Resolution 2021-31648 RESOLUTION NO. 2021-31648
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
CITY MANAGER, TO AUTHORIZE NEGOTIATIONS RELATING TO REQUEST
FOR PROPOSALS NO. 2020-180-ND, FOR DESIGN/BUILD SERVICES FOR
72ND STREET COMMUNITY COMPLEX (THE RFP); AUTHORIZING THE
ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH THE HASKELL
COMPANY, AS THE TOP RANKED PROPOSER; FURTHER, IF THE
ADMINISTRATION IS NOT SUCCESSFUL IN NEGOTIATING AN
AGREEMENT WITH THE HASKELL COMPANY, AUTHORIZING THE
ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH PCL
CONSTRUCTION SERVICES, INC., AS THE SECOND RANKED PROPOSER;
FURTHER, IF THE ADMINISTRATION IS NOT SUCCESSFUL IN
NEGOTIATING AN AGREEMENT WITH PCL CONSTRUCTION SERVICES,
INC., AUTHORIZING THE ADMINISTRATION TO ENTER INTO
NEGOTIATIONS WITH KAUFMAN LYNN CONSTRUCTION, INC., AS THE
THIRD RANKED PROPOSER; PROVIDED, HOWEVER, THAT THE FINAL
NEGOTIATED AGREEMENT SHALL BE SUBJECT TO THE PRIOR
APPROVAL OF THE MAYOR AND CITY COMMISSION.
WHEREAS, on June 24, 2020, the Mayor and City Commission authorized the issuance
of RFP 2020-180-ND for Design/Build Services for the 72nd Street Community Complex (the
RFP); the RFP was issued on June 26, 2020, with an opening date of August 10, 2020; and
WHEREAS, a voluntary pre-proposal conference to provide information to the proposers
submitting a response was held on July 7, 2020; and
WHEREAS, the RFP provides for a two-step, phased evaluation process; and
WHEREAS, the scope of Phase I of the evaluation process related to qualifications,
experience and availability of the proposers and key members of the design-build team,
including the lead designer and lead construction firm: and
WHEREAS, only those Proposers short-listed during Phase I would be authorized to
proceed to Phase II of the RFP selection process, during which phase the price and detailed
technical proposals, based on the approved Design Criteria Package (the "DCP"), would be
considered; and
WHEREAS, under Phase I, the City received proposals in response to the RFP from the
following seven (7)firms:
• ANF Group, Inc.;
• Balfour Beatty Construction, LLC;
• Kaufman Lynn Construction, Inc.;
• KVC Constructors, Inc.;
• NV2A Group, LLC;
• PCL Construction Services, Inc.; and
• The Haskell Company; and
WHEREAS, the proposal from ANF Group, Inc. was deemed non-responsive for failure
to meet the minimum requirements of the RFP, and was not further evaluated; and
WHEREAS, on August 3, 2020, via LTC # 276-2020, the City Manager appointed the
Evaluation Committee (the" Evaluation Committee"), which convened on August 26, 2020 to
consider the remaining proposals submitted under Phase I; and
WHEREAS, the Evaluation Committee's Phase I rankings were as follows: 1) Kaufman
Lynn Construction, Inc.; 2) PCL Construction Services, Inc.; 2) The Haskell Company; 4) NV2A
Group, LLC; 5) KVC Constructors, Inc.; 6) Balfour Beatty Construction, LLC; and
WHEREAS, on September 16, 2020, City Commission adopted Resolution No. 2020-
31387, accepting the recommendation of the City Manager pertaining to the ranking of the
proposals with respect to Phase I of the RFP selection process, and authorized (1) Kaufman
Lynn Construction, Inc., (2) PCL Construction Services, Inc., and (3) The Haskell Company, to
be further considered in Phase II of the RFP evaluation process; and
WHEREAS, on September 17, 2020, the Procurement Department issued Phase II of
the RFP to the short-listed proposers; and
WHEREAS, on December 14, 2020, the City received the technical and price proposals
in response to Phase II of the RFP; and
WHEREAS, the Evaluation Committee, appointed by the City Manager via LTC # 276-
2020, convened on January 29, 2021 to consider the proposals received under Phase II; and
WHEREAS, the Evaluation Committee's rankings for Phase II were as follows:
(1) The Haskell Company;
(2) PCL Construction Services, Inc.; and
(3) Kaufman Lynn Construction, Inc; and
WHEREAS, after reviewing all of the submissions and the Evaluation Committee's
rankings, the City Manager concurs with the Evaluation Committee and recommends that the
Mayor and City Commission authorize the Administration to enter into negotiations with The
Haskell Company, as the top ranked proposer; further, if the Administration is not successful in
negotiating an agreement with The Haskell Company, authorizing the Administration to enter
into negotiations with PCL Construction Services, Inc., as the second ranked proposer; further,
if the Administration is not successful in negotiating an agreement with PCL Construction
Services, Inc., authorizing the Administration to enter into negotiations with Kaufman Lynn
Construction, Inc., as the third ranked proposer, with the final negotiated agreement being
subject to the prior approval of the Mayor and City Commission.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby accept the recommendation of the City Manager, to authorize negotiations
relating to Request for Proposals No. 2020-180-ND, for Design/Build Services for 72"d Street
Community Complex (the RFP); authorize the Administration to enter into negotiations with The
Haskell Company, as the top ranked proposer; further, if the Administration is not successful in
negotiating an agreement with The Haskell Company, authorize the Administration to enter into
negotiations with PCL Construction Services, Inc., as the second ranked proposer; further, if the
Administration is not successful in negotiating an agreement with PCL Construction Services,
Inc., authorize the Administration to enter into negotiations with Kaufman Lynn Construction,
Inc., as the third ranked proposer; provided, however, that the final negotiated agreement shall
be subject to the prior approval of the Mayor and City Commission.
