Art Berger Special Counsel, Construction FDOT, Tallahassee

Art Berger
Special Counsel, Construction
FDOT, Tallahassee
2
Formation of a contract:
A contract is a promise or a set of
promises for the breach of which the law
gives a remedy.
The “promise” is referred to as
“consideration.”
Example: “In consideration for the sum of
$3,000,000 contractor agrees to construct the
project.”
Consideration:
The cause, motive, price, or impelling
influence which induces a contracting
party to enter into a contract.
Gift:
A voluntary transfer of property to
another made gratuitously and
without consideration.
4
 Department contracts must be
written contracts.
 The Department cannot be sued
on an oral contract.
5
Standard Specifications: 1-3 Definitions:
Contract:
The term “Contract” means the entire and
integrated agreement between the parties
thereunder and supersedes all prior
negotiations, representations, or
agreements, either written or oral.
6
Florida Statutes 337.19(1): Suits by and
against department:
Suits at law and in equity may be brought and
maintained by and against the department on any
contract claim arising from breach of an express
provision or an implied covenant of a written
agreement or a written directive issued by the
department pursuant to the written agreement.
In any such suite, the department and the
contactor shall have all of the same rights and
obligations as a private person under a like
contract except that no liability may be based on
an oral modification of either the written contract
or written directive.
7
A contract can be amended. For Department
contracts, the amendment must be in writing
approved by the parties.
Standard Specifications: 1-3 Definitions:
Supplemental Agreement:
A written agreement between the
Contractor and the Department, and signed by the
surety, modifying the Contract within the
limitations set forth in these Specifications.
8
4-3.2 Increase, Decrease or Alteration in the Work:
The Engineer reserves the right to make
alterations in the character of the work which
involve a substantial change in the nature of the
design or in the type of construction or which
materially increases or decreases the cost or time
of performance. Such alteration shall not
constitute a breach of Contract, shall not
invalidate the Contract or release the Surety.
9
Other reasons to amend the Contract:







Excusable
Delays
Delay of Contractor’s work (5-12.2.2 and 1-3).
Written direction to Accelerate the work (5-12.8).
Error or omission in Contract Documents (5-4).
Expand the physical limits of the project (4-3.4).
Unforeseeable work (4-4 and 4-3.4)
Differing site conditions (4-3.7)
Clarify plans or specifications (4-3.4)
Latent physical
conditions
10
Condition Precedent: A condition precedent must
be fulfilled before the effect can follow. A
prerequisite.
Example:
8-7.3.2: As a condition precedent to an extension
of Contract Time the Contractor must submit to
the Engineer: A preliminary request for an
extension of Contract Time must be made in
writing to the Engineer within ten calendar days
after the commencement of a delay to a
controlling item of work.
11
 Contracts contain express terms and implied
terms.
 Implied terms are frequently referred to as
implied covenants.
 Examples of implied covenants:
 The implied covenant of good faith and fair dealing
applies to every contract.
12
In construction contract law an owner (FDOT) has:
 1. an implied obligation not to do anything
to hinder or obstruct performance by the
other person;
 2. an implied obligation not to knowingly
delay unreasonably the performance of
duties assumed under the contract;
 3. an implied obligation to furnish
information which would not mislead
prospective bidders.
13
Types of Contracts by payment:
 Lump sum payments: A single payment of the
entire amount due at one time rather than in
installments. The payment is for everything
needed to perform the desired work.
 Unit price payments: Contract items are priced
per unit and not on the basis of a flat contract
price.
14
Recoverable Damages:
 Delay Damages (5-12.2.2 & 5-12.10(b))
 Extra Work (5-12.2.1)
Non-Recoverable Items of Damage (5-12.10)






Loss of Profit (lost profits)
Consequential Damages
Loss of Bonding Capacity
Loss of Bidding Opportunity
Attorney Fees
Acceleration, unless by written directive
15
Doctrine of Mitigation of Damages:
 The doctrine of mitigation of damages imposes
on a party injured by breach of contract a duty
to exercise reasonable diligence and ordinary
care in attempting to minimize his damages, or
avoid aggravating the injury.
