Loading...
HomeMy WebLinkAboutBid Protest Hearing CITY OF SUNNY ISLES BEACH BID PROTEST HEARING Bid No. 07-10-02 Central Island Drainage & Improvements Project MONDAY, MARCH 3, 2008, AT 3:30 P.M. David P. Samson Commission Chambers Hearing Examiner:Sonja K. Dickens, Esq. Hans Ottinot, City Attorney Jane A. Hines, CMC, City Clerk Alfredo De Armas, Esq., Attorney for Tran Construction In Attendance: Fernando Amuchastegui, Assistant City Attorney Henry Louden, President, Tran Construction City Attorney Hans Ottinot noted that he had provided Hearing Examiner Sonja K. Dickens, Esq. with a copy of the City's response and Memorandum of Law outlining the City's arguments in response to the Bid Protest filed by Tran Construction the Protestor. Hearing Examiner Sonja K. Dickens, Esq. stated as a matter of procedure i the burden is on Tran Construction. She gave an introductory statement noting that this is a Bid Protest proceeding, the burden is on the person making the protest in order to !prove their case, understand that it will be counted as substantial evidence, and that this will not be a formal evidentiary hearing so to speak, meaning that she will take into consideration any and all reasonable testimony, and/or evidence. She said she will give the ProtestOis the opportunity to present their side of the matter first, and then she will give the City the opportunity to respond, and no matter where we end up at the end, the Protestor will have the last words since the burden is on the Protestor, but she will give an opportunity for both sides Ito cross-examine each other's witnesses, and the like. Tran Construction: Alfredo De Armas, Esq., of the Law Firm of Alvarez, Armas and Verone) representing Tran Construction, the Protestor in this action. Action: Mr. De Armas began with a review of the pertinent provisions of the Code and of the request because he believes it is really dispositive of this case, and t'h;e believes that it indicates that the City is absolutely without authority to do what it did which is basically a ranking of bidders, it is not called for under the Code, and it is not called for under the bid documents. The bid document itself begins with a Request for Proposals and in paragraph 18.2 in the RFP, it defines the standard on which the award is going to be imade, and it says clearly that it is the intent of the owner to award a contract to the lowest responsible total based bidder whose bid is in conformance with the bidding documents and does not exceed the funds available. Summary Minutes: Bid Protest 07-10-02 030308 Page 1 of 11 Mr. De Armas addressed some facts: first of all nobody is in dispute, nobody is arguing that Tran is not the lowest responsible total based bidder, in point of fact, Tran Construction is the lowest bidder by a little bit more than $100,000.00 close to $107,000.00 and that is not disputed. The budget for this project is $3.7 Million Dollars, so Tran Construction base bid of $3,532,842.00 comes in within the budget and does not exceed the funds available. In addressing the City Code, he said there are two provisions that are salient: Section 62-7 regarding procurement when the bid is lower than $25,000.00, we have 'la bid of less than $25,000.00, the contract is awarded to the lowest most responsive responsible bidder. Section 62-7 (A)(4) "Bids shall be awarded to the lowest, most responsive, responsible bidder, as determined by the City Commission and/or the City Manager as the caselmay be....". The next Section 62-7(B) for purchases over $25,000, and it is a completely different standard, says "Purchases over $25,000. Bids for purchases over $25,000 shall be awarded in the same manner as purchases as set forth in Section 62-6...", not the preceding (A)62-7,just to be clear on that, except these additional requirements shall pertain, and the salient provision is paragraph 2 here, and it says: (2) Invitation for bids. An invitation for bids (including RFPs [which is what we have here] and RFQs) shall be issued and shall include specifications and all contractual terms and conditions applicable to the procurement, and theIRFP here clearly says that it is the intent of the owner to award a contract to the lowest responsible not to the lowest most responsive as is the case for contracts under$25,000. In Section 62.8 Award., it reads almost exactly the same: All contracts shall be awarded by the City Manager, as stated above, to the lowest responsible and responsive bidder, and again, we don't have the language lowest, most responsible and responsive bidder, and there is a contradict distinction which is very important and we are going to get into it. I Mr. De Armas said that the first proposition he wants to cite to the court is the proposition that when legislators choose words, they do it for a purpose, and when legislators choose to use separate and different distinct language in two provisions that follow each other, we must assume that they did so because they want to contrast and differentia, aniilhe cites the court to St. George Island Limited vs. Rund, (he gave a copy to Ms. Dickens and to Mr. Ottinot), the principal of construction that we are citing to and it says, "Where the legislature uses exact words in different statutory provisions the court may assume that they werelintended to mean the same thing," it is not what they did here, it goes on, "moreover the presence have determined one portion of a statute and its absence from another argues against reading it as implied by the section from which it is omitted.", so clearly, the intent of the City of Sunny Isles Beach in saying under$25,000 its lowest most responsive bid as opposed to when it is over$25,000 when we are awarding to the lowest responsible bidder is to make a distinction. What do these terms mean? We had these terms addressed in the City of Sweetwater, and what happened in Sweetwater, which is really the leading case on these procurement issues (he gave a copy to Ms. Dickens and Mr. Ottinot), in the City of Sweetwater, the request for proposals was almost identical to theirs, and the highlighting of the case begins, "Instructions to bidders were included in the limitation that informed bidders of the conditions for bidding, paragraph 18 of the instructions to bidders established the basis for award of the contract and provided, and here language is almost identical to ours, "The contract will be awarded to the responsive responsible bidder submitting the lowest acceptable proposal.", and what happened is that notwithstanding that language Mayor Garcia attempted to award a contract not to the lowest responsive responsible bidder but to a bidder that he found to be lowest and Summary Minutes: Bid Protest 07-10-02 030308 Page 2 of 11 • more responsive and more responsible after weighing qualifications, and this is made clear when we go to the next page of the case, it says question, and this was a cross-examination of Mayor Diaz, "On July 11 of this year did you as a strong mayor believe that you could evaluate responsible bidders and determine which of those bidders you were,going to award a contract to". Answer: "yes sir", "and even though Solo was the low bidder, one of the responsive bidders and one of the responsible bidders you believed at that time you could still award it to another contractor." Answer: "yes, based on all the information.", and that is exactly what happened here, and in this case the Circuit Court as welllas the 3rd DCA affirming, said that you can't do that, and that is exactly what you cannot do as a municipality, procuring a contract that is to be awarded to the lowest and responsible bidder. Ms. Dickens said that she sees a little bit of a distinction in the standards, in Sweetwater it looks as if their Code specifically required that as long as the City found that the bidder was responsive and responsible that they had no other choice but to go to the low bidder. When she looks at the standard in Sunny Isles Beach it does not pivot the two against the one. In Sunny Isles Beach, it appears to her that all three standards stand along side each other, so that it has to be the lowest responsive and responsible, they are all the same, and that the City can then consider that criteria together, unlike Sweetwater which says responsive, responsible and then they have to have the lowest price. So how do you distinguish that? Mr. De Armas responded, because that is exactly what the court goes on to lsay, and if you go to the back of the case, the forth page from the back, at the bottom there is a number 14 where the court gets to its opinion, and it says"The City of Sweetwater's actions in attempting to award the contract to the most responsible bidder as opposed to the lowest responsible bidder,", exactly what we have here, an attempt to award a contract to a� more responsible bidder than Tran Construction, as opposed to the lowest responsible bidder, demonstrates that the attempted award was made without reason, or for a reason that is merely per textural, and that is void of any legal basis. Accordingly, the City's decision to award the contract to United Engineering,", in our case Southeastern, "was arbitrary and capricious and based upon criteria that were neither included in the bid documents or clearly defined in any manner whatsoever.", and it goes on to number 15, "The City of Sweetwater's actions in attempting to award the contract to United Engineering Corporation are not only arbitrary and capricious but also are contrary to Florida's competitive bid statutes. The Code provides that the City of Sweetwater City Council will accept the bidder of the lowest responsible bidder who will perform the contract in a matter most beneficial. Since Solo Construction was a responsible bidder...", and in this case, there was no question that Tran is a responsible bidder, "submitted the lowest bid", again there is no question but that Tran submitted the lowest bid, "and offered to perform the contract in the shortest span of time. The City was legally required to award the stormwater improvement to Solo. The City's attempts to award the stormwater improvement contract to United as the most responsible bidder,is inconsistent with the requirements of the City Code." What we are doing is, when we say lowest responsible bidder as opposed to the under$25,000 language that says lowest most responsible bidder is you are only quantifying one aspect and that is low, once you are the lowest, that is it, the City has no authority. So long as you are one of the responsible and responsive bidders,which he believes there shouldn't be any question of, the same exact proposition is,universally applied. Summary Minutes: Bid Protest 07-10-02 030308 Page 3 of 11 • Mr. De Armas said that he has for the court, Boeing Engineering Corporation which addresses the same issue, of Indiana, and in that case we had the same thing, we had a bid, a request for proposals that was to be awarded to the lowest responsible responsive bidder. The municipality there acted as if they were awarding to the lowest most responsible bidder and the court said you can't do that, there is a difference between lowest responsible bidder and lowest most responsible bidder. Ms. Dickens said then are you saying that when the City awards a construction contract, that the only consideration that the City can make is the price? Mr. De Armaslsaid no, the City determines whether bidders are qualified or not, and that, it has an obligation to do, and there is a set criteria that they use to determine whether somebody is responsive and responsible or not. Ms. Dickens said then assuming that people are not disqualified, bids come in, some are thrown out they didn't meet the requirements, they are disqualified, not those, let's assume that the City has gotten a list of contractors that are qualified to do the work,land so then they go to the next step, are you then saying that out of that group of those contractors that are qualified to do the work, the City is then legally required to take the lowest bid and are not to consider any other factors? Mr. De Armas said absolutely, when it says lowest responsible bid, that is exactly what it means. Once these bidders are found to *responsible and response you do not quantify more responsible or less responsible, they a ie all responsible, now you go to one criteria, lowest bid, and that is exactly what this court:in Indiana said as well, "The Board may not make comparisons of bidders to determine responsibleness, responsibleness is a minimal requirement of bidders, not a competitive standard among bidders. A bidder can be un-responsible only if the awarding body would not award the contract to the bidder even if that bidder had submitted the only bid. The absence of the term best, or most responsible unmistakenably demonstrates the legislature did not intend responsibleness to become a competitive factor between bidders, but rather the legislator intended to give the Board the discretion to reject bids from contractors who are unable to perform the work satisfactory they have awarded the contract. The Board may not award the contract to Boeing simply because the subjective factors met materially in favor of Boeing. Whether Boeing is more responsible than WPM is irrelevant when determining whether WPM is the lowest responsible and responsive bidder. Ms. Dickens said she sees the law is that there are two governing principals as it relates to awarding contracts in the State of Florida for municipalities, you have the State Statutes, and you have your local ordinance, and in the absence of a local ordinance, you rely on the State Statute, however, if you have a local ordinance then that, unless it is contradictory to what the State law says, controls. Mr. De Armas said he agrees, and Ms. Dickens said with that being said, you read the Sunny Isles Beach Code, and you see that Sunny Isles Beach not only limits their bidding to costs, but in their Code in Section 62.8, what do you think of these other listed factors, and Mr. De Armas said those are factors that you use to determine whether a bidder is responsible or not, that is the criteria that you use to determine responsibility velnon period, once you determine that a bidder is responsible then that is it, your discretion is out the window, you must award to the lowest bidder. It is very simple, in case:after case stands for the same proposition, the last case he cited was Boiston vs. Nappa Sanitation, and it is a California case and it says the exact same thing, when we use the term "lowest responsible bidder", lowest responsible bidder is not to be qualified on responsibility,land the court says Summary Minutes: Bid Protest 07-10-02 030308 Page 4 of 11 "In the context of responsible bidder, the term responsible refers not only:tl the attribute of trustworthiness, but also to the quality, fitness, and capacity of the bidder to perform the proposed agreement satisfactory.", and those are the criteria that the City of Sunny Isles Beach asks, are you trustworthy, are you the kind of bidder that we want to work with, and that is what responsible means, and that is why they use these criteria here. In 62-8, there are criteria 1-5 all of those are used to determine whether you are a responsible bidder or not, and again the court says: "In the context of responsible bidder the term responsible refers not only to the attribute of trustworthiness, but also to the quality, fitness and capacity of the bidder to perform the proposed agreement satisfactory. When a statutelrequires that an award be made to the lowest or highest responsible bidder, it must be awarded accordingly unless that bidder is found not responsible, not qualified to perform the particular work under consideration, although public bodies have discretion to determine which bidders are responsible they may not, if they determine more than one bidder is responsible, make the award on the basis of relative superiority. Ms. Dickens said that the case from California is a different standard than what the law is in Florida. Mr. Del Armas said that the City of Sweetwater couldn't be clearer, the City of Sweetwater is out of the 3rd DCA, and it says"lowest responsible bidder means that it is a low bidder who was found to be responsive.", your discretion ends. We don't want the City to coming along later and saying yeah, they are both responsible bidders, brut you know what, we like one better than the other, and that is exactly what we want to prevent. We want to prevent unclear standards, and there is another principal at play here which is even beyond the fact that the City absolutely lacks requirement, and that is that the City here has acted on an undisclosed criteria. What is a undisclosed criteria, when you put together a bid package, as a municipality, you are establishing the rules of the game, you are establishing the ground rules, do not come in later and say, oh I am sorry, we forgot to tell you, there is another rule and we are applying that rule in order to award it to Southeastern. For example, here are the rules of the game, say you have to have Tran at least 40% in-house work, and then they come along and say you met that, you have 44% but do you know what, wellike Southeastern better because they have 70%. You know what, if you are going to award it based on who does more in-house work, announce it, you are obligated to announce it,award come in after the fact and say, in order to force fit an award, or possibly force fit an award, because we don't have to cast persons on anybody, acting in utmost good faith, you are not allowed to do it, you need to announce the rules of the game clearly. Mr. De Armas said in this case Magnum Construction vs. Broward Countyi School Board, and you will see that he represented Magnum Construction the petitioner in this case, and we went up to Tallahassee before that administrative judge Landingham, and what happened here was there was a request for proposal, in that case they said that they are ranking you, and there was a ranking unlike here, and there was a committee that was actually ranking these proposers, and members of the School Board of Broward County voted to award it to another contractor other then MCM on the basis that that other contractor had done more business with the School Board of Broward County and they wanted somebody that had either experience with local conditions or as one School Board member told him under oath, they wanted somebody that had paid their dues in Broward County. None of that was announced in the RFP and we went up, and Judge Landingham agreed, and said you know Summary Minutes: Bid Protest 07-10-02 030308 Page 5 of 11 what, you have an obligation to tell the bidder the rules of the game, and if they went under the rules of the game you would have to award them the bid, you can't come in after the fact and say you met the condition of 40% but what we really wanted was a bidder that had more work in-house. He said Tran is ready to testify, and he proffered their testimony, they could have done 70%, 80% in-house work, if that were the condition, if they knew that was the criteria, they would have met that criteria, it was never announced as criteria, and then we called and said why wasn't it awarded to us, and then at the hearing we find out that this was a criteria and that was applied against us, that they wanted somebody that was less of a construction manager doing more work in-house, and again, if they had known, if the City had told them, then they would have met that criteria. He believes that Judge Landingham's reasoning is very apropos here, on page 16, paragraph 65, he says "Here:in Section 11 lists several specific subjects within a larger class of experiential preferences and there are no general words to show that other specific preferences within that class are included. It is therefore concluded that the subjects not specifically named were intended to be excluded." What Judge Landingham is saying is once you delineate the factors that you want, don't come in and say there is another factor that I want to apply, that is an undisclosed criteria and you cannot do that. It is fundamentally unfair, and it lends itself to skullduggery. We will not permit our municipalities to act in that fashion, and he goes on to say in paragraph 70, "With that in mind, the undersigned is convinced that to ensure a fair competition, the letting authority should always clearly disclose such a preference in the procurement document,that way would-be proposers who stand to suffer as a result of the preference at least can attempt to level the playing field before the contest begins by bringing a specifications challenge. That said however, the undersigned need not conclude here that non-disclosure of a prorogial presence is necessarily contrary to competition because we told them, they want to say that they want to prefer Broward County contractors, and he is willing to concede that they can do that, but they need to tell him so that they have options, maybe he will join ventures with somebody or maybe he would skip the exercise all together." What happened in this case was worse than mere non-disclosure, and this is the same thing that we have here. For the RFP informed potential proposers that relevant work completed in one area would be afforded the same preference as well as work completed in another area of the State. What happened here is almost identical, they have told us, as long as you meet this 40% threshold you are fine, you are good, and then they turn around and say 40% is not good enough because you stack up unfavorably to Southeastern even though you are $100,000 cheaper, you stack up unfavorably with Southeastern because they do 70% of their work in-house, on this one project incidentally. He said he will have Mr. Louden of Tran Construction say that absolutely they were prepared on this project to have 65% in-house or more, whatever they wanted. Ms. Dickens said that the City did disclose the fact that the in-house was important to them in the bid document. Mr. De Armas said they did not, and Ms. Dickens saidlit is on page 7, and Mr. De Armas said on page 7 it says they want 40%, it doesn't say it is important to them, and Ms. Dickens said she understands that but it is not something new. Mr. be Armas said it is not something new, what is new is the way they applied it. Ms. Dickens, said for the record because she thinks what he said was that you didn't know in advance that that was important to them, and what he is saying is although it says in there that we want 40%, your client did not understand that that was something that the City would consider when they awarded the bid, and Mr. De Armas, said correct, but not that they didn't understand that it is important that Summary Minutes: Bid Protest 07-10-02 030308 Page 6 of 11 once you meet 40% which is a clear objective standard, once you meet that you are golden, you don't need to do anything other than that, and Mr. Louden will testify and he doesn't understand what the court wants him to do, if she wants him to proffer the testimony, and Ms. Dickens said she would like to save some time and she will accept the proffering of testimony if there is no objection from either side, and there was no objection, and Mr. De Armas said the proferring would be that he was prepared to do from 65% to 70% of the work in-house, that he was never told that he needed to do anything other than 40% that the put in 44% in order to meet the requirements, move in and just concentrate on the value of the bid. Mr. De Armas said he would like to address further undisclosed criteria which are contained in an affidavit that was presented as part of a response today by . Ms'. Dickens said that she does not have any scoring sheets, and Mr. De Armas said that there were none and that is why she does not have them, and that is exactly what the problem is. Ms.IDickens said that she is not saying that there was one but it seems that he is indicating that the City had a scoring sheet, and he said there was none, they are not telling us thatI they are going to qualify bidders and that is why there are no scoring sheets, no committeedno presentation, it is as simple as here, you are either responsible or you are not, and if you are responsible, we are going to give it to the low bidder, and again, that is black letter law. Mr. De Armas said that finally, he wants to be crystal clear that there is no finding of non-responsiveness, and the Code provision 62-9 makes it clear that Tran not only in fact is responsiveland responsible, but was found the juror to be responsible and responsive. Section 62-9 says that the City, if they had found Tran non-responsive, had certain obligations and conditions to meet, and it reads"If a bidder or offerer who otherwise would have been awarded a contract is found non- responsible, a written determination of non-responsibility, setting forth the'basis of the finding shall be prepared by the City Manager or the purchasing agent.", and thatwas not done, and therefore we have to assume that Tran is a responsible responsive bidder and certainly was the low bidder, and the only issue is whether the City at this point then is entitled to weigh and determine that one bidder is more responsible or more responsive then another. City of Sunny Isles Beach: Hans Ottinot, City Attorney for the City of Sunny Isles Beach. Action: City Attorney Hans Ottinot indicated that the Protestor's counsel raised several arguments that were not raised in the bid protest letter. Under the Procurement Code those arguments were not raised in the bid protest letter, those arguments are waived. Ms. Dickens said that is what it says in Section 62-15(A). City Attorney Ottinot said that the Protestor has failed to satisfy its burden, he has cited numerous cases that do not apply in this matter, has misstated facts( this case is not complicated, it is a very simple case. At issue is where the City has authority to accept a bid which is in the best interest of the City. The Protestor claims that the City does not have authority, in fact, the Protestor claims that the City is required to award a bid to a bidder who submitted the lowest price. The Protestor is wrong factually, and wrong in respect to the law. City Attorney Ottinot said that the City Code does not require that the City award a bid to the bidder with the lowest bid. He emphasized that price is only a factor in awarding a bid under Summary Minutes: Bid Protest 07-10-02 030308 Page 7 of 11 the City Code or the law. He said under the City Code the price is a factor but not the determinative factor, in fact, the City Manager looks at a laundry list of factors in awarding a bid, these factors include the contractor's capacity, ability to do the job in accordance with the City's desire. In this case, the City Manager in his professional judgment, over 25 years of experience as a City Manager or Assistant City Manager, did not believe at the Protestor had the capacity or the skill to perform the job in accordance with the desires of the City. Similarly, in the bid documents, price is only a factor, not the determinative factor, in fact, in the instructions to bidders, the contractors were put on notice, contrary to what the Protestor's counsel indicated today, the City has a discretion to award the bid which is in the best interest of the City or to award the bid to the lowest responsible bidder, not the lowest bidder, the lowest responsible bidder. In looking at the factors that were most important to the City, was the fact that the contractor can perform at least 40% of the work with its own forces of workers. That issue was disclosed in the bid docs, instructions were given, we even had a pre-bid conference, which is in our Memo of Law, the minutes of the pre,bid conference is attached, that was an issue that all the parties, all the bidders were informed about. The Protestor provided us with the information that they can only perform 44%'of the work with its own forces, while the contract recipient provided us with information that they could perform 70% of the work with its own forces. The contract recipient's price was almost identical to the Protestor's with a difference of almost $100,000. Basically the City made a selection in its best interest, we got more bang for our buck, simply to recap, the City complied with its Code in awarding this bid, the City complied with the bid instructions in awarding this bid, the remaining question is whether the City complied with the law, that is a simple answer, the answer is yes, the law does not require the City to award a bid to the lowestEdollars and cents bids. Indeed, the court will uphold the City's decision unless the City's decision is arbitrary and capricious, there is no evidence to suggest that the City's decision is arbitrary or capricious. The Protestor has not presented any evidence showing that the City Manager or the City Commission was arbitrary and capricious, in fact, the Protestor merely argued in his letter that the City should explain to them the reason why we did not select them, and today he has explained those reasons. Ms. Dickens asked City Attorney Ottinot if he has had a chance to ;review the City of Sweetwater case, and he said he just got a copy today but he is familiar with it, having been a municipal attorney for almost nine (9) years. Ms. Dickens asked him how he distinguishes this situation from that situation where the court determined that the City had to award the bid to the lowest acceptable proposal. City Attorney Ottinot said that he is in agreement, the case highlights the fact that the City qualified several bidders and after qualification the requirement for them to award the bid to the lowest bidder. The City of Sunny Isles Beach Code, which in fact he was responsible for drafting, has never been construed in that fashion, the most responsible bidder. It is pretty academic law when it comes to construction of municipal codes, the court will always give deference to the construction of the municipality. He knows that the Protestor's attorney believes he is an expert in this area but this is a simple issue, he is splitting hairs with respect to certain meanings of words in our Code, that has no relevancy to his protest, this is a simple case. He went over some of the arguments that Mr. De Armas raised: he indicated that his client is the lowest responsible bidder, and that is undisputed, that is incorrect, they were not the lowest responsible bidder, they were merely the lowest bidder. Mr. De Armas indicated that the City had ranked bidders, we did not have a ranking Summary Minutes: Bid Protest 07-10-02 030308 Page 8 of 11 system, we select based on qualifications, based on our needs. Ms. Dickens asked how does the City Manager arrive at his recommendation that he is going to make to the City Commission? City Attorney Ottinot said that in our Code, the City Manager basically has a list of factors that he looks at, prior experience with a municipality, capacity and skill to do the job, also any prior violations of Code committed by the contractor, and the City Manager also utilizes outside consultants for fact-finding purposes, the engineer who was the engineer for the project, was hired to basically conduct fact-finding research and provide the City Manager with information so that he can make an informed decision based on important factors that are included in the City Code. From the City Manager's experience, his recommendation is based on his professional judgment. However, the City Commission if they notice any issues in terms of City Manager's decisions being arbitrary' or capricious, the City Commission can always reverse the City Manager, and in this case thiat didn't happen. The City Manager's professional judgment was accepted by the City Commission because his decision was consistent with the City Code. City Attorney Ottinot stated also, that the Protestor's Counsel raised the issue about undisclosed criteria. Our bid instructions were pretty clear, we disclosed all relevant information, the issue with respect to the 40% criteria was listed, it was noticed,we had a pre- bid conference, in fact, if you reviewed the bid protest letter filed by the Protestor, that issue wasn't even raised, this is a new argument being raised today. Also, the Protestor's attorney cited numerous cases outside of Florida, these cases are not relevant, it is,not a precedent for this court to follow, also, the City of Sweetwater case, the major difference between that case and this case, that decision was made by a mayor as a strong mayor,'where politics is obviously in play, in this decision, politics