17-004509BID Boston Culinary Group, Inc., D/B/A Centerplate vs. University Of Central Florida Status: Closed DOAH Final Order on Thursday, January 10, 2019.

Summary: Vendor sucessfully challenging ITN award proved University participation in proceeding was for an improper purpose. Fees and costs awarded.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOSTON CULINARY GROUP, INC.,

d/b/a CENTERPLATE,

Petitioner,

vs. Case No. 17 - 4509BID

UNIVERSITY OF CENTRAL FLORIDA,

Respondent.

_______________________________/

FINAL ORDER AWARD ING FEES AND COSTS

Administrative Law Judge John D.C. Newton, II, of the

Division of Administrative Hearings, conducted the final hearing

in this matter on October 25, 2018, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Cindy A. Laquidara, Esquire

Thomas OÓNeal Ingram, Esquire

Allison M. Stocker, Esquire

Akerman LLP

50 North Laura Street , Suite 3100

Jacksonville, Florida 32202

For Respondent: Michael D. Crosbie, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

A. Is Petitioner, Boston Culinary Group, Inc., d/b/a

Centerplate (Centerplate), entitled to an award o f attorneysÓ

fees and costs under Florida Board of Governors Regulation (BOG

Reg.) 18.002(22)?

B. If Centerplate is entitled to an award of fees and

costs, what amount should be awarded?

PRELIMINARY STATEMENT

This is a dispute about which vendor will rece ive a contract

of up to ten years to provide concessions services to facilities

located at the University of Central Florida (University).

Centerplate held the contract for ten years. After going through

an Invitation to Negotiate (ITN) process, the Univ ersity decided

to award the contract to Ovation Food Services, L.P., d/b/a

Spectra Food Services and Hospitality (Spectra). Centerplate

protested that intended decision.

Centerplate requested a formal administrative hearing on its

protest. The Universi ty referred the matter to the Division of

Administrative Hearings (Division) to conduct the hearing. After

conducting an evidentiary hearing and considering the partiesÓ

proposed recommended orders, the undersigned rendered a

Recommended Order recommendin g that the University declare the

Intent to Award invalid and reject all proposals. On February 1,

2018, the University issued its Final Order accepting the

Recommended Order and adopting it in full. None of the parties

appealed the Final Order.

The Reco mmended and Final Orders reserved jurisdiction to

consider the issue of attorneysÓ fees and costs if the parties

were unable to resolve them. The parties did not reach

agreement.

The undersigned conducted a hearing on the fees and costs

issues on October 25, 2018. Centerplate presented testimony from

M. Christopher Bryant, Esquire, who provided credible and

persuasive opinion testimony on the subject of reasonable and

customary hourly rates, the reasonableness of hours expended by

CenterplateÓs attorneys, and the quality of the legal services

provided. The University did not offer any testimony to rebut

Mr. BryantÓs testimony. 1/ Joint Exhibits 1 through 30 were

admitted into evidence.

The parties did not order a transcript. At the hearingÓs

conclusion , the parties were given an opportunity to file

proposed recommended orders within ten days of the date of the

hearing. Each party obtained an unopposed extension of time for

filing proposed recommended orders. Each party timely filed a

proposed recommen ded order. The proposed recommended orders have

been con sidered in preparation of this R ecommended O rder.

FINDING S OF FACT

1. The Recommended Order details a pattern of conduct by

the University to knowingly, deliberately, and surreptitiously

involve B rian Hixenbaugh, a representative of the chosen vendor,

Spectra, in developing the ITN. The Recommended Order is adopted

and incorporated by reference in this O rder. It supports a

finding that the University participated in this proceeding for

an imprope r purpose.

2. From the outset of the ITN drafting process, University

participants were aware that University of Central Florida

Rules 7.130(10) and 7.130(6)(c) prohibited involvement of a

would - be vendor in development of an ITN to which the vendor

wou ld be responding. Nonetheless, University participants

maintained Mr. HixenbaughÓs involvement, sought to minimize it,

and even sought to obtain cover from in - house counsel by

describing the issue of Mr. HixenbaughÓs involvement less than

accurately in a request for guidance.

