HomeMy WebLinkAboutReso 2008-1236
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RESOLUTION NO. 2008- 1~3t..
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA APPROVING A FINAL ORDER
RELATING TO A BID PROTEST FILED BY TRAN
CONSTRUCTION, INC; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City of Sunny Isles Beach, Florida (the "City") issued an Invitation to
Bid on October 3, 2007, soliciting sealed bids for the Central Island Drainage and Street
Improvements project, Bid No. 07-10-02; and
WHEREAS, on November 28,2007, the City received 14 (fourteen) sealed bids in response
thereto; and
WHEREAS, on February 21, 2008, the City Manager issued a memorandum to the City
Commission, recommending that Bid No. 07-10-02 be awarded to Southeastern Engineering
Contractors, Inc. ("Southeastern") after determining they were the lowest responsible and
responsive bidder; and
WHEREAS, on February 21, 2008, the City Commission approved Resolution No. 2008-
1221, which authorized the award of Bid No. 07-10-02 to Southeastern; and
WHEREAS, on February 21, 2008, Tran Construction Inc. ("Tran"), filed a bid protest
letter with the City; and
WHEREAS, the City Attorney's Office referred the matter for a formal bid protest hearing
before a Hearing Examiner, pursuant to Section 62-15 of the City Code; and
WHEREAS, the bid protest hearing was held by the Hearing Examiner at the City's
Government Center on March 3, 2008, at 3 :30 p.m; and
WHEREAS, the Hearing Examiner issued a Final Order on March 5 ,2008, denying Tran's
requested relief and finding that the City's decision to award the bid to Southeastern was
supported by competent and substantial evidence.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section I. Adoption of the Hearing Examiner's Final Order. The City Commission hereby
adopts the Hearing Examiner's Final Order dated March 5, 2008, (attached hereto as Exhibit
"A"), in the matter of the bid protest filed by Tran concerning Invitation to Bid No. 07-10-02.
R2008 Resollllion approving Hearing Examiners Final Order
Page I of 2
Section 2. Effective Date. This Resolution is effective upon adoption.
PASSED and ADOPTED this 20th day of March 2008.
ATTEST:
~t\~
Jane A. Hines, CMC, City Clerk
APPROVED AS TO FORM
AND L UF ICIENCY:
VOTE: 5- b
Mayor Edelcup
Vice Mayor Thaler
Commissioner Brezin
Commissioner Goodman
Commissioner Scholl
vyes _no
Vyes _no
~es_no
~yes no
~yes _no
R2008 Resolutioo approvmg Heanog Examiner's Final Order
Moved by: Vl <:..0. m~t'\v ~~
Second by: [1 ~~~ &~:z.l,j
Page 2 of 2
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 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 Constmction Inc. ("Petitioner") on Febmary 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.
Findines 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
Exhibit "A"
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 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 this.,:t1 day of March 2008.
Ulmy Isles Beach Hearing Examiner
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cc: All counsel of record
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City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
City Commission
Norman S. Edelcup, Mayor
Lewis J. Thaler, Vice Mayor
Roslyn Brezin, Commissioner
Gerry Goodman, Commissioner
George "Bud" Scholl, Commissioner
(305) 947-0606 City Hall
(305) 947-2150 Building Department
(305) 949-3 II 3 Fax
A. John Szerlag, City Manager
Hans Ottinot, City Attorney
Jane A. Hines, CMC, City Clerk
MEMORANDUM
To: The Honorable Mayor and City Commission
Via:
From:
Date:
Re:
A. John Szerlag, City Manager
Jane A. Hines, CMC, City Clerk ~ A ~
March 20, 2008
Resolution Approving a Final Order Relating to a Bid Protest Filed by Trans
Construction, Inc.
Recommendation:
It is recommended that the City Commission adopt the attached Resolution approving a Final
Order relating to a Bid Protest filed by Tran Construction, Inc.
Reasons:
On October 3, 2007, the City issued Invitation to Bid No. 07-10-02 for the Central Island
Drainage and Street Improvements Project, and the City received 14 responses, of which 10 were
responsive. On February 21, 2008, the City Manager issued a Memorandum to the City
Commission recommending that the bid be awarded to Southeastern Engineering Contracts, Inc.,
after determining that they were the lowest responsible and responsive bidder.
On February 21,2008 Tran Construction, Inc. filed a bid protest letter to the City, and pursuant
to City Code Section 62-15, the City Attorney's Office referred the matter for a formal bid
protest hearing before a Hearing Examiner. The bid protest hearing was held by the Hearing
Examiner in the Commission Chambers on March 3, 2008. The Hearing Examiner issued a
Final Order on March 5, 2008, denying Tran Construction's requested relief, and finding that the
City's decision to award the bid to Southeastern was supported by competent and substantial
evidence.
Funding ayailable:
Approyal:
10
3-?h-O~
Agenda Item No,:
Finance Department
City Manager
Coyer Memo Final Order re Bid Protest
Commission Meeting Date:
r
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Page 1 of 1
Priscilla Walker
From:
Priscilla Walker
Sent: Thursday, April 17, 2008 12:53 PM
To: Robert Solera; Clayton Parker
Cc: Helena Forbes; Elena Del Campillo; Paola Villa; Jasmine Barnes
Subject: Legislation Approved at March 20, 2008 City Commission Meeting
Attachments: R2008-1236.PDF; 02008-298.PDF; LPA Reso 2008-49.PDF; 02008-299.PDF; LPA Reso 2008-50.PDF;
02008-300.PDF
At its regular meeting of March 20, 2008, the City Commission approved the attached legislation.
Item DescripJiol!
Resolution No. 2008-1236 Approval of Final Order re TRAN Bid Protest
Ordinance No. 2008-298 Water Restrictions
LP A Resolution 2008-49 & V olunteer Program for Extension of
Ordinance 2008-299 Development Approvals
LP A Resolution 2008-50 & Clarification of Expiration of Private TDRs
Ordinance No. 2008-300
Thank you.
rFrisci[fa Wa[~r, CMC, Deputy City Clerk
City of Sunny Isles Beach
18070 Collins Avenue, Sunny Isles Beach, FL 33160
(305) 792-1703 Phone (305) 949-3113 Fax
www.sibfl.net
Please note:
Under Florida law, e-mail addresses are public records. If you do not want your e-mail address
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Instead, contact this office by phone or in writing.
4/1 7/2008