Agenda 04/13/2010 Item #10BAgenda Item No. 1 DB
April 13, 2010
Page 1 of 29
EXECUTIVE SUMMARY
Status report regarding the procurement of professional services from
firms under fixed term contracts with Collier County.
OBJECTIVE: To update the Board of County Commissioners regarding the
procurement of professional services subject to the Consultants' Competitive
Negotiation Act (or "CCNA") and receive Board direction where appropriate.
CONSIDERATIONS: On January 12, 2010, The Board awarded RFP 09-5305
for fixed term architectural services to six firms. On March 23, 2010, the Board
awarded RFP 09-5262 for fixed term engineering services to 42 firms. Both RFPs
were published in 2009 under the assumption that the larger tasks and
assignments routed under these contracts would be competitively distributed
through the use of the County's best value offer (or "BVO" process).
The BVO process was implemented in May, 2009. Prior to commencing the
process, staff proactively contacted representatives of the Florida Institute of
Consulting Engineers, the Florida Engineering Society, the Florida Surveying and
Mapping Society and members of other professional associations to advise them
of Collier County's BVO process and to encourage their participation and
support. Staff subsequently received letters and phone calls from association
representatives expressing opposition to the process and questioning its legality.
In each instance, staff addressed the issues raised and encouraged continuing
dialogue with the association representatives.
Under the BVO process, firms who previously contracted with the County
pursuant to the process set forth in the CCNA statute are given the opportunity to
compete for projects estimated to cost between $100,000 and $200,000 on a
'best value" basis. Selection is based primarily upon qualifications, but price is a
minor component in the evaluation process. The BVO process affords several
advantages to the County and the general public, but it also gives the consultants
under contract more consistent and uniform opportunities to compete for County
work.
Subsequent to the implementation of the BVO process, staff received general
inquiries from the Clerk of Courts' Finance Department regarding the BVO
process. Those requests were satisfied and the Finance Department processed
payments for work orders issued under the process for several months. In
January, 2010, the Clerk received letters from three professional associations
challenging the legality of the BVO process.
The Clerk has met with the County Manager, the County Attorney and the
Purchasing Director on multiple occasions thereafter and has subsequently
advised that he is not able to process payments for work issued under the BVO
process.
Agenda Item NO.1 08
April 13, 2010
Page 2 of 29
In response to the Clerk's legal questions, the County Attorney's Office has
provided the Clerk with three legal opinions in the matter. One was written to an
attorney on behalf of the surveying and mapping association last summer, which
addressed the legality of the BVO process. The other two were written directly to
the Clerk on March 10 and March 25, 2010 respectively opining that the Clerk
could legally release the payments in question. Copies of these opinions are
enclosed.
As of this writing, payments totaling more than $551,000 are being held. The
Clerk's Office has submitted numerous public records requests to the Purchasing
Department, all of which have been satisfied. The County Manager has invited
the Clerk to attend the Board meeting to provide a public update as to the status
of the unpaid invoices.
In the meantime, staff has agreed to temporarily suspend the BVO process until
this matter is resolved. Work orders under each of the new contracts are being
issued to consultants generally on a rotation basis. Work orders previously
opened under the BVO process have been cancelled and re-issued under the
new agreements.
FISCAL IMPACT: There is no direct fiscal impact associated with this report.
GROWTH MANAGEMENT IMPACT: There is no impact on the Growth
Management Plan.
LEGAL CONSIDERATIONS: On February 10, 2009, Mr. Carnell went to the
Board on Executive Summary seeking to amend the purchasing policy to allow
for limited "best value" competition among firms already under fixed term
professional service agreements with Collier County. The item was approved
without discussion on consent, and the policy was implemented that May. In
January 2010 Mr. Brock received three letters from Tallahassee law firms,
representing various groups that fall within the application of the CCNA. These
firms took the position that Collier County's BVO Policy was contrary to the
CCNA. By letter dated February 22, 2010, Mr. Brock informed the Board that his
Office had received three letters from attorneys representing professional
organizations questioning the validity of the County's BVO process, that his
Office was reviewing the legality of payments under this process, and that he
was ceasing payments until the legality can be determined. A copy of Mr.
Brock's letter, together with the three letters he received, is included as part of
this agenda package.
Section 129.09, Florida Statutes provides as follows: "Any clerk of the circuit
court, acting as county auditor, who shall sign any warrant for the payment of
any claim or bill or indebtedness against any county funds in excess of the
expenditure allowed by law, or county ordinance, or to pay any illegal charge
against the county, or to pay any claim against the county not authorized by law,
or county ordinance, shall be personally liable for such amount, and if he or she
shall sign such warrant willfully and knowingly he or she shall be guilty of a
misdemeanor of the second degree, punishable as provided in s. 775.082 or s.
Agenda Item No. 10B
April 13, 2010
Page 3 of 29
775.083." The Florida State Supreme Court has held that this provision "forbids
the clerk "acting as county auditor," from signing illegal warrants and provides
both personal and criminal liability for violation of this provision. The clerk, as
auditor, is required by law to refuse to sign and deliver a county warrant for an
unlawful expenditure, even though approved by the board of county
commissioners." Alachua County v. Powers, 351 So. 2d 32 - Fla. Supreme
Court 1977.
Ours is a system of checks and balances, and reasonable minds can differ.
Given the circumstances before him, and given the Clerk's legal obligations, it is
my opinion that the Clerk is entirely justified to pay these outstanding claims if he
deems them just, not to pay these claims if he deems the BVO Policy unlawful, or
to wait until this issue is resolved. -JAK
RECOMMENDATION: That the Board accepts the report from staff regarding the
current status of the administration of the County's fixed term professional
services agreements and the status of payments currently being held by the
Clerk of Courts and provides direction accordingly.
PREPARED BY: Steve Carnell, Purchasing/General Services Director.
Item Number:
Item Summary:
Meeting Date:
Agenda Item No. 10B
April 13, 2010
Page 4 of 29
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
lOB
Recommendation to accept the status report regarding the procurement of Consultants'
Competitive Negotiation Act (CCNA) professional services under the County's fixed term
contracts. (Len Price, Administrative Services Administrator)
4/13/20109:00:00 AM
Date
Approved By
Steve Carnell
Administrative Services
Division
Director - Purchasing/General Services
Purchasing & General Services
4/1/20101:53 PM
Date
Approved By
Jeff Klatzkow
County Attorney
4/1/20104:59 PM
Date
Approved By
Len Golden Price
Administrative Services
Division
Administrator - Administrative Services
Administrative Services Division
4/2/2010 2:44 PM
Date
Approved By
Therese Stanley
Office of Management &
Budget
Manager - Operations Support - Trans
Office of Management & Budget
4/5/20101:20 PM
Approved By
Date
Leo E. Ochs, Jr.
County Managers Office
County Manager
County Managers Office
4/6/2010 9:51 AM
lC1TfNC. V"\.c"/"SSENDEr~p, P A.
