CAO 01-06 Living Wage Ord.
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CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO:
Jorge M. Gonzalez
City Manager
Murray H. Dubb~. Y
City Attorney / V'\
Raul J. Aguila ~
First Assistant City Attorney
C.A.O. NO. 01-06
FROM:
C.M.O. NO. 2-5/01
SUBJECT: Living Wage Ordinance
DATE: June 5, 2001
The foregoing opinion is prepared in response to your memorandum, dated May 22, 2001,
regarding whether the City's Living Wage Ordinance, as codified in Division VI of Article IV,
entitled "Procurement", of Chapter 2 of the Miami Beach City Code entitled "Administration" (the
Ordinance), applies to Request for Proposals No. 9-00/01 (the RFP), for meter collection, as
authorized on November 29, 2000. Responses were received on February 1, 2001, but the successful
proposer has (as of the date of this memorandum) not yet been designated.
Your memorandum further notes that the Ordinance was formally adopted on second reading
on April 18, 2001, with an effective date ten days later on April 28, 2001. The RFP did not reference
the Ordinance, since it had not yet been adopted; however, the contract has not yet been awarded and
negotiations have not yet commenced or been authorized.
Section 2-407(e)(I) provides that certain contracts, as set forth therein and involving the
City's expenditure of over $100,000.00 per year, including contracts for transportation and parking
services (such as the one contemplated by the RFP for meter collection), are subject to the Living
Wage requirements of the Ordinance. Your May 22, 2001 memorandum does not specify whether
the contract contemplated by the RFP, although falling within the definition of transportation and
parking services, involves a City expenditure of over $100,000.00 per year. If it does not, the
Ordinance does not apply.
However, assuming arguendo that the contract proposed by the RFP involves a City
expenditure of over $100,000.00 per year, the Ordinance prescribes that certain "notice"
requirements be complied with for the Living Wage requirements to apply to a particular City
contract. Section 2-409(a) provides that the Living Wage shall be required in the procurement
specifications for all City service contracts contemplated by the Ordinance on which bids or
proposals shall be solicited on or after the effective date of the Ordinance (or, in this case, April 28,
2001). Section 2-409(a) also provides that all contracts subject to the Ordinance awarded subsequent
to the effective date of same, shall be subject to the requirements of the Ordinance.
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In the instant case, the RFP was issued and responses received prior to the effective date of
the Ordinance on April 28, 2001; therefore, prospective proposers to the RFP had no notice of the
Ordinance or the requirements therein (presumably, since the Ordinance had not yet been adopted).
The importance of the requirement in the Ordinance that prospective bidders/proposers have notice
of the City's Living Wage requirements is further substantiated by Section 2-409(b) which states that
all bids or requests for proposals for contracts covered by the Ordinance shall include appropriate
information about the requirements of the Ordinance in the bid/proposal documents.
Understandably, your apparent confusion with whether this particular RFP is subject to the
Living Wage requirements may come from the last sentence in Section 2-409(a) which states, "All
Covered Service contracts awarded subsequent to the date when this Division becomes effective,
shall be subject to the requirements of this Division." In this case, the RFP was prepared prior to
the effective date of the Ordinance and contained no reference to Living Wage requirements in the
RFP documents. Responses to the RFP were received on February 1, 2001, also prior to the effective
date of the Ordinance. However, the contract with the successful proposer will be awarded
subsequent to the effective date of the Ordinance. Therefore, does the Ordinance apply to this RFP?
The language in Section 2-409(a), and further in Section 2-408(b), requiring that the Ordinance and
the requirements prescribed therein be included in all City bids/requests for proposals, is critical.
The purpose of this "notice requirement" is to provide prospective bidders/proposers with notice of
the City's Living Wage requirements so that they may prepare a truly responsive bid. Presumably,
the Ordinance may have a significant financial impact upon the preparation of a prospective
bid/proposal.
To require that the successful proposer herein comply with the City's Living Wage
requirements, when no such requirements were set forth in the proposal documents (as required by
Sections 2-409(a) and (b)), results in a material deviation from the language of the RFP and may be
challengeable!,
Following award of the RFP, the Administration could introduce its Living Wage
requirements into subsequent contract negotiations with the successful proposer; however, any
adherence to same by the successful proposer would be voluntary and could not be made compulsory
subject to the requirements of the RFP and/or the Ordinance since, as set forth above, no notice of
the City's Living Wage requirements was provided in the RFP.
Should you have any questions or comments regarding the above, please do not hesitate to
contact me.
cc:
Christina M. Cuervo, Assistant City Manager
Saul Frances, Parking Director
Gus Lopez, Procurement Director
Patricia Walker, Finance Director
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I Ifit is the Administration's intent that the Living Wage requirements apply to the RFP, a
surer course of action would be to reject all proposals received in response thereto, and fast track the
issuance of a new RFP, with the appropriate Living Wage language incorporated therein.
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