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ROGER D. EATON
Jerk of the Circuit Court and County Comptroller
350 E. Marion Ave. Punta Gorda, FL 33950 + 941.505.4716
p. Es
TO: George E. Spofford, IV DATE: 1/22/2020
PO Box 3324
Tampa, FL 33601-3324
PLEASE BE ADVISED OF THE FOLLOWING:
$395.
Should you have any questions, please do not hesitate to contact this office at
(941) 637- 2319 or (941) 637-2279.
Sincerely,
ROGER D. EATO!
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Clerkof the Circuit Court » Clerk of Board of County Commissioners * Comptroller * Auditor and Recorder
www.CharlotteClerk.com
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Filing # 101985103 E-Filed 01/21/2020 04:21:43 PM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
A? GROUP, INC., a Florida Corporation, CASE NO.: 19-001310-CA
Plaintiff,
Vv.
CHARLOTTE COUNTY, FLORIDA,
a Florida Political Subdivision,
Defendant.
CHARLOTTE COUNTY, FLORIDA,
a Florida Political Subdivision,
Third-Party Plaintiff,
Vv.
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND, a Maryland Corporation,
Third-Party Defendant.
CHARLOTTE COUNTY, FLORIDA’S
ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT,
COUNTERCLAIM, AND THIRD-PARTY COMPLAINT
Defendant, Charlotte County, Florida. (the “County”) answers Plaintiffs, A? Group, Inc.
(“Plaintiff”’ or “A2”), Complaint as follows:
1 Admitted for jurisdictional purposes only.
2 Admitted.
3 Admitted.
4 Admitted for jurisdictional purposes only. Denied that A2 is entitled to the relief
sought through the Complaint.
5 Admitted.
6 The County is without sufficient knowledge to admit or deny the allegations
contained in paragraph 6.
7 Admitted. The Project Contract Documents also included plans provided by
others.
8 Admitted.
9 The County is unable to frame a response to paragraph 9 as this paragraph does
not specify whether the representation was express or implied by operation of law. In addition,
the plans and specifications expressly state that certain portions of the work are to be designed by
others as part of the contractor’s responsibilities.
10. Admitted that Wilder Architecture, Inc. (“Wilder”) submitted a permit application
for the Project on or about November 17, 2017. The plans submitted with the permit application
were marked “40% Plans Not For Construction.” Denied that the permit application included
“related specifications.” All remaining allegations in paragraph 10 are denied.
11. Admitted that Master Consulting Engineers, Inc. (“MCE”) included on each page
of the structural plans the statement: “To the best of our knowledge, information, and belief,
these structural plans conform to and satisfy the Florida Building Code, 2014 edition, ACI 318-
11 and local codes as applicable.” Denied that this statement is not included on Sheet $2.5.
Denied to the extent that paragraph 11 contains the implication that sheet S2.5 is the only
structural sheet containing notes requiring a delegated engineer. All remaining allegations in
paragraph 11 are denied.
12. Denied. The Bid Plans contained the required structural engineering. The
structural engineering for the baffle system was properly delegated to the supplier.
13. Admitted that on December 14, 2017, the Charlotte County Building Plans
Examiner rejected the permit application pending submission of additional information and
confirmation regarding the engineering delegated to the baffle system supplier. All remaining
allegations in paragraph 13 are denied.
14. Denied. Comment No. 7 of the 1st Plans Review Corrections List states, in its
entirety: “Action Target Widespan Baffles: Since this building is open, the baffles are exposed to
wind loads and the weather. The panels shall have either Florida Product Approval, Miami Date
[sic] NOA or engineered documents bearing original seal, signature, and date by a Florida
Registered Engineer certifying compliance with wind loads in accordance with FAC (Florida
Administrative Code) 9N-3.”
15. Denied.
16. The allegations within paragraph 16 are nonsensical and the County is unable to
frame a response. To the extent that paragraph 16 contains any cognizable allegations, such
allegations are denied.
17 Denied.
18 Denied.
19 Denied.
20. Denied.
21 Admitted that the Charlotte County Building officials’ correction comments were
provided to Action Target, Inc, ““ATI”). ATI was informed that engineering associated with the
wind uplift of the baffles was delegated to ATI. Otherwise, denied.
22. Denied.
23. Admitted that ATI provided the comments listed in paragraph 23 to the County,
along with several other comments. The County further states that ATI informed the County that
the delegated engineering would be the provided by ATI after ATI had obtained a contract from
the successful bidder and the cost for stamped and sealed engineered drawings would be
included in the ATI proposal. Any implication in paragraph 23 that ATI would not provide
stamped and sealed engineered drawings for the baffle system is denied. All remaining
allegations in paragraph 23 are denied.
24. Denied. The County is unable to frame a response to paragraph 24 because the
Plaintiff failed to identify “the ATI correspondence” to which the Plaintiff refers.
25. Denied.
26. Admitted that on December 20, 2017 Addendum #1 was issued; otherwise,
denied.
27. Denied. The Contract Documents clearly stated that the wide-span baffle system
and connections was a delegated design element.
28. Admitted.
29. Denied.
30. Defendant is without sufficient knowledge to admit or deny the allegations
contained in paragraph 30.
31. Denied. The County is unable to frame an appropriate response because A2 has
not defined or explained what is meant by use of the term “issued.”
32. Admitted.
33. Denied.
34, Admitted.
35. Denied. The bid documents notified the bidders that the design for wind uplift
was a delegated design.
36. Denied.
37. Admitted.
38. Admitted that the County did not specify a sole source for the wide-span baffle
system; otherwise, denied.
39. Admitted.
40. The County is without sufficient knowledge to admit or deny the allegations
contained in paragraph 40.
41. The County is without sufficient knowledge to admit or deny the allegations
contained in paragraph 41.
42. Denied. The County is unable to frame an appropriate response to paragraph 42
because Plaintiff has failed to provide any timeframe.
43. Admitted that, in an email dated March 22, 2018, Jeremy Hedbon with ATI
stated, “I am working with A2 Group on Charlotte CSO. He’s preparing a contract for me on the
baffles, acoustics and target system. I need a detailed drawing of the baffles that my engineers
can review so we can get the stamped and engineered drawings completed. Can you send me a
detail of the trusses?” The County further states that the drawings were provided to ATI upon
ATI’s representation that they were working with A2 Group, and ATI stated that it would take
2 to complete the
approximately “8 weeks once [ATI] receive[d] the contract from the contractor
engineered shop drawings.” All remaining allegations in paragraph 43 are denied.
44. Denied. The County is unable to frame a response to paragraph 44 because the
Plaintiff failed to identify “this email” to which the Plaintiff refers.
45. Denied. A2’s bid stated that A2 was going to use the ATI baffle system. A2’s
contract was to provide the ATI baffle system. A2 did not disclose its intent to use the Meggitt
Training Systems (“Meggitt”) baffle system until after the deadline for substitutions had expired.
Further, A2 entered into a subcontract with Meggitt without the County’s knowledge or
approval, contrary to the requirements of the Contract.
46. Admitted.
47. Denied.
48. Denied.
49. Denied. Wilder’s response to Comment No. 7 of the 1st Plans Review Corrections
List states, “The documents require fully engineered signed and sealed (delegated design
documents) to be provided to the design team for review and approval. A Delegated Design note
has been added to Sheet A0.0 dated 4/20/18.” Further, any implication in paragraph 49 that the
plans did not previously contain delegated design notes or that the Contract was a sole source
specification is denied.
50. Admitted that the Contract does not specify a sole source but that the Contract
does specify performance specifications that the baffle system must meet. All remaining
allegations in paragraph 50 are denied.
51. Denied.
52. Denied. On April 26, 2018 the County Building Department issued the permit
upon receipt of the answers to the County Building Department’s questions.
53. Denied.
54. Denied. The delegation of the uplift design engineering was noted in the bid
documents.
55 Denied. The Engineer of Record, MCE, properly delegated the design.
56 Denied. The issuance of ASI-01 on May 8, 2018 was not a change, material or
otherwise
57 Denied.
58 Denied.
59 Denied.
60. Admitted that the County Building Department approved the release of permit
under the impression that A2 was prepared to satisfy its delegated engineering responsibilities
and without knowledge of A2’s intent to utilize the Meggitt baffle system; otherwise, denied.
61. Denied.
62. Admitted that the County did not issue a Change Order or Construction Change
Directive because A2’s contract required use of the ATI baffle system or equal and A2 had never
submitted a timely or acceptable request to substitute the Meggitt system for the ATI system;
otherwise, denied.
