HomeMy Public PortalAbout09-7967 Choice Environmental Services Sponsored by: City Manager
Resolution No. 09-7967
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA ACCEPTING THE
PROPOSAL OF CHOICE ENVIRONMENTAL SERVICES,
INC. FOR THE PROVISION OF RESIDENTIAL WASTE
COLLECTION SERVICES PURSUANT TO RFP NO. 09-0821;
FURTHER AUTHORIZING THE CITY MANAGER TO
NEGOTIATE A PROFESSIONAL SERVICES AGREEMENT
IN A FORM ACCEPTABLE TO THE CITY ATTORNEY AND
FOR FINAL APPROVAL BY THE CITY COMMISSION
WHEREAS,the City of Opa-locka solicited a Request for Proposals for residential waste
collection services; and
WHEREAS,on August 21,2009 an RFP response was received from Choice Environmental
Services, Inc. for the provision residential waste collection services; and
WHEREAS, the City Manager convened a selection committee to review the proposals
submitted and said committee recommended Choice Environmental Services, Inc. on October 30,
2009; and
WHEREAS,the City Commission deems Choice Environmental Services,Inc.as being the
most responsive and responsible proposer.
NOW,THEREFORE,BE IT DULY RESOLVED BY THE CITY COMMISSION OF
THE CITY OF OPA-LOCKA, FLORIDA:
Section 1. The recitals to the preamble herein are incorporated by reference.
Section 2. The City Commission hereby accepts the proposal of Choice Environmental
Services, Inc. for the provision residential waste collection services and pursuant to RFP No. 09-
0821.
Resolution No. 0 9—7 9 6 7
Section 3. The City Manager is hereby authorized to negotiate a professional services
agreement in a form acceptable to the City Attorney and for final approval by the City Commission
for a period of three (3)years, with an option for renewal for one additional year.
PASSED AND ADOPTED this 12 day of NOVEMBER , 2009.
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MAYOR
Attest to: Approved as to form and legal sufficiency:
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CITY CLE: CI fY ATTORNEY
Moved by: HOLMES
Second by: TAYLOR
Commission Vote: 4-0
Commissioner Tydus: NOT PRESENT
Commissioner Holmes: YES
Commissioner Johnson: YES
Vice-Mayor Taylor: YES
Mayor Kelley: YES
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Memorandum
TO: Mayor Joseph Kelley
Vice-Mayor Myra L. Taylor
Commissioner Dorothy Johnson
Commissioner Timothy . t Imes
Commissioner R/o dus
FROM: Bryan K. Finnie,In • ity Manager
DATE: November A ; ;'I9
RE: RESIDENTIAL WASTE RFP
Request: Approval of resolution authorizing the City Manager to contract with
Choice Waste and Recycling Services for residential waste collection
services.
Description: Current contract expired on October 31, 2009. The RFP advertised for new
residential 96 gallon containers, one armed bandits, local business preferences, roll
off provisions and supplement pick-up sweeping.
Financial Impact: Cost per door is $27.94. We will need approximately 2,238 containers. Said cost is
well within the City's FY 2009—2010 budget.
Implementation Timeline: Approximately 90 days after contract is signed
Legislative History: None
Recommendation(s): Staff recommends approval. (see attached tabulation form). Subsequent to
this approval, Staff will bring back to the Commission the finalized negotiated
contract for approval.
Analysis: The current service provider (Waste Management, Inc) had a three-year contract that ended.
The RFP was advertised on 8/2/09. A mandatory pre-bid meeting was held on 8/6/09. Ten (1)
vendors attended this meeting. The RFP was received on 8/21/09. Three (3) vendors turned
in bids; Choice,Waste Services and PKO LLC. PKO was non-responsive and eliminated. On
10/22/09 oral presentations were held with Choice and Waste Services. The RFP process was
completed on 10/30/09 and the Committee selected Choice as the most responsive bidder.
