Filing # 153564394 E-Filed 07/18/2022 08:34:01 PM
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`IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
`IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
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`BIRD RIDES, INC.,
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`Petitioner,
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` Case No.
`
`vs.
`
`CITY OF TAMPA,
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`*Petition Filed Pursuant to
` Fla. R. App. P. 9.100(f)
` and 9.190(b)(3)
`
`
`
`Respondents.
`__________________________________/
`
`PETITION FOR WRIT OF CERTIORARI FROM FINAL
`QUASI-JUDICIAL DECISION OF ADMINISTRATIVE BODY
`
`INTRODUCTION1
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`Petitioner Bird Rides, Inc. ("Bird") seeks a writ of certiorari quashing
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`the final quasi-judicial decision of Respondent City of Tampa (the "City")
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`issued June 16, 2022, denying Bird's administrative appeal of the City's
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`denial of Bird's bid protest. The City's decision is erroneous because (1) it
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`failed to afford Bird due process throughout the course of its bid protest and
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`administrative appeal thereof; (2) it departed from the essential requirements
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`of the law in refusing to consider any of Bird's arguments raised for the first
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`1 All references to the Appendix to this Petition are by page number (e.g.,
`[A1] references Appendix page 1).
`
`
`
`IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
`IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
`
`BIRD RIDES, INC.,
`
`Petitioner,
`
` Case No.
`
`vs.
`
`CITY OF TAMPA,
`
`*Petition Filed Pursuant to
` Fla. R. App. P. 9.100(f)
` and 9.190(b)(3)
`
`
`
`Respondents.
`__________________________________/
`
`PETITION FOR WRIT OF CERTIORARI FROM FINAL
`QUASI-JUDICIAL DECISION OF ADMINISTRATIVE BODY
`
`INTRODUCTION1
`
`Petitioner Bird Rides, Inc. ("Bird") seeks a writ of certiorari quashing
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`the final quasi-judicial decision of Respondent City of Tampa (the "City")
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`issued June 16, 2022, denying Bird's administrative appeal of the City's
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`denial of Bird's bid protest. The City's decision is erroneous because (1) it
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`failed to afford Bird due process throughout the course of its bid protest and
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`administrative appeal thereof; (2) it departed from the essential requirements
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`of the law in refusing to consider any of Bird's arguments raised for the first
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`1 All references to the Appendix to this Petition are by page number (e.g.,
`[A1] references Appendix page 1).
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`
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`time in the appeal; and (3) the City's denial was not supported by competent
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`substantial evidence.
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`Bird operates electric scooters in cities and counties around the world,
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`and it has operated in Tampa since January 2019. Earlier this year, seeking
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`to continue its operations in Tampa, Bird applied for Request for Proposal
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`#41100521, City of Tampa Shared Micromobility Program Phase II (the
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`"RFP"). After submitting a proposal, Bird was shortlisted along with three
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`other proposers: Skinny Labs d/b/a Spin ("Spin"), Neutron Holdings, Inc.
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`d/b/a Lime ("Lime"), and HELBIZ, FL, LLC ("Helbiz"). The City subsequently
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`issued a Notice of Intent to Award (the "Notice of Intent"), with Helbiz and
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`Spin as winners.
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`However, the City effectively chose to only send the Notice of Intent
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`the winning proposers—Helbiz and Spin. Critically, Bird and Lime did not
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`receive copies of the Notice of Intent from the City. Rather, Bird received a
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`copy of the Notice of Intent from someone else, on the day that bid protests
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`were due. When Bird raised the lack-of-notice issue and requested a five-
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`day extension of time to file its bid protest, the City denied the request for an
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`extension.
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`When Bird asked for documents to support its challenge, the City failed
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`to make timely and complete productions in response to Bird's public record
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`2
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`requests. As a result, Bird had no ability to support its substantive arguments
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`on how the City’s ranking of proposers was erroneous and why Bird should
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`have been granted a permit.
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`After the City denied Bird's bid protest, Bird appealed. Pursuant to the
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`City Code, a City-appointed hearing officer heard and decided the appeal.