63 Denied.
64 Denied.
65 Denied.
66 Denied.
67 Admitted that Change Order 1 did not identify ATI. All remaining allegations in
paragraph 67 are denied.
68. Denied.
69. Denied.
70. Denied. The County is unable to frame an appropriate response as to paragraph 70
because A2 has failed to identify “this submittal.”
TL. Denied.
72. Denied because the County is unable to frame a response as to paragraph 72 as
A2 has failed to specify the meaning or definition of the “MTS uplift design.”
73. Denied.
74. Denied. The County rejected A2’s demand for an additional $450,000.00 for work
that was already part of A2’s contractual responsibility.
75. Despite investigation, the County is without knowledge sufficient to admit or
deny the allegations in paragraph 75.
76. Despite investigation, the County is without knowledge sufficient to admit or
deny the allegations in paragraph 76.
77. Denied.
78. Denied. The County rejected A2’s demand for an additional $323,000.00 for work
that was already part of A2’s contractual responsibility.
79. Denied.
80. Denied. The Certificate of Occupancy issued on April 26, 2019 was solely for a
free-standing support building, not the firing range.
81. Admitted that on or about May 31, 2019 Fidelity and Deposit Company of
Maryland (“F&D”) provided the County with what A2 alleged was an uplift solution; otherwise,
denied.
82. Admitted.
83. Admitted. The County further states that there was no contract requirement for the
County to provide A2 with an additional explanation of A2’s breaches in correspondence
declaring default and terminating the Contract.
84. Denied.
85. Admitted that this may be what A2 maintains; otherwise, denied. The County did
not materially breach and is not in default.
86. Denied.
87. Admitted that F&D denied liability under the bond. Exhibit 4 speaks for itself and
all allegations inconsistent therewith are denied. Otherwise, all remaining allegations are denied.
88. Admitted that the interior baffle system provided by A2 has completely failed;
otherwise, denied.
89. Denied. The County is unable to frame an appropriate response to paragraph 89
because Plaintiff has failed to define “this warranty issue.”
90. Defendant is without sufficient knowledge to admit or deny the allegations
contained in paragraph 90.
91. Denied.
92. Admitted that an owner impliedly warrants the constructability of its design
specifications under the Spearin Doctrine; otherwise, denied. The Spearin Doctrine has no
application when the contractor, as here, fails to build in strict conformity with the owner’s
design. Moreover, the Spearin Doctrine has no application to performance specifications. The
warranty of constructability does not apply to the owner when the owner has delegated design
responsibility to the contractor’s supplier. All remaining allegations in paragraph 92 are denied.
93. Denied.
94. Denied.
95. Denied.
96. Paragraph 96 does not allege factual matters but, instead, states a legal conclusion
to which no response is required.
97. Denied.
98. Denied.
99. Denied. The County further moves to strike the allegations of paragraph 99 as a
premature affirmative defense.
100. Denied.
101. Denied.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
A2 may believe that the Contract Documents were deficient, but the contractor had the
duty to examine the bid package, including the permit and its history, and submit discrepancies,
omissions, or questions about the intent of the documents to the Purchasing Division prior to the
bid opening as required by IB-03 of the Contract so that the County had an opportunity to correct
the alleged deficiencies. A2’s failure to do so bars A2 from claiming that it was prejudiced by the
alleged deficiencies.
SECOND AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by alleged unforeseen site conditions, but pursuant
to IB 03.B of the Contract, the contractor had the duty to examine the site and all conditions
thereon, and A2’s failure to familiarize itself with the site conditions does not relieve the
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contractor from the necessity of furnishing materials or performing any work to complete in
accordance with the Contract Documents.
THIRD AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle
system and alleged unforeseen conditions, but any prejudice is the result of A2’s failure to
perform according to the Bidder’s submitted bid form as required by IB-13 of the Contract. A2’s
bid form expressly stated that A2 was going to install a baffle system conforming with the
specifications and would perform all site work in accordance with the Contract which A2 failed
to do.
FOURTH AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by an alleged sole source specification for the
baffle system, but any prejudice A2 incurred was the result of A2’s failure to provide a baffle
system that conformed to the specifications. The Contract makes it clear that it is not a sole
source specification and the reference to the ATI baffle system was to establish the level of
performance to be provided by the contractor. For example:
a. IB-13 expressly states that reference to any equipment, material, article or
patented process by trade name, make, or catalog number shall be regarded as
establishing a standard of quality and shall not be construed as limiting
competition.
GP-03.KK expressly states that in order to establish standards of quality, the
County may in the specifications refer to products by name and/or catalog
number. This procedure is not to be construed as eliminating from competition
1
other products of equal quality by other manufacturers where fully suitable in
design.
Technical specification 01-6000 defines “comparable product” to mean a product
that is demonstrated and approved through the submittal process, or where
indicated as a product substitution, to have the indicated qualities related to type,
function, dimension, in-service performance, physical properties, appearance, and
other characteristics that equal or exceed those of the specified product.
1.3.C-Basis of Design Specification states that where a specific manufacturer’s
product is named and accompanied by the words “basis of design,” it is for the
purpose of “evaluating comparable products of other named manufacturers.”
Technical Specification 01 6000 2.1.B.5 expressly states that A2 was to comply
with the provisions in the “Comparable Products” article to obtain approval for
use of an “unnamed product.” Subparagraph (a) also states “Substitutions may be
considered, unless otherwise indicated.”
Technical Specification 01 6000 2.2(A) states that the Architect will consider
requests for substitution if received within 30 days after notice of intent to award,
and requests after that time may be considered at the Architect’s discretion. A2
never made a timely request to substitute the Meggitt baffle system for the
specified system.
FIFTH AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by an alleged sole source specification for the
baffle system, but A2 is not entitled to any additional time or money as a result of any alleged
improper sole source specification. A2’s remedy for any alleged improper sole source
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specification was to pursue a timely bid protest so that the County would have an opportunity to
correct any alleged improper specification.
SIXTH AFFIRMATIVE DEFENSE
A2 may believe that the County failed to comply with Fla. Stat. § 287.057, the sole
source specification statute, but the County was not required to comply with the statute, as the
Contract expressly stated that the baffle specification was merely a basis of design specification,
the contractor was permitted to seek authorization of an appropriate substitute product, and the
identification of the ATI baffle system as the basis of design was merely to identify the level of
performance required by the County and not to restrict competition.
SEVENTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice was the result of A2’s failure to comply with IB-13 of the Contract
which expressly states that if the bidder wants to make substitution to the specifications, he/she
shall furnish to the County the name of the manufacturer, the model number, and other
identifying data and information necessary to aid the County in evaluating the substitution, and
such substitution shall be subject to County approval. A2 failed to make a timely or proper
substitution request and failed to obtain the County’s approval of the Meggitt baffle system.
EIGHTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice was the result of A2’s failure to comply with IB-13 of the Contract
which expressly states that all substitutions were subject to the owner’s approval and only if A2
established that the Meggitt system was equivalent to the specifications.
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NINTH AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice, including the County’s attorney’s fees, is the result of A2’s failure to
install a baffle system that met the specifications and failure to remove the nonconforming baffle
system as required by IB-14 of the Contract.
TENTH AFFIRMATIVE DEFENSE
A2 may believe that the Meggitt baffle system was expressly or constructively
authorized, but IB-14 of the Contract expressly states that if any product fails to meet the
Contract specifications, the supplier will remove the non-conforming work and be responsible
for all attorney fees incurred by the County. The Meggitt baffle system installed by A2 did not
meet the specifications and any prejudice A2 incurred was the result of A2’s installation and
failure to remove the non-conforming baffle system.
ELEVENTH AFFIRMATIVE DEFENSE
A2 may believe that the Meggitt baffle system was constructively authorized, but under
the doctrine of sovereign immunity, A2 may not hold the County liable for any alleged
constructive or oral authorization of the Meggitt baffle system. The doctrines of waiver and
estoppel may not be utilized by A2 to overcome the express terms of the written Contract.
TWELFTH AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice is the result of A2’s failure to install the ATI baffle system identified
in A2’s bid. A2 represented to the County that A2 was going to install the ATI baffle system and
the County relied to its detriment on A2’s representation. A2 is now barred from claiming that it
was prejudiced by the County’s rejection of the Meggitt baffle system.
