STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERRARD & LAROCHE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-2106BID

) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the subject cause came on for hearing before the undersigned on January 25, 1977, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Mercer Fearlington, Esquire

MacFarlane, Ferguson, Allison & Kelly 700 Lewis State Bank Building

Post Office Box 1548 Tallahassee, Florida 32302

For Respondent: Kenneth F. Hoffman, Esquire

Rogers, Powers, Bailey, Jones & Gay Post Office Box 1872

Tallahassee, Florida 32302

ISSUES

The issues raised by the petition is whether or not the Petitioner is entitled to a change order for reimbursement for work and equipment installed in the South Florida State Hospital Emergency Securities Facilities. The particular items involved are electrical door operators and locking system for doors 141 and 146. While the facts are relatively clear, a resolution of the issue posed calls for an interpretation of the facts as they relate to the contract on which the Petitioner was awarded the job.

FINDINGS OF FACT

1. During early March, 1976, Petitioner was awarded the contract on HRS- 6063/6470/7526S, Phase Three. The architect for the project was Herbert Anson, Associates, an architectural engineering and planning firm with offices in Broward and Dade County, Florida. The contracts were introduced into evidence by Respondent as Respondent's Composite Exhibit Number 1. The contract document between the State and the Petitioner incorporates by reference a general conditions contract called AIA Document A-201, which was introduced as part of the composite exhibit. That contract defines contract documents at Section 1.1.1, to include the original agreement, the conditions of the contract, drawings, specifications, all addenda and all modifications thereto. All these

   documents were considered an integrated agreement. Section 1.1.2 the "work" is defined at Section 1.1.3 to include all labor, material and equipment necessary to be incorporated to produce the construction required by the contract document. Section 08710 of the architect's general specification document entitled "finish hardware" defines the intent of the section as follows:

   
   

   INTENT: The intent of this section is to encompass finish hardware required by the drawing and schedules. In general it includes: new cylinders on all existing hardware to be reused, replacing unsalvageable hard- ware with new hardware and new hardware. It also includes a complete system of electric door operators and electric door locks, all required electrical race- ways and conductors, all control transformers and any other device or material item required for a complete operating system.

   
   

   Petitioner contends that the architect explicitly stated that it was the intent of the finish hardware section or specifications to encompass all finish hardware required by the drawings and schedules. Petitioner argues that inasmuch as the electronic sliding door operators and electric door locks for doors 141 and 146 were not specified in any of the architects drawings or schedules, that it was entitled to a change order and reimbursement for supplying and installing the electrical door operators and locking system on doors 141 and 146.

   
   

2. Architectural drawing sheet A-9, dated February 9, 1976, is a door schedule but makes no reference to the finish hardware on doors 141 and 146. An addendum dated February 18, 1976, stated in pertinent part that the intent and purpose thereof was to augment or modify the specifications and drawings for which it was a part. The addendum superseded conflicting requirements on the specification and drawings. The addendum was forwarded to Petitioner accompanied by an amended architectural drawing sheet A-9, also dated February 18, 1976, which provided the door schedule for the project which opposite doors

   141 and 146 read as follows: Under the hardware heading was the figure "22" beside both door numbers and next to the figure "22" under the remarks heading was "Notes D and "N" beside both door numbers. Figure 22 and the remarks "D and N" are references to additional negotiations to be found in Addendum 1. The hardware group for "22" which is found on Page 7 of the Addendum Number 1 states as follows:

   
   

   Door Number 141-146 By Others

   Petitioner takes the position that the term "by others" contained in a set of contract specifications submitted to a general contractor can only have one meaning to that general contractor, i.e.,: that the hardware for doors Number

   141 and Number 146 were to be furnished by others, that is to say, persons other than the general contractor, his sub-contractors, or suppliers. Petitioner points to Item D found on Page 12 of the addendum which states: "New door, hardware, and frame" which indicates that the door frame and hardware on Doors

   146 and 141 were to be new.