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`The hearing officer denied the appeal (the "Denial"). Despite the City's
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`having already seriously handicapped Bird's ability to effectively challenge
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`the City's actions (by failing to provide adequate notice and then failing to
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`make a timely and adequate production of public records), the hearing officer
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`went one step further. The hearing officer found that Bird had waived any
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`arguments not raised in the bid protest, even those arguments that Bird could
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`not have raised at the time. This decision flies in the face of basic principles
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`of due process and is directly contrary to Florida law.
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`Moreover, the record before the hearing officer was devoid of
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`competent substantial evidence to support the Denial of the appeal, and
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`replete with competent substantial evidence to support reversal of the City's
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`decision on the bid protest. While Bird has raised a number of reasons why
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`the RFP process failed, any one of these would be enough to render the RFP
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`process arbitrary and capricious. Taken together, it is clear that this Court
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`3
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`must quash the hearing officer's Denial, and City must re-compete the
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`procurement.
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`BASIS FOR JURISDICTION
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`This Court has jurisdiction pursuant to article V, section 5(b) of the
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`Florida Constitution and Florida Rules of Appellate Procedure 9.100(c)(2)
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`and 9.190(b)(3). Florida courts utilize petitions for a writ of certiorari in
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`reviewing quasi-judicial actions of local governments. See Broward Cnty. v.
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`G.B.V. Int'l, Ltd., 787 So. 2d 838 (Fla. 2001); Bd. of Cnty. Comm'rs of Brevard
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`Cnty. v. Snyder, 627 So. 2d 469, 474-75 (Fla. 1993).
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`The City's Denial is a quasi-judicial final decision. See De Groot v.
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`Sheffield, 95 So. 2d 912, 915 (Fla. 1957) ("[W]hen notice and a hearing are
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`required and the judgment of the board are contingent on the showing made
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`at the hearing, then its judgment becomes judicial or quasi-judicial as
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`distinguished from purely executive."); City of Tampa Code § 2-282(f)(5)(f),
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`(decision is final).2 It is therefore reviewable by certiorari to circuit court as a
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`matter of right. See Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So.
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`2d 195, 198-99 (Fla. 2003) (citing Fla. Power & Light Co. v. City of Dania,
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`2 Section 2-282 and other provisions of the City Code referenced herein are
`available
`at
`https://library.municode.com/fl/tampa/
`codes/code_of_
`ordinances?nodeId=COOR_CH2AD_ARTVFI_DIV3PUCO_S2-282PRPRPR.
`4
`
`
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`761 So. 2d 1089, 1092 (Fla. 2000)); G.B.V. Int'l, 787 So. 2d at 843 (noting
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`"first-tier certiorari review is not discretionary but rather is a matter of right").
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`STATEMENT OF FACTS
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`A.
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`Factual Background.
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`Bird is a tech-driven mobility company that operates electric scooters
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`in cities and counties around the world. [A2] Bird was one of the first scooter
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`companies to operate in Tampa, and was part of the City's scooter pilot
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`program. [A3] Bird has provided nearly one million eco-friendly rides to
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`residents and visitors since January 2019. [A1] This certiorari proceeding
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`involves Bird's proposal to continue its presence in Tampa.
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`This certiorari proceeding is not the first time that Bird has identified
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`issues with the City's procurement process for the scooter program. In 2018,
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`the City issued a Request for Applications ("RFA") for the scooter pilot
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`program. [A3] Bird applied. Id. After the City initially rejected Bird's
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`application for not including the City's own RFA materials, Bird filed a protest.
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`Id. The City's Director of Purchasing denied the protest, and Bird appealed.
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`Id. Eventually, the City cancelled and re-issued the RFA. Id. Later, the City
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`accepted Bird, and Bird went on to successfully operate as part of the pilot
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`program. Id.
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`5
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`The City again encountered issues in 2020, when it issued an initial
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`RFP for "Phase II" of its scooter program. [A221] Bird applied but was not
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`selected. [A224] Noting significant irregularities and errors in the RFP, Bird
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`filed another bid protest, which the City's Director of Purchasing again
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`denied. Id. Bird challenged the denial. Id. After a contested hearing, Bird
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`prevailed, the hearing officer reversed the award and instructed the City to
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`re-compete the procurement. [A233] It is the subsequently re-issued RFP
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`that forms the basis for this Petition.
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`B.
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`The Re-issued Phase II RFP.
