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Mr. Joel R. Hanson <br />April 7, 1999 <br />Page 3 <br />qualification to do the work. This does not mean that <br />petitioner 'could not have performed the contract; what we <br />do mean, however, is that the evidence showed the Board <br />acted in good faith and had reason to doubt that company's <br />ability to perform'" (Cases cited.) <br />In Conway Corporation et al. v. Construction Engineers <br />Inc et al, 300 Ark. 225, 782 S.W.2d 36 (1989), the Arkansas <br />Supreme Court determined that a public utility's rejection of a <br />low bid on a contract for improvements to a water treatment plant <br />was not in bad faith. The evidence indicated that the utility <br />commission was concerned that the improvements be completed on <br />time to avoid an anticipated water shortage. The utility <br />commission in its post -bid investigation considered information <br />regarding delays and problems which had occurred on the last <br />local municipal project on which the low bidder had worked. That <br />information was sufficient to allow the utility commission to <br />determine that the proposed job could be completed on time with <br />the second low bidder but not with the low bidder. <br />I am not aware of the relationship between North Valley, <br />Inc. and Valley Paving, Inc. The cases quoted above relate to <br />the same contractor bidding on subsequent construction projects. <br />However, it appears that the City Council could consider past <br />untimely performance in the exercise of its discretion in <br />determining the "lowest responsible bidder ". <br />If anyone has any questions relative to this matter, please <br />contact the undersigned. <br />TMS:gc <br />Yours very truly, <br />SWEENEY, BORER & SWEENEY <br />Thomas M. Sweeney <br />Page 4 <br />