HomeMy WebLinkAboutR-93-0249i
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J-9a-2e9
4/B/93
RESOLUTION NO. 9 3- 249
A ABSOLUTION APPROVING THE CHIEF PROCUREMENT
OFFICER'S DECISION TO REaECT THE PROTEST OF
ECOLOGY CONCEPTS, INC., (ECOLOGY) IN
CONNECTION WITH REQUEST FOR PROPOSALS (RFP)
91-92-102, WHICH SOLICITED FOR A FIRM TO
DESIGN, CONSTRUCT, ACCEPTANCE TEST, FINANCE,
OWN/OPERATE A SOLID WASTE PROCESSING
FACILITY, AS IT HAS BEEN DETERMINED TO BE
WITHOUT MERIT.
WHEREAS, on August 11, 1992, the City of Miami solicited
proposals through Request for Proposals (RFP) 91-92-102, to
select a firm with the capabilities to design, construct,
acceptance test, finanoe, own/operate a solid waste processing
facility; and
WHEREAS, on March 12, 1993, an Evaluation Committee
evaluated the proposals received, heard oral presentations and
selected in rank order, the five (5) firms most qualified to
provide the required services for said facility; and
WHEREAS, by letter received March 15, 1993, Ecology
Concepts, Inc. demonstrated that they had learned of the results
and ratings from the Evaluation Committee meeting of March 12,
1993; and
my common
MBETING OF
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WHEREAS, by letter reoeived on April 5, 1998, E0010gy filed
a protest with the City in oonneotion with said projeot; and
WHEREAS Eoology Conoepts' protest does not oomply with the
fourteen (14) day time requirement stipulated in
Seotion 18-88.1(a) of the City Code, Resolution of Protested
80110+tations and Awards, beoauee the formal protest was reoeived
twenty-two (22) days after the firm knew of the faots giving rise
to he aotion oomplained of; and
WHEREAS, the Chief Proourement Offioer, pursuant to
Seotion 18-86.1 of the City Code, in her role as arbiter,
investigated the matter and determined that Eoology Conoepts'
protest was untimely and has rejeoted the protest; and
WHEREAS, the City Manager and the City Attorney oonour with
and approve the finding of the Chief Proourement Offioer and
reoommend rejeotion of the protest filed by 800logy Conoepts;
NOW, THEREFORE, BE IT RESOLVED By THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Seotion 1. The reoitals and findings oontained in the
Preamble to this Resolution are hereby adopted by referenoe
thereto and inoorporated herein as if fully set forth in this
Seotion.
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Ak Aft
Seotion 2. �-
The Chief Proourement Offioer's deoision to
re3eot the protest of Etiology Conoepts, in oonneotion with
RFP 91-99-102, whioh solioited for a firm to design, oonstruot,
aooeptanoe test, finanoe, own/operate a solid waste prooessing
faoility, is hereby approved.
Seotion 3. This Resolution shall beoome effeotive
immediately upon its adoption.
PASSED AND ADOPTED this LUL day of _ April
1993. —
CITY CLERK
PREPARED AND APPROVED BY:
CARMEN L. LEON
ASSISTANT CITY ATTO By
APPROVED AS To FORM AND CORRECTNESS:
Ah TCITY ATTO� I I
M3563:BSS
V R L UAREZ, YOR
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CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
TO: Honorable Mayor and Members
of the City Commission
FROM : Ceiba • Odio
City Manager
DATE e :,1 FILE
SUBJECT : Resolution of protest
in Connection with APP
91-92-102 for a Solid
Waste Processing Facility
REFERENCES
ENCLOSURES:
It is respectfully recommended that the City Commission adopt the
attached resolution approving the Chief Procurement Officer's
decision to reject Ecology Concepts' protest, in connection with
RFP 91-92-102, which solicited for a firm to design, construct,
acceptance test, finance, own/operate a solid waste processing
facility.
On August 11, 1992, the City's General Services/Solid Waste
Department solicited proposals for the above noted project. On
February 3, 1993, seven (7) proposals were received, five of
which were certified for participating in the evaluation process.
On March 12, 1993F the Evaluation Committee reviewed the
proposals, heard oral presentations from the five (5) firms and
selected them in rank order. On March 15, 1993, Ecology Concepts
notified the City that they had learned of the results and
ratings from the Evaluation Committee meeting of March 12.
By letter received on April 5, 1993, Ecology Concepts filed a
protest in connection with this RFP. Section 18-56.1(a) of the
City Code, Resolution of Protested Solicitations and Awards,
requires that protests be filed within fourteen (14) days after
an aggrieved party knows or should have known of the facts giving
rise to the action complained of. The firm's protest does not
comply with the above time frame established by the Code.
