STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HARRIS CORPORATION,
vs.
Petitioner,
Case No. 18-1781BID
DEPARTMENT OF MANAGEMENT SERVICES,
Respondent,
and
MOTOROLA SOLUTIONS, INC.,
Intervenor.
/
RECOMMENDED ORDER
The final hearing in this matter was conducted before
J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569, and 120.57(1) and (3), Florida Statutes (2017),1/ on May 8 through 11, 14, and 15, 2018, in Tallahassee, Florida.
APPEARANCES
For Petitioner Harris Corporation (“Harris”): Karen D. Walker, Esquire
Mia L. McKown, Esquire
George N. Meros, Jr., Esquire Tiffany A. Roddenberry, Esquire Holland & Knight LLP
Suite 600
315 South Calhoun Street Tallahassee, Florida 32301
For Respondent Department of Management Services (the “Department”):
Joseph M. Goldstein, Esquire Andrew Schwartz, Esquire Shutts & Bowen, LLP
Suite 2100
200 East Broward Boulevard
Fort Lauderdale, Florida 33301 and
Jason B. Gonzalez, Esquire Shutts & Bowen, LLP
Suite 804
215 South Monroe Street Tallahassee, Florida 32301
For Intervenor Motorola Solutions, Inc. (“Motorola”):
William Robert Vezina, III, Esquire Eduardo S. Lombard, Esquire
Megan S. Reynolds, Esquire
Vezina, Lawrence and Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
The issue to determine in this bid protest matter is whether Respondent’s (Department of Management Services’), intended award of the Statewide Law Enforcement Radio Communications System to Intervenor, Motorola Solutions, Inc., was contrary to its governing statutes, rules, or the solicitation specifications.
PRELIMINARY STATEMENT
This matter involves Harris’ protest to the Department’s intent to award the contract for the Statewide Law Enforcement
Radio Communications System to Motorola through Invitation to Negotiate No. DMS-15/16-018.
On March 13, 2018, the Department posted its Notice of Intent to Award the contract to Motorola.
On March 16, 2018, Harris timely filed a notice of protest of the award.2/ On April 4, 2018, the Department referred Harris’ protest to the Division of Administrative Hearings (“DOAH”) for assignment to an Administrative Law Judge (“ALJ”) to conduct a chapter 120 evidentiary hearing.
The final hearing was held on May 8 through 11, 14 and 15, 2018. Joint Exhibits 1 through 23 (including Joint Exhibits 8A, 16A, 16B, and 17A) were admitted into evidence. Harris’ Exhibits 1, 7, 10 through 13, 18, 20 through 31, 38 through 46,
51, 53 through 55, and 60 were admitted into evidence.
Department Exhibits 1 through 7, 9, 11, 33 through 44, 76, 77,
80, 81, 83, and 85 were admitted into evidence. Motorola
Exhibits 5, 9, 13 through 16, 21, 22, 26 through 29, 33, 34, 36,
42 and 43 were admitted into evidence.
Harris presented the testimony of Robert Downie II, Ailneal Morris, Becky Bezemek (formerly Becky Lackey), Phil Royce, Matthew Matney, Jonathan Rakestraw, John Hogan, Dominic Tusa, Shaun Hancock, and Danielle Marcella. The Department called Phillip Shoemaker to testify. Motorola called Jay Malpass, Andrew Miller, Said Jilani, and Dominic Villecco.
An eleven-volume Transcript of the final hearing was filed with DOAH on June 6, 2018.3/ At the close of the hearing, the parties were advised of a ten-day timeframe after receipt of the hearing transcript to file post-hearing submittals. All parties filed Proposed Recommended Orders, which were duly considered in preparing this Recommended Order.
FINDINGS OF FACT
The Department is charged with overseeing and managing Florida’s Statewide Law Enforcement Radio System (“SLERS”).
In its role, the Department is authorized to “acquire and administer a statewide radio communications system to serve law enforcement units of state agencies, and to serve local law enforcement agencies through mutual aid channels.” See
§ 282.709, Fla. Stat. Section 282.709(3) directs that, “[u]pon appropriation, moneys in the [State Agency Law Enforcement Radio System Trust Fund] may be used by the department to acquire by competitive procurement the equipment, software, and engineering, administrative, and maintenance services it needs to construct, operate, and maintain the statewide radio system.”
In September 2000, the Department contracted with Harris (through its predecessor) to construct, maintain, and operate the existing SLERS system. Harris identifies itself as a leader in technologies for first responders with more than 80 years of
experience in public safety communications. Harris’ contract runs through June 2021.
The current SLERS system provides radio coverage to law enforcement personnel throughout Florida. SLERS allows radio communication between more than 4,000 state law enforcement personnel from 22 state agencies utilizing approximately 20,000 radios in aircraft, boats, motorcycles, and patrol cars, as well as portable handheld radios. SLERS communications are provided through a network of tower sites arrayed across the state which enables radio users in one part of Florida to talk to users in other parts of the state.
State agencies currently using SLERS include the Department of Highway Safety and Motor Vehicles, the Fish and Wildlife Conservation Commission, the Department of Corrections, and the Florida Department of Law Enforcement. In addition, more than 40 local government jurisdictions have elected to participate as SLERS partners.
The current SLERS is built on Harris’ proprietary technology known as Enhanced Digital Access Communication System with Extended Addressing (“EDACS-EA”). Since 2000, however, radio communication technology has evolved. The new industry standard for land mobile radio systems (such as SLERS) is known as Project 25 (“P25”).4/ Unlike Harris’ EDACS-EA system, P25 is based on non-proprietary technology. This “agnostic” or “open”
standard enables law enforcement personnel from different organizations to communicate with other “subscribers” or users, regardless of the manufacturer or type of radio being used.5/ State agencies may use whatever brand of radios they want. A P25 system allows interoperable, multi-agency communications between federal, state, and local governments’ systems and radios during emergency situations.
The Department initiated this procurement for the express purpose of implementing a radio system based on the new P25 technology. Although Harris’ contract runs through 2021, the Department desires for the next-generation, P25 SLERS to be constructed and operational before Harris’ contract expires to ensure a seamless transition.
Background
The Department’s decision to issue an Invitation to Negotiate for the new SLERS system was the culmination of a process that spanned more than two years. In 2014, the Department contracted with a private consulting firm to develop a “Business Case”6/ to review whether a private sector vendor could more effectively and efficiently provide the SLERS service based on P25 technology.7/
In January 2015, the consulting firm issued the SLERS Business Case. The Business Case recommended the state contract for services to establish a P25 SLERS. The Business Case further
expressed that the new SLERS must be highly available and highly reliable. The expectation was for SLERS to provide 98 percent statewide coverage for mobile radios (i.e., in-vehicle or dashboard radios) and 95 percent statewide coverage for portable radios (i.e., handheld radios).
The Business Case estimated that the overall cost to the state by outsourcing the P25 SLERS service would be $941.4 million over a 19-year contract term. The Business Case also noted that additional funding would be necessary as funds required to fulfill a SLERS contract would exceed the current annual appropriation from the Law Enforcement Radio System Trust Fund.
Thereafter, the Florida legislature, in its 2016 budget, included proviso language in Specific Appropriation 2838 designating certain appropriated funds to the Department to conduct the competitive procurement for a new SLERS contract. The proviso language stated:
From the funds in Specific Appropriation 2838, $933,800 of nonrecurring funds from the Law Enforcement Radio System Trust Fund is provided for the Department of Management Services to acquire and maintain the necessary staff augmentation support and subject matter experts to assist the department in the competitive solicitation and providing other services as determined necessary by the department for procuring a land mobile radio support system based upon a Project 25 Phase II delivery methodology.
The system will provide communication
services for state and local public safety agencies. The procurement shall accomplish, but not be limited to: improved coverage, audio clarity, interoperability, and enhanced system features including GPS location service, text messaging, and central device management. The scope of the services provided by the staff augmentation support and subject matter experts should include, but not be limited to, assisting the department in completing the following tasks identified in the study referenced in Specific Appropriation 2904A of Chapter 2014- 51, Laws of Florida: (1) project planning and management; (2)consultation and providing technical expertise to the department;
(3) assist department as requested in the evaluation of responses; and (4) negotiation with procurement respondents as requested by the department.
* * *
When scoring proposals, the department shall consider, among other factors, any respondent's ability to leverage existing resources to the public's best interest. The department must release a competitive procurement and, thereafter, award a procurement for the replacement of the Statewide Law Enforcement Radio System.
Ch. 2016-66, Laws of Florida. The Invitation to Negotiate
The Invitation to Negotiate at issue in this matter is DMS-15/16-018 (the “ITN”). The Department issued the ITN for the P25 SLERS service on October 31, 2016.
The ITN seeks “to establish a contract for a new generation of Statewide Law Enforcement Radio System (SLERS), a Land Mobile Radio (LMR) telecommunications service to provide
voice and data communications to public safety agencies.” See
ITN, Section 1.10. The ITN’s overall coverage objective is a communication system that provides 98 percent coverage,
98 percent of the time for mobile radios, and 95 percent coverage, 95 percent of the time for portable outdoor radios. See ITN, Section 3.3.1.
On February 7, 2017, the Department received timely Replies to the ITN from three vendors, including Harris and Motorola.8/
After receiving the Replies, the Department appointed four evaluators to evaluate the Replies to determine which vendors the Department could negotiate with. The evaluators independently reviewed and scored the technical aspects of each vendor’s Reply. See ITN, Sections 2.1, 4.1, and 4.2, and
Attachment J – Evaluator Scoring Workbook. Each vendor’s proposed price was scored separately based on the vendor’s response to Attachment E – Pricing Workbook. These scores established a competitive range of replies reasonably susceptible to an award of the SLERS contract.
On March 21, 2017, the evaluators revealed their technical scores at a public meeting. During this meeting, the evaluators announced that Harris’ Reply received a technical score of 62.47 points. Motorola’s Reply received a technical score of 58.25 points. Regarding price, Harris’s Reply received
a score of 13.05. (Harris’s Reply received a combined score of 75.52.) Motorola’s Reply received a pricing score of 25
points. (Motorola’s Reply was awarded a total score of 83.25.)9/
Following the evaluators’ review and scoring, the Department proceeded to determine the responsiveness of each Reply. The Department found that both Harris’s and Motorola’s Replies met the Responsiveness Requirements set forth in ITN, Section 3.5. Thereafter, the Department invited both Harris and Motorola to negotiate for the new SLERS contract. See ITN, Sections 2.1, 4.2.3, and 4.3.
The Negotiation and Scoring of Replies
The Department appointed a Negotiation Team of five individuals to conduct negotiations with Harris and Motorola.
The Negotiation Team included from the Department, Ailneal “Neal” Morris (Bureau Chief of Private Prison Monitoring), Matthew Matney (Bureau Chief of Public Safety), and Jonathan Rakestraw (Operations and Management Consultant II – Division of Telecommunications). Joining them was Becky Bezemek (Planning and Policy Administrator – Information Technology, Florida Department of Law Enforcement) and Phil Royce (Communications Branch Director, Department of Emergency Management).
The Department also retained two outside contractors, John Hogan and Phillip Shoemaker, as Subject Matter Experts throughout the procurement process. At least one of these
experts was present at every Negotiation Team meeting. In addition, two of the evaluators, Keith Gaston and Bill Skukowski, also participated in at least one Negotiation Team meeting as a Subject Matter Expert.
The Department’s negotiations with Harris and Motorola began on April 4, 2017. The Negotiation Team conducted separate negotiation sessions with each vendor. The Negotiation Team also met for their own “debriefing” and strategy sessions without either vendor present.
During the negotiation sessions, the negotiators reviewed the terms and conditions of each vendor’s Reply and confirmed their understanding of the vendors’ offers. The strategy sessions included discussions of the vendors’ proposed service designs, technical solutions, and costs savings.
In August 2017, the Department requested that Harris and Motorola submit more detailed design information, as well as an updated Pricing Workbook addressing cost elements related to their design submission.
