Miami-Dade Legislative Item
File Number: 082599
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File Number: 082599 File Type: Ordinance Status: Amended
Version: 0 Reference: Control: Board of County Commissioners
File Name: AMEND SECTION 2-11.1(T) RELATING TO CONE OF SILENCE Introduced: 9/8/2008
Requester: NONE Cost: Final Action:
Agenda Date: 10/7/2008 Agenda Item Number: 7A
Notes: SEE #083187 FOR FINAL VERSION AS ADOPTED. Title: ORDINANCE RELATING TO 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 [SEE ORIGINAL ITEM UNDER FILE NO. 081258]
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

Board of County Commissioners 10/7/2008 7A Amended
REPORT: See Report Under Agenda Item 7A AMENDED, Legislative File No. 083187.

Budget and Finance Committee 9/9/2008 2A SUBSTITUTE Forwarded to BCC without a recommendation P
REPORT: Assistant County Attorney Jess McCarty read the foregoing proposed ordinance into the record. Chairman Martinez noted this proposal did not address the main issue of concern regarding communication under the Cone of Silence. He suggested this proposed resolution be moved forward without recommendation. Commissioner Diaz explained that, pursuant to discussion at the June 10, 2008, Budget and Finance Committee meeting, he met with the Department of Procurement Management (DPM) and the Commission on Ethics and Public Trust to discuss this proposed ordinance, and this proposal satisfied both entities. He further explained that this proposed ordinance would allow department directors to be knowledgeable of what occurred regarding procurement items. In response to Commissioner Sosa’s question whether this proposed ordinance would allow a County employee to communicate with a vendor regarding a specific solicitation without anyone else present, Assistant County Attorney David Murray advised the County employee and the vendor could communicate if the County employee was one of the specific employees listed in the solicitation. Commissioner Sosa expressed concern that the impact of expanding communication between County staff and vendors would provide the opportunity for lobbyists and dishonest people to influence the solicitation process. Mr. Robert Meyers, Director, Commission on Ethics and Public Trust, noted the Commission on Ethics and Public Trust supported the exception to the Cone of Silence that would allow County staff to communicate with other County staff, and the exception regarding oral communications at briefings. He questioned whether this proposed ordinance clarified that the people identified in the solicitation as individuals to contact could not sit on the Selection Committee or be involved in influencing the recommendation for that solicitation. Commissioner Sosa requested this proposed ordinance be amended to clarify that the people identified in the solicitation as individuals to contact could not sit on the Selection Committee or be involved in influencing the recommendation for that solicitation. Ms. Miriam Singer, Director, DPM, noted a representative from DPM or the department that issued the solicitation was always a non-voting member of the selection committee who was the contact person for information. She noted the language in this proposed ordinance would allow consultations with the non-voting member of the selection committee. Commissioner Sosa noted she would not support this proposed ordinance without an amendment to clarify that no member of the selection committee would be identified in the solicitation as the individual for vendors to contact. Commissioner Gimenez asked the DPM Director to meet with him to discuss the impact of this proposed ordinance on the Cone of Silence before this proposal came before the County Commission. He questioned whether the County Administration would be required to apprise the County Commission that a selection committee had made a recommendation to the County Mayor. He suggested this proposed ordinance be amended to include language requiring the County Mayor to report to the County Commission if he had not made a recommendation for a solicitation more than 90 days after the selection committee made its recommendation to him. Commissioner Diaz noted he would review Commissioners Sosa and Gimenez’s proposed amendments and present amendments to this proposed ordinance when it came before the County Commission. Hearing no other questions or comments, the Committee proceeded to vote.

County Manager 9/8/2008 Additions

County Attorney 9/8/2008 Referred Budget and Finance Committee 9/9/2008

County Attorney 9/8/2008 Assigned David M. Murray 9/8/2008

Legislative Text


TITLE
ORDINANCE RELATING TO 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; >>and<< (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.]] >>The Cone of Silence shall apply to communications regarding a particular RFP, RFQ, or bid between and among the County Manager, any member of the County Manager’s staff, department directors, the County’s professional staff, and any member of the selection committee therefor intended to influence the selection committee’s recommendation. For this purpose, communications relating to the responsiveness or responsibility of contractors, scheduling, need, clarification ,market research, and time of the award, made in the ordinary course or conduct of the County’s business shall be presumed to be not intended to influence the committee’s recommendation and not covered by the restrictions of this Ordinance.<>communications between a potential vendor, service provider or bidder and employees of the Department of Procurement Management or other department identified in the solicitation document as the issuing department; and (ix) consultations by employees of the Department of Procurement Management with professional procurement colleagues in determining an appropriate approach or option involving a solicitation in progress.<<

(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 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. >>(i)<< 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. >>(ii) The provisions of this ordinance shall also not apply to oral communications at briefings held by county commissioners and department directors of the department issuing the RFP, RFQ, or bid after the selection committee or other evaluating group makes its recommendation to the County Manager, provided that the briefings are not intended to influence the outcome of the selection committee or other evaluating group’s recommendation to the County Manager; provided, however that this exception shall not apply to outside groups such as lobbyists or representatives of the responding or bidding companies or entities.<<


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 >>; and (c) any communication regarding a particular RFP, RFQ, or bid between and among the County Manager, any member of the County Manager’s staff, department directors, the County’s professional staff, and any member of the selection committee therefor intended to influence the selection committee’s recommendations. This prohibition shall not preclude, without limitation, communications relating to the responsiveness or responsibility of contractors, scheduling, need, clarification, market research, and timing of award.<< Notwithstanding the foregoing, the Cone of Silence shall not apply to >>(a)<< communications with the County Attorney and his or her staff >>; (b) communications between a potential vendor, service provider or bidder and employees of the Department of Procurement Management or other department identified in the solicitation document as the issuing department; and (c) consultations by employees of the Department of Procurement Management with professional procurement colleagues in determining an appropriate approach or option involving a solicitation in progress.<<

(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.

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.
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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