HomeMy WebLinkAboutSubmittal-Glenn Marcos, Purchasing DirectorRE: IN RESPONSE TO YOUR WRITTEN PROTEST: CITY OF MIAMI REQUEST
FOR PROPOSAL (RFP) NO. 119057- TRAFFIC SAFETY CAMERA PROGRAM
Good M•effting Commissioners, Glenn Marcos, Purchasing Director
If you recall at the March 11th Commission Meeting, you heard a protest by ATS
claiming that the first rank firm ACS and Redflex were non -responsible firms. An
independent assessment conducted by Mr. Fabian Kalapach of the firm HNTB revealed
that both ACS and Redflex at the time of RFP submittal had not installed a non -
intrusive, free-standing red light photo enforcement equipment as specified and required
in the Request for Proposals. As a result I determined and the City Commission
concurred to uphold ATS' s bid protest because ACS and Redflex were deemed non -
responsible firms and award said contract to ATS.
Now today, we are affording ACS due process; and, you will all hear ACS's bid protest
and I implore you not to let the current protestor, ACS, to persuade you or confuse the
issue at hand. Let me be clear what the issue is here. The issue is quite simple. The
issue is eta whether or not the protestor, ATS, had installed a red light photo
enforcement equipment at the time of RFP submittal as specified and required by the
RFP? You are all reminded that the RFP Evaluation/Selection Committee reviewed the
responses .based on the information provided by firms at the due date and time. The
Committee did not and could not have reviewed any further information thereafter.
So I will briefly inform you all the arguments that ACS will probably make today:
You will heartoday ACS claiming that my reversal of the recommendation made by the
Evaluation Committee and City Manager that would have allowed competitive
negotiations with ACS is arbitrary and capricious.
This argument fall flat in its face, because it is abundantly clear that my determination
of ACS's non -responsibility was based on a due diligence review conducted pursuant to
the Code of the City of Miami, Section 18-95; and, of the Request for Proposals ("RFP")
Section 1.34C, Deterrnination of Responsibility. Said due diligence review and findings
was made by the firm HNTB, an outside and independenttechnical expert of red light
photo enforcement equipment (see Attachment B). Therefore, the protestor cannot
argue that the Chief Procurement Officer's reversal of the Committee's arr d City ,//
Manager's recommendation was arbitrary and capricious. °`�
You will further hear f m ACS that the City Commi ion approval of my
recommendation is a cle violation of Section 18-95(b) of the ode of Miami without so
much considering ACS ormal protest or provided ACS with reasonable opportunity to
rebut the non-respon le determination before it was mad final. What is most troubling
is that if you all recall at the March 11th Commission mee ng I made the argument that
pursuant to the Procurement Code, I had the duty to give ACS dre process and wanted
t . As a result, they have proceeded with submitting
their formal protest to address the issue of non -responsibility, per Section 18-95(b) by
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10-cxm1 z- Subr ilt6I- Glenn Marcos VurCPus I� 17;reC or Priscilla A. Thompson
City Clerk
protesting the award as allowed under Section 18-104 (a), 2 of the Code. Therefore,
reasonable opportunity to rebut the non -responsibility determination is being afforded to
them today and the City in no shape or form has violated Section 18-95(b), as they will
be stating.
You will further hear ACS claim that "to date" they have installed and begun operating
eleven "non-invasive" signal detection -based red light systems of the exact
specifications required under our RFP in cities throughout Florida, including Bradenton
and Miami Beach. However, I must remind you that my decision 'to deem ACS non -
responsible was based upon HNTB's assessment (due diligence review), which
concluded that ACS failed to submit documentation or references supporting similar
services having been performed in the past "at the time of RFP submittal". Once
again, I must remind you that the City's basis on conducting its due diligence can be
found in the Code of the City of Miami, Section 18-95; and, of the Request for Proposals
("RFP") Section 11.34C, Determination of Responsibility. Some of the factors listed, but
not limited to, in the Code and in the RFP includes:
1. Responses will only be considered from entities who are regularly
engaged in the business of providing the goods/equipment/services
required by the Formal Solicitation. .Bidder/Proposer must be able to
demonstrate a satisfactory record of performance and integrity; and
have 'sufficient financial, material, equipment, facility, personnel
resources, and expertise to meet all contractual requirements
2. The City may consider any evidence available regarding the
financial, technical and other .qualifications and abilities of a
Bidder/Proposer, including past :performance (experience) with the
City or any other governmental entity in making the award.
