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HomeMy WebLinkAboutSubmittal-Al Dotson-Bilzin Sumberg memo-Basin can be excluded from the development at Virginia Key Marina+. Bilzin Sumberg Submitted into the public MEMORANDUM record for item(s) SPA on 06/22/2016, City Clerk DATE: June 14, 2016 RE: The Basin Can Be Excluded From the Development at Virginia Key Marina Florida law is clear that the City of Miami can prohibit development in the Marina basin and proceed with an award of the Virginia Key Marina RFP that excludes development in the basin. First and foremost, the Virginia Key Marina RFP clearly states that the Marina basin is NOT part of the required development program. The Virginia Key Marina RFP also clearly states that development in the Marina basin is PERMISSIVE only and that each proposer proceeded at their own risk should they decide to include development within the Marina basin. Second, the governing law is also clear. Modifications Prior to Selection MODIFICATIONS CONSISTENT WITH THE RFP ARE LEGALLY PERMITTED. Governmental bodies have broad discretion and the latitude to make decisions that are in its best interests, so long as it does not do so arbitrarily and capriciously. Without a showing of irrationality, fraud, illegal conduct, favoritism, or violation of an RFP's rules and governing regulations, Courts generally do not overturn a governmental body's decisions. Emerald Correctional Mgmt. v. Bay County Bd. of County Com'rs, 955 So.2d 647 (2007) The RFP at issue was seeking contractors to submit proposals to design, build, and finance an expansion of Bay County, Florida's existing correctional facility. The RFP stated, "The County reserves the right to accept or reject in part or in whole any or all proposals submitted," and "The County shall accept all proposals properly submitted. However, the County reserves the right to request clarifications or corrections to proposals. Requests for clarifications or corrections by the County shall be in writing." Id. at 649. Two proposals were submitted and both were found to be responsive. The County then issued a "Request for Clarifications" by submitting separate questions to the protestor and awardee. The awardee submitted new numbers to the County and although originally its proposal was more expensive than the protestors, the County restricted its cost proposal using the new numbers, which made it less expensive. Awardee was then selected as the top ranked proposer by the Board of Commissioners and began negotiations with the County. The protestor filed a protest that was presented to the Board of Commissioners who voted to continue negotiations then a denial of the protest was issued by the County Manager. Protestor then filed a complaint alleging that the County's actions were illegal, arbitrary, and capricious because (1) the County unfairly favored the awardee because it did not have to submit a set cost estimate, and (2) the County allowed the awardee to improperly make material changes to its proposal. The Court held that in general, "The 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." Id. at 651. The Court acknowledges that "a RFP is used when the MIAW 5D37108p, 74183/4689 . i zm 5umberg Baena rice le,- !1.xelrod LLP i 1450 Brickell Avenue, 23rd Floor, Miami, Florida 33131-3450 Tel 305.374.7580 1 Fax 305.374.75931 bilzin.com ��' (�Q`651 - — M �OtSOv�— `j1 tu��l�n�ttj rl2mo DUJ�nC.�+�be e�clu�e�lio����� Memorandum Bilzin Sumberg public authority is incapable of completely defining the scope of work required, when the service may be provided in several different ways, when the qualifications and quality of service are considered the primary factors instead of price, or when responses contain varying levels of service which may require subsequent negotiation and specificity." It explains that the terms of the contract are not set until after the negotiation process. Id. at 651. And even though in this instance, in addition to the discretion that accompanies the broad scopes of RFPs, "the County is afforded significant discretion in the RFP process" because of the language in the RFP that permitted the County to reject or accept in whole or in part any proposal at any time, the Court maintained, "While we recognize the wider discretion afforded counties and cities in exercising discretion in accepting or rejecting responses to RFPs, the decisions still must be subject to review to determine whether the governing body acted arbitrarily or capriciously." Id. 650-651. Citing City of Sweetwater v. Solo Constr. Corp., 823 So.2d 798, 802 (Fla. 3d DCA 2002), the Court explained that whether the County acted arbitrarily is generally controlled by a determination of whether the County complied with what is outlined in its RFP and the criteria that are espoused by it. As such, "a public body is not entitled to omit or alter material provisions required by the