SMITH, LARRY G., Senior Judge.
We have before us an appeal and a cross-appeal from a non-final order of the circuit court in litigation between Miami-Dade County ("Miami-Dade" or "county"), appellant/cross-appellee, and Church and Tower ("C & T"), appellee/cross-appellant.
C & T, as the lowest bidder for a competitively bid contract for road paving work to be awarded by the county, filed a bid protest challenging the recommendation of the county manager rejecting its bid because C & T was not a "responsible bidder." C & T also filed a complaint to prohibit the county from awarding the contract pending exhaustion of C & T's bid protest remedies. Relying solely on the order of a hearing examiner entered after a hearing pursuant to the county's bid protest ordinance, recommending award of the contract to C & T, the court granted a temporary injunction prohibiting the county from awarding the contract to any entity except C & T during pendency of appellate review of the Board of County Commissioners' adverse ruling on C & T's bid protest, and until further order of the court.
The county timely appealed both the original order granting the temporary injunction and the order staying the dissolution. C & T cross-appealed the dissolution of the injunction.
On appeal, the county contends that the order by the lower court, though purporting to dissolve the injunction, by granting the stay of dissolution, in effect continued the temporary injunction. The county argues that C & T failed to establish entitlement to a temporary injunction prior to the board's decision, or a continuation of the injunction following the board's decision, in that the evidence before the court did not meet the standard required to overturn the decision of the Board of County Commissioners in the exercise of its discretion to accept or reject competitive bids for a public contract under the standards set forth in Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla.1988), and Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla.1982). Accordingly, the county argues, C & T failed to establish a substantial likelihood of success on the merits
C & T maintains that the trial court did not err in staying dissolution of the injunction pending appellate review of the board's adverse ruling on C & T's bid protest. C & T further argues alternatively, on cross-appeal, that the trial court erred in dissolving the injunction. C & T argues that its position is supported by the decision in Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978), and other cases holding that in bid protest proceedings a court of equity may properly enjoin the award of a contract to allow completion of bid protest procedures by a disappointed bidder.
On the basis of the record before us and our review of the authorities cited, we agree with the county's position that the orders granting the temporary injunction and staying its dissolution were improperly entered and must be set aside.
C & T was the prime contractor on a prior contract with the county for paving and striping work, when the county advertised for bids on additional similar work. C & T was the low bidder on two of the new proposed contracts. C & T's subcontractors on the prior contract were MBL, and H & J, and a third company, Thermoplastic, which performed work as a sub-subcontractor to MBL. The same contractors were listed on C & T's new bids as subcontractors to perform work under the new contracts. Because of problems that developed concerning the performance of the previous contract, disputes arose between the county and C & T which resulted in the county's cancellation of the contract in October 1997, litigation between the county and C & T, a State Attorney's investigation of the prior contract, and litigation between C & T and Thermoplastic in which C & T alleged, among other things, fraud and racketeering by Thermoplastic.
In April 1998, interim County Manager Merrett Stierheim, upon review of the bids for the new contracts pursuant to Sec. 2-8.3 of the Dade County Code (1995), recommended to the County Commission that C & T's bids be rejected on the ground that C & T was not a "responsible bidder." Reasons for the rejection included analyses and data obtained with respect to performance of the prior contract during the course of the pending litigation indicating that substantial amounts of paving and striping work billed and paid under the prior contract had not in fact been performed.
C & T filed a bid protest pursuant to the County Code, and a hearing examiner was appointed to hear the protest under Sec. 2-8.4 (1995), "Bid Protest Procedures." After a three-day hearing, at which numerous witnesses testified and some 100 exhibits were introduced, the hearing examiner entered a written order containing his findings and recommendations. The hearing examiner did not concur in the decision of the county manager to reject C & T's bid, concluding that as to C & T, "all pertinent facts were not known by the County Manager in determining that Church & Tower was not a responsible bidder for this project." He recommended to the commission that the contracts be awarded to the low bidder, C & T.
