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Florida’s Public Records Law

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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 . Florida’s Public Records Law.

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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.


● 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.”


● 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.


● 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.


● 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.”


(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.”


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.


(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.


(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.


● 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)


● 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.


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.


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.


● 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.


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.


(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.


(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.


(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.


● 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.


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).


● 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.”


● 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.


(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.


● 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.


● 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.


● 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.


● 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.”


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.


● 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.”


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.”


● 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.


● 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.


● 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.”


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.


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.


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.”


●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.


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.”


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.”


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.”


● 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.


● 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.


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.


● 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.


(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.


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.


● 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.


● 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.


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.


● 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.

● Rates Established Quarterly under Chapter 2011-169, Laws of Florida:

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).


Subarticle 9-5.6 Certification of Payment to Subcontractors:The term “subcontractor,” as used herein, includes persons or firms furnishing materials or equipment incorporated into the work or stockpiled for which the Department has made partial payment and firms working under equipment-rental agreements. The Contractor is required to pay all subcontractors for satisfactory performance of their Contracts before the Department will make a further progress (partial) payment. The Contractor shall also return all retainage withheld to the subcontractors within 30 days after the subcontractor’s work is satisfactorily complete, as determined by the Department. Prior to receipt of any progress (partial) payment, the prime contractor shall certify that all subcontractors having an interest in the Contract were paid for satisfactory performance of their Contracts and that the retainage is returned to subcontractors within 30 days after satisfactory completion of the subcontractor’s work. Provide this certification in the form designated by the Department.


● 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.


(Florida Statute § 337.11 continued)Any surety issuing a bond under s. 337.18 shall be fully liable under such surety bond to the full extent of any modified contract amount up to and including 25 percent over the original contract amount and without regard to the fact that the surety was not aware of or did not approve such modifications. However, if modifications of the original contract amount cumulatively result in modifications of the contract amount in excess of 25 percent of the original contract amount, the surety's approval shall be required to bind the surety under the bond on that portion in excess of 25 percent of the original contract amount.


(b) Supplemental agreements and written work orders pursuant to a contingency pay item or contingency supplemental agreement shall be used to clarify the plans and specifications of a contract; to provide for unforeseen work, grade changes, or alterations in plans which could not reasonably have been contemplated or foreseen in the original plans and specifications; to change the limits of construction to meet field conditions; to provide a safe and functional connection to an existing pavement; to settle contract claims; and to make the project functionally operational in accordance with the intent of the original contract.


Supplemental agreements may be used to expand the physical limits of a project only to the extent necessary to make the project functionally operational in accordance with the intent of the original contract. The cost of any such agreement extending the physical limits of a project shall not exceed $100,000 or 10 percent of the original contract price, whichever is greater.


(c) Written change orders may be issued by the department and accepted by the contractor covering minor changes in the plans, specifications, or quantities of work within the scope of a contract, when prices for the items of work affected are previously established in the contract, but in no event may such change orders extend the physical limits of the work.

(f) Any supplemental agreement or change order in violation of this section is null and void and unenforceable for payment.

(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.