Miami-Dade P3 Taskforce Recommendation – Adjust the Cone of Silence

On February 3, 2015, Resolution No. R-150-15 was passed and adopted, creating the Miami-Dade County Public Private Partnership Taskforce. The powers and duties of the P3 Taskforce are: (1) to make recommendations to the Board of County Commissioners in regards to Miami-Dade County’s ordinances, resolutions, regulations, implementing orders, and administrative practices that will advance public private partnerships; and (2) to identify potential projects that address critical infrastructure needs in Miami-Dade County that are suitable for a public private partnership arrangement.

The P3 Taskforce is currently working on a P3 legislation draft for the County, which develops a P3 competitive structure. Any entity seeking to respond to a P3 bid issuance would have to comply with the procedures and requirements as recommended by the Taskforce.

In developing the P3 legislation, the Taskforce is unable to adopt the State of Florida’s P3 procurement model because the State of Florida’s P3 projects are mostly transportation focused, and the County anticipates diverse projects to be undertaken.  Moreover, the Taskforce cannot look to the County legislation for guidance, as the County does not currently have legislation that specifically addresses P3 procurement. As such, the Taskforce will consider elements such as County staff feedback, recommendations from the public, and P3 models from other agencies in formulating its recommendations and findings.

Since the Taskforce seeks to draft the most comprehensive recommendations possible, a number of County ordinances will be affected. Specifically, County Code Section 2-8.1, which governs the procurement of goods and services, would be amended.


The “Cone of Silence” regulation, which restricts communications during the solicitation process, is one area that warrants modification.

The “Cone,” as it is known, prohibits certain oral communications regarding a particular RFP, RFQ, or bid, from the issuance of the solicitation until staff makes an official recommendation.  Although written communications, copied to the Clerk of the Board, are permitted, in-depth negotiations between staff and qualified firms are not.

Simply put, traditional procurements for goods and services are a two-step process.  First, bidders submit written proposals in response to a detailed scope and second, at a later date, bidders give oral presentations on their proposals.  In these scenarios, the “Cone” is an essential restraint to prevent unnecessary and excessive influence by competitors allowing for an “apples to apples” comparison between bidders.

Alternatively, P3 proposals are extremely complex and differ significantly from proposer to proposer, even though their aim is to provide for the same need.  Respondents will submit vastly different proposals, which include infrastructure, operations, technology, and financing components for the same solution.  Therefore, P3 proposals require an “apples to oranges” comparison because the proposals proffered cannot be practically compared even though they provide the same solution.

As such, the “Cone” hinders there being an in-depth dialogue and comparison between P3 bidders’ proposals.  The only real interchange that takes place during the “Cone” occurs at oral presentations.  Due to the FL Sunshine Law, those presentations occur in a public setting with competing proposers in attendance, waiting to make their presentations, and taking notes for future reference.

With respect to P3s, the “Cone” should be modified to allow for a final third step: closed discussions and negotiations should be added between the selection committee and individual proposers during the evaluation process.  Additionally, modifications should be made to permit the submission of confidential information to be considered by a selection committee at that time.

Implementing such measures will protect the interests of both the County and the proposers, ensuring that the public gets the best deal.

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Luis is an experienced procurement lawyer and Miami lobbyist serving elected officials, businesses, international clients, and trade associations. He regularly appears before local and state government in order to advance complex objectives for clients against competing interests. He has weathered various competitive processes in Florida including Home Rule Charter Amendments, Recalls, Local, State and Federal campaigns.