The hearing examiner's findings and recommendation were filed with the commission on May 6, 1998, in accordance with Section 2-8.4(e) of the County Code, and a hearing before the commission was held on May 19, 1998. At the conclusion of the hearing the commission voted unanimously to reject C & T's protest, adopting a motion
Before the court can order a temporary injunction, the complaining party generally must establish: (1) a likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) public interest considerations. See Naegele Outdoor Adver. Co. v. City of Jacksonville, 659 So.2d 1046, 1047 (Fla.1995); Smith Barney Shearson, Inc. v. Berman, 678 So.2d 376, 377 (Fla. 3d DCA 1996). The critical issue in this appeal concerns the burden which must be met by C & T in establishing a substantial likelihood of success in its challenge to the commission's decision rejecting C & T's bid protest.
In approaching this issue we first turn to provisions of the Dade County Code governing bid protest proceedings.
That section further provides, in subsection (e):
Subsection (f) provides that if the hearing examiner concurs in the county manager's recommendation, a two-thirds vote of the commission is required to take action other than the manager's recommendation; however, if the hearing examiner does not concur in the manager's recommendation, "the Commission shall decide the matter by majority vote."
C & T contends that by adopting these ordinances which provide for review of the county manager's decision by a hearing examiner, who then makes recommendations to the commission, the commission has "delegated" its decision-making authority to the hearing examiner, and that the commission is bound by the hearing examiner's findings and recommendation if supported by competent substantial evidence. Thus, C & T concludes, the issue before this court is whether the hearing examiner's finding—that the county manager's rejection of C & T as "not responsible" was "arbitrary and capricious"—was supported by competent substantial evidence. If so, C & T argues, the commission was not free to disregard the hearing examiner's decision and its action was therefore arbitrary and capricious. C & T urges that the commission's review is limited, thus similar in nature to an appeal.
We disagree with C & T's interpretation of the ordinance provisions and their application to the controversy before us. There is no specific language which can be reasonably interpreted as a "delegation" of the bid protest decision to the hearing examiner. In fact, the only specific direction as to the nature of the commission's review is found in the language of subsection (e): "The matter shall be resolved on the basis of the record before the hearing examiner and no evidence or issue which was not presented or raised at
C & T argues that the hearing examiner's findings and recommendation must be viewed as having binding effect on the commission; otherwise, it maintains, there would be no purpose in providing for a hearing before a hearing examiner and presentation of his findings and recommendations to the commission. Again, we disagree.
The county's position is strengthened by reference to another provision of the bid protest procedure in which the commission's authority is specifically limited. Subsection (a) of the ordinance, entitled "Responsiveness," requires certification by the County Attorney, before a hearing on any protest, that the bid or proposal in question is "responsive." This subsection then provides: "This Board and any committee thereof shall be bound by the determination of the County Attorney with regard to the issue of responsiveness." (emphasis added). We can safely assume, we believe, that if it had been intended that the commission "shall be bound" by the findings and recommendation of the hearing examiner presented in accordance with subsection (e), the drafter of the ordinance would have so stated.
Notwithstanding our disagreements with C & T's interpretation of the ordinance, we agree that where discretion is vested in a public agency for the award of contracts for public works on competitive bids, this discretion "`may not be exercised arbitrarily or capriciously but must be based on facts reasonably tending to support the conclusions reached by such agency.'" Wood-Hopkins Contracting Co., 354 So.2d at 450 (quoting City of Pensacola v. Kirby, 47 So.2d 533, 535-36 (Fla.1950)). In the seminal decision of Liberty County, the court explained the measure of discretion vested in a public agency in competitive bidding situations, stating:
421 So.2d at 507.
The above language was quoted and approved by the court in Groves-Watkins, as
Groves-Watkins, 530 So.2d at 913 (citation omitted).
