HomeMy WebLinkAboutR-94-0417J-94-312
4/27/94
RESOLUTION NO. 9 4- 417
A RESOLUTION APPROVING THE CHIEF PROCUREMENT
OFFICER'S DECISION TO REJECT THE PROTEST OF
D.M. CONSTRUCTION OF SOUTH FLORIDA, INC. IN
CONNECTION WITH BID NO. 93-94-080, LOCAL
DRAINAGE PROJECT E-70, AS IT HAS BEEN
DETERMINED TO BE WITHOUT MERIT.
WHEREAS, on February 23, 1994, the City of Miami advertised
invitations for bids for Local Drainage Project E-70,
Bid No. 93-94-080; and
WHEREAS, on March 15, 1994, two (2) bidders, including D.M.
Construction of South Florida, Inc., (D.M. Construction),
submitted responses; and
WHEREAS, on March 18, 1994, D.M. Construction, the apparent
low bidder, protested the City's determination that the firm
failed to meet the proper license requirement to perform the work
of said project; and
WHEREAS, the Chief Procurement Officer, pursuant to
Section 18-56.1 of the Code of the City of Miami, Florida, as
amended, in her role as arbiter, investigated the matter and
determined that D.M. Construction's protest was without merit and
has rejected the protest; and
WHEREAS, the City Manager and the City Attorney concur with
and approve the finding of the Chief Procurement Officer and
recommend rejection of the protest filed by D.M. Construction;
Crry COMNfI'SSION
MEETING OF
JUN 0 9 1994
Reeolution No.
94-- 4L7 ,
"'�NI
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The Chief Procurement Officer's decision to
reject the protest of D.M. Construction of South Florida, Inc.,
in connection with Bid No. 93-94-080, Local Drainage
Project E-70, is hereby approved, as it has been determined to be
without merit.
Section 3. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 9th day of June 1994.
STE HEN P. -CLARk, MAYOR
ATTES
L,
MATT HIRAI
CITY CLERK
PREPARED AND APPROVED BY:
OLG#j RAMIREZ-SE AS
ASS STANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
y
A. QUtkN S, II
CITY ATT Y
ORS/amr/bss/M4313
-2-
94- 417
CITY OF MIAMI, FLORIDA
4.
INTER -OFFICE MEMORANDUM 45
TO Honorable Mayor and Members DATL APR 2 6 1994 FILE
of the City Commission
Resolution of Protest
SUBJECT : on Local Drainage
Project E-70
FROM : REFERENCES:
Ces io
Cit alter ENCLOSURES:
It is respectfully recommended that the City Commission adopt the
attached resolution approving the Chief Procurement Officer's
decision to reject the protest of D. M. Construction of South
Florida, Inc., (D. M. Construction), in connection with Local
Drainage Project E-70, Bid No. 93-94-08.0.
On February 23, 1994, bids were solicited by the Public Works
Department for the above noted project and two (2) firms
submitted responses. By letter received on March 18, 1994, D. M.
Construction, the apparent low bidder, protested the City's
determination that the firm failed to meet the proper license
requirement to perform the work of this project.
Pursuant to Section 18-56.1 of the City Code, the Chief
Procurement Officer duly investigated the matter and determined
that the protest lacked merit.
Attachments:
Proposed Resolution
Copy of Protest Letter
94- 417
I
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO: Cesar H. Odio, City Manager April 14, 1994
A. Quinn Jones III, City Attorney DATE : FILE
Protest on Bid 93-94-080,
suaiECT : Local Drainage Project E-70
FROM Judy S . Ca r, ASsiStari " lrector�lREFERENCES
& Chief Procu t 0 ice
Department of Genera ry S ENCLOSURES:
and Solid Waste
I hereby request your approval of my rejection of the protest by
D. M. Construction of South Florida, Inc., in connection with the
above noted project.
The basis for my decision, as set forth in the attached letter, is
the fact D. M. Construction's protest has no merit.