Agenda Item No. 10B
April 13, 2010
Page 5 of 29
ATTORNEYS AT LAW
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GAL_LlE"S HALL
225 SOUTH ADAMS STREET
SUITE 200
POST OF-FICt. Box 1833
(ZIP 32302- I 833)
TALLAHASSFE, FLORIDA 3230 I
TASHA 0 BUFORD
DAVID S. DEE
RONALD A. LAOASKY
..JOHN T. LAVIA, III
PHILIP 5 PARSONS
TIMOTHY R QUALLS
KENZA VANAsSENDERP
ROBERT SCHEFFEL WRIGHT
Rov C YOUNG
lELEPHONE '850) 222-7;::'06
TELECOPIER (850) S61-6B34
MEMORANDUM
TO:
Frank Rudd, Executive Director
Florida Engineering Soci ety
FROM:
Roy C. Young
DATE:
January 8, 2010
SUBJECT:
Collier County's Best Value Offer (BVO)
._-~-~.~~-~---- .----....-----
You have asked that I give YOll IllY legal opinion regarding the legality of Collier
County's procurenlcnt procedure for obtaining services of professional engineer finl1s. r will
assume for brevity that any reader of this memo is aware of the state law - CCNA - and the
procedure currently in effect in Collier County, which uses a process they call Best Value Offer
(BVO) to choose among competitively selected consultants for available projects.
The process used in Collier County can be con rusing because it is really a two-step
process. First, they obtain services of engineering firm via continuing contract using CCNA and
when they need such services for a specific project they use BVO to choose among those that
have continuing contracts.
It is I11Y opinion that the so called BVO polley used by Collier County is flawed and
violates the intent and spirit of the CCNA
The CCNA was adopted by Florida Icgislation to require that the services of professional
engineering firms be selected by government agencies based on their quali fications not the price
of their services. The BVO policy includes pricc as one of its components. This is the CCNA
violation.
It appears that Collier County follows the CCNA in selecting engineering firms for
continuing contracts at an agreed-upon fixed-rate of compensation. Note at this stage in process
" .
Agenda Item No. 10B
April 13, 2010
Page 6 of 29
l\1el11o to Frank Rudd
Page #2
.I anuary 8, 20 I 0
there is no project and the County says the fixed rate will not change if firm selected for future
project. The County has an "engineering fin11 in waiting" for when they are needed for a flltme
project. Problem arises when they engage more than one firm that is available to provide
services for future project. How (0 choose which one gets project"
The County l11aintains that there is no guidance in CCNA to tell them how to choose
between fimls that they have continlling contracts with who are prequahfied to do a particular
future project. There is the guidance that the CCNA prohibits the County from asking the fin11S
with continuing contracts to bid against each other. The COllnty maintains they are not bidding
when they ask for price in BVO process as price is actuaIly a reference to the method and means
required to cOl11plete the project, because the rate of compensation is already fixed. Since the
County already knows the fixed compensation, why ask fDr more info on price except to be used
to cOl11pare. Surely this is violation at this pojnt and it is splitting hairs to say that this is not
bidding.
RCY:swp
CLAIRE A. DUCHEMIN, P,A.
ATTORNEY AT LAW
Agenda Item No. 10B
April 13, 2010
Page 7 of 29
1615 Village Square Blvd.. Suite 7
Tallaha.see, FL .12309
Telephone: 850.270.9870. Fax: 850.270.9873
[mail: cadul.heminr?llivc.com
January 19,2010
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Mr. Dwight E. Brock
Clerk of the Court
P.O. Box 413044
Naples, FL 34101
Re: Collier County procurement practices for professional engineers, architects,
surveyors and mappers, and landscape architects under section 287.055, Florida
Statutes
Dear Mr. Brock:
1 am writing on behalf of one of my clients. the Florida Surveying and Mapping Society. (FSMS),
the voluntary association for Florida professional surveyors and mappers. I am writing to you, as
the Collier County cOl11ptroller or chief financial ot1icer, to express FSMS's concerns about the
legality of the purchasing practices being implemented in your county for the procurement of
services from the professionals governed by section 287.055, Florida's Consultants Competitive
Negotiations Act (CCNA). The statute codifies a quality-based selection process for the named
professionals and prohibits the use of cost or price as a factor until the selection process is
completed, the 1110st qualified firl11s are ranked, and the parties are engaged in contract negotiations.
The statute also expressly prohibits public entities frol11 requiring professionals to bid against one
anG'thc..
According to our understanding of the "best value" (BV) approach your county is using, cost and
price will become factors during the process in which professionals. who are already under
continuing contracts, will be awarded proiects and work. We understand Collier County's chief
purchasing officer is "of the belief that p'rofessionals under fixed terl11 contracts are not under
"continuing contracts" and thus, the process of requiring the professionals to quote prices to
deterl11ine which ones will receive actual work is perfectly legal. This untenable position is in direct
contravention ofCCNA. To l11ake that poiut even more clearly and emphatically, the 2009 Florida
Legislature enacted SB2666, which. in part. addcd language to scction 287.055(2)(g), to emphasize
that "fixed term contracts" are "continuing contracts" and are subject to the requirel11ents of the
quality-based selection process adopted in CCl\:A
". .
. .
Agenda Item NO.1 OB
April 13, 2010
Page 8 of 29
Mr. Dwight E. Brock
January 19,2010
Page 2
The procurement policy also is not legal merely because the price considerations are occurring after
the selection phase of the process has concluded. The whole basis for quality-based selection is that
the most qualified firms are selected, ranked, and then contracts are negotiated. If the agency is
unable to reach an agreel11ent with the first ranked firm. then it moves to the second one. Putting all
professionals under contract and then requiring them to compete on the basis of price makes a
1110ckery of the system, emasculates the CCNA process, and cnsures that cOl11pensation or price
becomes a primary consideration. When the legislature enacted CCNA, it did not want
compensnti0n or prke to be 3 prir.::lry (:onside!'~:tir'n fl~\r profe::sio!1al ~;erV!r.t:s c:(~r.tr2cts. Tbis
overriding legislative intent has been reaffirmed each time the statute has been amended.
For example, several years ago, sOl11e governl11ent agencies began including in their sclection
criteria, during phase one of the selection process, such things as hourly rates and estimated numbers
of hours for particular projects. Although the agencies were not asking for price outright, they were
asking for inforl11ation frol11 which price easily could be calculated. The legislature made quite clcar
that this was not an acceptable practice when it amended the dcfinitions section of the statute to
elil11inate the use of any infonnation from which compcnsation could be calculated. See. section
287.055(2)(d).
It is inconceivable that Collier County would continue to circul11vent the CCNA proccss by placing
professionals under continuing contract and then, in essence, requiring them to bid against one
another. Doing indirectly what is not allowed directly is not permitted in the purchasing process and
has been condel11ned by the Florida courts. See e g.. City ()ILynn Haven v. Bay Cm/l1ty Council of
Registered Architecls, Inc., 528 So. 2d /244 (Fla. J" DCA I 988). We hope this matter will be
reconsidered by Collier County on a voluntary basis, particularly in view of the clear l11andate from
the FloridaLegislature. We also hope that you. as county officer with authority to oversee purchases,
will not allow the public's money to be spent on contracts procured through a flawed process that
is, as FSMS sees it, illegal.
