HomeMy WebLinkAboutR-90-0534<-a
WHEREAS, the MJCA protest included a challenge to several
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aspects of the proposal submitted by Miami Capital Facilities,
Ltd. including the resignation of the Codina Group, the inclusion
of "Assumptions and Clarifications" in the proposal, Arthur
Hill's conflict of interest and the fairness of the evaluation by
the Technical Committee regarding site design and signage
evaluation; and
WHEREAS, the above several aspects of the protest were
investigated and found to be without merit in the judgment of the
Chief Procurement Officer; and
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RESOLUTION NO. 9 0 - 534
A RESOLUTION APPROVING THE CHIEF PROCUREMENT
OFFICER'S DECISION TO PARTIALLY REJECT THE
PROTEST RECEIVED FROM MIAMI JUSTICE CENTER
ASSOCIATION, INC. IN CONNECTION WITH THE
REQUEST FOR PROPOSALS FOR THE DEVELOPMENT OF
THE FEDERAL LAW ENFORCEMENT BUILDING AND HIS
DECISION TO UPHOLD THE PROTEST IN REGARD TO
ITEMS It AND III-D OF SAID PROTEST; FURTHER
APPROVING THE CHIEF PROCUREMENT OFFICER'S
RECOMMENDATION TO DISQUALIFY T3M FROM FURTHER
CONSIDERATION IN THIS PROJECT.
WHEREAS, in connection with the Request For Proposals for
the development of the Federal Law Enforcement Building, a
protest f iled by Miami Justice Center Associat ion, Inc. (MJCA)
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was received by the Chief Procurement Officer in his role as the
arbiter of protests pursuant to Section 15-56.1 of the City Code;
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and
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WHEREAS, MJCA protested in Item II that 3W/Rooney, Joint
Venture, a part of the T3M Team did not have an active license
and therefore is not a qualified joint venture; and
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WHURNAS a for contacting the Plorida department of
Professional Regulation, Division of Regulation, in Tallahassee,
Florida., it was determined that the license of the IAoone
joint -venturei the oeneral Contractor for the TU, Ltdo teaitm# visas
not an, active license and therefore this item of protest Baia
upheld by the Chief procurement Officer; and
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WHEREAS* according to the Department of professional
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Regulation, Joint Venture firms are not permitted to submit a
proposal without an active current license and therefore the`
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Chief Procurement officer has recommended that T3M be
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disqualified from further consideration for this projects and
WHEREAS? MJCA protested in Item III-D that tape recordings
of each team's presentation to the Technical Committee were not
available as agreed; and
WHEREAS, as a matter of fact, the Chief Procurement Officer
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found that the tape recorder malfunctioned and that tapes were
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not made of the proceedings of the presentations and also found
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that City Staff prepared a written summary of the
y p p y presentations;
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and
WHEREAS, due to the absence of tape recordings of the
presentations and because of their non -availability, this item of,'',
protest was upheld by the Chief Procurement Officer; and
notwithstanding the absence of these tape recordings of the
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presentations the Chief Procurement Officer found their absence
had no material effect on the outcome of the evaluation process
and therefore decided that no action was required to be taken as
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a result of their absence; and
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WHEREAS, the Chief Procurement Officer's finding that the
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protest of MJCA, except for Items II and III-D, is without merit
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and' therefore rejected, and that Items iI and III-D are
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meritorious and were therefore upheld, has been approved by the
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City Manager and the City Attorney;
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Rowe TtitRupont EE tT RESOLVED SY THE CONNI #SION 010 "a etTr ,
MIAMto PtOtfbAt r
Section 1. The recitals and findings contained in thec
Preamble to this Resolution are hereby adopted by refOreftCO -
thereto and incorporated herein as if fully set forth in this
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f Section.
Section 2. In connection with the Request for Proposals for
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the development of the Federal Law Enforcement Building, the
Chief Procurement Officer's partial rejection of the protest Y
filed by Miami Justice Center Associates, Inc. and his partial
upholding of Items iI and III-D of said protest are hereby
approved. -
Section 3. The Chief Procurement Officer's recommendation to
disqualify T3M is hereby approved and said development team is
hereby disqualified from further consideration in this project.
Section 4. This Resolution shall become effective
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immediately upon its adoption.
PASSED AND ADOPTED this 12th day Of July 19906
Ail
XAVIER L. SUA 14AYOR
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ATTE,
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MAT HIRAI, CITY CLERK '
APPROVED AS TO FORM AND CORRECTNESS: PREPARED AND APPROVED BY: x
J RG L. F RN NDEZ
.�. LIMA X. EAN
CITY ATTO EY ASSISTANT CITRS ATTORNEY
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CITY OF MIAMI, FLORIDA
INTEROFFICE MEMORANDUM
-o: Honorable Mayor and Members
of the City Commission
'ROM :
Cesar H. Odio
City Manager
DATE :
SUBJECT
REFERENCES:
ENCLOSURES:
3 14LE
Resolution of Protest
of Miami Justice Center
Associates, Inc.
I,t :is. -respectfully recommended that the City Commission., adopt a
resolution, approving the - Chief Procurement Officer's decision;to
reject the protest received for the Request for Proposal' for
development of a Federal Law Enforcement Building, from Miami
Justice, -Center Associates, Inc., except : for item Ii,, regardi..rig
the, validity: -of the joint venture -license of T3M, Ltd., and, item
I1I-D, regarding the non -availability of tapes of the
proceedings.