16
Mitigation:
5-12.6.2.1:
For any delay claim, the Contractor shall be
entitled to monetary compensation for the
actual idle labor and equipment, and indirect
costs, expenses, and profit thereon, as provided
for in 4-3.2.1(d) and solely for costs incurred
beyond what reasonable mitigation thereof the
Contractor could have undertaken.
17
Also, 5-2.2.2:
“ except that in the instance of delay to a noncontrolling item of work the Contractor may be
compensated for the direct costs of idle labor or
equipment only, at the rates set forth in 4-3.2.1(a)
and (c), and then only to the extent the Contractor
could not reasonably mitigate such idleness.”
18
Spearin Doctrine:
If a construction contractor is bound by contract to build
according to plans and specifications provided by the
owner, he will not be responsible for the consequences of
defects in the plans and specifications. On the contrary,
there is an “implied warranty” that “if the specifications
were complied with ,” the work would be adequate. The
implied warranty is not overcome by the customary selfprotective clauses the government inserts in its contracts,
as in Spearin itself, requiring the contractor to examine
the site, to check the plans, and to assume responsibility
for the work, including its safekeeping, until completion
and acceptance.
Al Johnson Const. Co. v. United States, 854 F.2d 467, 468 (Fed. Cir. 1988).
19
Severin Doctrine:
Under the Severin doctrine, a suit of this nature may be maintained
only when the prime contractor has reimbursed its subcontractor
for the latter's damages or remains liable for such reimbursement
in the future. These are the only ways in which the damages of the
subcontractor can become, in turn, the damages of the prime
contractor, for which recovery may be had against the Government.
Thus, when the subcontract contains a clause completely
exonerating a prime contractor from liability to its subcontractor for
the damage complained of, suit cannot be maintained by the prime
contractor against the Government. The same result will follow
when the subcontract provides for a complete release of the prime
contractor's liability to the subcontractor upon the granting of
additional time for the latter's performance, or the acceptance of
final payment by the latter.
George Hyman Const. Co. v. United States, 30 Fed. Cl. 170, 174 (Fed. Cl. 1993) aff'd, 39
F.3d 1197 (Fed. Cir. 1994)
20
Sovereign Immunity:
A judicial doctrine which precludes bringing suit
against the government without its consent.
Florida Constitution, Article X, § 13:
Provision may be made by general law for bringing
suit against the state as to all liabilities now
existing or hereafter originating.
21
Waiver:
An intentional or voluntary relinquishment of a
known right, or such conduct as warrants an
inference of the relinquishment of such right.
22
Use of Waiver:
5-12.2.2:
Failure by the Contractor to comply with the ten
calendar day notice shall constitute a waiver of
the claim.
23
Waiver
“MEI asserts that the County waived the written change order
requirement by directing work changes without following its own
formalities. We decline to hold that the doctrines of waiver and
estoppel can be used to defeat the express terms of the contract.
Otherwise, the requirement of Pan Am that there first be an
express written contract before there can be a waiver of
sovereign immunity would be an empty one. An unscrupulous
or careless government employee could alter or waive the terms
of the written agreement, thereby leaving the sovereign with
potentially unlimited liability.”
County of Brevard v. MiorelliEngineering, Inc., 703 So.2d 1049, 1051 (Fla. 1997)
24
●
●
●
●
FDOT contract must be in writing
Contracts can be amended
Condition Precedent = Prerequisite
Implied covenants
● good faith and fair dealing
● not to hinder performance
● not to knowingly delay
● not to mislead
● Only Damages Payable
● Extra Work
● Delay
25
26
Contract interpretation is for the court as a
matter of law, rather than the jury, only when the
agreement is:
(a) totally unambiguous, or
(b) when any ambiguity may be resolved
by applying the rules of construction to
situations in which the parol evidence of the
parties' intentions is undisputed.
27
Rules of Construction
(1) Words and other conduct are interpreted
in the light of all the circumstances, and if the
principal purpose of the parties is
ascertainable it is given great weight.
28
(2) A writing is interpreted as a whole endeavoring to
give every provision its full meaning and operative
effect.
