Acad. Express Llc v. Broward County

• Decision Date: 09 February 2011
• Docket Number: No. 4D09–3881.,4D09–3881.
• Citation: 53 So.3d 1188
• Parties: ACADEMY EXPRESS, LLC, Appellant,v.BROWARD COUNTY, a political subdivision of the State of Florida; and Limousines of South Florida, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

53 So.3d 1188

ACADEMY EXPRESS, LLC, Appellant,

v.BROWARD COUNTY, a political subdivision of the State of Florida; and Limousines of South Florida, Inc., a Florida corporation, Appellees.

No. 4D09–3881.

District Court of Appeal of Florida, Fourth District.

Feb. 9, 2011.

Joseph M. Goldstein and Temple Fett Kearns of Shutts & Bowen LLP, Fort Lauderdale, for appellant.Jeffrey J. Newton, Broward County Attorney, Andrew J. Meyers, Chief Appellate Counsel, and Benjamin R. Salzillo, Assistant County Attorney, Fort Lauderdale, for appellee Broward County.William J. Cea, Daniel L. Wallach and Gary C. Rosen of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee Limousines of South Florida, Inc.PER CURIAM.

This appeal stems from a bid protest initiated by Academy Express, LLC (hereinafter “Academy”) against Broward County for award of a bus shuttle service contract to Limousines of South Florida, Inc. (hereinafter “LSF”). Academy ultimately filed a complaint in circuit court seeking declaratory and injunctive relief. The complaint alleged in count I that the County's action in awarding the contract was arbitrary and capricious, and in count II that the contract was “fatally flawed.” The complaint was dismissed by the circuit court for failure to state a cause of action. We affirm and write only to address Academy's allegations in count I.

Academy initially learned of the bus shuttle services contract when Broward County issued a Request for Letters of Interest (“RLI”) seeking qualified vendors. The Broward County Procurement Code describes the RLI process as follows:

[A] method of selecting a vendor whereby all vendors are invited to submit a summary of their qualifications and state their interest in performing a specific job or service. From these Letters of Interest, the County determines which vendors shall be “shortlisted,” interviewed and enter into final negotiation for a contract.

Broward County Procurement Code § 21.8b.39. (2007). The RLI contained twenty-one qualification requirements that vendors had to meet. The County formed a selection committee tasked with choosing vendors who had submitted responsive letters of interest to be shortlisted and interviewed.

Four vendors, including Academy, were shortlisted and permitted to make oral presentations. The vendors were then scored and ranked, resulting in a tie between Academy and LSF. Broward County did not make oral or written findings explaining how the rankings were determined, nor was it required to do so by the Procurement Code. The tie was ultimately broken in favor of LSF.

Academy filed a bid protest with Broward County, alleging that LSF misrepresented material information in its letter of interest. The Broward County Procurement Code permits protests based upon procedural deviations and errors only. The Code further provides that allegations of misrepresentation by vendors would “not be considered a protest, but [would] be reviewed and, if appropriate, in the County's sole discretion, used for purposes of evaluating the responsibility or qualifications of the vendor(s).” Broward County Procurement Code § 21.118. (2007). When Academy's bid protest was denied by the County, Academy appealed to a hearing officer who also denied the protest, reasoning that it did not allege procedural errors. Academy also submitted its allegations of misrepresentation by LSF to the County Purchasing Director, County Attorney and County Auditor who forwarded the allegations to the selection committee.

The contract was subsequently awarded to LSF and Academy's complaint followed. Academy alleged in count I that LSF misrepresented its experience. The RLI asked whether vendors had operated a bus shuttle service of a certain size and for a requisite amount of time. The complaint alleged that LSF answered “Yes” to each of these questions when, in fact, LSF had not met these qualifications. The circuit court dismissed the complaint and Academy appealed.

Generally, the standard of review of a dismissal for failure to state a cause of action is de novo. See Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm'rs, 955 So.2d 647, 651 (Fla. 1st DCA 2007). However, in cases where the complaint seeks...