RFP". Id. at 653. Citing, State, Dep't of Lottery v. Gtech Corp., 816 So.2d 648 (Fla. 1st DCA 2001), the Court explained that the County cannot negotiate an agreement that in the final analysis bears little resemblance to the proposal that earned the awardee the number one rank in the first instance. Id. at 654. The discretion that the RFP provided would have permitted the County to make or accept modifications to the winning proposal during negotiations, but in this instance, the modifications that the County accepted were prior to negotiations, from only one proposer, and violated the RFP's mandatory requirements. Thus the modifications were the result of a gross abuse of discretion and therefore not permitted. Modifications Prior to Award/During Negotiations MODIFICATIONS DURING NEGOTIATIONS TO INCORPORATE ADVISORY BOARD RECOMMENDATIONS ARE PERMITTED. It is not impermissible for a governmental body to incorporate public comments and recommendations received from an advisory board into the final agreement that is negotiated with a selected proposer, particularly when the need for the approval of such rulemaking/regulatory bodies is detailed in the RFP. Monroe County v. Pigeon Key Historical Park, Inc., 647 So.2d 857 (1994) This case was brought because of a Sunshine Law violation, but its facts about the RFP award process are helpful to us. The Monroe County Board of County Commissioners issued a Request for Proposals to restore and preserve Pigeon Key, an offshore island located near Marathon, Florida. The Commission selected an awardee, and then directed its Pigeon Key Advisory Committee to negotiate the lease agreement. The Advisory Committee requested community input and received recommendations that included a request that the awardee work with tourist - related businesses to enhance the Key's appeal. The County Commission held a public hearing to discuss the lease and tabled the vote because the County Attorney explained that the Advisory Committee's recommendation that the awardee help make the Key a tourist attraction violated bond requirements that the Key remain public. The County Commission urged the awardee and the community members that were promoting the tourist use to meet and negotiate a joint plan. MIAMI 5037108.6 74183/46889 Page 2 Submitted into the public record for item(s) SPA on 06/22/2016, City Clerk Memorandum Bilzin Sumberg The awardee and the County then agreed to numerous changes to the lease including removal of the tourist use provision. The County Commission then heard the item again and recommended and approved additional changes to the lease. The Commission then defeated a motion to reject all proposals. At the end of the hearing, the Commission approved the amended lease with the awardee by a 3-2 vote. The modification of the lease in this manner and with the input of the Advisory Committee was not deemed improper, but was seen as being part and parcel to and in furtherance of the original solicitation. SCOPE CAN BE INCREASED THROUGH MODIFICATION IF IT IMPROVES THE GOVERNMENTAL BODY'S POSITION. The public bidding process does not nullify the governmental body's ability to bargain for a needed change to respond to and protect the public interest. Palamar Constr., Inc. v. Twp, of Pennsauken, 482 A.2d 174 (App.Div.1983) The Township of Pennsauken awarded a publicly -bid contract for the construction of a clubhouse at its country club. The municipality grew concerned with the supervision of the project, so the awardee agreed to provide full time supervision and to submit a personal guaranty. The second - lowest bidder challenged the award and the Court held that post -bid conditions that increase costs and do not place the awardee in a more favorable position than its competitors do not violate public bidding laws. Id. at 179. Rather, the post -bid conditions placed the awardee "in a less favorable, and possibly more expensive, position than his fellow bidders." Id. 179. Greenberg v. Fornicola, 178 A.2d 339 (1962) The City of Asbury Park in New Jersey issued an advertisement for bids to lease various stores in a boardwalk pavilion to bidders. Bidders were permitted to suggest the line of business they would pursue if awarded, subject to approval of the City Council. The awardee identified frozen desserts and other items as the products that would be sold in its store. Subsequent to being recommended for award, but prior to City Council approval, the City requested that the lease be amended to allow the awardee to sell food products such as frankfurters and hamburgers because visitors and city employees complained that they were not available at the pavilion. If these products were not sold at the pavilion, the nearest store would be beyond a public street and patrons would be restricted from buying them because of an ordinance that forbade anyone to cross the street in bathing attire. This amendment was