(3) Unless a different intention is manifested:
(a) The plain meaning of the words in the
document should be used to ascertain the parties’
intent.
(b) technical terms and words of art are given
their technical meaning when used in a transaction
within their technical field.
29
(4) Where an agreement involves repeated
occasions for performance by either party with
knowledge of the nature of the performance
and opportunity for objection to it by the other,
any course of performance accepted or
acquiesced in without objection is given great
weight in the interpretation of the agreement.
30
(5) Wherever reasonable, the manifestations
of intention of the parties to a promise or
agreement are interpreted as consistent with
each other and with any relevant course of
performance, course of dealing, or usage of
trade. A reasonable interpretation of a
contract is preferred to an unreasonable one.
31
Subarticle 5-2: A requirement occurring in one part of
the contract is as binding as though occurring in all.
In addition to the work and materials specified in the
Specifications as being included in any specific pay item is
incidental work necessary for the proper completion of the
work.
In cases of discrepancy, the governing order of the
documents is as follows:
1. Special Provisions. (utility schedules)
2. Technical Special Provisions.
3. Plans.
4. Design Standards.
5. Developmental Specifications.
6. Supplemental Specifications.
7. Standard Specifications.
Computed dimensions govern over scaled dimensions.
32
● Principal purpose of the parties.
● Writing is interpreted as a whole.
● Plain meaning of the words used.
● Check defined terms.
● Technical terms given technical meaning.
● Course of performance important.
● A reasonable interpretation is preferred.
● Governing order of the documents Section 5-2.
33
34
“Florida Statutes”
35
2013 Florida
Statutes
36
“Public Transportation”
37
“Bridge”
38
39
Standard Specification 8-3.2
“Submission of Working Schedule: Within 21 calendar
days after Contract award or at the preconstruction
conference, whichever is earlier, submit to the Engineer
a work progress schedule for the project. The Engineer
will review and respond to the Contractor within 15
calendar days of receipt.”
40
8-3.2 (continued)
Provide a schedule that shows the various activities of work in
sufficient detail to demonstrate a reasonable and workable
plan to complete the project within the Contract Time. Show
the order and interdependence of activities and the sequence
for accomplishing the work. Describe all activities in sufficient
detail so that the Engineer can readily identify the work and
measure the progress on of each activity. Show each activity
with a beginning work date, a duration, and a monetary value.
Include activities for procurement fabrication, and deliver of
materials, plant, and equipment, and review time for shop
drawings and submittals.
41
Not approval
Sub-article 8-3.2 continued:
Submit and updated Work Progress Schedule, for
Engineer’s acceptance, if there is a significant
change in the planned order or duration of an
activity.
.......
If the Contractor fails to finalize either the initial or
a revised schedule in the time specified, the
Engineer will withhold all Contract payments until
the Engineer accepts the schedule.
42
Fortec Constructors v. United States, 8 Cl.Ct.
490 (1985).
“It is essential that any changes in the work
and time extensions due to the contractor be
incorporated into the progress analysis
concurrently with the performance of the
changes or immediately after the delay and
thus integrated into the periodic computer
runs to reflect the effect on the critical path.
Otherwise, the critical path chart produced by
the computer will not reflect the current status
of the work performed or the actual progress
being attained.”
43
J.A. Jones Constr. Co., supra, 72–1 BCA at
42,931.
“The value and usefulness of the CPM is
dependent upon the Contracting Officer
making prompt decisions when excusable
delays are alleged by the contractor and upon
the contractor promptly revising and updating
the CPM chart to incorporate time extensions,
whether they be tentative or finally determined,
within a short time after occurrence of the
delay.”
44
Blinderman Const. Co., Inc. v. U.S., 39 Fed.Cl. 529
(1997).
“Finding plaintiff’s CPM network diagram unhelpful,
we turn to plaintiff’s CPM mathematical analyses
and find them gravely flawed as well. One
deficiency is plaintiff’s failure to update its CPM
schedules in accordance with the requirements of
the contract, which states in no uncertain terms that
“[w]hen changes in the work are necessary, the
Contractor will submit revisions to the [CPM]
network of all activities affected by the change.”