Based on their own admission in their formal protest ACS acknowledged that the non-
invasive, free-standing, self-sustaining system was a very new innovation for the photo
enforcement industry "at the time" of issuance of the RFP in December 2008. They
further stated that it was developed primarily for the State of Florida due to the lack of
legislation and program cooperation from the Florida Department of Transportation
(FDOT). ACS further stated that what may have been constituted an incremental lead
for ATS in Florida did not serve the ATS technology "proven' as of January 26, 2009. I
therefore ask, who constituted or stated that ATS had an incremental lead in this very
new innovation of a non-invasive, free-standing, self-sustaining system in Florida? Is
ACS acknowledging this, the industry, or industry experts? I also question the following,
if others are acknowledging that ATS may have had an incremental lead in the industry
- at the time of the RFP submittal- on the development and installation of this type (non-
invasive) of red light photo enforcement equipment, then logically one might have to
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Priscilla A. Thompson
City Clerk
believe or make the same assumption of their technology, qualification, record of
performance, experience, personnel resources, and expertise. If "at the time" of
submission, ATS had experience in installing this type of red light camera system and
ACS did not, then I would argue that this strikes the very core of the issue at hand of
responsibility. It is for this exact reason that a determination of responsibility is so
critical in this procurement. Having full knowledge that this type of technology was still
in the infancy stages and this technology could face legal challenges and consequences
to the City, I have a duty to protect the City I serve and to the best of my ability ensure
that the procurement process allows for the City to receive a proven technology, I.r-
N
The protestor will also argue today and cite to the court case, the City of eetwater v.
Solo Contr. Corp., 823 So. 2d 798 (Fla. 3d DCA 2002). Sweetwater, 8 • So. 2d at 801.
In that court case, the court stated that "while a public authority ha wide discretion in
award of contracts for public works on competitive bids, suc discretion must be
exercised based upon clearly defined criteria, and may not be -xercised arbitrarily or
capriciously". How can they claim that anybody in the City . ve acted arbitrarily and
capriciously, when the criteria and standards can be found n the RFP? Furthermore,
the requirements of the traffic safety cameras (also nown as red light photo
enforcement equipment) itself is located in Section 3., Specifications, of the RFP.
Therein, twice in plain language (Section 3.1A and B) it states cameras shall be
installed at the selected locations as a free-standing, self-sustaining system and shall
operate independent of the County's existing signal system. Sections 3.1.2 and 3.1.7
respectively states that .all systems must be intrusive to roadway and/or traffic signal
equipment and cabinetry and equipment shall provide a reliable non -intrusive, non-
invasive, non-physical connection to the red phase of the traffic signal. Violation
detection and camera triggering must be accomplished without any connectivity
between the camera system and the Traffic Control System. No power couplings may
be utilized.
As a result, ACS pursuant to Section 1.34C, must demonstrate to the City that they
have been regularly engaged in the business of providing the equipment as I just
mentioned was specified in the RFP. In doing so, the City may consider any evidence
and other qualifications and abilities of Bidder/Proposer, including past performance
(experience) with any other governmental entity in making the award.
You all and I already know what the findings were by HNTB! The independent
assessment revealed and concluded that ACS did not submit documentation or
references supporting similar services having been performed in the past at the time
they responded to the RFP and ATS had submitted documentation and reference
supporting similar services having been performed in the past at the time the firm
responded to the RFP (See Attachment B).
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Priscilla A. Thompson
City Clerk
So once again, if ACS argues that the City has arbitrarily and capriciously exercised its
• discretion. This is far from the truth!
Moreover, it appears that they want for all of us to define past performance to mean
eventually up to the date the RFP is awarded and not way back at the time of the RFP
submittal deadline. So if this is the case, when would the procurement process ever
end?
The protestor is going to further cite to court cases claiming that "responsibility", as
opposed to "responsiveness", may be presented after the bid opening and up until time
of an award. Well, ACS, I have news for you "This is exactly what the City did".
oti
The City —after responses were du and the Evaluation Committee made its
recommendation and the City anager concurred- hired HNTB, an outside and
independent technical expert of ed light photo enforcement equipment to conduct a due
diligence review of the top ' ree firms based on their submittals, which was the only
material and information - aluated, reviewed, and scored by the Evaluation/Selection
Committee. The due •iligence was conducted to review, examine, and verify on
whether the informati• provided .by the respective firms were indeed true and correct.
And let me remind •u, it was here, where ACS was given the "reasonable opportunity"
to demonstrate more than adequate experience prior to the non -responsible
determination to satisfy the City's concerns. As you indicated in your formal protest, the
City of Bradenton, Florida was installed and operational since August 6, .2009, which is
after the RFP submittal date, but yet in your RFP submittal, they were listed under the
header entitled, "Experience in Providing Powerful First Impressions". As defined by the
on-line Merriam -Webster Dictionary, experience is the fact or state of having been
affected .by or gained knowledge through direct observation or participation; or, the
practical •knowledge, skill, or practice derived from direct observation of or participation
in events or in a particular activity. So I beg of you to answer my question, how can
ACS claim experience for a project yet to be performed? Even more glaring is the ACS
statement under the header, which says that, "the following list of projects demonstrates
their success in providing a well -thought out project implementation". This statement
gives the general irnpression that the project had been cornpleted, but a close
examination of those words will reveal what perhaps the Evaluation Committee could
not, but the due diligence review did. A well -thought out project implementation means
that it has been designed, but not fully operational and tested.