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`On September 3, 2021, the City re-competed the procurement for
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`Phase II of the scooter program in the RFP #41100521 for "Shared
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`Micromobility Program Phase II" as to "Single Rider Vehicles (SRV)" e-
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`scooters (the "RFP"). [A27-97] The RFP included an addendum issued by
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`the City on September 30, 2021. [A92-97]
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`1.
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`Terms of the Phase II RFP
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`The RFP provided that the City would select the top two proposals,
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`based on a numerical scoring system. [A32] According to the RFP, a
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`"Proposal Evaluation Committee will be established to review and evaluate
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`all proposals submitted . . . on the basis of the information provided and other
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`evaluation criteria as set forth in this RFP." [A44] The RFP then provides,
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`6
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`that in the end, "the contract will be awarded to the most qualified Successful
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`Proposer per the evaluation criteria listed below." Id.
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`The RFP also allocated twenty percent of the overall scoring to an
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`evaluation of Women/Minority Business Enterprise ("WMBE") and Small
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`Local Business Enterprises ("SLBE") participation. Id. The RFP stated
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`"[d]uring the evaluation of proposals for WMBE and SLBE participation, the
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`Equal Business Opportunity Office [(the "EBO")] will be responsible for
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`assigning the points under these criteria." [A45] The RFP did not say that a
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`single staff person in the EBO would be the exclusive evaluator of the EBO
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`component. See id.
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`According to the RFP, "one to fifteen rating points may be awarded
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`when the Proposer is not a City of Tampa certified WMBE/SLBE prime
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`contractor but utilizes either Underutilized WMBE and/or SLBE certified
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`firm(s) as sub-contractors/consultants and assigned to perform meaningful
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`segments of the contractual services detailed herein and documented on the
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`enclosed MBD Form 10-20." [A62 (emphasis omitted)] The evaluation of
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`WMBE/SLBE participation includes, but is not limited to, the following
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`criteria:
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`• Diversity of WMBE/SLBE subcontractors listed to be utilized (MBD
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`Form 20);
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`7
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`• Percentage of proposal/scope committed
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`to WMBE/SLBE
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`subcontracting;
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`• The collective factors in determining the total points awarded will be
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`based on the overall weight of evidence in the proposal that
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`specified the participation.
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`[A63]
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`The EBO has promulgated at least five forms that are relevant here:
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`• MBD-10, which shows the extent to which subcontractors are
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`solicited [A51];
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`• MBD-20, which shows the extent to which subcontractors have
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`committed [A53];
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`• MBD-40, which is a form Letter of Intent that says, "A Letter of
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`Intent is required for each WMBE/SLBE listed on the Schedule
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`of Subcontractors to be Utilized (MBD 20 Form)" [A57];
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`• MBD-70, which contains "Procurement Guidelines to Implement
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`Minority & Small Business Participation" [A61];
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`• MBD-71, which contains "EBO Guidelines for Evaluation Points
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`on RFP and CCNA Proposals" [A62].
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`8
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`2.
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`DemandStar
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`The RFP also included references to "DemandStar," an online
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`contracts administration software platform that the City uses, in part, to
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`facilitate its RFP processes. [A1579] "DemandStar" allows interested
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`vendors to become a "Watcher" of an RFP, or download an RFP as a "Plan
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`Holder." [A1580-81] According to the City, "Watchers" and "Plan Holders"
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`receive notifications when documents are uploaded to the "DemandStar"
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`system. Id. It is free to be a "Watcher," but there is a fee to become a "Plan
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`Holder." Id.
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`The RFP mentioned the DemandStar platform in Section 7.1, its
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`general conditions section, as follows:
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`City of Tampa Request for Proposals are issued electronically
`via DemandStar's eProcurement bid distribution system.
`Obtaining Request for Proposals through Demandstar will
`ensure that vendor will have the following capabilities: receipt of
`Request for Proposals electronically, track the status of award
`activity, receive addenda, be certified as a minority vendor to
`meet the City of Tampa's minority certification requirements,
`receive the results of awards and view plans and blueprints
`online electronically. Vendors who obtain specifications and
`plans from sources other than Demandstar are cautioned that
`the Request for Proposal packages may be incomplete.