APPROVED:
Cesar H. Odio, City Manager
APPROVED:
!� 10-11
A. Q4Kfi J es II , City Attorney
94-- 417
BY REGULAR & CERTIFIED MV,;
Mr. Ronald R. Gilbert
Ronald R. Gilbert, P.A.
1 Datran Center, #410
9100 S. Dadeland Boulevard
Miami, FL 33156
Dear Mr. Gilbert:
Re: Protest from D. M. Construction of South Florida, Inc.,
concerning Bid No. 93-94-080, Local Drainage Project E-70
As Chief Procurement Officer of the City of Miami, I received the
protest letter on behalf of D. M. Construction of South Florida,
Inc., (D. M. Construction), talked with employees (State, County and
City), reviewed pertinent documents and researched the issues,
pursuant to my duties under Section 18-56.1, City of Miami Code as
amended by Ordinance No. 11072, Resolution of Protest Solicitations
&nd Awards. (See Attachment 1)
The project's scope of work, as described in the bid's
Specifications and Contracts Documents, Division 2, section 2.02,
consists of the construction of french drains, catch basins, cross
drains, wells, pollution retardant basins and manholes, and roadway
construction. In addition, as listed in bid items in the bid
proposal, pages 2c and 2d, reference is made to work to be done such
as removing pavement, replacing concrete and asphaltic concrete
pavement and surveying work.
The City's Public Works Department made a determination that
although D. M. Construction submitted the lowest bid, it failed to
meet the proper licensing requirement in the engineering trade field,
to wit: "...the firm did not retain a valid Certificate of
Competency...", in the form of an engineering contractor's license
with the County. (See Attachment 2)
You allege that D. M. Construction met the bid's requirements,
pursuant to Section 10-2.(A), Certificate of competency and license
required, classification and scor.: of work, of the Dade County Code,
which states, "A general contra_ or may do, contract for, and take
out permits for, the work of a g' Feral engineering contractor." You
further contend the Engineering Contractor's License is not required
for-D. M. Construction's submission of the bid.
°% 4- 417
Ronald Gilbert, P.A DRo-,FT
Page 2
April ", 1994
According to the second paragraph, Licenses, of the Instructions
to Bidders in the bid's Specifications:
"As a prerequisite to the submission of a Bid, the
Bidder shall hold a valid Certificate of Competency or
State Contractor's Certificate of Registration, in the
appropriate trade required for the work, issued by the
appropriate agency of Metropolitan Dade County in
accordance with Chapter 10 of the Metropolitan Dade
County Code," and further, "All Bidders shall
investigate the necessity of compliance with the
contracting requirements of Chapter 489, Florida
Statutes and the Florida Construction Industry
Licensing Board, which fixes registration and
certification procedures by the State of Florida."
In the bid's Special Provision entitled Certificate of Competencv,
the City clearly instructs the contractor to verify contracting
compliance with the appropriate local licensing body - Metropolitan
Dade County.
Chapter 10 of the Metropolitan . Dade County Code governs
contractors doing business in Dade County, including its
municipalities. Section 10-1, Definitions, of this chapter defines
the work of 'Building' as:
"...the erection, moving or demolition of structures
used for the support, shelter and enclosure of persons,
animals, chattels or movable properly of any kind, and
related structures and includes the work required to
construct, alter, repair, add to, subtract from,
improve, move or demolish any building or other
structure or part thereof; to excavate in connection
therewith or the incorporation of labor or material
therein. The scope of work of one engaged in the trade
of building shall be limited in the classification of
the various building contractors."
The same section defines 'Engineering' as:
11 .the work of doing, constructing or installing
harbors, docks, bulkheads; retaining and property line
walls, levees, bridges, tunnels, streets roads, curbs
gutters, overpasses, underpasses, Paving sidewalks,
drainage facilities including the collection and
disposal of rainwater through use of pipes, soakage
kits dry wells catch basins and water control
curbs... The scope of work of one engaged in the trade
of engineering construction shall be as limited in the
classification of the various engineering contractors
contained herein."