The Negotiation Team last met with Harris on
October 17, 2017. The Negotiation Team last met with Motorola on October 18, 2017.
On November 30, 2017, the Department issued a Request for Revised Reply to both Harris and Motorola. See ITN,
Section 4.3. The Request for Revised Reply included changes to
the initial Statement of Work, which were derived from the Negotiation Team’s discussions with the vendors. In addition, the Pricing Workbook in the Request for Revised Reply amended the initial contract term by increasing it to 15 years, with up to ten renewal years.
On December 21, 2017, both Harris and Motorola submitted Revised Replies. The system design both Harris and Motorola presented differed from what they had included with their initial Replies in February 2017. However, the Negotiation Team did not meet with either Harris or Motorola to review their modified designs at any point after October 2017.
The Negotiation Team conducted internal strategy sessions through January 24, 2018, to review the Revised Replies. One issue that arose during these meetings was a letter Harris sent to the Department’s Procurement Officer, Jesse Covell, on January 9, 2018. In its letter, Harris asked the Department to reconsider the “termination for convenience” language in the proposed SLERS contract. Harris indicated that this provision might affect its ability to respond to a Request for Best and Final Offer. Upon reviewing Harris’ concern, on January 24, 2018, the Department replied, “As to the termination for convenience section of the Terms and Conditions, the risk of such possibility remains with the vendor.”
On January 29, 2018, the Department issued to Harris and Motorola a Request for Best and Final Offer. The Request for Best and Final Offer included: a revised Attachment A – Final Statement of Work and a revised Attachment B - Final Contract (in both clean and redlined formats). The Request for Best and Final Offer also included Attachment E, Final Pricing Workbook, and a revised Attachment F - Final Special Conditions (in both clean and redlined versions). The Request for Best and Final Offer required each vendor’s Best and Final Offer to include: (a) a response to Attachment A - Final Statement of Work showing redline changes to the vendor’s original Reply (additions via underline and deletions via strikethrough); and (b) a response to Attachment E, Final Pricing Workbook.
As part of their Best and Final Offers, the Final Statement of Work directed the vendors to submit “representative documentation” of the “proposed” Service design. The vendors were further instructed to provide a diagram of the “proposed connectivity” as part their description of their System Overview Topology. See Request for Best and Final Offer, Attachment A -
Final Statement of Work, Section 16.1. In addition, the Final Statement of Work changed the word “should” to “shall” in many places.
The Final Special Conditions provided that:
Any Contract that results from ITN No. DMS- 15/16-018 will be subject to the following Special Conditions.
* * *
22 TERMINATION FOR CONVENIENCE[10/]
The Department, by no less than 180 calendar days’ prior written notice to the Contractor, may terminate the Contract in whole or in part when the Department determines in its sole discretion that it is in the State’s interest to do so. The Contractor shall not furnish any product or service after it receives the notice of termination, except as necessary to complete the continued portion of the Contract, if any. The Contractor shall not be entitled to recover any cancellation charges or lost profits. See Attachment F, Section 45, Annual Appropriations. Pursuant to subsection 287.058(6), F.S., the Contract does not prohibit the Contractor from lobbying the executive or legislative branch concerning the scope of services, performance, term, or compensation.
On February 8, 2018, the Department issued a revised Attachment B – Final Contract to be included with its Request for Best and Final Offer. This Final Contract addressed a topic of discussion between the Negotiation Team and the vendors concerning any capital investment costs the vendors might incur to buildout and deploy their P25 SLERS system prior to the start of the SLERS contract. The negotiators recognized that both vendors would expend significant up-front costs. However, they decided not to change the payment terms in the Final Contract.
Instead (and in response to a Harris e-mail inquiring about the payment structure), the revised Final Contract, in Section 2.1, included language that:
The initial term of the Contract will begin with [the vendor] having up to four years of non-paid transition followed by fifteen paid years. The fifteen year payment period will not begin earlier than July 1, 2021. (emphasis added).
The Final Contract also extended the number of renewable contract years from seven to ten years (which was consistent with the Request for Revised Reply issued on November 30, 2017).11/
Under the Final Contract, the Department would not begin paying the vendor until after the transition period and upon the start of the “paid years.” The vendor would then be paid the “Maximum Annual Service Price” the vendor listed in the Final Pricing Workbook, apportioned on a monthly basis.
On or about February 14, 2018, both Harris and Motorola timely submitted Best and Final Offers to the Department.
As with the Revised Replies submitted in December 2017, the design information Harris and Motorola included in their Best and Final Offers differed from that previously submitted to the Department. However, the Negotiation Team did not meet with either Harris or Motorola following submission of their Best and Final Offers.
The Best and Final Offers were distributed to the negotiators for scoring. Under Attachment L – Negotiator Scoring Workbook, each vendor’s response to Attachment A - Final Statement of Work was evaluated based on ten selection criteria, including: (1) Experience & Ability; (2) Approach;
(3) Capabilities & Technology; (4) Coverage & Capacity;
(5) Security; (6) Testing; (7) Support, Maintenance & Training;
(8) Service Level Agreement; (9) Technology Evolution; and
(10) Transition Plan. The Coverage & Capacity component included the proposed system design, as well as coverage prediction maps, frequency plan, and capacity plan.
The Negotiation Team members scored each vendor’s response to Attachment A - Final Statement of Work. Each Negotiation Team member used a Scoring Sheet and scored each Best and Final Offer using the ten categories identified in Attachment L – Negotiator Scoring Workbook. Each member could award a score of zero to four points in each category. Attachment L also gave greater or lesser weight to some categories so that a total of 50 points was available to be awarded for the Best and Final Offer.12/
The Negotiation Team members did not score the vendor’s price recorded in response to the SLERS Design Pricing Workbook Pricing Summary.13/ Instead, points were awarded for pricing
based on the formula: Points Awarded = Maximum Available Points x (Lowest Offered Price/Offeror’s Price).
The total price Harris submitted to perform the SLERS contract was $979,983,031.14/ Motorola’s total price equaled
$687,797,127.15/
Attachment M – Master Negotiation Scoring Workbook provided the best value scoring methodology. Pursuant to the Master Negotiation Scoring Workbook, the Negotiation Team members’ scores for each Best and Final Offer were averaged (up to 50 maximum points). Concurrently, the price of each Best and Final Offer was scored up to 50 maximum points. (One hundred total points was available for each vendors’ Best and Final Offer.)
Post-Negotiation and Selection of the Winning Vendor
At that point, as described in ITN, Section 2.1:
Once negotiations have concluded and best and final offers (BAFO) have been received and reviewed, the Department will hold a Negotiation Team public meeting to recommend award to the Vendor(s) who offer(s) the best value to the state based on the selection criteria.[16/]
ITN, Section 4.4, further provided that:
If a contract(s) is awarded, the Contract(s) will be awarded to the responsible and responsive Vendor(s) whose [Best and Final Offer] is assessed as providing the best value to the State in accordance with Attachment L – Negotiator Scoring Workbook and Attachment M – Master Negotiation Scoring
Workbook. The Department will consider the total cost of each year of the Contract, as submitted by the offeror.
On March 1, 2018, the Negotiation Team held a public meeting during which each negotiator presented their Negotiator Scoring Workbook. The vendors were awarded the following scores:
Harris received 43.86 points for technical, experience, and ability (the Final Statement of Work); and 35.09 points for price (the Final Pricing Workbook). Harris’ total score equaled 78.95.
Motorola received 45.36 points for technical, experience, and ability (the Final Statement of Work); and
50 points for price (the Final Pricing Workbook). Motorola’s total score equaled 95.36.
According to the Negotiation Team’s overall scores, Motorola “offers the best value to the state, based on the selection criteria.”
On March 9, 2018, the Department’s Director of Telecommunications, Heath Beach, prepared a Recommendation of Award Memorandum recommending the new SLERS contract be awarded to Motorola “as the responsible and responsive vendor, which will provide the best value to the state, based on the selection criteria of this ITN.” The Department’s Chief of Staff, David Zeckman, signed the Recommendation of Award Memorandum accepting the recommendation.
On March 13, 2018, the Department posted its Notice of Intent to Award to the Vendor Bid System stating that the Department intends to award the contract arising out of the ITN to Motorola.
HARRIS’ PROTEST
Harris protests the Department’s selection of Motorola for the SLERS contract instead of its own reply. Harris contends that Motorola's Best and Final Offer consists of a service design that Motorola cannot deliver. Harris, on the other hand, believes that it is the only company that can achieve the ITN’s goal of a complete, comprehensive, and reliable statewide communications network.
Harris’ protest presents three primary arguments.
The Negotiation Team was Not Qualified to Score the Best and Final Offers:
Harris charges that the Department’s Negotiation Team was not qualified to negotiate and score the ITN. To conduct a procurement via an invitation to negotiate, section 287.057(16)(a)(2) directed the Department to assign:
At least three persons . . . who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought.
Harris asserts that the Department failed to select negotiators with the requisite experience and knowledge in the
subject matter of the ITN. Harris contends that the technical details involved in negotiating for a P25 SLERS service, which include subject areas such as coverage, capacity, reliability, and frequency planning, are highly technical in nature and require some proficiency in radio system engineering. Harris (via Danielle Marcella) alleges that the Negotiation Team members did not display the breath or depth of knowledge Harris would have expected for a procurement of this significance and size.
Harris points out that not a single member of the Negotiation Team is an engineer. Furthermore, at the final hearing, Harris produced evidence that neither Becky Bezemek nor Jonathan Rakestraw had any technical knowledge or background in law enforcement radio systems before serving on the Negotiation Team. Similarly, Neal Morris’ only prior experience was his use of portable radios while serving in the military, and he had no technical knowledge of radio communication systems. Matthew Matney’s knowledge and experience was limited to purchasing and using radios as a law enforcement officer. Furthermore,
Mr. Matney had never served as a negotiator for an ITN. Neither did he know how to read a radio coverage map. Phil Royce does have a background in emergency management and public administration where he was responsible for the maintenance and programming of radios. However, he has no experience in designing communication systems.
Harris acknowledges that the Negotiation Team was supported by several Subject Matter Experts. Harris recognizes that one or more of these experts attended every strategy session of the Negotiation Team. Harris contends, however, that the Subject Matter Experts did not conduct any technical evaluation of Motorola’s network design to determine whether Motorola could actually deliver the system it proposed in its Best and Final Offer. Instead, they only responded to the Negotiation Teams’ questions. The Subject Matter Experts did not comment or opine on the viability of the vendors’ competing systems.
Consequently, the Department could not have conducted a comprehensive or sound technical evaluation of the service design Motorola (or Harris) proposed in its Best and Final Offer. Therefore, the Negotiation Team did not select a vendor (Motorola) who will legitimately provide “the best value to the state, based on the selection criteria.” See ITN, Section 2.1
and § 287.057(1)(c)4., Fla. Stat. In other words, to state it simply, the Department could not have fairly or competently decided that Motorola was the “best value to the state” because the Department did not know what service it would actually buy from Motorola. As a result, the Department’s decision to award the SLERS contract to Motorola must be overturned.
Inadequate Coverage, Capacity, Reliability of Motorola’s Service Design:
Harris alleges that Motorola cannot deliver the service design that it presented in its Best and Final Offer. Harris further charges that Motorola’s reply fails to comply with mandatory and material requirements of the Department’s ITN regarding coverage, capacity, and reliability. Consequently, because Motorola’s design is rife with unknown factors, or simply not capable of providing the required P25 SLERS service, the Department’s selection of Motorola for the SLERS contract was clearly erroneous, contrary to competition, arbitrary, or capricious.
