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CITY OF MIAMI, FLORIDA MEMORANDUM TO: City of Miami Commissioners Virginia Key SMI, LLC FROM: Daniel Rotenberg, Director Department of Real Estate and Asset Management DATE: May 10, 2016 SUBJECT: Response to Bid Protest submitted on behalf of Virginia Key SMI, LLC REFERENCES: Virginia Key Marina RFP No. 12-14-077 ENCLOSURES: Bid Protest submitted on behalf of Virginia Key SMI, LLC RESPONSE TO BID PROTEST SUBMITTED ON BEHALF OF VIRGINIA KEY SMI, LLC Background The City of Miami Department of Real Estate and Asset Management ("DREAM") issued RFP No. 12-14- 077 for the development and lease of a city -owned waterfront property located in Virginia Key ("Virginia Key Marina RFP"), and proposals were received from the following firms: Virginia Key, LLC ("RCI Group"), New Rickenbacker Marina, LLC ("Tifon"), and Virginia Key SMI, LLC ("Suntex"). The Selection Committee ("Committee") appointed by the City Manager, met on March 16, 2016 to evaluate the proposals and recommended that the City negotiate with the highest ranked proposer, RCI Group. The City Manager concurred with the Committee's recommendation, and Tifon and Suntex submitted timely bid protests. The responses were reviewed by Mr. Rotenberg, the Director of Dream, as Chief Procurement Officer for RFPs regarding real estate per Section 18-176.3, City Code. Protest Allegations Suntex claims the following, as more specifically detailed in their bid protest, which is enclosed for your review. 1. RCI Group and Tifon are non -responsive; 2. RCI Group and Tifon are non -responsible; and 3. The Committee improperly scored Proposers. Response In this protest, the Chief Procurement Officer's position is filled by the Director of DREAM. See Section 18-176.3, City Code. Per Section 18-104(a)(2), the Chief Procurement Officer shall limit his review to the arguments alleged in the written protest, and no other facts, grounds, documentation, or evidence shall be considered. As such, my response shall be limited to the arguments raised in the Protest. See Section 18- 104(a)(2), City Code. As Director of DREAM acting as the Chief Procurement Officer for this RFP, I submit to you the following response, which provides, that the protest submitted on behalf of Suntex should be denied. 1. Both RC1 Group and Tifon are responsive Suntex alleges that both RCI Group and Tifon should have been deemed non -responsive for failure to meet requirements set forth in the RFP. The arguments proposed by Suntex, however, are simply incorrect and Page 1 of 4 based on misinformation and/or misstatements of fact, It is apparent that Suntex is misapplying the requirements in order to protest the award. The first argument made by Suntex is that RCI Group and Tifon failed to make the required parking contribution because they claim that it should have been provided at the time of proposal submission. Although the RFP originally required proposers to submit the minimum parking contribution at bid submission, this requirement was changed by virtue of the very first Addendum to the RFP, which provided that the parking contribution would be paid upon execution of the Lease. In fact, Suntex is very much aware of this revision as they also did not provide the parking contribution upon bid submission. If this were truly a basis upon which to disqualify proposers, Suntex would be non -responsive as well. Concerning the parking garage contribution, Suntex further alleges that RCI Group should be deemed non -responsive because it proposes to build, operate, and collect revenues from its own separate garage. As established in the response to Tifon's Bid Protest, the points and arguments of which are adopted and incorporated hereto by reference, RCI Group appropriately clarified that the garage would be built and operated by MPA. Ironically, it is actually Suntex that proposes to "build, operate, and collect the revenues from its own separate garage." Suntex then proceeds to argue that both RCI Group and Tifon are non -responsive because they failed to incorporate "green" and "sustainable design elements" as required by the REP. First of all, the RFP does not even use the terms/phrase "green" or "sustainable design elements". The RFP provides certain objectives, including compatibility with the Virginia Key Master Plan. However, this is merely a stated goal of the RFP. It does not specifically require the proposers to provide "green" and "sustainable design elements" in their proposals. It was optional for the proposers to include, and the Committee did consider the compatibility with the Virginia Key Master Plan in its determination of ranking. Second of all, both RCI Group and Tifon include elements in their proposal to take into account the requirements and spirit of the Virginia Key Master Plan. Therefore, even if the RFP had been amended to include this requirement, they would have met the burden and been deemed responsive. Further, Suntex attempts to argue that the competing proposers are non -responsive for having made significant changes to the Lease, which is an ironic argument in light of the numerous revisions to the lease submitted by Suntex. The RFP was drafted to allow proposers to suggest modifications to the lease except for those provisions that are non-negotiable, including those mandatory RFP requirements. The fact that numerous revisions were made does not deem a proposal non -responsive. Proposers were free to propose terms for negotiation that were not specifically indicated as mandatory requirements in the RFP. The City would not be required to accept any of those terms, but rather, the City would then negotiate with the highest ranked bidder and proceed to execute a contract. In addition, the highest ranked bidder, RCI Group, specifically provided that any revisions that would deem them non -responsive were to be withdrawn. In addition, Suntex attempts to argue that RCI Group and Tifon are non -responsive for having had past litigation with the City. However, the RFP was amended to specifically provide that the City would "have the sole and absolute discretion" to deem a proposer non -responsive for having had past litigation with the City. This does not mean that proposers will be automatically disqualified, and it also does not mean that Suntex will have the discretion to determine whether a company is non -responsive for having past litigation. The City ultimately can make the determination whether those proposer who have had past litigation with the City will be disqualified. Finally, Suntex attempts to deem Tifon non -responsive by piggybacking on a letter sent on behalf of RCI Group on March 22, 2016. It is unnecessary to address these arguments as Tifon is not the winning bidder, nor is Tifon the second -ranked bidder, and is therefore not the subject of the bid protest. However, the arguments stated therein to allege Tifon's non -responsiveness are either non -material or go to the weight of certain evaluation criteria considered by the Committee in its selection. In short, the arguments stated therein would not deem Tifon non -responsive. Page 2 of 4 2. Both RCI Group and Tifon are responsible Suntex also contends that RCI Group and Tifon are non -responsible. First, Suntex argues that RCI Group and Tifon are non -responsible because they fail to meet the required RFP qualifications. However, both proposers clearly identify the individuals within each proposers' principals, project team, and/or development team that meet all of the qualifications required in the RFP. Ironically, Suntex is the only proposer that actually failed to identify a representative with the required restaurant experience; however, the City afforded Suntex an opportunity to clarify which member of their team had the required experience and Suntex subsequently identified the same. The next argument made by Suntex regarding RCI Group's and Tifon's alleged non -responsibility is that they lack financial ability to perform the RFP requirements. Suntex bases this argument on their analysis that both RCI Group and Tifon will need to raise significant capital and that such financing is unrealistic. This is a subjective analysis that was left to the Committee to consider in their ranking of proposals. The fact that they would require financing is not a failure to meet a minimum RFP requirement. Suntex then repeats that both RCI Group and Tifon have past litigation with the City, and argues that this alone renders them non -responsible. However, as provided above, the RFP was amended to specifically provide that the City would "have the sole and absolute discretion" to deem a proposer non -responsive or non - responsible if they have had prior litigation with the City. Thus, it is not a mandatory requirement that they never have had litigation with the City, nor does that fact alone deem them non -responsible without a further determination by the City. The fact is that there is no pending litigation or pending/unpaid debt involving the City and any of the proposers. In sophisticated transactions involving business entities who have various principals within them, the standard is often whether there is any current default in a contract with the public agency awarding the contract. There is no current or pending default suffered by the City as to any of the proposers. Lastly, Suntex yet again incorporates the arguments made an behalf of RCI Group in the correspondence dated March 22, 2016 to argue that Tifon is non -responsible. The City hereby incorporates the points previously made in the above section. 3. The Committee's recommendation was supported by logic and necessary facts The final argument proposed by Suntex is that the Committee improperly scored the Proposers simply because they believe that they are the better proposer, and that they should have received the highest score. Suntex argues that based on the fact that RCI Group received a higher score, that the scoring must not have been supported by logic or necessary facts. The Committee is charged with making the determination of which of the proposals is in the best interest of the City. The analysis provided by each Committee member is consistent with and supported by the criteria set forth in the RFP. The Committee's recommendation in favor of RCI Group cannot be thrown out simply because Suntex believes themselves to be the best proposer. So long as the Committee's recommendation is supported by logic and fact, it cannot be deemed arbitrary or capricious. In summation, Suntex's arguments do not rise to the degree of showing the Evaluation or the City Administration's recommendation was arbitrary or capricious or departed from the essential requirements of law, or violated due process, or was infected by fraud, collusion or undue influence. As such, the Suntex protest should be denied because the Committee and the City Administration did not act arbitrarily or capriciously. The general standard for these kinds of matter was stated by one court as follows: Furthermore, in a bid protest dispute where the petitioner alleges the County abused its discretion and did not comply with the RFP in evaluating proposals and/or the evaluators misinterpreted the RFP, Page 3 of 4 proposal, statute or facts, the reviewing court need not second guess the members of the evaluation committee to determine whether reasonable persons might reach a contrary result. Scientific Games, Inc. v. Dittler Bros., Inc., 586 So.2d 1128, 1131 (Fla. lst DCA 1991). Rather, a "public body has wide discretion" in the bidding process and "its decision, when based on an honest exercise" of the discretion, should not be overturned even if reasonable persons might disagree. See Sutron Corp. v. Lake Co. Water Auth., 870 So.2d 930, 932 (Fla. 5th DCA 2004) (explaining that discretion of public entity to solicit, accept or reject contract bids should not be interfered with by the courts absent a showing of dishonesty, illegality, fraud, oppression or misconduct. See Emerald Correctional Mngmt v. Bay County Bd. Of County Com'rs, 955 So. 2d 647 (Fla. 1 DCA 2007). Conclusion & Recommendation to City Commission After a review of their protest, it is apparent that the arguments crafted by Suntex fail, and that their protest must be denied. Suntex's entire argument rests on their opinion and belief that they are the proposal in the best interest of the City. This argument is not based on any law or any proper justification. The Committee considered all three proposals and made a logical and reasonable determination based on the information provided. It was within the Committee's purview to recommend which proposal provided the best result for the City. Based on the above, I submit the following recommendation to the City Commission: (1) the City should deny the bid protest submitted by Suntex; and (2) the City Manager, or his designee, should be allowed to proceed to negotiate with the top -ranked bidder, RCI Group. Respectfully, Daniel Rotenberg, Director Department of Real Estate and Asset Management DR/JL Enclosures Ex. A — Protest by Suntex DREAM 160032 Subject to Approval Vi ttiria Mendez, Ci Page 4 of 4 ARNSTEIN Sv LEHR LLP Accomplished lawyers who understand your goals. April 12, 2016 Via Hand Delivery Mr• Daniel Rotenberg Director of Real Estate & Asset Management City of Miarni 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 Re: zoo F. Las Olas Boulevard • Suite woo Fort Lauderdale, Florida 33301 Phone 954.713.7600 • Pax 954.713.7700 www,arnstein.com Gary L. Brown Board Certified in Construction Law 954.713.7615 glbrown@arnstein.corn E-7 kodi 1- -A- Protest of Recommended Award — Request For Proposals No. 12-14-077 — Lease of City -Owned Waterfront Property for 1Vlarina/Restaurant/Ship's Store Uses ("Project") Dear Mr. Rotenberg: I. INTRODUCTION As you know, this firm represents Virginia Key SMI, LLC a/k/a Suntex Marinas ("SMI" or "Suntex"), the second ranked proposer, in connection with the above matter. On behalf of SMI, and in accordance with Article XI, Section 2 of the RFP, and relevant provisions of section 18- 104 of the City of Miami Code ("Code") which are incorporated into the RFP, on April 7, 2016, SMI filed its Notice of Intent to Protest the recommended award of the Project to Virginia Key LLC a/k/a RCI Group ("Virginia Key" or "RCI"). In accordance with. Section 18-104(a)(2)(e) of the Code, this protest is being filed timely within five (5) days of the filing of SMI's Notice of Intent to Protest. Pursuant to Article XI, Section 4(d) of the RFP and Section 18-104(f) of the Code, enclosed herewith is a cashier's check for SMI's filing fee of $5,000.00- For the reasons set forth below, the RFP process in this matter was both substantively and procedurally flawed. The City's application of its own evaluation criteria was arbitrary and capricious. Both Virginia Key and the third ranked proposer, New Rickenbacker Marina, LLC a/l/a Tifon Miami ("Rickenbacker" or "Tifon") were non -responsive and non -responsible, and should have been disqualified, leaving SMI as the only responsive and responsible Proposer. Even if Virginia Key and Rickenbacker were responsive and responsible (which they clearly were not), SMI should have received the highest score. Therefore, the Selection Committee's reconunendation of Virginia Key is legally unsustainable. Accordingly, SMI should CHICAGO SPRINGFIELD MILWAUKEE FORT LAUDERDALE MIAMI TAMPA WEST PALM BEACH BOCA RATON Arnstein & Lehr LLP is a member of the International Lawyets Network A.RNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 2 be recommended for award of the Project. Alternatively, the City has the right to reject all Proposals and re -issue the solicitation.1 II. BACKGROUND A. Request for Proposals On June 15, 2016, the City issued Request For Proposals No, 12-14-077 — Lease of City -Owned Waterfront Property for Marina/RestaurantlShip's Store Uses ("Project"). The solicitation consists of the RFP which includes Exhibits A-H, Attachments 1-9, Appendices A-K, as modified by subsequently issued Addenda 1-30, which are incorporated herein by reference. As set forth in Article I, Project Opportunity, of the RFP, the City sought a qualified proposer to "plan, redesign, renovate or redevelop, lease, manage and operate a mixed -use waterfront facility including, but not limited to, two marinas, a boatyard, dock master's office, ship's store, dry storage, wetslip docks, and at least one restaurant." The RFP required a detailed evaluation and selection process. Specifically, City staff was required to conduct an initial administrative review of proposals for completeness and compliance with the content requirements of the RFP ("Administrative Review"). Only proposals that comply with all requirements of the RFP can be deemed responsive. See RFP, Section ILR.. Following the Administrative Review's determination of responsiveness, separate committees appointed by the City Manager (a Technical Review Committee and Financial Review Committee, collectively "Review Committees") were required to conduct a technical review and financial review of proposals for feasibility related to planning and zoning restrictions, and financial capabilities, respectively, and provide written connlents and recommendations of their findings to a separate selection committee ("Selection Committee").2 See RFP, Section II.S. ' It should be noted that throughout the solicitation, numerous questions were raised by the Proposers and prospective proposers about perceived or actual zoning improprieties and Master Plan conflicts in the RFP requirements. See RFP, Addendum 7, p. 12-13; Addendum 8, Response to Questions 1, 5, 6, 7, 8, 9, 11; Addendum 9, Response to Question 4; Addendum 11, Response to Question 4; RFP, Addendum 14, Response to Question 1; Addendum 17, p. 8-12. See also Zoning Memo and Matrix, Exhibit "A." Should the City elect to reject all Proposals, prior to issuing a new solicitation., the City should attempt to minimize or eliminate these zoning issues and Master Plan conflicts. 2 Relevant here, the Selection Committee must be comprised of five (5) individuals that "shall have experience in realestate, finance renovation projects and/or experience with development projects of this nature." (emphasis added). The Selection Committee was comprised of the following five (5) individuals and one (1) alternate: Pamela Weller, Senior General Manager, Bayside Marketplace Rolando Tapanes, Director of Planning and Development, Miami Parking Authority ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 3 Thereafter, the Selection Committee was required to evaluate and score all Proposals. See RFP, Section. II.T. The solicitation's stated objective in evaluating each Proposal is to obtain the Proposal deemed most advantageous to the City by considering the financial returns to the City, the Proposer's experience and management history, the Proposer's and its consultants' capability, the Proposer's financial: ability and qualifications, the overall design of the proposed Project, and local participation. See RFP, Section IV, Proposal Objectives The corresponding, criteria and scoring requirements used to achieve this objective are set forth in detail in the RFP. The Selection Committee's determination must be based -solely on the criteria contained in the .. . RFP andno other factors or criteria may be used in the evaluation. See RFP, Section II.T. Pursuant to the RFP, the Selection Committee was required to elect a chairperson to prepare a written recommendation to the City Manager which may approve or reject the recommendation. See RFP, Section II.U. The ultimate decision rests with the City Commission which may accept the City's Manager's recommendation, orseeka recommendation directly from the Selection Committee. See RFP, Section ILV. Alternatively, the RFP grants the City the right to reject any or all Proposals, and have the solicitation re -issued. See RFP, Section II.W. Kevin Warthen, Right of Way Agent, Florida Department of Transportation Francisco Garcia, Director of Planning and Zoning, City of Miami Daniel Rotenberg, Director of Real Estate and Asset Management, City of Miami Alternate Nathalie Goulet, In House Counsel, Flagstone Property Group Other than Ms. Weller, the other Selection Conunittee members had little or no prior experience with marinas, 3 Significantly, a Proposer must meet certain minimum threshold qualification standards, and have minimum qualifications. See RFP, Sections VI.F(12), (13)(b), and (14)(a)-(b), respectively. 4 In accordance with Article IX of the RFP, the City is required to the use the following Evaluation Criteria and Scoring Values: Criteria Weighted Value Overall Project Design/Proposed Renovation and Activities & Projects 25 Proposer's Team Experience, Financial Capacity & Operational History 25 Management & Operational Plan 15 Financial Returns to the City 30 Extent of Local Participation 5 Total 100 ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 4 B. Proposals Submitted In response to the RFP, on February 1, 2016, three (3) entities submitted Proposals, to wit: Virginia Key, LLC; Virginia Key, SMI, LLC; and New Rickenbacker Marina, LLC. See Bid Security List, Exhibit "B".5 As reflected in the comparison matrix attached hereto as Exhibit "C," when considering the RFP's clearly defined criteria and stated goal of selecting the Proposal "most advantageous to the City," SMI was by far the most qualified firm whose Proposal should .have received the highest score. For example, unlike Virginia Key and Rickenbacker, SMI has an unparalleled and proven track record of designing, building, owning and operating marinas of similar scope and complexity.6 Further, SMI's financial qualifications and key financial aspects of its Proposal are far superior to Virginia Key and Rickenbacker.? Moreover, SMI's proposed design, unlike the others, uses a proven rack system and maximizes integration of the City's Virginia Key Master Plan for sustainability and "green" building 5 The Proposals of each are incorporated herein by reference. Any and all citations to Proposals reference .PDF page numbers, unless otherwise indicated. Being 100% cotnmitted to marinas as its sole business mission and goal, SMI/Stmtex has designed and built over 300 marinas; currently owns and operates 30 marinas with 8,029 wet slips, 4,257 rack slips, and 14 restaurants; has built the "greenest" marina in the world; and is the nation's largest and publicly traded recreational boat and yacht retailer. (See SMI Proposal, pp. 3, 4, 17, 34, 36, 37, A-2) On the other hand, Virginia Key/RCI has projections based on a system never built before; has built only 1 wet slip marina; has owned/operated only 5 marinas with 1,285 wet slips, zero rack slips, and only 3 restaurants. (See Virginia Key Proposal, p. 20) Similarly, Rickenbacker/Tifon has never bought or sold marinas; has never built a marina (wet or dry) in the United States (its primary experience is in residential and commercial projects); and only operates, but does not own, an existing marina with 376 wet slips, 300 rack slips, and only 1 restaurant. (See Rickenbacker Proposal, p. 4) 7 SMI/Suntex has over $200 Million cash on hand (See SMI Proposal, p. ii), while Virginia Key/RCI and Rickenbacker/Tifton have to raise capital (See Rickenbacker Proposal generally, Reference Letters in Addendums referencing bank accounts in good standing). Significantly, Virginia Key/RCI has to secure 75% financing. (See Virginia Key Proposal, p. 34) Further, SMl/Suntex has proposed payment of rent to the City from day one and committed $3.45 Million to the City for the MPA-owned parking garage (in addition to building a second garage at no cost to the City). (See SMI Proposal Proposed List of Capital Improvements to Property) On the other hand, both Virginia Key/RCI and Rickenbacker/Tifton have proposed significant rent deferrals of five (5) years and two (2) years, respectively (See Virginia Key Proposal, p 34; Rickenbacker Proposal p. 40) and have not contributed any funds to the MPA-owned garage as required by the RFP (See Tifon/Miami Proposal, Lease Base Rent, Section 4.1,.1; Rickenbacker Proposal p. 2). ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 5 concepts to provide world class LEED-certified facilitios.8 Notably, SMI is committed to small and minority -owned participation in the Project and involvement in the local community, unlike Virginia Key and Rickenbacker.9 Perhaps most importantly, as a true team player, SMI has never initiated litigation with the City, or any other governmental agency or landlord for that matter. In contrast, both Virginia Key and Rickenbacker (through their respective related principals and/or entities) have had major legal battles with the City over substantial monies owed to the City.10 When considering the long-term lease the City will have with the successful. Proposer and the anticipated multi -million dollar revenue stream it will generate for the City, SMI presents as a much sounder business partner than the other Proposers who have demonstrated their unwillingness to meet their contractual obligations to the City. C. City's Review and Evaluation 'Following an internal Administrative Review, all Proposals were deemed responsive. On February 29, 2016, the Review Committees submitted their findings to the Selection Committee. See Interoffice Memo, Exhibit "E". On March 16, 2016, the Selection Committee met to evaluate 8 SMI/Suntex.'s design uses "green" building components including the roof, walls, and solar panels. Further, SMI's design incorporates a nationally proven rack system. (See SMI Proposal, pp. 6, 11, 14, A- 6) In contrast, the design concepts for both Virginia Key/RCI and Rickenbacker/Tifton call for use of a large glass building with no "green" elements or renewable energy sources. See Virginia Key Proposal, p. 42, See Project Plan, generally. Further, Virginia Key/RCI proposes to use an automated rack system never built anywhere in the world before, while Rickenbacker/Tifton has previously built only one automated rack system before outside of the United States (in Argentina). See Virginia Key Proposal, pp. 252, 359; See also Virginia Key Proposal, Project Plan, Boat Storage, p. 8). 9 SMllSuntex has committed to a goal of 30%participation, and is heavily involved in community programs and organizations such as the Buoniconti Fund / The Miami Project to Cure Paralysis, the Veterans Program, MAST Academy, University of Miami, and Shake -A -Leg. See SMI Proposal, p. 8) Virginia Key/RCI and Rickenbacker/Tifton, on the other hand, have not committed to any minority or small business participation and have no discernable community involvement. See Virginia Key Proposal and Rickenbacker Proposal, respectively). I° For instance, Virginia Key's Robert Christoph (Bayshore Landing LLC) agreed to pay the City $150,000 in October 2015 after a City audit alleged the company owed $386,000 in unpaid "additional rent" fromover decade operating Bayshore Landing, And Rickenbacker's Aabad Melwani (Rickenbacker Marina Inc.) agreed to pay $750,000 to the City in order to resolve a lawsuit with the City that alleged he defaulted under his lease and owed $2 million toward a parking garage. See Miami Herald Article, Exhibit "D". These matters, standing alone, were sufficient justification to disqualify both Proposers. See RFP, Section II.N.(v.) as modified by Addendum 3 ("...the City shall have the sole and absolute discretion to deem any proposal non-responsive/non-responsible if the proposing entity or any of its members...) have any past, present or on -going litigation with the City..."). Beyond constituting a ground for disqualification, their propensity to litigate with the City is a negative factor that militates heavily against there and should not be overlooked, particularly on a project with the magnitude and importance as this one is to the City and its residents. ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 6 the criteria and scoring values assigned and to determine a rank order. On April 4, 2016, the City published its ranking and recommended award. See Interoffice Memo, Exhibit "F". As set forth therein, the Selection Committee ranked the Proposals as follows: 1. Virginia Key, LLC (433 pts) 2. Virginia Key SMI, LLC (426 pts) 3. New Rickenbacker Marina, LLC (418 pts) III. FACTUAL AND LEGAL GROUNDS FOR PROTEST This protest is filed in accordance with the RFP, incorporated provisions of Section 18-104 of the Code, and applicable Florida law. As an initial matter, the City's Administrative Review was flawed, as the Proposals from Virginia Key and Rickenbacker were non -responsive. Further, neither Virginia Key nor Rickenbacker was a responsible Proposer. As a result, the Selection Committee should not have scored and ranked either of them. Even if it was legally permissible to consider and score their Proposals, the Selection Committee's scoring --which resulted in a higher score for Virginia Key —was arbitrary and capricious, and reflects a disregard of the requirements of the RFP. Accordingly, the Selection Committee's recommended award should be rescinded. Based upon an objective application of the requirements of the RFP and evaluation of the Proposals, it is clear that SMI was the only responsive and responsible Proposer, or should have otherwise received the highest score, resulting in a recommendation for award. A. Virginia Key and Rickenbacker Are Non -Responsive All Proposers were required to present a definitive Proposal responding to all requirements of the RFP. See RFP, p. 1. See also RFP, Section V ("The Proposer must meet all required project components listed herein.")