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Home My WebLink AboutR-16-0286Vop City of Miami '"* Legislation < U R �O Resolution: R-16-0286 File Number: 16-00518 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com Final Action Date: 6/22/2016 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENTS, ACCEPTING AND APPROVING THE DEPARTMENT OF REAL ESTATE AND ASSET MANAGEMENT DIRECTOR'S DECISION TO DENY THE BID PROTEST OF VIRGINIA KEY SMI, LLC REGARDING REQUEST FOR PROPOSALS ("RFP") NO. 12-14-077, FOR THE LEASE AND DEVELOPMENT OF CITY OF MIAMI OWNED WATERFRONT PROPERTY FOR MARINAS/RESTAURANT/SHIP'S STORE USES LOCATED AT VIRGINIA KEY; FURTHER DENYING THE BID PROTEST OF NEW RICKENBACKER MARINA LLC REGARDING RFP NO. 12-14-077 DUE TO ITS LACK OF STANDING. WHEREAS, the City of Miami ("City") owns the property located in Virginia Key Marina, more particularly described in the Virginia Key Marina Request for Proposal ("RFP") No. 12-14-077 together with all exhibits, attachments, and addenda thereto ("Property"); and WHEREAS, on June 15, 2015, the City issued the RFP to solicit an integrated package for planning, design, construction, leasing and management services for the operation of the Property for marinas/restaurant/ship's store uses; and WHEREAS, proposals were received in response to the RFP from New Rickenbacker Marina, LLC ("Tifon"); Virginia Key SMI, LLC ("Suntex"); and Virginia Key, LLC ("RCI Group"), respectively; and WHEREAS, pursuant to the RFP, the City Manager appointed a Selection Committee ("Committee") to evaluate the proposals received in response to the RFP; and WHEREAS, the Committee met on March 16, 2016 to (1) evaluate the criteria and the scoring values assigned; (2) determine a rank order based on the score achieved; and (3) render a written Memorandum for Recommendation for Final Selection to the City Manager; and WHEREAS, based upon the established criteria, the Committee ranked RCI Group as the top ranked proposer, Suntex as the second ranked proposer, and Tifon as the third ranked proposer; and WHEREAS, the Committee recommended to the City Manager that the City negotiate with the highest ranked proposer, RCI Group, and the City Manager approved the recommendation of the Committee; and WHEREAS, pursuant to Section 18-104 of the Code of the City of Miami, Florida, as amended ("City Code"), entitled "Resolution of Protested Solicitations and Awards", Tifon and Suntex timely submitted written notices of intent to file a protest and written protests, with the necessary documents and filing fees, within the prescribed time periods; and WHEREAS, pursuant to Section 18-104 of the City Code, a stay in the procurement during the City of Miand Page I of 4 File Id. 16-00518 (Version: 4) Printed On: 5/10/2018 File Number: 16-00518 Enactment Number: R-16-0286 protests occurred to resolve the protests filed by Tifon and Suntex; and WHEREAS, pursuant to Section 18-176.3 of the City Code, the Director of the Department of Real Estate and Asset Management ("DREAM") acts as the Chief Procurement Officer in proceedings arising under the Code provisions concerning the sale or lease of the City's real property; and WHEREAS, the Director of DREAM ("Director"), acting as Chief Procurement Officer, reviewed the protests submitted on behalf of Tifon and Suntex, and determined that both of the protests should be denied, and further provided the attached memoranda detailing the justification for this determination; and WHEREAS, the Director hereby recommends that the City Commission deny the protests of Tifon and Suntex; and WHEREAS, the City Manager concurs with the Director's recommendations; and WHEREAS, the City Commission, at a public meeting, has heard the protests of Tifon and Suntex and considered their arguments and documentation, and further considered the responses and documentation of the recommended proposer, RCI Group, and of the City Administration and, in consideration of the foregoing arguments and documents and being otherwise fully advised of the premises, approves of the decision of the Director to deny the protests submitted Suntex; and WHEREAS, the City Commission heard arguments presented by counsel for Tifon and of counsel for the City Administration and took notice of the Third District Court of Appeals case of Preston Carroll Co., Inc. v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3rd DCA 198 1) ("Preston Carroff'), which held that the third ranked bidder did not establish a "substantial interest" to challenge the highest ranked bidder where in such instance the appellant was the third ranked bidder and was not the second highest bidder and would not receive the award even if the challenge was to be successful; and WHEREAS, Tifon, as the third ranked proposer, has failed to plead a substantial interest in the award to be conferred standing under the Preston Carroll case; and WHEREAS, Section 18-104 of the City Code, "Resolution of Protested Solicitations and Awards", provides that "The written protest shall state with particularity the specific facts and law upon which the protest of the solicitation or the award is based, and shall include all pertinent documents and evidence and shall be accompanied by the required filing fee as provided in subsection (f). This shall form the basis for review of the written protest and no facts, grounds, documentation or evidence not contained in the protester's submission to the chief procurement officer at the time of filing the protest shall be permitted in the consideration of the written protest"; and WHEREAS, Suntex attempted to introduce additional facts not alleged in its original protests filed on April 12, 2016; and WHEREAS, such additional grounds raised by Suntex were not considered by the Director and thus cannot be considered by the City Commission pursuant to the provisions of Section 18-104 of the City Code; and City of Miand Page 2 of 4 File Id. 16-00518 (Version: 4) Printed On: 5/10/2018 File Number: 16-00518 Enactment Number: R-16-0286 WHEREAS, upon conclusion of the public hearing, the City Commission finds that the Evaluation and Selection process was not arbitrary or capricious, subject to fraud or collusion, a departure from the essential requirements of law, or otherwise in violation of any fundamental rights, such as each party's right to due process; and WHEREAS, the standard for challenging the award of a competitive solicitation in Florida is that a public body has wide discretion in soliciting and accepting bids or proposals for competitively solicited projects and such decisions when based on an honest exercise of this discretion; and WHEREAS, a protest under Section 18-104 of the City Code may not challenge the relative weight of the evaluation criteria or the formula for assigning points in making an award determination; and WHEREAS, after hearing arguments of counsel for RCI Group, Suntex, Tifon, the City Administration, and others and considering relevant and timely submitted materials and being otherwise fully advised of the premises, the City Commission took the action summarized in this Resolution; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The Director of DREAM's decision, acting as Chief Procurement Officer, to deny the protest submitted by Suntex, is accepted and approved and the protest of Suntex is denied in consideration of the following: (a) RCI's parking garage contribution is being made in the manner required by the RFP, as amended by addenda; (b) RCI's proposal is inclusive of sustainable design elements; (c) the proposed lease with RCI will have no material changes in violation of the RFP; (d) RCI does not have any litigation with the City; (e) RCI's experience, qualifications, operations history and financial portfolio were considered; and (e) contrary to the reasons set forth in the Suntex protest, RCI was not determined non-responsive or non -responsible. Section 3. Tifon did not establish a substantial interest in this contract award and has a lack of standing under the Preston Carroll case and its protest was not heard on its merits. Section 4. This Resolution shall become effective immediately upon adoption and signature of the Mayor. {1 } City of Miand Page 3 of 4 File Id. 16-00518 (Version: 4) Printed On: 5/10/2018 File Number: 16-00518 Footnotes: Enactment Number: R-16-0286 {1} If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 4 of 4 File Id. 16-00518 (Version: 4) Printed On: 5/10/2018