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Ordinance 99-3164 ORDINANCE NO. 99-3164 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,FLORIDA ESTABLISHING A "CONE OF SILENCE" FOR CITY COMPETITIVE BIDDING PROCESSES, BY AMENDING CHAPTER 2 OF THE CODE OF THE CITY OF MIAMI BEACH ENTITLED "ADMINISTRATION," BY AMENDING ARTICLE VII THEREOF ENTITLED "STANDARDS OF CONDUCT,"BY CREATING DIVISION 4 ENTITLED "PROCUREMENT," BY CREATING SECTION 2-486 ENTITLED "CONE OF SILENCE" BY PROVIDING FOR A DEFINITION, PROCEDURES, AND PENALTIES; PROVIDING FOR REPEALER, SEVERABILITY, INCLUSION IN THE CITY CODE, AND AN EFFECTIVE DATE. WHEREAS,the Mayor and City Commission of the City of Miami Beach are desirous of adopting a "Cone of Silence" procedure to protect the professional integrity of the City's competitive bidding process by shielding the City's professional staff; and WHEREAS,the policy proposed herein recognizes the importance of requiring persons or businesses who are part of the City's competitive processes to disclose all communications with the City's professional staff; and WHEREAS,communications between elected officials and the City's appointed staff during a competitive bidding process should be in writing so that it becomes a part of the public record; and WHEREAS, the proposed policy protects the rights of individuals to petition their government and their elected officials; and WHEREAS,the policy proposed herein enhances the spirit of Florida's Government in the Sunshine Law. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH: SECTION 1. Section 2-426, of Division 4 of Article VII of Chapter 2 of the Miami Beach City Code is hereby created to read as follows: Article VII. Standards of Conduct Division 4. Procurement Sec. 2-486. Cone of Silence 1. Contracts for the provision of goods and services other than auditand-independent Private Sector Inspector General (IPSIG)contracts. "Cone of Silence" is hereby defined to mean a prohibition on: (a) any communication regarding a particular Request for Proposal("RFP").Request for Qualifications ("RFQ"), Request for Letters of Interest("RFLI"), or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the City's professional staff including, but not limited to, the City Manager and his or her staff: and (b) any communication regarding a particular RFP.RFQ,RFLI. or bid between the Mayor. City Commissioners. or their respective staffs, and any member of the City's professional staff including, but not limited to. the City Manager and his or her staff. Notwithstanding the foregoing, the Cone of Silence shall not apply to competitive processes,for the award of CDBG, HOME. SHIP and Surtax Funds administered by the Miami Beach Office of Community Development. and communications with the City Attorney and his or her staff. (b) Procedure fjj A Cone of Silence shall be imposed upon each RFP,RFQ, RFLI,and bid after the advertisement of said RFP. RFQ, RFLI, or bid. At the time of imposition of the Cone of Silence,the City Manager or his or her designee shall provide for public notice of the Cone of Silence. The City Manager shall include in any public solicitation for goods and services a statement disclosing the requirements of this ordinance. (ii) The Cone of Silence shall terminate a) at the time the City Manager makes his or her written recommendation as to selection of a 2 particular RFP,RFQ,RFLI,or bid to the City Commission:provided, however, that if the City Commission refers the Manager's recommendation back to the City Manager or staff for further review, the Cone of Silence shall be reimposed until such time as the Mana.er makes a subse.uent written recommendation or b in the event of contracts for less than $10,000.00, when the City Manager executes the contract. Exceptions. The provisions of this ordinance shall not apply to oral communications at pre-bid conferences, oral presentations before selection evaluation committees, contract discussions during any duly noticed public meeting,public presentations made to the City Commissioners during any duly noticed public meeting, contract negotiations with City staff following the award of an RFP, RFQ, RFLI, or bid by the City Commission, or communications in writing at any time with any City employee,official or member of the City Commission, unless specifically prohibited by the applicable RFP,RFQ, RFLI, or bid documents. The bidder or proposer shall file a copy of any written communications with the City Clerk . The City Clerk shall make copies available to any person upon request. 2. Audit and IPSIGContracts. (a) "Cone of Silence" is hereby defined to mean a prohibition on: (a) any communications regarding a particular RFP, RFQ, RFLI, or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the Mayor.City Commissioners or their respective staffs,and any member of the City's professional staff including, but not limited to the City Manager and his or her staff, and(b) any oral communication regarding a particular RFP, RFQ, RFLI, or bid between the Mayor, City Commissioners or their respective staffs and any member of the City's professional staff including, but not limited to,the City Manager and his or her staff Notwithstanding the foregoing, the Cone of Silence shall not apply to communications with the City Attorney and his or her staff (b) Except as provided in subsections 