Miami-Dade Legislative Item
File Number: 081258
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File Number: 081258 File Type: Ordinance Status: In Draft
Version: 0 Reference: Control: Budget and Finance Committee
File Name: AMEND SEC 2-11.1(T) RELATING TO CONE OF SILENCE Introduced: 4/24/2008
Requester: NONE Cost: Final Action:
Agenda Date: Agenda Item Number:
Notes: Title: ORDINANCE RELATING TO THE TIME OF TERMINATION OF THE CONE OF SILENCE AMENDING SECTION 2-11.1(T) OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE
Indexes: CONE OF SILENCE
Sponsors: Jose "Pepe" Diaz, Prime Sponsor
Sunset Provision: No Effective Date: Expiration Date:
Registered Lobbyist: None Listed


Legislative History

Acting Body Date Agenda Item Action Sent To Due Date Returned Pass/Fail

Budget and Finance Committee 9/9/2008 2A Withdrawn
REPORT: (See Agenda Item 2A Substitute; Legislative File No.082599.)

County Attorney 7/9/2008 Referred Budget and Finance Committee 9/9/2008

Budget and Finance Committee 7/8/2008 2B Deferred 9/9/2008 P

County Attorney 6/11/2008 Referred Budget and Finance Committee 7/8/2008

Budget and Finance Committee 6/10/2008 2A Deferred P
REPORT: Assistant County Attorney Jess McCarty read the foregoing proposed ordinance into the record. The public hearing was opened. It was closed after no one appeared in response to Chairman Martinez’s call for persons wishing to be heard. Commissioner Sosa noted this proposed ordinance was a necessary amendment to the Cone of Silence to allow the County Administration to communicate during the procurement process. She expressed concern that this proposal included terminating the Cone of Silence for County Commissioners when bids were opened or when the evaluating group made its recommendation to the County Mayor or his designee. In response to Commissioner Sosa’s question regarding how the Commission could amend the Cone of Silence to ensure easier access for vendors to the County Administration without impacting the Commission, Mr. Robert Meyers, Director, Commission on Ethics and Public Trust, noted three dimensions of communication existed in the procurement process: 1) County staff to County staff, 2) vendors/bidders to County staff and elected officials, and 3) elected County officials and County staff. He suggested the County Manager or the department director should provide a written explanation for any change in the County Manager’s recommendation from the Selection Committee’s recommendation. Chairman Martinez questioned where most of the ethical problems investigated by Mr. Meyers or the Inspector General had occurred. Mr. Meyers noted a majority of the problems were Selection Committee and staff issues. Commissioner Diaz clarified the intent of this proposed ordinance was to provide clarity and transparency, while avoiding future problems like the one he recently had when the Cone of Silence prevented the Miami-Dade Aviation Director from speaking to the County Manager and briefing him on an important piece of legislation to be considered by the Airport and Tourism Committee, since the County Manager had not yet made his recommendation. Commissioner Sosa asked Mr. Meyers to meet with her to discuss possible amendments to the Cone of Silence regarding communication during the Selection Committee process. Responding to Commissioner Sorenson’s inquiries regarding why and when the Cone of Silence was implemented, Mr. Meyers noted the Cone of Silence was implemented in 1998. He explained the County Commission implemented the Cone of Silence in response to a concern regarding the pressure outsiders would put on the procurement process, and to reduce undue influence put on the decision makers in the procurement process. Following discussion between Commissioner Sorenson and Mr. Meyers regarding how the Cone of Silence could be amended to improve efficiency, cost effectiveness, and fairness, Chairman Martinez suggested the Cone of Silence be amended to add a timeframe for the County Manager to make his recommendation after the Selection Committee submitted its recommendation. Commissioner Gimenez concurred with Chairman Martinez regarding a timeframe for the County Manager to make his recommendation. He suggested this proposed ordinance be amended to terminate the Cone of Silence 60 days after the Selection Committee submitted its recommendation to the County Mayor or his designee, if the County Mayor or his designee had not already provided a recommendation. He expressed concern that this proposed ordinance would allow lobbyists to contact Commissioners, the Mayor, and the County Manager