STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRAFFIC CONTROL DEVICES, INC., )

)

Petitioner, )

)

vs. )

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

) CASE NO. 84-3144BID

Respondent, )

and )

) WINKO-MATIC SIGNAL COMPANY, )

)

Intervenor. )

)

)

RECOMMENDED ORDER

Consistent with Notice of Hearing issued on September 26, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on November 26, 1984. The issue for consideration was whether the Intervenor, WINKO-MATIC SIGNAL COMPANY, was the lowest responsible bidder on State Projects No. 75000-3532 and 75000-3538.

APPEARANCES

For the Petitioner: Donald E Karraker, Esquire

DeRanzo and Mehok

4000 North Federal Highway, Suite 210 Boca Raton, Florida 33431

For the Respondent: Reynold Meyer, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32304

For the Intervenor: Martha Harrell Hall, Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.

410 Lewis State Bank Building Post Office Drawer 190 Tallahassee, Florida 32301

BACKGROUND INFORMATION

Respondent, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION (DOT), solicited

bids for a traffic control device installation project in Orange County, Florida. Both Petitioners, TRAFFIC CONTROL DEVICES, INC. (TCD), and Intervenor, WINKO-MATIC SIGNAL COMPANY (WOM), submitted bids on the project. DOT issued a notice of intent to award the contract to WOM. Petitioner filed a notice of protest and requested a formal hearing.

At the hearing, Petitioner presented the testimony of Salvatore LaPiana, president of TCD, and introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Lawrence O. Walls, an employee of DOT's Bureau of Contract Administration; Gary C. Price, chief of DOT's Bureau of Traffic Operations; and introduced Respondent's Exhibits A through C. Intervenor presented the testimony of Irwin Hart, president of WOM; Henry C. Dickson, shop supervisor of the Orange County, Florida Transportation Department Traffic Signal Shop; and Thomas R. Voyles, supervisor of the City of Orlando's Traffic Signal Section; and introduced Intervenor's Exhibits A through C. The parties entered into a Joint Stipulation which was introduced as Joint Exhibit I, and the Hearing Officer took official recognition of 39 submissions offered by Petitioner with the concurrence of Respondent and Intervenor, and two submissions by Intervenor without objection by Petitioner.

The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b))4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. On June 27, 1984, TCD and WOM, among others, submitted bids on State jobs numbers 75000-3532 and 75000-3538 for the installation of a computerized traffic signal system in Orlando, Florida.

   
   

2. TCD's bid was ultimately determined to be $2,367,859.75 and WOM's bid was ultimately determined to be $2,300,467.49. The project requires inter alia, the modification of a central computer room and the installation of computerized traffic signals, controlled from this computer room, at various locations in the Orlando area.

   
   

3. The scope of the job was outlined in DOT Advertisement No. 3, dated May 31, 1984. This advertisement, sent automatically to all prospective bidders who had pre-qualified for projects of this nature, did not require the bidder to be a certified or registered electrical or general contractor. Other projects included in the same advertisement contained specific language requiring that bidders be certified or registered contractors in the stated appropriate discipline for that project. WOM is neither a certified or registered general or electrical contractor. TCD is licensed as both a certified general and electrical contractor in Florida. Both WOM and TCD were pre-qualified for projects such as here in issue.

   
   

4. On August 6, 1984, DOT notified all bidders that WOM was the successful bidder. Thereafter, that same date, TCD filed its notice of protest and on August 13, 1984, filed its formal written protest with DOT.

5. The work in question here is, as was stated above, broken down into two separate parts. The first is the modification of the computer room and the second is the installation of the signal lights. Without the first, the second would be ineffective and, therefore, the work on the computer room is considered to be incidental to the main portion of the project; the installation of the traffic signal system. This project has been properly considered by DOT to be work on bridges, roads, streets, highways and, therefore, exempt from, the requirement for accomplishment by a registered or certified contractor.

   
   

6. Portions of the project involve the installation of electrical conduits and some equipment which uses electricity. However, the project is not primarily an electrical contract. Such portions of the project as involve electrical work will be subcontracted by WOM to a licensed electrical contractor who will be authorized to and who will secure All permits required by Orange County. The City of Orlando does not require any permits for this project.

   
   

7. The bid specifications for this project specifically recognize that some parts of the project may be subcontracted. In that regard, DOT's Standard Specifications for Road and Bridge Construction, taken together with the plans and specifications tailored for this particular project require only 50 percent of the project be completed by the in-house capability of the prime contractor. At least that much will be done by WOM.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

9. DOT has authority to enter into this contract and its exclusive jurisdiction is limited to the area within the roadway and right-of-way. Since a part of this project extends beyond the right-of-way, the project documents require the contractor to be in full compliance with all federal, state, county, and city laws to include all necessary permits.

   
   

10. Petitioner contends that Respondent erred in awarding this contract to WOM because though low bidder on this project, WOM was not a licensed contractor. Petitioner urges that under the provisions of Chapter 489, Parts I and II, Florida Statutes, and the decision of the First District Court of Appeals in Greenhut Construction Company v. Henry A., Knott, Inc., 247 So. 2d

    517 (Fla. 1st DCA 1971), WOM was not an authorized bidder and, therefore, the award of this project to it was improper.

    
    

11. Chapter 489, Part I, Florida Statutes, which sets out the requirements for the licensing of contractors as Section 489.103(1), specifically exempts from these licensing requirements:

    
    

    Contractors in work on bridges, roads, streets, highways, railroads, utilities, and services incidental thereto.

    
    

12. It having been determined that this project constitutes work on the roads, streets, and highways, and that the modification to the computer room is incidental to this work, it is clear that under the terms of this statute, WOM was not required to be licensed in order to bid on this contract. This is so

    notwithstanding the Greenhut case and those consistent therewith. See City of Opa-Locka v. Trustee of the Plumbing Industry Fund, 193 So. 2d 29 (Fla. 3rd DCA 1966); Harry Pepper & Associates, Inc. v. The City of Cape Coral, 352 So. 2d 1190 (Fla. 2nd DCA 1978).

    
    

13. As to the issue of whether or not WOM requires an electrical contractor's license, WOM concedes that it would have to have such a license if this project were for electrical contracting. However, as was established in the Findings of Fact herein, this is not primarily an electrical contract and WOM has indicated its assurances that those portions of the project requiring electrical contracting will be permitted and accomplished by an electrical contractor licensed in Florida. DOT's rules permit such delegation of work so long as the prime contractor retains overall supervision and responsibility for the project.

    
    

14. On the basis of the above, it is clear that WOM is a proper bidder under the terms and provisions of the contract documents. It is also clear that WOM submitted the low bid.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that: the DEPARTMENT OF TRANSPORTATION issue to Intervenor, WINKO-MATIC SIGNAL COMPANY, the contract for accomplishment of State Project No. 75000-3532 and 75000-3538.

RECOMMENDED this 9th day of January, 1985, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1985.

COPIES FURNISHED:

Donald E. Karraker, Esquire 4000 North Federal Highway Suite 210

Boca Raton, Flroida 33431

Robert Scanlon, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Martha Harrell Hall, Esquire Post Office Drawer 190 Tallahassee, Florida 32301

Paul Pappas, Secretary Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301

Docket for Case No: 84-003144

Orders for Case No: 84-003144