is not at play. This is a professional Manager that was hired by the City Commission, who made a professional decision based on relevant facts, and that is a simple case, this is not a difficult case, the City's decision is consistent with the law and consistent with our Code. Tran Construction Alfredo De Armas addressed the little dig that he fancies himself an expert, we owe no deference to the City of Sunny Isles Beach and its interpretation of legaLwords, this is not a technical review that they are contesting, they are simply looking at interpretation of legal language. Expertise is not required and there is absolutely no deference to the City's interpretation. He said he wanted to address this attempt to distinguish the City of Sweetwater, in point of fact, Mayor Diaz in that case did not make the decision but he actually appointed a committee, and the court would see, in the second page of the printout it says: "Subsequently the Mayor appointed three (3) individuals to evaluate the bidders and find the most responsible bidder. The individuals appointed by the Mayor differed identified,etc.", and so the Mayor in that case even appointed a committee, and the committee went on to evaluate who is more responsible among the bidders, and the court said)you can't do that, when it is the lowest responsible, responsive bidder, it is not the lowest most responsible most responsive bidder, those are different terms, and in fact, if we go to the City of Sunny Isles Beach Purchasing and Procurement Code, at Section 62-7, they used the terms differently, and when it is a bid under $25,000 indeed a great deal of discretion is given to the City Manager, and it says, "Bids shall be awarded to the lowest most responsive responsible Summary Minutes: Bid Protest 07-10-02 030308 Page 9 of 11 bidder.", these words are not the same. These terms are not identical, lowest most responsive responsible bidder means that we rank the bidders according to their qualifications. Lowest responsive responsible bidder means that we do not,ithese are simple black and white terms and standing this principal that is black letter across this country on its head in order to award a contract to a bidder that is $100,000 above the low bidder is wrong, and it is arbitrary and capricious. Mr. De Armas stated that there was something else that we really haven't gotten into. Tran has an unrivaled record of excellence in this community, they do nothing but excellent work, they have never been defaulted by any owner, private or municipal, and this committee hadn't found that they had, and in fact, what this committee did was to say very clearly, and he is quoting from them, "Tran's references check out and they come well recommended". We are a responsible bidder, we are a responsive bidder as were 13 of these bidders, and we are the low bidder and we are entitled to get this job, and he doesn't understand why they have not been awarded this contract, it is beyond him, yes there are qualifications that are set forth in the Code and those qualifications are not to rank a bidder, it is to determine responsible velnone, once you determine responsibility and you did in this case because you did not tell Tran that they were not responsive, and indeed it would have been arbitrary and capricious to do so, then you look at the low bid and that is all there is. He stated that with the proffer that he has made he would like to rest, and he would respectfully request that,the court render a decision as quickly as possible so they can move forward with this project. The bid protest have that tendency to put projects on hold. Ms. Dickens said that she will rule today, and she will gather her thoughts and she will issue an oral ruling into the record. Ruling of Hearing Examiner Sonja Dickens, Esq. • Finds that the City had competent substantial evidence to support their award by the City Commission to Southeastern; • Finds that the arguments not raised in the bid protest document were waived; • Finds that Section 62-8 of the City's Code of Ordinances is controlling and that the RFP is also controlling; • Finds that the City's Code provides the City with the authority to consider things other than price when setting the criteria for the award of an contract; and • She does not find, the only case she was presented today that has some jurisdiction of precedential value to her was the City of Sweetwater, but she is'fnding in particular that that case is not controlling in these facts because in the City of Sweetwater their Code or bid instructions specifically required that the contract tie awarded to the responsive responsible bidder submitting the lowest acceptable proposal, however, she finds that the City of Sunny Isles Beach Code permits the City to consider all those factors on equal basis (as stated below). She asked if she needs to issue that in writing, and City Attorney Ottinot said yes, if she wants him to draft a recommended order they will. Ms. Dickens asked that he put one more thing in the order, she does not find, the only case she was presented today that has some jurisdiction Summary Minutes: Bid Protest 07-10-02 030308 Page 10 of 11 1 of precedential value to her was the City of Sweetwater, but she is finding in particular that that case is not controlling in these facts because in the City of Sweetwater their Code or bid instructions specifically required that the contract be awarded to the responsive responsible bidder submitting the lowest acceptable proposal, however, she finds that the City of Sunny Isles Beach Code permits the City to consider all those factors on equal basis. So please put that in the order and she will sign it. Adjournment. Hearing,Examiner Sonja K. Dickens, Esq. adjourned the hearing at 4:30 p.m. • ;:Jai eA. Hines, CMC, City Clerk •'15.� r-� Summary Minutes: Bid Protest 07-10-02 030308 Page 11 of 11 CHICAGO,r.1WOIS LAW OFFICES BOCA RATON,FL-ORIDA ARNSTEIN & LEHR LLP MIAMI,FLOR-IDA 200 EAST LAS OLAS BOULEVARD SUITE 1700 TAMPA,FLOR-IDA FT. LAUDERDALE, FLORIDA 33301-2240 WESTPµM BEACH,- FLORIDA (954) 713-7600 HOFFMAN ESTATES,ILLINOIS Sonja K. Dickens FAx(954) 713-7700 MILWAUKEE,WISCONSIN (954) 713-7619 www.arnstein.com skdickens @arnstein.com FOUNDED 1893 MEMBER OF INiER.NANONAL LAWYERS NETWORK March 5, 2008 Jane A. Hines, City Clerk City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Re: Bid Protest by Tran Construction Dear Ms. Hines: Enclosed herein please find a Final Order On Bid Protest By Tran Construction, Inc. Of Award Of Bid No. 07-10-02, which has been duly executed and dated, relative to the bid protest hearing which took place on Monday, March 3, 2008 in the above matter. If I can be of any further assistance, please let me know. Thank you for your time and consideration in this regard. Very t - • rs, " of K. Dickens • SKD/bfc Enclosure 8032538_1.00C CITY OF SUNNY ISLES BEACH HEARING EXAMINER STATE OF FLORIDA In the Matter of: Bid Protest by Tran Construction Inc. of Award of Bid No. 07-10-02 i I FINAL ORDER ON BID PROTEST BY TRAN CONSTRUCTION INC. OF AWARD OF BID NO. 07-10-02 This matter having come regularly before the City of Sunny Isles Beach (the "City") Hearing Examiner for a bid protest hearing on March 3, 2008, at 3:30 p.m., under an appeal filed by Tran Construction Inc. ("Petitioner") on February 21, 2008. Notice having been given as required by the City Code and all matters submitted at the public hearing having been considered, including the bid protest) filed by the Petitioner and the response filed by the City, together with all evidence+ and exhibits submitted at the public hearing and made a part of the record in this matter, and the Hearing Examiner having carefully considered arguments of counsel and the evidence presented, the Hearing Examiner now makes the following findings of fact and conclusion of law: Standard of Review The standard of review of an agency's competitive bid award, where discretion is vested for the award of public works contracts, is whether the agency acted arbitrarily or capriciously. See Miami-Dade County v. Church & Tower. Inc., 715 So. ltd 1084, 1088 (Fla. 3d DCA 1998). The burden of proof is on the Petitioner to demonstrate that the City's bid award was "clearly erroneous, contrary to competition, arbitrary, or capricious." See, e.g., Nippon Carbide Industries. Inc. v. State Department of Transportation, 755 So. 2d 190, 191 (Fla. 1s' DCA 2000). The City's decision to award the contract must be based on competent, substantial evidence. See id. Findings of Fact I. On February 21, 2008, Petitioner filed a bid protest regarding the Construction Improvements for the City. of Sunny Isles Beach Central Island Drainage and Street Improvements (Bid No. 07-10-02). II. In its bid protest letter, Petitioner argued that it should have been awarded Bid No. 07-10-02 pursuant to paragraph 6.3 of the contract documents and specifications, as well 1 I as paragraph 18.2 of the Request for Proposals. The reasons stated in its Bid Protest letter is that Petitioner submitted the lowest bid and the City's decision was arbitrary. III. In its Response to the bid protest by Petitioner; the City argued that the bid protest 1 should be dismissed for the following reasons: (I) the City has the authoritylto select the most qualified bidder under the City Code; (2) the City has the authority to select the bid I that it is in the best interest of the City under the bid documents; and (3) the City is not required to select the bidder with the lowest price under the law. ! 1 i IV. The City submitted affidavits by its City Manager, Public Works and Engineering Director, and its engineering consultant. These affidavits confirm that ithe City has 1.. complied with its Code in selecting the contract recipient for Bid No. 07-10-02. I. 1' V. The Petitioner failed to present any evidence showing that the City's.decision was !- arbitrary. VI. At the bid protest hearing; the Petitioner raised several new arguments that were i; not stated in its bid protest letter dated February 21, 2008. Conclusion of Law [' The Hearing Examiner, having duly considered the matter, arguments of counsel and the evidence presented at the public hearing; makes the following conclusions of law: r I. The City has show that the City Commission's decision to award the bid to is Southeastern is supported by competent and substantial evidence. II. At the hearing, the Petitioner raised several new arguments that were not raised in r. the bid protest letter. These arguments are deemed waived in accordance with Section 62-15.A. of the City Code because the Petitioner failed to assert these arguments in the r: c- hid protest letter. t` III. Section 62-8 of the City's Code of Ordinances and the requirements set forth in the City's Request for Proposal ("RFP") are controlling. IV. The City Code permits the City to consider things other than price when setting forth the criteria for a contract award. The City has complied with its Code. V. The cases cited by the Petitioner are not controlling on the particular facts of this case. More precisely. the Sweetwater decision relied upon by Petitioner (cited as Sweetwater v. Solo Construction Corporation; 823 So. 2d 798 (Fla. 3d! DCA 2002) is distinguishable in that the City Code of Sweetwater required the City to accept the bid of the responsive; responsible bidder submitting the lowest acceptable proposal. In contrast, the Code of the City of Sunny Isles Beach authorizes the City to consideriall of its factors on an equal basis in awarding the bid to the lowest responsible bidder. 1 1 VI. The Petitioner's request for relief is therefore denied. These findings and Final Order shall be presented to the City Commission. ORDERED and ADJUDGED thisday of March 2008. City ' unny Isles Beach Hearing Examiner 40111Zdt9— Oh so. . t ickens. Esq. cc: All counsel of record I I SUNNY 'see City of Sunny Isles Beach City Commission �,. se Norman S.Edelcup,Mayor `t_# --i--� m 18070 Collins Avenue Lewis J.Thaler, Vice Mayor .;>� ,' : = Sunny Isles Beach, Florida 33160 Roslyn Brezin,Commissioner G sr 1 Gerry Goodman,Commissioner • -' -ui r; George`Bud"Scholl,Commissioner (305)947-0606 City Hall . el' • r 10°0°51/4- ' r (305)949-3113 Fax A.John Szerlag,City Manager '-' (305)947-2150 Building Department Hans Ottinot;City Attorney crrrorsuNe (305) 947-5107 Fax Jane A.Hines,CMMC,City Clerk i `1 i • March 5, 2008 i e ki Via Facsimile 786-513-2785 and U.S. Mail 'r' J. Alfredo De Armas, Esq. E. Alvarez, Armas & Borron, PA I 901 Ponce De Leon Boulevard, Suite 304 1. Coral Gables, FL 33134 i i Re: Final Order of Bid Protest by Tran Construction Inc. of Award of Bid No. 07-10-02, ' Central Island Drainage and Street Improvements Project 4. Dear Mr. Armas: : l Enclosed please find a certified copy p}' of Hearing Examiner Sonja K. Dickens' Final Order of Bid 4 Protest by Tran Construction, Inc. of Award of Bid No. 07-10-02, which was issued on March 5, 2008. ' The Hearing Examiner's findings and recommendations shall be presented to the City t. Commission for final action at the March 20, 2008 City Commission Meeting beginning at °I 7:30 p.m. in the David P. Samson Commission Chambers, 18070 Collins Avenue, Sunny F_ Isles Beach, Florida 33160. I ! If you have any questions, please do not hesitate to contact me. t Sincerely, ,Son Ar a,....._ -, I Jane A. Hines, CMC City Clerk t • Enclosure: Final Order of Bid Protest t {{ c: A. John Szerlag, City Manager E Hans Ottinot, City Attorney Fernando Amuchastegui, Assistant City Attorney Jorge Vera, Assistant City Manager/Services �- Rick Conner, Public Works Director a Henry T. Louden, President, Tran Construction, Inc. ! Alegandro Mejia, Asst. Project Manager, Southeastern Engineering Contractors, Inc. Randy Pierson, Solo Construction Corp. Felix Acosta, President, Acosta Tractors, Inc. t 1 4 � 1 I t; I 1 J. Alfredo De Arms, Esq. March 5, 2008 p Page 2 Maria Valentin, Project Manager, Central Florida Equipment Rentals, Inc. - Matthew P. Tilli, Vice President Operations, Lanzo Construction Co. Florida Miguel Vila, Vice President, M. Vila & Associates Alex Sanchez, Vice President, Budget Construction Co., Inc. Ron Penta, President, Ocean Bay Construction, Inc. Guy A. Mancini, President, Man-Con, Inc. • CITY OF SUNNY ISLES BEACH HEARING EXAMINER STATE OF FLORIDA In the Matter of: Bid Protest by Tran Construction • Inc. of Award of Bid No. 07-10-02 • FINAL ORDER ON BID PROTEST BY TRAN CONSTRUCTIOO N INC. OF AWARD OF BID NO. 07-10-02 This matter having come regularly before the City of Sunny Isles Beach (the "City") Hearing Examiner for a bid protest hearing on March 3, 2008, at 3:30 p.m., under an appeal filed by Tran Construction Inc. ("Petitioner") on February 21, 2008. Notice having been given as required by the City Code and all matters submitted at the public hearing having been considered, including the bid protest filed by the Petitioner and the response filed by the City, together with all evidence and exhibits submitted at the public hearing and made a part of the record in this matter, and the Hearing Examiner having carefully considered arguments of counsel and the evidence presented, the Hearing Examiner now makes the following findings! of fact and conclusion of law: Standard of Review The standard of review of an agency's competitive bid award, where discretion is vested for the award of public works contracts, is whether the agency acted arbitrarily or capriciously. See Miami-Dade County v. Church & Tower, Inc., 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998). The burden of proof is on the Petitioner to demonstrate that the City's bid award was "clearly erroneous, contrary to competition, arbitrary, or capricious." See, e.g., Nippon Carbide Industries, Inc. v. State Department of Transportation, 755 So. 2d 190, 191 (Fla. ls' DCA 2000). The City's decision to award the contract must be based on competent, substantial evidence. See id. Findings of Fact � r I I. On February 21, 2008, Petitioner filed a bid protest regarding thel Construction Improvements for the City of Sunny Isles Beach Central Island Drainage and Street Improvements (Bid No. 07-10-02). II. In its bid protest letter, Petitioner argued that it should have been awarded Bid No. 07-10-02 pursuant to paragraph 6.3 of the contract documents and specifications, as well • 1 as paragraph 18.2 of the Request for Proposals. The reasons stated in its Bid Protest `t letter is that Petitioner submitted the lowest bid and the City's decision was arbitrary. III. In its Response to the bid protest by Petitioner, the City argued that the bid protest should be dismissed for the following reasons: (1) the City has the authority to select the most qualified bidder under the City Code; (2) the City has the authority tolselect the bid that it is in the best interest of the City under the bid documents; and (3) the City is not required to select the bidder with the lowest price under the law. IV. The City submitted affidavits by its City Manager, Public Works and Engineering ° Director, and its engineering consultant. These affidavits confirm that I the City has complied with its Code in selecting the contract recipient for Bid No. 07-10-02. V. The Petitioner failed to present any evidence showing that the City's decision was arbitrary. VI. At the bid protest hearing, the Petitioner raised several new arguments that were not stated in its bid protest letter dated February 21, 2008. Conclusion of Law The Hearing Examiner, having duly considered the matter, arguments of counsel and the evidence presented at the public hearing, makes the following conclusions of law: I. The City has shown that the City Commission's decision to award the bid to ' Southeastern is supported by competent and substantial evidence. • II. At the hearing, the Petitioner raised several new arguments that were not raised in the bid protest letter. These arguments are deemed waived in accordance with Section 62-15.A. of the City Code because the Petitioner failed to assert these arguments in the bid protest letter. III. Section 62-8 of the City's Code of Ordinances and the requirements set forth in the City's Request for Proposal ("RFP") are controlling. I F IV. The City Code permits the City to consider things other than price when setting forth the criteria for a contract award. The City has complied with its Codef V. The cases cited by the Petitioner are not controlling on the particular facts of this case. More precisely, the Sweetwater decision relied upon by Petitioner (cited as Sweetwater v. Solo Construction Corporation, 823 So. 2d 798 (Fla. 3d DCA 2002) is distinguishable in that the City Code of Sweetwater required the City to accept the bid of the responsive, responsible bidder submitting the lowest acceptable proposal. In contrast, the Code of the City of Sunny Isles Beach authorizes the City to consider all of its factors on an equal basis in awarding the bid to the lowest responsible bidder. I , I ; VI. The Petitioner's request for relief is therefore denied. These findings and Final I Order shall be presented to the City Commission. ,,,I�J f ORDERED and ADJUDGED thisjA day of March 2008. I I City •bunny Isles Beach Hearing Examiner IAN ea sipp/ 1 SI P. tickens, Esq. / 1 cc: All counsel of record f r l i t i I a I } F. I 1 i I k I t I a t I i STATE OF FLORIDA COUNTY OF MIAMI-DADE:. • , I.Jane A.Hines,City-Clerk of the City of Sunny Isles Beach, Florida,do here_tiV.cartify that the above andloregoingisatrue i f and correct copy of the origin thereof on fits Li this office. 1!'1 - N'ITt:ESS,myhandthis �� i_dayot .��g Jane A.Hines - .. .• :i City Clerk of the City of Sunny Isles te_ .•Ronda ■ .I. 1 I 1 Page 1 of 1 Jane Hines I v S From: Dickens, Sonja K. [skdickens @amstein.com] Sent: Wednesday, March 05, 2008 11:44 AM To: Jane Hines Subject: DOC (102).PDF Attachments: DOC (102).PDF Jane, here is the scanned Order. The original is being mailed. Please mail a copy to the Protestors attorney. Thanks. This electronic mail transmission may contain confidential or privileged informatiori. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of(i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or(ii)promoting, marketing or recommending to another party any transaction or matter addressed herein. 3/7/2008 CITY OF SUNNY ISLES BEACH HEARING EXAMINER STATE OF FLORIDA In the Matter of: Bid Protest by Tran Construction i Inc. of Award of Bid No. 07-10-02 FINAL ORDER ON BID PROTEST BY TRAN CONSTRUCTION INC. OF AWARD OF BID NO. 07-10-02 This matter having come regularly before the City of Sunny Isles Beach (the "City") Hearing Examiner for a bid protest hearing on March 3, 2008, at 3:30 p.m., under an appeal filed by Tran Construction Inc. ("Petitioner") on February 21, 2008. Notice having been given as required by the City Code and all matters submitted at the public hearing having been considered, including the bid protest filed by the Petitioner and the response filed by the City, together with all evidence and exhibits submitted at the public hearing and made a part of the record in this matter, and the Hearing Examiner having carefully considered arguments of counsel and the evidence presented, the Hearing Examiner now makes the following findings! of fact and conclusion of law: Standard of Review The standard of review of an agency's competitive bid award, where discretion is vested for the award of public works contracts, is whether the agency acted arbitrarily or capriciously. See Miami-Dade County v. Church & Tower, Inc., 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998). The burden of proof is on the Petitioner to demonstrate that the City's bid award was "clearly erroneous, contrary to competition, arbitrary, or capricious." See, e.g., Nippon Carbide Industries, Inc. v. State Department of Transportation, 755 So. 2d 190, 191 (Fla. 1st DCA 2000). The City's decision to award the contract must be based on competent, substantial evidence. See id. Findings of Fact 1. On February 21, 2008, Petitioner filed a bid protest regarding the Construction Improvements for the City of Sunny Isles Beach Central Island Drainage and Street Improvements (Bid No. 07-10-02). II. In its bid protest letter, Petitioner argued that it should have been awarded Bid No. 07-10-02 pursuant to paragraph 6.3 of the contract documents and specifications, as well � 1 as paragraph 18.2 of the Request for Proposals. The reasons stated in its Bid Protest letter is that Petitioner submitted the lowest bid and the City's decision was arbitrary. III. In its Response to the bid protest by Petitioner, the City argued that the bid protest should be dismissed for the following reasons: (1) the City has the authority to select the most qualified bidder under the City Code; (2) the City has the authority tolselect the bid that it is in the best interest of the City under the bid documents; and (3) the City is not required to select the bidder with the lowest price under the law. IV. The City submitted affidavits by its City Manager, Public Works and Engineering Director, and its engineering consultant. These affidavits confirm that'the City has complied with its Code in selecting the contract recipient for Bid No. 07-10-02. V. The Petitioner failed to present any evidence showing that the City's decision was arbitrary. VI. At the bid protest hearing, the Petitioner raised several new arguments that were not stated in its bid protest letter dated February 21, 2008. Conclusion of Law The Hearing Examiner, having duly considered the matter, arguments of counsel and the evidence presented at the public hearing, makes the following conclusions of law: I. The City has shown that the City Commission's decision to award the bid to Southeastern is supported by competent and substantial evidence. II. At the hearing, the Petitioner raised several new arguments that were not raised in the bid protest letter. These arguments are deemed waived in accordance kith Section 62-15.A. of the City Code because the Petitioner failed to assert these arguments in the bid protest letter. III. Section 62-8 of the City's Code of Ordinances and the requirements set forth in the City's Request for Proposal ("RFP") are controlling. IV. The City Code permits the City to consider things other than price when setting forth the criteria for a contract award. The City has complied with its Code. V. The cases cited by the Petitioner are not controlling on the particular facts of this case. More precisely, the Sweetwater decision relied upon by Petitioner (cited as Sweetwater v. Solo Construction Corporation, 823 So. 2d 798 (Fla. 3d DCA 2002) is distinguishable in that the City Code of Sweetwater required the City to accept the bid of the responsive, responsible bidder submitting the lowest acceptable proposal! In contrast, the Code of the City of Sunny Isles Beach authorizes the City to consider alllof its factors on an equal basis in awarding the bid to the lowest responsible bidder. . 7 • VI. The Petitioner's request for relief is therefore denied. These findings and Final Order shall be presented to the City Commission. ORDERED and ADJUDGED this&day of March 2008. City y.unny Isles Beach Hearing Examiner eel S 2 9 I ickens, Esq. • cc: All counsel of record STATE OF FLORIDA COUNTY OFMIAMI-DADE:.; y I,Jane A.Hines,City.Clerk of the Cit ofSunny Isles Beach. Florida,do hereliy,certify thatthe above ard'cregoing is a true and correct copy of the crigiriZ1I4thereof on Cis in this office. WITNESS,mt;hand this :6'4'Ida of , �_bb 3i Chi ; " Jone A.Htres • tilt v Clark of the City of$tmny Islas-Bearh�Ronda 4!1 04 ^ Sunny Isles Beach, Florida 33160 Roslyn Brczin,Cammiuianer �(t Gerry Goodman,Commissioner y George"Bud"Scholl,Commissioner (305)947-0606 City Hall sF c y .r (305)949.31 13 Fax A.John Surlag,City Manager (305)947-2150 Building Department Hans Ottinot,City Attorney rrr or sus e" (305)947-5107 Fax Jane A.Hines,CMMC,City Clerk March 5, 2008 Via Facsimile 786-513-2785 and U.S. Mail J. Alfredo De Arenas, Esq. Alvarez, Armas & Borron, PA I 901 Ponce De Leon Boulevard, Suite 304 Coral Gables, FL 33134 I Re: Final Order of Bid Protest by Tran Construction Inc. of Award of Bid No. 07-10-02, Central Island Drainage and Street Improvements Project Dear Mr. Armas: 1 Enclosed please find a certified copy of Hearing Examiner Sonja K. Dickens' Final Order of Bid Protest by Tran Construction, Inc. of Award of Bid No. 07-10-02, which was issued on March 5, 2008. The Hearing Examiner's findings and recommendations shall be presented to the City Commission for final action at the March 20, 2008 City Commission Meeting beginning at 7:30 p.m. in the David P. Samson Commission Chambers, 18070 Collins Avenue, Sunny Isles Beach, Florida 33160. If you have any questions, please do not hesitate to contact me. Sincerely, vzsozas k Jane A. Hines, CMC City Clerk Enclosure: Final Order of Bid Protest c: A. John Szerlag, City Manager Hans Ottinot, City Attorney Fernando Amuchastegui, Assistant City Attorney Jorge Vera, Assistant City Manager/Services Rick Conner, Public Works Director p Henry T. Louden, President, Tran Construction, Inc. Alegandro Mejia, Asst. Project Manager, Southeastern Engineering Contractors, Inc. Randy Pierson, Solo Construction Corp. 1 Felix Acosta, President, Acosta Tractors, Inc. I ■ i I J. Alfredo De Armas, Esq. March 5, 2008 I Page 2 Maria Valentin, Project Manager, Central Florida Equipment Rentals, Inc. Matthew P. Tilli, Vice President Operations, Lanzo Construction Co. Florida Miguel Vila, Vice President, M. Vila& Associates Alex Sanchez, Vice President, Budget Construction Co., Inc. Ron Penta, President, Ocean Bay Construction, Inc. Guy A. Mancini, President, Man-Con, Inc. • CITY OF SUNNY ISLES BEACH HEARING EXAMINER STATE OF FLORIDA i In the Matter of: Bid Protest by Tran Construction Inc. of Award of Bid No. 07-10-02 FINAL ORDER ON BID PROTEST BY TRAN CONSTRUCTION INC. OF AWARD OF BID NO. 07-10-02 This matter having come regularly before the City of Sunny Isles Beach (the "City") Hearing Examiner for a bid protest hearing on March 3, 2008, at 3!30 p.m., under an appeal filed by Tran Construction Inc. ("Petitioner") on February 21, 2008. Notice having been given as required by the City Code and all matters submitted at the public hearing having been considered, including the bid protest filed by the Petitioner and the response filed by the City, together with all evidence and exhibits submitted at the public hearing and made a part of the record in this matter, and the Hearing Examiner having carefully considered arguments of counsel and the evidence presented, the Hearing Examiner now makes the following findings of fact and conclusion of law: Standard of Review The standard of review of an agency's competitive bid award, where discretion is vested for the award of public works contracts, is whether the agency acted arbitrarily or capriciously. See Miami-Dade County v. Church & Tower, Inc., 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998). I The burden of proof is on the Petitioner to demonstrate that the City's bid award was "clearly erroneous, contrary to competition, arbitrary, or capricious. " See, e.g., Nippon Carbide Industries, Inc. v. State Department of Transportation, 755 So. 2d 190, 191 (Fla. 151 DCA 2000). The City's decision to award the contract must be based on competent, substantial evidence. See id. Findings of Fact 1. On February 21, 2008, Petitioner filed a bid protest regarding the Construction Improvements for the City of Sunny Isles Beach Central Island Drainage and Street Improvements (Bid No. 07-10-02). II. In its bid protest letter, Petitioner argued that it should have been awarded Bid No. 07-10-02 pursuant to paragraph 6.3 of the contract documents and specifications, as well 1 as paragraph 18.2 of the Request for Proposals. The reasons stated in its Bid Protest letter is that Petitioner submitted the lowest bid and the City's decision was arbitrary. III. In its Response to the bid protest by Petitioner, the City argued that!,the bid protest should be dismissed for the following reasons: (1) the City has the authority to select the most qualified bidder under the City Code; (2) the City has the authority to select the bid that it is in the best interest of the City under the bid documents; and (3)'the City is not required to select the bidder with the lowest price under the law. i IV. The City submitted affidavits by its City Manager, Public Works and Engineering Director, and its engineering consultant. These affidavits confirm thai the City has complied with its Code in selecting the contract recipient for Bid No. 07-1d-02. V. The Petitioner failed to present any evidence showing that the City's decision was arbitrary. F VI. At the bid protest hearing, the Petitioner raised several new arguments that were not stated in its bid protest letter dated February 21, 2008. Conclusion of Law The Hearing Examiner, having duly considered the matter, arguments of counsel and the evidence presented at the public hearing, makes the following conclusions of law: I. The City has shown that the City Commission's decision to award the bid to Southeastern is supported by competent and substantial evidence. II. At the hearing, the Petitioner raised several new arguments that were not raised in the bid protest letter. These arguments are deemed waived in accordance with Section 62-15.A. of the City Code because the Petitioner failed to assert these arguments in the bid protest letter. III. Section 62-8 of the City's Code of Ordinances and the requirements set forth in the City's Request for Proposal ("RFP") are controlling. IV. The City Code permits the City to consider things other than price when setting forth the criteria for a contract award. The City has complied with its Code! V. The cases cited by the Petitioner are not controlling on the particular facts of this case. More precisely, the Sweetwater decision relied upon by Petitioner (cited as Sweetwater v. Solo Construction Corporation, 823 So. 2d 798 (Fla. 3d DCA 2002) is distinguishable in that the City Code of Sweetwater required the City to accept the bid of the responsive, responsible bidder submitting the lowest acceptable proposal. In contrast, the Code of the City of Sunny Isles Beach authorizes the City to consider all of its factors on an equal basis in awarding the bid to the lowest responsible bidder. VI. The Petitioner's request for relief is therefore denied. These findings and Final Order shall be presented to the City Commission. ORDERED and ADJUDGED thisg 'day of March 2008. City .tunny Isles Beach Hearing Examiner 45111./c S i. I►ickens, Esq. cc: All counsel of record it STATE OF FLORIDA COUNTY OFMIAMI-DADE:.; I . I,Jane A.Hines,City Clerk of the City of Sunny Isles Beach, Florida,do herebycertify that the above andloregoing is a cue and correct copy of the original thereof on Eta In the office. 