Volume Services Division of Interstate United Corp. v. Canteen Corp.
| Decision Date | 28 March 1979 |
| Docket Number | Nos. 78-1897,78-1931 and 78-2026,78-1903,s. 78-1897 |
| Citation | 369 So.2d 391 |
| Parties | VOLUME SERVICES DIVISION OF INTERSTATE UNITED CORPORATION, and Interstate United Corporation of Florida, Inc., Petitioners, v. CANTEEN CORPORATION, Koolee, Inc., and Thomas B. Trierweiler, Respondents. VOLUME SERVICES DIVISION OF INTERSTATE UNITED CORPORATION, and Interstate United Corporation of Florida, Inc., and Tampa Sports Authority, Appellants, v. Thomas B. TRIERWEILER, Canteen Corporation, and Koolee, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Thomas T. Steele of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for Volume Services Division of Interstate United Corp. and Interstate United Corp. of Florida, Inc.
C. Lawrence Stagg and Michael A. Fogarty of Stichter, Stagg, Hoyt, Riedel & Fogarty, P.A., Tampa, for Tampa Sports Authority.
John W. Boult and W. Crosby Few of Few & Ayala, Tampa, for Canteen Corp. Michael C. Addison and Richard Benjamin Wilkes of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, Tampa, for Koolee, Inc.
J. Rex Farrior, Sr. and Joseph G. Thresher of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for Thomas B. Trierweiler.
These appeals involve a controversy stemming from the award of the concessions franchise at Tampa Stadium.
In March of 1977 the Tampa Sports Authority (TSA) announced its intention to enter into a new ten-year contract for the concessions franchise at Tampa Stadium. Paragraph 15(b) of the bid specifications provided:
Acceptance and rejection of proposals.
(b) The right to enter into the formal license agreement shall be awarded to the responsible bidder submitting the highest percentage of gross receipts. In determining whether a bidder is responsible the authority may consider financial responsibility, general experience and reputation of a bidder and any other reasonable criteria.
Several concessions companies submitted bids pursuant to the specifications. TSA voted to accept the bid of Interstate United Corporation of Florida, Inc. (Interstate) even though Ogden Food Service Corporation (Ogden) and Canteen Corporation (Canteen) had each submitted a bid pledging a higher percentage of gross receipts to TSA than had Interstate. On June 30, 1977, Interstate and TSA entered into a contract permitting Interstate to sell food, drink and other items at the Tampa Stadium for a period of ten years.
Thomas B. Trierweiler (Trierweiler), a resident of Tampa and an employee of Ogden, filed a taxpayer's suit against TSA challenging the legality of the contract between TSA and Interstate. Trierweiler prayed for an injunction preventing Interstate's further operation at the stadium and requested the court to award the concessions contract to Odgen, the highest bidder. TSA sought to justify its award to Interstate on the comparison of (1) past performances in other stadia similar to Tampa Stadium, (2) management personnel, and (3) potential volume of sales.
A summary judgment was entered on June 28, 1978, holding that TSA did not have the right to prepare the bid specifications in a manner which reserved undefined discretion to select other than the highest bidder. The court reasoned that by including in paragraph 15(b) of the specifications the words "and any other reasonable criteria" TSA had improperly reserved the right to determine what "other reasonable criteria" it might choose to apply until after the submission of the bids. The court observed that specifications for bidding on a public project must be definite enough on points of material concern as to allow an objective comparison of bids on a common basis. The court voided the contract between TSA and Interstate and ordered TSA to rebid the franchise and to issue new bid specifications in compliance with the summary judgment. Interstate, which had already begun to perform under the contract, was permitted to continue to handle the concessions for a limited period of time pending rebidding. TSA did not appeal the summary judgment.
TSA revised its bid specifications to provide as follows:
1. Determination of Qualification of Bidders.
(a) Authority reserves the discretion based on the criteria set out in this subsection to determine whether particular bidders have the basic qualifications to conduct a food and beverage service concession for a facility of the size of the Stadium. This determination shall be in addition to procedures for selection of the concessionaire under section 2 of this article. A bidder who is determined on the basis of the listed criteria to lack the basic qualifications to conduct the concession at the Stadium will not be awarded the right to enter the formal license agreement, regardless of percentage bid or other relevant merits of the proposal.
(b) In determining whether a bidder possesses the basic qualifications to operate, the Authority will consider the following:
(1) Experience in operation of similar facilities, or in operation of any facility having a seating capacity in excess of 40,000.
(2) Past performance of the bidder at the Stadium or at other facilities.
(3) Bidder's general reputation for performance and service.
(4) Bidder's financial condition.
(5) Bidder's existing service contracts and ability to expand operations.
2. Selection of Concessionaire.
(a) Bidders are advised that the Authority intends to select as concessionaire the qualified bidder who the Authority determines, based on the criteria set out below will provide the Authority with the opportunity to maximize its revenues from the concession operation, while at the same time providing high quality products and efficient service to Stadium patrons.