(emphasis added); RFP, Section VI.E ("Submissions received in response to the RFP shall meet all requirements specified within the RFP. Submissions deficient inproviding the required information shall be automatically deemed non -responsive and disqualified, and shall be ineligible for farther consideration.") (emphasis added). � 1 In order to confirm the completeness and compliance of the Proposals with all content requirements, the City was required to conduct an initial Administrative Review, and only those Proposals that compliedwith all requirements of the RFP should have been deemed responsive. See RFP, Section II.R. See also RFP, Section II.T ("...the Selection Committee shall evaluate each proposal deemed responsive."); Section II.0 ("City staff will reject any proposal deemed to be non -responsive..."). A non -responsive Proposal is defined as "a proposal that does not conform in all material respects to this RFP." See RFP, Section II.W (emphasis added). Further, the Selection Committee is required to evaluate Proposals based upon the criteria contained in the RFP. See RFP, Section II.T. 11 The Code similarly provides that a responsive bidder, proposer, offeror, or respondent is "a business which has submitted a bid, offer, proposal, quotation or response which conforms in all material respects to the solicitation." See Section 18-73 (emphasis added). ARNSTEIN & LEHR LLP Mx. Daniel Rotenberg - April 12, 2016 Page 7 Virginia Key and. Rickenbacker are non -responsive for the following reasons, including but not limited to: 1) Both failed to make the required parking garage contribution; 2) Both failed to incorporate sustainable design elements required by the RFP; 3) Both made significant changes to the proposed Lease; and 4) Both have past litigation with the City of Miami. Each of these grounds .is discussed in turn below. 1. Failure to Make Parking Garage Contribution One of the critical components of the RFP is a Proposer's contribution of at least $3.45 Million to a parking trust fund for a parking garage to be built and operated by the Miami Parking Authority (MPA), with funds being tendered at the time of the Proposal submission. See RFP, Section I, p.8. See also RFP, Section III.C. ("However a total minimum of 230 parking spaces shall be required (for a total minimum parking contribution of $3,450.000.00 to be paid by cashier's check or money order).... This parking garage contribution will be deposited into an escrow account whose designated use shall be applied to the Parking Trust Fund.")(internal parenthesis in original)(emphasis added). Neither Virginia Key nor Rickenbacker made the required contribution. And Virginia Key proposed to build, operate, and collect the revenues from its own separate garage32 which directly conflicts with the RFP's explicit requirement that the parking garage contemplated by the RFP he "a municipal parking garage operated, directed and maintained by the MPA." See RFP, Section I, p.8 (emphasis added). See also RFP, Section TII.C. ("...the City believes it is in the best interest of the Project and the public to...utilize a new proposed parking garage facility, which the MPA shall build, operate, and maintain.")(emphasis added). The City could not have made this requirement elearer.ls SMI also adopts and incorporates by reference the factual and legal arguments concerning Virginia Key's non -responsiveness relating to the garage, as set in Richard A. Perez's letter of March 24, 2016. See Exhibit "G." The failure of Virginia Key and 12 See Virginia Key Proposal, Lease Section 4,2. 13 See Addendum. 9, Response to Question 3 ("The City and MPA shall retain total discretion over the location and design of the parking garage, which the MPA shall build, operate, and maintain, and for which the Selected Proposer shall be required to contribute a minimum amount as required by the terms of this RFP.")(emphasis added); See also Addendum 26, Response to Question 3 ("The parking garage is currently anticipated to be built on the cut out parcel outside of the RFP Lease Area because it shall be built, operated and maintained by the MPA The Selected Proposer shall not construct, operate, or maintain the parking garage- Under the City Charter this is a task of the MPA.")(emphasis added). ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 8 Rickenbacker to provide the required parking garage contribution renders their Proposals non- responsive. 2. Failure to Incorporate Sustainable Design Elements The Proposals of Virginia Key and Rickenbacker should also have been deemed non -responsive for ignoring the sustainable design elements contemplated and required by the RFP. As stated above, the design concepts for both Proposals call for use of a large glass building with no "green" elements or renewable energy sources, unlike SMI's proposed design which uses "green" building components including the roof, walls, and solar panels. 3. Significant Changes to Lease As set forth in the attached Lease Comparison Matrix, Exhibit "H", Virginia Key and Rickenbacker made significant changes to the proposed Lease" which is not permitted by the RFP. See RFP, Article VIII ("In order to be considered for the award of this RFP, the successful Proposer must accept the Lease attached herewith as Attachment 9. Certain provisions of the Lease shall remain non-negotiable, including, but not limited to, any and all items required by this RFP, as well as those provisions relating to indemnification, holdharmless, insurance, and guarantees.")(emphasis added). These changes present material deviations to the Lease proposed by City of Miami making both Proposers nonresponsive. 4. Past Litigation with City As discussed above, both Virginia Key and Rickenbacker have been involved in litigation with the City which is a ground fox non -responsiveness and disqualification. See RFP, Section II.N.(v.) as modified by Addendum. 3. Rickenbacker is also non -responsive for the reasons set forth in Carter N. McDowell's letter of March 22, 2016, which SMI adopts and incorporates by reference.15 See Exhibit "I." 14' For example, but not by way of limitation, the following changes were made: Key Biscayne modified Sections 1.3.19, 4.7, 4.8, 5.3, and 5.4, Article 8, Sections 9.1, and 13.2/14.2, Article 15, and Section 16.1, which relate to significant or non-negotiable aspects of the Lease such as gross revenue definition, audit rights, payment and performance bonds, removal of improvements, insurance and indemnity obligations, right of termination, special assessments, and default. Rickenbacker modified Sections 4.1.1, 4.2, and 16.1 which relate to significant or nonnegotiable aspects of the Lease such as minimum base rent, parking trust fund contribution, and default. [s Significantly, Rickenbacker's Proposal: - violates the 50! City Charter setback requirements for buildings; - violates Flood Zone requirements, as shown on its Project renderings; - lacks detailed, accurate and complete architectural plans and elevations; ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 9 B. Virginia Key and Rickenbacker Are Non -Responsible The RFP sets forth threshold qualification standards, and provides that "[e]ach Proposer shall meet, .. (the following) minimum requirements": Either of member of the Project Team and the Proposer (the latter as applicable) or its staff "must have played a leading role with principal responsibility for the design of a project(s) of similar size, complexity and constraints as the facilities and uses proposed." See RFP, Section VI.F.(12)(b)(emphasis added). Any of the principals or Project Team Members must have successfully developed...at least one project of similar size, complexity and with similar uses and constraints. See RFP, Section VI.F.(12)(c)(emphasis added). The RFP also provides that: The Proposer must demonstrate that it has the applicable number of years of experience in the management and successful operation of marina, restaurant and any ancillary facilities of equal size and complexity as detailed in the threshold standards in Section VI(F)(12) of this RFP... The Management/Operations Team as a whole must have the requisite expertise, financial and management capability to develop a marina/restaurant destination facility of similar scope and complexity as identified in the project objectives. See RFP, Section VI.F.(13)(b). The RFP also provides that the "Proposer and/or its consultants shall at a minimum demonstrate professional expertise in (the following) disciplines": (a) Architect: The Proposer shall have at least one (1) architect...(which) shall _ have substantial experience in the design and renovation of the specified Required Uses. contains conflicts in the actual number of slips shown in the plans (i.e., 603) versus the number of slips listed in the narrative of its Proposal and in its financial projections (i.e., 840); and provides three (3) different numbers for the total parking count (Le., 174 ground parking spaces and 1,662 spaces in the parking garage per the plans versus a total of 840 spaces per the narrative). ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 10 (b) Landscape Architect: The Proposer shall have at least one (1) landscape architect... (which) shall have substantial experience in the design and renovation of the specified Required Uses. (d) General Contractor and/or Construction Manager: The Proposer shall have at a minimum one (1) General Contractor... (which) shall have substantial experience in managing and performing construction of facilities of similar type and scope the Required Uses and ancillary facilities described in the proposal. See RFP, Section VI.F.(14)(ernphasis added). A non -responsible Proposer is "one that does not have the capability in any or all respects material respects to fully perform the requirements set forth in the proposal or Lease or that does not have the relevant experience, integrity and reliability which assure good faith performance." See RFP, Section 1I.W (emphasis added).16 The RFP mandates that the City reject a Proposer that is non -responsible. See RPP, Section II.W ("City staff will reject any proposal deemed to be, ..not responsible,")(emphasis added). Virginia Key and Riekenbacker are non -responsible for three primary reasons, including but not limited to: 1) Both lack the necessary qualifications and experience with prior projects of similar scope and complexity; 2) Both lack the financial ability to perform the requirements of the RFP; and 3) Both have past litigation with the City of Miami. Each of these grounds is discussed in turn below. 16 The Code similarly provides that a responsible bidder, proposer, offeror, or respondent means a business which has submitted a bid, offer, proposal, quotation or response, which has the capability, as determined by the city, in all respects to perform fully the contract requirements, and the integrity and reliability of which .give reasonable assurance of good faith and performance. See Section 18-73 (emphasis added). The Code also lists several factors for determining non -responsibility, as follows: (1) Availability of appropriate financial, material, equipment, facility, and, personnel resources and expertise, or the ability to obtain them, to meet all contractual requirements; (2) A satisfactory record of performance; (3) A satisfactory record of integrity; See Section 18-95 (emphasis added). ARNSTEIN 8 LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 11 1. Lack of Qualifications and Experience As stated above, Virginia Key's Proposal is based on a system never built before, and it has built only 1 wet slip marina in the past. Further, it has owned/operated only 5 marinas with 1,285 wet slips, zero rack slips, and only 3 restaurants. (See Virginia Key Proposal, p. 4) Having its primary experience in residential and commercial projects, Rickenbacker has similarly never bought or sold marinas, and has never built a marina in the United States. Further, the single marina that it has ever operated contains 376 wet slips, 300 rack slips, and only 1 restaurant. (See Rickenbacker Proposal, p. 34) These Proposers' qualifications and past experience (or lack thereof) in designing, developing, building, owning, and operating marinas falls fax short of the RFP's minimum requirements. Clearly, neither Virginia Key nor Rickenbacker has prior "substantial" experience with similar projects, as required. For this reason, they should be deemed non -responsible, as neither has "the relevant experience, integrity and reliability" or "satisfactory record of performance" which "assure good faith performance" of the RFP requirements. 2. Lack of Financial Ability Even if, based on past experience, Virginia Key and Rickenbacker could be considered minimally qualified, both Proposers lack the financial ability to successfully complete the Project. As stated, both must raise significant capital (unlike SMI which has 100% cash on hand), and Virginia Key proposes to finance 75 percent of the Project costs. Virginia Key's expectation to obtain this level of financing on a marina project is unrealistic and evidences its apparent misunderstanding of the banking market. Virginia Key has presented no guarantee that it will be able to obtain the necessary financing. Accordingly, neither Proposer reasonably has the "appropriate frnancial...resources, or the ability to obtain them, to meet all contractual requirements" and is therefore non -responsible. 3. Past Litigation with City As discussed above, both Virginia Key and Rickenbacker have been involved in litigation with the City which makes them non -responsible. Rickenbacker is also non -responsible forthe reasons set forth in Carter N. McDowell's letter of March 22, 2016, which SMI adopts and incorporates by reference.17 See Exhibit "I." 17 Significantly, Rickenbacker's Proposal provides: an unrealistic two-year timefranre for the design, permitting, and complete construction of its entire project; substantial rental projections for second and third level retail uses at unrealistic rental rates and projected that those spaces would account for as much as 25% of the percentage rent it would pay the City; and ARNSTEIN as LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 12 The Selection Committee's consideration of Virginia Key and Rickenbacker., despite their clear lack of proven experience and financial responsibility, as defined by the RFP and Code, as well as their litigation history with the City, constitutes a material deviation andirregularity which is prohibited by Florida law. While Florida courts have held that a public agency may waive minor technicalities, minimum responsibility criteria as defined by the RFP are not minor, and go to the heart of each firm's ability to provide the services pursuant to the RFP. The City may not disregard the terms and conditions of the RFP and rank and/or award a contract to a non - responsible Proposer. See City of Sweetwater v. Solo Construction Corporation, 823 So. 2d 798 (Fla. 3d DCA 2002); Emerald Correctional Management v. Bay Cnty. Bd. of Cnty. Commissioners, 955 So. 2d 647 (Fla. la DCA 2007); Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So, 2d 1190 (Fla. 2d DCA 1977). A decision to award the contract to Virginia Key (or Rickenbacker) would not be considered "an honest exercise of (the City's) discretion." Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982). To the contrary, it would arbitrary and capricious, based upon an unlawful disregard of the RFP requirements. See Marriot Corp. Metro Dade Cnty, 383 So. 2d 662, 665 (Fla. 3d DCA 1980)("the public authority may not arbitrarily and capriciously discriminate between bid.ders, or make the award on the basis of personal preferences"), quoting Hotel China & Glassware Co. v. Board of Public Instruction, 130 So. 2d 78, 81 (Fla. lst DCA 1961).15 While the City, as a public authority, has wide discretion in awarding contracts, it must act in a reasonable manner. See City of Sweetwater v. Solo Const. Corp., 823 So.2d 798 (Fla. 3rd DCA 2002). To proceed otherwise would be to undermine the public interests of using the competitive bidding process "to secure fair competition on equal terms to all bidders," Liberty County, 421 So. 2d at 507, and to remove any impropriety, or the appearance of impropriety, in the award of public contracts. C. The Selection Committee Improperly Scored the Proposers As set forth above, Article IX of the RFP sets forth specific evaluation criteria and scoring values. Each Proposer may obtain a total score of 100 points based onthe specific criteria. As reflected by the score sheets and tabulations (See Exhibit "T"), the Selection Committee failed to properly andfairly allocate points to each Proposer. Inexplicably, four of the five Selection Committee members scored Virginia Key higher than SMI even though: a) SMI had vastly greater qualifications, experience, and operationalhistory with marinas; b) SMI's financial profile was far superior in light of its ability to complete the Project without any financing, its that its capital budget is approximately $27,000,000 loss than that of SMI and approximately $47,000,000 less than that of Virginia Key, despite the fact that the development programs are similar in size and scope, calling into serious question the validity of its capital budget. 18 As stated in Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 38 (Fla. Pt DCA 2006), "[a]n action is 'arbitrary if it is not supported by logic or the necessary facts,' and 'capricious if it is adopted without thought or reason or is irrational.'" ARNSTEIN 8s LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 13 proposed payment of rent to the City upon Lease commencement (as opposed to rent deferment), and its ability and commitment to make the required parking garage contribution in addition to building a second garage; and c) SMI's design was the only one that consistently utilized required sustainability elements.19 This is a clear indication that the scoring was "not supported by logic or the necessary facts" or was assigned "without thought or reason". Hadi, 927 So. 2d at 38. As such, the Selection Committee's actions were arbitrary, capricious, and inconsistent with the requirements of the RFP, IV. RELIEF SOUGHT Based upon the forgoing, neither Virginia Key nor Rickenbacker should have been evaluated. As referenced above, consideration ofthe .Virginia Key and Rickenbacker Proposals, which were both non -responsive and non -responsible, was a material deviation and irregularity which is prohibited by Florida law. Moreover, an objective evaluation of SMI's qualifications, experience financials, and proposed design, as compared to the other Proposers, would result in a recommended award to SMI. Thus, the April 4, 2016 recommended award to Virginia Key is erroneous and must be rescinded. While SMI recognizes that the City has invested a substantial amount of time and resources in preparation of the RFP and solicitation of the Proposals, it nonetheless is compelled to submit this protest for the reasons stated. V. PERTINENT DOCUMENTS In accordance with Article XI, Section 2 of the RFP and Section 18-104(a)(2)(c) of the Code, included herewith are the following pertinent documents: Exhibit "A" — Zoning Memo and Matrix Exhibit "B" - Bid Security List Exhibit "C" - Proposal Comparison Matrix Exhibit "D" - Miami Herald Article Exhibit "E" - Interoffice Memo from Review Committees to Selection Committee dated February 29, 2016 19 Basedupon an objective and proper allocation, SMI's total would have been 23 points higher for the first two categories (Overall Project Design/Proposed Renovation and Activities & Project; and Proposer's Team Experience, Financial Capacity & Operational, History) than Virginia Key (i.e., 4 points for Mr. Rotenberg, 9 points for Mr. Garcia, 6 points for Mr. Worthen, and 4 points for Mr. Tapanaes). Given there was only a 7 point differential in the final scoring, SMI should have been ranked the highest. ARNSTEIN & LEHR LLP Mr. Daniel Rotenberg April 12, 2016 Page 14 Exhibit "F" - Interoffice Memo from Selection Committee to City Manager dated March 16, 2016 Exhibit "G" - Letter from Richard A. Perez dated March 24, 2016 Exhibit "H" - Lease Comparison Matrix Exhibit "I'y - Letter from Carter N. McDowell. dated March 22, 2016 Exhibit "J" — Selection Committee Score Sheets and Tabulations Additionally, SMI incorporates by reference any and all documents in the City's file for this solicitation, including but not limited to the RFP (including all Exhibits, Attachments, Appendices and Addenda thereto), Proposals, memoranda and communications set forth therein. W. CONCLUSION For the reasons set forth herein and applicable Florida law, SMI protests the recommended award to Virginia Key and respectfully requests that SMI be recommended for award of the Project, as required by the RFP. Alternatively, the City has the right to reject all Proposals be rejected and new solicitation issued. Respectfully submitted, yL. Bra Miguel A. Diaz de la Portilla GLBlnat Enclosures cc: Daniel Alfonso, City Manager (via email) Rafael Suarez -Rivas, Assistant City Attorney (via email) Todd Hannon, City Clerk (via email) Aldo Bustamante, Assistant Director — Real Estate and Asset Management (via email) Jason Spalding, CBRE (via email) Virginia Key SMI, LLC (via email) DANIEL ROT,ENBERCLIORECTOR OF REAL ESTATE & ASSETMANAattvIENT VIROrN1A KEY SMI. LLC. (SU'llTEX) Petitioner, CITY OF MUM, a political subdivision of the State of Florida, lind VrROIN1A Y. L Emend -era, IN RE: THE PROTEST OF THE MARCH 1, 2016 MANAERS RECOMMENtIATION OF AWARD OF VIRGINIA KEY MARINA REQUEST FOR PROPOSALS NO. 12-14477 VIRGINIA KEY, LLC'S RESPONSE TO VIRGINIA lay LLC'S PROTEST OF RECONIMENDED AWARD Virginia Key. LLC, also referred to as RCI (-Arm hereby responds in opposition to petitioner Virginia ICey SMT. LLC pia Swam Matinae ("Suntex") Protest •or Recommended Award relating to. Virginia Key Marina Regmt for Proposals 12-14-077:Fr) thai was. :id by the City of Miairil (the -"), and -states. the Thilowing! ARIEF SUMIVIARY Sttntex has never deyeloped Ir built aiv, marital facilities in Fiteda. Suntex's primary busiries is acquiring existing previously-tievelopbd properties. Surttex has never developed' Or built any marina faCilitidg eompliance with City of Mirool, Miami -Dade County or fiAMI49342&1Q0 74 i133/4159 SUPARERO EAIftA PRICE. & AXELROD LtP 14bt i$Ox%ell Avonhe, SiA6 2301tkiVian-A, r piorida laws :and regulatory ohms .and in particularthe Biscayne day Actual Prese v . Suntex s Percentage. Rent proposal to the City is in four .(4) ditferent places in its p6ti e to the and four (4) are .drff-erent amounts! Stitntexrs prop o e parking to uld violate the City's height restrictions. in one place: in its proposal? Suntex s . that it will. provide 151 poking spay s aid in an titer only 150 parking. spaces In one place in its pi•opOsal, Swa promises to develop 64,000.sq. ft, ofcomnaerrial-;spaees.and .in mother place, tmt x Iowa i its promise to 1 , OO sqt ft. f Inertial Yet its cow leer says 241,5'00 sq. ft. and its financial projections say the cote ier iai space totals 240,500 sq. it Assuming Suratex could develop .its plan and its financial projections were accurate, RCA would still pay the City $6 rrtiil ntt more than t iexa. Yet, Suntex 'gttesttc» its failure tcortvinee the Seleetk it cutrima:ttee and the City Manag r to award the Virginia Key Marina leas to Sth ter; Su tex',s bid prn st is ll .d Gila all of the customary, aid own baseless, complaints made tip some facts to tiy to support its attricka, Suntex demands that the City award 8untex the Virginia Kay arina lease for a proje with..onamercial development, the :size f which neither Stintex nor the City Sows, with of a disappointed. bidder parking that rmy or is ay .not main sufficient vac , aiad mot at that is anyone's gu Although it is o% °vie 1. eturn to the City of an tal ate tiaat is at best $d- million less than Rel., y the lection Committee and the City IVIanapr did not nd unt x for the award, we have explained t re fully'below that:. i ss tacks are surely fait grounds, to mord - Virginia Key t StIiitOXIS finish behind Iwe founded and lolly susta The Selection Committee and the Cityas Manager Rectum to n must b adopted and -Eipproved. MIAMI i3r4s69 i#' 16t tt /8,As ti _ 9 I. VACTS I. On June 15, 2015, the City isud Request for Proposals Ni. 12-14-077- Lease of City -Owned Watetfrorit ProporV for Marina/RestaurantiShip's Store Uses, 2. The. RIIP required a detailed evaluation and selecti n process. Suntcx did not protest the RYP, its specifications, it evaluation criteria, nor its stipulated oval- nation process, Therefbre, Suntex waived any righi to do so now. Presumably, Santo( was okay with the process; they just don't like the outcome. 3. Proposals were submitted by three proposers: lel, Suritex, and New Rickenbacker Miami, LLC d/b/a Titbit Miami f4Tifon'). 4. Ret is a lesponsible proposer that submitted A timely arid fully responsive prposal to the RFP. Ref sithinitted e complete and detailed proposal with -all -the required forms and drawings, containing all the information requited by the RP?. 5, The City Manager appointed members of a Technical Review Committee and a Financial Review Committee to review the proposals. Both 'provided written comments and reconimendations of their findings to the Selection Committee. 6: The Selection Conunittee invited all three proposers to participate in oral preserttations. Then, the Selection Committee evaluated and scored all tie proposers in accordance with tile Pcr-,'P., City regulations, and Florida law. The Selection Committee determined that the :RCI plan and proposal offered the City the best overall project design, the best 'experience, the -hem financial capacity and operational history, the best ,management and Opuretiontl plan, the best financial 'returns to the City, and the best local participation. Suntex was milked number 2 by the Selecti a Committee; NIRMY40:63418S0741831:4680. OrL711,1 a1JMBERCI AENA PRME, & AXELROD LLP 1460 Bridgli Avaritm, Suite 2360, Mleimt. FL 33131-N66 Tifon was ranked rturriber 3. Thus, itel w reco ed for ward by the Selection Committee and the City Manager. 8. Following the issuance of the Manager's fleconunendation, 8untex filed a bid protest, raising for the first time claims. regardir4 theRFP evaluation process that was outlined in the RFP, attacking. 'RCN and Tifon's proposals, and •attacking the Selection Committee's scores. STANDING 9. To file a bid protest •that the City can consider, Florida law lquires Stilnex to jive legal goading, riot just be a co niplaining disappointed pro:poser disgruntled tibut the .otatme: Piwtos Carroll c� k v, Mort*. Keys AqueduerAwit, 400 So. 2d .524 (Fla. 3d DCA. 1981). Suntex:trtust provide that its proposal legally revongive to the RP P requirements. id; toe•tilsoliehel-v,. Arida, Ca $t No 954290BID (DOM May 5, 1995) (explaining that ill order to have standing hi a :bid protest. action, the party nitigt have submitted a responsive bid). Stintex initst proiie .that its proposal does not suffer the Saint infirmities that .it claims 1WIl's: proposal surfers, int '1 'Irv, inc., v. Dep 't offleatth and 1?vitab„ Senis,; 606. 'So, 2d 380 (Fla. 3d DC. .1992) Va party proteAnganaWai.d '.to the tow hiddtr ningt be .prepared "tti, show not only that the low bid was dOcient, but plug also show that:the protestoes nwri bid does not suffer from the same. defielency'"). Scant mitStprovidelhat it has not WaiVed any of its newly asSerted charges. Sunteit cart prove NONE of thig, As such, Suarez lacks legal :standing' to protest an award3J Jo*Ja law is clear that 8tititMe a protest thirst lye dimigsed. 10. frowever Florida law is evally elear that :.g..01• has legal stoding tcintoone 'in untex'..4 attackgon the atyJ f MT, As theirepoinniended award recipient lTICI is a patty interested irt the outeome or this bid protest proceeding and liatantartglef ehaltettge StliWOOS pririteXt, ,NCS.Pearom Inc. v Dip fEthc. .Case,No 04-897613.11% 2005 WL.310776; MIAMI 496342.8 (3 7410/4'00 4 $0..ZfN sUMBEPG 13AEN.A. PArCE & AN:51AtCY0 LIP 14-543. Eirt1011,eNvotv:,, 000 Zi09, Mi6tii, :FL 13i.M.441311 1186 (Fla. DOAIT Feb. 8, 2005) (holding that first -ranked bidder had standing to intervene), UL SIINTEXIS PROPOSAL INCO1V1P14EIUNSIPLE. AS TO AS TO :SCOPt ORIN-TA-I, PAYMEN7S 11 •Suntex's proposal contains -.some •very material inconsistencies that wake its fit -vandal proposal d tile proposed scope Of Its projeot ineotaprolleasible wd therefore ineligible to be selected Ibr an award. 12. For iratice, SuntoX proposes four(4) different Pembina& Rot payments,, • On pap A-19 of its proposal, in its summary tbrin, Syntex proposes a Percentage Rent or $829,086—a dollar amount, not a percentage, VIIL irsoPDSED REM' MAW DIST AND, PEW:TN-Li-O.rc» G1OS$ PROKUP LiUS/ Mt -Lc -TAU (MT: 4154:kva SION6 On A-69, Suntex proposes (via a lca e markup) a Percentage Rent ofs„ • •Three percent (3%) of gross revenues for the restaurant if operated directly by the Legsee, Dr other negotiated pereentap of the Lessee's income received float a Sub -lessee or assignee restaurant at Set forth in the applicable sublease or assignment, cif the restatrant is oerated by a third party; a,•Six -percent (6%) for the marina operation (non -fuel); • Five percent (5%) on ,gyoss fuel profits (gross fuel profit's deftned kt gross -fuel sak ,piice per tIllion minus cost of delivered hel per gallon); and • Three percent (3%) for the ship's store c,r any other 'marble related sales other •than those described above. tilitAM1 4904283 74183/46889 33 SLOA9ERG BARNA RECE & AXELROD LLP 1459 Brtekitlf ova,: B&W, 2390, Miami, FL 3,1131-345G The P ar t± eraskiff t i t#14Aitiettigrcentleel 6fGrotog :e' truscthe L r yyRCVAGC R.1L HALLpi4+1y3fC1 1,1Et1HA. 4ors S7.{l vti1 not tx d.:the ti�riftmt in tad Pk, MIA i1.476 ,1:074 4 mte AttLakylo filittivero,hdpErvalad, 28 of its proposal, in the Pinanclrig Plan, Sulnex- different t rent percentages that will include the following, without mention of the restaurant revenue: 6% of all marina relatedlht e reVenue t` all 'base ieitt lete r me from :third parry Wirt tt + ptu ttt income frog` third party tenants f gross profit of Intl stiles all mercl)andise income i t :ut~ mn%*Nli,* t9e'd'#Stt3'Wen't, r In i*sac.a tvA4-4aiitel rot£ rim '�: ciao Piopitarcv. <' ith:izy 4i4.tirst 1F 3*-4 p.e"tot#{ z s f • At diP.*.