5 —. y_i t N'ITT;cSS,mvhaidthis is of 2ossB J_ne A.Hines • . _ ' I City Clerk of the Citg of Sunny IsfesBeacb;Florida 1 Page 1 of 3 Jane Hines From: George Sokola [georges @bhaengineers.com] Sent: Thursday, March 06, 2008 8:02 AM To: Rick Conner Cc: Jane Hines; 'Hugo Guevara'; hayes @bhaengineers.com Subject: RE: List of QUALIFIED bidders Rick/Jane, The four(4) lowest bidders were requested to send in follow-up data: Tran Construction Southeastern Engineering Contractors, Inc. Solo Construction Corp. Acosta Tractors, Inc. Regards, George From: Rick Conner [mailto:rconner @sibfl.net] Sent: Wednesday, March 05, 2008 4:52 PM To: George Sokola Cc: Jane Hines Subject: List of QUALIFIED bidders George: Could you please indicated which bidders actually qualified (by your firm's review) for the project? Thanks, From: Jane Hines Sent: Wednesday, March 05, 2008 4:49 PM To: Rick Conner Subject: FW: Rick: This is a listing of the 14 people that responded. Hans said to send the Final Order of Bid Protest to those who were responsive, is that all 14? Please let me know. Thanks. Jane A. Hines, CMC 3/6/2008 Page 2 of 3 City Clerk City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Phone: 305-792-1703 Fax: 305-792-1563 www.sibfl.net PLEASE NOTE: FLORIDA HAS A VERY BROAD PUBLIC RECORDS LAW. MOST WRITTEN COMMUNICATIONS TO OR FROM CITY OFFICIALS REGARDING CITY BUSINESS ARE PUBLIC RECORDS AVAILABLE TO THE PUBLIC AND MEDIA UPON REQUEST. YOUR E-MAIL COMMUNICATIONS MAY THEREFORE BE SUBJECT TO PUBLIC DISCLOSURE. From: George Sokola [mailto:georges @bhaengineers.com] Sent: Wednesday, March 05, 2008 2:28 PM To: Rick Conner Cc: Jane Hines Subject: RE: Rick . your info as as follows N.Bay Rd.—Sidewalk; City--$ 8,711 183rd St Sidewalk City $ 11,920 Jane, attached is approved bidders list for your use Should you require anything else, please call. Regards George Sokola From: Rick Conner [mailto:rconner @sibfl.net] Sent: Wednesday, March 05, 2008 2:12 PM To: George Sokola Cc: Jane Hines Subject: George: As we just discussed, please send the list of qualified bidders on Central Island Drainage to Jane Hines, our City Clerk. I've copied her on this e-mail and so all you have to do is hit "Reply to All". Much thanks in advance, Rick Conner Director of Engineering & Public Works 18070 Collins Avenue Sunny Isles Beach, Florida 33160 305-792-1928 office 786-208-3498 cell 3/6/2008 Page 3 of 3 PLEASE NOTE: FLORIDA HAS A VERY BROAD PUBLIC RECORDS LAW. MOST WRITTEN COMMUNICATIONS TO OR FROM CITY OFFICIALS REGARDING CITY BUSINESS ARE PUBLIC RECORDS AVAILABLE TO THE PUBLIC AND MEDIA UPON REQUEST. YOUR E-MAIL COMMUNICATIONS MAY THEREFORE BE SUBJECT TO PUBLIC DISCLOSURE. PLEASE NOTE: FLORIDA HAS A VERY BROAD PUBLIC RECORDS LAW. MOST WRITTEN COMMUNICATIONS TO OR FROM CITY OFFICIALS REGARDING CITY BUSINESS ARE PUBLIC RECORDS AVAILABLE TO THE PUBLIC AND MEDIA UPON REQUEST. YOUR E-MAIL COMMUNICATIONS MAY THEREFORE BE SUBJECT TO PUBLIC DISCLOSURE. 3/6/2008 A for the required supply, brand, service, or construction item capable of fulfilling the needs of • the City. The City Manager or purchasing agent shall conduct negotiations, as appropriate, as to price, delivery, and terms. A record of sole source procurements shall be available as a public record and shall identify each purchase order and/or contract. G. Exempt contractual services and products. Other exempt contractual services and products not subject to the competitive procurement requirements of this Code are listed as follows: (1) Academic program reviews or lectures or seminars by individuals. (2) Artistic services which are original and creative in character and skill in a recognized field of artistic endeavor such as music, dance, drama, painting, sculpture and the like. However, contracts for artistic instructors, coaches and assistants are deemed contractual services subject to the requirements of competitive procurement. (3) Performing artists and entertainers as approved by the City Manager/purchasing agent when deemed in the City's best interests, for the benefit of the citizens of Sunny Isles Beach and the general public at any City function. (4) Advertising. (5) Utilities, including but not limited to, electric, water and telephone. (6) Items purchased for resale to the public. H. Competitive proposals shall not be required when a purchase is made for materials, equipment, prefabricated elements and components, appliances, fixtures and supplies, bought Under a sales tax saving procedure constituting part of a construction project award, which construction contract has been awarded in accordance with this chapter. § 62-14. Contract administration. A. A contract administration system designed to ensure that a bidder/offeror/contractor is performing in accordance with the solicitation under which a contract was awarded and the terms and conditions of the contract shall be maintained by the City Manager. B. All determinations and other written records pertaining to the solicitation, award or performance of a contract shall be maintained for the City in a contract file by the City Manager and be retained and disposed of in accordance with the records retention guidelines and schedules approved by the City Clerk. §62-15. Protest procedures. This article shall govern any protest made by a participant in any competitive proce I s utilized for the selection of a person or entity in regard to any response to a City request for proposalinvitation to bid and/or request for qualification ("request for proposals"). A. Protest of any City recommendation for an award in response to a request for proposals shall be filed with the City Clerk and mailed by the protesting to all participants in the competitive process within seven days of the City's recommendation for an award or the City's actual award whichever comes first. Such protest shall be in writing, shall state the particular grounds on which it is based, shall include all pertinent documents and evidence and shall be accompanied by a cashier's check in the amount of$250 to reimburse the City for all administrative costs associated with the appeal process. Any grounds not stated shall be deemed waived. B. Protests shall be referred by the City Clerk to the City Attorney who shall select a hearing examiner who shall hold a hearing and submit written findings and recommendations within 10 days of the filing of the protest. The hearing examiner shall consider the written protests, supporting documents in evidence, the City's recommendations and supporting documentation and all evidence presented at the hearing. Such finding and recommendation shall be filed with the City Clerk. C. Hearing examiners may be retired judges, certified mediators or other impartial parties as selected by the City Attorney. - I , n„ ' D. The hearing examiner's findings and recommendations shall be presented to the City u;�d" Commission for final action at the next regular or specially scheduled meeting.INotice shall be mailed to all participants in the competitive process at least seven days in advance of any final action by the City Commission. The notice shall include the hearing examiner's findings and recommendations. E. Failure to follow the protest procedures set forth herein shall automatically nullify any protest or claim brought by an aggrieved bidder, offeror or contractor. §62-16. Ethics in public contracting. Editor's Note:Amended at time of adoption of Code(see Ch. 1,General Provisions,Art.I). I In addition to all ethical rules and guidelines set forth by the Commission on Ethics, the Code of the City of Sunny Isles Beach, Editor's Note:See ch.33,Ethics,code of.the Miami-Dade County Code, as applicable to the City of Sunny Isles Beach, and the State of Florida, the City Manager may impose any one or more of the following sanctions on a City employee for violations of ethical standards set forth by the City, Miami-Dade County or the State of Florida including, but not limited to, oral or written warnings or reprimands, suspension with or without pay for specified periods of time or termination of employment. For nonemployees, for violations of ethical standards, the City Commission may terminate any contract with the City of Sunny Isles Beach. §62-17. Repealer. All provisions of the Code of Metropolitan Miami-Dade County as made applicable to the City by Article VIII, § C-8.3, of the City Charter and Ordinance 97-10 Editor's Note:Ordinance No.97-10 is the original Purchasing Ordinance upon which this revised chapter is based.which are in conflict with this chapter are hereby repealed. Chapter 62: PURCHASING [HISTORY: Adopted by the City Commission of the City of Sunny Isles Beach 11-20(1997 by Ord. No. 97-10; amended in its entirety 7-20-2000 by Ord. No. 2000-101. Subsequent amendments noted where applicable.] GENERAL REFERENCES Charter provisions re:competitive bids and purchasing— See Charter§C-3.10. §62-1. Purpose. The purpose of the purchasing procedures of the City of Sunny Isles Beach (hereinafter, "chapter") is to provide for the fair and equitable treatment of all persons involved inlpurchasing by the City, to maximize the purchasing value of public funds in procurement, and to provide safeguards for maintaining a procurement system of quality and integrity. I §62-2. Applicability. This chapter applies to contracts for the procurement of supplies, services and construction entered into by the City after the effective date of this chapter. It shall apply to every expenditure of public funds by the City for public purchasing irrespective of the source of the furids. When the procurement involves the expenditure of federal assistance or state assistance of contract funds, the procurement shall be conducted in accordance with any mandatory applicable federal law and regulations or state law or regulations. Nothing in this chapter shall prevent the City:from complying with the terms and conditions of any grant, gift, or bequest that is otherwise consistent with law. §62-3. Public access to procurement information. Procurement information shall be in public record to the extent provided in Chapter 119, Florida Statutes, and shall be available to the public as provided in such statute. § 62-4. Establishment of purchasing agent. The City Manager or his/her designee shall be the chief purchasing agent of the City. Subject to the terms of this chapter, and unless the City Clerk or City Attorney choose otherwise, the purchasing agent shall contract for, procure or so process the procurement, purchase, storage and distribution all supplies, materials, equipment and certain contractual serviceslrequired by any office, department or agency of the City. The purchasing agent shall establish and enforce specifications, inspect or supervise the inspection of all deliveries and have full and complete charge of, and be responsible for, all supplies, materials, and equipment purchased for or belonging to the City. All expenditures pursuant to this chapter shall conform to the provisions of § C-3.10 of the City Charter. § 62-5. Unauthorized purchases. Except as herein provided in this chapter, it shall be a violation of this chapter for any City officer, employee, or other person to order the purchase of, or make any contract for, materials, supplies or services within the purview of this chapter, in the name of or on behalf of the City other than through the purchasing agent or a designee of the purchasing agent, and the City shall not be bound by any purchase order or contract made contrary to the provisions herein. § 62-6. Purchasing limitations; effect on competitive bidding requirement. A. Purchases less than $2,500. Purchases of, or contracts for, materials, supplies, equipment, improvements or services for which funds are provided in the budget, where the total amount to be expended is not in excess of$2,500 may be made or entered into by the City Manager without submittal to the City Commission and without competitive bidding. Single purchases or contracts in excess of$2,500 shall not be broken down to amounts less than $2,500 to avoid the requirements of this section. B. Purchases more than $2,500 but less than $10,000. Purchases of, or contractslfor, materials, supplies, equipment, improvements or services for which funds are provided in the budget, where the total amount to be expended is in excess of$2,500, but which do not exceed $10,000 may be made, or entered into, by the City Manager without submittal td the City Commission, but shall require compliance with the competitive bidding requirements set forth in §62-7 of this chapter. Single purchases or contracts in excess of$10,000 shall not be broken down to amounts less than $10,000 to avoid the requirements of this section. C. Purchases in excess of$10,000. The City Commission shall approve all purchases of or contracts for materials, supplies, equipment, public improvements or services where the total amount to be expended is more than $10,000. D. Purchases in excess of$25,000. For purchases in excess of$25,000 the City Commission shall follow the formal provisions contained in §62-7 below. E. The City Manager may not purchase or contract for any item or service which exceeds any budget appropriation until such a time the City Commission amends the budget to increase the appropriation to the applicable level. §62-7. Competitive bidding procedure. A. Purchases under$25,000. (1) Whenever competitive bidding is required by this chapter, the City Manager shall direct that bid proposals which provide specifications for the purchase or contract be prepared. (2) The City Manager shall solicit bids from at least three persons or entities engaged in the business of furnishing such materials, supplies, equipment and public improvements or rendering such services. (3) The City Manager may publish a public invitation to bid items under$25,000. (4) Bids shall be awarded to the lowest, most responsive, responsible bidder,las determined by the City Commission and/or the City Manager as the case may be, subject to the right of the City to reject any and all bids, to waive any irregularity in the bids or bidding procedures and subject also to the right of the City to award bids and contracts to bidders other than the low bidder. Until a formal contract is executed, the City reserves the right to reject all bids. B. Purchases over$25,000. Bids for purchases over$25,000 shall be awarded in the same manner as purchases as set forth in § 62-6, except these additional requirements shall pertain: (1) Conditions for use. All contracts with the City in amounts over$25,000 shall be awarded by competitive sealed bidding except as otherwise provided in §62-13, or as otherwise approved by City Commission. (2) Invitation for bids. An invitation for bids (including RFPs and RFQs) shall be issued and shall include specifications and all contractual terms and conditions applicable to the procurement. (3) Public notice. Public notice of the invitation for bids shall be given not less than 14 calendar days prior to the date set forth in the notice for the opening of bids. Such notice may be given by publication in a subscription newspaper of general circulation in the City. The notice shall state the place, date, and time of bid opening. All bids shall be received in the City Manager's office on, or before, the date and time set forth in the notice. (4) Bids; bid opening. (a) Sealed bids will be initialed on the outside of the envelope by the person receiving the package, the time and date will be stamped on the envelope which should be marked "IMPORTANT, BID ENCLOSED." The bid package will be held in a secure place until the scheduled time for the bid opening. (b) Bids shall be opened publicly, in the presence of one or more witnesses, at the time and place designated in the public notice of the invitation for bids! The amount of each bid and such other relevant information as the City Manager deems appropriate, together with the name of each bidder, shall be recorded.! (5) Cancellation of invitations for bids or requests for proposals. An invitation for bids, or request for proposals, or other solicitation may be canceled, or any or all bids or proposals may be rejected in whole, or in part, as may be specified in the solicitation, when it is in the best interests of the City. The reasons therefor shall be made part of the contract file. Each solicitation issued by the City shall state that the solicitation may be canceled and that any bid or proposal may be rejected, in whole or in part,in the best interests of the City. Notice of cancellation shall be sent to all businesses solicited. The notice shall identify the solicitation, explain the reason for cancellation and,!where appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurement of similar items. (6) Correction or withdrawal of bids; cancellation of awards. In general, bids shall be unconditionally accepted without alteration or correction, except as authorized in this chapter. However, correction or withdrawal of inadvertently erroneous bids before or after bid opening, or cancellation of awards or contracts based on such bid mistakes, may be permitted, where appropriate. Mistakes discovered before bid opening may be modified, or the bid may be withdrawn by written or telegraphic notice received in the office designated in the invitation for bids prior to time set for bid opening. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the City, or fair competition, shall be permitted. In lieu of bid correction, a low bidder alleging a material mistake of fact may be permitted to withdraw its bid if: (a) The mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or (b) The bidder submits evidence which clearly and convincingly demonstrates that a mistake was made. All decisions to permit the correction or withdrawal of bids, or to cancel awards or contracts based on bid mistakes, shall be supporti d by a written determination made by the purchasing agent. (c) Notwithstanding the foregoing, the City Commission shall have the authority to waive any and all irregularities in any and all proposals. § 62-8. Award. A. All contracts shall be awarded by the City Manager, as stated above, to the lowest responsible and responsive bidder. In addition to price, there shall be considered the following: (1) The capacity, ability and skill of the provider to perform the contract; (2) Whether the provider can perform the contract within the time specified without delay or • interference; (3) The character, integrity, reputation,judgment, experience and efficiency ofithe provider; (4) Professional licensure required when service of a skilled nature as required by law to perform such service and/or skill; (5) The quality of performance of previous contracts; (6) The previous and existing compliance by the provider with laws and ordinances relating to the contract; (7) The ability of the provider regarding future maintenance and service for the use of the subject of the contract; (8) The City Manager may, by administrative order, establish a set of criteria of a numerical nature that may be utilized in awarding contracts hereunder. B. The contract shall be awarded by the City Manager or the City Commission, as the case may be, with reasonable promptness by appropriate written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. • C. In the event the lowest, most responsive and responsible bid for a project exceeds available funds, and the City Commission does not make available additional funds, the City Manager is authorized, when time or economic considerations preclude resolicitation of bids, to negotiate an adjustment of the bid price as long as the scope of work is not changed with the lowest, most responsive and responsible bidder, in order to bring the bid within the amount of available funds. Final negotiation shall be in written form as approved by the City Manager. D. The City retains the right to reject all bids should negotiations fail. This negotiation may not be used to ascertain the lowest responsive and responsible bid. E. Until a formal contract is executed, the City reserves the right to reject all bids. §62-9. Responsibility of bidders or offerors. If a bidder or offeror who otherwise would have been awarded a contract is found nonresponsible, a written determination of non-responsibility, setting forth the basis of the finding shall be prepared by the City Manager or the purchasing agent. Grounds for determination of nonresponsibility may include, but are not limited to, the unreasonable failure of a bidder or offeror to promptly supply information in connection with an inquiry with respect to nonresponsibility. A copy of the determination shall be sent promptly to the nonresponsible bidder or offeror. The final determination shall be made part of the contract file and be a public record. §62-10. One response. If only one responsive bid or proposal for commodity or contractual service is received, in response to an invitation for bid/proposal, an award may be made to the single bidder/proposer, if the City Manager finds the price submitted is fair and reasonable, and that other prospective bidders had reasonable opportunity to respond, or there is not adequate time for resolicitation. Further, the City Manager reserves the right, if it is in the best interests of the City,I to negotiate with the sole bidder/proposer for the best terms, conditions and price. The City Manager shall document the reasons that such action is in the best interest of the City. Otherwise, the bid/proposal may be rejected and: A. New bids or offers may be solicited; B. The sole bid/proposal may be rejected. C. If the City Manager determines in writing that the need for the supply or service continues, but that the price of the one bid/proposal is unreasonable and there is not time for resolicitation or resolicitation would likely be futile, the procurement may then be conducted under§ 62-13D or F, as appropriate. § 62-11. Bidding documentation to remain property of City. All bids and accompanying documentation received from bidders in response to theinvitation to bid shall become the property of the City and will not be returned to the bidders. In the event of contract award, all documentation and work product produced as part of the contract shall become the exclusive property of the City. This subsection is applicable to request for proposal and request for letter of interest documents, which also become property of the City. § 62-12.Waiver of competitive bidding procedures. The City Commission may authorize the waiver of competitive bidding procedures upon the recommendation of the City Manager that it is in the City's best interest to do so, to:obtain goods and services which cannot be acquired through the normal purchasing process due to insufficient time, the nature of the goods or services, or other factors. Purchases authorized by waiver process shall be acquired after conducting a good faith review of available sources and negotiation as to price, delivery and terms. §62-13. Exemptions from competitive bidding. The following shall be exempt from the competitive bidding procedures outlined in this chapter A. Transactions described in § 62-6A of this chapter. B. Contracts for professional services, except for those contracts of more than $10,000 for professional services governed by Florida Statutes § 287.055 (the ConsultantslCompetitive Negotiations Act). C. Purchases made under state general service administration contracts, federal, county or other governmental contracts or competitive bids with other governmental agencies. D. Purchases arising out of or because of emergencies which shall be defined as a situation, occurrence or matter necessitating immediate or quick action and not permitting adequate time to utilize the competitive bidding process. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included iri the contract file. As soon as practicable, a record of each emergency procurement shall be:made and shall set forth the contractor's name, the amount and type of the contract, a listing of the item(s) procured under the contract, and the identification number of the contract file. E. Under circumstances where time constraints do not permit the preparation of clearly drawn specifications or situations where, after competitive bidding, no bids meeting bid requirements are received, all compliant bids received are too high, or all bids are rejected for failure to meet bid requirements (i.e., bids are noncompliant). F. Supplies, equipment or services available from a sole source only may be exempted from the bidding requirements of this chapter by the City manager upon the filing of a written request by a department head to the City Manager outlining the conditions and circumstances involved, after conducting a good faith review of available sources, a contract may be awarded without competition when the City Manager or purchasing agent determines in writing, after conducting a good faith review of available sources, that there is only one source for the required supply, brand, service, or construction item capable of fulfilling the needs of the City. The City Manager or purchasing agent shall conduct negotiations, as appropriate, as to price, delivery, and terms. A record of sole source procurements shall be available as a public record and shall identify each purchase order and/or contract. G. Exempt contractual services and products. Other exempt contractual services and products not subject to the competitive procurement requirements of this Code are listed:as follows: (1) Academic program reviews or lectures or seminars by individuals. (2) Artistic services which are original and creative in character and skill in a recognized field of artistic endeavor such as music, dance, drama, painting, sculpture and the like. However, contracts for artistic instructors, coaches and assistants are deerned contractual services subject to the requirements of competitive procurement. (3) Performing artists and entertainers as approved by the City Manager/purchasing agent when deemed in the City's best interests, for the benefit of the citizens of Sunny Isles I Beach and the general public at any City function. (4) Advertising. (5) Utilities, including but not limited to, electric, water and telephone. (6) Items purchased for resale to the public. H. Competitive proposals shall not be required when a purchase is made for materials, equipment, prefabricated elements and components, appliances, fixtures and supplies, bought under a sales tax saving procedure constituting part of a construction project award, which construction contract has been awarded in accordance with this chapter.' §62-14. Contract administration. A. A contract administration system designed to ensure that a bidder/offeror/contractor is performing in accordance with the solicitation under which a contract was awarded and the terms and conditions of the contract shall be maintained by the City Manager. I B. All determinations and other written records pertaining to the solicitation, award�or performance of a contract shall be maintained for the City in a contract file by the City Manager and be retained and disposed of in accordance with the records retention guidelines and schedules approved by the City Clerk. I §62-15. Protest procedures. This article shall govern any protest made by a participant in any competitive process utilized for the selection of a person or entity in regard to any response to a City request for proposaUnvitation to bid and/or request for qualification ("request for proposals"). A. Protest of any City recommendation for an award in response to a request for proposals shall be filed with the City Clerk and mailed by the protesting to all participants in the competitive process within seven days of the City's recommendation for an award or the City's actual award whichever comes first. Such protest shall be in writing, shall state the particular grounds on which it is based, shall include all pertinent documents and evidence and shall be accompanied by a cashier's check in the amount of$250 to reimburse the City for all administrative costs associated with the appeal process. Any grounds not stated shall be deemed waived. I B. Protests shall be referred by the City Clerk to the City Attorney who shall select a hearing examiner who shall hold a hearing and submit written findings and recommendations within 10 days of the filing of the protest. The hearing examiner shall consider the written protests, supporting documents in evidence, the City's recommendations and supporting l documentation and all evidence presented at the hearing. Such finding and recommendation shall be filed with the City Clerk. C. Hearing examiners may be retired judges, certified mediators or other impartial parties as selected by the City Attorney. D. The hearing examiner's findings and recommendations shall be presented to the City Commission for final action at the next regular or specially scheduled meeting. Notice shall be mailed to all participants in the competitive process at least seven days in advance of any final action by the City Commission. The notice shall include the hearing examiner's findings and recommendations. E. Failure to follow the protest procedures set forth herein shall automatically nullify any protest or claim brought by an aggrieved bidder, offeror or contractor. §62-16. Ethics in public contracting. Editor's Note:Amended at time of adoption of Code(see Ch. 1,General Provisions,Art.I). In addition to all ethical rules and guidelines set forth by the Commission on Ethics,the Code of the City of Sunny Isles Beach, Editor's Note:See ch.33,Ethics,Code of.the Miami-Dade County Code, as applicable to the City of Sunny Isles Beach, and the State of Florida, the City Manager may impose any one or more of the following sanctions on a City employee for violations of ethical standards set forth by the City, Miami-Dade County or the State of Florida including, but not limited to, oral or written warnings or reprimands, suspension with or without pay fdr specified periods of time or termination of employment. For nonemployees, for violations of ethical standards, the City Commission may terminate any contract with the City of Sunny Isles Beach. §62-17. Repealer. All provisions of the Code of Metropolitan Miami-Dade County as made applicable to the City by Article VIII, § C-8.3, of the City Charter and Ordinance 97-10 Editors Note:Ordinance No.97-10 is the original Purchasing Ordinance upon which this revised chapter is based.which are in conflict with this chapter are hereby repealed. Page 1 of 1 Jane Hines From: Jane Hines Sent: Tuesday, March 04, 2008 4:29 PM To: 'Dickens, Sonja K.' Cc: Legal Dept; John Szerlag Subject: Order on Tran Bid Protest Hearing Attachments: Order on Tran Bid Protest Hearing 030308.doc Ms. Dickens: Attached for your review is the proposed Order on the Tran Bid Protest of March 3, 3008 regarding Bid No. 07-10- 02. Thank you. Jane A. Hines, CMC City Clerk City of Sunny Isles Beach 18070 Collins Avenue � Sunny Isles Beach, Florida 33160 Phone: 305-792-1703 Fax: 305-792-1563 www.sibfl.net PLEASE NOTE: FLORIDA HAS A VERY BROAD PUBLIC RECORDS LAW. MOST WRITTEN COMMUNICATIONS TO OR FROM CITY OFFICIALS REGARDING CITY BUSINESS ARE PUBLIC RECORDS AVAILABLE TO THE PUBLIC AND MEDIA UPON REQUEST. YOUR E-MAIL COMMUNICATIONS MAY THEREFORE BE SUBJECT TO PUBLIC DISCLOSURE. ?stsThAsse‘, P4 9 v\c, ZP aia gu"- 3CDV 41 CO QQ,e_) 3 13y 3/4/2008 " CITY OF SUNNY ISLES;BEACH ' I. > .18070 Collins Avenue ■ - =..' +- ti Sunny Isles Beach, Florida 33160 ,o"" +<e e 305.947.0606 ' " °^ to . • www.sibfl.net t , P City Commission February 25, 2008 �F�n "° P�oS y Or sU" Norman S. Edelcup Mayor Lewis J. Thaler VIA FACSIMILE (305) 756-7780 AND U.S. MAIL Vice Mayor Roslyn Brezin Henry T. Louden, President Commissioner Gerry Goodman Tran Construction Commissioner 1000 N.W. 54th Street George"Bud"Scholl Miami, Florida 33127 Commissioner Re: Scheduling of Protest Hearing A.John Szertag City Manager Dear Mr. Louden: Hans Ottinot I City Attorney This is to advise that a Protest Hearing regarding Sunny Isles Beach Bid No. 07- Jane A. Hines 10-02 Central Island Drainage & Street Improvements has been scheduled for City Clerk Monday, March 3, 2008, 3:30 p.m., at the Sunny Isles Beach Government Center, David P. Samson Commission Chambers, 18070 Collins Avenue, Sunny Isles Beach, Florida 33160. If you are not able to attend the hearing on the aforementioned date, you may file a request for continuance with the Office of the City Clerk, by noon, Thursday, February 28, 2008. Please be advised that you must submit any and all pertinent t documentation relative to this matter that you wish to be considered to Jane Hines, CMC, City Clerk, by noon, Friday, February 29, 2008. Should you have any questions, please feel free call me at (305) 792-1703. Thank you. Sincerely, CM.