On Tuesday, Stewart-Corbitt's attorney, Robert Mullins, argued that the city procurement code is unconstitutional because it is impossible to properly or consistently interpret its meaning.
The city's procurement director cited the materiality clause in rejecting Stewart-Corbitt's bid. The code says the clause mandates perfect adherence to every bid provision, but it also provides for corrections after bids are open, Mr. Mullins said.
Stewart-Corbitt's bid was rejected because its notary public didn't date the stamped notary signature. The bid of $1,095,000 was $9,583 cheaper than RCN Contracting's winning bid.
James Ellison, whose firm is representing the city along with its in-house legal counsel, called the materiality clause crystal clear, saying it states that everything is to be perfect in the bid.
The code doesn't allow the procurement director to waive that requirement, he said. Only the commission can do so, and they voted to give the contract to RCN Contracting, in effect denying a waiver to Stewart-Corbitt, he said. A Georgia Supreme Court decision that says a governing body can waive minor errors in a bid doesn't say it must do so, Mr. Ellison said.
Mr. Mullins countered that the whole purpose of procurement law is to provide the best goods and services at the lowest cost to taxpayers. The materiality clause makes that impossible in cases where the lowest bidders are rejected for minor errors, he said.
Stewart-Corbitt's lawsuit is one of a series against the city because of its procurement practices. Two other federal lawsuits alleging bid-rigging are pending.
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U.S. District Judge J. Randal Hall wants to review the bid requirements for the construction of the fire department administration building before deciding whether to issue a temporary restraining order to stop construction.