RES-1998-005 Regarding Request to Disqualify the Proposals of O C Mitchell Jr Inc for the Renovation of Skills Development Center 02-25-1998

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Mr. Geoffrey E. Gledhill Page 2 December 15, 1997 3. As applicable to the case at hand, if O.C. Mitchell had decided that he was not comfortable with his pricing relative to that of the other bidders following the bid opening and did not want an award of the contract, the County clearly could not have legally forced him to accept such an award because his bid ~n i e face indicated that he had not received the addenda for consideration. Therefore, under these given circumstances, the County clearly could not have f rced an award upon O.C. Mitchell or else a forfeiture of his bid bond. 4. The fact that O.C. Mitchell might have used a revised bid form that came in the first addendum is clearly no evidence or acknowledgement that he received the second addenda. Moreover, this would not even have constituted acknowledgement by him that he had received the first addendum -either de facto or otherwise. Rather, this use of the revised bid form at best could only be considered as some extrinsic evidence that he might have received the first addenda. On the other hand, however, he could have gotten a copy of the revised bid form from another bidder or elsewhere without ever having requested or received the accompanying addenda itself. Likewise, the fact that the County's architect questioned the bidders either as a group or even individually before bid opening regarding their receipt of the addenda in no way legally obliged the bidders to respond one way or the other. Nor would their responses have been legally binding. Even the fact that O.C. Mitchell confirmed after bid opening that he had received the addenda and the changes were included in his bid should be considered meaningless since he was then privy to all other bidders' pricing. To afford this ex post facto confirmation any consideration would be the same as allowing him to disclaim this after bid opening and thereby avoid an award because he had not received the addenda even though his bid indicated otherwise. The point is that true responsiveness has to be determined from comparing the bid to the requirements of the solicitation -not from equivocal evidence extrinsic to both. Of course, had the solicitation for proposals otherwise provided that these as well as other factors could be considered after bid opening in connection with an award, then that would be a horse of a different color. But, all the bidders would have then been able to know that they would enjoy the same benefits in these respects, and they would have submitted their bids accordingly. Now, if that had indeed been the case, wouldn't that have been a mess?? 5. Said otherwise, if you could not have forced O.C. Mitchell to have accepted an award of the contract over his objections in light of what you have otherwise considered to have been "minor irregularities" in his bid, then his bid mus be rejected as being nonresponsive. And, there should exist little or no doubt in the case at hand that O.C. Mitchell could have easily avoided a legal award of the contract had he decided to do so for whatever reason after bid opening. 6. It is certainly understandable that the County would want to award the contract to O.C. Mitchell and ostensibly save the taxpayers a few thousand dollars -depending on how the award might be made. Nevertheless, that would appear to be a relatively small price to pay in the long run in order to preserve the integrity of the County's competitive bidding process.