|
what, you have an obligation to tell the bidder the rules of the game, and if they went under
<br /> the rules of the game you would have to award them the bid, you can't come in after the fact
<br /> and say you met the condition of 40% but what we really wanted was a bidder that had more
<br /> work in-house. He said Tran is ready to testify, and he proffered their testimony, they could
<br /> have done 70%, 80% in-house work, if that were the condition, if they knew that was the
<br /> criteria, they would have met that criteria, it was never announced as criteria, and then we
<br /> called and said why wasn't it awarded to us, and then at the hearing we find out that this was
<br /> a criteria and that was applied against us, that they wanted somebody that was less of a
<br /> construction manager doing more work in-house, and again, if they had known, if the City had
<br /> told them, then they would have met that criteria. He believes that Judge Landingham's
<br /> reasoning is very apropos here, on page 16, paragraph 65, he says "Here:in Section 11 lists
<br /> several specific subjects within a larger class of experiential preferences and there are no
<br /> general words to show that other specific preferences within that class are included. It is
<br /> therefore concluded that the subjects not specifically named were intended to be excluded."
<br /> What Judge Landingham is saying is once you delineate the factors that you want, don't
<br /> come in and say there is another factor that I want to apply, that is an undisclosed criteria and
<br /> you cannot do that. It is fundamentally unfair, and it lends itself to skullduggery. We will not
<br /> permit our municipalities to act in that fashion, and he goes on to say in paragraph 70, "With
<br /> that in mind, the undersigned is convinced that to ensure a fair competition, the letting
<br /> authority should always clearly disclose such a preference in the procurement document,that
<br /> way would-be proposers who stand to suffer as a result of the preference at least can attempt
<br /> to level the playing field before the contest begins by bringing a specifications challenge. That
<br /> said however, the undersigned need not conclude here that non-disclosure of a prorogial
<br /> presence is necessarily contrary to competition because we told them, they want to say that
<br /> they want to prefer Broward County contractors, and he is willing to concede that they can do
<br /> that, but they need to tell him so that they have options, maybe he will join ventures with
<br /> somebody or maybe he would skip the exercise all together." What happened in this case
<br /> was worse than mere non-disclosure, and this is the same thing that we have here. For the
<br /> RFP informed potential proposers that relevant work completed in one area would be afforded
<br /> the same preference as well as work completed in another area of the State. What happened
<br /> here is almost identical, they have told us, as long as you meet this 40% threshold you are
<br /> fine, you are good, and then they turn around and say 40% is not good enough because you
<br /> stack up unfavorably to Southeastern even though you are $100,000 cheaper, you stack up
<br /> unfavorably with Southeastern because they do 70% of their work in-house, on this one
<br /> project incidentally. He said he will have Mr. Louden of Tran Construction say that absolutely
<br /> they were prepared on this project to have 65% in-house or more, whatever they wanted.
<br /> Ms. Dickens said that the City did disclose the fact that the in-house was important to them in
<br /> the bid document. Mr. De Armas said they did not, and Ms. Dickens saidlit is on page 7, and
<br /> Mr. De Armas said on page 7 it says they want 40%, it doesn't say it is important to them, and
<br /> Ms. Dickens said she understands that but it is not something new. Mr. be Armas said it is
<br /> not something new, what is new is the way they applied it. Ms. Dickens, said for the record
<br /> because she thinks what he said was that you didn't know in advance that that was important
<br /> to them, and what he is saying is although it says in there that we want 40%, your client did
<br /> not understand that that was something that the City would consider when they awarded the
<br /> bid, and Mr. De Armas, said correct, but not that they didn't understand that it is important that
<br /> Summary Minutes: Bid Protest 07-10-02 030308 Page 6 of 11
<br />
|