Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The Petitioner is MCI Telecommunications Corporation, whose business address is Suite 400, 400 Perimeter Center Terrace NE, Atlanta, Georgia 30346. The Respondent is State of Florida, Department of General Service, whose address is 614 Larson Building, 200 East Gaines Street, Tallahassee, Florida. The Intervenors are Microtel, Inc., whose address is 7100 West Camino Real, Suite 311, Boca Raton, Florida 33433, and United States Transmission Systems, whose business address is 320 Park Avenue, New York, New York 10022. MCI, Microtel, AT&T, Southland, and USTS are all interexchange carriers authorized by the Federal Communications Commission to provide, among other things, interstate WATS. MCI, AT&T, Southland, and Microtel are all interexchange carriers certified by the Florida Public Service Commission to provide, among other things, intermachine trunks and intrastate WATS. The interexchange carriers who participated in the November 5, 1987, negotiations were not advised prior to 9:00 a.m. on that day that the negotiations would consist of three rounds of price quotations with the prices quoted and each round being posted immediately on the board for review by the other carriers. The posting by the Division of Purchasing between 3:00 p.m. on November 2, 1987, and 3:00 p.m. on November 5, 1987, of a draft memorandum from William Monroe to Glenn Mayne was not a bid tabulation. The State of Florida provides a communications system to state agencies, local governments, and public school districts through the SUNCOM Network. The SUNCOM Network consists of switches, access lines, and transmission facilities such as Intermachine Trunks, Interstate WATS, and Intrastate WATS. On the SUNCOM Network, long distance calls from one SUNCOM user to another SUNCOM user are completed on IMTs. Intrastate WATS facilities are used to place in-state long distance calls from a SUNCOM user to a party not a member of the SUNCOM Network. Interstate WATS facilities are used to complete out-of-state long distance calls. The Division of Communications desired to migrate the data users of the SUNCON Network from an analog environment to a digital environment. In order to do that, there had to be changes to the SUNCOM switching facilities and changes to the transmission facilities. In 1984, a Request for Proposal (RFP) was issued for the switches. As a result of the RFP, the network went from 5 to 11 switches on December 1, 1986. The Division of Communications decided to utilize digital transmission facilities for both IMTs and Interstate WATS facilities on the newly configured network. In 1985, the Division of Communications negotiated a contract with MCI for the provision of the Interstate WATS. MCI made no protest to being awarded the contract by negotiation. AT&T was selected to provide the IMTs. The selection of AT&T and MCI was an interim measure to give the Division of Communications time to evaluate the transmission facilities for changes after the new network had stabilized. At the time of the final hearing, AT&T was the current provider for the IMTs and Intrastate WATS and MCI was the current provider for the Interstate WATS. On March 1, 1987, the Division of Communications and the Division of Purchasing sent a letter to seventeen suppliers of transmission facilities. The letter advised the suppliers that the Division of Communications was beginning an evaluation process to determine the viability of replacing some or all of the SUNCOM Network completion facilities with different suppliers. The suppliers were advised that a potential supplier did not have to service all routes or provide all facilities in order to be considered. Suppliers were requested to provide information concerning their transmission facilities. It was contemplated that the transmission facilities would be tested for approximately 90 days, during which time there would be consideration of reliability, maintainability, cost, and billing. The evaluation process also contemplated consideration of corporate viability and status, network typology, and references from existing customers similar in size to the State of Florida. The suppliers were cautioned that their participation in the evaluation process did not guarantee a contract and that it was possible that the evaluation process might not result in any contract. The suppliers were also advised that any contract would be negotiated. The March 18, 1987, letter is a request for information and was so considered by the Division of Communications and the Division of Purchasing. By April 9, 1987, the Department of General Services had received ten responses to the March 18, 1987, letter. A five member evaluation team was formed to review the April 9 responses from the suppliers, conduct the oral presentations, conduct the 90-day test and make recommendations. The evaluation committee was comprised of five employees of the Division of Communications. Division of Purchasing personnel did not actively participate on the evaluation committee because they wanted to remain impartial in the event the Division of Purchasing would later have to decide what method of procurement to use. Each potential supplier was scheduled for an oral presentation in late April or early May of 1987. Additional information about the proposals was obtained at those presentations. The suppliers were asked during oral presentation if their prices were open for negotiation. Ed Martinez of MCI said that MCI was open for negotiation. Of the carriers that survived the technical evaluation process, MCI had submitted the lowest price for all of the solicited telecommunications facilities and services. An in-service test of the ten suppliers was conducted from July 10 to September 30, 1987. One supplier, Lightnet, disconnected its transmission facility prior to the end of the test period. Robert Davis, chairman of the evaluation committee, used a numerical rating scheme to assist in evaluating the suppliers. The numerical point system was used as a way to make the evaluation process more objective. Additionally, when the evaluation was begun, the evaluation committee did not know whether contracts would be awarded through a formal acquisition process or through negotiation. The committee thought that an orderly ranking of the participants based on a rating scheme would be beneficial to Mr. Mayne in determining the method of acquisition. Mr. Mayne was unaware that a numerical point system was being used to evaluate the responses until he read the report prepared by the evaluation committee. On October 16, 1987, the evaluation committee issued the "Report on Alternate Suppliers for SUNCOM Network Transmission Facilities." The report outlined the evaluation process, presented the findings of the committee in the areas of pricing, billing, reliability-maintainability, corporate viability and general compliance by the suppliers, and made recommendations based on their findings. The evaluation committee concluded that, based on the prices submitted by the suppliers, it was possible for the state to reduce the cost of the operation of the network by over $368,000 per month. In considering the corporate viability of a supplier, the evaluation committee did not intend to conduct an indepth financial analysis. The evaluation committee wanted to determine whether the suppliers would have the ability to survive in a competitive environment for the contract period of three years. Both DGS' staff and MCI's financial analysis expert agreed that ITT, MCI, Microtel, AT&T and Southland were in a position to maintain their corporate viability for the contract period. The evaluation committee recognized that there was an opportunity to further reduce the cost of the network transmission facilities. The committee recommended that the IMTs, Interstate WATS and Intrastate WATS not be provided by one supplier. It was also recommended that Sprint, Digital Signal, and Lightnet be eliminated from further consideration. The report did not recommend specific suppliers. The committee recognized that if the point evaluation were used that the ranking would change as the result of further negotiations. They felt that if a decision was made not to use the point evaluation, then low cost would determine the suppliers. The report was presented to Glenn Mayne for his consideration. Based on his review of the report, Mr. Mayne determined that the State was currently paying far too much money for the transmission facilities; the State desired to have more than one supplier for the transmission facilities; and there was a group of potential alternate suppliers who could supply the State with transmission facilities which would be acceptable for the SUNCOM Network. As soon as Mr. Mayne became aware of the enormous potential savings to the State (and probably because of that awareness) things began to happen very quickly. A copy of the evaluation report was given to Bill Monroe. Mr. Mayne and Mr. Monroe discussed the report and Mr. Mayne expressed some concerns relating to the Division of Communications' need to migrate data signals to the network. Monroe asked that those concerns be put in writing. Mr. Mayne complied by memorandum dated October 28, 1987, in which he expressed his concerns relating to the discontinuance of Telpak and the Division of Communications' plans to migrate data to the voice network. The desire to address these concerns in the negotiations was due primarily to an AT&T proposal submitted in the late summer or early fall of 1987, which addressed these concerns. The Department had made no effort to obtain proposals similar to AT&T's from the other suppliers prior to requesting authority to negotiate from the Division of Purchasing. The Division of Purchasing deemed the October 28 memorandum to be the Division of Communications' formal request for the authority to negotiate. Mr. Monroe authorized the Division of Communications to negotiate contracts for the transmission facilities and services for the SUNCOM Network. The authorization to negotiate was granted because the providing of transmission facilities and services was a regulated portion of the telephone industry; the participants were limited to those which met Florida Public Service Commission guidelines for facility based operations; an indepth evaluation of the suppliers had been performed; and the delay incident to using any other procurement method would result in a substantial monetary loss to the State. The most significant factor in