ALJDEC decisions subject to certification as final

2010A-961281-ROC · Registrar of Contractors · 2011-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2010, with further hearing on September 13, 2010, and November 30, 2010; the record closed on January 10, 2011 APPEARANCES: Tonya MacBeth, Esq. represented Complainant Integrated Facility Construction & Management. Eric Hawkins, Esq. represented Respondent Qualified Electrical Contractors, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Qualified Electrical Contractors, L.L.C. (“QEC”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT QEC is the holder of a Class K-11 license (No. 193462) issued by the Registrar of Contractors (“ROC”). Kelly Beckner is a member of QEC and its qualifying party. On April 14, 2009, QEC contracted with Complainant Integrated Facility Construction & Management (“IFCM”) to “provide all labor, equipment, and material to install electrical & fire alarm scopes of work per the plans, specs, and [QEC’s] proposal dated Feb. 17, 2009” at the Air National Guard Base, Building 35, in Tucson, Arizona. See Exhibit 2. QEC’s proposal contained QEC’s license number preceded by the letters “ROC”. See Exhibit 1. However, the contract, which was prepared by IFCM, did not contain QEC’s license number preceded by the letters “ROC”. See Exhibit 2. The contract price was $75,439.00. Id. The contract is dated March 20, 2009, and is not signed by a representative of QEC. However, on April 14, 2009, Mr. Beckner signed a Statement and Acknowledgement required by the federal government of contractors working on federal projects. Id. The Statement and Acknowledgement references the contract date of March 20, 2009, QEC as the subcontractor, IFCM as the prime contractor, the project name, location, scope of work, and IFCM’s Project Manager, Sean Murphy. Id. During the course of QEC’s work on the project, the parties had several disputes over change orders, and IFCM discovered deficiencies and departures from plans and specifications in QEC’s work. IFCM advised QEC of the deficiencies and gave QEC an opportunity to cure the noted deficiencies. QEC performed certain repair work. However, QEC did not rectify all of the deficiencies as requested by IFCM. On January 15, 2010, Mr. Murphy, on behalf of IFCM, filed a complaint against QEC with the ROC alleging the following deficiencies: 1) Contractor improperly installed and failed to test the new main feeders (conductors) and load-breaks to power a customer supplied transformer causing the conductors and load-breaks to fail when re- energized. 2) Contractor improperly installed multiple electrical and fire alarm system requirements as described in the attached Site Observation Report #1 dated November 11, 2009 by Bowden Engineering, Inc. 3) Contractor failed to provide properly trained and skilled labor and supervision to install the electrical and fire alarm scopes of work on this project. 4) Contractor improperly installed multiple electrical and fire alarm system requirements as described in the attached Punch-list Report dated December 21, 2009 by Bowden Engineering, Inc. 5) Contractor failed to install electrical and fire alarm scopes of work per the plans, specifications, addendums, sub-contractor agreement, and applicable electrical & fire alarm codes. 6) Contractor failed to correct the list of deficient work when instructed, and failed to do so in a timely manner to meet schedule requirements and required completion dates. 7) Contractor’s deficient work had to be completed by another electrical sub-contractor due to contractor’s refusal to correct the work. 8) Contractor failed to perform work in a timely and workman like manner causing multiple delays to the construction schedule and other sub-contractors (sic) work resulting in additional charges incurred by the GC. 9) General Contractor (IFCM, Inc.) had to request a time-extension from the customer to allow time to correct the deficient work of Qualified Electrical Contractors LLC.