BACKGROUND s
The Chief Procurement Officer received a protest from Miami
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Justice Center Associates, Inc., in regard to the Federal Law
Enforcement Building project and it was determined by the Chief
Procurement Officer in his role .as the arbiter of bid protests
pursuant to Section 18-56.1 of the City Code, that this protest -
lacks merit except for item II of the p protest by Miami Justice
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'Center Associates,' Inc. , regarding the validity of the Join t4
venture license of T3M, Ltd., and Item III-D, regarding the how -
availability of tapes of the proceeding$:
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After checking with the Florida'.. Department. of Professional
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Regulation, Division of Regulation, in. Tallahassee, Florida,. it
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was .determined that the license of the 3W/Rooney• joint ventur-O'Ca
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part of the T3M, Ltd. team does not hold an active license,
According to t-he Department of Professional Regulation, firms are
not permitted to submit a proposal without an active current
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.license. Therefore, it is recommended that T314 be disqualified
from further consideration for this project.
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Honorable Mayor and Members
of the City Commission Page
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The teams -were told that the presentations of the
Committee's
deliberations would be recorded for later review.
However, the
tape recorder malfunctioned and the tapes were not
made. Staff
Bid prepare a summary of the presentations as, a
part ,of the
minutes of the meeting. Although this protest has•
merit, given
the fact that all presentations were made, and also that the
Committee's:deliberations were recorded, this is not
viewed as an
rro"r' of sdeh '•magnitude as to change the Technical
Committes"s
evaluation.
The. other aspects of the bid that were protested were: the
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eignation of the�Codina Group, the inclusion of "assumptions
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aiid 'clarifications" in the proposal of Miami -Capital
Facili t ie's,
Ltd., Arthur Hill's. conflict of - interest, site
design and
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signage evaluation, and the fairness of the evaluation
by the
Technical committee.
1'he protest regarding these• items were deemed to
be without'
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merit..
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Timw cgc GARCIA-PEDROSA
MIAMI CENTER • °±Sty'.
201 SOUTH BISCAYNE 90UI.EVARO •::(,"
MIAMI. FLORIDA 33131.4336 .`; •.`..:}'
TLLEPMONE
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May 25, 1990
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JIM DISLMRR
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Mr. Ron�•Ewi._Iiams
Chief Procurement Officer
City of �' Kiami General Services 't
., Administration • .: tr��.
1390,N.W 20th Street
Miami, Florida 33142 r
Re: federal LAX- Enfo.� regent Building
Dear %Mr. Williams:
F This law firm represents Miami Justice Center Associates,,
Inc., a Florida corporation ("MJCA"), in connection with the ;r
bidding.. for the awarding of the 'captioned,, gro ject This- le ear..
constitutes :loth' a formal protest and a demand,that.=the.openi.ng.of '
the: bids � < scheduled for_ 900, , a.m., Tuesday, May 25, 19_2'0 x.
defeffaced'pending, the ultimate resolution of the matter$ araieed 4
this° :protest.
Copies of this protest are being hand delivered, simultaneously,
to the City•Attornsy and to -the City Manager, and the undersigned-.!
,
ha♦s�yr�"pested. an. emergency meeting with, the- -City, Otto ey =: this y R
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procedural and �aubstan " z
This— protest docusiento both pr x l a ant
irregularities 'in the proposals submitted by 'Mi.a �aplt�l
Facil`i.tite, Ltd. %("RCY") and by TAM, U4-i, (*TW )
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the. irregulairitiesr :are admittedlytechnical in, -mature '3 (al th0n+ h _
hunet oUss •legally fatal to that applicable proposers j , a number",
this ,irregularities specifically the non-conformity''of the
p>l+ potal ..,. go to the very heart of the bidding, • PX"04C1 r ,�
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May
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impermissibly set up, an "apples to oranges" comparison which is
both illegal and unfair.
The scatters raised in this protest require that the MCP
proposal. and the T3M proposal be nullified and given no further
cdasid+eration, leaving the MJCA proposal as the only one. in
compliance'-w3.th the City's Request for proposals ("RFP").' in
compliance„with legal requirements, and in contention following
Stage it of the evaluative process. Given the Technical
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Corm '-ttee' a 'decision to. award fewer than , the minimum number ° , of
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— ; pointy to the ,. proposal of Miami Maintrust ,J.,V.-, the , only- bid, that
srhoul.d be opened qn Tuesday is that of XJCAjL and : ;the -, procedure
described • in .the •RFP •e nd - in the City Charter should, : thereaft4r
continue _accordingly. , >.
I might add that MJCA's proposal had been informally ranked by
top City stat-fers as the best# and that prior to the last meeting
of ` the Technical Committee, MJCA'-s proposal was ranked No . A (by 14
points over the, next best proposals)'by .one of the City staff
members who i s also & -;member of the Technical Committee. Thus,
M67CA has not only been the only one of the three remaining
proposers to A.-omply 'with all applicable requirements,, but it �a1so
has. submitted a proposal that, when;,. judged free of extraneous,
factors..,, is c' a the best.