In the early case of Willis v. Hathaway, 95 Fla. 608, 117 So. 89 (1928), in speaking of the authority and duty of the state road department with respect to the selection of responsible bidders, the Florida Supreme Court said:
Id. at 626-27, 117 So. at 94. Quoting the foregoing language with approval, the court in Culpepper v. Moore, 40 So.2d 366 (Fla. 1949), further elaborated upon the agency's authority when considering the "lowest responsible bid," as follows:
Id. at 370.
Considering the record and arguments before us in the light of the above standards, we conclude that while C & T's bid protest shows substantial disagreement with the action of the commission, it falls far short of a showing of arbitrary or capricious
Our decision regarding the correctness of the injunction would be no different even if we applied the standard of review urged by C & T. First, the hearing examiner made no credibility determinations, so that there were no factual findings which might be entitled to deference on the part of the commission. The reason for the rule, or at least one of the prime reasons binding a reviewing agency to factual findings by a hearing examiner in administrative proceedings is that the hearing examiner who has before him the witnesses whose demeanor and conduct may be observed, is in a better position to determine the truth of falsity of the evidence than is the reviewing body which must make such determination based on a typed transcript. See Huttoe, 38 So.2d at 820 (Fla.1949). Even a cursory review of the hearing examiner's three-page order reveals the absence of any basis for application of the standard of review urged by C & T. The hearing examiner's order recited, in part:
Following the above paragraphs, the order recites the rule of law to the effect that where discretion is vested in a public agency to award contracts on a competitive basis, the discretion may not be exercised arbitrarily or capriciously but must be based upon facts reasonably tending to support the conclusions reached by the agency, citing Marriott Corp. v. Metropolitan Dade County, 383 So.2d 662 (Fla. 3d DCA 1980). The next sentence reads: "Considering the foregoing, the Hearing Examiner concludes that, as to Church & Tower, all pertinent facts were not known by the County Manager in determining that Church & Tower was not a responsible bidder for this project."
With all respect, these so-called admissions by the county manager were irrelevant to the issue facing the commission, namely, whether the evidence before the hearing examiner revealed facts reasonably tending to support the existence of performance and billing irregularities on the part of C & T, or its subcontractors, or both, in the execution and supervision of the prior contract. C & T does not contend, nor could it reasonably do
In announcing his ruling at the hearing, the hearing examiner stated:
Again, at a later point, he emphasized, "I'm not ruling on the validity of any of the allegations," and "I don't intend to embellish these comments with all kinds of factual findings and things like that." True to his announced intention, in his written order the hearing examiner declined to resolve any of the accusations and counter-accusations on their merits, stating, in part in the first paragraph under the heading "Findings and Recommendations," the following:
These pronouncements by the hearing examiner and the language of his order provide ample basis for our conclusion that the commission's concurrence in the county manager's recommendation was not arbitrary and capricious. The hearing examiner's findings in no way purport to exonerate C & T with respect to the questionable performance and billing under the prior contract. To the contrary, the order itself confirms the existence of substantial problems that appeared to the hearing examiner to require, and in fact has required, the institution of separate litigation between C & T and the county.
Finally, we observe that with any human activity, especially a large construction project involving a great contribution of labor, capital and material, a certain level of errors and omissions requiring adjustment or correction is highly likely to occur. At a certain level, these problems can be and usually are tolerated and satisfactorily managed by the parties. At another level, however, the difficulties and problems may reach such magnitude as to become intolerable, at which point the usual methods of negotiation and correction are no longer adequate to reconcile the issues. Exactly when that point arrives is a judgment call in every case, and it may occur sooner or later, depending upon whether the matter involves private activity and private parties or public agencies and public business. What we have considered here is essentially a judgment call by the Dade County Commission which has not been shown to be based upon anything other than an honest exercise of its discretion. We reject C & T's contention that the commission has delegated a decision of this nature, which on its face is infused with policy considerations, to the hearing examiner. Under such circumstances, the law is clear that its decision "will not be overturned by a court even if it may appear erroneous and even if
Accordingly, the order of the court below dissolving the temporary injunction prohibiting the county from proceeding with the award of the contracts in question is AFFIRMED, and the order staying the order of dissolution is REVERSED.