the decision to negotiate was the monetary loss which would result from delay. The authorization memorandum recommended that the negotiation be handled as a joint venture between the Division of Communications and the Division of Purchasing, and that the Division of Purchasing participate in development of the criteria for final selection of a supplier. Mr. Mayne discussed the method of negotiations to be used with Mr. Monroe and his staff. Based on his past experience with one-on-one negotiations, Mr. Mayne felt it would be fairer to put up everyone's prices on the board so that all suppliers could see each others prices. Mr. Mayne suggested that there be two verbal rounds of pricing and a final round in writing. Mr. Monroe concurred with Mr. Mayne's suggestion. It was felt this method of negotiations would result in better pricing for the State; could be done quickly and easily; and would reduce the chance of one supplier being favored over another. The intended decision of the Division of Purchasing to authorize the negotiation was posted in the Division of Purchasing beginning November 2, 1987, at 3:00 p.m. The posting was in the form of a post-dated, unsigned memorandum from the Division of Purchasing Director to the Division of Communications Director. Stamped at the bottom of the draft memorandum was the language required by Section 120.53(5), Florida Statutes, indicating that the failure to file a timely protest would constitute a waiver of Chapter 120, Florida Statutes, proceedings. In large letters at the top of this posting was the word DRAFT. Each of the ten suppliers was notified that the Division of Purchasing had authorized negotiations and that this decision would be posted beginning November 2 through November 5, 1987. On November 2, 1987, Cherrie McClellan, a purchasing specialist for the Division of Purchasing, called MCI's Ed Martinez to advise him that the authorization for the Division of Communications to negotiate for the procurement of the SUNCOM Network alternate suppliers would be posted from 3:00 p.m. November 2, 1987 to 3:00 p.m. November 5, 1987. Ms. McClellan was unable to reach Mr. Martinez and left the message on his recording machine. On November 3, 1987, Mr. Martinez called Ms. McClellan to confirm the message. She told him that the posting was for the authority for the Division of Communications to negotiate and she assumed that the Division of Communications would be contacting him. In giving the telephone notification to MCI, the Division of Purchasing did not specifically advise MCI that its failure to file a timely protest of the Division of Purchasing's decision would waive MCI's rights to proceedings under Chapter 120, Florida Statutes. On November 3, Mr. Martinez also called John Fain, a purchasing specialist supervisor with the Division of Purchasing. Mr. Fain advised Mr. Martinez that the Division of Purchasing had received a request for authority to negotiate from the Division of Communications, final negotiation could not begin until after the conclusion of the posting at 3:00 p.m. on November 5, 1987, and he did not know if there would be another posting. On November 2, 1987, Mohammed Amirzadeh Asl, an electrical engineer with the Division of Communications, called Ed Martinez between 2:00 and 3:00 p.m.; invited him to the negotiations on November 5; told him to bring his best prices for IMT routes and personnel who could make a decision; advised him he would have access during the negotiations to a phone but he had to use his credit card for any calls; and told him that DGS would be faxing him additional information concerning the negotiations. Mr. Amirzadeh also advised the other suppliers on November 2 of the negotiations and told them the same thing he had told Mr. Martinez. Mr. Martinez called Mr. Amirzadeh on November 3 and 4 with questions concerning the negotiations. On November 4, DGS faxed a memorandum to the suppliers concerning the criteria for the negotiations and the prices which had been quoted thus far to the Division of Communications. The memorandum advised the suppliers that preliminary discussions would start at 9:00 a.m. on November 5 at the Division of Communications and official negotiations would not start until 3:00 p.m. When Mr. Martinez, the MCI representative, came to the negotiations, he expected the Department to negotiate first with MCI to attempt to reach a mutually satisfactory agreement for the solicited telecommunications facilities and services, and he expected the Department to negotiate with other suppliers only if the negotiations with MCI were unsuccessful. These expectations were based on MCI's status as one of the incumbent suppliers, on the fact that the Department appeared to very satisfied with MCI's performance, and on the fact that MCI had submitted the lowest price proposals for all of the solicited telecommunications facilities and services in its April 9, 1987, submittal. These expectations were unwarranted. The negotiations began at 9:00 a.m. on November 5,1987. Glenn Mayne started out the negotiations by discussing the criteria which had been faxed to the suppliers on November 4. The suppliers were also given copies of the evaluation committee report. The suppliers were advised that there would be three rounds of negotiations The first two rounds would be preliminary. The last round of negotiation was to take place prior to 5:00 p.m. There were some assumptions that the suppliers were given to use in presenting their prices. The suppliers' prices were to be for one T-1 on each route, and the costs were to include access charges. Additionally, if there was any difference between the quoted and actual access charges the difference would be the responsibility of the supplier. The format used by the Division of Communications for the negotiations on November 5, 1987, was not normally used by the Department. The first round of pricing was at 11:00 a.m. Each supplier gave its price orally and as the price was given it was written on a board in the room. An objection was raised by one of the suppliers that the method used could give the last supplier an advantage because he would have seen all of the other suppliers' prices prior to giving his price. The second round was scheduled for 2:00 p.m. The method of receiving prices was changed to accommodate the objections at the first round. In the second round each participant wrote his prices on a piece of paper, all the papers were picked up, the papers opened, and the prices were written on the board. Between the second and third rounds, each supplier was given an opportunity to meet with Mr. Mayne and his staff. Mr. Martinez met with Mr. Mayne and his staff at 3:00 p.m. During the meeting, Mr. Mayne advised Mr. Martinez that DGS would like two separate fibers for each T-1 route for IMTs. The price for IMTs given by Microtel was approximately $9.50 per mile month. The corresponding price for MCI was around $15 or $16 per mile month. Mr. Mayne advised Mr. Martinez that, in order for MCI to be considered for a portion of the IMTs, MCI's price needed to be around $10 per mile month. Mr. Mayne did not reference access charges when he discussed the $10 per mile month. One of the assumptions of the pricing for the negotiations was that all prices would include access charges. During the meeting, Mr. Mayne told Mr. Martinez that MCI's price for IMTs was almost twice as much as the other suppliers. Additionally during the 3:00 p.m. meeting between Mr. Mayne and Mr. Martinez, Mr. Mayne explained to Mr. Martinez that the suppliers would reconvene at 4:00 p.m. and report their final responses and the last round of pricing would be before 5:00 p.m. Notwithstanding the clear explanation of when the suppliers would have their last opportunity to give their final prices, Mr. Martinez was apparently confused because he thought (albeit erroneously) that he would have another opportunity to offer a price after the third round. Because he thought that as an incumbent supplier MCI would have another opportunity to offer a price after all of the other suppliers had given their final prices, Mr. Martinez made a judgment call not to offer MCI's best price during the third round of the negotiations. The best price that Mr. Martinez was authorized to offer on the interstate WATS was slightly higher than the best price actually offered by another supplier. Mr. Martinez appears to be the only one who was confused about the finality of the third round of negotiations. It would not have been fair to the other suppliers to have afforded MCI an opportunity to submit further prices after the third round. No one from the Department of General Services advised Mr. Martinez that he would be given an opportunity to present further pricing after the other suppliers had given their best and final prices. The suppliers reconvened at 4:00 p.m. A supplier inquired whether the prices could be given before 5:00 p.m. Mr. Mayne asked the other suppliers whether they were ready and no one objected to giving the prices before 5:00 p.m. Mr. Mayne emphasized the third round was the last round. The suppliers gave their final prices at 4:19 p.m. The suppliers were asked to sign the sheets which contained their prices for the last round. Microtel submitted the lowest price for IMTs at $8.89 per mile. MCI's price for the IMTs was $12.52 per mile. ITT submitted the lowest price for Interstate WATS facilities at $.1249 per minute. MCI submitted $.1285 per minute for the Interstate WATS facilities. MCI submitted the lowest price for Intrastate WATS facilities at $.1133 per minute. Microtel submitted $.1139 per minute for the Intrastate WATS facilities. At the conclusion of the final round of pricing, AT&T indicated that they had additional pricing which was contained in a proposal submitted to Mr. Mayne in late summer or early fall of 1987. Mr. Mayne thought that AT&T had submitted its final prices during the last round and he advised AT&T that he would not consider the prices that were not contained on the sheets submitted by AT&T during the last round. John Fain, representative for the Division of Purchasing at the negotiations, also stated that prices not placed on the board could not be accepted. Mr. Mayne advised the suppliers at the end of the negotiations that the Division of Communications would try to reach a decision by the close of business on November 6. At the end of negotiations on November 5, 1987, the Division of Communications returned to AT&T its proposal which had formed part of the basis