Attachments: Evaluation Summary Tally
PREPARED BY: Ezekiel Orji, PhD
THE GREAT CITY "
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Burnadette Norris-Weeks,P.A. 305-953-2808
City Attorney 305-953-2830
Fax:305-769-6107
MEMORANDUM
TO: Commissioner D. Johnson
Cc: Bryan Finnie, Interim City Manager
Mayor and City Commission
FROM: Burnadette Norris-Weeks, City Attorney
RE: RFP for Residential Waste Collection; RFP Rescission and Revision
of Terms; Contact Negotiation Prior to Final Approval Considerations
DATE: November 19, 2009
This purpose of this Memorandum is to follow-up on our conversation on the primary
question of whether an acceptance by the City Commission of a recommendation made
by the City Manager binds the Commission prior to the time that an official contract is
negotiated. We discussed several other issues with one being whether the City
Commission can rescind a resolution of acceptance and substantially amend the terms
of an RFP without rejecting all bids and requiring another RFP process.
We also discussed that there are differences in procurement vehicles. I have advised
that contracts cannot be negotiated prior to commission approval of an RFP in all cases.
There are several legal implications involved which have been set forth in detail below.
BACKGROUND
At the Commission meeting held on November 12, 2009, the City Commission of the
City of Opa-locka approved the following resolution title:
A RESOLUTION OF THE CITY COMMISSION FO THE
CITY OF OPA-LOCKA, FLORIDA, ACCEPTING THE
PROPOSAL OF CHOICE ENVIRNOMENTAL SERVICES,
INC. FOR THE PROVISION OF RESIDENTIAL WASTE
COLLECTION SERVICES PURSUANT TO RFP NO. 09-
Residential Waste Collection Resolution Issues
November 19, 2009
Page 2 of 6
0821 ; FURTHER AUTHORIZING THE CITY MANAGER TO
NEGOTIATE A PROFESSIONAL SERVICES AGREEMENT
IN A FORM ACCEPTABLE TO THE CITY ATTORNEY AND
FOR FINAL APPROVAL BY THE CITY COMMISSION
During its October 28, 2009 meeting, the commission discussed reviewing all contracts
before final execution. I expressed during that meeting that the contracts generally
appear with the agenda items, however, in some cases, the Commission will need to
see the issue two times -- once for approval of the manager's selection and again after
the contract is negotiated.
In the case of the Commission's selection of Choice Environmental Services, Inc., the
RFP was for a three (3) year term with an option to renew for one (1) additional year.
The resolution appearing before the city commission specifically states that the RFP
was for a three (3) year term.
Section 2-319 of the Procurement Code states that "the City Commission shall review
the bid tabulations. The City Commission shall review the bid tabulations and
recommendations from the City Manager and shall accept or reject all bids." Given the
resolution presented, the City Commission had the option to do either of the above but
not amend the essential terms of the RFP.
The charter requires that an ordinance relating to a contract for more than one year be
presented in the form of an ordinance. Since the City Manager has only been given
the authority to negotiate a contract, there has been no contract before the commission
(yet) which would require an ordinance to be presented. In other words, it is not proper
to prepare an item as an ordinance for a contract for more than one year until the
applicable contract is presented before the Commission for approval. The resolution
passed on the November 12, 2009 agenda simply accepted the recommendation of the
manager.
GENERAL RULE
Pursuant to Schloesser v. Dill, 383 So. 2d. 1129 (Fla., 3d DCA 1980); Wood-Hopkins
Contracting Co., v. Roger J. Au & Sons, 354 So. 2d. 446 (Fla 1st DCA 1978); Dedmond
v. Escambia County, 244 So. 2d. 758 (Fla. 1st DCA 1971), the general rule is that the
proposal from the contractor and the acceptance by a city creates a binding contract.
The spirit of the aforementioned rule is consistent with longstanding holding that
competitive bidding is intended to advance sound public police and should not be
circumvented. Robinson's, Inc. v. Short, 146 So. 2d 108, 1113 (Fla. 1st DCA 1962),
cert. denied, 152 So. 2d 170 (Fla. 1963) ("laws requiring contracts to be let to the lowest
responsible bidder are of great importance to the taxpayers, and ought not to be
frittered away by exceptions."); see also, Marriott Corp. v. Metropolitan Dade County,
383 So. 2d 662 (Fla. 3d DCA 1980) (purpose of competitive bidding is to protect public
and statutes should be construed to advance their purpose and to avoid their being
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Residential Waste Collection Resolution Issues
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circumvented). There is a strong public policy of this state which requires that even in
the absence of controlling statutes, expenditures and public funds must be made on
competitive bids whenever possible. See, Webster v. Belote, 138 So. 721, 723-24 (Fla.