Motorola’s Use of Conveyed Towers:
Initially, Harris asserts that Motorola cannot deliver the P25 SLERS communications system because Motorola cannot use a number of the Radio Frequency (“RF”) tower sites listed in its Best and Final Offer. The Department’s Request for Best and Final Offer required each vendor to submit site specific, service design information. The vendors were to identify the individual tower sites they would use to establish their statewide networks in a site list. The vendors were also to include the latitude and longitude of each tower site, coverage prediction maps, a capacity plan, and a frequency plan. See Request for Best and
Final Offer, Attachment A – Final Statement of Work, Section 16.
Motorola’s service design listed 144 separate RF tower sites located across the state. Harris contends that Motorola cannot use some of these 144 towers because they are “Conveyed Towers.” At this time, Harris owns the Conveyed Towers.17/ The State of Florida conveyed the Conveyed Towers to Harris as part of the original SLERS contract. Harris uses these Conveyed Towers in its current (and active) EDACS-EA system.
At least 21 of the 144 towers Motorola included in its network are Conveyed Towers. As of the final hearing, Harris had no intention of allowing Motorola to use any of the Conveyed Towers. Harris further asserts that the State of Florida does not have the authority to allow Motorola to use the Conveyed Towers.18/
Harris argues that Motorola’s reply will not meet the ITN’s coverage and capacity objectives if the 21 (unauthorized) Conveyed Towers are removed from its tower network. To support its position, Harris presented expert testimony (Dominic Tusa of Tusa Consulting Services) that, when the 21 Conveyed Towers are removed from Motorola’s 144 tower sites, Motorola’s network design will contain large holes of non-coverage. In addition, the audio quality of the radio communications will drop. Therefore, because Motorola is proposing a network of tower sites it cannot use, Motorola cannot provide the radio communication service the state requires.
Mr. Tusa further explained that identifying and obtaining replacement RF towers or tower sites is a lengthy and difficult process. Based on a number of factors, such as cost, permitting, and space issues, this process could take up to
18 months.
Harris also asserts that even if Motorola could legally use Harris’ Conveyed Towers, Motorola still cannot effectively incorporate the Conveyed Towers into its tower network because of tower-loading, signal interference, and construction issues. Regarding tower-loading, Harris argues that, due to the existing telecommunications equipment and antennae already mounted on the Conveyed Towers, Motorola simply will not have enough space to install its own antennas for a P25 service. Further still, Motorola may not be able to affix its antennae on the tower at a height that will adequately support its coverage plan.
Regarding construction issues, the ITN requires the winning vendor to instantaneously switch SLERS radio communications from Harris’ EDACS-EA system to the new P25 system. While the ITN would provide Motorola a four-year transition period to fashion a functioning “constellation” of towers, Motorola will not be permitted to interfere with Harris’ current SLERS service. Consequently, Harris proclaims that Motorola will not have sufficient time to physically install, test, then activate, the necessary antennae, microwave dishes, or
other telecommunications equipment on the Conveyed Towers before its system must “go live.”
Moreover, Motorola did not identify any alternate tower sites in its Best and Final Offer that it would use if the Conveyed Towers were not available. Although Motorola represented that it would deploy temporary sites to ensure the SLERS remains operational, Harris asserts that these temporary sites will not provide the required level of coverage. Mr. Tusa stressed that the loss of any tower site creates a hole in coverage. Therefore, a replacement location must be found. Harris asserts that Motorola’s own coverage prediction maps show that Motorola would not meet the ITN’s coverage requirements unless the Conveyed Towers are substituted with alternatives.
Coverage of Motorola’s Service Design:
As a direct result of Motorola’s (alleged) tower site deficiency, Harris argues that Motorola’s network design will not meet the ITN’s mandatory coverage requirements. At the final hearing, Harris (through Michael Hancock, a Bids and Proposals Manager for Harris) emphasized that one of the most important aspects of a law enforcement radio system is its coverage. “Coverage” refers to the area in which a radio user can communicate with other users at a certain level of quality. The ITN required the vendors’ system to provide mobile coverage at
98 percent of the area - 98 percent of the time, and portable
(handheld) outdoor coverage at 95 percent of the area -
95 percent of the time. See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 3.3.1.
SLERS radio communications will entail two types of structures, RF tower sites and Microwave Relay sites. Factors that affect the efficacy of coverage include a tower’s height, as well as the location of the radio or microwave antennae on the tower. If there are coverage gaps in the geographic area where law enforcement officers are attempting to use their radios (such as, holes left after removing the Conveyed Towers), then the SLERS will not function as desired.
Harris claims that Motorola is attempting to save costs by designing a network with fewer tower sites. By way of comparison, Harris’ EDACS-EA system includes 219 towers, consisting of 197 RF sites and 23 Microwave Relay sites. In addition, while Motorola represents that it can achieve the P25 SLERS performance objectives with 144 RF towers site, Harris’ own reply includes 190 RF tower sites.
Mr. Hancock also observed that Motorola represented in its Best and Final Offer that it might incorporate a number of local government RF tower sites into its network. Mr. Hancock expressed skepticism that Motorola could actually use local government towers in its network indicating that many government systems may not accommodate P25 equipment.
Capacity of Motorola’s Service Design:
Harris argues that Motorola’s proposed service design will not meet the ITN’s mandatory capacity objective. “Capacity” refers to the communication system’s ability to accommodate multiple radio users, i.e., the number of users who can talk on the SLERS at any one time. The ITN required the vendors’ service to “provide capacity with a goal of achieving a Grade of Service of one percent ([n]o more than 1 out of 100 calls queued) during the busy hour for each Terrestrial and Maritime Service RAN [Radio Access Network] site.” (If there was no room for a user to talk, the system queued their call until a line/channel opened.) See Request for Best and Final Offer, Attachment A –
Final Statement of Work, Section 3.4.2.
As with the coverage issue, Harris charges that Motorola’s system design cannot meet the ITN’s mandatory capacity requirements due to the low number of RF tower sites and working radio channels.
Reliability of Motorola’s Service Design:
Harris argues that Motorola’s system design will not meet the ITN’s reliability objectives. The ITN requires the vendor’s to provide a service “based upon a high availability/high reliability system providing resilience and tolerance to component and connectivity failures.” See Request
for Best and Final Offer, Attachment A – Final Statement of Work,
Section 3.1.5. Harris asserts that Motorola’s Best and Final Offer fails to comply with this requirement.
Harris argues that Motorola’s proposed system design is unreliable because of Motorola’s extensive use of, often lengthy, microwave paths. Harris' expert, Mr. Tusa, explained that microwave signals are used for point-to-point (i.e., tower-to- tower) transmission. Motorola intends to use mostly
11- gigahertz (“GHz”) microwave links, as opposed to 6-GHz microwave links. Mr. Tusa explained that 11-GHz microwave channels are more susceptible to outages and “rain fade”19/ under adverse weather conditions. Furthermore, the likelihood of rain fade affecting 11-GHz microwave links increases with the length of the connectivity path between two tower sites.20/ Because of the amount of rain activity in Florida, these deficiencies make for a highly unreliable system. (In contrast, Harris’ proposed network uses hardened network connectivity at all equipment locations. These locations are also connected together with a redundant microwave network to ensure reliable connectivity.)
Mr. Tusa declared that Motorola's service design fails to provide a “highly reliable” antenna configuration because the number of long, 11-GHz microwave paths between tower sites will expose the SLERS network to possible signal distortion and loss of radio signals during rain storms. Furthermore, Motorola’s backup plan, the use of Ethernet and carrier-provided circuits,
is also typically unreliable. Consequently, the network design Motorola’s proposes in its Best and Final Offer creates an unacceptable risk and places the reliability of the SLERS service in jeopardy.
Motorola’s Inadequate Frequency Plan:
Finally, Harris attacks the “detailed frequency plan” Motorola provided in its Best and Final Offer. The ITN required the vendors to list the proposed radio frequencies per tower site and indicate whether each frequency passed the respective analysis for each frequency type. The ITN specifically directed the vendors to “[d]escribe how a detailed frequency plan will be developed and any special considerations for use of 700 MHz and 800 MHz channels.”21/ See Request for Best and Final Offer, Attachment A – Final Statement of Work, Sections 3.5 and 16.4.
Harris criticizes Motorola’s decision to transmit approximately 50–70 percent of its frequencies using 700 band channels, as opposed to the 800 band. (Harris intends to only use 800 band channels.) Harris (through Mr. Tusa and
Mr. Hancock) asserts that this proposed frequency plan is defective. Specifically, the Motorola frequency plan includes radio frequencies that are not currently available for use in the SLERS network. Other frequencies are not licensable in the state of Florida as they are currently used by the state of Georgia.
Consequently, because many of the 800 MHz channels Motorola
listed in its frequency plan are unavailable, the Department could not reasonably determine whether Motorola’s service design will meet the ITN’s coverage and capacity objectives. Therefore, the Department’s decision to award the SLERS contract to Motorola based on the information included in its Best and Final Offer is faulty and must be rejected.
To conclude, based on all the above technical deficiencies, Harris argues that the Department could not discern the actual design of Motorola’s SLERS service when it ranked the vendors’ Best and Final Offers. The intent behind the Department’s Request for Best and Final Offer was to solidify the essential details of each vendor’s proposed P25 service. Harris asserts that, based on the amount of ambiguous or misrepresented elements in Motorola’s reply, the Department’s Negotiation Team/scorers could not have reasonably determined Motorola’s plan. Consequently, when the Department scored Motorola’s Best and Final Offer, it could not have known, or verified, exactly how Motorola intends to deliver the SLERS service. As a result, the Department’s determination that Motorola’s Best and Final Offer constitutes the “best value” to the state is fundamentally flawed.
The Price of Motorola’s Proposed System Design is Unknown:
Finally, Harris complains about the contract price Motorola offered in its Best and Final Offer. Harris asserts that Motorola has presented an incomplete price which, based on Motorola’s flawed service design, will actually cost the state substantially more than the amount Motorola seeks.
Harris alleges that Motorola’s response to Final Pricing Workbook does not contain Motorola’s complete price to construct, operate, and maintain its proposed network. Harris points to the ITN’s requirement that the vendors shall submit detailed component pricing including the cost of each specific tower site listed in the vendor’s Best and Final Offer. See ITN,
Section 3.9.6, and the SLERS Design Pricing Workbook. Because Motorola cannot use some or all of 144 RF tower sites it identified, the Department cannot accurately evaluate the price of the network solution Motorola proposes to deliver.
Consequently, because the Department has no way of knowing the true price of the SLERS system it will be buying from Motorola, the Department’s award of the SLERS contract to Motorola is erroneous, arbitrary, and capricious.
Harris further asserts that Motorola’s reply omits certain costs. Harris objects to Motorola’s statement in its Best and Final Offer that certain “tower costs will be a subject
for negotiations.” Motorola also indicated that other costs, such as security fences, “have not been included in our pricing sheets.” Harris also points out that a cost is typically associated with the use, access to, and maintenance of systems owned and operated by third parties, which was not included in Motorola’s pricing summary.
Harris suggests that this pricing obfuscation explains why Motorola’s proposed contract price is significantly lower than Harris’ price (by approximately $300,000,000). Motorola either does not accurately portray anticipated costs, or simply omits costs from its Final Pricing Workbook in hopes of negotiating a price increase after the contract is awarded. This tactic not only enabled Motorola to obtain an unfair pricing advantage over its competitor, but impaired the Negotiation Team’s ability to reasonably ascertain whether Motorola will actually deliver the SLERS service the Department seeks.
Consequently, because the true price and functionality of Motorola’s proposed service design cannot be calculated or evaluated, the Department does not know what it is paying for if it awards the SLERS contract to Motorola. As a result, the Department cannot fairly conclude that Motorola will provide the “best value” to the state. (Harris, on the other hand, asserts that it can build and deliver the system design the ITN solicited with no further calculations, hidden costs, or modifications.)
Therefore, the Department’s contract award to Motorola must be rejected.
