Miami-Dade Legislative Item
File Number: 082234
   Clerk's Official Copy   

File Number: 082234 File Type: Ordinance Status: Adopted
Version: 0 Reference: 08-79 Control:
File Name: PROCEDURES FOR UNSOLICITED PROPOSALS Introduced: 7/16/2008
Requester: NONE Cost: Final Action: 7/1/2008
Agenda Date: 7/1/2008 Agenda Item Number: 7B
Notes: THIS IS FINAL VERSION AS ADOPTED. (also see 082006) Title: ORDINANCE ESTABLISHING PROCEDURES FOR COUNTY EVALUATION, DEVELOPMENT AND PUBLICATION OF UNSOLICITED PROPOSALS FOR COUNTY CONTRACTS FOR THE CONSTRUCTION OF PUBLIC INFRASTRUCTURE; ESTABLISHING PROCESSING FEE; AMENDING SECTION 2-8.1 OF THE CODE OF MIAMI-DADE COUNTY, PROVIDING SEVERABILITY, INCLUSION IN THE CODE AND AN EFFECTIVE DATE [SEE ORIGINAL ITEM UNDER FILE NOS. 081528, 081854 AND 082006]
Indexes: CONTRACT
  PUBLICATIONS
Sponsors: Jose "Pepe" Diaz, Prime Sponsor
  Carlos A. Gimenez, Co-Sponsor
  Dennis C. Moss, Co-Sponsor
  Rebeca Sosa, Co-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

County Attorney 7/16/2008 Assigned Hugo Benitez 7/16/2008

Board of County Commissioners 7/1/2008 7B AMENDED Adopted as amended P
REPORT: County Attorney Cuevas read the foregoing proposed ordinance into the record. It was moved by Commissioner Diaz that the foregoing ordinance be adopted. This motion was seconded by Commissioner Gimenez, who requested the proposed amendments be read into the record. Assistant County Attorney David Murray read the following proposed amendments into the record: - To add a second sentence in subsection (1), to read: “…For purposes of this section, public infrastructure shall mean transit structures, housing structures, roads, bridges, streets, highways, drainage, underground excavation, piping, and all structures incidental thereto, regardless of cost, and any other public building with estimated cost in excess of $15 million. - To add a second sentence to subsection (4), to read: “…Alternatively, the Mayor or his designee shall reject the proposal within such 90 days, or in the event that the time for consideration insufficient, request an extension of this time from the Board, however, the Board shall not grant more than one such extension. - To add a second sentence to subsection (5), to read: “…The decision to reject an unsolicited proposal which is accompanied by the applicable fee shall be subject to ratification by the Board of County Commissioners. The Mayor or his designee shall provide a written explanation of the reasons for the rejection request for ratification. - To add a second sentence to subsection (7), to read: “…The Mayor or his designee shall inform the proposer in writing, of the reason for rejection, and shall provide a copy explaining the reason for rejection to the Board of County Commissioners. - To delete the language in subsection (8)(l), and insert the language “…The proposer will provide the names of the owners, directors, and officers of the proposer, and such information as may be necessary to evaluate the qualifications of the critical personnel to be engaged in the project. - To add a sentence to subsection (10), to read: “…Such a period may be extended by the Board of County Commissioners upon written request by the Mayor or his designee explaining why a longer period for response is in the best interest of the County. - To add a subsection (17): “…The bid process provided for in this code shall not apply to any decision to reject an unsolicited proposal, but shall apply to any decision to recommend a contract or a rejection unless such process is waived in accordance with the code. The Cone of Silence provided for in this code shall be imposed only for filing the publication with competitive associations. - To add a subsection (18) the language: “…Nothing in this ordinance shall affect the County Manager’s authority to recommend a waiver of competitive bids, when occurrence of a waiver is in the best interest of the County. - To replace all occurrences of the word “County” with the words “Mayor or his designee” throughout this ordinance. County Attorney Cuevas clarified the term “public infrastructure” pertained to transit structures, housing structures, roads, bridges, streets, highways, drainage, underground excavation, piping, and all other structures incidental to those categories, without regard to cost, and any other public structure in excess of $15 million. Commissioners Gimenez, Moss, and Sosa asked to be added as co-sponsors of this ordinance. Commissioner Moss asked the County Manager to arrange a meeting between the Airport Director, Assistant County Manager, Capital Improvements Director, and the Florida Department of Transportation Secretary, to review the County’s construction process in comparison to the State’s process, and to bring back to this Board, recommendations on how to expedite the completion of County construction projects. There being no further questions or comments, the Board proceeded to vote.

