Nader: ‘I Will Pursue Any And All’ Legal Rights After MDC Cancels 520 Biscayne

Gary Nader has released a statement after Miami Dade College cancelled an RFP for the 520 Biscayne property:

I provide you with this statement to set the record straight concerning Miami Dade College USP3#2015-20-10 for the development of a world-class cultural center at 520 Biscayne Boulevard. Throughout the course of the last few months, it has been documented that the College’s outside legal counsel, Bilzin Sumberg Baena Price & Axelrod, LLP, had private meetings at the home of Related President of International and Strategic Projects, Lissette Calderon, had interactions at a private yacht club and engaged in private undisclosed ex parte communications throughout the solicitation process.

When the collusive behavior was finally disclosed, albeit in part, I encouraged a full investigation into the nefarious conduct of the College counsel and the Related Group. Unfortunately, this encouragement, which would have led to a fair and transparent competitive process to ensure the college received the best value for this publicly owned property, turned into a vicious attack against the integrity of myself and my company.

I initiated this process through an unsolicited proposal. I wanted to deliver a world-class museum to the people of Miami Dade County. I wanted to donate my life’s art collection to the College for public and educational enjoyment. Through it all I assumed, incorrectly, I was participating in a fair and open process.

I was NOT the one who inappropriately met privately with College representatives to potentially garner bias and favoritism, like my competitors, in a simple effort to make a profit on publicly owned property. Despite these clearly established facts, Miami-Dade College Board of Trustee Chairman Armando J. Bucelo and Bilzin Sumberg attorney Albert E. Dotson J12, made outlandish and unfounded statements against me and my team at the Miami Dade College Board of Trustees special meeting on October 17, 2016. I hereby respond to these careless and baseless statements, which are yet another attempt to shield the illegal conduct of Related and Bilzin and tarnish my name.
The Value of My Offer Was More Than Double the Value of Related’s Offer
The proposals submitted by my team and Related could easily be distinguished by what each team offered to the College as consideration for the property. While Related offered little more than an empty shell, my proposal provided the College with over $140,000,000 of cash and other valuable consideration. I offered the College $20,000,000 in profit sharing while Related capped its potential profit sharing at $5,300,000. I was prepared to donate $60,000,000 of art from my collection, Related did not offer any art. I offered to make annual monetary contributions of $2,500,000 to subsidize the operation and maintenance deficit of the museum over the next fifty years, Related offered nothing to help operate or maintain the cultural center. These are just a few of the many differences between our respective contributions to the College. Yet, even with the disparity in our contributions, Related and I received equal scores from the evaluation committee on a category designed to rank proposers based on what they were providing the College in return for the land. It is unclear to me how our contributions, if evaluated fairly, could ever yield equal scores. I encourage you to review the chart attached to this statement and you be the judge.

Furthermore, throughout the solicitation process I requested that the Board of Trustees participate in the selection of a developer for this property. I asked the evaluation committee and their lawyers whether the Board could observe our negotiations or whether we could do presentations before the Board. Every request I made was denied. At one point we were told that it was against the law for us to do a presentation before the Board. Interestingly, just last month, three proposers on a separate solicitation had the opportunity to do what I had been requesting all along. Those proposers provided ten minute presentations to the Board and then one of them was chosen to begin negotiations. Why was it illegal for me to do a presentation before the Board, but just a few month later, it was ok? Although some Board members asked to be more involved in the process, why were they denied that opportunity during our solicitation? It is clear to me that the College administration and their attorneys did not want the Board to be involved in the negotiations and the decision-making process.
Cone of Silence Violations and ex parte Communications
On June 6, 2016, the findings of Roberto Martinez’s “investigation” were made public. Those findings detailed admissions of contact and communications between outside counsel to the College and Bilzin Sumberg attorney, Suzanne Amaducci-Adams, and Related President Lissette Calderon. The report was filled with examples of contact, communications, visits to private residences and private yacht clubs. However, without any further investigation or curative measures, the College decided these encounters would simply be explained away as nothing more than casual contact regarding their kids school activities. In fact, the College, through its counsel Bilzin Sumberg, repeatedly argued in numerous administrative and legal proceedings that the contact was nothing more than about bath towels and other harmless matters. Interestingly, yet unfortunately not surprising, they always failed to provide any evidence whatsoever that these wrongful contacts were solely, about their children, which could have easily been done through the production of emails and text messages that were admitted to exist. Instead the College has refused to produce these public records. Why? The answer seems clear — because they weren’t about bath towels or kids. They were about this project, a project that could deliver hundreds of millions of dollars to Related and significant profits for the consultants. Unfortunately those private objectives destroyed this process.