DEPARTMENT RESPONSE TO HARRIS’ PROTEST
In response to Motorola’s challenge, the Department asserts that it properly acted within its legal authority, as well as the ITN specifications, to award the SLERS contract to Motorola. Initially, the Department (through Robert Downie II, its Deputy Director for the Division of Telecommunications) emphasized that, in this procurement, the Department is searching for a vendor to provide a “service.” The Department is not purchasing the new P25 SLERS system. Therefore, when determining the “best value,” the Department focused on each vendor’s ability to construct, and then implement, a radio communications “solution” that would meet the SLERS objectives. The Department believes it found the “best value” in Motorola’s proposed service design.
Harris Lacks Standing to Protest the Department’s Notice of Intent to Award:
As a preliminary issue, the Department asserts that Harris lacks standing to challenge the Department’s Notice of Intent to Award the SLERS contract to Motorola. In support of its position, the Department argues that its Request for Best and Final Offers advised that:
By submitting a Best and Final Offer, the vendor confirms acceptance of the attached
final Contract and Special Conditions, as is; do not make any changes, revisions, exceptions, or deviations. (emphasis added).
See Request for Best and Final Offer, page 2.
Despite this directive, Harris wrote in the cover letter of its Best and Final Offer, as well as its Pricing Summary (both dated February 14, 2018):
Harris’ value proposition comes with basic assumptions regarding funding and financial risk. . . . [T]he ITN terms and conditions present risks to the Contractor and its lenders making it difficult to finance the Contractor’s capital investment program.
With no additional funding identified to promptly pay the Contractor as capital investment costs are incurred, Harris is unable to assume such risk. (emphasis added).
Harris added:
Until additional adequate funding is provided by the Legislature and until the Department agrees to pay costs as incurred, or another mutually agreeable resolution is arrived at (including assurances of capital cost recover upon early contract termination), project implementation will be delayed. Harris looks forward to working with the Department to address this challenge. Until this and the final remaining open items have been mutually agreed upon, Harris agrees that a notice of intent to award does not form a contract between the Department and Harris and that no contract is formed until such time as Harris and the Department formally sign a contract. (emphasis added).
Harris appears to condition its acceptance of the SLERS contract on the Department’s ability to obtain “additional adequate funding.”
Despite Harris’ choice of words, the Department accepted, evaluated, found responsive, and scored Harris’ Best and Final Offer. At the final hearing, however, the Department (and Motorola) argued that Harris’ cover letter creates a “conditional” offer. The Department (and Motorola) further maintained that Harris is attempting to create an “exception or deviation” from the terms of the Department’s Request for Best and Final Offer, by refusing to execute the Final Contract until the Department agrees to pay its capital investment costs.
To counter the Department’s standing argument, Harris presented Danielle Marcella, the author of Harris’ cover letter, to clarify its intent. Ms. Marcella, who led Harris’ effort to win the SLERS contract, acknowledged that, after reviewing the Department’s Request for Best and Final Offer, Harris had several reservations about agreeing to the SLERS contract. Ms. Marcella first explained that Harris objected to executing a contract that was not adequately and fully funded. Ms. Marcella correctly observed that the price both Harris and Motorola offered to provide the SLERS service exceeds the existing legislative appropriation. See also Request for Best and Final Offer,
Attachment B – Final Contract, Section 3.7, which states that,
“The State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature.” Ms. Marcella testified that Harris did not desire to sign a contract “until the Department agree[d] to pay costs as incurred or another mutually agreeable resolution is arrived at.”
Harris also had serious concerns about the Termination For Convenience provision in the SLERS contract, as well as the Department’s position that it would not reimburse the vendors’ start-up costs during the transition period. See Request for Best and Final Offer, Attachment F – Final Special Conditions,
Section 22, and Attachment B – Final Contract, Sections 2.1 and 3.7. Harris feared that building a new P25 SLERS would not
be commercially viable unless it received some payment during the transition period. Harris hoped that the Department would change its mind about this provision prior to executing the contract.
At the final hearing, Ms. Marcella softened Harris’ arguably uncompromising position in its cover letter.
Ms. Marcella claimed that Harris was “simply stating in the [cover] letter that we want the ability to ask the Legislature . . . if the Legislature appropriated money.” Ms. Marcella represented that Harris would have agreed to the SLERS contract even if the Legislature did not appropriate
additional money. Ms. Marcella further declared that, “to the extent that the contract could be executed, [Harris] would
execute it.” Ms. Marcella stressed that Harris would not have submitted a Best and Final Offer unless it was prepared to sign the Final Contract the Department presented.
(As discussed in paragraphs 131 through 139 below, the undersigned concludes that Harris has standing to bring this bid protest matter.)
The Negotiation Team Was Qualified:
The Department rejected Harris’ allegation that the Negotiation Team members lacked the requisite, collective experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements in order to negotiate, then score the vendors’ Best And Final Offers. At the final hearing, each of the Negotiation Team members testified about their background and experience in state procurements and radio communication systems as follows:
Neal Morris is currently the Bureau Chief of Prison Monitoring for the Department. In his job, Mr. Morris coordinates the development and negotiation of contracts with private contractors for the acquisition, construction, and operation of private correctional facilities. Mr. Morris has participated as a negotiator in approximately ten prior invitations to negotiate. Mr. Morris earned a degree in Management Information Systems. He is also a Florida Certified Contract Manager, as well as a Florida Certified Contract
Negotiator. Mr. Morris used law enforcement radios while serving in the United States Marine Corps.
Mr. Morris testified that, before he ranked the replies, he reviewed and understood the ITN. He also received technical information from the Subject Matter Experts, as well as reviewed the vendors’ responses to questions during the Negotiation Team meetings. Mr. Morris also represented that the Negotiation Team members treated the vendors fairly and gave their replies equal consideration. In scoring the Best and Final Offers, Mr. Morris ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Experience & Ability category.
Becky Bezemek is the Planning and Policy Administrator for the Florida Department of Law Enforcement (“FDLE”). In her job, Ms. Bezemek manages all information technology contracts and issues relating to procurements for FDLE. She has a degree in Management Information Systems. Ms. Bezemek is also a Florida Certified Contract Manager and has had more than ten years of information technology experience, including experience as an Information Security Manager.
Ms. Bezemek testified that, during the Negotiation Team meetings, she relied upon the Subject Matter Experts to educate her on the technical aspects of each vendor’s reply. In scoring the Best and Final Offers, Ms. Bezemek ranked Motorola higher
than Harris, awarding Motorola’s reply more points in the Approach, Testing, and Technology Evolution categories.
Phil Royce serves as the Communications Branch Director for Florida Division of Emergency Management. He is also the Statewide Interoperability Coordinator. Mr. Royce received a degree in Emergency Management and Public Administration.
Mr. Royce has over 33 years of experience in communications, electronics, and electrical development, and management experience in 911 centers, communications sites, satellite networks, and first responder subscriber units. He has also worked with state, national, and international committees on communications governance, systems development, and policy. Mr. Royce also sits on the SLERS technical committee for Florida’s Joint Task Force.
Mr. Royce testified that he understands how land mobile radio communications systems work, and that he provides consulting and coordination around the state and nation to improve interoperability between radio systems. In addition, Mr. Royce has received instruction on radio operating systems, encryption, radio system infrastructure and maintenance, as well as P25 radio implementation at both Motorola University and
Harris University. He formerly served as the lead communications technician for the Alachua County Sherriff’s Office where he played a significant role in procuring and implementing its law
enforcement radio system. Mr. Royce also assisted the sheriff’s office with loss of signal and coverage issues, and helped develop and build a radio frequency tower. Mr. Royce added that he had no concerns about the Negotiation Team members’ ability to score the ITN. In scoring the Best and Final Offers, Mr. Royce ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach and Capabilities & Technology categories. He scored Harris higher in Transition Plan.
Matthew Matney currently serves as the Bureau Chief of Public Safety for the Division of Telecommunications at the Department. In his role, Mr. Matney supervises Department employees who manage and repair of Florida’s current SLERS system. As part of his responsibilities, Mr. Matney works to ensure that the SLERS remains operational. He also supervises engineers who work on SLERS. In addition, he provides administrative support to the Joint Task Force on State Agency Law Enforcement Communications, the state governing body that manages improvements and changes to SLERS. Mr. Matney also oversees the Florida Interoperability Network and Mutual Aid programs. He is a Florida Certified Contract Manager. Since 1977, Mr. Matney has attended numerous specialized radio and network communications training classes and courses. As a former law enforcement officer, Mr. Matney gained hands-on experience using law enforcement radios.
Mr. Matney testified that, during the Negotiation Team meetings, he was able to ask the Subject Matter Experts any questions he had about coverage maps and modelling. Mr. Matney had no concerns whether Motorola could provide a network design that met the ITN’s coverage objectives. In scoring the Best and Final Offers, Mr. Matney ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach, Capabilities & Technology, and Service Level Agreements categories. He scored Harris higher in Coverage & Capacity.
Jonathan Rakestraw is an Operations and Management Consultant II in the Division of Telecommunications for the Department. He has served as a Contract/Project Manager for over a decade. Mr. Rakestraw is a certified Project Management Professional, a Florida Certified Contract Manager, and a Florida Certified Contract Negotiator.
Mr. Rakestraw testified that he believed Motorola’s system design will meet the ITN’s coverage objectives. On the other hand, Mr. Rakestraw was the lone negotiator who scored Harris’ Best and Final Offer higher than Motorola’s. He awarded Harris more points in the Transition Plan category.
Assisting the Negotiation Team were several Subject Matter Experts, including John Hogan, Philip Shoemaker, Robert Downie II, Keith Gaston, and Bill Skukowski.
John Hogan is vice president of Omnicom Consulting Group, which performs needs assessments, develops procurements, and assists in the implementation and management of public safety radio systems. Mr. Hogan has been a licensed professional electrical engineer since 1997, and has performed an extensive amount of coverage analysis, system design propagation, and design modeling for land mobile radio systems. Mr. Hogan participated in all negotiation session, but one, and every strategy session, except one. Throughout the negotiation process, Mr. Hogan answered questions and provided guidance to the Negotiation Team members. He also suggested questions the negotiators might ask the vendors, as well as provided information to facilitate the negotiators’ understanding of any highly technical matters. Mr. Hogan relayed that he ensured that the negotiators sufficiently understood the vendors’ presentations so that they were able to knowledgably score the replies.
Philip Shoemaker is currently the chief executive officer of Inspired Technologies. Mr. Shoemaker helped write the SLERS Business Case for the Department. He also assisted in drafting the ITN. Mr. Shoemaker has over 28 years of experience in the information technology field and vast experience in telecommunication procurements. Mr. Shoemaker participated in all aspects of the Department’s negotiation process involving the
Negotiation Team, except for actually scoring the vendors’ Best and Final Offers.
Robert Downie II serves as the Deputy Director of the Department’s Division of Telecommunications. Mr. Downie assisted the Negotiation Team by advising on the program area during the negotiations.
Keith Gaston is a Major with the Florida Highway Patrol.
Major Gaston is the security manager for the current SLERS system, as well as a Joint Task Force Technical Committee member. Major Gaston participated in at least one strategy session.
Bill Skukowski is a Fish and Wildlife Commission employee and a member of the Joint Task Force Technical Committee. Bill Skukowski participated in at least one strategy session.
Based on their various professional and educational backgrounds and vocational experience, the Department was quite comfortable that the negotiators were fully capable and competent to review and score all aspects of Harris’ and Motorola’s Best and Final Offers. The negotiators were adequately knowledgeable of, and well-prepared for, their task of understanding and evaluating the vendors’ network designs, coverage, capacity, and reliability (including use of microwave paths) capabilities, frequency plans, and responses to other objectives in the ITN’s Final Statement of Work. The Department asserts that the
Negotiation Team reached the right conclusion for the right reasons.
