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the City Code or the law. He said under the City Code the price is a factor but not the
<br /> determinative factor, in fact, the City Manager looks at a laundry list of factors in awarding a
<br /> bid, these factors include the contractor's capacity, ability to do the job in accordance with the
<br /> City's desire. In this case, the City Manager in his professional judgment, over 25 years of
<br /> experience as a City Manager or Assistant City Manager, did not believe at the Protestor
<br /> had the capacity or the skill to perform the job in accordance with the desires of the City.
<br /> Similarly, in the bid documents, price is only a factor, not the determinative factor, in fact, in
<br /> the instructions to bidders, the contractors were put on notice, contrary to what the Protestor's
<br /> counsel indicated today, the City has a discretion to award the bid which is in the best interest
<br /> of the City or to award the bid to the lowest responsible bidder, not the lowest bidder, the
<br /> lowest responsible bidder. In looking at the factors that were most important to the City, was
<br /> the fact that the contractor can perform at least 40% of the work with its own forces of
<br /> workers. That issue was disclosed in the bid docs, instructions were given, we even had a
<br /> pre-bid conference, which is in our Memo of Law, the minutes of the pre,bid conference is
<br /> attached, that was an issue that all the parties, all the bidders were informed about. The
<br /> Protestor provided us with the information that they can only perform 44%'of the work with its
<br /> own forces, while the contract recipient provided us with information that they could perform
<br /> 70% of the work with its own forces. The contract recipient's price was almost identical to the
<br /> Protestor's with a difference of almost $100,000. Basically the City made a selection in its
<br /> best interest, we got more bang for our buck, simply to recap, the City complied with its Code
<br /> in awarding this bid, the City complied with the bid instructions in awarding this bid, the
<br /> remaining question is whether the City complied with the law, that is a simple answer, the
<br /> answer is yes, the law does not require the City to award a bid to the lowestEdollars and cents
<br /> bids. Indeed, the court will uphold the City's decision unless the City's decision is arbitrary
<br /> and capricious, there is no evidence to suggest that the City's decision is arbitrary or
<br /> capricious. The Protestor has not presented any evidence showing that the City Manager or
<br /> the City Commission was arbitrary and capricious, in fact, the Protestor merely argued in his
<br /> letter that the City should explain to them the reason why we did not select them, and today
<br /> 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 had 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. The City of Sunny Isles Beach Code, which in
<br /> fact he was responsible for drafting, has never been construed in that fashion, the most
<br /> responsible bidder. It is pretty academic law when it comes to construction of municipal
<br /> codes, the court will always give deference to the construction of the municipality. He knows
<br /> that the Protestor's attorney believes he is an expert in this area but this is a simple issue, he
<br /> is splitting hairs with respect to certain meanings of words in our Code, that has no relevancy
<br /> to his protest, this is a simple case. He went over some of the arguments that Mr. De Armas
<br /> raised: he indicated that his client is the lowest responsible bidder, and that is undisputed,
<br /> that is incorrect, they were not the lowest responsible bidder, they were merely the lowest
<br /> bidder. Mr. De Armas indicated that the City had ranked bidders, we did not have a ranking
<br /> Summary Minutes: Bid Protest 07-10-02 030308 Page 8 of 11
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