The scope of work required for this project appears to fall
within the definition of engineering work, as defined in the County
Code, 10-1, which encompasses work on roads, paving sidewalks,
drainage facilities, including use of pipes, dry wells, catch basins
and water control curbs.
94— 417
Ronald Gilbert, P.A.
Page 3
April ,,,_, 1994
D. M. Construction does not possess a license to perform work in
the engineering trade field, as defined above. In other words, D. M.
Construction does not possess an Engineering Contractor's License nor
does the firm possess an occupational license for engineering or for
any other specialty engineering.
In addition, County Code, Section 10-3, Certificate of competency
reguired to do business, which prescribes the license requirements
for contracting work, clearly states that in order to do business in
Dade County, a person, firm or corporation shall have been issued a
valid certificate of competency or eligibility for the type of work
to be done from either the state's Florida Construction Industry
Licensing Board, the state's Electrical Contractors' Industry
Licensing Board, or the county's Construction Trades Qualifying
Board, provided that for those projects, -which among others include,
work on bridges, roads, streets, highways, or railroads, cited in
section 489.103 of the Florida Statutes- a contractor must be county -
certified. (See Attachments 3, 4)
D. M. Construction is not county. certified but is certified by
the state as a general contractor. Furthermore, at the time of bid
opening on March 15, 1994, the firm possessed only a Dade County
Occupational License for equipment rental, service and repair. It
was not until April 5, 1994, that a temporary receipt was issued to
D. M. Construction for a Dade County Occupational License for general
building services. (See Attachments 5, 6, 7)
While you cite section 10-2 of the County Code in support of your
protest, wherein a general contractor 'may' do the work of a general
engineering contractor, the work which is the subject of this project
is not general building construction but general engineering work,
for which an engineering contractor's license is required, as stated
in Waldemar Lee's letter to Ms. Moody, dated March 16, 1994.
Based upon the foregoing, I am rejecting your protest. The City
Manager and City Attorney have approved my decision.
The matter will be scheduled on the City Commission agenda for
Thursday, 1994, beginning at 9:00 a.m. The meeting will
be in the City Commission Chambers, City Hall, 3500 Pan American
Drive, Miami, Florida.
Sincerely,
Judy S. Carter
Chief Procurement Officer Assistant Director
�S
cc: Ron E. Williams, Assistant City Manager
Linda K. Kearson, Assistant City Attorney
Waldemar Lee, Assistant City Manager, Public Works
Enclosures 7 3$_ 417
Attarmq at Emu
RONALD B. GILIBER
Or COUNSEL
KATHE KOZLOWSKI
March 18, 1994
Chief of Procurement Officer
Judy Carter
City of Miami - Public Works Dept.
1390 N.W. 20th St.
Miami, FL 33142
ATTACHME14T "T"''- = •
ONE DATRAN CENTER, SUITE 410
9100 SOUTH DADELAND BOULEVARD
Miami, Alariba 33156
TELEPHONE(305) 670.9510
rAx (305) 670.5020
Re: Formal Written Protest by D.M. Construction
of South Florida, Inc. concerning failure to
award contract to D.M. Construction as lowest
bidder on local drainage project E-70
job no. B-5609 bid no. 93-94-080
Dear Ms. Carter:
Please be advised this office has been retained to file a
written protest for D.M. Construction regarding the March 16, 1994
decision by Waldemar E. Lee as Director rejecting their lowest bid
on the basis that D.M. Construction did not have a valid
Certificate of Competency or State Contractor's Certificate of
Registration in the appropriate trade required for the work in this
case i.e.- Engineering Contractor's license as required by the
bid.
It is the Bidder's position that D.M. Construction is not
required to have a Certificate of Competency in that area. The
Instructions to Bidder's paragraph 2 Licenses refers to requirement
to hold a valid Certificate of Competency or State Contractor's
Certificate of Registration. Copy is attached. The Bidders are
General Contractors who under Chapter 10, which is referred to also
in paragraph two, section 10-2 (a), last paragraph "A general
contractor, may do, contract for, and take out permits for, the
work of a general engineering contractor, ..."