At the commencement of the hearing, IFCM advised the tribunal that it would not be addressing the issues pertaining to the transformer in this forum, but rather would reserve those issues for litigation in civil court. At hearing, IFCM focused on the deficiencies in the fire alarm and fire suppression systems. Mr. Murphy, IFCM’s Estimation and Project Manager, testified in great detail about the project. Mr. Murphy has held his position with IFCM for six years. Mr. Murphy testified that notwithstanding the fact that QEC did not sign the subcontract, Mr. Beckner, QEC’s representative, signed the Statement and Acknowledgement, which is an integral part of the contract, signifying that the signer consents to the provisions contained in the contract. Mr. Murphy explained that the work QEC was contracted to perform for the Air National Guard was a fire suppression system for jet fuel fires, including a foam, sprinkler, and alarm system in a maintenance hangar that contained two bays capable of housing two aircraft in each bay. QEC contracted with Simplex-Grinnell, an equipment manufacturer, to perform the start-up, testing, and programming of the fire suppression system. Mr. Murphy testified that the timing of QEC’s work was critical as specialists were scheduled to fly in from other areas of the country to perform testing of the system. Mr. Murphy testified that QEC did not properly staff the job, causing delays that resulted in the postponement of the testing of the system. Because the system was not ready for testing, IFCM incurred financial penalties. Mr. Murphy testified that QEC ceased working on the project after it had submitted change orders that had been denied. Mr. Murphy explained that some of the change orders submitted by QEC were denied because the scopes of work contained on the change orders were encompassed by the parties’ contract. Other change orders were the result of the plans containing incorrect information regarding the wiring configuration. Mr. Murphy testified that those latter change orders were forwarded to the project owner, and QEC was verbally instructed to reconfigure the wiring, and the cost of such work would be negotiated at a later time. On November 9, 2009, Bowden Engineering, Inc. (“Bowden”), the engineering company hired by the Air National Guard to oversee the project, conducted a site observation. On November 11, 2009, Bowden issued a report delineating the deficiencies it observed in the north fire suppression panel, the flow switches, the alarms, and the fire pumps. See Exhibit 16. Mr. Murphy credibly testified that this report was forwarded to QEC with the instruction that all deficiencies needed to be corrected prior to the final testing of the system scheduled for November 30, 2009. QEC had notice of the preliminary and final testing dates pursuant to an October 14, 2009 email from Mr. Murphy to Mr. Beckner. See Exhibit 3. On November 24, 2009, QEC submitted a change order to IFCM in the amount of $9,295.00, encompassing all change orders and some of the noted deficiencies in the November 11, 2009 Bowden report. See Exhibit 16. IFCM forwarded the change order to the Air National Guard for approval. QEC was unwilling to perform further work on the project until the change order had been approved. However, the federal government instructed QEC to proceed with its work in order to maintain the schedule and the change order would be negotiated afterward. QEC did not proceed with its work, and the November 24, 2009 change order was denied. QEC revised the change order, and again, the Air National Guard did not agree with QEC’s pricing. Consequently, a meeting was scheduled for December 3, 2009, regarding the change orders. Grainger Consulting, Inc. (“Grainger”), a fire protection engineering company, was hired by National Fire Sprinkler, a subcontractor of IFCM, to perform an inspection of the work that had been performed. On December 1, 2009, Grainger performed its inspection and issued a report delineating the deficiencies found. See Exhibit 24. Grainger determined that the pump motors were not wired correctly and were not ready for testing. Id. Grainger further found that wire nuts and terminal strips were used, contrary to code requirements, as the wiring should have been continuous. Id. The Air National Guard decided that testing would not take place until the wire nut condition was appropriately rectified. After the December 3, 2009 meeting, and at the request of the architect, the engineers, and the Contracting Officer for the Air National Guard, QEC divided its last change order (designated as change order number 5), into revised change order 5, and change orders 6 and 7, and submitted them on December 8, 2009. QEC simply separated the change orders by topics and failed to provide any supporting documentation or detail. As of December 3, 2009, QEC was performing change order work that it had agreed to perform and for which it had agreed to negotiate payment after the work was completed. Mr. Murphy credibly testified that QEC failed to submit documentation establishing the labor costs associated with the work. The parties were in disagreement regarding the labor rates. QEC indicated on some of its change orders that the hourly labor rate for payroll purposes was $55.00 per hour, on others, a rate of $82.50 per hour, and on others, a rate of $75.00 per hour. However, those rates were not in compliance with the payroll documentation QEC provided to the federal government. Further, the change orders did not contain a breakdown of material costs. On December 9, 2009, the Contracting Officer for the Air National Guard requested additional detail for the change orders. The final inspection was re-scheduled to the week of December 15, 2009. On December 10, 2009, IFCM advised QEC that it was not to perform any additional work until the condition of the project was assessed. Mr. Murphy testified that the delays impacted the job considerably in that the testing could not occur when scheduled, other subcontractors were delayed, and charges were levied against IFCM. On December 17, 2009, Bowden performed a site inspection. The Minot Inspector, an inspector who conducts inspections for the federal government, also conducted an inspection on December 17, 2009. The Minot Inspector found the condition of the project unacceptable and would not certify the project. On December 21, 2009, Bowden issued a detailed report (“Bowden Report”) regarding the deficiencies found at the inspection, including eleven deficiencies in the hangars, twenty-seven deficiencies in the fire pump room, three deficiencies with the Monaco Panel room, and eight general deficiencies. See Exhibit 34. The following list delineates the deficiencies on which the parties focused:[1] Hangars

