ALJDEC decisions subject to certification as final

2010A-308474277-ROC · Registrar of Contractors · 2011-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2011 at 10:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Randy Ringleb. The Respondent appeared through its authorized representative, Thomas Kirch. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class L-9 (No.189970) License issued by the Registrar of Contractors. 2. On July 8, 2010, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors alleging, in pertinent part, as follows: #1. Abandonment of Contract A.R.A. [sic} 32-1154: Kirch Construction, Inc., and/or Thomas Kirch (Kirch) attended the pre-construction meeting at NAU to fully familiarize his company with the obligations of the Project (see EXHIBIT A-Pre- Construction Attendance Form). Then Kirch and his head superintendent visited the site one more time to completely understand the scope of the Project. Kirch submitted a quote (see EXHIBIT B-Kirch Quote) for the work. After extensive verbal clarifications Kirch assured Caymus the quote was of quality, accurate and included all work associated with the Project known as NAU Concrete 2010, Project No. 08.030.105. Caymus was considered the low and responsible bid by Northern Arizona University and was issued a contract. Kirch was then issued a subcontract agreement (see EXHIBIT C-Kirch Subcontract Agreement) from Caymus for the concrete removal, concrete replacement, asphalt removal, asphalt replacement, masonry patchwork, paver removal, paver replacement, supervision, grading, traffic control, turf replacement, bonds and insurances in accordance with the plans, specifications and contract documents. Kirch then attended the meeting with Northern Arizona University (see EXHIBIT D(Pre-construction Conference Checklist) to start work on the Project. He, personally, deemed himself the Project Safety Officer, the Project Supervisor and the main Project Contact Person, Kirch has failed to returned [sic} the executed subcontract agreement, insurance certificates, bonds, return phone messages and emails. Caymus has hired replacement subcontractors at added costs to date of $21,899.50. 3. The Respondent denied the allegations of the Complaint and pursuant to the Complainant’s written request for an administrative hearing dated July 30, 2010, the matter was set for an administrative hearing. 4. There was no dispute that the Respondent performed no construction work on the construction project. 5. There was no dispute that there is no signed construction contract between the parties. 6. There was no allegation that the Complainant had paid the Respondent any money to perform construction work on the construction project. 7. Credible testimony and evidence established that on May 5, 2010, the Respondent’s representative, Thomas Kirch, attended a pre-bid meeting for a construction project at Northern Arizona University (“NAU”) at the request of the Complainant. 8. Credible testimony and evidence established that on May 12, 2010, NAU issued an addendum to the original contract (Addendum) requiring additional concrete work to the construction project. 9. Credible testimony and evidence established that the Addendum added a substantial amount of concrete work to the construction project. 10. Credible testimony and evidence established that on May 14, 2010, the Respondent submitted an estimate of $148,746.50 for the original construction project. 11. Credible testimony and evidence established that the Respondent did not receive a copy of the Addendum until after it had submitted its written estimate for the concrete work set forth in the original contract. 12. Credible testimony and evidence established that there was no written acknowledgment of the Addendum attached to the Respondent’s written construction bid as required by NAU. 13. There was no dispute that on June 2, 2010, the Respondent’s representative, Thomas Kirch, participated in a pre-construction conference for the construction project. 14. Credible testimony and evidence established that after the pre- construction conference, the Respondent performed an analysis of the additional concrete work set forth in the Addendum and determined that the Respondent would have to charge an additional $41,940.00 for the additional concrete work set forth in the Addendum. 15. Credible testimony and evidence established that the Respondent declined to sign the subcontract agreement which contained the additional concrete work set forth in the Addendum 16. Credible testimony and evidence established that the Respondent declined to perform the work set forth in the original contract and the Addendum issued by NAU for the amount of Respondent’s written bid, because the written bid was made prior to the Respondent’s knowledge of the extra concrete work required by the Addendum. 17. Credible testimony and evidence established that the Complainant then retained an alternative concrete contractor to perform the concrete work set forth in the original contract and the Addendum issued by NAU. 18. The credible evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. The Complainant failed to sustain its burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154 (A) (1) (Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal), as charged in the Citation. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, January 20, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826