for the Division of Communications' request for authority to negotiate after AT&T claimed pricing information contained in that proposal was proprietary. At the beginning of the negotiation session on November 5, Mr. Mayne was satisfied that each of the participants could provide the solicited transmission facilities and services. Since the AT&T proposal would not be considered, Mr. Mayne determined that the contract should be awarded based on lowest cost for each of the transmission facilities. Prior to acting on this determination, Mr. Mayne discussed the matter with the Division of Purchasing. The Division of Purchasing concurred in the decision to award on the basis of lowest cost. The contract awards were based on low price and not the total points assigned to the providers based upon the numeric rating system used by the evaluation committee in the evaluation report. Mr. Amirzadeh telephoned Mr. Martinez on November 6, 1987, to inform MCI that the Department intended to award the Intrastate WATS facilities to MCI. Mr. Martinez advised Mr. Amirzadeh that the prices submitted by MCI were package prices. MCI later contacted the Department and advised the Department that the MCI price for Intrastate WATS was a package price. MCI withdrew its offering for Intrastate WATS. On being advised that MCI was withdrawing its offer for the Intrastate WATS facilities, the Department decided to award the Intrastate WATS facilities to the next lowest provider, which was Microtel. On November 10, 1987, the Department issued Communications Service Authorizations (CSAs) to Microtel for the Intrastate WATS facilities and IMTs, and to ITT for the Interstate WATS facilities. These CSAs are the only contracts to be executed by the State of Florida for the solicited telecommunications services and facilities. The CSAs were signed by the Division of Communications. By contracting with Microtel for IMTs, Mr. Mayne estimated there would be a cost savings of $216,000 per month. The cost savings associated with contracting with Microtel for the Intrastate WATS is approximately $98,000 a month. It is estimated the State will save approximately $105,000 per month by contracting with ITT for Interstate WATS. MCI filed a notice of intent to protest the contract awards on November 12, 1987. MCI filed its formal written protest on November 23, 1987. In acquiring these transmission facilities the Department is leasing spaces on the supplier's fiber optic cable. The spaces within the cable are analogous to time envelopes, which may carry information or no information, being shot down the fiber optic cable. The Department leases the spaces in multiples of T-1s. A T-1 represents 1.544 million spaces per second. When the Department leases a T-1, the Department has a dedicated physical connection and the information that will be contained in the spaces or time envelopes will always appear in the same space and in the same time. The Department leases the fiber facilities on a 24-hour-a-day basis, because it is more economical than leasing for shorter periods of time. While the space is being leased to the State, no other customer of the transmission facilities supplier can use that space. The functions of the facilities can also be described as follows. The interstate WATS service, the intrastate WATS service, and the IMT service for which the Department contracted, involve the receipt by the carrier of an originating call from a SUNCOM switch and the transmission of that call over the carrier's owned or leased facilities, including access facilities leased by the carrier from the local exchange company, to its destination either outside or inside the State of Florida or to another SUNCOM switch. In addition to the lease of spaces, the Department will be acquiring maintenance and billing services and, in the case of the WATS facilities, it will also be procuring management reports concerning the location of calls. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the State of Florida will not have physical access to, the ability to monitor traffic over, maintenance or repair responsibility for, or rights to use particular components of those facilities. This applies to both the carriers' facilities and the access facilities leased by the carrier from local exchange companies to connect the SUNCOM switches and the carriers' facilities. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the long distance carrier will have the responsibility for maintenance and repair of those facilities, the right to replace or upgrade those facilities in a fashion transparent to the State, and the right to determine the physical path through those facilities over which information from the State of Florida would be transmitted. This applies to both the carrier's facilities and the access facilities leased by the carrier from the local exchange companies to connect the SUNCOM switches to the facilities. The Department interprets Rule Chapter 13C-2, Florida Administrative Code, to apply to the acquisition of nonregulated communications equipment. The forms referred to in Rule 13C-2.008 are forms which State agencies use in requesting approval from the Division of Communications for the purchase or lease of nonregulated communications services or equipment. Rule Chapter 13C-1, Florida Administrative Code, has been interpreted by the Department to deal with a regulated environment. The procurement at issue in this proceeding is in a regulated environment. The criteria and procedures described in Chapter 13C-2, Florida Administrative Code, were not used in this procurement of the solicited telecommunications facilities and services. The negotiation process itself was negotiated in a fair and equitable manner. Each supplier was advised at the beginning of the negotiation session that there would be three rounds of pricing. There has been no claim by MCI that any of the suppliers had knowledge prior to 9:00 a.m. on November 5, 1987, of the actual negotiation process that would be used. When an objection was made by one of the suppliers to the method of accepting pricing in round one, the method of accepting prices was changed so that no supplier would have an advantage over another. It was made clear that the third round was the last round in which the suppliers could submit their best and final offers. The Department did not consider offers which were not submitted during the third round. The Department attempted to provide competition in the negotiation process by having the suppliers compete against each other in the pricing rounds. No supplier was treated more favorably than another. MCI was never told that it would be awarded the contracts. MCI made no protest or objection to the negotiation process prior to or on November 5, 1987.
Recommendation Based on all of the foregoing, it is recommended that a final order be entered denying the relief requested by the Petitioner. DONE AND ENTERED this 11th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5338BID The following are my specific ruling on all of the findings of fact proposed by all of the parties. Findings proposed by the Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9: All generally accepted, but some details have been omitted as either subordinate or unnecessary. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraphs 11 and 12: Rejected as irrelevant. Paragraphs 13, 14, and 15: Accepted. Paragraph 16: Rejected as irrelevant. Paragraphs 17, 18 and 19: Accepted. Paragraph 20: Rejected as irrelevant in light of other evidence. Paragraphs 21, 22, 23 and 24: Accepted. Paragraph 25: Accepted in substance. Paragraphs 26 and 27: Accepted. Paragraph 28: Rejected as subordinate and unnecessary details. Paragraph 29: Accepted in substance. Paragraph 30: Rejected a subordinate and unnecessary Paragraphs 31 and 32: Accepted: Paragraph 33: Rejected as contrary to the greater weight of the evidence. Paragraphs 34, 35, 36, 37, 38 and 39: Accepted. Paragraphs 40 and 41: Rejected because the analogies fail. Paragraph 42: Accepted. Paragraph 43: Rejected as subordinate and unnecessary details. Findings proposed by the Respondent: Paragraphs 1, 2, 3, 4, 5, 6 and 7: Accepted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Accepted. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraphs 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraph 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44: Accepted. Paragraph 45: First sentence accepted. The remainder is rejected as subordinate and unnecessary details. Paragraph 46: First four sentences accepted. Last sentence is a conclusion of law. Paragraphs 47 and 48: Accepted. Findings proposed by the Intervenors: Paragraph 1: Rejected as statement of position rather than proposed finding. Paragraph 2 and 3: Accepted. Paragraphs 4, 5 and 6: Rejected as subordinate and unnecessary details. Paragraphs 7, 8, 9 and 10: Some of the details proposed in these paragraphs have been included, but most are rejected as subordinate and unnecessary. Paragraph 11: Rejected as subordinate and unnecessary, details. Paragraphs 12 add 13: Accepted in substance. Paragraphs 14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraphs 16 and 17: Rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, 23 and 24: Some of the details proposed in these paragraphs have been included, but most have been rejected as subordinate and unnecessary. Paragraphs 25, 26 and 27: Rejected as subordinate and unnecessary details. Paragraph 28: Accepted. Paragraph 29, 30, 31 and 32: Rejected as subordinate and unnecessary details. Paragraphs 33, 34, 35, 36, 37 and 38: Accepted. Paragraphs 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49: Rejected as subordinate and unnecessary details. Paragraphs 50 and 51: Rejected as subordinate and unnecessary details. Paragraphs 52 and 53: Accepted. Paragraph 54: Rejected as subordinate and unnecessary details. Paragraph 55: Accepted in substance. Paragraph 56: Rejected as subordinate and unnecessary details. Paragraphs 57, 58 and 59: Accepted in substance. Paragraphs 60 and 61: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Susan Kirkland, Esquire Sandra D. Allen, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Carolyn S. Raepple, Esquire Richard D. Melson, Esquire Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Patrick K. Wiggins, Esquire Wings Solcum Benton, Esquire Ranson & Wiggins 325 West Park Avenue Post Office Drawer 1657 Tallahassee, Florida 32302 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller's license.