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THIRTEENTH AFFIRMATIVE DEFENSE
A2 represented to the County that it was going to supply the ATI baffle system but
secretly switched to the Meggitt baffle system in order to save costs without informing the
County or complying with the contractual requirements for authorized substitutions. A2’s litany
of excuses for failing to provide the ATI system as it agreed to do in its Bid, e. g., the baffle
system was not subject to the Florida Building Code because the baffle system was furniture, that
A2 believed that the firing range was supposed to have a roof, and that A2 was unaware that
portions of the baffle system were to be engineered by the supplier, is evidence of A2’s bad faith
and inequitable conduct. A2 is barred from recovering additional compensation under the
doctrine of unclean hands.
FOURTEENTH AFFIRMATIVE DEFENSE
To the extent that A2 construes lost profits as compensatory damages, A2 has no right to
said damages because the Contract expressly authorizes the County to terminate the Contract
with or without cause.
FIFTEENTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s termination of the Contract but the
Contract expressly permitted termination because A2 failed or refused to complete on time.
SIXTEENTH AFFIRMATIVE DEFENSE
A2’s prior breaches in failing to comply with the Contract, including the Contract
substitution provisions, excused any alleged subsequent breach by the County.
SEVENTEENTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system and termination of A2’s contract, but A2 failed to do the work in accordance with the
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Contract and failed to follow the County’s instructions as required by GP-01 of the Contract
which justified the rejection of the Meggitt baffle system and termination of the Contract.
EIGHTEENTH AFFIRMATIVE DEFENSE
A2 is barred from recovering damages as a result of the County’s rejection of the Meggitt
baffle system because A2 subcontracted the work to Meggitt in violation of GP-02 of the
Contract which prohibited A2 from subcontracting work without the approval of the County.
Had A2 requested permission to subcontract to Meggitt, the County would have requested
information regarding Meggitt’s qualifications and the adequacy of the Meggitt baffle system.
A2 could have avoided the costs and damages A2 alleges it has incurred by complying with GP-
02.
NINETEENTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system, but the County decided the question of whether A2 had complied with the Contract in
good faith. GP-03.E of the Contract provided the County with the authority to make decisions
regarding the interpretation of the plans, construction, prosecution, and fulfillment of the
Contract and A2 voluntarily agreed to convey such decision-making authority to the County. The
County’s good faith exercise of the rights conveyed by the Contract cannot be deemed a breach.
TWENTIETH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s termination of the Contract, but
the County decided the question of whether the A2 had complied with the Contract in good faith.
GP-03.E of the Contract provided the County with the authority to stop and reject work that
failed to comply with the Contract and A2 voluntarily agreed to convey such decision-making
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authority to the County. The County’s good faith exercise of the rights conveyed by the Contract
cannot be deemed a breach.
TWENTY-FIRST AFFIRMATIVE DEFENSE
A2 may believe that its installation of the non-conforming Meggitt baffle system was
authorized because County representatives allegedly observed the Meggitt system being installed
and did not object, but even if the observers were aware that the system being installed was not
in compliance with the Contract, Contract provision GP03.F states that the presence of the
observer in no way lessens the responsibility of the contractor to comply with the Contract.
TWENTY-SECOND AFFIRMATIVE DEFENSE
A2 may believe that the County has wrongfully refused to pay Contract proceeds to A2,
but the Contract expressly authorizes the County to exercise the right of set off. The County has
incurred, and continues to incur, damages for which A2 is liable.
TWENTY-THIRD AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system and termination of the Contract, but any prejudice A2 incurred was the result of A2’s
failure to supervise, inspect, and direct the work as may be necessary to perform the work in
accordance with the Contract Documents and A2’s failure to see that the completed work
complies fully with the Contract Documents as required by GP-03.J of the Contract.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s failure to immediately stop the
installation of the non-conforming Meggitt baffle system, but GP-03.J of the Contract expressly
placed the responsibility of seeing that all work was done in compliance with the Contract on the
contractor, not the County.
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by alleged unforeseen site conditions and/or the
delegation of certain design elements, but pursuant to GP-03.K of the Contract, A2 agreed that it
had by careful examination satisfied itself as to the nature and location of the work. Any
prejudice that A2 incurred was the result of A2’s failure to comply with GP-03.K.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
A2 may believe that it obtained implied or constructive authorization to install the
Meggitt baffle system, but GP-03.K of the Contract expressly states that no verbal agreement or
conversation with any officer, agent, or employee of the County, either before or after execution
of the Contract, shall affect or modify the terms or obligations set forth in the written Contract.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by alleged unforeseen site conditions and/or the
delegation of certain design elements, but pursuant to GP-03.L of the Contract, A2 agreed that it
had by careful examination satisfied itself as to the nature and location of the work. Any
prejudice that A2 incurred was the result of A2’s failure to comply with GP-03.L.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
A2 may believe that it was authorized to install the non-conforming Meggitt baffle
system and/or that A2 is entitled to additional compensation and/or time due to the installation of
the Meggitt baffle system, and/or lead remediation work, but A2 waived any such rights by
failing to comply with the requirements of GP-03.N of the Contract regarding changes in the
work. Had A2 complied with the change order provisions, A2 would not have incurred the
damages it now seeks to recover from the County.
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TWENTY-NINTH AFFIRMATIVE DEFENSE
A2 may have incurred additional costs and may believe that A2 is entitled to damages,
but GP-03.0 of the Contract expressly authorizes the County to deduct from any monies owed to
A2 the cost of correction of nonconforming work. The County is entitled contractually and under
Florida common law to set off costs the County incurs in remedying A2’s nonconforming work
against any damages A2 alleges it incurred and/or against any Contract proceeds.
THIRTIETH AFFIRMATIVE DEFENSE
A2 may believe that it was justified in installing the non-conforming Meggitt system
because of the long lead time for the ATI system, but if the ATI system actually had an
excessively long lead time, then A2’s remedy was to request and obtain a time extension.
Contract provision GP-03.P expressly states that if the work is delayed for any reason beyond
A2’s control, then a time extension shall be granted. A2 never requested a time extension. Any
damages A2 incurred as a result of installing the non-conforming Meggitt baffle system are the
result of A2’s failure to avail itself of available contract remedies.
THIRTY-FIRST AFFIRMATIVE DEFENSE
A2 may believe that it had no choice but to install the non-conforming Meggitt baffle
system because the ATI system had an excessively long lead time, but even if the work could not
be completed within the specified Contract Time, A2 had the right to a time extension. A2 failed
to comply with the time extension provisions of GP-03.P of the Contract by failing to present a
timely request for additional time. Pursuant to GP-03.P, A2 waived any right to additional time
or money due to delay for all delays of more than 7 calendar days before a time extension claim,
if any, was made. Thus, by choosing not to comply with the Contract Time extension provisions,
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A2 waived any right to additional time and any damages allegedly resulting from A2’s inability
to complete the work as specified within the Contract Time.
THIRTY-SECOND AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system and/or the termination of the Contract, but the County decided the question of whether
A2 had complied with the Contract in good faith. GP-03.Q of the Contract provided the County
with the authority to inspect the work and to be the final judge regarding the suitability of the
work. A2 voluntarily agreed to convey such decision-making authority to the County. The
County’s good faith exercise of the rights conveyed by the contract cannot be deemed a breach.
THIRTY-THIRD AFFIRMATIVE DEFENSE
A2 may believe that the County’s refusal to pay A2 for work performed was wrongful,
but GP-03.Q of the Contract expressly states that all non-conforming work by A2 shall be
replaced at A2’s cost. The Meggitt baffle system does not conform to the specifications and the
County is contractually authorized to withhold Contract funds to compensate the County for the
non-conforming work.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
A2 may believe that the County’s refusal to pay A2 for work performed was wrongful,
but GP-03.Q of the Contract expressly states that if the County elects to accept non-conforming
work, the Contract price will be equitably adjusted. The Meggitt baffle system does not conform
to the specifications and if the County elects to accept the work, the County is contractually
authorized to withhold Contract funds and/or demand a refund of amounts paid as part of the
authorized equitable adjustment to the Contract price.