Please feel free to contact me if you have any more questions.
Sincerely,
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Claire A. Duchemin
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Agenda Item No. 10B
April 13, 2010
Page 9 of 29
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January 2],2010
Mr. Dwight E. Brock
Clerk of the Circuit COUli, Collicr County
Collier County Courthouse
3301 Tamiami Trail East
Naples, Florida 34112
RE: Collier County's Work Ordcr Best Value Offer Procedure
Dear Mr. Brock:
Our firm represcnts the Florida Association of the American Institute of Architects (AlA
Florida). I address this Ictter to you as it is my understanding that one of your dutics is to aSSure
that County payments for professional serviecs are in accordance with Florida law. Since the
early 1970's, Florida's Consultants' Competitive Negotiation Act (CCNA) (Sec section 287.055,
Florida Statutcs) has provided the legal road map for public (state and local) proeurel11ent of
professional services -- specifically architects, engineers, landscape architects and survcyors.
This procurement system is a four-pari system including public announcement of the work,
qualifications-based selection of the professional firm, anns-Iength negotiations with the bcst
qualified fil111 and, ultil11ately, execution of a contract. This announcement, selection,
negotiation and contracting process, via section 287.055, Florida Statutes, is required to be
followed by Collier County for professional services contracts for County projects excecding
$250,000.00 in construction costs and for "continuing contracts" for professional services
contracts where a firm is hired to take on smaller projects (less than $1 million in construction
costs) during the term of the contract.
We have been l11ade aware of Collier County's Work Order Best Value Offer (BVO)
Procedure which was apparently implemented last year. This procedure is causing considerable
consternation al110ng tbe affected professionals in your community and AlA Florida has asked us
to detcrnline whether the BVO process violates the CCNA.
Even a cursory reading of the CCNA clearly indicates that public procurcment of the
spccified professional services involves selection of firms to perfornl the work based entirely
upon qualifications -- without consideration of prices or compensation. This precept has been
reinforced by the Legislature on more than one occasion since the adoption of tbe CCNA.
Specifically, section 287.055( 4)(h) was amended, effective July I, 1988, to read:
The Agency may requcst, accept, and cc)nsider proposals for the
compensation to be paid under the contract 9.!liY during
eOl11petitive negotiations under subsection (5). (Emphasis added.)
Agenda Item No. 10B
April 13, 2010
Page 10 of 29
Mr. Dwight E. Brock
Clerk of the Court, Collier County
January 21, 2010
Page -2-
Competitive negotiations (negotiation of the contract) occur only after the public body has
selected the best qualified linn. Further, section 287.055(2)(g), pertaining to continuing
contracts, was amended, effective July 1,2005, to read:
Firms providing professional services under continuing contracts
shall not be required to bid against one another.
The County's Bva Procedure directly violates section 287,055(4) by requiring fim1s to
submit a compensation proposal before the finn has selected the finn for the work. Only after
the provider is selected may the County "accept" or "consider" a price/compensation proposal _
and only from the selected firl11. Further, the County is violating section 287.055(2)(g) by
imposing a "bidding" procedure on the lim1s wHich hold continuing contracts.
We understand that there may be differences of opinion regarding the merits of the
CCNA methodology. But, until this law is changed, it is the selection/negotiation process that
must be followed by all counties. We would ask that you take all necessary steps to prevent
further violation of the law by the County. We would be more than happy to meet with you,
Counry officials or others in an effort to amicably resolve this matter.
SinCer? vf/Y / ..
S1 i1/fv\(r~~/
~ichael Huey D
JMH:eeh
cc: Mr. Rick Logan, AlA, Presidcnt
Ms. Vicki Long, Executive Vice President
Florida Association of the American
Institute of Architects
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February 22,2010
~~~Of~llier
CLERK OF THE CsIRCtJIT COURT
CULLlER COUNTYloUR1\r!OLJSE
J30] TAMIAMJ '~AJL E\ST
po. BOX 413044 \
NAPLES. FLORlD.'\\'1.'4 J 0 1-3044
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Page 11 of 29
Dwight E. Brock
Clerk of Courts
Clerk of Courts
Accountant
Auditor
Custodian of County Funds
Fred W. Coyle, Chairman
Collier County Board of County Coml11issioners
3301 E. Tamiami Trail
Naples, FL 341 l2
RECEIVED
FEe 2 2 2010
Dear Commissioncr Coylc:
[<oor6 01 County CommISSioners
This is to advise you that our office is unable to process pa}ments for services under the
County's Best Value Offer (BVO) Process. Our office is reviewing the legality of payments
under this process. ] have received three letters from attorneys representing professional
organizations, questioning the validity of thc County's BVO process. I have also reviewed
additional information which raiscs additional questions as to the validity of the BVO process.
Until we are able to validate the legality of the BVO process, we are unable to make
payments on agreements under this process. We had prcviously questioned this concept,
however, we relied on the County Attorney's issued opinion for legal sufficiency, and separately
issued legal letter to process payments in accordance with their opinion. Subsequently, based
upon the above correspondence and a further review of available information, we again must
question the validity of the BVO process, forcing us to cease payments until legality ean be
determined.
Any input or materials that you may think pertinent are appreciated. Mr. Carnell has
indicated there may be other counties that arc rwming similar progranls, i.e. SI. Johns or Palm
Beach; we would apprcciate any and all infonnation related to similar programs of which you are
aware. Time is of the essence to avoid further delays in vendor payments.
DEB/mab
Cc: Donna Fiala, Commissioner
Frank Halas, Commissioner
Tom Henning, Commissioner
Jim Colletta, Commissioner
JeffKlatzkow, County Attorney
Steve Carnell, Purchasing Director
Phone (239) 252-2646
Web site: www.collierclerk.com
fax (239) 252-2755
Email: collierclerk(ti)collierclerk.com
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Agenda Item No. 10B
April 13, 2010
Page 12 of 29
Office of the County Attorney
Deputy Cocm/.r Aaomey
ScOll R. Teach
A.uilJarot 0>w>V Attome,.
Colleen M. Greene
,lennifer D. White
Steven T. William,
Jeff E.. Wright
Robert N. 7.,,<1""1'
SectioD 0JieF.t
Heidi F. Ashlon-Cicko"
Jacqueline W. Huhbard"
OBoaro Cclilrted City, Count]'
and Loral CO'"~rnDlt'nl I...nr
Jeffrey A. Klm:kow
County Attorney
August 4, 2009
Via U.S. Mail aDd
e-mail address:cadiiv.Dendd.com
Claire A. Duchemin.. Esq.
Penson Duchemin & Davis, P.A.
2810 Remington Green Circle
Tallahassee, FL 32308
Re: Collier County CCNA Procurement Practices
Dear Ms. Duchemin;
I am writing as a follow-up to our recent conversation regarding the above matter. I have reviewed
your concerns regarding CoIlier County's Best Value Offer ("BVO") procedure as it relates to
acquiring professional services under Florida's Consultant's Competitive Negotiations Act
("CCNA"). Although I appreciate your bringing this issue to the county's attention, we believe the
county's BVO policy is in compliance with the CCNA. I will address your concerns and those
expressed by your client in its July 28, 2009, correspondence.
