MRO Software, Inc. v. Miami-Dade County

• Decision Date: 06 October 2004
• Docket Number: No. 3D03-1594, No. 3D04-2185.
• Citation: 895 So.2d 1086
• Parties: MRO SOFTWARE, INC., Petitioner, v. MIAMI-DADE COUNTY, etc., et al., Respondents.
• Court: Florida District Court of Appeals

895 So.2d 1086

MRO SOFTWARE, INC., Petitioner, v. MIAMI-DADE COUNTY, etc., et al., Respondents.

Nos. 3D03-1594, 3D04-2185.

District Court of Appeal of Florida, Third District.

October 6, 2004.

Greenberg, Traurig and Elliot H. Scherker and Brenda K. Supple and Charles M. Auslander; Greenberg Traurig and Dorn C. McGrath, III and Paul R. Lipton, Miami, for petitioner.

Steel Hector Davis and John C. Shawde and John D. Eaton; Robert A. Ginsburg and Hugo Benitez, Miami, for respondents.

Before SCHWARTZ, C.J., and LEVY and FLETCHER.

SCHWARTZ, Chief Judge.

An unsuccessful competitive bidder for a software contract with Miami-Dade County seeks certiorari review of a decision of the Appellate Division of the Eleventh Circuit which transferred its bid challenge to the General Jurisdiction Division. We deny relief on the basis of our agreement that such an award is the exercise of an executive function, rather than a quasi-judicial act subject to certiorari review by the Appellate Division. Charles M. Schayer & Co. v. Board of County Commissioners of Dade County, 188 So.2d 871 (Fla. 3d DCA 1966) squarely so holds. See also Fisher Island Holdings, LLC v. Miami-Dade County Com'n on Ethics and Public Trust, 748 So.2d 381 (Fla. 3d DCA 2000).

As we have already strongly indicated in Miami-Dade County v. Church & Tower, Inc., 715 So.2d 1084 (Fla. 3d DCA 1998), this conclusion is not affected by the procedural process adopted in section 2-8.4 of the Miami Dade County Code.¹ See Church & Tower,715 So.2d at 1088 n. 4 ("The hearing provides a forum for the orderly presentation and reception of evidence and argument for and against the positions of the opposing parties, and other purposes, not the least of which would be to secure a favorable recommendation from the hearing examiner, and even to allow the protesting bidder an opportunity to convince the county manager to change his recommendation."); Jennings v. Dade County, 589 So.2d 1337, 1343 n. 1 (Fla. 3d DCA 1991)(Ferguson, J., concurring) ("If an act is in essence legislative in character, the fact of a notice and a hearing does not transform it into a judicial act. If it would be a legislative act without notice and a hearing, it is still a legislative act with notice and a hearing. See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014 (1894)."), review denied, 598 So.2d 75 (Fla.1992).

Certiorari denied.

1. Section 2-8.4 Protest procedures.

This section shall govern any protest made by a participant in any competitive process utilized for selection of a person or other entity to construct any public improvement, to provide any supplies, materials or services....

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(c) Protests filed in accordance herewith shall be referred to a hearing examiner. A hearing examiner shall be appointed not later than five (5) working days following the filing of a bid protest. The hearing examiner shall conduct a hearing in connection with the bid protest which shall be completed within ten (10) working days following his or her appointment. The hearing examiner shall, within five (5) working days of the hearing, file written findings and recommendations with the Clerk of the Board and shall submit or mail a copy of same to all participants in the competitive process and to the County Attorney. The hearing examiner may extend the deadline for completion of the hearing upon written petition for good cause shown, but such extension shall not exceed an additional five working (5) days. 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. The hearing examiner may also require written summaries, proffers, affidavits and other documents the hearing examiner determines to be necessary in order to conclude the hearing and...