88-001172BID Ajax Paving Industries, Inc. (13050-3525) vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, June 21, 1988.

Summary: Protest of design-build short list is BID protest. No waiver of deficiency in notice to contractors. No deficiency-team need not be prequalified.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AJAX PAVING INDUSTRIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-1172BID

)

DEPARTMENT OF TRANSPORTATION, )

BUREAU OF CONTRACT ADMINISTRATION, )

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative

Hearings.

Julie Gallagher, Esquire, and Reynold Meyer, Esquire, of Tallahassee, for

Petitioner.

James W. Anderson, Esquire, of Tallahassee, for Respondent.

A formal administrative hearing was held in this case in Tallahassee on

April 27, 1988, on the protest, 1/ filed by the Petitioner, Ajax Paving

Industries, Inc. (Ajax), against the decision of the Respondent, the Department

of Transportation (DOT), not to select ("shortlist") the Ajax/Hole, Montes

design-build team as one of the teams eligible to submit proposals for a design-

build re-paving project known as State Project No. 01050-1519.

After the hearing, parties ordered the preparation of a transcript, which

was filed on May 12, 1988. The parties later agreed to extend the time for

filing proposed recommended orders to May 25, 1988. Explicit rulings on the

parties' proposed findings of fact may be found in the attached Appendix To

Recommended Order, Case No. 88-1172BID.

FINDINGS OF FACT

1. On January 8, 1988, the DOT published a Notice To Contractors that

stated in pertinent part:

The Florida Department of Transportation

plans to receive bid proposals for the

following design/build projects.

This advertisement is issued to give

advance notice of our design/build

intentions; to allow interested parties to

form design/build affiliations; and to

submit letters of interest for specific

project(s).

For the advertised design/build

projects, the contracting firm shall be

prequalified with the Department in

accordance with Rule 14-22 in construction

class Hot Plant-Mix Bituminous Base &

Surface Courses. Consultants affiliating

with the contracting firm must be

prequalified with the Department prior to

final selection in the following types of

work:

Type B (Standard Roadway Design)

Type K (Standard Contract

Administration and Inspection)

Firms shall submit a separate letter of

interest for each of the following projects

for which they wish to be considered:

* * *

State Project No. 01050-1519

CHARLOTTE COUNTY: Level, widen, and

resurfacing of S.R. 776. The limits of the

project will be from approximately 750 feet

west of Sunnybrook Boulevard to 650 feet

east of C.R. 771. Approximate length 3.3

miles. D.B.E. Goal 10.0 percent. Bonding

Requirement $1,000,000.

* * *

Construction work may consist of

resurfacing, construction of paved

shoulders, extension of existing cross-

drains, installation of mitered end

sections on side drains, shoulder work,

signing and pavement marking, sodding and

grassing.

Consultant services will include, but

not be limited to, Construction Engineering

Inspection and the preparation of

construction plans in accordance with the

FDOT Plans Preparation Manual (1985) and

other applicable criteria, to include as

appropriate: Utility Adjustment Plans,

summary of pay items, signing and pavement

marking plans, maintenance of traffic

details, drainage design, pavement design,

and Special Provisions.

Any firm who has not been qualified by

the Department and would like to be

considered for these projects should

request a Letter of Interest Submittal

Package from the Bureau of Contractual

Services in Tallahassee, 904/487-3487.

The Department shall determine the

relative ability of each firm to perform

the services required for each project.

Determination of ability shall be based

upon staff training and experience, firm

experience, location, past experience with

the Departent, financial capacity, past

performance and current and projected work

load. The Department shall select

(shortlist) not less than three firms

deemed to be the most highly qualified to

perform the required services to proceed

with preparation of bid & technical

proposals.

Scope of services desired, schedules,

blank contracts and special instructions

will be provided at pre-bid/scope of

services meeting, which will be held within

2 weeks following shortlisting.

* * *

SUBMITTAL REQUIREMENTS: Firms desiring

consideration for this project must submit

two (2) copies of their qualifications to

the requesting unit listed below for each

project that they are interested in.

Information that must be included are the

name of the project(s) to which the letter

of interest applies, the names of the firms

involved in the affiliation, firm's

experience, location, past experience with

the Department, and current and projected

work load.