3. The University continued the pattern of favoring Spectra

to the very end of the process. This included giving Spectra

representatives a walk - through of the facilities before a

negotiation session. It also included discussing ways to avoid

Centerplate remaining in place during any challenge to the ITN

decision. The University ultimately elected to circumvent BOG

R eg. 18.002(7), requiring the University to stop the contract

award process until a protest is resolved, by using th e artifice

of having closely related entities contract with Spectra to

provide services during the protest proceedings after

CenterplateÓs contract ended.

4. Centerplate is the P etitioner. Nevertheless, it is

engaged only because the University mainta ined and pursued the

improper purpose of awarding a contract in violation of its own

rules and the terms of its ITN. The improper purpose includes

efforts to delay the consequences of the UniversityÓs inclusion

of Mr. Hixenbaugh in the ITN process and the frivolous purpose of

supporting what the University knew from the outset was a tainted

procurement process.

5. Centerplate seeks an award of $140,769.90 in attorneysÓ

fees and costs of $4,809.68.

6. The law firm Akerman LLP represented Centerplate i n this

matter. Cindy Laquidara, Allison Stocker, and Thomas Ingram

represented Centerplate in this proceeding. All three are

skilled and experienced lawyers.

7. Ms. Laquidara has 35 years of litigation and trial

experience. Martindale Hubbell rates he r as a preeminent lawyer.

Martindale Hubbell has also honored her with its Preeminent

Judicial Award in 2016 and 2018. Florida Trend recognized

Ms. Laquidara as one of FloridaÓs Legal Elite each year from 2007

to 2016. Ms. LaquidaraÓ s practice includes representation of

parties in bid protests. She graduated magna cum laude from

Boston College Law School where she served as Managing Editor and

Articles Editor for the Law Review. An hourly rate of $500.00

for Ms. Laquidara is reasonable.

8. Ms. Stock er is a litigation associate with nearly eight

years of experience in commercial disputes. Florida Trend

recognized her as one of its Florida Legal Elite in 2017 and

2018. An hourly rate of $315.00 for Ms. Stocker is reasonable.

9. Mr. Ingram has 19 ye ars of experience as a lawyer and

regularly handles administrative law matters along with his land

use practice. An hourly rate of $395.00 is reasonable for

Mr. Ingram.

10. Counsel in this matter operated under severe time

pressures imposed by BOG R eg. 18.002(13). That rule requires the

hearing on a formal protest to be conducted within 40 days after

filing of the protest. The University exacerbated the time

pressure by not referring CenterplateÓs protest, filed July 31,

2017, for hearing until August 8, 2017. This delayed the

availability of discovery tools needed to identify and examine

the ITN development and response review processes.

11. In the 30 days between referral of the matter and the

accompanying availability of discovery to the start o f the

hearing, counsel for Centerplate had to prepare for, conduct, and

defend depositions; review tens of thousands of pages of

documents; listen to sound files; prepare for hearing; and

conduct a hearing. This short time period and the intensity of

work involved required use of multiple attorneys and support

personnel. It required two attorneys at some depositions, one

conducting the deposition while the other reviewed documents

presented at the start of the deposition. This is a

manifestation of the f act that preparing and trying complex cases

within a very short time period requires more work and time than

if the litigation moved at a more leisurely pace.

12. While discovery and hearing preparation were ongoing,

counsel for Centerplate also had to research the governing law

and respond to discovery.

13. After the hearing, counsel had to prepare a proposed

recommended order with in 43 days.

14. Bid disputes are not run - of - the - mill litigation. They

are specialized proceedings requiring litigation expertise and

are conducted in demanding circumstances. They also require

familiarity with the proof and burden requirements unique to bid

disputes along with understanding the complexities of the

specific business involved in the matter.