Legislative Text


TITLE
ORDINANCE ESTABLISHING PROCEDURES FOR COUNTY EVALUATION, DEVELOPMENT AND PUBLICATION OF UNSOLICITED PROPOSALS FOR COUNTY CONTRACTS FOR THE CONSTRUCTION OF PUBLIC INFRASTRUCTURE; ESTABLISHING PROCESSING FEE; AMENDING SECTION 2-8.1 OF THE CODE OF MIAMI-DADE COUNTY, 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 2-8.1 of the Code of Miami-Dade County, Florida, is hereby amended by the addition of the following new subsection to read as follows:1
Sec. 2-8.1. Contracts and purchases generally.
* * *
>>(k) Unsolicited Proposals.
(1) Any person or legal entity may submit an unsolicited proposal to the County to contract for the design, construction, operation, ownership, acquisition, or leasing of public infrastructure which unsolicited proposal shall be governed by the provisions of this section For purposes of this Section, public infrastructure shall mean transit structures, housing structures, roads, bridges, streets, highways, drainage, underground excavation, piping and all structures incidental thereto regardless of cost and any other public building with estimated cost in excess of fifteen million dollars ($15,000,000).
(2) The County shall charge a fee to the private entity to cover the costs of processing, reviewing, and evaluating any unsolicited proposal, including a fee to cover the costs of attorneys, engineers, consultants, and financial advisors. The fee charged for the review of the proposal shall be based on the level of expertise deemed necessary by the Mayor or his designee and required to review the proposal, and will not be greater than the direct costs associated with evaluating the unsolicited proposal. “Direct costs” may include, but are not limited to, (i) the cost of staff time required to process, evaluate, review and respond to the proposal and (ii) the costs of attorneys, engineers, financial advisors and other consultants. Should the project proceed beyond the initial review, and be published for competition, additional fees for review and evaluation may be charged as agreed to by the parties.
(3) The County shall require the initial processing fee of twenty five thousand dollars ($25,000). Additional fees may be charged based on the nature of the proposal and the complexity of the review required. All requested fees shall be paid prior to the County’s further evaluation of the proposal. The Mayor or his designee shall refund any portion of the initial processing fee paid which in the discretion of the Mayor or his designee exceeds the direct costs associated with evaluating the proposal.
(4) Upon receipt of an unsolicited proposal or group of proposals and payment of any required fees by the proposer or proposers, the Mayor or his designee shall note the date and time of receipt of such proposal and shall determine within 90 days whether to accept the unsolicited proposal solely for the purpose of proceeding to publication as described below. Alternatively, the Mayor or his designee shall reject the proposal within such ninety (90) days or, in the event that the time for consideration is insufficient, request an extension of this time from the Board; however, the Board shall not grant more than one such extension. Final determination of whether to publish a proposal shall be made by the Board of County Commissioners. Following such determination, the Mayor or his designee shall respond to the proposer in writing as to the acceptance or rejection of the unsolicited proposal. The initial review time may be extended by mutual agreement of the Mayor or his designee and the proposer. The proposal shall be published not later than thirty (30) days following acceptance by the Board of County Commissioners.
(5) In his/her sole and absolute discretion, the County may reject or return an unsolicited proposal. The decision to reject an unsolicited proposal which is accompanied by the applicable fee shall be subject to ratification by the Board of County Commissioners. The Mayor or his designee shall provide a written explanation of the reasons for rejection in the item requesting ratification. It is not the intention or obligation of the County to correct and/or assist in the preparation of an unsolicited proposal in any manner.
(6) In determining whether to accept the unsolicited proposal for publication, the County shall take into consideration such factors as: whether the proposed project is in the public’s best interest; the costs of the proposed project and its funding sources; whether the proposed project may be accomplished through the use of County resources; the need for the proposed project; the scientific, technical or socioeconomic merits of the proposal; the contribution of the proposal to the County’s goals and objectives; the qualifications, technical and management capabilities and experience of the proposer considered as a whole and considered in terms of the legal entities who may comprise the proposer or who may be serving as subcontractors to the proposer; the general reputation and financial condition of the proposer and its team members; the proposer’s financial capacity to perform its obligations in the proposed contract; the financial viability and feasibility of the submitted proposal; the cost, if any, to the County to proceed with implementation of the proposal; and any other information the County deems appropriate for such initial evaluation.
(7) Any unsolicited proposal shall include sufficient detail and information for the County to evaluate the proposal in an objective and timely manner and to determine if the proposal meets the above criteria and benefits the County. If such proposal is not deemed by the County to be complete or in sufficient detail, it may be rejected at the sole discretion of the Mayor or his designee. The Mayor or his designee shall inform the proposer in writing of the reason for rejection and shall provide the proposer a copy of the item explaining the reason for rejection delivered to the Board of County Commissioners. It is not the intent or obligation of the Mayor or his designee to assist the proposer in completing the proposal and the Mayor or his designee shall bear no responsibility to itemize or advise the proposer of the incomplete items or terms of the proposal.
(8) Any unsolicited proposal shall contain at a minimum the following items, as appropriate to the proposed project:
(a) Information and supporting documentation necessary for the County to evaluate the factors listed in paragraph 6 above.
(b) A site plan indicating the location of the project proposed.
(c) A description of the project, including the conceptual design of the facility.
(d) The proposed schedule for development of the project and/or the proposed term for operation of the project, along with an estimate of the life cycle cost of the proposed proposal.
(e) A statement setting forth a method by which the private entity proposes to secure any property interests required for the proposed project.
