Florida’s Public Records Law

1. NOTES:1. All quotes from the Standard Specifications are from the 2010 edition.2. In many cases, only part of the wording of the Specification has been reproduced.

2. Florida’s Public Records Law

3. ● 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.”

4. ● 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.

5. ● 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.

6. ● 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.”

7. (exemptions continued)F.S. § 119.071: “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.”

8. 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.

9. (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.

10. (exemptions continued) Florida Statutes § 119.071(1)(c): Any financial statement that an agency requires a prospective bidder to submit in order to prequalifyfor 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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12. Preservation of Records

13. ● F.S. §337.11(10): The department shall preserve all records which reflect the quantities of materials used in the construction of any road project supervised by the department for a period of 3 years after final acceptance. This requirement is equally binding when materials are purchased by prime contractors or subcontractors.● 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)

14. ● PRE-CONSTRUCTION/DESIGN CORRESPONDENCE AND DOCUMENTS (page 96 of 135)This record series consists of project files and other miscellaneous design related correspondence between FDOT (Florida Department of Transportation) offices, consultants, vendors and the public used to develop project plans, permits and agreements. Records document plan review comments and responses, consultant selection and administration documents, FHWA approvals, directions to consultants, schedules and in-house design, minutes of project meetings, reports, studies, applications, computations, reviews, certifications, schedules, man-hour and cost estimates, etc. RETENTION: a) Record (master) copy. Retain fifteen (15) years b) Duplicates. Retain until obsolete, superseded or administrative value is lost.

15. FINAL PLANS: ROADWAY (page 52 of 135)This record series consists of, but is not limited to, the signed and sealed set of plans, submitted 9/22/97 or later, and sealed plan sheets reflecting changes which were made during construction. NOTE: Plans submitted prior to 9/22/97 were submitted using Retention Schedule RO-43(1) Original Roadway Engineering Plan Drawings‟, or Retention Schedule RO-55, Rev „Final (As-Built) Engineering Plans.‟ RETENTION: a) Record (master) copy. Retain permanently plans submitted 9/22/97 or later. Records may be microfilmed in accordance with Chapter 1B26.0021 F.A.C. b) Duplicates. Retain until obsolete, superseded or administrative value is lost.

16. ENGINEERING RECORDS: INFRASTRUCTURE (page 45)This record series consists of graphic and engineering records, including as-built drawings, for traffic signals and signs, streetlights, pavement markings, roads, sidewalks, pedestrian bridges, drainage ditches, electric power and traffic signal control lines, transformers, and other elements of local infrastructure. See also “ARCHITECTURAL/BUILDING PLANS: COMMERCIAL,” “ARCHITECTURAL/BUILDING PLANS: PRELIMINARY DRAWINGS,” “ARCHITECTURAL/BUILDING PLANS: RESIDENTIAL,” and “SUBDIVISION PLANS.” RETENTION: a) Record (master) copy. Retain for life of structure/element. b) Duplicates. Retain until obsolete, superseded, or administrative value is lost.

17. CONTRACT INTERPRETATIONRestatement 2d Contracts § 202

18. ● Contract interpretation is for the court as a matter of law, rather than the jury, onlywhen 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.

19. 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.

20. (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.

21. (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.

22. (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.

23. ● 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.

24. 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. Miorelli Engineering, Inc., 703 So.2d 1049, 1051 (Fla. 1997).

25. Engineer of RecordChanges to the Plans

26. ● 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.”

27. ● 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.

28. (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.

29. ● 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.

31. ● 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.

32. ● 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.

33. ● 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 VECP, 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.”

34. 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.

35. ● 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 VECP 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.”

36. SCHEDULES● Definition of “working day.” Subarticle 1-3.“Working Day. Any calendar day on which the Contractor works or is expected to work in accordance with the approved work progress schedule.”

37. ● Standard Specification 7-11.6.4:Weekly Meetings: Conduct weekly meetings on the job site with all the affected utility companies and the Engineer in attendance to coordinate project construction and utility relocation. Submit a list of all attendees one week in advance to the Engineer for approval. Provide the approved Work Progress Schedule and Work Plan for the project, as specified in 8-3.2, to document the schedule and plan for road construction and utility adjustments.

38. ● Standard Specification 8-3.1.Compliance with Time Requirements: Commence work in accordance with the accepted working schedule and provide sufficient labor, materials and equipment to complete the work within the time limit(s) set forth in the proposal.

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. 8-3.2 (continued)Submit an updated Work Progress Schedule, for Engineer’s acceptance, if there is a significant change in the planned order or duration of an activity. The Engineer will review the corrected schedule and respond within 7 calendar days of receipt.

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. ●Subarticle 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.

44. 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.”

45. 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.”

46. 8-3.2 (continued)By acceptance of the schedule, the Engineer does not endorse or otherwise certify the validity or accuracy of the activity durations or sequencing of activities. The Engineer will use the accepted schedule as the baseline against which to measure the progress.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.”

47. ● 5-12.8: Claims for Acceleration:The Department shall have no liability for any constructive acceleration of the work, nor shall the Contractor have any right to make any claim for constructive acceleration nor include the same as an element of any claim the Contractor may otherwise submit under this Contract. If the Engineer gives express written direction for the Contractor to accelerate its efforts, such written direction will set forth the prices and other pertinent information and will be reduced to a written Contract Document promptly. No payment will be made on a Supplemental Agreement for acceleration prior to the Department’s approval of the documents.

48. ● Subarticle 5-12.10: Non-Recoverable Items:The parties agree that for any claim the Department will not have liability for the following items of damages or expense:a. Loss of profit, incentives or bonuses; b. Any claim for other than extra work or delay;c. Consequential damages, including, but not limited to, loss of bonding capacity, loss of bidding opportunities, loss of credit standing, cost of financing, interest paid, loss of other work or insolvency; d. Acceleration costs and expenses, except where the Department has expressly and specifically directed the Contractor in writing “to accelerate at the Department’s expense”; nor e. Attorney fees, claims preparation expenses and costs of litigation.

49. ● Contractor’s Request to work out of sequence.