challenged on the basis that in order to modify the lease, the City should undertake a new competitive bidding process. The Court disagreed and upheld the award and lease because, among other reasons, any other bidder could have placed a bid to sell those products and the change was intended to meet an unanticipated need. Id. at 343-344. The Court stated, "Quite obviously it would not be feasible to say the city's right to meet an unanticipated need is conditioned upon a tenant's willingness to risk the result of new bidding." Id. 343. It continued, "The goal of the bidding statute is not impaired when the public body in its own interest seeks an amendment to meet an unanticipated development in circumstances in which new bidding would be inappropriate or impractical.... It would be unreasonable to construe the [public bidding act] to deny to the municipality an opportunity to bargain for a needed change." Id. 343. Submitted into the public MIAMI 5037108.6 74183/46889 record for items) SP.1 Page 3 on 06/22/2016, City Clerk Memorandum C Bilzin Sumberg The Court said it is permissible to solicit proposals for any use, subject to disapproval. Id. at 342. Further, the Court explained that as a matter of public policy and application of public bidding regulations, "We think it clear the Legislature did not intend to deny to the municipality the right thus to protect its total interest by suitable restrictions upon use." Id. at 342. The Court also upheld the City's approach of seeking broad offers and suggestions rather than requiring specific uses and explained that it is appropriate for the City to "welcome all offers and then decide whether the highest should be refused because of some disadvantage in the use proposed" rather than "limit [its] opportunity for the highest return by divining in advance the particular uses [it] would consider to be appropriate." Id.at 342. The Court emphasized "[W]e hold that an open proposal, subject to disapproval as to use, is not incompatible with the bidding statute." Id. at 343. The protestor did not allege bad faith or arbitrariness, but that the bidding statute forbade modification or relaxation of the terms of the lease. As the Court posed, "The question then is whether the city may relax a restriction upon use to obtain a service the city wishes to be provided." Id. at 344. When discussing whether "the city permitted a change which would have materially altered the basis upon which bids had been submitted" the Court answered its question in the negative explaining, "[T]he restriction was simply a restraint imposed by the city to protect its continuing interest as owner. The city accordingly could relax the restriction to serve its own ends without generating an issue under the bidding law." Id. at 344. The modification was not considered material because it was not a change to the basis upon which bids had been submitted. The Court explained that the modification of the lease was proposed by the City, not the awardee, and the change and consequent modification of the bidder's proposal did not violate public bidding laws because "the restriction upon use was not a term of the bidding specifications" and "any interested party could have bid for the store upon a proposed use which would have embraced all of the items [the awardee] was later permitted to sell." Id. 344. The Court also upheld the City's approach of seeking broad offers and suggestions rather than requiring specific uses and explained that it is appropriate for the City to "welcome all offers and then decide whether the highest should be refused because of some disadvantage in the use proposed" rather than "limit [its] opportunity for the highest return by divining in advance the particular uses [it] would consider to be appropriate." Mat 342. The Court emphasized "[W]e hold that an open proposal, subject to disapproval as to use, is not incompatible with the bidding statute." Id. at 343. The Court found that the fact that the City welcomed all proposals and suggestions probably reduced the likelihood of favoritism because requesting a more specific use may have resulted in fewer interested parties. Id. at 342. The Court discussed the fact that the specific bases for rejection could have been included in the solicitation, but still concluded, "No bid was in fact rejected, and the likelihood that any bid was deterred [by the subsequent modification] is too remote to warrant upsetting a completed transaction." Id. at 343. MODIFICATIONS IN ACCORDANCE WITH THE RFP PROCESS OF WHICH PROPOSERS HAD NOTICE ARE PERMITTED. When the language of the RFP gives notice to proposers of the fact that the governmental body may take certain actions, it is permissible for the governmental body to elect to take those actions as prescribed by the RFP. Submitted into the public MIAMI 5037108.6 74183/46889 record for item(s) SP.1 Page 4 on 06/22/2016. City Clerk Memorandum