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Sackosound
7CA,; . toq+sther with : four. other proposed development . teams .
selected -by the City of Miami in cooperation with the United States
General Services Administration, was invited to submit a' proposal:
for the. desitr and cost of a Federal Law Enforcement Building in'
downtown MiaW- , The,,, invitation was formalized : in' : a ;Request'`` fo
Proposals da#� Deceeaber b, 1989 and authorized on October 6, '•1989
by the City of Xiaiiai 'Comsf sion by Resolution No.' 89-1060.
On April:, 100 x990', four of the. five developnt' te a�gs,
inclg4i,ng ,1K.7<' 4. submitted proposals for eva�.uation `by a `technica�],'
commit,t* oa ccomi used of sevren, membors, four of 'whom ard,',employees of:�;
the .U.S.-Ponfor 1 Services .Administration, two of whoa are-- W.-as,
of .the City o. , Xtaawi, and pane of whom ' is an individual' a�epreses�ti�niq
the private+ *w-4tbr,' ( the "Technical Cosaaittee")
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Aac rdi n► ..to the ,' Request for .Proposal$., the T+achni+ l,~
C4mmi 4#Q'r • - ral,uation of vAch team's proposal -was to prow d ,
three st;� as follows:
tago I: The Technical Committee: was to deters s
ogq# team' M,,lRponsivonose to'.. the , utilizi.nq a►, ohs kl.ist
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May 25'01990 Page 3
developed by, City staff. This stage was completed on April- 191
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1990,,:and City staff concluded that each t@am was responsive to;
each* element of the RFD. As will be seen, that conclusion was,
founded on 'a cursory review, that overlooked obvious'non-
conformities with the requirements of the RFP (e.g., the RFP
requiresthe: proposer to remove toxic, hazardous waste.materials,at
its own, expense.. yet the MCF proposal requires_ the ` City to. do`
at,the City's expense).
Stage XXi ''The Technical Committee was next. to evaluate each
team's.proposed. design,_ site, plan, and project schedule, and,to
assign; a numerical grade to various system components -aid..
scheduling., criteria. The- Technical Committee completed ita-
evaluation° on May 18, 1990, and assigned the following scores to
each teams.proposal=
Miami Capital Facilities, Ltd. 94
>;
Miami Justice Center Associates, Inc. 80
T3M,'Ltd. 77
Miami Maintrust J.V. 66
A ;minimum score of 75 points was required for further:
consideration; accordingly, the proposal made by ..Miami. xaintrudt�
JV `is no`.longer `viable.
Stage .- 2II t The...Technical Committee is next- to open eiSioh-:
team • s _ sealed bids. This step is scheduled to occur at. the' City...o. f.
k amL-D ' rtment of Development office at`9:00 a.m. on Tuesday,
29,� '1996,2.
1. �i..it!�,:Q tFmg�osaT snb`itted by !L£ami Canftal+
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Fatsilities. `Ltd. � ,
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invalid becaua6 of unauthoti$ed material changa�s in the compos�.t�o�
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of the devel�pp mot teem. The proposal submitted by let j:y
'198$,
2a•,. lasted the Codina Croup as an important partici alit -
the team. 7A ` 'fact, the '
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Prganisational chart indicates e't., t
Codinm Group was at the primary and central point- -"of' direction
the ehtirerc ahitectural, engineering, and construction aottvit.es.
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The extensive -development qualification of the , Codina, Up.we.,
stated in ti►e. prgpo¢a�,:4
'the. City of MiAmt , stated re mtedl Y
.change in. the composition -of the team had to #pprpved
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to the April i0, �.990`submission. On', March 19 1990,: $sea
letter withdrawing an earli+ar request ' to di f th q ,
r spQnse to a letter. isthpity atedd Fet► Arr_ Ice If,
IMF letter at ated that the team would proceed"as peas' the�raci"
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Ron R, Williams r$ Y
May 25'e 1990 Patjo 4
submittal. 'this did not happen. Instead, the,MCF submission of
April 10, "1'9 0 substantially modified the team without notificatlbrk
or permission of the City 'or GSA, in direct violation - of` this
e rerments of Addandum No. 1, which states "any modifications
isust' be 'requested in writing to the City Manager and are subject to
the City's and U.B. GSA°s approval." .The MCP submittal also
violates Addendum No. 3, which suonmarises statements made during'a
meeting 'of February, 2, 1990, where the notification of 'change
requirement was again made a prerequisite to submission of any
proposal where the team was modified.
tt'`should also be noted than the MCP proposal of April
10,•: 1990 !contains what can. only be interpreted as. curiously
cautionary language:
. *Thai.c6dina Group Inc., shall no 'longer' serve
as special project consultant or in any other
capacity for the development team:""
Ron-Res2gnsiv®ness to the Request for JPr000sale .
The proposal submitted by MCF includes & section comprised of 15
pages and fhotdod "Assua�ptiona and Clarifications*. Neither IyT..Tc�l►
nor either of the other` two' final#.ste , sought to ` furnish assumptions
or provide clarifications. These items serve to limit the. bid and r>
are. distinctly separate from the section oncdntractl tares a� ;
Gtsridttiyris. Taken as a whole, the ' assuunip>tons and clarifpatio
aept�i'on "contained in this MCY+ proposal conflict )dthy thee` estY hoar
i L p pos41. in substant
Piro sals �'RFP" and render the ro
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nformity w�ah the itFp.
