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HomeMy WebLinkAboutLetteritg of 4Wxmt JOE ARRIOLA City Manager August 3, 2005 Miami River Lobster & Stone Crab Corp. Manny Prieguez, Vice President 135 SW South River Drive Miami, Florida 33130 U.S. REGULAR MAIL & CERTIFIED Re: In response to your combined Intent to File a Formal Protest and Formal Protest to the Award for the Request for Letters of Interest (RFLI) solicitations on 236 SW N. River Drive, Miami, Florida. Dear Mr. Prieguez: The City of Miami is in receipt of Miami River Lobster & Stone Crab Corp.'s ("the Protester") combined letter of intent to protest and formal written protest, which was submitted in a timely manner and accompanied by the required filing fee pursuant to the City of Miami Procurement Code, Section 18-104, This protest was incorrectly addressed to Glenn Marcos, Chief Procurement Officer, rather than Director of Economic Development, the designated delegate for this matter pursuant to City of Miami Code Section 18-176.3, but correctly delivered to the delegate. The City of Miami has therefore deemed this response as technically sufficient and has reviewed the protest. Accordingly, this letter serves as the City's official response to your combined letter of intent to protest and formal written protest. Stated Grounds for Protest and City's Response (1) Flawed Scoring by Panel.Member Your protest as to the flawed scoring fails pursuant to City Code Section 18-104(a), which states that "[t]he written protest may not challenge the relative weight of the evaluation criteria or the formula for assigning points in making an award determination." Your reference to the flawed scoring of Evaluation Committee Panel Member Stuart Sorg in essence disputes the relative weight assigned by this panel member as to the evaluation criteria and/or the formula for assigning points in making the award determination. While it is apparent that the notations of this panel member's scoring of the fee criteria may have taken into account the capital improvements proposed by the winning Proposer, the City or any other party is in no position to determine the mental impressions and interpretations formed by the Evaluation Committee. Following Section 18-104(a) of the City Code, mental impressions and interpretations (e.g. internal deliberations) of an Evaluation DEPARTMENT OF ECONOMIC DEVELOPMENT 444 S.W. 2nd Avenue, 3rd Floor / Miami, FL 33130 / (305) 416-1435 / Teleeopier: (305) 416-2156 Mailing Address: P.D. Box 330708 Miami, Florida 33233-0708 Committee panel member are immaterial to and irrelevant as viable grounds for protest to a RFLI. Notwithstanding this, any alternate scoring of the fee criteria by the panel member in question would not have changed the overall results. As the RFLI results currently stand, Miami Lobster received a total of 270 points and Garcia Brothers Wholesale received a total of 290. Assuming this panel member evaluated the fee criterion consistent with the other two panel members who granted Miami Lobster 35 points and Garcia Brothers 30 points, Miami Lobster would still have received an overall score less than Garcia Brothers (275 versus 290). Hence, your argument is moot, (2) False Information and representations of monopoly. Your second ground for protest that two (2) Proposers falsely stated at the oral presentations in front of the Evaluation Committee that the award of the RFLI to Miami Lobster would create a monopoly is similarly immaterial and irrelevant as a basis for protest under Section 18-104(a) ("{t]he written protest may not challenge the relative weight of the evaluation criteria or the formula for assigning points in making an award determination"). Furthermore, none of these alleged falsehoods and misrepresentations was imputable to any conduct or behavior by the City and is therefore irrelevant and immaterial to the proceeding. All Proposers were given an equal and fair opportunity to make their presentations within prescribed time -limits. Your company was the last Proposer to make a presentation and more so than any other Proposer, had the benefit of sitting in both of your competitors' presentations and in particular actually took the opportunity of refuting particular allegations made by the preceding Proposers at the oral presentations. The allegations made by other Proposers were therefore fairly framed and balanced by your articulated response to these allegedly false comments by other Proposers. Any subsequent scoring and relative weight assigned by the Panel members as to this particular issue, particular in light of Section 18-104(a) above, is therefore moot and/ or not relevant. (3) The City has no regulatory authority over the commercial lobster industry and the consideration of market factors was inappropriate, unauthorized and illegal. With respect to your third ground for protest, neither the individual panel members nor the City itself claimed to have any regulatory authority over the commercial lobster and fishing industry. Panel members, just like Proposers, have a right to address and comment on issues, including economic or other factors, which are raised by Proposers in the course of oral presentations to determine best use and evaluate accordingly under Criteria B, Proposed Use and Improvements to Property. This and other panel members' comments were framed in response to comments made by the Proposers and were subjective reactions. Given the fact that the panel did not collectively make any effort to reach an official consensus on individual sub -issues such as the alleged "monopoly" issues, nor make any effort to designate these as objective criteria prior to voting, such panel comments can be construed subjectively. The protest itself has therefore inappropriately concluded that the entire panel, and by extension, the City of Miami, has illicitly overstepped its authority. The protest itself has therefore erred and overreached in misdefining and imputing subjective comments as an "objective" standard, rising to the level of unauthorized RFLI standards and illegal conduct. Furthermore, it would be appropriate for a panel member to take into consideration the number of sites a proposer is currently operating for purposes of evaluating the potential success or failure of any given proposer. (4) Unexpected Debt levied to City was not disclosed prior to panel's recommendation The unexpected debt referenced in the body of the protest was not a selection or evaluation criteria and therefore is immaterial and irrelevant to the outcome and results of the RFLI selection. This indebtedness was a debt incurred and payable by the City to the State of Florida Department of Environmental Protection (DEP) on the basis of the City's ownership of the uplands lying immediately adjacent to submerged lands owned by the State. At the time of the RFLI issuance, the full amount of the "unexpected debt" was unknown; additionally, the City had in fact applied for a waiver of any fees. Due to these facts, the full amount of this debt was not a material consideration for the purposes of this RFLI. The City can always negotiate to the betterment of the City, which may include, in this case, negotiating additional consideration to reduce its debt to the State. This negotiation could have taken place regardless of who the first ranked proposer was and is not limited to negotiations with Garcia Brothers. Based on the facts herein, I have decided not to uphold your protest. This matter has been reviewed with the City Manager and City Attorney and they both concur with my decision (copy attached). Said decision is tentatively scheduled to be heard by the Miami City Commission, and is subject to their approval or disapproval, on September 22, 2005. The meeting will begin at 9:00 a.m. Sincerely, aura BilIberr Acting Director Enclosure c: Joe Arriola, City Manager Linda Haskins, Chief Financial Officer/Deputy City Manager Jorge L. Fernandez, City Attorney Rafael Suarez -Rivas, Assistant City Attorney GIenn Marcos, Purchasing Director