-t 1s, itsLa+--- Jane A. Hines, CMC City Clerk /pw cc: A. John Szerlag, City Manager Mans Ottinot, City Attorney Jorge L. Vera, Assistant City Manager/Services Rick Conner, Director of Public Works and Engineering J. Alfredo De Armas, Esq., Via Facsimile (786) 513-2785 Page 1 of 1 Jane Hines From: Debra Lima Sent: Tuesday, March 04, 2008 3:55 PM To: Jane Hines Subject: Proposed Order on Tran Bid Protest Attachments: order on Tran bid protest hearing.doc Jane, please immediately forward this proposed Order to the Hearing Examiner, Ms. Sonja Dickens, Esq. 3/4/2008 DRAFT CITY OF SUNNY ISLES BEACH BID PROTEST HEARING Bid No. 07-10-02 Central Island Drainage & Improvements Project MONDAY, MARCH 3, 2008, AT 3:30 P.M. David P. Samson Commission Chambers Hearing Examiner:Sonja K. Dickens, Esq. Hans Ottinot, City Attorney Jane A. Hines, CMC, City Clerk Alfredo De Armas, Esq., Attorney for Tran Construction In Attendance: Fernando Amuchastegui, Assistant City Attorney, Mayor Norman S. Edelcup Vice Mayor Lewis J. Thaler Commissioner Gerry Goodman , Jorge Vera, Assistant City Manager/Services Doug Haag, Assistant City Manager/Finance Rick Conner, Public Works Director Victor Hugo Guevara, Beiswenger Hoch and Associates Mauricio Betancur, Adm. Coordinator II, City Clerk's Office Henry Louden, President, Tran Construction Attorney with Mr. De Armas Stenographer for Tran Construction City Attorney Hans Ottinot noted that he had provided Hearing Examiner Sonja K. Dickens, Esq. with a copy of the City's response and Memorandum of Law outlining the City's arguments in response to the Bid Protest filed by Tran Construction the protester. Hearing Examiner Sonja K. Dickens, Esq. stated as a matter of procedure the burden is on Tran Construction, and she gave an introductory statement noting that this is a Bid Protest proceeding, the burden is on the person making the protest in order to prove their case, understand that it will be counted as substantial evidence, and that this will not be a formal evidentiary hearing so to speak, meaning that she will take into consideration any and all reasonable testimony, and/or evidence. She said she will give the protester the opportunity to present their side of the matter first, and then she will give the City the opportunity to respond, no matter where we end up at the end, the protester will have the last words since the burden is on the protester, but she will give an opportunity for both sides to cross-examine each other's witnesses, and the like. Trans Construction: Alfredo De Armas, Esq., of the Law Firm of Alvarez, Armas and Verone, representing Trans Construction the protester in this action. Action: Mr. De Armas began with a review of the pertinent provisions of the Code and of the o,,.,,.,o..,uln,ane aw o...tocf nzutm mmna r request because he believes it is really dispositive of this case, and he believes that it indicates that the City is absolutely without authority to do what it did which is basically a ranking of bidders, it is not called for under the Code, and it is not calledlfor under the bid documents. The bid document itself begins with a Request for Proposals and in paragraph 18.2 in the RFP, it defines the standard on which the award is going to be made, and it says clearly that it is the intent of the owner to award a contract to the lowestlresponsible total based bidder whose bid is in conformance with the bidding documents and does not exceed the funds available. Mr. De Armas addressed some facts here: first of all nobody is in dispute, nobody is arguing that Tran is not the lowest responsible total based bidder, in point of fact, Tran Construction is the lowest bidder by a little bit more than $100,000.00 close to $107,000.00 and that is not disputed. The budget for this project is $3.7 Million Dollars, so Tran Construction base bid of $3,532,842.00 comes in within the budget and does not exceed the funds available. He addressed the City Code, and there are two provisions that are salient: Section 62-7 regarding procurement when the bid is lower than $25,000.00, we have a bid of less than $25,000.00, the contract is awarded to the lowest most responsive responsible bidder. Section 62-7 (A)(4) "Bids shall be awarded to the lowest, most responsive, responsible bidder, as determined by the City Commission and/or the City Manager as the case may be....". The next Section 62-7(B) for purchases over$25,000 and it is a completely different standard. It says "Purchases over $25,000. Bids for purchases over $25,000 shall be awarded in the same manner as purchases as set forth in Section 62-6...", not the preceding (A)62-7,just to be clear on that, except these additional requirements shall pertain, and the salient provision is paragraph 2 here, and it says: (2) Invitation for bids. An invitation for bids (including RFPs [which is what we have here] and RFQs) shall be issued and shall include specifications and all contractual terms and conditions applicable to the procurement, and theIRFP here clearly says that it is the intent of the owner to award a contract to the lowest responsible not to the lowest most responsive as is the case for contracts under$25,000. In Section 62.8 Award., it reads almost exactly the same, it reads: All contracts shall be awarded by the City Manager, as stated above, to the lowest responsible and responsive bidder, and again, we don't have the language lowest, most responsible and responsive bidder, and there is a contradict distinction which is very important and we are going to get into it. Mr. De Armas said that the first proposition he wants to cite to the court is the proposition that when legislators choose words they do it for a purpose, and when legislators choose to use separate and different distinct language in two provisions that follow each other, we must assume that they did so because they want to contrast and differentia, and he cites the court to St. George Island Limited vs. Rund, (he gave a copy to Ms. Dickens and to Mr. Ottinot), the principal of construction that we are citing to and it says, "Where the legislature uses exact words in different statutory provisions the court may assume that they were intended to mean the same thing," it is not what they did here, it goes on, "moreover the presence have determined one portion of a statute and its absence from another argues against reading it as implied by the section from which it is omitted.", so clearly, the intent of the City of Sunny Isles Beach in saying under $25,000 its lowest most responsive bid as opposed to when it is over$25,000 when we are awarding to the lowest responsible bidder is to make a distinction. What do these terms mean? We had these terms addressed in the City of Sweetwater, and au Drrdaet 117_1n_nn nI nna i what happened in Sweetwater which is really the leading case on these procurement issues (he gave a copy to Ms. Dickens and Mr. Ottinot), in the City of Sweetwater, the request for proposals was almost identical to theirs, and the highlighting of the case begins, "Instructions to bidders were included in the limitation that informed bidders of the conditions for bidding, paragraph 18 of the instructions to bidders established the basis for award of the contract and provided, and here language is almost identical to ours, "The contract will be awarded to the responsive responsible bidder submitting the lowest acceptable proposal.", and what happened is that notwithstanding that language Mayor Garcia attempted to award a contract not to the lowest responsive responsible bidder but to a bidder that he found to be lowest and more responsive and more responsible after weighing qualifications, and this is made clear when we go to the next page of the case, it says question, and this was a cross-examination of Mayor Diaz, "On July 11 of this year did you as a strong mayor believe that you could evaluate responsible bidders and determine which of those bidders you were going to award a contract to", "yes sir", "and even though Solo was the low bidder, one of the responsive bidders and one of the responsible bidders you believed at that time you could still award it to another contractor." Answer: "yes, based on all the information.", and that is exactly what happened here, and in this case the Circuit Court as well as the 3rd DCA affirming said that you can't do that, and that is exactly what you cannot do as a municipality procuring a contract that is to be awarded to the lowest and responsible bidder. Ms. Dickens said that she sees a little bit of a distinction in the standards, in Sweetwater it looks as if their Code specifically required that as long as the City found that the bidder was responsive and responsible that they had no other choice but to go to the low bidder. When she looks at the standard in Sunny Isles Beach it does not pivot the two against the one, in Sunny Isles Beach, it appears to her that all three standards stand along side each other, so that it has to be the lowest responsive and responsible, they are all the same, and that the City can then consider that criteria together, unlike Sweetwater which says responsive, responsible and then they have to have the lowest price, so how do you distinguish that. Mr. De Armas responded because that is exactly what the court goes on to say, and if you go to the back of the case, the forth page from the back, at the bottom there is a number 14 where the court gets to its opinion, and it says"The City of Sweetwater's actions in attempting to award the contract to the most responsible bidder as to opposed to the lowest responsible bidder,", exactly what we have here, an attempt to award a contract to a more responsible bidder than Tran Construction, as opposed to the lowest responsible bidder demonstrates that the attempted award was made without reason, or for a reason that is merely per textural, and that is void of any legal basis, accordingly, the City's decision to award the contract to United Engineering,", in our case Southeastern, "was arbitrary and capricious and based upon criteria that were neither included in the bid documents or clearly defined in any manner whatsoever.", and it goes on to number 15, "The City of Sweetwater's actions in attempting to award the contract to United Engineering Corporation are not only arbitrary and capricious but also are contrary to Florida's competitive bid statutes. The Code provides that the City of Sweetwater City Council will accept the bidder of the lowest responsible bidder who will perform the contract in a matter most beneficial. Since Solo Construction was a responsible bidder...", and in this case, there was no question that Tran is a responsible bidder, "submitted the lowest bid", again there is no question but that Tran submitted the lowest bid, q,......m•fli,,,,t flid Dmmel M_V1119 MflflQ "and offered to perform the contract in the shortest span of time the City was legally required to award the stormwater improvement to Solo. The City's attempts to award the stormwater improvement contract to United as the most responsible bidder is inconsistent with the requirements of the City Code." What we are doing is, when we say lowest responsible bidder as opposed to the under$25,000 language that says lowest most responsible bidder is your only quantifying one aspect and that is low, once you are the lowest, that is it, the City has no authority, so long as you are one of the responsible and responsive bidders which he believes there shouldn't be any question of, the same exact proposition is universally applied. Mr. De Armas said that he has for the court, Boeing Engineering Corporation which addresses the same issue, of Indiana, and in that case we had the same thing, we had a bid, a request for proposals that was to be awarded to the lowest responsible responsive bidder, the municipality there acted as if they were awarding to the lowest more or most responsible bidder and the court said you can't do that, there is a difference between lowest responsible bidder and lowest most responsible bidder. Ms. Dickens said then, are you saying then that when the City awards a construction contract that the only consideration that the City can make is the price? Mr. De Armas said no, the City determines whether bidders are qualified or not, and that it has an obligation to do, and there is a set criteria that they use to determine whether somebody is responsive and responsible or not. Ms. Dickens said then, assuming that people are not disqualified, bids come in, some are thrown out they didn't meet the requirements, they are disqualified, not those, let's assume that the City have gotten a list of contractors that are qualified to do the work, and so then they go to the next step, are you then saying that out of that group of those contractors that are qualified to do the work, the City is then legally required to take the lowest bid and are not to consider any other factors. Mr. De Armas said absolutely, when it says lowest responsible bid, that is exactly what it means. Once these bidders are found to be responsible and response you do not quantify more responsible or less responsible, they are all responsible, now you go to one criteria, lowest bid, and that is exactly what this court in Indiana said as well, "The Board may not make comparisons of bidders to determine responsibleness, responsibleness is a minimal requirement of bidders, not a competitive standard among bidders. A bidder can be un-responsible only if the awarding body would not award the contract to the bidder even if that bidder had submitted the only bid. The absence of the term best, or most responsible unmistakenably demonstrates the legislature did not intend responsibleness to become a competitive factor between bidders, but rather the legislator intended to give the Board the discretion to reject bids from contractors who are unable to perform the work satisfactory they have awarded the contract. The Board may not award the contract to Boeing simply because the subjective factors met materially in favor of Boeing. Whether Boeing is more responsible than WPM is irrelevant when determining whether WPM is the lowest responsible and responsive bidder. Ms. Dickens said she sees the law is that there are two governing principals as it relates to awarding contracts in the State of Florida for municipalities, you have the State Statutes, and you have your local ordinance, and in the absence of a local ordinance, youlrely on the State Statute, however, if you have a local ordinance then that, unless it is contradictory to what the State law says, controls. Mr. De Armas said he agrees, and Ms. Dickens said with that being o,...—.., cu nz+n_no nan¢na said, you read the Sunny Isles Beach Code, and you see that Sunny Isles Beach not only limits their bidding to costs, but in their Code in Section 62.8, what do you think of these other listed factors, and Mr. De Armas said those are factors that you use to determine whether a bidder is responsible or not, that is the criteria that you use to determine responsibility velnon period, once you determine that a bidder is responsible then that is it, your discretion is out the window, you must award to the lowest bidder. It is very simple, in case after case stands for the same proposition, the last case he cited was Boiston vs. Nappa Sanitation, and it is a California case and it says the exact same thing, when we use the term "lowest responsible bidder", lowest responsible bidder is not to be qualified on responsibility, and the court says "In the context of responsible bidder, the term responsible refers not only to the attribute of trustworthiness, but also to the quality, fitness, and capacity of the bidder to perform the proposed agreement satisfactory.", and those are the criteria that the City of Sunny Isles Beach asks, are you trustworthy, are you the kind of bidder that we want to work with, and that is what responsible means, and that is why they use these criteria here. In 62-8, there are criteria 1-5 all of those are used to determine whether you are a responsible bidder or not, and again the court says: "In the context of responsible bidder the term responsible refers not only to the attribute of trustworthiness, but also to the quality, fitness and capacity of the bidder to perform the proposed agreement satisfactory. When a statute)requires that an award be made to the lowest or highest responsible bidder, it must be awarded accordingly unless that bidder is found not responsible, not qualified to perform the particular work under consideration, although public bodies have discretion to determine which bidders are responsible they may not, if they determine more than one bidder is responsible make the award on the basis of relative superiority. Ms. Dickens said that the case from California is a different standard than what the law is in Florida. Mr. Del Armas said that the City of Sweetwater couldn't be clearer, the City of Sweetwater is out of the 3rd DCA, and it says "lowest responsible bidder means that it is a low bidder who was found to be responsive.", your discretion ends. We don't want the City to coming along later and saying yeah, they are both responsible bidders, but you know what, we like one better than the other, and that is exactly what we want to prevent. We want to prevent unclear standards, and there is another principal at play here which is even beyond the fact that the City absolutely lacks requirement, and that is that the City here has acted on an undisclosed criteria. Whatlis a undisclosed criteria, when you put together a bid package, as a municipality, you are establishing the rules of the game, you are establishing the ground rules, do not come in later and say, oh I am sorry, we forgot to tell you, there is another rule and we are applying that rule in order to award it to Southeastern. For example, here are the rules of the game say you have to have Tran at least 40% in-house work, and then they come along and say you met that, you have 44% but do you know what, we like Southeastern better because they have 70%. You know what, if you are going to award it based on who does more in-house work, announce it, you are obligated to announce it, don't come in after the fact and say, in order to force fit an award, or possibly force fit an award, because we don't have to cast I persons on anybody, acting in utmost good faith, you are not allowed to do it, you needlto announce the rules of the game clearly. Mr. De Armas said in this case Magnum Construction vs. Broward County School Board, and you will see that he represented Magnum Construction the petitioner in this case, and we went up to Tallahassee before that administrative judge Landingham, and what happened o,,n,..I.,,u:n,,ae au Drntaet n7in.n9 n¢n¢na 1 here was there was a request for proposal, in that case they said that they are ranking you, and there was a ranking unlike here, and there was a committee that was actually ranking these proposers, and members of the School Board of Broward County voted to award it to another contractor other then MCM on the basis that that other contractor had done more business with the School Board of Broward County and they wanted somebody that had either experience with local conditions or as one School Board member told him under oath, they wanted somebody that had paid their dues in Broward County. None of that was announced in the RFP and we went up, and Judge Landingham agreed, and said you know what, you have an obligation to tell the bidder the rules of the game, and if they went under the rules of the game you would have to award them the bid, you can't come in after the fact and say you met the condition of 40% but what we really wanted was a bidder that had more work in-house. He said Tran is ready to testify, and he proffered their testimony, they could have done 70%, 80% in-house work, if that were the condition, if they knew that was the criteria, they would have met that criteria, it was never announced as criteria, and then we called and said why wasn't it awarded to us, and then at the hearing we find out that this was a criteria and that was applied against us, that they wanted somebody that was less of a construction manager doing more work in-house, and again, if they had known, if the City had told them, then they would have met that criteria. He believes that Judge Landingham's reasoning is very apropos here, on page 16, paragraph 65, he says "Here in Section 11 lists several specific subjects within a larger class of experiential preferences and there are no general words to show that other specific preferences within that class are included. It is therefore concluded that the subjects not specifically named were intended to be excluded." What Judge Landingham is saying is once you delineate the factors that you want, don't come in and say there is another factor that I want to apply, that is an undisclosed criteria and you cannot do that. It is fundamentally unfair, and it lends itself to skullduggery. We will not permit our municipalities to act in that fashion, and he goes on to say in paragraph 70, "With that in mind, the undersigned is convinced that to ensure a fair competition, the letting authority should always clearly disclose such a preference in the procurement document,that way would-be proposers who stand to suffer as a result of the preference at least can attempt to level the playing field before the contest begins by bringing a specifications challenge. That said however, the undersigned need not conclude here that non-disclosure of a prorogial presence is necessarily contrary to competition because we told them, they want to say that they want to prefer Broward County contractors, and he is willing to concede that they can do that, but they need to tell him so that they have options, maybe he will join ventures with somebody or maybe he would skip the exercise all together. What happened in this case was worse than mere non-disclosure, and this is the same thing that we have here. For the RFP informed potential proposers that relevant work completed in one area would be afforded the same preference as well as work completed in another area of the State. What happened here is almost identical, they have told us, as long as you meet this 40% threshold you are find, you are good, and then they turn around and say 40% is not good enough because you stack up unfavorably to Southeastern even though you are $100,000 cheaper, you stack up unfavorably with Southeastern because they do 70% of their work in-house, on this one project incidently. He said he will have Mr. Louden of Tran Construction say that absolutely they were prepared on this project to have 65% in-house or more, whatever they wanted. Ms. Dickens said that the City did disclose the fact that the in-house was important to them in Cummw Iinufue Mir(Dmfuel(17.1 M)MMIIA the bid document. Mr. De Armas said they did not, and Ms. Dickens said it is on page 7, and Mr. De Armas said on page 7 it says they want 40%, it doesn't say it is important to them, and Ms. Dickens said she understands that but it is not something new. Mr. De Armas said it is not something new, what is new is the way they applied it. Ms. Dickens said for the record because she thinks what he said was that you didn't know in advance that that was important to them, and what he is saying is although it says in there that we want 40S, your client did not understand that that was something that the City would consider when they awarded the bid, and Mr. De Armas, said correct, but not that they didn't understand that it is important that once you meet 40% which is a clear objective standard, once you meet that you are golden, you don't need to do anything other than that, and Mr. Louden will testify and he doesn't understand what the court wants him to do, if she wants him to proffer the testimony, and Ms. Dickens said she would like to save some time and she will accept the proffering of testimony if there is no objection from either side, and there was no objection, and Mr. De Arenas said the proferring would be that he was prepared to do from 65% to 70% of the work in-house, that he was never told that he needed to do anything other than 40% that,he put in 44% in order to meet the requirements, move in and just concentrate on the value of the bid. Mr. De Armas said he would like to address further undisclosed criteria which are contained in an affidavit that was presented as part of a response today by ... Ms. Dickens said that she does not have any scoring sheets, and Mr. De Armas said that there were'none and that is why she does not have them, and that is exactly what the problem is. Ms. Dickens said that she is not saying that there was one but it seems that he is indicating that the City had a scoring sheet, and he said there was none, they are not telling us that they are going to qualify bidders and that is why there are no scoring sheets, no committee, no presentation, it is as simple as here, you are either responsible or you are not, and if you are responsible,we are going to give it to the low bidder, and again, that is black letter law. Mr. De Armas said that finally, he wants to be crystal clear that there is no finding of non-responsiveness, and the Code provision 62-9 makes it clear that Tran not only in fact is responsive sand responsible, but was found the juror to be responsible and responsive. Section 62-9 says that the City, if they had found Tran non-responsive, had certain obligations and conditioris to meet, and it reads"If a bidder or offeror who otherwise would have been awarded a contract is found non- responsible, a written determination of non-responsibility, setting forth the basis of the finding shall be prepared by the City Manager or the purchasing agent.", and that was not done, and therefore we have to assume that Tran is a responsible responsive bidder and certainly was the low bidder, and the only issue is whether the City at this point then is entitled to weigh and determine that one bidder is more responsible or more responsive then another. City of Sunny Isles Beach: Hans Ottinot, City Attorney for the City of Sunny Isles Beach. Action: City Attorney Hans Ottinot indicated that the protester council raised several arguments that were not raised in the bid protest letter. Under the Procurement Code those arguments were not raised in the bid protest letter, those arguments are waived. Ms. Dickens said that is what it says in Section 62-15(A). City Attorney Ottinot said that the protester has failed to satisfy its burden, he has cited c,,.......,.,u;n,,me- o;,4 ornwef n7Anm nanann • I numerous cases that do not apply in this matter, has misstated facts, this case is not complicated, it is a very simple case. At issues where the City has authority to accept a bid which is in the best interest of the City. The protester claims that the City does not have authority, in fact, the protester claims that the City is required to award a bid to a bidder who submitted the lowest price. The protester is wrong facturally, and wrong in respect to the law. The City Code does not require that the City award a bid to the bidder with the lowest bid. He emphasized that price is only a factor in awarding a bid under the City Code or the law, under the City Code the price is a factor but not the determinative factor, in fact, the City Manager looks at a laundry list of factors in awarding a bid, these factors include the contractor's capacity, ability to do the job in accordance with the City's desire. In this case, the City Manager in his professional judgment, over 25 years of experience as al City Manager or Assistant City Manager, did not believe that the protester had the capacity or the skill to perform the job in accordance with the desires of the City. Similarly, in the bid documents, price is only a factor, not the determinative factor, in fact, in the instructions to bidders, the contractors were put on notice, contrary to what the protester's counsel indicated today, the City has a discretion to award the bid which is in the best interest of the City or to award the bid to the lowest responsible bidder, not the lowest bidder, the lowest responsible bidder. In looking at the factors that were most important to the City, was the fact that the contractor can perform at least 40% of the work with its own forces of workers. That issuelwas disclosed in the bid docs, instructions were given, we even had a pre-bid conference, which is in our Memo of Law, the minutes of the pre-bid conference is attached, that was an issue that all the parties, all the bidders were informed about. The protester provide us with the information that they can only perform 44% of the work with its own forces, while the contract recipient provided us with information that they could perform 70% of the work with its own forces. The contract recipient's price was almost identical to the protester's with a difference of almost $100,000. Basically the City made a selection in its best interest, we got more bang for our buck, simply to recap, the City complied with its Code in awarding this bid, the City complied with the bid instructions in awarding this bid, the remaining question is whether the City complied with the law, that is a simple answer, the answer is yes, the law does not require the City to award a bid to the lowest dollars and cents bids, indeed, the court willluphold the City's decision unless the City's decision is arbitrary and capricious, there is no evidence to suggest that the City's decision is arbitrary or capricious. The protester has not presented any evidence showing that the City Manager or the City Commission was arbitrary and capricious, in fact, the protester merely argued in his letter that the City should explain to them the reason why we did not select them. Today he has explained those reasons. Ms. Dickens asked City Attorney Ottinot if he has had a chance to review the City of Sweetwater case, and he said he just got a copy today but he is familiar with it having been a municipal attorney for almost nine (9) years. Ms. Dickens asked him how he distinguishes this situation from that situation where the court determined that the City had1 to award the bid to the lowest acceptable proposal. City Attorney Ottinot said that he is in agreement,the case highlights the fact that the City qualified several bidders and after qualification the requirement for them to award the bid to the lowest bidder, our Code, which in fact he was responsible for drafting, has never been construed in that fashion, the most responsible bidder. It is pretty academic law when it comes to construction of municipal codes, the courtlwill always give deference to the construction of the municipality. He knows that the protester attorney, C,,mman,IMnufne F'vl Drnfuef fl7_VLf17 Mf fl II believes he is an expert in this area but this is a simple issue, he is splitting hairs with respect to certain meanings of words in our Code, that has no relevancy to his protest, this is a simple case. He went over some of the arguments that Mr. De Armas raised: he'indicated that his client is the lowest responsible bidder, and that is undisputed, that is incorrect, they were not the lowest responsible bidder, they were merely the lowest bidder. He indicated that the City had ranked bidders, we did not have a ranking system, we select based On qualifications, based on our needs. Ms. Dickens asked how does the City Manager arrive on his recommendation that he is going to make to the City Commission? City Attorney Ottinot said that in our Code, the City Manager basically has a list of factors that he looks at, prior experience with a municipality, capacity and skill to do the job, also any prior violations of Code committed by the contractor, and the City Manager also utilizes outside consultant for fact-finding purposes, the engineer who was the engineer for the project, was hired to basically conduct fact-finding research and provide the City Manager with information that he can make an informed decision based on important factors that are included in the City Code. From the City Managers experience, his recommendation is based on his professional judgment however, the City Commission if they notice any issues in terms of City Manager's decision being arbitrary or capricious, the City Commission can always reverse the City Manager, and in this case that didn't happen. The City Manager's professional judgment was accepted by the City Commission because his decision was consistent with the City Code, and also, the protester Counsel raised the issue about undisclosed criteria. Our bid instructions were pretty clear, we disclosed all relevant information, the issue with respect to the 40% criteria was listed, it was noticed,we had a pre- bid conference, in fact, if you reviewed the bid protest letter filed by the protester, that issue wasn't even raised, this is a new argument being raised today. Also, the protester's attorney cited numerous cases outside of Florida, these cases are not relevant, it is not a precedent for this court to follow, also, the City of Sweetwater case, the major difference between that case and this case, that decision was made by a Mayor as a strong mayor, where politics is obviously in play, in this decision, politics is not at play. This is a professional Manager that was hired by the City Commission, who made a professional decision based on relevant facts, and that is a simple case, this is not a difficult case, the City's decision is consistent with the law and consistent with our Code. Trans Construction Alfredo De Armas addressed the little dig that he fancies himself an expert, we owe no deference to the City of Sunny Isles Beach and its interpretation of legal words, this is not a technical review that they are contesting, they are simply looking at interpretation of legal language. Expertise is not required and there is absolutely no deference to the City's interpretation. He said he wanted to address this attempt to distinguish the City of Sweetwater, in point of fact, Mayor Diaz in that case did not make the decision but he actually appointed a committee, and the court would see, in the second page of the printout it says: "Subsequently the Mayor appointed three (3) individuals to evaluate the bidders and find the most responsible bidder. The individuals appointed by the Mayor differed identified, etc.", and so the Mayor in that case even appointed a committee, and the committee went on to evaluate who is more responsible among the bidders, and the court said you can't do that, when it is the lowest responsible, responsive bidder, it is not the lowest most responsible most o.mman.