Findings Of Fact Petitioner, Stanley Sarentino, Jr. (Sarentino) is the owner and president of the The A/C Guy, Inc. (The A/C Guy) an air-conditioning service business based in Pompano Beach, Florida. The A/C Guy was incorporated in 1996, and serves residential and business customers in Broward and Palm Beach Counties. Respondent Department of Agriculture and Consumer Services (the Department) is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with the provisions of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000) (the Telemarketing Act). Sarentino has worked in the air-conditioning business in South Florida for over ten years. Both as an employee of other companies and since he formed The A/C Guy, Sarentino works exclusively as an air-conditioning mechanic. Sarentino has no expertise in, and has never been involved with, the daily running of the business, nor in the marketing of services, at the A/C Guy. Neither has Sarentino worked in the business side of any of the prior companies in which he was employed. Sarentino is assisted in managing The A/C Guy by his wife of 10 years. The Sarentinos have three children, and the family is well regarded in the community. Prior to the marriage, Sarentino's life was less exemplary. In 1991, Sarentino was charged with felony transportation of stolen stock certificates. Close in time to the stock charges, Sarentino was charged with unlawfully purchasing cocaine. Both incidents were disposed of by plea agreements which spared Sarentino a jail sentence. Since then, Sarentino has devoted himself to “turning his life around” by attending church, providing for his growing family, and otherwise occupying himself with lawful pursuits. Recently, Sarentino has made efforts to grow his small business. Those efforts included hiring John Frank Aiello, Jr. (Aiello) as full-time General Manager of The A/C Guy in the spring of 2001. Sarentino and Aiello came to believe that The A/C Guy had grown about as much as it could via word of mouth and print media advertising. They desired to expand the customer base for the business through telemarketing. Under the provisions of the Telemarketing Act, individuals who wish to have their business engage in telemarketing are required to be licensed (the Department). Aiello prepared a telemarketing license application for Sarentino in accordance with the instructions contained in the application package provided by the Department. Before commencing to prepare the application, Sarentino and Aiello carefully reviewed the licensing criteria. They paid special attention to the requirement that any criminal background be disclosed, and acted in good faith to disclose Sarentino’s history with as much precision as Sarentino’s 10-year-old memory would allow. The Department’s independent investigation corroborated that Sarentino had truthfully provided all requested information. Since his successful completion of probation for the decade-old incidents revealed on his telemarketing application, Sarentino has been a law abiding citizen. All applications for a telemarketer's license must be accompanied by a non-refundable $1500 processing fee. Applicants must also provide proof that they have paid the premium and have otherwise fulfilled the requirements to obtain a $50,000 bond from a private bonding company. The bond premium in this case was $1000.00. It is also necessary for applicants to provide extensive information about the business in whose name telemarketing will be conducted, along with information about individuals affiliated with the business, so that the Department may investigate their backgrounds for the public’s protection. Sarentino spent in excess of $350.00 in accounting fees for the preparation of financial statements required for the application. Prior to investing the time and incurring the expense associated with the application process, both of which are considerable, Sarentino carefully considered the question of whether he had a realistic chance to obtain a license. At the time he submitted his application, Sarentino reasonably believed, based upon the information provided by the Department itself, that his application would not be automatically rejected on account of his decade-old legal difficulties. After Sarentino’s application was submitted, Aiello, in his capacity as The A/G Guy general manager, had telephone conversations with the Department’s Regulatory Consultant Tom Kenny (Kenny) to follow-up on the status of the application. During the course of such conversations, Kenny revealed that the plea to the stock charge as well as the plea to the cocaine charge---each, by itself---would trigger the denial of the license application once the Department had independently confirmed that Sarentino had indeed truthfully disclosed the pleas. The evidence established and the Department conceded that there is an informal, unwritten practice enforced by Kenny's supervisor, James R. Kelly (Kelly), the Department’s Director of the Division of Consumer Services, that a plea of guilty to a felony charge, no matter what the felony, no matter how remote in time, no matter whether the applicant was rehabilitated or not will automatically result in the denial of a license application. The Department has no written rules, policies, or guidelines to which a citizen may refer in order to be apprised that the applications of individuals like Sarentino, and those similarly situated, are, in fact, dead on arrival. The Department's interpretation of the law is directly contrary to the discretionary language of the statute, which plainly does not foreclose all possibility that mitigating factors would be taken into account by Department officials in evaluating an applicant's criminal history. Sarentino has fulfilled all the statutory criteria for licensure. The Department would have granted the license were it not for its unwritten policy that the statute requires that any plea to a criminal charge mandates automatic denial.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered by the Department granting a commercial telephone seller's license to Stanley Sarentino, Jr. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2001. COPIES FURNISHED: James Curran, Esquire 633 Southeast Third Avenue Suite 201 Fort Lauderdale, Florida 33301 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact The Respondent, Michael L. Illes, holds law enforcement certificate number 02-24636. On or about December 1981, while on duty, the Respondent responded to a call from Deborah Raybin regarding a malfunctioning alarm system at her home in Broward County, Florida. At said time, the Respondent was employed by the Broward County Sheriff's Department in the capacity of a deputy sheriff. The Respondent went to the Raybin home in the routine course of his duties. The Respondent admitted having been to the Raybin home after December 1981 in response to further false alarms and on other occasions not related to his duties. However, no competent evidence was introduced that the Respondent harassed Ms. Raybin by going to her home while either on duty or off duty. No evidence was received in support of the allegations that the Respondent, while on duty, went to the Raybin home and offered pornographic movies to Ms. Raybin. The only competent evidence presented was the credible testimony of the Respondent that while at the Raybin house on official business on or about June 19, 1982, he was asked by Ms. Raybin for a video tape. Respondent admitted that on the night of June 23, 1982, he arrived at the Raybin house with said video tape. At that time, prior to his ringing Ms. Raybin's doorbell, Respondent was stopped by his shift supervisor and another officer of the Broward County Sheriff's Department. They were there in response to a telephone call from a person whose identity was not established by competent evidence. The Respondent was out of his assigned patrol zone and had not checked out of his patrol car (unit). While proceeding to the Sheriff's Department prior to the beginning of his shift, Respondent made a traffic arrest of a driver for driving while under the influence. Respondent was involved in booking the arrested driver until after 12:00 midnight on the evening of June 23, 1982. Thereafter, he went to the Raybin house. On the night shift, the policy regarding leaving an assigned patrol area was flexible, particularly during those periods in which on-duty personnel were on break or eating. While on break, officers were not required to be in their patrol zones. Respondent would have been entitled to a break at the time he was at the Raybin house. Conflicting testimony was received concerning whether officers were required to check out of their units while on break. The shift supervisor stated that officers were required to check out when on break or at meals. Respondent stated that the night shift officers did not customarily check out on breaks because criminals monitored their radio reports and committed crimes when they knew that the officers were on break or at meals. Neither side could substantiate their testimony with any written policy. No evidence was received regarding when officers would report that they were on break, i.e., when they left their assigned zone, when they arrived at a break location, or when they left their units. Based upon the testimony received and the fact that officers wore portable radio units, it is found that officers were required to check out if they intended to be away from their units for more than a few minutes. When stopped by his shift supervisor, the Respondent was wearing his police radio. Respondent's uncontroverted and credible testimony was that he had stopped at the Raybin house on his way to his break location to drop off the tape Ms. Raybin had requested and had not intended to remain at the Raybin house longer than was necessary to drop off said tape.