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me Qr rlR� At to hero which the pendix ;21 is an annotated ist$ of fide
j MP proposal
; la ci' icationa" • cc 'ptitute a, mate rim r d4v .att on, `
z+s$u . nta of the`-.,WP and re1403; it a non`-coat�ox 17, DIP.
At is$j*0 is n01t o'nl he legal' d equitable r 7 r
" x. tagn�.retas nt t2u� thr
b e . app104 to apples" . oompariso�
tignifio ca 01,"'MCP°s ia _devtions:.:., a PrOPPe4r'e
with ; a r6t .rant or, 'ais thta case wah' man x
uafaic3� ianablss, that proposer to'subaait a fii fiat mower
p po d h a
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that of another proposer wh bears
p °p° r who.:,bears east pf `c _ lian�ev with l
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1�.7C,►'a dasgx� builder, sastfse C.nnta 5ui.�c�sar
w+sntu Q# , H tr�ti on - C - natruction Managers, line , and the e
olporation, has made an effort to assign a dollar value to use
"carife.ntainad in the. My
dev tiobs, a not of a .natµre wh1Ch p s+snt • ' '-
at off . A .d l�.l: Valu4� Qf thCis0 d0Viationls a {,
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Krbl Eton E. Williams
May 25 199.0 Page 5
capable of detexsination, Justice Center Builders has calculated -a
cost'differential that could amount. to several millions of dollars
_ As an example j with respect to the matter of. the special : use._ permit
alone#. MJCA's bid incorporates a cost of $250,000. This -improperly
skews the exact comparison of the competing proposals.
- As :was stated in the seminal Florida case, Iftsteri.;v.'
lote,:103 Fla. 976, 138 So. 721 (Fla. 1931), the purpose of<the
biddin "ocean is to
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;-protect the .-public against collusive
contracts; to secure fair competition upon
equal -terms to all bidders; to remove not only
' collusion but .temptation. for. collusion- and..:.
opportunity for gain at. public expense; to
close all_avenues.to favoritismandfraud in -
its various forms; to secure ;the best. values
for the county :at the l.owest.:possible:expense=
and -. to . Af ford an eg"I 'advantage to all:
desiring to do business -with the county by
affording an opportunity for an ekAct
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comparison of bids."
-138'So.-at:.723-724 [emphasis supplied].
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This salutory public purpose, has' been enforced by:all of
the recent Dade County: cases which•have`considered tho-'effect of a.:
non responsive bid on = the ' public bidding process. In UM21 < Miami
p#1 x. Klinoer, • 179 So,. 2d 864 (Fla. 3d , DCA 1965) , - the Third
District, Court of ::Appeal- upheld; the - Dade County Circuit t Courtn
invAlidation`of a contract awarded to a proposer whose bid did snot
comply...with the: published invitation for: sealed; bids. And
G S se,n "vty of xiami, 399 So.2d lOtiS (Fla. 3d :?CA 1981.).m
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+base which considered .the validit .of the bids submitted pursuant
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to A ; request for= proposals for the development' of watson. Island,•
`
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the Third District Court of Appeal voided a coatxact awarded to
Diplomat world 8nterprises;, •. Ltd. - ' because: _ there ::was . a'= " aat vial.
vvariade botween the detailed plans -'upon which !competitivia-biddinng°
wits : proposed to -be submitted : and that which was-,- submitted-` u
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diplomat ; and ultimately mi9ptsd: by ,the City... " . 399 #o 424 , dt
1009...ABV-Wftr DAM ,
352 .5**2d.1190 (Fla., 2d DCl! 1977) :(city cannot award contract ►
.
oh nQn +c+onfoict►ing ,bid: because variation destroysbid-fa dompaeti.tiws
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aha&Arta") i CS,ty of , J&kejanda .F5 ...Y.r .1i# :.941, ;3
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352 .,; Supp. 758 (Hell, Fla. 1973) ( non-competitive bid
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a�and�cs contract void) .
In addition' it is clear that the MCF proposed . t3t?ntr+1lct .
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terms and conditions ( included in a section of the Xcr aubmieaion
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Mr. Eton E. Williams
May 25,.1990 Page 6
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titled "Agreement for Design and Development of the Federal- Law
Enforcement building_ between City of. Miami and Miami Capital
Facilities, Ltd.") include numerous provisions..which`dramatically
conflict _ --with the RFP. 'While the City Manager has stated (set
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Addendum VI, dated, March 16, 1990) that proposed contractual
language in itself would not render non -conforming a proposal that
would. -otherwise be ;conforming, the MCF proposal blatantly amiaus@s,
thin,.�'section to attempt to, justify. its• "assumptions.. and
clarifications" which -- as previously noted -- fall .clearly'
outside of and are in direct contradiction to the;requirements,.Lof;
the RF"P. Attached hereto as Exhibit - B are . selected- examplips of
conflicting provisions of the MCF proposal.
;
Proposals cannot "clarify" or make "assumptions" -which -
serve.. -to hold down cost or limit responsibility for. strict,•
adherence to AU requirements. A governmental bodyts
responsibility to reject, bid proposals as non -responsive which
attempt to "clarify" or make "assumptions" has been repeatedly
upheld. -For, example, Howard Electrical i Mechanical, Ing., Comp.
Gen. No.; B228356 ,(Jan. 6, 1988) , the Controller General.. ruled a low
bid_.non�-responsive and threw it out, stating
"any clarification added to a bid calls:., into question ..the
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bidder's' commitment to fully comply with the contract.