The College and Bilzin Sumberg have continued their pattern of only providing partial truths and conveniently omitting facts unfavorable to their carefully crafted story. My concern has always been with these private encounters where the content of their communication is impossible to discern. At the very least, these interactions should have prompted the College to call for an independent investigation. Instead, the College turned to Roberto Martinez, a former Miami Dade College Board of Trustee chairman, who conducted an “investigation” and found nothing troubling about the ex parte communications. It is clear his role was never to investigate the potential wrongdoing, but instead, to rubber stamp a conclusion that had already been reached by the College and Bilzin Sumberg. This is evident, at a minimum, by the simple fact that he never even interviewed Lissette Calderon. How can you investigate a matter without even speaking to the person that held private meetings and ex parte communications?

Bilzin Also Simultaneously Represented the College and Related
Late in the process it was shown that Related had twenty-two matters with Bilzin Sumberg. Related’s submittal did not identify which lawyers at Bilzin Sumberg were working on the matters it generically described. I had no idea that the two attorneys from Bilzin Sumberg would, on behalf of the College, be negotiating with Related and other proposers while those same two attomeys represented Related on numerous significant matters. The simultaneous representation, and lack of detailed disclosure, calls into question the integrity of the procurement process. This, as with many other actions taken by the College, could have easily been disclosed and remedied. Instead, the identity of those two attorneys were not made public until June of 2016.

On July 6, 2016, the day before the enhanced proposals were due to the College, attorney Albert E. Dotson Jr was at the Miami-Dade County Board of County Comrnissioner’s meeting representing Related CEO, Jorge M. Perez. The two of them spoke to the Board of County Commissioners regarding Related’s Liberty Square project, the largest public housing project in the county’s history. I later found out that Mr. Dotson had been representing Mr. Perez since October of 2015. Coincidently, Mr. Dotson was hired by Related less than three weeks before the Supplemental Information Package USP3#20l5-20-10 was released by the College. At the very least, Mr. Dotson and Mr. Perez were engaged in constant contact and communication during the entirety of the solicitation process. Why didn’t the College disclose that information publicly? Why was the public kept in the dark about the relationship between one of the proposers and the College’s outside counsel? Who benefited from the secrecy and why was the College willing to accommodate this? These and other important questions have gone unanswered by the public institution entrusted with ensuring that the competitive procurement process would be fair, transparent and free of favoritism and bias. Instead it has now become clear that bias and favoritism were present throughout the process and ultimately cost the public to lose on the opportunity to bring a world-class museum to Miami at no cost or expense to tax payers.
Amended Agreement Not to Sue

On June 16, 2016, the College requested that all proposers sign an Amended Agreement Not to Sue after partially disclosing all of the foregoing simultaneous representations, private meetings, encounters and communications between Bilzin and Related. Unlike the original agreement, the amended agreement required the proposers to not only waive certain legal rights but also administrative rights.

The amended agreement reads as follows:

“…agrees and covenants not to sue or file a bid protest against the College and/or its officials, officers, employees, directors, trustees, contractors, consultants, attorneys, and agents (hereinafter within this Amended Agreement also collectively referred to as the College), directly or indirectly, through third parties, or otherwise, for anything relating to, concerning or regarding the USP3; the selection of the developer for the Project; or any of the following enumerated grounds based on any action or inactions occurring before the date here0[:…..(iv) that the process is or has been unfair, biased or in any way improper as a result of any relationship between MDC’s outside counsel Bilzin Sumberg and any Offeror; ……Nothing contained in this Amended Agreement is, nor shall it be deemed, a waiver of the Signatory’s rights as to any fraud, misrepresentation, other illegal, or tortious acts committed by the College from the date hereof forward, or to enforce any rights conferred by the following enumerated statutes, laws, and codes enacted to protect the interests of the public based on any such action or inaction from the date hereof forward. . .This Amended Agreement makes clear that the Offerors are prohibited from filing a bid protest or suing the College for any and every action taken or inaction prior to the date hereof. The Signatory’s administrative bid protest rights that remain are only related to actions or inactions from the date hereof forward.”

The amended agreement attempted to bar the proposers from filing suit or even filing a bid protest relating to any fraud, misrepresentation, other illegal, or tortious acts that occurred, but were never disclosed retroactive to the date of signing the amended agreement. This document, perhaps more than any other, clearly identifies the concerted effort by the College and Bilzin Sumberg to wash away the wrongdoing and limit my due process rights The intent of this document is unambiguous: I must waive any rights, both legal and administrative, regarding any wrongdoing by the College or Bilzin Sumberg prior to June 16,2016.

