The Quik Park Argument

To the Editor: 

We read with interest recently in the SunPost [RE: A.C. on Politics, “The Challenge—Anchor Garage RFP Update,” published last week in Beach edition] that the procurement director for the City of Miami Beach believes that  "in his professional opinion, the city's parking department response to the Anchor RFP is not responsive and not in compliance."  Given the fact that state and local law requires this official to ensure "fair, open and competitive" processes in connection with public solicitations for goods and services, his statement to your newspaper is a significant and important revelation for the citizens of Miami Beach.  We applaud your newspaper for printing the story and applaud the Procurement Director for making this statement publicly.  For the reasons stated below, his statement was a bold and courageous action, and a necessary breath of fresh air in what has been a torturous public policy debate over parking contracts at City Hall.

By way of background, the city determined several months ago that it wanted its own parking department to compete for the management and operation of the Anchor Garage. It issued a so-called Request for Proposals (RFP) and asked public and private entities to make the city an offer.  In doing so, the city set forth certain requirements that the bidders had to meet in order to be considered for the job.  Several private companies, including Quik Park of Florida, the current manager of the garage, and the city's parking department submitted bids.  One of the requirements of the bid was that the bidders must comply with the city's Living Wage law when and if the bidder is selected.

After the bids were submitted, Quik Park was disqualified because its wage "projections" for employees were deemed by the city administration not to be in compliance with the Living Wage law because the projections of wages in its bid was too low for certain employees.  Quik Park disagreed with this finding and sent a letter of protest claiming that its bid was in compliance.  Notwithstanding the company's mistaken projections of wages, Quik Park argued that the Living Wage law requires its provisions to be followed "upon entering into a contract" with the City of Miami Beach.  Thus, when and if Quik Park were successful in the Anchor Garage competition, it would be, as a matter of law, required to meet the Living Wage law's provisions -- or else it couldn't enter into the contract.  Cities and vendors do not sign illegal contracts.  The company argued that since it did not state that it wouldn't comply with the law, the mere technicality of mistaken projections in its bid should not be the basis for its disqualification.

In addition to these arguments on its own behalf, Quik Park also argued in its letter of protest that if it was not in compliance with the Living Wage law, neither is the city Parking Department's bid in compliance.  Quik Park argued that as part of the department's bid, it proposed to use certain private subcontractors who were currently under contracts with the City for services such as parking attendants, security and landscaping.  Quik Park pointed out that those current contracts, such as the one the city has with a company called Standard/Apcoa for parking attendants and supervisors at other city garages, were NOT in compliance with the Living Wage law, and couldn't be brought into compliance without an official vote by the Mayor and City Commissioners authorizing an increase in the budgets of those current contracts to pay the higher wages required in the Anchor RFP.  Quik Park concluded, therefore, that the Parking Department's bid was void from the beginning because the department was effectively not authorized to make an official bid beyond the current wages being paid to the employees under those sub-contracts.

Indeed, the Director of the Parking Department's response to Quik Park's arguments agreed in a letter dated December 4, 2002 that the department's bid was NOT currently compliant with the Living Wage law.  He stated, however, that his bid "may" become compliant when he enters into a contract with the City because the City Commission could amend the current contracts with his sub contractor, Standard Apcoa, to authorize the sub contractor to pay living wages.  In other words, the Director was making the same argument that Quik Park made justifying its compliance with the Living Wage law -- that when and if the contract is awarded, the successful bidder will be compliant with the Living Wage law.  The difference, however, between the Director's argument and Quik Park's is that the Parking Department's bid can ONLY become compliant if and when the Commission officially amends the sub contractor's current contract to allow higher wages. 

Notwithstanding the Director's letter, Quik Park's arguments fell on deaf ears.  The company is still disqualified from competing for the Anchor Garage contract and the City Parking Department's bid remains qualified.  The City Attorney has yet to rule on the Parking Department's compliance with the Living Wage Law.  It should be noted, however, that the City Attorney recently did send a memorandum to the chairman of the committee evaluating the Anchor proposals, former City Manager Roger Carlton.  The City Attorney's memo was in response to Mr. Carlton's request to the City Manager to take a second look at the disqualifications of certain bidders.  Essentially, Mr. Carlton claimed, among other things, that the Living Wage law's provisions under the RFP were confusing and thus, in the interests of fairness, the Manager should allow all bidders, including Quik Park, to remain in the competition.  The City Attorney rejected that request stating that it "would not recommend allowing proposers an opportunity to clarify their proposals with regard to their payroll projections [because such] clarifications would essentially have the effect of amending ... their responses to be compliant with the Living wage requirements of the RFP."