Pursuant to Section 18-56.1 of the City Code, the Chief
Procurement Officer investigated the matter and determined that
the protest was submitted untimely, as detailed in the attached
letter. a
Attachmente:
Proposed Resolution
Copy of Protest Letter
93- 249
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CITY OF MIAMI, FIOnIDA
INTER -OFFICE MEMORANDUM
in Cesar H. Odio, City Manager onY� April 7, 1993 iiLe
A. Quinn .zones III, City Attorney
sua,ecl Protest on REP 91-92-102
for a Solid 'Haste facility _-
11101A Judy S . Carj"Cia
A sistant Director SErrm imrc;
Chief Procut fficer
t
Departmentn al Services MCLOsunrsand Solide {
I hereby request your approval of my rejection of the protest by
Ecology Concepts, Inc., in connection with the above referenced
project for a solid waste processing facility.
The basis for my decision, as set forth in the attached letter, is
the fact that Ecology Concepts' protest has no merit.
APPROVEDs --
Cesar H. Odio, City Manager _
APPROVEDs
At Quifin o s 111, City Attorney r✓ LL
93-
40ti L Y,ILLIAMS
1
DRAFT
Mr. Perry Sennr President
Ecology Concepts, Inc.
6040 Camp Bowie, Suite 1
Ft. Worth, TX 76116
Dear Mr. Sennt
ter:
VCESAR H. �u.•r tue. City Manager
BY FAX, REGULAR a CERTMED MAIL
Re: Protest concerning RFP 91-92-102 for a Solid Waste
Processing Facility
I, as Chief Procurement Officer of the City of Miami, have read
your formal protest dated April 5, 1993, in connection with the
above noted project. Pursuant to my duties under Sec. 18-56.1,
City of Miami Code, gesolution of Protgated_Solicitations and
Awards., I have reviewed pertinent documents, talked with
employees and determined that your protest is without merit
because the protest was not received on a timely basis. (Please
see enclosed copy of the City Code which was a part of the
proposal document.)
Section 18-56.1.(a) of the City Code specifically requires that
"Any actual or prospective contractual party who feels aggrieved
in connection with the solicitation or award of a contract may
protest to the chief procurement officer. The protest shall be
submitted in writing within fourteen (14) days after such
aggrieved party knows or should have known of the facts giving
rise to the action complained of."
On March 15, 1993 you faxed to Ms. Anne Whittaker, Procurement
Contracts Officer, a letter indicating that you had learned' the
results and ratings of the Evaluation Committee meeting held on
March 12, 1993. This letter clearly demonstrates that on or
before March- 15, you were aware of the ' facts giving rise to °the
action complained of'. (See Exhibit 1 attached and made a part
hereto). Your protest letter was faxed to me on April 5, 19931
twenty-two (22) days later.
Based upon the foregoing, I am rejecting your protest. The city'
Manager and City Attorney have approved my decision.
93- 249
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DEPARTMENT OF GENERAL SERVICES ADMINISTRATION AND SOLID WASTE/Procurement Management Division
1390 N.W. 20th Street/Miami, Florida 33142/130S1 S75-S174/FAX: 0N) WS-S190
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Mr. Perry Senn Page 2
Ecology Concepts, Inc.
The matter has been scheduled on the City Commission agenda for
Thursday, April 15, 1993# beginning at 900 a.m. The meeting
will be in the City Commission Chambers, City Halls, 3500 Pan
Americam Driver Miami, Florida.
Sincerely,
Judy S. Carter
Chief Procurement Officer/
Assistant Director
cct Ron E. Williams, Assistant City Manager
Carmen L. Leon, Assistant City Attorney
Humberto Hernandez, Assistant City Attorney
Enc.
93- 249
C'TTY OF MV44t COM P.
FINANCE:
,1is ittdit may be requi;ed v%-hen, in re.,;Ivect to
an actual or prospective emilraactuvel party,
there, is:
d) A question as to the adcgiwey of acc•aunt•
ing policies or cost yntenis;
ciii r A substantial change in the 1nt-thods or
levels of operaatinns;
+iiii Previous unfavorable experience indicating;
dnubtful reliability of estimating, account-
ing or purchasing methods;
t ivi A lack of cost experience due to the pro-
curement of a new supply or service; or
(v Other evidence that an audit is ih the
city's best interests as determined by the
chief procurement office:, the cite man-
ager or the city commission.
tc) f nndurt o; audits. Whenever possihle, au.