2(c) and 2(d) hereof, a Cone of Silence shall be imposed upon each RFP, RFQ, RFLI, or bid for audit and IPSIG services after the advertisement of said RFP,RFQ,RFLI, or bid. At the time of the imposition of the Cone of Silence, the City Manager or his or her designee shall provide for the public notice of the Cone of Silence. The Cone of Silence shall terminate when the City Manager executes a particular audit or IPSIG contract a) at the time the City Manager makes his or her written recommendation as to the selection of a particular RFP, RFQ, RFLI, or bid to the City Commission; provided, however, that if the City Commission refers the Manager's recommendation back to the City Manager or staff for 3 further review,the Cone of Silence shall be reimposed until such time as the Manager makes a subsequent written recommendation, or b) or in the event of contracts for less than $10,000.00,when the City Manager executes the contract. (c) Nothing contained herein shall prohibit any bidder or proposer: (i) from making public presentations at duly noticed pre-bid conferences or before duly noticed selection evaluation committee meetings: (ii) from engaging in contract discussions during any duly noticed public meeting; (iii) from engaging in contract negotiations with City staff following the award of an RFP, RFQ, RFLI, or bid for audit by the City Commission;or (iv) from communicating in writing with any City employee or official for purposes of seeking clarification or additional information from the City or responding to the City's request for clarification or additional information, subject to the provisions of the applicable RFP,RFQ,RFLI, or bid documents. The bidder or proposer shall file a copy of any written communication with the City Clerk. The City Clerk shall make copies available to the general public upon request. (d) Nothing contained herein shall prohibit any lobbyist, bidder, proposer, or other person or entity from publicly addressing the City Commissioners during any duly noticed public meeting regarding action on any audit or IPSIC contract. The City Manager shall include in any public solicitation for auditing or IPSIC services a statement disclosing the requirements of this ordinance. 3. Violations/Penalties and Procedures. In addition to the penalties provided in Section 2-457, An alleged violation of this Section 2-486 by a particular bidder or proposer shall subject said bidder or proposer to the same procedures set forth in Sections 2-457(2)and(3), shall render any RFP award,RFQ award,RFLI award. or bid award to said bidder or proposer voidable, and said bidder or proposer shall not be considered for any RFP, RFQ, RFLI or bid for a contract for the provision of goods or services for a period of one year. Any person who violates a provision of this ordinance shall be prohibited from serving on a City -: -- -- • • •- -- -- •; - evaluation committee. In addition to any other penalty provided by law, violation of any provision of this ordinance by a City employee shall subject said employee to disciplinary action up to and including dismissal. Additionally, any person who has personal knowledge of a violation of this ordinance shall report such violation to the State Attorney and/or may file a complaint with the Miami-Dade County Ethics Commission. 4 SECTION 2. REPEALER. That all Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 3. SEVERABILITY. If any section, subsection,clause or provision of this Ordinance is held invalid,the remainder shall not be affected by such invalidity. SECTION 4. CODIFICATION. It is the intention of the Mayor and City Commission of the City of Miami Beach,and it is hereby ordained that the provisions of this ordinance shall become and be made a part of the Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section", "article," or other appropriate word. SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect on the 16th day of January , 1999. PASSED and ADOPTED this 6th day of January , 1999. ATTEST: MAYOR frALLY 9a.[-(I--- CITY CLERK APPROVED AS TO FORM & LANGUAGE F:\ATttI\TARN\ORDINANC\('()NE-SILWPU & FOR EXECUTION 1st reading 12/16/98 2nd reading 1/6/99 5 PA#omwy► t?. � OFFICE OF THE•CITY ATTORNEY ty(4. era t wead F L O R I D A • .r% cs `; MURRAY H. DUBBIN '""""°'�"�*� � :9 Telephone: (305) 673-7470 City AttorneyM" Telecopy: (305) 673-7002 COMMISSION MEMORANDUM NO. QS-99 TO: Mayor Neisen O. Kasdin and DATE: January 6, 1999 Members of the City Commission FROM: Murray H. Dubbin City Attorney /l'f SUBJECT: AN ORDINANCE ESTABLISHING A "CONE OF SILENCE" FOR CITY COMPETITIVE BIDDING PROCESSES. Pursuant to the request of Commissioner Jose Smith,the following Ordinance, establishing a Cone of Silence for City competitive bidding processes, is submitted for consideration by the Mayor and City Commission. This Ordinance is patterned after similar legislation passed by Miami- Dade County and includes minor revisions from first reading on December 16, 1998. This Ordinance is submitted for adoption on second reading/public hearing. New language is indicated by shading. F:IAITfI,Il EMCOMMMEMOCONE-SIL] Agenda Item 1 Date 1 — L- 1700 -1700 Convention Center Drive -- Fourth Floor-- Miami Beach, Florida 33139 tEl u __ o u kg ° © 2 0 © t v 2 G ° = m o «' 4 ƒ sa, U '- § 2 - § « § W 2 U q / 3 0 / a = Z vk 2 — w U 2 _ • & ° 2 0J = / : \ O § / 2 :