before the Mayor or his designee made a recommendation. Following further discussion regarding the impact of the Request for Proposals (RFP) process on the procurement process, it was moved by Commissioner Diaz that this proposed ordinance be forwarded with a favorable recommendation, as presented. This motion was seconded by Chairman Martinez. In response to Commissioner Souto’s inquiry, Mr. Meyers noted he supported this proposed ordinance if it terminated the Cone of Silence only as it applied to County staff to County staff communication. Chairman Martinez clarified this proposed ordinance did not limit terminating the Cone of Silence to County staff only. Commissioner Sosa recommended Commissioner Diaz amend this proposal to terminate the Cone of Silence for County staff after bids were opened or after the evaluating group made its recommendation to the County Mayor or his designee. Discussion ensued among Commissioner Diaz, Chairman Martinez, and Mr. Meyers regarding possible amendments to this proposed ordinance to accomplish the intent of this proposal without terminating the Cone of Silence for all parties. In response to Commissioner Diaz’s inquiry concerning how the County Administration could ask a vendor a question under the existing Cone of Silence, Mr. Meyers explained the County Administration could submit a question in writing. Commissioner Diaz questioned how he could ask the County Administration questions regarding legislation before the Cone of Silence was lifted, as it currently existed. Mr. Meyers advised commissioners could call a public meeting to ask the County Administration their questions. Following further discussion between Commissioner Diaz and Mr. Meyers regarding commissioners calling a public meeting to discuss procurement items with the County Administration, Commissioner Gimenez questioned whether the existing provisions of the Cone of Silence prevented the Commission from receiving the Selection Committee memorandum. Assistant County Attorney David Murray advised the Selection Committee memorandum could be sent to the Commission if it was in writing and a copy was sent to the Clerk of the Board. He further advised the County Commission had the power to establish a policy that it would receive a copy of any Selection Committee recommendation made to the County Manager. Commissioner Gimenez spoke in support of amending this proposed ordinance to terminate the Cone of Silence on communication between County staff after bids were opened or after the evaluating group made its recommendation to the County Mayor or his designee. Commissioner Diaz amended this proposed resolution to terminate the Cone of Silence on communication among the County Administration and the County Commission after bids were opened or after the evaluating group made its recommendation to the County Mayor or his designee. Discussion ensued among Committee members regarding their opposition to Commissioner Diaz’s amendment to terminate the Cone of Silence on the County Commission before the County Mayor or his designee made a recommendation. Responding to Commissioner Diaz’s inquiry regarding briefing commissioners in a Government-in-the-Sunshine Meeting, Ms. Miriam Singer, Director, Department of Procurement Management, noted she would be comfortable briefing commissioners on a Selection Committee recommendation in that setting. Following further discussion regarding the best way to amend this proposed ordinance to accomplish its intent, it was moved by Commissioner Diaz that this proposed ordinance be deferred. This motion was seconded by Commissioner Sosa. Commissioner Diaz asked the County Mayor or his designee to ensure the County Administration never briefed him on a proposed County contract at the last minute again.

Board of County Commissioners 5/6/2008 Tentatively scheduled for a public hearing Budget and Finance Committee 6/10/2008

Board of County Commissioners 5/6/2008 4B Adopted on first reading 6/10/2008 P
REPORT: The foregoing proposed ordinance was adopted on first reading and scheduled for public hearing before the Budget and Finance Committee on Tuesday, June 10, 2008 at 2:00 p.m.

County Attorney 4/24/2008 Assigned Budget and Finance Committee 6/10/2008

County Attorney 4/24/2008 Assigned David M. Murray

Legislative Text


TITLE
ORDINANCE RELATING TO THE TIME OF TERMINATION OF THE CONE OF SILENCE AMENDING SECTION 2-11.1(t) OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. Section 2-11.1 (t) of the Code of Miami-Dade County, Florida, is hereby amended to read as follows:1
Sec 2-11.1 (t). Cone of Silence.

