Miami-Dade County v. Church & Tower, Inc.

• Decision Date: 12 August 1998
• Docket Number: No. 98-1576,MIAMI-DADE,98-1576
• Citation: 715 So.2d 1084
• Court: Florida District Court of Appeals
• Parties: 23 Fla. L. Weekly D1863 COUNTY, Appellant, v. CHURCH & TOWER, INC., Appellee. Third District

Page 1084

715 So.2d 1084

23 Fla. L. Weekly D1863

MIAMI-DADE COUNTY, Appellant, v. CHURCH & TOWER, INC., Appellee.

No. 98-1576.

Third District.

Aug. 12, 1998.

Robert A. Ginsburg, County Attorney, and R.A. Cuevas and Hugo Benitez, Assistant County Attorneys, for appellant.

Adorno & Zeder and Raoul G. Cantero, III, Coconut Grove, and Jonathan D. Colan, Miami, for appellee.

Before SCHWARTZ, C.J., FLETCHER, J., and SMITH, LARRY G., Senior Judge.

SMITH, LARRY G., Senior Judge.

We have before us an appeal and a cross-appeal from a non-final order of the circuit court in litigation between Miami-Dade County ("Miami-Dade" or "county"), appellant/cross-appellee, and Church and Tower ("C & T"), appellee/cross-appellant.

C & T, as the lowest bidder for a competitively bid contract for road paving work to be awarded by the county, filed a bid protest challenging the recommendation of the county manager rejecting its bid because C & T was not a "responsible bidder." C & T also filed a complaint to prohibit the county from awarding the contract pending exhaustion of C & T's bid protest remedies. Relying solely on the order of a hearing examiner entered after a hearing pursuant to the county's bid protest ordinance, recommending award of the contract to C & T, the court granted a temporary injunction prohibiting the county from awarding the contract to any entity except C & T during pendency of appellate review of the Board of County Commissioners' adverse ruling on C & T's bid protest, and until further order of the court. ¹ Subsequently, on the county's motion to dissolve after the Board accepted the county manager's recommendation and rejected C & T's bid, the court ordered that the injunction be dissolved based upon the court's finding that C & T had an adequate remedy at law. However, in the same order, the court granted C & T's ore tenus motion to stay the dissolution for a period of ninety days, reserving jurisdiction to further extend the stay on application of C & T.

The county timely appealed both the original order granting the temporary injunction and the order staying the dissolution. C & T cross-appealed the dissolution of the injunction.

On appeal, the county contends that the order by the lower court, though purporting to dissolve the injunction, by granting the stay of dissolution, in effect continued the temporary injunction. The county argues that C & T failed to establish entitlement to a temporary injunction prior to the board's decision, or a continuation of the injunction following the board's decision, in that the evidence before the court did not meet the standard required to overturn the decision of the Board of County Commissioners in the exercise of its discretion to accept or reject competitive bids for a public contract under the standards set forth in Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla.1988), and Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla.1982). Accordingly, the county argues, C & T failed to establish a substantial likelihood of success on the merits of its bid dispute with the county, one of the essential elements required to sustain the temporary injunction. ²

C & T maintains that the trial court did not err in staying dissolution of the injunction pending appellate review of the board's adverse ruling on C & T's bid protest. C & T further argues alternatively, on cross-appeal, that the trial court erred in dissolving the injunction. C & T argues that its position is supported by the decision in Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978), and other cases holding that in bid protest proceedings a court of equity may properly enjoin the award of a contract to allow completion of bid protest procedures by a disappointed bidder.

On the basis of the record before us and our review of the authorities cited, we agree with the county's position that the orders granting the temporary injunction and staying its dissolution were improperly entered and must be set aside.

I.

C & T was the prime contractor on a prior contract with the county for paving and striping work, when the county advertised for bids on additional similar work. C & T was the low bidder on two of the new proposed contracts. C & T's subcontractors on the prior contract were MBL, and H & J, and a third company, Thermoplastic, which performed work as a sub-subcontractor to MBL. The same contractors were listed on C & T's new bids as subcontractors to perform work under the new contracts. Because of problems that developed concerning the performance of the previous contract, disputes arose between the county and C & T which resulted in the county's cancellation of the contract in October 1997, litigation between the county and C & T, a State Attorney's investigation of the prior contract, and litigation between C & T and Thermoplastic in which C & T alleged, among other things, fraud and racketeering by Thermoplastic.