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THIRTY-FIFTH AFFIRMATIVE DEFENSE
A2 may have incurred additional costs and may believe that A2 is entitled to damages,
but GP-03.U of the Contract expressly authorizes the County to withhold payment for
nonconforming work.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice is the result of A2’s failure to list Meggitt as a subcontractor as
required by GP-03.Z of the Contract which expressly states that the contractor shall provide a list
of subcontractors with its Bid for approval and that substitutions must be submitted in writing
and shall be subject to approval by the County.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
A2 may believe that the Contract was in violation of Fla. Stat. § 287.057, the sole source
specification statute, but if so, then the Contract entered into by A2 is void. If the A2 contract is
void, then A2 has no remedy against the County for breach of contract and all payments to A2
are subject to disgorgement.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
A2 may believe that the County’s rejection of the Meggitt baffle system was improper,
but A2 never properly sought approval of the Meggitt baffle system through the submittal
process or demonstrated that the indicated qualities related to type, function, dimension, in-
service performance, physical properties, appearance, and other characteristics of the Meggitt
baffle system were equal to or exceeded those of the specified product as required by Technical
Specification 01-6000.1.3.3.
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THIRTY-NINTH AFFIRMATIVE DEFENSE
Pursuant to GP-03.KK of the Contract, A2 was required to furnish a complete list of
proposed desired substitutions prior to the signing of the Contract together with such engineering
and catalog data as the County may require. A2 listed AT] as its sole subcontractor in its Bid and
the County relied to its detriment on that representation. A2 also failed to provide such
engineering data required by the County for the baffle system.
FORTIETH AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice is the result of A2’s failure to furnish to the County a complete list of
proposed desired substitutions prior to the signing of the Contract together with such engineering
and catalog data as the County may require as required by GP-03.KK of the Contract. A2 listed
ATI as its sole subcontractor in its Bid and the County relied to its detriment on that
representation. A2 also failed to provide such engineering data required by the County for the
baffle system.
FORTY-FIRST AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system and/or the termination of the Contract, but the County decided the question of whether
A2 had complied with the Contract in good faith. GP-03.KK of the Contract expressly states that
the contractor shall abide by County’s judgment when proposed substitutions are judged
unacceptable and shall furnish the specified item of equipment in such case. A2 voluntarily
agreed to convey such decision-making authority to the County. The County’s good faith
exercise of the rights conveyed by the Contract cannot be deemed a breach. Any damages
incurred by A2 are attributable to A2’s failure to comply with the Contract.
22
FORTY-SECOND AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice is the result of A2’s failure to submit a proper and timely request for
substitution as required by Contract provision GP-03.KK.
FORTY-THIRD AFFIRMATIVE DEFENSE
A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle
system, but any prejudice is the result of A2’s failure to comply with GP-03.KK of the Contract
which required A2 to comply with all federal, state, and local laws and ordinances that affect the
Contract in any way. The Meggitt baffle system installed by A2 did not comply with the Florida
Building Code.
FORTY-FOURTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by alleged unforeseen site conditions, but if A2
encountered site conditions that caused A2 to incur additional costs, said costs are not
attributable to the County as the Contract expressly states that the contractor had full
responsibility with respect to subsurface conditions and that if the contractor elects not to make
subsurface investigation prior to bidding, it shall not be entitled to any extra time or money due
to any conditions encountered.
FORTY-FIFTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by alleged unforeseen site conditions, but if A2
encountered site conditions that caused A2 to incur additional costs, the right to recover
additional compensation for said costs was waived by A2’s failure to comply with Contract
provision GP-03.PP which required A2 to provide the County with a written report of any
23
differing conditions or inaccurate technical data, and which states that any work done after such
discovery will be done at the contractor’s risk.
FORTY-SIXTH AFFIRMATIVE DEFENSE
A2 is not entitled to any additional compensation due to any alleged differing site
condition, changed condition, or otherwise unforeseen condition because the Contract allocated
all risk of unforeseen conditions to A2 and A2 accepted that allocation when A2 executed the
Contract.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
A2 may believe that it is entitled to be paid for the work it performed, but GP-03.RR of
the Contract states that A2 shall be liable for liquidated damages at the specified daily rate for all
days the work remains incomplete after 270 days from the date of commencement. A2’s work is
not complete and more than 270 days have passed since A2 commenced work. As a result, the
County is entitled to withhold any Contract proceeds necessary to pay the liquidated damages
incurred.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County agent’s efforts to obtain the building
permit for the firing range, but any such prejudice was the result of A2’s failure to obtain the
building permit as required by Contract provision SP-13. Had A2 examined the building permit
as required by the Contract, A2 would have been fully aware of all conditions attendant with the
permitting, design, and construction of the Project.
FORTY-NINTH AFFIRMATIVE DEFENSE
A2 alleges that it was misled by the Contract Documents and A2’s obligation to provide
the engineering for the baffle system because the Contract Documents did not clearly identify
24
that the range structure was an open air facility, did not clearly state it was subject to Florida
Building Code wind load requirements, and failed to more clearly state that the engineering was
delegated to A2. Had A2 secured the building permit as required by the Contract, A2 would have
been apprised of the fact that the range was an open air facility subject to the Florida Building
Code wind load requirements and that the baffle engineering was a delegated design.
FIFTIETH AFFIRMATIVE DEFENSE
A2 may believe that it was justified in installing the Meggitt baffle system because the
ATI baffle system allegedly had an excessively long lead time, but if A2 was truly unable to
complete the work in the allotted 270 days due to the long lead time required to obtain the ATI
system, A2 created the time constraint by agreeing to commence the running of time on April 2,
2018, and waived any claim for additional time or damages by agreeing at the preconstruction
conference that the work and Contract Time would commence on April 2, 2018 and be complete
within 270 calendar days. Because A2 failed to request an extension of time pursuant to the
Contract, A2 waived any right to additional time and any damages allegedly resulting from A2’s
inability to complete the work as specified within the Contract Time.
FIFTY-FIRST AFFIRMATIVE DEFENSE
A2 may believe that it is entitled to additional compensation and the Contract proceeds
being held by the County, but pursuant to the bid form, to the extent County, its officers, agents,
employees, and volunteers incur liabilities, damages, losses, or costs, including, but not limited
to, reasonable attorney’s fees caused by the negligence, recklessness, or intentional wrongful
misconduct of the contractor in the performance of this Contract, A2 is responsible for said
liabilities, damages, losses, attorney’s fees and costs.
25
FIFTY-SECOND AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system and/or any decision to retrofit the Meggitt baffle system in an effort to make it functional,
but Section 01-2200.1.6 of the Contract provided the County with the authority to inspect the
work and to be the final judge regarding the suitability of the work and how best to remedy non-
conforming work. To the extent it is determined that A2’s nonconforming work is to remain, the
County is entitled under the Contract to repair the work and adjust the Contract Price
accordingly. A2 voluntarily agreed to convey such decision-making authority to the County. The
County’s good faith exercise of the rights conveyed by the Contract cannot be deemed a breach.
FIFTY-THIRD AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle
system and/or the termination of the Contract, but Section 01-2200.1.6.E of the Contract
expressly allocated authority to Wilder to make the final determination regarding whether A2’s
work was in conformity with the Contract and to identify what adjustments should be made to
the Contract amount as a result of the nonconforming work. A2 voluntarily agreed to allow
Wilder to serve as the final decision maker regarding the acceptability of A2’s work. A2’s work
has been deemed unacceptable by Wilder and A2 cannot now revoke its consent to allow Wilder
to serve as the final decision maker.
FIFTY-FOURTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by alleged latent or unforeseen conditions that
required a modification to the Contract, but pursuant to Section 01-2500.K.1.5.B of the Contract,
A2 was required to comply with Division I Section “Product Requirements” if the proposed
change requires a substitution. A2 was required to propose the changes by submitting a request
26
for a change order and to include the reasons for the requested change and provide all time and
money impacts. A2 waived any right to additional compensation by failing to comply with this
provision.
FIFTY-FIFTH AFFIRMATIVE DEFENSE
A2 may believe that it was entitled to a change order and/or to additional time and/or
money, but pursuant to Section 01-2500.K.1.6 of the Contract, A2 was required to obtain the
County’s approval and a change order from the Architect. A2 waived any right to additional time
and/or money by failing to comply with this provision.
FIFTY-SIXTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by alleged unforeseen site conditions, but pursuant
to Technical Specification 01-3200.1.4 of the Contract, the contractor had the duty to submit 2
copies of a Field Condition Report at time of discovery of the unforeseen condition. A2’s failure
to comply with this provision bars any claim for additional compensation due to unforeseen
conditions.
