Ordinance 2001-3295 ORDINANCE NO. 2001-3295
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA,AMENDING CHAPTER 2 OF THE CODE OF THE
CITY OF MIAMI BEACH ENTITLED "ADMINISTRATION", BY AMENDING
ARTICLE VII THEREOF ENTITLED "STANDARDS OF CONDUCT", BY
AMENDING DIVISION 4 ENTITLED "PROCUREMENT," BY AMENDING
SECTION 2-486 ENTITLED "CONE OF SILENCE"; SAID AMENDMENT
EXTENDING THE PROHIBITIONS ON ORAL COMMUNICATIONS TO ALL
CITY EVALUATION COMMITTEE MEMBERS; PROVIDING FOR
ADDITIONAL EXCEPTIONS RELATIVE TO ORAL COMMUNICATIONS;AND
PROVIDING FOR THE REQUIREMENT OF REPORTING VIOLATIONS TO
THE CITY ATTORNEY'S OFFICE; FURTHER PROVIDING FOR REPEALER,
SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS,the Mayor and City Commission are desirous of amending the "Cone of
Silence" procedures to protect the professional integrity of the City's competitive bidding and
selection process by shielding the City's professional staff and the City's residents; and
WHEREAS,the amended policy proposed herein recognizes the importance of requiring
persons or businesses who are part of the City's competitive process to disclose all
communications with the City's administrative staff and its residents; and
WHEREAS,the proposed amendments do not infringe upon the rights of individuals to
petition their government and elected officials; and
WHEREAS,the proposed amendments herein enhance the spirit of Florida's
Government in the Sunshine Law; and
WHEREAS, the proposed amendments will provide the option to report violations to the
City Attorney's Office.
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 amended to read as follows:
Article VII. Standards of Conduct
DIVISION 4. PROCUREMENT
Sec. 2-486. Cone of silence.
(a) Contracts for the provision of goods, and services, and construction projects other
than audit contracts.
(1) Definition. "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 administrative 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 administrative staff including,but not limited to,the city manager
and his or her staff; (c) any communication regarding a particular RFP, RFQ,
RFLI, or bid between a potential vendor, service provider, bidder, lobbyist, or
consultant and any member of a city evaluation and/or selection committee;
and (d) any communication regarding a particular RFP, RFQ, RFLI or bid
between the Mayor, City Commissioners or their respective staffs and any
member of a city evaluation and/or selection committee. 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 city
office of community development, and communications with the city attorney
and his or her staff
(2) Procedure.
a. 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 division.
b. The cone of silence shall terminate a) at the time the city manager
makes his or her written recommendation as to selection of a particular
RFP, RFQ, RFLI, or bid to the city commission, and said RFP, RFQ.
RFLI, or bid is awarded; provided, however, that following the
Manager making his or her written recommendation,the cone of silence
shall be lifted as relates to communications between the Mayor and
Members of the Commission and the City Manager; providing further
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
reimposcd continue until such time as the manager makes a subsequent
written recommendation, and the particular RFP, RFQ, RFLI, or bid is
awarded orb) in the event of contracts for less than $10,000.00,25,000
when the city manager executes the contract.
(3) Exceptions. The provisions of this ordinance shall not apply to: (a) oral
communications at pre-bid conferences; (b) oral presentations before
evaluation committees; (c) contract discussions during any duly noticed public
meeting; (d) public presentations made to the city commissioners during any
duly noticed public meeting; (e) contract negotiations with city staff following
the award of an RFP, RFQ, RFLI, or bid by the city commission; or (f)
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; or(g)city commission meeting
agenda review meetings between the city manager and the mayor and
individual city commissioners where such matters are scheduled for
consideration at the next Commission meeting. The bidder,—or proposer,
vendor, service provider, lobbyist, or consultant shall file a copy of any written
communications with the city clerk. The city clerk shall make copies available
to any person upon request.
(b) Audit contracts.
(1) "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 administrative 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 administrative
staff including, but not limited to, the city manager and his or her staff;and(c)
any communication regarding a particular RFP, RFQ, RFLI, or bid between
a potential vendor, service provider, bidder, lobbyist, or consultant and any
member of a city evaluation and/or selection committee; and (d) any
communication regarding a particular RFP, RFQ or bid between the Mayor,
City Commissioners or their respective staffs and any member of a city
evaluation and/or selection committee. Notwithstanding the foregoing, the
cone of silence shall not apply to communications with the city attorney and
his or her staff.
(2) Except as provided in subsections (b)(3) and (b)(4) hereof, a cone of silence
shall be imposed upon each RFP, RFQ, RFLI, or bid for audit 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 a) at the time the city manager makes his or her written
recommendation as to selection of a particular RFP, RFQ, RFLI, or bid to the
city commission, and said RFP, RFQ, RFLI, or bid is awarded; provided,
however, that following the Manager making his or her written
recommendation, the cone of silence shall be lifted as relates to
communications between the Mayor and Members of the Commission and the
City Manager; providing further if the city commission refers the manager's
recommendation back to the city manager or staff for further review, the cone
of silence shall b continue until such time as the manager makes
a subsequent written recommendation, and the particular RFP, RFQ, RFLI, or
bid is awarded orb) in the event of contracts for less than $x,000.00,25,000
when the city manager executes the contract.
(3) Nothing contained herein shall prohibit any bidder,proposer, vendor, service
provider, lobbyist, or consultant (I) from making public presentations at duly
noticed pre-bid conferences or before duly noticed 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 etc. 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.