PASSED AND ADOPTED this_ 17 day of YhGrrk 2021.
ATTEST:
7)1 3w&
Rafael E. Granado, City Cler Dan Gelber, Mayor
(II,0 P ORATED`
26
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
-3-- Z)
City Attorney nw., Date
Resolutions - R7 C
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J.Aguila, Interim City Manager
DATE: March 17, 2021
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF
THE CITY MANAGER, TO AUTHORIZE NEGOTIATIONS RELATING TO
REQUEST FOR PROPOSALS NO. 2020-180-ND, FOR DESIGN/BUILD
SERVICES FOR 72ND STREET COMMUNITY COMPLEX (THE RFP);
AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS
WITH THE HASKELL COMPANY, AS THE TOP RANKED PROPOSER;
FURTHER, IF THE ADMINISTRATION IS NOT SUCCESSFUL IN
NEGOTIATING AN AGREEMENT WITH THE HASKELL COMPANY,
AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS
WITH PCL CONSTRUCTION SERVICES, INC.,AS THE SECOND RANKED
PROPOSER; FURTHER, IF THE ADMINISTRATION IS NOT SUCCESSFUL
IN NEGOTIATING AN AGREEMENT WITH PCL CONSTRUCTION
SERVICES, INC.,AUTHORIZING THE ADMINISTRATION TO ENTER INTO
NEGOTIATIONS WITH KAUFMAN LYNN CONSTRUCTION, INC., AS THE
THIRD RANKED PROPOSER; PROVIDED, HOWEVER, THAT THE FINAL
NEGOTIATED AGREEMENT SHALL BE SUBJECT TO THE PRIOR
APPROVAL OF THE MAYOR AND CITY COMMISSION.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission of the City of Miami
Beach, Florida approve the Resolution accepting the City Manager's recommendation
pertaining to the proposals received pursuant to RFP 2020-180-ND for design/build services
for the 72nd street community complex.
BACKGROUND/HISTORY
On November 6, 2018, Miami Beach residents approved a ballot measure,which authorized the
issuance of a general obligation bond (G.O. Bond) for the design, permitting, installation, and
construction of the 72nd Street Community Complex. A total of $53.8 million of general
obligation bonds are allocated to fund the project, including but not limited to the design,
permitting, and construction. An additional $10.6 million has been allocated from different
funding sources bringing the total project budget to $64.4 million. The Project programming as
described in the Design Criteria Package (DCP) includes a multi-level mixed-use parking
garage requiring the program components of a 500 space parking structure, 50-meter
Page 619 of 2284
competition pool with support amenities, 25-meter multi-purpose pool, 7,500 SF Miami-Dade
County library, 5,000 SF commercial/retail, 7,500 SF fitness center, 5,000 SF community
center, 60,000 SF of active green space, and a jogging path.
Furthermore, the DCP included Project Enhancement components that could be considered by
the proposers as desired (but not required) project elements with the intent to be included within
the proposed project budget.
ANALYSIS
On June 24, 2020, the Mayor and City Commission authorized the issuance of Request for
Proposals (RFP) 2020-180-ND for Design/Build Services for 72nd Street Community
Complex. The RFP stipulated a two-phase process. Phase I required the submittal and
consideration of the Design/Build firm's qualifications. Phase II required the submittal and
consideration of the Design/Build firm's Technical Proposal which included each firm's
proposed design, project approach during design and construction, project schedule and the
Guaranteed Maximum Price (GMP). On June 26, 2020, the RFP was issued.
The RFP established a proposed project budget of $55 million for design and construction.
The intent was to have the Design/Build firms include all the project programming and any
project enhancements that could be implemented within this proposed project budget.
On August 10, 2020, the City received seven (7) Phase I proposals. On September 16, 2020,
City Commission adopted Resolution No. 2020-31387 shortlisting the following firms to be
further considered in Phase II: Kaufman Lynn Construction, Inc, PCL Construction Services,
Inc. and The Haskell Company. On December 14, 2020, the City received proposals in
response to Phase II of the RFP from the three short-listed proposers.
The Evaluation Committee, appointed by the City Manager via LTC #276-2020, convened on
January 29, 2021, to consider the Phase I I technical proposals received. The Committee was
comprised of Monica Beltran, Assistant Director, Parking Department; Cynthia Casanova,
Assistant Director, Parks and Recreation Department; David Gomez, Division Director, The
Office of Capital Improvement Projects; Carolina Jones, Member, Parks and Recreation
Advisory Committee; Carmen Sanchez, Deputy Planning Director, Planning Department; Daniel
Veitia, Resident, North Beach; and Elizabeth Wheaton, Director, Environment and Sustainability
Department.
