STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS HARRIS CORPORATION, Petitioner, vs. Case No BID DEPARTMENT OF MANAGEMENT SERVICES, and Respondent, MOTOROLA SOLUTIONS, INC., Intervenor. / RECOMMENDED ORDER The final hearing in this matter was conducted before J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections , and (1) and (3), Florida Statutes (2017), 1/ on May 8 through 11, 14, and 15, 2018, in Tallahassee, Florida. APPEARANCES For Petitioner Harris Corporation ( Harris ): Karen D. Walker, Esquire Mia L. McKown, Esquire George N. Meros, Jr., Esquire Tiffany A. Roddenberry, Esquire Holland & Knight LLP Suite South Calhoun Street Tallahassee, Florida 32301

2 For Respondent Department of Management Services (the Department ): Joseph M. Goldstein, Esquire Andrew Schwartz, Esquire Shutts & Bowen, LLP Suite East Broward Boulevard Fort Lauderdale, Florida and Jason B. Gonzalez, Esquire Shutts & Bowen, LLP Suite South Monroe Street Tallahassee, Florida For Intervenor Motorola Solutions, Inc. ( Motorola ): William Robert Vezina, III, Esquire Eduardo S. Lombard, Esquire Megan S. Reynolds, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida STATEMENT OF THE ISSUE The issue to determine in this bid protest matter is whether Respondent s (Department of Management Services ), intended award of the Statewide Law Enforcement Radio Communications System to Intervenor, Motorola Solutions, Inc., was contrary to its governing statutes, rules, or the solicitation specifications. PRELIMINARY STATEMENT This matter involves Harris protest to the Department s intent to award the contract for the Statewide Law Enforcement 2

3 Radio Communications System to Motorola through Invitation to Negotiate No. DMS-15/ On March 13, 2018, the Department posted its Notice of Intent to Award the contract to Motorola. On March 16, 2018, Harris timely filed a notice of protest of the award. 2/ On April 4, 2018, the Department referred Harris protest to the Division of Administrative Hearings ( DOAH ) for assignment to an Administrative Law Judge ( ALJ ) to conduct a chapter 120 evidentiary hearing. The final hearing was held on May 8 through 11, 14 and 15, Joint Exhibits 1 through 23 (including Joint Exhibits 8A, 16A, 16B, and 17A) were admitted into evidence. Harris Exhibits 1, 7, 10 through 13, 18, 20 through 31, 38 through 46, 51, 53 through 55, and 60 were admitted into evidence. Department Exhibits 1 through 7, 9, 11, 33 through 44, 76, 77, 80, 81, 83, and 85 were admitted into evidence. Motorola Exhibits 5, 9, 13 through 16, 21, 22, 26 through 29, 33, 34, 36, 42 and 43 were admitted into evidence. Harris presented the testimony of Robert Downie II, Ailneal Morris, Becky Bezemek (formerly Becky Lackey), Phil Royce, Matthew Matney, Jonathan Rakestraw, John Hogan, Dominic Tusa, Shaun Hancock, and Danielle Marcella. The Department called Phillip Shoemaker to testify. Motorola called Jay Malpass, Andrew Miller, Said Jilani, and Dominic Villecco. 3

4 An eleven-volume Transcript of the final hearing was filed with DOAH on June 6, / At the close of the hearing, the parties were advised of a ten-day timeframe after receipt of the hearing transcript to file post-hearing submittals. All parties filed Proposed Recommended Orders, which were duly considered in preparing this Recommended Order. FINDINGS OF FACT 1. The Department is charged with overseeing and managing Florida s Statewide Law Enforcement Radio System ( SLERS ). 2. 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 , Fla. Stat. Section (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. 3. 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 4

5 experience in public safety communications. Harris contract runs through June 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. 5. 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. 6. 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 5

6 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. 7. 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 8. 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/ 9. 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 6

7 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). 10. 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. 11. 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 7

8 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 , 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 , Laws of Florida. The Invitation to Negotiate 12. The Invitation to Negotiate at issue in this matter is DMS-15/ (the ITN ). The Department issued the ITN for the P25 SLERS service on October 31, 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 8

