CAO 98-22
'.
. .
'.
CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO:
Sergio Rodriguez
City Manager
Murray H. DUbbiR 1\ ~
City Attorney , 'JI\
Raul 1. Aguila~C) ~
First Assistant City Attorney
C.M.O. NO. 2-7/98
C.A.O. NO. 98-22
FROM:
DATE:
July 29,1998
RE:
RFP NO. 55-97/98, VIOLATIONS/INSPECTIONSIPERMITTING SYSTEM
(RFP)
This opinion is prepared pursuant to your memorandum, dated July 17, 1998, requesting a
legal opinion regarding two responses to the above-referenced RFP; specifically, exceptions taken
by two proposers, Sierra Computers Systems, Inc. (Sierra) and Tidemark Computer Systems, Inc.
(Tidemark), respectively, with regard to the RFP requirements of expenses paid site visits and the
posting of a performance bond.
Section 6(A) of the RFP states that, if selected by the City as one of the finalists, the proposer
agrees to provide funding for travel, hotel, and per diem expenses for three (3) City employees to
visit one site of the proposer's choice. That site must be actively using the same
violations/inspections/permits software that is proposed in the RFP. The proposers are to arrange
the site visits but will not participate with City employees. This requirement also states that "Site
visits will be an important part of the software selection decision making process. Proposers are
encouraged to select sites that best represent their software." (See Section 6(A) on page 19 of the
RFP).
Section 6(B) requires the successful proposer, within five (5) calendar days after award of
the RFP and execution of an agreement with the City, to provide a $75,000 bond to remain in effect
during the term of the Agreement. In the alternative, an irrevocable Letter of Credit or cash deposit
is also acceptable. (See Section 6B on page 19 of the RFP).
The two proposers in question, Sierra and Tidemark, take exception to the RFP's site visit
and performance bond requirements. Pursuant to Section 1(1) of the RFP,
" ,
"Proposers must clearly indicate any exceptions they wish to take to
any of the terms in this RFP, and outline what alternative is being
offered. The City, after completing evaluations, may accept or reject
the exceptions. In cases in which exceptions are rejected, the City
may require the proposer to furnish the services or goods described
herein, or negotiate an acceptable alternative.
(See Section 1(J) on page 6 of the RFP).
In its response, Sierra states that the City may opt to visit its client's sites, but it will not
provide funding for travel, hotel, and per diem expenses for City employees to visit said site. In
addressing only the performance bond requirement (and not the alternative ofletter of credit or cash
security), Sierra states that it has never been required to post a performance bond for any of its
installations and would only consider allowing the City to withhold a portion of the license fee in
lieu of the performance bond.
Similarly, in its response, Tidemark states that it is its policy not to pay for site visits. In the
alternative, it lists references, including governments in F~da, and encourages site visits, as well
as offering to provide a free on-site demonstration. As to the performance bond, Tidemark states
that such bonds are not appropriate to software agreements; consequently, such bonds are difficult
to obtain and prohibitively expensive.
The language in Sections 6(A) and 6(B), respectively, is clear. The RFP states that site visits
shall be considered as an important pan: of the software selection decision making process. It also
requires the successful proposer to post ~ a $75,000 bond or, in the alternative, an irrevocable
letter of credit or cash deposit. The two firms' taking exceptions to the performance bond
requirement do not per se render their proposals non-responsive. They can still, in the alternative,
provide a letter of credit or cash deposit, thereby satisfying the "performance security" requirement
under the RFP.
As to the "subsidized" site visit requirement, the two firms' do not take exceptions with
facilitating the visits, but rather it is the individual policy of the firms not to compensate the City for
same. The RFP expressly states that site visits are an important part of the decision making process;
however, it would not be prudent to imply from this that com.pensated site visits are an important
part of the decision making process. The issue of whether to waive the compensation requirement
is ultimately a policy decision by the Administration. The fact that the firms have offered site visits,
without compensation, does not automatically render their proposals non-responsive.
Finally, Section 1(J) of the RFP, addressing exceptions to the RFP, states that after evaluating
proposals, the City may accept or reject any exceptions and, in cases which exceptions are rejected,
require the proposer to furnish the services or goods required under the RFP, or negotiate an
acceptable alternative. With regard to the issue at hand, this affords the City some discretion. As
the two proposers have taken exception to the performance bond requirement, the City can opt to
2
"
negotiate the alternatives; a letter of credit or cash deposit. If this is unsuccessful, the City may
properly reject the proposals. In the case of the site visits, the City may likewise choose to accept
the proposals as submitted; that is, non-compensated site visits, as an acceptable alternative. In the
event that this is not an acceptable alternative, the City may require the proposer to conform to the
requirement of the RFP and, if the proposer refuses, properly reject the proposals.
Should you have any questions or comments regarding the foregoing, please do not hesitate
to contact us.
RJA\kw(F:\A1TOIAGU\l1CA0I9I-22.CAO)
3