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`[A37] The RFP does not say that being a "Plan Holder" on "DemandStar" is
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`the only way that proposers may be informed of awards, or that "Watchers"
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`9
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`will not receive the same notifications as "Plan Holders." Section 7.1 of the
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`RFP does not even mention "Plan Holders."
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`The RFP again mentions DemandStar in sections 7.2 and 7.3, but only
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`in the context of addenda to the RFP issued prior to the bid opening date:
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`If it becomes necessary to review or amend any part of the RFP,
`DemandStar will provide notification of the Addendum to all
`prospective Proposers who received an original RFP from
`DemandStar (Those who are on the Plan Holders List). Addenda
`will be posted and disseminated by DemandStar at least five
`days prior to the bid opening date. . . .
`
`the Proposer to Contact
`the responsibility of
`It will be
`DemandStar prior to submitting a proposal to ascertain if any
`addenda have been issued, to obtain all such addenda, and to
`return the executed addenda with the proposal.
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`[A37 (emphasis added)]; [A38] The RFP does not make any further mention
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`of DemandStar, much less state that notices of awards will be exclusively
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`provided to Plan Holders.
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`Instead of Bird paying a fee to download the RFP and materials from
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`DemandStar, Bird received the RFP directly from the City. In fact, the City
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`directly solicited Bird to apply by sending it the RFP and other materials via
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`email. [A1418] The City also directly solicited Lime. [A1466] When the City
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`solicited Bird and Lime, no one at the City told Bird and Lime that they would
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`not receive a copy of the Notice of Intent to Award unless they paid a fee to
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`10
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`"DemandStar"—and that requirement was certainly not part of the RFP.
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`[A1418, 1466, 1479-80]
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`Bird registered to receive alerts in DemandStar as a Watcher. [A1581]
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`Because Bird did not download the RFP directly from DemandStar, it did not
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`(and could not) register to receive alerts as a Plan Holder. [A1580-81]
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`The City continued to send Bird and other applicants communications
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`via email throughout the RFP process. [A1418, 1466, 1479-80] Among other
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`things, the City emailed addenda to applicants, and did not provide such
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`addenda exclusively through DemandStar to listed Plan Holders. Id.
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`C.
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`The Notice of Intent to Award.
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`Bird made a timely and complete proposal, along with six other
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`competitors, including Spin, Lime, and Helbiz. [A236-1075, 1157-1324]
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`Eventually, the City "shortlisted" four of the applicants: Bird, Spin,
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`Lime, and Helbiz. [A1573] The shortlisted applicants were allowed to present
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`to the City in January 2022. [A1473, 1574]
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`On March 22, 2022, the City issued a Notice of Intent to Award (the
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`"Notice of Intent"), reflecting that the City's Director of Purchasing, along
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`with evaluation committee staff, had recommended to award the RFP to
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`Helbiz and Spin. [A99] The Notice of Intent stated that any protests were due
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`11
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`by 4:30 PM, five business days after the "first posting" of the Notice of Intent.
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`Id.
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`The City distributed the Notice of Intent exclusively to registered Plan
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`Holders in DemandStar (i.e., Helbiz and Spin). [A1418, 1467, 1479-80, 1579-
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`80] Those registered as Watchers in DemandStar, including Bird and Lime,
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`did not receive the Notice of Intent. Id. The Notice of Intent was not sent via
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`email or any other mode of communication. Id. The City did this despite the
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`fact that it had communicated with Bird almost exclusively via email
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`throughout the RFP process, including providing Bird with notices, addenda,
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`and the RFP itself via email. Id. In effect, the City sent the Notice of Intent
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`only to the successful proposers.
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`As a result, Bird never received the Notice of Intent from the City.
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`[A1418] Lime, the only other unsuccessful shortlisted proposer, likewise
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`never received the Notice of Intent from the City. [A1467]
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`It was not until the morning of March 29, 2022, that Bird received a
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`copy of the Notice of Intent from one of the other applicants. [A1417] The
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`deadline for bid protests expired that same day at 4:30 PM. [A99]
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`D. Bird's Bid Protest
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`Upon receiving the Notice of Intent, Bird quickly requested a five-day
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`extension of time to file the protest, which the City denied. [A20, 1711] Bird
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`12
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`also
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`filed a
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`timely public records request
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`for all correspondence,
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`submissions, and scoring information regarding the RFP. [A1138] The City
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`provided Bird with minimal documents that did not satisfy the scope of Bird's
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`request. Id.
