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HomeMy WebLinkAboutReso 2008-1236 I 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 ~ cc: All counsel of record I 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 - 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 released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. 4/1 7/2008