HomeMy WebLinkAboutSubmittal-Vicky Leiva-Appellate Case No 17-335 AP 01NOT FINAL UNTIL TIME EXPIRES
TO FILE RE -HEARING MOTION,
AND, IF FILED, DISPOSED OF.
BISCAYNE MARINE PARTNERS, LLC,
Petitioner,
v.
CITY OF MIAMI, FLORIDA and
VIRGINIA KEY, LLC,
Respondents.
Opinion filed: September � 2018.
Submitted into the yublic
record for item(s). 'lied
.1C
on oq-I 3 - I g . City Clerk
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR MIAMI-DADE
COUNTY, FLORIDA
APPELLATE CASE NO.: 17-335 AP 01
LOWER CASE: In re: RFP No. 16-17-011
Lease and Development of Virginia Key and
Bid Protest
—el
CO
rrl
..D
!V 77
On Petition for Writ of Certiorari of a Final Order on a Bid Protest Filed by Biscayne
Marine Partners LLC, In re: City of Miami Request for Proposal No. 16-17-011
•
� N
Rodolfo Sorondo, Jr., Esq. of Holland & Knight LLP, and David B. Haber, Esq. and
Lauren S. Fallick, Esq., of Haber Slade P.A., for Petitioner, Biscayne Marine Partners,
LLC
Eileen Ball Mehta, Esq., of Bilzin Sumberg Baena Price & Axelrod LLP, for Respondent,
Virginia Key, LLC
Forest L. Andrew, Assistant City Attorney, for Respondent, City of Miami, Florida
Before: THORNTON, RUIZ, and DEL REY, JJ.
RUIZ, J.
ON MOTION FOR REHEARING AND/OR CLARIFICATION
This cause is before us on Petitioner's, Biscayne Marine Partners, LLC ("Biscayne"),
Motion for Rehearing and/or Clarification and Correction of Opinion filed July 30, 2018. We
deny the Motion for Rehearing and grant the Motion for Clarification. Accordingly, the opinion
issued on July 30, 2018 is withdrawn, and the following opinion is substituted in its place.
2525- St lore - \Jt c k-k-i LOVA No . f 3 3 S 149 o
VkCic i L64A-- I C - J3 n -33-S 0
When it comes to competitive bidding and procurement requirements, clear rules and
defined procedures matter. They promote legitimacy, increase transparency, and ensure
predictability. The instant case deals with a bid process that was far from perfect, giving rise to a
bid protest and extensive quasi-judicial review by a hearing officer. This Court is thus charged,
on first tier certiorari review of the hearing officer's decision, to decide whether procedural due
process was accorded, whether the essential requirements of law were observed, and whether the
hearing officer's factual findings are supported by competent substantial evidence. As explained
herein, we find that the hearing officer's decision satisfies the safeguards applicable to first tier
review, and deny Petitoner's request for certioriari relief.
BACKGROUND
On September I, 2017, Biscayne filed a Petition for Writ of Certiorari ("Petition"),
seeking to quash a hearing officer's quasi-judicial decision entitled "Final Order on the Bid
Protest Filed by Biscayne Marine Partners Related to Request for Proposal No. 16-17-011"
("Order"). The Order affirmed the recommendation of the City Manager for the City of Miami,
Florida ("City") to award Respondent, Virginia Key, LLC ("Virginia Key"), a contract for the
development and lease of the Virginia Key Marina pursuant to Request for Proposal 16-17-011
("RFP"). The RFP sought, in pertinent part, as follows:
[R]esponsive proposals from qualified Proposers willing to plan,
redesign, construct, renovate, redevelop, lease, manage and operate
a mixed -use waterfront facility including, but not limited to, a
marina, boatyard, dock master's office, ships store, dry storage,
wet slip docks, and at least one restaurant (the "Project").
The location for the Project was 3301, 3605, 3501, 3311, & 3511 Rickenbacker Causeway,
Miami, Florida, shown respectively as Parcels 1, 2, and 3 on a survey included in the RFP
("Property"). The Property consisted of approximately twenty-seven (27) acres.
Page 2 of 14
The main area of contention is a rectangular parcel of land, approximately 51 feet by 441
feet in size, located and abutting, but outside of the northern boundary for the Rickenbacker
Causeway. On the survey attached to the RFP, this parcel contains the notation "NOT A PART"
("NAP Parcel"). The NAP Parcel was actually comprised of two parcels: (1) a parcel owned by
the City, which is a paved parking lot managed by the Miami Parking Authority ("MPA"); and
(2) a parcel owned by Miami -Dade County ("County"), which at the time the RFP was issued,
was deeded by the County to the City on the condition that an MPA garage be constructed on it
subject to restrictions.
Two addenda were made to the RFP which are relevant to the instant Petition:
Addendum 4 and Addendum 5. On April 19, 2017, the City issued Addendum 4, which
provided that proposers could construct a unified development over and inclusive of the MPA
garage, so long as the uses incorporated in the MPA garage complied with all applicable deed
restrictions. Because certain conditions were not met, this parcel reverted to the County.