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`Within hours, and despite the minimal information provided by the City,
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`Bird was able to scramble and file a bid protest (the "Bid Protest"). [A18-25]
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`Lime also received a copy of the Notice of Intent on March 29, 2022, but was
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`unable to submit a bid protest by the close of business. [A1427]
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`In its Bid Protest, Bird did the best it could—given the limited time and
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`information—to raise whatever arguments it could muster; but Bird did not
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`have the time or information to conduct a detailed analysis. Bird raised the
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`lack of notice, and argued that several aspects of the process were arbitrary
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`and capricious. [A18-25] Bird argued that the City's Proposal Evaluation
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`Committee improperly delegated 20% of the evaluation to a single individual
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`in the EBO. [A21] Bird also argued that certain scores it received should be
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`thrown out, as they demonstrated that one of the evaluators was biased,
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`ostensibly after Bird had pushed back on his solicitations to contribute to a
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`non-profit. Id. Bird further argued that the City arbitrarily awarded additional
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`points for certain equipment features (i.e., 12-inch versus 10-inch wheels)
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`based solely on unattributed opinions that lacked any factual basis, and
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`13
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`failed to award it a fair amount of points for its experience with the pilot
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`program. [A22] Lastly, Bird argued that the RFP and its addenda were
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`ambiguous in the qualifying WMBE industry category. Id.
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`E.
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`The Bid Protest Denial.
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`On May 5, 2022, the City's Director of Purchasing, Gregory Spearman,
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`denied Bird's Bid Protest (the "Bid Protest Denial"). [A1076-81] Mr.
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`Spearman stated in the Bid Protest Denial that Bird's lack of notice of the
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`Notice of Intent was Bird's own fault, as it did not follow the instructions in
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`Section 7.1 of the RFP. [A1077] He rejected Bird's challenge to the
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`delegation of points to a single individual in the EBO because Bird did not
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`object to the RFP when it was published, and RFP Section 15.2 stated
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`generally that EBO would assign those points. [A1078]
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`Mr. Spearman also rejected Bird's assertion of bias by evaluators for
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`lack of support, and stated that Bird had waived any challenge to outlier
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`scores because it did not previously raise the RFP's failure to provide a
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`method to address such scores. Id. Mr. Spearman incorrectly stated,
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`however, that Bird "refused to participate in" the Keep Tampa Bay Beautiful
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`initiative. Id.
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`He further rejected Bird's challenge to the City's wheel size preference,
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`and noted that, under RFP Section 7.2, any addenda would control in the
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`14
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`event of a conflict with the RFP itself. [A1079-80] Mr. Spearman generally
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`stated that Bird's challenges were largely to the specifications of the RFP
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`itself, and therefore should have been raised when the RFP was published.
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`[A1081]
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`That same day, Bird requested an extension of time to file its
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`administrative appeal with the City, but the City immediately denied the
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`request. [A1627, 1708]
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`F. Bird's Public Records Requests to the City.
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`In support of its bid protest, Bird submitted additional public records
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`requests to the City, but received either an incomplete response or no
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`response at all. For example, on May 10, 2022, Bird sent a follow-up request
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`to the City for all "EBO documents in their possession—particularly any
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`communications with anyone in the EBO." [A1138] The City responded that
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`all such documents have been produced, even though it had not yet
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`produced the email transmitting the EBO scores to the procurement
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`department. [A1141]
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`G. Bird's Appeal of the Bid Protest Denial.