By: clarifying its. bid, Howard has attempted to _shield
itself -from responsibilities , from wwhich ,other bidders -
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would. not be similarly, protected., Roward's clarification
:has the effectof shifting these costs to.the;owner.".
Ina very; similar case where. a contractor, attempted to "clarify" or
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"qualify" his ability to meet a construction schedule, the
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government ruled. that if a contractor is not committed, to.;,n4QetL4tJ
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the owners' . raqul.Femants without z°eservation, then the chill
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rejected ,asp , non -responsive. Orbas anal_ A,saooiates. Comp.:
No.. ,8.228443 (Jan, 7, •1988).
C . ArtIM; JJ -- s Conf l is ..S$gr Arthur is
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a member of the MCF team and is the acting -,or confirmed_hea+d of
Government kational Mortgage Association, a federal cor�pQration
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created .by Act of Congress. His. presence on a team which .ban
submittQd a proposal being evaluated by a Technicdl. Coms;ittse f ,
of who meabo,is are Federal government officials, :constitutes
L". r isslble conflict of interest. The 5thics in :Cc�verrnns nt A
1 . U,S.C. S 2080 provides .ponaXties when any.+�ff .ce_r or lb ;
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an aIndependent agency of the .United Stat 8 partioapates19r
award > of . any contract in which he has a financial. ianterast
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Mr. Ron E. Williams
May 25f 1990 Page 7
be SLta DesigMs Reeggneg.to Historical Buildings'O' As
part of thesubmLssion process, the City agreed that the'Florida
Department of State, Division of Historical Resources (*Division")
would -review the proposals. The Division's report,, which-jUd
the,,proposals relative to the applicable: historic preservatiosl
Assuesiranked the MJCA proposal highest as *the most,sensitivb"'to
the, historic 'structures,! and found it to be "a signif icint addition
to -the urban fabric', of the City. The -MCF proposal, which the
Division ,found .,would "overshadow the, neighboring ,,historic
buildings*,, -was, ranked second. Inexplicably, theT&chnical,
committee-gaveboth MCF,and MCJA.perfect scores in this,cate
E. Sig=ge. Likewise,,.the Technical Committee gave the
same score to both MCP and MCJA in the category of site -landscaping'
and: f.-signage , even though MCP had no signage, drawingstand"-ftb
allowance.was contraty to the RPP.
For thel;aboveireasons,, the MCP cannot be permitted-l'tblproceed
.to thei'Stage Ill evaluation.
11. Protest regarding the P13=sal submitted by T3Ks:
In its .,aubmission,, T3N has proposed to use 3W/Rooney joint
venture, a joint venture of 3-W Corporation.. Incorporated and Frank
J. Rooney, Incorporated,, as -its design builder. T3K has ?liist6d
Raymond, _Southern. general contractor's license CG045623; 6the,
'fiturez *violates
Joint venturers qualifier. This
istatutes'
-the applicable-
h'`
Under Section 489.119 Florida Statutes (1999)-1 any applic,int,
who proposes to engage in contracting as a legal entitynunt.apq,.y
to the Construction Industry.Licenisinq*Board (the "Board*) throu ha
a qualifying agent. The same. statute provides thdt,O[
venture,r including a joint venture composed, of qualif iod, bu's i ft"O' lie '
QX944.iiationn i is -itself a separate and - distinct org4hjzdiioA' :that', -
must be'qualified in accordance with board rules: - �-S489319yq
(2tj!
rla.,etat. (1989).
The Board's rules.#'prowulgated in Chapter 219 of -the r
Administrative code, provide that -only a properly qualified entl
may engage in contracting. Rule 21E.15-0022,, Fla. Mmin Code, `A_
JOXnt venturer,in' order to quality to engage in contractingi *$611
furnish -the A with: a. Statement of Authority frc*'
is a re A
Vistraitt or a certificate icate holder that such
'authority-,'to*
qualified to act for the venture and has G'W-'."*�'solI
coiletmation undertaken bythe venture: The- Stat* "at h
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Mr. I n $. Williams ;
lay 250 1990 Page 8
_- must also be signed by such other persons as are able to ,legally
bind the Joint venture. Rule 2lZ-15.002,.,Fla. Adman. Code.
Subsection (2) of Rule 21B -15. 0022 requires that, amongother
things the, Statement of Authority must be received and. approved by
the Board office before the submission of the bid. The ,requirement
that: a; proposer be qualified to. submit a bid at the time the
proposer submits the bid cannot be waived. Opinion of the Dade
County Attorney, No. 88-06 (July 18, 1988);' tX- of cp - c 0: y._
Trustees -`of Plumbing In� dusta Promotion Fund• 193 So.2d: 29 (Fla.., 3d
t�CA' 1966) ; reenhut Construction .Co. v. Henry A. Knot, inc. , . 247 .
so 2d 517 ( Fla.. lst DCAR =1971) .
The general contractor's license listed by T3M to qualify the
3W/Rooney Joint'Venture-was noteused by T3M to :qualify the joint
venture on -,or before the -submission due date.of April 10, 1990,An!
the joint venture was not otherwise qualified in accordance hwilk ,
`thA'` Board, a rules on or before . April, 10, 1990. Consequent
:
must-be'disqualified-from proceeding,to Stage YII of the Technical
Committees eveluation.:
III . HMOs Pr000sai was not Fairly- or- ly"r y t valuated ' in
Stan, Process.'