*ardi Tilt MOC.2M3.e sse 4rtskr r acf.ri s1 -rovotit.:vvort, finriallfe,1 On page 32, i, its finanelal calculations, unto nitpercentage atebased what wm included n page .e , no restaurant), and in no does the total percentage rent to the City equal the $829,026 that it. list on page fl In short, Suntvx pressed four diet percentage rents, with no indication'Of Which one -counts; Sang giving itself the opportunity to choose which among its three proposed rests is that mums s is clearly an unfair competitive advantage, thus it t be'considered tiar award_ rL.z1 titi E i AENA i E SAX a.L .P 146 tic a Av rttey & r; 251X1. 3ti3rN Pi, 31 :#ait Zi iY!ri- !FR§ YS 1. sbs ]C32t:iie 31i Ana fetid:Pet it* erly ti4•*te eiiC, e A3e,_ f�i A1F ixiazda3� 7€1.> Syria, 4 ri; t R $ 3i % k "77 1.3i1T2fr 10•43;i74 [u' 43ip a 00 :ri tAiliiii 3d laiyiii 3,1 ## i ii3 I`t E w Th , there is the pr hi tcd ale*ibil ty" l rnugh i e s sth untex tselfunfairly'. To tot the parkingdemi of its plan. nntex would raced to provide between approximately 753 end 3,240 parking spaces depending upon which program number one chooses to use, The garage will also have t provide 200 spaces for the Rusty Pelioan .o the garage would need to be more than 7+ levels in any case, making it taller than Marine Stadium, The I `P prohibits proposed, buildings from being higher than the crown of the Miami Marine Stadium, which is 65 feet (RFT, Section IV D, page. 23 Addendum VIII, Questim 8, page 4), Sunitex states on lam 15 of: its proposal narrative that it will provide 150 rk n paces; rrwil %Int, poinkt ViC Sant& lists on page 22 that it will develo 4,000 sr.. t f e ercial space,. hot 6ti page A 1 , .lts li 17,500 of commercial space. MIA t1 344I 4I8d 7 • g•fl N SuM11 R0 I3A-PiN $ a t t doll Ave1uem if :2 3 rl Wet 190313m Pack Stb ... peaty 6 slips Ce"rotiviet 1 'Gilt dse NaA ut't r i th6 easpertitegvi4elitter z mac? sv• COrisy yy } Showtootr§ anti Kirin* s t t rsr ▪ Crattsbvet d sue* taY: cia ltttg atructure-lto ci smittOr33 kit audit p-ttif,Mtit tis G re ct 111arArs Flne&t 10X0 fir ittkoy:ya t ti • top of parkIng strtitAir5 • r, i t t t a tf( a Fa xlti. + , vwera[l R i tat S t te,prPrOMAr#e ED LIT OF CAPIT. �tra Metifig Durk 45.4 a �Nrtr op int found,` iddef to u government cornratt who mattes material t t t t s in it proper§al taint t e a4vi)rd to such a bidder, isili3Stattment8 in bid proposal prevent gover/neat offkkl lb trim; determining the 'best value to the overn/I-sent," Sumo 's proposal tot -rains +d t- requtitid retie:.: te dle Art Boat MIAMI 4s i x1 1 Unifed Star 50 A L44a4•4ill 4 h rt 1 PRfpE & r Xt 011.ILP ..,�e ono i 0, Mimi; FL 3 1 =-3456 deficiencies and inaccuracies that. call into quostiOn the financial return .it is offering to the City and thus prevents a .tite •amounting of the Vette:that the City Will &Min from Swift's proposal. sueh, Sontexis proposal cartnot: fOrm 'the basis ofm .award, iV SUNIEX'S DrATICIENT 1LAN S AND REND.EINGS PREVENT TUE: CITY PROM AWARDING' LEASI:T •sixTrts 15. Any One .of the futon. described below„ viewed. independently, supports a determination that Surttex's .bid protest :should. be rejetta Takeo together, a decision to ti*aM the Virginia Key lease to guntox woold not be cOnsidered 'an honest exercise Of idle City's] discretion." Liberty City v, ,paxter-1,5' 4sphcsji i(1 Concrete, Inc.4421 So. 2d 505, 507.(F1a. 1982), arid is &bins*. and :Capricious, •ste .1144011-1)6ide Cotinty Church.ii rower, 140..4 •115 So • 2d 1084, 10R9 (1%, 3d .DCA 1908): SUNTIM •suumrtra.INACCUIUTE AND DittICIENT MAD P.SNDEPINGS 16. Sontex failed to submit the required detailed plans at the.required settle, .pmpoggi Aripeodix pages A-6 through A-14 as oompared to RFP yequirements inSection VI .B on ,page 24 and: SitbSeetions (11X6) (a=b) page 29 arid Afi. Purther, Suitor did not tibtait NOVarato. rOb*tllVs its$ or aceurate.and complete architoettnal Plana and ClevationS, Why does this matte Soma's estimated financial tetutus t the City are baSed Wang and :renderings that AO.:eti tkanciiinpd closely art tocaled to bo inaccurate at best and tui.N1004ing and •dcoptiv(h at worst, In too 'Etib$erve of an economic advantage, a de/fide/ley is n minor ftrogultiiity; but who :defictioey gi*A pro.poser soriit. econOttrie and eninpatilive advantage -or ".giOs 'nip bidder ft ttibatautia1 advantage over Vic eittior bicid-eo litt4 thereby restricts :or stifles competition," as vortid be the case in this Ittaimilth ntx that deficieney diet be waived:. Tpvpalrat Foods. v giqte Dvarlinott of Genetni Servicas.,49 $p„ 2,id 50, 52 MIAMI 496342a 074 014,63t0 1Z!N SUMV"ER.13 fq,L-NA PRICE & .A.X1n,k01)LLP 1,4i9 Avi4ntiti, Solie MC, Milo% .FL 'M131445\3 diett440601#40$044481 and Rehabilitative Services,Case No, 93-3951111D (Fla. 00A1-1 August 24, 1993). 17, St te Suntex *died to address existing applicable federal, state, and county regulations, not to mention the City Charter -required 50 foot setback and the Miami-21• Zoning Code, Suntex's plan will need to be re -designed ill mariner that would ultimately reduce the fillatidtil MUM that it p-romiTed to the City, Itt failing to conform to fliood one requirements (Which is discusnd on page 13 of the RIP), Ming to respect the Charter -required 50 foot setback requirement, and failing to niise ot.ptovide. a continuous .pedestrion promo-1We, Suntek was able to design: a plai that purports to ttaxiinize the site and allow for extensive retail and cotiiinettial space :and boat storage eapiteity.In feet, it dOettot. The sitbstantial majority of Sttatex's proposed retail space unlawfully invades the .50 foot setback mandated by the City Charter, Sulitex Cannot achieve the stip counts it cialins itt its prOpostil without violating the :applicable. height limitations and woujd further have io tedum lho slip counts to beable to reach its proposed retail• square fetitage, [Sontex pian$ Appendix .paget A.6:tilfougti 15. $untex.i$ proposing the use of au already outmoded forklift system hilts proposed dry met •This System simply cannot achieve the density of slips Suntex claims in the. footprint and height. limits available pursuant to the -RA, In order to actagilly build the pr*--ct, .Suntex rritiSt lake the applicable regttlatIotit. and PX.P IhnitatioriS into; de:mutt, Which wittid itegilhtIt plans to Change, signiFitly reducing the available revenue-generatitig space. of its piitri„ 20. gurttex?s: plans were.not sufficiently detailed. Seetion VI F(6) of the ler requites. 44detalled Illustrative dm-Mille and i!'a site plait showing the proposed layout Of. fl.,project. coniporients„ including all ancillary facilities: to :be .provided, including the size, MIAMI 49042 r10 7=11814089 t3t,,0480q(1 B.A5t4A PRior A AXELRCO AVM1t), Suite 2300. MOM, FL 33iS1 -M66- di:pensions and ::configurailon of buildings to be reconstructed 'andlor renostatioris tRIP Sectioo VI KO, page 29). Baged on what SWIteN glibmitted, it is impOssible tO doubt all tbe boat slips or parking spates that it datib0 :it will povid. 21.. Naha thee :are various RP? rogniretnents With •which Rumex did not :comply, The tuipited Oats at varieata scales welt not. included in Suntex% 3tibinittat. book: clr its prtnted boardRPP, page•29), $untees: design does pot avoid existkig Ooat Show tdiitgi nor doet it provide the apace fey- tentS orvsite, all of .whicitt re neewary to be cattOtible wit the toat Show,. Ittg roporal did 11,0-tin-elude a givrago plan cart Seettim VI:F(6)(A), page 29),1natketing ptan (ktP., Section VI V.(g)(b), page. 2.1), or evidence or the goalirtoatiOng of its arehlte:et. (RFP, Seetion VI F(4)(13), page 35), While these otnissions may be have been waived by the City ag minor irregularities, taken together with the net that Staite)es numbers Let :not ...verifiable clearly leads to the cortelitsion that Suntex, cannot be:properly aeleeted or awarded the OF. 22, Further, it is impossible to service 840 boats using forklifts in the -develo.pable footprint of the. proppay,as gutitex prOpodS, withotit ekeeeding the available :height, even though Stontex haa already limited tbevosels size.in its proposal to 45 feet whieli:does not meet evenstandards, ,See'llxiiihit 2, MOrt.elearly, Satitek)s Lacks the exatt :number of boats on every level and the. eatt dr tnek marina dimensions, density and slip: rnix, Laeks ieedtintability for melt and veiy parking Space,: iitielttding fiandieapped and bitycle 'parking loonticina, fik Lacks -date idotifieattOn every 1:100i '04id nuMbef .of floota for :ehch of.its-propngedbufldngL Iv, Lacks loading. bur and iierviiie R�ess,. tacks -passenger loadingtdrap dram. •!IAMi 305. ID 741S Oti-7114 ZOM 8 ERG AERA PRICE' AxELkoo LLP 111513, 3r10011AvOnini, Odle 2300. Minttli, 33131-14% ------- — vi. Lacks doeks dedicated ttr stagh i for dry slip storage.— -- vi b Lacks dimensioned plans showing on and ofesite circulate in. vi i, Does not have the r qu red continuous publlo promenade or raked promenade 'because the;forklit operating area rn st'be closed to the public for safety Masons, t . Does not .have an active water# emt .:- because the ibrklit merest be closed to the public for safety reason&u.. Does not show how the public 41 access the p en beep forklift operating area rnust be closed to the public for safely reason s, - gig. area i £ Does not show vertical dreulation of the parking gage q indeed ed it show no pi= ibz the two proposed garages at all. ttui, Does not clearly show the property Erie and ttlYetlt r its project witl iit the RFP property line. xiii. Does not preserve the existing l l $ Landscape bu er along the Rickenbacket Causeway, and does not provide multiple pedest n accessible routes to the watcrfr. to order to maximize public access to the waterfront. 4. As tatted above, when tie df"ici. mat ial o Sslons arc then to etl : a el lttri to award the Virginia ia: Key lea to tit eatihOt be qhcid as an honest t erc;i e f [the City's] disci ;"Baxter ; Asphalt & -eta. Inc, 421 So; 2d at 507, and is by definition 1 arbitrary and tapricicos,.see Churc ,715 So. 2d at 1Og9, S PROPOSAL Ns? A FAILURE tiTAN. 25, Au experienc l proposer for tCS_ project understands tit the permitting , ;sapproacl and assIodated, phasing. is among the most cracial aspect Of the development pia Unlike ;many '11-water rent development pro ects, t1Ter arc nnultip]e itgeticies that must revitw and combo existing mat °ina exclude: pra " :tts1rtt n waterfront develop. efst. L d o: permits for changes to new tong as non, ern -of 24 month& The City AENA F:F "T AX L ""£ L1.P SuT# i:2a04), h 180. 1 i$4 orphasized the importance cattle pentitting process by highlighting it in the gat-era:1 conditions of the RFP (Sections 11 E and II, page 13), Statex propos-es to 'develop its new 364 marina in the Marine Stadium Basin as Phase 2 of its program end its entire dry stack in a single Phase 3, thereby displacing virtually all of the current usels. [Swim< Proosal page 151, 1. For example, it took almost tIV6 years for the Miami -Dade County Restoration & •aaancement Section to secure a simple re -authorization of their previously permitted artificial •reef sites that ate dearly benelitting the erivirorimera. ?fattish* to permit new boat slips in SettgraSS habliAt b less than a Year DIOntlY demonstrates no 'experience with the current reality of permitting In Miami -Dade CounWs sensitive environment Again, tit hest Sunteg is uninformed -about the permitting process and lacks the -requisite expexienee t navigate a complioated ptrmitting ptocess, or at WOM, mi I initleadirg the City with unrealistic and goal& :Regardless of which Is the truest description of Suntex's capabilities and intent, botli suggest that Santex is a on ponsihle propoger and cmnot be relied upon to deliver: its proposal as described in its response, VII. 'WITH NO REAL WOUNDS TO PROTEST, SIMI Ihit RISiTED VAC'S THAT Ala, sIMPLY FALSE Stinteg makes material misrepresentations in it .hid test. Shute alleges •that RCA as involved in major legal battles with the Ci-ty and that 11C1 stied the City, 1-Stintex Did Protest, page 5 and Exhibit C1, This is patently false, Rcl has -never betn itVCAVtd laWSUit against the City or any other governmental entity with which It has contracted.Rei hvr seed the City and the :City has riever sued .1(1. teatime such claims by Septa* arc easily verifiable through a simple search 'fbr public and cour-t-related document% these misrepresentations raise serious questiong about II* validity of all of •Suntex's -claims in its hid NAN 49614x16 woo:up BALM EalMi3ERG BAENA PRICE & AXELFW1.LLP 1454 Britkoll Avoriiik 4ulle2300, Misini, Ft, 13-3i1-34g6 protest. l st ing said tha Suntex raise a validissue with regard to the Tit`on, which does have Corr' o liti ation with tl City as recently as the last year. 1 *8 MATERIALLY INACCURATE filsIANCIALS ALSO EXPLAIN WITY 8J T X WAS NOT RECOMMENDED ENDED Full AWARD, :. Without MI a eabalysis of the true valao of unte's proposal mud the rolat d analysis of' whether'Simla actually eli t it pr p : Florida law prohibits the City to raise Bunter's serves or increase its ranking. ' Suntex s deficient development ;plan aid netin fete financial proposal do not allow tht✓ City the opportunity to be assured of the costs and revenues that would be associated with a lease to Suntex or the services that the Cityseeks and Suntex has promised, t Elsa Co. v., de Cnty,, 417 So, 2d 1034, 1034 (Fla, Id DCA 1982). RobinsonMew* Compaq makes elect that when asge8sing whether to acceptor reject a proposal, the mimic,' ity must odnside "whether the effect— would be to deprive the municipality of its. assuraiaee thatthe contract vlri be entered into, performed andguranteed accord s g to its specified requirements. id 1034. u tex's proposal does not tam i the City the opportunity to evaluate the trtte costs and returns associated with its proposal hence its lower Tanking_ is -appropriate and supped b the Ids„ hence its ranking is correct and its protest without basis ineomp-le de ekTp ent plani and do !ell prOposed finaricial returns, which axe contingent a required redesigh, tat aspects Of Sitintee8 proposal vvhb. gailtOk taratit e doubt. S . 1 1 im : CohYir. : Co., w Florida 1Dep'l - , 1.1b, ri 4 1 (11a, Marc 21, 2008) (' ti'irud nee requires an agency t agouti e t MIA? 4 14. not hope for the best. Such emotion is not only prudent, but also a matter of. fn to theother mttm w o complied. wUh the specification!). 30. Staitex fails oti both grounds and has shown no basis in its bid protest to• justify changing itt second place ranking. Suhteft use ofthe outdated fOrk lift system not only prevents maximum return from.thestack facility, it also loavca no room for tile mandatory setbacks' of bay walk because the launching aral_retrieval operations would have to close —the by walk to pedestrians in order to operate 'in the traee that IS hided Suntex's design,• 31, if Stanek were selected for award of The Vrghiii Key Marina Imse, the City would have improperly permitted Santek to sub:nit a proposal that has unverifiable design elements and tosts, misstated revenues, and deficiencies and inisrepreseritttions,Thc city, in such a case, will have granted Suntexti.milltir competitive advantage, thereby undermining the necessary oCET11/11011 'Stallard Of competition, Robinson Elea Ca, 417 So. 7d al 1034. The. procedures fellomf.ed in competitive solicitations most afford an "equal advantage to all vendors" acid not adversely Affect the interests of the agency, but rather allow the agency to cotitidehtly contract by being -able to Vert e4StS. Xerox Corp. e, Department ofGen'l Serv,,, Case No, 79 22.26B11)*19g0 VVL 142896, (Fla, DOH Feb. 29, 1980-) 32. Corns hoe denied government the discretion to waive irregularities when otie proposer would be placed 'in a position of advaritage over other bidders." Robinson .Elev, 6;L, 447 So. 2.-d At 1034', eee also Ltberty ent)i- Beeeter'S Asphalt iftid0011001. 421 go._ 505,- Mipor irregularities that are waivable aro those that do not affect price, give a competitive advantage, or adversely impact the procuririg agency's interests, Therefore, Simtox's deficiencies Alt riot minor. MIAM149042810 741!4� 15 aiLZWSUMBER 8AE:14A PRICE & AXELROD LLP 14:50 Stiekeil AANK10; Zulto 2301 !tvlinerii, FL 331314456 33, Further, an award to Suntex's comot be supported because there is ample basis in the record to reduce its scores and to support no or than a second place ranking. See Laboratoty Corporation t f America v. Deparnnent of Cael'1/416, 12-3170131D, 2012 VV1, 6512603, al 1 2 (Phi. DOA} IDe, 10, 2012)", Qoaltech Cleaning Alia Action Cleaning v. Florida State tMtvarsi% Case No, 00-442oBtD, 2001 WL 92108, at ¶7 (F1a IAH Feb. 1, • 2001)!, ilusinen Commirnication Solana Mar), Int v. Seminole County School Board, Case N'o. 95,5038131D, 1995 WL 1053245, at 13 (Pla. IDOA1-1 Dec, 29, 1995),- 49634-28,.10 74141/46.8a9 16 11,ZIN Stit4113C-RO BAENA VRiCE & AXELkOD LP 1450B 'L 331.31.34'66 34. responsible Genera! . 1 unacceptable money t` it def cie i ies s Suntex's prop yard diatla 1 SUNTE CANNOT OV11 tCOM 1F MATERIAL. Where the mandatory von p• tttiv bidding. th ohtract poser wl hg proposal ,is responsive. C'aber. ust be warded to a Inv.:Department of So,` d 325 (Fla, 1st 13CA i 1) award tO SUIMX VilOttld re to ;ail l of risk to the City and is 'likelyto resat i signifteant losses in tithe and is with an liable proposer. Coupled with the inaccuraes and uposil, warning sign that eftutl ns the City to •:more closely exurn ne 1 and 118 mute p s sexplaineel by Florida's and deem it properly ed arid yet qualified r P Administrative Hearings, 4relaCh from the rile or standard fixed :in the [REP] l material deviation.:... ch deviation. a ct the co tract .price ,and adversely impacts the interests of (the procuring agency]" partioulxxly when the deviation 'gives a benefit not enjoyed by Outer bidders." Marpan Supply Company, i par tment of a Y l6037k ' °l , t 1 Sep, 26, 1996). ' r=vt eg$ Case No. 6- 777 11 , 1996 WL pr p i adversely impaetsthe + it ' Interest 'in e € cting with a qualifie4 and capable t evelt7 r, The City cannot .risk se eti g developer that i not up to the task, nor can it contract with a developer t ti .i process that permits' a non.responsibie proposer to be eked zt big ily is proposers who have verified. success with comparabl projects, tlie it d finan a) en tli; d technically accurate planela at l lee also In 84256. J Cent tondo Om tt 1 mats, Inc. � tr itiw rrL FL- 3315 ;:d Dade County Ole Hon. 'Robert Newman; Nov. 15, 2007), citing Wary PePPei z Ano&aii.9 v. Cio) of Cape Conti, 352 So. 2d 1190, 11936. (Fla, 3ed DCA 1977. X. RCI WAS PROPERLY RATIED FIRST AND HAS TIT EXPERIENCE ME cITY SEEM 36, Ras plans are specific and complet:BVT) single parki*:„ space can be Counted and accounted far and its $581\4 capital budget Is both coroplete and based upon contractor estimates that were submitted •as part ofICI'a proposaLIRCI PropomI, Section VII, page 121 (if pdf, Dudget Attachments), Rel has volunteered to provide CAD dttovings for all Of its plans, whieb wril verify every detail rind compliance of RCN proposal, 37. t.C1 too incorporates green •elements 'arid sustainability into its proposal that dedicates an entire section or its- proposal, on 1-•;..• 11, to describing the greeri 'initiatives that it will impletnerit in its project and discusses green. alternatives for parking, [Rers PropoSal, Section V, page 11 ; Section IV, page $.]. 18. Additionally, RCI's proposed Aero-Docks patented automated dry stack system IticOVrates qttitt tit d reen electrical operation. This Male -of -the -art sygtem incorporates technology that has been used for more than 30 year in heavy industry and is used by companies such as Pord, Mitsubishi, and Boeing. The antornation eqtaptuent is designed4. Installed and backed. by ltockw ell Automation:- 4163. l:Eilliortlyear, 110 ,y4.4 bid .:COnwany, 'PropoSal,. Section IV, page 13 of sire plaid. With this systertt, boat launch time will be 2-3 minutes, LRC1's .PrOposal, Seetion.IV, pagc 81. There will be cell phone application that.will allow limners to request boats, set times to pick up boats, and tetinegt provisions for boats from merchants operating lit the triarinn [RCN Proposal, Section V, pap 299 of pdf, Acro-Docks Attach/tient), drastieallyitngrove-afficiency-and-custornersatithetien,-whielrwill-drive-revenue, The MIAMI 4963424, a) i&I4d89 18 LtLflN 1,..1.M.SERG BAENA. PRICE AXELROD LLP 14SO Miami! 23011 33114-3466 system will tzs eompute r density so waie t tit willdetermine the placement of boats and the mix of boat lengths so that at all times ter to 90%+ linear .fuotage of all rows of space of all levels will be income producing, also drying revenue, ePs Proposal, Section V. page 29 of pd ` Am -Docks Attachment). el's 'plan has the design that is me most advantageous the City because it maximizes reven ge n ation fold financial return;; 9.. With,respect toexperience, the RFT requires a proposer to have mm n teri (10) years' experience with Min of si ttd complexity. . [RFP, Se et ztt 1 'P (12)(a), page ). Sutttex's pert ice as not suffielent to mitr i SCI's experience, 'u at was not able to point tw one development that is comparable in all aspects to the development iequested IP the 1 FPti 40. uttitex's Liberty LWhig Mama in r y is e10 est ill size, but It is not comparable to a South Florida salt vomiter marina. T.a`t rty Landing is listed as 'having a total pr jec€post, of $531v1, but Slum estiiriat'e s a vital project cost of $731 for its proposed Virginia project, ev if Liberty L m&t nas vie similar enough to warrant apples -to -apples dearly leSS =complex project given its 'total cost, While in the ti gate un.tex ltav managed or de eloped a large number of elarinas,Y slips, and dry cowling ling to na proposal,. it does t t have the experlen with a single project that has till. of the complexities, Co aponefts, and restrictions of project r *tied by the i 'p Importantly, Stan=: only ;b s tw small facilities In Florida: orte Ft s and he other norm of Jacksonville.. Eve more importantly, Suntex did not build or develop either cility--it purchased existing oper tit g -facilities. Hence, , It liars never developed ani built Arr►tilar lltl s lit plortda usurer the Florida regulatory y scherne„ Md.4s t 4tr3/a611s1r 19 i t t 'BERG k PRICE r n LITOD LLP 1450 t r tkesl Atrenu >.' I 2a 30, Mtam3, Pl:: 1414% 42, The RVP did not require developing a minimum riumber of slips or experience managing, a amain rumba of restaurants. It rquired: comoarable experience, Siinply adding up the total •taunters of and regtailtittitg it has operated, does not mean that Suntex has the required experience arid expertise to design, permit and develop what the REP is requiring — in Florida, which will he one of the largest marine facilities in the Southeast United States mug, sunta qualifiedlo provide the devolopmentof the !radiiiJhtt title? it_ reqnesting, 43. RCI has net the RFP 's minimum threshold reqUireitient of having demonstrated experience• with projects of similar sin and scope as is Tequired by the RFP. RCI re -developed the Miami Beach Marina which is an approximately 45,34 acre mixed -use marine development that includes rdall and office space.„ three restaurants and rei4delititti t6weria. [RCProposal, Section X; Page 211, Bahia Mar has an associated hotel -use and a total project costl of $400 million and 4% detailed in RCI's proposal, both Market One Marina and Little flahot Marina have t'iry stack facilities.,I1C1 Pmposal, Attachment 5, Page 11. The project -a that RCI has developed and operated and managed live had similar, or inDre, complexity and capital investtrient costs a that which Is required by the RFP and all of that experience is local it south RCI hat also developed tmd-operated facilities in other states but the relevant experienee is here in South Florida. 44, Another toinimurri thmshold requirement listed -in the RI. '71) i that Itlhe Project Team or wry of. its,priteipals tritisthaVired Or provide,d, at minimum, twenty million dollm ($20 minion) or more iti financing for at least one (I) single 'project," CRPP., Seation VI P(1.2)(c), page 33). -Suntex lists 5evertil projects with dollar amounts -above $20 Million; hut does riot MIMi4443h68 20 Fr-AENA PIKE AXt LA01) LLP IWuttio, gi4k. MO,MiidL. 33T,Ii4466 3nd.cat lit .the funds cane . front Thus t 'sproposal did rateurttuin sufficient i .-fn Lion that would require that it be reed big her than RCI. 4S. It CI did prrvtde this inforinatiM in its prwasal. Suritex may ar t. to b:i on the fact that RCI will have to secure financing, but as referenced above, the ItFP r ufries that award ha based on fire ci l return to the City, Award of the %P is roi; based on how the -proposer proposes to itittnee flit Project. 46-, Moreover while unsex f i not need t its pxs eci its own proposal csotitrad%ets that statements iit nts In its rt k I projections and mode Suntexel ly states that it us811trieg the use of two eparate etni trttct »ix i §, [Syntex Proposal page 31]. Regardhus, What the City seeks is the most ad.varit geous return. 47. Even if Stitite)es propo d rent front Stabilized oper xiorts i , accepted as accurate, which it i ant, after ten yew, Stzntex would be prodding the City with $43 235,000 in relit, while Ref rnrikcl be providing tl City with $49,272,000 in rent. ntncia1 Ptcrposni CoinpariSoii Exhibit ibit 31 This rnmt betaken into iiee0W'tt Whet co pirctig the proposals These are the tubers that the RFP requir d City to evaluate-, 'These are th numbers that make dear that Sunt s not eligible for ard. arld cannot and Should tint have rc iv a higher over II score. 4 . Nate ly ill RCI pr vide the City with e h ghe rent, RC1 i'II sate the City no y, The PM reclaims fir° tt contribution for the number of parkliv spas required for each proposer'proposer's project and nminimum contribution of $.45 R-Crs Phased Capital slay llocates. r total tf $10 rraillaen i'or ',perking po es the required minimum oontiihution that :C would need to make to the &IPA garage, I other rd , RCI proYidesateintribution 6342 tO141$3i468 dr t00% of the vosi or providing tlie parking; n AE A # & :LP 1 u ri�A F 801 x3 tter tive nct only the 50% requir d by h .lam P. ittex offe ontribu ally 5O0% of the tog. 49. Given that true the Preferred ferred Plan, -RCw oul:d provide all.. o t re.parking for its -. project ect. on -site, its_required contribution to theMPA PA garage would be the S3.45 million tt itiz detailed hi the T P. Pmposal states tints is prepprepaled to make ay required contribution to -th MPS: garage. , is prepared to make the requited contribution of $15,000 per space to [R,C1 Proposal, 8ecn itV., Page 91, crs Preferred Plea dr s not preclu y from developing a truinicipal age to be constructed, operated, and maintained by the i 0. proViding ga' with l,options, d the City;tix <1t tiot and it e City a better positi n ern -which to r ly e rt x options, It it andwill a.ways be the City s lr it e as to which plan it w-ants to accept under the IWI Prop al, is RC' proposed an alternate location for surface parking, i as fon and Stintex slid, but Ret also offered to pay for it if the City cashes to accept the Otte l ath, 'Chit would be a net gain for the City because it would be -providing 1 0% of the cost of required .parking and paying a 1aing contribution that would lesson the City's tot -monetary burden for the part by opera untea's proposed returns to the City ul:d need to be reduced. y Sii million to °deduct :the. cost that the City would have to .d ay 10. provide its half °Nile ToateIt that is neccid to construct thNIPA image: fv.11A14414 VERC f3Aa A AX LRoo LLII 14603 % 11,tko1 uG, Sastt0, i srrr1,. FLt331S9» t XI. CASELAW AND THE CITY CODE IX NOT. PERMIT 011. REOIJIRE rtE-SCORING 2. Sttntex attempts to protest the Selection Ccummittee's scores, but the RFP and the City Code do not permit challenges to the relative weight of evaltiation taiteria or the formula for •assigning points. [RP?, Section XI, page• 3-9b MmPia., Code §18-104(a) (2) (2002). Additionally, Suntex must -prove prejudice or bias which it cannot. 53, "To be legally sufficient, a protest argument must allege faett that, if shown to be true, would demonstrate an impropriety.' L-.3 Siraliz B404865, 2011 CPI)1119 (Comp. Oen, Dee. June 8, 2011). Without proof that the Selection Committee's scoring was outside of the published criteria or animated by bias. Sunteit's >ime fails andthe City is required to retain the Selection Committee's seoivs, Sontex does •not even Atterapt to allege bias or prejudice and rriekes no reference to proof in the record that the Selettion Conuniftees scores were improperly drvd arbitrary, or capricious. Instead, lt *imply -states itS opinion mid belief that its proposal Nvas the best. That is not sufficient proof upon which a protest can be sustained. XII, At OISE-ST r()R RELIEF 54. Based On the foregoing reaSOAS Mid authority, RC I •respectfully requests that Strikes protest be dismissed and that the Director of Real EgtAte and .Asset Management recommend that the protest be dismissed t the City Mower, Portlier the Selection Committee's d the City Manager's recommendation to award the RFP to Rci should be followed forthwith, RCI respoothlly requests a response to -this aomemotileation from the City conflating that Suntex's hid protest will be denied, 1MRMt 44Lil7418.146'839 23 81LZ1N Skif.WCREI 8AENA PRIC •& AXE4 ROD i,LP 1450 AvOrlue, 3440 2200, irelf;#4i, FL T.4131-34.6 RespeetlIdly stihiriittcd, II ll :in Sti nbctg Same: Pipe. & Axe LP Jllor wys for Virginia Key LLC, (RCJ). 