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`On May 10, 2022, Bird timely filed a Request for Appeal with the City,
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`challenging the Bid Protest Denial (the "Appeal"). [A1-17] In its Appeal, Bird
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`re-raised the arguments in its Bid Protest, and added further detail and
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`15
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`argument. See [A4-5 (raising lack of notice of the Notice of Intent)]; [A5-6
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`(raising improper delegation to EBO)]; [A10 (raising ambiguity in the
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`qualifying WMBE industry category)]; [A10-11 (raising wheel diameter
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`issue)]. It examined in detail the disproportionate scores exhibiting bias, and
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`explained how they changed the result. [A6-10]
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`Bird also raised additional issues related to these arguments. It argued
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`that the EBO process was flawed as a matter of basic arithmetic, as it
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`compared percentages calculated using different denominators for each
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`proposer (an apples to oranges comparison), and ignored RFP directions
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`regarding "TBD" responses. [A11-13] Bird also argued that only one of the
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`City evaluators used a detailed scoring rubric, and there was at least one
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`arithmetic error in the scoring. [A13] Accounting for all of these errors, Bird
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`should have come in second place. [A16]
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`Bird further argued that there had been a "cone of silence" violation
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`(i.e., a prohibited communication with the City during the solicitation period)
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`when a contractor associated with Spin contacted the City during the
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`evaluation process (thereby disqualifying Spin from a contract), and that the
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`City failed to provide timely and complete responses to Bird's public records
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`requests, hampering Bird's ability to appeal. [A16]
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`16
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`H. Hearing on Bird's Appeal
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`A City-appointed hearing officer, James Mathieu, Jr., heard Bird's
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`Appeal on June 9, 2022, (the "Hearing Officer"). The Hearing Officer heard
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`argument from Bird, Lime, Helbiz and the City, and heard testimony from
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`several witnesses.
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`1.
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`DemandStar and the Notice of Intent to Award
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`Bruno Lopes, Bird's Government Partnerships Senior Manager for the
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`Southeast U.S., testified for Bird concerning the City's communications.
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`[A1417-21] He provided unrebutted testimony that all notices from the City
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`in this RFP process came by email. Id. He stated that when he came aboard
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`in March 2022, the "cone of silence" was already in effect, but he was
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`responsible for monitoring the remainder of the process. [A1421]
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`Sara Shapiro, Lime's Head of Market Development, testified as Lime's
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`corporate representative. [A1464] She provided unrebutted testimony that
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`the City's standard practice in this RFP process had been communication
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`via e-mail, including the RFP, addenda and all other notices apart from the
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`Notice of Intent. [A1466-67] She also testified that Lime had no reason to
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`believe the City would deviate from its established communication method.
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`Id.; [A1479]
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`17
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`The City argued in response that both Lime and Bird were seeking
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`"preferential" treatment. [A1536-37] The City referred to Bird's arguments as
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`not being "in good faith," and "not serious arguments," and stated that Bird
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`was trying to "forensically engineer a position that would be successful for
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`them." [A1538, 1542, 1550-52]
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`Ivette Rosario, a Procurement Analyst with the City, confirmed that
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`only Plan Holders who downloaded the RFP received Notice of the Intent via
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`DemandStar. [A1579-80] To become a Plan Holder, proposers had to sign
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`up with DemandStar and download the RFP as a "Plan Holder," which
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`required payment of a fee. Id. Monitoring the RFP as a Watcher was free. Id.
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`When the City checked the DemandStar system, it was able to confirm that
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`Bird was indeed registered with DemandStar and is on the list to receive all
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`notifications from the City. [A1581] However, Bird did not download the RFP
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`in the DemandStar system as a Plan Holder of the RFP document, and
`
`therefore was not registered as a Plan Holder. Id.
`
`2.
`
`Public Records Requests
`
`During the hearing, Bird offered unrebutted evidence of the following
`
`public records requests and responses:
`
`18
`
`
`
`March 29, 2022
`Request to Mr.
`Spearman
`April 13, 2022 Follow
`up to Mr. Spearman
`April 18, 2022 Follow
`up to Mr. Spearman
`April 19, 2022
`Request to Gregory
`Hart
`May 8, 2022 Follow up
`to Mr. Hart
`May 10, 2022 Request
`to Mr. Spearman,
`following up on
`request to Mr. Hart
`May 12, 2022 Request
`to Mr. Spearman
`
`Bird has not received all responsive documents,
`including an email just received this week from
`Lime.
`Bird has not received all responsive documents,
`in spite of the City's assurance that it has.
`Bird has not received all responsive documents,
`in spite of the City's assurance that it has.
`Bird never received a response, not even an
`acknowledgment.
`
`Bird never received a response, not even an
`acknowledgment.
`Bird has not received any documents.
`
`Bird has not received a response.
