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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 �'4- 417 M, E-4 z E-4 EA 4 CUILOW.pi AND MIN," 111 hr. J'A Slkl—kll, MLAJ�.lj I'L 331,-.e "ITE lCito STAU MTRACTaRS C-RIZI-ICAIE' OF itLolStRATIU. A913 ii VC CERIIFY TkAi Z 9 UNSYRUCTIC1, GT SOUTI, fL C&C-ft EGC013135 TRAD, WILUINv '%VING KE7 TM:. RL41SIRAMN RLMR.-o.;-r-NT.% ti f. #V-flk:iFXlUN As A LC;;TIAC7 r R *1;.., 1; 4 .1 L Lr S%;Ulki fi- VALJU 14:- 4, t:r. i,J- TrJ:, CLkilliCAli- It iLAI. ATTACHMENT 6 _ .._. y + FIRST cuss U.L. MRAQE owo UAW R. PERMIT NO, 131 2746L!)-4 RENEWAL , aUSM UAMC' 90AT101� UCENSE HQ 2dT S�5—L �Ng4pSN AYCL INC ZE7E 31 43 SUU TH NIAMI uwlvt;R uM 2.31*45T OF S FL INC c. yp_s of si ess c�.''L' Lta Yk� S ,~il�iP Hr RENTAvSZWREPAIR x �•n�yy�� yt w•��r, n +, •F,'E •tqE � Mt�Tf aarY • �KRpy�•�rtagu,�. m►3= CpyN j.- a 11O NQ7 FO�yy RD uiiS �� 41. 1 ,'I L .s. )GRThY MJUDY 7.300 ' '7 A&) ,.0 l E MIAMI FL :33143 ArM[M �EPrrrEP • f4� +iOf1NrY 'M Y • /bLICCIOiI• 21t10tia03 ) 0000.37.9 it,II+I:II111,!!tlttlt.listlli,1i:!►I,IIt+IlltlltllllitItI it It SEE 011-mR SIDE 4- 417 TQTPL P.Q3 i=+�`.-�-• ram,,,. ' ' 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 i