HomeMy WebLinkAbout2002-3378 ORD
ORDINANCE NO. 2002-3378
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, IN PART, EXTENDING THE
PROHIBITIONS ON ORAL COMMUNICATIONS ON ALL REQUEST FOR
PROPOSALS (RFP'S), REQUEST FOR QUALIFICATIONS (RFQ'S), AND
INVITATION FOR BIDS (BIDS), BETWEEN THE MAYOR AND CITY
COMMISSIONERS AND THEIR RESPECTIVE STAFF AND ANY POTENTIAL
VENDOR, SERVICE PROVIDER, BIDDER, LOBBYIST, OR CONSULTANT;
PROVIDING FOR ADDITIONAL EXCEPTIONS RELATIVE TO ORAL
COMMUNICATIONS; PROVIDING FURTHER FOR REPEALER, SEVERABILITY,
AND AN EFFECTIVE DATE.
WHEREAS, on January 29, 2002, the Miami-Dade County Commission approved
Ordinance No. 02-3, amending Section 2-11,1 (t) of the Miami-Dade County Code, the
County's Cone of Silence Ordinance, with an effective date of February 8, 2002; and
WHEREAS, Miami-Dade County's approved amendments extended the prohibition
on oral communications regarding a particular RFP, RFQ, and bid for the solicitation of
goods and services to those between a potential vendor, service provider, bidder, lobbyist
or consultant, and the Mayor, County Commissioners and their respective staffs; and
WHEREAS, Miami-Dade County's approved amendments added additional
exemptions to the prohibition on oral communications regarding a particular RFP, RFQ, or
bid for the solicitation of goods and services between any person and the procurement
director or his/her designated staff responsible for administering the procurement process
for such RFP, RFQ or bid, and between a member of the respective selection committee,
provided the communication be limited strictly to matters of process or procedure already
contained in the corresponding solicitation document; and .
WHEREAS, Miami-Dade County's approved amendments added additional
exemptions to the prohibition on oral communications between the County Manager and
the chairperson of a selection committee about a particular selection committee
recommendation, only after the committee has submitted a recommendation to the
Manager and provided that, should any change occur in the committee recommendation,
the content of the communication and of the corresponding change shall be described in
writing and filed by the Manager with the Clerk of the County and be included in any
recommendation memorandum submitted by the Manager to the County Commission;
WHEREAS, Miami-Dade County's approved amendments added additional
exemptions to the prohibition on oral communications pertaining to emergency
procurements.
WHEREAS, said Miami-Dade County amendments are applicable to the Mayor and
City Commissioners of the City of Miami Beach, the City Manager, and their respective
staffs; and in order to extend said amendments and their applicability to potential vendors,
service providers, bidders, lobbyists, and consultants doing business in the City of Miami
Beach, the Administration and the City Attorney's Office herein recommends that the
Mayor and City Commission amend the City's Cone of Silence Ordinance accordingly.
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, services, and construction projects~ etAeF
than al:lsit cORtFacts.
(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"), reql:lest for letters of inter:oGt ("RFLI"),
or bid between a potential vendor, service provider, bidder, lobbyist, or
consultant and the city's administrative staff including, but not limited to,
the city manager and his or her staff;
(b) any communication regarding a particular RFP, RFQ, ~ or bid
between the mayor, city commissioners, or their respective staffs, and
any member of the city's administrative staff including, but not limited to,
the city manager and his or her staff;
(c) any communication regarding a particular RFP, RFQ, ~ or bid
between a potential vendor, service provider, bidder, lobbyist, or
consultant and any member of a city evaluation and/or selection
committee therefor; aR9
(d) any communication regarding a particular RFP, RFQ, RFbl, or bid
between the mayor, city commissioners....or their respective staffs....and
any ~member of a city evaluation and/or selection committee therefor:
(e) anv communication reaardina a oarticular RFP. RFQ. or bid between the
mavor. city commissioners, or their resoective staffs and a ootential
vendor, service orovider. bidder. lobbvist, or consultant. Not\\lithstaRding
the fore€joing, the CORO of silence shall not apl3ly to sompetitive
processes for the awar.a of CDBG, HOME, SHIP and Surtax FURSS
administered I;)y the sity office of community E!o'/olol3mont, and
comml:lRications with tho city attorney anE! his or !:ler staff.