1. The height of the heat detectors are (sic) incorrect. Detectors shall be mounted at a height specified in the shop drawing submittal comments and Questions and Answers to the bidders for the project. Please refer to our review comment on the submittals dated 9-28-09, "Please provide a note stating that the installation will be in compliance with all requirements of NFPA 72 including the detectors will be mounted within 1 foot of the underside of the roof deck/ceiling, etc."

. . .

3. Initiating and notification circuits have been installed in the same conduit. Sheet E1, Detail No. 2 requires separate conduits for initiating and notification circuits. Please provide separate conduit systems per the drawings.

4. Sheet E1, Detail No. 2 also requires separate raceways for each heat detection zone. Both heat detection circuits were combined into the same conduit. Please provide separate conduit systems per the drawings.

. . .

8. All fire alarm wiring shall be splice free per Specification Section 16700-3.01. Terminal blocks are to be used only for the rate compensated heat detectors located in the Hangars.

. . . Fire Pump Room

1. Sheet E1, Detail No. 2 requires a new conduit run from the FSP panels to the FACP and from the FSP panels to the Monaco transmitter. We did not observe that new conduits had been installed. It appears that existing conduits were used. Please install new conduits per the drawings.

. . .

4. All wiring shall be splice free per Specification Section 16700- 3.01. Terminal blocks are to be used only for the rate compensated heat detectors located in the Hangars and for the existing wiring for the Monaco panel.

. . .

8. Smoke detector does not appear to be mounted at the proper height. See item (1) under the Hangar section.

. . .

10. There are a minimum of 2 junction boxes located in the room that are not accessible. Boxes shall be relocated and new wiring shall be installed. Splices are not allowed.

11. Initiating and notification wiring for the fire alarm devices in the room are combined in the same conduit. Per the drawings, this wiring shall be separated so that initiating circuits and notification circuits do not share the same conduits.

. . .

14. Flexible conduit is resting on the lighting fixtures. Contractor shall provide proper support for flexible conduit.

. . .

Monaco Panel Room

. . .

2. The drawings indicate alarm, trouble and supervisory signals to be routed from the FSP panels directly to the Monaco panel. Alarm, trouble and supervisory signals cannot be run to the FCI panel and then from the FCI panel to the Monaco panel. The alarm, trouble and supervisory signals must operate even if the FCI panel is disconnected. The alarm list on the Monaco panel does not indicate that the alarm functions from the FSP panels have been connected directly to the Monaco panel. Please confirm that all alarm signals shown on the drawings have been routed directly to the Monaco panel, via new conduits, and that the alarm list has been updated on the Monaco panel.

. . .

General

1. Please note that paragraph 16010 - 1.05 B requires any departures from the drawings shall be made only with written acceptance of the Contracting Officer. There were several modifications made to the electrical system that was (sic) performed without written permission.

. . .

3. Per 16010-3.05, all junction boxes and pull boxes shall be labeled with a permanent felt tip marker, ¼ inch wide, indicating the circuits contained within. All device plates shall be labeled on the back of the plate, with a permanent felt tip marker, indicating the circuits contained within the device box.

. . .

