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<br /> numerous cases that do not apply in this matter, has misstated facts, this case is not
<br /> complicated, it is a very simple case. At issues where the City has authority to accept a bid
<br /> which is in the best interest of the City. The protester claims that the City does not have
<br /> authority, in fact, the protester claims that the City is required to award a bid to a bidder who
<br /> submitted the lowest price. The protester is wrong facturally, and wrong in respect to the law.
<br /> The City Code does not require that the City award a bid to the bidder with the lowest bid. He
<br /> emphasized that price is only a factor in awarding a bid under the City Code or the law, under
<br /> the City Code the price is a factor but not the determinative factor, in fact, the City Manager
<br /> looks at a laundry list of factors in awarding a bid, these factors include the contractor's
<br /> capacity, ability to do the job in accordance with the City's desire. In this case, the City
<br /> Manager in his professional judgment, over 25 years of experience as al City Manager or
<br /> Assistant City Manager, did not believe that the protester had the capacity or the skill to
<br /> perform the job in accordance with the desires of the City. Similarly, in the bid documents,
<br /> price is only a factor, not the determinative factor, in fact, in the instructions to bidders, the
<br /> contractors were put on notice, contrary to what the protester's counsel indicated today, the
<br /> City has a discretion to award the bid which is in the best interest of the City or to award the
<br /> bid to the lowest responsible bidder, not the lowest bidder, the lowest responsible bidder. In
<br /> looking at the factors that were most important to the City, was the fact that the contractor can
<br /> perform at least 40% of the work with its own forces of workers. That issuelwas disclosed in
<br /> the bid docs, instructions were given, we even had a pre-bid conference, which is in our
<br /> Memo of Law, the minutes of the pre-bid conference is attached, that was an issue that all the
<br /> parties, all the bidders were informed about. The protester provide us with the information
<br /> that they can only perform 44% of the work with its own forces, while the contract recipient
<br /> provided us with information that they could perform 70% of the work with its own forces. The
<br /> contract recipient's price was almost identical to the protester's with a difference of almost
<br /> $100,000. Basically the City made a selection in its best interest, we got more bang for our
<br /> buck, simply to recap, the City complied with its Code in awarding this bid, the City complied
<br /> with the bid instructions in awarding this bid, the remaining question is whether the City
<br /> complied with the law, that is a simple answer, the answer is yes, the law does not require the
<br /> City to award a bid to the lowest dollars and cents bids, indeed, the court willluphold the City's
<br /> decision unless the City's decision is arbitrary and capricious, there is no evidence to suggest
<br /> that the City's decision is arbitrary or capricious. The protester has not presented any
<br /> evidence showing that the City Manager or the City Commission was arbitrary and capricious,
<br /> in fact, the protester merely argued in his letter that the City should explain to them the reason
<br /> why we did not select them. Today he has explained those reasons.
<br /> Ms. Dickens asked City Attorney Ottinot if he has had a chance to review the City of
<br /> Sweetwater case, and he said he just got a copy today but he is familiar with it having been a
<br /> municipal attorney for almost nine (9) years. Ms. Dickens asked him how he distinguishes
<br /> this situation from that situation where the court determined that the City had1 to award the bid
<br /> to the lowest acceptable proposal. City Attorney Ottinot said that he is in agreement,the case
<br /> highlights the fact that the City qualified several bidders and after qualification the requirement
<br /> for them to award the bid to the lowest bidder, our Code, which in fact he was responsible for
<br /> drafting, has never been construed in that fashion, the most responsible bidder. It is pretty
<br /> academic law when it comes to construction of municipal codes, the courtlwill always give
<br /> deference to the construction of the municipality. He knows that the protester attorney,
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