Miami-Dade Legislative Item
File Number: 112191
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File Number: 112191 File Type: Resolution Status: Rejection Approved
Version: 0 Reference: R-05-12 Control: County Commission
File Name: CONTRACT AWARD RE: GENERAL ASPHALT FOR PTP PROJECT Introduced: 10/20/2011
Requester: Public Works & Waste Management Cost: Final Action:
Agenda Date: 1/5/2012 Agenda Item Number: 8M1SUBSTITUTE
Notes: TLL- 10/20/2011 Title: RESOLUTION APPROVING A CONTRACT AWARD RECOMMENDATION IN THE AMOUNT OF $1,007,798.29 TO GENERAL ASPHALT CO., INC. FOR THE PEOPLE’S TRANSPORTATION PLAN PROJECT ENTITLED ROADWAY RESURFACING - COUNTYWIDE (PROJECT MCC 7360 PLAN – CICC 7360-0/08, REQUEST FOR PRICE QUOTATION NO. 20110035) AND AUTHORIZING THE USE OF CHARTER COUNTY TRANSPORTATION SURTAX FUNDS [SEE ORIGINAL ITEM UNDER FILE NO. 111724]
Indexes: PEOPLES TRANSPORTATION PLAN
Sponsors: NONE
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 1/5/2012 8M1 SUBSTITUTE Motion to Reject all Bids Adopted P