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against the Respondent, Michael L. Illes, be dismissed. DONE and RECOMMENDED this 22nd day of August, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1983. COPIES FURNISHED: William H. Ravenell, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Charles T. Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On June 17, 1983, Respondent, Department of State, Bureau of Systems Management, issued Invitation to Bid No. DOS 80-82/83 to prospective bidders to provide 22,059 square feet of office space for use as offices for the Division of Licensing and Division of Corporations in Leon County, Florida. According to the general specifications and requirements, the space was to be located within one mile of the Capitol Building and available by August 1983, or within 30 days after execution of a valid lease. Sealed bids were to be received no later than 2:15 p.m. on July 27, 1983. At that time, all bids would be publicly opened. Petitioner, George E. Winchester, a partner in George and Lewis Winchester Construction Company, is the current lessor to Respondent of space used by the two divisions that will utilize the space requested in the bid. The monthly rental amount is $12,639.50. Although the lease expired on August 11, 1983, Respondent continues to lease the office space from Petitioner while this controversy remains pending. As is pertinent here, paragraph eleven of page seven of the Invitation to Bid contained the following miscellaneous requirements: Pest control. Soundproofing in specified areas (see floor plan Attachment H). Office must be prewired for telephone service (DMS-100 telephone system) 50-pair cable to support 20-button sets. Special climate control for selected areas where a concentration of heat-producing machines are located. All such equipment must be maintained at a maximum of 78 degrees. Capability for coaxial cable to be installed in all areas at lessor's expense. Capability for lessee to install additional coaxial cable at a later date. Office space must be able to receive dedicated electrical outlet for EDP and other specialized equipment. Offices to be prewired to provide for public announcement system in specified areas (Space 8,060 square feet). Offices to be located on one floor in reasonably close proximity (desired for Space 8,060 square feet). Window coverings to be provided on all windows. If office space has structural pillars or protrusions, lessee reserves the right to require decorative treatment of those struc- tures. Attached to the Invitation to Bid was a one-page document entitled "Attachment H" which provided a suggested configuration of offices and rooms. The "specific electrical, telephone and soundproofing requirements" within the office area were also reflected in Attachment H. Paragraph five of the General Conditions of the Invitation to Bid provides as follows: INTERPRETATIONS Any questions concerning conditions and specifica- tions shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening. No inter- pretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Petitioner was in possession of The Invitation to Bid for several weeks prior to The bid deadline of July 27, 1983. However, because he considered the matter to he only a "small lease," and one which would not take a great deal of time to prepare, he waited until five or six days before July 27 to begin preparations for submitting a bid. In reviewing paragraph eleven on page seven of the general specifications and requirements, he concluded that items 2, 3, 4, 5, 7, 8, 9 and 10 were too "vague" to prepare a bid. In an effort to clarify the alleged ambiguities, he sought assistance from Department personnel on Thursday, July He was advised to contact a Mr. Cushing, chief of the Department's Bureau of Management Systems. He did so by telephone on July 22 but did not receive satisfactory information. Finally, on the afternoon of July 26, he met with five or six employees of the Department of State to discuss the items in question. After the meeting, Winchester did not indicate he was still confused. Based upon Winchester's questions, the Department decided to issue a revised page seven. The revisions were not substantive in nature but were merely intended to provide further clarification and assistance to the bidders. As revised, paragraph eleven of page seven provided as follows: Pest control (once monthly--professional exterminator.) Soundproofing in specified area (see floor plan Attachment H). (Maximum soundproofing acoustical tile to be used in two rooms-- llx7 and 18x10--which will house computer equipment; other rooms specified for sound- proofing should have material to prevent voices from being heard through the walls.) Office must be prewired for telephone service (DMS-100 telephone system) 50-pair cable to support 20-button sets. Special climate control for selected areas where a concentration of heat-producing machines are located. All such equipment must be maintained at a maximum of 78 degrees. Capability for coaxial cable to be installed in all areas at lessor's expense. Capability for lessee to install additional coaxial cable at a later date. Breaker box or fuse box must be able to receive three 220 lines for EDP and other specialized equipment. Offices to be prewired to provide for public announcement system in specified areas (Space A 8,060 square feet only). (Muzak-type sys- tem with PA capability is acceptable.) Offices to be located on one floor in reasonably close proximity (desired for Space A 8,060 square feet). Window coverings to be provided on all windows (flame-retardant drapes or mini-blinds) If office space has structural pillars or protrusions, lessee reserves the right to require decorative treatment of those struc- tures. (The structural protrusions shall be made compatible with the wall areas in the rooms in which they are located.) All three prospective bidders were either advised by telephone or in person that afternoon that a revision was being issued. The Petitioner received his copy shortly after his meeting with the Department's representatives. After receiving the revision, Winchester called several subcontractors the next morning to obtain price quotations for the various items. Although he still maintained the bid was a guess" and he did not know if he could make any profit, he was nonetheless sufficiently informed to prepare specific prices for each item he had questioned. The bid package was filed prior to the deadline. Winchester did not use other professionals to interpret the specifications or to assist him in the preparation of his bid. He also did not avail himself of the provisions in paragraph five of the General Conditions which permitted him to make written inquiry to the Department concerning any alleged ambiguities. On the afternoon of July 27, 1983, the bids, numbering three, were opened by Respondent. 1/ Thereafter, on August 1, 1983, the Director of the Department's Division of Administration wrote Intervenor/Respondent, Hobco, Inc., a letter which reads in pertinent part as follows: In response to your bid to provide 22,089 square feet of office space to the Department of State, you are hereby notified that you are awarded the bid. The award prompted the instant proceeding. Although item 9 stated that offices were "to be located on one floor in reasonably close proximity," this was not a mandatory requirement. Rather, it was a preference on the part of the Department. This was confirmed by a letter from the Department to Crown Properties, another bidder, which had made a written inquiry to the Department on June 23, 1983, concerning that provision. Further, the specifications indicate that one floor was "desired," and that in the weighting process, the providing of one floor was not a dispositive attribute in determining the award. The evidence is conflicting as to whether certain items within the miscellaneous requirements in question are vague and ambiguous. However, it is found that the evidence is more persuasive that the specifications were sufficiently clear to allow a bidder to formulate a competitive bid to lease office space. A reading of the specifications themselves, including Attachment H, a visual inspection of the presently leased premises, and the use of other professionals for assistance would provide sufficient information relative to soundproofing, communications and electrical requirements to prepare a bid that would conform with specifications. Moreover, the General Conditions of the Invitation to Bid provided all prospective bidders with the opportunity to make written or oral inquiry concerning any "conditions and specifications" that they questioned.
Recommendation Based on The foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent award Invitation to Bid No. DOS 80-82/83 to Hobco, Inc. DONE and ENTERED this 9th day of November, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1983.