1450 thicken ell - -venue, lard Mom Miami, Merida 33131-34 6 Telephone; 005) 374'4580 F'a iri%= (305) 7 -7593 AL „R` L DOTSON, Q, Fla. gay No.i,724203 odetstut@bilzimontri Guam , 1VICHOWIELL, P a Ear No,:.601236 nodowell bikiitorsm, 3 Lg1N SUMr E W A SAL PRJt A-XeLROi3 LL.P Viliil ica /Wring S- 2300, hPlPariiL FL 339:59- 56& Ct TIP C TZ. VI I DEIFY CERTIFY that a tram Aid eon opy atilt fdregoing..was ed this 2 day of Awl 201 6.vht irKa l to the forilowilig: .Dithi61 Romberg, D re tor Of Real 11stata nod Aaet Vlariagehttrit, DRotehher j v un Victoria Mend„ City Attorney, d � trti ter w lug,Rafael Suarez-Rivao Aggis.taaCity Att rnty, rsuaretzi. a l> citit F 4 :and Todd Hamm, City Clerk, City of Miami, plerkOci,ttitaitti `1. i!ittlikt41'0 :-1 74t83/4i !N M13 ER AMNIA 4 &AX 4 fi i € if Avettiro, Solio 23L O, FL 3fiS1,3451 CITY OF MIAMI, FLORIDA MEMORANDUM TO: City of Miami Commissioners New Rickenbacker Marina, LLC FROM: Daniel Rotenberg, Director Department of Real Estate and Asset Management DATE: May 10, 2016 SUBJECT: Response to Bid Protest submitted on behalf of New Rickenbacker Marina, LLC REFERENCES: Virginia Key Marina RFP No. 12-14-077 ENCLOSURES: Bid Protest submitted on behalf of New Rickenbacker Marina, LLC RESPONSE TO BID PROTEST SUBMITTED ON BEHALF OF NEW RICKENBACKER MARINA, LLC Background The City of Miami Department of Real Estate and Asset Management ("DREAM") issued RFP No. 12-14- 077 for the development and lease of a city -owned waterfront property located in Virginia Key ("Virginia Key Marina RFP"), and proposals were received from the following firms: Virginia Key, LLC ("RCI Group"), New Rickenbacker Marina, LLC ("Tifon"), and Virginia Key SMI, LLC ("Suntex"). The Selection Committee ("Committee") appointed by the City Manager, met on March 16, 2016 to evaluate the proposals and recommended that the City negotiate with the highest ranked proposer, RCI Group. The City Manager concurred with the Committee's recommendation, and Tifon and Suntex submitted timely bid protests. The responses were reviewed by Mr. Rotenberg, the Director of Dream, as Chief Procurement Officer for RFPs regarding real estate per Section 18-176.3, City Code. Protest Allegations Tifon argues and alleges that the final recommendation by the City Manager was arbitrary and capricious based on the following points, as more specifically detailed in their bid protest, which is enclosed for your review. 1. The recommended proposer, RCI Group, was permitted to make material changes after submission; 2. The second ranked proposer, Suntex, was non -responsive; 3. A Committee member's scores were arbitrary and capricious; 4. The referenced Committee member used evaluation criteria outside the established criteria; and 5. The referenced Committee member submitted a divergent score evidencing a conflict of interest. Response In this protest, the Chief Procurement Officer's position is filled by the Director of DREAM. See Section 18-176.3, City Code. Per Section 18-104(a)(2), the Chief Procurement Officer shall limit his review to the arguments alleged in the written protest, and no other facts, grounds, documentation, or evidence shall be considered. As such, my response shall be limited to the arguments provided in the Protest. As Director of DREAM and therefore the Chief Procurement Officer for this RFP, I submit to you the following response, which provides, that the protest submitted on behalf of Tifon should be denied. In sum, both RCI Group and Suntex were responsive and responsible bidders and the process was conducted fairly with no evidence of conflict. 1. No material changes were made to RC! Groups proposal after submission, only clarifications Page 1 of 5 RCI Group was not permitted to make any changes to their Proposal. Rather, they were asked to clarify items that were unclear, as permitted by applicable law. In short, RCI Group provided two alternative plans in their proposal: the first included the MPA Parking garage in the location originally designated ("Alternative Plan"), and the second included a parking garage under the proposed dry storage facility ("Preferred Plan"). Admittedly, upon a first reading of the Preferred Plan, it appeared as though RCI Group would not provide the parking contribution and would build operate and maintain the municipal parking garage, contrary to RFP requirements. However, upon a second review it became apparent, despite Tifon 's arguments otherwise, that the Preferred Plan submitted by RCI Group does not make the previous assertion, but rather, was simply unclear regarding what entity would build operate and maintain the municipal parking garage and whether RCI Group would pay the parking contribution. RCI Group then clarified these items in their Preferred Plan, indicating total compliance with RFP requirements. As this concern was easily resolved by a simple request for clarification and corresponding request that they clarify this point during their presentation, the proposal was not deemed to be contrary to the RFP and RCI Group was permitted to present both alternative plans to the Committee. In support of their argument, Tifon cites to RCI Group's proposed revisions to the draft lease, which provide, in relevant part, "[a]s an alternative, Lessee, at Lessee's election may, in lieu of making the parking trust fund contribution, provide for all of its required parking on the Premises at Lessee's sole cost and expense." There are a few points to make in response to this allegation, the first being that this language is simply a proposed modification to the lease that could be rejected by the City during the negotiations phase after the highest ranked bidder was recommended for selection. Furthermore, RCI Group specifically provided in the draft lease that all proposed revisions to the lease were subject to withdrawal in the event the City found any such term to be non -responsive. Tifon also argues that RCI Group's Preferred Plan is non -responsive for providing surface parking in the area originally designated for the MPA parking garage. However, the RFP specifically provided that, although the MPA would have final discretion, the proposers could propose an alternate location for the garage. See also RFP, p. 20. The City allowed for this in the RFP with full knowledge that the land deeded by the County could potentially be subject to reversion, however, the City invited proposers to indicate alternative locations that may have been superior aesthetically, productively, or economically for the City. Ultimately, the City would weigh the options and decide the best course of action. Another argument proposed by Tifon in support of the allegation that RCI Group's Preferred Plan did not originally provide for a parking contribution is that RCI Group agreed to pay the parking contribution only if the Alternative Plan is accepted. Nowhere in RCI Group's proposal does it provide that language, and in fact, the referenced paragraph is concluded by unilaterally stating that RCI will provide the contribution if the garage is built. They cite the following paragraph included in RCI Group's proposal: As the RFP requires the Proposer to make a contribution to the MPA toward the construction of a parking structure to provide the required parking for the Project, RCI has also submitted an Alternative Plan that does provide the required parking in the conventional MPA garage along the Rickenbacker in the location identified by the City in the RFP. RCI is prepared to make the required contribution of $15,000 per space to the MPA garage if it is to be built. Based on its apparent plain meaning, the proposal provides that the contribution will be paid regardless. However, if Tifon would like to discuss all of the possible interpretations of the above paragraph, we should also consider the interpretation that the first sentence of the above paragraph simply provides that the Alternative Plan includes the parking garage in the originally proposed location. However, as stated earlier, the location of the garage was not a hard and fast requirement, and in fact, proposers were encouraged to indicate alternative locations. Although this argument is not even necessary in light of the plain meaning of the paragraph, it simply supports the point that multiple interpretations were possible, and that the only way to determine the proposer's true intention was to request a clarification. The clarification provided was consistent with the language provided in the proposal and with the RFP. Page 2 of 5 Tifon misinterprets the RFP as well as the proposal submitted by RCI Group. Proposers were required only to confirm that they would pay the required parking contribution and that MPA would build operate and maintain the municipal parking garage. The proposal submitted by RCI Group, as clarified, complies with these requirements. The clarification was not a material variance from the proposal because it was consistent with the proposal and was not previously addressed by the proposal. As Tifon's final point regarding the parking contribution, they allege that RCI Group's clarification does not satisfy the parking contribution requirement set forth in the RFP because RCI Group agreed to pay the minimum $3,450,000, but not the minimum required by the proposed number of slips and retail space. However, this argument also fails as the REP required that the Successful Proposer contribute an amount "based on the number of parking spaces required for the Project." If the Proposer has provided alternate parking on the site sufficient to satisfy their parking requirement, then the amount of the parking contribution would fall to the minimum required by the RFP. Based on this logical conclusion, the clarification by RCI Group is acceptable and does not deem them non -responsive. At the very worst, RCI Group's choice of wording was a minor variance or irregularity which the City, by receipt of supplemental information, clarified. Per Section II (W) of the RFP, the City specifically reserved the right to waive any non —material irregularities in the proposal responses. Any clarification of the preferred plan, which was merely an option presented by RCI Group, was not a material variance. RCI Group's clarification did not give it an unfair advantage over the other bidders; rather, it simply explained what was intended in the original proposal. See Tropabest Foods, Inc. v. State Dept. of General Services, 493 So. 2d 50 (Fla. 1st DCA 1986) (holding that a variance "is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition."). The goal for any competitive bid is to obtain the best responsible offer for the City and minor irregularities can be waived in order to achieve that goal. Id. at 52. Therefore, assuming for the sake of argument that RC1 group's clarification was a variance, it was a minor and nonmaterial variance or irregularity, which is allowable by both the RFP itself and applicable law. 2. Suntex met minimum requirements and qualifications Tifon makes an argument that Suntex should be disqualified from this process for two allegedly non- responsive components of their proposal, namely, the minimum qualifications and the proposed second parking garage. With regard to the threshold minimum qualifications, Tifon alleges that Suntex failed to meet the minimum qualifications required in the RFP, particularly concerning restaurant experience. Suntex provided in their original Proposal submission that they met these minimum qualifications, including over ten (10) years' active experience and responsibility for daily operations of the restaurant. To confirm and clarify, we requested that Suntex identify the representative that satisfied this requirement, and they appropriately did so by clarifying that Mr. Chris Petty, a principal of Suntex, had the requisite experience. Concerning the municipal parking garage, Tifon argues that Suntex should not have been permitted to propose a second parking garage. The RFP provided that the Proposers must contribute to the development of a new municipal parking garage. However, as Tifon correctly points out, the City did not preclude Proposers from providing additional parking on the site. In fact, nothing in the RFP provides that the Proposers may not construct a second parking garage. In fact, as Tifon admits in their protest, Tifon's proposal also provides alternative surface parking on the site. Further, Tifon claims that the physical location of the second parking garage proposed by Suntex should deem them non -responsive. This argument is based on two material facts, which are that (1) the RFP provides that proposers must maintain the access road indicated in the survey; and (2) the second parking garage is built over the referenced access road. However, this would not deem Suntex non -responsive as they have indicated within their proposal that the access road would be maintained under the proposed second parking garage, and the same is clear from the site plans and renderings they provided. Page 3 of 5 3. The Committee's scores should be preserved because the Committee's scores were reasonably based on facts and Logic; were within the evaluation criteria established by the RFP; and there was no evidence of any conflict, fraud, dishonesty, or misconduct. In a final attempt to jump from the lowest -ranked bidder to the highest, Tifon proceeds to attack the Committee and its scores despite the fact that it is established in both the RFP and the City Code that a "written protest may not challenge the relative weight of the evaluation criteria or the formula for assigning points in making an award determination." See Section XI. 2., RFP; see also Section 18-104(a)(2), City Code. Upon review of the Committee's deliberations, it is apparent that the scores were reasonably based on facts and logic. In particular, Tifon specifically contests the scores provided by Committee member Pamela Weller, who ranked Tifon lowest of the three proposals. Tifon argues that Ms. Weller's scores are arbitrary and capricious because she gave Suntex a score of 100. The fact that Ms. Weller scored a proposal with 100 points does not automatically deem the score arbitrary and capricious. The score was based on Ms. Weller's reasonable determination that the proposal provided by Suntex was in the best interest of the City. At no point did the City specify that a score of 100 means that the proposal is perfect, and it is reasonable for Ms. Weller to give 100 points to the proposal she determined in her reasonable discretion to be in the best interest of the City. Tifon argues that she could not possibly provide a score of 100 when they allegedly provided the greatest financial return to the City and when her score was different than the other Committee members' scores. Ms. Weller is entitled to her own conclusions, and is not bound to follow the interpretations of other Committee members. In fact, the City regularly encourages diversity in experiences and credentials when appointing RFP Committee members in order to ensure a well-rounded determination of which proposal is in the City's best interest. Additionally, Ms. Weller's scores were clearly within the evaluation criteria established by the RFP. Tifon takes particular offense to Ms. Weller's comments to the evaluation criteria concerning overall project design. The RFP provides that a total of 25 points may be provided for "Overall Project Design/Proposed Renovation and Activities & Projects" including "Compatibility and enhancement of Master Plan features" and "Compatibility between required and proposed uses." The RFP further provides that the Committee will "evaluate proposals using the Evaluation form and may further define each of the criteria on the Evaluation form so long as it is consistent with the information in this RFP." Based on the above -referenced RFP language, it is clear that the Committee may further define the evaluation criteria. Even if the Committee was not allowed to further define the evaluation criteria, the comments made by Ms. Weller are consistent with and fall within the scope of the above -mentioned criteria. Ms. Weller provided that "[Suntex] and [RCI Group] both did a great job designing and talking through the overall project design and concept. I was especially impressed with community outreach for [Suntex] project." Tifon alleges that a proposer's community outreach "was not one of the evaluation criteria that would even remotely relate to 'Overall Project Design." This argument fails on its face. There is no doubt that community outreach falls within this criteria. In fact, the criteria specifically includes "Activities & Projects", and Suntex took particular care to include community outreach not only in the activities it hopes to incorporate on the site, but also into its overall project design by making the site available to all members of the public, whether disabled, underprivileged, or otherwise. Finally, Tifon alleges that Ms. Weller's scores should be dismissed because she is the General Manager of Bayside Marketplace, and that by virtue of potential competition, she allegedly has a conflict of interest. This is just another far-fetched argument proffered by Tifon. Ms. Weller was specifically chosen because of her extensive experience in retail surrounding marinas. Ms. Weller did not provide any indication of any conflict of interest or illegality. It is particularly important to note that Ms. Weller has no ownership interest in Bayside Marketplace or General Growth Properties, Inc. (the managing company), and therefore would not benefit from conspiring against Tifon, as Tifon would have the Commission believe. Further, Tifon knew that all of the members of the Committee would have experience with similar projects, as the RFP specifically provided that Committee members "shall have experience in real estate, finance Page 4of5 renovation projects and/or experience with development projects of this nature." In fact, Tifon was made aware of the Committee members' identities and positions prior to the presentations and deliberations, and did not at any point indicate any concern regarding the appointments. Only after Tifon failed to receive the highest score, did they begin to take issue with the appointment. The scores themselves are insufficient to deem a member conflicted, and to allow such a protest would not only be contrary to applicable law, but would set a precedent to overthrow every Committee members' scores simply because the losing proposer was unhappy with the results. It is also important to note that Tifon does not have standing to institute or maintain this protest. Tifon is the third -ranked proposer, falling behind RCI Group and Suntex, which were ranked first and second, respectively. The general rule in Florida regarding standing to protest is that a bidder or proposer who would not be awarded the contract, even if the protest was successful, lacks standing. Preston Carroll Co. v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3d DCA 1981). The City has a procedure for written ranking of the bidders or proposers. The importance of ranking becomes paramount when the City realizes that an irrefutable placement in the third position would eliminate standing. In Tifon's attempt to avoid this clear pitfall, Tifon argues that not only the top -ranked bidder, RCI Group, but also Suntex, are non -responsive. Based on the arguments provided above, it is clear that even if RCI Group were to commit some error to deem them non- responsive, Suntex is also responsive, and as the second -ranked bidder would step into the shoes of the top - ranked. However, even in such a situtation, Tifon would not be awarded the contract, and therefore has no standing to bring this protest. Conclusion & Recommendation to City Commission Tifon claims that their Proposal is the only responsive proposal submitted to the City on this RFP. This is inaccurate, and is based on Tifon's narrow interpretation of the RFP requirements. The RFP was specifically written to allow Proposers to have some flexibility in their design proposals. Furthermore, Tifon argues that the Committee's scores were arbitrary and capricious in a weak attempt to dismiss the scores of the Committee. This argument also fails for the simple reason that the Committee's scores were reasonable based on the established criteria and there was no evidence of any fraud, dishonesty, illegality, or conflict of interest. It is also apparent that Tifon has no standing to bring this protest. Based on the above, I submit the following recommendation to the City Commission: (1) the City should deny the protest submitted on behalf of Tifon; and (2) the City Manager, or his designee, should be allowed to proceed to negotiate with the top -ranked bidder, RCI Group. Respectfully, Daniel Rotenberg, Director Department of Real Estate and Asset Management DR/JL Enclosures Ex. A — Protest by Tifon DREAM 16OQ33 Subject-.o- •rov. D..nie1) • o, City rf eager Victoria Mr, dez, City Attorney Page 5of5 Tolland & Knight 701 Brickell Avenue, Suite 3000 1 Miami, FL 33131 I T 305.374.8500.1 F 305.789.7799 Holland & Knight LLP I www.hktaw.com April 12, 2016 Via Electronic Mail Mr. Daniel Rotenberg Director of Real Estate & Asset Management City of Miami 444 SW 2nd Avenue 3`r Floor Miami, FL 33130 Richard A. Perez (305) 789-7630 rIchard,perez@hklaw.com Re: Formal Written Protest to the City of Miami (the "City") - Request for Proposals for Lease of City -Owned Waterfront Property for Marinas/R.estaura.nt/Ship's Store Uses - RFP 12-14-077 (the "RFP") Dear Mr. Rotenberg: On behalf of New Rickenbacker Marina, LLC ("New Rickenbacker Marina"), please accept this letter as New Rickenbacker Marina's Written Protest of the City Manager's recommendation to award the RFP to Virginia Key, LLC ("RCI"). This Written Protest is transmitted to you pursuant to Article XI of the RFP, which sets for the rights of proposers to file a bid protest as supplemented by Section 18-104 of the City of Miami's Code of Ordinances. Pursuant thereto, we have enclosed the following materials with this Written Protest: (1) a cashier's check in the amount of $5,000.00, to satisfy the filling fee associated with this Written Protest, (2) an appendix of documents and evidence pertinent to this Written Protest (the "Document Appendix"),' and (3) a compact disk containing the documents and, evidence referenced in the Document Appendix. Pursuant to Article XI of the RFP and Section 18-104(a)(2)c. of the City Code, we set forth the specific facts and law upon which New Rickenbacker Marina's protest is based below. The following is a short summary of the arguments: I Throughout this Written Protest; we will refer to documents and evidence included in the. Document Appendix by reference to the appropriate exhibit number, followed by the page, paragraph, or section of the document where the relevant material may be found. For example, "(Doc. App. Ex. 1, at 1)" refers to page 1 of Exhibit 1 in the Document Appendix. Certain documents including in the Document Appendix, have unnumbered pages, the page number reference for such documents refers to the actual page number of the PDF document and, for ease of reference, are distinguishedby an asterisks, Mr, Daniel Rotenberg April 12, 2016 Page 2 1) The City permitted the recommended bidder — Virginia Key, LLC ("RCI") -- to introduce post -submission changes to its initial proposal to cure material variances, which include, amongst other matters, allowing the recommended bidder. to amend its proposal to include the mandatory Parking Trust Fund Contribution as part of its "Preferred Plan." By allowing the. recommended proposer to cure such material variances, the City has acted arbitrarily and capriciously. 2) The City failed to find the proposal submitted by Virginia Key SMI, LLC ("Suntex"), non -responsive for its failure to meet the minimum threshold qualifications and other mandatory requirements set forth in the RFP. By failing to disqualify Suntex, the City has acted arbitrarily and capriciously. 3) The referenced Evaluation Committee member used evaluation criteria outside the published criteria to evaluate proposals and, therefore, the decision by the City to accept such scores — which deternnined the outcome of the evaluation process -- constitutes arbitrary and capricious actions. 4) The significantly divergent scores of one member of the Selection Committee materially impacted the results of the evaluation process and such scores evidence a clear conflict of interest in evaluating the proposals that warrant rejection of such scores. x. Factual Background On June 15, 2015, the City issued the RFP with the goal of creating a vibrant recreational marina and restaurant destination for City residents and tourists alike on City -owned land within Virginia Key. (Doc. App. Ex. 1, at 3). The RFP required each proposer to plan, redesign, renovate or redevelop, lease, manage and operate a mixed -use waterfront facility, including, but not limited to, two marinas, a boatyard, dockmaster's office, ship's store, dry storage, wet slip docks, and at least one restaurant. (Doc. App. Ex. 1, at 6). In consideration for the development of the Project, the City agreed to lease the property to the successful proposer for a forty-five (45) year initial term, with two (2) fifteen (15) year renewal terns. Id. Municipal Parking Garage and Parking Contribution As part of the RFP and "[i]n order to encourageand promote the economic feasibility and success of the Project," the City required that each proposer "relocate all existing on -site parking and utilize a new proposed parking garage facility, which the MPA shall build, operate and maintain" (the "Municipal Parking Garage"). (Doc. App. Ex. 1, at 19), Although permitting for alternative locations, the City designated property inun.ediately east of Rickenbacker Causeway on the boundary of the project as. the location for the Municipal Parking Garage (the "City Designated. Parking Area"). (Doc. App. Ex. 3,. at 23). This area includes property transferred to the City by Miami -Dade County subject to a declaration of restrictions limiting use of the property to "the construction, operation and ongoing maintenance of a public municipal parking garage," providing that the property would revert back to Miami -Dade County if the City failed- to complete construction of a municipal parking garage by a date certain (the "County Declaration of Restrictions"). (Doc. App. Ex. 5, at 11-12). 2 #40354553 v1 Mr. Daniel Rotenberg April 12, 2016 Page 3 In order to defray the cost of such Municipal Parking Garage, the RFP provided as follows: The City willrequire the successful Proposer to pay into a project - specific parking trust fund ("Parking Trust Fund") an amount for construction of the parking garage at the time of Lease execution .. , The number of parking spaces will be based on four (4) spaces per 1,000 square feet of retail, one (1) parking space per every five (5.) boats of dry or wet storage, and eight (8) spaces for every 1,000 square feet of restaurant gross area. The successful Proposer will be required. to contribute to the Parking Trust Fund up to fifteen thousand dollars ($15,000.00) (estimated to be approximately 50% - - of the cost of construction) per each space required for the overall - site proposal, per the ratios provided above ... However, a minimum of 230 parking spaces shall be required (for a total minimum parking garage contribution of $3,450,000 to be paid by cashier's check or money order ... .(Doc. App. Ex. 1; at 20). Consistent with the requirement of the RFP, the draft lease agreement included as Attachment 9 to the RFP (the "Draft Lease Agreement") provided as follows: 4.2 t o and Contribution Upon the Lessee shall be required to contribute an amount equal to fifteen thousand and 001100 dollars ($15,000.00) per parking space required to meet the Lessee's parking requirement pursuant to the RFP. Based on the development contemplated by the Proposal, the Lessee's total contribution to the :Parking Facilities shall he dollars ($ ) for the nori-.exclusive use ofa total of parking. spaces, which amount may be adjusted as set .forth below ("Parking Trust Fund Contribution"). The Parking Facilities shall he a public rnur►icdpal garage, which: shall be built and operated by the. Departrhent of Off Street Parking of the CitynfMiami dibia Miami Parking Authority ("WA"). (Doc: App. Ex. 2, at 16). The RFP requested that each Proposer fill-in the blanks of the Draft Lease Agreement, but cautioned that "[i]n order to be considered for the award of this RFP, the successful Proposer must accept the Lease attached herewith as Attachment 9," (Doc. App.. Ex. 1, at 37). The RFP. did provide that certain terms maybe negotiable; however, among the non-negotiable terms would be "all items required by this RFP." id. Therefore, with respect to the Municipal Parking Garage and the Parking Trust Fund Contribution, the RFP requirements were fairly straight -forward: (i) the Miami Parking Authority ("MPA") would build a parking garage for theproject into which all .existing parking within the 3 #140354653_vl Mr. Daniel Rotenberg April 12, 2016 Page 4- - property would be relocated,2 and (ii) each proposer would contribute for the Municipal Parking Garage a sum of money calculated based on the strict formula set forth in the RFP and the Draft Lease Agreement. Notwithstanding the clear statements set forth in the RFP, a number of proposers asked various questions regarding the construction of the Municipal Parking Garage and the requirement to pay the Parking Trust Fund Contribution. Even though the City showed flexibility on other aspects of the RFP requirements, the City did not waiver on the requirement for the MPA to construct the Municipal Parking Garage and for each proposer to pay the Parking Trust Fund Contribution. For example, in Addendum IX, Question No. 3, the City responded to questions regarding the possibility of identifying alternate locations for the Municipal Parking Garage by reiterating that, although alternative locations would be considered, "the MPA shall build, operate, and maintain" the parking garage "for which the Selected Proposer shall be required to contribute a minimum amount as required by the tennis of the RFP." (Doc. App. Ex. 3, at 14*)(emphasis added). In Addendum No. XXVI, Question No. 2, a proposer asked whether the City could "please be more direct in its answers" as to who would be responsible for building the parking garage and who would pay for the parking garage. The City succinctly stated as follows: (a) The Miami Parking Authority ("MPA") shall be responsible for building, operating, and maintaining the parking garage. (b) The parking garage shall be paidfor in part from the funds received by the Selected Proposer pursuant to the "Parking .Contribution" .... and funds received [from] Rusty Pelican." (Doc. App. Ex. 3, at 82*). As if not clear enough, in the answer to the very next question, the City specifically stated in a short, concise declarative sentence: "the Selected Proposer shall not construct, operate, or maintain the parking garage." (Doc. App. Ex. 3, at 83*)(emphasis added). Threshold Minimum Standards In addition to the requirements for the MPA to build the Municipal Parking Garage and the proposer to provide the Parking Trust Fund Contribution, the RFP contained only a handful of other mandatory provisions. Section VI(F)(12) of the RFP sets forth the following Threshold Qualification Standards:. 