The Technical:Committee did_not fairly. or properly evaluate
- MJCA's proposal: an Stage 11 As..a consequences the Technicah
Committee improperly ranked MJCA below any of the other three;
submittals..' The .following Are -examples, where-,MJCA. should
- received •a. `h.igher score.'
f
D4rLng- the evaluation, of . the building, system �dy�esQ�,+r��w/�,►p��.n > =n
'Stagt3 . Lz, the - .Technical Ct=itt" conside�ted ' -each ;teM.R� Q r 4ia�
design: The roof, component was to be accorded 'A maximum of 8 'Y
points and a minimum of 0 points. Each of the other , theme , tie. ;
received , the maximum 8 points. However, tho Technic4 Lt wf
ranted the MJCA ' des ign ; only 4 .. points ; - because - the T hn al
-Committee concluded improoperly, that MCJA failed , to
plan .in its submittal
Sven though the RFP did not reequire; she suh�ai�;t,i e
roof l.an, MJCh ind,ica�ted its. roof plan in a dacawing mu h���tl►
entitled *Vicinity plan", Sheet 1, on typical puns shown fan>a#a r�
9 and 10 and in MJC ' a scale. mcede- .. ' This Infor0ati ou W- A, •
by Mr. `Harper in his verbal explanation 09 the: to 'a
addition, a clear roof section with an expl4natiQA of the o'. 401'
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Mr. Ron L. Williams
stay 25 1990 Page 9
membrane and, insulation systems clearly shown in Typical, Wall
Section "O" on. Sheet 19 of MJCA's submittal.
XJCA's roof design is a.simple, clear and straightforward
solution with Minimal roof penetrations and minimal roof mounted
equipment and fully Complies with the roofing system specifications
provided in.the RFP.
Because of:the design complexity, both MCP and T3M.were
casnpolled,to. include. a -separate drawing entitled. "Roof. Plan"
XCF's roof do sign proposed a complex multi level roof s -By st'ii-_'with
numerous -penetrations, walkways and. stairs.: `This design could not
be ,explained other than by. means `of a separate roof. plan,.
Tile: roof system Proposed `by MJCA is of a suparicr design,
due to, its. simplicity,.. and is of equal quality to those ;propased'.by
MCh •.and -.T3M. ` MJCl!'s submittal was as coaraplete . as those s; ikinitted
the .other teams , notwithstanding the fact . that MJCA' s ;des iqn did*
not .:include ;.a. separate drawing entitled "roof- plan" As .; a
consequence,.MJCA'a roof component should, have been allotted the
same number ,of ' points_ as the .: roof components of the other eams;.
Four., points, sa ,large number _ to . be,. downgraded on. one':. component_
when 14_points.aeparate the .first and..aecond:pXace.:teams,and only
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3 points_ sepate. the second and third place teams.::
B...t it or _ .e a ,fixtures s Inte_ rior Door
rinits/Wall gZatsm.:. .
With,respect.to those components,of�the-butlding,-,system
K
design reiati.ng to' Znterjor .Hardware & Fixtures: and I,n<terio Door
`
tlnir/Wall:. Syste�ma ,each t�aS accorded a aund i of poiints.;and:.a
s ;
,
minimum of . Q points . 2n each' `category, : MJCA .was . allptted l-qh : ��
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points and.was, downgraded because,- a¢cordiA to' :the ,;Tec nic
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Committee; I�LJCA did not. provide door hardwarein-its a door schs+d41
atld d'id not induato wall tapes in its room finish ecbedulQ. ; Th
,
conclusion is simply vi ong:.
Door' hardware. and wall systems wer+a fully, s ified attd'
.
covered in the technical •specifications -issued ,rich t e'.RFP ' For,
thin reason, MJCk did not feel it necessary ',to repeat tl uama
information provided b . the City in i►
provided: a complete room finish sgbedule covering. every. n nglge
is the project and" provided a complete. door .schedule. c4veri.q Vggat
09or types, in the pr+o jdgt,
Oven though ott4or teams rQvid e. iAotAn
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fIniehoo and da4t,types, they were gradod highs
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Mr. RonL. wi1'liaits
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kay 25, 1990 Page 10
because they *imply` duplicated the information covering wall types
and 'hardware in the RFP.
C. Mechanical System. Operational._ Characteristics &
-Operating Coats.
With'. respect to this ` criterion .of. the Technical
Commiitee•`s evaluation of each'team's building system design,`Mick
aas'allotted 9 points out of a maximum of 12, MCP received the
maximum 12 points, and T3M received 10 points. IMA's system was
the best for the program and the most efficient` equipment available
in the market. The Technical Committee'doingraded NJCA for Ito
apparent failure to provide an operational cost analysis. Neither
MCP nor T3M provided operational cost analysis.. ;,Thu's,..'they-should
.have received the same downgrade. Moreover, XJCA's submittal
contain an operational cost analysis, done with 'tho available
information. A chart was provided comparing the Federal Law
Enforcement Building with a "high efficient building.". The
Committee members could determine from the chart that there would
be cost savings in the operation of MJCA's building design. In
order to implement• a more exact operational cost analysis, a
consultant must be given specifid information, such as hours of
operatim,'exact''number of people,. exact office layout, and exact,
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heat loss of equipment. No consultant could do`such `an analysis at
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this stage of the project since wrongfully assumed parameters could
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result in devastatinganalysis results. The other proposals
yd posals ehoul;d
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not receive higher scores -by including erroneous information.