(2) Procedure,
a. A The cone of silence shall be imposed upon each RFP, RFO, RPbl,
aM or bid after the advertisement of said RFP, RFO, RPbl, 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~
~illat the time the city manager makes his or her written
recommendation as to selection of a particular RFP, RFO, RPbl, or
bid to the city commission, and said RFP, RFO, RPbl, or bid is
awarded; provided, however, that following the Mmanager making his
or her written recommendation, the cone of silence shall be lifted as
relates to communications between the M-mayor and M-members of
the G-commission and the G-gity M-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
continue until such time as the manager makes a subsequent written
recommendation, and the particular RFP, RFO, RPbl, or bid is
awarded~
-91'-9} illlin the event of contracts for less than $25,OOO~ when the city
manager executes the contract.
(3) Exceptions. The pr-o'/isions of this ordinance cone of silence shall not apply
to:
(a) competitive processes for the award of CDBG. HOME, SHIP and Surtax
Funds administered bv the city office of community development; and
(b) communications with the city attorney and his or her staff,
~ {QLoral communications at pre-bid conferences;
{b} !Ql.oral presentations before evaluation and/or selection committees;
~!m.contract discussions during any duly noticed public meeting;
fEij-ill public presentations made to the city commissioners during any duly
noticed public meeting;
~ {g} contract negotiations with city staff following the award of an RFP,
RFO, RPbl, or bid by the city commission;
(ij .L!:tl communications in writing at any time with any city employee, official
or member of the city commission, unless specifically prohibited by the
applicable RFP, RFO, RPbl, or bid documents; 9f
AA-ill 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 ~ommission meeting.
fA}.(j) communications reaardina a particular RFP, RFQ or bid between the
procurement director. or his/her administrative staff responsible for
administerina the procurement process for such RFP, RFQ or bid and a
member of the evaluation/selection committee therefor. provided the
communication is limited strictlv to matters of process or procedure alreadv
contained in the correspondina solicitation document:
00 dulv noticed site visits to determine the competency of bidders reaardina
a particular bid durina the time period between the openina of bids and the
time the city manaaer makes his or her written recommendation:
ill any emeraencv procurement of aoods or services:
(m) communications reaardina a particular RFP. RFQ. or bid between any
person, and the procurement director. or his/her administrative staff
responsible for administerina the procurement process for such RFP. RFQ.
or bid. provided the communication is limited strictlv to matters of process or
procedure alreadv contained in the correspondina solicitation document.
!nl The bidder, 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.
(13) Audit GOAtmots.
(1) "CoRe of silence" is hereby defiAod to meaR a prohibition on: (a) aAY
comR'lunications regarding a parti(lular RFP, RFO, RFLI, or 13idl:lot\'Joon a
potential 'landor, servico pr{)\'ider, biddor, lob13yist, or consultant and the
mayor, (lity commissioROfS or thoir respomi':e staffs, and any meml:ler of the
city's admiAistmti'/e staff iReluding, but Rot limitod to the city manager and his
or hor staff, and (b) aRY ami comR'lunication regarding a particular RFP,
RFO, RFLI, or bid bet\voon the mayor, city cOR'lmissioners orthoir fOspootive
staffs and any meml:lor of the city's admiAistmtivo staff including, 13ut not
limited to, tho city manager and his or Rer staff; aRd (c) any cOR'lR'lunication
fO€lar:ding a particular RFP, RFO, RFLI, or bid bot\voon a potontial vendor,
sorvice pl'Ovidor, bidder, lobbyist, or cOAsultant and any meml:ler of a city
o\'aluation and/or soloction eommittee; and (d) aRY comR'luniGation r-egarding