,I•.- shall be pvrfnrme,i r.o a-,n;at unduly to delay
::nc,.)nvtnien%.e the contractual party. Contrac.
UU'. fatties shall m. ke avat*!P .lc of no charge to the
C: ay ai reasonable facilitie-d and for
the com•tnience of the city rtpresentativi—, per-
f►firming the audit. (Ord. No. 9572, § 1, 2-10 831
f+ec. 18-36. Disputes and legal remedies.
The following procedure shall he used for arriv-
;ng at early settlement of grievances by inter.
_.ted parties who have: participated in t.iae cit.y's
pr►,turement process. (Ord. No. 9572, k 1, 2•10-83)
Sec. 1866.1. Resolution of protested solicita-
tions and awards.
!al Right to pretest. Any actual or prospective
contractual party who feels aggrieved in connec-
tion with the solicitation or award of a contract
n:ay protest to the chief procurement officer. The
protest shall be submitted in writing within four-
teen (141 days alter such aggrieved party knows
or should have known of the facts giving; rice to
the action complained of.
!b! Authority to resolve protests. The chief pro-
curement officer shall have the authority, subject
to the approval of the city manager and they city
attorney, to settle and resolve a protest of an
aggrieved actual or prospective contruetun) party
concerning the solicitation or award of the con.
►roe, in question. Provided that hi cases involv-
ing more Char, four thotsand live hundred
g►p. Mt). 10
E 18rof2
($4,500.001. the decisions of the chief procurc.mc•nt
officer must be approved by the city contmissivn
after a recommendation by the city attorney and
city manager. The chief procurement officer sh:sli
obtain the requisite approvals and communicate
to the protesting contractual party; or alto r
natively if the amount involved is greater than
four thousand five hundred dollars ($4,500PW.
submit decision to the city commission within
thirty (:30) days after he receives the protest.
(c) Compliances evith time requirements. hailure
of an aggrieved party to submit a protest within
the time provided in subsection (a), above, shal►
constitute a forfeiture of such party's right Io
complain and shall bar any legal action therefor
by such party. Failure by the city officials to com-
ply with the time requirements provided in sul+
sections (b) shall entitle the aggrieved part%, at
its option, to bypnt;s the provisions of this .--oct i-m
and institute iegra) action immediately. (Or:(. Nn.
9572, § 1, 2-10.83)
Sec. 18.56.2. Resolution of contract disputes.
(a) Authority to resolve contract disputes. 'fh(
city manager, after obtaining the approval cif t he
city attorney, shall have the authority to rese►lve
controversies between the contractual party and
the city which arise under, or by virtue of. n
contract be:tyveen them; provided that, in cases
involving; an' amount greater than four thousand
five hundred dollars 44,5()0.00), the city commis.
lion must approve the city manager's decision.
Such authority extends, without limitation. to cor,-
troversies based upon breach of contract, mi-take,
misrepresentation or lack of complete performanrc,
and shall be invoked by a contractual party by
submission of a protest to the city manager.
(b) Contract dispute decisions. If a disputes is
not resolved by mutual consent, the city manager
shall promptly render a written report stating;
the reasons fur the action taken by the con:anis-
lion or the city manager which shall be Mud and
conclusive. A copy of the decision shall be inam-o-
diately provided to the protesting party, along
with a notice of such party's right to seek Judicial
relief, provided that the protesting; party shall
not be entided to such judicial relief without first
having, followed the procedure set forth in this
auction. (Ord. No. 9-572, A 1, 2-10.33)
1215
93- 249
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fivECQ�QGY CONCEPTP� INC*
mmo camp Soww I State 1 1 Fort Worth, Texas 70116
(817) W410$ WM 604-8390 Fact (917) " 3M?2
April 9, 1993
Me, Judy a. Carter
Assistant Director
2f Procurement officer
rtnent or Gonerai services Administration
1300 N.Wo 20th "Street
Miami, Florida 33142
Transmittal via racalmile: (305) 573-3180
RE: Selection/Review Committee Analysis and Rating of Rrp
No, 91-92-102 to Design, Construct, Finances, and Own
and operate a Solid waste Processing facility
Dear he. Carter:
After our recent review and analysis of the Selection/Review
Committee ratings of the proposals in response to RrP no.
91-92-102, we are hereby putting the city or Miami
Administration on Formal Notice of our pretest and objection
to the Selection Committee analysis, review process,
selection and ratings outlined in your letter dated March
17, 1993.