Based on the testimony received at the final hearing, the Department demonstrated that the members of the Negotiation Team “collectively [had] the experience and knowledge” required to conduct and score the ITN. Each negotiator convincingly testified regarding their ability to ably and proficiently participate in the Department’s solicitation process. Although, none of the negotiators, individually, had prior experience developing a statewide telecommunications network or administering a P25 system, as a team, they possessed the acumen and competence to conduct this SLERS procurement. Therefore, Harris did not establish that the Department’s appointment of a Negotiation Team consisting of Neal Morris, Becky Bezemek, Phil Royce, Matthew Matney, and Jonathan Rakestraw was contrary to its governing statutes (section 287.057(16)(a)2.).
Coverage, Capacity, Reliability Of Motorola’s Service Design:
Motorola’s Use of Conveyed Towers:
Regarding Harris’ contention that Motorola should not have incorporated Conveyed Towers into its tower network (and, therefore, the Department’s scoring of Motorola’s Best and Final Offer was flawed), the Department (through each negotiator, as well as Mr. Hogan) explained that it was well aware that
Motorola’s system design of 144 RF Towers included 21 Conveyed Towers. The Negotiation Team specifically examined the issue of Motorola’s (or any winning vendor) reliance on Conveyed Towers if it is awarded the SLERS contract. The negotiators concluded that the state has the right to authorize Motorola to use the Conveyed Towers. The Department relayed that, to help reduce costs, the ITN encouraged vendor’s to take advantage of state resources. As stated in the 2016 budget proviso language, the Legislature instructed the Department, “[w]hen scoring proposals, the department shall consider, among other factors, any respondent’s ability to leverage existing resources to the public’s best interest.” (The ITN specifically referenced this quote in its Request for Best and Final Offer, Section 9.)
Furthermore, even assuming that Harris’ expert
(Mr. Tusa) accurately testified that Motorola cannot meet the ITN’s coverage requirements without the Conveyed Towers, the Negotiation Team was satisfied with Motorola’s representation that, for each Conveyed Tower in its proposed network, Motorola could acquire or construct an alternate tower that would enable Motorola to meet and maintain all coverage and capacity requirements. The Department, through Mr. Hogan and
Mr. Shoemaker, testified that the ITN allowed the vendors flexibility in constructing their service design. The Department also understood that either vendor might alter their tower
networks before the SLERS contract officially starts in July 2021. Mr. Hogan relayed that Motorola satisfactorily demonstrated the ability to build and adapt a tower network that would meet the ITN’s coverage objectives.
The Department stressed that the ITN did not mandate a specific number of radio towers a vendor must use to reach the coverage and capacity objectives. Neither did the ITN dictate where a vendor was to actually locate its constellation of tower sites. Furthermore, Mr. Hogan attested that neither the ITN nor the Negotiation Team required the vendors to identify alternative tower sites. Mr. Hogan acknowledged that a vendor will confront a number of factors in selecting a new tower site, including access, construction, cost, environment, and permitting issues. However, he believed that six months was a reasonable amount of time Motorola would need to find an alternate tower site.
In addition, to protect the Department’s interests, the Final Statement of Work provides that, before the SLERS contract begins, the vendor’s system will undergo significant final acceptance testing. If the vendor is unable to meet the
98 percent/95 percent coverage requirements and pass the final acceptance test, the vendor will be obligated to make whatever changes are necessary to ensure that its service meets the coverage requirements at no additional charge to the State. The state will bear no costs beyond the “Total Price for Scoring” the
vendor listed on its SLERS Design Pricing Workbook Pricing Summary, even if the vendor must construct additional towers.22/ The Department fully expected the vendors to rely upon their own experience to develop innovative solutions to meet the ITN’s coverage and capacity objectives.
In line with this approach, the Department pointed to an e-mail sent on November 6, 2017, when it made clear to both vendors that:
All price submissions represent maximum amounts owed to the vendor. The Department will not be responsible for payment in excess of the prices submitted, regardless of the eventuality.
For example, if the awarded vendor proposes to use a resource controlled by the state or a governmental entity and is unable to secure the use of that resource, then the vendor must utilize an alternate resource and charge no higher cost than set forth in the vendor’s Best and Final Offer.
In other words, if Motorola could not use the Conveyed Towers in its network, then Motorola assumed all risk to buildout and complete its tower constellation. The state will not bear any additional costs or expenses necessary to replace or substitute towers.
Motorola’s Service Design:
The Department is fully satisfied that Motorola is capable of designing and implementing a system that will meet the ITN’s requirements. Mr. Downie and Mr. Shoemaker expressed that
the Department sought to place the onus on the vendors, not the state, to build the P25 SLERS system. Therefore, the ITN allowed the vendors to be creative and flexible in crafting a proposed “solution” to build, then operate, the new P25 SLERS. Mr. Hogan represented that, based on the methodology and coverage prediction maps Motorola presented in its Best and Final Offer, the Department believes that Motorola will build a system that meets the ITN’s coverage and capacity objectives.
Regarding Harris’ charge that the frequency plan Motorola listed in its Best and Final Offer was inadequate to meet the ITN’s capacity objective, Mr. Hogan pointed out that the ITN did not require vendors to present a “valid final” frequency plan. Instead, the Request for Best and Final Offer asked vendors to describe how they would develop their frequency plan. Furthermore, Mr. Hogan explained that radio frequencies available on one date, (e.g., February 14, 2018) might not be available at a later date (e.g., July 1, 2021) when the vendor would apply to the Federal Communications Commission for the frequency licenses.
Further, Mr. Hogan testified that the Department recognizes that conducting a frequency interference analysis or intermodulation analysis is an enormous and costly undertaking. Therefore, the Department did not request the vendors complete this task prior to an award of the SLERS contract. He commented that this type of analysis for a statewide network of this scale
is normally accomplished during system implementation, along with an extensive site-by-site review. Mr. Hogan further articulated that if a proposed tower site is determined to be unusable during the construction and implementation of the network, the vendor, not the state, is obligated to identify and secure a viable, alternate tower site.
The Department also found that Motorola’s proposed service design satisfies the reliability requirements of the Request for Best and Final Offer. During negotiations (and at the final hearing), Motorola presented credible testimony explaining that any risk of rain fade in its 11-GHz microwave paths would not unacceptably disrupt SLERS radio communications. Mr. Hogan explained that microwave is commonly used in public safety communication systems. Microwave is the mechanism that allows wide area communication over long distances. Therefore, the Department anticipated the vendors’ use of microwave paths between towers to enable their systems to meet the required reliability expectations. The ITN did not prohibit vendors from using 11-GHz microwave paths.
Mr. Hogan was aware that rain may cause the microwave signal levels to decrease. Mr. Hogan was also cognizant that
11-GHz microwave paths are more susceptible than 6-GHz microwave paths to rain fade. Therefore, thunderstorm activity combined
with the lengthy distance between towers in Motorola’s network might affect the connectivity of Motorola’s system design.
However, Mr. Hogan was satisfied that Motorola’s design includes a mechanism to reduce loss due to rain fade, thereby maintaining the desired reliability of its system. Motorola intends to equip its RF towers with a back-up Ethernet system, as well as multiple alternate paths. This system design will operate to prevent RF towers from losing connection to the network during a rain storm.
MOTOROLA RESPONSE TO HARRIS’ PROTEST
In arguing that Harris’ protest has no merit, Motorola asserts that not only does its Best and Final Offer comply with all ITN requirements, but its proposed service design will provide the state with a new P25 radio system that takes advantage of the latest advancements in technology and network designs. Motorola’s solution will meet the performance objectives set forth in the ITN. And, it will do so for approximately $300 million less than Harris.
Coverage, Capacity, Reliability of Service Design:
Regarding Harris’ allegations that Motorola’s Best and Final Offer does not meet the ITN’s technical requirements, Motorola responds as follows:
Use of Conveyed Towers:
Motorola testified that the Department fully supported Motorola’s (or any vendor’s) use of Conveyed Towers to develop their tower network. Motorola points to the Department’s Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 9, which refers directly to Specific Appropriation 2838, chapter 2016-66, Laws of Florida, and states, “When scoring proposals, the department shall consider, among other factors, any respondent's ability to leverage existing resources to the public's best interest.” Motorola understood that the state will have access to the Conveyed Towers, rent free, beginning in 2021 after the Harris SLERS contract expires. Based on the legislative directive to “leverage existing resources,” Motorola readily incorporated the Conveyed Towers into the overall architecture of its system.
Motorola also points out that the ITN did not require vendors to provide a list of fixed and immutable tower sites or identify alternate tower sites in their Best and Final Offers. Instead, the winning vendor was free (if not expected) to finalize their tower networks during the transition period prior to the start of the SLERS contract.23/ Several provisions of the ITN demonstrate that the Department sought the vendors’ preliminary plans for future development of a coverage configuration that would meet the SLERS service requirements.
For example, ITN, Section 3.3.1, directed the vendors to “[d]escribe how the proposed Terrestrial and Maritime Service design will be developed.” (emphasis added). ITN, Section 9, advised that the Department required “a detailed Transition Plan that defines the proposed activities that will be completed during the SLERS implementation. Should the [vendor] propose utilization of existing resources[,] the Transition Plan shall explain how these resources will be leveraged in the transition of the implementation.” (emphasis added).
At the final hearing, Motorola, through Andrew Miller, a system engineer, credibly testified that Motorola had already identified potential alternative sites to replace any of the
144 towers listed in its Best and Final Offer should they not be available or feasible for use in its final tower network. In reaching its proposed list of 144 tower sites, Motorola personnel visited more than 290 potential sites to evaluate suitable candidates. Motorola personnel also assessed approximately
300 additional sites in case any of the 144 tower sites were unavailable for the new P25 system. In addition, to verify its coverage assumptions, Motorola ran coverage-prediction scenarios through computer programs which enabled Motorola to further refine its service design. Mr. Miller was confident that Motorola would find alternative tower sites before July 2021 if Harris’ Conveyed Towers were not available. Furthermore,
Motorola’s Best and Final Offer represented to the Department that if access to any of the Conveyed Towers was delayed, Motorola is prepared to deploy temporary sites and Project 25 Inter RF Subsystem Interfaces (“ISSI”) to ensure that its SLERS system meets the required level of operational capacity.
Finally, Motorola also points out that the Department made it clear during negotiations that if Motorola won the contract, but was not able to use any of Harris’ Conveyed Towers (or any other “existing resource”) in its system design, Motorola was responsible for finding an alternative at no additional cost to the Department. Motorola also referenced Ms. Covell’s e-mail, dated November 6, 2017, wherein she explained that, “All price submissions represent maximum amounts owed to the vendor. The Department will not be responsible for payment in excess of the prices submitted, regardless of the eventuality.”24/
Reliability of Motorola’s Service Design:
Motorola declares that its service design fully complies with the ITN’s requirement that vendors must build redundancies and backup options into the P25 system to account for possible connectivity, component, or hardware failures. See ITN, Section 3.1.5.
Regarding Harris’ charge that Motorola’s use of 11-GHz microwave paths is less reliable than 6-GHz microwave in bad weather, Motorola responds that it designed its system with
several layers of redundancy. At the final hearing, Motorola presented Said Jilani, a network solutions architect with Aviat Networks, who described how Motorola’s microwave transport system was designed to account for, and circumvent, possible rain fade. Mr. Jilani explained that Motorola’s network includes:
1) industry traditional microwave radio (operating mostly on 11-GHz channels, as well as some 6-GHz channels)25/; 2) carrier circuits supplied by AT&T (referred to as Ethernet); and
3) 4G LTE wireless (similar to cell phone service). Furthermore, in designing its system’s microwave paths, Motorola assessed microwave path reliability, and identified backup paths or other options in the event of outages or microwave fading due to rain, equipment failure, or other adverse conditions.
Mr. Jilani further testified that Motorola’s proposed system design includes Internet Protocol/Multiple Protocol Layer Switching (“IP/MPLS”) routing equipment at every tower site. This IP/MPLS equipment serves to identify the optimal microwave path to transmit radio signals. The optimal path might be a microwave path or an AT&T-owned carrier path. Mr. Jilani stated that IP/MPLS technology provides full detection, quick recovery, and scaling of the network through virtualization. The use of IP/MPLS technology is a common practice in the public-safety industry.