FIFTY-SEVENTH AFFIRMATIVE DEFENSE
A2 may believe that it was prejudiced by the County’s failure to reject the Meggitt baffle
system at an earlier date, but A2 failed to follow submittal requirements set forth in Technical
Specification 01-3200.2.1.A which would have revealed the unauthorized substitution and the
fact that additional time allegedly was needed for the ATI system. This information would have
enabled the County to prevent the unauthorized installation of the Meggitt baffle system.
Compliance
Preview
ROGER D. EATON Jerk of the Circuit Court and County Comptroller 350 E. Marion Ave. Punta Gorda, FL 33950 + 941.505.4716 p. Es TO: George E. Spofford, IV DATE: 1/22/2020 PO Box 3324 Tampa, FL 33601-3324 PLEASE BE ADVISED OF THE FOLLOWING: $395. Should you have any questions, please do not hesitate to contact this office at (941) 637- 2319 or (941) 637-2279. Sincerely, ROGER D. EATO! CLER! THE ¢ SS WY A: (oO EE Clerk eo Sy RD. “Sram Clerkof the Circuit Court » Clerk of Board of County Commissioners * Comptroller * Auditor and Recorder www.CharlotteClerk.com mse: Filing # 101985103 E-Filed 01/21/2020 04:21:43 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION A? GROUP, INC., a Florida Corporation, CASE NO.: 19-001310-CA Plaintiff, Vv. CHARLOTTE COUNTY, FLORIDA, a Florida Political Subdivision, Defendant. CHARLOTTE COUNTY, FLORIDA, a Florida Political Subdivision, Third-Party Plaintiff, Vv. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, Third-Party Defendant. CHARLOTTE COUNTY, FLORIDA’S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT, COUNTERCLAIM, AND THIRD-PARTY COMPLAINT Defendant, Charlotte County, Florida. (the “County”) answers Plaintiffs, A? Group, Inc. (“Plaintiff”’ or “A2”), Complaint as follows: 1 Admitted for jurisdictional purposes only. 2 Admitted. 3 Admitted. 4 Admitted for jurisdictional purposes only. Denied that A2 is entitled to the relief sought through the Complaint. 5 Admitted. 6 The County is without sufficient knowledge to admit or deny the allegations contained in paragraph 6. 7 Admitted. The Project Contract Documents also included plans provided by others. 8 Admitted. 9 The County is unable to frame a response to paragraph 9 as this paragraph does not specify whether the representation was express or implied by operation of law. In addition, the plans and specifications expressly state that certain portions of the work are to be designed by others as part of the contractor’s responsibilities. 10. Admitted that Wilder Architecture, Inc. (“Wilder”) submitted a permit application for the Project on or about November 17, 2017. The plans submitted with the permit application were marked “40% Plans Not For Construction.” Denied that the permit application included “related specifications.” All remaining allegations in paragraph 10 are denied. 11. Admitted that Master Consulting Engineers, Inc. (“MCE”) included on each page of the structural plans the statement: “To the best of our knowledge, information, and belief, these structural plans conform to and satisfy the Florida Building Code, 2014 edition, ACI 318- 11 and local codes as applicable.” Denied that this statement is not included on Sheet $2.5. Denied to the extent that paragraph 11 contains the implication that sheet S2.5 is the only structural sheet containing notes requiring a delegated engineer. All remaining allegations in paragraph 11 are denied. 12. Denied. The Bid Plans contained the required structural engineering. The structural engineering for the baffle system was properly delegated to the supplier. 13. Admitted that on December 14, 2017, the Charlotte County Building Plans Examiner rejected the permit application pending submission of additional information and confirmation regarding the engineering delegated to the baffle system supplier. All remaining allegations in paragraph 13 are denied. 14. Denied. Comment No. 7 of the 1st Plans Review Corrections List states, in its entirety: “Action Target Widespan Baffles: Since this building is open, the baffles are exposed to wind loads and the weather. The panels shall have either Florida Product Approval, Miami Date [sic] NOA or engineered documents bearing original seal, signature, and date by a Florida Registered Engineer certifying compliance with wind loads in accordance with FAC (Florida Administrative Code) 9N-3.” 15. Denied. 16. The allegations within paragraph 16 are nonsensical and the County is unable to frame a response. To the extent that paragraph 16 contains any cognizable allegations, such allegations are denied. 17 Denied. 18 Denied. 19 Denied. 20. Denied. 21 Admitted that the Charlotte County Building officials’ correction comments were provided to Action Target, Inc, ““ATI”). ATI was informed that engineering associated with the wind uplift of the baffles was delegated to ATI. Otherwise, denied. 22. Denied. 23. Admitted that ATI provided the comments listed in paragraph 23 to the County, along with several other comments. The County further states that ATI informed the County that the delegated engineering would be the provided by ATI after ATI had obtained a contract from the successful bidder and the cost for stamped and sealed engineered drawings would be included in the ATI proposal. Any implication in paragraph 23 that ATI would not provide stamped and sealed engineered drawings for the baffle system is denied. All remaining allegations in paragraph 23 are denied. 24. Denied. The County is unable to frame a response to paragraph 24 because the Plaintiff failed to identify “the ATI correspondence” to which the Plaintiff refers. 25. Denied. 26. Admitted that on December 20, 2017 Addendum #1 was issued; otherwise, denied. 27. Denied. The Contract Documents clearly stated that the wide-span baffle system and connections was a delegated design element. 28. Admitted. 29. Denied. 30. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 30. 31. Denied. The County is unable to frame an appropriate response because A2 has not defined or explained what is meant by use of the term “issued.” 32. Admitted. 33. Denied. 34, Admitted. 35. Denied. The bid documents notified the bidders that the design for wind uplift was a delegated design. 36. Denied. 37. Admitted. 38. Admitted that the County did not specify a sole source for the wide-span baffle system; otherwise, denied. 39. Admitted. 40. The County is without sufficient knowledge to admit or deny the allegations contained in paragraph 40. 41. The County is without sufficient knowledge to admit or deny the allegations contained in paragraph 41. 42. Denied. The County is unable to frame an appropriate response to paragraph 42 because Plaintiff has failed to provide any timeframe. 43. Admitted that, in an email dated March 22, 2018, Jeremy Hedbon with ATI stated, “I am working with A2 Group on Charlotte CSO. He’s preparing a contract for me on the baffles, acoustics and target system. I need a detailed drawing of the baffles that my engineers can review so we can get the stamped and engineered drawings completed. Can you send me a detail of the trusses?” The County further states that the drawings were provided to ATI upon ATI’s representation that they were working with A2 Group, and ATI stated that it would take 2 to complete the approximately “8 weeks once [ATI] receive[d] the contract from the contractor engineered shop drawings.” All remaining allegations in paragraph 43 are denied. 44. Denied. The County is unable to frame a response to paragraph 44 because the Plaintiff failed to identify “this email” to which the Plaintiff refers. 45. Denied. A2’s bid stated that A2 was going to use the ATI baffle system. A2’s contract was to provide the ATI baffle system. A2 did not disclose its intent to use the Meggitt Training Systems (“Meggitt”) baffle system until after the deadline for substitutions had expired. Further, A2 entered into a subcontract with Meggitt without the County’s knowledge or approval, contrary to the requirements of the Contract. 46. Admitted. 47. Denied. 48. Denied. 49. Denied. Wilder’s response to Comment No. 7 of the 1st Plans Review Corrections List states, “The documents require fully engineered signed and sealed (delegated design documents) to be provided to the design team for review and approval. A Delegated Design note has been added to Sheet A0.0 dated 4/20/18.” Further, any implication in paragraph 49 that the plans did not previously contain delegated design notes or that the Contract was a sole source specification is denied. 50. Admitted that the Contract does not specify a sole source but that the Contract does specify performance specifications that the baffle system must meet. All remaining allegations in paragraph 50 are denied. 51. Denied. 52. Denied. On April 26, 2018 the County Building Department issued the permit upon receipt of the answers to the County Building Department’s questions. 53. Denied. 54. Denied. The delegation of the uplift design engineering was noted in the bid documents. 55 Denied. The Engineer of Record, MCE, properly delegated the design. 56 Denied. The issuance of ASI-01 on May 8, 2018 was not a change, material or otherwise 57 Denied. 58 Denied. 59 Denied. 60. Admitted that the County Building Department approved the release of permit under the impression that A2 was prepared to satisfy its delegated engineering responsibilities and without knowledge of A2’s intent to utilize the Meggitt baffle system; otherwise, denied. 61. Denied. 62. Admitted that the County did not issue a Change Order or Construction Change Directive because A2’s contract required use of the ATI baffle system or equal and A2 had never submitted a timely or acceptable request to substitute the Meggitt system for the ATI system; otherwise, denied. 63 Denied. 64 Denied. 65 Denied. 66 Denied. 67 Admitted that Change Order 1 did not identify ATI. All remaining allegations in paragraph 67 are denied. 68. Denied. 69. Denied. 70. Denied. The County is unable to frame an appropriate response as to paragraph 70 because A2 has failed to identify “this submittal.” TL. Denied. 72. Denied because the County is unable to frame a response as to paragraph 72 as A2 has failed to specify the meaning or definition of the “MTS uplift design.” 73. Denied. 74. Denied. The County rejected A2’s demand for an additional $450,000.00 for work that was already part of A2’s contractual responsibility. 