Bilzin Sumberg Villaume Industries, Inc. v. Dakota County Bd. of Com'rs, 386 N.W.2d 344 (1986) This case involved an RFP by two Minnesota Counties for development of a hydropower project at a dam. The RFP stated that preference would be given to proposals that responsibly maximize the net economic benefit to the Counties, but that was not the sole evaluation criterion. Mat 344. In the RFP, the Counties reserved the right to reject and accept any proposal and waive irregularities or informalities. Id. at 345. Independent engineering and financial consultants assisted in the evaluation of the proposals and provided financial advice. After evaluation, the awardee was found to have submitted the proposal that provided the more revenue and less risk to the Counties. Id. at 346. During negotiations, the awardee's proposal was modified to address items that were not specifically covered in the RFP, but which came to light during the course of negotiations. Id. at 346. These modifications included adding financial participation for certain components of the project, increasing reimbursement to the Counties by approximately $39,000. Id. at 346. The protestor alleged that the Counties were obligated to follow strict procedures and negotiated improperly. The Court denied the protest. The Court explained that, "The record shows that the counties followed the RFP selection process that had been approved by all the interested developers" and the decision to select the awardee over the protestor was based on the original sealed proposals that they submitted. Id. at 348. Further, the Counties that issued the RFP had "broad discretionary power in the leasing of dams for the development of hydropower, and in the absence of fraud or gross abuse of discretion, the courts must accede to the exercise of that discretion by the legislative authority." Id. at 347. Language Line Services, Inc. v. Dep't of General Services, 991 A.2d 383 (Pa.Cmwlth.) The Court explained that what is negotiable depends on what was identified as such in the RFP, whether the RFP and procurement rules permit negotiations and the governmental body's use of its discretion, and the stage of the procurement process. Negotiations to modify certain terms can take place after a proposer is found responsive and responsible. The Court explained that the Department has broad latitude to negotiate in the manner allowed in the RFP and the Code. In considering whether the issuing agency had violated the Code and fundamental principles governing public contracting when it requested best and final offers (BAFOs) from only certain bidders, this Court looked to the Code and the language of the RFP at issue. The language in the RFP, "specifically stated and put offerors on notice that [the issuing agency] was reserving the right to limit BAFO discussions to responsible offerors whose proposals were considered `reasonably susceptible of being selected for award.' " Id. at 390. Because the language of the RFP placed prospective bidders on notice of how the issuing agency intended to proceed and because the issuing agency, in fact, proceeded in the manner outlined in its request for proposal, the issuing agency had not violated the Code. Modifications after Award INCIDENTAL MODIFICATIONS IN FULFILLMENT OF ORIGINAL SOLICITATION ARE PERMITTED. Incidental modifications that are not material and that are in fulfillment of the original solicitation/contract are permissible modifications. In the construction context, the Courts recognize wide Submitted into the public MIAMI 5037108.6 74183/46889 record for item(s) SPA Page 5 on 06/22/2016, City Clerk Memorandum ` Bilzin Sumberg latitude for an efficient administration of public works so that the public interest is not jeopardized in the event of new circumstances, emergencies, and unforeseen obstacles. Despite the RFP's invitation to make changes to the Agreement, it remains incumbent upon the contracting entity to determine if those modifications render the proposal nonconforming. Two-part materiality test to determine if noncompliance with a provision of the proposal is material: (1) whether the effect of a waiver would be to deprive the public agency of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and (2) whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition (Weidner v. Tully Environmental, Inc., 858 A.2d 560, 566 (2004)) Home Owners Constr. Co. v. Borough of Glen Rock, 169 A.2d 129 (1961). In this case, the Borough of Glen Rock advertised for bids on certain road work and submitted specifications to the prospective bidders. When the awardee began to perform the work, it discovered that the base of the road was unstable and required additional excavation and placement of a stone base. The municipality's engineer and its inspector authorized a change in the contract for the additional work and materials and agreed to pay for the additional