In developing its system, Motorola also used a software program to analyze the parameters and availability of each microwave path. Factored into the program’s analysis was historical rain data for the applicable region of the state. Should rain fading occur, Motorola’s system will be programed to detect the issue and switch transmission to the second-shortest microwave path (or AT&T carrier path). With its multi-layered design, Motorola asserts that its system will remain fully operational during extreme weather events. Motorola’s preliminary design is expected to provide 99.999966 percent composite path availability. (Mr. Miller explained that this standard equates to approximately 15 seconds of lost radio signal per year if every communications system at a tower site failed at once-–thus, a highly reliable number.) Therefore, while Motorola’s decision to use mostly 11-GHz microwave paths (instead of 6-GHz channels) increases the potential for rain fade,
Mr. Jalani and Mr. Miller credibly testified that Motorola’s backup paths enable its SLERS system to continue operations and remain viable even during heavy rainstorms.
3) Motorola’s Frequency Plan:
Motorola asserts that the frequency plan it provided in its Best and Final Offer fully complies with the terms of the ITN. Motorola argues that Harris’ contention that Motorola cannot implement a viable frequency plan is incorrect. In
addition, the ITN sought a preliminary, not final, frequency plan.26/ (The ITN directed the vendors to “[d]escribe how a detailed frequency plan will be developed and any special considerations for use of 700 MHz and 800 MHz channels.” See Final Statement of Work, Section 3.5. (emphasis added).) The Department did not require the vendors to pre-license their frequencies at the time they submitted their Best and Final Offers.
Motorola’s expert witness, Dominic Villecco of V-Comm, LLC, credibly testified that, if awarded the SLERS contract, Motorola will be able to effectuate a fully capable and compliant frequency plan to meet the ITN’s coverage objectives. Motorola intends to find the majority of the frequencies it will use for radio transmissions in 700 band frequencies. Mr. Villecco explained that 800 band frequencies are congested because they have been allocated and licensed for public-safety purposes since the 1980s. In contrast, 700 band frequencies, which were not licensed for public-safety purposes until the 2000s, contain more unused channels. Mr. Villecco relayed that Motorola’s system will need between 6-10 channels at each tower site. In its Best and Final Offer, Motorola identified potential frequencies it might use to generate its frequency plan. Mr. Villecco opined that, prior to implementing the SLERS contract in July 2021, Motorola should not have any difficulty acquiring available
frequencies in the 700 band over which to conduct radio communications. In addition, using the “cleaner” 700 band will allow Motorola more flexibility to position RF tower sites where necessary to provide maximum coverage and reliability.
Motorola further contends that Harris’ allegations ignore how radio frequencies are allocated and licensed in practice. Testimony at the final hearing explained that licenses for radio frequencies are normally issued after a communications tower or network has been constructed or installed.
Consequently, the competitors for this SLERS contract will not be able to definitively identify which radio frequencies their communication networks will use (or which frequencies will actually be available for use) until a license is applied for.
Furthermore, because the final tower design will be pieced together over the transition period, a frequency that was identified at the time the vendors submitted their Best and Final Offers might not be available when the system “goes live.”
Mr. Villecco testified that, consequently, securing the precise statewide frequency plan prior to award of the SLERS contract is impractical, if not impossible. Instead, the standard industry practice in procurements is for a vendor to ascertain the general availability of frequencies. Then, after award of the contract, the winning vendor identifies the specific, available frequencies to incorporate into its network.
At that point, a license to use those frequencies is obtained from the Federal Communications Commission in the name of the applicable government entity. Thereafter, the vendor fully develops the final frequency plan (as contemplated by ITN, Section 3.5.)
The Price is the Price:
Regarding Harris’ complaint that Motorola submitted an (unrealistic) price to provide the SLERS service, Motorola pithily responded that “the price is the price.” In other words, should Motorola be awarded the SLERS contract, the total price that the Department will be obligated to pay for the service is capped by the figure Motorola quoted on the Final Pricing Workbook ($687,797,127). See Request for Best and Final Offer, Attachment B – Final Contract, Section 3.1, which states, “The [Vendor] shall adhere to the prices as stated in Pricing Workbook, Attachment E.” Furthermore, the Department will not pay the winning vendor during the transition period when the vendor is constructing and implementing its system’s final design. Therefore, despite Harris’ claims that Motorola’s much lower price will lead to future financial liabilities on the part of the state, Motorola repeatedly and credibly testified that it has no expectation or intention of seeking additional monies from the state to operate the SLERS service.
Furthermore, in response to Harris’ allegation that Motorola’s Best and Final Offer did not include firm component prices, Motorola, through Jay Malpass, its Strategic Project Manager, presented credible testimony reiterating the Department’s description of finality of the price Motorola quoted as its “Total Price for Scoring,” as well as Motorola’s obligation to bear any additional costs after the Department awards the contract (e.g., the cost of locating or constructing alternate tower sites or erecting security fencing). Mr. Malpass explained that Motorola will bear all costs incurred during the four-year transition period to make its system operational.
Mr. Malpass further testified that the price recorded in its Final Pricing Workbook ($687,797,127.00) “is locked in.” That figure represents Motorola’s “full total price, all inclusive, not to exceed, complete, compliant design.” Mr. Malpass asserted that Motorola fully intends to be bound by that price and does not expect the state to pay it anything more for the delivery of a successful P25 SLERS service.
To summarize the findings in this matter, the competent, substantial evidence presented at the final hearing demonstrates that Motorola submitted a service design in its Best and Final Offer that fully complied with the ITN requirements. Motorola (and the Department) credibly explained the methodology Motorola will use to construct, operate, and maintain a new P25
SLERS service. Motorola presented persuasive evidence that the radio communications system it will build will meet the ITN’s coverage, capacity, and reliability objectives (with or without the Conveyed Towers). Motorola’s witnesses credibly testified that Motorola will be able to acquire any necessary assets or equipment to build its network during the transition period prior to the start of the SLERS contract (e.g., alternate tower sites or radio frequencies). Furthermore, based on its explanation of the “routing diversity” incorporated into its system design, Motorola presented credible and persuasive evidence that its use of 11-GHz microwave paths will be sufficiently structured to meet the ITN’s coverage and reliability expectations in the event of microwave path outages, rain fading, or other severe environmental incidents.
Finally, Motorola satisfactorily addressed any concerns about the price it will charge the state. The price it quoted as its “Final Price for Scoring” ($687,797,127.00) is the maximum price the state will pay Motorola upon award of the SLERS contract.
Regarding Harris’ complaint that the Department did not assign a qualified Negotiation Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assembled to score the vendors’ responses “collectively” possessed the “experience and knowledge
in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought” as required by section 287.057(16)(a)2. The Negotiation Team’s ranking of the Best and Final Offers was logical, reasonable, and based on a sound understanding of the information sought in the ITN.
Finally, Harris did not establish, by a preponderance of the evidence, that the Department’s decision to award the SLERS contract to Motorola was clearly erroneous, contrary to competition, arbitrary, or capricious. There is no evidence Motorola obtained any competitive advantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the ITN.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties to this competitive procurement protest pursuant to sections 120.569, 120.57(1), and 120.57(3), Florida Statutes.
Harris challenges the Department’s award of the SLERS contract to Motorola. Pursuant to section 120.57(3)(f), the burden of proof in this matter rests with Harris as the party protesting the proposed agency action. See State Contracting & Eng’g Corp. v. Dep’t of Transp., 709 So. 2d 607, 609 (Fla. 1st
DCA 1998). Section 120.57(3)(f) further provides that in a competitive procurement protest:
[T]he administrative law judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.
The “governing statute” for the Department’s use of the invitation to negotiate process to procure contractual services is found in section 287.057(1)(c). Section 287.057(1)(c)4. states:
The agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award. The agency may select one or more vendors within the competitive range with which to commence negotiations.
After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria.
Section 287.012(4) defines “best value” as:
[t]he highest overall value to the state based on factors that include, but are not limited to, price, quality, design, and workmanship.
The phrase “de novo proceeding” describes a form of intra-agency review. The purpose of the ALJ’s review is to
“evaluate the action taken by the agency.” J.D. v. Fla. Dep’t of
Child. & Fams., 114 So. 3d 1127, 1132 (Fla. 1st DCA 2013); and State Contracting, 709 So. 2d at 609. A de novo proceeding
“simply means that there was an evidentiary hearing . . . for administrative review purposes” and does not mean that the ALJ “sits as a substitute for the [agency] and makes a determination whether to award the bid de novo.” J.D., 114 So. 3d at 1133;
Intercontinental Props., Inc. v. Dep’t of Health & Rehab. Servs.,
606 So. 2d 380, 386 (Fla. 3d DCA 1992). “The judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency.” State Contracting, 709 So. 2d at 609.
Accordingly, Harris, as the party protesting the Department’s intended award, must prove, by a preponderance of the evidence, that the Department’s proposed action is either:
contrary to its governing statutes; (b) contrary to its rules or policies; or (c) contrary to the specifications of the ITN. The standard of proof Harris must meet to establish that the award to Motorola violates this statutory standard of conduct is whether the Department’s decision was: (a) clearly erroneous;
contrary to competition; or (c) arbitrary or capricious.
§§ 120.57(3)(f) and 120.57(1)(j), Fla. Stat., and AT&T Corp. v. State, Dep't of Mgmt. Servs., 201 So. 3d 852, 854 (Fla. 1st DCA
2016).
The “clearly erroneous” standard has been defined to mean “the interpretation will be upheld if the agency’s construction falls within the permissible range of interpretations.” Colbert v. Dep’t of Health, 890 So. 2d 1165, 1166 (Fla. 1st DCA 2004); see also Holland v. Gross, 89 So. 2d
255, 258 (Fla. 1956)(when a finding of fact by the trial court “is without support of any substantial evidence, is clearly against the weight of the evidence or . . . the trial court has misapplied the law to the established facts, then the decision is ‘clearly erroneous.’”). However, if “the agency’s interpretation conflicts with the plain and ordinary intent of the law, judicial deference need not be given to it.” Colbert, 809 So. 2d at 1166.
An agency action is “contrary to competition” if it unreasonably interferes with the purpose of competitive procurement. As described in Wester v. Belote, 138 So. 721, 722 (Fla. 1931):
The object and purpose [of the bidding process] . . . is to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but
temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in its various
forms; to secure the best values . . . at the lowest possible expense; and to afford an equal advantage to all desiring to do business . . . , by affording an opportunity for an exact comparison of bids.
In other words, the “contrary to competition” test forbids agency actions that: (a) create the appearance and opportunity for favoritism; (b) reduce public confidence that contracts are awarded equitably and economically; (c) cause the procurement process to be genuinely unfair or unreasonably exclusive; or
(d) are abuses, i.e., dishonest, fraudulent, illegal, or unethical. See § 287.001, Fla. Stat.; and Harry Pepper & Assoc.,
Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA
1977).
Finally, section 120.57(3)(f) requires an agency action be set aside if it is “arbitrary, or capricious.” An “arbitrary” decision is one that is “not supported by facts or logic, or is despotic.” Agrico Chemical Co. v. Dep’t of Envtl. Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. denied, 376
So. 2d 74 (Fla. 1979). A “capricious” action is one which is “taken without thought or reason or irrationally.” Id.
To determine whether an agency acted in an “arbitrary, or capricious” manner involves consideration of “whether the agency: (1) has considered all relevant factors; (2) given actual, good faith consideration to the factors; and (3) has used reason rather than whim to progress from consideration of these factors to its final decision.” Adam Smith Enter. v. Dep’t of Envtl. Reg., 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). The
standard has also been formulated by the court in Dravo Basic
Materials Co. v. Department of Transportation, 602 So. 2d 632,
632 n.3 (Fla. 2d DCA 1992), as follows: “If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious.”