\Iinnlne• Flu D..J<N NA n_ro nwrann responsive bidder, those are different terms, and in fact, if we go to the City of Sunny Isles Beach Purchasing and Procurement Code, at Section 62-7, they used thelterms differently, and when it is a bid under $25,000 indeed a great deal of discretion is given to the City Manager, and it says, "Bids shall be awarded to the lowest most responsive responsible bidder.", these words are not the same. These terms are not identical, lowest most responsive responsible bidder means that we rank the bidders according to their qualifications. Lowest responsive responsible bidder means that we do nod these are simple black and white terms and standing this principal that is black letter across this country on its head in order to award a contract to a bidder that is $100,000 above the low bidder is wrong, and it is arbitrary and capricious, and something else that we really haven't'gotten into. Tran has an unrivaled record of excellence in this community, they do nothing but excellent work, they have never been defaulted by any owner, private or municipal, and thisicommittee hadn't found that they had, and in fact, what this committee did was to say very clearly, and he is quoting from them, "Trans references check out and they come well recommended". We are a responsible bidder, we are a responsive bidder as were 13 of these bidders, and we are the low bidder and we are entitled to get this job, and he doesn't understand why they have not been awarded this contract, it is beyond him, yes there are qualifications that are set forth in the Code and those qualifications are not to rank a bidder, it is to determine responsible velnone, once you determine responsibility and you did in this case because you did not tell Tran that they were not responsive, and indeed it would have been arbitrary!and capricious to do so, then you look at the low bid and that is all there is. He stated that with the proffer that he has made he would like to rest, and he would respectfully request that the court render a decision as quickly as possible so they can move forward with this project' The bid protest have that tendency to put projects on hold. Ms. Dickens said that she will rule today, and she will gather her thoughts and she will issue an oral ruling into the record. Ruling of Hearing Examiner Sonja Dickens, Esq. • Finds that the City had competent substantial evidence to support their award by the City Commission to Southeastern; • Finds that the arguments not raised in the bid protest document were waived; • Finds that Section 62-8 of the City's Code of Ordinances is controlling and that the RFP is also controlling; • Finds that the City's Code miss the City to consider things other than price when setting the criteria for the award of an contract; and • She does not find, the only case she was presented today, that has some jurisdiction of precedential value to her was the City of Sweetwater, but she is finding in particular that that case is not controlling in these facts because in the City of Sweetwater their Code specifically required that the contract be awarded to the responsive responsible bidder submitting the lowest acceptable proposal, however, she finds that the City of Sunny Isles Beach Code permits the City to consider all those factors on equal basis (as stated below). She asked if she needs to issue that in writing, and City Attorney Ottinot said;yes, if she wants o.,.,rnanwi",noc cw o.m>ce m_vtm nznzna i , I ., him to draft a recommended order they will. Ms. Dickens asked that he put Ione more thing in the order, she does not find, the only case she was presented today that has some jurisdiction of precedential value to her was the City of Sweetwater, but she is finding in particular that that case is not controlling in these facts because in the City of Sweetwater their Code j specifically required that the contract be awarded to the responsive responsible bidder submitting the lowest acceptable proposal, however, she finds that the City of Sunny Isles Beach Code permits the City to consider all those factors on equal basis, soy please put that in the order and she will sign it. Adjournment. Hearing Examiner Sonja K. Dickens, Esq. adjourned the hearing at 4:30 p.m. i Jane A. Hines, CMC, City Clerk I .`I I i Q,,,..men.\I:n,dne rum Drnlne.N_V1J19!14!14!10. CITY OF SUNNY ISLES BEACH HEARING EXAMINER STATE OF FLORIDA In the Matter of: Bid Protest by Tran Construction Inc. of Award of Bid No. 07-10-02 I FINAL ORDER ON BID PROTEST BY TRAN CONSTRUCTION INC. OF AWARD OF BID NO. 07-10-02 This matter having come regularly before the City of Sunny Isles Beach (the "City") Hearing Examiner for a bid protest hearing on March 3, 2008, at 3:30 p.m., under an appeal filed by Tran Construction Inc. ("Petitioner") on February 21, 2008. Notice having been given as required by the City Code and all matters submitted i" at the public hearing having been considered, including the bid protest filed by the Petitioner and the response filed by the City, together with all evidence and exhibits submitted at the public hearing and made a part of the record in this matter, and the Hearing Examiner having carefully considered arguments of counsel and'the evidence presented, the Hearing Examiner now makes the following findings of fact and conclusion of law: Standard of Review ■ The standard of review of an agency's competitive bid award, where'discretion is vested for the award of public works contracts, is whether the agency acted arbitrarily or capriciously. See Miami-Dade County v. Church & Tower, Inc., 715 So. 2d 1084, 1088 (Fla. 3d DCA 1998). 1 The burden of proof is on the Petitioner to demonstrate that the Citys bid award was "clearly erroneous, contrary to competition, arbitrary, or capricious." See, e.g., Nippon Carbide Industries, Inc. v. State Department of Transportation, 755 So. 2d 190, 191 (Fla. 15` DCA 2000). The City's decision to award the contract must be based on competent, substantial evidence. See id. Findings of Fact ; I. On February 21, 2008, Petitioner filed a bid protest regarding the Construction I Improvements for the City of Sunny Isles Beach Central Island Drainage and Street Improvements (Bid No. 07-10-02). II. In its bid protest letter, Petitioner argued that it should have been awarded Bid No. 1 07-10-02 pursuant to paragraph 6.3 of the contract documents and specifications, as well as paragraph 18.2 of the Request for Proposals. The reasons stated in its Bid Protest letter is that Petitioner submitted the lowest bid and the City's decision was'arbitrary. III. In its Response to the bid protest by Petitioner, the City argued that the bid protest should be dismissed for the following reasons: (1) the City has the authority to select the most qualified bidder under the City Code; (2) the City has the authority to:select the bid that it is in the best interest of the City under the bid documents; and (3) the City is not required to select the bidder with the lowest price under the law. IV. The City submitted affidavits by its City Manager, Public Works and Engineering Director, and its engineering consultant. These affidavits confirm that) the City has complied with its Code in selecting the contract recipient for Bid No. 07-10-02. V. The Petitioner failed to present any evidence showing that the City's decision was arbitrary. VI. At the bid protest hearing, the Petitioner raised several new arguments that were not stated in its bid protest letter dated February 21, 2008. Conclusion of Law The Hearing Examiner, having duly considered the matter, arguments of counsel and the evidence presented at the public hearing, makes the following conclusions of law: I. The City has shown that the City Commission's decision to awd the bid to Southeastern is supported by competent and substantial evidence. II. At the hearing, the Petitioner raised several new arguments that were not raised in the bid protest letter. These arguments are deemed waived in accordance, with Section 62-15.A. of the City Code because the Petitioner failed to assert these arguments in the bid protest letter. III. Section 62-8 of the City's Code of Ordinances and the requirements set forth in the City's Request for Proposal ("RFP") are controlling. IV. The City Code permits the City to consider things other than price when setting forth the criteria for a contract award. The City has complied with its Code.( V. The cases cited by the Petitioner are not controlling on the particular facts of this case. More precisely, the Sweetwater decision relied upon by Petitioner (cited as Sweetwater v. Solo Construction Corporation, 823 So. 2d 798 (Fla. 3d DCA 2002) is distinguishable in that the City Code of Sweetwater required the City to accept the bid of the responsive, responsible bidder submitting the lowest acceptable proposal. In contrast, the Code of the City of Sunny Isles Beach authorizes the City to consider all of its factors on an equal basis in awarding the bid to the lowest responsible bidder. VI. The Petitioner's request for relief is therefore denied. These findings and Final Order shall be presented to the City Commission. ORDERED and ADJUDGED this day of March 2008. City of Sunny Isles Beach Hearing Examiner Sonja Dickens, Esq. cc: All counsel of record TRAN CONSTRUCTION, INC. CASE NO: Petitioner, vs. THE CITY OF SUNNY ISLES BEACH, a Florida municipal corporation, Respondent. Response to Bid Protest by Tran Construction, Inc. and Memorandum of Law The City of Sunny Isles Beach (the "City") hereby files its Response to the Bid Protest filed by Tran Construction Inc. ("Tran"). The Hearing Examiner should dismiss the bid protest for the following reasons: (1) The City has the authority to select the most qualified bidder under the City Code; (2) The City has the authority to select the bid that is in the best interest of the City under the bid documents; and (3) The City is not required to select the bidder with the lowest price under the law. I. Introduction This is a bid protest filed by Tran of a decision made by the City Manager and the City Commission to award Bid. No. 07-10-02, to Southeastern Engineering Contractors. Inc. ("Southeastern"). At issue is whether the City's decision to award the aforementioned bid is consistent with the City Code and the law. As more fully discussed below, the Hearing Examiner should find that the decision was appropriate and fully supported by the law. The bid protest should be rejected for the reasons stated below. II. Factual background On November 28, 2007, the City received fourteen (14) responses to Bid No. 07-10-02 for the Central Island Drainage and Street Improvements Project ('Central Island Project"). The bid responses were received on November 28, 2007, before the 10:30 a.m. closing time, at which time the bids were opened publicly and read aloud by the City Clerk. The bids were evaluated for compliance with the City's contract documents and specifications. Ten (10) of the prospective bidders were found to comply with the bid submittal requirements. However, four (4) of the prospective bidders did not fully comply with the bid submittal requirements and were disqualified from further consideration. The City retained Beiswinger, Hoch & Associates ("BH&A") to serve as its engineering consultant on the Central Island Project. As part of its consulting services, BH&A was asked to review the bid responses for fact finding purposes for the City Manager. The review consisted of checking references and verifying past projects, performance evaluations, and proposed subs-contractors. This process also required verification of the bidders' unit price schedule and sufficiency of their equipment and labor. BH&A conducted a thorough and comprehensive review of these requirements. In a letter to the City dated February 14, 2008, BH&A outlined its rationale to support the City Manager's recommendation of Southeastern as the contractor for the Central Island Project.' BH&A emphasized that "the City would be best served not only by the lowest bid but by a contractor specializing in this type of work." (emphasis added). The construction of the Central Island Project involves the rebuilding of all of the streets impacted, in addition to landscaping, curb and gutter and street parking improvements. In particular, the project involves new concrete curb and gutter on all impacted streets, a ten (10) foot wide hike and bike path on 183"1 Street and North Bay Road, and Gwen Margolis Park drainage improvements. In its letter, BH&A noted that SoutheasterMspecializes in this type of project and has a history of successfully completing these projects for local towns and municipalities. In comparing the low bid of Tran versus the second lowest bid of Southeastern. BH&A noted that Tran "is basically a Construction Management type operation which subs odd mostly all of the work." BH&A also noted that Trans was late on a recent project for the City of Miami Beach and had the lowest estimated percentage of work to be completed on the project by its own forces. In contrast, BH&A noted that Southeastern would perform 70% of work on the project by its own forces. In addition, BH&A also noted that Southeastern is `more in-line with the requirements that we feel are needed to address the special needs of the [Central Island Project]". BH&A noted iticontacted various individuals within South Florida's construction industry and "[t]he consensus of our reviews leads us to recommend [Southeastern] for this project." A recommendation was made by the City Manager to award Bid No. 07-10-02 to Southeastern. On or about February 21, 2008, the City Commission, pursuant to its authority under the City Code, approved and adopted a Resolution awarding Bid No. 07-10-02 to and entering into an agreement with Southeastern for the construction of the Central Island Drainage and Streets Improvements Project in an amount not to exceed $3,635,852.02. On or about February 21, 2008, Tran filed a bid protest alleging that they should have been awarded Bid No. 07-10-02 because they were the lowest bidder in terms of dollars and cents. The protest letter is hereby attached hereto as Exhibit "B". III. Issues Presented A. The City has the authority to select the most qualified bidder under the City Code i. The City followed the competitive bidding requirements in Section 62-7 of the City Code 1A copy of the February 14, 2008, letter attached hereto as Exhibit "A". The City complied with the competitive bidding requirements in awarding Bid No. 07-10-02 to Southeastern. Because the award of this bid was in excess of$25,000.00 the City was required to follow the competitive bidding guidelines set forth in Chapter 62 of the City Code of Ordinances. This required the City to issue a formal invitation to bid which included specifications and all contractual terms and conditions applicable to the procurement. This also required the City to issue a public notice for the invitation for bids no less than fourteen calendar days prior to the date set forth in the notice of the opening of the bids. This process further required that the bids be sealed and opened publicly, in the presence of one or more witnesses, at the time and place designated in the public notice of the invitation for bids. Finally, competitive bidding procedure required that the amount of each bid and such other relevant information deemed appropriate by the City Manager, be recorded along with the name of each bidder. See Section 62-7(B) of the City Code ('Competitive bidding procedure"). It is undisputed that the City strictly followed the requirements of 62-7 of the City Code. Here, the City issued a formal invitation to bid, including the issuance of bid specifications and all contractual terms and conditions applicable to Bid No. 07-10-02. The City issued public notice for the invitation for the bid within the required time periods. In addition, a mandatory pre-bid conference was held on October 31, 2007, at 10:00 a.m. in order to answer all questions and comments from the prospective bidders.' ii. The City followed the bid award criteria in Section 62-8 of the City Code In its bid protest letter, Tran also fails to argue that the City failed to follow the bid award criteria set forth in Section 62-8 of the City Code (`Award"). Accordingly, under Section 62-15 of the City Code, this argument is also deemed waived. However, even assuming arguendo that Tran had not waived this argument, the evidence clearly demonstrates the City's compliance with these guidelines. Section 62-8 of the City Code provides in relevant pan as follows: A. All contracts shall be awarded by the City Manager, as stated above, to the lowest responsible and responsive bidder. In addition to price, there shall be considered the following: (1) The capacity, ability and skill of the provider to perform the contract: (2) Whether the provider can perform the contract within the time specified without delay or interference; (3) The character, integrity, reputation,judgment, experience and efficiency of the provider; (4) Professional licensure required when service of a skilled nature as required by law to perform such service and/or skill; (5) The quality of performance of previous contracts; (6) The previous and existing compliance by the provider with laws and ordinances relating to the contract; (7) The ability of the provider regarding future maintenance and service for the use of the subject of the contract; 2A copy of the Minutes from the mandatory pre-bid conference is attached hereto as Exhibit "C". 3 (8) The City Manager may, by administrative order, establish a set of criteria of a numerical nature that may be utilized in awarding contracts hereunder. B. The contract shall be awarded by the City Manager or the City Commission, as the case may be, with reasonable promptness by appropriate written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, ('emphasis added") As applied to the instant case, the City Manager clearly followed the above criteria in awarding Bid No. 07-10-02 to Southeastern. As set forth in the attached Exhibit "D", the City Manager A. John Szerlag recommended that Southeastern be awarded the bid because they were the most responsible bidder with the lowest price.3 Mr. Szerlag made this recommendation based on the information that he reviewed and his experience.' Notably, Mr. Szerlag's professional background includes 25 years of experience as an Executive Manager for local municipalities, during_ which time he awarded approximately $500 million worth of contracts.' Based on the information that he reviewed and his experience, Mr. Szerlag determined that Southeastern "has the capacity to complete an extremely complex project." 6 Mr. Szerlag confirmed that he considered the factors delineated in Section 62-8 of the City Code prior to recommending the bid award. Utilizing this criteria, Mr. Szerlag deemed Southeastern to be the lowest responsible and responsive bidder. In contrast, Mr. Szerlag found that Tran "failed to satisfy all the criteria set forth in Section 62-8" and more specifically "failed to demonstrate fully that it had the capacity and skill to perform the job."9 Because the City strictly followed the competitive bidding requirements set forth in Sections 62-7 and 8 of the City Code, the bid award to Southeastern should be affirmed. B. The City has the authority to select the bid that is in the best of the City under the bid documents The bid award should be affirmed for the additional reason it was consistent with the contract documents and specifications. Section 62-7 of the City Code states in relevant part that "[ajn invitation for bids (including RFPs and RFQs) shall be issued and shall include specifications and all contractual terms and conditions applicable to the procurement." In conformity with this requirement, the City issued its contract documents and specifications for Bid No. 07-10-02.10 This documentation clearly 3 See attached Exhibit "D" at ¶ I1. Id. 3 Id. at 11 3, 4 and 6. 6 Id. at id 11. 7 Id. at"J 12. 8 Id. at id 13. 91d. 10A copy of the referenced sections of the contract documents and specifications is attached hereto as Composite Exhibit "E". 4 emphasized the specialized and complex nature of the Central Island Drainage and Street Improvements Project. For example, in Section 00020, Notice to Bidders, the prospective bidders were clearly notified that Bid No. 07-10-02 consisted of"milling and resurfacing, concrete sidewalks, construction of a new storm drainage system including 22 drainage wells..." The City Manager determined that Southeastern had the necessary qualifications and that Tran, failed to demonstrate fully the capacity and skill to perform this job. Furthermore, Section 00100, Instruction to Bidders, imposed a specific work performance requirement on all prospective bidders. In particular, Section 7, provides as follows: 7.1 The Contractor shall perform on the site and with his own forces, work equivalent to at least forty percent (40%) of the total amount of work to be performed under this contract. The Contractor shall specify in its proposal the list of construction items that represent the 40% of its contract bid amount. After the contract is awarded, and during the progress of the work, the Owner reserves the right to reduce the percentage of work performed by the contractor's own forces. This requirement was specifically considered during the course of the City's fact finding process. As noted in the attached affidavit of Rick Conner. the City Public Works and Engineering Director, "my preliminary fact finding also raised questions as to whether Tran had sufficient manpower and equipment to do the required work with its own forces. I conveyed this information to BH&A who in turn engaged in further fact finding regarding these issue."' Victor H. Guevara, the City's consulting engineer on this project, confirmed that "[d]uring the course of BH&A's fact finding process, issues were raised as to whether Tran would perform at least 40%of work with their own forces, as required by the bid documents."I2 The contract documents and specifications provided the City with authority to accept a bid "which is in the best interest of the [City[." The specifications further provided that "it is the intent of the [City] to award a Contract to the lowest responsible Total Base Bidder whose Bid is in conformance with the Bidding Documents and does not exceed the funds available." In conformity with the contract documents and specifications, the City Manager recommended that Bid No. 07-10-02 be awarded to Southeastern, the bidder deemed to be the lowest responsible and responsive bidder. Because the City strictly adhered with the contract documents and specifications applicable to Bid No. 07-10-02, the bid award should be affirmed. C. The City has the authority to reject the bidder with lowest price under the law The final reason the bid award should be affirmed is that bid award was neither arbitrary nor capricious. In Miami-Dade County v. Church & Tower. Inc., 715 So. 2d 1084 (Fla. 3d DCA 1998), the II See affidavit of Rick Conner, attached hereto as Exhibit "F" at`d 8. 12 See affidavit of Victor H. Guevara, attached hereto as Exhibit "G" at ![ 11. 5 court affirmed the long standing principle 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."' Id. at 1088 (internal citations omitted). Additionally, as observed by the court in Baxter's Asphalt and Concrete. Inc. v. Department of Transportation. 475 So. 2d 1284 (Fla. 151 DCA 1985). "[a] public body has wide discretion in soliciting and accepting bids for public improvements and its decisions, when based on honest exercise of their discretion, will not be overturned by a court even if reasonable persons may disagree." Id. at 1287 (citing Liberty County v. Baxter's Asphalt and Concrete. 421 So. 2d 505, 507 (Fla. 1982). Finally, it is well established law that "[p[ublic agencies are not required to accept the lowest dollar-and-cents bid as the `lowest responsible bid' in every case. However, if the award is made to one other than to the lowest bidder it must be based upon facts which reasonably support the conclusion." Maves Printing Company v. J.A. Flowers. 154 So. 2d 859 (Fla. 151 DCAJ 1963). Here. Tran fails to make the requisite showing the bid award to Southeastern was arbitrary or capricious. Additionally, Tran fails to establish that the bid award was not based)upon facts which reasonably support this decision. Although Tran was the lowest "dollar-and-cents bid", this fact, standing alone, is legally insufficient to warrant reversal of the bid award to Southeastern. Notably, the price differential between Southeastern and Tran was only approximately $100,0001 Considering the contract award amount of $3,635,852.00 this price differential is de minimus considering the highly complex and specialized nature of the Central Island project. The contract documents and specifications, as well as Section 62-8 of the City Code, clearly authorized the award lof Bid No. 07-10- 02 to Southeastern, the bidder deemed to be the lowest responsive and responsible'bidder. The City Manager's recommendation of the bid award to Southeastern is fully supported by facts which reasonably support this recommendation. The City Manager's recommendation was based on a careful review of the various factors outlined in Section 62-8 of the City Code. Based on the information that he reviewed, and his experience, the City Manager recommended that Southeastern be awarded the bid because they were most responsible bidder with the lowest price, and they had the "capacity to complete an extremely complex project." A review of the same criteria led to the opposite conclusion that "Tran failed to demonstrate fully that it had the capacity and skill to perform the job." Because Tran fails to demonstrate that the bid award was made in an arbitrary or capricious fashion, the bid award should be affirmed. IV. Conclusion For all the reasons stated above, the administrative decision to award Bid No. 07-10-02 should be upheld by the Hearing. Examiner. 6 Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing was hand delivered and sent via facsimile to J. Alfredo De Armas, Esq. Alvarez. Armas & Boron, P.A..901 Ponce De Leon Blvd. Suite #304, Coral Gables, FL 33134, Facsimile (786) 513-2785. on this 3rd day of March. 2008. Respectfully submitted, CITY OF SUNNY ISLES BEACH Hans Ottinot, City Attorney 18070 Collins Avenue Sunny Isles Beac,, FL 3'160 Telephone. ;05, i'/112 Facsim �� st B ans ittinot. City Attorney lorida Bar No. 077577 7 EXHIBIT "A" t:; easwenger Bloch and Associates February 14, 2008 CONSULTING ENGINEERS AND PLANNERS PHONE (305)944-5151 Rick Conker FAX(305)948-6290 Engineering&Public Works Director City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles-Beach, FL 33160 Re: Meeting held for Bidders Evaluation Dear Mr.Conner. Thank you for meeting with us this morning to discuss our report for the Central Island Drainage and Street Improvements bidders' evaluation. As stated at the meeting, we feel that Southeastern Engineering Contractors, Inc. is best suited to perform this project for the City. As part of our services to the City we were tasked to review and evaluate the bids submitted for this project. The review consisted of bidder's reference checks, past projects verification and performance evaluations.by the projects owners, verification of proposed sub-contractors, the bidder's unit price schedule review, and also that they had:sufficient equipment fleets and forces to accornplish this project.. All of the reviewed contractors had contract work which extended past original completion dates,some because of unknown site conditions;work added by owners or contractor caused delays. Requests for additional information were sent to the following four(4) lowest bidders asking them to identify by bid Rein that work which would be performed by their own forces to constitute the 40%work required by the bid documents: %of Work Company Bid %over Low Bid By Own Forces • Tran Construction Inc. $3,532,842.00 low bid 44.60% • Southeastern Engineering Contractors, Inc. $3,635,852.00 2.92% 70.00% • Solo Construction Corporation $3,689,517.00 4.43% did not respond • Acosta Tractors Inc, Engineering Contractors $3,857,831.00 9.20% 71.43% As we had previously discussed with you, we feel that the City would be best served notilonly by the lowest bid but by a contractor specializing in this type of work. The low bidder Tran Construction Inc. is basically a Construction Management type operation which subs out mostly all of the work. Their references check lout and they come well recommended. They were late on a recent project for the City of Miami Beach, but the work was acceptable. (A copy of the e-mail requesting verification from the City of Miami Beach is available for your review.) Southeastern Engineering Contractors,. Inc is the second lowest bidders. They will perform 70% of the work with their own forces. Southeastern specializes in this type of project and has a history of successfullylcompleting these projects for local towns and municipalities, oftentimes getting additional work added to their contract. They are more in-line with the requirements that we feel are needed to address the special needs of the Central Island-Drainage and Street Improvements project.. This contractor is available to start work on this project in a timely manner. Please note that Beiswenger, Hoch &Associates has no financial interest in this bid process or any recommendation made by the City of Sunny Isles Beach. Sincerely yours BEISWENGER, HOCH &ASSOCIATES, INC. Victor Hugo G vara Vice President P.O. Box 1368, North Miami Beech, Florida 33160 0 1190 NE 163rd Street, Suite 203, North Miami Beach, Florida 33162 68 EXHIBIT "B" trO WECEIVE,5 i TCONSTRUCTION 5M FEB 2 1 2008 BUILDING QUALITY 8 DELIVERING EXCELLENCESM oYaecl &can Clerk LETTER OF TRANSMITTAL DATE: 2/21/2008 FROM: HENRY T. LOUDEN CLIENT#: 07-10-02 TRAN #: 073884 I CENTRAL ISLAND DRAINAGE TO: l ❑ I CITY OF SUNNY ISLE BEACH I ATTN: JANE HINES ATTN: ATTN: I We are sending you ❑ Attached ❑ Under seperate cover via the following item. ❑ Shop drawings ❑ Prints ❑ Plans ❑ Samples s ❑ Specifications El Copy of letter ❑ Change Order ❑ I COPIES DATE NO. DESCRIPTION 1 2/21/2008 BID PROTEST LETTER 1 2/6/2008 BID PROTEST CHECK ❑ For approval ❑ Approved as submitted _ copies for approval 111 For your use ❑ Approved as noted Submit copies for distribution ❑ As requested ❑ Returned for corrections Return corrected prints For review and comment FOR BIDS DUE , 2007 ❑ PRINTS RETURNED AFTER LOAN TO US REMARKS: V COPY: SENT BY: HENRY T. LOUDE W__ I RECD BY: •V 5— 3,7*MMITIA.