Findings Of Fact By its Invitation to Bid, RFP #84-012-PS, Respondent sought proposals for the production of public service announcements for statewide distribution for both television and radio broadcast. The Invitation to Bid contained five criteria for evaluating proposals. Four of these were "narrative" criteria worth a maximum of 25 points per category. The fifth category, price, was worth a maximum of 50 points. The dispute in this case concerns Respondent's interpretation of the narrative criteria contained in paragraph X, A., 1 which was used to evaluate: [t]he experience and evident capa- bility of the offeror to perform the work required including the background of the offeror's organi- zation. In response to the Invitation to Bid, Cowles and Petitioner submitted proposals for consideration by Respondent. In response to the narrative criteria requirement contained in paragraph X, A., 1, quoted above, Cowles submitted the following: Bill Cowles was for more than fifteen years employed in the radio and tele- vision industries in Ohio and Florida. For many of those years he was actively in charge of the production and direction of hundreds of public service announce- ments, commercials and news and public affairs programs. For an additional eight years while engaged in political campaigns and the direction of the Republican Party of Florida, he was responsible for innumer- able commercials (all media) for individual candidates, party promotions, get-out-the- vote campaigns, etc. For the past five years, as co-owner of his own business, he has worked closely with many state agencies in a variety of communication related situations. During all these years, the offeror assembled many "teams" of talent representing all the disciplines required in order to most effec- tively complete the task at hand In preparation for the project outlined in this RFP, Cowles has used his vast knowledge and experience to bring together a "team" that is particularly qualified. Working with him to successfully complete the requirements of the RFP will be a staff of experts who will be directed by Cowles and the following professionals: Roy Nilson who is the President/Owner of WRENPRO Corporation has spent his entire career in the electronic media. He has held positions as Program Director, Producer, Operations Manager and Executive Producer of radio and television stations in Minnesota, New Mexico and Tampa-St. Petersburg. He formed WRENPRO, a consulting and production company, in 1971. Nilson is credited with the innovation of the "do-nut" and "pretzel" commercials that are now commonplace in the industry. He has served as consultant to over 100 radio and television stations; written several books on electronic media contests, history and radio auto- mation and has produced and syndicated radio programs and contests. His pro- duction of OPUS, an annual review of the top records of the year, is aired on more than 300 stations. OPUS has been the recipient of two BILLBOARD "Silver Mikes". The public service announcements, com- mercials and programs produced by Nilson number in the thousands. The creativity of Cowles and Nilson will be augmented by the technical expertise of: Dan Lunin who is currently the General Manager of WRENPRO and is also the Production Engineer of Production Associ- ates of Tampa. Lunin in the cast twenty-five years has served as Production Engineer, Channel 40, Sarasota; Production and Chief Engineer, Channel 28, Tampa; Chief and Production Engineer, WLCY AM & FM, Tampa-St. Petersburg and General Manager of TV-9 (Group W), Tampa-St. Petersburg. Mr. Lunin will be in charge of the technical direction of the tasks to be performed at the studios of WRENPRO (radio) and Pro- duction Associates (television) Petitioner contends that the information quoted above from Cowles' proposal was not responsive to the narrative criterion in that Cowles submitted no evidence to show that he had entered into any joint venture agreement or contractual relationship with the associates named in the proposal. Petitioner contends further that Cowles' proposal should have been evaluated on his individual qualifications, and that no consideration should have been given to the background, experience, and capabilities of Messrs. Nilson and Lunin since they were neither employed by nor under contract with Cowles. Petitioner also contends that the inclusion of the experience and qualifications of Messrs. Nilson and Lunin was misleading in that they were not actually "offerors" on the proposal, but were instead only independent contractors who were to be utilized by Cowles. Finally, Petitioner contends that the inclusion of the qualifications and experience of Nilson and Lunin resulted in the award of higher point totals under narrative criteria X, A., 1 than would have been awarded had Cowles been measured on his individual qualifications. The gist of Petitioner's objection to Cowles' proposal is that Cowles does not own a production company, but instead proposes to produce the public service announcements to be furnished to Respondent with associates who are in essence independent contractors. There is, however, no requirement in the Invitation to Bid that the public service announcements be produced by means of an inhouse production company. The means by which the announcements are to be produced is left to the discretion of the offeror, so long as he can demonstrate, in accordance with the terms of the Invitation to Bid, "experience and evident capabilities" to perform the work. In fact, the narrative criteria at issue in this proceeding clearly require a demonstration of "experience and evident capability" to perform the work of both the "offeror" and the "offeror's organization." In this regard, Cowles' response to this narrative criteria, as outlined above, was clearly responsive to the provisions of the Invitation to Bid. Further, nothing in Cowles' response could be misleading, since there is no representation that Messrs. Nilson and Lunin are anything other than independent contractors who would be utilized by Cowles in the production of public service announcements. Cowles has extensive experience in the radio and television industry. In addition, he has produced radio and television announcements and commercials while employed by the Florida Republican Party. There are no facts of record in this proceeding from which it can be concluded that Cowles is either unqualified to perform the work required in the Invitation to Bid, or that he is unable for any reason to successfully produce the work called for in that document. In fact, this record supports the conclusion that Cowles has the requisite experience and evident capability to perform the required work, and that he has, in fact, successfully completed similar projects for other state agencies in the recent past. Finally, Petitioner's contention that Cowles was awarded more points on narrative criteria X, A., 1 than would otherwise have been the case had the qualifications of Messrs. Nilson and Lunin been omitted from his proposal, is without merit in that the record in this proceeding contains no evidence of the points actually awarded to either Cowles or Petitioner in the bid evaluation process. Even had Cowles' proposal been determined in this proceeding to have been unresponsive, there are insufficient facts of record in this cause from which any recommendation could have been made to award the contract to Petitioner. Although the petition alleged that Petitioner was the second lowest bidder, there are no facts of record to substantiate that allegation. In fact, there is no evidence of record in this cause regarding the "cost" portion of the bid submitted by Cowles or Petitioner, which would allow a comparison of those proposals to those of any of the other bidders.
The Issue The central issue in this case is Petitioner's challenge to the request for proposal (RFP) which the Department of Labor and Employment Security (Department) has identified as RFP 94-052-SH. Such protest relates to four specific areas of the RFP.
