ing on the structure

in the days leading up to the collapse.

106. The evidence shows that BPA documented, monitored, and reported

the cracks pursuant to the CPAM, Section 400 of the Standard Specifications,

and industry standards. BPA involved the EOR in evaluating the cracks even

before it was required by the CPAM, Section 400 of the Standard

Specifications, and industry standards. BPA was assured time and again by

the EOR that the bridge did not pose a danger to the travelling public and

that the structu re was safe. At the meeting on the morning of March 15,

2018, BPA inquired as to whether temporary shoring was needed , and the

suggestion was rejected by the EOR who had inspected the cracks on the

structure just moments before the meeting. There is no evi dence that BPA

deviated from the standard of care for CEIs on design - build projects or that

BPA failed to exercise its independent professional judgment. To the

contrary, BPA met all of its obligations pursuant to contract and state

regulation.

107. DOT fa iled to demonstrate that BPA, as the CEI, fell below the

standard of care by failing to exercise independent professional judgment by

not acting to cease bridge work, shore the bridge, and close Southwest 8th

Street under the bridge pending a peer review o f the re - tensioning plan

proposed by the EOR at the March 15 th meeting.

108. At the March 15 th meeting, BPA was reasonably convinced by the

EOR that the structure was safe and that the re - tensioning plan was a

temporary measure that should be implemented a s soon as possible. BPA had

already engaged the EOR to prepare an EAR to address the cracking

observed on the bridge, which would have included signed and sealed

calculations and a repair protocol that would have been implemented in a

later phase of constr uction. On March 15, 2018, the cracks were not a safety

concern such that BPA should have overridden the EORÔs directive to MCM

and required that the re - tensioning operation be postponed pending a peer -

review of the re - tensioning plan. There is no evidence in the record that BPA

deviated from the standard of care for CEIs on design - build projects or

allegedly failed to exercise its independent professional judgment by allowing

the re - tensioning procedure to proceed as directed by the EOR. Conversely,

the ev idence supports a finding that BPA acted appropriately in relying on

the recommendations of the EOR who was uniquely qualified to evaluate the

safety of the structure and who had specialized knowledge of its design.

109. DOT failed to demonstrate that BPA, as the CEI, fell below the

standard of care by failing to exercise independent professional judgment by

not acting to cease bridge work, shore the bridge, and close Southwest 8th

Street under the bridge until the Corradino Group could arrive on the projec t

site to observe the re - tensioning operation proposed by the EOR during the

meeting on March 15, 2018. CorradinoÔs role on the project was to monitor

and document post - tensioning operations. By the time the meeting was over,

MCMÔs specialty contractor, VS L , was mobilized and prepared to proceed

with the re - tensioning operation. BPA was not involved in the pre -

coordination of this work. Ultimately, the bridge collapsed due to an inherent

design error in the plans and not due to CorradinoÔs absence from the re -

tensioning operations.

110. The findings of the OSHA report and the pendency of the NTSB

investigation , standing alone , were insufficient " good cause " for DOT to deny

BPAÔs 2019 Request for Qualification.

C ONCLUSIONS OF L AW

111. DOAH has jurisdiction over the parties to and the subject matter of

this proceeding. §§ 120.569 and 120.57, Fla. Stat.

112. A hearing involving disputed issues of material fact under

section 120.57(1) is a de novo proceeding, and the agencyÔs initial action

carries no presumpti on of correctness. See § 120.57(1)(k) , Fla. Stat . ; Moore v.

State, Dep Ô t. of HRS , 596 So. 2d 759 (Fla. 1st DCA 1992); Fla . Dep Ô t. of

Trans p . v. J. W. C. Co ., 396 So. 2d 778 (Fla. 1st DCA 1981).

113. " The general rule is that a party asserting the affirmati ve of an issue

has the burden of presenting evidence as to that issue. " DepÔt of Banking &

Fin., Div. of Sec. & Inv'r Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 934

(Fla. 1996)(quoting Osborne Stern & Co. v. DepÔt of Banking and Fin ., 647 So.

2d 425 (Fl a. 1 st DCA 1994)(Booth, J. concurring and dissenting)); Fla . Dep Ô t

of Transp . v. J.W.C. Co . , 396 So. 2d 778 (Fla. 1st DCA 1981).

114. " [W]here [an] agency proposes to deny the license because the

applicant is unfit, it has the burden to prove the applicant Ôs unfitness. " Fla.

DepÔt of Child . and Fams . v. Davis Fa m. Day Care Home , 160 So. 3d 854, 857

(Fla. 2015)(citing Osborne Stern , 670 So.2d at 934 ( " [T]he Department had

the burden of presenting evidence that appellants had violated certain

statutes and wer e thus unfit for registration. " ).