The timing of this amended agreement is very telling. The agreement was presented to proposers immediately following a partial disclosure of nefarious conduct by Bilzin Sumberg and Related. Less than two weeks after it is made public that Ms. Amaducci-Adams admitted to visiting Ms. Calderon at her home a “handful of times” during the beginning of 2016, that they exchanged phone calls and text messages and met at a private yacht club. I am asked to sign away any legal or administrative rights afforded to me, and simply accept the previously undisclosed contact as innocent and unrelated to the solicitation. I could not accept such an inappropriate demand. I can’t imagine any business person would. However, I understand why Related did — they wanted to wash away their sins quickly and quietly.

It should be noted that in my unsolicited proposal submitted to the College on May 8, 2015, I was the one that introduced an agreement not to sue. It was never my intention to litigate with the College regarding this procurement process. Prior to filing any legal action, I repeatedly requested that the College cure the effects of the impropriety by removing Bilzin Sumberg from the process, disqualify Related and thereby providing some level of fairness and transparency in the procurement process. Each request was met with greater defiance and eventually the amended agreement was produced in order to simply wash away the wrongdoing. Unfortunately and unexplainably, the College has repeatedly condoned and overlooked the blatantly improper actions by its consultants and a proposer, displaying a disregard for the integrity of the public procurement process.
The Cancellation is Just an Excuse
During the October 17, 2016 Board meeting, the College cited market conditions as a reason to cancel the entire solicitation. This excuse is nothing more than an attempt to justify the indefensible. The truth is that, with our proposal, the College would not spend a dime on the property and all the risks associated with weakening market conditions were to be borne solely by my team. As an example, our proposal stated that if we did not meet our pre-sale commitment, the agreement would be canceled and the College would still be the owners of the property. We were not asking to land bank the property, as other proposers tried to do, we simply proposed to bear all the costs while we went through the pre-sale process. During every step, we did everything possible to insulate the College from any liability or expense attributed to market conditions. Though our research showed that we could easily meet our pre-sale projections given the type of product we were proposing, I made sure that the College would always be protected from negative changes in market conditions. There was no financial risk for the College in pursuing the project we proposed.
I Ask the Public: What Would You Do?

On May 8, 2015, I began this process by submitting an unsolicited proposal to the College. I have spent millions of dollars preparing a submittal package for the College that would have brought a world-class cultural facility to the doorstep of Miami Dade College. During this process, the aforementioned actions by the College, Related and Bilzin Sumberg, which clearly call into question the integrity of the procurement process, have been ignored and instead there has been an effort to discredit me for exercising my rights. All I and my team have done is abide by the rules of the process and provide the College with the very best submittal package possible. I was not engaged in private conversations with outside counsel for the College, I was not visiting with College consultants at my house, and yet, I have been cited by College officials as the reason for the cancellation of the project I brought to the College. It is extremely disheartening that a public institution like Miami Dade College would go to such length to protect a private law firm and a private developer. By not taking any curative actions, the College has in effect condoned every bad act perpetrated by these private parties.

At the Board of Trustees meeting on October 17, 2016, Mr. Bucelo disparaged my name and said I was the reason this solicitation was canceled. He repeatedly stated that I am litigious and has attempted to smear my name, all because I have tried to protect my rights. According to the College, Bilzin and Related did not taint the process due to their bad acts, instead it was me, by exercising the due process rights I am afforded, who destroyed the process. It is amazing that the wrongdoers in this situation do not even receive a reprimand, and instead, I am vilified.

I wonder what any of the individuals criticizing me would do if after spending millions of dollars in a procurement process, they were to find out that one of their competitors was meeting privately with the counsel for the body charged with choosing the winner in that process. By the Board’s actions, and their public criticism of mine, they would want the public to believe that they would merely accept the outcome and move on. That somehow the image of the College is more important than its actions. I cannot accept that response and I highly question the honesty of such comments. I will not be bullied into surrendering my legal rights. I will pursue any and all legal right afforded to me in order to rectify this situation.

As with any competitive situation, it is understood that victory is not always guaranteed. However, I, maybe naively so, did have an expectation that the process would be fair, transparent and free of the bias and favoritism that the College has so clearly displayed. I am deeply saddened by the outcome of this process. I had tremendous hope and enthusiasm for this project and never could have imagined that a public institution would behave in such a manner.