Legislative Matter

Miami-Dade Legislative Item
File Number: 131840

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Clerk's Official Copy

File Number: 131840

File Type: Resolution

Status: Adopted

Version: 0

Reference: R-63-14

Control: Board of County Commissioners

File Name: DUE DILIGENCE AFFIDAVITS

Introduced: 9/19/2013

Requester: NONE

Cost:

Final Action: 1/22/2014

Agenda Date: 1/22/2014

Agenda Item Number: 11A3

Notes:

Title:

RESOLUTION DIRECTING THE MAYOR OR MAYOR’S DESIGNEE TO REQUIRE CERTAIN AFFIDAVITS AS PART OF THE DUE DILIGENCE CONDUCTED BY THE COUNTY WITH RESPECT TO THE RESPONSIBILITY OF POTENTIAL VENDORS AND CONTRACTORS PRIOR TO CONTRACT AWARD

Indexes:

NONE

Sponsors:

Barbara J. Jordan, 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	1/22/2014	11A3	Adopted				P
REPORT:	In response to Commissioner Diaz’ question as to whether staff the process in the foregoing resolution was the same process established for nonprofit organizations, Commissioner Jordan confirmed that the process was the same. Hearing no further questions or comments, the Board proceeded to vote.

Finance Committee	12/10/2013	2C	Forwarded to BCC with a favorable recommendation				P
REPORT:	Assistant County Attorney Geri Bonzon-Keenan read the foregoing proposed resolution into the record. Chairman Bovo opened the floor for public comments. Chairman Bovo closed the floor after no one appeared wishing to speak. Hearing no questions or comments, the Committee members proceeded to vote on this proposed resolution, as presented.

Finance Committee	11/12/2013	2C	Deferred to next committee meeting				P
REPORT:	During consideration of changes to today's (11/12) agenda, the foregoing proposed resolution was deferred to the December 10, 2013 Committee meeting at the request of Commissioner Jordan, the sponsor. Mr. Albert E. Dotson, Jr., 1450 Brickell Avenue, Miami, appeared before the Committee and presented a letter to the Clerk of the Board requesting that a public forum be scheduled on this item.

Finance Committee	10/8/2013	2C	Deferred to next committee meeting		11/12/2013		P
REPORT:	Assistant County Attorney Geri Bonzon-Keenan read the foregoing proposed resolution into the record. It was moved by Commissioner Heyman that the foregoing proposed resolution be forwarded to the Board of County Commissioners with a favorable recommendation. This motion was seconded by Commissioner Moss. Commissioner Moss inquired whether the responder would be non-compliant if the affidavits were not completed accurately and truthfully. Assistant County Attorney Daniel Frastai responded that the vendor would not be automatically disqualified; however, the bid must be reviewed for responsiveness. Commissioner Moss proceeded to question whether this legislation addressed the gray area where sometimes the affidavit was material to the bid and other times it was not. Mr. Lester Sola, Director, Internal Services Department (ISD) responded that this proposed resolution addressed procurement items over $1 million. He noted the affidavits were a condition of the award, therefore part of the responsibility review and was not a responsibility issue. Mr. Sola said that ISD would proceed with the award upon the vendor’s submitting a properly completed affidavit and the Procurement Department conducting a satisfactory compliance review. He explained that a vendor would be interviewed as part of any concerns raised during the responsibility review and ISD would not recommend the award to the Board for approval if administration determined that the vendor was not responsible. Mr. Sola said ISD recommended an award to the Board if the vendor was responsible and the County Attorney’s Office determined them to be responsive. Commissioner Moss questioned the rationale as to why affidavits were required if they were subject to interpretation, noting that there was no established rule that a vendor was non- responsive if they did not supply the required documentation. He commented that a vendor should either be required to provide the affidavit and that these affidavits should not be required if they were not binding. Assistant County Attorney Frastai noted that vendors were allowed to submit the affidavit prior to award if they did not do so when submitting the bid. He noted the affidavit was a condition of the awarding the contract. Assistant County Attorney Frastai clarified that responsiveness was evaluated at the time the bid was submitted. Commissioner Moss noted his support; however, he remained concerned that submitting the affidavit was not considered material to the award of the bid when some vendors provided the affidavits upfront when submitting their bid and others did not. Assistant County Attorney Frastai responded that the materiality issue was based upon case law. Commissioner Heyman noted her concern regarding determining who was a good partner or a legitimate vendor and whether appropriate legislation existed to prevent doing business with vendors who were not in good status with the County. Assistant County Attorney Bonzon-Keenan responded that legislation existed requiring due diligence review for vendors who were in arrears to the County Commissioner Heyman commented that requiring an affidavit after granting the award was a duplicative effort. Mr. Sola responded that the Procurement Department included language in their Request for Proposals requiring a vendor to disclose whether they were subject to litigation as a condition of award. He noted previous instances where failure to submit an affidavit would result in the firm being deemed non-responsive and the rejection of those proposals. Mr. Sola said that the affidavits were currently required after the selection and evaluation process to give time for the Department to meet with the firms. Commissioner Heyman noted her opposition to the foregoing proposed resolution inasmuch as it would not make it any easier for vendors to do business with the County. Hearing no further questions or comments, the Committee members proceeded to vote to defer this proposed resolution to the November 12, 2013 Finance Committee meeting.

County Attorney	9/19/2013		Assigned	Daniel Frastai	9/20/2013

County Attorney	9/19/2013		Referred	Finance Committee	12/10/2013

Legislative Text

TITLE
RESOLUTION DIRECTING THE MAYOR OR MAYOR�S DESIGNEE TO REQUIRE CERTAIN AFFIDAVITS AS PART OF THE DUE DILIGENCE CONDUCTED BY THE COUNTY WITH RESPECT TO THE RESPONSIBILITY OF POTENTIAL VENDORS AND CONTRACTORS PRIOR TO CONTRACT AWARD

BODY
WHEREAS, Miami-Dade County awards a large number of contracts for the purchase of supplies, materials and services (including professional services); and
WHEREAS, this Board is interested in ensuring that due diligence is conducted by the County with respect to the responsibility of potential vendors and contractors including reviewing the contractual history and background of the entities the County intends to contract with; and
WHEREAS, to this end the Board previously adopted Resolution No. R-187-12, directing the Mayor or Mayor�s designee to include due diligence information in memoranda recommending contract awards exceeding one million dollars ($1,000,000) in cost,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that the Mayor or Mayor�s designee is hereby directed to include as a condition of award of any contract that exceeds one million dollars ($1,000,000), or that otherwise needs to be presented to this Board for award approval, a requirement that the proposed vendor or contractor execute an affidavit under oath attesting to: (a) all of the lawsuits that have been filed against that entity, its directors, partners, principals, and/or board members, based on a breach of contract by that entity in the five (5) years prior to bid or proposal submittal, including the case name and number and the disposition of the case; (b) any instances in the five (5) years prior to bid or proposal submittal where that entity has been defaulted and a brief description of the circumstances; and (c) all of the instances in the five (5) years prior to bid or proposal submittal where that the entity has been debarred or received a formal notice of noncompliance or non-performance, such as a notice to cure or a suspension from participating or bidding for contracts, whether related to Miami-Dade County or not. The Mayor or Mayor�s designee shall also develop specifications to be contained within the competitive solicitation documents to give effect to the intent of this resolution. Any findings reported in any such affidavit shall be considered by the Mayor or Mayor�s designee in making a recommendation of responsibility, and shall be reported to this Board together with any recommendation for award to be made by this board.