RESPONSE EVALUATION: All respondents will

be evaluated and must be determined by the

Department to be qualified to do business

in Florida and must be prequalified to

perform the advertised work requirements

prior to final selection. 2/

* * *

Pursuant to DOT Rule 14-25.024(1), any

person adversely affected by not being

selected to provide aid proposals must file

with the Clerk of Agency Proceedings, Mail

Station 58, Room 562, Haydon Burns

Building, 605 Suwannee Street, Tallahassee,

Florida 32399-0458, a written Notice of

Protest within 72 hours of the posting of

the firms selected to prepare proposals.

The firms selected to prepare bid proposals

will be posted with the Clerk of Agency

Proceedings on the 19th day of February,

1988. After filing a written Notice of

Protest (within 72 hours of posting), a

formal written protest setting forth a

short and plain statement of the matters

asserted by the Protestor shall be filed

with the Clerk of Agency Proceedings within

ten days after filing of the Notice of

Protest. A failure to file a timely

protest constitutes a waiver of Chapter 120

proceedings.

At the time of the Notice To Contractors, and until March 13, 1988, there was no

DOT rule establishing design-build procedures under Section 337.11(5), Florida

Statutes (1987).

2. Six design-build teams submitted letters of interest in response to the

Notice To Contractors. Two teams later were eliminated, leaving four: (1) Ajax

(the contractor)/Hole, Montes (the design consultant/construction engineering

inspector (CEI)); (2) APAC/Harris; (3) Harper Bros./Aim Engineering; and (4)

Wendel Kent-Gator Asphalt/Kunde, Sprecher, Yaskin.

3. Before February 18, 1988, both DOT's central office in Tallahassee and

its district office, District I, in Bartow, compiled rankings for the firms that

had submitted letters of interest. Although both offices attempted to do the

same thing--compile evaluations based on certain criteria--they set about their

tasks differently.

4. In Tallahassee, Mr. William Laufman and his staff developed evaluation

forms complete with instructions. The forms outlined the weight to be assigned

each criterion when evaluating the contractor, the design consultant, and the

CEI (Construction Engineering Inspection) ability of the consultant firm. The

instructions set forth the method by which the evaluations were to be done. The

idea behind the evaluation forms was to promote uniformity among the evaluators.

5. The forms were developed during the two weeks before February 16, 1988,

and were completed on that date. The weight to be assigned each criterion was

determined by a consensus of people within the construction, design, and CEI

departments. These decisions were made when the forms were developed.

6. The forms and the backup data used in Tallahassee to do the evaluations

were "faxed" to the district office to be used when doing its evaluations. The

letter of interest packets were also provided.

7. According to the evaluation forms used in Tallahassee to evaluate

contractors, the firms' overall experience, past DOT performance grades, and

current and projected workload were most heavily weighted. These items were

twice as important as financial capacity and location.

8. For consultant firms and CEI ability, past performance grades on DOT

jobs was most important while location was least important. The firm's

experience, staff training, and current and projected workload were weighted

equally.

9. The information the central office considered necessary to do the

evaluations included information contained in the letter of interest packets,

the prequalification file of the contractors and consultants, and DOT documents

regarding DOT experience. Some information related to certain criteria could

only be gleaned from a review of the prequalification file. For example,

overall firm experience and staff training and experience would be detailed in

that file. All of this information was available to DOT to do the evaluations.

10. The central office staff ranked APAC/Harris highest with a combined 82

score (contractor-62, design consultant-11, CEI consultant-9).

11. The central office staff ranked Wendel Kent-Gator/Kunde, Sprecher &

Yaskin second highest with a 78 score (contractors-56, design consultant-11, CEI

consultant-11).

12. The central office staff ranked Harper Brothers/Aim Engineering third

highest with a 66 (contractor-48, design consultant-7, CEI consultant-11).

13. The central office staff ranked Ajax/Holes, Montes fourth with a 63

(contractor-50, design consultant-7, CEI consultant-6).

14. In contrast, the district office performed its evaluation and ranking

on the morning of February 18, 1988, the date established for a teleconference

meeting at which the "shortlist" would be determined. That morning, Mr. John

Dewinkler, District I Director of Production, assigned Marshal Dougherty,

District I Professional Services Engineer, the task of ranking the design-build

teams. Dougherty had only a list identifying the teams from which to work.

Dougherty ranked the design-CEI components of the teams and enlisted Donald

Prescott, District I Assistant to District Construction Engineer, to rank the

construction contractor component of the teams. Due to time constraints and

problems experienced by the central office computer system that morning, neither

was able to resort to information normally available in the central office.