2 RCI has made the point that other bidders, including New Rickenbacker .Marina, included surface parking within their design of the project. The City correctly pointed out that the requirements in the RFP do not require that all parking for the project be re -located within the Municipal Parking Garage, only all of the existing parking within the property, This interpretation leaves room for some ancillary surface parking within the boundaries Of the property, which makes sense considering the size of the overall project. This is exactly what New Rickenbacker Marina shows in its design, all of the existingparking relocated to a Municipal Parking Garage built by the MPA with some ancillary parking in the periphery of the design. This does not, however, mean that the RFP permitted developers to eliminate the Municipal Parking Garage or build a competing parking garage. 4 #40354653_vl Mr, Daniel Rotenberg April 12, 2016 Page 5 .._ . . _ ... (12) Threshold Qualification Standards: Each Proposer shalt meet the following five (5) minimum requirements: (a) Either a .member of the Project Team or staff .must have a minimum of ten (10) years' experience With a marina of similar size and complexity; a minimum of ten (10) years active experience and responsibility for daily operations of the restaurant, as. well as a minimum of five (5) years' experience for each additional business use proposed to be operated bythe successful Proposer.. (Doc. App. Ex. 1, at 33). Under the heading. "Minimum Qualifications," the RFP further mandates that the "Proposer must demonstrate that it has the applicable number of years of experience in the management and successful operation of marina, restaurant and any ancillary facilities of equal size and complexity as detailed in the threshold standards in Section VI(F)(12) of this RFP." (Doc. App. Ex. 1., at 34) (emphasis added). Assuch, one of only a handful of threshold qualifications set forth in the RFP is "a minimum of ten (10) years active experience and responsibility for daily operations of the restaurant" RCI Proposal RCI's proposal to the City included the redevelopment of the property with two wet slip marinas, boat services, a dock master's office, a ship's store, dry storage, launching docks, fuel stations, two restaurants, and approximately 35,000 square feet of marine -related retail. space. (Doc.. App. Ex. 4, at 2). Based on the development proposed by RCI and the standards set forth in the RFP, the total amount of parking spaces generated by RCI's proposal for purpose of calculating the Parking Trust Fund Contribution equals 492. (Doc. App. Ex. 4, at 24). This number of parking spaces when multiplied by $15,000 (the amount of the Parking Trust Fund Contribution stipulated in the RFP and the Lease Agreement) equates to a Parking Trust Fund Contribution by RCI of $7.38 million. RCI submitted two distinct plans as part of this proposal the "Preferred Plan" and the "Alternative Plan." (Doc. App. Ex. 4, at 8). The Preferred Plan calls for the construction of an entire level of parking underneath each of its three dry storage facilities. Id. The Alternative Plan calls for no parking built underneath the dry storage facility with the parking for the project located in the Municipal Parking Garage within the City Designated Parking Area. (Doc. App. Ex. 4, at 9). Atthe very outset of its proposal, RCI touted two "unique benefits" to its Preferred Plan: (1) the utilization of at -grade parking would eliminate the visual intrusion created by the Municipal Parking Garage directly along Rickenbacker Causeway (Doc. App. Ex. 4, at 9), and (2) the parking constructed. by RCI underneath its dry storage facilities at no cost to the City would result :in the City saving approximately $7.2 million it would have otherwise spent on constructing the Municipal Parking Garage (Doc. App. Ex. 4, at 8-9). 1140354653_v3 5 Mr.. Daniel Rotenberg April 12, 2016 Page 6 The renderings provided by RCI in its proposal, with few exceptions, only depict the Preferred Plan,3 depicting the overall project design as follows: These illustrations reinforce the "unique benefits" of the Preferred Plan by entirely eliminating the Municipal Parking Garage from the City Designated Parking Area and from any other alternative location within the project. This, of course, was no accident. As set forth in the RCI proposal, "this design eliminates the need for a six -story parking garage intruding along Rickenbacker Causeway." (Doc. App. Ex. 4, at 2). And, "utilizing this at -grade space for parking minimizes the visual impact of the proposed Miami Parking Authority (MPA) parking garage and effectively eliminates a multi -story parking structure visually intruding on the view directly along the Rickenbacker. Causeway ..." (Doc. App. Ex. 4, at 9), As touted by their narrative,the renderings for the Preferred Plan contained in the RCI proposal depict the unobstructed views of their building from Rickenbacker Marina: 3 By our count, the proposal submitted by RCI includes approximately 38 renderings and sketches depicting the area closest to Rickenbacker Causeway and the City Designated Parking Area.. Of this total, 33 show renderingsOr sketches of the Preferred Plan, while only 5 of the renderings or sketches depict the Alternative Plan. V40354653 vI 6 Mr. Daniel Rotenberg April 12, 2016 Page 7 • In addition to the unobstructed views, RCI reiterates that the elimination of the Municipal Parking Garage would result in great financial benefits to the City: "if the City agrees with RCI that the Preferred Plan isthebest site plan, RCI-will provide all required parking for the Project at no cost - to the City, thereby saving the City and MPA an estimated cost of almost $7.25 million based upon a cost of $30,00.0 per space." (Doc. App. Ex. 4, at 18). In consideration for RCI constructing all of the required parking for the project and eliminating the need for the Municipal Parking Garage, RCI .revised Section 4.2 of the Lease Agreement to provide: As an alternative, Lessee, at Lessee's election may, in lieu of making the Parking Trust Fund Contribution provide for all of its required parking on the Premises at Lessee's sole cost and expense. (Doc. App. Ex. 4, at 389*). In other words, RCI provided in its comments to the Draft Lease Agreement that RCI would be permitted to avoid the Parking Trust Fund Contribution by simply electing to move forward with the Preferred Plan, which, as set forth in the narrative, would result in RCI constructing all of the parking required for their project at its sole cost and expense. Not surprisingly given the changes to the Lease Agreement, RCI's financial analysis is devoid of any referen.ce to the $7.38 million Parking Trust Fund Contribution resulting from its development plan. The Phased Capital Outlay provided in the proposal sets forth RCI's • entire anticipated investment as it relates to the project. (Doc. App. Ex. 4, at 117*). As shown below, the total sum of RCI's contemplated investment in the project equals $98,850,000: VIRGIN'lA KEY HARBOUR & MARINE CENTER FINANCIAL ANALYSIS - PHASED CAPITAL OUTLAY VIRG1NIA KEY 1/20201e 9:07 PM PHASE 2 II PHASE 3 PHASE 4 TOTAL $25,800, 00. $ . 9.550,1001 " $ ... _ --9s;8 ,i1 +0 The $98,850,000 total referenced above includes the following detailed analysis of the anticipated expenses related to the parking for the project: PARKING -ENTRY SURFACE $ 1,750,000 - 1,750,000 PARKING - 71 V .3,4.iLt000 - ,� ,VVV PARKING-DRIr2. _.. "$ 1..8170,000 $,BtPp.04t PARKING - DRT3 - -_ 3,OOO O00 $ 3400,000 PARKING - EAST SURFACE _ .$ 750,00 - $ 750n0a $ 10.300,060 ##40354653 v1 7 Mr. Daniel Rotenberg April 12, 2016 Page 8 This description of the parking specifically refers back to .the Preferred Plan, which stages the construction of the parking to service the project in several phases, with parking constructed for each of the three (3) dry stack storage buildings (i.e. DRY-1, DRY2—and DRY3) and the entry and east surface parking areas. Therefore, the Phased Capital Outlay contemplates only the costs of the parking spaces identified in the Preferred Plan ($10,300,000), but does not contemplate an additional $7,380,000 for the Parking Contribution. The total Phased Capital Outlay flows into the overall equity and debt investment deemed necessary by RCI for the. project. As set forth in the notes to the pro, forma, RCI anticipates the need to finance a total of $73,750,000. The following is the note that appears. in RCI's pro forma: NOTE: INTERNAL RATE OF RETURN GENERATE! BY ABOVE OPERATIONS SCHEAULE R.7$9i PROJECT TOTAL DOT = $23.750,001, 6% INTEREST, 25 YEAR AMORTIZATION, WITH 2 YEARS INTEREST ©W PRIOR To COMMENCING AMORTIZATION SCHEDISLE_ (Doc. App. Ex, 4, at 120). RCI•further anticipated equity contributions from its investors equaling $25.1 million. The following is the discussion.regarding RCI's equity contribution set forth in the narrative: Thesefinancial plansand analyses demonstrate: 1 That there is a reascnc hle projected'1kR of 12.7B%, which is sufficient to Custifr the risk of the required equity investment of $25.1 Million; (Doc. App. Ex. 4, at 17 — Tab VIII). Simply adding those two numbers together ($73.75 million of debt and $25.1 million of equity) provides for a total amount of debt and equity for the development of the project equal to $98.5 million. This is the exact total amount of the anticipated cost of construction as set forth in the Phased Capital Outlay. Therefore, neither the Phased Capital Outlay nor the amount . of debt and equity provided for by RCI in its financial pro forma contemplate the expense associated with the required Parking Trust Fund Contribution. With respect to the Alternative Proposal, the entire RCI narrative contains only one substantive reference. Following the discussion in which it expounds the benefits of the Preferred Plan, RCI states: As the RFP requires the Proposer to make a contribution to the MPA toward theeonstruction of a parking structure to provide the required parking for the Project, RCI has also submitted an Alternative Plan. that does provide the required parking in the. conventional 1VIPA garage along the Riekenbacker in the . location identified by the City in the RFP. RCI is prepared to make the required contribution of $15,000 per space to the MPA garage if it is to be built. — (Doc. App. Ex. 4, at 17). The foregoing provision is also noteworthy because it is the only reference in the entirety of RCI's narrative to the Parking Trust Fund Contribution. Given that #40354653_v1 8 Mr. Daniel Rotenberg April 12, 2016 Page 9 RCI's draft Lease Agreement eliminated the Parking Trust Fund Contribution under the Preferred Plan and RCI's financial analysis is devoid of any reference to the Parking Trust Fund Contribution, the discussion in the narrative is clear: the only reason RCI submitted the Alternative Plan was to ensure that they had a plan meeting the mandatory requirements of the RFP to provide the Parking Trust Fund Contribution and RCI was prepared to make the required contribution of $15,000 per space toward the Parking Trust Fund Contribution only if the City selected its Alternative Proposal. RCI Preferred Plan Found Non -Responsive On March 9, 2016, New Rickenbacker Marina wrote to the City pointing out serious concerns with RCI's Preferred Plan; principally, (i) the failure of RCI to contributeto the Parking Trust Fund Contribution in its Preferred Plan and (ii) the elimination of the Municipal Parking Garage constitute material variances from the RFP that require a finding that the Preferred Plan is nonresponsive to the requirements of the RFP. (Doc. App. Ex. 6, at 1). New Rickenbacker M.arina urged the City to preserve the integrity of the evaluation process by allowing RCI to proceed with a presentation to the Selection Committee, but only with its Alternative Plan. Id: Clearly, if RCI presented a non -responsive Preferred Plan to the Selection Committee, then the process would be compromised as it would be impossible to determine if the evaluation process was tainted by the non -responsive plan. After reviewing the facts, the City agreed that the Preferred Plan was non -responsive and informed RCI that the City would not allow a presentation including the Preferred Plan. (Doc.. App. Ex. 7, at 1). R.CI, however, objected to the decision made by the City. In order to convince the City to allow presentation of its Preferred Plan, RCI wrote a letter to the City on March 11, 2016, in which it, among other 'natters, (i) agreed to rescind its changes to Section 4.2 of the Lease Agreement, which had provided for an elimination of the Parking Trust Fund Contribution if RCI moved forward with the Preferred Plan, (ii) 'vehemently disagreed with New Rickenbacker Marina's characterization that its Preferred Plan called for RCI not making the Parking Trust Fund Contribution, and (iii) vehemently disagreed that the Preferred Plan called for the elimination of the Municipal Parking Garage, Id. at 1-2. Notwithstanding the fact that the representations made by RCI in its March 11, 2016, letter expressly contradict RCI' s proposal and effectively eliminate the two "unique benefits" of the Preferred Plan (the savings from the City not having to build the Municipal Parking Garage and the benefits of unobstructed views of the project resulting from eliminating the Municipal Parking Garage), the City; based on the representations made by RCI in its letter, changed course, allowing RCI to present its Preferred Plan under the following conditions: (1) the MPA will continue to build, operate, maintain, and collect revenue from, the garage; and (2) Proposer will provide the minimum required parking contribution of at least $3.45 million. (Doc. App. Ex. 8, at 1). At the oral presentations, RCI commenced by providing the following certifications: Proposer must clarify, which we hereby do, and specify to the selection committee that under either the preferred plan or alternative plan, the MPA will .continue to build,operate, maintain, and collect revenue from the garage. The proposer will provide the 9 #}44354653_v1 Mr. Daniel Rotenberg April 12, 2016 Page 10 minimum required parking contribution of at least $3.45 million. And we hereby make that statement and confirm it. (Doc. App. Ex. 9, at 9). With respect tothe certification that RCI "will provide the minimum required parking contribution of at least $3.45 million," on March 31, 2016, RCI further clarified what it meant by making such a certification: "Given that under the Preferred Plan; RCI would provide on -site all of the parking for its project, its required contribution to the MPA garage would be the $3,450,000 minimum detailed in the RFP or whatever amount the City and MPA chose to negotiate with the awarded proposer, as they have the discretion to do so." (Doc. App. Ex. 10, at 3). Evaluation Process On March 16, 2016, the Selection Committee met to score the proposals from the three proposers: New Rickenbacker Marina, RCI, and Suntex. The Selection Committee consisted of the following individuals: (i) Daniel Rotenberg (Director of the City of Miami Department of Real Estate. and Asset Management), (ii) Francisco Garcia (Director of the City of Miami Planning and Zoning Department), (iii) Kevin. Warthen (Right of Way Agent, Florida Department of Transportation), (iv) Rolando Tapan.es (Director of Planning and Development, MPA), and (v) Pamela Weller (Senior General Manager, Bayside Marketplace). (Doc. App. Ex. 11, at 1). After preliminary statements from City staff, which, amongst other matters, cautioned each member of the Selection Committee to score each of the proposals based on the criteria set forth in the RFP, the individual members of the Selection Committee proceeded to score each proposer on the Evaluation Form provided by the City. (Doc. App. Ex. 12, at 1). The Evaluation Form set forth the evaluation criteria contained in the RFP, separately listing each of the criteria with the respective scoring value for each such criteria as follows: 10 #40354653 v3 Mr, Daniel Ratenberg April 12, 2016 Page 11 EVALUA'TIIDNI cRli Mir '' allure Overall P roleind. Dee ra Pr ntersed IRefibulfalkara 8+nd1. rliwiiika 'I a P$DipacIrs illoCarripatibilily end eithanuetnen1 al ifkaster Plan features, i trornpaiiiailily between requited :arid prtp ;;ml rsze, 26 Eds. IF!*91;rgrp rr!p_ "I'# ?re _Ex ar 1 tegleePbj &:_ _ ,,PlinertafirM raperalkiriarl illislM DIP Rektmeil. expsnane2.3ri sir required use di i Linea iri rparul}e 1 lime the business alai iuiehlm..._ -._.- 13..�-_ art a liraraLianial anon OP Liarke lir i Plan Eloirrtpnwed oticienc?ct of marina liveratrion and sire uiiliimiofl Eireruw xis', iaiailti during nViruclirrni'ratlla,rri`ep171ont , Ijl_1__� Lurns. to ili ele+� . St Fits. PP REAM natdEria s al,,R'E'u lkle Vol- 2E1E is d Ciil a gild le hi fi4 :Z'awhen illable) Viii, Highest priejeLed r lum to the City Highest MifurnUm 8 Ise ke.ni: bn the `tip AESNEP...-0 Ilarreel Perlicilpatiori .. 5 is i • I *IFiiritig a City r a:.Edierib 0-Vibe ibe City i;.on1rc-octory *Local al Firm Participation TOTAL SW paints Id. The result of the evaluation process was as follows: RCI Than .Surntax Diif:1uvs 2 Dlf 1'vs al Daniel Rotenberg •85 92 81 7 11 Francisco Garcia . 8 84 77 4 11 Kern Werthen 95 94 84 1 11 • Rolando Taipanes 87 .90 •• 84 3 6 Pamela Weller 78 58 100 22 42 '433 418 426 As. set forth above, four Selection Committee members closely grouped all three proposers. With respect to those four members; the difference between the first place and the third place proposers was between 6 and 11 points. Although the other four committee members were split in their 11 i40354653.v1 Mr. Daniel Rotenberg April 12, 2016 Page 12 conclusion as to which Proposer ranked first, all of them coalesced on the fact that the Suntex proposal ranked last. On the other hand, Ms. Weller submitted an evaluation form with a 42 point difference -between -first and third place and concluded that. -not -only -was Suntex'-s proposal the best, but that Suntex submitted a perfect proposal, giving Suntex 100 out of 100 total points. Further, Ms. W eller's scoring sheet documented the reasons for her anomalous scoring. The first evaluation criteria — Overall Project Design -- calls for thecommittee to evaluate the overall project design, proposed renovations and activities and projects, specifically requesting____ that the committee member pay particular attention to the "compatibility and enhancement of Master Plan features" and "compatibility between required and proposed uses." With respect to this criteria, Ms. Weller justified her score by stating the following: "I was especially impressed with community outreach for SMI project." (Doc. App. Ex: 12, at 5*). EVALIIA1lNCRITERIA Value 1(RCI) 2Cafonj 3RUIecj COMMENTS Ovoid NalOargthoeoso6enovaolanslAclidh 2 'a 15 smr oi gC/1 IP o{� c 41fIxi h At ` " / j'.V-U ' Qij daz�c,1 C f c. WiA A Mifgh ' .*I i ipfoi - Kopahlhlyadmho eoloflAas9rPloth kora OrCunp$b 05Nrehn qUfel&Fltl ikP6N She then proceeded to give Suntex a perfect score and to give New Rickenbacker Marina only 40% of the possible points for Overall Project Design. . II. Standing As the only responsive proposer, New Rickenbacker Marina has standing to protest the City's award of the RFP to RCI. See Miami, Fla., Code of Ordinances Section 18-104(2)a. ("Any actual proposer who perceives itself aggrieved.in connection with the recommended award of [a] contract may protest ... "); Article XI of the RFP ("Any actual proposer who perceives itself aggrieved in connection with the recommended award of Contract may protest to the Director of Real Estate & Asset Management"). The third highest ranked bidder has standing where all higher ranked bidders are also challenged, or where the procurement process was fundamentally flawed requiring a full rebidding. See, e.g., NCS Pearson, Inc. v. Dept. of Education, Case No. 04-3976, 2005 WL 310776 at 1 J 85-87 (DOAH Feb. 8, 2005; F.O. Feb. 22, 2005) (third -lowest bidder had standing based on challenge to fundarnental fairness ofprocurenient process). Hi. Grounds for Protest It is axiomatic that a local government may not accept bids or enter into any contract resulting from a public bid process that contains a Material variance from the detailed plans set forth in the bid documents. Wester v. Belote, 138 So. 721 (Fla. 1931); City of Miami Beach v. Klinger, 179 So.2d864 (Fla. 3d DCA 1965); Gladstein v. City ofMiami, 399 So, 2d 1005 (Fla, 3d DCA1981). The .Florida Supreme Court in Wester succinctly summarized the reasons why: [I]t is theduty of public officers charged with. the responsibility of _ - letting contracts under the statute to adopt, in advance of calling for . bids, reasonably definite plans or specifications, as a basis on which ##40354653 vt 12 Mr. Daniel Rotenberg April 12, 2016 Page 13 bids may be received. Such officers, in view of such requirement, are without power to reserve in the plans or specifications so prepared in advance of the letting the power. to make exceptions, releases, and modifications in the contract after it is let, which will afford opportunities for favoritism, whether any favoritism is actually practiced or not. Neither can they include other reservations which by their necessary effect will render it impossible to make an exact comparison of the bids. Whether a request for proposal, invitation to negotiate, or a request for qualifications, a, public agency cannot allow a proposer to amend its proposal or bid to cure material variances found in its initial proposal. Gladstein v. City of Miami, 399 So.2d 1005 (Fla. 3d DCA 1981)("a bid containing a material variance is unacceptable"); Coin Laundry Equip. Co. v. Univ. of West Florida, Case No. 96-0962BID (DOAH July 5, 1996)("The failure of,a public entity to follow its own bid specifications is an arbitrary and capricious act and undermines the integrity of the bid process."). A public agency is not peuuitted to simply negotiate away material variances in a bid or proposal. Infinity Software Dev., Inc. v. Dep 't ofEduc., Case No, 11-1662BID (DOAH June 7, 2011)(rejecting the argument of the agency that because the procurement waS an invitation to negotiate, variances in the proposer's replies were "of no moment because there will be negotiations before a contract is awarded.") A number of Florida cases have tackled the question of what constitutes a minor irregularity versus a material variance from specifications. Generally, a material variance is one. that: (1) affects the price of the bid; (2) gives the bidder an advantage or benefit not enjoyed by other bidders; or (3). adversely impacts the interests of the procuring agency. Intercontinental Properties, Inc. v. HRS, 606 So. 2d 380 (Fla. 3d DCA 1992). A. RCI is a Nonresponsive Proposer because of Material Variances in its Proposal i, RCI Attempted to Avoid Parking .Trust Fund Contribution and the Construction of the Municipal Parking Garage RCI's bid proposal expressly failed to include a Parking Trust Fund Contribution as part of its Preferred Plan. We know this to be true because that is exactly. what ACT said in its draft Lease Agreement: As an alternative, Lessee, at Lessee's election may, in lieu of making the Parking Trust Fund Contribution provide for all of its required parking on the Premises at Lessee's sole .cost and expense. (Doc. App. Ex. 4, at 389*). In addition, the Preferred Plan calls for the City to use the City Designated Parking Area for surface parking, disregarding the express requirement in the RFP that the MPA build, construct, and operate .a Municipal Parking Garageas part of the overall project. Again, we know this to be true because RCI proposal eliminates the Parking Trust rand 13 4403540531 Mr. Daniel Rotenberg April 12, 2016 Page 14 Contribution necessary to pay for the Municipal Parking Garage and, just as importantly, because that is exactly what RCI said was the primary and "unique. benefit" of their proposal. (Doc. App. Ex. 4, at 9)(`-`utilizing this at -grade space for parking minimizes the visual impact of•the proposed Miami Parking Authority (MPA) parking garage and effectively eliminates a multi -story parking structure visually intruding on the view directly along the Rickenbacker Causeway ... "). For the reasons further explained below, the requirements set forth in the RFP for each proposer to make the Parking Trust Fund Contribution and provide for a Municipal Parking Garage constituted a material element of the RFP, which the City had no authority to waive or to permit a proposer to revise its proposal to include after bid subnii.ssion. Gladstein.v..City of Miami,.399 So.2d 1005 (Fla. 3d DCA 1981)("a bid containing a material variance is unacceptable"). The decision by RCI to submit the Preferred Plan Containing a material variance from the requirements of the RFP, and then proceed to present the Preferred Plan to the Selection Committee, requires a finding that RCI's proposal is non -responsive and ineligible for award. The failure of the Preferred Plan to include the Parking Trust Fund Contribution and eliminate the Municipal Parking Garage constitutes a non-waivable and non -curable material variance forseveral reasons. First, by exempting the proposer from making a large, upfront payment to the City, the Preferred Plan materially affects the financial returns generated by RCI's proposal. We note .that, by excluding the Parking Trust Fund Contribution, RCPs internal rate of return increases from 8.54% to 12.25%.4 (Doc. App. Ex. 12, at 1). 13 12 11 10 9 3 7 S 4 3 2 1 internal Rate of Return on Equity Comparison Submitted. i�esycxd Obviously, submitting a proposal that excludes a multi -million dollar payment, while the other proposers agreed to provide such contribution, both affects the price offered by the non -responsive proposer and grants to such non -responsive proposer advantages not otherwise enjoyed by the 4 The analysis assumes that the additional $7.38 million required for the. Parking. Contribution would come into the company. as equity. . We believe this to be a fair assumption considering the high degree of leverage already Contemplated by the pro forma. #40354653 v1 14 Mr. Daniel Rotenberg April 12, 2016 Page 15 other proposers; thus, constituting a non-waivable and non -curable material variance under applicable case law. Second, by moving forward with a plan. that calls for surface parking within the City Designated Parking Area, RCI fails to address the obligations of the City under the County Declaration of Restrictions, which places the City at risk of losing to the County a portion of the City Designated Parking Area. As set forth in the County Declaration of Restrictions, the City may only use the portion of the property transferred by the County for a municipal parking garage and the failure of the City to complete construction of the municipal parking garage by a date certain would result in the reversion of the property back to the County. (Doc. App. Ex.-5, at 11d-- 12). As such, there is little doubt that because RCI eliminated the payment of the Parking Trust fund 'Contribution under its Preferred Plan and, thus, "effectively eliminated" the Municipal Parking Garage, the interests of the City would be adversely impacted; thus, constituting a non- waivable and non -curable material variance under applicable case law. In its various letters to the City defending its proposal, RCI attempts to save their proposal by arguing the following: (i) RCI has agreed to "take back" its comments to Section 4.2 of the draft Lease Agreement and, therefore, the statement that RCI would not pay the Parking Trust Fund Contribution under the Preferred Plan should be of no consequence, (ii) if one ignores the language from the draft Lease Agreement, then one would clearly see that RCI's narrative provides that, even under the Preferred Plan, RCI committed .to making the Parking Trust Fund Contribution, (iii) the Preferred Plan, which calls for the elimination of the multi -story parking garage, does not stop the MPA from actually building a Municipal Parking Garage, and (iv) the RCI's Phased Capital Outlay, in fact, does reference the minimum Parking Trust Fund Contribution. RCI's attempt to. save their proposal fails for several reasons. First, the comments in the draft Lease Agreement clearly evidence the intent behind the Preferred Plan, which can also be discerned from RCI's narrative and fin.ancial analysis: -As set forth in RCI's March 31, 2016,.letter to. the City, RCI's statement that the project narrative provides clear evidence of RCI's commitment to pay the Parking Trust Fund Contribution under any circumstances rests entirely on one sentence found on page 9 of their project narrative. .