45
Section 1-3: Definition of Delay:
Delay: Any unanticipated event, action, force or
factor which extends the Contractor’s time of
performance of any controlling work item under
the Contract. The term “delay” is intended to
cover all such events, actions, forces or factors,
whether styled “delay,” “disruption,”
“interference,” “impedance,” “hindrance,” or
otherwise, which are beyond the control of and
not caused by the Contractor, or the Contractor’s
subcontractors, materialmen, suppliers or other
agents. This term does not include “extra work.”
46
Controlling Work Items:
Section 1-3: Controlling Work Items:
The activity or work item on the critical path
having the least amount of total float. The
controlling item of work will also be referred to as
a Critical Activity.
47
8-7.3.2 Contract Time Extensions:
The Department may grant an extension of
Contract Time when a controlling item of work is
delayed by factors not reasonably anticipated or
foreseeable at the time of bid. The Department
may allow such extension of time only for delays
occurring during the Contract Time period or
authorized extensions of the Contract Time
period. When failure by the Department to fulfill
an obligation under the Contract results in delays
to the controlling items of work, the Department
will consider such delays as a basis for granting a
time extension to the Contract.
48
Delays: All delays are either excusable or
nonexcusable.
 An excusable delay, in general, is a delay that is
due to an unforeseeable event beyond the
Contractor’s control.
 Error or omission in the plans.
 Owner directed changes.
 Nonexcusable delays are events that are within
the Contractor’s control or that are foreseeable.
 Delays caused by subcontractors.
 Faulty workmanship by the Contractor.
49
Excusable delays are either compensable or
noncompensable.
 A compensable delay is a delay where the
Contractor is entitled to additional time or
compensation.
 Only excusable delays are compensable.
 A noncompensable excusable delay is
frequently beyond the control of both the
contractor and the owner, or the terms of the
contract may exclude compensation despite
being an excusable delay.
50
Concurrent Delays
 Concurrent delays are separate delays to the
critical path that occur at the same time.
 Section 4-3.2.1(d)(2):
Further, in the event there are concurrent delays to
one or more controlling work items, one or more being
caused by the Department and one or more being
caused by the Contractor, the Contractor shall be
entitled to a time extension for each day that a
controlling work item is delayed by the Department
but shall have no right to nor receive any monetary
compensation for any indirect costs for any days of
concurrent delay.
51
Float:
8-3.2.5 (Special Provision “SP0080302A”)
Float: Is also known as slack time or slide time; it is
defined as the amount of time the finish of any activity
can be delayed. Two kinds of float are possible; Total
float is how much an activity can be delayed without
affecting the finish date of the project or an intermediate
deadline; it is the difference between the late finish date
and the early finish date. Free float is how much an
activity can be delayed without affecting its earliest
successor.
Float is not for the exclusive use or benefit of either the
Department or the Contractor.
52
American Bar Association
Forum on the Construction Industry
2012 Mid Winter Meeting
WHAT IS A SCHEDULE GOOD FOR?
A Study of Issues Posed by Schedules
on Complex Projects
Anthony L. Meagher
DLA Piper (US)
Baltimore, MD
Robert M. D’Onofrio, P.E.
URS Corporation
New York, NY
53
SCHEDULE DELAY ANALYSIS
METHODS
Standard Names
Time Impact Analysis
Collapsed as-built
As-built critical path
Impacted As-planned
Total time
Specific Method
Properly adjusted TIA
Unadjusted TIA (Windows)
Prospective TIA
Window wide periods
Multiple period using updates
Collapse stepped removal
Remove owner
Remove contractor
Critical path using updates
As-built path
Stepped insertion
Global
Compare owner/contractor
As-planned v as-built
METHODS APPLIED TO SAME FACT
PATTERN
(Prepared by Anthony L. Meagher and Robert M. D’Onofrio, P.E.)