15. Centerp lateÓs counsels Ó billing records are clear and

sufficiently detailed to determine the reasonableness of the time

reported.

16. Th e billing records include block - billing entries. In

block - billing, all of a lawyerÓs activities for a period are

listed toge ther with one time total. Block billing is an

acceptable form of billing when accompanied by sufficient detail.

The block billing by CenterplateÓs counsel provides sufficient

detail.

17. A lso , although the reported fees of $155,416.00 are

reasonable, th e discount ensures the reasonableness of the fees.

18. The total number of hours claimed for the services of

the three lawyers, their hourly rates, and the total fees claimed

are listed below. In addition, counsel provided a courtesy

discount to Centerp late, which is also reflected in the fees

claimed in this proceeding. The hours claimed, like the rates,

are reasonable. The claimed total amount of fees of $140,769.90

is reasonable, subject to the considerations in F inding of Fact

20.

19.

Attorney Name Total Number of Hourly Rate Total Amount of

Hours Fees

Cindy A. 121.6 $500 $60,800.00

Laquidara

Allison M. 176.1 $315 $55,471.50

Stocker

Thomas O. 99.3 $395 $39,144.50

Ingram

TOTAL 397 $155,416.00

Net of 10% $140,769.90

courtesy

discount

20. Th e September 5, 2017, entries for Ms. Stocker and

Ms. Laquidara include block - billing entries that report travel

time. Ms. StockerÓs time for August 25, 2017 , includes travel

time, also in block billing. Consequently, the billing for those

days should be reduced. However, there is no need for that

calculation because it is more than covered by the discount

applied to the fees. The description of the legal work done

those days establishes that the vast majority of the time billed

was for l egal services, not travel time.

21. Centerplate also is not seeking fees of $9,919.65 for

services rendered by paralegals.

22. If Centerplate obtained the contract with the

University, it could have earned gross revenues of approximately

$30,000,000. Not obtaining t he contract could exclude it from

the opportunity to contract to provide the University services

for ten years. The stakes in this matter were high.

23. Centerplate seeks an award of costs of $4,809.68.

Those costs are reasonable , except for $668.05 att ributed to

travel expenses for counsel. Costs of $4,141.63 are reasonable.

CONCLUSIONS OF LAW

Jurisdiction

24. The Division has jurisdiction over the parties and the

subject matter of this matter by virtue of section 120.65(6),

Florida Statutes (2018) , a nd BOG Regs . 18.002(13) and (22).

25. This is a de novo proceeding to determine if the

University participated in the hearing for an improper purpose,

and if the University did participate in the hearing for an

improper purpose, what reasonable attorneysÓ fees and costs should

be awarded to Centerplate. BOG Reg. 18.002(22).

Entitlement

2 6 . BOG Reg. 18.002(22) states, ÐIf the Quasi - Judicial

Officer determines that the non - prevailing party has participated

in the hearing for an improper purpose, the Quasi - Judicial Officer

may award attorneysÓ fees and costs to the prevailing party, as

appropriate.Ñ Centerplate is the prevailing party. The

University is the non - prevailing party.

2 7 . The University argues that it is not a Ðnon - prevailing

party.Ñ The Uni versityÓs argument relies upon Johnson v .

Dep artment of Corrections , 191 So. 3d 965 (Fla. 1 st DCA 2016).

The reliance upon Johnson is misplaced. The court held that

Johnson, although he prevailed in the litigation, was not entitled

to recover fees becaus e the Department was not a Ðnon - prevailing

adverse partyÑ as defin ed in section 120.595(1), Florida Statutes.

This was because section 120.595(1)(e)(3)3 . Florida Statutes , 2/

defined Ðnon - prevailing adverse partyÑ as a party that failed to

substantially ch ange the outcome of proposed or final agency

action. The University reasons that , like the Department of

Corrections , it was not trying to change the outcome of agency

action.