Board of County Commissioners 12/19/2011 8M1 SUBSTITUTE Carried over 1/5/2012
REPORT: Senator Miguel Diaz de la Portilla, representing H & J Asphalt, Inc., appeared before the Board and asked that the Board of County Commissioners waive a non-monetary technical irregularity in the Request for Price Quote (RPQ) Number 20110035 in order to provide an opportunity for the County to save $65,000 in the project. He advised that H&J had proffered the lowest bid, and the County Attorney’s Office found the firm non-responsive because the bid bond form submitted was different from the standard form required to be submitted. He explained the requirement relating to the standard bid bond form, and he also explained the difference between the required form and the document submitted with the bid proposal. Senator Diaz de la Portilla requested that the Board reject the proposed bid award recommendation and award the contract to H&J. It was moved by Commissioner Heyman that the Board of County Commissioners reject the bid award recommendation to General Asphalt Co. and award the contract to H & J Asphalt, Inc., at the contractor’s proposed price. This motion was seconded by Commissioner Diaz, and the floor was opened for discussion. County Attorney Robert Cuevas noted that the Miami-Dade County Code provided that the Board and any committee hearings addressing the issue of non-responsiveness was bound by any determination made by the County Attorney’s Office in that respect. Secondly, the hearing examiner had also heard the bid protest; and there was a procedural consequence to that effect as well. He also advised that it would require an affirmative two-thirds vote if the Board wished to make any other determination other than the hearing examiner’s recommendation. County Attorney Cuevas advised that the proposal was determined non-responsive due to the bid bond form proffered by H & J. Following a brief discussion regarding whether the County Attorney should have clarified the Code’s requirements prior to the motion, County Attorney Cuevas verbally affirmed Chairman Martinez’s statement that the motion on the floor was objectionable. County Attorney Cuevas advised that the Board could move to reject all bids with the directive that the RPQ be re-advertised. Following a brief discussion on the procurement process and whether the County Attorney’s Office failed to address the issue of non-responsiveness, County Attorney Cuevas explained that the foregoing item should have never been considered at the committee level inasmuch as bid protests were scheduled directly before the Board of County Commissioners. In response to Chairman Martinez’s inquiry, Assistant County Attorney Bruce Libhaber explained the reasons why the item had been considered at the Regional Transportation Committee (RTC) and the action taken at the committee level. He noted that he stated at the committee meeting that the Board had the discretion to either award the contract consistent with the Mayor’s recommendation, reject all bids, or take action. Therefore, the item was appropriately presented before the Board in accordance with the Code. He stated that he had also informed the members of the committee that the action to reject all bids could not be taken at the committee level, and the item would have to be referred to the full Board. In connection with Chairman Martinez’s inquiry, Assistant County Attorney Libhaber advised that the issues of non-responsiveness and how the County Attorney’s determination in that respect was legally binding was discussed with the members of the committee at the time of the hearing. He noted the members of the committee did not vote to that effect. In response to Commissioner Heyman’s question, Assistant County Attorney Libhaber responded that the Board could award consistent with the Mayor’s recommendation, reject all bids, or defer the item; but no mechanism was available according to the bid’s specifications to award the contract to a bidder deemed non-responsive. Consequently, Commissioner Heyman withdrew the motion. In response to Commissioner Barreiro’s question regarding whether a motion to reject all bids and award the contract would be appropriate, Assistant County Attorney Libhaber responded that action would constitute a bid waiver. He noted bid waivers were not applicable to construction contracts. In response to Commissioner Barreiro’s inquiry regarding actions previously taken by the Board rejecting all bids and approving the award of contracts, County Attorney Cuevas advised that actions to reject all bids, approve a bid waiver, and make a contract award recommendation required the Mayor’s written recommendation. He stated that the Mayor’s written recommendation was not included as part of the item. In connection with Commissioner Barreiro’s inquiry, Mayor Gimenez advised he would submit the required written recommendation if the Board wished to proceed in that manner; and he would submit it by the next scheduled meeting of the Board. In response to Commissioner Bell’s inquiry as to whether the vendor was offered an opportunity to correct the error and submit the form specified in the bid solicitation prior to considering the proposal non-responsive, Assistant County Attorney Libhaber advised that the question was whether the proposal was legally binding to the contractor and whether the bid bond was binding. He noted the bond submitted by H & J specified that it would become effective if the County accepted the bid, and the County accepted bids after the 10 days allowed for the Mayoral veto lapsed following the Board of County Commissioners approval of a contract. Therefore, the County Attorney’s Office opined that no bond was in place at the time of bid submittal; and a bid bond would be unavailable for collection purposes if H & J backed out of its proposal anytime between the day the proposal was submitted and the 10 days for the Mayoral veto. He stated that the bid was inconsistent with the specifications of bid requirements. He advised the hearing examiner concurred with the County Attorney’s opinion based on the same rationale. It was moved by Commissioner Sosa that the Board reject all bids. This motion was seconded by Commissioner Jordan, and the floor was opened for discussion. In response to Commissioner Sosa’s question, Mayor Gimenez advised that the proposed recommendation to reject all bids would save the County $65,000. He recommended that the Board ask Senator Miguel Diaz de la Portilla whether H & J would honor the same price if the item was re-advertised. Following a brief discussion regarding the proposal and case law, Senator Diaz de la Portilla affirmed that H & J would honor the proposed contract price. Following a discussion in connection with the bid bond and its purpose, Assistant County Attorney Libhaber clarified the method being contemplated by the Board was to reject all bids under the assumption that the Mayor would submit a written recommendation for a waiver of bids subject to the Board’s approval by an affirmative two-thirds vote of the Board. Commissioner Jordan expressed her concerns for the impact, legal ramifications of this action, and setting precedence for future bids where bid bonds were not posted. In regards to Commissioner Moss’s question on the bid bond form used by H & J, Assistant County Attorney Libhaber advised that he was uncertain whether the AIA form in question and used by the contractor had been previously used by other departments or the County since the County Attorney’s Office had not been asked to review every form used; and the Public Works Department notified that the bid bond form required by the bid specifications was the same form required within the last three or four years. He stated the required form was consistent with the requirements of the bid specifications, and he was unable to determine whether this was the same form required or used by other County departments. He advised the County Attorney’s Office had been consistent in their legal opinions regarding the AIA form in question every time these types of bid specifications were questioned. In response to Commissioner Moss’s request, Senator Diaz de la Portilla responded that the AIA form submitted by H & J was the same form used in the past by this department and many other County departments. He clarified that H & J had submitted a bid bond on time and for the correct amount as part of the proposal. He stated H & J had incorporated in the proposal by reference the entire RPQ including the required AIA form, which was the form the surety firm should have used; but the form incorrectly used was the form used in the past by the County. Commissioner Moss commented that he would support the motion to reject all bids and re-advertise the RPQ subject to the Mayor submitting a written recommendation, but the same problem should not reoccur in the future. He noted he would look at supporting the Mayor’s recommendation. In response to Commissioner Jordan’s question regarding the bid bond stipulation that it would effectuate at the time the contract was awarded, Senator Diaz de la Portilla explained that the bid bond form utilized by H & J was written differently than the form included in the RPQ package. He reiterated the form submitted had been used in the past by the County, and he explained the case law in support of his case. He reiterated the County would save $60,000 if the contract was awarded to H&J. Senator Diaz de la Portilla argued that the contractor recommended for the award of the contract failed to attend the two RTC meetings considering this issue, failed to reduce and match the contract price when offered the opportunity, and failed to attend today’s Board meeting. County Attorney Cuevas advised there was an additional aspect to this matter whereby the statutory requirements for construction contracts would have to be followed in order for the Board to be able to approve a bid waiver, which could be inapplicable at today’s hearing. Consequently, the alternative action to reject all bids subject to the submittal of a bid waiver recommendation by the Mayor was also subject to being able to meet those statutory requirements; and it required legal review. It was moved by Chairwoman Edmonson that the foregoing item be deferred. Chairman Martinez announced the motion to defer died due to a lack of second. He called for a vote on Commissioner Sosa’s motion to reject all bids; and upon being put to a vote, the motion passed by a vote of 13-0. Mayor Gimenez stated for the record that, pursuant to the County Attorney’s comments, if the County administration was unable to bring back before the Board a bid waiver, the RPQ would have to be re-advertised for bids. Chairman Martinez stated that it would not have to be re-bid because the Board could reconsider the item at the next meeting. County Attorney Cuevas expressed his concerns for the action taken by the Board approving all bids be rejected because that action released the responsive bidder’s bid bond and reconsideration of the item would not necessarily reinstate the bid bond. Mayor Gimenez advised that the appropriate action for the Board to take was to defer the foregoing item. In response to Chairman Martinez’s question regarding whether the County Attorney’s Office would be able to respond to all of the pending legal questions by January 5, 2012, County Attorney Cuevas responded the answers would be provided by the next Board meeting. In response to Chairman Martinez’s question, County Attorney Cuevas recommended the Board should leave the motion to reject all bids as is. There being no other comments and pursuant to the County Attorney’s suggestion, the Board determined to carry over the foregoing item to the January 5, 2012, Board meeting.

