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Cabarrus County July 11, 2001 Page 2 would then place the Beers bid with the other single-prime bids. Such actions would make the Beers single-prime bid timely and fully in conformance with the Solicitation. Immediately prior to the public opening of the bids, Beers learned that its multi-prime bid still had not been opened and that its single-prime bid would also be rejected. Thus, Beers learned that, despite the actions of the authorized County representative, the promised actions had apparently not taken place. However, Beers was able to determine through the [)id opening process that the Beers' single-prime bid and the Beers' multi-prime bid both were low in their respective categories. Bases of Protest The County has improperly rejected the Beers bids. Each of the following actions violate either the terms of the Solicitation itself or the North Carolina General Statutes. As an overarching point, NCGS § 143-129, and the cases interpreting the statute, require that any public construction contracts must be awarded to the lowest responsible bidder submitting a responsive bid. As shown above, Beers is a responsible bidder that submitted the lowest responsive bid. Failure to award to Beers therefore violates NCGS § 143-129. The County operated an inaccurate clock that resulted in certain otherwise timely-submitted bids, including the Beers low multi-prime bid, being rejected as untimely. Operation of an inaccurate clock is a violation of NCGS § 143-129, and the prejudice to Beers should be obvious. The County then compounded its error with the inaccurate clock when the County failed to return the Beers multi-pr/me bid that the County had improperly determined to be late. The Solicitation clearly indicates at Para. 2.01 of the Solicitation, that "[o]ffers submitted after the [stated] time shall be returned to the bidder unopened." This was not done, and Beers has shown above how the County's failure has prejudiced Beers. Also as shown above, an author/zed representative of the County indicated that it would try to cure the County's improper failure to return the multi-prime bid by pulling the bid security from the Beers' multi-prime bid, placing it with the Beers' single-prime bid, and closing the Beers' single- prime bid. Certainly, the County should not be allowed to prejudice Beers for the failure of the County's own representative to do that which the representative indicated he would do. Such an action by the County would again violate the terms of NCGS §143-129; specifically, subsection (b) of that statute holds that proposals shall not be rejected for the purposes of evading the provisions of the Statute. RALLY396162_ [