2 8 . The UniversityÓs reliance on Johnson is wrong because

this matter procee ds under BOG Reg. 18.002(22) , not section

120.595. BOG Reg. 18.002(22) does not include a definition of

Ðnon - prevailing adverse party.Ñ It simply says that the

prevailing party may recover fees, in circumstances addressed

below.

29. The U niversity rel ies upon the principle that similar

fee provisions should be interpreted pari passu to import the

definition of Ðnon - prevailing adverse partyÑ in section

120.595(1)(e)3 . into BOG Reg. 18.002(22). The fundamental flaw of

this argument is that the Ðnon - prev ailing adverse partyÑ

definition in section 120.595(1)(e)3 . is not in BOG

Reg. 18.002(22). There is no similar language to interpret pari

passu . See Fogerty v. Fantasy, Inc. , 510 U.S. 517

(1994)(explaining the pari passu principle) .

30 . The regulation defines improper purpose as

Ðparticipation in the protest proceeding primarily to harass,

cause unnecessary delay, frivolous purpose; needlessly increasing

the costs of litigation, licensing, or securing the approval of an

activity; or filing a meritless p rotest.Ñ BOG Reg. 18.002(22).

The evidence proved, as described in F indings of F act two through

four, that the University participated in this proceeding for an

improper purpose.

31 . The University also argues that it did not know of the

facts demonstra ting improper purpose until the day before the

hearing and therefore should not be held accountable for

participating in this matter. This argument fails because the

University officials were aware of and involved in the facts

relied upon for finding the University participated for an

improper purpose.

Reasonableness of Fees and Costs

Basic Principles

3 2 . Florida Patient Ó s Compensation Fund v. Rowe , 472 So. 2d

1145 (Fla. 1985), as modified by Standard Guaranty Insurance

Co mpany v. Quanstrom , 555 So. 2d 82 8 (Fla. 1990) , requires using a

lodestar approach and considering the eight factors articulated in

r ule 4 - 1.5(a), Florida Rules of Professional Conduct. Sunshine

State Ins. Co. v. Davide , 117 So. 3d 1142, 1144 (Fla. 3d DCA

2013).

3 3 . The party seeking f ees must prove that the fees claimed

and the time for which they are compensation are reasonable. See

City of Miami v . Harris , 490 So. 2d 69 (Fla. 3d DCA 1985). The

evidence must be sufficient to show what services were performed.

See Warner v. Warner , 692 So. 2d 266, 268 (Fla. 5 th DCA 1997);

Tucker v. Tucker , 513 So. 2d 733, 735 (Fla. 2d DCA 1987). Useful

evidence includes invoices, records, testimony , and other

information detailing services provided. Braswell v . Braswell ,

4 So. 3d 4, 5 (Fla. 2 d DCA 2009).

3 4 . Records should permit a judge to feasibly and

expeditiously engage in review. CenterplateÓs counselÓs records

fulfilled this requirement.

3 5 . The tribunal awarding fees should review the evidence

and identify the hours disallowed and the re asons for

disallowance. Norman v. Housing Auth. , 836 F.2d 1292, 1304 (11th

Cir. 1988) . 3 / The judge is also an expert on the issue of

reasonable and proper fees and may consider his own knowledge and

experience when forming a judgment on the value of serv ices

provided. Loranger v. Stierheim , 10 F.3d 776, 781 (11th Cir.

1994), citing Norman , 836 F.2d at 1303.

Application of the Eight Factors

3 6 . Rowe requires first determining a lodestar fees figure

by multiplying the reasonable hourly rates by the number of hours

reasonably spent on the litigation, applying the eight factors of

r ule 4 - 1.5(b) of the Florida Bar Rules of Professional Conduct.

Standard Guar. Ins. Co. v. Quanstrom , 555 So. 2d 828, 830 (Fla.

1990). Ð Reasonably expended Ñ means the time that o rdinarily would

be spent by lawyers in the community to resolve this particular

type of dispute. It is not necessarily the number of hours

actually expended by counsel in the case. See In re Estate of

Platt , 586 So. 2d 328, 333 (Fla. 1991) ( d iscussing Ro we factors in

estate case).