The Committee was provided an overview of the project, information relative to the City's Cone
of Silence Ordinance and the Government Sunshine Law. The Committee was also provided
general information on the scope of services, a copy of each proposal, and engaged in a
question and answer session with each proposer. The Committee was instructed to score and
rank each proposal pursuant to the evaluation criteria established in the RFP for Phase I I. The
evaluation process resulted in the ranking of proposers as indicated in Attachment A, in the
following order
1st The Haskell Company
2nd PCL Construction Services, Inc.
3rd Kaufman Lynn Construction, Inc.
The Guaranteed Maximum Price (GMP)submitted by each firm is as follows:
Page 620 of 2284
The Haskell Company $94,200,025.
PCL Construction, Inc. $80,202,724.
Kaufman Lynn Construction, Inc. $79,976,000.
Given the large size of the Phase II proposals, they are not attached to this item but are
available upon request.A summary of each of the firms follows:
Kaufman Lynn Construction, Inc.
Kaufman Lynn Construction, Inc. (Kaufman Lynn), founded in 1989, is a local construction
company that has built high-quality buildings for more than 30 years, with a diverse portfolio of
projects to reflect this expertise. Its management approach is focused on fulfilling the
objectives of their clients by embracing the collaborative nature of the process. Kaufman Lynn
has grown into an industry leader by blending best in class cost savings with stringent quality
control processes. It is consistently recognized by peers for quality, safety, business practices,
and community service, and rank among the largest contractors in the nation.
Kaufman Lynn in association with Zyscovich Architects and Recreational Design& Construction
bring a high-quality design sensitive to the issues of the location and the community, with
specialized experience in recreational aquatics design and the quality of construction to meet
the high expectations of Miami Beach. Combined, the team has worked on over 350 parking
garages, and more than 400 pools, including elevated, competition, and Myrtha pools in various
design and construction functions. The team members have collaborated on various projects
including the FAU Mixed Use Parking Garage, Mirador Mixed Use Parking Garage, Bluesten
Park, and many others. Its significant parking garage and aquatic experience is supplemented
by its experience building community spaces for municipal and other public clients.
PCL Construction Services. Inc.
PCL Construction Services, Inc. (PCL) specializes in multi-faceted projects including mixed-
use, parking structures, aquatic facilities, libraries and community/recreation centers in coastal
communities. Its Florida staff of over 200 provide full service preconstruction, estimating,
purchasing, human resources, and marketing services in-house. PCL is ranked #1 contractor in
Florida by Engineering News-Record (ENR). Finally, its capability to manage a large and
complex design-build project is reflected in the firm's experience on more than 870 previous
design-build projects.
PCL along with BEA Architects and Brooks + Scarpa have assembled a team of highly qualified
professionals to execute the 72nd Street Community Complex. This strategic team brings the
City of Miami Beach the combined depth and breadth of PCL, the nation's 9th largest contractor
with two of South Florida's most prominent architects, with 40 years of trusted local experience
and superior standing in the South Florida market. Its selected subconsultants round out this
team with their extensive relevant experience, local knowledge, and commitment to the success
of this high-profile project.
The Haskell Company
The Haskell Company (Haskell), is a global pioneer in design-build construction with over 55
years of experience. It has been working and committed to the Miami area for over 20 years,
Page 621 of 2284
completing such projects as three Miami Dade College parking garages and most recently, the
Norwegian Cruise Line Terminal also known as the "Pearl of Miami". The Miami office has
supported landmark projects, such as the Adrienne Arsht Center. With over $1B in annual
revenues and over 2,500 design-build projects completed to date, Haskell is appropriately
experienced, staffed and financed to support large and complex design-build projects that are
fast-tracked and programmed with multiple disciplines.
Partnered with Haskell is Arquitectonica, who brings a very experienced team of professionals
that have creativity and community in mind, as well as Kimley-Hom, McNamara Salvia, Weston&
Sampson, SEQUI L, SLS and Weller Pools. The team, combined with noteworthy consultants
with vast local experience, was formed for each firm's relevant field experience and
organizational excellence in order to bring the City the best design-build solution. This team,
which contains a considerable degree of experience, imagination and capability, intends to
combine the criteria noted in the design criteria package, while delivering on time and within
budget.
SUPPORTING SURVEY DATA
Results from the 2019 resident survey show that 80%of residents are satisfied or very satisfied
with living in North Beach. In order to continue to improve the satisfaction of these residents,
the City intends to contract with a design/build firm to design and construct the 72nd Street
Community Complex which will provide the North Beach residents with a multi-level mixed use
parking garage.
FINANCIAL INFORMATION
Final project costs to be determined via negotiations, not to exceed the approved project
budget.