costs, but then refused to pay the awardee for the additional work claiming that it would need to obtain bids for the additional work. The awardee sued for payment and the Court held that there are circumstances in which alterations are acceptable so long as the changes are in fulfillment of the original undertaking and are incidental modifications. Id. at 134. The Court stated, "In the course of a construction contract, bona fide emergencies may well arise and incidental alterations may well be required," and further explained, "Where the resulting additional expenditures are reasonable and are conscientiously viewed as being in fulfillment of the original undertaking rather than departing therefrom [J it would clearly be contrary to the public interest to halt the undertaking and call for bidding with respect to the additional work entailed by the emergency or the incidental alteration." Id. at 134. The Court cited Michigan City v. Witter, 34 N.E.2d 132, 135 (1941), and explains, "The court referred to the fact that conditions during the course of the work disclosed that the original specifications were defective and expressed the view `to hold that under such circumstances the municipality, or the agents placed in charge of the construction, were without power to correct the mistake would be the height of folly"'. Id. 133-134. The Court cited Pyle v. Kernan, 36 P.2d 580 (Sup.Ct.1934), and remarked, "The court noted that `a reasonable degree of latitude is essential to an intelligent and efficient administration of public works' and that `if the rule were otherwise, public interests would be greatly jeopardized in the event of emergencies and unforeseen obstacles in construction work."' Id. 133. Legal Analysis Removal of the wet slips in the basin, in accordance with the recommendation of the Virginia Key Advisory Board and the language of the RFP, was provided for in the RFP and is consistent with the fulfillment of the original purpose of redeveloping the marina and dry storage facility subject to restrictions and limitations imposed by the City. All proposers were on notice of the fact that development Submitted into the public MIAMI 5037108.6 74183/46889 record for item(s) SPA Page 6 on 06/22/2016, City Clerk Memorandum � ` Bilzin Sumberg of wet slips in the basin was not part of the required redevelopment program, is subject to City Commission denial, and is subject to permitting, further approvals, restrictions, and limitations. More pointedly, (1) the City did not permit any proposer to make modifications prior to award/negotiations, (2) wet slips in the basin are not a mandatory RFP requirement and in fact the number of slips are described as being an approximation that is subject to approval, restrictions and limitations, (3) there is no impermissible favoritism in deciding to restrict development in the basin, and (4) the City would not be violating the RFP or procurement rules or regulations if it restricts development in the basin. RFP PERMITS THE CITY TO RESTRICT DEVELOPMENT IN THE BASIN. The City made clear that the entire project and the wet slips in particular are subject to subsequent approvals, restrictions, and limitations imposed by the City Commission itself and other governing bodies. As evidenced by the following RFP excerpts, the RFP contemplated that changes to the plans, design, and number of wet slips could be made post -award by the City and other governmental and regulatory bodies: • "The design of the Project shall be subject to review and approval by appropriate City departments and/or agencies, including but not limited to certain County agencies such as Shoreline Review Committee and the Shoreline Review Manual as set forth in the Miami -Dade County Code." (RFP pg. 15) • "Depending on the scope of renovation or redevelopment, architectural components may be subject to approval by the City's Planning and Zoning Department, the PZAB and the City Commission." (RFP pg. 22) • "Construct and install approximately 300 additional wetslips and renovate the bulkhead alongside these wetslips, subject to all applicable rules and regulations." (pg. 30) • "Unless the City Manager specifically authorizes it, Proposers may not make any additions or modifications to the proposal responses, nor the Project or Development Team, subsequent to the RFP submission deadline." (RFP pg. 35) • "There is no anticipated location for the additional boat slips as this will be determined at the Selected Proposer's discretion, subject to the restrictions set forth in the RFP, the Virginia Key Master Plan (included as Exhibit E), and all other applicable restrictions, rules, and regulations." (Addendum II, pg. 2) • "The Selected Proposer shall have the discretion to design the area subject to the restrictions set forth in the RFP, the Virginia Key Master Plan (included as Exhibit E), and all other applicable restrictions, rules, and