Analysis Methodology
Excusable
Compensable
Excusable
Noncompensable
Time Impact Analysis
(properly adjusted)
1
4
1
6
Collapsed As-Built
6
2
0
0
1
4
7
6
Impacted As-Planned
(comp)
0
5
1
6
6
3
1
0
0
2
2
5
0
1
3
1
6
6
6
6
Impacted As-Planned
Total Time/As-Built Critical
Prospective TIA
Windows/TIA
Windows with Wide Periods
NonTotal
excusable
Delay
(LD’s)
Guideline
As-built
critical
path
Collapsed as-built
As-planned v
as-built
Compare
owner/contracto
r
Global
Stepped
insertion
As-built path
Critical path
using updates
Remove
contractor
Remove owner
Collapse
stepped
removal
Multiple period
using updates
Window wide
periods
Prospective TIA
Unadjusted TIA
(Windows)
Properly
adjusted TIA
Time Impact
Analysis
Impacted As- Total
planned
time
1
Yes
Yes
Yes
No
Yes
No
No
No
No
No
No
No
No
No
2
Yes
Maybe
Yes
No
No
No
No
No
No
No
No
No
No
No
3
Yes
Yes
Yes
Yes
No
No
No
No
No
No
Yes
No
No
No
4
Yes
No
Yes
No
No
No
No
No
No
No
No
No
No
No
5
Yes
Yes
Maybe
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
No
No
Yes
6
Yes
Yes
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
7
Yes
Yes
Yes
Yes
No
No
No
No
No
No
8
Yes
No
No
No
No
No
No
Maybe Maybe Maybe
(Prepared by
L.
No Anthony
No
No
Meagher and
Robert
M.
No
No
No
D’Onofrio,
P.E.)
No
No
No
Yes
No
No
57
58
Supplemental Agreements
59
Florida Statute § 337.11:
(9)(a)
The department shall permit the use of written
supplemental agreements, written work orders
pursuant to a contingency pay item or contingency
supplemental agreement, and written change orders to
any contract entered into by the department. Any
supplemental agreement shall be reduced to written
contract form and executed by the contractor and the
department. Any supplemental agreement modifying
any item in the original contract must be approved by
the head of the department, or his or her designee, and
executed by the appropriate person designated by him
or her.
60
“full and complete
settlement”
61
62
63
64
(1) (continued from page 1)
Contract Amendment:
Full and Final SA
A. The Department and the Contractor agree that the contract time adjustment and compensation
specified in the Supplemental Agreement constitute a full and final settlement of all disputes, claims,
matters and issues of any nature or kind, known or unknown, which the Contractor has, or may have,
arising out of or regarding the Contract , including but not limited to, notices of intent to claim,
requests for equitable adjustment, requests for compensation and extensions of time, certified
claims, causes of action, demands, controversies as to work contracted and performed, work added,
deleted and modified, unforeseen work, extra work, differing site conditions, delays and disruptions,
utility conflicts, design changes or defects, suspensions, lost productivity, extended or unabsorbed
home office and job site overhead, Maintenance of Traffic adjustments, bonuses, incentives,
disincentives, lost profits, mark-ups, cumulative impacts to the project(s), all direct and indirect costs
for equipment, manpower, materials, overhead, profit and delay, and any other adverse financial or
schedule impacts to the subject project(s).
B. This Supplemental Agreement supersedes all prior negotiations, communications, representations,
commitments, agreements or understandings , written or oral, not specifically incorporated in this
Supplemental Agreement, and that no deviation from the terms of this Supplemental Agreement
shall be predicated upon such prior negotiations, communications, representations, commitments,
agreements or understandings.
C. The Department agrees to pay the Contractor the total sum of $ ______________ .
D. Nothing in this Supplemental Agreement shall relieve the Contractor of its obligations to the
Department under Section 5-13, Standard Specifications.
65
Unilateral Payments:
Section 1-3, Unilateral Payment:
A payment of money made to the Contractor by the
Department pursuant to Section 337.11(12), Florida
Statutes for sums the Department determines to be due
to the Contractor for work performed on the project, and
whereby the Contractor by acceptance of such payment
the Contractor may otherwise
have against the Department for payment of any
additional sums the Contractor claims are due for the
work.
66
Florida Statute 337.11(12):
Notwithstanding any other provision of law to the
contrary, the department has unilateral authority to pay
the contractor the sums the department determines to
be due to the contractor for work performed on a
project. This unilateral authority to pay by the
department does not preclude or limit the rights of the
department and the contractor to negotiate and agree
to the amounts to be paid to the contractor. By
acceptance of any such unilateral payment, the
contractor does not waive any rights the contractor may
have against the department for payment of any
additional sums the contractor claims are due for the
work.