   
   

3. On April 8, 1976, Petitioner notified the architect by letter that none of the hardware for Doors 141 and 146 were included in his bid for the reasons stated, i.e., since the hardware schedule in Addendum Number 1 reflects that

   hardware Group Number 22 is furnished: "by others" and that therefore, it was not a requirement of the contract. Petitioner inquired as to whether the architect desired to incorporate the hardware into the contract and, if so, to issue a change-order request along with appropriate hardware specifications such that construction could proceed as scheduled. By letter dated April 21, 1976, Elmer H. Hansen, contract administrator, advised Petitioner to proceed with ordering and installing the necessary materials as called for in Addendum Number 1, Notes D and N, due to an emergency situation then existing at the institution. That letter provided further that the architect was researching documents for a decision which would resolve the item in question. By letter dated July 9, 1976, Mr. Hansen advised the Petitioner that his proposal for a change-order in the amount requested for providing security hardware for Doors

   141 and 146 for the referenced project had been rejected. This opinion was based on the contract administrator's opinion that the hardware in question was included in the contract. Petitioner was further advised to exercise any rights he had respecting this dispute through the arbitration provision as called for in the contract document.

   
   

4. Evidence reveals that the architect declined to issue a change order for this project based on conversations with other unsuccessful bidders who had apparently included a bid to cover the items here complained of.

   
   

5. Based upon my consideration and review of all the contractual documents, drawings, specifications, addenda, and the other record evidence, I conclude that the Petitioner's argument is meritorious and that a change-order is appropriate herein. This conclusion is based on the evidence adduced during the course of the hearing by resident architects, and contractors who expressed their concern over the term "by others" and their general agreement that it is generally recognized that there is more than one definition of the term "by others"; that the term is ambiguous and I conclude that any ambiguity should be resolved in favor or the Petitioner. It is true that the unsuccessful bidders indicated that in preparing their bid fro this project, they included an amount sufficient in their opinion, to cover the cost for providing the electrical door operators and locking system for Doors 141 and 146. However, when questioned on this point, said contractors' testimony revealed that the amounts in which they included for such items were understated by approximately 50%. Further examination revealed that, in projecting their cost for submitting a bid to cover electrical door operators and locking systems, they had no specifications or other drawings on which to intelligently base such a bid. As an aside, it was also noted that the firm here is the same architectural firm for the 300 man correctional institute in Broward County and that similar operator and electrical locks were specified in great detail in the finish hardware section for similar doors, whereas in this case, the emergency security facilities finish hardware schedule simply stated "by others" as it relates to Doors 141 and 146. These added specifications included shop drawings; materials and equipment; air compressor specifications; installation procedures and a warranty. Finally, in view of the architect's reliance on the unsuccessful bidders' testimony that they included amounts sufficient to cover the door operator and locking system for Doors 141 and 146 as a basis for denying the contractor's claim, the undersigned considered the testimony of the Number 2 bidder and noted that when the Petitioner's bid is compared to that of the Number 2 bidder, the additional expenditure necessary to grant the requested relief by the issuance of a change-order here requires an amount of approximately $782.36. In reaching this conclusion, further consideration was given to the Number 2 bidder's testimony that he only included an amount to cover the subject items in his bid after he called the architect for additional verbal instructions and, in view of the fact that the Petitioner called the

matter to Respondent's attention as soon as it became apparent that Respondent expected Petitioner to supply the materials and labor for the electrical door operators and locking system for Doors 141 and 146.

Based on the foregoing findings of fact and conclusions, it is recommended that the change-order requested be granted and that the Respondent be awarded reasonable costs, including attorney fees, which it incurred in the defense of this action, pursuant to Section 8.5 of the contract between the contractor and the Respondent dated March 11, 1976. The change-order and cost as relates to attorney fees should be supported by affidavits submitted to the Respondent.

DONE and ENTERED this 4th day of March, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

John A. Barley, Esquire General Counsel

Department of General Services The Larson Building Tallahassee, Florida 32304

Mercer Fearington, Esquire 700 Lewis State Bank Building Post Office Box 1548 Tallahassee, Florida 32302

Kenneth F. Hoffman, Esquire

Rogers, Powers, Bailey, Jones & Gay Post Office Box 1872

Tallahassee, Florida 32302

Docket for Case No: 76-002106

Orders for Case No: 76-002106