Contrary to your client's assertion, the county's policy does not use cost and price as factors during
the CCNA selection phase. As you know, the CCNA articulates three paramount requirements
from the procuring agency: (1) public announcement and qualifications, (2) competitive selection.
and (3) competitive negotiation(s). Consistent with Florida Statute ~ 287.055(4), the county does
not '"request, accept and consider proposals for the compensation to be paid under the contract"
during the competitive selection process. Price only becomes an issue for negotiation after the
firms have been selected. During the competitive negotiation phase a fair rate of compensation is
bargained upon and agreed to by the parties. After that stage of the process, there is no fluctuation
of the fixed rate of compensation.
Noticeably absent from the CCNA. is a set of criteria aiding an agency in insuring impartiality
when choosing among competitively selected consultants. Collier County has always strived for a
policy that achieves an equitable distribution of available projects to its consultants. The county's
330 I East Tamiami T...i)- Naples. Florida 34112-4902 - Phone (239) 252-8400 ~ Facsimile (239) 252-6300
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Agenda Item No. 10B
April 13, 2010
Page 13 of 29
Ms. Claire A. Duchemin, Esq.
August 4, 2009
Page Two
avo policy furthers that goal while at the same time advancing the public interest in obtaining the
most efficient means and method of obtaining services.
None of the professional firms selected by the county bid against each other during the BVO phase
because price has already been fixed during the competitive negotiation stage. The term "bid" is a
term of art whereby parties, through sealed bid, compete to receive an award to perform services
based solely upon price. Collier's BVO policy seeks proposals from pre-qualified selected
professionals to assist in the equitable distribution of individual projects based on a variety of
qualitative components. While price is referenced as one of those components. price is actually a
reference to the method and means required to complete the projects--because as noted above. the
rate of oompensation is already fixed.
Since the oounty implemented its BVO policy, there have been six (6) projects awarded and only
one (1) of those went to the finn who offered the lowest cost method to accomplish the project.
This early record attests to the fact that the county's BVO policy does not focus primarily on price
but rather seeks to frod the most qualified for the job among qualified firms already under contract
Under the county's BVO, the requirements of the CCNA are preserved while at the same time
promoting the public interest.
Prior to the oounty's implementation of its BVO policy, it conducted several workshops to
acclimate the industry and to receive feedback. The overwhelming response to the policy was
positive. Many saw this as an additional way to bring objectivity into the project assignment
process---rether than a single project manager promoting an often-used firm, other firms under
contract would have a greater chance for selection. Based upon the feedback the county received. it
may be that your client is out oftouch with the interests of its constituents.
If you wish to provide the county with legal authority that suggests that its BVO policy is
contrary to the CCNA statute, our office will be pleased to review it and determine whether any
further response is beneficial.
Sincerely,
~#I2M
Scott R. Teach
Deputy County Attorney
co: Jeffrey A. K1atzkow, County Attorney
Colleen M. Greene, Assistant County Attorney
Steve Carnell, Purchasing/General Services Director
04-PRC.o l 0491965
330 I East Tamiami Trail - Naples. Florida 34112-4902 - Phone (239) 252-8400 - Facsimile (239) 252-6300
Agenda Item No. 10B
April 13, 2010
Page 14 of 29
OFFICE OF THE COUNTY ATTORNEY
INTEROFFICE MEMORANDUM
TO:
Dwight E, Brock, Clerk of Court ~
Jeffrey A. KJatzkow, County Attorn
March 10,2010
FROM:
DATE:
RE:
Florida Consultant's Competitive Negotiations Act
lam writing as a follow-up to our recent conversations regarding the non-payment of
invoices to various consultants who were retained through Collier County's Best Value Offer
("BVO") procedure as it relates to acquiring professional services. As I indicated when we spoke,
it has been, and continues to be, the position of this Office that the County's BVO procedure is
lawful and that those vendors whose invoices are being withheld for payment must be
compensated.
Work orders have been issued, and services have been performed, on a number of County
projects in which the County utilized the BVO procedure. Payments which are now past due
nonnally would have been made some time ago in accordance with the Local Government
Prompt Payment Act. I recognize, however, that Section 129.09, Florida Statutes, forbids the
clerk acting as county auditor from signing illegal warrants and provides both personal and
criminal liability for violation of this provision, and that the clerk, as auditor, is required by law
to refuse to sign and deliver a county warrant for an unlawful expenditure, even though
approved by the board of county commissioners. Alachua County v. Powers, 351 So. 2d 32 (Fla.
1977). My understanding is that you are withholding payment on significant concerns raised by
the industry that the BVO procedure is unlawful as contrary to the CCNA.
It is my belief that the County's BVO procedure is lawful. It is my further belief that if you
disagree with this position, the fact that the methodology utilized in selecting the vendors may be
flawed does not make the payment for services performed pursuant to the work orders illegal.
The County's BVO Procedure is Lawful
Collier County utilizes a BVO procedure in selecting professional services firms currently
under continuing contracts (called fixed term contracts in the BVO procedure) for defined tasks.
The procedure is defIDed in Section VII (C) of the County's Purchasing Policy. The BVO
procedure provides in relevant part as follows:
"Prior to issuing a work order under a contract identified under Section VII.C.I-3,
the Director shall have the discretion to solicit project or task specific proposals
from one firm or from multiple firms under a fixed term contract. In such
instances, each solicitation shall be issued on a "best value" basis where
Agenda Item NO.1 OB
April 13, 2010
Page 15 of 29
qualifications and price are considered. Each solicitation shall include at
minimum a description of work to be performed and the criteria to be used to
evaluate each proposal. For all "best value" bascd solicitations, price shall not
exceed 50 percent of the total evaluation criteria.'
''Nothing in section 287.055, Florida Statutes, purports to regulate the terms ofa continuing
contract." Op. All'y Gen. Fla. 07-07, "The Consultant's Competitive Negotiation Act does not
provide criteria for negotiating a contract for professional services under a continuing contract and
a municipality may develop its own procedures for evaluating such a contract." Op. All'y Gen. Fla.
93-56.
The only prohibition under the CCNA (added in 2005) with respect to continuing contracts
is section 287.055(2)(g), which provides that "Firms providing professional services under
continuing contracts shall not bc required to bid against one another."
None of the professional firms selected by the County bid against each other during the
BVO phase because price has already been fixcd during thc competitive negotiation stagc. The
term "bid" is a term of art whereby parties, through sealed bid, compete to receive an award to
perform services based solely upon price. Collier's BVO procedure seeks proposals from pre-
qualified selected professionals to assist in the equitable distribhtion of individual projects based on
a variety of qualitative components. While price is referenced as one of those components, price is
actually a reference to the method and means required to complete the projccts- becausc as noted
above the rate of compensation is already fixed. The County's BVO policy does not focus
primarily on price but rather seeks to find the most qualified for the job among qualified firms
already under contract. Thus the requirements of the CCNA are preserved whilc at thc same time
promoting the public interest. This is also consistcnt with the longstanding principle in
287.055(4)(b), which expressly authorizes budget considerations as a factor in the selection
process. See City of Jacksonville v. Reynolds, Smith & Hills, 424 So. 2d 63 (Fla. 1511982)
Notwithstanding our belief that the BVO procedure is lawful, we contend that those
consultants that have already performed work pursuant to Board approved contracts are entitled
to payment under the theory of quantum meruit.