We furthermore protest: (1) the appointment process,
procedure and ultimate member selection and composition of
the Selection/Review Committees, (2) the arbitrary and
capricious grading and analysis process at our formal
response - and presentation, and (3) the manner .in which, our
designated appointees, joint venture partners and their
respective representatives have be treated by the City
Administration and staff during the entire solaction/review
process
Further, we fully believe in our position and intend, to
exhaust all legal remedies, to resolve, that the findings,
reports, , evaluations and final ratings of the
selection,/Review Committee were biased, one-sided and not In
keepin�gg with the rating and evaluation structure outlined in
the original�RFP documents.
We believe that several aembers of the cOMIttee
intentionally rated our company lower to allow. several .of
the other companies to appear as though their p'roposa►ls
would better serve the City of Miami, anthat the respected
companios were store qualifiod, both technically and
line tally. This obvious injustitication M111._not go
unnoticed and or unattended.
Recychq Americas W=te -
93— 249 �::
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solcom.ltr
April 5, 1902
These arbitrary ratings allowed the two most expensive
vendors to receive the highest ratings in terms of points.
If one of these vendors is chosen, the city of Miami will be
spending millions of dollars per year over and above what
they'should be paying. This payment will no doubtedly come
from the state of Florida and the Miami Taxpayer. As a
matter of record, we believe that several of the responding(
vendors, including the top rated firm, were non -responsive
in the submittal of their proposal, relative to the disposal
of residuals, and should have been legally disqualified from
the selection/review process. This issue was outlined
specifically in the RFP and directed each vendor to include
all cost associated with residual disposal, including
transportation and disposal fees, in the proposed price.
The elimination of these specific cost allowed the vendors
to present an artificially lower cost which resulted in an
unfair analysis and review of the Financial consideration
portion of the bid, and furthermore resulted in a
disproportioned allocation of evaluation points.
As lowest vendor at $58.50 per ton, with a guaranteed
revenue sharing plan to the City of Miami, Zoology Concepts,
Inc. should have received the highest evaluation points
available, yet several committee members failed to issue the
respective rating. Instead, these same committee members
gave the highest priced vendors, with the least guaranteed
revenue participation program, the highest ratings. Why?
in addition, we included in our original proposal documents,
financial statements, documentation, letters, etc. which
represented a combined financial worthiness exceeding $200
Million Dollars. . In addition, we included with the
submittal of our proposal, a bond in the amount of $5
Million Dollars. This bond, as approved by the City of
Miami Board of City Commission on July 16, 1992, was to be a
vital and important component of the proposal, yet we were
the only company that proved our financial credibility and
submitted the bond. Even with these financial assurances,
individual committee members failed and neglected to
adequately rate us according to our financial strengths and
commitments, which once again was an indication of their
bias, discrimination and favoritism.
As if this were not enough, several members on the
committee, during the previous review presentation, voted a
bankrupt company ahead of Ecology concepts, Inc. These
same individuals were once again selected to participate in
this review/selection process.
99- 249
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selcom.ltr
April 5, 1993
Additionally, several members of the committee virtually
failed to recognize any of our solid Waste experienoo and
the technical aspocts of our proposal. In doing so, these
&rime members rated companies with the game technology much
higher. In tact, the reference facility (Sumter County*
Florida) which has boon awarded the highest recycling rate
by the state of Florida, was actually constructedt started
up and tested, and operated by the current owners at Ecology
Concepts, Inc. This facility has been operating for over
five years in Florida, whereas, none of the other vendors
have a facility operating in Florida, nor have they had an
Msw facility operating in the entire United States equalling
that of Ecology Concepts, Inc. Yet these companies ware,
once again rated higher. something is terribly wrongf
i could go on and on, however, these few instances should
provide you with an indication as to our observations
relative to the review process. we do intend to follow up
and pursue an amicable adjustment of the findings.
As I also mentioned above, the City Administration and stuff
has mistreated and once again discriminated against our
appointees, joint venture partners and their respective
representatives. We have made within the last several
weeks, two formal request for information regarding this
review process under the Freedom of Information Act. To
this date the City has refused to respond to our request and
has virtually unrecognized our legal right to public
information. In fact, we were told if we want the
information, we would have to come there and copy it
ourselves, yet on February 19, 1993, similar information was
copied and set to Mr. Mike Freire, by a member of the
Procurement Management Division. We have since been
required to fly from Ft. Worth, Texas to Kiami, to obtain a
portion of the requested information, at an unbelievable
expense and cost which could have been avoided, if the City
Administration And staff would have been cooperative and
respondent to our formal and legal rights.