`
`[A1359] The City offered no evidence or testimony to rebut this.
`
`Ms. Rosario testified that the Evaluation Committee Members were
`
`given two rubrics for evaluating the proposals. There was a scoring sheet
`
`prepared by the City that tracked the RFP categories; and there was another
`
`detailed tabulation sheet created by one of the reviewers, Calvin Thornton.
`
`[A1574] According to Ms. Rosario, the detailed tabulation sheet was created
`
`to help all committee members, but it was not required to be turned in. All
`
`members were required to turn in the form prepared by the City (i.e., not Mr.
`
`Thornton's sheet) to evaluate each proposer. [A1573-74]
`
`19
`
`
`
`3.
`
`EBO Evaluation
`
`Gregory Hart, Managing Director for EBO, testified for the City. [A1584]
`
`He addressed Form MBD-20 and stated that the City took the form into
`
`consideration, although it was not signed, attested, or dated. [A1592]
`
`When questioned about the standards and criteria that Mr. Hart applied
`
`to his evaluation of the proposers' MBD-20s, Mr. Hart testified that he used
`
`his personal experience with the subcontractors to make judgment calls
`
`about how seriously the proposers were taking their obligations. Specifically,
`
`he said:
`
`Q. At its core, is this kind of analysis something that anyone in
`the City can just eyeball?
`
`A. Not at all.
`
`Q. And why is that?
`
`A. That is because you're going to want to know the scope of
`the work to be performed, the firms that are vetted and
`validated as being certified as an underutilized company,
`and their particular primary and secondary trade and
`whether or not it aligns with the contract.
`
`And so, you have to understand underutilization under
`disparity rules and how that proposer is utilizing that firm.
`Are they going to be performing core aspects of the work? Like,
`are they going to do scooter repairs? Are they going to provide
`scooter parts? Or, are they simply being secured as a team
`member to provide janitorial services in the office or a hot dog
`stand on opening day of a new scooter apparatus?
`
`20
`
`
`
`So we look at a number of variables to determine the veracity
`and the meaningfulness of the utilization and does it meet the
`City's objective and requirement to address underutilization.
`
`…
`
`Once again, when looking at the scope of services to be provided
`under the contract and the type of firms that -- subconsultants
`and subcontractors to be utilized, we can easily determine
`whether or not that trade discipline has a substantial or a
`meaningful role, be it on the front end of the contract or not at all.
`
`And so, one can conclude with some sort of factual expertise,
`if you will, whether a firm is going to provide a relevant role in the
`contract because of its discipline and how it's going to be used.
`
`[A1589, 1593] (emphasis added). He said that he cannot train others to do
`
`the evaluation he does. See id. He has to "eyeball" the applications. See id.
`
`He testified that he—and he alone—could "eyeball" the names on the list
`
`and determine how many points should be awarded. See id. He said that he
`
`can look at the type and names of the subcontracting firms and "easily
`
`determine" whether they will have a substantial or meaningful role. See id.
`
`I.
`
`The Denial of Bird's Appeal.
`
`Following the hearing, the parties submitted proposed orders to the
`
`Hearing Officer. [A1599-1689]
`
`The Hearing Officer rendered a final decision affirming the Bid Protest
`
`Denial and denying Bird's Appeal of that decision (the "Denial"). [A1690-
`
`1707] The Hearing Officer declined to consider the bulk of Bird's arguments
`
`21
`
`
`
`as not properly preserved. Specifically, he declined to address any of Bird's
`
`new arguments raised in the Appeal, that were not raised in the Bid Protest.
`
`[A1700, 1707] The Hearing Officer held that Section 2-282 of the City Code
`
`excluded "consideration of any new grounds or evidence not included in the
`
`protest." [A1707] This included Bird's arguments concerning the "cone of
`
`silence" violation, its public records requests, and the flaws in the EBO
`
`scores. [A1705] The Hearing Officer also held that any potential violations of
`
`Florida's public records laws was outside his scope of review. [A1706]
`
`The Hearing Officer further held that Bird had waived its argument
`
`concerning DemandStar and lack of due process, incorrectly suggesting that
`
`it was not raised in the Bid Protest. [A1700]; [A20 (challenging service of the
`
`Notice of Intent through DemandStar as infringing on due process)]
`
`Nonetheless, the Hearing Officer held that the City reasonably exercised its
`
`discretion and "did not lull proposers into inaction." [A1700] He found Ms.