1. Contracts for the provision of goods and service other than audit and independent private sector inspector general (IPSIG) contracts.

(a) "Cone of Silence" is hereby defined to mean a prohibition on: (i) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the County's professional staff including, but not limited to, the County Manager and his or her staff; (ii) any communication regarding a particular RFP, RFQ or bid between the Mayor, County Commissioners or their respective staffs and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff; (iii) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and any member of the selection committee therefor; (iv) any communication regarding a particular RFP, RFQ or bid between the Mayor, County Commissioners or their respective staffs and any member of the selection committee therefor; (v) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the Mayor, County Commissioners and their respective staffs; and (vi) any communication regarding a particular RFP, RFQ or bid between any member the County's professional staff and any member of the selection committee therefor. The County Manager and the Chairperson of the selection committee may communicate about a particular selection committee recommendation, but only after the committee has submitted an award 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 Board and be included in any recommendation memorandum submitted by the Manager to the Board of County Commissioners. Notwithstanding the foregoing, the Cone of Silence shall not apply to (i) competitive processes for the award of CDBG, HOME, SHIP and Surtax Funds administered by the Miami-Dade County Office of Community and Economic Development and the community-based organization (CBO) competitive grant processes administered by the Park and Recreation, Library, Water and Sewer, and Solid Waste Departments, Cultural Affairs and Tourist Development Councils and the Department of Environmental Resources Management; (ii) communications with the County Attorney and his or her staff; (iii) communications between a potential vendor, service provider, bidder, consultant or lobbyist and employees of the Management and Technical Assistance Unit of the Department of Business Development regarding small business and/or minority business programs, the Community Business Enterprise and Equitable Distribution Programs; (iv) communications between a potential vendor, service provider, bidder, consultant or lobbyist and employees responsible for administering disadvantaged business enterprise programs in County departments receiving federal funds, provided the communications are limited strictly to matters of programmatic process or procedure; (v) duly noticed site visits to determine the competency of bidders regarding a particular bid during the time period between the opening of bids and the time the County Manager makes his or her written recommendation; (vi) any emergency procurement of goods or services pursuant to Administrative Order 3-2; (vii) communications regarding a particular RFP, RFQ or bid between any person and the Vendor Information Center staff, the procurement agent or contracting officer responsible for administering the procurement process for such RFP, RFQ or bid, provided the communication is limited strictly to matters of process or procedure already contained in the corresponding solicitation document; and (viii) communications regarding a particular RFP, RFQ or bid between the procurement agent or contracting officer, or their designated secretarial/clerical staff responsible for administering the procurement process for such RFP, RFQ or bid and a member of the selection committee therefor provided the communication is limited strictly to matters of process or procedure already contained in the corresponding solicitation document.

(b) Procedure.

(i) A Cone of Silence shall be imposed upon each RFP, RFQ and bid after the advertisement of said RFP, RFQ or bid. At the time of imposition of the Cone of Silence, the County Manager or his or her designee shall provide for public notice of the Cone of Silence. The County Manager shall issue a written notice thereof to the affected departments, file a copy of such notice with the Clerk of the Board, with a copy thereof to each Commissioner, and shall include in any public solicitation for goods and services a statement disclosing the requirements of this ordinance. Notwithstanding any other provision of this Section, the imposition of a Cone of Silence on a particular RFP, RFQ or bid shall not preclude staff from obtaining industry comment or performing market research therefor provided all communications related thereto between a potential vendor, service provider, bidder, lobbyist, or consultant and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff are in writing or are made at a duly noticed public meeting.