Dougherty relied on his own knowledge of team members and information available

at the district office in Bartow. Prescott telephoned the four resident offices

in District I for input on the relative abilities of the construction

contractors.

15. Prescott and Dougherty took 1 1/2 - 2 hours to do their work.

Dougherty then prepared team rankings that combined his ranking with Prescott's,

giving equal weight to each. Their evaluations did not strictly follow the

weighted criteria set out in the central office evaluation forms.

16. Of the four, Mr. Prescott ranked Harper Brothers first, Wendel Kent-

Gator second, Gator third, APAC fourth, and Ajax fifth. The letter of interest

using Gator Asphalt as the independent contractor was eliminated as a result of

the competition conflict.

17. Of the four, the district's overall rankings were Wendel Kent-

Gator/Kunde first, Harper/Aim second, APAC/Harris third and Ajax/Hole, Montes

last.

18. On the afternoon of February 18, 1988, the Technical Committee

convened by conference call to determine the shortlist for the projects listed

on the Notice To Contractors.

19. The members of the committee included Wally Giddens, Director of

Division of Preconstruction and Design; Murray Yates, Director of Construction;

John Dewinkler, Director of Production; and Donald Prescott, Assistant to

District Construction Engineer in District I, Bartow. Messrs. Dewinkler and

Prescott participated by telephone from their offices in Bartow; the others were

in Tallahassee.

20. Several other people were present in Tallahassee for the meeting.

They included: William Laufman, Project Manager; Jack Trickey, Chief of the

Bureau of Adjunct Value Engineering; Ken Morefield, Bill Dayo, and Chuck

Robshaw.

21. The central office staff (Tallahassee) recommended that Ajax be among

the firms to be shortlisted. However, the district people, Messrs. Dewinkler

and Prescott, expressed concerns over Ajax and requested Ajax not be placed on

the shortlist.

22. The district's "concerns" included lack of familiarity with Ajax's

design team, present problems on current jobs with respect to performance and

schedules, and the potential for claims on existing contracts.

23. The concerns expressed by the district were not apparent in the

information available to the central office, and some discussion was held.

Since the project was going to be performed in the district, the committee

deferred to the district's request and did not shortlist Ajax.

24. The firms placed on the shortlist by the committee included:

APAC/Harris; Wendell Kent-Gator/Kunde; and Harper/Aim.

25. APAC is a top rated contractor with a lot of DOT experience. It was

prequalified to do the type of work required for this project when it submitted

its letter of interest. Its average grade on reports on past performance as a

contractor or subcontractor for the DOT is 89.81. APAC's consultant, Harris,

was also rated highly and has substantial DOT experience.

26. Harper Brothers is a contractor prequalified for the work required for

this project. While Harper Brothers has not done work for FDOT in the past

three years, it still rates higher than any other contractor working in the Ft.

Myers area based on past DOT work. Harper remains prequalified and has received

an ability factor rating of 14, equating to a 93-98 ability score. Its design

consultant, Aim Engineering, has DOT experience.

27. Wendell Kent is a contractor that was not prequalified for the type of

work required for this project--hot bituminous asphalt mix work--when it

submitted its letter of interest. Wendell Kent has DOT experience, although not

in this type of work, and that experience consists of only one job within the

past eight years in the district where this job will be performed.

28. Wendel Kent's average grade on reports of past performance as a

contractor or subcontractor for the DOT is 93.86. Wendel Kent affiliated with

Gator Asphalt, which was prequalified for this project. Gator Asphalt's average

grade on reports of past performance as a contractor or subcontractor for the

DOT is 89.84. Wendell Kent is to be the prime contractor on this project. It

would be responsible for the overall administration of the project and

construction of all items except the asphalt paving, which would be done by

Gator.

29. Wendel, Kent-Gator Asphalt's design consultant, Kunde, Sprecher,

Yaskin has done design work for the DOT in the past and performed well.

30. Ajax is prequalified and has DOT experience, including recent

experience. In the last three years, Ajax has done eight or nine DOT jobs

amounting to approximately $11.4 million of work. The DOT concedes that Ajax is

a capable contractor. But Ajax's average grade on past performance as a

contractor or subcontractor for the DOT is 86, lowest of the four. In addition,

comments relating to Ajax are somewhat more negative than those of other

contractors. Only Ajax received negative comments on its ability to schedule

construction work, a factor to be specifically considered in the selection of a

design/build contractor. For example, the comment for FDOT Project #01050-3514

in Charlotte County was: "They don't provide day-to-day supervision on the-

project. They generally leave that up to whatever sub is working on the

project. From a project engineer's standpoint, Ajax makes a good subcontractor

but a poor prime contractor." For Project #12070-3513 in Lee County, the

comment was: "This contractor could have taken more interest in controlling

construction operations to achieve a better quality of construction."

