The Supreme Court issued its opinion today on the licensing matter. Bottom line: the court remanded the case back to the licensing board for a determination of whether the jalousie removal and installation work on the protested job at issue was “incidental and supplemental” to the renovation job as a whole, in light of the cost and extent of the work.
Without identifying any specific amount or percentage that would be deemed excessive under the law, the court simply noted that whether something is incidental and supplemental must also include an analysis of the cost and scope of the incidental and supplemental work, mindful of the fact that based upon the court’s view of the legislative history on the issue, the incidental and supplemental exception was supposed to have been narrow and minor in scope.
Judges Kim and Tootoo dissented, stating the original findings of the board should not be disturbed and the court should not attempt to seize control over decisions rightly made by the experienced members of the board.
Because the court did not identify any amount or extent that would be unacceptable in its eyes, the bottom line of this decision is that it leaves the question of what is “incidental and supplemental” under a C-5 license gray at best, and likely subject to continued bid protests and litigation in the future. This also likely means more expense, which will be bad news for the construction recovery currently under way, and more delay, which will be equally bad news for the long overdue renovation and rehabilitation work needed at Hawaii's schools and other public buildings.