CONCLUSION
After reviewing all of the submissions and the Evaluation Committee's rankings and
commentary, I concur with the Evaluation Committee and find that The Haskell Company
provided the best technical proposal. However, because the GMPs proposed exceed the
City's cost expectation, I also concur with staff's recommendation that the City negotiate with the
firms, in rank order, to finalize a design build agreement. Some of the highlights of the technical
proposals of the three firms, as articulated by the evaluation committee, include:
The Haskell Company
• The firm designed a multifunctional field that can hold up to 2,000 people and can be
utilized for athletic and event programming.
• The firm designed the largest footprint, but the least overbearing.
• The firm designed a cohesive community civic center.
• From the four street fronts, to the elevated green field and upper pool deck, the entire
complex is oriented to enhance the well-being of the community.
PCL Construction Services. Inc.
• The firm designed the complex to serve as an urban living room that would be ideal for
relaxing and socializing as well as providing a recreational anchor for the North Beach
district.
• The firm's design provided the best pedestrian connection. However,the footprint did feel
Page 622 of 2284
overpowering.
• The solar roof was well thought out with the panels strategically placed to capture as much
energy as possible.
• The building design is massive and does not necessarily engage Collins Avenue.
Kaufman Lynn Construction, Inc.
• The firm incorporated a rain garden in the design.
• The design was disjointed. The pool, the community center, and fitness center had no
connectivity between them.
• The design places the field on the west side,which forms a screen that protects the turtles
from the evening lights.
• The design has no integration. It is a building on a field.
Given the disparity between the GMP proposals submitted by the Design-Build firms and the
proposed project budget, City staff is in the process of hiring an independent consultant to
develop a cost estimate of the DCP programming in order to assist in negotiations.
This award recommendation was originally included in the February 10, 2021 agenda; however,
following a protest submitted by the second-ranked bidder, PCL Construction Services, the
award recommendation was deferred to March 17, 2021. The protest and the City's response
are attached as Exhibits A-1 and A-2, respectively.
For the reasons stated herein, I recommend that the Mayor and City Commission approve the
resolution authorizing the Administration to enter into negotiations with The Haskell Company, as
the top ranked proposer; further, if the Administration is not successful in negotiating an
agreement with The Haskell Company, authorizing the Administration to enter into negotiations
with PCL Construction Services, Inc., as the second ranked proposer; further, if the
Administration is not successful in negotiating an agreement with PCL Construction Services,
Inc., authorizing the Administration to enter into negotiations with Kaufman Lynn Construction,
Inc., as the third ranked proposer; provided, however, that the final negotiated agreement shall
be subject to the prior approval of the Mayor and City Commission.
Applicable Area
North Beach
Is this a"Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
Yes Yes
Strategic Connection
Neighborhoods - Evolve parks and green spaces to meet the changing needs of the community.
Legislative Tracking
Capital Improvement Projects/Procurement
ATTACHMENTS:
Description
Page 623 of 2284
o Resolution
❑ Attachment A
o Exhibit A-1 - PCL Protest
❑ Exhibit A-2- Protest Response by CMB
Page 624 of 2284
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Lowndes RYAN P. SCORDATO
Shareholder
ryan.scordato@lowndes-law.com
215 North Eola Drive, Orlando, Florida 32801-2028
T:407-418-6338 I F:407-843-4444
MAIN NUMBER:407-843-4600
JOSEPH A. LANE
Shareholder
joe.lane@iowndes-law.com
215 North Eola Drive,Orlando, Florida 32801-2028
T:407-418-6343 I F:407-843-4444
MAIN NUMBER:407-843-4600
it MERITAS'LAW FIRMS WORLDWIDE
February 9, 2021
VIA EMAIL
Natalia Delgado, Procurement Rafael Granado, City Clerk
City of Miami Beach City of Miami Beach
1755 Meridian Avenue, 3rd Floor 1700 Convention Center Drive
Miami Beach, FL 33139 Miami Beach, FL 33139
Via Email: NataliaDeigado@miamibeachfl.gov Via Email: RafaelGranado@miamibeachfl.gov
Raul Aguila, Interim City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Via Email: raulaguila@miamibeachfl.gov
Re: Protestant: PCL Construction Services,Inc.
Request for Proposals No. 2020-180-ND (the "RFP")
Design-Build Services for the 72nd Street Community Complex(the
"Project")
Notice of Protest (the "Protest")
Dear Ms. Delgado:
We represent PCL Construction Services, Inc. ("Protestant") and respectfully submit this Protest
of the recommended award of this Project to The Haskell Company ("Haskell"). This Protest is being
delivered prior to 5 p.m. on Tuesday, February 9, 2021, in compliance with the notification of intended
award sent from the City of Miami Beach (the "City") on February 5, 2021 (the "Award Notification").
Protestant has standing to submit this Protest as Protestant was the second-ranked proposer as outlined
��dd r d' Doster,Kantor& Reed,P.A. Page 629 of 2284 lowndes laW.com LO.
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February 9, 2021
Page 2
in the Award Notification. See Award Notification, p. 1. A copy of the Award Notification is attached
hereto as Exhibit"A".
As set forth in City of Miami Beach Ordinance No. 2002-3344, Protestant respectfully submits:
1. Protestant is:
PCL Construction Services, Inc.