This legal conclusion is surprising, however, because upon review of the Parking Department's payroll projections in its bid, the Department states that Standard Apcoa's new hourly rate for supervisors and attendants will increase "by 5% from the current rate."  As noted above, the current rate being paid by that sub contractor for those services at other City garages does not meet the Living Wage law's requirements and still would not meet such requirements with a 5% increase.  In other words, the Parking Department's bid needs "clarification" because that "5% increase" in wages does not correspond to other numerical projections in its bid.

On second thought, no one should be surprised by the city attorney's conclusions about clarifications because this whole RFP process has been replete with confusing actions on the part of the city administration.  That is why the procurement director's public revelation about the Parking Department's responsiveness to the RFP was so refreshing, and that is why your reporter is right on target when he suggests that City officials take a closer look at this process.  Mayor Dermer tried at a recent public meeting to discuss this process but was quickly rebuffed by his colleagues on the commission.  The other six commissioners stated that any such discussion was not "timely."  When will it be timely to look into the torturous path that this process has been on?   The city manager's recent refusal to take Mr. Carlton's suggestion and send the whole matter to the Florida Ethics Commission will not make the problem disappear.
The time is now for the commission to follow the mayor's advice and review fully the Anchor Garage policy debate in a full and open public hearing to determine the fairness and openness of this debate.  The issues are numerous and deserve to be aired.  For example, more than a year ago, the commission directed the administration to issue an RFP to the private sector to manage and operate all of its garages.  The Mayor and Commission at that time wanted proposals from the private sector to determine whether Beach taxpayers could save money by using private sector experts in the management and operation of public garages.  One private sector company, Quik Park, even guaranteed in writing at the time that it would guarantee a 30% saving.  No general RFP has yet to be issued by the administration.  On the contrary, more than a year later, the only RFP on the street is for the management of the Anchor Garage - - i.e., the only one that had already been privatized and the one managed by Quik Park.

Another issue for the commission to look at is prior to the issuance of the Anchor Garage RFP, city administrators stated on the record numerous times that they preferred terminating the Quik Park contract and bringing it in house to the parking department.  But rather than simply recommending that course of action to the commission, the administration chose the managed competition route pitting the city against private sector operators.  When Quik Park raised a concern about the fairness of having the city manager pick the evaluation committee members in the process, given his numerous comments in support of the parking department, the concerns were essentially dismissed out of hand.  The city manager stated that of course he could be fair.
When Quik Park further complained that the city manager appeared to be stacking the deck against private bidders by naming city employees to the evaluation committee (who have longstanding professional and personal relationships with their colleagues in the Parking Department), these complaints were ignored.  It wasn't until Mr. Carlton, the Chairman of the Evaluation Committee, raised similar concerns that those employees were removed from the committee.
When Quik Park complained that the Parking Department's bid answered falsely an RFP question whether any sub-consultant had ever been terminated from a similar public parking contract and attached 19 newspaper articles attesting to the terminations, incredibly the Manager asked one of the bidders in this competition (the Parking Department) to respond to this complaint.   The Parking Department stated that Quik Park's claims were without merit, and attached an analysis from the sub-consultant (Standard Apcoa) denying the termination allegation.  Incredibly, no one thought simply to go to the public entities involved and just ask them whether the sub-contractor had ever been terminated.  When Quik Park sent the city manager a copy of a letter from the City of Fort Wayne, Indiana regarding "Notice of Termination of [Standard Apcoa] Management Agreement -- Fort Wayne Civic Center Parking Garage," the letter was ignored.
There is more, but rather than continue to discuss them here, at least the lawyers on the commission should ask themselves what they would do if their clients were involved in such an apparent debacle of public policy administration.  There are in fact questions about the competitive neutrality of a competition where one of the competitors with his own horse in the race could also be an impartial decision maker and an impartial judge of who should decide the outcome of this competition.  Now is the time to obtain these answers. 

Sylvester Lukis
Fred Balsera 

[Editor’s Note:  Lukis and Balsera are Quik Park’s registered lobbyists in the Anchor Garage matter.]