1931).
To expound on the general rule, when a public entity votes to accept a bid, or on the
bidder's notification of the acceptance vote, whichever occurs later a contractual
relationship arises between the entity and the accepted bidder). Wood-Hopkins
Contracting Co. v. Roger J. Au & Son, Inc., 359 So. 2d 446 (Fla. 1st DCA 1978). There
need not be performance of the contract in order to form a binding contract. Id.
However, the bidder must have been notified of the acceptance of the bid. Schloesser v.
Dill, 383 So. 2d 1129 (Fla. 3d DCA 1980). Mere attendance at the board meeting is
insufficient to satisfy the notice requirements. Berry v. Okaloosa County, 334 So. 2d 349
(Fla. 1st DCA 1976). In that case the court held when board of county commissioners'
motion to award bid to Plaintiff was rescinded by subsequent formal action, no binding
contract resulted, because no formal notification of the acceptance of the bid had
occurred, and the mere fact of a representative being present at the public meeting was
not adequate notice.
As in the instant case, the City Manager advised on the date of this Memorandum that
no formal notification has been made to Choice. Consequently, the general rule does
not apply in this instance.
DISTINCTION BETWEEN PROCUREMENT VEHICLES
At the conclusion of a Request for Proposals (RFP), the City Manager would ordinarily
seek authorization from the governing body to begin negotiating the terms of the
ensuing contract with the highest ranked proposer. If such negotiations prove
unsuccessful, the City Manager would then pursue negotiations with the next ranked
proposer and on down, until a satisfactory contract is drawn. This is in contrast to an
Invitation to Bid (ITB) process where the governing body's selection of a successful
proposer at the conclusion of the process would more likely create a binding contract.
I have already sent to you the definition differences in the code from the RFP and ITB.
Again, in this case, there has been no official notification of the Commission decision to
the successful bidder. Case law, however, does not define the word "communication" of
the bid. Based upon a reasoned analysis of the case law, the city may also be afforded
certain defenses. The following is an analysis of the possible scenarios in which an
informally accepted bid may not produce a binding contract and the liability ancillary
thereto.
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Residential Waste Collection Resolution Issues
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In H. Gore Enterprises, Inc. v. City of West Palm Beach, 617 So. 2d 1160 (Fla. 4th DCA
1993), the City Commission of Palm Beach voted to accept a bid for vehicle towing
services, and thereafter voted to rescind the award. The court found that no binding
contract had been formed upon the first commission vote. The city manager had
advised the board that the award of bid was simply the selection of a vendor with whom
a contract would be negotiated, but if such negotiations were unsuccessful. The city
would thereafter negotiate with the next bidder on the recommended list. Id. at 1161. In
State v. Gtech Corp., 816 So. 2d 648 (Fla. 1St DCA 2001) the Court invalidated action by
the Department of State which requested proposals and then subsequently negotiated a
contract which was materially different from the original proposals. These two case
leads one to the conclusion that agreed upon terms (those terms accepted from the
offer) are not subject to modification, while non-material terms may be negotiated.
However, H. Gore turned on some particular language in the City Charter involving
"acceptance of a bid" and "acceptance of a contract". Those facts are not presented
here.
It should be noted that there is case law which holds that the language of the request for
the bid proposal itself may control the creation of the contract. In CITY OF MIAMI
BEACH v. DICKERMAN OVERSEAS CONTRACTING COMPANY, U.S.A.,20 Fla. L.
Weekly D1079, 659 So.2d 1106 (3rd Dist. May 3, 1995) the City explicitly provided in its
invitation to bid that there was no contract to perform entered into until the Bidder
"executed" it.
THE RFP PROCESS
In a fairly recent case, a Florida court held,
"In contrast to bids, a RFP is used when the public authority is incapable
of completely defining the scope of work required, when the service may
be provided in several different ways, when the qualifications and quality
of service are considered the primary factors instead of price, or when
responses contain varying levels of service which may require subsequent
negotiation and specificity. Sys. Dev. Corp. v. Dep't of Health &
Rehabilitative Servs., 423 So.2d 433, 434 (Fla. 1st DCA 1982). In addition,
the consideration of a response to a request for bid is controlled by the
estimated costs, whereas, the response for a request for a proposal is
controlled by estimated cost and technical excellence in the field. Id.
