From Christy L. Goddeau, of the Torcivia Law Firm, regarding the "Cone of Silence" provision...

Mayor and Commissioners:

Based on some of the conversation last night, I wanted to clarify the Procurement Code’s Cone of Silence (section 2-112(k) of the Code of Ordinances). The complete provision is set forth below. If the City Commission is the ultimate decision-maker for a particular procurement (which is typically 100% of the time for competitive solicitations issued by the City), the provision applies to each Commissioner (including the Mayor).

The Cone of Silence is from the County’s lobbyist ordinance.  It is intended to prevent lobbying once a bid, proposal, reply or other response is due. It prohibits oral communications between a respondent (its agents) and a Commissioner (and others in the procurement making-process) regarding a particular solicitation. All competitive solicitations issued by the City include a summary of the provision and a citation to section 2-112(k). 

The Cone of Silence should not be confused with the current private-meeting process of the ITN Evaluation Committee.  The Evaluation Committee is holding private meetings for the purpose of developing its negotiation strategies and has held one private meeting with each of the Respondents to discuss their replies. Those private meetings are authorized by an exception to the Sunshine Law (and Public Records law).  

If you have any questions, please do not hesitate to contact Glen or me. 

(k)  Cone of silence.

(1) "Cone of silence" means a prohibition on any communication, except for written correspondence, regarding a particular IFB, RFP, ITN or any other competitive selection procedure utilized by the city between:

a.   Any entity or person or entity's or person's representative seeking an award from any competitive selection procedure, and

b.   Any city commissioner or commissioner's staff; any member of the applicable selection committee; the city manager; or, any city employee authorized to act on behalf of the city to award or recommend award of a particular procurement.

(2) For the purposes of this section, an entity's or person's representative shall include but not be limited to the entity's or person's employee, partner, officer, director, consultant, lobbyist, or any actual or potential subcontractor or consultant of the entity or person.

(3) The cone of silence shall be in effect as of the deadline to submit the proposal, bid, or other requested response to a competitive selection procedure. The cone of silence applies to any entity or person or any entity's or person's representative who responds to a particular IFB, RFP, ITN or any other competitive selection procedure utilized by the city, and shall remain in effect until such response is either rejected by the city as applicable or withdrawn by the entity or person or entity's or person's representative. The procurement division shall include in all IFBs, RFPs, ITNs or any other competitive selection procedure notice of the cone of silence and refer to this subsection.

(4) The provisions of this subsection shall not apply to oral communications at any public proceeding, including pre-bid conferences, presentations before selection committees, authorized contract negotiations, presentations made to the city commission, and procurement protests. Further, the cone of silence shall not apply to contract negotiations between any employee and the intended awardee; any dispute resolution process following the filing of a protest between the entity or person filing the protest and any employee; or, any written correspondence at any time with any employee, city commissioner, the city manager or selection committee member unless specifically prohibited by the applicable competitive selection procedure.

(5) The cone of silence shall not apply to any procurement anticipated to have a total value of twenty-five thousand dollars ($25,000.00) or less.

(6) The cone of silence shall terminate at the time the city commission, procurement division or city manager as applicable, awards or approves a contract, rejects all bids, proposals or other requested responses, or otherwise takes action which ends the procurement procedure.

(7) Any contract entered into in violation of the cone of silence provisions in this section shall render the transaction voidable.

(Ord. No. 2013-13, § 2, 1-15-13)

Christy L. Goddeau, Esquire

Board Certified City County and Local

Government Attorney

TORCIVIA, DONLON,

GODDEAU & ANSAY, P.A.