(ii) The Cone of Silence shall terminate at the time >>bids are opened or, in the case of RFQs, RFPs, or other qualitative procurement vehicles, at the time the Selection Committee or other evaluating group makes its recommendation to the County Mayor or his designee.<< [[the Manager makes his or her written recommendation to the County Commission; provided, however, that if the Commission refers the Manager's recommendation back to the Manager or staff for further review, the Cone of Silence shall be reimposed until such time as the Manager makes a subsequent written recommendation. The foregoing notwithstanding, for contracts and purchases which the County Manager has the delegated authority to award under Sec. 2-8.1(b) of this Code, the Cone of Silence shall terminate: (i) at the time the award recommendation letter is issued and filed with the Clerk of the Board for such contracts and purchases involving the expenditure of over one hundred thousand dollars ($100,000); (ii) at the time the written award recommendation is posted in accordance with Section III of A.O. 3-21 for such contracts or purchases involving the expenditure of over $25,000 up to $100,000; or (iii) at the time the award recommendation is issued in accordance with Section IV of A.O. 3-21 for contracts and purchases involving the expenditure of $25,000 or less.]]

(c) Exceptions. The provisions of this ordinance shall not apply to oral communications at pre-bid conferences, oral presentations before selection committees, contract negotiations during any duly noticed public meeting, public presentations made to the Board of County Commissioners during any duly noticed public meeting or communications in writing at any time with any county employee, official or member of the Board of County Commissioners unless specifically prohibited by the applicable RFP, RFQ or bid documents. The bidder or proposer shall file a copy of any written communication with the Clerk of the Board. The Clerk of the Board shall make copies available to any person upon request.

2. Audit and IPSIG contracts.

(a) "Cone of Silence" is hereby defined to mean a prohibition on: (a) any communication regarding a particular RFP, RFQ or bid between a potential vendor, service provider, bidder, lobbyist, or consultant and the Mayor, County Commissioners or their respective staffs and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff; and (b) any oral communication regarding a particular RFP, RFQ or bid between the Mayor, County Commissioners or their respective staffs and any member of the County's professional staff including, but not limited to, the County Manager and his or her staff. Notwithstanding the foregoing, the Cone of Silence shall not apply to communications with the County 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 and bid for audit and IPSIG services after the advertisement of said RFP, RFQ or bid. At the time of the imposition of the Cone of Silence, the County 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 County Manager executes a particular audit or IPSIG 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 committee meetings; (ii) from engaging in contract negotiations during any duly noticed public meeting; or (iii) from communicating in writing with any County employee or official for purposes of seeking clarification or additional information from the County or responding to the County's request for clarification or additional information, subject to the provisions of the applicable RFP, RFQ or bid documents. The bidder or proposer shall file a copy of any written communication with the Clerk of the Board. The Clerk of the Board 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 Board of County Commissioners during any duly noticed public meeting regarding action on any audit or IPSIG contract. The County Manager shall include in any public solicitation for auditing or IPSIG services a statement disclosing the requirements of this ordinance.

3. Penalties. In addition to the penalties provided in Subsections (s) and (v) hereof, violation of this Subsection (t) by a particular bidder or proposer shall render any RFP award, RFQ award or bid award to said bidder or proposer voidable. Any person who violates a provision of this ordinance shall be prohibited from serving on a Miami-Dade County competitive selection committee. In addition to any other penalty provided by law, violation of any provision of this ordinance by a Miami-Dade County 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 Ethics Commission.

4. The requirements of Section 2-11.1(t) shall not apply to any municipality in Miami-Dade County that has adopted an ordinance providing that the cone of silence shall not apply to that municipality. Any municipality that opts out of the requirements of Section 2-11.1(t) shall provide the Ethics Commission with a copy of the ordinance.

(Ord. No. 99-1, 1, 1-21-99; Ord. No. 00-149, 1, 11-28-00; Ord. No. 01-149, 1, 9-25-01; Ord. No. 01-150, 1, 9-25-01; Ord. No. 02-3, 1, 1-29-02; Ord. No. 04-77, 1, 4-27-04)


Section 2. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 3. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, 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 4. This ordinance shall become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.



1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.
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