Therefore their submission of the bid did not require them to
hold an Engineering Contractor License.
Additionally, it is the Contractor's position that in
Instructions to Bidders, paragraph 2 does not specify that an
94— 417
Engineering Contractor as defined in paragraph 10-2 (a) are the only
ones who can submit a bid and using the specific language of the
Instructions to Bidders their possession of a General Contractor's
License should qualify them to make a bid.
Wherefore, D.M. Construction of South Florida pursuant to
paragraph 14 of the instruction and ordinance no. 11072 of the City
of Miami requests the Procurement Officer to resolve the protest in
its favor and allow them to proceed by the City accepting their bid
j under the provisions of said Ordinance and Instructions to Bidders.
It is also the position of D.M. Construction that if this
matter is not resolved the Bidder has instructed me to proceed to
take appropriate legal action to protect their interest.
PLEASE GOVERN YOURSELVES ACCORDINGLY.
RBG/ rp
Very trul rs,
RO B. GILBERT
torney for
I;Ula.72J.lal`rrJf�J'�' a:�I.��"1Sla:�
{ �A130 ll
94- 417
Y
ATTACHMENT .2
Cifij Of t U(i
NSO OF
WALDEMAR E. LEE
Director
March 16, 1994
Ms. Dorothy Moody, President
D.M. Construction of South Florida, Inc.
7800 Red Road, #207E
Miami, FL 33143
Dear Ms. Moody:
LOCAL DRAINAGE PROJECT E-70 (BID NO. 93-94-080)
CESAR K 0D7J
City \tanyeer
On March 15, 1994 at 11 :00 a.m. the Cl erk of the Ci ty of Mi ami
received and publicly opened and read sealed bids for "Local
Drainage Project E - 7 0 , B-5609". D.M. Construction of South
Florida, Inc., submitted the lowest bid, however, it was
determined that your firm did not retain a valid Certificate of
Competency or State Contractor's Certificate of Registration, in
the appropriate trade required for the work (in this case an
Engineering Contractors license) issued by the appropriate agency
of Metropolitan Dade County as a prerequisite to the submission
of your bid as required by the Instructions to Bidders.
Due to this failure to meet the proper license requirement, the
bid submitted by D.M. Construction of South Florida, Inc, cannot
be considered for contract for the "Local Drainage Project E-70".
Sincerely,
4r��,l demar E. L e
"" Di rector
LJH :mw
cc: Ms. Judy S. Carter, Chief Procurement Officers,—
:
ATTACHMENT 3
§ 10.3 DADE COUNTY CODE § 10-3
4 104 CONTRACTORS 1 10.4
Sec. 10-3. Certificate of competency required to do business.
Ord. No. 67-82, § 1, 10-17-67; Ord. No. 78-91, § 1, 12-12-78; Ord.
No. 87-71, § 1, 10-20-87)
(a) It shall be unlawful for any person; firm or corporation
to engage in the business or act in the capacity of a contractor
Sec. 104. Persons without certificates representing selves
or subcontractor, or for any person to act in the capacity of
as contractors; identification of vehicles.
master, qualifying agent, journeyman, maintenance personnel,
installer or any other similar tradesmen defined and set forth
(a) Any person, firm or corporation not possessing a current
herein, within the incorporated or unincorporated areas of the
certificate of competency and advertising in any newspaper, air -
county without having made application for and there having
wave transmission, phone directory or other advertising media or
been
been issued a current valid certificate of competency or eiigi-
who'issues any card, advertising or device indicating to the pub -
for the type of work done by said person, firm or cor-
tic that he is a contractor, or is qualified to engage in the busi-
poration from either:
ness as a contractor, or who holds himself out as a contrar as
plaintiff or defendant in any court of this state, is in violat.-a of,
(1) The state's Florida Construction Industry Licensing
and shall be subject to the provisions and penalties of, this chap -
Board;
ter; and a certified copy of such court record or a copy of such
newspaper,
newspaper, telephone directory, or other advertising making such
(2) The slate's Florida Electrical Contractors' Licensing
shall be prima facie evidence in court, or in any other
Board; or
proceeding authorized by this chapter, that the person is pur-
(3) The count 's Construction Trades
y Qualifying Board. Hold-
ported to have the capacity to act as a contractor.
