LTC 271-2007 Invitation to Bid (ITB) No. 34-06/Multipurpose Municipal Parking Facility (the Bid) City's Response to Request by MCM Corp. for Reconsideration of Bid Award~~~~~~~~
2007 OEC -5 Pt`9 4= 58
- MIAMI BEACH CITY cL~:RK~S Oi=fICE
OFFICE OF THE CITY MANAGER
NO. LTC # 271-200 LETTER TO COMMISSION
TO: Mayor Matti H. Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
Jose Smith, City Attorney
DATE: December 5, 2007
SUBJECT: Invitation to Bid (ITB) No. 34-06/Multipurpose Municipal Parking Facility (the
Bid)
City's Response to Request by MCM Corporation for Reconsideration of Bid
Award
The following responds to Attomey Alex Heckler's letter to Mayor Bower and the City
Commissioners, dated December 5, 2007 (and attached hereto), on behalf of MCM Corp.,
requesting that the City Commission's award of the above referenced Bid to The Tower
Group on November 21, 2007, be brought up for reconsideration at the City Commission
Meeting of December 12, 2007. For the reasons set forth below, a motion for
reconsideration of the Bid award is not recommended, particularly since counsel for MCM
has failed to set forth either a legal and/or factual basis for same.
Counsel for MCM is requesting a reconsideration of the action taken by the City Commission
at its November 21, 2007 Meeting, awarding a contract to The Tower Group, as the lowest
and best bidder pursuant to ITB No. 34-06/07 for the Multipurpose Municipal Parking Facility
(the Bid). In support of this, he alleges that the City Commission violated MCM's due
process rights, citing a violation under Section 5 ("Right to be heard") of the Citizens' Bill of
Rights under the City Charter. There is no legal support for counsel's conclusion.
While the City Charter gives interested persons the right to appear before the City
Commission or any City board, committee, and/or department for the "...presentation,
adjustment or determination of an issue, request or controversy within the jurisdiction of the
City" this right is not absolute and is conditioned and subject to "...so far as the orderly
conduct of public business permits, ..." Additionally the same section of the Citizens' Bill of
Rights cited by counsel for MCM also provides that "Nothing herein shall prohibit the city or
any agency thereof from imposing reasonable time limits on the presentation of a matter."
(See City Charter, "Citizens' Bill of Rights" at Section (A)5.).
The Mayor's action in limiting speakers during consideration of award of the Bid was not
prohibited by the Charterand properiywithin his discretion (as the chairof City Commission
meetings). It should also be noted that the agenda item itself was not noticed as a public
hearing (as there is no legal requirement to do so). Therefore, while, in the past, the City
Commission has allowed speakers (including other bidders) to speak before the
Commission prior to the award of a bid, there is no requirement under the City Charter
and/or City Code to do so.
Letter to Commission
Multipurpose Municipal Parking Facility Invitation to Bid
December 5, 2007
Page 2
More importantly, MCM's due process rights with respect to its protest of the award of the
Bid were satisfied pursuant to the City's compliance with its Bid Protest Ordinance, as
codified in Sections 2-370 through 2-372 of the Code. MCM filed a written bid protest which
was responded to in writing (and denied) by the City Manager. Under the City's bid protest
procedures, following denial of a bid protest by the City Administration, there is no right of
appeal to the City Commission; rather, Section 2-371(2)(f) of the Code states that "Any
person aggrieved by any action or decision of the city manager, the city attorney, or their
respective designees, with regard to any decision rendered under this section [i.e. the Bid
Protest Ordinance] may appeal said 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... ." [Brackets supplied].
Finally, counsel's letter not only seeks to re-introduce issues that were already addressed
and replied to by the City in its response to MCM's bid protest and, where dealing with issues
of responsiveness, are not properly within the City Commission's purview (See Section2-
371(2)(e) of the Code). Additionally, counsel also raises a new issue in his letter (with
regard to the Technical Review Panel' s recommendation under the ITB not being
unanimous) that was not raised in MCM's original protest and is thus deemed waived under
the City's Bid Protest Ordinance (See Section2-371(2) Q) of the Code). None of these
factual issues should be considered by the City Commission, much less serve as the basis
for any reconsideration of the Bid award.
As MCM's bid protest has been properly addressed and responded to in accordance with
the City's Bid Protest Ordinance and, further, as said Ordinance does not provide
disgruntled bidders with an absolute right of appeal to the City Commission, MCM's request
for a motion to reconsider the Bid award, based upon an alleged violation of its due process
rights, is not valid, and should therefore be denied.
C: Robert Parcher, City Clerk
SHUNTS
BOWEN
LLP
ATTORNEYS AND COUNSELLORS AT LAW
December 5, 2007
VIA E-MAIL
Mayor Matti Herrera Bower
The Office of the Mayor and Commission
Gity of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Re: Item R7C (Nov. 21, 2007 Agenda) '
ITB No. 34-06/07, Multipurpose Municipal Parking Facility
Dear Mayor Bower:
This firm represents Magnum Construction Management Corporation ("MCM") with
respect to the above-referenced procurement. I am writing to you today to express my frustration
and concern for the process and treatment that I received during the hearing of that item on
Wednesday, November 21, 2007. As a community activist and public official with a~reputation
for inclusion and encouragement of public input, we hope you will agree that the refusal to hear
our client speak on this topic of great importance was not in the City's best interest. Moreover,
we believe you will agree that it represented a serious violation. of the City Charter and the due
process rights afforded to interested parties in connection with~City business. The purpose of
this letter is to request that this matter be brought up for reconsideration so that we may have the
opportunity to make a presentation to the Commission concerning our protest.