(f) A list of all public utilities, railroad lines, navigable waters and flight paths, if any, that will be crossed or affected by the proposed project and a statement of the plan to accommodate such crossings or effects.
(g) A statement setting forth the proposer’s plans for developing, financing, constructing and/or operating and maintaining the project, including identification of any revenue, public or private of proposed debt or equity investment proposed by the proposer. The financing plans shall address any and all means by which the costs of the project will be borne by persons other than the County.
(h) Names and addresses of persons who may be contacted for further information concerning the request.
(i) Information on how the project would benefit small and community based contractors within Miami-Dade County.
(j) A financial plan for the entire time period of the proposed private entity involvement in the project.
(k) Performance guarantees, if any, and any proposed bonding to be provided by the proposer.
(l) The names of owners, directors and officers of the proposer, and such information as may be necessary to evaluate the qualifications of the critical personnel to be engaged in the project.
(m) A list of all engineering or construction firms to be proposed on the project and their qualifications and a description of their role in the proposal.
(n) A listing of all proposed obligations and requirements of the County and any other governmental agencies, including, but not limited to, contributions to the project financing, staffing and permitting.
(o) A listing of all small business enterprises (as defined in applicable County ordinances) that will participate in the project and the proposed scope of work of each.
(p) Such additional material and information that a responsible public entity may reasonably expect, in order to review and evaluate such proposal.
(9) The County may seek the advice of internal staff our outside advisors, attorneys or consultants, or any combination thereof, with relevant experience in determining whether to accept the unsolicited proposal for publication and/or whether to enter into an agreement with the private entity or any competing proposer. At its option, the County may seek further clarification of the proposal.
(10) If the County accepts the unsolicited proposal for publication, then the Mayor or his designee shall publish a competitive solicitation statement that the County has received a proposal and will accept, for 90 days after the initial date of the publication, other proposals for the same project purpose (the “Response Period”). Such period may be extended by the Board of County Commissioners, upon written request by the Mayor or his designee explaining why a longer period for response is in the best interest of the County. The Mayor or his designee shall identify the procedures that will be used for evaluating the proposals in the notice or in a subsequent publication. Once the County decides to receive competing proposals, it may utilize its existing procedures for evaluating the proposals or may adopt project-specific procedures. The proposer shall be authorized to respond to the competitive solicitation and offer to the County a proposal in terms not less favorable to the County than the original proposal.
(11) Proposal documents submitted by private entities are public records under Chapter 119, Florida Statutes (Florida’s Public Records Law), subject to any exemption otherwise provided by law. Any competing proposer may request and receive a copy of such proposal, and the County reserves the right to publish such unsolicited proposal and solicit competing proposals within the Response Period. Proposers are advised to familiarize themselves with the provisions of the Public Records Law and to seek legal advice regarding any proprietary or intellectual property rights which they may have in the proposal. In no event shall the County be liable to a proposer for the disclosure of all or a portion of a proposal submitted under this subsection.
(12) When the private entity requests that the County not disclose information that is exempt from the disclosure requirements of the Public Records Law, the private entity must (i) invoke the exemption when the data or materials are submitted to the County or before such submission, (ii) identify the data and materials for which protection from disclosure is sought, and (iii) state why the exclusion from disclosure is necessary, citing the specific exemption to Chapter 119, Florida Statutes that the proposer believes applies. The County’s determination as to confidentiality shall be final and binding upon the proposer. The proposer shall bear all attorneys’ fees and costs associated with litigation for public access to claimed confidential documents. The County’s need to maintain certain information confidential may be taken into consideration in the County’s decision not to publish a solicitation.
(13) After the Response Period has expired, the Mayor or his designee shall within 45 days, or longer, as specified in the advertisement, evaluate all the competing proposals and rank them in order of preference utilizing the criteria published for the specific project.
(14) The Mayor or his designee may negotiate with the top-ranked proposers in the order of their ranking, and may, through such negotiations, aim to arrive at a mutually satisfactory agreement.
(15) If only one proposal is received, the Mayor or his designee may negotiate in good faith and if he or she is not satisfied with results, may at his or her sole discretion terminate negotiations with the proposer.
(16) No proposer is guaranteed the award of a contract as a result of being favorably-ranked for this project. The issuance of an unsolicited proposal shall create no rights in the proposer including rights as a bidder, under contract or intellectual property. The County, in its discretion, reserves the right to reject all proposals at any point in the process prior to the full execution of a contract with a proposer.
(17) The bid protest process provided for in this Code shall not apply to any decision to reject an unsolicited proposal but shall apply to any decision to recommend a contract award rejection, unless such protest is waived in accordance with this Code. The Cone of Silence provided for in this Code shall be imposed only following the publication of the competitive solicitation.
(18) Nothing in this ordinance shall affect the County Manager’s authority to recommend a waiver of competitive bids when he determines such waiver to be in the best interest of the County.<<
Section 2. The County Manager or his designee shall submit a written report to this Board every six (6) months describing the operation and effect of this ordinance.
Section 3. 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 4. 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 5. 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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