Ouantum Meruit and Work ComDlcted Under the BVO
Florida has long recognized the liability of a county on quantum meruit for the value of
work done and materials furnished to a county that receives benefits therefrom. See e.g.,
Harwell v. Hillsborough County, 111 Fla. 361, 149 So, 547 (1933); Moore v. Spanish River Land
Co., 118 Fla. 549,159 So. 673 (1935); Webb v. Hillsborough County, 128 Fla. 471,175 So. 874
(1937); Pinel/as County v. Guarantee Abslract & Title Co., 184 So.2d 670 (Fla. 21Ul DCA
1966)(citing, Marsh v. Bd Of Supervisors of Fulton County, 77 U.S. 676, 19 L. Ed. 1040 (1871),
which states, "The obligation to do justice rests upon all persons, natural and artificial, and if a
county obtained the money or property of others without authority, the law, independent of any
Statute, will compel restitution or compensation.").
Agenda Item No. 10B
April 13, 2010
Page 16 of 29
The County's BVO policy has been in operation for nearly a year and various consultants
have been previously paid without interruption up until recently. See Resolution No. 09-30
(Agenda Item 16EIO, February 10,2009). The instant situation does not address a matter where a
vendor is seeking reimbursement under a contract that is expressly prohibited by law. Because the
county requested, received and benefited from the work provided from those consultants whose
invoices are pending, the consultants also entitled to reimbursement under quantum meruit. The
fact that the methodology utilized in selecting the vendors may be flawed does not make the
payment for services performed pursuant to the work orders illegal.
Suspension of County BVO Procedure
We recognize that there is little point in our distributing work orders under the BVO
procedure until you are comfortable with making payment to the selected vendors. Accordingly,
the Purchasing Department has suspended the BVO procedure until the end of the Legislative
Session, as the issue may be legislatively decided. Following the end of Session, we will
reevaluate the matter, We will advise you beforehand should the County consider
recommencing this procedure.
Cc: Leo E. Ocbs, Jr., County Manager
Steve Carnell, Director, Purchasing/General Services
Agenda Item No. 10B
P.il'kl:(~010
Page 17 of 29
Advisory Legal Opinion - Consultants' Competitive Negotiation Act
Florida Attorney General
Advisory Legal Opinion
Number: AGO 2007-07
Date: January 26, 2007
Subject: Consultante' Competitive Negotiation Act
Mr. Georqe Trovato
Assi.tant City Attorney
City o~ Deltona
Office of the City Attorney
2345 Providence Boulevard
Oeltona, Floride 32725-1806
RZ: NONICIPALITIES-CONSULTANTS CONPETITIVI!: NEGO'l'IATION ACT-
PROFESSIONAL SERVICES-CONTRACTS-requirements ~or competitive
negotiation and for continuing contracts for professional .ervice..
s. 287.055, Fla. Stat.
Dear Mr. Trovato:
On behalf of the City of Oeltona, you have asked for my opinion on
.ubstantially the following question:
When a municipality contracts for pro~essional services pursuant to
section 287.055, Florida Statutes, is the transaction controlled by
the amount in section 287.055(2) (g), Florida Statutes, relating to
continuing contracts, or by .ection 287.055(3) (a) (1), Florida
Statutes, requiring public announcement and providing quali~ication
procedures for certain threshold amounts?
According to your letter, the City of Oeltona is in the process of
contracting with multiple professional services providers and would
like to establish a contractual hourly fee schedule agreement for
the.e professional services as various projects are identified
throughout the year. You have asked whether there is a conflict
bet_n two provi.ions of .ection 287.055, Florida Statute.,
subsection. (2) (g) and (3) (a) (1) .
The Consultants' Competitive Negotiation Act (CCNA), section 287.055,
Florida Statutes, sets forth requirements for the procurement and
contracting of professional architectural, engineering, landscape
architectural, or land .urveying servicesrl] by governmental
agencie..[2] Pursuant to the act, an agency, including a
municipality, must competitively select and negotiate with the most
qualified firm to provide these professional services for a project.
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Page 18 of 29
Advisol)' Legal Opinion - Consultants' Competitive Negotiation Act
[3] The statute also provides that" [n]othing in this act shall be
cons~ed to prohibit a continuing contract between a fi~ and an
agency." [4]
Section 287.055(3), Florida Statutes, operates to require an agency,
including a municipality, to follow certain procedures for announcing
occasions when professional services are required to be purchased and
for certifying fi~s or individuals desiring to provide such services
as qualified. The statute directs agencies to adopt administrative
procedures for the evaluation of professional services. [5] An agency
is required to publicly announce each occasion when professional
services are required to be purchased for a project covered by the
statute. [6]
Section 287.055(4), Florida Statutes, states that an agency must
evaluate firms that offer to provide professional services for a
proposed project and select no fewer than three fixma that are deemed
to be the IIIOst highly qualified to perfo~ the required services. [7]
The statute provides criteria for evaluating the qualifications of
these fixma and prohibits the consideration of compensation until
after the three most qualified firms are selected:
"In determining whether a fi~ is qualified, the agency sball
consider such factors as the ability of professional personnel;
whether a fi~ is a certified minority business enterprise; past
perfozmance; willingness to meet time and budqet requirements;
location; recent, current, and projected workloads of the firms; and
the volW118 of work previously awarded to each fi~ by the aqency,
with the object of effecting an equitable distribution of contracts
among qualified fi~s, provided such distribution does not violate
the principle of selection of the IIIOst highly qualified fixma. The
agency may request, accept, and consider proposals for the
compensation to be paid under the contract only during competitive
negotiations under subsection (5) ."[8]
The act requires that the agency negotiate a contract with the IIIOst
qualified fi~ at a compensation level determined to be fair,
cOlllp8titive and reasonable. To make this determination, "the agency
shall conduct a detailed analysis of the cost of the professional
services required in addition to considering their scope and
cCllllplexity." [9] If the agency is unable to negotiate a satisfactory
contract with the most qualified firm at a price that the agency
determines to be fair, competitive and reasonable, negotiations with
that firm are terminated and the agency must undertake negotiations
with the second most qualified firm. [10] This procedure is followed
until an agreement is r..ached. [11] As this office noted in Attorney
General's Opinion 88-42, a process that establishes a fee for
proposed professional services prior to the initiation of the other
steps required by section 287.055, Florida Statutes, would not cCllllply
with the requirements of the act, which mandates a project-by-project
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Agenda Item No. 108
Pll8d tif S!01 0
Page 19 of 29
Advisory Legal Opinion - Consultants' Competitive Negotiation Act
s.1.ction and n.gotiation process. [12]
A "continuinq contract" is defined in s.ction 287.055(2) (q), Florida
Statut.s, as:
"[A] contract for prof...ional s.rvic.. .nt.red into in accorc:lanc.