1805 Ponce De Leon Blvd., Suite 201
Coral Gables, Florida 33134 (South Florida address)
2. Protestant's Representatives are:Joseph A. Lane and Ryan P.Scordato, Lowndes,Drosdick,
Doster, Kantor& Reed, P.A., 215 North Eola Drive, Orlando, Florida 32801.
3. Protestant's substantial interests are affected by the City's determination of this Protest.
Protestant is the highest ranked responsible and responsive proposer qualified for award of this Project.
Haskell is not a responsive proposer and must be disqualified. The following is a summary of the grounds
of this Protest:
I. HASKELL'S PROPOSAL IS NON-RESPONSIVE IN THAT IT FAILS TO COMPLY WITH THE
PLAIN LANGUAGE OF THE RFP
A. The City's intent for the Project intent includes significant aquatic construction, including
a rooftop Olympic-sized pool and warm-up pool.
B. Prior to the RFP submissions for the Project, the City, on May 19 2020, conducted an
information session by way of a Virtual Public Presentation for the Project (the "Presentation"), which
was attended by Protestant and other interested proposers. The Presentation included a preview of the
a portion of the design criteria package which was provided on Page 21 of the Presentation via a
downloadable internet link. A copy of the Presentation is attached hereto as Exhibit "B". Though the
link is no longer active, Protestant, upon information and belief, has a copy of the relevant portion for
the Swimming Pool Shell Construction (the "Presentation Pool Excerpt") available at the time of the
Presentation. It reads:
Myrtha Pools USA shall be considered the basis of design utilizing a
proprietary process of hot calendaring rigid PVC sheets to modular
stainless-steel self-supporting panels. Alternative manufacturers of
Natare, Bradford and Astral will be considered with Owner [the City's]
approval.
Page 630 of 2284
0046073\191630\10778649v2
February 9, 2021
Page 3
See Presentation Pool Excerpt, p. 1. (emphasis supplied). A copy of the Presentation Pool Excerpt, with
the relevant portions highlighted, is attached hereto as Exhibit"C".
C. Bradford Products, LLC ("Bradford"), is a Leland, North Carolina based manufacturer of
pools,spas,and water features. Bradford is registered in the State of Florida as a Foreign Limited Liability
Company,with its mailing address listed as 2101 Enterprises Drive NE, Leland, North Carolina 28451. A
copy of the Florida Division of Corporations profile on Bradford is attached hereto as Exhibit"D".
D. Further, Bradford advertises on its website that its products are sourced in its North
Carolina manufacturing facilities. A copy of a screenshot from Bradford's website is attached hereto as
Exhibit"E".
E. On April 13, 2016, the City of Miami Beach issued Resolution No. 2016-29375, which
imposed a moratorium on the purchase by the City of good and services from the State of North Carolina
(the "Moratorium"). The Moratorium is public record and is not attached hereto as an exhibit.
F. The RFP was issued on June 26, 2020 and was structured as a two-phased process: Phase
I was an evaluation and qualification exercise to determine a short-list of contractors to move forward.
Under Phase II, the short-listed contractors were invited to submit a detailed rendering depicting the
intended design and construction of the Project and a detailed response, including price. A copy of the
final, published RFP is attached hereto as Exhibit"F".
G. The RFP contains the following language on page 9 of 2,775 (the "RFP North Carolina
Ban"):
Pursuant to Resolution 2016-29375, the City of Miami Beach, Florida
prohibits official City travel to the states of North Carolina and Mississippi,
as well as the purchase of goods or services sourced in North Carolina and
Mississippi. Bidder shall agree that no travel shall occur on behalf of the
City to North Carolina or Mississippi, nor shall any product or services it
provides to the City by sourced from those states. By virtue of submitting
bid, bidder agrees it is and shall remain in full compliance with Resolution
2016-29375.
See RFP, p. 9; see also: RFP North Carolina Ban, p. 1. (emphasis supplied). An excerpt of the RFP
containing the highlighted RFP North Carolina Ban is attached hereto as Exhibit "G".
Page 631 of 2284
0046073\191630\10778649v2
February 9, 2021
Page 4
H. The terms of the RFP expressly barred any responses from including a product or service
sourced from North Carolina; that ban included the North Carolina-based Bradford.
I. Interestingly, an earlier (unpublished) iteration of the RFP, in its Swimming Pool Shell
Construction section 6.2, included similar preliminary language as later was included in the Presentation
Pool Excerpt, prior to the RFP being publicly offered (the "RFP Pool Excerpt"). ft read:
Myrtha Pools USA shall be considered the basis of design utilizing a
proprietary process of hot calendaring rigid PVC sheets to modular
stainless-steel self-supporting panels. Alternative manufacturers of
Natare, Astral, or equal, can be substituted with Owner [the City's]
approval.
See RFP, p. 198; see also: p. 1, RFP Pool Excerpt. Notably, Bradford was omitted from the final RFP Pool
Excerpt which was published as part of the actual RFP, even though Bradford had been allowed in the
earlier draft (unpublished) RFP Presentation Excerpt. A copy of the published,final RFP Pool Excerpt is
attached hereto as Exhibit"H".