— / 1000 NW 54 STREET,MIAMI, FL 33139 PHONE 305-756-7756;FAX 305-756-7780 073884 LOT TO HINES.xls-(0)-2/21/2008-PAGE1 OF 1 ® ! RECEIVED TRAN F_8 2 1 2008 CONSTRUCTIONS„ BUILDING QUALITY & DELIVERING EXCELLENCES% Cryol Sunnytsics Besch CC C 060092 CYCe of toe City Clerk February 21, 2008 HAND DELIVERED John Szerlag, City Manager City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Fl 33160 Jane Hines City Clerk 18070 Collins Avenue Sunny Isles Beach, Fl 33160 Ref: Bid Protest-Construction Improvements for the City of Sunny Isles Beach Central Island Drainage and Street Improvements Bid No. 07-10-02 Dear Mr. Szerlag: This letter serves as Tran's protest of the City's recommendation not to award the subject Project to Tran. The legal basis for our protest is that there is no question but that the award must go to the lowest responsible bidder. Paragraph 18.2 of the Request for Proposals states: "It is the intent of the Owner to award a Contract to the lowest responsible Total Base Bidder whose Bid is in conformance with the Bidding Documents and does not exceed the funds available." Here. Tran is the low bidder by more than One Hundred Thousand Dollars ($100,000) and its bid is below the funds earmarked for the Project. The bid tabulations are attached for your immediate reference. Not only is Tran the lowest bidder, it is clearly a competent, responsive, responsible bidder. iTran has an unrivaled record of completing civil work, particularly water and drainage work, on time and on budget. Tran has substantial experience performing this type of work, has successfully completed numerous similar jobs, some of which are referenced in our bid package, and the reasons given by your staff--'namely that Tran was alleged by an unnamed source to have been delayed in completing an unnamed job for the City of Miami Beach -- is pretextual and, more importantly, irrelevant. Here, the Contract documents and specifications contain an exhaustive list of experiential criteria that can disqualify a bidder. Tran is not disqualified by any of these criteria. These criteria are contained at Paragraph 6.3 as follows: Bidders may be disqualified and their bids rejected for any of the following specific reasons: a. Reason to believe that collusion exists among Bidders. b. Determination of lack of competency as may be revealed by qualification statements, financial statements, experience records,or other questionnaires. c. The Bidder's uncompleted work load which in the judgment of the City may cause detrimental impact on prompt completion of this project. d. The Bidder is involved in any litigation against the City. e. The Bidder has defaulted on any previous contract or is in arrears on any existing contract. f. The submittal of more than one proposal from an individual, firm, partnership, corporation or association under the same or different names. I e. The Bidder, or its principals, has outstanding code enforcement violations with the City of Sunny Isles Beach. 111011 NW 51 51RI:ET,311A■11.FL 33127: I'!IO\E-3115-756-7756: FAX-305-7 56-77511 2-2I-OS LETTER TO SZERIAG.doc TRAN CONSTRUCTION.., BUILDING QUALITY & DELIVERING EXCELLENCEs,1 CGC 060092 This list of experiential requirements is clearly exclusive, meaning that it does not purport to include other similar or related requirements, but rather is intended to identify the entire universe 1of all such requirements. This is demonstrated by the absence of any language, such as "including but not limited to" or"amone other things," manifesting an intention to include other matters that are ejusdem get eris with the items listed. In addition, each one of the seven experiential requirements is purely objective. Specifically, each criterion is simply a matter of historical fact that either happened or did not happen. Moreover, the existence of these disqualifying experience-related requirements is not a matter of degree --I the desired quality is either objectively present, or it is absent; there is no discretionary middle ground. The upshot is that, any one bidder who, as a matter of fact, is not disqualified by the experiential, is qualified and its qualification is not subject to discretion. Since the disqualifying criteria are unambiguously exclusive, manifesting an intention to identify all applicable experiential requirements the exegetic maxim expressio unius est exclusio alterius controls. This rule holds that if one subject is specifically named [in a contract], or if several subjects of a large class are specifically enumerated, and there are no general words to show that other subjects of that class are included, it may reasonably be inferred that the subjects not specifically named were intended to be excluded." Espinosa v. State, 688 So. 2d 1016, 1017 (Fla. 3d DCA 1997); Gay v. Singletary! 700 So. 2d 1220, 1221 (Fla. 1997)("[W]hen a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded."). Here, Paragraph 6.3 provides a comprehensive list of all qualifications requirements. It cannot be said that an additional, unstated requirement exists wherein the bidder is subjected to a reviewer's discretionary determination of whether or not the bidder is qualified or not because it was `late" or "delayed" in some prior project with some other public entity. This is especially true here, where even the City's consultant that takes the position that Southeastern Engineering Contractors, Inc., is more qualified, acknowledges that Tran's`references check out and they come well recommended". All of the foregoing must be seen with a great deal of deference to awarding this Project to Tran -- the low responsive bidder. It is the public policy of the State of Florida, repeatedly expressed in the very clearest and most forceful terms possible by our courts, to award contracts to the low bidder and an equally string public policy against disqualifying the low bidder. `Where there is mandatory competitive bidding, there is a great public interest for the contract to be awarded to the lowest responsible bidder whose bid is responsive." Caber Systems v. Department of Gen. Services, 530 So.2d 325 (Fla. 1st DCA 1988); City of Sweetwater v. Solo Constr. Corp., 823 So.2d 798 (Fla 3d DCA 2002). The courts do not favor the disqualification of a low bidder for non-responsiveness where a bid irregularity does not impart an unfair competitive advantage to the low bidder. In Liberty County v. Baxter's Asphalt and Concrete Inc., 421 So. 2d 505 (Fla. 1982) concerning principles applicable to competitive bidding the Florida Supreme Court held that there is a strong public policy in favor of awarding contracts to the low bidder, and an equal strong public policy against disqualifying the low bidder for technical deficiencies which do not confer an economic advantage on one bidder over another. The purposes of bidding would be ill served if a low bidder is ignored for new criteria not set forth in the bid documents. This proposition in general is set forth in the Florida Supreme Court's decision of Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (1931)as follows: The purpose of the bidding process is . . . To secure fair competition upon equal terms to all bidders;. . . to close all avenues to favoritism and fraud in its various forms; to secure the best values for the [City] at the lowest possible 10011 N\\ 54 CFH C E F.MIAMI.FL 33127:PHONE-305-756-7756: FAX-305-756-7780 - 2-21-118 LETTER TO SLER LAC.Joc THAN CONSTRUCTION., BUILDING QUALITY & DELIVERING EXCELLENCE. 1 CGC 060092 expense; and to afford an equal advantage to all desiring to do business with the [City], by affording an opportunity for an exact comparison of bids. It is our position, that this particular bid process prevented the fulfillment of these purposes and was arbitrary and contrary to law. Tran was found to be a responsible bidder. Thanking you in advance for your anticipated considerations. Very truly yours, Henry T. Louden It President CGC 060092 Cc: Mr. Armando De Arenas, Esq. 100(1N\\ 54 STREET,MIAMI. Fl.33127: PHONE-3(15-756-7756: FAX-305-756-7780 2-21-08 Lt:ITER TO SZERL:\G.doc 0 0 1 z I f < 0, vA 0 C I m QA T{ C `V 9a- Iii r.- _ 0 0 Y N t m Dp m ^• th m O se vi S o) -. s •• i � + Q mq � • C c n S C o die ` • 1 tailt i vQicN J _ P Y i ctn. gle n '• Oo° � S r (� J �O -fie o - `J y kt � . 1`. I -yam O c, W 00 O h xw • I I.- F 2 ;'..7&41-''' S 4.-� 3 C£ ♦ P�92-.{.2.., . EXHIBIT "C" City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Mandatory Pre-Bid Conference Summary Minutes October 31, 2007 at 10:00 a.m. In Re: Bid No. 07-10-02 (Central Island Drainage and Street Improvements) City Clerk Jane A. Hines, CMC, opened the Pre-Bid Conference and introducedl Hugo Guevara of Beiswenger,Hoch and Associates who presented an overall description of the project noting that this project is strictly related to specialized drainage with deep wells. He reminded the contractors that the deadline for submission of bid documents is Wednesday,November 14,2008 at 10:30 a.m. at which time we will publicly open those sealed bids. Any additional questions are required to be in writing and may be submitted up to five(5)days before the bid opening(Friday,November 9,2007), which will be answered to all of today's participants, as stated in Section 100. The following questions and answers, copies of revised plans and Bid Documents constitute ADDENDUM NO. 1. QUESTIONS AND COMMENTS FROM PROSPECTIVE BIDDERS 1. This bid was bid out once before, why wasn't it awarded? Do you anticipate that it will happen again? The bid was advertised but cancelled before anyone submitted bids because funding documents had not been correctly prepared and we missed the grant funding cycle,and no, it is not anticipated to happen again, funding is in place. 2. When is the projected start date? It is anticipated to start the first Monday in January 2008 (January 7, 2008). 3. Have all permits and easements been obtained? The City will issue the construction permits. In reference to the drainage,the City has already obtained DERM's wells permit.The City has not applied for FIDEP permit yet. The General Contractor must pay for DERM's and FDEP wells construction permits. Construction permits will be reimbursed by the City. (Approximately $750.00 and 5200.00 per well for FDEP and DERV respectively) 4. Is there a long lead time to obtain permits? DERM's permit is available immediately; FDEP will take approximately 4 to 6 weeks minimum. 5. What are the fees for Sunny Isles Beach Police Officers,and if not available can we use State Troopers? The Contractor must use Sunny Isles Police officers,unless otherwise approved by the City of Sunny Isles Police Department (Sandra Block is the contact person). If no City Bid 07-10-02 Pre-Bid Conference QA Page 1 Of 6 Officers are available, others may be approved. Fees are S40.00 per Officer/Hour for regular days and S60.00 per Officer/Hour during holidays. 6. Are there any requirements for notification to homeowners? Yes, contractor must notice homeowners and must have public awareness meetings. 7. Will the City pay for testing of density and concrete? Refer to DIVISION I, GENERAL SPECIFICATIONS, Section 7, Payment of Test by City. 8. Will the City pay for stored materials? NO. 9. What is the current condition of the existing drainage pipes to be desilted, and what percentage of the pipe is filled with dirt? Pipes to be desilted have been identified on plans attached to this Addendum. 10. Include the structures too in case need to be cleaned or will there be a new bid for that? Cost of drainage structure desilting, should be included in pipe desilting unit price. 11. Is there any exfiltration of the pipe or is it all solid pipe for drainage? No exfiltration pipes are used in this project. The project requires all solid pipes for drainage. 12. There are existing drainage pipes shown on the plans that are not labeled to be removed, is there any intent for these lines, abandonment? Existing drainage pipes not labeled to be removed are to remain. See sheet# 5 note#5 of the construction plans. 13. Would you consider muck removal as part of that? No excavation is considered for pipes to remain.For new sewer construction use special type of pipe bedding as indicated on sheet #37. 14. Paving: there are two types of road,curb and gutter, and you have a specific type of material; you ask for 1" milling, 2" resurfacing, and remove the existing pavement to approximately 1", use type S-1 asphalt concrete.? Use Type S-1 Mix, as per Miami-Dade County standards 15. You also say you want 2%slope, and sometimes you can't follow that detail and still have a 2% slope? Follow see detail on Sheet # 5. 16. But it has a lot of curb and gutter, and type S-1 asphalt concrete is not recommended to be used to mix for this final course any more. Use of Type S-1 mix in final course is approved by Miami Dade County. Bid 07-1002 he-Bid Conference QA Page 2 of 6 17. Need clarification on doing %2 street and then the other V2 of the street, in his opinion it doesn't work. The Contractor may provide its own MOT plans. Cite will review and approve as required, but access to all residents must be maintained at all times 18. What is the City's estimate for this project? S3.9 Million Dollars. 19. Are there any restrictions for noise or lane closures? Specific working hours are indicated in the bid documents. However the City will consider the circumstances involved. 20. Is there any incentive/disincentive for damages or liquidated damages? Incentive is limited to 51,500 per day, not to exceed 5100,000.00, if job is completed before the end date and the project is ready for final payment date. YES on liquidated damages. 21. Quality control of product by the City or contractor? QC by the contractor; the City resents the right to verify all products. 22. Does that include asphalt? YES. 23. Is there any known contamination? NO. 24. Drainage Wells: add a lump sum on each? Include structure? The well itself, longer or shorter, some are 200', 120' 150', no information included in this. Payment for drainage wells was itemized. See Summary of Quantities sheet. 25. The plan indicated a significant band of muck, it is marked as an elevation this may not be desirable where drainage is, excavation item to use for removal and disposal? See sheet 37 for pipe bedding. Also, see note #17 on sheet # 5 26. Clarification, in the event that muck with elevation below the pipe, so don't build pipe on muck? Correct,do not build on muck. Is there going to be a requirement to over excavate and provide for a foundation? Cost of trench excavation,disposal of excess of material removal, backfill with suitable selected material,reposition of pavement,landscaped areas,"SHALL'BE INCLUDED IN THE UNIT PRICE FOR SEWER CONSTRUCTION", and comply with FDOT governing standards and specifications as stated. 27. Where is the draincrete called out to under drain details to be used, and what are the limits and dimensions for the draincrete? A draincrete is porous concrete that allows water to go through as we saw in the plans, it wasn't in the list of items, they found it somewhere else. Draincrete requirement was removed from Swale Trench Detail(Underdrain)on sheet Bid 07-10-02 Pre-Bid Conference QA Page 3 Of 6 # 37. "DO NOT USE DRAINCRETE". 28. Is the City using FDOT or County specifications? Prices goes up or down. Use Miami-Dade County specifications standards. Price adjustment for asphalt will be as indicated in DIVISION II, Special Provisions, Section 27. Bituminous Material- Payment Adjustment. 29. Milling for depth or for crossroad correction, will that be answered in an addendum? Milling for depth. 30. In some areas where widening and type crossings are shown but there is no mention of asphalt work. What is the City's intent in these areas? There are a couple of areas of milling and resurfacing here and there, so are you going to leave it? Whatever we are resurfacing there has to be milling. We have two cases: milling and resurfacing; and milling and overbuild 31. There are very specific FDOT requirements QC at the plant and at the roadway for asphalt. Is it going to be Miami-Dade County spec or FDOT spec because there is a significant difference? QC for asphalt will be as per Miami Dade County standards. 32. Regarding sod, is there a restriction as far as limits to which the City is facing? For instance, on North Bay Road we have to go between trees, how wide of an area, what are your limits for restoration of the sod, by the park especially? For landscape restoration after trench excavation, please refer to Sheet # 5, note # 17, and Pavement Restoration and Pipe Trench Detail on sheet # 37 33. The equipment outside of that trench in the tracks will be the contractor's responsibility? YES. 34. What does the City consider the difference between a small tree and large tree? There seems to be a lot of large trees that need to be removed. Large trees are considered those which caliper is 18" or larger measured 48" from the ground. Small trees under 18". 35. The quantities represent the trench itself, not the tracks for restorations? Please refer to Sheet # 5, Note 17: "For construction of the sewer system contractor shall saw cut pavement along the proposed utility trench. Cost for backfill with suitable selected material and reposition of pavement, driveways or landscaped areas to its original conditions and elevations shall be included in the unit price for sewer construction." 36. What about Royal Palm trees? Please refer to answer to question # 34 Bid 07-10-02 Pre-Bid Conference QA Page 4 of 6 37. The expanding road coming along the side is a concern as it is very expensive to remove trees. In some cases it may be better to move the pipe rather than the tree. As directed by the Engineer. 38. Is there going to be variance on this project? You have an item 500 linear feet stakes/fence buried in that item. Staked silt fence will be used around well and trench construction areas as needed. Floating silt barriers will be used during construction at existing outfalls to the bay. 39. Do you have an area set aside for a staging area? Contractor must provide its own staging area. 40. Do you have an area set aside for a field office? The City does not have an area set aside for field office. 41. What about clearing and grubbing, is it by the acre, 14 acres? Clearing and Grubbing was deleted. However, pay items were added. 42. Will it be better to pay as a lump sum for the clearing and grubbing, it is going to be a breaker item. What is the government standard for that? Clearing and Grubbing was deleted. However, pay items were added. 43. If school is not done by January, will there be a conflict for closing road? Use alternate access to the site. Contractor will address this issue on its work schedule. 44. Crossings, does the contractor get paid for limerock used? Limerock will be paid when used as base material. Also, use limerock for Item 102.3 Commercial Material for Driveway Repair. 45. Will the City be looking for trench backfill? Trench backfill is indicated as a part of unit price for sewers. 46. On the backfill will the contractor be able to utilize material for trench backfill? Trenches shall be backfilled with suitable material. Sheet 4 39, indicate the type of existing subsoil configuration. 47. The cost of rock has been changing quite a bit, any way to compensate for raise in price? NO. 48. Limerock, measured compact and ready? YES. 49. Will there be a line item considered for sidewalks where light poles are in the middle of the sidewalk? Box concrete around pole. Bid 07-10-02 Pre-Bid Conference QA Page 5 of 6 50. What is the intent for existing drainage lines? As general information. 51. If contractor finds a drainage pipe and it is not in specs will it be left alone? YES. Unless otherwise indicated by the engineer. 52. All existing pipes in specs to be removed or abandoned? If not specified should it be left untouched? YES, Unless otherwise indicated by the engineer. 53. Will contractor be cutting and gutting pipes in specs? YES. 54. When will addendum be issued? In approximately five (5) days along with copies of the sign-in sheets, and summary minutes of today's meeting. 55. Any known utility conflicts? NO, no known conflicts. The Pre-Bid Conference was concluded at 11:10 a.m. List of Plans dated 11-7-07, revised as per Addendum No. 1 • General Notes and Miscellaneous Details Sheet 5 • Summary of Quantities Sheet 6 • Plan and Profile North Bay Road Sheet 11 • Plan and Profile North Bay Road Sheet 15 • Plan and Profile North Bay Road Sheet 16 • Plan and Profile NE 175th Terrace Sheet 19 • Plan and Profile NE 178th Dr. Sheet 24 • Plan and Profile NE 178th Dr. Sheet 25 • Plan and Profile Church Dr. Sheet 26 • Plan and Profile NE 177th Dr. Sheet 27 • Plan and Profile NE 180th Dr. Sheet 30 • Plan and Profile NE 180th Dr. Sheet 31 • Plan and Profile NE 181st Dr. Sheet 32 • Drainage Structures Sheet 34 • Drainage Structures Sheet 35 • Drainage Details Sheet 36 • Drainage Details Sheet 37 • Cross Sections North Bay Road Sheet 51 • Cross Sections North Bay Road Sheet 52 List of Bid Forms revised per Addendum No. 1 Revised Section 300, BID FORM, sheet 1, 2 and 3 Bid 07-10-02 Pre-Bid Conference QA Page 6 of 6 ■ ( EXHIBIT "D" CASE NO: Tran Construction, Inc. Petitioner, v. CITY OF SUNNY ISLES BEACH, a Florida municipal corporation, Respondent. AFFIDAVIT OF A. JOHN SZERLAG STATE OF FLORIDA SS: COUNTY OF MIAMI-DADE BEFORE ME, the undersigned authority, personally appeared A. John Szerlag who after first being duly sworn, deposes and states as follows: 1. My name is A. John Szerlag and I am currently employed as the City Manager for the City of Sunny Isles Beach, Florida (the "City"). 2. I am over eighteen years of age, and the information contained herein is based upon my personal knowledge, information and belief. 3. Prior to my employment as City Manager with Sunny Isles Beach, I served as City Manager for Troy, Michigan from 1999 to 2006. Prior to this appointment, I served as the City of Troy Assistant City Manager/Services for 10 (ten) years. 4. My other senior management experience includes being City Manager of Howell, Michigan, and Assistant to the City Manager of Riverview, Michigan. 5. I hold a Master of Arts degree with a major area of study in urban affairs from the University of Detroit, and a Bachelor of Science degree in administration with a major emphasis in public administration from Ferris State College. 6. In my 25 years of experience as an Executive Manager I have awarded approximately $500 million worth of contracts. 7. As City Manager, I serve as the chief administrative officer of the City, directing the day-to-day operations of city government. 8. My job responsibilities include, but are not limited to, recommending an annual budget, implementing the policies set forth by the City Commissi I n and ensuring that all laws and ordinances are enforced by the City. My job responsibilities also includes being familiar with, and enforcing, the City's procurement code which is codified in Chapter 62 of the City's Code of Ordinances. 9. In the annual budget, I have set forth a capital project plan, which includes the Central Island Drainage Project. 10. Based on information I received from City staff and our consultant, Beiswinger Hoch and Associates ("BH&A"), I recommended that the City Commission award Bid No. 07-10-04 and enter into a contract with Southeastern Engineering Contractors ("Southeastern") for the construction of the Central Island Drainage Project in an amount not to exceed $3,635,852.02. 11. I recommended that Southeastern be awarded the bid because Southeastern is the most responsible bidder with the lowest price. Based on the information that I reviewed and my experience, I certainly believe that Southeastern has the capacity to complete an extremely complex project. 12. Prior to recommending the bid award, I carefully considered the various factors outlined in Section 62-8 of the City Code pertaining to bid awards. That section mandates that contracts shall be awarded by the City Manager to the lowest responsible and responsive bidder. The factors that were considered, in addition to price, included 1) the capacity, ability and skill of the provider to perform the contract; 2) whether the performer can perform the contract within the time specified without delay or interference; 3) the character, integrity, reputation, judgment, experience and efficiency of the provider; 4) professional licensure requirements; 5) quality of performance of previous contracts; 6) previous and existing compliance by the provider with laws and ordinances relating to the contract; and 7) ability of the provider regarding future maintenance and service for the use of the subject of the contract. 13. Utilizing the criteria mandated by Section 62-8 of the City Code, I recommended that the bid be awarded to the lowest responsible and responsive bidder, i.e. Southeastern. The protester, Tran Construction, Inc. ("Tran") failed to satisfy all the criteria set forth in Section 62-8. More specifically, Tran failed to demonstrate fully that it had the capacity and skill to perform the job. 14. On or about February 21, 2008, I made my recommendation to the City Commission, which approved my recommendation. Exhibit "A", attached hereto and made a part hereof, is a true and correct copy of the memorandum I drafted regarding Award Bid No. 07-10-02 Central Island Drainage and Street Improvements to Southeastern Engineering Contractors. FURTHER AFFIANT SAYETH NAUGHT. • . JOHN A ie G ar STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE I HEREBY CERTIFY that on this day, before me, an officer duly authorized to administer oaths and take acknowledgments, personally appeared A. JOHN SZERLAG, who produced as identification, or why personally known to me, and who took an oath and declared that he has read the foregoing and that the facts stated herein are true and correct to I he best of his knowledge and belief. WITNESS my hand and official seal in the County and State last aforesaid on this q day of 4-b Li, Y , 2008. TOtsmine_ L . B e_NeS � 11QKiw . J . Z.p,n.� Printed Name of Notary S gnature of Notary Public M•MNS Wilma nee ° r.j Notary Public Serial Number (if any) meNe_ My Commission Expires: 4 a r5 City of Sunny Isles Beach Gy Commicrran Norman S.Edelcup,Mayor 18070 Collins Avenue Lois j.Thaler v�Mayo Sunny Isles Beach, Florida 33160 Roslyn Brezi ,Cmnmitiaesr Gerry;Goodman,Commiuioxsr ?I;,;l' „� George"Bud"Scholl,Cammiseiaur ";"r (305) 947-0606 City Hall I ♦••CS a ti (305) 949-3113 Fax A.John Szerlag,ay Manager 1F 9• s"' (305) 947-2150 Building Department Hans Ottinot,CiArterary rror sus e (305) 947-5107 Fax Jane A.Hines,Croy C•rk TO: The Honorable City Commissi r r FROM: A. John Szerlag, City Man ger •- it DATE: February 21, 2008 { RE: Award Bid No. 07-10-02 Central Island Drainage & Street Improvements to Southeastern Engineering Contractors RECOMMENDATION: Based on information I received from City staff and our consultant, BH&A, I recommend that the City Commission award Bid No. 07-10-04 and enter into a contract with Southeastern Engineering Contractors for the construction of the Central Island Drainage Project in an !amount not to exceed $3,635,852.02. This is the second low bidder out of fourteen (14) bids submitted. This project will ( be extremely complex and will have a significant impact on the surrounding'residences. I feel we t need to have a contractor with an excellent track record and a great deal of experience in this specific type of work. It is for that reason that I recommend Southeastern. REASONS: The City has significant drainage problems in the Central Island area and this contract will allow us to not only address that issue, but will allow us to rebuild all of the streets impacted, but do so in a much improved fashion, including landscaping, curb & gutter, and on street parking. It should be noted that this project will include new concrete curb and gutter on all impacted streets as'well as a ten (10) foot wide hike & bike path on 183rd Street and North Bay Road. This project will also include Gwen Margolis Park drainage improvements. ADDITIONAL INFORMATION: We did complete a plan of which this is part. We will not have to acquire any easements. The total cost of the project is estimated to be less than $3,700,000. There will be an annual operation and maintenance costs, which is partially budgeted. The expected time for completion of the project is Summer of 2009. Funding is available in Account Number 40-538-5635. I Funding (\'�J\`�^1�A1I�(`(, Agenda Item No.: O D available: ✓ " "�1 Appro .1: o Finance Department r 1 • anger Commission Meeting Date: —e: 2 '7 I- 0 O 67 EXHIBIT "A" EXHIBIT "E" CITY OF SUNNY ISLES BEACH CENTRAL ISLAND DRAINAGE AND STREET IMPROVEMENTS 7 • I _ _ 1 e �F tr 1 ft , Ind I , 4. °°rzf t ;•y , ,`r., 4 NI ,,,_lit '( 1-- •/' , j .Its R ,.'^• x: �• -... t :� ---- .t.st ', • :zjt i r J - tip 3 Y ii i 17 '^' ' j .;s'+4f• w. ._ . . • 7 . • .. .,.,, .,. . • ....... i -11-ty J \: t ♦ G a !Rti nit' r GI,� 4y• # �J I a3c-. y�r .; 4 . • t : Ir �3 ` 'i 3r i 1 .. M1. �. r li; ±,. 'yam 24 4 .�.,�...:.; tam-i j aW .F� ini;.iCf. �.s� 4V I ?9r s' CONTRACT DOCUMENTS AND SPECIFICATIONS OCTOBER 15T- 2007 TABLE OF CONTENTS PROJECT NAME: Central Island Drainage and Street Improvements City of Sunny Isles Beach, Bid No. 07-10-02 BIDDING REQUIREMENTS, CONTRACT FORMS AND CONTRACT CONDITIONS DOCUMENTS No. Pages 00020 Notice to Bidders 1 00100 Instructions to Bidders 7 00300 Bid Form 3 00401 Bid Bond 3 00402 Public Entity Crimes Affidavit 2 00403 Trench Safety Act 1 00420 Information Required from Bidders 3 00500 EJCDC Standard Form of Agreement 11 00600 Payment Bond 2 00601 Performance Bond 2 00650 Acknowledgment of Conformance with O.S.H.A. Standards 00800 Supplementary Conditions 13 00900 Addenda Format 1 SPECIFICATIONS DIVISION I - GENERAL SPECIFICATIONS 15 DIVISION II — SPECIAL PROVISIONS 15 Oct. 2007 SECTION 00020 NOTICE TO BIDDERS NOTICE IS HEREBY GIVEN that the CITY COMMISSION of THE CITY OF SUNNY ISLES BEACH is seeking sealed bids for the following work as specified. PROJECT NAME Central Island Drainage and Street Improvements City of Sunny Isles Beach Bid No. 07-10-02 Sealed bids for the construction of the Central Island Drainage and Street Improvements consisting among other items of milling and resurfacing, concrete sidewalks, construction of a new storm drainage system including 22 drainage wells, and miscellaneous signing and marking as described in the Summary of Quantities sheet will be received by the Owner, City of Sunny Isles Beach. Bids shall be on a unit price basis; segregated bids will not be accepted. Sealed bids will be received by the City Clerk until 10:30 AM, on November 14, 2007 at the City of Sunny Isles)Beach, City Hall located at 18070 Collins Avenue, Sunny Isles Beach, Florida, 33160. Bids received after this time will be returned unopened. Bids submitted will be opened publicly and read aloud at this time. Bidding Documents may be examined at the City of Sunny Isles Beach, at the above-referenced address. Bidders may obtain complete sets of Bidding Documents, at a cost of 125.00 dollars, from the City of Sunny Isles Beach at 18070 Collins Avenue, Sunny Isles Beach, Florida 33160, between October 3" and October 31". Partial sets of Bidding Documents will not be available. Mandatory Pre-Bid Conference will be held at 10:00 Ai\1 on October 31, 2007, at the City of Sunny Isles Beach. Bid security in the amount of five percent (5%) of the Total Bid must accompany the Bid in accordance with the Instructions to Bidders. The Owner reserves the right to reject any or all Bids, with or without cause, to waive technical errors and informalities, and to accept the Bid, which best serves the interest of the Owner. For further information, contact the office of the Engineering and Public Works Director at (305) 792- 1928. Jane Hines City Clerk City of Sunny Isles Beach Publish Dates: October 3, 2007 END OF DOCUMENT Oct. 2007 00020-1 f. The submittal of more than one proposal from an individual, firm, partnership, corporation or association under the same or different names. g The Bidder. or its principals, has outstanding code enforcement violations with the City of Sunny Isles Beach. 