..i th &1.1 the procedur.s of this act b.t....n an ag.ncy and a fizm
..h.reby the fizm provides profes.ional services to the aqency for
project. in ..hich construction co.t. do not exceed $1 mi11ion, for
study activity ..hen the f.e for such professiona1 service do.. not
exceed $50,000, or for ..ork of a specified nature a. outlined in the
oontract required by the aqeney, with no time limitation .xcept that
the contract must provide a t.rmination clau... . . ."
Section 287.055(2) (g), Florida Statut.s, distinguishes: 1) proj.cts
in which construction costs do not exceed $1 mi11ion; 2) a study
activity ..hen the fe. for such a.rvice do.s not exc..d $50,000; or 3)
..ork of a ~cified nature as provided in the contract ..ith no time
limitation except for a termination c1ause. Th. word "or" is
gener&1.1y construed in the disjunctive ..hen it is us.d in a statute
or rule and normally indicates that alternatives ..er. intended. [13]
Based on these considerations, Attorney General Opinion ~6-52
concluded that section 287.055(2) (g), Florida Statutes, authoriz.s an
exemption from the competitive bidding and negotiation requirements
of the act for eith.r a study activity ..ith a fee of up to $25,000 or
for work of a specified nature with no time limitation. Eith.r of
these two activities may b. the subject of a continuinq contract, but
a narro.. reading of the exception would not permit the combination of
th.s. into one continuing contract. [14] Thus, if a municipa1ity
determin.s that it is appropriate to develop criteria for determininq
..hich fizm under continuing contract with the city ..ill be sel.cted
to perfozm a proj.ct, it may do so. [15] Bow.ver, the opinion sugqesta
that it may be advisab1e for a city to adopt an ordinance or develop
an administrative rule of procedure to ensure that these criteria are
applied unifo~y to a11 continuing contracts into ..hich the city
enters.
Nothinq in s.ction 287.055, Florida Statutes, purports to requlate
the te~ of a continuing contract. [16] The oontinuing contract
provision of s.ction 287.055, Florida Statut.s, repres.nts an
exception to the g.n.ral competitive bidding provisions of the act
and should be read narro..ly and utilized sparingly in order to avoid
an appearance of circumventing the requirements of the statute. [17]
Therefore, it is my opinion that the competitive negotiation prooess
and the process for continuinq contracts repr.sent separate and
distinct aspects of the Consultants' Competitive Negotiation Act. The
1imits contained in section 287.055(2) (g), F10rida Statutes, re1ate
to continuing contracts, &s defined therein, and the mon.tary 1imits
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Advisory Legal Opinion - Consultants' Competitive Negotiation Act
Agenda Item No. 10B
P.a,a141 OUO 1 0
Page 20 of 29
of .ection 287.055(3) (a) (1), relate .pecifically to competitive
negotiation. conducted pursuant to sub.ection (5). The.e .ub.ections
of the CCNA do not conflict; rather the cont.i.nuing contract
provision. con.titute an exception to the broader compet.i.tive
negotiation procedure. of the act.
Sincerely,
Bill McCollUIII
Attorney General
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[1] S.. .. 287.055 (2) (a), Fla. Stat., defining "[p] rofe..iOnal
..rvic....
[2] S.... 287.055(2) (b), Fla. Stat., which defines "[aJgency. a.
.the .tate, a state agency, a municipality, a political .ubdivision,
a .chool di.trict or a .chool board."
[3] Section 287.055(4) and (5), Fla. Stat.
[4] Section 287.055 (4) (d), Fla. Stat.
[5J s.. .. 287.055(2) (a) and (b), Fla. Stat., re.pectively defining
"[pJrofessional services" and "[a]gency."
[6] Section 287.055(3), Fla. Stat.
[7] S.. s. 287.055(4) (c), Fla. Stat., setting forth .xceptions to the
application of the statute.
[8] Section 287.055(4) (c)_
[9] Section 287.055(5) (a), Fla. Stat.
[10] Section 287.055(5) (b), Fla. Stat.
[llJ Section 287.055(5) (c), Fla. Stat.
[12] See ~so.p v. Pierce, 19 So. 2d 799, 805 (Fla. 1944) (.When the
Legislature has prescribed the mode, that mode must be observed..).
Cf., City of .racksonvi.1.1e v. Reyno.1ds, Smith & Hi.1.1s, Architects,
1CZJgin..ra & P.1a:zmers, Inc., 424 So. 2ci 63 (Fla. 1st DCA 1982), in
which the court recognizes that budget considerations may be a factor
in selecting the covered professional services.
[13] ~rkman v. HCClure, 498 So. 2d 892 (Fla. 1986). And see
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Advisol}' Legal Opinion - Consultants' Competitive Negotiation Act
Agenda Item No. 10B
PaselSl af;SJ 1 0
Page 21 of 29
:relopJuu. Soe1ety of 1!'10r1,a, Inc., v. State Board of 1!'wJeral
D1reetors and J:IIIba.Imers, 334 So. 2d 563, 564 (I!'la. 1976) (word "or"
when u..d in a statute is generally to be construed in the
disjunctive); K1rk.ey v. State, 433 So. 2d 1236, 1237 (I!'la. 1st DCA
1983) (qenerally, use of disjunctive in statute indicate.
al1:&rnatives and requires that such alternatives be treated
.eparately); L:Lnkou.s v. Department of Prof..s10md Regu.7.at10n, 417
So. 2d 802 (Fla. 5th DCA 1982) .
[14] ADd see Cp. Att'y Gen. Fla. 93-56 (1993), wherein it is
concluded that the CCNA does not provide criteria for negotiating a
contract for professional services under a continuing contract and a
municipality may develop it. own prooedures for evaluating such a
oontraot.
[15] Cf. Marr10tt Cozporat10D v. Metropolitan Dade County, 383 So. 2d
662, 663 (Fla. 3d DCA 1980), whioh reoognize. that even under
competitive bidding requir_nts contracts must be awarded as a
function of the reasonable exercise of power by municipal
goverZllll8ntal authorities as a IIUlter of public policy and fidelity to
the public trust; Will1am A. Serbus.e, Jr., Incozporat:ed v. Nortb
Broward H06.Pit:al D1st:riot:, 117 So. 2d 550 (Fla. 2d DCA 1960) (where
stat:u1:& requires that Publio body award oontraots to low bidd8r,
proper munioipal authorities have wide disoretion in determination of
lowest responsible bidder) .
[16] Se. Cps. Att'y Gen. Fla. 96-52 (1996) and 93-56 (1993) noting
that nothing in s. 287.055, Fla. Stat., regulates the teXlllS of a
oontinuing oontract and ooncluding that a municipality lIUly develop
criteria for determining whioh firm under continuing contract with
the city will be selected to perform a projeot.