`
`Shapiro's testimony for Lime and Mr. Lopes' testimony for Bird "not
`
`persuasive." Id.
`
`The Hearing Officer did consider some issues. He held that there was
`
`no ambiguity as to the qualifying WMBE industry category: "Question 46 of
`
`Addendum No. 1 . . . modified Section 7.9 of the RFP and MBD Form 71,
`
`and clarified that the underutilized WMBE Industry Category was 'Non-
`
`22
`
`
`
`Professional Services.'" [A1697, 1702] He also rejected Bird's bias
`
`allegations as speculative, and held that Bird had presented no evidence to
`
`the contrary. [A1702]
`
`This timely Petition follows.
`
`I.
`
`STANDARD OF REVIEW.
`
`ARGUMENT
`
`Because Bird is entitled as a matter of right to seek review in this Court
`
`from the City's quasi-judicial administrative action, this Court must determine
`
`whether the City (1) afforded Bird procedural due process, (2) observed the
`
`essential requirements of law, and (3) made a decision supported by
`
`competent substantial evidence. G.B.V. Int'l, 787 So. 2d at 843; Sarasota
`
`Cty. v. BDR Invests., L.L.C., 867 So. 2d 605, 607 (Fla. 2d DCA 2004) (citing
`
`Fla. Power & Light Co., 761 So. 2d at 1092)).
`
`The City's Denial must satisfy all three prongs. See G.B.V. Int'l, 787
`
`So. 2d at 843. In other words, Bird need only show that the City failed on one
`
`of these prongs to be entitled to certiorari relief. As demonstrated below,
`
`however, the City failed on all three.
`
`23
`
`
`
`II.
`
`THE CITY DEPRIVED BIRD OF PROCEDURAL DUE PROCESS BY
`(1) FAILING TO PROVIDE BIRD WITH ADEQUATE NOTICE OF ITS
`NOTICE OF INTENT TO AWARD, AND (2) FAILING TO MAKE A
`TIMELY OR COMPLETE PRODUCTION IN RESPONSE TO BIRDS'
`PUBLIC RECORDS REQUESTS IN SUPPORT OF ITS APPEAL.
`
`Procedural due process requires reasonable notice and a fair
`
`opportunity to be heard. Joshua v. City of Gainesville, 768 So. 2d 432, 438
`
`(Fla. 2000); Housing Authority of the City of Tampa v. Robinson, 464 So. 2d
`
`158, 164 (Fla. 2d DCA 1985). The City afforded Bird neither.
`
`The City chose to send the Notice of Intent in such a way that it was
`
`only received by the winning proposers—Helbiz and Spin. [A A1418, 1467,
`
`1479-80, 1579-80] Then, when the lack of notice to Bird and Lime came to
`
`light, the City denied requests for an extension of time and failed to make a
`
`timely and complete production in response to public record requests. [A20,
`
`1138, 1359, 1708, 1711] Having seriously handicapped Bird's ability to
`
`effectively challenge the City's actions, the City then went one step further
`
`and found that Bird waived any arguments not raised in the Bid Protest,
`
`including arguments based on documents the City had not yet produced
`
`despite Bird's requests.
`
`Taken together, these actions have stymied Bird's ability to make a
`
`substantive bid protest, in violation of Bird's procedural due process rights.
`
`See Richard v. Bank of America, N.A., 258 So. 3d 485, 489 (Fla. 4th DCA
`
`24
`
`
`
`2018) ("Generally due process requires fair notice and a real opportunity to
`
`be heard and defend in an orderly procedure before judgment is rendered")
`
`(citation omitted).
`
`A.
`
`The City Failed to Provide Reasonable Notice of the Notice
`of Intent to Award.
`
`The facts here are undisputed: the Notice of Intent was not sent to Bird.
`
`[A1418, 1467, 1479-80, 1579-80] Not only did Bird not receive notice, the
`
`only other unsuccessful bidder (Lime) also did not receive notice, meaning
`
`that only the RFP winners received notice. Id. And, critically, only the winners
`
`knew tha
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