(b) In order to determine which proposal will provide the Authority with the opportunity to maximize its revenue from concessions, the Authority will consider the following factors, none of which will, standing alone, be conclusive.
(1) The percentage of gross receipts from concessions bid.
(2) The historical per capita production from sale of food and beverage concessions by the Bidder:
(A) At the Stadium, if any.
(B) At similar facilities for events similar to those conducted at the Stadium, if any.
(C) At all events at similar facilities, if any.
(D) At dissimilar facilities for events similar to those conducted at the Stadium, if any.
(E) At dissimilar facilities for all events.
(3) Bidder's experience and general performance at operating food and beverage concessions at the Stadium and at other similar facilities, as shown by personal knowledge of or experience with the bidder, if any, by inspections of other facilities which have been or may be made by or on behalf of the Authority, or by the other criteria set out in this article.
(4) The experience, training and past performance of those persons designated by the bidder as proposed management-level personnel regarding operation of concessions at the Stadium.
(5) The criteria for determination of qualifications set out in Section 1 of this Article.
(c) In order to determine whether a bidder will insure that patrons of the Stadium will be provided high-quality products and prompt, efficient and satisfactory service, the Authority will consider each of the criteria set forth in sections 1 and 2 of this Article, relating to past performance and service.
TSA received seven bids in response to the new specifications. With respect to the percentage of gross receipts to be paid to TSA, the parties interested in this litigation bid as follows:
Koolee, Inc. 46.3%
Canteen Corporation 44.15%
Ogden Food Service Corporation 44.13%
Interstate United Corporation of Florida, Inc. 42.1%
TSA referred the bids to its concessions committee for preparation of a recommendation to the full authority. The concessions committee, in turn, ordered its staff to submit a report and recommendation to the committee. The staff recommended an award to Canteen. 1 The full concessions committee, however, met and decided that, in consideration of all of the factors listed in the specifications, Interstate should be awarded the contract. The committee members relied heavily on their conclusion that Interstate's experience would generate higher per capita sales which would ultimately result in higher revenue for TSA. The full authority accepted the committee's recommendation and voted to award the contract to Interstate.
At this point, Koolee, Interstate and Canteen were permitted to intervene in the litigation. Trierweiler and Canteen moved to set aside the award to Interstate. On October 23, 1978, the court set aside the award of the concessions contract to Interstate on the ground that TSA had not complied with the summary judgment by making an objective comparison of the bids on a common basis. The court directed TSA to "reconsider" its decision to contract with Interstate. Canteen also filed a petition for writ of mandamus to require TSA to award the concessions contract to Canteen, and Koolee moved for an order compelling an award to Koolee because of its status as the highest percentage bidder.
TSA then met in special session to reconsider its decision to award the concessions contract to Interstate and voted once again to contract with Interstate. The court then entered an order dated November 1, 1978, invalidating the bid specifications because they did not conform to the final summary judgment. The court held that the only criteria which met the requirements of objectivity was the comparison of percentage of gross receipts pledged. The court ordered TSA to redraw the specifications and to rebid the contract. The court, however, affirmed TSA's finding that Koolee was not a qualified bidder because of its lack of experience in large stadia. Finally, the court directed that should the bid specifications be upheld on appeal, an objective consideration of all factors required an award...
To continue reading
Request your trial
-
Jackson-Shaw Co. v. Jacksonville Aviation Auth.
...establish a bidding procedure and may contract in any manner not arbitrary or capricious." Volume Services Div. of Interstate United Corp. v. Canteen Corp., 369 So.2d 391, 395 (Fla. 2d DCA 1979). Thus, unless specifically required by law, competitive bidding "is not an essential prerequisit......
-
South Florida Limousines, Inc. v. Broward County Aviation Dept.
...reaches a conclusion on facts upon which reasonable men may differ. System Development Corp.; Volume Services Division of Interstate United Corp. v. Canteen Corp., 369 So.2d 391 (Fla. 2d DCA 1979). The appellant has failed to show an abuse of the trial court's discretion. The order denying ......
-
Kozel v. Kozel
...of the court is exhausted, and it cannot take any further proceedings in the case"); Volume Servs. Div. of Interstate United Corp. v. Canteen Corp., 369 So. 2d 391, 394 (Fla. 2d DCA 1979) (stating that "once a judgment becomes final, the court ordinarily loses jurisdiction to entertain furt......
-
Port Everglades Authority v. International Longshoremen's Ass'n, Local 1922-1, 94-1331
...proceedings other than those brought for the limited purposes of enforcement of its order. See Volume Servs. Div. of Interstate Corp. v. Canteen Corp., 369 So.2d 391, 395 (Fla. 2d DCA 1979). A summary of the procedural history of the case and the trial court's orders is helpful in determini......
-
APA: legislative reform of disputed competitive procurement decisions.
...law rule requiring public agencies to let contracts through a competitive procurement process. Volume Services Division v. Canteen Corp., 369 So. 2d 391, 395 (Fla. 2d DCA 1979). Thus, the only limitation upon the action of a public agency procuring goods or services through competitive subm......