75. Despite investigation, the County is without knowledge sufficient to admit or deny the allegations in paragraph 75. 76. Despite investigation, the County is without knowledge sufficient to admit or deny the allegations in paragraph 76. 77. Denied. 78. Denied. The County rejected A2’s demand for an additional $323,000.00 for work that was already part of A2’s contractual responsibility. 79. Denied. 80. Denied. The Certificate of Occupancy issued on April 26, 2019 was solely for a free-standing support building, not the firing range. 81. Admitted that on or about May 31, 2019 Fidelity and Deposit Company of Maryland (“F&D”) provided the County with what A2 alleged was an uplift solution; otherwise, denied. 82. Admitted. 83. Admitted. The County further states that there was no contract requirement for the County to provide A2 with an additional explanation of A2’s breaches in correspondence declaring default and terminating the Contract. 84. Denied. 85. Admitted that this may be what A2 maintains; otherwise, denied. The County did not materially breach and is not in default. 86. Denied. 87. Admitted that F&D denied liability under the bond. Exhibit 4 speaks for itself and all allegations inconsistent therewith are denied. Otherwise, all remaining allegations are denied. 88. Admitted that the interior baffle system provided by A2 has completely failed; otherwise, denied. 89. Denied. The County is unable to frame an appropriate response to paragraph 89 because Plaintiff has failed to define “this warranty issue.” 90. Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 90. 91. Denied. 92. Admitted that an owner impliedly warrants the constructability of its design specifications under the Spearin Doctrine; otherwise, denied. The Spearin Doctrine has no application when the contractor, as here, fails to build in strict conformity with the owner’s design. Moreover, the Spearin Doctrine has no application to performance specifications. The warranty of constructability does not apply to the owner when the owner has delegated design responsibility to the contractor’s supplier. All remaining allegations in paragraph 92 are denied. 93. Denied. 94. Denied. 95. Denied. 96. Paragraph 96 does not allege factual matters but, instead, states a legal conclusion to which no response is required. 97. Denied. 98. Denied. 99. Denied. The County further moves to strike the allegations of paragraph 99 as a premature affirmative defense. 100. Denied. 101. Denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE A2 may believe that the Contract Documents were deficient, but the contractor had the duty to examine the bid package, including the permit and its history, and submit discrepancies, omissions, or questions about the intent of the documents to the Purchasing Division prior to the bid opening as required by IB-03 of the Contract so that the County had an opportunity to correct the alleged deficiencies. A2’s failure to do so bars A2 from claiming that it was prejudiced by the alleged deficiencies. SECOND AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by alleged unforeseen site conditions, but pursuant to IB 03.B of the Contract, the contractor had the duty to examine the site and all conditions thereon, and A2’s failure to familiarize itself with the site conditions does not relieve the 10 contractor from the necessity of furnishing materials or performing any work to complete in accordance with the Contract Documents. THIRD AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle system and alleged unforeseen conditions, but any prejudice is the result of A2’s failure to perform according to the Bidder’s submitted bid form as required by IB-13 of the Contract. A2’s bid form expressly stated that A2 was going to install a baffle system conforming with the specifications and would perform all site work in accordance with the Contract which A2 failed to do. FOURTH AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by an alleged sole source specification for the baffle system, but any prejudice A2 incurred was the result of A2’s failure to provide a baffle system that conformed to the specifications. The Contract makes it clear that it is not a sole source specification and the reference to the ATI baffle system was to establish the level of performance to be provided by the contractor. For example: a. IB-13 expressly states that reference to any equipment, material, article or patented process by trade name, make, or catalog number shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. GP-03.KK expressly states that in order to establish standards of quality, the County may in the specifications refer to products by name and/or catalog number. This procedure is not to be construed as eliminating from competition 1 other products of equal quality by other manufacturers where fully suitable in design. Technical specification 01-6000 defines “comparable product” to mean a product that is demonstrated and approved through the submittal process, or where indicated as a product substitution, to have the indicated qualities related to type, function, dimension, in-service performance, physical properties, appearance, and other characteristics that equal or exceed those of the specified product. 1.3.C-Basis of Design Specification states that where a specific manufacturer’s product is named and accompanied by the words “basis of design,” it is for the purpose of “evaluating comparable products of other named manufacturers.” Technical Specification 01 6000 2.1.B.5 expressly states that A2 was to comply with the provisions in the “Comparable Products” article to obtain approval for use of an “unnamed product.” Subparagraph (a) also states “Substitutions may be considered, unless otherwise indicated.” Technical Specification 01 6000 2.2(A) states that the Architect will consider requests for substitution if received within 30 days after notice of intent to award, and requests after that time may be considered at the Architect’s discretion. A2 never made a timely request to substitute the Meggitt baffle system for the specified system. FIFTH AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by an alleged sole source specification for the baffle system, but A2 is not entitled to any additional time or money as a result of any alleged improper sole source specification. A2’s remedy for any alleged improper sole source 12 specification was to pursue a timely bid protest so that the County would have an opportunity to correct any alleged improper specification. SIXTH AFFIRMATIVE DEFENSE A2 may believe that the County failed to comply with Fla. Stat. § 287.057, the sole source specification statute, but the County was not required to comply with the statute, as the Contract expressly stated that the baffle specification was merely a basis of design specification, the contractor was permitted to seek authorization of an appropriate substitute product, and the identification of the ATI baffle system as the basis of design was merely to identify the level of performance required by the County and not to restrict competition. SEVENTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice was the result of A2’s failure to comply with IB-13 of the Contract which expressly states that if the bidder wants to make substitution to the specifications, he/she shall furnish to the County the name of the manufacturer, the model number, and other identifying data and information necessary to aid the County in evaluating the substitution, and such substitution shall be subject to County approval. A2 failed to make a timely or proper substitution request and failed to obtain the County’s approval of the Meggitt baffle system. EIGHTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice was the result of A2’s failure to comply with IB-13 of the Contract which expressly states that all substitutions were subject to the owner’s approval and only if A2 established that the Meggitt system was equivalent to the specifications. 13 NINTH AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice, including the County’s attorney’s fees, is the result of A2’s failure to install a baffle system that met the specifications and failure to remove the nonconforming baffle system as required by IB-14 of the Contract. TENTH AFFIRMATIVE DEFENSE A2 may believe that the Meggitt baffle system was expressly or constructively authorized, but IB-14 of the Contract expressly states that if any product fails to meet the Contract specifications, the supplier will remove the non-conforming work and be responsible for all attorney fees incurred by the County. The Meggitt baffle system installed by A2 did not meet the specifications and any prejudice A2 incurred was the result of A2’s installation and failure to remove the non-conforming baffle system. ELEVENTH AFFIRMATIVE DEFENSE A2 may believe that the Meggitt baffle system was constructively authorized, but under the doctrine of sovereign immunity, A2 may not hold the County liable for any alleged constructive or oral authorization of the Meggitt baffle system. The doctrines of waiver and estoppel may not be utilized by A2 to overcome the express terms of the written Contract. TWELFTH AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice is the result of A2’s failure to install the ATI baffle system identified in A2’s bid. A2 represented to the County that A2 was going to install the ATI baffle system and the County relied to its detriment on A2’s representation. A2 is now barred from claiming that it was prejudiced by the County’s rejection of the Meggitt baffle system. 