It is quite apparent, that polities, favoritism and
discrimination have played an overwhelming role in this
selection/review process. This is not new nor is it unique
for the city of Miami. We faithfully and in good intention,
submitted our proposal in a manner which would provide the
City of Miami With a facility which would provide the
services outlined in the RFp. We have done this for the
last three years. Each time, we have been refused fair
justification, proper evaluation and due consideration by
the selection/review committee and administrative staff.
93- 249
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April 5, 1993
No have the qualifications, proven technology, tinanoial
strengths and stability, Coupled with an overwrhelinincoy
visible support of minority participation, not to "6ntion,
the most import aspect and purpose of the bidding process,
the lowest price supported with a $5 Million Dollar bond.
The City of Miami can not and should not allow our bid and
proposal to be rejected and unfairly rated by a biased
selection/review corrmittee. We expect and will solicit an —
amicable resolution. -
'We are totally committed to pursue a fair, legal and
justifiable resolution to our protest and concerns, and
will exhaust all remedies to do no. _
;egrry
ely,
R Senn
cc: Honorable Mayor Xavier L. Suarez
Vice Mayor Dr. Miriam Alonso
Commissioner Miller Dawkins
commissioner Victor Do Yurre
Commissioner J.L. Plummber
Cesar olio, City Manager
Humberto Hernandez, Assistant City Attorney
Ron Williams, Director -_
Jose A. Villalobos,, Attorney
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ECOLOGY CONCEPTS, INC.
WO c.mp 8w*% / $U% 1 I Fort worth, Trxao'f6110
017) M 4193 (800) OU-8370 Fax (817) t32•6012
March ilk. 1993
r
Me. Anne Whitaker
Proovd4ment Management Dlvioi
Department of Solid Waste
City of Miami
1390 N.W. 20th Street
Miemi, Florida 33142
R8: RFP 91-92-102
Dear ale. Whitaker:
h' brand fax trans
�rta� msfia
We have recently learned the resulte and ratings of the
propoeale and presentations submitted to the Selection/Reviere
Cosmittes on the above referenced pro3ect.
once again, we are questioned by these ratings, and results.
We almly cannot >underetand the basis for these reaulte, nor do
we understand the system utilized. It wan quite eppsr0nt that
several members of the committee were biased in their ratings by
allowing a total point rating of 30 and 33, respectively. to
Roology Concepts, Inc.. proposal.
This some enoroouely out of line, considering WN of the
rate ~ based upon price and financial aspeote of the proposal.
Based upon these considerations. Zoology Concepts. Inc. being loco
bidder, would have received a minim s of 30 percentage points
from each member.
This being considered. these same two committee members
failed to give us any credit for our enormous OXVGrieaee, proven
technology and our financial guarantee of presenting
eieultanw wely with our bid. a DS million dollar bond."
These results arm owe again highly biased and one-sided.
In addition, several of the higbest rated companies faill in our
opinion, to meet the conditionb of the RFP. As mentioned in the
Me residual disposal was to be inoluded in the price said, be the
sole responsibility of the proposer. As with several of 'the,
vendors. this is not the case. They specifically state. "it is
the responsibility of the City." This alone will greatly effect
the total disposal coat to the City and remove the mr i altment to
recycle by the vendor and will not guarantee rooycling/diverelon
rate participation,
Rx)diq Americas Waste
93- 2493
March 18, 1093
Ms. Anne Whitaker
Pate Two
Additionally, we question several vendors ability to meet
the standard of Compost quality as it relates to Rule 17-7010
since only (1) referenot facility is actually operatind under
these regulatory guidelines. In addition, none of the other
reference feoilities have been operating more than a year.
In order for us to properly review the selection proceen and
consider their findings, we area hereby requesting the following
itcmo under the Freedom of information Act%
1) A full transcript of all moetings, PresOnUtims, erid
discussions by the Selection Review Committee members.
2) A copy of all notes, hand cute, broahurees and
information provided to the Selection Coaaittee by
vendors.
3) A copy of all motes, questions and answers by vendore
and Selection Committee members.
4) A copy of all tapes made during the presentation and -
review process.
In addition, we would also request a full transcript from
the previously hold selection meetings in response to the first
responses of the proposals during June -July. 1992.
We regret having to put you through the task of gathering
this information, however, we feel this project should nerve the
City of Miami, not burden it with economical and financial
considerations Which will depend on additional assistance and
support from the State of Florida.
There is very little question as to our commitment and
Qualifioatione an they relate to the performance of this project.
We simply feel everyone is not participating on the same play
field.
We appreciate your immediate and timely response to our
request.
Si rely,
e3
Presi t
PR8/c1
co: Jose C. Villaloboo, Attorney
Honorable Mayor Xavier Suars