ANALYSIS
Harris Has Standing to Protest the Contract Award Process:
As an initial procedural matter, the Department and Motorola challenge Harris’ standing to file a protest against the Department’s award the SLERS contract. Standing is a jurisdictional, threshold issue in a chapter 120 proceeding. Generally, standing is not dependent on the merits of a party’s case, but rather the equivalent of assessing subject-matter jurisdiction. See Grand Dunes, Ltd. v. Walton Cty., 714 So. 2d
473, 475 (Fla. 1st DCA 1998); and Abbott Labs. v. Mylan Pharmaceuticals, Inc., 15 So. 3d 642, 651 n.2 (Fla. 1st DCA
2009). DOAH lacks jurisdiction to consider a petition’s merits unless and until a petitioner affirmatively establishes standing. See Westinghouse Elec. Corp. v. Jacksonville Transp. Auth., 491
So. 2d 1238, 1240–41 (Fla. 1st DCA 1986).
To have standing to initiate a bid protest, a petitioner must establish that an agency’s decision “adversely
affected” its substantial interests. See §§ 120.569(1) and
120.57(3)(b), Fla. Stats.; Westinghouse, 491 So. 2d at 1240–41. A petitioner shows that it was “adversely affected” by demonstrating that it would be eligible for award of the contract if its bid challenge is successful. See Preston Carroll Co. v.
Fla. Keys Aqueduct Auth., 400 So. 2d 524, 525 (Fla. 3d DCA 1981); and Madison Highlands, LLC v. Fla. Hous. Fin. Corp., 220 So. 3d
467, 473 (Fla. 5th DCA 2017)(“The second lowest bid establishes that substantial interest [to challenge the proposed award] because if the lowest bid is disqualified, the second lowest bid may receive the award.”).
On the other hand, a petitioner who submits a nonresponsive reply in a competitive procurement is not eligible for the contract. Consequently, that petitioner would not have standing to challenge the agency’s award of the contract to another vendor, because the petitioner cannot win the contract. See Westinghouse, 491 So. 2d at 1240–41; and Peace River/Manasota
Reg’l Water Supply Auth. v. IMC Phosphates Co., 18 So. 3d 1079, 1082-83 (Fla. 2d DCA 2009)(“As a general proposition, ‘[s]tanding is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.’” (quoting Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505
(Fla. 2006).
Here, Harris was ranked second by the Department for the SLERS contract. Under the traditional standing test in Agrico Chemical Comapany v. Department of Environmental
Regulation, 406 So. 2d 478, 479 (Fla. 2d DCA 1981), Harris was “adversely affected” by the Department’s allegedly wrongful award of the SLERS contract to the next lowest vendor.
The Department and Motorola, however, assert that Harris lacks standing because Harris cannot establish that it is a “responsible and responsive vendor” under the ITN.27/ The Department contends that the cover letter (and pricing summary) Harris included with its Best and Final Offer declared that Harris would not accept the risks of the SLERS contract unless the Department continued to negotiate payment of Harris’ capital investment costs. Through this ultimatum, which directly contradicted the ITN’s instructions not to “make any changes, revisions, exceptions, or deviations” to the Final Contract, Harris effectively withdrew from the SLERS solicitation. Consequently, Harris is not “adversely affected” by the Department’s selection of Motorola because Harris cannot win the SLERS contract.
The undersigned concludes that Harris did present a responsive reply to the Department’s Request for Best and Final Offer. Therefore, Harris has standing to challenge the
Department’s award of the SLERS contract in a chapter 120 administrative proceeding.
At the final hearing, Harris, through Ms. Marcella, persuasively testified that Harris was (and is) ready, willing, and able to enter the Final Contract, at the terms expressed in that Final Contract, if it is awarded the SLERS service.
Ms. Marcella insisted that Harris’ Best and Final Offer was not conditioned on the Department’s willingness to negotiate payment of Harris’ capital investments to start-up a new P25 SLERS service. Instead, based on its discussions with the Negotiation Team, Harris used the cover letter to highlight its concern that the Florida Legislature had not yet fully funded a new SLERS service. Harris requested the Department to acknowledge that Harris desired the opportunity to lobby the Florida Legislature to recoup its capital investment costs before the contract was formally signed.
Ms. Marcella further expressed that Harris did not submit its Best and Final Offer in an attempt to continue negotiations. Harris’ reply responded to every coverage, capacity, and reliability requirement in the Department’s Request for Best and Final Offer. Harris fully intended to be contractually bound by the services it offered in its Best and Final Offer. Ms. Marcella proclaimed that if the Legislature declined to designate additional funds for the winning vendor’s
capital costs, Harris would readily have entered the Final Contract, and provided all the SLERS services the Final Contract demanded.
The evidence at the final hearing established that, except for the language in the cover letter (and pricing summary), Harris’ Best and Final Offer materially complied with the ITN’s specifications and was eligible for award of the SLERS contract. (The fact that the Department accepted, evaluated, found responsive, and scored Harris’ reply supports as much.) Therefore, Harris satisfactorily proved that it was “adversely affected” by the Department’s award of the SLERS contract to Motorola instead of its own Best and Final Offer. Accordingly, Harris has standing to protest the Department’s award in a chapter 120 proceeding.
The Merits of Harris’ Protest:
Turning to the merits of Harris’ protest, the evidence at the final hearing conclusively establishes the following facts:
The system design Motorola presented in its Best and Final Offer is not the final “network solution” Motorola will construct to service the SLERS contract;
If awarded the SLERS contract, Motorola fully anticipates that it will modify its Best and Final Offer system design during the four-year transition period as it builds,
tests, and implements its network. In particular, it is highly probable that Motorola will alter the tower sites it will use;
Motorola knew at the time it presented its Best and Final Offer that it would modify its service design before its P25 SLERS system “goes live;”
The ITN’s Negotiation Team understood (if not anticipated) that Motorola’s service design presented in its Best and Final Offer would not be its final telecommunications system;
and
In its Best and Final Offer, Motorola presented a
service design that would have provided the P25 SLERS service the Department sought through the ITN.
The evidence also establishes that Motorola is ready, willing, and able to construct and implement a service design that fully provides the P25 SLERS service the Department seeks, prior to the start of the SLERS contract.
In light of these factual findings, the central issue in this matter turns on whether the Department’s decision to award the SLERS contract to Motorola was based on a process that was clearly erroneous, contrary to competition, arbitrary, or capricious. If Harris demonstrates that the Department should not have awarded the SLERS contract to Motorola, then the Department’s failure to contract with Harris (the next eligible
vendor) would be contrary to its governing statutes (§ 287.057) and the ITN specifications.
As detailed below, the undersigned concludes that the Department’s decision to award the SLERS contract to Motorola is not clearly erroneous, contrary to competition, or arbitrary or capricious.
Negotiation Teams’ Qualifications:
Initially, Harris alleges that the Department violated the solicitation’s governing statute by selecting unqualified persons to negotiate the ITN. To procure contractual services through an invitation to negotiation, section 287.057(16)(a) required the Department to appoint:
At least three persons to conduct negotiations during a competitive sealed reply procurement who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought.
As found in paragraphs 86 through 89 above, the evidence in the record establishes that the persons the Department assigned to the Negotiation Team “collectively” had the requisite experience and knowledge to conduct negotiations for the SLERS service. Based on the testimony, Mr. Morris,
Ms. Bezemek, and Mr. Rakestraw demonstrated their proficiency in contract procurement through their previous and current work
responsibilities, as well as the training they have received in contract negotiation. In addition, Mr. Matney and Mr. Royce were familiar with and knowledge of the program areas and service requirements of a SLERS system. Mr. Rakestraw and Mr. Matney are currently involved in the state’s administration and oversight of the current SLERS system.28/ Accordingly, the Department persuasively established that the Negotiation Team “collectively” had the required experience and knowledge to evaluate, negotiate, and score the vendor’s replies.
The Department’s Award to Motorola was not Contrary to the Department’s Governing Statute or the ITN Specifications:
Harris alleges the Department violated section 287.057(1)(c)4. because the Negotiation Team incorrectly determined that Motorola’s Best and Final Offer provides the “best value to the state, based on the selection criteria.” To advance this argument, Harris asserts that Motorola’s proposed system design was so full of deficiencies and omissions that the Negotiation Team could not have reasonably determined the true design or price of the P25 SLERS service Motorola offered to the state-–much less whether Motorola would provide the “best value.”
However, the Department’s decision to award the SLERS contract to Motorola did not violate the language of the ITN, even if Motorola will have to modify its telecommunications network to ensure that it meets the ITN’s coverage and capacity
objectives before the start of the contract. Initially, the Department (and Motorola) effectively established that the Request for Best and Final Offer instructed the vendors to provide a “proposed Service design,” as well as submit “representative documentation” and a “diagram of the proposed connectivity” of each tower site in their Best and Final Offers. See Request for Best and Final Offer, Attachment A – Final
Statement of Work, Section 16.1. The ITN called for a preliminary design, with the ultimate delivery system to be developed by the winning vendor after execution of the contract. The ITN did not require the vendors to present a final, fixed tower network. Instead, this procurement focused on selecting a vendor who best demonstrated the ability to construct, operate, and maintain a statewide radio communications system beginning in July 2021. See ITN, Section 3.9.6.
The Department cogently described that an important aspect of this procurement was to gain an understanding of the vendors’ approach and methodology to meeting the ITN’s coverage, capacity, and reliability requirements. During negotiations, as well as when scoring the Best and Final Offers, the negotiators evaluated the vendors’ service designs and coverage maps to assess their ability to deliver the desired SLERS service. The Department’s witnesses persuasively testified that the Department was fully aware that the winning vendor (either Harris or
Motorola) might modify its proposed network before the start of the contract.
Harris principally argues: that Motorola’s network of
144 RF tower sites cannot deliver the P25 SLERS service because Motorola’s system design relies on 21 unavailable Conveyed Towers; that Motorola failed to identify any alternate tower sites to fill in the holes in its coverage map; that Motorola will also confront tower loading and signal interference issues; and that Motorola’s Best and Final Offer contains no satisfactory explanation of how it will overcome these deficiencies.
However, based on the evidence and testimony at the final hearing, Motorola (and the Department) demonstrated that it is fully capable and prepared to develop, then produce, a telecommunications system that will meet the ITN’s coverage and capacity objectives. Motorola effectively described how its proposed tower network and frequency plan will fully comply with the ITN’s requirements for a P25 SLERS service. (The negotiators also concluded that Motorola could, and should, have considered using “existing resources,” such as the Conveyed Towers, in its service design.) Motorola also satisfactorily communicated how it will obtain the required frequency licenses to effectuate its SLERS service. Motorola further established how its proposed system will maintain “high reliability” by incorporating
technology that includes three redundancy layers to account for microwave outages and rain fading.
Finally, the fact that the Negotiation Team scored a Motorola service design that Motorola only “proposed” as of the submission of the Best and Final Offers does not automatically make the Department’s selection of Motorola illogical or unreasonable. The ITN explicitly protects the state by mitigating potential risks. To ensure that Motorola’s P25 SLERS system operates as intended, Motorola’s radio communications system will be subject to “exhaustive and comprehensive” coverage acceptance testing. Should Motorola’s system fail to be “fully installed, programmed, made operational, and fully tested” by the start of the SLERS contract period, then Motorola (not the state) will be responsible for fixing all service flaws, as well as paying for the same. See Request for Best and Final Offer, Attachment A - Final Statement of Work, Sections 3.3.1, 3.10, and 13.1.
Regarding Harris’ allegation that the manner in which Motorola formulated its price allowed it an unfair competitive advantage, the Department (and Motorola) credibly testified that Motorola’s “Total Price for Scoring” ($687,797,127) reflects the maximum compensation the state will owe Motorola for the SLERS contract. Harris’ primary criticism is that Motorola misrepresented or withheld certain costs from its final price.