Board of County Commissioners 12/6/2011 8M10 SUBSTITUTE Deferred 12/19/2011 P
REPORT: The foregoing proposed resolution was deferred to the December 19, 2011 Board of County Commission meeting during consideration of changes to today’s agenda, pursuant to the change sheet.

County Mayor 11/30/2011 Deferrals 12/6/2011
REPORT: A deferral of this item has been requested to the December 19, 2011 Board of County Commissioners meeting.

Regional Transportation Committee 11/7/2011 3M SUB. No Action Taken
REPORT: Assistant County Attorney Bruce Libhaber read into the record the title of the foregoing resolution. It was motioned by Commissioner Heyman that the foregoing proposed resolution be moved for discussion. This motion was seconded by Vice Chairman Suarez. Mr. Miguel Diaz de la Portilla, Counsel for H&J Asphalt, Inc., appeared before the Committee and asked that his client be awarded the roadway resurfacing project for the People’s Transportation Plan (PTP), which would save the taxpayers of Miami-Dade County $60,000. He noted that H&J Paving proffered the lowest bid, but had failed to submit the standard bond form. He maintained that, by awarding this contract as recommended, the Committee would reject a $60,000 savings to the taxpayers based on a technicality. Mr. Diaz de la Portilla discussed the credentials of H&J Asphalt, Inc. In response to Chairman Barreiro’s inquiry, Mr. Diaz de la Portilla advised his client would submit the correct form. Following a discussion regarding the technicality causing the rejection of the contract bid award, it was moved by Commissioner Heyman that the bid award recommendation to General Asphalt Co., Inc., be rejected; and that H&J Asphalt, Inc., be awarded the bid award and that the contractor be allowed to submit the correct form in the proposal. Assistant County Attorney Libhaber explained the background history of the foregoing bid award recommendation. Following a discussion regarding the appropriate action to be taken on the foregoing proposed resolution and pursuant to Assistant County Attorney Libhaber’s recommendation, the Committee unanimously agreed not to take action. Pursuant to Commissioner Moss’s comments, Assistant County Attorney Libhaber clarified that the foregoing resolution would be scheduled for the next Board of County Commissioners’ meeting since no action was taken.