115 . In this case, the Department is asserting the affirmative, namely,

that it had good cause to deny BPAÔs Request for Qualification due to the

findings in the June 2019 OSHA Report as they relate to BPAÔs CEI services.

116. To the extent that denial of PetitionerÔs application for qualification

is akin to denial of a renewal of a license, the Department bears the burden of

proving good cause for denying renewal by " clear and convincing evidence. "

See Coke v. DepÔt of Chi ld . & Fam . Servs. , 704 So. 2d 726, 726 (Fla. 5th DCA

1998)(Department " had the burden of proving [ p etitionerÔs] lack of

entitlement to a renewal of her license and that the evidence needed to be

clear and convincing. " )(citing Osborne Stern , 670 So. 2d at 9 33; Dubin v.

Dep Ô t. of Bus . Reg ., 262 So. 2d 273 (Fla. 1st DCA 1972)). 4 Otherwise, the

Department bears the burden of proving good cause by a " preponderance of

the evidence. " See § 120.57(1)(j), Fla. Stat. ( " Findings of fact shall be based

upon a preponder ance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by statute, and shall

be based exclusively on the evidence in the record and on matters officially

recognized. " ).

117. In Florida Department of Chil dren and Families v. Davis Family Day

Care Home , 160 So. 3d 854 (Fla. 2015), the Florida Supreme Court recognized

that the preponderance of the evidence burden of proof, not the clear and

convincing burden, is applicable to initial license application proc eedings.

Id. at 857. The Court explained that although it had not previously addressed

the situation where an agency erroneously references its disciplinary

authority in the context of noticing its intent to deny an initial license

application, " it is the nature of the agency's action and the underlying rights

implicated by the action that govern the applicable evidentiary standard[.] "

Id. In reaching its conclusion, the Davis Family court reaffirmed its holding

in Department of Banking and Finance v. Osbor ne Stern and Company ,

where the court distinguished cases involving denials of initial applications

(in which the Department must prove good cause for the denial by a

" preponderance of the evidence " ) from cases involving revocations or denials

of renewal a pplications (which the Department must prove good cause for the

denial by " clear and convincing evidence " ). See Davis Family , 160 So. 3d at

856 (citing Dep't of Banking & Fin., Div. of Sec. & Inv'r Prot. v. Osborne

Stern & Co ., 670 So. 2d 932, 933 (Fla. 19 96) ) .

4 At the Final Hearing, counsel stipulated that the burden of proof was a preponderance of

the evidence. (T. 129) However, " [i]t is well settled that a court is not bound to accept as

controlling stipulations as to questions of law[.] " Alvarez v. Smith , 714 So. 2d 652, 653

(Fla. 5 th DCA 1998)( quoting Clark v. Munroe , 407 So. 2d 1036, 1037 (Fla. 1st DCA 1981)

( " T he parties cannot by stipulation control questions of law. " )). The DepartmentÔs burden of

proving that it had good cause to deny BPAÔs Request for Qualification is by clear and

convincing evidence.

118. This is a renewal case (like Ferris and Coke ) -- not an initial

application case (like Davis Family and Osborne Stern ). Here, BPA had been

prequalified with the Department for the last 20 years. In May 2019, BPA

attempted to renew its qualificatio ns for the same Work Groups as the

previous fiscal year. DOT relied on the disciplinary section of the Florida

licensing statute as grounds to support its denial of BPAÔs renewal. DOTÔs

action is disciplinary in nature and subject to the clear and convinci ng

standard.

119. In denying BPAÔs Request for Qualification, DOT relied on

s ection 287.055 and Florida Administrative Code Chapter 14 - 75 . DOT cited

no other authority in its Notice of Intent to Deny.

120. As described above, section 287.055(3) requires th at any firm or

individual desiring to provide professional services to a governmental agency

must first be certified by the agency as qualified pursuant to law and the

regulations of the agency.

121. Rule 14 - 75.0022(4), entitled " Consultant Qualification P rocess , "

provides, in pertinent part, as follows:

(b) Upon receipt of a complete application the

Department shall make such inquiries and

investigations as deemed necessary to verify and

evaluate the applicant's statements and determine

competency for qual ification.

(c) Information which the Department shall

consider in determining whether a consultant is

qualified to perform the types of work shall include:

1. Current license or registration as regulated by

the State of Florida or national organizations, as

appropriate.

2. Personnel with appropriate experience and

training as detailed in the type of work

qualifications.

3. Registration with the Florida Department of

State, if the applicant is a corporation or limited

partnership.