regulations." (Addendum II, pg. 2) • "The additional number of slips is an approximation intended to maximize the number of slips, which will vary and will be subiect to restrictions imposed by the RFP, building, zoning, and any and all other City, County, State, and Federal limitations and regulations, as applicable." [Emphasis added.] (Addendum VIII, pg.8) • "The selected proposer shall be required to comply with all applicable restrictions and stipulations, and must obtain all required permits and approvals, including, if necessary, approval from the Historic and Environmental Preservation Board." (Addendum XV, pg.2) • "In the event the applicable regulatory agencies do not approve the inclusion of some or all of the submerged lands, the minimum base rent shall be revised accordingly based on the reduced square footage available." (Addendum XV, pg.3) • "Proposals must provide for the construction and installation of approximately 300 additional wet slips, subject to all compliance with applicable approvals, rules and regulations. However, the Submitted into the public MIAMI 5037108.6 74183/46889 record for item(s) SP.1 Page 7 on 06/22/2016 City Clerk Memorandum Bilzin Sumberg number of slips is an approximation, and in the event a proposer provides for only 100 additional slips, the proposal shall not automatically be deemed unresponsive." (Addendum XVIII, pg.4) CITY CAN BARGAIN FOR A NEEDED CHANGE AND RESPOND TO NEW CIRCUMSTANCES. The City has the latitude to restrict development in the basin and ensure the intelligent and efficient administration of development of the marina, particularly since it now appears that the addition of the basin to the RFP site was a specification that needs to be revised, per the Virginia Key Advisory Board's recommendations and public comments. Further, the City always has the right to bargain for a needed change and it can seek amendments that are in its best interest to meet an unanticipated development or circumstance. The RFP was issued over a year ago and it would be impractical to re -issue the RFP because of an issue that the RFP as written already contemplates. As demonstrated by the process for the Pigeon Key lease described in the case above, the City can receive input from the Virginia Key Advisory Board and it can incorporate that input into the lease terms and modify the lease's use provisions prior to award as needed, in order to be in compliance with the law and recommendations of the Board. BASIN RESTRICTIONS DO NOT CONFER COMPETITIVE ADVANTAGE. An action to remove the basin slips from the development plan does not necessitate a rebidding of the RFP because it would not confer a competitive advantage to RCI. RCI has already received the first place ranking and proposed the least amount of slips in the basin. Development in the basin was not a restriction or requirement of the RFP. The RFP lists the following required redevelopments on page 30: "Construct and install approximately 300 additional wet slips and renovate the bulkhead alongside these wets lips, subject to all applicable rules and regulations;" and "Maintain the existing 648 dry racks on-site and 190 existing wet slips during the Lease Term." The RFP then clarified the wet slip requirement, stating, "The additional number of slips is an approximation intended to maximize the number of slips, which will vary and will be subject to restrictions imposed by the RFP, building, zoning, and any and all other City, County, State, and Federal limitations and regulations, as applicable." [Emphasis added.] (RFP Addendum VIII, pg.8). The City explained in more detail, "Proposals must provide for the construction and installation of approximately 300 additional wet slips, subject to all compliance with applicable approvals, rules and regulations. However, the number of slips is an approximation, and in the event a proposer provides for only 100 additional slips, the proposal shall not automatically be deemed unresponsive." (RFP Addendum XVIII, pg.4). Thus, the minimum requirement for wet slips was to maintain the existing slips and the 300 additional wet slips that were requested by the City is an approximate number and a proposal is still responsive if it has less than the approximate 300 additional wet slips. Proposers were on notice of the fact that the number of basin slips was an approximation and only a possibility that was subject to regulations, laws, restrictions and limitations and therefore were not prejudiced by the decision to place a restriction on development in the basin. Further, because the RFP minimum was to at least maintain the existing wet slips and the RFP made clear that proposers would not be found non-responsive for using their discretion Submitted into the public MIAMI 5037108.6 74183/46889 record for item(s) Spa Page 8 on 06/22/2016, City Clerk Memorandum Bilzin Sumberg in proposing a certain number of additional wet