Findings Of Fact On May 16, 1994, the Department issued RFP 94-052-SH seeking contractor submittals for the maintenance of its Information Management Center (IMC) including IBM, Xerox, and Storagetek mainframe peripherals and standalone printers. The request did not include the mainframe processor. After receiving the RFP and other documents, Petitioner timely filed a notice of intent to challenge provisions of the RFP. On June 6, 1994, Bell timely filed a written formal petition protesting the provisions of the RFP which it alleged favored one prospective bidder over others. Prior to hearing, seven of the eleven challenges to the provisions were resolved by the Department and Bell. Consequently, no findings of fact are submitted as to those provisions. Section 4.4 of the RFP provides, in pertinent part: Staffing--In accordance with the requirement of this Request For Proposal, the proposer shall provide documentation describing the staffing infrastructure to support the requirements listed in this RFP. Documentation should include at a minimum: * * * c. Proposals shall include, 1) the number of experienced, trained staff that will be working on this contract, and 2) the number of additional experienced, trained staff that will be available in the Tallahassee area for backup. More specific than the foregoing, Section 6.2 of the RFP provides: The Contractor shall have Customer Engineers specifically trained for each piece of equipment included in the RFP or maintenance bid located at the IMC in Tallahassee, Florida. These Customer Engineers shall be available to be onsite, 24 hours each day, 7 days each week. There must be a sufficient number of primary Customer Engineers and backups to maintain a minimum staffing level of one primary CE and one backup trained on each component listed in the RFP. Each primary and backup CE must be trained on the equipment to which they are assigned. Training shall be completed before the individual is assigned to service the equipment covered by this proposal. [Emphasis added.] The services specified by this RFP project should require no more than one person devoting two hours per day. Based upon the terms of the RFP, the "number of additional experienced, trained staff that will be available in the Tallahassee area for backup" should be construed to be those who are available for this project, as opposed to those who may be located in Tallahassee but are assigned to other projects. As the language is clear, this provision is not arbitrary or vague. Section 4.6 of the RFP provides: Value Added Services--The Contractor shall provide a detailed list of additional support services available through this contract. These services shall be considered as part of the contract and made available to the Department at no additional cost. The Department will evaluate the services based on their application to the Department's needs. Monthly equipment pricing should take into consideration any services listed in this section. Areas of interest include services such as: Machine monitoring for enhanced corrective and preventative services; Network Problem Resolution Assistance; Equipment relocation. For each service listed by the Contractor, the following information should be provided to assist the Department in the evaluation of these services: Detailed description of the functions, capabilities, and availability of the service including scope and delivery of benefits; The availability of acquiring the services outside the scope of this contract and, if applicable, the published cost of the service; If the service is being subcontracted, subcontractor information will be required as outlined in section 4.3; References of current customers who use the service. The Department has not specified the types of "value added services" that must be included in the contract cost; nor has it disclosed, among the examples listed, the extent to which the vendor will be responsible for same. As there are literally hundreds of services which could be included, this provision fails to specify which are of importance to the agency. Moreover, by requiring that a vendor include in the contract price the amount necessary to provide the service, the contract price is arbitrarily inflated should a vendor not be required to provide the service. Additionally, a current vendor who can more accurately estimate the level a service will be used, has an advantage over those unfamiliar with past levels of utilization who are required to submit a contract price to include "value added services." As the Department has nothing to gain by requiring that the "value added services" be included in the proposed contract price, and as a current vendor aware of the Department's past need for same has an advantage over others who may bid, this provision is arbitrary and without logic. If additional services are to be required, the Department should specify the services needed and an estimate of the level of use for such services. If the Department merely seeks a laundry list of the "value added services" which a vendor could provide, then the cost for same should be separated from the contract price so that all vendors compete on the same basis. Section 7.21 of the RFP provides: At a minimum, critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40 shall be held in the Contractor's Service Center or warehouse in Tallahassee, Florida. This includes, but is not limited to replacement parts for communica- tions controllers and each type of Head Disk Assembly for all installed disk drives (see Appendix C-list of items that must be maintained in Contractor's Service Center or Warehouse in Tallahassee, Florida). All parts stocked in the Contractor's Service Center or warehouse must be deliverable to the IBM within thirty (30) minutes. High usage replacement parts must be identifiable, in part, based on recommendations by the OEM and approved by the Department. The Department obtained the list of "critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40" from the equipment manufacturers. Such vendors are likely to compete for the subject RFP. The Department intended such list to include any parts necessary to assure that the downtime of the system would be minimized. The Department did not consider the failure rate of such parts and, in the past, has not incurred problems with many of the items listed. In fact, fifty percent of the parts listed have no industry history for failure. Additionally, the Department did not consider the price of the part in determining whether it should be warehoused in Tallahassee. As it relates to this provision, section 7.40 only requires that the maintained equipment is to have "diagnostics and corrective actions performed to eliminate equipment failure downtime as soon as possible but not to exceed two (2) hours." Whether that section requires a correction within two hours or that diagnosis and actions be begun within two hours is unclear. However, the cited section is the sole reference for the parts replacement list standard. Curiously, the list of parts required does not include items which, by history, have a high rate of failure and which could result in downtime to the system; such parts include: a cooling fan, a blower fan for the assembly, and a battery backup for the solid state memory. These parts have a minimal cost and could be readily stocked in Tallahassee. In contrast, the parts which are required by the RFP are relatively expensive. Collectively, the cost of such parts exceeds $60,000 and, given the estimate of the monthly price for this contract, it is less likely such parts would be warehoused in Tallahassee by a vendor who did not manufacture same. As a result, this provision arbitrarily favors a vendor who manufactures the part since there is no showing that the part is necessary to minimize downtime. Section 7.31 of the RFP provides: The IMC currently utilizes real-time online retrieval of Engineering Changes for some components under maintenance contract in order to decrease EC procurement and installation time in a remedial maintenance situation. The contractor shall provide a similar method by which Engineering Changes can be acquired expeditiously. The foregoing provision fails to acknowledge that a vendor, other than the manufacturer, can only implement engineering changes as coordinated with the OEM. This provision, if construed to recognize that limitation, would not, based upon the language, arbitrarily favor one bidder over another.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order amending the provisions of RFP 94-052-SH to either delete the inclusion of the price of "value added services" from the contract cost or to specify more information as to the Department's need regarding such services; and to amend the critical parts list to those items that have an industry history for failure and thus contribute to system downtime. DONE AND RECOMMENDED this 30th day of September, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3527BID Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1-9, 11-15, 20, and 22-27 are accepted. The first sentence of paragraph 10 is accepted; the remainder rejected as incomplete or irrelevant as it is not clear what the intention of the phrase was. The first sentence of paragraph 18 is accepted; the remainder rejected as argument. Paragraph 19 is rejected as argument. Paragraph 21 is rejected as irrelevant. Paragraph 28 is rejected as argument. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1-3, 8 and 11 are accepted. Paragraph 4 is accepted but is irrelevant. With regard to paragraph 5, the last sentence is rejected as irrelevant; the remainder is accepted. Paragraph 6 is rejected as irrelevant. Paragraph 7 is accepted as to the statement of intent but is rejected as the cited provision does not accomplish the Department's stated goal and is therefore not supported by the weight of credible evidence; consequently, an amendment to the provision is necessary. All references to the Comptroller's RFP are rejected as irrelevant to the extent such comments infer that the record in this case supports the cited provision. Accordingly, such references in paragraphs 9 and 10 are rejected. Additionally, the inference in paragraph 9 that the critical parts list rationally relates to parts necessary to keep the system running is rejected as not supported by the credible weight of the evidence. The Department acknowledged or did not refute that many of the parts do not have an industry record for failure additionally, other parts were not listed which do have a failure history and which could cause the system downtime. Except as noted above, paragraph 10 is accepted. Paragraph 12 is accepted but is irrelevant. COPIES FURNISHED: Gregory P. Borgognoni RUDEN, BARNETT, McCLOSKY, SMITH SCHUSTER & RUSSELL, P.A. 701 Brickell Avenue, Suite 1900 Miami, Florida 33131 Edward A. Dion General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2189 Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0300
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McK.ibben, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon Respondent's Notice of Voluntary Dismissal. Accordingly, it is hereby ORDERED that the Dealer Agreement between Qlink, LP and Mega Power Sports, Corporation is terminated. DONE AND ORDERED this z/.ayofOctober, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed October 15, 2009 3:41 PM Division of Administrative Hearings. Filed with the Clerk of the Division of Motor Vehicles this day of October, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Mark L. Ornstein, Esquire Killgore, Pearlman, Stamp, Ornstein & Squires, P.A. Post Office Box 1913 Orlando, Florida 32802 David Levison Mega Power Sports, Corp. 921 West International Speedway Boulevard Daytona Beach, Florida 32114 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432-02 Tallahassee, Florida 32399-0504 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License .Section
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.
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.
Recommendation 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.
The Issue The issue in this case is whether the Hillsborough Area Regional Transit Authority (Authority) acted in an arbitrary or capricious manner in proposing to award Bid Number 89-03-02, for a transit communication/data system, to Motorola Corporation (Motorola) instead of to Harris Corporation (Harris) since, according to Harris, Motorola's bid materially deviates from the requirements of the Invitation for Bid (IFB) issued by the Authority.
