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Mr. De Armas addressed some facts: first of all nobody is in dispute, nobody is arguing that
<br /> Tran is not the lowest responsible total based bidder, in point of fact, Tran Construction is the
<br /> lowest bidder by a little bit more than $100,000.00 close to $107,000.00 and that is not
<br /> disputed. The budget for this project is $3.7 Million Dollars, so Tran Construction base bid of
<br /> $3,532,842.00 comes in within the budget and does not exceed the funds available. In
<br /> addressing the City Code, he said there are two provisions that are salient: Section 62-7
<br /> regarding procurement when the bid is lower than $25,000.00, we have 'la bid of less than
<br /> $25,000.00, the contract is awarded to the lowest most responsive responsible bidder.
<br /> Section 62-7 (A)(4) "Bids shall be awarded to the lowest, most responsive, responsible bidder,
<br /> as determined by the City Commission and/or the City Manager as the caselmay be....". The
<br /> next Section 62-7(B) for purchases over $25,000, and it is a completely different standard,
<br /> says "Purchases over $25,000. Bids for purchases over $25,000 shall be awarded in the
<br /> same manner as purchases as set forth in Section 62-6...", not the preceding (A)62-7,just to
<br /> be clear on that, except these additional requirements shall pertain, and the salient provision
<br /> is paragraph 2 here, and it says: (2) Invitation for bids. An invitation for bids (including RFPs
<br /> [which is what we have here] and RFQs) shall be issued and shall include specifications and
<br /> all contractual terms and conditions applicable to the procurement, and theIRFP here clearly
<br /> says that it is the intent of the owner to award a contract to the lowest responsible not to the
<br /> lowest most responsive as is the case for contracts under$25,000. In Section 62.8 Award., it
<br /> reads almost exactly the same: All contracts shall be awarded by the City Manager, as stated
<br /> above, to the lowest responsible and responsive bidder, and again, we don't have the
<br /> language lowest, most responsible and responsive bidder, and there is a contradict distinction
<br /> which is very important and we are going to get into it.
<br /> I
<br /> Mr. De Armas said that the first proposition he wants to cite to the court is the proposition that
<br /> when legislators choose words, they do it for a purpose, and when legislators choose to use
<br /> separate and different distinct language in two provisions that follow each other, we must
<br /> assume that they did so because they want to contrast and differentia, aniilhe cites the court
<br /> to St. George Island Limited vs. Rund, (he gave a copy to Ms. Dickens and to Mr. Ottinot), the
<br /> principal of construction that we are citing to and it says, "Where the legislature uses exact
<br /> words in different statutory provisions the court may assume that they werelintended to mean
<br /> the same thing," it is not what they did here, it goes on, "moreover the presence have
<br /> determined one portion of a statute and its absence from another argues against reading it as
<br /> implied by the section from which it is omitted.", so clearly, the intent of the City of Sunny
<br /> Isles Beach in saying under$25,000 its lowest most responsive bid as opposed to when it is
<br /> over$25,000 when we are awarding to the lowest responsible bidder is to make a distinction.
<br /> What do these terms mean? We had these terms addressed in the City of Sweetwater, and
<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 /> Summary Minutes: Bid Protest 07-10-02 030308 Page 2 of 11
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