67
Miscellaneous Legal Topics
68
Florida Transportation
Code: F.S. 334.01
69
Entry onto Lands
Florida Statutes § 337.274:
The department and its authorized agents and
employees are authorized to enter upon any lands, waters,
and premises, upon giving reasonable notice to the
landowner, for the purpose of making surveys soundings,
drillings, appraisals, environmental assessments,
archaeological assessments, and examinations necessary
to perform its duties and functions; and any such entry shall
not be deemed a trespass or an entry that would constitute
a taking in an eminent domain proceeding. The
department shall make reimbursement for any actual
damages to such lands, water, and premises as a result of
such activities.
70
Florida Statutes § 472.029: Authorization to enter lands of
third parties; conditions:
(1) In general. Surveyors and mappers or their
subordinates may go on, over, and upon the lands of
others when necessary to make surveys and maps or
locate or set monuments, and, in so doing, may carry with
them their agents and employees necessary for that
purpose. Entry under the right granted by this subsection
does not constitute trespass, and surveyors and mappers
and their duly authorized agents or employees so entering
are not liable to arrest or to a civil action by reason of such
entry; however, this subsection does not give authority to
registrants, subordinates, agents, or employees to destroy,
injure, damage, or move any physical improvements on
lands of another without the written permission of the
landowner.
71
(2) Liability and duty of care on agricultural land.
(a) Any person regulated by this chapter who enters agricultural land
shall do so in compliance with all federal, state, and local laws, rules,
and regulations pertaining to premises security, agricultural protections,
and other health and safety requirements in place on such land.
(b) A landowner is not liable to any third party for civil or criminal acts
or damages that result from the negligent or intentional conduct of any
person regulated by this chapter on agricultural land.
(c) If written notice is not delivered to the landowner or landowner's
registered agent at least 3 business days prior to entry on an
agricultural parcel containing more than 160 acres, the duty of care
owed by the landowner to those regulated by this chapter is that due
an undiscovered trespasser.
(d) This subsection applies only to land classified as agricultural
pursuant to s. 193.461.
72
Interest Rate:
Subarticle 9-9 Interest Due on Delayed Payments.
The Department will determine and pay any
interest due the Contractor for delays in final
payment in accordance with Section 337.141 of
the Florida Statutes.
Florida Statutes Section 337.141
(3) For each day after 75 days, or 30 days after
settlement of a claim, the department shall pay to
the contractor interest at the rate set forth in s.
55.03.
73
Florida Statutes § 55.03 Judgments; rate of interest,
generally.
(1) On December 1, March 1, June 1, and September 1 of
each year, the Chief Financial Officer shall set the rate of
interest that shall be payable on judgments or decrees for
the calendar quarter beginning January 1 and adjust the
rate quarterly on April 1, July 1, and October 1 by
averaging the discount rate of the Federal Reserve Bank of
New York for the preceding 12 months, then adding 400
basis points to the averaged federal discount rate.
74
http://www.myfloridacfo.com/aadir/interest.htm
Interest Rates Established Quarterly under Chapter 2011169, Laws of Florida:
75
Access to Interstate System
23 United States Code Annotated § 111. Agreements
relating to use of and access to rights-of-way--Interstate
System:
(a) In general All agreements between the Secretary
and the State transportation department for the
construction of projects on the Interstate System shall
contain a clause providing that the State will not add any
points of access to, or exit from, the project in addition to
those approved by the Secretary in the plans for such
project, without the prior approval of the Secretary.
76
23 Code of Federal Regulation § 710.403
(4–1–09 Edition):
(c) Other use or occupancy. Subject to 23 U.S.C. 111,
the temporary or permanent occupancy or use of
right-of-way, including air space, for nonhighway
purposes and the reservation of subsurface mineral
rights within the boundaries of the rights-of-way of
Federal- aid highways, may be approved by the
Administrator, if he determines that such occupancy,
use or reservation is in the public interest and will not
impair the highway or interfere with the free and safe
flow of traffic thereon.