37 . An evaluation of t he eight factors of r ule 4 - 1.5(b) of

the Florida Bar Rules of Professional Conduct in light of the

Findings of Fact follows.

(A) The time and labor required, the novelty and difficulty

of the question inv olved, and the skill requisite to perform the

legal service properly : This matter required significant skill

because of the difficult burden a protestor must meet and the

compressed time frames imposed by the regulation. Counsel have

and demonstrated the requisite above - average skill level.

(B) The likelihood, if apparent to the client, that the

acceptance of the particular employment will preclude other

employment by the lawyer : This factor does not weigh in the

analysis. Centerplate was an existing f irm client.

(C) The fee customarily charged in the locality for similar

legal services : Expert testimony was presented and considered.

The persuasive , credible evidence established that the customary

rates for similar legal services in the community wer e as found in

F inding s of F act seven through nine.

(D) The amount involved and the results obtained : The

amount potentially involved was $30,000,000. The result was

success.

(E) Time limitation : The circumstances and the governing

law imposed severe t ime limits upon the participants.

(F) The nature and length of the client relationship :

A kerman LLP had an established relationship with Centerplate.

(G) Qualifications of Counsel : Counsel were well - qualified.

(H) Whether the fee is fixed or contingen t : Counsel were

paid a fixed hourly rate.

38 . After consideration of all the Rowe factors, the

reasonable fee for representation in the proceeding before the

Division is $140,769.90.

Costs

39. Application of the Statewide Uniform Guidelines for

Taxati on of Costs in Civil Actions results in the conclusion that

Centerplate should recover reasonable costs of $ 4,141.63. This

reflects a red uc tion of $668.05 for counselÓs travel expenses.

They are not recoverable.

ORDER

Based on the foregoing Findings of F act and Conclusions of

Law, it is ORDERED that the University of Central Florida pay

Petitioner, Boston Culinary Group, Inc., d/b/a Centerplate,

attorneysÓ fees of $140,769.90 and costs of $4,141.63 within 35

days of the date of this O rder .

DONE AND ORDER ED this 1 0 th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January , 2019 .

ENDNOTE S

1/ The UniversityÓs Proposed Recommended Order refers to

statements cou nsel for the University made during the hearing

about fees charged by his firm. These remarks were not sworn

testimony and are not evidence.

2/ The opinion does not identify which edition of Florida

Statutes was in effect for the relevant time period. The current

edition of the statute is identical in all material respects to

the statute quoted by the opin i on.

3/ The Florida Supreme Court opinions in Florida Compensation

Fund v . Rowe and Standard Guaranty Insurance Co mpany v. Quanstrom

rely upon fed eral court opinions. This makes consideration of

federal court opinions appropriate in this Order.

COPIES FURNISHED:

Jordan P. Clark, Esquire

University of Central Florida

4000 Central Florida Boulevard

Orlando, Florida 32816

(eServed)

Alexander Pow ell, Esquire

Centerplate

2187 Atlantic Street

Stamford, Connecticut 06902

(eServed)

Michael D. Crosbie, Esquire

Shutts & Bowen, LLP

300 South Orange Avenue

Orlando, Florida 32801

(eServed)

Cindy A. Laquidara, Esquire

Akerman LLP

Suite 3100

50 North Lau ra Street

Jacksonville, Florida 32202

(eServed)

Thomas O'Neal Ingram, Esquire

Akerman LLP

Suite 3100

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

Allison M. Stocker, Esquire

Akerman LLP

Suite 3100

50 North Laura Street

Jacksonville, Flor ida 32202

(eServed)

W. Scott Cole, General Counsel

Office of the General Counsel

University of Central Florida

4365 Andromeda Loop North

Orlando, Florida 32816 - 0015

(eServed)

Dr. Dale Whitaker

President

University of Central Florida

Post Office Box 16 0002

Orlando, Florida 32816 - 0002

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rule s of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the not ice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.