(Doe. App. Ex. 10, at .2). RCI even quotes the sentence: "RCI is prepared to make the required contribution of $15,000 per space to the MPA garage' if it is to be built." Id. RCI, of course, takes this sentence completely out of context. The actual context of that one sentence — in a proposal spanning 448 pages — is as follows: As the RFP requires the Proposer to make a contribution to the MPA. toward the construction of a parking structure to provide the required parking for the Project, RCI' has also submitted an Alternative Plan that does provide the required parking in the conventional MPA garage along. the Rickenbacker in the location identified by the City in the RFP, RCI is prepared to make the required contribution of $15,000 per space to the MPA ---. garage if it is to be built. . #40354653v1 15 Mr. Daniel Rotenberg April 12, 2016 Page 16 (Doc. App. Ex. 4, at 17) . There can be little doubt that, based on the context of that one sentence, the "MPA garage" referenced therein relates only to the "conventional MPA garage" discussed in the immediately preceding sentence, which is contemplated to be constructed only -under the Alternative Proposal. We, again, know this to be true because the RCI proposal is replete with references to the Preferred Plan eliminating the need for the "visual ,intrusion" created by the Municipal Parking Garage and, as a result, the City saving $7.25 million. The comments set forth in Section 4.2 of RCI's draft Lease Agreement only memorialize this basic intent — described by RCI as its "unique benefits" — of the proposal to eliminate the Municipal Parking Garage. and, thus, the Parking Trust Fund Contribution, Simply eliminating the actual language ,memorializing the basic intent of the proposal does nothing to save the rest of the proposal. - Second, RCI's argument that the acceptance of the Preferred Plan would not inhibit the MPA from building the Municipal Parking Garage is of little avail. This statement runs counter to the express statements made by RCI that the Preferred Plan eliminates the Municipal Parking Garage and, again, the statements run counter to what RCI touts as the "unique benefits" of its proposal. The only way to cure such a deficiency was to force RCI to amend its proposal by certifying that it would provide the Parking Trust Fund Contribution under .the Preferred Plan; thus, enabling the MPA to construct the Municipal Parking Garage. However admirable the attempt by the City to cure the clear defects in RCI's proposal, this is exactly the type of post - submission changes to proposals prohibited by applicable case law. Third, when forced to face the obvious fact that the Phased Capital Outlay in its. proposal does not include the Parking Trust Fund Contribution, RCI simply chose to boldly assert what. can be .characterized as nothing less than a complete and utter fabrication.5 In its March 3.1., 2016, letter to the City, RCI argues that the Phased Capital Outlay includes $10,300,000 for parking, which amount "incorporates the required minimum contribution that RCI would need to make to the MPA garage." (Doc. App. Ex. 10, at 3). We challenge the City to find any reference to the Parking Trust Fund Contribution in RCI's Phased Capital Outlay. For ease of reference, we have once again reproduced the relevant portion of the Phased Capital Outlay below: PARKING -ENTRY SURFAO ' $ 1,750,000 .. $ 1,7.50,000 ..3,0Cw0;001 PARKING - IWR.o'?I $ 3,000,Lt .. PARKING » DM 'PARKING m $ 1,800,000 - • $ - 1,800,000 - DRY3 - - 1 3,00o,t1 31! S 3,000.000 PARIl1NG - EAST SUR' ACE _. 10,300,001 (Doc, .App. Ex, 4, at 117*).:If, as asserted by RCI, the Preferred Plan includes the constructionof the surface parking lots and the parking garage under its three dry .storage facilities at no cost to 5 RCI has consistently accused New Rickenbacker Marina of misrepresenting and misconstruing RCI's proposal., asserting that these misrepresentations — in and of themselves — warrant a finding of non -responsibility and a rejection of New Rickenbacker Marina's bid. As set forth in our March' 24ts letter, New Rickenbacker Marina has not misrepresented or misconstrued any portion of RCI's proposal. (Doc. App. Ex. 23, at 6.8). Certainly, the standard - articulated by RCI in its letters should be applied even handedly.to RCI and, as such, this clear misrepresentation of the contents of the Phased Capital Outlay — in and of itself -- warrants a rejection of RCI's bid. #I40354653_vI 16 Mx. Daniel Rotenberg April 12, 2016 Page 17 the City, then where exactly would the additional $7.38 million for the Parking Trust Fund Contribution in the Phased. Capital Outlay be found? The answer is fairly obvious: nowhere. This was not a. simple oversight: -RCI never intended to make -the Parking Trust Fund Contribution under the Preferred Plan and the itemization set forth in the Phased Capital Outlay proves that fact.. This case illustrates why allowing such post -submission "cures" severely undermines the competitive process: the decision to allow RCI to move forward with a Preferred :Plan modified to include the Parking Trust Fund Contribution meant that. the Evaluation Committee was not reviewing a proposal vetted through the Financial Review Committee. The Financial Review Committee .reviewed a financial analysis and pro forma no longer relevant to the plan presented by RCI to the Selection Committee. As indicated above, the pro forma, financing plan, and equity return are all premised on the Preferred Plan without consideration of the impact of the Parking Trust Fund Contribution. At this point, without having the Financial Review Committee vet the revised RCI proposal modified to include the Parking Trust Fund Contribution, it would simply be irresponsible for the City to move forward with RCI. Frankly; .the City has no idea right now whether or not RCI's own financial analysis proves it can perform. It is important to note that this is no ideal matter. RCI has proposed constructing the project by financing $73.55 million of debt, while contributing $21.5 million of equity. As set forthabove, the financial analysis presented by RCI is devoid of the Parking Trust -Fund Contribution, which would add significantly to either the amount of debt or equity needed for the project. This very significant debt load will create substantial issues for RCI. Based on his analysis, it remains the professional opinion of our expert — Mr. Anthony M. Graziano -- that such a capital structure will have a severe and negative impact on the ability of RCI to find sources of both debt and -equity. (Doc..App. Ex. 12, at 1-2).For example, even without taking into consideration the addition of the Parking Trust Fund Contribution, (i) the debt coverage ratio (the ratio setting forth the ability of the cash flow to service debt) for the project is below 1.2 into the 8th year of the pro forma, (ii) between years 4 through 7, the project will becash flow negative, which means that .without follow-on equity, the project cannot service the anticipated debt load, and (iii) the expected internal rate of return will equal 12.25 percent (dipping to 8.54% if the Parking Trust Fund Contribution is added to the: financing plan as an additional equity contribution). Id. In Mr. Graziano's professional opinion, the project as proposed by RCI is simply not financeable and, considering the need for equity investors to guarantee all or substantial portions of the $73.55 million in debt, the project is not likely to attract any equity investors based on the anticipated internal rate of return. Id. This information would have undoubtedly been material to the deliberations of the Financial Review Committee and would have impacted their view of the feasibility of the project as presented by RCI: ii. RCI Atternpt to Cure Is Also .Non -Responsive; Continues to Avoid Payment of Full Amount of Parking Trust Fund Contribution As set forth above, the RFP provides for a rather simple calculation of the Parking Trust Fund Contribution: calculate how much square footage of retail and restaurant space and calculate how many boat slips your plan proposes, apply the formula in the REP, and multiply the resulting #40354655 vi 17 Mr. Daniel Rotenberg April 12, 2016 Page 18 number by $15,000 and this would constitute each proposer's Parking Trust Fund Contribution. Neither the RFP, the Lease Agreement, nor any of the 30 addendums to the RFP issuedbythe City provided for a negotiation process to determine the final calculation of the Parking Trust -Fund Contribution.' This was exactly the view taken by RCI in its proposal. As set forth above, when discussing the Alternative Plan, RCI stated: "RCI is prepared to make the required contribution of $15,000 per space to the MPA garage if it is to be built." (Doc. App: Ex. 4, at 17). When pressed by one of the Selection Committee members to commit to the Parking Trust Fund Contribution, RCI stated as follows: "The RFP requires a $15,000 per space contribution, which is estimated at 50 percent of the cost of actually producing it." (Doc. App. Ex. 9, at.63). Based on the development proposed by RCI and the standards set forth in the RFP, this rather straight -forward calculation yields a Parking Trust Fund Contribution by RCI in the amount of $7.38 million. See infra at Page 5. This amount, however, is not the amount that RCI proposes to pay to cure its initial failure to include any Parking Trust Fund Contribution with the Preferred Plan. In their March 31, 2016, letter to the City, RCI states as follows: Given that under the Preferred Plan, RCI would provide on -site all of the parking for its project, its required contribution to the MPA garage would be the $3,450,000 minimum detailed in the RFP or whatever amount the City and MPA choose to negotiate with the awarded proposer, as they have the discretion to do. (Doc. App. Ex. 10, at 3). Once again, RCI is purposefitlly attempting to misconstrue the Parking Trust Fund Contribution .requirements to benefit its project. The RFP, after detailing the calculation methodology for determining the number of parking spaces generated by a project for purposes of calculating the Parking Trust Fund Contribution, states: "However a minimum, of 230. parking spaces. shall be required (for a total minimum parking garage contribution of $3,450,000.00 ...)." Thee only reasonable interpretation of this provision is that, for projects generating less than the minimum 230 parking spaces (based on the formula), the RFP would still require a minimum contribution of $3,450,000. It is simply unreasonableto interpret this provision as an invitation to negotiate the amount of the Parking Trust Fund Contribution to the Minimum if a proposer provides — as all proposers did — parking outside of the Municipal Parking Garage. If such was the case, the formula set forth in the RFP and repeated in the. Lease Agreement would simply have provided that the total number of parking spaces used in calculating the Parking Trust Fund Contribution would be lowered by the number of parking spaces proposed to be .constructed by the proposer. The RFP does not provide for any such adjustment. Incredibly, after already arguing themselves out of a finding that the Preferred Plan was non -responsive for failure to provide the full amount of the Parking Trust Fund Contribution, RCI's proposed cure still short-changes the City by approximately $3,930,000. Agaiin, this e Section 4.2 of the Lease Agreement does provide for an adjustment to the amount of the Parking Trust Fund Contribution, but such adjustment does not relate to the matters set forth in this bid protest. Section 4.2 of the draft Lease Agreement includes the following adjustment: "Tho Parties acknowledge that the final calculation of the Parking Trust Fund Contribution may fluctuate based on the actual gross leasable retail square footage constructed by the 1V1PA as retail area within the Parking Facilities; therefore, the actual amount of the contribution will be adjusted (based on the formula set forth in the RFP) upon completion of the retail area within the Parking Facilities.' 18 #40354653_1d Mr, Daniel Rotenberg April 12, 2016 Page 19 rather astonishing admission — in and of itself— demonstrates the fast and lose games being played by RCI to avoid the Parking Trust Fund Contribution and is sufficient to find the RCI proposal non -responsive. RCI'sfailure to pay the full amount of the Parking Trust Fund Contribution is a material variance to the requirements of the RFP, warranting a finding of non -responsiveness for the same reasons set forth above. B. Suntex is a Nonresponsive Proposer; Fails to Meet Threshold Qualification Standards The purpose of competitive bidding for the award of public contracts is to ensure fairness to prospective bidders and to secure the best value for the public. Therefore, competitive bidding must "afford an equal advantage to all desiring to do business with the public authorities, by providing an opportunity for the exact comparison of bids." Wester v. Belote, 138 So. 721, 722 (Fla. 1938). There can be no fair comparison of bids Hall bidders in an RFP are not required to comply the mandatory requirements of the RFP.7 See American Lighting and Signalization, Inc. v. Dept. of Transp,, DOAH Case No. 10-7669BID at *22 (Fla. Div. Admin. Hrgs. Dec. 1, 2010) (holding that anagency is not allowed "to waive or ignore information that is mandatory on its face" as set forth in the RFP); Coin Landry Equip. Co. v. The University of West Florida, .DQAH Case No. 96-0962BID,. 1996 WL 1060244, at *8 (Fla. Div. Adn-iiri, Rigs. July 5, 1996)("The failure of a. public entity to follow its own bid specifications is an arbitrary and capricious act and undermines the integrity of the bid process."). As set forth above, Section VI(F)(12) of the RFP sets forth the "Threshold Qualification Standards" for all proposers wishing to participate in the RFP. In mandatory language, the referenced provision states: (12) Threshold Qualification Standards: Each Proposer shall meet the following five (5) minimum requirements: (a) Either a member of the Project Team or staff must have a minimum of ten (10) years' experience with a marina of similar size and complexity; a minimum of ten (10). years active experience and responsibility for daily operations of the restaurant, as well as a nxinilnum of five (5) years' experience for each additional business use proposed to be operated by the successful Proposer. (Doc. App. Ex. 4, at 33). The RFP further indicates — in a . section entitled "Minimum Qualifications" -- that the "Proposer must demonstrate that it has the applicable number of years of experience in the management and successful operation of marina, restaurant and any ancillary 7 As is the case her; by use of the words "must" and "shall" the City indicated which requirements of.the RFP- were mandatory. See Jacobs Assoc,, Inc., v. Department of Correctinnss DOAH Case No. 9605831BID, 1997 WL 1052872, at 2 (Fla. Div. Admin. tIrgs. March 4, 1997)("[c]crtairi provisions were deemed mandatory requirements, generally by use of `sha11,' `must,' or 19 /440354653•v1 Mr, Daniel Rotenberg April 12, 2016 Page 20 facilities of equal size and complexity as detailed in the threshold standards in Section VI(F)(12) of this RFP." (Doc. App. Ex. 4, at 34)(emphasis added). As such, one of only a handful of threshold qualifications/minimum qualifications set forth in the RFP is "a minimum of ten (10) - - years active experience and responsibility for daily operations of the restaurant." A review of Attachment 5 of Suntex Proposal reveals experience in acquisition/development, business development, redevelopment, branding and advertisement, and construction, but does not reveal a single person with experience in the daily operations of a restaurant. (Doc. App. Ex. 14, at 77*). A further review of the entirety of the Suntex Proposal does not reveal a single person or entity with experience covering the day-to-day responsibility for the operation of a restaurant.$ The case law does not provide the City with the discretion to simply waive the minimum qualifications established in the RFP. As set forth in the City's letter of March 14, 2016, a "[f]inding that a proposalis responsive requires only a determination that the proposal meets the minimum requirements of the RFP." (Doe. App. Ex. 15, at 2). It is clear that Suntex failed to meet all of the mandatory requirements of the RFP by failing to include an individual in the Project Team with experience in the operation of restaurants, • compelling • the City to find the Suntex Proposal. non -responsive. In addition, the addition of the parking garage and the. construction of a building over an area prohibited by the RFP constitute material variances that grant to Suntex an unfair competitive advantage; which would independently compel the City to reject the bid. The detailed discussion related to such claims is set forth in New Rickenbacker Marina's correspondence to the City, dated March 11, 2016, and incorporated herein by reference. A copy of the letter is attached as. Exhibit 15 to the: Document Appendix. C. Selection. Committee Scoring Arbitrary and Capricious I. Ms.. Weller's Anomalous Scoring Constitutes Arbitrary and Capricious Scoring, Courts routinely overturn agency decisions that arise from arbitrary and capricious actions. "An action is 'arbitrary if it is not supported by logic or the necessary facts,' and 'capricious if it is adopted without thought or reason or is irrational.t" Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 38 (Fla. 1st DCA 2006). When scores issued by a selection committee member are not rational, supported by logic, or clearly erroneous, the agency is required to reject such scores. See Centurylink Public Communications, Inc. v. Dept of Corrections at ¶j146, 149, Case No. 14- 002828BID) (DOAH: Sept. 4, 2014; F.O. Oct. 6, 2014)(holding that the evidence presented regarding anomalous scoring by an evaluation committee member lead to a "definite and firm conviction that a mistake has been committed" warranting rejection). In Centurylink, a selection committee mer berprovided a proposer zero points for its plan to meet the specified performance 8 In fact theonlyreferences to restaurants in the Suntex Proposal are references to Suntex's management of certain real estate assets that contain restaurants. See Suntex Proposal at Pages 34 and 48. Based on such references, it seems that Suntex does not have any relevant experience in the operation of restaurants, only as a landlord to tenants that happen to run. restaurants. 20 /440354653 v1 Mr. Daniel Rotenberg April 12, 2016 Page 21 measures set forth in the RFP, but the proposer, in fact, had submitted information that set forth such plan. The administrative law judge found that it was simply not rational or supported by logic that an evaluation committee member would fail to give some points to the proposer in such category and., thus, rejected the score. The administrative law judge specified that such scoring "is contrary to competition because it severely undermined the ability of the Department to award the contract to a competent possible provider." Id. As in Centurylink, the fact that Ms. Weller gave Suntex a perfect score, considering the material deficiencies in their proposal, leads to a definite and firm conviction that Ms. Weller committed a mistake in evaluating the proposals warranting rejection of her scores. Ms. Weller submitted an evaluation form with a 42 point difference between first and third place and, stunningly, concluded that not only was Suntex's proposal the best, but that it was perfect. (Doc. App. Ex. 12, at 5*). This deserves repeating: Ms. Weller gave Suntex a perfect 100 out of 100 points. Certainly, the mere fact that she found Suntex's proposal perfect should give pause. But it is astounding that Ms, Weller gave Suntex perfect scores for team experience notwithstanding the fact that Suntex failed to identify a single person in its entire team with any operational experience in operating restaurants, which was a minimum threshold requirement of the RFP. One would think that failing to meet one of only a handful of minimum qualifications would warrant something other than a perfect score on team experience. In addition, Ms. Weller provided Suntex with a perfect score with respect to the anticipated financial returns of its proposal to the City. Using any relevant measure, the financial return offered by New .Rickenbacker Marina is higher than both the Suntex and RCI proposals. As set forth in Mr. Graziano's analysis, the net present value (which calculates the present total value of the anticipated revenue stream proffered by each of the proposers), when equalizing for the discount rate, results in the following value for each proposer: 1. New Rickenbacker Marina: $64,000,000 2. Suntex: $57,000,000 3, RCI: $50,500,000 (Doc. App. Ex. 17, at 4). This analysis makes sense because, although each proposer offered a fairly comparable number of dry and wet slips, New Rickenbacker Marina offered to construct a higher amount of retail development on the property and provided for two more restaurants than Suntex and one more restaurant than RCI. (Doc. App. Ex. 17, at 9). But for the anomalous and clearly erroneous scores submitted by Ms. Pamela Weller, New Rickenbacker Marina unquestionably would have been the recommended proposer, beating out RCI by 5 points. The numbers tell the story: 21 #40354653 v1 Mr. Daniel Rotenberg April 12, 2016 Page 22 RCI Tifdin Suntex Dif 1" vs 2" Leif 1" vs 3" Daniel Rotenberr 85 92 81 7 .11 Frandsen •Garde 83 84 77 4 11 KermWertherr 95 94 84 1 11 Rolando Taiparsas. 87 90 84 3 6 Pamela Weller 78 58 100 22 42 433 418 426 The four other evaluation committee members closely grouped all three proposers. The difference between the first place and the third place proposers was between 6 and 11 points. Although the. other four committee members were split in their conclusion as to which Proposer ranked first, all of them united to conclude that Suntex proposal ranked last. Given the material issues with Suntex's proposal, it is simply not rational to conclude that Suntex deserved a perfect score, .which evidences clear error in Ms. Weller's scoring of the proposals. ii. Ms. Weller Used Scoring Criteria Outside of the Criteria Provided by the RFP Further, Ms. Weller's scoring sheet comments provide evidence of another material defect. The first evaluation criteria calls for the committee to evaluate the overall project design, proposed renovations and activities and projects, specifically requesting that the committee member pay particular attention to the "compatibility and enhancement of Master Plan features" and "compatibility between required and proposed uses" Clearly, this criteria requires that the selection committee members review the architectural and landscape design and proposed uses of the property (marina, retail, restaurant, office, ete.) and determine which of the proposals is most consistent with the Virginia Key Master Plan and which set of proposed uses are most compatible for the site. Notwithstanding the clear and unequivocal admonition from City staff to each of the selection committee members to score each proposal based only on the criteria set forth in the RFP, Ms. Weller decided to score the proposals based on her own criteria. Specifically, she justified her score with respect to "Overall Project Design" by stating the following: "1 was especially impressed with community outreach for SMVII project." She then proceeded to give Suntex a perfect score and gave New Rickenbacker Marina only 40% of the possible points. EVALUATION MITEAA - Yoko 1L11C9 2(iilaRf- a{esmasl COkNEfeT$ - - - wa.nuProtect nasnmarcPraia.aaovawnFM AmI.Nj�s. 2 6. 20 to - 15 - SM_r. and QCA h2t did Gj1 a '" k? ai.s �� ew-rt �v ' «Th V W h d'h.e. Q+w i l pa' e e„- -1 v.,nncpt . pave - o��k / 1P1 - Vx.� 1 anfh'AVk*-1 . lj Eet.o j4o? SMTC b arnv.fl. firmnpefNraanesnBumnaonsmvivo¢rq,naw.'as Fca�gnitNyamwen wire and pracaraaasn It goes without saying that the nature and extent .of the community outreach by any individual proposer was not one of the evaluation criteria that would evenly remotely relate to the "Overall Project Design."9 Moreover, the nature or extent of community outreach by a proposer is not set 9 In its March 22, 2016 letter, RCI tries to rescue Ms. Weller's attemptto use criteria outside of those specified:in the RFP by arguing that 5untexhad proposed to modify its site plan in accordance with input it receives from community stakeholders and, therefore; community outreach constituted a portion of their design plan. This attempt, however, 22 #40354653_v1 Mr, Daniel Rotenberg April 12, 2016 Page 23 forth as a criteria in any one of the RFP's five evaluation criteria. Not only is "community outreach" not one of the evaluation criteria, but the phrase "community outreach" is not mentioned or referenced even once in the RFP or in any of the thirty (30) addendums issued in conjunction with the RFP. This much is clear cutan evaluation committee member cannot use criteria outside of the published criteria to evaluate proposals. It is, in fact, axiomatic that evaluators may not look outside the RFP criteria when conducting their reviews of the submitted proposals. R. N. Expertise, :Inc. v. Miami -Dade County School Board, et al, Case No. 01-2663, 2002 WL 185217 at 1144 (DOAH: Feb. 4, 2002; F.O. Mar. 14, 2002)("From the requirement that requests for proposals state all of the evaluation criteria logically follows the rule that proposals shall be evaluated only on the stated criteria"). Here, Ms. Weller undoubtedly misapplied the published criteria and compounded the mistake by applying an evaluation criteria not found anywhere in the RFP. This fact, in and of itself, warrants the decision by the City to disregard the evaluation scores submitted by Ms. Weller. iii. Ms. Weller's Conflict of Interest Warrants Rejection of Score The City. should never have named Ms. Weller to .the Selection Committee because her clear conflict -of -interest disqualifies her from participating in the evaluation process. Ms. Weller is the senior general manager. of .Bayside Marketplace. (Do.c. App. Ex. 11, at 1). Bayside Marketplace is a tourist -oriented retail development on city -owned property containing restaurants and general retail . uses developed around an existing wet -slip marina. The RFP calls for the construction of a marina containing restaurant(s) and permitting for general retail uses on City - owned property. Based on the goals of the RFP, each proposer made the case that their project would create Miami's newest tourist destination. For example, the RCI proposal states that "[lab/ improving: the Marina, restaurant, and ancillary waterfront uses, in. addition .to creating a continuous Baywalk, RCI will enhance the destination market appeal for both locals and tourists" (Doe. App. Ex: 4,. at 3). The Suntex proposal expounds that"[ojur team members have the expertise necessary to create a new landmark on the Miami waterfront that willendure for generations by integrating complementary attractions such as restaurants, retail, and recreational amenities that will attract visitors from around the world, while also providing community boating facilities that will directly benefit local families and boaters of all abilities" (Doc. App. Ex. 14, at 5). The New Rickenbacker Marina proposal states the following: Our goal is to create an iconic structure that capitalizes on its, privileged location by promoting architecture in tune with the natural beauty of the surrounding area and favoring the unparalleled views of downtown Miami. This will result in a facility that ultimately appeals to a very wide audience. With the highest quality entirely misses the mark. The evaluation criteria does not ask the selection committee to look at some future potential design for the project. It asks each selection committee member to make a definite determination as to which proposal is most compatible with the Virginia Key Master Plan and provides the most compatible mix of uses as proposed. In fact, the notion that Suntex can materially change a design incorporated in. its RFP proposal, which if successful will ultimately be approved by referendum, runs contrary to procurement case law. See City of Miami Beach v. Klinger, 179 So.2d 864 (Fla. 3d DCA 1965). 23 i140354653 vl Mr, Daniel Rotenberg April 12, 2016 Page 24 of services, coupled with a unique architectural style and lush landscaping, Tifon Miami is destined to become a "must" for residents and tourist& (Doc. App. Ex. 18, at 11). Clearly, the RFP demanded, and each proposer responded with, projects that will undoubtedly compete with Bayside Marketplace; thus, creating an untenable organizational conflict -of -interest for Ms. Weller, by placing her in a position to evaluate a project geared to compete in the real estate marketplace for tenants, customers, and tourists with Bayside Marketplace. The existence of this type of organizational conflict -of -interest from a member of the selection committee warrants the establishment of a new selection committee and the re-evaluation of the proposals. In re DZS/Baker LLC; Morrison Knudsen Corporation, B-281224, 1999 WL 46706 (Comp. Gen. Jan. 22, 1999) illustrates the point: the Comptroller General overturned the decision of the evaluation committee because of the existence of an improper conflict of interest. The Comptroller General concluded that the agency evaluators "are potentially unable to render impartial assistance or advice to the contracting officer" because they were "in effect evaluating a competitor's proposal" and recommended that the agency rescind the cancellation of the solicitation recommended by the tainted selection committee, constitute a new evaluation team and re-evaluate the proposals. The decision reached by the Comptroller General in In re DZS/Baker LLC is consistent with a myriad of precedent covering a broad array of situations. See e.g., Compass Environmental, Inc. v. Department of Environmental Protection, DOAH Case No. 05-0007BID, 200.5 WL 678870 (Fla. Div. Admin. Hrgs. March 21, 2005) (Recommended Order found that there was an appearance of impropriety where an evaluator had a professional relationship with a proposed subcontractor) (recommendationnot adopted by agency in Final Order); Transportation Management Services of Broward, Inc. v. Commission for the Transportation Disadvantaged, Case No. 05-0920BID, 2005 WL 1210021 (Fla. Div. Admin. Hrgs. May 20, 2005) (appearance of impropriety where evaluator had on -going business, personal and professional relationship with the principal of a proposed subcontractor);NKF Engineering, Inc. v, US., 805 F.2d 372, 378 (Fed. Cir. 1986) (concluding that the appearance of impropriety due to an organizational conflict of interest justified disqualifying a bidder to preserve the "integrity of the bidding system"); Monterey Consultants, Inc. v. U.S., 120 Fed. C1. 