[17] CE. C1t:y of Lynn Haven v. Bay County Counoil of Registered
Arch1teces, Inc., 528 So. 2d 1244, 1246 (Fla. 1st DCA 1988) in which
the court determined that the City's procedure. contravened the
legislative intent and undermined the effectiveness of the CCNA.
Speoifically, the City's bidding prooedure would not have effectuated
an equitable distribution of contracts among the most qualified firms
pursuant to seotion 287.055(4), Fla. Stat. And .ee Cp. Att'y Gen.
Fla. 93-56 (1993).
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Agenda Item No. 10B
P!flIltihl(lo1o
Page 22 of 29
Advisory Legal Opinion - Municipal procedure/contract for professional services
Florida Attorney General
Advisory Legal Opinion
Number: AGO 93.58
Date: August 23,1993
Subject: Municipal procedure/contract for professional services
"" "'_'--"_~'_-_.'_"'~"'-"-------'----~._--,._----.,.,.,--~-~-
Mr. Fred S. Di..elkoen
City A~~orney
City of Or.mond Beach
Po.~ Offioe Box 277
Or.mond Beach, Florida 32175-0277
:Etll:: CONSULTANTS' COMPETIT:IVlI: NEGOTIATION ACT-MtlNICIPALI'l'IES--
CONTINUING OONTRACTS-- municipal procedure for nego~ia~inq oontrac~
for profe..ional services. s. 287.055, F.S. (1992 Supp.)
Dear Mr. Di.selkoen:
You have a.ked for my opinion on the following ques~ion:
When a local government has entered into a number of continuing
contracts for professional engineering services in accordance with
the Consultants' Competitive Negotiation Act may the local government
s_k fee quotations from those fir.ms under contrac~, in the course of
selecting a firm ~o perform a given project?
In sum:
The Consultan~s'Compe~itive Nego~ia~ion Ac~ doe. no~ provide criteria
for negotiating a contract for profe.sional .ervice. under a
continuing contract and a municipality may develop i~s own prooedures
for evaluating such a contract.
According to your let~er, the City of Ormond Beach currently has four
"oon~inuing oontracts," a. defined in s. 287.055 (2) (9'), F. S. (1992
Supp.), for the provision of professional engineering .ervices. Each
contract ha. a general fee structure describing the hourly fee per
position, but each also provides that given project. will be
negotiated and defined in subsequent addenda. [1]
The Con.ultan~.' Competi~ive Negotiation Act, s. 287.055, F.S.(1992
Supp.), se~s forth requiremen~. for the procuramen~ and contracting
of profe.sional architectural, engineering, landscape architec~uraJ..
or land surveying services[2] by governmental agencies. [3] The
statute also provides that "[n]othing in this act shall be construed
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Advisory Legal Opinion - Municipal procedure/contract for professional services
Agenda Item NO.1 OB
p.rilaf,~010
Page 23 of 29
to prohibit a continuing contract betweena firm and an agency." [4] A
"continuing contract" i. defined in .. 287.055(2) (g), F.S. (1992
Supp.), as:
"[A] contract for profe.sional service. entered into in accordance
with all the procedures of this act betw.en an agency and a firm
whereby the firm provides profe.sional services to the agency for
projects in which construction costs do not exceed 500,000, for study
activi~ when the fee for such professional service does not exceed
25,000, or for work of a specified nature as outlined in the contract
required by the agency, with no time limitation except that the
contract shall provide a termination clause."
However, nothing in s. 287.055, F.S. (1992 Supp.) , purports to
regulate the terms of a continuing contract. Nor does the statute
addre.. instances where an agency seeks to impose additional criteria
on continuing contractors to insure impartiali~ when a choice must
be made among th...
You have specifically directed my attention to subsection (4) of s.
287.055, F.S. (1992 Supp.) , which provides that n[t]he agency may
request, accept, and consider proposals for the compensation to be
paid under the contract only during competitive negotiations . . .
."[5] You question whether this provision would preclude the City of
Ozmond Beach from considering compensation for projects falling
within the .cop. of its continuing contracts. However, the plain
language of the statute indicates that thes. requir_nts are to be
utilized in the competitiVe negotiation process. [6] In fact,
subsection (4) (d), states that n [n]othing in this act shall be
con. trued to prohibit a continuing contract between a firm and an
agency. n
Therefore, if a municipality determines that it is appropriate to
deve10p criteria for determining which firm under continuing contract
with the city will be selected to perform a project, it may do so. [7]
It may be advisable for the city to adopt an ordinance or develop an
administrative rule or procedure to insure that these criteria are
applied uniformly to all continuing contracts into which the city
enters.
Sincerely,
Robert A. Butterworth
Attorney General
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Advisory Legal Opinion - Municipal procedure/contract for professional services
Agenda Item No. 10B
P"93:ilW10
Page 24 of 29
i.- [1] Wh.tle th1.s off1.ce has not been asked to c~t on th1.s
arrangement Z would note that the cont1.nu1.ng contract provis1.on of s.
287.055, F.S. (1992 Supp.) , represents an exception to the general
competit1.ve bidding prov1.sions of the Act and should be read narrowly
and util1.zed spar1.ngly 1.12 order to avoid an appearance of
c.ircumvent1.ng the requirements of the statute. C:f., City o:f LJ'DD
Baven v. Bay County Council of Registered Architects, Inc., 528 So.2d
1244, 1246 (1 D.C.A. Fla., 1988) (in which the court determined that
the City's procedures contravened the legislative intent and
undermined the effectiveness of the CCNA. Specifically, the City's
bidding procedure would not effectuate an equitable distribution of
contracts among the most qualified firms pursuant to Section 287.055
(4), Florida Statutes.)
[2] Se., s. 287.055(2) (a), F.S. (1992 Supp.) , defining n[p]
rofessional services.n
[3] S_, s. 287.055(2) (b), F.S. (1992 Supp.) , which def1.nes "[a]
ganey" as "the state or a state ageney, municipality, or political
Subd1vis1.on, or a school district or school board."
[4] Section 287.055(4) (d), F.S. (1992 Supp.).
[5] Section 287.055(4) (b), F.S. (1992 Supp.).
[6] S.., Reading to s. 287.055(4), F.S. (1992 Supp.) , which indicates
that this subsection relates to competitive selection.
[7] C:f., Marriott Cozporation v. Metropo~itan Dade County, 383 So.2d
662 (3 D.C.A. Fla., 1980), which recognizes that even under
competitive bidding requirements contracts must be awarded as a
function of the reasonable exercise of power by municipal
gove~ntal authorities as a matter of public poliey and fidelity to
the public trust; William A. Berbuss., Jr., Incozporated v. North
Broward Hospital District, 117 So.2d 550 (2 D.C.A. Fla., 1960) (where
statute requires that public body award contracts to low bidder,
proper municipal author1.ties have wide discretion in determination of
lowest responsible bidder) .