On December 21, 2009, IFCM forwarded a copy of the Bowden Report to QEC along with a letter advising that IFCM was giving QEC a 48 hour notice to provide appropriate labor, equipment, and materials, to correct the deficiencies and complete the project within 10 days. See Exhibit 33. Mr. Murphy testified regarding the deficiencies noted in the Bowden Report. Mr. Murphy testified that the plans, specifications, and code requirements for the project called for the heat detectors to be installed 4” to 12” from the ceiling, and that QEC installed them 28” from the ceiling. See Exhibit 52. Regarding the initiating and notification circuits, Mr. Murphy testified that the initiating circuit signals power to the heat detectors and the notification circuit alerts the panel to initiate the alarm. These circuits are required to be housed in separate conduits per the plans and specifications, and QEC installed both circuits in one conduit. See Exhibit 50, Sheet E1. Air National Guard Design Policy, to which QEC had access and should have reviewed, mandates that “the use of wire nuts in fire protection systems is prohibited. Slicing of wire shall not be permitted. All wiring is to be continuous from panel to device and device to device. Terminal blocks shall be used only where absolutely necessary, e.g. devices with integral pig tails, such as Rate Compensated Heat Detectors . . .” See Exhibit 53, pages 98 and 99. Mr. Murphy testified that QEC utilized wire nuts throughout the entire project, intermediately splicing the wires, in violation of Air National Guard Design Policy requirements. Mr. Murphy testified that QEC’s solution to remedy its installation of wire nuts was to install terminal strips, which the Air National Guard allowed in order to avoid re-wiring the entire project, until such allowance was revoked upon the Minot Inspector’s findings of other numerous violations. Further, QEC refused to install terminal strips at the heat detectors without an approved change order because the heat detectors specified on the plans were only available with pig tails. Mr. Murphy testified that the plans and specifications call for new conduit. However, QEC used existing conduits with new wiring. Regarding the junction boxes in the fire pump room, Mr. Murphy testified that they are not accessible. See Exhibit 39. Concerning the Monaco Panel Room, Mr. Murphy credibly testified that the fire alarm would not function in the configuration as installed by QEC because it would fail to notify the fire department, thereby rendering operation of the system impossible. Mr. Murphy testified that QEC’s failure to properly mark the junction and pull boxes is a safety issue. On January 8, 2010, QEC responded to IFCM’s December 21, 2009 letter through counsel. QEC addressed some of the items in the Bowden Report, generally asserting that the work was not deficient, that the work was approved by Jim Simpson, the Facilities Maintenance Supervisor for the Air National Guard base, that QEC required additional information prior to being able to address certain issues, that specific items were the responsibility of its subcontractor, Simplex-Grinnell, and that QEC was willing to correct certain items. QEC disputed the majority of the items. However, QEC requested a site meeting to address the issues identified by Bowden. After the 48 hour time frame elapsed without response from QEC, IFCM determined to proceed with the project. IFCM obtained two bids to complete and correct the work as delineated in the Bowden Report. One bid was in the amount of $66,000.00. The other bid was in the amount of $58,500.00. IFCM accepted the low bid and hired a replacement contractor to perform the necessary repairs and complete the project. Mr. Murphy credibly testified that the replacement contractor had to essentially “re-do” QEC’s work. Mr. Murphy testified that all of the wiring had to be removed and re-installed without wire nuts and slicing, due to QEC’s faulty installation, and that the heat detectors needed to be removed and re-installed at the correct heights and locations. Mr. Beckner testified that QEC had previously performed work at this Air National Guard base, on approximately 50 occasions, and had installed four or five fire systems. QEC has worked at the base two to three times since this project. Mr. Beckner testified that QEC has worked on other federal projects, as well. Mr. Beckner testified that he did not sign the contract with IFCM because they had not reached a final agreement. Mr. Beckner acknowledged reviewing the plans and specifications for the project, including sheets E1, E2, and E3, and the plan specification book. Mr. Beckner further acknowledged that he did not review the General Conditions for the project, that he does not know the code requirements or the fire safety requirements for the fire suppression system for the Air National Guard base, and that is why he hired Simplex-Grinnell for the installation of the fire system. Mr. Beckner testified that QEC’s electrical work does not have to adhere to fire safety code. Mr. Beckner further testified that he “monitored [QEC’s] work on occasion” and “looked at the conduit system but did not look at it closely.” Mr. Beckner contended that the heat detectors were installed per plans. However, Mr. Beckner contradicted this statement when he subsequently testified that the installation of the heat detectors was not specified on the plans. Mr. Beckner acknowledged that installation of the heat detectors was to comply with the fire code and that the fire code specifies the location and height of the heat detectors. Mr. Beckner further acknowledged that QEC did not provide