Network Technical Services v. D.C. Data Co., 83-438.

• Decision Date: 18 July 1983
• Docket Number: No. 83-438.,No. 83-439.,83-438.,83-439.
• Parties: NETWORK TECHNICAL SERVICES, INC., et al., Appellants, v. D.C. DATA COMPANY, et al., Appellees. NETWORK TECHNICAL SERVICES, INC., et al., Appellants, v. COLUMBIA GAMING SYSTEMS, INC., Appellee.
• Court: D.C. Court of Appeals

464 A.2d 133

NETWORK TECHNICAL SERVICES, INC., et al., Appellants, v. D.C. DATA COMPANY, et al., Appellees.

NETWORK TECHNICAL SERVICES, INC., et al., Appellants, v. COLUMBIA GAMING SYSTEMS, INC., Appellee.

No. 83-438.

No. 83-439.

District of Columbia Court of Appeals.

Submitted April 17, 1983.

Decided July 18, 1983.

Willie L. Leftwich, Joanne Doddy Fort, Frederick A. Douglas, Thomas M. O'Hern, Jr., Martin E. Firestone, and Neal A. Jackson, Washington, D.C., were on brief for appellants.

Richard O. Duvall, Timothy J. Bloomfield, Francis L. Wetzel, and Michael B. Gross, Washington, D.C., were on brief for appellees D.C. Data Company, et al.

Robert B. Washington, Jr., Judah Lifschitz, John J. Connors, and Patrick Apodaca, Washington, D.C., were on brief for appellees Columbia Gaming Systems, Inc.

Before NEWMAN, Chief Judge, and FERREN and TERRY, Associate Judges.

PER CURIAM:

The District of Columbia Lottery and Charitable Control Board ("Board") decided to award the contract for an on-line lottery system to appellants¹ ("LTE"). Prior to execution of the contract, the appellees² ("Losing Bidders") sued in Superior Court to block execution. After deciding that the award of a contract for an on-line lottery system was not a contested one, and therefore that the Superior Court had jurisdiction over the cases, the trial court granted the Losing Bidders' motions for two ten-day temporary restraining orders which blocked execution of the contract. LTE appealed and moved for summary vacation of those temporary restraining orders. We deny the motion to vacate and dismiss the appeal, finding: (1) the Superior Court properly decided that it had jurisdiction because the award of a contract is not a contested case subject to the jurisdiction of this court as provided by D.C.Code § 1-1510 (1981), and (2) ten-day temporary restraining orders issued after a limited hearing are not appealable orders.³

I

After receiving bids for the on-line lottery system from the Losing Bidders as well as from LTE, the Board decided to award the contract to LTE. Prior to execution of the contract, one of the Losing Bidders, D.C. Data Company, instituted a suit to challenge the award in Superior Court. This suit was voluntarily dismissed pursuant to a settlement agreement whereby the Board agreed to submit the matter to the District of Columbia Contract Review Committee ("CRC") for informal review. Subsequently, the CRC issued a report which concluded that the Board had not followed the correct procedures in evaluating the proposed bids, improperly deviated from the proposed evaluation criteria in the request for proposals, and had insufficient evidence before it to review the minority business participation in the proposed bids. In spite of the CRC's report, the Board indicated that it still intended to award the contract to LTE. Before the contract was executed, the Losing Bidders sued the Board in Superior Court in two separate suits which were consolidated. LTE intervened in both suits. The Losing Bidders moved for temporary restraining orders to block execution of the contract to LTE. At the hearing for the temporary restraining orders, LTE argued that the trial court did not have jurisdiction over the cases because the Board's decision to award the contract was a "contested case". Therefore, LTE argued, under D.C. Code § 1-1510 (1981), only this court has jurisdiction to review the Board's actions. Based on the arguments of counsel, but without holding an evidentiary hearing, the trial court decided that the award of a contract was not a contested case and that it did have jurisdiction. The court then issued two ten-day temporary restraining orders to prevent execution of the contract. LTE filed a timely appeal with this court. Pursuant to that appeal, LTE moved for summary vacation of the temporary restraining orders.

II

LTE argues that the Superior Court lacked jurisdiction to enter the temporary restraining orders because, under D.C.Code § 1-1510 (1981), direct appeals from agency decisions must be taken to this court, rather than the trial court.

Under D.C.Code § 1-1510 (1981), this court has jurisdiction to review final agency decisions only in "contested cases." A contested case is "a proceeding before . . . any agency in which the legal rights, duties, or privileges of specific parties are required by any law . . . or by constitutional right to be determined after a hearing . . . before an agency . . ." D.C.Code § 1-1502(8) (1981). Here the Board is making a decision regarding the parties' specific legal right to have the contract awarded and executed; therefore, the only issue is whether a specific statute or the Constitution entitled a party to a hearing prior to the award and execution of the contract. District of Columbia v. Douglass, 452 A.2d 329, 331 (D.C. 1982).

There is no constitutional right to a hearing before the award and execution of a contract, because no property interest exists prior to execution. See Jonal Corp. v. District of Columbia, 175 U.S.App.D.C. 57, 62, 533 F.2d 1192, 1197 (1976) (hearing held after the District of Columbia allegedly modified contract terms met the dictates of due process). The statute setting forth the broad requirements for competitive bidding does not require a hearing. D.C.Code § 2-2536 (1981). The detailed procedures set forth in the Board's regulations do not require a hearing. 29 D.C.Reg. 4885, 4895 § 10117-.10 (Nov. 5, 1982). The informal review by the CRC was not required by statute, regulation, or the Constitution and did not involve an evidentiary hearing or an opportunity to cross-examine the witnesses. Cf. D.C.Code § 1-1509 (1981) (evidentiary hearings and an opportunity to cross-examine exist...