County Mayor 10/20/2011 Assigned County Attorney 11/15/2011
REPORT: PWWS (SUB TO LEG# 111724) (RTC 10/24/11) (ASST. COUNTY ATTY: BRUCE LIBHABER)

County Mayor 10/20/2011 Assigned Alina Tejeda-Hudak 10/20/2011 10/20/2011

Legislative Text


TITLE
RESOLUTION APPROVING A CONTRACT AWARD RECOMMENDATION IN THE AMOUNT OF $1,007,798.29 TO GENERAL ASPHALT CO., INC. FOR THE PEOPLE’S TRANSPORTATION PLAN PROJECT ENTITLED ROADWAY RESURFACING - COUNTYWIDE (PROJECT MCC 7360 PLAN – CICC 7360-0/08, REQUEST FOR PRICE QUOTATION NO. 20110035) AND AUTHORIZING THE USE OF CHARTER COUNTY TRANSPORTATION SURTAX FUNDS

BODY
WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying memorandum, a copy of which is incorporated herein by reference,

NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that this Board approves the Contract Award Recommendation in the amount of $1,007,798.29 between General Asphalt Co., Inc. and Miami-Dade County for the People’s Transportation Plan (PTP) Project Entitled Roadway Resurfacing – Countywide (Project MCC 7360 Plan – CICC 7360-0/08, RPQ No. 20110035) in substantially the form attached hereto and made a part hereof; and authorizing use of Charter County Transportation Surtax Funds.

HEADER
Date:

To: Honorable Chairman Joe A. Martinez
and Members, Board of County Commissioners

From: Carlos A. Gimenez
Mayor

Subject: Contract Award Recommendation in the Amount of $1,007,798.29 to General Asphalt Co., Inc. for the People's Transportation Plan Project Entitled Roadway Resurfacing - Countywide and Authorizing the Use of Charter County Transportation Surtax Funds

This substitute item modifies the contract award amount as directed by the Regional Transportation Committee on September 12, 2011 to discuss and renegotiate the contract award amount with General Asphalt Co., Inc. The Public Works and Waste Management Department (PWWMD) met with General Asphalt Co., Inc. (General Asphalt) on September 21, 2011, to negotiate their bid prices. General Asphalt agreed to reduce the total base amount from $895,225.25 to $886,179.25. Consistent with Rule 4.01(j)(2) of the Rules of Procedure for the Board of County Commissioners (BCC), this item is to be directed to the BCC for final action.

STAFF RECOMMENDATION
Recommendation
The attached Contract Award Recommendation for the People’s Transportation Plan (PTP) project entitled Roadway Resurfacing - Countywide (Project MCC 7360 Plan - CICC 7360-0/08 Request for Price Quotation (RPQ) No. 20110035) in the amount of $1,007,798.29 to General Asphalt Co., Inc. (General Asphalt) was prepared by PWWMD and is recommended for approval by the BCC.

Proceeds from a Charter County Transportation System Sales Surtax Bond Sale will be used to fund this project; therefore, review by the Citizens’ Independent Transportation Trust (CITT) is required before final approval by the BCC.

Scope
The work to be performed under the life of this contract includes roadway resurfacing at various locations within Miami-Dade County (County).

Fiscal Impact/Funding Source
The value of this contract award is $1,007,798.29 and will be funded from Charter County Transportation Surtax 2010 Bond Proceeds as programmed within PWD’s Multi-Year Capital Budget. The base contract amount is $886,179.25, with the total amount being inclusive of contingency and dedicated allowances. There are no recurring operating or maintenance costs anticipated with the contract.

The proposed improvements qualify under the allowable work categories included in the PTP Neighborhood Improvements Section. The funding index code for this project is CPEPTP600RSF.

Delegation of Authority
No additional authority is being requested within the body of this contract.

Track Record/Monitor
General Asphalt is currently performing work for PWWMD at a satisfactory level. PWWMD has reviewed the Capital Improvements Information System (CIIS) database and found 19 awarded construction contracts as follows:

* one for the Aviation Department,
* one for the Parks, Recreation and Open Spaces Department, and
* 17 for PWWMD.