separate conduit systems as was delineated in the Bowden Report and did not respond to those concerns. Mr. Beckner also acknowledged that QEC did not provide a detailed schedule as requested in IFCM’s December 21, 2009 48 hour notice. Mr. Beckner testified that IFCM provided an opportunity for QEC to correct the deficiencies. However, Mr. Beckner asserted that QEC requested through its attorney an opportunity to inspect and evaluate the work. Further, the 48 hour notice was received just prior to the holidays. The Administrative Law Judge finds based upon the credible, probative and substantial evidence with regard to Mr. Beckner’s assertion that QEC wanted an opportunity to inspect and evaluate its own work, that Mr. Beckner had the ability to monitor the work of QEC’s employees throughout the course of the project, and failed to do so in a meaningful manner. Mr. Beckner acknowledged that he was on site between one and five times and did not check to see if the conduit had been properly installed. Mr. Beckner testified that he instructed his foreman to “check certain items.” The evidence of record established that QEC had a duty to review the plans and ensure that the work performed by its employees was done in accordance with those plans. Regarding item #8 of the Bowden Report under the subcategory “Hangars,” “[a]ll fire alarm wiring shall be splice free per Specification Section 16700-3.01. Terminal blocks are to be used only for the rate compensated heat detectors located in the Hangars,” Mr. Beckner testified that this item had been approved by Jim Simpson. Mr. Beckner testified that Mr. Simpson is in charge of facilities management for the Air National Guard and that Colonel Kinney was in charge of the project. Mr. Beckner asserted that although Mr. Simpson did not have contracting authority, he worked in his position for a “long time” and that Colonel Kinney “relies on Mr. Simpson.” Mr. Beckner contended that Mr. Simpson has the authority to give approval to deviate from code specifications. Mr. Beckner acknowledged that he does not possess any documentation establishing such contention, and testified that he was basing his contention on past history, having previously performed work on the base. Mr. Beckner testified that QEC utilized wire nuts on all previous projects at the Air National Guard base and that Mr. Simpson “prefers the use of wire nuts.” QEC did not call Mr. Simpson as a witness to corroborate Mr. Beckner’s testimony. Mr. Beckner testified that QEC accepted Bowden’s recommendations and requirements after the issuance of the November 11, 2009 report, but disputed the findings contained in the Bowden Report. Mr. Beckner testified that after he received Bowden’s November 11, 2009 report, he sent an employee out to the project to verify whether QEC’s employees were adhering to the plan sheets. Mr. Beckner testified that the fire alarm system was complete as of November 11, 2009, and that QEC did not work on the system after it failed inspection on November 30, 2009. Mr. Beckner testified that QEC performed all of the work suggested on Bowden’s November 11, 2009 report. Regarding the December 21, 2009 Bowden Report, Mr. Beckner testified that he discussed with Mr. Bowden the fact that because IFCM specified in the plans that heat detectors with pig tails be installed, it was appropriate for QEC to submit a change order for that work. Mr. Beckner testified that delays caused by other trades working on the project affected QEC’s ability to be ready for the November 2, 2009 testing of the system. Mr. Beckner testified regarding the disputed change orders. Mr. Beckner acknowledged that notwithstanding receiving the request for a detailed cost breakdown, identifying labor, wire quantities, and other materials, QEC failed to provide such information to IFCM. Mr. Beckner testified that QEC did not refuse to return to the project, it simply requested a meeting to discuss the disputed items on the Bowden Report. Mr. Beckner testified that QEC had been off the project for approximately one month prior to receiving the Bowden Report, and he wanted a meeting and an opportunity to inspect in order to be sure that other trades had not damaged or interfered with QEC’s work. Bill Wimer, QEC’s foreman on the project, testified that he has been a foreman for QEC for two and a half years and has 29 years of experience as an electrician. Mr. Wimer has worked on this particular Air National Guard base on at least six previous occasions. Mr. Wimer had not installed foam fire suppression systems previously, but had previously installed other types of fire suppression systems. Mr. Wimer testified that Jim Simpson has provided guidance and direction for QEC on previous projects and has accepted QEC’s work upon its completion. Mr. Wimer testified that when QEC left the project it was 99% to 100% completed. Mr. Wimer testified with regard to the November 11, 2009 Bowden report. Mr. Wimer testified that there was insufficient space for the fire suppression panel, and that at a field meeting with Mr. Simpson and the project architect, it was determined to retain the panel’s placement. Mr. Wimer testified that the flow switches were part of a change order. Regarding the Monaco transmitter, Mr. Wimer testified that the necessary repairs were made. However, Mr. Wimer further testified that he does not know whether those repairs were accepted by IFCM or Simplex-Grinnell. Mr. Wimer testified that he discussed the proposed repair with Mr. Bowden and that he neither approved nor disapproved of the repair method. Regarding the fire pumps, Mr. Wimer testified that QEC wired the motors per plan and then