567,572 (2015) (concluding that an actual organizational conflict of interest is unnecessary to disqualify a bidder and noting that merely the appearance of an organizational conflict of interest that creates a potential for impropriety is sufficient to disqualify a bidder); In Re: Aetna Government Health Plans, Inc., B- 254397, 1995 WL 449806, * 12 (Comp. Gen, July 27, 1995) (agreeing that revocation of an award to a bidder was appropriate due to an organizational conflict of interest and emphasizing that "[t]he facts that are required, however, are those which establish the existence of the organizational conflict of interest, not the specific impact of that conflict. Once the facts establishing the existence of an organizational conflict of interest are present, reasonable steps to avoid, mitigate, or neutralize the conflict are required without further need for 'hard facts' to prove the conflict's impact on the competition. Where, as here, the facts demonstrate that an organizational conflict of interest exists, the harm from that conflict, unless it is avoided or adequately mitigated, is presumed to occur"). 24 W40354653 v1 Mr. Daniel Rotenberg April 12, 2016 Page 25 Although case law does not require a showing of actual prejudice or harm, the mere appearance of a conflict of interest is sufficient to disqualify the selection committee member, an analysis of Ms. Weller's scoring of each of the three proposers shows a pattern of clear bias. Ms. - Weller's scores have a direct correlation between the amount of competitive retail and restaurant space10 offered by each of the proposers and the final scores provided by Ms. Weller. The Suntex • proposal contains approximately 25,500 square feet of competitive retail and restaurant space (Doc. App. Ex. 14, at 72*), the RCI proposal contains approximately 45,000 square feet of competitive retail and restaurant space (Dec. App. Ex. 4, at 342*), and the New Rickenbacker Marina proposal contains approximately 98,000 square feet of competitive retail and restaurant space (Doc. App. Ex. 18., at 11). Graphing the inverse correlation between the scores provided by - Ms. Weller to each proposer and the amount of competitive retail and restaurant space •illustrates the clear bias evidenced in Ms. Weller's scoring: Correllatlon Analysis of Weller°s Scores kiitex RCI MR M - —._ � 106 7s 58 ;Scor - 5q. 225 45 S. Ft_ This inverse correlation certainly provides tangible evidence that — whether consciously or unconsciously— Ms. Welter's vote was skewed to the projects that would provide lesscompetition to the Bayside Marketplace and demonstrates not only the appearance of a conflict of interest but the existence of an actual conflict of interest that impaired Ms. Weller's objectivity. 1V. • Relief Sought For the reasons set forth above, neither RCI nor Suntex are responsive bidders. Therefore, the decision of the City Manager to recommend award to RCI cannot be sustained and must be 10 The analysis includes theamount of general retail and restaurant square footage provided ineach proposal, subtracting retail uses that would not otherwise be competitive to Bayside Marketplace. For example, Bayside Marketplace does not include ship stores nor is it oriented towards the retail sale of boats and ships; therefore, the MarineMax showroom, offices and service center contained in the Suntex Proposal has not been included in this analysis. 25 P40354653 v1 • Mr. Daniel Rotenberg April 12, 2016 Page 26 cancelled forthwith. New Rickenbacker Marina, as the only responsive proposer," should be awarded the REP. In the alternative, as a result of the anomalous scoring and clear conflict of interest of one of the selection committee members, the City should either disregard Ms. Weller's scores or reconstitute a new selection committee and re-evaluate the proposals. 11 In its March 22, 201.6, RCI details a number of alleged responsiveness and responsibility issues with New Rickenbacker Marina's bid. These allegations either misconstrue the applicable requirements of the RFP or center on mattes that do not rise to the level of material variances under the applicable case law. First, RCI alleges that New Rickenbacker Marina proposes an unrealistic two-year timefranie to complete construction; however, this allegedly unrealistic two year time frame to complete construction was actually a requirement under the RFP (Doc. App. Ex. 3, at 33'')("All physical improvements for all project components must be completed within twenty-four (24)-months from execution of the Lease by both parties, unless the successful Proposer applies for and receives a waiver from the City"). Second, RCI alleges that the rental projections are substantially overstated; however the rental projections provided by New Rickenbacker Marina were substantiated by a market study and the decades of experience of New Rickenbacker Marina's retail team, which includes Walter Defortuna, a seasoned and well -respected developer with expertise in developing unique retail properties. Third, RCI alleges that New Rickenbacker Maria's plans violate the 50' charter setback; however, RCI fails to provide any facts to substantiate the allegation and a simple cursory review of RCI's plans and New Rickenbacker Marina's plans shows almost identical treatment of baywalk areas. Fourth, RCI alleges that New Rickenbacker Marina's violate the flood zone requirements; however, as indicated by New Rickenbacker Marina's architect of record, such allegation ignores the relevant code provisions (Section 20-4 (b), City of . Miami Code of Ordinances) and guidance (ASCE 24-05 Flood Resistant Design and Construction), which specifically contemplate building within special flood zone. Fifth, RCI quibbles with thequality of New Rickenbacker Marina's architectural plans; however, they fail to specifically identify any mandatory element of the RFP that New Rickenbacker Marina's architectural plans fail to meet. Sixth, RCI points to discrepancies in the number of slips and parking spaces between the plans and the narrative; however, even if these discrepancies existed, they are of the type that do not meet the legal definition of a material variance. For example, the number of parking spaces detailed in the site plan for a project is immaterial because, as RCI has repeatedly pointed out, the RFP did permit proposers to locate some ancillary parking and suggest a larger. Municipal Parking Garage. The critical and material parking numbers relate to the calculation of the Parking Trust Fund Contribution, which RCI chose to eliminate from its Preferred Plan. Finally, RCI questions New Rickenbacker Marina's ability to construct the project proposed within its capital budget, which allegation ignores the decades of construction experience of New Rickenbacker Marina's team and the fact that the potential for expenditures above the capital budget have already been contemplated as New Rickenbacker Marina's cornrnitted equity substantially exceeds its contemplated capital budget (Doc. App. Ex. 18, at 263*). Again, these types of subjective disagreements pointed out by RCI simply do not constitute material issues or responsiveness or responsibility warranting the rejection of a bid. 26 1140354653 vl Mr. Daniel Rotenberg April 12, 2016 Page 27 Document Appendix 1. Request for Proposals (RFP) No. 12-14-077 Lease of City -Owned Waterfront Property for Marinas/Restaurant/Ship's Store Uses, Issued June 15, 2015 2. .Attachment No. 9 (Draft Lease Agreement) to Request for Proposals (RFP) No. 12-14- 077 Lease of City -Owned Waterfront Property for Marinas/Restaurant/Ship's Store Uses, Issued June 15, 2015 3. Compilation of Addenda issued by the City of Miami pursuant to Request for Proposals (RFP) No. 12-14-077 Lease of City -Owned Waterfront Property for Marinas/Restaurant/Ship's Store Uses, Issued June 15, 2015 4. Response to Request for Proposal by Virginia Key, LLC ("RCI"), dated January 28, 2016 and submitted to the City of Miami 5. Miami -Dade County Resolution No. R-735-15 and Memorandum, dated September 1, 2015, attaching County Declaration of Restrictions 6. Letter from Holland & Knight, dated March 9, 2016, re: City of Miami RFP No. 12-14- 047.(the "RFP") / RCI Group and Virginia Key, LLC / Material Variance Resulting from Preferred Plan 7. Letter from Bilzin Suxnberg, dated March 11, 2016, re: Limitation on Oral Presentation 8. Letter from City of Miami, dated March 14, 2016, re: Limitation on Oral Presentation regarding Virginia Key Marina RFP No. 12-14-077 9. Transcript of Oral Presentation (Virginia Key, LLC), dated March 15, 2016. 10. Letter from Bilzin Sumberg, dated March 31, 2016, re Tifon's Repeated Misrepresentations Regarding RCP s Proposal 11. Memorandum from Daniel Rotenberg to Daniel J. Alfonso (City Manager), dated February 26, 2016, re: Financi.al Review Committee for Virginia Key Marina Request for Proposals No. 12- 14-077 12. City of Miami Evaluation Forms for Virginia Key Marina RFP, dated March.16, 2016. 13. Integra Realty Resources Memorandum from A.M. Graziano, dated April 11, 2016, re RC' Financial Analysis - Flaws in Ability to Finance / Equity Return 14. Response to Request for Proposal by Virginia Key SMI, LLC ("Syntex"), dated January 29, 2016, and submitted to the City of Miami 15. Letter from Holland & Knight, dated March 11, 2016, re: City of Miami RFP No. 12-14- 047 (the "RFP") / Virginia Key SMI, LLC d/b/a"Suntex Marinas / Non -Responsiveness Issues 27 040354653NE Mr. Daniel Rotenberg April 12, 2016 Page 28 16. Letter from City of Miami, dated March 14, 2016, re: Response regarding Suntex Proposal to Virginia Key Marina RFP No. 12-14-077. 17. Comparative RFP Presentation (Power Point) prepared by Integra Realty Resources Miami and Presented to the Selection Committee on March 15, 2016. 18. Response to Request for Proposal by New Rickenbacker Marina, LLC, dated January 27, 2016 andsubmitted to the City of Miami 19. Memorandum from Daniel Rotenberg to Daniel J. Alfonso (City Manager), dated March 16, 2016, re: Recommendation for Virginia Key Marina Request for Proposals No. 12-14-077 20. Letter from Bilzin Sumberg, dated March 22, 2016, re Scoring of Responses to Virginia Key Marina RFP No. 12-14-077 (the "RFP") 21. Letter from Bilzin Sumberg, dated February 16, 2016, re: Request for Clarification to Virginia Key, LLC Proposal in Response to Request for Proposals No. 12-14-077 for Lease of Virginia Key Marina ("RFP") 22. Letter from Suntex Marinas, dated February 18, 2016, Response to Request for Clarification to Virginia Key SMI, LLC Proposal in Response to Request for Proposals No. 12- 14-077 for the Lease of Virginia Key Marina 23. - Letter from Holland & Knight, dated March 24, 2016, re: City of Miami RFP No. 12-14- 047 (the "RFP") / Virginia Key, LLC ("RCI") Non -Responsiveness Issues Related to Preferred Plan and Failure to Include Payment of the Parking Trust Fund Contribution (the "Parking Contribution") and Allegations of Misrepresentations. In addition to the referenced documents, New Rickenbacker Marina incorporates by reference the letters (and related attachments) delivered by the City of Miami by Holland & Knight referencing issues arising from the RFP. Holland & Knight has also requested from the City of Miami various public records (principally, the video and transcripts of the selection committee meetings). As of the date hereof, the City has not made available to New Rickenbacker Marina such public records. New Rickenbacker Marina hereby reserves the right to supplement this Document Appendix with such records and supplement the arguments set forth in this Written Protest with any matters arising from a review of such records, 28 40354653_v1 Ai 11111.1r11111,11111.11.1.„<1. „„,,,:, „ fHlsl;noGllM tJ7 ci.NmAltJS A FFIUEVATCFNIA liC E101 .1_ 10WIT 7OMEVif • OFFICIAL CHECK x.,,imo,im,nn ,n ,,, n,,,,eni,umn,,,,n,i1wiLn ISSUING BRANCH 851°2C1 ; 411' DATE APR :- :i 1 201.E ;236151 • ❑OLLAIAS 412 iaas 3 a:6404v 1i0 s 010 2 3.691:000 10 /90 1001170 q • 0. ORIZ f7; SiCA!jAI New Rickenbacker Marina .,1!..Bid Protest Appendix . . N C RO NTICTT OREA AST MAN NEW RIC, i iRR MC 'I, LC, (TI O CITY OP MIE, a 3oII u c'v i,Y oche State ti and VIR , tLO (RCI), IN TIM, PROTCST OF 'THE MARCH Ui 2016 MANAGER% RECOMMENDATION F AWARD. OP VIRGINIA KEG'' MARINA ` EQVZST yy����gga� F X P .! . 12-14-07 f 1 Interverion VIRGINIA KEY, LLS RESPONSE ECKENBACKER'M1A I LLC'S A:U.01AL wrarrtN PROTEST TO TH :pT\' OF l IA irgi ia key, - referred to as ' . T' `P. '" herby r..portds in o itit to % i r I ie e i a leer. Mi re „ LLC Ti" ' a (" mote t of mni zi A aTa mistingmiating to Virginia Key Request for Proposals 1 44-("RVI)9) -at was i d by the+ t . lvitarrti (the "'City' s the following; tanked Mirka • Why, was 'Ti tm k 410t coliVIY with critieillY itn: tant s proposed d count regulation& Z1 :$UM EtAENA PR GE. & i 14iAbl ' 4 RYi1 9 i oiil ittvY V Maim i t1 'Ft- ti f k e a 466' Tifores proposed plan did not comply with Miami 21. litotes parkirig struentre Will vitiate the City's higiresttiations It forthin the 111P. Wan'timertius -material disc patties in its development plan invalidate Tifon's firiancial projections and financial offer to the City. Tifon's proposal reflects a coinplete lack of understanding Di the multi -jurisdictional permitting process. Tifbres single.phase development will empty the entire upland property mid eliminate all upland cashfl R offered to pay the City more teat than Titbits RC1 offered to cover 100% of the - Cost Of votilittiottrig The MPA-,00ttlitlid parking Tifon-only tomrnitted to paying kir 50%. Tifort blames the City for Tiftes failure to read Addendum XV setting forth clarification about the phasing timelines. Last,. and certainly not least Tifbn has a well-known history of ovu promising and under delivering to the it Yet, Ilion now attacks the City in mot disheliefthat 'it is not reeottmonded far the "Virginia KetMrat louse. The Seleotion Conunittee got it right. rifon's lengthy bid protest is the typical rantings of a disgruntled bidder. Tiffin seeks to leap over the second and first place teams igzioring that Florida law prohibits. this. Titan is left now to throw the kite -hen sink at The Chyand hope tb misdireot everyone away from Von's past history a non-performanoo, its failure .to comply with 'the RFP requirements, and its justified third place finish. Tifon had an inferior proposa iticaret win basod on the facts. Florida law prohibits an award To this third place finisher; so Tifon ant ‘iirifi en fhekw Tifon is 'left with timing Soketion tiotTunittee members and lobbying for a political solution to their thhii place finishi C�ikqtihdiyvoalting, That dog tion't hunteither. Below, we ootline, with specifioity,how inatefially deficient Tifrm's respmse to the RI-4'P really is, which pia why the SelectiOn Connnittee 'MIS right. We also debunk Tifon's 3IL.Zlisi=P•UMEI.f4C f3AktiNIA•tORICE A.AXE:L(101) LLP. • 14tiCftleinkt1l.•Avttiiitib,,.S.016230)•iMiAtiliiirti.1313144:64 e and pt I n o. Otlt response I. Tiron 11 flamed the P$ a Tidtx third place tKish was j d:. be It d t`r t.. in , acid the it laria The 8elention Committeeand t; City Maria r` commendation n t be ted' nd prov d. llw Oaf Stine T Retitle for Pr -stils No, 14 Chy- rfrot Property Italy/Ship. t .. Tb requited a tailed evaluation and selention prof the RFP. its chit , its evaluation diteria, fir '48p ptt did riot eti evaluation prt There f re.,Ilion waived Any right to do so txo Presintably, !. i inwas okay with the proeess; they just drift like die outcome, Proposals were subirtittt h i: pro s x C l Tim and LLC d/b/a ;Aft Marinas " . . ponsible proposer that ubinitted a tii dly and fully respoi ive proposal to t t F . . T submitted.a toruplete anddetailed propel .with all the required on td dt wi'tithing All the information required by the R The 'City Manage appoit t ctruerribers oil `Teeltifeal Review "ttee arid Finl om i to to review the p al . floth tC (. . tald reeomtnendations a tb st t 1 orlon 'Chits x AXEt-tAOO tl 3s uken'Aveiiue * 2 Orelrzsl, f1., 3' 3 4 , ateSelection c nnnittee invited all three proposers to participate in oral presentations. Then the Sole tin Committee evaluated and scores all three proposers .in accordance with the aTh yr l ti nt and flee deter; City the best overall prtrj t degigh, I history, the hestt n at and operatioat plan, the bet financial returns to the d the hest local participa n. toalex was -ranked number 2. Tirol was ranked number lest he RC1 plan nd proposal offered the rt the . beM financial capacity and Araa rceorainendetferaward boat the Selection tenunittee and the City Manager,. 11. Following issuance of t. on filed a bid pretest on April 1 ,'2016,eking The City with the sa l imi t It Ir rased in Its' + tr ( ) letters dated Mart 9 2016, March 11, 2016, March 17 2016, and March 4, 2016 xe 4 dingthe clialuation process that ed In the RFP, Ras and Sititte 's prc j t sals, and the election Co lttee''s scene '. 'Ti ere it nothing. new in .this protegt. The City has already o red these issues and namectly rejected ALL ol ri i' cl IL .$TANDING. I l bid prat ' that t o C on onside, Florida lams requires won to have l ,standing; n0 'jug he a c rnphial to lei bidder disappointed ° in flee oIncome. r toi Ciorot C limy, Pio Krys do Atetk, 400 So. 2d. 524 (Pia, 3d 1 1 1) that tin.successful bidder did not ottiblish mquited bidder when; apt r # t. ohellen interest t" to challenge t was not the me, lowest'bid d r d would not remind the revert pert ive to the RP') requiretnen T'z#vtz r pro tits propotal is lewdly 0 -01 (10MMay: , 1 (expitairing that in order to 1 tend tg I id 'protest action, the ply ti'r n BAE A PIR1 V. AXEo t i atic14311 St1k1306, FL Wils3i 4t Inust have submitted a responsive bid). Tifon must prove that •Suntex's proposal is not Jeg.ally responsive to the ItFP. Ranger Comb% indziJ., The., v. Dein'•of Iran*, Case No, 15-5335E4D (D0A1-1 Nov. 20th 2015) ("the third -milked firm lack[si standing to protest a eantract award on grounds that the highest ranked Ann should not have been highest ranked or should have been found non-revonsivc."). 'rift% must prove that its response to the.11.171' does not suffer the state ifirities' that tvJijits Suntek and .RCP proposals stiffer, inli Prop., Ina, v. Depat- of Health and Rehab, Servs., 606 SI), 2d 380 (Pia. 3d DCA 1992) C'a patty protesting art•award tti, the low bidder must be prerfared to show not only that the low bid was deficient, but must also show that 'the protestors own bid &es not suffer from the smile deficiency"). Tilbn must prove that it has .riot waived any of.•it is newly asserted amigos. TirOrl 011 PO VC NONg of this. As -5uabs..a ags third place finisher, Tifon• does 14.01 have legal standing to protest.and, therefore, Florida law is clear that Tikes moteA must be .dismissed, Praion Carrt511 Co, J. 400 So. 2d at 525. 1-lowever, Florida. law is ovally clear that gel has legal standing -to -hitervene in Titbits ttttak on the City and the RFT. As the recommended etward recipient, RCI is a party interested in the outcome of this bid protest proceeding and has legal standing to challenge Tifon's protest, See NC& Pearson, Ina Dep( of Eiltia, Case No 04-3976131D, 2005 WL 310'776, at II 86 (Fla, DOAH Feb, 8, 2005) (holding that firkt-ttriked bidder had standirigto intervene). III. go OVIIIRED Tit a V • IAGE0118 PRALThTh1i CITY. 14. The 14,1' states in pan, "(this RFP seeks teritfy he .proposal deerned most advantageous to the City, 'Ther City's evtduation sand review of proposals shall Inelacle, but tat be to: the financial ittatto the City, the Proposer's experience and ntanagcrnent history, the Proposes and consultant*(s) capability, -the Proposeeg finaricial ability and alifications, StiMilE-A:EtiA PRICE & AXR-LP00 14so aricivati stiu 2311, PL. tandi the ove all design of tine p :.oposed Yet, TIibn askst'City to superiority of RCf's ProPosal us determined the Selection Committee and to disregard pl rida simply t qua' that Titan can eventually figure ovtt llovs to make its proposed pin work, with ail of its deficiencies, .InTi-onst . Rers Superior Proposal a "ii i not: Sgti f whetherurn the ,.CP-s] Ire d better idea or rot." Tif`bn centimes 'Tit by -allowing the pr :met to either provide free parking to its ammo's Melt in tarn, permit to charge;r ore for its:et:and dry slips) or retain the revenue .from parkingILACI nev r said it Mild be free parking or that it weld. 'beep any v nnes]. Second, by eliminating arty riska sociated with 'S non- performance ,[because RCJ 'epay 10 '% of the cost instead of 0 ] ... tlteteby allowing Ref to provide parking in e[oser proximity to its project .and provklo Its customers with benefits - that would riot otherwise be available to other bidders ... der from 'Rollo-6 ). tgh to 14el Suarezalvas, Eti dated Hard 9, 20 t E. Ref .proposant use f• the Aero-Docks patented, automated d atek systo .ffiat n r t t to quiet and green le tr` al op atiota. This state-of-the-4A sys rrt incorporates to 1i of y that has been wed- for more than 30 years ill heavy industry and i are b e p teh l d, it tibishi, and Ejoeing. °ibis aummation equipment .is designed and tacked by Rockwell t ration '. bil x itiyear, .1 i 0-ye u d company.RCP Propsal.x Section W. pale 13 of Site Plater With boat It- nel time v il.b 'M rapo tit, eotio IV, page 4 of -Narrative Th re will be IA smart phone application that will allow boaters -to to Uest boats, • et try to pick up boats, and request provisions foi' 'boats front ;anent . p art t-tlae f - r:nposai,- eetion -,„- o :pdf,-etc o tt ch etrt This will drastically improve efficiency trnd customer satisfaction, which will drive revenue, The system will 1:186 computer density sollware that will determine the pi, .ement of boats and the mix of boat lengths so that at till times tip to 9V/4+ linear foOlage of all mws of space of an levels will be Income producing, also driving. rewnue, Propostil, Section• V, page 2 of pdf, Aero-Doeks Attachment], 17. RCI will provide the City with the highest rent and even potentially save the Cif money, The PIT requires a parking contribution of $15,000 per vane, which iS SO% or the estinaated cost of providing the parking, for The number of paitiog spaceS required for each proposer's project and a trainfliarn contribution or $30150,000, RCPs Phased Capital Outlay allocates a total .of $10,300,000 for parking bmatise -that whit i'neorporates a :contribution of .100% of the cost of providing the required parking under the Preferred Plan, TIOt jtia tht 50% contribution required by the TUT and proposed by Tifori and 8t.inlex_ The Ref proposal pmrvides more than required by the RIP .(100%-not 50%) not less as Tifon would like one to believe. 1. RCI• also provided an Alternative Plan that would provide ALL of the required parking in a traditional MPA al, rage irt the specific location identified by the RI:P„ It is the only proposal that does SO... Neither Tin nor SuntOs can provide, all of the reqttired parking for their proposals within the identified IVIPA location without substantially meeding the pettnitted height, tSee RCI alternate plan demonstrating that the maximum tittinba of parkin spaces possible on -the IVIPA 8ite iS approxintately 677 spaces at 671611in height MCI Proposal, 8ecrion IV, Pages 33-354 It is Impossible to toil wha number of :spaces Tif actually requires from its propo,..,,I, but it wys it requires between 841 and 742 spaces and the 1\VA garage mutt also provide 200 spaces for the Rusty. Pelican SO' tote,/ spaces in the MPA site garage would be 1041 to 942. Enron Pmposal: Pwe 17, pne 32, and Illustrative Plans Appendix 31 It is impossible to 131 LitIN }MRO BARN A PAIGE & A:XS tRatji L LP 1"440.1klaCtilmoriub,SuU 2:.10iL Mont. FL 4313046a tell what number of 'Ices Santa actually requires from its proposal, but based upon its Financial Feasibility Analysis Lprogram it describes It would require approximately. 1240 parking spaces plus the NiPA t. ag.e 'must also provide 200 spaces for the Rusty Pelican so totttl spaces are 1440 space& [Suntex Proposal at page 201-, indeed„ 'fifer' proposes parking outside of the IvIPA location and the leasehold pro pc identified to the R.FP -- a •dear violation of theMP. [Tifon Illustrative Plant Appendix 31 19. The kel Proposal simply •states that -the Citycan choose either alternative as both work perfectly with the ItC plan. ritCI Pmposal Section IV pages 1.9 1, Rers Proposal states that. RCI prepared to nitike any required contribution to the 1V1PA :oiage„ "itCI is prepared to make the. required contribution. of 115,000 per spate to the NITA garage if it is to be built!' [RCN Proposal, Section IV, Page 9j. If the City chooses the Preferred Alternative„ RCI will eon -tribute 100% it the cost to provide tIte parking, or approximately 110.3 million. If the City chooses the- Altettate Plan; RC1 will contribute approximately $7.3 inlillott 20 kers Preferred Plan does- not pre.einde the City from developing at ilitional i. garage to he cort$mictett operated, and maintained by the M:Pk hitieed, RCI provided a detailed design of exactly how that can bo accomplished and i,tect the City. may choose tither option., fRel Proposal Section M pages 1-9, 13,351. In providing the City with two options, RCI sought to eve the- City better perspective froth which. to analyze its optiom, 21. Offering th City such options is permitted by Isw and was encouraged by the City in -this RFP process, [13lIzin•Sumberg letter to Aldo Bustarnante DAltd Mardi 10, 2016 quoting statetnentstt.prbid conferences, and the UP) eity.officials accurately recognized that the 1111910Vatiart of the private seer might result in a proposal or. options that the City might determine better iteconiplishes the City's objeatives., to fact, public private partnerships are t31LZIN $1.1MBE.R0 OAVLIA PRICE 8, ELODItP 1460 B&W)) Avoiti4, Salt 2300, Minaf,FL 231a1-346i5 . Th pr n to t 1Qv t oui3ot stt it, Since R l's-.A9t r Phm mpliedwithOM did trot violate the VP, RC). could legally propose 'die option fair the ity's bansitkration. e; in FP glat-2-,Z2, Seheldi & Bachmann USA, inc. Miami -Dade fount and Cubic Transportation or•tation Symms ms& Inc. fh .11o t. Leonard R:i rktnd, :March 31 200,8). .22. t land will always ys the C y s choice as WNdt plan it wants n otiate and have rteold; 'ICI prqosed altern t to tion for .audited parking, just Soft did, btu"RCIalso offered °t pry for it ifthe - Titan's n pl t Plan, twee twat °r l ojeetions, lYiateriailittnnalstenei and History tvf Overpromising Are Why ifort is Ranked Third: 23. deficient proposaland x r�s, it its and def itlt xiddett l try with the City demonstrate that Tifcrn is at pontisible wepos g defined by flotida la y and ttr i l t for the awattl the . corttract tontemplated in the RFP. The City annot ftel r onoble that Titbit 0011e cii[e a realistic and eosx pliant plan to a thorout h and hen st ii t t - Any true of the t tril:r below ' ed ind pende tly snppartg a determination t ' `ifon's bid protegt I t be re ected. Taken tt eth r decigion to award the RFP to Tifon Id not be considered err hones' cx i 'I [the Ci 's] disatttion. L ber ly—Coua fy Baxter's- Asphalt & Concrete, Ine. 421St). 2d 505, 507 (Ka. 1982), and is. arbitrary and caprttiof , ha Miand-Dade Count 24 Thed 'rt et, .k71 Boa J.d 1084,1t189 (Fla.3d DCA 1994 praject, as well as the proposed finaneial x a , Which . are `cited try and contingent upon the design, ate aspects of a prr rsai. for nth propoger cetnne t be .given the benefit of the doubt, Sty Floridian tr, told This.. inc.Fiorlda , ep't of blvd., Prot, Casa No. 1l , 7 1 M rh 21, 008) Cabo a matter of t r to the other r lr ilium who complied with th peeifieatin LZE milt R i4aj tiiickell Avenue, A XErr €`LP s,'3tt 4 1. TiNi Submitted Nigeriaily Ititteetniteund G e+ iy Deficient Plans and Renderings. 2: ifon failed to submit th required detailed plans at the required sealo. rther, .fortdid ribt Stibtrilt aeeartito drank ad zeudetxri s Itt planor at eurate and complete architectural plans and elevations. i does this trtr f the City tvis based. on plans and s nderiugs that W hied Closely are .reveitled to h strafe at best,oadingand deceptim at wort. of the Tiftn plans and renderings demo tl It tt i eted j nns to produce the. mbar ti slips or the number o uh rldng spaceswithin the confines tt'f pitos as'submitted. rtifOn_Proposals .p endix 3 Illustrative drawings] H .c a the ptr3ect1ons of revenues by Tifon arhie d ove the returns to the City. 27. Part tint► Thus Titon's plan. troll returns (which is discussed on pa l5 of the :1t j tailed to respect the, 50 foot Chatter -required d itis setback, d tle Appendix illust.rative Dray w The RFPale cove the, o address Aifig federal state., and urtty regulattorts, not r►ing Code.. Proposal Appendix 3 Ilinstrative Drawing]. be re -de ed in a MOMer that would ultimately reduce the ed to the City, . 'Atm failed to conform to Flood Zone requirem is slibr b of a fulli4vidtb trian pr end 'above flood elevation, [Tifon Proposal Wall z objective 11 , Ltd IV.(4 page i It the Pmpary, including the opttioat "develop a plan compatible with rtt Si w" [R. 'P, Section l ), paW J. 10 ;ROD •LU • * "maximize public wets to the waterfront" [RF'P, Section.IV,(C)2), page 231, "minimize pedestriatifvehlculat conflict points" '11FP, Section IV.