J. Consequently, the published RFP by the City expressly removed Bradford as an approved
manufacturer of pool components for the Project.
K. Protestant, Haskell, and Kaufman Lynn Construction, Inc. ("Kaufman") each were short-
listed in Phase I and advanced to Phase II,which utilized the published,final RFP described above(Exhibit
"F"), which included the sourcing restriction noted above.
L. Protestant in its Phase II Proposal complied with the sourcing restriction and did not utilize
any product or services sourced from North Carolina.
M. Following the Phase II submissions, Protestant requested and was provided with Haskell's
proposal (the "Haskell Proposal"). The Haskell Proposal was announced as the intended award as
referenced in the Award Notification. A copy of the entirety of the Haskell Proposal is attached hereto
as Exhibit"I".
N. The Haskell Proposal, on its face, contains products and services of Bradford which are
clearly sourced from North Carolina. That sourcing directly violates the plain language of the RFP and,
notably,the RFP North Carolina Ban,making the Haskell Proposal_patently and materially non-responsive.
0. Specifically, pages 13 and 14 of the Haskell Proposal contain the following language
regarding Haskell's utilization of Bradford on the Project (these pages have been extracted from the
Page 632 of 2284
0046073\191630\10778649v2
February 9, 2021
Page 5
Haskell Proposal, with highlights provided, and will be referred to as the "Haskell Proposal Bradford
Excerpts"):
We will utilize a Bradford Products, LLC stainless steel pool system as the
basis for our design.
See Haskell Proposal, p. 13; see also: Haskell Proposal Bradford Excerpts, p. 1.
The aquatics program will use a Bradford Products stainless steel pool
system as the basis for our design rather than a Myrtha Pool system. [....]
Furthermore, Bradford Pools are made in North Carolina, USA. [....]
Overall, the value, simplicity and durability of the product make Bradford
Products our choice for 72nd Street Community Center.
See Haskell Proposal, p. 14; see also: Haskell Proposal Bradford Excerpts, p. 2. Copies of the Haskell
Proposal Bradford Excerpts are attached hereto as Exhibit "J".
P. Further, page 102 of the Haskell Proposal actually specifies additional Bradford products
which will be used by Haskell. See generally, Haskell Proposal, p. 102.
Q. The Haskell Proposal is patently and materially non-responsive as it was submitted with
products and services sourced in North Carolina, which violates the RFP's express provision (the RFP
North Carolina Ban) banning such products and services.
R. A "responsive bid" in the State of Florida is statutorily defined as a "bid, or proposal, or
reply submitted by a responsive and responsible vendor which conforms in all material aspects to the
solicitation [RFP]." See Section 287.012(26), Florida Statutes. As matters stand, the Haskell Proposal is
plainly non-responsive. It is a public procurement rubric that post-submission modifications or
negotiations may not change, alter nor amend a non-responsive bid or proposal so that it becomes
responsive. Such negotiations or modifications place the other bidders or proposers at a competitive
disadvantage and unfairly favor the bidder for whom modification or negotiation is allowed. See Harry
Pepper&Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d. DCA 1977); see also: Tropabest
Foods, Inc. v. State Dept. of General Services,493 So.2d 50 (Fla. 1st DCA 1986).
S. By allowing Haskell to submit the Haskell Proposal with such North Carolina-based
products and services included, the City permitted Haskell to directly and materially violate the RFP
requirements which created prejudice and a competitive disadvantage to Protestant, which complied
with the RFP's requirements.
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T. The City violates the RFP requirements if it is the City's position in,this Protest to just
ignore the RFP North Carolina Ban. The City, as a matter of public procurement.law, is not free now to
ignore the RFP requirements (which include the RFP North Carolina Ban). Those requirements applied
to all interested proposers equally,and picking and choosing now which proposers must comply with this
stated requirement creates a competitive advantage to Haskell and competitive disadvantage to PCL.
Should the City ignore the RFP North Carolina Ban, the City effectively rewrites the RFP requirements
which is prohibited. The City cannot revise the RFP requirements retroactively to benefit a single
proposer, which is conspicuously anti-competitive to PCI, as Protestant, which complied with the RFP
requirements and RFP North Carolina Ban.
IV. SUPPORTING CASE LAW
A. The following reported case law hold that failure to meet procurement requirements
establishes non-responsiveness, requiring rejection of the non-responsive bid/proposal (these cases
are included in the document package sent with this Protest).
(1) Harry Pepper& Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla.
3d. DCA 2019). Florida's Third District Court of Appeals addressed a parallel circumstance
in which the second-ranked bidder filed a formal protest seeking to declare the winning
bid non-responsive. Specifically, the subject bid documents contained specific
manufacturers listed for water plant pumps to be used at the project. The winning bidder
listed a brand of pumps that was not acceptable to the municipality; after discovery of
this non-conformity with the bid documents (and after the bidding time period elapsed),
the winning bidder was allowed to amend their bid to include a pump manufacturer
acceptable to the municipality. The second-ranked bidder protested the winning bid
directly to the municipality and by virtue of filing a temporary injunction in trial court;
both the municipality and the trial court denied the second-ranked bidder the relief
sought. The Third District Court of Appeals, however, declared the winning bid to be
non-responsive because it materially altered from the requirements of the bid
documents (and also that the municipality should not have permitted amendment to
allow for the winning bidder to conform to the requirements). As such, the appellate
court stated the municipality had two options: award the contract to the challenging
party, which was the second-ranked bidder, or reject all bids and readvertise new ones.