6.4 It shall be a requirement of this bid that there are no related parry transactions between the bidder and any City employee, agent or contractor of the City. Any bidden who is a related party, as noted herein, will be considered non-responsive and the proposal and bid bond will be immediately returned. A bidder will be considered a related party if the bidder has an ownership interest or is in any way related to an employee, agent, consultant or contractor of the City, is a sub-consultant of an employee, agent, consultant or contractor, and can influence the management or operating policy of the other to an extent that one of the transacting panics might be prevented from fully pursuing its own separate interests. 7. PERFORMANCE OF WORK BY CONTRACTOR: 7.1 The Contractor shall perform on the site and with his own forces, work equivalent to at least forty percent (40%) of the total amount of work to be performed under this contract. The Contractor shall specify in its proposal the list of construction items that represent the 40% of its contract bid amount. After the contract is awarded, and during the progress of the work, the Owner reserves the right to reduce the percentage of work performed by the contractor's own forces. 8. BID PREPARATION 8.1 Prepare bids on the forms provided by the Engineer with all blanks on the Bid Form filled in by typewriter or written in ink. 8.2 State total base bid amount in both words and figures. In case of a discrepancy between the two, the amount written in words shall govern. 8.3 Bids shall include the legal name and address of the Bidder and indicate whether the Bidder is a sole proprietor, a partnership, a corporation, or other legal entity. a. Individual.- provide name and post office address. b. Partnership.- provide name and post office address of each member of the partnership. c. Corporation.- provide name and post office address of person signing the form and legal evidence of his authority to do so; names and addresses of the corporation president, secretary and treasurer; name of state where chartered; and affixed with the seal of the corporation, attested by the secretary. 8.4 Bids shall include documentation required by the Florida "Trench Safety Act." The Trench Safety Act form is included within the Bid Form Section for completion by the Contractor and review by the Owner. The unit prices presented in the Bid shall include the Bidders cost of compliance with the applicable trench safety standards. 8.5 All Unit Price Bids requested on the Bid Form shall be bid. 9. BID SUBMITTAL 9.1 Submit one (1) original and five (5) copies of the Bid Form, the bid security, the list of Subcontractors, and other requested attachments, enclosed in a sealed opaque envelope, Oct. 2007 00100 b. All Surety Companies are subject to review and approval by the Owner and may be rejected without cause. All bonds signed by an Agency must be accompanied by a certificate of authority to act. 15.5 The Surety Company shall submit verification from the Department of Insurance Office of the Treasurer stating the surety company's license and certificate of authorization to do business in the State of Florida. 16. SUBCONTRACTOR LIST 16.1 In conjunction with the Bid Form. Bidder shall submit a list of names of the subcontractors and major material suppliers proposed for the principal portions of the Work. Submit list on form provided by the Engineer. 16.2 Prior to award of Contract, the Owner will notify the Bidder in writing if they have an objection to any person or entity listed. Upon such reasonable objection, the Bidder shall propose an acceptable substitute person or entity in accordance with Article 6.06 of the General Conditions. 17. BID PROTEST 17.1 In the event of a timely protest, the City Manager or his designee shall stay the award of the contract unless, after consulting with the City Attorney and the affected diredtor, he determines that the award of the contract without delay is necessary to protect substantial interests of the Owner. • 17.2 The City shall require a deposit from a protester to compensate the Owner for the expenses of administering the protest. If the protest is decided in the protester's favor.Ithe entire deposit shall be_retumed to the protester. If the protest is not decided in the protester's favor, the deposit shall be forfeited to the Owner. The deposit shall be in the form of a cashiers check and shall be in the amount of 1% of the amount of the pending award, with a minimum deposit of 5500 and a maximum deposit of 510,000. 18. CONTRACT AWARD AND EXECUTION 18.1 Until final award of Contract, the Owner reserves the right to reject any and all Bids, with or without cause; to waive any informality or irregularity; or to accept the Bidiwhich is in the best interest of the Owner. 18.2 It is the intent of the Owner to award a Contract to the lowest responsible Total Base Bidder whose Bid is in conformance with the Bidding Documents and does not exceed the funds available. 18.3 Upon acceptance of a Bid and award of the Contract, the successful Bidder shall deliver the executed Contract, along with required bonds and any other items requested, to the Owner within 10 working days. Failure to do so will be deemed as a breach of lagreement by the Bidder and result in forfeiture of bid security as described in the Instructions to Bidders. 18.4 The Owner reserves the right to hold all proposals and bid guarantees for a period not to exceed 90 days after the date of bid opening stated in the Advertisement for Bids. Oct. 2007 00100-6 18.5 The award of the contract, if it is awarded, will be to the lowest responsible total base bidder whose qualifications indicate the award will be to the best interest of the Owner and whose proposal shall comply with the requirements of the Contract Documents. Tithe is of the essence for this project and the time limits set in the proposal, if set by the bidder! will be accorded weight by the Owner in the determination of the best proposal. In no case'will the award be made until all necessary investigations have been made into the responsibility of the low bidder and the Owner is satisfied that the bidder is qualified to do the Work and have the necessary organization, capital and equipment to carry out the provisions of the contract to the satisfaction of the Owner within the time specified. 18.7 If the Contractor feels that a problem exists either prior to, or during the bid opening, he/she shall contact the City (within 24 hours of the bid opening) and follow the City's current policy for bid protests. 18.8 The Owner reserves the right to award as a total contract any combination of the Unit Price Bid Schedule Items that would be in the best interest of the Owner. 19. CASH ALLOWANCES 19.1 The Bidder is advised that a space is provided in the Bid Form, Document 00300, for this purpose only. The Contractor shall not proceed on any additional work to be covered by allowances until authorized in writing by the Engineer. Such work shall be approved by the Owner, shall be within the scope of work defined by this Contract and shall not exceed the amount indicated in the Bid Form. Any amount remaining in the Cash Allowance will be retained by the Owner. END OF DOCUMENT Oct. 2007 00100-7 The Contractor shall make all necessary arrangements with the utility companies concerned for maintenance of their lines during the construction period. In the event that a complete relocation of utilities is required, but has not been accomplished prior to the effective date of the "Notice to Proceed",the Contractor,nevertheless shall commence work under this Contract,and shall schedule his work to avoid interference with the utility relocation work. The City of Sunny Isles Beach will not be liable for any delay or added expense the Contractor experiences due to the activities of utility companies, nor shall the City be held responsible for any damages to any utilities due to any actions by the Contractor. Note: The Contractor shall contact the Underground Utilities Notification Center(1-800-432-4770) and the Underground Notification for Florida Power and Light Company(789-2020)at least forty- eight (48) hours prior to commencing any trenching or excavation on this Project. These telephone numbers are for reference only, it is the contractor's responsibility to verify them and make the necessary contacts with the utility companies prior to commencing his work 13. Community Small Business Enterprises (CSBE) A two percent(2.0%)Community Small Business Enterprises(CSBE)Subcontractor Goal has been established for this project. Compliance with this CSBE percentage is required`for all contractors submitting a bid for this project. See"Supplemental General Conditions"which are bound herein and are made pan of the Specifications and Contract Documents. In order to allow time for the CSBE Subcontractor participation presentation and the review of said presentation, nno Contractor may withdraw his bid for a period of up to three hundred (300) calendar days after the bid opening. Disregard anything to the contrary within these Contract Documents. 14. Pre-Bid Conference: A Mandatory Pre-Bid Conference will be held as follows: TIME: 10:00 a.m. DATE: PLACE: 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Telephone(305) 947-0606 The Pre-Bid conference is being held primarily to answer any questions regarding this Project and is Mandatory to attend. Bidders that chose not to attend this Mandatory Pre-Bid Conference will be automatically disqualified. 15. Pre-Construction Conference: • Section 8-3.5 —PRE-CONSTRUCTION CONFERENCE: This Sub article is expanded to include: After the Award of Contract and prior to the issuance of the"Notice to Proceed",a Pre-Construction Conference will be held with the Contractor, members of the City's Public Works Department and other Agencies,representatives of Utility Companies,and other contractors affected by the work.The time and place of this conference will be set by City Manager. Oct. 2007, Special Provisions Page 4 of 15 EXHIBIT "F" CASE NO: Tran Construction, Inc. Petitioner, v. CITY OF SUNNY ISLES BEACH, a Florida municipal corporation, Respondent. AFFIDAVIT OF RICK CONNER STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE BEFORE ME, the undersigned authority, personally appeared Rick Conner who after first being duly sworn, deposes and states as follows: 1. My name is Rick Conner and I am currently employed as the Public Works and Engineering Director for the City of Sunny Isles Beach, Florida (the "City"). 2. I am over eighteen years of age, and the information contained herein is based upon my personal knowledge, information and belief. 3. As the City's Public Works and Engineering Director, my job responsibility is to manage the City's capital improvements projects. This responsibility includes overseeing, designing and managing the capital improvement projects, as well as selecting engineering consultants to assist the City in this process. 4. I hold Bachelor of Science degrees in Civil Engineering and Business Administration from the University of Missouri, Columbia. 5. Prior to my current position with the City, I was the city engineer for El Paso, Texas from 2004 to 2007. I have also held positions as Director of Public Works for Nashville, Tennessee from 2002 to 2004, and Bryan, Texas from 1995 to 2002. 6. I have held positions with city engineer and public works departments from 1978 to the present date. During this period, I have overseen approximately $300 million worth of public works contracts. 7. I was involved in the fact finding process regarding the award of Bid No. 07-10-02 Central Island Drainage and Street Improvements to Southeastern Engineering Contractors. My responsibility was to provide the City Manager, as well as the City's engineering consultant Beiswinger Hoch and Associates, ("BH&A"), with pertinent information to enable the City Manager to make his final recommendation to the City Commission pursuant to Section 62-8 of the City's Code of Ordinances. 8. My preliminary fact finding also raised questions as to whether Tran had sufficient manpower and equipment to do the required work with its own forces. I conveyed this information to BH&A who in turn engaged in further fact finding regarding these issues. 9. During my fact finding process, I reviewed information provided by the City's consultant BH&A. Based on this information, I came to the conclusion that Tran 2 Construction Inc. ("Tran") was insufficiently experienced for the specific type of drainage work required by the Central Island Drainage and Street Improvements. Tran's work history is very limited with respect to specific drainage projects. 10. My thirty years of experience in various city engineer and public works positions has shown that a contractor who is unable to perform the majority of the work with their own forces experiences project delay issues and cost overruns. 11. My many years of experience has also shown that a highly complex project such as the Central Island Drainage and Street Improvements Project requires a contractor with specific expertise in this area. FURTHER AFFIANT SAYET(NA G ICK • NER STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) I HEREBY CERTIFY that on this day, before me, an officer duly authorized to administer oaths and take acknowledgments, personally appeared RICK CONNER, who produced as identification, or who is ,personally known to me, and who took an oath and declared that he has read the foregoing and that the facts stated herein are true and correct to the best of his knowledge and belief. 3 WITNESS my hand and official seal in the County and State last aforesaid on this 29 day of February, 2008. -575`r►UN Sh59 4.Otil Gewel- Printed Name of Notary _ _Signature of_ota Public Notary Public Serial Number if sNUarsN�aoN Fb My Commission Expires: D9 h� �01Q1�0" "�`� 4r:y ComeldonIOD4t23t1 _Barad VMS Notre 4 EXHIBIT "G" CASE NO: Tran Construction, Inc. Petitioner, v. CITY OF SUNNY ISLES BEACH, a Florida municipal corporation, Respondent. AFFIDAVIT OF VICTOR H. GUEVARA STATE OF FLORIDA SS: COUNTY OF MIAMI-DADE BEFORE ME, the undersigned authority, personally appeared Victor H. Guevara who after first being duly sworn, deposes and states as follows: 1. My name is Victor H. Guevara and I have been employed as a project manager with Beiswinger Hoch and Associates ("BH&A") since 1990. 2. I am over eighteen years of age, and the information contained herein is based upon my personal knowledge, information and belief. 3. My responsibilities with BH&A include design of drainage systems, flood control and analysis of hydraulic problems. I have worked as a drainage and sanitary engineer for other engineering firms since 1973. Drainage and sanitary engineering includes urban development, sanitary, storm drainage, water systems, urban thoroughfares, as well as flood and water basin evaluations. 4. I also have many years of experience in projects on an international level, dealing mostly with the design of drainage, sanitary sewer and water systems, roadways, and construction supervision. 5. I received civil engineering degrees from Chicago Technical College in 1973, and from the Universidad Tecnica de Manabi in Ecuador in 1976. 6. The firm of BH&A was retained by the City of Sunny Isles Beach to serve as a consultant for the Central Island Drainage and Street Improvement Project ("Central Island Project"). In particular, BH&A was retained to provide design and technical assistance services. This also included gathering information to assist the City in its selection of a contractor for the Central Island Project. 7. BH&A performed fact finding for the City regarding the bids submitted for the Central Island Project (Bid No. 07-10-02). This fact finding consisted of bidders' reference checks, verification of past projects, performance evaluation, and proposed sub-contractors lists, as well as bidder's unit price schedule review. This fact finding also consisted of ensuring that the bidders had sufficient equipment fleets and forces to accomplish this particular project. I personally reviewed each one of the bids submitted for the Central Island Project. 8. Requests for additional information were sent to the four (4) lowest bidders asking them to identify the percentage of work to be performed by their own forces, in order to satisfy the 40% work requirement set forth in the bid documents. The four lowest bidders were identified as (1) Tran Construction Inc. ("Iran") (2) Southeastern Engineering Contractors Inc. ("Southeastern") (3) Solo Construction Corporation and (4) Acosta Tractors Inc. Engineering Contractors. 9. As part of BH&A's fact finding process, it was determined that Tran did not specialize in the specific type of work required by the Central Island Project and did not own all of the equipment necessary for the project. Of the projects under construction listed in Tran's bid response, only a small number involved storm drainage and roadway projects. 10. The fact finding also showed that Tran is basically a construction management type operation which sub-contracts out mostly all of its work. A reference check also revealed that Tran was late on a recent project for the City of Miami Beach. 11. During the course of BH&A's fact finding process, issues were raised as to whether Tran would perform at least 40% of work with their own forces, as required by the bid documents. 12. In contrast, it was determined that Southeastern would perform 70% of the work with their own forces and that they owned all of the equipment necessary for the project. Additionally, of the 44 (forty four) projects under construction listed by Southeastern in their bid response, 33 (thirty three) specifically involved storm drainage and roadway projects. 13. Southeastern demonstrated a history of successfully completing these types of projects for local town and municipalities, oftentimes getting additional work added to their contracts. The fact finding analysis also showed Southeastern to be 3 more in line with the specific requirements needed to address the special needs of the Central Island Project. 14. On February 14, 2008, BH&A forwarded a memorandum to Rick Conner summarizing the results of its fact finding with regards to the Central Island Project. A true and correct copy of this memorandum is attached hereto as "A". FURTHER AFFIANT SAYETH NAU HT. 1 ICT H. GUEVARA STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE I HEREBY CERTIFY that on this day, before me, an officer duly authorized to administer oaths and take acknowledgments, personally appeared VICTOR H. GUEVARA, who produced , I as identification, or who is personally known 12 rile,. and who took an oath and declared that he.has read the foregoing and that the facts stated herein are true and correct to the best of his knowledge and belief. WITNESS my hand and official seal in the County and State last aforesaid on this 3101 day of MencAn , 2008. 3ASLA 1Kit _ k - vQeN>Q N ..-e b� 1i OC - -Ea- a Printed Name of Notary gnature of Notary Public JASMINE L BARNES oa,.ns 000eors�a I pF_;:a mss 11I1B1 10 Notary Public Serial Number (if any) c;: - nova Nair Inc My Commission Expires: 4 , ' From: Kenneth Patterson Page I of 2 j [Print] [Close] M-# &t J„r From: °Patterson, Kenneth" <KennethPatterson @miamlbeachfl gov> I To: <georges @bhaengineers.com> Subject: FW: Verify Contractor t {, Date: Thu, 10 Jan 2008 14:42:00 +0000 i Mr. Sokola, / l . Please see email below, I hope this answer your questions and or concerns. Thanks ' MIAMIBEACH / j Kenneth Patterson, Office Associate v Procurement Division 1700 Convention Center Drive,Miami Beach,FL 33139 Tel:305-673-7000 ext.6615/Fax:786-394-4010/ www.miamibeachfl.gov We are committed to providing excellent public service and safety to all who ' .__-_ __._______ . twrk and play in our vibrant no -- — - PicaA historic community, From: Carmenates, Aurelio Sent: Thursday,January 10, 2008 9:39 AM + To: Patterson, Kenneth i Subject: RE: Verify Contractor I Ken, I We are currently in the ll process of closing out the Oceanfront Neighborhood Project Phase I -Streetends Project from 24th to 43rd street, lighting, sidewalk and curb and which included drainage, water main installation, hardsca e, work on Collins ea sidewalk a Avenue. I am satisfy replacement, landscape and milling and re-surfacing Trrandid not exceeded. quality to the work although the project schedule was Let me know if I am can ti of additional ith he assistance of the MIAMIBEACH Aurelio J. Carrnenates PE l� , 1700 Convention Center Drive, Tet 30 ' •ami Black Fts Coo/d I 5.673-7071/Faz:305-673-7073 iami Bea 39"�1or CAPITAL IMP I �,FL 33j We ere COrnmillpdto 1 v! 'rmiarni6e2 RoyEMfNj-(.� providin9excellent CF111(Jpt TO�fCT�'Oefl^ Rim: Patte75pn publk serviCE and woe Vi (/ T°r fiursda r K'meth _ mho' c� .2nena Yr January 10 800:01; b q�bo '©e� goers ��8 931 AM T ymUU�96�nf/�- / N. � l�tYout Si esokas \ —v. /St deb �, 7 rs L, �jB /I 949, 'S �� .; i/ d l i q24� "4/ / .0) /t / • From: Kenneth Patterson Page 1 of 2 at&It [Print] (close] From: °Patterson, Kenneth" <KennethPatterson @miamlbeachfl.gov> To: <georges @bhaengineers.com> Subject: FW: Verify Contractor Date: Thu, 10 Jan 2008 14:42:00 +0000 Mr. Sokola, Please see email below, I hope this answer your questions and or concerns. Thanks MIAMIBEACHI Kenneth Patterson, Office Associate v Procurement Division 1700 Convention Center Drive,Miami Beach,FL 33139 Tel:305-673-7000 ext.6615/Fax:766-394-4010/ wwr.miamibeachfl.gov We are committed to providing excellent public service and safety to all who live.work and play in our vibrant tropical. historic community. From: Carmenates,Aurelio Sent:Thursday, January 10, 2008 9:39 AM To: Patterson, Kenneth Subject RE: Verify Contractor Ken, We are currently in the process of closing out the Oceanfront Neighborhood Project Phase I -Streetends Project from 24th to 43rd street, which included drainage, water main installation, hardscape, pedestrian lighting, sidewalk and curb and gutter replacement, landscape and milling and re-surfacing. Tran did not work on Collins Avenue. I am satisfy with the quality of the work although the project schedule was exceeded. Let me know if.l can be of additional assistance M IAM I BEACH Aurelio J. Carmenates, PE, Capital Projects Coordinator CAPITAL IMPROVEMENT-PROJECTS OFFICE 1700 Convention Center Drive,Miami Beach,FL 33139 Tel:305-673-7071/Fax:305-673-7073/ www.miamibeachfl.gov We are committed to providino excellent public service and safety to afl who live.work and play in our vibrant,tropical historic community. From: Patterson, Kenneth Sent: Thursday,January 10, 2008 9:31 AM To: Carmenates, Aurelio Cc 'georges @bhaengineers.wm' Subject FW: Verify Contractor Aurelio, Would you be so kind as to assist with this question. http://webmail.att.net/wmdv/wm/47864839000ED9D1000064A822230706129B0A02D20... 1/10/2008 4 • / • From: Kenneth Patterson Page 2 of 2 Thanks MIAMIBEACH Kenneth Patterson, Once Associate v Procurement Division 1700 Convention Center Drive,Miami Beach.FL 33139 Tel:305-673-7000 ext.6615/Far 786-394-4010/ www.miamibeachtl.gov We are committed to providing excellent public service and safety to all who five,work and play in our vibrant,tropical,historic community. From: Garda, Teresa Sent: Wednesday, January 09, 2008 10:23 AM To: Patterson, Kenneth Subject: FW: Verify Contractor Thank you. MIAMIBIEACH Teresa Garcia, Procurement Specialist PROCUREMENT DIVISION 1700 Convention Center Drive,Miami Beach,FL 33139 tgarcia@miamibeachfl.pov Tel:305-673-7490 / Fax:786-394-4008/ vAntmiamibeach gov We are committed to providing excellent public service and safety to all who live,work and play in our vibrant,tropical,historic community From: George Sokola [mailto:georges @bhaengineers.com] Sent: Wednesday, January 09, 2008 10:16 AM To: Garda,Teresa Subject: Verify Contractor Hi T, I am trying to verify that TRAN Construction Inc. has successfully completed a Roadway/drainage project on Collins Ave btwn 24th thru 43 rd Sts.. And also if the city is satisfied with the quality of the completed project. We are verifying this project for the City of Sunny Isles where the Contractor has submitted a bid for similar work If you need to contact me my Office number is 954-334-9000 Thank You Very Much • George J Sokola http://webmail.alt-net/wmc/v/wm/47864839000ED9D I000064A822230706129B0A02D20... 1/10/2008 CLAIM VOUCHER TAX EXEMPT NO: (GENERAL FUND) 23-00-477131-54C City of Sunny Isles Beach Finance Department 17070 Collins Avenue, Suite 250 Sunny Isles Beach, Florida 33160 Office: (305) 947-0606 Fax: (305) 949-3113 Finance Department i DATE VOUCHER RECEIVED I VENDOR NAME/ADDRESS Arnstein& Lehr, LLP do Sonja K. Dickens, Esq. FUND APPROPRIATION 200 E. Las Olas Blvd., Suite 1700 ACCOUNT NO. AMOUNT Ft. Lauderdale, FL 33301-2240 VENDOR NO. PURCHASE ORDER NO. A Bid Protest Hearing[40-538-5635] , $500.00 • B $ C $ D $ E $ TOTAL $500.00 DATE ,QUANTITY DESCRIPTION UNIT PRICE AMOUNT 2/27/08 I Bid Protest Hearing on March 3, 2008 re: Bid No. 07-10-02 $500.00 $500.00 Central Island Drainage and Street Improvements $ I $ $ $ i $ $ $ DEPARTMENT APPROVAL FINANCE DIRECTOR The above services or materials were rendered or furnished to the This claim is approved&ordered paid from the appropriations munici t •on the ve dat stated&the charges are correct indicated above. i Department Head ate Finance Director I Date City Manager Date ❑ FIXED ASSETS REASON/COMMENT ❑ CONTRACT NO. ❑ BIDS ATTACHED Ordinance No.2000-101 ❑ 1099 VENDOR Please give check to Jane Hines when ready,so she can ❑ TIN/SS NO. hand it to Ms.Dickens at the Hearing on 03/03/08. Thank ❑ PURCHASE ORDER you. ❑ RESOLUTION NO. IS-Revised 09/28/00 CITY OF SUNNY ISLES BEACH 18070 Collins Avenue Sunny Isles Beach, Florida 33160 s�"_""s<F 305:947.0606 .1 www.sibfl.net ' �� _nr -01' P 1.7• FLOWN o`i City Commission February 25, 2008 City of sus Ps Norman S. Edelcup Mayor Lewis J. Thaler Vice Mayor VIA FACSIMILE (954) 713-7700 AND U.S. MAIL Roslyn Brezin Commissioner Sonja K. Dickens, Esq. I Gerry Goodman Amstein& Lehr, LLP. Commissioner 200 E. Las Olas Boulevard, Suite 1700 George"Bud"Scholl Ft. Lauderdale, FL 33301-2240 Commissioner Re: Hearing Examiner for Protest Hearing A John Szerlag ' City Manager Dear Ms. Dickens: Hans Ottinot City Attorney This is to confirm that you will serve as Hearing Examiner for the Protest Hearing Jane Hines City Clerk scheduled for Monday, March 3, 2008, 3:30 p.m., at the Sunny Isles Beach Government Center. David R Samson Commission Chambers, 18070 Collins Avenue, Sunny Isles Beach, FL 33160. The City will provides you with a flat fee of Five Hundred Dollars ($500.00) to preside over this hearing Further, the protestor will also be notified (today) of the scheduled hearing. Should you have any questions, please feel free call me at (305) 792-1703. Thank you. Sincerely, Jane A. Hines, CMC I City Clerk /pw cc: A, John Szerlag, City Manager • Clans Ottinot, City Attorney Jorge L. Vera, Assistant City Manager/Services Rick Conner, Director of Public Works and Engineering ORDINANCE NO. 2000- 10 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,FLORIDA;AMENDING ORDINANCE NO.97-10 WHICH ESTABLISHED PURCHASING PROCEDURES, TO PROVIDE GENERAL PROVISIONS; TO PROVIDE FOR A PURCHASING AGENT; TO PROVIDE FORIPURCHASING LIMITATIONS AND COMPETITIVE BIDDING; TO PROVIDE FOR A COMPETITIVE BIDDING PROCEDURE FOR PURCHASES UNDER$25,000 AND PURCHASES OVER$25,000; PROVIDING FOR BID AWARDS,RESPONSIBILITY OF BIDDERS OR OFFERORS; PROVIDING FOR THE EVENT OF ONLY ONE RESPONSIVE BID; PROVIDING FOR ALL BIDS TO BECOME THE PROPERTY OF THE CITY; PROVIDING FOR A WAIVER OF COMPETITIVE BIDDING PROCEDURES; PROVIDING FOR EXEMPTION FROM BIDDING; PROVIDING FOR CONTRACT ADMINISTRATION; PROVIDING FOR PROTEST PROCEDURES; PROVIDING FOR ETHICS IN PUBLIC CONTRACTING; PROVIDING FOR A REPEAL OF CONFLICTING PROVISIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS,the City Commission,by Ordinance 97-10 set forth purchasing guidelines and procedures essential in the administration of the City's day to day activities; and WHEREAS, the City's Charter requires that contracts for public improvements and purchases of supplies,materials,or services shall be awarded or made on the basis of specifications and competitive bids, except in cases where the City Commission specifically determines it is impractical to do so; and WHEREAS,the City now wishes to amend, clarify and amplify certain provisions of such ordinance;. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS; PURCHASING PROCEDURES ARTICLE 1. GENERAL PROVISIONS i Section 1-1. Purpose. The purpose of the Purchasing Procedures of the City of Sunny Isles Beach, (hereinafter,"Ordinance")is to provide for the fair and equitable treatment of all persons involved in purchasing by the City, to maximize the purchasing value of public funds in procurement, and to provide safeguards for maintaining a procurement system of quality and integriri. 1 Amendment to Ordinance No.97-10 Push._....Procedures Ord. 4/3/01—&44 PM IMD:ch Section 1-2. Application. This Ordinance applies to contracts for the procurement of supplies, services and construction entered into by the City after the effective date of this Ordinance. It shall apply to every expenditure of public funds by the City for public purchasingjrrespective of the source of the funds. When the procurement involves the expenditure of federal assistance or state assistance of contract funds,the procurement shall be conducted in accordance with any mandatory applicable federal law and regulations or state law or regulations. Nothing in this Ordinance shall prevent the City from complying with the terms and conditions of any grant, gift,lor bequest that is otherwise consistent with law. Section 1-3. Public Access to Procurement Information. Procurement information shall be in public record to the extent provided in Chapter 119, Florida Statutes, and shall;fie available to the public as provided in such statute. ARTICLE 2. PURCHASING AGENT. Section 2-1. Establishment of Purchasing Agent. The City Manager or his/her'designee shall be the chief purchasing agent of the City. Subject to the terms of this Ordinance,and unless the City Clerk or City Attorney choose otherwise, the purchasing agent shall contracts for, procure or so process the procurement,purchase, storage and distribution all supplies, materials, and-equipment and certain contractual services required by any office, department or agency of the City. The purchasing agent shall establish and enforce specifications, inspect or supervise the inspection of all deliveries and have full and complete charge of, and be responsible for, all supplies,materials,and equipment purchased for or belonging to the City. All expenditures pursuant to this Ordinance shall conform to the provisions of Section 3.10 of the City Charter. Section 2-1. Unauthorized Purchases. Except as herein provided in this Ordinance, it shall be a violation of this Ordinance for any City officer,employee,or other person,to order the purchase of or make any contract for,materials,supplies or services within the purview of this Ordinance,in the name of or on behalf of the City other than through the Purchasing Agent or'a designee of the purchasing Agent,and the City shall not be bound by any purchase order or contract made contrary to the provisions herein. ARTICLE 3. PURCHASING LIMITATIONS; COMPETITIVE BIDDING. Section 3.1. (A) Purchases less than$2,500. Purchases of,or contracts for,materials,supplies, equipment, improvements or services for which funds are provided in the budget, where the total amount to be expended is not in excess of$2,500 may be made or entered into by the City Manager without submittal to the City Commission and without competitive bidding. Single purchases or contracts in excess of$2,500 shall not be broken down to amounts less than $2,500 to avoid the requirements of this Section. (B) Purchases more than$2,500 but less than$10,000. Purchases of,or contracts for, materials, supplies, equipment, improvements or services for which funds are provided in the budget, where the total amount to be expended is in excess of$2,500, but which do not exceed 2 Amendment to Ordinance No.97-10 Purchasing Procedure,Ord. 4/3/01—2:44 PM IBID:ch • $10,000 may be made, or entered into, by the City Manager without submittal to the City Commission, but shall require compliance with the competitive bidding requirements set forth in Section 4.1 hereinbelow of this Ordinance. Single purchases or contracts in excess of$10,000 shall not be broken down to amounts less than $10,000 to avoid the requirements of this Section. (C) Purchases in excess of$10,000. The City Commission shall approve all purchases of or contracts for materials,supplies,equipment,public improvements or services where the total amount to be expended is more than $10,000. (D) Purchases in Excess of$25,000. For purchases in excess'of$25,000 the City Commission shall follow the formal provisions contained in Article 4.2 below: (E) The City Manager may not purchase or contract for any item or service which exceeds any budget appropriation until such a time the City Commission amends the budget to increase the appropriation to the applicable level. ARTICLE 4. COMPETITIVE BIDDING PROCEDURE. Section 4.1 Purchases Under$25,000 (A) Whenever competitive bidding is required by this Ordinance, the City Manager shall direct that bid proposals which provide specifications for the purchase or contract be prepared. (B) The City Manager shall solicit bids from at least three persons or entities engaged in the business of furnishing such materials,supplies,equipment and public improvements or rendering such services. (C) The City Manager may publish a public invitation to bid items under$25,000. (D) Bids shall be awarded to the lowest,most responsive,responsible bidder, as determined by the City Commission and/or the City Manager as the case may be,subject to the right of the City to reject any and all bids,to waive any irregularity in the bids or bidding procedures and subject also to the right of the City to award bids and contracts to bidders other than the low bidder. Until a formal contract is executed, the City reserves the right to reject all bids. Section 4.2 Purchases Over$25,000. Bids for purchases over $25,000 shall be awarded in the same mannenas purchases as set forth in Section 4.1, except these additional requirements shall pertain: (A) Conditions for Use. All contracts with the City in amounts over$25,000 shall be awarded by competitive sealed bidding except as otherwise provided in Article 6,or,as otherwise approved by City Commission. 