ers of county certificates must also be registered with the
(b) Contractors conducting their contracting business within
state in accordance with section 489.115 or section 489.513
Dade County shall identify all trucks used in the furtherance of
Florida Statutes.
their business by use in the transporting of materials, equipment
Provided, however, that for those projects specified in section
or employees to a job site, excepting a truck owned by an em-
489.103, Florida Statutes, a contractor must be county -certified
ployee which truck is only used for private transportation or in
unless exempted by chapter 10 of this Code. Nothing herein shall
carrying employees' personal tools and personal equipment nec-
1,r- construed to mean that there cannot be workers in a trade who
essary to fulfill their job tasks, by placing on the sides thereof, in
C not qualified or certified within the definitions herein set
a permanent manner, identification of contractor, by n—ne or
forth if such workers are employed by and tinder the supervision
symbol, and their certificate number, in a size which i isily
of a contractor qualified in the trade concerned and working with
readable, excepting those trucks rented or leased by a contractor
a master or journeyman on the job site, if the trade concerned
from a commercial vehicle rental agency for a period of less than
requires masters and journeymen. Workers not qualified and
one (1) month and such trucks are plainly marked with the name
certified within the definitions herein cet forth can work as day
of the lessor in a size which is easily readable.
1
laborer for an owner -builder in any trade not requiring masters,
(c) Anyone who advertises in any r •.•.spaper, airwave trans•
journeymen or installers.
mission, telephone directory, handbill, or other advertising me
p"
') No person or entity shall submit a bid, nor shall any con-
dium for contracting to do any work covered by the provisions of
--J
tract be awarded, on any county or municipal public works project
this chapter shall include in all such advertising the permanent
in Dade County unless such person or firm has complied with
certificate of competency number from the certificate of compe
subsectc.. .,.! of section "° -A-ve. Any bid not in compliance
tency required as a prerequisite under the provisions of this
with this (Ord. No. 59-41, 11-3-59;
chapter. Failure to include this permanent certificate of compe
`
G.
0
Supp. No. 173 270.7
snnn No. 173 270.6
of revenues; budget. --All Mon
pplicalion for, or from the issU
:ef' "'-aces under this chapter
1( feral Revenue Fund. The
)afety and Motor Vehicles shall
?glslative budget request suit,.
1nlslration of the provisions of
1 ch 91-429
J I/
ATTACHMENT 4
CO
CHAPTER 489
CONTRACTING
PART I CONSTRUCTION CONTRACTING (ss. 489.101-489.144)
PART II ELECTRICAL AND ALARM SYSTEM CONTRACTING (ss. 489.501-489.539)
PART III SEPTIC TANK CONTRACTING (ss. 489.551-489.558)
PART I it is necessary in the interest of the public health, safe[
and welfare to regulate the construction industry.
CONSTRUCTION CONTRACTING < ase� z9 s 1• », ch 79-200. ss 2.3. ch.81-318. ss 1.20. 21, Ch 88-156
489.101
Purpose.
489.103
Exemptions.
489.105
Definitions.
489.107
Construction Industry Licensing Board.
489.108
Rulemaking authority of the board.
489.109
Fees.
489.111
Examinations.
489.113
Qualifications for practice; restrictions.
489.1135
Underground utility and excavation contrac-
tors; designation; certificate.
489,114
Evidence of workers' compensation cover-
age.
489 115
Certification and registration; endorsement;
renewals; continuing education.
489.116
Inactive and delinquent status; renewal and
cancellation notices.
489.117
Registration; specialty contractors.
489.119
Business organizations; qualifying agents.