31. Ajax's more significant scheduling problems arose during the first few

years of operations in Florida. After DOT criticism, Ajax has improved in this

area. Of the eight or nine DOT jobs Ajax has done in the last three years,

there has been a net total of four days overtime on all jobs. (This net total

is arrived at by subtracting the number of days "undertime" from the overtime

days to arrive at the net number of days over the time allowed by the

contracts.) But of the last 13 jobs Ajax has done for the DOT, Ajax was behind

schedule on seven. On two jobs started in 1984, Ajax was considerably behind

schedule (15 days) on one and extremely behind schedule (51 days) on the other.

32. Ajax knows of no potential claims on its current job. In the last

three years, Ajax has had only one claim, for $6,000, that was resolved in favor

of Ajax.

33. Ajax does have a pending claim on a 1984 job that is not yet resolved.

The claim is on behalf of a subcontractor. Until resolved, the claim is just a

difference of opinion or a difference of contract interpretation.

34. Ajax was also involved in a potential claim on a project known as "the

embankment job." There was an error in the plans for this job at the time the

contract was bid. Ajax brought this to the attention of Carson Carner, the

resident engineer, who advised Ajax to bid the project as it was. Ajax did and

was awarded the contract. Shortly, thereafter, Ajax requested a change order to

allow for extra materials considered necessary due to the error Ajax saw-in the

plans. Ajax pursued this because this error equalled approximately 10 percent

of the job, which amounted to approximately $200,000.

35. District DOT officials refused to see the error and denied the request

for the change order. Ajax ultimately retained an attorney who convinced DOT of

the error in the plans, and the change order was approved.

36. Finally, mention should be made of the non-contractor components of

the design/build teams. APAC's partner, Frederick R. Harris, has done design

work for FDOT in the past. Harper Brothers' partner, Aim Engineering, has

construction engineering inspection (CEI) experience with the Department,

including a large amount of work in the Lee County area. Wendel Kent-Gator's

consultant, Kunde, Sprecher and Yaskin, had considerable design experience with

the Department and also had done CEI work for the agency.

37. Ajax selected the design, CEI firm of Hole, Montes as its consultant.

This firm was Ajax's second choice and was selected only when Aim Engineering

was submitted by Harper Brothers. While prequalified to do so, Holes, Montes

had done neither design nor CEI work for the Department.

CONCLUSIONS OF LAW

A. The New Design-Build Program.

38. Section 337.11(5), Florida Statutes (1987), enacted by Chapter 87-162,

Laws of Florida (1987), effective June 30, 1987, provides:

(5)(a) If the head of the department

determines that it is in the best interest

of the public to combine the design and

construction of a road, structure, or

building and appurtenant facilities or

equipment into a single contract, the

department may secure such work through a

request for proposals. Factors including,

but not limited to, time savings, cost

reduction, experience to be gained, or use

of state of the art methods shall be

considered when determining the best

interest of the public.

(b) The department shall adopt by rule

procedure for administering combined design

and construction contracts. Such

procedures shall include, but not be

limited to:

1. Prequalification of applicants.

2. Announcement of occasions when a

design and construction contract is

desired.

3. Criteria and personnel to be used for

evaluation proposals and awarding

contracts.

(c) If at least three responsible

proposals are submitted pursuant to a

request for proposals, the department may

proceed to evaluate the proposals as

provided herein. In evaluating proposals,

the department shall consider the cost,

safety, and long-term durability of the

project; the feasibility of implementing

the project as proposed; the ability of the

design and construction teams to complete

the work in a timely and satisfactory

manner; and such other factors as the

department deems appropriate. In

evaluating the capabilities of the design

and construction teams to perform in a

timely and satisfactory manner, the

department shall also consider such factors

as the abilities of the professional

personnel, past performance, capacity to

meet time and budget requirements,

location, recent, current, and projected

workload of the firms, and the volume of

work previously awarded to the firms by the

department.

(d) The department may conduct a

combined design and construction contract

demonstration program not to exceed a total

contract amount of $50 million. Pursuant

to this program, the department may award,

to the qualified firm or joint venture with

the lowest cost and best technical

proposal, combined design-and construction

contracts for projects in the department's

current 5-year transportation plan in each

of the following project categories:

1. Resurfacing;

2. Bridge replacement, or new bridge

construction;

3. Multilane new construction or

reconstruction;

and

4. Fixed capital outlay and parking

garages.