77
23 Code of Federal Regulation § 1.23(c)
(4-1-10 Edition)
(a) The State Transportation Department must
assure that all real property within the boundaries
of a federally-aided facility is devoted exclusively to
the purposes of that facility and is preserved free of all
other public or private alternative uses, unless such
alternative uses are permitted by Federal regulation or
the FHWA. An alternative use must be consistent with
the continued operation, maintenance, and safety of
the facility, and such use shall not result in the
exposure of the facility’s users or others to hazards.
78
Public Records Law
79
●
Florida has a broad public records law.
● Access to Public Records is recognized in the
Constitution of the State of Florida:
● Article I Section 24 of Florida’s Constitution states:
“Every person has the right to inspect or copy any
public record made or received in connection with the
official business of any public body, officer, or
employee of the state, or persons acting on their
behalf, except with respect to records exempted
pursuant to this section or specifically made
confidential by this Constitution.”
80
Florida Statutes §119.01:
● It is the policy of this state that all state,
county, and municipal records are open for
personal inspection and copying by any
person. Providing access to public records is
a duty of each agency.
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● Standard Specification 3-9 (Public Records).
“Allow public access to all documents, papers,
letters, or other material subject to the
provisions of Chapter 119, Florida Statutes,
made or received by the Contractor in
conjunction with this Contract. . . . . Failure
to grant such public access will be grounds for
immediate termination of this Contract by the
Department pursuant to 8-9.1.”
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● Exemptions:
“A public record that was prepared by an agency attorney
(including an attorney employed or retained by the agency or
employed or retained by another public officer or agency to
protect or represent the interests of the agency having custody
of the record) or prepared at the attorney's express direction, that
reflects a mental impression, conclusion, litigation strategy, or
legal theory of the attorney or the agency, and that was prepared
exclusively for civil or criminal litigation or for adversarial
administrative proceedings, or that was prepared in anticipation
of imminent civil or criminal litigation or imminent adversarial
administrative proceedings, is exempt from s. 119.07(1) and s.
24(a), Art. I of the State Constitution until the conclusion of the
litigation or adversarial administrative proceedings.”
“Attorney Work
Product”
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(exemptions continued)
● F.S. § 119.071(3)(b)(1): “Building plans,
blueprints, schematic drawings, and diagrams,
including draft, preliminary, and final formats,
which depict the internal layout and structural
elements of a building, arena, stadium, water
treatment facility, or other structure owned or
operated by an agency are exempt from s.
119.07(1) and s. 24(a), Art. I of the State
Constitution.”
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● F.S. § 334.03(2): “Bridge” means a
structure, including supports, erected
over a depression or an obstruction,
such as water or a highway or railway,
and having a track or passageway for
carrying traffic as defined in chapter 316
or other moving loads.
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(exemptions continued)
● Florida Statutes § 119.071(1)(b)(2)
Sealed bids, proposals, or replies received by
an agency pursuant to a competitive
solicitation are exempt from s. 119.07(1) and s.
24(a), Art. I of the State Constitution until such
time as the agency provides notice of an
intended decision or until 30 days after
opening the bids, proposals, or final replies,
whichever is earlier.
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(exemptions continued)
● Florida Statutes § 119.071(1)(c):
Any financial statement that an agency
requires a prospective bidder to submit in
order to prequalify for bidding or for
responding to a proposal for a road or any
other public works project is exempt from s.
119.07(1) and s. 24(a), Art. I of the State
Constitution.
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Document Retention Policy
FDOT’s Retention and Disposal Schedule:
Where is it?
● DOT Infonet
● Registered SharePoint Sites (under
“About DOT”)
● FA - Administration
● Support Services
● Records Management (under “Main Menu”).
● (a 135 page document)
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92
93
94
96
Engineer of Record
Changes to the Plans
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● All changes to the plans must be approved by the
Engineer of Record (EOR) prior to proceeding with the
change.
● By law, the EOR is liable for plan errors.
