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SHIFT CONSTRUCTION . DEVELOPMENT took further steps in evaluating the Contractor's bid by calling the Contractor's references and visiting several of the Contractor's listed job sites. If the Contractor's bid was non-responsive then the City should have never taken the steps of both making additional inquiries with Contractor, requesting that Contractor provide additional information, inquiring with Contractor's references and visiting the Contractor's job sites. By taking such steps the City affirmatively treated the Contractor's bid as being responsive and it waived the requirement for both a Project Schedule and Financial Statements. The City also acted in an arbitrary and capricious manner in the manner it evaluated whether or not the bid was responsive. Section 3.5 of the Invitation to Bid required that a bidder list references of similar type of projects. Rather than declaring the Contractor's bid non-responsive for failure to include references the City requested that Contractor supplement the submittal by sending the City references. Even though the City requested that the Contractor supplement the bid by providing references at no time did the City ask Contractor to provide a Project Schedule or Financial Statements.' The City could have easily taken the same action with regard to the Project Schedule' and Financial Statement requirement but it instead chose to remain silent on these items and it treated the Contractor's bid as being responsive. Asking and allowing the Contractor to supplement some information (references) while not even mentioning or allowing a supplement for other information (Project Schedule and Financial Statements) constitutes arbitrary and capricious action and voids the City's declaration of non -responsiveness or the award of the bid to another contractor. Conclusion The City waived the requirement that Contractor provide Financial Statements and a Project Schedule and thus the Contractor's bid was responsive to the Invitation to Bid. Contractor was the lowest bidder (and $830,000.00+ lower than City's Recommended Bidder) and showed that it had the requisite experience and financial resources to complete the job in a timely manner. As a result, Contractor should have been awarded the bid and City should award the bid for the Project to Contractor. Alternatively, due to the irregularities and arbitrary and capricious actions of the City Staff in deciding what was a responsive bid, allowing supplemental information to be provided on some criteria but not others, and in evaluating the bid responses the City should declare all bids void and re -bid the project. I look forward to hearing from you and the date of the formal hearing before the Special Master. If you have any questions or require any additional information please feel free to contact me. Sincer Jus S ff, President Shiff Construction & Development, Inc. ' It should be noted that Contractor, as required, did provide both a Bid Bond (and upon request a Performance Bond) which shows that it had the adequate financial resources to complete this project. Z The Invitation to Bid specifies the time to complete the work in Section 2.7, thereby making the project schedule superfluous. In addition the Contractor responded to question 11 in the forms required to be submitted which asked the Contractor how it intended to stay on schedule. construction management I development I restoration I design + build I owner representation