re-wired them pursuant to an approved change order. Mr. Wimer testified that QEC installed approximately 300 wire nuts throughout the project prior to being informed by Bowden in November 2009, that such installation was unacceptable. Mr. Wimer testified about the December 21, 2009 Bowden Report. Mr. Wimer testified, with regard to the heat detectors, that he had a meeting with IFCM’s superintendent and Mr. Simpson, and that they agreed on the location of the heat detectors based upon the support at the installation location. Mr. Wimer testified that the spacing of the heat detectors was confirmed by IFCM. Mr. Wimer testified that certain items were passed on to Simplex-Grinnell for completion or correction. Mr. Wimer testified consistently with QEC’s January 8, 2010 response to the December 21, 2009 Bowden Report. Mr. Wimer testified that he was unaware whether the use of terminal blocks is code compliant, but that he was told by Mr. Simpson to use them. Mr. Wimer acknowledged that as foreman for the project, he was charged with the responsibility of ensuring that all work performed by QEC was code compliant. Mr. Wimer testified that QEC installed wire nuts because it is a common wiring method in the industry and he had done so in the past on the base and elsewhere. Mr. Wimer testified that he reviewed the specifications for the project and attempted to comply with those specifications. Mr. Wimer testified that if compliance could not be achieved he coordinated with IFCM’s superintendent and Mr. Simpson. However, Mr. Wimer acknowledged that he was unaware that the Air National Guard requires deviations from plans and specifications to be in writing. Mr. Wimer testified that he did not feel comfortable responding to the items in the December 21, 2009 Bowden Report to which QEC did not respond without a walk-through. Mr. Wimer acknowledged that QEC combined wiring into conduits when the wiring should have been in separate conduits. Mr. Wimer testified that QEC was always willing to perform repair work. The Administrative Law Judge finds, based upon the credible, probative, and substantial evidence of record, that portions of QEC’s work on the instant project were deficient, that QEC departed from plans and specifications for the project, and that QEC failed to correct the deficiencies without justification. CONCLUSIONS OF LAW In this proceeding, IFCM bears the burden to prove, by a preponderance of the evidence, that QEC is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(2), (A)(3), and/or (A)(13) as charged by the ROC in its Citation and Complaint. See Arizona Administrative Code R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that IFCM met its burden of proof as to three of the ROC’s four charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The evidence of record established that QEC abandoned its contract by refusing to perform corrective work to rectify the deficiencies and render its work code compliant as noted in the above Findings of Fact. Therefore, the Administrative Law Judge concludes that QEC violated A.R.S. § 32- 1154(A)(1). Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications.” The evidence of record established that QEC departed from plans, specifications, and building codes in a material respect, resulting in prejudice to IFCM and the owner of the project, without consent. QEC’s departure from plans, specifications, and codes resulted in IFCM incurring financial penalties, and the owner incurring the expense of hiring a replacement contractor to repair the deficiencies and render the project code compliant. Further, as to QEC’s assertions that it obtained consent for deviations from Mr. Simpson, the credible evidence of record established that Mr. Simpson was not the owner’s duly authorized representative, but rather the Contracting Officer was the owner’s duly authorized representative. Therefore, the Administrative Law Judge concludes that QEC violated A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged QEC with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the evidence of record, that QEC failed to perform portions of its work on this project in a professional and workmanlike manner as evidenced by the numerous deficiencies. Therefore, the Administrative Law Judge concludes that QEC violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include its contracting license numbers, preceded by the letters “ROC” on all documents utilized while engaged in construction-related activities. This requirement is applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. IFCM did not address this alleged violation. The proposal submitted by QEC contained QEC’s license number preceded by the letters “ROC”. The contract did not contain QEC’s license number preceded by the letters “ROC”. However, the contract was prepared by IFCM, not QEC. See Exhibits 1 and 2. In view of the foregoing, the Administrative Law Judge concludes that QEC did not violate A.R.S. § 32- 1154(A)(13). Based upon the above violations of the provisions of A.R.S. § 32- 1154(A), grounds exist to impose discipline against QEC’s license. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that QEC’s Class K-11 license should be suspended. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, QEC’s Class K-11 license (No. 193462) shall be suspended for a period of thirty (30) days.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification. Done this day, January 19, 2011.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The list is not all inclusive of the deficiencies contained in the Bowden Report.

-----------------------

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