On May 5, 2017, the City issued Addendum 5, which revised: (1) Section III.A.II of the
RFP regarding development of the parking garage; (2) Section III.C.8 of the RFP regarding the
Estimated Timetable; and (3) Section IV.0 of the RFP regarding Receipt of Responses. The
proposal submission time was extended to May 24, 2017. Addendum 5 also revised Section
III.A.11 of the RFP, stating, in pertinent part, as follows:
Proposers shall be required to construct the parking for the Project
solely within the footprint of the Property as shown in Exhibit "A",
which does not include the parcel previously conveyed to the City
by the County Deed recorded in Official Records Book 28636
Page 3666.
Further, references to the NAP Parcel were deleted from the RFP.
The City received proposals from Biscayne, Virginia Key, and GCM Contracting
Solutions, Inc. ("GCM"). The procurement and evaluation process was handled by the
Page 3 of 14
Department of Real Estate Asset Management ("DREAM") for the City. On June 12, 2017, an
Evaluation Committee comprised of seven members with technical expertise in procurement,
environment, finance, marina management, planning and zoning, and the Virginia Key master
plan heard presentations from all three proposers. Each proposer was given equal time to present
their proposals.
On June 14, 2017, the Evaluation Committee convened to evaluate the three proposals.
Based upon a detailed evaluation matrix, the Evaluation Committee ranked Virginia Key first,
Biscayne second, and GCM third. On June 15, 2017, the City Manager approved the ranking
and evaluation of the Evaluation Committee, and recommended Virginia Key for the award of
the lease and development agreement. On June 27, 2017, Biscayne filed a formal bid protest.'
On July 20, 2017, a hearing was convened on the bid protest before a hearing officer,
who was randomly selected and appointed by the City Manager. The hearing officer had more
than twenty-two (22) years of experience dealing with bid protests, and the hearing was
convened pursuant to § 18-104 of the City of Miami Code ("City Code"). He was presented with
an agreed upon list of exhibits comprising five (5) separate volumes, which were admitted into
evidence. The hearing officer was also presented with an additional list of documents that were
not agreed upon, but after hearing argument of counsel, certain additional documents were
admitted as exhibits.
Each party was allotted two hours for their presentation for a total of six hours.
Additional time was allowed for objections. Rather than presenting witnesses, Biscayne's
presentation consisted of argument by counsel, as well as the presentation of documents and
exhibits, which were treated by the hearing officer as equal to all other relevant evidence in
' Virginia Key filed a motion to intervene, which was granted, and it was treated as a party for
all purposes. GCM was not part of the bid protest.
Page 4 of 14
terms of admissibility pursuant to § 18-104(b)(4)(c) of the City Code. The City presented the
testimony of Jacqueline Lorenzo ("Lorenzo"), the DREAM Project manager, and Mark Johnson,
a licensed surveyor.
On August 4, 2017, the hearing officer emailed an unsigned version of the Order
containing detailed factual findings and conclusions of law to various City employees and
officials. On August 5, 2017, the unsigned Order was forwarded to additional employees and
officials, including an Assistant City Attorney who forwarded the Order to counsel for Biscayne
and Virginia Key. On August 7, 2017, the parties were formally served with an executed copy of
the Order signed by the hearing officer. The Order denied Biscayne's bid protest and affirmed
the recommendation made in favor of Virginia Key. Biscayne's Petition followed.
STANDARD OF REVIEW
Where, as in the instant case, a party is entitled as a matter of right to seek review in the
circuit court from administrative action, the Court must determine: (1) whether procedural due
process was afforded; (2) whether the administrative findings and judgment are supported by
competent substantial evidence; and (3) whether the essential requirements of law have been
observed. Dusseau v. Metropolitan Dade Cnty., 794 So. 2d 1270, 1274 (Fla. 2001); Fla. Power
& Light Co. v. Dania, 761 So. 2d 1089, 1092 (Fla. 2000); Bd. of Cnty. Com'rs of Brevard Cnty.
v. Snyder, 627 So. 2d 469, 474 (Fla. 1993). On first tier certiorari review, the circuit court
should not re -weigh the evidence or substitute its judgment for that of the local government
authority. Dusseau, 794 So. 2d at 1275-76; Fla. Power, 761 So. 2d at 1093.
ANALYSIS
Biscayne claims that the hearing officer's affirmance of the award recommendation
departed from the essential requirements of law, and is not supported by competent substantial
evidence. In support of this position, Biscayne posits that two key issues were incorrectly
Page 5 of 14
0
addressed by the hearing officer: (i) "the RFP is defective because it is ambiguous as to a
material, if not the most material specification —what land can be developed, managed, and
operated for this lucrative 75-year lease" and (ii) Virginia Key's "proposed development on the
'NOT A PART' parcel is a non-waivable material deviation from the RFP," thereby rendering
Virginia Key's proposal "non -responsive." Petition at p. 19. In addition to these two points,
Biscayne also maintains that certiorari relief is necessary because due process was not afforded
in the bid proceedings below. However, none of the aforementioned arguments warrant
certiorari relief.