Annually, the department shall submit to

the transportation committees of the Senate

and the House of Representatives a report

outlining the results obtained from

completed combined design and construction

contracts awarded to that time.

B. Whether Disputes Arising Out Of The "Shortlist"

Are Bid Protests.

39. Section 120.53(5), Florida Statutes (1987), provides in pertinent

part:

(5) An agency which enters into a

contract pursuant to the provisions of ss.

282.301-282.313, chapter 255, chapter 287,

or chapters 334-349 shall adopt rules

specifying procedures for the resolution of

protests arising from the contract bidding

process.

40. Section 120.57(1) proceedings arising out of the DOT's "shortlist" of

design-build teams eligible to submit proposals under Section 337.11(5), Florida

Statutes (1987), are "protests arising from the contract bidding process" and

should proceed as bid protests underSection 120.57(5), Florida Statutes (1987).

C. Whether Ajax Waived Alleged Deficiencies In

The Notice To Contractors.

41. The Notice To Contractors that began the bid process in this case by

asking for letters of interest references Rule 14-25.024(1), Florida

Administrative Code. Rule 14-25.024(1) states:

(1) Any person adversely affected by a

bid solicitation shall file a notice of

protest, in writing, prior to the date on

which bids are to be received, and shall

file a formal written protest within ten

days after filing the notice of protest.

The formal written protest shall state with

particularity the facts and law upon which

the protest is based.

Under Capeletti Bros., Inc. v. Department of Transportation, 499 So.2d 855 (Fla.

1st DCA 1986), Rule 14-25.024(1) has been held to require a bidder to protest

deficiencies in a request for proposal within the prescribed time after

issuance. But the Notice To Contractors specifies only: "Pursuant to D.O.T.

Rule 14-25.024(1), any person adversely affected by not being selected to

provide bid proposals must file ... a written Notice of Protest within 72 hours

of the posting of the firms selected to prepare proposals." The Notice To

Contractors therefore does not provide Ajax with a clear point of entry so as to

justify waiver of any protest against deficiencies in the Notice To Contractors.

3/

D. Whether The Notice To Contractors Is Fatally Deficient.

42. Section 337.14(1), Florida Statutes (1987), provides: "Any person

desiring to bid for the performance of any construction contract in excess of

$250,000 which the department proposes to let must first be certified by the

department as qualified pursuant to this section and rules of the department."

43. Section 337.14(2), Florida Statutes (1987), states: "Certification

shall be necessary in order to bid on a road, bridge, or public transportation

construction contract of more than $250,000."

44. Section 337.105(1), Florida Statutes (1987), provides: "Before the

employment of a professional consultant or other provider of services, the

department shall make a finding that the person to be employed is fully

qualified to render the desired service."

45. In this case, the Notice to Contractors specifically permitted

responses to be submitted by persons not yet pre-qualified, requiring pre-

qualification only "prior to final selection." Under the bid process initiated

by the Notice To Contractors under the auspices of Section 337.11(5), only the

shortlist is being determined at this time. Proposals are prepared and

submitted at a later date. Therefore, the statutes do not require pre-

qualification at this time, and the DOT was not prohibited from shortlisting a

design-build team that included a contractor, such as Wendel, Kent, not yet pre-

qualified for all aspects of the work so as to increase the number of teams

capable of submitting a letter of interest to participate in the initial design-

build projects.

E. Whether DOT's Omission Of Ajax From The Shortlist

Should Be Upheld.

46. The parties agree that contract award decisions (to which this action

is similar) ordinarily will be upheld unless the decision is arbitrary,

capricious, or beyond the scope of agency discretion. System Development

Corporation v. Department of Health and Rehabilitative Services, 423 So.2d 433

(Fla. 1st DCA 1982); Capeletti Brothers v. State of Department of General

Services, 432 So.2d 1359 (Fla. 1st DCA 1983). In the System Development case,

the court stated:

We are constrained to review the agency's

decision under these circumstances only so

far as to determine whether the decision

was arbitrary, capricious, or beyond the

scope of its discretion, which discretion

is very broad:

So long as the public agency

acts in good faith, even

though they may reach a

conclusion on facts upon

which reasonable men may

differ, the courts will not

generally interfere with

their judgment, even though

the decision reached may

appear to some persons

to erroneous. Volume Services

Division v. Canteen Corporation,

369 So.2d 391, 395 (Fla. 2d DCA

1979).