4. Past performance on Department contracts.

5. Integrity and responsibility, which shall include

history of debarment or suspension from

consideration for work with any other

governmental entity.

122. Rule 14 - 75.0051(1), entitled " Revocation, Denial, or Suspension of

Qualifi cation, " provides in part that " the Department will, for good cause,

deny or suspend the qualification of any professional consultant, or other

provider of service, to render services to the Department. " " Good cause "

includes instances where the consultant 's work performance in one of the

work types is not satisfactory. Unsatisfactory performance shall result in

" revocation, denial, or suspension of qualifications for that type of work for a

period not to exceed one year. "

123. Rule 14 - 75.0051(1)(c), furthe r provides that good cause also includes

" any other good cause, as defined in Section 337.105(1), F.S., established by

the factual circumstances. "

124. Section 471.033, Florida Statutes , and Florida Administrative Code

C hapter 61G15 - 19 establish es the grou nds for disciplinary proceedings

against licensed professional engineers in Florida. Under section 471.033,

engaging in negligence or misconduct in the practice of engineering, or

otherwise violation of chapter 455 , Florida Statutes, are grounds for

discip linary action against the status of a professional engineerÔs license with

the State of Florida. Under section 455.227(1)(o), performing professional

responsibilities the licensee knows, or has reason to know, they are not

competent to perform constitutes grounds for disciplinary action against the

status of a professional engineerÔs license with the State of Florida. 5

125. There is no evidence that BPA deviated from the standard of care for

CEIs on design - build projects or that BPA failed to exercise its i ndependent

professional judgment regarding the FIU Bridge project.

126. The record is devoid of any evidence that DOT examined any of the

criteria listed in r ule 14 - 75.0022(4) to determine if BPA met qualification

standards for 2019.

127. For " good cause , " DOT relies entirely on the OSHA Report . The

statements and opinions contained in the OSHA report are hearsay, and the

author of the report was not called to testify as an expert and was not subject

to cross - examination.

128. Absent from the OSHA report was any reference to BPA's design

services because BPA had no design responsibility for the project. Yet it is

this very document DOT relies on to deny BPA's request for qualification in

all work groups, including those exclusively related to design, rathe r than

CEI, work.

129. It is undisputable that the bridge collapse was a horrific tragedy with

long term consequences to the community, the victims, and those involved

with the project , including BPA and DOT. Understandably, it was politically

expedient fo r DOT to disqualify those entities that worked on the FIU Bridge

p roject. However, the plain language of the applicable statutes and

regulations required DOT to engage in an analysis of BPA's 2019 Request for

Qualification application. That analysis simply did not occur.

5 Florida Administrative Code Rule 61G15 - 19.001(6), define s the term " misconduct " as used

in section 471.003 in part, as " [p]erforming an engineering assignment when not qualified by

training or experience in the practice area involved. " Although the Department cited

r ule 61G15 - 19.001(6) in its Pre - Hearing Statem ent, none of the three instances of BPAÔs

alleged failure to exercise its independent professional judgment include an allegation that

BPA undertook activities or services outside of its training or experience. This issue was not

plead or framed by the Dep artmentÔs Pre - Hearing Statement. At the Final Hearing, BPA

contemporaneously objected to the presentation of evidence on this unpled theory that BPA

allegedly performed services it was not prequalified to perform.

130. Under either a preponderance of the evidence, or by a clear and

convincing evidentiary standard, DOT did not meet its burden with respect to

the issues framed by its Pre - Hearing Statement and Notice of Intent to Deny.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that a Final Order be entered by the Department of

Transportation finding that good cause does not exist to deny BPAÔs 2019

Request for Qualification.

D ONE A ND E NTERED this 17th day of April , 2020 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April , 2020 .

C OPIES F URNISHED :

George Spears Reynolds, IV, Esquire

Florida Department of Transportation

605 Suwannee Street , Mail Stop 58

Tallaha ssee, 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

60 5 Suwannee Street , Mail Stop 58

Tallahassee, Flo rida 32399 - 045 0

(eServed)

Andrea Shulthiess, Clerk of

Agency Proceedings

D epartment of T ransportation

Haydon Burns Building

605 Suwannee Street, M ail S top 58

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, General Counsel

D epartment of T rans portation

Haydon Burns Building

605 Suwannee Street, M ail S top 58

Tallahassee, Florida 32399 - 0450

(eServed)

Kevin J. Thibault, P.E., Secretary

D epartment of T ransporation

Haydon Burns Building

605 Suwannee Street, M ail S top 57

Tallahassee, Florida 32399 - 0 450

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 th e Final Order in this

case.