a particular RFP, RFO or biEl botv:een tho Mayor, City COR'lmissionel'S or
their fOspeeti'lo staffs and any R'lombor of a city evaluation and/or solomion
committee. NOPA'ithstanding tRG foregoing, tho GOne of silence shall not apply
to (loR'lR'luni(lations with tRe city attornoy and Ris or her staff,
(2) Exce~ as provided in sul:lsections (13)(J) anEl (b)(4) hemof, a cone of silence
shall 130 imposod UpOR each RFP, RFO, RFLI, or 13id for audit servicos after
tho advertiseR'lent of said RFP, RFO, RFLI, or bid. At the tiR'le of the
impositioR of the cono of silenco, the eity R'lanagor or his or hor assignee
shalll'lrovide f.or tho pUBliG notioe of tho cono of silenco. HIe cono of silonce
shall terminate a) at the timo tho city mana€lor makes his or hor written
recommendation as to soloction of a partioular RFP, RFQ, RFLI, or BiEl to tho
oily commission, and said RFP, RFQ, RFLI, or Bid is awar:eod; pro':idod,
however, that following the Mana€ler makiR€l his sr hor writton
r.ocomR'lendation, tho cone ef silence shall Be liftod as rolates to
communiGations betv.'oon tho Mayor and Membors of tho Commission and
tho City Managor; I'lr-oviding furthor if tho city oOFT'lmission r-atom tho
manager's rocomFT'lendation BaElk to the Gity mana€ler or staff for furthor
reviow, the Gone of silenco shall continue until suoh timo as the managor
makes a subsoqueRt written roGommendation, and the particular RFP, RFQ,
RFLI, or bid is awardod or b) in tho ovont of contraots for less than $25,000
'A'hen tho oily managor executes tho oontr-act,
(3) ~lothing cOAtainod hor-aiR shall pr-ohiBit any bidder, pr-oposer, '/eRElar, sorvice
provider, lobbyist, or consultant (I) fr-om makiR€l public presontations at duly
noticed pro bid cOAforoncos or bofore duly noticed ovahmtion committee
moetings; (ii) fr-om en€laging in contFact discussions during any dl::lly noticod
public FT'Ieeting; (iii) fr-om ongagiRS in contmEll nogotiations with oity staff
followiRS tho award of an RFP, RFQ, RFLI, or bid for audit by tho city
commission; or (iv) from oommuniGating in writiRg with any oity employee or
offiGial for pUrl'losos of sooking clarification or additioRal information from tho
city ar rosponEling to tho eity's roquest for clarifiElation or additional
information, suBject to the provisions of tho applioaBle RFP, RFQ, RFbJ, or
bid docuFT'leRts. Tho bidEler or proposer otc. shall filo a copy of any 'f:ritten
oammunication with the oily clerk. HIe oity clerk shall make copies available
to the senoral publiEll::lpon request.
(4) Nothing oontained heroiA shall prohibit aRY lobbyist, BiElElor,_pr-oposer,
':ondor, sorvico pro\'idor, consl::lltant, or other porson or eAtity fr-om pl::ll;)licly
addressing tho city Elommissioners durins any duly notioed publio FT'Ieoting
rogar:eing actioA on any audit Elsntmct. The city mana€lor shall incll::lde in any
pUBlic solicitation for al::lditing services a statomont disclosing the
requiFOR'lonts of this di'/ision.
~(Q) Violations/penalties and procedures, A violation of this section by a particular
bidder, proposer, vendor, service provider, lobbyist, or consultant shall subject said
bidder, ef proposer, vendor, service provider, lobbyist, or consultant to the same
procedures set forth in Division 5, entitled :Debarment of Contractors: from City
Work; shall render any RFP award, RFQ award, RFLI a'Nard, or bid award to said
bidder, proposer, vendor, service provider, bidder, lobbyist, or consultant voidable:
and said bidder, proposer, vendor, service provider, lobbyist, or consultant shall not
be considered for any RFP, RFQ, RFbJ. 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 andlor 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..... andlor may file a complaint with the
county ethics commission,
(Ord. No. 99-3164, ~ 1,1-6-99: Ord, No, 2001-3295, ~ 1,3-14-01)
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 10th
is 10 days after adoption.
day of Augus t
,2002, which
PASSED and ADOPTED this
31st
,2002.