MCM's Protest
As you know, MCM is an interested party to this procurement by virtue of its bid, and
also because of its subsequent protest based upon a niunber of grounds. Amongst other
concerns, the.protest pointed out that the City had not properly weighed the evaluation criteria
and was not awaze that the selected firm, The Tower Group, had recently been terminated by the
Palm Beach Solid Waste Authority for cost-overruns and delays. Worse still, the City was also
unawaze of similar ovemzns and delays .related to Tower Group's work on the South Dade
Cultural Center, which are now widely publicized. Additionally, we pointed out that under the
rules established in the ITB, the Technical Review Panel did not have the authority to make any
recommendation because it was not unanimous: thus, the City Commission was legally required
to evaluate each proposer and to reach its own decision. The City Commission was never
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200 EAST BROWARD BOULEVARD SUITE 2100 • FORT LAUDERDALE, FLORIDA 33301 • TELEPHONE (954) 5245505 • FACSIMII.fi (954) 5245505 • WEBSITE: www.shutts-law.com
MIANII FORT LAUDHRDAIE WESf PAIN BEACH ORLANDO ~ TAMPA TALiAHASSEH AMSTHADAM LONDON
Mayor Matti Herrera Bower
December 5, 2007
Page 2
informed of this, and the process set forth in the procurement documents has been compromised
as a result.
Unfair Treatment Before the City Commission.
We conveyed many of these important concerns to Mayor Dermer prior to the meeting by
letter and expressly requested an opporturrity to be heard for a brief presentation to the City
Commission. This presentation was not only vital for informing the. Commission about the.
project risks, but also to legally assert that the recommendation was not allowed under the ITB.
As you. witnessed at .the meeting, debate was cut off before we were permitted to speak or
present, and the Commission voted to select the Tower Group without public input. When we
pointed out that the City Charter and state law afforded us and others who wished to speak due
process as interested parties, we were told to "enjoy those (due. process rights) on some other
day".
That remark, and the fundamental denial of our right to be heard flies in the face of the
City's Charter, which for good reason provides that "any interested person has, the right to
appear before the City Commission... for the presentation, adjustment or determination of an
issue, request or controversy within the jurisdiction of the City." See: City Charter, Citizens'
Bill of 12ights, Section 5. Worse still, the fact that we were not provided even the most meager
due process was compounded by incorrect statements made to the Commission in order to
foreclose questions raised by Commissioners on the daisl. For example, the Commission was
incorrectly informed that Tower Group's termination on a major project for the Solid Waste
Authority was not material because it came to light after the bid submissions. Likewise, the
Commission was told that the Solid Waste Authority termination, and Tower Group's ongoing
cost-overruns in Dade. County were mere responsiveness disclosures due at the time of the
submittal and had no bearing on responsibility. That was plainly wrong. A bidders ability to
complete the worlc in a professional, cost-effective and timely manner is the very definition of
responsibility criteria. Moreover, the ITB empowered the City to investigate information
presented to it after the submittal deadline.Z I am .certain you will agree that the City
Commission has a duty to weigh whether Tower Group was a responsible company in light of
the severe cost-ovemins and questionable projects undertaken in other cities. With all that is at
stake, we hope that you will take the opporhuuty to hear the facts about the Tower Group's
recent performance, and cost-effective alternatives available to the Commission. Moreover, the
City should re-look at this procurement if only to take up the defects of the previous hearing and
make an award that is not subject to judicial challenge.
1 For instance, Tower Group was never required to answer one Commissioner's inquiry whether their
price was firm. Likewise, Tower Group was told not to answer a Commissioner's question about its
ongoing work history.
z For example, section 11 of the TTB reserved the City's right to "investigate and explore" the experience
and history of bidders.
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SHUTrS & BOWEN LLP
MIAMI FORT LAUDERDALE WESC PALM BEACH OALANDO TALIA}iASSEE AMSTERDAM LONDON
Mayor Matti Herrera Bower.
December 5, 2007
Page 3
Conclusion and Requested Relief
In sum, we note that the purpose of this letter is not to solicit your support for awazd of
this contract to MCM; rather, we simply request that the City Commission heaz our presentation
detailing our bid protest in order to make an informed decision in accordance with due process.
Because the decision of the Technical Review Panel was not unanimous the City Commission is
required to make an independent determination as to which proposal is in the best interests of the
City. It may well be that after evaluating the new facts, the City will decide that Tower Crroup is
a responsible contractor that can be trusted to complete the project on time and on budget. We
believe, however, that when you review the correspondence and interview the other government
agencies involved that you will reach a different conclusion. In either case, due process, fair and
open proceedings, and taxpayer equity all demand that the City Commission weigh all available
evidence before committing an important piece of real estate and substantial. tax .dollazs for this
project.
I would appreciate the opportunity to speak with you in greater detail, and hope that you
will allow us the opportunity to air our concerns before the Commission.
Sincerely,
SHUTTS & BOWEN LLP
~~~'"1`
Alexander P. Heckler
CC: City Commission
City Manager
City Attorney
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SHUTTS & BOWEN LLP
MIAMI FORT LAUDERDALE WEST PALM HEACH ORLANDO TALLAHASSEE AMSTIItDAM LONDON