Findings Of Fact The Authority is a public corporation created pursuant to Section 163.567, Florida Statutes, and operates a mass transit system, using buses, within Hillsborough County, Florida. It is funded by the State of Florida, through the Department of Transportation, and also receives federal funds. On April 10, 1989, the Authority issued IFB 89-03-02 for a transit communication/data system, with automatic vehicle locating capability. The Authority sought, through this IFB, to obtain a radio communication system that would be able to provide two-way communication between its central base station, and buses operated by the Authority. It also sought automatic vehicle location and schedule monitoring through this system. In responding to the Authority's IFB, vendors were allowed to bid either a "sign post system" or a "Loran-C system". However, if a sign post system was bid, Section 3.5.1 of the IFB specified that it must be a system that could be converted to a Global Positioning Satellite System (GPSS), when that technology becomes available, with no more than a change out of the vehicular location equipment. A GPSS system locates objects by use of a constant transmission of signals carried on various earth orbiting satellites which are received by equipment placed on vehicles utilizing this technology. Geographic location is determined by measuring the strength of the signals received from multiple satellites. GPSS technology is not presently available for a land- based vehicle locator system, such as proposed by the Authority, since an insufficient number of satellites are in orbit to provide 24-hour coverage for Hillsborough County. A sign post system utilizes small radio transmitters which are placed at regular intervals along a bus route, and as a bus passes each sign post, it receives a transmitted signal from the sign post, and then retransmits that information back to the central dispatcher. Since the dispatcher knows the location of each sign post, the location of the bus can be determined as it passes each sign post and retransmits the signal it receives to the dispatcher. Under a Loran-C system, transmissions from existing Loran transmitter sites located in Jupiter, Florida, and Houston, Texas, are received by equipment located on each vehicle. Those signals are used to determine the geographic coordinates of a bus, and those coordinates are relayed to the central dispatch station by transmitting equipment on each bus. Harris responded to the Authority's IFB by proposing a Loran-C system, and Motorola responded by proposing a sign post system. These bids were timely received prior to June 15, 1989, and upon the opening of the bids, Motorola was determined to be the apparent low bidder. Prior to proposing an award on the IFB, the Authority conducted a technical review of the bids received, and in that process met with representatives of Harris, who expressed concerns about the Motorola bid. As a result of Harris' concerns, the Authority requested clarification from Motorola about two aspects of its bid, but this was done as an accommodation to Harris, and not from any concerns or questions which the Authority had about the Motorola bid. On June 20, 1989, the technical staff review of the Motorola bid concluded that it complied with the IFB, and on June 22, 1989, the Florida Department of Transportation authorized the Authority to award this contract to Motorola. The Authority's Board of Directors formally adopted Resolution 89-25 on July 27, 1989, awarding Bid No. 89-03-02 to Motorola. On August 7, 1989, Harris protested this award by letter which sets forth the specific grounds upon which Harris relies in this case, which are that: Motorola failed to propose a "GPSS-Capable" system as expressly required by the IFB; Motorola failed to submit a complete site block diagram as expressly required by the IFB; and Motorola failed to provide programming necessary to interface the proposed AVL (automatic vehicle locator) system with other (Authority) systems as expressly required by the IFB. The Motorola response the IFB, at Section 3.5(G) states: The Motorola signpost-type location system can be changed out (replaced) in the future by a Global Positioning Satellite System, (GPSS). The vehicular location equipment (i.e. signpost receiver and associated antenna) must be changed out (replaced) by a GPSS receiver and associated antenna that are compatible with the existing Metrocom bus mobile data unit's AVL interface. The existing signposts would be replaced by the GPSS satellites. Since there currently is no guaranty as to when GPSS satellite coverage will be available for Hillsborough County, a GPSS type AVL system cannot be proposed at this time. Contrary to the contention of Harris, the evidence received at hearing indicates that the above-quoted portion of the Motorola bid is responsive, and does not indicate that Motorola cannot bid a GPSS upgrade, as required by the Authority. The Motorola system can be GPSS capable with only a change out of the vehicular location equipment, which will necessarily also include both the signal receiver and associated antenna. Motorola has not conditioned or qualified its response to the IFB requirement that any system must be GPSS capable with only a simple change out or replacement of the vehicular location equipment, and therefore, its bid in this regard is responsive. Section 6.1 of the IFB also requires bidders to submit a site block diagram with their bids which shows gains and losses in decibels, cables, antennas, any necessary control logic, audio panels, as well as transmitters, receivers, combiners, and duplexers. This was intended to provide the Authority with a simplified system architecture diagram, enabling it to confirm that each bidder's proposal complied with the IFB requirements relating to system output. The site block diagram is a visual aid, and does not affect or represent any part of the cost of the system. Motorola's bid omitted that portion of the site block diagram which should have identified system gains and losses from transmitter to antenna. However, this information was included in, and determinable from, other portions of the Motorola bid, such as the technical data sheets, and equipment list with catalog numbers. The Authority's technical review committee concluded that the information which Motorola did provide was sufficient for system gains and losses to be calculated, and for performance capacity to be evaluated, particularly in light of Motorola's performance coverage contour maps. Staff of the Authority was able to calculate the output power in system gains and losses using the information supplied in the Motorola bid, and therefore, while there was a technical oversight in not including certain information on the site block diagram in the Motorola bid, that information was readily ascertainable from a review of the bid in its entirety. The Authority utilizes an existing computer system containing bus routing and scheduling information, as well as personnel information. Section 11.3.5(F) of the IFB provided that bidders must assume responsibility for the interface equipment necessary to allow transfer of data from the existing computer system to the new data transit communication system to be provided pursuant to this IFB. Harris contends that Motorola's bid was nonresponsive because it proposed that the Authority bear the cost of transferring data from the existing computer system to the new system. However, as acknowledged by Harris at hearing, the Motorola bid expressly states that the interface will be provided by Motorola. The Authority reasonably interpreted the Motorola bid as responsive on this point. Motorola was not required to, and did not, commit to pay for the cost of any reprogramming of the Authority's existing computer system, but it has agreed to supply the equipment necessary for an interface between its new system and the Authority's existing system, or to program that interface. There is no evidence in the record which would indicate that the Authority acted fraudulently, in an arbitrary or capricious manner, or out of bad faith in its evaluation of, and proposed award of, this IFB to Motorola. Additionally, there is no evidence that Motorola received any competitive advantage over Harris due to any aspect of the manner in which it submitted its bid, including specifically those three aspects challenged by Harris, or the manner by which it was evaluated by the Authority.
Recommendation Based on the foregoing, it is recommended that the Authority enter a Final Order dismissing Harris' protest of the award of IFB No. 89-03-02 to Motorola. DONE AND ENTERED this 13th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989. APPENDIX DOAH CASE NO. 89-4410 BID Rulings on Harris' Proposed Findings of Fact: Adopted in Finding of Fact 2. Adopted in Findings of Fact 4, 6. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6, but Rejected in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected in Finding of Fact 11. 8-9. Adopted and Rejected in Finding of Fact 12. Rulings on Motorola's Proposed Findings of Fact, which have been joined in by the Authority: Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. 4-5. Adopted in Finding of Fact 2. Rejected as immaterial and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. 10-11. Adopted in Finding of Fact 6. 12-19. Adopted in Finding of Fact 7, but otherwise Rejected as unnecessary and immaterial. 20-26. Rejected as unnecessary and irrelevant. 27-30. Adopted in Finding of Fact 3. 31. Adopted in Finding of Fact 8. 32-34. Adopted in Finding of Fact 9, but otherwise Rejected as unnecessary and immaterial. 35-37. Adopted in Finding of Fact 10. 38. Rejected as unnecessary. 39-43. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary and immaterial. 44-56. Adopted in Finding of Fact 12, but otherwise Rejected as unnecessary and immaterial. COPIES FURNISHED: John W. Wilcox, Esquire Jesse L. Skipper, Esquire 100 South Ashley Drive Suite 1650 Tampa, FL 33602-5348 Stephen D. Marlowe, Esquire One Harbour Place P. O. Box 3239 Tampa, FL 33601 Michael S. Hooker, Esquire 1300 Ashley Tower 100 South Ashley Drive Tampa, FL 33601 Cliff Hayden, Jr. Executive Director Hillsborough Area Regional Transit Authority 4305 East 21st Avenue Tampa, FL 33605