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ee LexisNexise
Agenda Item No. 10B
April 13, 2010
Page 25 of 29
Page I
LEXSEE 424 SO. 2D 63
CITY OF JACKSONVILLE, I munlcipll corpondoa, AppeUlnt, v. REYNOLDS,
sMlm &, HILLS, ARCmTECTS, ENGINEERS &, PLANNERS,INC~ I
COrporoIlOD; GEE &, JENSON ENGINEERS, ARCffiTECTS " PLANNERS, INC.,
I corpondon; C. VARGAS & ASSOCIATES, LTD.; HARLAND
BARTHOLOMEW & ASSOCIA TES, INC~ I corporldon; Ind WAlTZ & FRYE
CONSULTING ENGINEERS, INC., I corporllloa, AppeIJen
District Court of App..1 of Flarldl, Fin! District
No. AL-l 7
"24 So. 2d 63; 1982 FIo. App. LEXIS 21768
SUBSEQUENT mSTORY: ["I] Rehesring Denied
January 7,1983.
PRIOR HISTORY: An Appeal from the Circuit Court
for Dovol County. Dorothy H. Pate, Judge.
COUNSEL: Dlwson A. McQuaig, Roger J. Waybright,
ODd Williom Lee Allen for Appellant
Wiltiom S. Bums, lr. of Marks, Gray, Conroy & Gibbs
for Appellees.
JUDGES: Before ROBERT SMITH, Chief ludge, and
MILLS and McCORD, 11.
OPINION BY: MILLS
OPINION
[.64] MILLS, 1.
The City of !acksonville appeals a Judgment
declaring portions of its Ordinance 130.301 et seq.,
Professional Services Contracts (ordinance), invalid as
inconsistent with. Section 287.055, Florida Statutes
(1981), the Consultants' Competitive Negotiations Act
December 10, 1981
(Act). We do not see any inconsis1cncy and _ene,
The appellees, all caginecring finns, wished to
negotiate for services in connection with a street
construction project. The City, as required by its
ordinance, requested a quotation of fees before beginning
negotiations. The engineers declined. citing the Act. All
were downgraded in the selection process because of this.
The engineers then sought reHcf in the circuit court,
leading to the order on appeal.
The Act creates 8 two-step process for 81encies or
political subdivisions to use ["'2] when hiring architects
and engineers. The first is competitive selection, the
second is competitive negotiation with those firms
selected in the first step. The ordinance largely track. the
Act with one difference which caused this litigation. The
ordinance requires firms to submit a quotation of fees.
unless prohibited by law, and requires that this be taken
into consideration in determining the three most qualified
finns before entering into competitive negotiations. The
Act makes no mention of fee quotation.
Without an express prohibition, or express
preemption of the subjcct by the legislature, we must
determine whether such use of fee quotations damages
the process e.tabli.bed by the Act. We conclude th&t it
Agenda Item No. 10B
April 13, 2010
Page 26 of 29
424 So. 2d 63, .64; 1982 Fla. App. LEXlS 21768, ..2
Page 2
doca nDL The Act contemplates the City considering
factors other than those listed in subsection
287.055(3Xc). Sec/ioll 287.055(3)(d). The Act makes
budget considerations a factor in selection, Section
287.055(4)(b).
We see no harm done if a City legislatively finds that
early consideration of fees is in its best interests. Like
other professionals, architects and engineers are going to
have to live with price competition.
Our disposition Dflhis issue mak.. [..3] discussion
orthe City's other issue unnecessary.
REVERSED.
ROBERT SMITH, Chief Iudge and McCORD, I.,
CONCUR.
......... ..... ...._._._._._..._--_.~... .
Agenda Item NO.1 OB '
April 13, 2010 '
Page 27 of 29
OFFICE OF THE COUNTY ATTORNEY
INTEROFFICE MEMORANDUM
TO:
Dwight E. Brock, Clerk of Court ~
Jeffrey A. Klatzkow, County Attorney T
March 25, 2010
mOM:
DATE:
0:
Florida Consultant's Competitive Negotiations Act
I am writing as a follow-up to your recent request that I review four cases that you had
forwarded to me and explain whether the cases are or are not applicable to the County's BVO
Policy. In response to your query:
L Anderson v. Fuller (1906) stands for the proposition that when a local government is
lawfully required to bid out a project, and award that project to the lowest bidder, a contract
made in violation of such lawful requirements is illegal and void, I believe that this case in
not applicable to the County's BVO Policy. First, as stated in my memo to you of March lOth,
a copy of which is attached, we believe that the process is entirely lawful. Second, the BVO
process conccms the CCNA and continuing contracts, this case does not. Third, unlike
Anderson v. Fuller, the vendors awarded the continuing contracts by Collier County were
selected in furtherance of all applicable laws. Fourth, the overriding principle of Anderson v.
Fuller is that public policy requires that public contracts should be awarded to the lowest
bidder. The BVO process considers cost as part of the determination, which is entirely
consistent with Florida public policy.
2. Armco Drainage v. County of PineUas (1962) stands for the same proposition as
Anderson v. Fuller. For the reasons set forth above, I do not believe that it is applicable to the
County's BVO Policy. The case does state that "a contractor may not recover even on
quantum meruit basis, if the contract was let without compliance with mandatory competitive
bidding requirements." This simply furthers the overriding Florida public policy that public
contracts be awarded to the lowest bidder. I do not believe that a Court would expand this to
deny a quantum meruit claim to a contractor who was selected as part of a process where that
County was considering the lowest costs as part of the selection process.
3. Mayes Printing Company v. Flowers (1963) is wholly inapplicable. The pertinent legal
requirement was that public contracts for materials in excess of $1,000 were to be publicly bid
and awarded to the lowest bidder. The vendor contracted to install furnishings with B County
Judge for $3,058. To avoid the bidding requirement, the vendor over time submitted separate
invoices, all under $1,000. When the Clerk rightfully refused to pay the final invoice, the
County then attempted to cure the problem by bidding out the project, rejecting all bids when
the original vendor was to the lowest bidder, and rebidding the project in such a manner as the
Agenda Item No. 10B
April 13, 2010
Page 28 of 29
originlil bidder would be the only bidder. It is my belief that this case stands for no
proposition pe.t:tinent to the BVO Policy.
4. Harris v. School Board of Duval (2006) is a predominantly a statute of frauds case,
involving bus oompanies seeking to be awarded contracts and benefits outside of written
agreements and the public bidding process. I see no relation to the County's BVO Policy.
As always, feel free to call me to discuss this.
'I
Agenda Item No. 10B
April 13, 2010
Page 29 of 29
Memorandum
To:
Dwight Brock, Clerk of Courts D
Leo E. Ochs, Jr., County Manage;:(,- ,
From:
Date:
April 6, 2010
Subject:
Request for attendance at April 13, 2010 BCC Meeting
At the April 13, 2010 regular meeting of the Board of County Commissioners, the
staff will present a status report regarding the procurement of professional
services from firms under fixed term contracts with Collier County. More
specifically, the Board has asked for an update on the payment status of invoices
submitted for work performed by various firms placed under contract utilizing the
County's Best Value Offer (BVO) process. The Board would very much
appreciate your attendance at this meeting during this item to participate in this
discussion.
Thank you for your consideration and anticipated cooperation in this matter.
CC: Board of County Commissioners
Jeff Klatzkow, County Attorney
Steve Carnell, Purchasing Director