I. The hearing officer complied with the essential requirements of law and the
Order is supported by competent substantial evidence.
"The departure from the essential requirements of the law necessary for the issuance of a
writ of certiorari is something more than a simple legal error." Allstate Ins. Co. v. Kaklamanos,
843 So. 2d 885, 889 (Fla. 2003) (citing Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000))
(emphasis added). As explained by the Florida Supreme Court, certiorari review should only be
granted when there has been a violation of a clearly established principal of law resulting in a
miscarriage of justice:
The required "departure from the essential requirements of the
law" means something far beyond legal error. It means an inherent
illegality or irregularity, an abuse of judicial power, an act of
judicial tyranny perpetrated with disregard of procedural
requirements, resulting in gross miscarriage of justice. The writ of
certiorari properly issues to correct essential illegality but not legal
error.
Haines City Comm. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995) (citation omitted). Here, a
review of the Order indicates that the hearing officer clearly understood his limited role in
reviewing the award to Virginia Key, and carefully analyzed the record below pursuant to the
standard of review established by the City Code. See City Code § 18-104(b)(4)(d) ("[T]he
Page 6 of 14
hearing officer shall determine whether procedural due process has been afforded, whether
substantial requirements of law have been observed, and whether the decision was arbitrary,
capricious and an abuse of discretion, or unsupported by substantial evidence as a whole.
Substantial evidence means relevant evidence as a reasonable person might accept as adequate to
support a conclusion.").
In Florida, there is a strong policy to defer to public agencies' decisions in competitive
bidding situations. See Dep't of Transp. v. Groves -Watkins Constructors, 530 So. 2d 912, 913
(Fla. 1998); Liberty Cnty. v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982)
("[A] public body has wide discretion in soliciting and accepting bids for public improvements
and its decision, when based on an honest exercise of this discretion, will not be overturned by a
court even if it may appear erroneous and even if reasonable persons may disagree.");
Intercontinental Props., Inc. v. State Dept. of Health and Rehab. Servs., 606 So. 2d 380, 381
(Fla. 3d DCA 1992) (noting the judicial role in reviewing administrative action is a limited one).
In fact, "judicial intervention to prevent the rejection of a bid should occur only when the
purpose or effect of the rejection is to defeat the object and integrity of competitive bidding."
Groves -Watkins, 530 So. 2d at 913 (emphasis added); see also Gulf Real Props., Inc. v. Dep't of
Health & Rehab. Servs., 687 So. 2d 1336, 1338 (Fla. 1st DCA 1997) (holding public body's
rejection of all bids "must stand absent a showing that the `purpose or effect of the rejection is to
defeat the object and integrity of competitive bidding.') (quoting Groves -Watkins, 530 So. 2d at
913).
Further, a hearing officer is required to uphold an agency's honest exercise of discretion,
"absent a finding of illegality, fraud, oppression, or misconduct." Id. at 914; see also Miami -
Dade Cnty. v. Church & Tower, 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998) (emphasizing the
measure of discretion vested in a public agency in competitive bidding situations pursuant to
Page7of14
Liberty County, as well as the strong judicial deference accorded to agency decisions with
respect to competitively bid contracts under Groves -Watkins).
Here, the hearing officer correctly recognized the aforementioned limitations under
Florida law, and properly deferred to the expertise of the City's Evaluation Committee on
numerous issues raised in the bid protest. Noting that nothing in the bid protest questioned the
technical and professional expertise possessed by the Evaluation Committee to rank the
proposers, the hearing officer properly declined to second-guess the quantitative and qualitative
analysis employed by the Evaluation Committee to review the proposers' bids. Arguments
advanced by Biscayne that Virginia Key's proposal was non -responsive due to dredging depth
violations or the inadequacy of Virginia Key's financial analysis —issues reviewed by the
Evaluation Committee —were correctly left undisturbed by the hearing officer and denied as
independent bases for the bid protest. See Order at pp. 5-6.
This brings us to the two primary defects alleged by Biscayne as the basis for their
Petition: (i) the hearing officer incorrectly relied on the City's interpretation of the NAP Parcel,
which Biscayne maintains is a non-waivable material deviation from the RFP; and (ii) Virginia
Key's bid is non -responsive due to its use of the NAP Parcel, and must therefore be disregarded.
i. The hearing officer correctly deferred to the City's interpretation of the NAP Parcel
In his Order, the hearing officer noted the "confusion or misunderstanding" created by
the NAP Parcel, which purportedly meant different things to the City, Biscayne, and Virginia
Key. Order at p. 18 ("The words 'NOT A PART' have been included on the survey attached to
the RFP from the very beginning of the RFP process. We now come to the questions no one
really asked throughout the entire process. What do those words mean? Not a part of what?").
In fact, it is clear the hearing officer found the presence of an ambiguity in the RFP. Id. at p. 19
("While everyone may have believed they understood [what the NAP parcel notation meant], it
Page 8 of 14