3 Amendment to Ordinance No.97-10 Purchasing Procedures Ord 4/3/01—3:44 PM ttdDzh • (B) Invitation for Bids. An invitation for bids(including RFPs and RFOs)shall be issued and shall include specifications and all contractual terms and conditions applicable to the procurement. (C) Public Notice. Public notice of the invitation for bids shall be given not less than 14 calendar days prior to the date set forth in the notice for the opening tfibids. Such notice may be given by publication in a subscription newspaper of general circulation in the City. The notice shall state the place, date, and time of bid opening. All bids shall be received in the City Manager's office on, or before, the date and time set forth in the notice. (D) Bids: Bid Opening. (I) Sealed Bids will be initialed on the outside of the'envelope by the person receiving the package, the time and date will tie stamped on the envelope which should be marked "IMPORTANT, BID ENCLOSED." The Bid package will be held in a secure place until the scheduled time for the Bid Opening. (2) Bids shall be opened publicly,in the presence of one or more witnesses,at the time and place designated in the public notice of the invitation for bids. The amount of each bid and such other relevant information as the City Manager deems appropriate,together with the name of each bidder, shall be recorded. (E) Cancellation of Invitations for Bids or Requests for Proposals. An invitation for bids, or request for proposals, or other solicitation may be cancelled, or 'any or all bids or proposals may be reiected in whole,or in part, as may be specified in the solicitation,when it is in the best interests of the City. The reasons therefor shall be made part of the contract file. Each solicitation issued by the City shall state that the solicitation may be cancelled and that any bid or proposal may be reiected, in whole or in part,in the best interests of the City. Notice of cancellation shall be sent to all businesses solicited. The notice shall identify the solicitation,explain the reason for cancellation and,where appropriate,explain that an opportunity will be giveir to compete on any re-solicitation or any future procurement of similar items. (F) Correction or Withdrawal of Bids;Cancellation of Awards. In general,bids shall be unconditionally accepted without alteration or correction, except as 'authorized in this Ordinance. However, correction or withdrawal of inadvertently erroneous bids before or after bid opening,or cancellation of awards or contracts based on such bid mistakes,maybepemvtted,where appropriate. Mistakes discovered before bid opening may be modified,or the bid'may be withdrawn by written or telegraphic notice received in the office designated in the invitation for bids prior to time set for bid opening. After bid opening, no changes in bid prices or other provisions of bids preiudicial to the interest of the City, or fair competition, shall be permitted. In lieu of bid correction,a low bidder alleging a material mistake of fact may be permitted to/Withdraw its bid if: (1) The mistake is clearly evident on the face of the bid document but 4 Amendment to Ordinance No.97-10 Rudman;Procedures Or 4/3/01—2:44 PM IMD:ch the intended correct bid is not similarly evident; or (2) The bidder submits evidence which clearly and convincingly demonstrates that a mistake was made. All decisions to permit the correction or withdrawal of bids,or to cancel awards or contracts based on bid mistakes,shall be supported by a written determination made by the Purchasing Agent. (3) Notwithstanding the foregoing,the City Commission shall have the authority to waive any and all irregularities in any and all proposals. Section 4.3 Award. (A) All contracts shall be awarded by the City Manager,as stated above,to the lowest responsible and responsive bidder. In addition to price, there shall be considered the following: (1) the capacity, ability and skill of the provider to perform the contract: (2) whether the provider can perform the contract within the time specified without delay or interference; (3) the character, integrity, reputation, judgment, experience and efficiency of the provider; (4) professional licensure required when service of a skilled nature as required by law to perform such service and/or skill; (5) the quality of performance of previous contracts; (6) the previous and existing compliance by the provider with laws and ordinances relating to the contract; (7) the ability of the provider regarding future maintenance and service for the use of the subject of the contract; (8) the City Manager may, by Administrative Order, establish a set of criteria of a numerical nature that may be utilizedin awarding contracts hereunder. (B) The contract shall be awarded by the City Manager or the City Commission,as the case may be, with reasonable promptness by appropriate written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteriatset forth in 5 Amendment to Ordinance No.97-10 Purchasing Procedures Ord 4/31D1—2:44 PM iam:m the invitation for bids. (C) In the event the lowest,most responsive and responsible bid for a project exceeds available funds,and the City Commission does not make available additional funds,the City Manager is authorized, when time or economic considerations preclude re-solicitation of bids,to negotiate an adjustment of the bid price as long as the scope of work is not changed with the lowest,most responsive and responsible bidder, in order to bring the bid within the amount of available funds. Final negotiation shall be in written form as approved by the City Manager. (I)) The City retains the right to reject all bids should negotiations fail. This negotiation may not be used to ascertain the lowest responsive and responsible Ithd. (E) Until a formal contract is executed, the City reserves the right to reject all bids. Section 4.4 Responsibility of Bidders or Offerors. If a bidder or offeror who otherwise would have been awarded a contract is found non-responsible,a written determination of non-responsibility,setting forth the basis of the finding shall be prepared by the City Manager or the Purchasing Agent. Grounds for determination of non 2responsibility may include, but are not limited to, the unreasonable failure of a bidder or offeror id promptly supply information in connection with an inQuiry with respect to non-responsibility) A copy of the determination shall be sent promptly to the non-responsible bidder or offeror. The final determination shall be made part of the contract file and be a public record. ' Section 4.5 One Response. If only one responsive bid or proposal for commodity or contractual service is received,in response to an Invitation for Bid/Proposal, an award may be made to the single Bidder/Proposer, if the City Manager finds the price submitted is fair and reasonable, and that other prospective bidders had reasonable opportunity to respond, or there is not adequate time for resolicitation J Further,the City Manager reserves the right, if it is in the best interests of the City, to negotiate with the sole Bidder/Proposer for the best terms, conditions and price. The City Manager shall document the reasons that such action is in the best interest of the City. Otherwise, the bid/proposal may be rejected and: 1. new bids or offers may be solicited; 2. the sole bid/proposal may be rejected. 3. If the City Manager determines in writing that the need for the supply or service continues, but that the price of the one bid/proposal is unreasonable and there is not time for re-solicitation or re-solicitation would likely be futile,the procurement may then be conducted under Section 6(D)'or Section 6(F), as appropriate. 6 Amendment to Ordinance No.97-10 Purchasing Procedures Ord. 4/3/01—2:44 PM LMD:ch Section 4.6 Property of City. All bids and accompanying documentation received from bidders in response to the invitation to bid shall become theproperty of the City and will not be returned to the bidders. In the event of contract award, all documentation and work product produced as part of the contractlshall become the exclusive property of the City. This subsection is applicable to request for proposal and request for letter of interest documents, which also become property of the City. ARTICLE 5 WAIVER OF COMPETITIVE BIDDING PROCEDURES. The City Commission may authorize the waiver of competitive bidding procedures upon the recommendation of the City Manager that it is in the City's best interest to do so,'to obtain goods and services which cannot be acquired through the normal purchasing process due to insufficient time, the nature of the goods or services,or other factors. Purchases authorized by waiver process shall be acquired after conducting a good faith review of available sources and negotiation as to price, delivery and terms. _ VY • a_ . L ,L . Y . • Y . Y .. ... - .. ARTICLE 6 EXEMPTIONS FROM COMPETITIVE BIDDING. The following shall be exempt from the competitive bidding procedures outlined in this ordinance: (A) Transactions described in Section 4.1(A) of this Ordinance. (B) Contracts for professional services, except for those contracts of more than $10,000 for professional services governed by Florida Statutes Section 287.055 (the Consultants Competitive_Negotiations Act. . . . . . ... . . . . .. . . . • - • - - . .. '. . . . . :. _ (C) Purchases made under state general service administration contracts,federal, county or other governmental contracts or competitive bids with other governmental agencies. (D) Purchases arising out of or because of emergencies which shall be defined as a situation,occurrence or matter necessitating immediate or quick action and not permitting adequate time to utilize the competitive bidding process. A written determination of the basis for the 7 Amendment to Ordinance No.97-10 Purchasing Procedures Ord. 4/3/01—2:44 PM Lb D:ch • emergency and for the selection of the particular contractor shall be included in the contract file. As soon as practicable, a record of each emergency procurement shall be made and shall set forth the contractor's name, the amount and type of the contract, a listing of the item(s) procured under the contract, and the identification number of the contract file. (E) Under circumstances where time constraints do not permit the preparation of clearly drawn specifications or situations where, after competitive bidding, no bids meeting bid requirements are received, all compliant bids received are too high, or all bids are rejected for failure to meet bid requirements (i.e., bids are non-compliant). (F) Supplies, equipment or services available from a sole 'source only may be exempted from the bidding requirements of this Ordinance by the City managerrpon the filing of a written request by a department head to the City Manager outlining the conditions and circumstances involved,after conducting a good faith review of available sources,a contract may be awarded without competition when the City Manager or Purchasing Agent determines in writing, after conducting a good faith review of available sources, that there is only one source for the required supply,brand, service,or construction item capable of fulfilling the needs of the City. The City Manager or Purchasing Agent shall conduct negotiations,as appropriate,as to price,delivery, and terms. A record of sole source procurements shall be available as a public record and shall identify each purchase order and/or contract. (G) Exempt Contractual Services and Products. Other exempt contractual services and products not subject to the competitive procurement requirements of this Code are listed as follows: (1) Academic program reviews or lectures or seminars by individuals (2) Artistic services which are original and creative in character and skill in a recognized field of artistic endeavor such has music, dance, drama, painting, sculpture and the like. Howeveii contracts for artistic instructors,coaches and assistants are deemed contractual services subject to the requirements of competitive procurement. (3) Performing artists and entertainers as approved by the City Manager/Purchasing Agent when deemed in the City's best interests, for the benefit of the citizens of Sunny Isles Beach and the general public at any City function. (4) Advertising (5) Utilities, including but not limited to, electric, ',water and telephone (6) Items purchased for resale to the public 8 Amendment to Ordinance No.07-10 PracMasing Procedures Ord. 4/3/01—3:44 PM ILID:eh • (H) Competitive proposals shall not be required when a purchase is made for materials, equipment, prefabricated elements and components, appliances, fixtures and supplies, bought under a sales tax saving procedure constitutingpart of a construction proiect award,which construction contract has been awarded in accordance with this Ordinance. ARTICLE 7. CONTRACT ADMINISTRATION (A) A contract administration system designed to ensure that a bidder/offeror/contractor is performing in accordance with the solicitation under which a contract was awarded and the terms and conditions of the contract shall be maintained by the City Manager. (B) All determinations and other written records pertaining to the solicitation, award or performance of a contract shall be maintained for the City in a contract file by the City Manager and be retained and disposed of in accordance with the records retention guidelines and schedules approved by the City Clerk. ARTICLE S. PROTEST PROCEDURES This Article shall govern any protest made by a participant in any competitive process utilized for the selection of a person or entity in regard to any response to a!City Request for Proposal/Invitation to Bid and/or Request for Qualification("Request for Proposals"). (A) Protest of any City recommendation for an award in response to a Request for Proposals shall be filed with the City Clerk and mailed by the protesting to all participants in the competitive process within seven (7) days of the City's recommendation for an award or the City's actual award whichever comes first. Such protest shall be in writing,shall state the particular grounds on which it is based,shall include all pertinent documents and evidence and shall be accompanied by a cashier's check in the amount of$250.00 to reimburse the City for all administrative costs'dssociated with the appeal process. Anv grounds not stated shall be deemed waived. (B) Protests shall be referred by the City Clerk to the City Attorney who sliall select a hearing examiner who shall hold a hearing and submit written findings and recommendations within ten(10) days of the filing of the protest. The hearing examiner shall consider the written protests,supporting documents in evidence,the City's recommendations and supporting documentation and all evidence presented at the hearing. Such finding and recommendation shall be filed with the City Clerk. (C) Hearing examiners may be retired judges, certified mediators or other impartial parties as selected by the City Attorney. (D) The hearing examiner's findings and recommendations shall be presented to the City Commission for final action at the next regular or specially scheduled meeting. Notice shall be mailed to all participants in the competitive process at least seven(7) days in advance of any final action by the City Commission. The Notice shall include the hearing exam'iner's findings and recommendations. 9 Amendment to Ordinance No.87-10 Partaaing Procedures On 4/3/0]—2:44 PM n.1D:eh (E) Failure to follow the protest procedures set forth herein shall automatically nullify any protest or claim brought by an aggrieved bidder, offeror or contractor. ARTICLE 9. ETHICS IN PUBLIC CONTRACTING In addition to all ethical rules and guidelines set forth by the Commission on Ethics and the Miami-Dade County Code, as applicable to the City of Sunny Isles Beach and t}ie State of Florida, the City Manager may impose any one or more of the following sanctions on a City Employee for violations of ethical standards set forth by Miami-Dade County or the State of Florida including,but not limited to: oral or written warnings or reprimands,suspension with or without pay for specified periods of time or termination of employment. For non-employees, for violations of ethical standards,the City Commission may terminate any contract with the City of Sunny Isles Beach. ARTICLE 10. REPEAL OF CONFLICTING PROVISIONS. All provisions of the Code of Metropolitan Dade County as made applicable to the City by Article VIII, Sections 8.3 of the City Charter and Ordinance 97-10 which are in conflict with this Ordinance are hereby repealed. ARTICLE 11. SEVERABILITY. The provisions of this Ordinance are declared to be severable and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be invalid or unconstitutional,such decision shall not affect the validity of the remaining sections,sentences,clause's and phrases of this Ordinance but they shall remain in effect, it being the legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part. ARTICLE 12. INCLUSION IN THE CODE. It is the intention of the City Commission,and it is hereby ordained that the provisions of this Ordinance shall become and made a part of the City of Sunny Isles Beach Code;lthat the sections of this Ordinance may be renumbered or re-lettered to accomplish such intentions; and that the word "Ordinance" shall be changed to "Section" or other appropriate word. ARTICLE 13. EFFECTIVE DATE. This Ordinance shall be effective upon adoption on second reading. II . 10 Amendment to Ordinance No.97-10 Purchasing Procedures Ord. 4/3/01—2:44 PM PASSED AND ADOPTED on first reading the (% day of July, 2000. PASSED AND ADOPTED on second reading this Zoeday of —3 to kv ,2000. , • .. DAVID SAMS YOR ATTEST: • `. -Richard Brown-Morilla, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: 4M.- L M. Dannheisser, City Attorney Motion on second reading by: VICE_MA4be MDR kow Second on second reading by: Caohynikki o Alt R;KFAArpm co/ Vote: 5-0 Mayor David Samson (yes) V (no)_ Vice Mayor Connie Morrow (yes) V (no)_ Commissioner Irving Turetsky (yes), Ii (no)_ Commissioner Lila Kauffman (yes) / (no)_ Commissioner Daniel Iglesias (yes)_/ (no)_ II . Amendment to Ordinance No.97-10 Purchasing Procedures Ord. 629/00—4:12 PM LMD:ch . - CITY OF SUNNY ISLES BEACH - - • ' '` '•;18070 Collins Avenue t• Sunny Isles Beach, Florida 33160 su"""+<E - 305:947.0606. o" ;* t ‘ \ www.sib0.net - I /or c S, \•{lo P' o,i' City Commission February 25, 2008 Fr City sus P`' Norman S. Edelcup Mayor Lewis J. Thaler Vice Mayor VIA FACSIMILE (954) 713-7700 AND U.S. MAIL Roslyn Brezin Commissioner Sonja K. Dickens, Esq. Gerry Goodman Amstein & Lehr, LLP. Commissioner 200 E. Las Olas Boulevard, Suite 1700 George"Bud"Scholl Ft. Lauderdale, FL 33301-2240 Commissioner Re: Hearing Examiner for Protest Hearing A John Szerlag City Manager Dear Ms. Dickens: Hans Ottinot City Attorney This is to confirm that you will serve as Hearing Examiner for the Protest Hearing Jane Hines City Clerk scheduled for Monday, March 3, 2008, p'2008 3:30 p.m., y at the Sunn Isles Beach Government Center, David P. Samson Commission Chambers. 18070 Collins Avenue, Sunny Isles Beach, FL 33160. The City will provide you with a flat fee of Five Hundred Dollars ($500.00) to preside over this hearing. Further, the protestor will also be notified (today) of the scheduled hearing. Should you have any questions, please feel free call me at (305) 792-1703. Thank you. Sincerely, Jane A. Hines, CMC City Clerk /pw cc: John Szerlag, City Manager clans Ottinot, City Attorney Jorge L. Vera, Assistant City Manager/Services Rick Conner, Director of Public Works and Engineering Page 1 of 1 Priscilla Walker From: Jonathan Alfonso Uonathanalfonsoaab @gmail.comj Sent: Wednesday, February 20, 2008 3:40 PM To: Priscilla Walker Cc: Hans Ottinot;jalfredoarmas @aol.com Subject: Re: Emailing: 2008 -0221 Regular Comm Mtg -Optimized Priscilla, Thank you for promptly forwarding the minutes. I wanted to confirm the conversation we had on the phone this morning that, as of today, the city has not made a recommendation as to which bidder should be awarded Bid No. 07- 10-02, Central Island Drainage& Street Improvements. I noticed the letter dated February 21, tomorrow, from the City Manager recommending Southeastern Engineering. I just want to make sure that the statutory 7 day period for filing a protest will not commence until the City Commission meeting is held and the letter is presented. Obviously, the letter from Beiswenger Hoch and Associates dated February 14, 2008 stating their recommendation that Southeastern be awarded Bid No. 07-10-02 is not the "City's recommendation" as worded in Section 62-15 of the City code. It is simply the Design Architect's opinion and not the recommendation of the City. Please let me know if I am mistaken. Thank you. Jonathan Alfonso Legal Assistant to J. Alfredo de Armas CC: J.Alfredo Armas Hans Ottinot On 2/20/08, Priscilla Walker <PWalker @sibfl.net> wrote: <<2008 - 0221 Regular Comm Mtg - Optimized.pdfl> The message is ready to be sent with the following file or link attachments: 2008 - 0221 Regular Comm Mtg - Optimized Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled. tr PLEASE NOTE: FLORIDA HAS A VERY BROAD PUBLIC RECORDS LAW. MOST WRITTEN COMMUNICATIONS TO OR FROM CITY OFFICIALS REGARDING CITY BUSINESS ARE PUBLIC RECORDS AVAILABLE TO THE PUBLIC AND MEDIA UPON REQUEST. YOUR E-MAIL COMMUNICATIONS MAY THEREFORE BE SUBJECT TO PUBLIC DISCLOSURE. 2/20/2008 RECEIVED Ico TRAM iEB 2 1 2008 CONSTRUCTION G7y of Sunry Wm.8t1� 9e sm BUILDING QUALITY& DELIVERING EXCELLENCEsM om °w� aerk LETTER OF TRANSMITTAL DATE: 2/21/2008 FROM: HENRY T. LOUDEN CLIENT#: 07-10-02 TRAN #: 073884 I CENTRAL ISLAND DRAINAGE TO: 0 CITY OF SUNNY ISLE BEACH ATTN: JANE HINES ATTN: ATTN: We are sending you ❑ Attached El Under seperate cover via the following items LI Shop drawings ❑ Prints ❑ Plans n Samples ❑ Specifications ❑ Copy of letter ❑ Change Order ❑ COPIES DATE NO. DESCRIPTION 1 2/21/2008 BID PROTEST LETTER 1 2/6/2008 BID PROTEST CHECK ❑ For approval ❑ Approved as submitted Resubmit copies for approval ❑ For your use ❑ Approved as noted _ Submit copies for distribution ❑ As requested ❑ Returned for corrections Return corrected prints For review and comment FOR BIDS DUE , 2007 ❑ PRINTS RETURNED AFTER LOAN TO US REMARKS: COPY: SENT BY: HENRY T. LOUDE p I r REC'D BY: 'V 5— 3,7<on���=- _. 7 / I — 1000 NW 54 STREET,MIAMI,FL 33139 PHONE 305-756-7756;FAX 305-756-7780 073884 LOT TO HINES.xls-(0)-2/21/2008-PAGE1 OF 1 RECEIVED TRAM FEB 2 1 2008 CONSTRUCTION s„ BUILDING QUALITY & DELIVERING EYCELLENCEs■ Ory,of Surety WWI Bead, CGC 060092 Office of the City Clerk February 21, 2008 HAND DELIVERED John Szerlag,City Manager City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Fl 33160 Jane Hines City Clerk 18070 Collins Avenue Sunny Isles Beach, Fl 33160 Ref: Bid Protest-Construction Improvements for the City of Sunny Isles Beach Central Island Drainage and Street Improvements Bid No. 07-10-02 Dear Mr. Szerlag: This letter serves as Tran's protest of the City's recommendation not to award the subject Project to Tran. The legal basis for our protest is that there is no question but that the award must go to Ithe lowest responsible bidder. Paragraph 18.2 of the Request for Proposals states: "It is the intent of the Owner to award a Contract to the lowest responsible Total Base Bidder whose Bid is in conformance with the Bidding Documents and does not exceed the funds available." Here, Tran is the low bidder by more than One Hundred Thousand Dollars ($100,000) and its bid is below the funds earmarked for the Project. The bid tabulations are attached for your immediate reference. Not only is Tran the lowest bidder, it is clearly' a competent, responsive, responsible bidder. Iran has an unrivaled record of completing civil work, particularly water and drainage work, on time and1 on budget. Tran has substantial experience performing this type of work, has successfully completed numerous similar jobs, some of which are referenced in our bid package, and the reasons given by your staff 4 namely that Tran was alleged by an unnamed source to have been delayed in completing an unnamed job for the City of Miami Beach -- is pretextual and, more importantly, irrelevant. Here, the Contract documents and specifications contain an exhaustive list of experiential criteria that can disqualify a bidder. Tran is not disqualified by any of these criteria. These criteria are contained at Paragraph 6.3 as follows: Bidders may be disqualified and their bids rejected for any of the following specific reasons: a. Reason to believe that collusion exists among Bidders. b. Determination of lack of competency as may be revealed by qualification statements, financial statements,experience records, or other questionnaires.) c. The Bidder's uncompleted work load which in the judgment of the City may cause detrimental impact on prompt completion of this project. d. The Bidder is involved in any litigation against the City. e. The Bidder has defaulted on any previous contract or is in arrears on any existing contract. f. The submittal of more than one proposal from an individual, firm, partnership, corporation or association under the same or different names. g. The Bidder, or its principals, has outstanding code enforcement violations with the City of Sunny Isles Beach. 11100 NW 54 STREET,MIAMI,FL 33127:I'RRONE-305-756-7756:FAX-305-756-7780 2-21-08 LETTER TO SZF..RLAG.duc TRAN CONSTRUCTION.... BUILDING QUALITY & DELIVERING EXCELLENCEss, CGC 060092 This list of experiential requirements is clearly exclusive, meaning that it does not purport to include other similar or related requirements, but rather is intended to identify the entire universe of all such requirements. This is demonstrated by the absence of any language, such as "including but not limited to" or"among other things," manifesting an intention to include other matters that are ejusdem genet with the items listed. In addition, each one of the seven experiential requirements is purely objective. Specifically. each criterion is simply a matter of historical fact that either happened or did not happen. Moreover, the existence of these disqualifying experience-related requirements is not a matter of degree --;the desired quality is either objectively present, or it is absent; there is no discretionary middle ground. The upshot is that, any one bidder who, as a matter of fact, is not disqualified by the experiential, is qualified and its qualification is not subject to discretion. Since the disqualifying criteria are unambiguously exclusive, manifesting an intention to identify all applicable experiential requirements the exegetic maxim expressio unius est exclusio alterius controls.This rule holds that if"one subject is specifically named [in a contract], or if several subjects of a laarge class are specifically enumerated, and there are no general words to show that other subjects of that class'are included, it may reasonably be inferred that the subjects not specifically named were intended to be excluded." Espinosa v. State, 688 So. 2d 1016, 1017 (Fla. 3d DCA 1997); Gay v. Singletary. 700 So. 2d 1220, 1221 (Fla. 1997)("[W]hen a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded."). Here, Paragraph 6.3 provides a comprehensive list of all qualifications requirements. It cannot be said that an additional, unstated requirement exists wherein the bidder is subjected to a reviewer's discretionary determination of whether or not the bidder is qualified or not because it was `late" or "delayed" in some prior project with some other public entity. This is especially true here, where even the City's consultant that takes the position that Southeastern Engineering Contractors. Inc., is more qualified,acknowledges that Tran's"references check out and they come well recommended". All of the foregoing must be seen with a great deal of deference to awarding this Project to Tran --the low responsive bidder. It is the public policy of the State of Florida, repeatedly expressed in thewery clearest and most forceful terms possible by our courts, to award contracts to the low bidder and an equally string public policy against disqualifying the low bidder. "Where there is mandatory competitive bidding, there is a great public interest for the contract to be awarded to the lowest responsible bidder 'Whose bid is responsive." Caber Systems v. Department of Gen. Services. 530 So.2d 325 (Fla. 1st DCA 1988): City of Sweetwater v. Solo Constr. Corp., 823 So.2d 798 (Fla. 3d DCA 2002). The courts do not favor the disqualification of a low bidder for non-responsiveness where a bid irregularity does not impart an unfair competitive advantage to the low bidder. In Liberty County v. Barter's Asphalt and Concrete Inc., 421 So. 2d 505 (Fla. 1982)concerning principles applicable to competitive bidding the Florida Supreme Court held that there is a strong public policy in favor of awarding contracts to the low bidder, and ati equal strong public policy against disqualifying the low bidder for technical deficiencies which do not confer an economic advantage on one bidder over another. The purposes of bidding would be ill served if a low bidder is ignored for new criteria not set forth in the bid documents. This proposition in general is set forth in the Florida Supreme Court's decision of Wester v. Below. 103 Fla.976, 138 So. 721, 723-24(1931)as follows: The purpose of the bidding process is. . . To secure fair competition upon equal terms to all bidders:. . . to close all avenues to favoritism and fraud in its various forms: to secure the best values for the [City] at the lowest possible 1000 NW 54 STREET.NIIA31I.FL 33127:PIIONE305-756-7756:FAX-305-756-7780 2-21-08 LE ITER TO SZERIAC.doc THAN CONSTRUCTION cm BUILDING QUALITY& DELIVERING EXCELLENCEsm CGC 060092 expense; and to afford an equal advantage to all desiring to do business with the [City],I by affording.an opportunity for an exact comparison of bids. It is our position, that this particular bid process prevented the fulfillment of these purposes and was arbitrary and contrary to law. Tran was found to be a responsible bidder. Thanking you in advance for your anticipated considerations. Very truly yours. Henry T. Louden (' // President CGC 060092 Cc: Mr.Armando De Armas, Esq. 10011 NW 54 STREET.H IAN II.FL 33127:PHONE-305-756-7756:FAX-305-756-7780 2-21-08 LEITER TO SZERL C.duc i rv. {tr, rat. �'.,{ ' w 4mb saep..I Aye b : . ^' < A I \ i Tisk �y kfs N 4 y4 C - ^ O£ r F `W O Q � ! CO o Ii ! t. I I ULJ m m ~ m H Is H o _ j • • a '_ 0 I ti: l to e -a io C.) tm^ „I• L. . • 3_or oH. Z.LL°ul D L- r0 7 Q Q S• J o o ,--,z t r W i . weal LI ^ wQ � ° Q. . Sw 1 0 Cr CC F F rwv4tu1- ,ue:15E., -. f <sCl 3 "-i i • .