ATTEST:
~f~
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.
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APPROVED ~ 10
FORM & LANGUAGE
& FOR ECUTION
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Date
OFFICE OF THE CITY ATTORNEY
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MURRA Y H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
COMMISSION MEMORANDUM
DATE: JULY 31,2002
TO: MAYOR DAVID DERMER
MEMBERS OF THE CITY COMMISS
FROM:
MURRAY DUBBIN
CITY ATTORNEYtvU.
JORGE M. GONZALEZ
CITY MANAGER
SECOND READING
PUBLIC HEARING
SUBJECT: AMENDMENT TO CITY'S "CONE OF SILENCE" ORDINANCE
On January 29,2002, the Miami-Dade County Commission approved an amendment to the
County's "Cone of Silence" Ordinance, with an effective date of February 8, 2002. The approved
amendments to the County's Ordinance, which the City Manager and the City Attorney's Office
herein recommend be incorporated as an amendment to the City's own "Cone of Silence" Ordinance,
are as follows:
(I) Extending the prohibition on oral communications regarding a particular RFP, RFQ,
and bid for the solicitation of goods and services to those between a potential vendor,
service provider, bidder, lobbyist or consultant, and the Mayor, Commissioners, and
their respective staffs;
(2) Extending the prohibition on oral communications regarding a particular RFP, RFQ,
or bid between any administrative staff member, and any member of an evaluation
and/or selection committee therefor;
(3) Notwithstanding the prohibition in subsection (2) above, providing an exemption
allowing the Manager and the chairperson of the evaluation and/or selection
committee to communicate upon a particular evaluation and/or selection committee
Agenda Item ASC
1700 Convention Center Drive - Fourth Floor - Miami Bead 0
ate 7-3/-t);:)-
recommendation, but only after the committee has submitted an award
recommendation to the Manager and, provided should a change occur in the
committee's recommendation, the content of the communication and of the
correspondence change shall be described in writing and filed by the Manager with
the City Clerk, and be included in any recommendation memorandum submitted by
the Manager to the Commission;
(4) Creating an exemption allowing communications regarding a particular RFP, RFQ,
or bid between the Procurement Director (or hislher administrative staff responsib Ie
for administering the particular RFP, RFQ, or bid process) and a member of the
evaluation/selection committee therefor, provided the communication is limited
strictly to matters of process or procedure already contained in the corresponding bid
document;
(5) Creating an exemption for duly noticed site visits to determine the competency of
bidders regarding a particular bid, during the time period between the opening of the
bids and the time the Manager makes hislher written recommendation to the
Commission;
(6) Creating an exemption for emergency procurement of goods or services; and
(7) Creating an exemption to allow for communications regarding a particular RFP,
RFQ, or bid between any person and the Procurement Director (or his or her
administrative staff responsible for administering the bid process), provided the
communication is limited to matters of process or procedure already contained in the
bid documents.
The Miami-Dade County Commission on Ethics has consistently taken the position that the
County's Ethics legislation, as codified in Section 2 of the Miami-Dade County Code, applies to
municipal officers and employees, whether or not they chose to adopt corresponding legislation or
not. However, one of the reasons that the City of Miami Beach adopted its own cone of silence
legislation was not only to make it stricter in places where the County's ordinance is more lenient
(which is legally permissible), but also, assuming the County ethics legislation only applies to
municipal officers and employees, the enactment of the City's own cone of silence ordinance
extended the prohibitions of the ordinance, and the sanctions therein, to potential vendors, service
providers, bidders, lobbyists, and/or consultants doing business with the City of Miami Beach.
It is therefore recommended by the City Manager and City Attorney's Office's that the Mayor
and City Commission herein adopt, on first reading, the attached amendments to the City's Cone of
Silence Ordinance; said amendments mirroring the amendments already approved by the Miami-
Dade County Commission (in its Cone of Silence Ordinance).
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