slips, the other proposers cannot and will not be deemed non-responsive on account of their slip count after the fact by the City's restriction on the basin development during the award stage of the procurement. Every proposer proposed the minimum required. All bidders were free to present any proposal that they wanted. All the other proposers and any interested party could have chosen to design plans that had minimal impact on the basin. The RFP clearly stated, "There is no anticipated location for the additional boat slips as this will be determined at the Selected Proposer's discretion, subject to the restrictions set forth in the RFP, the Virginia Key Master Plan (included as Exhibit E), and all other applicable restrictions, rules, and regulations." [Emphasis added.] (Addendum II, pg. 2). Again the City reiterated, "The Selected Proposer shall have the discretion to design the area subject to the restrictions set forth in the RFP, the Virginia Key Master Plan (included as Exhibit E), and all other applicable restrictions, rules, and regulations." (Addendum II, pg. 2). The City even went so far as to say, "The additional number of slips is an approximation" (Addendum VIII, pg. 8) and a proposal that includes less than 300 additional slips shall not automatically be deemed unresponsive. (Addendum XVIII, pg.4). Thus, proposers had the discretion to present a plan that incorporated the risks that the environmental permitting process, applicable regulations and requisite approvals, and the historic designation of the basin would have on the potential for development in that area, particularly because they could have done so without being found non-responsive. Every proposer was given the opportunity to take that into consideration and prepare a proposal accordingly. There was a level playing field and sufficient notice regarding the potential for restrictions to be instituted during negotiations. The other proposers would not be prejudiced by the restrictions to basin development because that was not a factor that was considered in the evaluations and it did not form the basis of the recommendation for award. If a change does not materially alter the basis upon which bids had been submitted and evaluated, then it is legally permissible. Further, restrictions regarding the basin wet slips would not substantially change RCI's original proposal and it is not the case that an agreement with RCI that removes the basin slips will bear little resemblance to the proposal that earned RCI the #1 rank. RCI proposed the least amount of basin slips of all proposers to begin with, and in its plan, it proposed that the basin would have a lesser amount of slips than the current marina location and its dry storage facility. Thus, to remove the basin slips has minimal impact on the total number of slips proposed in RCI's plan and RCI is the proposer whose plan and revenue projections would be least impacted by a reduction of slips. CITY HAS WIDE DISCRETION AND LATITUDE BY LAW AND THE LANGUAGE OF THE RFP. During the negotiation stage of an RFP process, the City has the discretion to seek specificity with regard to certain specifications and terms of the lease. The post-recommendation/negotiation stage is the primary stage in which the City is legally permitted to make a modification such as restricting development in the basin. This language of the RFP reserves the right of the City to impose restrictions and limitations at its discretion, and the City can do so, as long as it exercises that right without acting arbitrarily or capriciously. Whether its decision is arbitrary or capricious is judged by whether the City complied with what is outlined in its RFP. In restricting basin development, the City is simply exercising a right that the RFP grants and that it explicitly reserved. If the City decides to incorporate basin development restrictions into the final agreement with RCI, it would implementing a restriction that the RFP stated was subject to its approval and limitations and thus proceeding exactly as the RFP intended. It would not be a showing Submitted into the public MIAMI 5037108.6 74183/46889 record for item(s) SP.1 Page 9 on 06/22/2016, City Clerk Memorandum Bilzin Sumberg of a dishonesty, illegality, fraud, oppression or misconduct. Thus, the City would not be acting arbitrarily or capriciously. There has been no fraud, oppression, misconduct, gross abuse of discretion, illegal activity, or favoritism in this process on the part of the City, and neither has anyone alleged as such. Thus, there is caselaw support for our argument that the City has broad latitude within the language and requirements of the RFP to use its discretion to make restrict development of the basin wet slips and make that a condition of its agreement with RCI. Submitted into the public MIAMI 5037108.6 74183/46889 record for item(s) SPA Page 10 on 06/22/2016, City Clerk