14 THIRTEENTH AFFIRMATIVE DEFENSE A2 represented to the County that it was going to supply the ATI baffle system but secretly switched to the Meggitt baffle system in order to save costs without informing the County or complying with the contractual requirements for authorized substitutions. A2’s litany of excuses for failing to provide the ATI system as it agreed to do in its Bid, e. g., the baffle system was not subject to the Florida Building Code because the baffle system was furniture, that A2 believed that the firing range was supposed to have a roof, and that A2 was unaware that portions of the baffle system were to be engineered by the supplier, is evidence of A2’s bad faith and inequitable conduct. A2 is barred from recovering additional compensation under the doctrine of unclean hands. FOURTEENTH AFFIRMATIVE DEFENSE To the extent that A2 construes lost profits as compensatory damages, A2 has no right to said damages because the Contract expressly authorizes the County to terminate the Contract with or without cause. FIFTEENTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s termination of the Contract but the Contract expressly permitted termination because A2 failed or refused to complete on time. SIXTEENTH AFFIRMATIVE DEFENSE A2’s prior breaches in failing to comply with the Contract, including the Contract substitution provisions, excused any alleged subsequent breach by the County. SEVENTEENTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system and termination of A2’s contract, but A2 failed to do the work in accordance with the 15 Contract and failed to follow the County’s instructions as required by GP-01 of the Contract which justified the rejection of the Meggitt baffle system and termination of the Contract. EIGHTEENTH AFFIRMATIVE DEFENSE A2 is barred from recovering damages as a result of the County’s rejection of the Meggitt baffle system because A2 subcontracted the work to Meggitt in violation of GP-02 of the Contract which prohibited A2 from subcontracting work without the approval of the County. Had A2 requested permission to subcontract to Meggitt, the County would have requested information regarding Meggitt’s qualifications and the adequacy of the Meggitt baffle system. A2 could have avoided the costs and damages A2 alleges it has incurred by complying with GP- 02. NINETEENTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system, but the County decided the question of whether A2 had complied with the Contract in good faith. GP-03.E of the Contract provided the County with the authority to make decisions regarding the interpretation of the plans, construction, prosecution, and fulfillment of the Contract and A2 voluntarily agreed to convey such decision-making authority to the County. The County’s good faith exercise of the rights conveyed by the Contract cannot be deemed a breach. TWENTIETH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s termination of the Contract, but the County decided the question of whether the A2 had complied with the Contract in good faith. GP-03.E of the Contract provided the County with the authority to stop and reject work that failed to comply with the Contract and A2 voluntarily agreed to convey such decision-making 16 authority to the County. The County’s good faith exercise of the rights conveyed by the Contract cannot be deemed a breach. TWENTY-FIRST AFFIRMATIVE DEFENSE A2 may believe that its installation of the non-conforming Meggitt baffle system was authorized because County representatives allegedly observed the Meggitt system being installed and did not object, but even if the observers were aware that the system being installed was not in compliance with the Contract, Contract provision GP03.F states that the presence of the observer in no way lessens the responsibility of the contractor to comply with the Contract. TWENTY-SECOND AFFIRMATIVE DEFENSE A2 may believe that the County has wrongfully refused to pay Contract proceeds to A2, but the Contract expressly authorizes the County to exercise the right of set off. The County has incurred, and continues to incur, damages for which A2 is liable. TWENTY-THIRD AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system and termination of the Contract, but any prejudice A2 incurred was the result of A2’s failure to supervise, inspect, and direct the work as may be necessary to perform the work in accordance with the Contract Documents and A2’s failure to see that the completed work complies fully with the Contract Documents as required by GP-03.J of the Contract. TWENTY-FOURTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s failure to immediately stop the installation of the non-conforming Meggitt baffle system, but GP-03.J of the Contract expressly placed the responsibility of seeing that all work was done in compliance with the Contract on the contractor, not the County. 17 TWENTY-FIFTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by alleged unforeseen site conditions and/or the delegation of certain design elements, but pursuant to GP-03.K of the Contract, A2 agreed that it had by careful examination satisfied itself as to the nature and location of the work. Any prejudice that A2 incurred was the result of A2’s failure to comply with GP-03.K. TWENTY-SIXTH AFFIRMATIVE DEFENSE A2 may believe that it obtained implied or constructive authorization to install the Meggitt baffle system, but GP-03.K of the Contract expressly states that no verbal agreement or conversation with any officer, agent, or employee of the County, either before or after execution of the Contract, shall affect or modify the terms or obligations set forth in the written Contract. TWENTY-SEVENTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by alleged unforeseen site conditions and/or the delegation of certain design elements, but pursuant to GP-03.L of the Contract, A2 agreed that it had by careful examination satisfied itself as to the nature and location of the work. Any prejudice that A2 incurred was the result of A2’s failure to comply with GP-03.L. TWENTY-EIGHTH AFFIRMATIVE DEFENSE A2 may believe that it was authorized to install the non-conforming Meggitt baffle system and/or that A2 is entitled to additional compensation and/or time due to the installation of the Meggitt baffle system, and/or lead remediation work, but A2 waived any such rights by failing to comply with the requirements of GP-03.N of the Contract regarding changes in the work. Had A2 complied with the change order provisions, A2 would not have incurred the damages it now seeks to recover from the County. 18 TWENTY-NINTH AFFIRMATIVE DEFENSE A2 may have incurred additional costs and may believe that A2 is entitled to damages, but GP-03.0 of the Contract expressly authorizes the County to deduct from any monies owed to A2 the cost of correction of nonconforming work. The County is entitled contractually and under Florida common law to set off costs the County incurs in remedying A2’s nonconforming work against any damages A2 alleges it incurred and/or against any Contract proceeds. THIRTIETH AFFIRMATIVE DEFENSE A2 may believe that it was justified in installing the non-conforming Meggitt system because of the long lead time for the ATI system, but if the ATI system actually had an excessively long lead time, then A2’s remedy was to request and obtain a time extension. Contract provision GP-03.P expressly states that if the work is delayed for any reason beyond A2’s control, then a time extension shall be granted. A2 never requested a time extension. Any damages A2 incurred as a result of installing the non-conforming Meggitt baffle system are the result of A2’s failure to avail itself of available contract remedies. THIRTY-FIRST AFFIRMATIVE DEFENSE A2 may believe that it had no choice but to install the non-conforming Meggitt baffle system because the ATI system had an excessively long lead time, but even if the work could not be completed within the specified Contract Time, A2 had the right to a time extension. A2 failed to comply with the time extension provisions of GP-03.P of the Contract by failing to present a timely request for additional time. Pursuant to GP-03.P, A2 waived any right to additional time or money due to delay for all delays of more than 7 calendar days before a time extension claim, if any, was made. Thus, by choosing not to comply with the Contract Time extension provisions, 19 A2 waived any right to additional time and any damages allegedly resulting from A2’s inability to complete the work as specified within the Contract Time. THIRTY-SECOND AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system and/or the termination of the Contract, but the County decided the question of whether A2 had complied with the Contract in good faith. GP-03.Q of the Contract provided the County with the authority to inspect the work and to be the final judge regarding the suitability of the work. A2 voluntarily agreed to convey such decision-making authority to the County. The County’s good faith exercise of the rights conveyed by the contract cannot be deemed a breach. THIRTY-THIRD AFFIRMATIVE DEFENSE A2 may believe that the County’s refusal to pay A2 for work performed was wrongful, but GP-03.Q of the Contract expressly states that all non-conforming work by A2 shall be replaced at A2’s cost. The Meggitt baffle system does not conform to the specifications and the County is contractually authorized to withhold Contract funds to compensate the County for the non-conforming work. THIRTY-FOURTH AFFIRMATIVE DEFENSE A2 may believe that the County’s refusal to pay A2 for work performed was wrongful, but GP-03.Q of the Contract expressly states that if the County elects to accept non-conforming work, the Contract price will be equitably adjusted. The Meggitt baffle system does not conform to the specifications and if the County elects to accept the work, the County is contractually authorized to withhold Contract funds and/or demand a refund of amounts paid as part of the authorized equitable adjustment to the Contract price. 20 THIRTY-FIFTH AFFIRMATIVE DEFENSE A2 may have incurred additional costs and may believe that A2 is entitled to damages, but GP-03.U of the Contract expressly authorizes the County to withhold payment for nonconforming work. THIRTY-SIXTH AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice is the result of A2’s failure to list Meggitt as a subcontractor as required by GP-03.Z of the Contract which expressly states that the contractor shall provide a list of subcontractors with its Bid for approval and that substitutions must be submitted in writing and shall be subject to approval by the County. THIRTY-SEVENTH AFFIRMATIVE DEFENSE A2 may believe that the Contract was in violation of Fla. Stat. § 287.057, the sole source specification statute, but if so, then the Contract entered into by A2 is void. If the A2 contract is void, then A2 has no remedy against the County for breach of contract and all payments to A2 are subject to disgorgement. THIRTY-EIGHTH AFFIRMATIVE DEFENSE A2 may believe that the County’s rejection of the Meggitt baffle system was improper, but A2 never properly sought approval of the Meggitt baffle system through the submittal process or demonstrated that the indicated qualities related to type, function, dimension, in- service performance, physical properties, appearance, and other characteristics of the Meggitt baffle system were equal to or exceeded those of the specified product as required by Technical Specification 01-6000.1.3.3. 