9 voice and data communications to public safety agencies. See ITN, Section 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 On February 7, 2017, the Department received timely Replies to the ITN from three vendors, including Harris and Motorola. 8/ 15. 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. 16. 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 points. Motorola s Reply received a technical score of points. Regarding price, Harris s Reply received 9

10 a score of (Harris s Reply received a combined score of ) Motorola s Reply received a pricing score of 25 points. (Motorola s Reply was awarded a total score of ) 9/ 17. 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 18. 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). 19. 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 10

11 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. 20. The Department s negotiations with Harris and Motorola began on April 4, 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. 21. 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. 22. 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. 23. The Negotiation Team last met with Harris on October 17, The Negotiation Team last met with Motorola on October 18, 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 11

12 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. 25. 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 However, the Negotiation Team did not meet with either Harris or Motorola to review their modified designs at any point after October 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, 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. 12

13 27. 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. 28. 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 In addition, the Final Statement of Work changed the word should to shall in many places. 13

14 29. The Final Special Conditions provided that: Any Contract that results from ITN No. DMS- 15/ 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 (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. 30. 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. 14

15 Instead (and in response to a Harris 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, (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/ 31. 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. 32. On or about February 14, 2018, both Harris and Motorola timely submitted Best and Final Offers to the Department. 33. 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. 15

16 34. 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. 35. 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/ 36. 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 16

17 based on the formula: Points Awarded = Maximum Available Points x (Lowest Offered Price/Offeror s Price). 37. The total price Harris submitted to perform the SLERS contract was $979,983, / Motorola s total price equaled $687,797, / 38. 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 39. 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/] 40. 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 17

18 Workbook. The Department will consider the total cost of each year of the Contract, as submitted by the offeror. 41. 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: a. Harris received points for technical, experience, and ability (the Final Statement of Work); and points for price (the Final Pricing Workbook). Harris total score equaled b. Motorola received 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 According to the Negotiation Team s overall scores, Motorola offers the best value to the state, based on the selection criteria. 43. 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. 18

19 44. 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 45. 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. 46. Harris protest presents three primary arguments. A. The Negotiation Team was Not Qualified to Score the Best and Final Offers: 47. 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 (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. 48. Harris asserts that the Department failed to select negotiators with the requisite experience and knowledge in the 19

20 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. 49. 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. 20

21 50. 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. 51. 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 (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. 21

22 B. Inadequate Coverage, Capacity, Reliability of Motorola s Service Design: 52. 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. 1) Motorola s Use of Conveyed Towers: 53. 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

23 54. 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. 55. 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/ 56. 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. 23

24 57. 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. 58. 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. 59. 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 24

25 other telecommunications equipment on the Conveyed Towers before its system must go live. 60. 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. 2) Coverage of Motorola s Service Design: 61. 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 25

26 (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 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. 63. 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. 64. 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. 26

27 3) Capacity of Motorola s Service Design: 65. 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 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. 4) Reliability of Motorola s Service Design: 67. 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, 27

28 Section Harris asserts that Motorola s Best and Final Offer fails to comply with this requirement. 68. 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-totower) 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.) 69. 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, 28

29 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. 5) Motorola s Inadequate Frequency Plan: 70. 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 Harris criticizes Motorola s decision to transmit approximately 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 29

30 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. 72. 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. 30

31 C. The Price of Motorola s Proposed System Design is Unknown: 73. 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. 74. 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. 75. 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 31

32 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. 76. 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. 77. 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.) 32

33 Therefore, the Department s contract award to Motorola must be rejected. DEPARTMENT RESPONSE TO HARRIS PROTEST 78. 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. A. Harris Lacks Standing to Protest the Department s Notice of Intent to Award: 79. 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 33

34 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 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 added: 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). 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). 34

35 Harris appears to condition its acceptance of the SLERS contract on the Department s ability to obtain additional adequate funding. 81. 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. 82. 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, 35

36 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. 83. 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. 84. 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 36

37 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. 85. (As discussed in paragraphs 131 through 139 below, the undersigned concludes that Harris has standing to bring this bid protest matter.) B. The Negotiation Team Was Qualified: 86. 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: a. 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 37

38 Negotiator. Mr. Morris used law enforcement radios while serving in the United States Marine Corps. b. 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. c. 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. d. 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 38