● Florida Statute §471.023(3) provides:
“The fact that a licensed engineer practices through a
business organization does not relieve the licensee from
personal liability for negligence, misconduct, or wrongful
acts committed by him or her. Partnerships and all
partners shall be jointly and severally liable for the
negligence, misconduct, or wrongful acts committed by
their agents, employees, or partners while acting in a
professional capacity.”
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● Florida Statutes §471.025 requires all final drawings to be
signed, dated, and sealed by the engineer
● Florida Statutes §471.025 says:
“All final drawings, specifications, plans, reports, or documents
prepared or issued by the licensee and being filed for public
record and all final documents provided to the owner or the
owner's representative shall be signed by the licensee, dated,
and sealed with said seal
● 61G15-23.001 Seals Acceptable to the Board.
(1) Pursuant to Section 471.025, F.S., the Board hereby
establishes as indicated below the forms of seals which are
acceptable to the Board.
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● (a) Any seal capable of leaving a permanent ink representation
or other form of opaque and permanent impression which
contains the information described herein is acceptable to the
Board.
(b) Said seal shall be a minimum of 1 7/8 inches in diameter
and shall be of a design similar to those set forth below.
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● Drawings, specifications, plans, reports, final documents, or
documents prepared or issued by a licensee may be transmitted
electronically and may be signed by the licensee, dated, and
sealed electronically with said seal in accordance with ss.
668.001-668.006. (F.S.A. § 471.025). Also, FAC 61G15-23.003.
● Florida Statutes §95.11(4)(a) provides:
“An action for professional malpractice, other than medical
malpractice, whether founded on contract or tort [must be filed
within 2 years]; provided that the period of limitations shall run
from the time the cause of action is discovered or should have
been discovered with the exercise of due diligence. However,
the limitation of actions herein for professional malpractice shall
be limited to persons in privity with the professional.
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105
106
107
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● Therefore, the statute of limitations for suing the EOR for
NEGLIGENCE could occur during the project – prior to final
acceptance.
● The statute of limitations for suing the EOR for BREACH OF
CONTRACT is 4 years. (§95.11(3)(c)).
● Standard Specification 5-1.4.8 says:
● Modifications for Construction: Where the Engineer allows
the Contractor to make modifications to the permanent works for
the purposes of expediting the Contractor’s chosen construction
methods, the Contractor shall submit proposals to the Engineer
of Record for review and approval prior to modifying the works.
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● Engineer of Record is a defined term in the
Standard Specifications.
● “The Professional Engineer or Engineering Firm
registered in the State of Florida that develops the
criteria and concept for the project, performs the
analysis, and is responsible for the preparation of the
Plans and Specifications. The Engineer of Record
may be Departmental in-house staff or a consultant
retained by the Department.
The Contractor shall not employ the Engineer of
Record as the Contractor’s Engineer of Record or
as a Specialty Engineer.
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● There is also a definition in the Standard Specifications for the
“Contractor’s Engineer of Record.”
● Contractor’s Engineer of Record.
“A Professional Engineer registered in the State of Florida, other
than the Engineer of Record or his subcontracted consultant, who
undertakes the design and drawing of components of the permanent
structure as part of a redesign or Cost Savings Initiative Proposal, or for
repair designs and details of the permanent work. The Contractor’s
Engineer of Record may also serve as the Specialty Engineer.
The Contractor’s Engineer of Record must be an employee of a
pre-qualified firm. The firm shall be pre-qualified in accordance with the
Rules of the Department of Transportation, Chapter 14-75. Any
Corporation or Partnership offering engineering services must hold a
Certificate of Authorization from the Florida Department of Business
and Professional Regulation.”
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● Florida Administrative Code 61G15-30.002:
Engineer of Record A Florida professional
engineer who is in responsible charge for the
preparation, signing, dating, sealing and issuing
of any engineering document(s) for any
engineering service or creative work.
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● Standard Specification 4-3.9.3(4).
“The Department may require that engineering
analyses be performed by a prequalified consultant
in the applicable class of work. Support all design
changes that result from the Proposal with prints of
drawings and computations signed and sealed by
the Contractor’s Engineer of Record Written
documentation or drawings will be provided clearly
delineating the responsibility of the Contractor’s
Engineer of Record.”
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375-020-010-d
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