21 THIRTY-NINTH AFFIRMATIVE DEFENSE Pursuant to GP-03.KK of the Contract, A2 was required to furnish a complete list of proposed desired substitutions prior to the signing of the Contract together with such engineering and catalog data as the County may require. A2 listed AT] as its sole subcontractor in its Bid and the County relied to its detriment on that representation. A2 also failed to provide such engineering data required by the County for the baffle system. FORTIETH AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice is the result of A2’s failure to furnish to the County a complete list of proposed desired substitutions prior to the signing of the Contract together with such engineering and catalog data as the County may require as required by GP-03.KK of the Contract. A2 listed ATI as its sole subcontractor in its Bid and the County relied to its detriment on that representation. A2 also failed to provide such engineering data required by the County for the baffle system. FORTY-FIRST AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system and/or the termination of the Contract, but the County decided the question of whether A2 had complied with the Contract in good faith. GP-03.KK of the Contract expressly states that the contractor shall abide by County’s judgment when proposed substitutions are judged unacceptable and shall furnish the specified item of equipment in such case. A2 voluntarily agreed to convey such decision-making authority to the County. The County’s good faith exercise of the rights conveyed by the Contract cannot be deemed a breach. Any damages incurred by A2 are attributable to A2’s failure to comply with the Contract. 22 FORTY-SECOND AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice is the result of A2’s failure to submit a proper and timely request for substitution as required by Contract provision GP-03.KK. FORTY-THIRD AFFIRMATIVE DEFENSE A2 may believe it has been prejudiced by the County’s rejection of the Meggitt baffle system, but any prejudice is the result of A2’s failure to comply with GP-03.KK of the Contract which required A2 to comply with all federal, state, and local laws and ordinances that affect the Contract in any way. The Meggitt baffle system installed by A2 did not comply with the Florida Building Code. FORTY-FOURTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by alleged unforeseen site conditions, but if A2 encountered site conditions that caused A2 to incur additional costs, said costs are not attributable to the County as the Contract expressly states that the contractor had full responsibility with respect to subsurface conditions and that if the contractor elects not to make subsurface investigation prior to bidding, it shall not be entitled to any extra time or money due to any conditions encountered. FORTY-FIFTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by alleged unforeseen site conditions, but if A2 encountered site conditions that caused A2 to incur additional costs, the right to recover additional compensation for said costs was waived by A2’s failure to comply with Contract provision GP-03.PP which required A2 to provide the County with a written report of any 23 differing conditions or inaccurate technical data, and which states that any work done after such discovery will be done at the contractor’s risk. FORTY-SIXTH AFFIRMATIVE DEFENSE A2 is not entitled to any additional compensation due to any alleged differing site condition, changed condition, or otherwise unforeseen condition because the Contract allocated all risk of unforeseen conditions to A2 and A2 accepted that allocation when A2 executed the Contract. FORTY-SEVENTH AFFIRMATIVE DEFENSE A2 may believe that it is entitled to be paid for the work it performed, but GP-03.RR of the Contract states that A2 shall be liable for liquidated damages at the specified daily rate for all days the work remains incomplete after 270 days from the date of commencement. A2’s work is not complete and more than 270 days have passed since A2 commenced work. As a result, the County is entitled to withhold any Contract proceeds necessary to pay the liquidated damages incurred. FORTY-EIGHTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County agent’s efforts to obtain the building permit for the firing range, but any such prejudice was the result of A2’s failure to obtain the building permit as required by Contract provision SP-13. Had A2 examined the building permit as required by the Contract, A2 would have been fully aware of all conditions attendant with the permitting, design, and construction of the Project. FORTY-NINTH AFFIRMATIVE DEFENSE A2 alleges that it was misled by the Contract Documents and A2’s obligation to provide the engineering for the baffle system because the Contract Documents did not clearly identify 24 that the range structure was an open air facility, did not clearly state it was subject to Florida Building Code wind load requirements, and failed to more clearly state that the engineering was delegated to A2. Had A2 secured the building permit as required by the Contract, A2 would have been apprised of the fact that the range was an open air facility subject to the Florida Building Code wind load requirements and that the baffle engineering was a delegated design. FIFTIETH AFFIRMATIVE DEFENSE A2 may believe that it was justified in installing the Meggitt baffle system because the ATI baffle system allegedly had an excessively long lead time, but if A2 was truly unable to complete the work in the allotted 270 days due to the long lead time required to obtain the ATI system, A2 created the time constraint by agreeing to commence the running of time on April 2, 2018, and waived any claim for additional time or damages by agreeing at the preconstruction conference that the work and Contract Time would commence on April 2, 2018 and be complete within 270 calendar days. Because A2 failed to request an extension of time pursuant to the Contract, A2 waived any right to additional time and any damages allegedly resulting from A2’s inability to complete the work as specified within the Contract Time. FIFTY-FIRST AFFIRMATIVE DEFENSE A2 may believe that it is entitled to additional compensation and the Contract proceeds being held by the County, but pursuant to the bid form, to the extent County, its officers, agents, employees, and volunteers incur liabilities, damages, losses, or costs, including, but not limited to, reasonable attorney’s fees caused by the negligence, recklessness, or intentional wrongful misconduct of the contractor in the performance of this Contract, A2 is responsible for said liabilities, damages, losses, attorney’s fees and costs. 25 FIFTY-SECOND AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system and/or any decision to retrofit the Meggitt baffle system in an effort to make it functional, but Section 01-2200.1.6 of the Contract provided the County with the authority to inspect the work and to be the final judge regarding the suitability of the work and how best to remedy non- conforming work. To the extent it is determined that A2’s nonconforming work is to remain, the County is entitled under the Contract to repair the work and adjust the Contract Price accordingly. A2 voluntarily agreed to convey such decision-making authority to the County. The County’s good faith exercise of the rights conveyed by the Contract cannot be deemed a breach. FIFTY-THIRD AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s rejection of the Meggitt baffle system and/or the termination of the Contract, but Section 01-2200.1.6.E of the Contract expressly allocated authority to Wilder to make the final determination regarding whether A2’s work was in conformity with the Contract and to identify what adjustments should be made to the Contract amount as a result of the nonconforming work. A2 voluntarily agreed to allow Wilder to serve as the final decision maker regarding the acceptability of A2’s work. A2’s work has been deemed unacceptable by Wilder and A2 cannot now revoke its consent to allow Wilder to serve as the final decision maker. FIFTY-FOURTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by alleged latent or unforeseen conditions that required a modification to the Contract, but pursuant to Section 01-2500.K.1.5.B of the Contract, A2 was required to comply with Division I Section “Product Requirements” if the proposed change requires a substitution. A2 was required to propose the changes by submitting a request 26 for a change order and to include the reasons for the requested change and provide all time and money impacts. A2 waived any right to additional compensation by failing to comply with this provision. FIFTY-FIFTH AFFIRMATIVE DEFENSE A2 may believe that it was entitled to a change order and/or to additional time and/or money, but pursuant to Section 01-2500.K.1.6 of the Contract, A2 was required to obtain the County’s approval and a change order from the Architect. A2 waived any right to additional time and/or money by failing to comply with this provision. FIFTY-SIXTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by alleged unforeseen site conditions, but pursuant to Technical Specification 01-3200.1.4 of the Contract, the contractor had the duty to submit 2 copies of a Field Condition Report at time of discovery of the unforeseen condition. A2’s failure to comply with this provision bars any claim for additional compensation due to unforeseen conditions. FIFTY-SEVENTH AFFIRMATIVE DEFENSE A2 may believe that it was prejudiced by the County’s failure to reject the Meggitt baffle system at an earlier date, but A2 failed to follow submittal requirements set forth in Technical Specification 01-3200.2.1.A which would have revealed the unauthorized substitution and the fact that additional time allegedly was needed for the ATI system. This information would have enabled the County to prevent the unauthorized installation of the Meggitt baffle system. Compliance