Now in comparison to ACS's proposal, you have admitted in your formal protest that
ATS had installed a non-invasive, non-physical, free-standing red light photo
enforcement equipment in the City of Aventura. Well, you have confirmed exactly what
the City's due diligence review revealed. "At the time" of submission, ATS possessed
such experience by installing similar systems pursuant to the Specifications of the RFP
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City Clerk
by installing similar equipment in several other Florida municipalities including the City
of Aventura. So ACS can never claim that the City engaged in an undisclosed re-
examination of responsibility, when it was fully disclosed to all potential and actual
proposers, including ACS via Section 1.34C of the�
cam.
The protestor will probably also incorrectly state that an independent
Evaluation/Selection Committee ranked ACS first amongst the five respondents and
determined ACS to be qualified, responsive and responsible. It is important to
understand after the Evaluation/Selection Committee ranks the firms, provides the
recommendation to the City Manager and City Manager approves said
recommendation, the Purchasing Department, not the Evaluation/Selection Committee,
conducts the due diligence process to determine responsibility. Even though certain
criteria evaluated by the Committee pertains to responsibility, the City has a duty to
further examine the validity of the responses and statements submitted by the
respective firms. Accordingly, HNTB's assessment (due diligence review) concluded
ACS failed to submit documentation or references supporting similar services performed
in the past "at the time" ACS responded to the RFP and concluded the exact opposite of
ATS's submittal (See Attachment B).
Furthermore, ACS will contend that the City's irrational and myopic analysis appears to
completely ignore portions of its own Code criteria cited in Section 18-95(c). This
statement, if argued, is unwarranted. They are going to argue and interpret in their
favor that a portion of the Code states that a firm has the ability to obtain personnel
resources and expertise (i.e. subcontractor or subprovider) to perform the work.
Perhaps "after the fact" of their RFP submittal. But I would argue this is not similar to
having acquired the experience by performing the work (redy and demonstrating this
at the time of RFP submittal. V J)
Moreover, ACS will continue to claim the City has not fully complied with the
requirements of Section 18-95(d). ACS was contacted by HN rB to provide evidence to
prove that it has been regularly engaged in the business of providing the equipment
required by the formal solici#atior�!'
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They will further co end that a formal solicitation, in this case the RFP, allows for
competition; and, at a disqualification of a firm in a competitive process does stifles
competition. H ever, I will submit to you that a disqualification does not stifle
competition, as it may prevent a firm from obtaining an unfair advantage or unjust
reward.
They will further claim, that ACS was not deemed non -responsible for introducing a new
and highly improved technological solution over the provided and previously installed by
ATS.
Well let me put this in plain language, ACS was deemed non -responsive for not
having been engaged in the business of providing a free-standing, self-
sustaining, non -intrusive, and non-invasive red Tight photo enforcement
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Prisdlla A. Thompson
City Cleric
equipment. as required by the formal solicitation, pursuant to the specifications,
Section3, of the RFP, at the time of RFP submittal. f
/ / ci/
Cj
While I do believ- and have previous stated on the record (see Attachment C) that this
a narrow ruling and interpretatio , my hands were and are still tied because as ACS
stated in the formal protest th non-invasive, free-standing, self-sustaining system was
a very ne innovation for th- photo enforcement industry "at the time" of issuance of
the RFP in December 200:; and developed primarily for the State of Florida due to the
lack of legislation an•. program cooperation from the Florida Department of
Transportation (FDOT). Therefore, the state of Florida was and still is unlike any other
of your typical municipal clients located outside the state of Florida because it is not
similarly situated under the same predicament. Thus, this distinction of a free-standing,
self-sustaining, non -intrusive, and non-invasive red light photo enforcement equipment
is not a preference as ACS will state, but a requirement.
(must submit to the City Commission that both/City Manager and City Attorney
cnncueed with my recommendation.
In closing, the decision to deem ACS non -responsible is clearly correct, fair, logical, and
expected. Therefore, as the Chief Procurement Officer, I am recommending to the
Kievitimeity Commission to deny the protest of ACS State & Local Solutions, Inc. to
continue to uphold the protest of American Traffic Solutions, pursuant to Resolution No.
10-0110, adopted March 11, 2010, and rejecting the City Manager's concurrence with
the evaluation/selection committee's recommendation and findings, which would have
allowed competitive negotiations with the first ranked firm, pursuant to Request for
Proposals No. 119057, Traffic Safety Camera Program.
ahLv
I also have the duty to inform you, that pursuant to Section 18-104 of the City of Miami
Procurement Code, the protestor can only argue today the specific facts and law
submitted in their bid protest. Anything beyond that is not admissible.
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Priscilla A. Thompson
City Clerk