(4) Nothing contained herein shall prohibit any lobbyist, bidder,proposer, vendor,
service provider, consultant, or other person or entity from publicly addressing
the city commissioners during any duly noticed public meeting regarding
action on any audit contract. The city manager shall include in any public
solicitation for auditing services a statement disclosing the requirements of this
division.
(c) Violations/penalties and procedures. An alleged violation of this section by a
particular bidder or proposer, vendor, service provider, lobbyist, or consultant shall
subject said bidder, or proposer, vendor, service provider, lobbyist, or consultant to
the same procedures set forth in section 2-457, Division 5, entitled "Debarment of
Contractors from City Work; shall render any RFP award, RFQ award, RFLI award,
or bid award to said bidder, or proposer, vendor, service provider, bidder, lobbyist, or
consultant void; and said bidder, or-proposer, vendor, service provider, lobbyist, or
consultant 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 division shall be prohibited from serving on a city evaluation
and/or selection committee.In addition to any other penalty provided by law,violation
of any provision of this division 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 division shall report such violation to the
city attorney's office or state attorney's office and/or may file a complaint with the
county ethics commission.
(Ord. No. 99-3164, § 1, 1-6-99)
SECTION 2. 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 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 3. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.
SECTION 4. SEVERABILITY.
If any section, subsection, sentence, clause, phrase or portion of this Ordinance is, for any reason,
held invalid or unconstitutional, such portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity or constitutionality of the remaining portions
of this Ordinance.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the 24th day of March ,2001,which is 10 days
after adoption.
PASSED and ADOPTED this 14th day of March , 2001.
Mayor
AT FST:
fOtit
City Clerk
Letters or numbers that are stricken through are deletions from existing ordinance.
Letters or numbers that are underlined are additions to existing ordinance.
APPROVED AS TO
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CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\\ci.miami-beach.fl.us
COMMISSION MEMORANDUM NO. /W--
TO:
/ 7-TO: Mayor Neisen O. Kasdin and DATE: March 14,2001
• Members of the City Commission
FROM: Jorge M. Gonzalez SECOND READING --FINAL HEARING
City Manager �\
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA AMENDING CHAPTER 2 OF THE
CODE OF THE CITY OF MIAMI BEACH ENTITLED
"ADMINISTRATION", BY AMENDING ARTICLE VII THEREOF
ENTITLED "STANDARDS OF CONDUCT",BY AMENDING DIVISION 4
ENTITLED "PROCUREMENT," BY AMENDING SECTION 2-486
ENTITLED "CONE OF SILENCE", SAID AMENDMENT EXTENDING
THE PROHIBITIONS ON ORAL COMMUNICATIONS TO ALL CITY
EVALUATION COMMITTEE MEMBERS; PROVIDING FOR
ADDITIONAL EXCEPTIONS RELATIVE TO ORAL COMMUNICATIONS;
AND PROVIDING FOR THE REQUIREMENT OF REPORTING
VIOLATIONS TO THE CITY ATTORNEY'S OFFICE; PROVIDING FOR
CODIFICATION, REPEALER, SEVERABILITY, AND AN EFFECTIVE
DATE.
ADMINISTRATION RECOMMENDATION:
Approve the proposed amending Ordinance.
FISCAL IMPACT:
None.
ANALYSIS:
The Mayor and City Commission at its January 31, 2001 meeting, approved on first reading the
attached ordinance as amended, including the following proposed amendment: (e) any
communication regarding a particular RFP, RFQ, RFLI, or bid between any member of the
city's administrative staff and any member of a city evaluation and/or selection committee.
The Administration is recommending that the aforementioned prohibition on oral communications
not be included as part of the proposed amendment based on the fact that the City Manager appoints
Evaluation Committee members in an advisory capacity, and in order to fully understand and/or be
briefed on the Evaluation Committee's recommendation, the City Manager must be able to discuss
the Committee's recommendation with its members. /�
AGENDA ITEM f 5A
DATE 5--/ -m
The Mayor and City Commission at its January 6, 1999 meeting, passed and adopted Ordinance
Number 99-3164, which established a "Cone of Silence" for the City's competitive bidding
processes. On January 31, 2001, the Commission approved the proposed amendments on first
reading, and amended Section 2-486,subsection(a)(3),by adding the following words: "where such
matters are scheduled for consideration at the next Commission meeting." The proposed amended
policy changes are summarized as follows:
1. Construction projects will be included. The current policy only addresses goods and
professional services.
2. All members who serve on evaluation committees will be bound by the Cone of Silence("the
Cone") requirements. Currently only the City's administrative staff are prohibited from
having oral communications with vendors, service providers, or consultants.
3. Agenda review meetings between the City Manager and the Mayor and/or City
Commissioners will be exempt from the Cone requirements. The Cone currently does not
allow for oral communications relative to the award or rejection of a RFP/RFQ/ITB by and
between the City Manager and the Mayor and/or City Commissioners.
4. The City Attorney's Office will now be an option for City employees to report violations of
the Cone. The Cone currently directs persons to the State Attorney's Office and/or may file
a complaint with the Miami-County Ethics Commission.
5. An actual violation will subject persons to the penalties enumerated in the Cone.
The Cone currently only requires an alleged violation to subjected penalties.
6. Vendors found to have violated any provisions of the Cone will be subjected to the
Debarment proceedings. The Cone currently incorrectly references the City's employee
disciplinary process for vendors who have violated the Cone.
The administration recognizes the importance of requiring persons or businesses who are part of the
City's competitive process to disclose all communications with the City's administrative staff and
the City's residents who participate on evaluation committees.
The proposed amendments do not infringe upon the rights of individuals to petition their government
and elected offici ls, and enhance the spirit of Florida's Government in the Sunshine Law.
fl
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