Consequently, if awarded the contract, Motorola will continue to negotiate, or simply impose, additional, unknown costs onto the state. However, the Department (and Motorola) satisfactorily articulated that, should Motorola incur additional capital costs to implement its system, the state will not pay Motorola more than the “ceiling pricing” Motorola quoted in its SLERS Design Pricing Workbook Pricing Summary. See ITN, Section 3.9.5.
Motorola attested that it is fully aware that it bears all costs necessary to ensure that its SLERS service meets the ITN’s coverage and capacity objectives. Therefore, even if the individual component prices of Motorola’s system increase prior to the start of the SLERS contract, the ultimate price Motorola quoted to the Department remains the same. Accordingly, the Department’s decision to score the price listed in Motorola’s Best and Final Offer was not clearly erroneous or contrary to competition.
Therefore, the undersigned concludes that the Department’s determination that Motorola will provide the “best value to the state” was rationally and reasonably supported and follows the ITN’s specifications regarding how “best value” is to be determined. At the final hearing, the Department presented good faith, factual, and logical reasons why it found Motorola’s reply responsive to the ITN, and then ranked Motorola higher than its competitor. The ITN did not mandate, as Harris advances, the
Department to hold the vendors to the strict requirement of producing a final, unalterable service design in their Best and Final Offers. Further, the Department credibly established that its negotiators/scorers were able to competently understand and evaluate Motorola’s ability to provide a new P25 SLERS service based on the information Motorola provided in its Best and Final Offer.
Regarding Motorola’s price, the evidence shows that the Department correctly applied the ITN’s pricing formula when scoring the vendors’ replies to the Final Pricing Workbook. Harris did not prove that the Department gave Motorola an inequitable or unfair competitive advantage by (allegedly) condoning Motorola’s attempt to withhold costs from its final contract price.
Accordingly, based on the evidence in the record, Harris failed to demonstrate that the Department’s determination that Motorola will provide the “best value to the state, based on the selection criteria” was made in a manner that was clearly erroneous, contrary to competition, arbitrary, or capricious. Therefore, Harris did not meet its burden of proving that the Department’s decision to award the SLERS contract to Motorola is contrary to its governing statutes, rules, or policies, or the ITN’s terms or provisions. The Department’s selection of Motorola should not be set aside.29/
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protest by Harris. It is further recommended that the Department of Management Services award the contract under Invitation to Negotiate No. DMS-15/16- 018 to Motorola.
DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida.
S
J. BRUCE CULPEPPER Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2018.
ENDNOTES
1/ Unless otherwise stated, all citations to the Florida Statutes are to the 2017 version.
2/ No protests were made to the specifications or terms of the ITN.
3/ A ten-volume redacted version of the Transcript was also filed with DOAH.
4/ P25 is derived from a suite of standards for North American digital radio communications for federal, state, and local public safety organizations and utilities developed by the Association of Public-Safety Communications Officials-International and defined by Telecommunications Industry Association standards known as TIA-102.
5/ P25 includes two phases. Phase II technology represents a design that doubles the number of voice talkpaths. This development requires fewer components in the infrastructure design. Phase II also provides additional benefits related to cost, complexity, service, and support.
6/ Section 287.0571(4) states that “an agency shall complete a business case for any outsourcing project that has an expected cost in excess of $10 million within a single fiscal year.” Thereafter, before an agency proceeds with any such outsourcing of services to private sector vendors, a business case to outsource must be evaluated for feasibility, cost-effectiveness, and efficiency. § 287.0571(2), Fla. Stat.
7/ In 2014, the Florida Legislature appropriated $1 million from the Law Enforcement Radio System Trust Fund for the Department “to contract with an independent third party consulting firm to complete a study of the SLERS and provide a recommendation to upgrade the system on or before June 30, 2021. The study and potential upgrade to the system shall be by a competitive procurement . . . .” Specific Appropriation 2904A, ch. 2014-51, Laws of Fla.
8/ The Department also received a Reply from RELM Wireless Corporation (“RELM”). The Department determined that RELM’s Reply was nonresponsive to the Responsiveness Requirements in ITN, Section 3.5. Therefore, the Department did not invite RELM to negotiate for the SLERS contract.
9/ Harris’ protest does not challenge the evaluation phase or the competitive range determination.
10/ Mr. Downie explained that the Department routinely includes a Termination for Convenience clause in its contracts. This provision authorizes the Department the right to terminate the SLERS contract for any reason, or no reason whatsoever. One example of how the Department might cancel the contract “for convenience” would be if the Legislature determined that the
state no longer needed, or wanted, the SLERS. The Termination for Convenience clause would allow the Department to terminate its agreement without incurring any financial obligation.
Based on the language in the Termination for Convenience clause, should the Department elect to cancel the SLERS contract during the “four years of non-paid transition,” the winning vendor would not be able to recover from the Department any capital investments expended to build its communications network.
11/ The ITN, Section 1.4, set forth initial contract terms and a transition period as follows:
The initial term of the contract is anticipated to be up to eleven years with 0-7 renewal years. It is anticipated that the initial term of the contract will incorporate the transition period from the current SLERS to the new SLERS.
12/ For example, the categories of “Capabilities & Technology” and “Coverage & Capacity” each offered ten maximum obtainable points. On the other hand, the categories of “Experience & Ability,” “Security,” and “Service Level Agreements” only awarded a 2.5 maximum obtainable points.
13/ The Department is procuring SLERS as a “service.” For the SLERS service, the Department will pay the winning vendor the “Maximum Annual Service Price” the vendor offered on the SLERS Design Pricing Workbook Pricing Summary (apportioned on a monthly basis). Under the ITN terms, the vendor’s Maximum Annual Service Price will be the vendor’s complete compensation to implement, operate, and maintain the SLERS.
As a matter of transparency, the SLERS Design Pricing Workbook Pricing Summary also required the vendors to provide itemized component pricing. These separate “Extended Prices” were to enable the Department to understand the vendors’ various costs associated with the SLERS service, as well as assist the Department in determining the cost of enhancing or decreasing the level of a particular service. See also endnote 22 below.
14/ The total price each vendor submitted for the SLERS contract consisted of an annual price for the initial 15 years of the contract, an annual price for the ten renewal years, and a onetime price for the “subscriber units” (i.e., radios) that the Department would purchase for the SLERS. Harris’ maximum annual
price for the initial 15 contract years is $40,733,076.00 per year.
15/ Motorola’s maximum annual price for the initial 15 contract years is $32,654,381 per year.
16/ See Section 287.057(1)(c)4., Florida Statutes, which provides that “[a]fter negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria.” See also § 287.012(4), which defines “best value” as “the highest overall value to the state based on factors that include, but are not limited to, price, quality, design, and workmanship.”
17/ Under the existing SLERS contract, Harris will continue to own the Conveyed Towers until June 30, 2051. On that date, the State of Florida must purchase the Conveyed Towers back from Harris. (The current contract also contains a “buy back” provision wherein Harris and the State of Florida may agree to an earlier sales date.)
At the formal hearing, Harris asserted that its existing SLERS contract does not grant the State of Florida or Motorola the legal authority to use the Conveyed Towers as part of Motorola’s proposed P25 system until Harris sells the Conveyed Towers back to the State.
18/ The issue of Harris’ rights and obligations to the Conveyed Towers is currently the subject of state court litigation.
19/ “Rain fade,” also called “rain attenuation,” refers to the absorption (or loss) of microwave radio frequency signals due to rain or other inclement weather.
20/ According to Mr. Hancock, Harris’ system relies mostly on 6-GHz microwave links, which are more reliable that 11-GHz microwave links.
21/ A “frequency” is the carrier of the voice/radio communications. A “frequency band” is a range of frequencies, such as the “700 band” or the “800 band.” The term “700 band” refers to frequencies within the range of 700- to 799- megahertz.
The Federal Communications Commission licenses frequency bands, which are limited in number, and regulates how licensees operate within a given band. For the SLERS contract, the State
of Florida will hold the licenses for the frequency bands used for the SLERS communications system.
22/ Although the Design Pricing Workbook Pricing Summary required the vendors to submit detailed component prices, the Department (through Mr. Downie and Mr. Shoemaker) explained that the contract price for the SLERS contract would be the figure the vendors listed as the “Total Price for Scoring.” The ITN required the vendors to itemize their prices for “transparency.” The price breakdown would allow the Department to learn how the vendor derived its final price, as well as enable the Department to add additional service or component to the SLERS contract should it later decide to do so.
23/ At the final hearing, Harris (through Mr. Hancock) admitted that it may not be able to use all the 190 RF towers it identified in its own Best and Final Offer.
24/ The SLERS contract also provided the Department several options should the winning vendor fail to provide the required communications services, which includes assessing liquidated damages and invoking remedies under a performance bond.
25/ Radio frequencies are measured in hertz. MHz is a unit of measurement of the frequency.
26/ Similarly, Harris acknowledged in its Best and Final Offer that its final frequency plan may change prior to implementation of the SLERS contract. At the formal hearing, Harris conceded that it will have to augment its frequency plan with additional channels.
27/ Section 287.012(25) defines “Responsible vendor” as “a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.”
Section 287.012(27) defines “Responsive vendor” as “a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.”
28/ It should also be noted that the Legislature instructed the Department to augment this procurement with subject matter experts. See Specific Appropriation 2838, ch. 2016-66, Laws of Fla. The Negotiation Team was assisted by several Subject Matter Experts (Mr. Hogan and Mr. Shoemaker) who helped the negotiators understand of the technical aspects of each vendors’ reply.
29/ At final hearing, Harris argued that all vendors’ replies should be rejected, and the Department should reissue the SLERS ITN. Because the Department properly awarded the SLERS contract to Motorola, Harris’ plea to reject all bids is denied.
COPIES FURNISHED:
Bradley R. McVay, Esquire Department of Management Services Suite 160
4050 Esplanade Way
Tallahassee, Florida 32399 (eServed)
Paul Nathan Rendleman, Esquire Department of Management Services Suite 160
4050 Esplanade Way
Tallahassee, Florida 32399 (eServed)
Jason B. Gonzalez, Esquire Shutts & Bowen, LLP
Suite 804
215 South Monroe Street Tallahassee, Florida 32301 (eServed)
Amber Stoner, Esquire Shutts & Bowen, LLP Suite 804
215 South Monroe Street Tallahassee, Florida 32301 (eServed)
Tiffany A. Roddenberry, Esquire Holland & Knight, LLP
Suite 600
315 South Calhoun Street Tallahassee, Florida 32301 (eServed)
Mia L. McKown, Esquire Holland & Knight LLP Suite 600
315 South Calhoun Street Tallahassee, Florida 32301 (eServed)
George N. Meros, Jr., Esquire Holland & Knight
Suite 600
315 South Calhoun Street Tallahassee, Florida 32301 (eServed)
Joseph M. Goldstein, Esquire Shutts & Bowen, LLP
Suite 2100
200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed)
Karen D. Walker, Esquire Holland & Knight, LLP Suite 600
315 South Calhoun Street Tallahassee, Florida 32301 (eServed)
Eduardo S. Lombard, Esquire
Vezina, Lawrence and Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301 (eServed)
William Robert Vezina, III, Esquire Vezina, Lawrence and Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301 (eServed)
Megan S. Reynolds, Esquire
Vezina Lawrence & Piscitelli, P.A.
413 East Park Avenue Tallahassee, Florida 32301 (eServed)
Andrew E. Schwartz, Esquire Shutts & Bowen LLP
Suite 2100
200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed)
Brittany B. Griffith, Esquire Department of Management Services Suite 160
4050 Esplanade Way
Tallahassee, Florida 32399-0950 (eServed)
Erin Rock, Secretary
Department of Management Services 4050 Esplanade Way
Tallahassee, Florida 32399-0950 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 05, 2018 | Agency Final Order | |
| Sep. 05, 2018 | Recommended Order | Petitioner had standing to initiate the bid protest. However, Petitioner failed to prove that the Department's intended award to Intervenor was contrary to its governing statutes, rules, or the solicitation specifications. |
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