This general rule assumes that the contracting agency has adhered to the

material statutory requirements in conducting the procurement process, as the

DOT has done in this case.

47. Accepting for purposes of this case the Systems Development standard

of review to which the parties have agreed, the facts are clear in this case

that the DOT's decision not to "shortlist" the Ajax/Hole, Montes design-build

team, while far from being immune from criticism for weaknesses in the manner in

which the decision was made, cannot be said to be arbitrary or capricious.

RECOMMENDATION

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

recommended that the Respondent, the Department of Transportation, enter a final

order excluding the Ajax/Hole, Montes team from the short list for State Project

No. 01050-1519 if that is how the DOT chooses A exercise its discretion.

RECOMMENDED this 21st day of June, 1988, in Tallahassee, Florida.

_________________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of June, 1988.

ENDNOTES

1/ By Prehearing Order entered in this case on March 30, 1988, it was ruled

that the petition in this case should be treated as a bid protest under Section

120.53(5), Florida Statutes (1987). See Conclusion Of Law 3, below.

2/ The DOT decided to permit prequalification up to the time of final selection

because the DOT hoped to attract design-build teams with members who do not now

do DOT work on their own, and the DOT would not have given those team members

enough notice and time to get prequalified if prequalification were required

before submission of a letter of interest.

3/ Without holding that it applies to the Notice To Contractors in this case,

it also is noted that dicta in the Final Order, Capital Group Health Services of

Florida, Inc. v. Department of Administration, DOAH Case No. 87-5387BID, entered

April 28, 1988, limited such a waiver to deficiencies in the technical aspects

of plans and specifications in a bid solicitation. (The Capital Group Health

Final Order held that statutory requirements are not subject to waiver.)

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1172BID

To comply with Section 120.59(2), Florida Statutes (1987), the following

explicit rulings are made on the parties' proposed findings of fact:

A. Petitioner's Proposed Findings Of Fact.

1.-5. Accepted. In part incorporated; in part unnecessary or subordinate.

6.-14. Accepted and incorporated.

15. Rejected as not proved that Wendel, Kent affiliated Gator in order to

be considered. Otherwise, accepted and incorporated.

16.-18. Rejected as conclusions of law.

19. Rejected as contrary to facts found that Harper had "average" ratings;

otherwise accepted and incorporated.

20.-27. Accepted and incorporated.

28.-32. Accepted and, except to the extent unnecessary or subordinate,

incorporated.

33. Rejected that Wendel, Kent was ranked separately. Wendel, Kent was

ranked in affiliation with Gator. Gator was ranked separately as the contractor

for the Gator/Gee Jensen team that later was eliminated. Also rejected that the

DOT's treatment of recent experience was an "apparent contradiction." The DOT

simply was more concerned about recent poor negative experience than with lack

of recent experience following positive prior experience.

34.-38. Accepted and, except to the extent unnecessary or subordinate,

incorporated.

39. Rejected as contrary to facts found.

40. Rejected as not proven--the district had similar concerns about

American. Besides, irrelevant and unnecessary--the Hinkle/American team was

eliminated.

41. Rejected to the extent contrary to facts found; in part accepted and

incorporated.

42. Second sentence, rejected as contrary to facts found; rest accepted

and incorporated.

43.-45. Accepted and incorporated.

46.-47. Subordinate to facts contrary to those found.

48. First two sentences, accepted but unnecessary; rest, rejected as

contrary to facts found and argument.

49.-50. Rejected as contrary to facts found and argument.

B. Respondent's Proposed Findings Of Fact.

1. Accepted but unnecessary.

2.-3. Accepted and incorporated to the extent necessary.

4.-13. Accepted and incorporated.

14. Accepted but unnecessary.

15. Rejected as contrary to facts found.

16.-24. Accepted and incorporated.

25. Accepted and, to the extent necessary, incorporated.

26. Irrelevant.

27. Accepted and, to the extent necessary and not subordinate,

incorporated.

28.-29. Accepted and incorporated.

COPIES FURNISHED:

Julie Gallagher, Esquire

Reynold Meyer, Esquire

204-B South Monroe Street

Tallahassee, Florida 32301

James W. Anderson, Esquire

Chief Litigation Attorney

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

Kaye N. Henderson

Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III, Esquire

General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458