The Technical C,,,ittee's failure to evaluate_ the above
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components of MJCA's building design on the merits has given the
other team an unfair advantage. As previously stated-inAtli
supra, "[tIhe object and purpose of competitive bidding statutes
to . . . secure .fair competition upon. equal• terms to all
bidders .",• M. at 922. . The Technical Committee's improper
`
evaluation has produced results which -do not permit.a comapetitive
comparison of the bidders.
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D. H2n-AvailabiJJty of TA R g o ,=dinar
During Stage 11, the Technical Committee agreed -to
'twenty,.minute
permit each team to manse a • presentation to'. the
Committee on that team's submittal. No team was allowed to coht*
oa • another team"s submittal in its presentation;
presentation was to be conducted•in private, it haying -been age
that each team's presentation -would bo tape recorded for r.�X
�
. the other .teams following the completion of the stage Ii pVOC 49s,-V,�
In fact, the presentations were not recorded ANa
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1. The MCP proposal contemplates the use of the permanent
elevators for hoisting during construction. This does not comply
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with Section Mo. 01500, Section II, Volume III of the RFP. _
2. MCP has indicated that the City will furnish a threshold
inspector. at no cost to the proposer. The RFP requires all
consulting services to -be provided and paid for by the proposer.
3. MCF•s proposal calls for the exterior wall mock-up test
of the window and pre -cast panel system to be performed on one {
a typical bay.This does not comply with Section No 009 ' p y 00 of the
4. MCP proposes to set up the trailer for the resident,
engineer upon. the commencement of construction. Section No. 01590. t�
of the RFP requires the trailer to be placed within fourteen days:
of a notice to proceed. r
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5. MCF requires the City to remove any existing toxic
_* hazardous waste materials at the site at the City•s expense.. This {'
does not comply with FAR 52.236.3, Section No. 51 Vol. I of the R3'P T
r a P
' and sections 0.1500 and 0156, . voi, III of -the RFP.
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6. MCF requires the .City to. furnish an ,Asbestos,,, Free
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Certificatw for the site prior to the start of demolition. This
is in conflict with Addendum No. 1, page 2, of the RFP, Sections
01500, 01546 and 02110, Vol. III of the RFP.
7. MCP has specified a foundation drainage system dilfarent
from that specified in Section No. 02710 of the RFP.
8.,. MCF. has required the City to provide built-in, furniture
for.the_courtrooms. This violates Vol. I and Addendum No. 1, page
9, of the RFP.
'.
9. MCF'has indicated that walnut millwork, if requested by.;a
judge,. will involve a premium cost to be addressed,by change oxder:
This conflicts with Addendum No. 2 of the RFP.
10. MCP has proposed a wall insulation.'board.with an R value
6. Section, No..07210, pages 2,and 3,,of..the RFP,.requiresa.
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exterior; walls to.have insulation type II and the wall to have an
R value
it-. .The aignage proposed by ,MCp is in conflict with Addendux
No . 2,
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12. • MCA' has proposed that the City of Miami twill. pay for any
water line extensions in violation of the RFP. This is a cost of
<�E
the construction.
13. MCP has substituted the foundation drainage system
specified by the RFP. This is in conflict with the specifications.
—
14. MCP has qualified its commencement date by adding
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additional. events required to occur prior to commencement in
—
violation of the RFP.
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15. r Allowances for signage as presented by M.C.F. are in
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conflictwith the intent of the RFP since it makes fair and
equitable comparisons of team proposals impossible.- Allowances
should be only those included in the RFP.
16, MCP has substituted specifications -of water pipes from
those specified by the RFP and the insulation methods required by.
—
the specifications.
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17'. MCF assumptions and clarifications with regards to
Division 2, Concrete, are variations and changes,., to the.
specifications `atnd the RFP requirements.
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Upon reviewing the proposed Contract Clauses submitted by
Miami Capital Facilities, Ltd., we find several paragraphs in
violation of specific requirements of the RFP. Those violations
include, but are not limited to, the following paragraphs:
MCF Paragraph 5.4 (Plan Approvals - Submission, Review and
Approval of Construction Documents), provides in part that "[ijt is
the City•s responsibility to determine that the Construction
Documents are in accordance with applicable laws, statutes,
ordinances, building codes, rules and regulations ... " This
clause conflicts with paragraphs 4 and,5 of the RFP, Vol. 1, page
k
6.
— MCF Paragraph 5.53, begins "Should conceal conditions
encountered in the performance of the work . . :" .This clause, in
its entirety, conflicts with Rule 52.236.3,-Florida Administrative
G;
Code, submitted with the RFP.
s
_ XCF Paragraphs 7.23, 7.24,.7.25 and 7.27'conflict.with Rule
52:236.7 of the Florida Administrative Code, And Paragraphs 4 and
= 5 of the RFP, Vol.