In April 1998, interim County Manager Merrett Stierheim, upon review of the bids for the new contracts pursuant to Sec. 2-8.3 of the Dade County Code (1995), recommended to the County Commission that C & T's bids be rejected on the ground that C & T was not a "responsible bidder." Reasons for the rejection included analyses and data obtained with respect to performance of the prior contract during the course of the pending litigation indicating that substantial amounts of paving and striping work billed and paid under the prior contract had not in fact been performed.

II.

C & T filed a bid protest pursuant to the County Code, and a hearing examiner was appointed to hear the protest under Sec. 2-8.4 (1995), "Bid Protest Procedures." After a three-day hearing, at which numerous witnesses testified and some 100 exhibits were introduced, the hearing examiner entered a written order containing his findings and recommendations. The hearing examiner did not concur in the decision of the county manager to reject C & T's bid, concluding that as to C & T, "all pertinent facts were not known by the County Manager in determining that Church & Tower was not a responsible bidder for this project." He recommended to the commission that the contracts be awarded to the low bidder, C & T.

The hearing examiner's findings and recommendation were filed with the commission on May 6, 1998, in accordance with Section 2-8.4(e) of the County Code, and a hearing before the commission was held on May 19, 1998. At the conclusion of the hearing the commission voted unanimously to reject C & T's protest, adopting a motion

that the protest be rejected on the grounds adequately supported by the records for underperformance by the contractor and given the fact that there is an ongoing criminal investigation it must be the policy of this commission not to award additional contracts to the same contractors for work under these circumstances.

III.

Before the court can order a temporary injunction, the complaining party generally must establish: (1) a likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) public interest considerations. See Naegele Outdoor Adver. Co. v. City of Jacksonville, 659 So.2d 1046, 1047 (Fla.1995); Smith Barney Shearson, Inc. v. Berman, 678 So.2d 376, 377 (Fla. 3d DCA 1996). The critical issue in this appeal concerns the burden which must be met by C & T in establishing a substantial likelihood of success in its challenge to the commission's decision rejecting C & T's bid protest.

In approaching this issue we first turn to provisions of the Dade County Code governing bid protest proceedings. ³ The County Code, Sec. 2-8.3, provides in part that in the competitive bidding process "the County Manager shall review the responses to the solicitation [for bids] and recommend to the County Commission award or other appropriate action." Sec. 2-8.4(c) provides, in part:

(c) Protests filed in accordance herewith shall be referred to a hearing examiner who shall hold a hearing and submit written findings and recommendations based thereon within ten (10) days of the filing of the protest. The hearing examiner shall consider the written protest and supporting documents and evidence appended thereto, the County Manager's recommendation, and supporting documentation, and all evidence presented at the hearing.

That section further provides, in subsection (e):

(e) The hearing examiner's findings and recommendation shall be presented to the Commission together with the recommendation of the County Manager.... The matter shall be resolved on the basis of the record before the hearing examiner and no evidence or issue which was not presented or raised at such hearing shall be considered.

Subsection (f) provides that if the hearing examiner concurs in the county manager's recommendation, a two-thirds vote of the commission is required to take action other than the manager's recommendation; however, if the hearing examiner does not concur in the manager's recommendation, "the Commission shall decide the matter by majority vote."

C & T contends that by adopting these ordinances which provide for review of the county manager's decision by a hearing examiner, who then makes recommendations to the commission, the commission has "delegated" its decision-making authority to the hearing examiner, and that the commission is bound by the hearing examiner's findings and recommendation if supported by competent substantial evidence. Thus, C & T concludes, the issue before this court is whether the hearing examiner's finding--that the county manager's rejection of C & T as "not responsible" was "arbitrary and capricious"--was supported by competent substantial evidence. If so, C & T argues, the commission was not free to disregard the hearing examiner's decision and its action was therefore arbitrary and capricious. C & T urges...