The referenced database also lists a total of 36 contractor performance evaluations (several contracts having two evaluations on file, an interim and a project closeout) with an overall performance rating of satisfactory performance (3.6) out of a possible superior performance (4.0) rating. The Sustainability, Planning and Economic Enhancement Department’s (SPEED) History of Violation’s report lists no violations for this contractor.

According to the Florida Department of State, Division of Corporations, General Asphalt Co., Inc., Company Principals are Robert A. Lopez, Albert Lopez J., Royal S. Webster, Curtis Simpson and Robert A. Lopez, Jr. and the Company’s address is listed as 4850 NW 72 Avenue, Miami, Florida 33166.

Following PWWMD’s standard operating procedures, after award of this contract, a pre-construction meeting will be scheduled. The responsible staff person for PTP projects in PWWMD is Mr. Frank Aira, P.E. Following completion of the award process, the project will be assigned to Mr. Joaquin Rabassa, P.E., Project Coordinator, for day-to-day responsibilities.

MANAGER'S BACKGROUND
Background
As part of the PTP Neighborhood Improvements initiative, PWWMD continues to take advantage of various contracting mechanisms such as the Miscellaneous Construction Contracting (MCC) process available under the MCC 7360 Program. Through this process, PWWMD forwards a RPQ, by way of facsimile transmission, to a pool of firms that have registered with the Internal Services Department for the subject trade. Additionally, PWWMD advertises the project in the Daily Business Review and all solicitations are available on-line through the Miami-Dade County portal under the “Procurement Solicitations” link. The project’s award evaluation is based upon the bid submitted by the lowest responsive, responsible bidder for the project.

The SPEED Review Committee met and recommended a 10 percent Community Small Business Enterprise subcontractor goal based on the project’s scope of work and cost estimate of $879,000.00. In addition, a Community Workforce Program (CWP) goal of 13 percent has been established for this project as several work locations fall within a Designated Target Area. On April 21, 2011, PWWMD forwarded RPQ No. 20110035 for the Roadway Resurfacing Contract, utilizing the MCC 7360 Plan, to a list of 55 pre-registered firms. A total of four firms purchased contract documents and all four firms proffered a bid.

H & J Asphalt, Inc. (H & J) proffered the lowest bid ($835,309.40), however did not submit the standard Bid Bond Form required by the solicitation documents. The Bid Bond Form submitted by H & J, along with the applicable contract language was sent to the County Attorney’s Office (CAO) for review on March 17, 2011. The Bid was determined to be Non-Responsive by the CAO, and as such PWWMD issued a Recommendation for Award to the second lowest bidder, General Asphalt who proffered a base bid of $895,225.25, two percent over the County’s cost estimate.

The Recommendation for Award to General Asphalt was filed with the Clerk of the Board on June 28, 2011. H & J subsequently filed a bid protest on July 1, 2011 followed by a hearing held on July 21, 2011. In his ruling dated July 29, 2011 (attached), the Hearing Officer denied the bid protest filed by H & J and upheld the Mayor’s recommendation. The recommendation that the subject project be awarded to General Asphalt, was presented to the Regional Transportation Committee (RTC) on September 12, 2011. During the RTC meeting the Committee directed PWWMD to attempt to negotiate a lower price with General Asphalt. On September 21, 2011, PWWMD met with General Asphalt to discuss and negotiate the bid prices proffered, and following a subsequent exchange of proposals, General Asphalt provided a final offer of $886,179.25, effectively lowering their bid by $9,046.00.

In accordance with PTP guidelines, this award recommendation must be presented to the CITT prior to approval by the BCC. As part of the legislative process to obtain the required approvals from the CITT, this award recommendation was inadvertently scheduled for the RTC, instead of being placed directly for BCC consideration as contemplated by Rule 4.01 (j)(2) of the Rules of Procedure for the BCC.

The work to be accomplished for this project consists of, but is not limited to, furnishing all supervision, labor, required materials, equipment and tools to perform all operations necessary for roadway resurfacing improvements. The work includes clearing and excavating of shoulder areas or build-up, grading and clean-up of adjacent shoulders and removal of roots, if required. Additional work to be performed includes the milling of existing pavement, resurfacing of the full roadway, the widening and resurfacing of intersecting streets, and the resurfacing of asphalt pathways (pedestrian, bicycle, etc.) adjacent or not to the edge of the pavement, as necessary.


__________________________
County Manager/Deputy Mayor



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