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MCF Paragraph.7.13, which begins -Developer Assurance. Prior.
to Commencement -of the Work .", conflicts with RFP Paragr4ph.7;_
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Review, Vol. I, page 15,`wrhich
states that "@efnre
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Aubmitti= w
proposals,
prospective developers
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shall carefully examine the
entire..site of the proposed work
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it<w E. WILLIAMS CESAk H. 61?Ib
City MslaRer
June 22, 1990 a
Mr. Raul J. Valdes-Fauli
One Biscayne Tower, Suite,3400
2 South Biscayne Boulevard -
- :4iami,•Florida 33131
Dear Mr. Valdes -Pauli:
Re: Federal Law Enforcement Building Projects'
I, as Chief Procurement Officer of the City of Miami,`have read:
the protest filed on behalf, of Miami Justice Center Associates,
Inc. (MJCA), A copy of -which is enclosed. I have talked with`'the
City departments involved.in the issue and reviewed the pertinent'
documents. Pursuant .tom duties Mader .Section i8-56':2, Cit `of
'Miami Cod I have determined that only two parts'of'the protest.'
,have merit, for the reasons set forth below. The City Manager'
and the City Attorney have approved my determination and will k�
— submit• it to the City Commission, whose decision will be final. aim,
Below, in the same format and order as the protest,. -are the
reasons for the determination that some , _— parts.of of the :protest ;ire%
�.
mreritorious and some are without merit.
t, �t_3"5rs�ip_pr4.fs�1__�€ta�s�, i�y.lisuli:_ Ca�ptBi X;
FACilities. Ltd.
A. Re'sianatio
n a f CQd 1
The Codina Group was serving "pro bonott in , the'�
l imlted Ca Flclt Of bid
p y•. proposal consultant at the time cif the
original submission, The qualifications and professional
expertise of the Codinia Group, Inc. were not cohsidered,as past -
of the development ;aam inthe o;iginal Request fbr,'
Qualifi,cat•ions..(RFQ) , therefore the absence of Codina Group,, Inc.5.7
is not considered to be a change to the team structure. This y'
protest is without merit. rt
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(JNfRAL SERVIUS An%AINIS1R f%rPA,R' ,1390N%4, 'Mimi. F►, "'' '.i0i Sn4lm
:11r. Raul J. Valdes -Pauli Page 2 June 22, 1990
g'• RQn=r,_es9Qnmiveneag_to
,1
The submission by MCP of the information contained in
the "Assumptions and Clarifications does not constitute a -
_
nonconforming bid. The information contained in this
supplementary material was extraneous to the deliberations of the
Technical Committee. Therefore, the submittal of "Assumptions
= and Clarifications" did not affect the evaluation process and may
or may not be considered in the negotiation process, depending
_ upon the best interest of the City. This, protest is without
— merit. '
_ C. Arthur Hill 1 's Conflict of Intgrt
Mr. Hill was a part of the Miami Capital Facilities
Ltd. prior to his status as a federal government official.
According to an affidavit executed by Mr. Hill, he received
clearance from the U.S. Office of Government Ethics that he was
in compliance with ,applicable laws -and regulations governing
- conflicts of interest. There is no indication that the members
of the Technical Committee who represented the federal government
in any way showed any favoritism to MCF. This protest is without
merit.
D. Site Design: 'Resnense to Historical Buildings
This evaluation unit included not only the historic'
s
sensitivity to adjacent buildings, but also evaluation -of the
overall architectural design of the building. Balancing both
_ aspects of the evaluation, in the subjective judgement of the
Technical Committee both firms scored the same. This protest is
without merit.
;n
E. Signage
This evaluation unit included not only signage, but
also evaluation of the site landscaping. Balancing both aspects
of the evaluation, in the subjective judgement of the Technical.
Committee both firms. scored the same. This protest is without'
- merit. •. '
II. Protest regQg the Proposa�'
sub�,�#tee T3M
rF
This objection appears to be valid, information recently'
received from the Florida Department of Professional Regulation
k
indicates that .3w/Rooney ' Joint venture, a part of T3M, does not*
have an active license and therefore is not'.a qualified joints
venture 'under Florida law. It is recommended T3.9 be
:
.that
disqualified from further consideration for this project,.
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June 22',
Mr. Raul J. Valdes-FaUli Page 3
erl to d-An
0 r-y-rQu
t should be
parts A#B C, :it
regard to this objection, P Committee -were
In rega Technical
understood that evaluations by the The Technical Committee
a. group consensus.- and minutes
achieved with its delisnerations
be fair in all 'Of -much of
appeared to d one or another. Furthermore,
reveal no bias toward this is subjective, that is
such as
the evaluation on a project ionals were included on the
variety of profess members would
wide ittee
one reason,a expertise of individual comm protest is without
Committee so that eN This
be blended to provide a unified result.
merit.
D.
old that the pre sentations would be
The teams were t the tap;
for later review. However,
recorded' made. Staff did prepare a
were not
malfunctioned and the tapes the minutes of: -the
part Of
of the presentations as a the fact that
summary merit, given
test has ea I s
meeting. A lthbugh this pro th -committ
and also that e
of
were made
all presentations this is not viewed- as � an error
were. recorded, evaluation-•
COmm.itte".
eiliberationSL
d the Technical
magnitude as to change
.Such
S'n)erely.yoursf
Ro E. Williams
Chief'Procurement officer
Approved:
Cesar
,City Manager
'Approved as to Form and Correctnessle,
J iFg- —a —L . _Ferna�ndez
c
City%Attorney-
Enclosure: Bid Protest
cc:
David Michael liarperl President
Rarper,Carreno Inc.
8805 NW 23 Street
Miami, Florida 33172
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