(C)(2), page 231. Eniplatils.tddtt 29. Among other deficiencies, 'Titan's pla• riv Lack loading b and service access, li. Lack docks dedicated to staging for dry Op storage, ni DacirdimenNinned platis. showing circulation, iv. Do trot show how the public will access the protium- Th not show vertical circulation in any of lig buildings. vi. Do nit dearly Ahow the property line and Whether its Project within the property line --•and: given the ditnenSims of the site and the buildings it is almost certain Tifon's parking falls at least partially autaide the IUP property. A Tifon's .plan also does not preserve the existing 138-' -landscape buffer along the Rickenbacket CanteWay, does not incorporate Florida Cif Marina guidelines, arid does not provide multiple pedestrim-aceessible routes to the waterfront [Titan Proposal Appendix IIIMtrative Drawing:SI 21. Titan's: --roposal clearly does net mt the ity's Matt objectives as set forth in the RIR, 32,•And, fire deficiencies continue, Section IV F(6.,) of the REP requires "cleaned Illustrative drawing" and "a site plan showing the proposed layout of all ptoject •coniporientg, includiq all additional ancillary facithles to be provided, including the size, dimensions and configuration of braidings 16 btt-rdbafigettatOd Lkirenovations (RFT, Section IV V(6), page 291. Titan's drawing are not sufficiently detailed to permit the (Zity to COunt all the bout slips or :parking spaces that it claims it will provide, Without the requiSitie level tridetail that the knO moie, it ts impossible to vf& the -accuracy of its plats or confirm, that, its plan to be developed as proposed. MLZIF4 SUM01.5A69MA PRICE AXELROD LLP 1461 dAckell Avunue, 5utte.2300,Mkirn. O., 33111-4456 ltt coittrast, RCN plans are species and complete, Fury ingle parkin space Car', be emit ted and acemmted for and Rers $98 mullion capital. buclatt is both complete and based upnti ctr es'ttlliitites that were submitted tts part of RCI'% prop t, [RC! Proposal, Se Lion VII, page 121 of pdf, 3rrd . t Attachnient4 RCI has volunteered to provide CAD drawings for �Il of its pl%f then, to vvier ;every detail.Neither Ilfori nor Suritek min d° F a1 At Contains -Mate t. nsiste cies. 34. in ddi=tln . to the Gillis. ns desc-ribed above, : f &s misrepresent proposed,: 0 pa rt. material that further de of str t that 1t a t t1 v op its plan as dt prvie the thiatii proposed For ins 1. The actual number of sl p s t n b It rig plan i different from tlr -number of slips listed in the naiTative of its proposal and its martial project cim The dry storage plans sham.603 slips, but the p:ropo al narrative claims there are 840, 1h Three different numbers are provided: for the total parking count and tie plans and elevations show a 3 level parking garage that is substantially sshorter titan. the dory stack, yetthe garage would have to be at .1eaat 5 or 6 levels an 'order to. p�cdvxd the required parkin tn�capital budget is apptii:rtI million less this tl at cif &antSi and appr Ana 7 million less than that of Virginia key Marina, Lip € espite tho tact that the plans are similar sizt And toopt, This MCOTASisteriey atone raises questions ttb ctt the validity 0f apital budgetpa.rticttlarly because Tiftin did not provide the guppentrg buts from its r lrat o or suppliers. s depleted below, Tito ' pr P tal l r pz rds 1 different numbers for 00'01 and vying: umber plans, dint i it ill htiVe .lam ,ground parking spaces'and .1,6 its ppsai naitete slates there area total t' Sill spaceamong I d's illustrative site they 225 sq.but mat -Et d1ya1 t tes that it will have levels 227,900 sq. 2 tmattA n t 1 X1Lt 1 AvWW1* wit • ;3 10 fl ;il3i• ut AgAGt Ole n d s'� grow On ttE Eyck F i A.I t� r Ttraddi iti 11prapdRIwrir rcl d twoJ) rc The teb to below slt w '. rikl tfib 5t Sort frfty'i+f31'ri rciafr od t i €I and 4 T 36 irt 31 psi ettitritttei it fintinti t 114 tind ibate. to late atio A garage, y MIAMI-Its to 742 parkitis spaces . at ta, tSUM R 13A_PM FfTCEX t ryTl 1-4 .r ktei AVM115.e, Suitt/3i i 125 SI 5,000 per p e, as Tffonearly identifies below, not the 841 that ft.el ms• it will provide in its narrative., 1406' iddigkilme m-MOIVIMAL Figure 4: 7Vim Propud puge 32 imixo tira .14 ovLtioI *it tte.,,,wo% e tgeovv- .404014- prktr% qme,... TOP Ltti,fi,*.vkiroio. 6-* i*b• tr,„la *Pj : •'toe 5.ript.Propurt, - 4,2 Ihntrituti Cffittribhilou ° — getiutitz trttitt tam TAMetg1td otaibitit tin mould Op* fititett ad 0100 dtait.4, CS I 5fttiob())p Orkin1P trotted to,meet the: Lewes orklag reottemeat ottani to. the KM Biwa pia 1hztevtioprheht mattinplopd the Proposal the Ltwen. tbtitiityinibu Eibt P. ,wkilig 1J ePeioNittio.Pot .110 E , • ibr flit .6011.-&tiaitt iota or: oat roar be .4tipsted litt &tilt boloor CP:hiat4 tlasf VatilOce 60 .1* i polio tratio whitt 6.01 oh-T*46'41W l il*Ogillituttor: Mt &tut Stith* if :rieCity of:Mft itit Miam ?d*. Aida* „ notte 6: TOM PropoNai, LeAve Aftohmoni, p ) 7. addition to either misrepresenting the exact number of puking spaces it will •riffs ciimplettly not undemtantling i how •ttv develop this project, Tifon's plans show approxitriately 162 spaets per level in it parkitlig t.f age, therefore lb heiVe 841 parking SpACCS would require *els of parking, not leveig shown in Ilibns plans and retidethgs,, To have 1,662 parkiog spaces (as stated Tifoieg Clound :Floor planai Figtire 1 above), the g •ge would need to be 9 levels-ormorei-which 'would -make -11-taller-lhart-the -etrstaeltantl-hi&er 1.4 L204 '814:MRE.K.O.SAF.-.NA AXEL:ROI!) TAP 14:50:134W41)Averivo,.Suitiv22,330,.Midmi, EL 43131,4:M6 feet, The RP? prohibits proposed bit -tidings being high r than . cry of the Ifni Mares Stadium, which is 65 feet. [( 1'; Section `1.' ), page Addendum VIII, Question 8, page 4)] Thus, lbif plan violates the express requirements is of the . be• clear, as miterof law„ it only takes ` tnisrepresent proposer t i e determined ii r s on ible and, therefore, ineligible to " ` i e avvard1t .now seeks. In L1tik .11a1M0 ACtillitia antir it n COW Dadert , ; . , terHealth 4trlinistration, Case No, U 0681D (tOA11 M8y 15, 2013), for examp judge. concluded that a proposer vita ittbiligible for award •of the con y et becatoo it ma singly mibio misrepresentation inits prc r dpra °hb holds true, pordc larly a (filiali e Hutt proeUretnerit g this order to enstrre the selection t11 most qualified t'1rin, proposer r i Witbe truthful, Otherwise . competitive prode ments would on who ean" Yell the "tallest gale-, n+ t who ean do 'the best -job a°`the City. . Tie weight ht f Theirs .r nsittliity u t that it could also he fund rion-responsive. Cou : found, proposal twits tite award to such a" biddet. l l presentatri ffteies fro deterrnining tlao : # tl 1p t t plan's deficiencies, inscceuuci err urrd rr tx and invalidate the financial rettnn Titbit: t throp tea oW :the exact detail 1' Tietiessaty-nppfft" en ;arclih ll`s qualteationg and ways therefore not a re only the revenue geria hose cervonents., sh a thce ti red St i ,50ed. CI 443 46s(2 he rat make.s. materialmisstatements ttt its. bid proposal prevent the _goyernmenf e1 , and : i f t r%s p11etel y.Without-a plan hat i tie prOjee4 butialso t sys, p, • ZIN ' 'iJMF3•EF BA 1 fi p i i& A L# i l P tot pis Avontre, Stift 2,400, 8vrteng area, how then can the City rely on the projected d r a s that Tiron is u t The nee-ds raore.definitive details and .accurate counts and prject Won Suhniltted'Completely inaccurate and Unrettlistle Anal la x 41.As noted above, there are ethical e i ptrnerats of T for s derveltpnxeit l h tfiat incapable of discernment, inearreet, o d •t$e to validate and arse 'Trfoz't,s `flftrr'a plan requires; the City to pje+ s •ale ether t teL Fin pro, as are the City po way' d terrnining which millibars to dal pens, and offer Alt vl.te halt fins ' ice' ltnarilai neerredly reflecting .a ply that does not require such a lation and is therefore fore ' rtc r tste with Titan's it developdevelopm t plant: r° thefinancial plans are to be iewed the height violation in order to yield the returns rift projects. E th v aj, the fin -Rut -fat Projections are unreliable; And, tt is just ono movie of hew the malty inaccuracies' discussed above infect and then invalidate T foci's finan al 42,Without an ae lysts of tlae t ; e value t li i1° pr apo d and the related ly i of whether liton can act ally 4 l'i a:` *but It ' 3 p np in .: °l da law p lih the City. 41. from aws ding the Virgtnia ; e h lead to Tiff. Son 2d 13, 1:la. 3d DCA Ret a Kiev. C6,, V. . Co.tale clear that h assemng halter to rejett proposa, the municipality nicipalit must 'whether the effectmulti be to deprive the trimk 1p 1ity of its assuran e that .:the. tont o will be. uttered blt0,peed and_ _ :gwwt d I'ding to ispe air the pity the opportunity to evaluate th l034, Titan's proposal doer: riot and r°tturrs associated with its proposal. Mi. IN EMFM 8-AE ', PFdty, AXR t Wolfs- proposal dot's -ye the ly t a contract with Won v1/4,111. into, performed, and guaranteed ccording to the City's specified requi -lents. . Further, If Tiffin is awarded the V f tiia fey Marina lease based on proposal that has unverifiable posts and misstated revenues, deficiencies, and imisrepresentations, the City R ave granted i'nrx -odvantap, over liropCi§ , th rthy 'tindttiiiining the necessn On 'd r a •p thiI : rtt 4. .TheiptoetdirealollOrWedinn pe it ve re' and not adversely affect the $0ticttaiii ins MUD[ afford an `equal adage to lams r f`thc agency,, but rather Mll6 v the agency to :confidently contract by being able to rify Chats. Xeres Corporation v: D t f 1 er _I ,Caso No. 7 I(WAR Feb. ,1 0) When. an economic advanta -is Ciffeared upon a pr}apcs r due t+t:'anornigticin d fic{tr dy iti Its proposal, such omission ot dericieney is material and cannot be w Lived. 44., Cc tries have denied govermnental bodes the tliseretion to waive irregularf-ties. r proposer would be placed °xrr.pcisition of adv ttt over ether bidders. Robinson, when 471 So, 2d at 1014. Soo also, Liberty Coumy Asphalt rtd Ceitcreihw 421 So:' 4 (Fla 1982). 'I°i anus proposal and its oaccuracies d r ,6lation a t to prier proposal, give 4tifori a competitive a and ad rely .ititpacts the tty interest. There or `I`if ' -nottecanpli w tlx the p requirements constitutes substantial non viable; material irr i rity. Amen v„ DeparOnent of Health, Cass 1- i 70 1 2012 V/ 6512603, itt it (Fla, DOATI Deo.10 OI i Quaked? Cleaning nin 1 r Action Cleaning v.„ l i k a 6 t Olive �1 ors No. 0 -44720141D, 2001 40 , at 7 Ma. 1 Fib 1,- °001 ; N iiin4c' ` rmfrr• err Ci ice. 9,1 , ttl rn • School at d$ Ca e NO, 058 1 , 'lam L 1.053245, it:ZI. tfivI.Hr110 DAP S Pi E AX 1450 arkkkoEI lw ' U Wit,Mlatni, FI:: t 4. Tito- over-velles on retail; 4. Besides the omissions and inaccuracies,• there ate also gIaingIy unrealistic terms, •gtith as Titan's ovenreliame on retail as a major component of the •revenue• that will be generated for the CIV. The unrealistic nature of Tilbn's reliance on retail, as sat forth in its poposal, is :probably obvious to the casual observer, For Suma retail export world -recognize this. rdittinately,.the City had ncIi nn expert. on the Select:WI Coriunittee, MS. ParnelaWel 46. Timis .0(troates that 28% of the .Percentage Rent to be paid to the City will he derived from retail, as. cOnipared tt ROL. vklob estinititet-that 1.5% Of the Percentage ROC:paid to the City will be .dived from the retail component of :the project, -Tikes: estimated retail revenue percentage it based upon its flaWed and cOosinercially unrealistic plan that calls fOr. three (3) floors of retail shops at unrealistically high remit rates. A layperson with no retail: roanagement experience could opine as to the viability of three (3) -floors .of retail hops nntl the de fninirrius fOo:t trek?, On thO.nriper TO Upper: levels at COW liVrark Merriam patkohe ()rad Mali when it was Open, or the $00.014. loot of any strip toll are all clear e-xamples. An expert like Stletion. Connifittee-theinb6IPAIMit Weller, Who mmages one of less thdli alite-tat handfnl of :nth retail 'establishments in downtown iv:tits:mi., would :surely be able to assess such a plan anti the rental assumptions, _ Won :000 NOI_Vtidenstundtlier crynitting Pouts for this Situ, 47, Tiforrs plan makes no accommodation for :operational phatirig. Thus„.7fifon will %toe outlifactinaliy all ofthe :Citys:.tenants 'during construction since it ,Mates that its entire proposed :project will be dabigned, permitted and mistrucied in 24 months.: Such a plan. tuntecessarfly .reduces mane .generated by the Marina Any proposer fon-a twine i.j.rojoet tuidcrstaridt.that lhe permillinta pproach find -associated tWNA Pftttt: .AXEIROCIII13 '1460 Bridt014 8.u3o 230% Miami, FL :sal3f446-6 are, imong the ost crucial he tievolo eht plain, Unlike ft rdeVelepmcrit projects, , there sit multiple agencies that need to ew and cuOrdinate the isstiance of permits. Lead time on permits f changes to existing. marries, without new construction, can take upwards months, The Sure to emphasi2y the importance of the pumn process by highlighting p[(Section �) � thy prey', 'in the general conditions � the- �p "; It(g) and , la, w p '' t t sh oat two yftrafdr the'M -DadeCounty ''Restoration rnp1 re-aulhorization o ' itelx previously permitted artificial ref sites that are i arly b tt flit the environment. Anyon who ys they can permit new boat si in n t habitat 'it less than a year vie l h xperi to with the cisrit it readily or pern Miat i tads Contra sensitive environment Again, at hest Tifi n is uninformed meal about theperira t g prose and Nola a the requisite experience to navigate a complicated men p i iittirl process, or at worst, T afazi is purposely !nisi tiding the City and goals in a brazen attempt to say it provides Mire revere to the :it a rlr. tibia it t 49. In its bid protest, Ti a n in r h blame •alistic. ireicok ciai b its 'errs slistie tin shies itself„ Ti'fon clams It oat not sox Addendum No. XV tia'e City ennrssly stated"-Notwith tariding th al ave; the 0,0p:oats nifty pttt f ard a phased development ached -WY. 411ri :such everts l e proposal mug contain att. narra'tive accottipanied by a graphic timeline Or schedule out Mug and detailing due dItnCti,plarming and d s gn, pe fitting, 'construction nd operations, The -Schedule must lnehide an explanation of how the: phasing of the project as d t rm w :Z4 i st FF; 3 rNA P' 'i & AXivi. 0: it 011 MFI►fG . All li a rs r s o. sit le fir knovviedge. . each Addenda and T n signed 411 i ied r t f ti s- ci i submitting its proposal — or ithc�r-- `ifon mist p resented -to the City'that it read Addendum XV or Ti trr read Addendum and niled to t nd taud it r h. isthe trim at description of i i is capabilities .and intent, all require a deer tnation that Tifori is a 1 g fly fir- i1 rnsible proposer attd not qualified to develotia project of this :Magnitude b 1 h s iti c logic l and political enVironment. Tifon His a fligto- nion understood Addendum XV and decided to just disregarti it Regardless of 52; the prpaal ncial and politieg etift8eqttellees rpi f a proposer who is overK the City. given the die g can ..have sous prop described airs% it semis that Tifon is headier down the path • of making promises to the City that Qannpt be kept,, Which as the City has ex Josses : iia lavattits, 53, Woo has a 'mi r is currently operatingthe existing facility on F pith [Irti;l recently, Tifo r' team me s tt ti; can lead to fina t I mid ;la litigation with the City, Tif'arr slates be .to be the director of namina operationsand noethe project matters during lie development phase. This is .an re el it- fi t rol as the Iead of the era and €ial tit, ;mod prominentrOl em ensuring tentigns'h ,#abort of a Titbn am Inemberi WhO will have ttn egStiltial City that all promisespromiSes in the faii proposal will be met,. a tld serve as a aentri $ign.°tom i i City to.rpor:e.:clottlyainirie fij arr s propos it t i hai t lrojetti sa 20 EHLZ1N SLIMSERG A A PRI E & f4keli Av ratie, Sae &NI;. Miami. E : 2113 In determining the responsibility of a propos r and thus whether a proposer is eligible ref award, a public body must consider whether the proposer has the experience, honesty, and integrity to perform t'he contract (and factors tbe considered include the. j roposer's previous oanduct and peir xnance under prior government contractst ) Se*, t . , Willis,.i :' v: HalhaWay, et at, 117 , (pia t . The REP states, rob- respl n t 1e Proposer is oiie that does not have the capahlllt it :may or all erects to .illy pertlttt' the requirements set forth in the proposal t the Lease or that doe not `have the relevant experience, it i d reliability Which will OsStre good to th per aance. [RFP, Paget ,. k Ylo tt Statutes requires that municipal b °act only with xson l propicoi l body must consider a ptt po r'g responsi ility rneW with each contract. Such bligation cannot be waived by contract or process. This is also outtined' in the City'a C.ie which. states, 'prier to contract wi ,. ihhe this'' proeur metit nicer or individual purchasing ngent shall deterrimie. in ruing tit t the : i r er or or is r p u 1 i i is t, Fla., Code 1 -i () (2 Oasis added), the Code g n to state in 1 g ( 4 FactOtt.10 be. cons ideltdln detertnitiog tesiapttaibiltt 'ofprospectiv 1 parties include hitt nio,t he bid. o; 1) Availability t - . i prtatefinanct !' rt tt equipm and personnel ry e l d p rlist -, r the illty to obtain yea all contractual re uti alt () A satisfactory "wordrat erfnr an. satisfactory record of -integrity;. (4) Qualified legal standing to contraei With tl ctt and : No 'pattriawe iu d i 'stri l rne pubite hp-dy : Ito- t eparrslttte, and duo utami ibte' i aw aa=d. see a' °•' s ult. C tyv 1.2$4, 12* Old rrst.pGA 19$4,Cock C v Th :1 . 1978) 000v thitt, it Staff b ld iio Sd 1 i .:iti i e 1 xr; iWhStiter It WON i p iia i is d 1 t. wopoto : 475 a. "2d 4, 1 7 Via, btA e .-Mot lh otsirk .1.1 rS R APR .Axe .. ................... (5) Compliance in supplying nil requested information connected with the hiqUiry concerning responsibility. (erriphais added), 57. Titon nannot be .tt iib1. proposer I;eased on these &eters outlined in. the :CiVs Code, 5. ikrk1 EW inatidates That proeetitteN that tre .itod .erdinattee :cannot be •contracted away..., -in $anitotion rvief IflI MgI; v.. City of Tampa, 302, 2d 43.5 (19*.4.), pany claimed that it had aft agreement with the.City ortampa md thus the City was :".estopped" from enforcing an ordinanceihat. was contrary to the agreement, The Court itdintinithed the rounielpallt)',, and eiplairted, case, 11 is obVions that Wafer the -myr • nor the :head otthe Sanitation Department had the authority to agree, hi egtencei, to the. non- enforcement of a valid and duly enacted city ondlnance. Any such- agreement was :both entirely beyond the pOwer of the .effielals in.qUeNtioti tc ik and wag trihmitil eVen if they possessed That povm," Id at 438, The company • also contended that the City should be eiljoined from slandering the COMPany 10 its private Customers, The Court deeded, "we ke no basis for the - granting of telierin [this] instante."k4. t 439. Without question, the equitable doctrine of estoppel cannot be empiond to effect -results which to unlawful or otherwise contrary to publie policy," Goer De Gestion Stetroy, Ilia v Florkla Polve tad Light Co.. 385 So, k.2d 1244. 126, 311 DCA 1988). $9. Thus, the City way not permit an agreement with rrierrIbtts Or Tifon't team to prevent performing a new and thomigh responsibility review as it required by the City Code, The mere signing tff an agreement does not perndt th Oty to tgree to aott,,,enforeement of a validly eximing City ordinance: Draemitaitei Batfroom told Social Donee auk kc, v. City of Pori Lauderdale, 789 SO. Id 1099, 1103, (Fla, 4th DCA :2004 22 HLZ1N$0.6iIta0EAENA Prtlet & AXgtnrOrl LLP 1466 Vet, $00 :2300,.M$4mt,Fi...3313i,73466 "hereViihere theme :is mandatory competitive ViddbAg, ontr t must be aided to- a --------- respor s ble proposer whose prop is rc8p8-t b Caber *terns', rs' Inv, v. Mtn! of- Oenerai Servioal o. 2c1 325 (P1 . 1st DCA. 1 responsibility review wt ttld reveal that an award to Tiftm would et eate an una epiablelevel of risk to the It . 18-, .,L IL`POa.\'e PROTEST TMonRE .UJ.S1i ISSED BECAUSE : 1 % T ORIN .ACE A There as No bias or ?rejudite hi the c rr c+ Process.. 61. Tiron:tests the scores of 8elesott Corninittee b r arid,.'retail professional . Weller only as itrelates to the scores she ve Titan. The law related to challenging a scl ti+ is Corr mittee member is cleat,. A :election elan*lie lumber's scoring may onlye challenged if prejudice or leas- can be proven based uponthe record if the Selection Committee etrigs and deliberations. Avenge Neevices Progrc l`rze. D p'r r, " -Health and 1 ' aabtl rat v ` rva , Case No. 1 0 E1D. W; -t Oct 14, 1987). 62. Tiro 's aitnthant silt ply that it des not ike the scores i s e11 r. TItbn oarinot limply state that because :a scare is dzve€gnt it must be discarded. Titan must shrew that Ms. Wellees allegedly divergent scotc nee tit causing unfair competition,'' Psych td and Family Serwm, Oate n '11 s i t of r r rbitrarmessr capriciousness, or 4101411c t. a 1;7otida, Iraq. o De rtof (DOAH reb. 21, (16), npathetic attempt to allege prejudice, Tabu tbfirst time claims that M- Well' WU l l and downgraded fir scores beeatite Tiife,propased retail '1l tnnipeitt tlCit awn d Bays-1de Market place whioh M. Weller manages. Tiftm: concludes that Ms, We lct, therefore, fore, has a' 000ct int&estt, . Again, e haw set lb- tb above all of the many ly just"- s third platd Tab ha . i1 its 0 blame, Not MsL Weller ortl r we have OR2 n a vd$,tie% r 22e . •oxplained above that a layperson, find for sore a retailprofessional could assess the viability of •three (3) floors of retail establishments aslifon proposes. Ms. Weller is not to •blame for Tifores retail Nan: Tifon is.. An Tifon offers NO floriels authoti2ing the City to, substitute the judgment of a Seleetibti COnimittee member .with that of thOse assessing Tifon'S bid .protest„ Florida law actually prohibits such a substitutiort, See State Compacting & Eng'g Coq), Depl Transp., 709 So, 2d 607 (Fla, ist DCA '199g) C4t1)0 Tramp-, Sys. v Dep't fiema, Case No„ 14.23.2281D, 116 (Fla, DOA1-1 Sept, 4, 2014), 6.5„ Most import - tly, it could not be clearer that if Tiftto thought Ms„ Weller had a contliet of interest. such claim Should.have been raised when the City annOtinceil the Selection Committee ,morribert Ms. Weller's retail experience WO the same when she was appointed 41S it WM Midi she rendered her scores. Doe mat assutne that Ms. Weller's professional retail experierite would not -have been called into question if she had ranked Ilion timber one. Did l'ifoti not realize Who Ms.'Weller was when the City informed The proposers whu tha Seledion Committee meml3ers. were? d Tifbnttot.reallze where Bayside Marketplace was before the oral presentations and so ming took place? The answers are obvilons 6„ After knowing the Selection Committee members tuid knowing what it had proposed TifonSimply sat back raising xto .sooh conflict issue& Rather, Tifortiost and decided to invent whatever it. Could to explain its third place finish instead of waltzing only Tiftni was to Manic. 67. While we felt torn:pelted to explain how absuni- Titan's complaints about -- Weller ate, Wt haVe 110t ibSt sight of how misguided this complaint IS in a bid protest. Tifon protesting The Manager's Recommendation. While the tion Committee's ranking and stain er s kladornmentittiOk—hrt 24 iiti.11R4 liM:11,K 'OW: W4A AXELROD LIP 1460 Brt61C0 MOM, 8t iiFt recornn dation, the eieotion 'C vnn ttee's moo er$dation, Thee support for theManager's Rot -n atimn and Tiro rd ttbOve, Tifbn eniently ignor t . Did Nottirst titta riterin Tifon ink 11- €s trotsdireet the Clay . i itning that the basis for Mt. Wile ltti n otr: ry the 'meted evaluation f the i, This is r atiothete iiscsattin$ As an intrM ratter, Tfnfisiirn conitnunity out clr in her scoring wholly itr i : proposal$, Mt Weiler mentioned co nrxni% ranked proffer, 69.E The law is clear t t use Weller' rel t to umo% proper, permbeside and quite outreach 1y nsideratio ` n rtnisibinsided of Tikes stud RCN t St stc „ old -° .each as it ly required. In Pebpie, rechmlogy ° . ; I . i.Qt9&7, i , i , is t p1 h ed that i; is proper to take • into con - -i tbeit nd pr 1 i nti matters •i i ° i i iy n rnpa , ttr e t d-.to the 10dd [ttr , cr ter r. r 17 7 nt ft.; in .e. Constru 11 11 May14 0 o i Fat l r„ a. .SeleOtton. fiber" u e personn 1WI•edge related to :information in the or th tnge. e. Ma et Co mftattr"% r<1,, Request for Prpas is 1:comber 31,2011 i With the awin 7 irrd$ what did. Vitt Wei outreach aspect d t ui Sta tex's proposal in her rfunentg con rtt st tlt Overall Project Design OiterIabeeffuse Stink*.stated in its proposal that At, *Ill .inedifyits site plan .aododarioe s u tft- h A fiA r AveiFL -inputjtha vas City st hol _t t PS p.c..26)...Suntetstatt pgge 7 of its' pr pas l The conceptual designs presented il this proposal heftu, to the pro r elenents requested in the RPP, ff.xisting City M stet Plaits, and key el t esStnitl l to the: efficient operation of the While we are con the design vision and approach; we are aLLt int r ed in engaging the corm a -ty in the final design process- to i rtUy oppot nib s to make the integration of the marina t the surrounding environment ss ea less .as possible. i t o ds, the final roust t . more than a,. l a etyonal =pre=an of d tt a nst also be }a t- fttl public spare wig architectural elements that. are complementary to the riei ritig waterfront. 72, Sam also has ateams member Who g led Charrette ' liner with the National Charrette Institute. tute. As the City knows, barrettes o tiab.orativ s si rrs Molt designer engage the community to create solutions to a de si tr : I,e ,Thus, contrary to what Ttfbn vRadd have the City believe; community r utreach is in f i related to the Overall Project Dcsign/Proposed Renovation and Activities &.Projects eilt € Arid s properly considered by Ms. Weller, w'ei . proof th i s WellOr itk of the publi hed criteria or th mi permissible Tifut s argr roe t; fails and the City is required t, Ma, eiler's 73 law and Mime; sufficiently ins oted the' Selection tie Du Not Permit tr. equire tikSectfing,.. Wit far the RFP, Jacqueline Lox iz+ clearly d r tittee ill ;tu and to their duties- and th lei tt%t criteria, Tifbn' never once mplaJned about The FP' evaluation Grit idliti that were-. or were n t tl e ingn boor: and - n to t ton. Committee until it 'did 06( like the titer nm, Tifon had ampi opportunity 26 Med i s €l6AE rCE&A)<r.R PL i -0m .Awit.k.stot Ft. :33131 :ti I X, page af3, 't'r()teat tfit Solicitt stage of the procurement process. 74, ' Zfoi ' .had ample opportunity ity to ects that we waived such a pr t� 7. ttt th City needs to provt clear gTaidelines tthout he "directions regarding the relative wight to he prwke nett to the Selectioa it never did. As stt ; Tifdn waive such a protest a queatiom i t. dfr g 1 iti i and xxev r Agairi,. s 'Mon has -stye oldie proc Totem princes if n is not ranked rima er one; doubt the directions would have been recommended proposer. 76a The d tl e number two, t l s that ply the evat>iatiot . criteria and March 7th 1. tter, page 4, No tby Ilionif Tifon w .s the Code pr bibft challenges Mat igtf valuation etiteria r the formula fair ss 8 gaing points, f RP; sedion XT pip Mum LA" CODE i 4�) 00 1. Tifon cannot I t whateverscoring procedures it decides best it it -regardless hel a theCity establishes and publishe different- procedures. Such -aft appre government ,ent contacting . would toltotetey ttrtct a all pudic pros tiret `} itt-s and diminish the City5s Ailit to do business- with private parties,. 77. There was ample evidence presented to i-its a "Lion e validity '..'Tifo t'.s ply, slip add boat cote, :development timefrainits and projected t venues.. The fact that she those to ra not amount to prejudice',site rtinked the pro u evidence tt nna y, 4- unc .higher mid fiifott 1 wer does. u t theta: and tie i c The omipletely a reti t ttc rel prt e t � r l d ert rs TifareS r ct t d to ._parking andsilk pro e .,r t f rret .il- tiled with the Inisre,prese tt i the fe .ter ghat- 7 the and 4 -11 Averya i ZEN, 3 t7 rni, Fi 331 -M-56 the City attar irg otilepropo t. and the e Madan process are s t to call the ofTikes proposal into question, R Titbit s protest d cry n the scores It receivod maimstilt Tifon ubmitted Pally responsi e proposal eligible for mote points.- Tif rt did notand th r oes t:ldnot have received nn Ti on the „scoring mimes the Ti or i .r spt Dole proposer elig bie to receive the award on a h r score; Til e is it i t „ti . '1°tfo t trittst e abli h that it h 4 ttb : xt i l l er t' that. cr affected by the City or a personal stake in the t u omeof the REP to be lc ii pe d; to protest. Tiffin cannot establish that it has a. "substanti t ltcrest" as Florida taw d fts s because Tifons proposal i nonresponsive ve and it is the last ranking propose A proposer Who is ina able to .he a and d the contract does not have standing to protestthe award. Pre.st mz two!, Cinnpato inc. 400 So, 2c1 at ; r2lbTh rechnologres Company v, Dep7, and Employ 13 Case No. - 1D (r•0A,I-1 Member 1 (concluding a bidder who is i111 to be awarded the contract at issue doss nt have .standing to prate the card l Jtem jr rith ServkkEs, Ina vAgency Health Care Admin tr tion Cage. o .2 par 1 (DOMI Deocittha 2, ` tacl�cT3tg " eotin Labor- red- bidder's protest and , a pvotestor :must: dernonstr `i that, but "or the ,agettoy's error, th prow tar c :ld= have belt' wtati e ' . 80, A 'filly placed eve, Tifori.has nu erotis material 'trace cies, raat O1 and ml to establish the required substarnial mterest G tat Then ma sid ri g lion' bid protest; - CC it rd rida delleienctes proposal 'prevent the ity .Tr Y 0 $o, 2d at 5 :At also, ht age. Ire: v,Mica) -Dade County (The -Holt tr tteR0 AX to tOD :LL 1450 n At/MUM, Sizifta L 11 WSG Robert .Newmatg. Nov, ePPe A soot 352 Sm 2d t l 90, 11936 (Fla. r . DCA 197 VAT" FOR EP tax the masons tatd authority sWet. forth above, Ref taped lly requests .tht tIT Di et lit' Estate mod.Asset Manegettern mon:Intend to. Commission that ` if n's protest ith 't merit and that due to 1for s material omissions hitinconsisteMes and ftt l flaws, Ilion is ineligible, it rt-at"ter t't 1 be awa this Virgin y Marina lease. Further, tic Selectionom itte ' the City x et' dat o"n to "award the RFT to 'Ref resat zt cut April , 2016 Respectfitily submit BILZOISUMBERG• EM PRIG AXELDOR LLP attorneys for Virgima Key,1 , 14 trl :k ll :Avenue, Boas 23:00. ll, l l Telephone,305.3744 l zt E.I Dotson, Jr, Florida Bar No, 724203 Carter Ns McDowell Florida Bar Nm. 603236 BRIM 1401) t1 'h A P u 1. .LP la; &L fl CERTIFICATE OF sERVICE HEREBY CERTIFY that a true and correct copy of the foregoing was s r *lie 26 day of April 201.6 via email to the Mowing: Daniel R t nb rp, -Director of Real Estate and Asset Managern rota DRotenbargOnilarniON,corn, Victoria Mendez, ity Attorney, vrneridez cittiarni, Rafael hits iv r. Assisi -ad fiva iif nil.ftut, end Todd Hannon, City Clerk, pity of IVIiarni, ctetksAc :tirrti;eft, us,. 30 Z1 A PUCE Axt.1,R01)