Florida Record

Thursday, July 18, 2019

Appeals court denies developer's petition to review awarding of bid for Miami's Virginia Key project

Lawsuits

By Donna Fuscaldo | Feb 18, 2019


MIAMI – Florida's Third District Court of Appeal recently agreed with a lower court ruling denying a petition for for a writ of certiorari regarding Miami's decision to award a bid for redevelopment of property at Virginia Key. 

In its Feb. 19 ruling, the appeals court denied the petition by property developer Biscayne Marine Partners LLC, saying the developer failed to prove its case. 

The legal action stems from Miami's move in February 2017 to seek requests for proposals for the redevelopment and lease of waterfront property at Virginia Key. The city manager recommended awarding the bid to Virginia Key LLC, prompting rival bidder Biscayne Marine Partners to file a protest, court filings said.

An administrative hearing officer in Miami affirmed the recommendation that the bid go to Virginia Key, prompting Biscayne Marine to petition for a writ of certiorari in Miami-Dade County Circuit Court. When the circuit court denied Biscayne Marine’s petition, the developed sought a second-tier review in appeals court. 

Part of the dispute involves a parcel of county property the city initially believed could be used for parking. The city refined its request for proposal (RFP) after learning the property wouldn’t be deeded by the county, removing the land from the RFP. However, the three bidders on the proposal included that parcel in their plans. 

In its protest of the award, Biscayne Marine argued Virginia Key LLC included more of the excluded property than the other bidders and thus shouldn’t be awarded the project.  Biscayne Marine maintained Virginia Key’s bid was non-responsive because it proposed a commercial development purpose that ran afoul of the scope of the project and was as a “material deviation” from the request for proposal.  

Determining that all three bids included proposals for the piece of property in question, the hearing officer accepted the view of the city that the request for proposal had not explicitly stated the piece of property couldn’t be used in the plans, backing the choice of Virginia Key.  That ruling prompted Biscayne Marine to take its grievances to the courts.

In its 14-page opinion denying the petition by Biscayne Marine, the Miami-Dade County Circuit Court’s Appellate Division found the hearing officer did not run around the requirements, provided all parties involved due process and based his decision on facts and substantial evidence, court filings said.

In its appeal, Biscayne Marine asserted the hearing officer and the circuit court should have made their own determinations outside of the city and their failure to do so is a departure of the requirements of law. It argued the established principle of law is for a bid protest either to a court or a hearing officer to be followed by an independent analysis of whether or not a material deviation from the bid specifications had occurred. 

The appeals court said past cases reveal "no such holding, much less the articulation of such a deference prohibition as an established principle of law.” As a result, the court said it had to deny the petition “because Biscayne Marine has failed to show that the circuit court departed from the essential requirements of law.”

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