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<br /> what happened in Sweetwater which is really the leading case on these procurement issues
<br /> (he gave a copy to Ms. Dickens and Mr. Ottinot), in the City of Sweetwater, the request for
<br /> proposals was almost identical to theirs, and the highlighting of the case begins, "Instructions
<br /> to bidders were included in the limitation that informed bidders of the conditions for bidding,
<br /> paragraph 18 of the instructions to bidders established the basis for award of the contract and
<br /> provided, and here language is almost identical to ours, "The contract will be awarded to the
<br /> responsive responsible bidder submitting the lowest acceptable proposal.", and what
<br /> happened is that notwithstanding that language Mayor Garcia attempted to award a contract
<br /> not to the lowest responsive responsible bidder but to a bidder that he found to be lowest and
<br /> more responsive and more responsible after weighing qualifications, and this is made clear
<br /> when we go to the next page of the case, it says question, and this was a cross-examination
<br /> of Mayor Diaz, "On July 11 of this year did you as a strong mayor believe that you could
<br /> evaluate responsible bidders and determine which of those bidders you were going to award a
<br /> contract to", "yes sir", "and even though Solo was the low bidder, one of the responsive
<br /> bidders and one of the responsible bidders you believed at that time you could still award it to
<br /> another contractor." Answer: "yes, based on all the information.", and that is exactly what
<br /> happened here, and in this case the Circuit Court as well as the 3rd DCA affirming said that
<br /> you can't do that, and that is exactly what you cannot do as a municipality procuring a contract
<br /> that is to be awarded to the lowest and responsible bidder.
<br /> Ms. Dickens said that she sees a little bit of a distinction in the standards, in Sweetwater it
<br /> looks as if their Code specifically required that as long as the City found that the bidder was
<br /> responsive and responsible that they had no other choice but to go to the low bidder. When
<br /> she looks at the standard in Sunny Isles Beach it does not pivot the two against the one, in
<br /> Sunny Isles Beach, it appears to her that all three standards stand along side each other, so
<br /> that it has to be the lowest responsive and responsible, they are all the same, and that the
<br /> City can then consider that criteria together, unlike Sweetwater which says responsive,
<br /> responsible and then they have to have the lowest price, so how do you distinguish that.
<br /> Mr. De Armas responded because that is exactly what the court goes on to say, and if you go
<br /> to the back of the case, the forth page from the back, at the bottom there is a number 14
<br /> where the court gets to its opinion, and it says"The City of Sweetwater's actions in attempting
<br /> to award the contract to the most responsible bidder as to opposed to the lowest responsible
<br /> bidder,", exactly what we have here, an attempt to award a contract to a more responsible
<br /> bidder than Tran Construction, as opposed to the lowest responsible bidder demonstrates that
<br /> the attempted award was made without reason, or for a reason that is merely per textural, and
<br /> that is void of any legal basis, accordingly, the City's decision to award the contract to United
<br /> Engineering,", in our case Southeastern, "was arbitrary and capricious and based upon
<br /> criteria that were neither included in the bid documents or clearly defined in any manner
<br /> whatsoever.", and it goes on to number 15, "The City of Sweetwater's actions in attempting to
<br /> award the contract to United Engineering Corporation are not only arbitrary and capricious but
<br /> also are contrary to Florida's competitive bid statutes. The Code provides that the City of
<br /> Sweetwater City Council will accept the bidder of the lowest responsible bidder who will
<br /> perform the contract in a matter most beneficial. Since Solo Construction was a responsible
<br /> bidder...", and in this case, there was no question that Tran is a responsible bidder,
<br /> "submitted the lowest bid", again there is no question but that Tran submitted the lowest bid,
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