In its decision, the Third District Court of Appeals cited the case of City of Opa-Locka v.
Trustees, 193 So.2d. 29 (Fla. 3d. DCA 1966)for the premise that permitting, under those
facts, the city to waive the underlying ordinance requirement was conducive to
favoritism by allowing some bidders to qualify after bid opening when such bidders did
not comply with the bid document requirements. These cases are a signal in this Protest
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Page 7
that the City's failure to enforce its own RTP requirements would be reversible as an
arbitrary and capricious action.
(2) E.M. Watkins & Company, Inc. v. Board of Regents, 414 So.2d 583 (Fla. 1st
DCA 1982). This case arose out of a low-bidder whose bid was rejected as non-
responsive, and the second lowest bidder was selected for the award. Specifically, the
lowest-bidder failed to comply with the bid requirements by not listing three of the five
major subcontractors to be used on the project. When the lowest-bidder's bid was
deemed non-responsive, a protest was initiated. The First Circuit Court of Appeals
ultimately upheld the administrative hearing officer's determination that deemed the
low-bidder's bid non-responsive for failure to comply with the requirements of the bid
documents.
These cases are a signal in this Protest that the City's failure to enforce its own RTP requirements
would be reversible as an arbitrary and capricious action.
IV. CONCLUSION
A. The City must stay the award to Haskell outlined in the Award Notification pending
resolution of this Protest.
B. The City must determine the Haskell Proposal is non-responsive and award the Project to
Protestant as the second-ranked responsible, responsive, and qualified proposer pursuant to the Award
Notification. Protestant respectfully requests a reversal of the City's intended recommendation to award
the Project to Haskell because Haskell is non-responsive in regards to the requirements of the RFP,
specifically as to the RFP North Carolina Ban.
C. The City's intended Award must be to Protestant.
D. The City must not overlook or waive the RFP North Carolina Ban, which has a direct
bearing on responsiveness and establishes a competitive disadvantage as a matter of law.
Sincerely,
•100
Joseph A. Lane
Ryan P. Scordato
RPS/tae
Enclosures
c: PCL Construction Services, Inc. (via email)
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DocuSign Envelope ID:9D141 F58-A9F8.433B-BA44-419F99FF54CD
MIAMI BEACH
Procurement Department, 1755 Meridian Avenue,3rd Floor,Miami Beach,Florida 33139,www.miamibeachfl.gov,305-673-7490
TRANSMITTED VIA E-MAIL: ryan.scordato@lowndes-Iaw.com
February 24, 2021
Ryan P. Scordato
Lowndes, Drosdick, Doster, Kantor& Reed, P.A.
215 North Eola Drive
Orlando, Florida 32801-2028
RE: Protest Filed Pursuant to Award Recommendation on Request for Proposals 2020-
180-ND for Design-Build Services for the 72nd Street Community Complex(the "RFP")
Dear Mr. Scordato:
The City has reviewed the protest filed on behalf of PCL Construction Services, Inc. ("PCL")
pursuant to the award recommendation by the City Manager on the above-referenced RFP (the
"Protest") for Design-Build Services for the 72nd Street Community Complex (the "Project").
PCL's grounds for the filing of the Protest are based on the City's decision to not reject the
proposal received from The Haskell Company ("Haskell")for its reference, as basis of design, of
a Bradford Products pool system manufactured in North Carolina. After review of the particulars
upon which PCL's protest has been filed, the City hereby denies said protest for the reasons as
set forth below.
As a threshold consideration, the City's moratorium on North Carolina products and services has
been lifted. PCL's Protest correctly states that Resolution No. 2016-29375, approved by the City
Commission on April 13, 2016, imposed a moratorium on the purchase of goods or services
sourced in North Carolina "until such discriminatory legislation is either repealed or declared
unconstitutional by a court of law." The City resolution was in response to North Carolina's
adoption of certain discriminatory legislation as part of its HB-2 legislation, which legislation was
subsequently superseded in 2017 by HB-142. However, Section 4 of HB-142 provided for an
expiration date of December 1, 2020. Accordingly, North Carolina's discriminatory legislation is
no longer in place and the City's moratorium on the purchase of goods or services sourced in
North Carolina was lifted contemporaneously with the expiration of HB-142.
Notwithstanding the expiration of the City moratorium on goods and services purchased in North
Carolina as established in City Resolution No. 2016-2937, PCL's protest conveniently ignores the
facts of the RFP in alleging that Haskell is non-responsive to the requirements of the RFP because
(1)the referenced system was a"basis for design"only; (2)there was no material deviation from
the solicitation because the RFP did not require the proposers to provide the qualifications of
subcontractors; (3)the RFP provides for a process by which the design-build firm can substitute
a non-complying subcontractor; and (4) pursuant to City Code Section 2-371, the City Manager
and City Attorney's determination with regard to issues of responsiveness shall be binding upon
the parties to the protest.