489.1195
Responsibilities.
489.120
Automated information system.
489.121
Emergency registration upon death of con-
tractor.
489.124
Business records requirements; address of
record; service.
489.125
Certificateholders eligible to participate in
projects under s. 235.31.
489.127
Prohibitions; penalties.
489.128
Contracts performed by unlicensed contrac-
tors unenforceable.
489.129
Disciplinary proceedings.
489.131
Applicability.
489.132
Prohibited acts by unlicensed principals;
investigation; hearing; penalties.
489.133
Pollutant storage systems specialty contrac-
tors; definitions; certification; restrictions.
489.134
Authority of licensed job scope.
489.140
Construction Industries Recovery Fund.
489.141
Conditions for recovery; eligibility.
489.142
Board powers upon notification of com-
mencement of action.
489.143
Payment from the fund.
489.144
Investment of the fund.
489.101
Purpose. —The Legislature recognizes that
the construction and home improvement industries may
Pose a danger
of significant harm to the public when
incompetent
or dishonest contractors provide unsafe,
unstable, or short-lived products or services Therefore,
489.103 Exemptions. —This part does not apply t
(1) Contractors in work on bridges, roads, street
highways, or railroads, and services incidental theret
The board, in agreement with the Department of Tran
portation, shall, by rule, define "services incidental they
to" for the purposes of this subsection only.
(2) Any employee of a certificateholder or regestra
who is acting within the scope of the license held by th
certificateholder or registrant and with the knowledc
and permission of the licenseholder. However:
(a) If the employer is not a certificateholder or regi
trant in that type of contracting, and the employee pt
forms any of the following, the employee is not exeml
1. Holds himself or his employer out to be license
or qualified by a licensee;
2. Leads the consumer to believe that It
employee has an ownership or management interest
the company; or
3. Performs any of the acts which constitute cc
tracting.
(b) The legislative intent of this subsection is
place equal responsibility on the unlicensed busine
and its employees for the protection of the consume
in contracting transactions.
For the purpose of this part, "employee" is defined w
person who receives compensation from and is unc
the supervision and control of an employer who regula
deducts the F.I.C.A. and withholding tax and provid
workers' compensation, all as prescribed by law.
(3) An authorized employee of the United State
this state, or any municipality, county, irrigation distri
reclamation district, or any other municipal or politil
subdivision, except school boards, the Board
Regents, and community colleges, unless for the p
pose of performing routine maintenance or repair or a
struction not exceeding $200,000 to existing insta
tions, if the employee does not hold himself out for I-
or otherwise engage in contracting except in acco
ance with his employment. If the construction, remoc
ing, or improvement exceeds $200,000, school boar
the Board of Regents, and community colleges, shall 1
divide the project into separate components for the F
pose of evading this section.
(4) An officer appointed by a court when he is act
within the scope of his office as defined by law or cc
order. When construction projects which were 1
underway at the time of appointment of the officer
1035
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ATTACHMENT 7 1
DADE COUNTY TAX COLLECTOR --- OCCUPATIONAL LICENSI%SECTION
140 W. A AGLCA 3T, — 14th FLOOR
MIAMI. FLORIDA 33130
ion OFFICIAL TEMPORARY RECEIPT
1993 - 1994
(� � 1 •�'(`�<.' • �Crl�L l.•\�,
ISSUED TO: D t � Q CASH
TYPE CIF BUS: I G t,_ (: t , ► • I�jk ai&ECK
THIS RECEIPT IS ISSUED AS EVIDENCE OF PAYMENT FOR YOUR OCCUPATIONAL LICENG1"
OR PERMIT.
YOUR LICENSFJPERMIT WILL eE .MAILED TO YOU WITHIN 10 DAYS FROM THE DATE VAUDATEU
BFLOW.
05 83Y7 091 040SM 000094590
W1 P041-W 3 PA fut iT otccwpv AS CEA' mco MOVE - aim CQUNTY TAX OOLLGCIOR osvlw 0m afty"d her
94-- 417
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