Awards of contracts are generally based not solely on price, but on the
results of an extensive evaluation which includes criteria, qualifications,
experience, methodology, management, approach, and responsiveness to
the RFP, etc. Id. Further, at the conclusion of the RFP process, the
procurement officer will seek authorization from the governing body to
begin negotiating the terms of the contract with the highest ranking bidder.
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H. Gore Enters., Inc. v. City of W. Palm Beach, 617 So.2d 1160, 1161
(Fla. 4th DCA 1993) (holding that no binding contract had been formed
upon the first commission vote, because the award of the proposal was
simply a selection of a vendor to negotiate a contract with). The contract
is, thus, not formed until after the negotiation process. Id."
You have requested that the legal office prepare a resolution requiring contracts
to be negotiated in advance. Such policy could have far reaching legal
implications and based on the existing case law could present legal issues
wherein the City would be faced with defending actions a making arguments that
there had been no acceptance. Please note that this memorandum is not
intended to address CCNA procurement issues, which is statutorily driven.
ISSUE: WHETHER AN ACCEPTED BID MAY BE MODIFIED AFTER
ACCEPTANCE
The second issue that we discussed is whether an accepted bid may be modified after it
is accepted. Reformation of a contract is not appropriate. Rescission or withdrawals
are appropriate remedies. Department of Transp. v. Ronlee, Inc., 518 So. 2d 1326 (Fla.
1987). Our legal research would suggest that neither a bid nor a contract may be
modified after acceptance. State v. Gtech Corp., supra.
ISSUE: WHETHER THE CITY MAY AWARD CONTRACTS PURSUANT TO
COMPETITIVE NEGOTIATION INSTEAD OF COMPETITIVE BIDDING
In Miami Marinas Ass'n, Inc. v. City of Miami, 408 So. 2d 615 (Fla. 3d DCA 1981), the
court held that the City Charter of the City of Miami required competitive bidding
process and prevented award of waterfront property management contract through
competitive negotiation instead.
A public body is not entitled to omit or alter material provisions required by the RFP
because in doing so the public body fails to "inspire public confidence in the fairness of
the [RFP] process." State, Dep`t of Lottery v. Gtech Corp., 816 So.2d 648 (Fla. 1st DCA
2001). In Gtech, this court reviewed a trial court's grant of summary judgment in favor of
an unsuccessful RFP respondent. Id. at 649. The underlying action sought declaratory
relief and requested the trial court nullify a contract between the chosen competitor and
the State. The appellant in Gtech asserted that the State had improperly accepted a
proposal from the competition that materially altered or omitted material provisions of
the RFP. Id. at 650-51; See also, Emerald Correctional v. Bay County Bd., 955 So.2d
647 (Fla. App., 2007)
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In Emerald Correctional v. Bay County Bd., 955 So.2d 647 (Fla. App., 2007), the court
held that a State entity cannot materially alter the terms of the RFP or terms of the RFP
after said entity has chosen the most competitive bid.
In the instant case, amending the term of the contract from three years to one year is a
material change that will be subject to an injunction, specific performance, or
mandamus.
CONCLUSION
In conclusion, Choice won the RFP that states the term of the contract will be for three
(3) years beginning November 1, 2009. There is an option for an additional year unless
there is a 60-day notice. Since there has been no official notification by the City
Manager of the contract award to the successful bidder (it does not matter that the
Contractor attended the commission meeting) the City has a reasonable chance of
prevailing in the event a protest action is filed because the City Commission votes to
reject all bids. Again, it is not possible to modify the RFP terms without rejecting all
bids.
As it stands, the Commission has given the authority for the City Manager to negotiate a
contract with the selected vendor. Such negotiation may be difficult to do without first
formally and officially notifying of the selected vendor of the Commission's decision.
Given the fact that your inquiry and requested resolution could cause some liability
exposure for the city, I thought that it was prudent to prepare this extensive
Memorandum for your consideration. Please let me know if I can answer any
questions.
CITY HALL•780 FISHERMAN STREET,4TH FLOOR,OPA-LOCKA,FLORIDA 33054•(305)688-4611