First,the RFP was released with the intent of receiving proposals for design-build services for the
Project. Unlike a design-bid-build process where a contractor is solely submitting a price to build
a facility in accordance with a set of final plans and specifications provided by the agency, the
design-build process is much less rigid, requiring bidders to only submit preliminary design
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concepts and pricing initially, with final construction documents to be completed after contract
award in accordance with the Design Critera Package (the "DCP"). Thus, the use of the term
"basis of design," a term used in both the DCP and in Haskell's proposal with regard to the pool
manufacturer, generally means the preliminary designs, principles, assumptions and
considerations used by engineering professionals in developing a design. The term basis of
design typically does not imply final decisions that are not possible until well into the design
process. With regard to the pool system, the DCP states that Myrtha Pools USA is to be
considered the basis of design, but also explicitly allows for alternative manufacturers to be
substituted with Owner approval[emphasis added].Therefore,the RFP provides the design-build
firm the flexibility to consider one or more pool systems and sub-contractors may be replaced as
noted below. Notwithstanding any preliminary basis of design considerations and the expiration
of the moratorium referenced above, Haskell, pursuant to the required Bid Submittal
Questionnaire it included in its bid, has agreed to be in full compliance with Resolution 2016-
29375 (See Exhibit"Haskell's Bid Submittal Questionnaire").
Next, PCL argues in its protest that the pool manufacturer brand is a non-changeable "material"
requirement of the RFP. In accordance with Florida law,the decision to use the pool manufacturer
brand as a basis of design is only material if it gives the bidder a substantial advantage over the
other bidders and thereby restricts or stifles competition. Robinson Electrical Co., Inc. v. Dade
Co., 417 So.2d 1032, 1034 (Fla. 3d DCA 1982). While the initial RFP released initially required
bidders to submit information regarding the qualifications of subcontractors and, specifically, the
pool subcontractor (see Section 0400, Phase II Response Format, Tab 2 of the RFP), in the
subsequent Addendum No. 7 to the RFP, the City intentionally deleted said requirement to
eliminate any requirement for the bidder to name its subcontractors, including the pool
subcontractor. In taking such action, the City has clearly demonstrated that review of the
subcontractors is not material to its review and consideration of the proposals received. Further,
even if the submittal of the pool subcontractor was a material requirement of the RFP (which it
was not), the RFP provides for a process by which the design-build firm can substitute a non-
complying sub-contractor. Specifically, Section 3.24 of the Project contract included in the RFP
requires the design-build firm to seek the City's approval in its final contract with any sub-
contractor, and also allows a change in sub-contractor upon the City's approval. Therefore, even
if the design-build firm sought to contract with a non-complying sub-contractor, the City would
deny said request and consider a change in sub-contractor. Therefore, PCL's assertation that
substituting a non-complying contractor is a non-changeable material deviation is not supported
by the RFP or Florida law.
Third, regarding the responsiveness of Haskell's proposal, and as further demonstrated above,
the RFP does not provide that the failure to comply with the requirements of Resolution No. 2016-
29375 would be a matter of responsiveness.A responsive response refers only to matters of form,
and a responsive bid means that a bid is submitted on the correct forms, and contains all required
information, signatures, and notarizations. Intercontinental Props., Inc. v. State Dept of Health &
Rehab. Servs., 606 So. 2d 380, 381 (Fla. 3d DCA 1992). Notwithstanding the foregoing, as set
forth in the Section 2-371 of the City Code (the City's Bid Protest Ordinance) and, specifically,
Section 2-371(e)thereof,the City Manager and City Attorney's determination with regard to issues
of responsiveness shall be binding upon the parties to the protest.
Finally, Florida courts have consistently held that 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 it may appear erroneous and even if reasonable persons may disagree."
Department of Transportation v. Groves—Watkins Constructors,530 So.2d 912, 913
(FIa.1988)(quoting Liberty County v. Baxter's Asphalt& Concrete, Inc.,421 So.2d 505(FIa.1982))
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(emphasis in original). "[The] sole responsibility is to ascertain whether the agency acted
fraudulently, arbitrarily, illegally, or dishonestly." Groves—Watkins, 530 So.2d at 914.
Therefore, upon review of the basis upon which PCL's Protest has been filed, the City concludes
that said protest must be DENIED. You may appeal my decision by filing an original action in the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, in accordance
with the applicable court rules. Any action not brought in good faith shall be subject to sanctions
including damages suffered by the City and attorney's fees incurred by the City in defense of such
wrongful action.
Thank you,
Lr�D�o�c�uSigned by:
WA
2B D 240 92B4 D...
Raul J. Aguila
Interim City Manager
Enclosures:
Haskell's Bid Submittal Questionnaire
C: Mayor Dan Gelber
Members of the City Commission
Rafael Paz, Acting City Attorney
Alex Denis, Procurement Director
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