LTC 261-2008 Invitation to Bid No. 43-07/08 - 6th and Lenox Right of Way Improvements (the Bid)m MIAMIBEACH
OFFICE OF THE CITY MANAGER
NO. LTC #261-2008 LETTER TO COMMISSION
TO: Mayor Matti Herrera Bower and Members of the City Co mission
FROM: Jorge M. Gonzalez, City Manager ~l
Jose Smith, City Attorney ~ ~ (ll /~ ,-.~ ~.~ } --
DATE: October 13, 2008 ~ `~S v
SUBIECT: Invitation to Bid No. 43-07108 - 6'" and Lenox Right of Way Improvements (the
Bid)
The purpose of this LTC is to provide information with regard to a request for extension of
time for submission of bids in the above noted Bid.
Three (3) a-mail requests to extend the Bid Opening Date, which is currently scheduled for
Monday, October 13, 2008, at 3 PM, have been received by the City. The first request was
transmitted through a City resident, who stated that he is working with some contractors to
get them to bid on the project, and that these contractors need at least another seven (7}
days. The second and third requests appear to be from contractors who are potentially
submitting bids (also at the request of the aforestated resident), and who appear to have
been asked by the resident to request the extension directly.
Of the latter two potential bidders requesting an extension, one contractor gave no reason
for the request, and the second contractor stated that the extension was needed because,
as the firm had picked up the bid documents in the last two weeks, it needed more time to
get information back from its sub-contractors.
The current Bid Opening Date (of 3 PM, Monday, October 13`") was selected following a City
Commission directive, at its September 10, 2008 Meeting, to formally bid the project,
concurrentwith the Commission's consideration of a proposed Development Agreement by
Berkowitz Development for the same improvements (which Development Agreement was
considered by the City Commission, on First Reading, on September 10, 2008).
The City Commission requested staff to put the project out to bid for the minimum amount of
time that is both practical and possible. Pursuant to City practice, a project of this type is put
out to bid for no less than thirty (30) days.
At its October 7, 2008 Meeting, during the public hearing for Second Reading of the
Development Agreement, Berkowitz Development again went on record stating that, if itwas
to perform the improvements, then the proposed Development Agreement must be
approved by the end of October. At the October 7`" Meeting, the City Commission, opened
and continued Second Reading of the Development Agreement to a Special Ciry
Commission Meeting on October 22, 2008.
The clear sentiment of the City Commission, in its discussion while scheduling the Special
City Commission Meeting, was that staff was not to delay the opening of the Bid.
Letter to Commission - 6'" & Lenox Invitation to Bid
October 13, 2008
Page 2
In addition, during the discussion of setting the Special Meeting date for October 22"'tl, the
Commission asked the City Manager if the proposed date would provide enough time for
bids to be opened; evaluated; and a recommendation made to the City Commission.
As stated by staff at the Meeting, this date is appropriate, provided the Bid Opening Date
remains on October 13, 2008. The reasons for this are both practical as well as legal:
1. Staff needs at least three (3) business days to perform its due diligence on the
bidders. This due diligence includes background checks of the bidders, reference
checks, verification of corporate papers, interviews of key staff, and an evaluation of
the submitted bids.
2. Following the Administration's due diligence, the City Manager provides his written
recommendation to the City Commission. Once the City Manager's written
recommendation is issued, the City is required to allow bid protests to be submitted,
up to anytime until two (2) business days following the release of said
recommendation in the City Commission Agenda packet (See Section 2-371(ax2) of
the City Code [i.e. citing the City's Bid Protest Ordinance]).
3. Considering these timelines, if bids are opened on October 13th as planned, the
earliest possible date for a City Commission Meeting to consider these bids is
October 22n0.
4. In addition, by policy, the City Commission has requested that Agenda Items be
provided at least four (4) days in advance of the Meeting. In order to meet this date,
the item must go out by Friday, October 17°', 2008.
5. If a seven (7) day extension is granted, then the new Bid opening date would be
October 20, 2008. Given the due process requirements under the City's Bid Protest
Ordinance, it would be administratively (and legally) impossible to open bids on
October 20°i; evaluate the bids; have a written recommendation from the City
Manager; allow for the mandatory two (2) business day bid protest window; and still
submit the bids for the Commission's consideration at the October 22n° Meeting.
6. It is understood that the purpose of the October 22n0 Special Meeting is to consider
Second Reading of the Development Agreement. W hile it could be argued, that the
only information necessary to evaluate the proposed Development Agreement are
the amounts of the lowest bidders (submitted in response to the Bid), the risk in this
assumption is that, without proper due diligence and evaluation, it is possible thatthe
lowest bidder (from a dollar perspective) may not turn out to be the most responsive
or responsible bidder. For this reason, we recommend thatthe City Commission only
consider bids (as a comparison to the price offered in the proposed Development
Agreement) once they have been fully evaluated by staff and been through our
standard process.
7. The City Administration is also reluctant to extend the Bid Opening Date where the
request:
(i) Does not address either an ertor or defect in the Bid specifications, such that in
order to be fair to all bidders an extension is appropriate;
(ii) Is not the result of either supplemental information or corrective addendum to the
Bid issued by the City, that would reasonably require all potential bidders
additional time to respond; and/or
(iii)Does not take technical exception to the Bid specifications andJor document
requirements.
Letter to Commission - 6d' & Lenox Invitation to Bid
October 13, 2008
Page 3
A fundamental consideration in the public bidding process requires that all bidders be
treated fairly and equally, and that no undue or material advantage be given to one bidder
over another. The concern exists in this specific situation that granting an extension of the
Bid Opening Date, for the reasons requested by the two prospective bidders (and the
resident seeking the extension on their behalf), which do not go towards the "merits" of the
Bid, could raise a potential challenge from other bidders, on the grounds that the City could
be perceived to have given preferential treatment to one bidder over another.
The City Commission has given direction to keep this project, and the related Bid Opening
Date, on schedule and without delay. Due to the Commission's directive to the
Administration that it wanted to have the option to consider the Development Agreementwith
Berkowitz, in order to continue to have that as a viable option, maintaining the current Bid
Opening Date is particularly time sensitive. The reasons for the requested extensions also
do not appear to be materially related to the Bid itself; but rather appear to be related to the
individual circumstances of the requestors. Finally, there is no practical (or legal) process
that would allow the City to open bids on October 20d', for the Commission to be able to
consider them on October 22ntl. As stated above, the latest responsible date to open bids
and have them considered on October 22nd, is October 13d'.
For these reasons, the Bid Opening Date has not been extended. Bids are required to be
submitted and will be opened today at 3 PM.
Finally, the City Commission is reminded that this project continues to be subject to the
City's Cone of Silence provisions. The "Cone," generally speaking, precludes oral
communications regarding the Bid between the City Administration and the Mayor and City
Commission and their respective staffs, as well as verbal communirztions between any
potential bidder and the City Administration, and the Mayor and City Commission (and their
respective staffs).
Since the project is still covered under the Cone of Silence, we are not able to individually
discuss this issue with you until after the City Manager's recommendation has been issued,
which should be later this week.
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