Miami commission on right track: exit all bidding disputes
Written by Michael Lewis on August 2, 2016
Getting bid protests out of the Miami City Commission’s hair and into the hands of a hearing officer or administrative judge is a logical move that commissioners began with a first vote. They should make it final in September.
That change should then become the model for every Florida government. It would save commission time and assure all that decisions are impartial and based on equity, not on any political bias, real or imagined.
In fact, local governments should take every possible step to distance themselves from contract awards and put the decisions in the hands of city or county managers or their procurement teams.
Congress doesn’t vote on bid selections, nor does the state legislature. Local elected officials who get involved in naming bid winners run the risk of being accused or favoritism or worse, though they might in fact be blameless.
Elected officials may vote to seek bids, but staff professionals ought to pick the winners and administrative judges, not commissioners, ought to resolve protests, which are frequent.
How frequent? Well, handling government bid protests is a legal specialty, with firms large and small having experts to advise losing bidders about challenging government decisions.
Judges or hearing officers are much better equipped to resolve such protests than are the vast majority of elected officials. Big money is involved; impartial professional judges should be as well.
That’s not to say that City of Miami procurement officials are error-prone or lack standards by which to decide on bids, requests for proposals, requests for qualifications, requests for letters of interest and the like.
In fact, the city’s procurement procedures are professional and thorough. They start with seven criteria upon which the city bases purchasing, including law, codes of ethics, getting what’s needed on time at the right price, stimulating competition to keep prices low, treating all vendors fairly and excluding all personal benefits.
If staff carefully follows the city’s own rules, taxpayers will be well served – as will vendors.
All of these are procedures that elected officials should leave to staff professionals, not tinker with – and that includes any protests. As Commissioner Francis Suarez rightly implied in proposing the change, leave protests to an impartial administrative judge who doesn’t have to run for re-election or raise campaign funds or please any of the competitors for a bid.
A commissioner who doesn’t get involved can’t be accused of favoritism, and can instead devote the time to policy that can benefit taxpayers.
Mr. Suarez put forth his legislation as the commission was being forced to decide how to handle a request for proposals for marinas on city-owned Virginia Key property. Losing teams had protested the selection, and commissioners in hours of debate had to find a resolution, which was to toss everything out and start over.
Look to Florida’s state government for a way to handle such protests. There, an administrative law judge handles all aspects of bid protests and makes decisions.
At the state level, a notice of protest challenging a bid specification must come within 72 hours of a decision, with 10 more days to file a formal written protest. The state agency involved in the bidding then gets a week to resolve the protest by mutual agreement. If that fails, an administrative law judge gets the case. It never goes to elected officials.
Miami-Dade County has more complex procedures, with protests potentially winding up on agendas for commission votes. The county would be smart to follow the lead of Mr. Suarez and let administrative judges, not commissioners, make these decisions – though that would wipe out income for lobbyists and lawyers who for decades have made good livings dealing with Miami-Dade County bid protests.
Again, county commissioners shouldn’t be in the business of picking contract winners.
It might be too much to hope that the move by Mr. Suarez to slide commissioners out of the business of judging bidding disputes would be followed by cleaning up rules by eliminating a 10% bidding margin in favor of locally headquartered firms. Such preferences sound so good for helping local business, but research shows that they wind up costing taxpayers far more in the long run.
Dumping local preferences, which are an anathema to procurement professionals, should come next. Meanwhile, kudos to Mr. Suarez and the entire city commission for recognizing that they should not be the judge and jury in bid protests – and getting themselves out of the line of fire.