15-005002BID At And T Corp. vs. Department Of Management Services Status: Closed Recommended Order on Wednesday, November 25, 2015.

Summary: The Department's intended contract award to Intervenor is not contrary to the Department's governing status, rules, policies, or the solicitation specifications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AT AND T CORP.,

Petitioner,

vs. Cas e No. 15 - 5002BID

DEPARTMENT OF MANAGEMENT

SERVICES,

Respondent,

and

CR MSA, LLC, A SUBSIDIARY OF

HARRIS CORP.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

in Tallahassee, Florida, on October 13 through 16, 2015, before

Linzie F. Bogan, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARA NCES

For Petitioner: Martha Harrell Chumbler, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

For Respondent: Jason B. Gonzalez, Esquire

Shutts and Bowen, LLP

215 South Monroe Street , Suite 804

Tallahassee, Florida 32302

For Intervenor : John A. Tucker, Esquire

Foley & Lardner, LLP

One Independent Drive, Suite 1300

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether the Department of Management ServicesÓ intended

decision to award a contract to CR MSA, LLC, a subsidiary of

Harris Corporation, under ITN num ber DMS - 13/14 - 024 is contrary to

the DepartmentÓ s governing statutes, rules, policies, or the ITN

specifications.

PRELIMINARY STATEMENT

On June 6, 2014, the Florida Department of Management

Services (Department /Respondent ) advertised an invitation to

negot iate (ITN) which solicit ed proposals fr om firms interested

in participating in competitive negotiations for the award of a

contract for a telecommunications infrastructure data network to

be kn own as ÐMyFloridaNet - 2Ñ (MFN - 2) . 1/ On October 21, 2014, AT&T

C orp. (AT&T /Petitioner ) and CR MSA, LLC, a wholly - owned

subsidiary of Harris Corporation (Harris /Intervenor ) , each

submitted a reply to the ITN . On January 5, 2015, the Department

posted on the Vendor Bid System (VBS) website a Notice of In tent

to Negotiat e with AT&T and Harris. The Department conducte d

concurrent negotiations with AT&T and Harris between January and

July 2015. After negotiations, the Department issu ed a Request

for Best and Final Offers (RBAFO) to each vendor. The vendors

then submitted their best and final offers ( collectively referred

to as BAFO s ). On August 11, 2015 , the Department posted a Notice

of Intent to Award the contract to Harris. AT&T timely filed a

Notice of Intent to Protest the DepartmentÓs Notice of Intent to

Award. O n August 24, 2015 , AT&T filed its protest p etition with

the Department. The P etition was referred by the Department to

the Division of Administrative Hearings (DOAH). On September 9,

2015, Harris intervened in the proceeding.

The parties filed a Joint Pre - Hearing Statement, which

stipulate s to certain facts and the admission of joint exhibits.

This Recommended Order retains, for ease of reference, the

exhibit numbers used in the Joint P re - Hearing Statement. At the

final hearing, Joint Exhibits 1 throu gh 17 were admitted into

evidence, as were: AT&T Exhibits 1 through 5, 6A, 6B, 7, 8,

16 through 21, 27, 28, 30 and 31; and Harris Exhibits 1,

3 through 7, 9 through 11, 13, 14, 16, 17, 21, 24, 26, 29,

31 through 35, 37, 38, 40, 43 through 53, 56, 67, a nd 68.

AT&T offered testimony from Steven E. Turner, an expert in

the area of telecommunicat ions networks, including multi - protocol

label switching networks (MPLS); Mark Sullivan, a product

development engineer for AT&T; Scott Morris, an expert in the

area s of telecommunications, network engineering and architecture;

Abdul Majid, the DepartmentÓs lead engineer for the MFN network

and an evaluator and subject matter expert for this procurement;

Eric Larson, the c hief t echnology o fficer for the State of

Flori da, Agency for State Technology, and an evaluator for this

procurement; Erik Lindborg, a corporate representative of AT&T;

Jesse Tillman, the DepartmentÓs designated procurement officer for

this procurement; and R. Nicholas Platt, a former employee of the

Department.

The Department offered testimony from Coleman Ayers, the

n etwork m anager for the Florida Department of Agriculture and

Consumer Services, and a negotiator for this procurement. Harris

offered testimony from : Danny J. Thomas, a corporate

rep resentative for AT&T; Tiffany Sheffield, the product line

manager for the Harris Trusted Enterprise Network and the

corporate representative of Harris; Mark Graham, the chief

technologist for the Harris c ritical n etwork business area and

HarrisÓ technologi cal lead in responding to this procurement; and

Dr. Jason Rupe, an expert in the areas of telecommunications

networks, modeling, availability, and reliability analysis. The

testimony of Bret Hart, Troy Berry, Kevin Langston, Charles

Hartsfield, Mark Lovel l, Adam Jones, Chuck Lang , and Tom Gill was

offered by deposition transcripts and admitted in to evidence. By

stipulation of the parties , Harris and AT&T filed excerpts of

transcripts of negotiation and strategy sessions which were

admitted into evidence.

The eight - volume T ranscript of the final hearing was filed

with DOAH on October 30, 2015. The parties submitted proposed

recommended o rders, which have been considered by the undersigned.

FINDING S OF FACT

A. Background

1. The Department manages and oper ates the SUNCOM Network,

FloridaÓs state enterprise telecommunications system.

§ 282.703, Fla. Stat. (2014). 2/ The DepartmentÓs existing network

management contract with AT&T Services Inc., known as

ÐMyFloridaNetÑ (MFN - 1), expires in September 2016. Th e current

ITN involves the DepartmentÓs efforts to procure a new

telecommunications infrastructure to provide SUNCOM Network

services.

B. The ITN

2. On June 6, 2014, the Department released the ITN for

MFN - 2. The ITN consist s of a 30 - page document and s everal

attachments. The technical aspects of the ITN are included in

the s tatement of w ork, which is a ttachment A to the ITN.

3. Pursuant to s ection 287.057(1)(c), Florida Statutes, the

Department specified objectives and goals for the MFN - 2 ITN which

in clud e , without limitation, the goal of maintaining or reducing

the total cost for each customer.

C. Responsiveness of Replies

4. The Department received replies to the ITN from two

vendors: AT&T and Harris. Section 3.1 of the ITN, as noted

below, ident ifies the process by which the responsiveness of the

vendorsÓ initial responses (ÐReplyÑ or ÐRepliesÑ) to the ITN

would be determined:

3.1 Determination of Responsiveness

Failure to comply with and acknowledge

each of the requirements in the

Qualificatio n Questions will result in

the Reply being deemed non - responsive.

As indicated in Section 2.13,

ÐQualification Questions,Ñ DMS will not

evaluate replies from Respondents who

answer ÐNoÑ to any of the Qualification

Questions listed in Attachment K.

Failur e to provide any other information

required by this ITN may also result in a

determination of non - responsiveness.

5. The DepartmentÓs designated procurement officer,

Mrs. Jesse Tillman, determined responsiveness of the Replies

in accordance with the Ðpas s/fail requirementsÑ set forth on

the responsiveness checklist attached to the ITN as

attachment K. Mrs. Tillman reviewed relevant provisions of

the Replies and determined that both AT&T and Harris met the

responsiveness requirements.

D. Evaluation P hase

6. In accordance with s ection 2.1.2 of the ITN, the

Department, after determin ing that the Replies submitted by AT&T

and Harris were responsive, commenced the evaluation phase of the

procurement process.

7. The evaluation phase is described in the ITN as follows:

2.1.2 Evaluation Phase Î All responsive

Replies will be evaluated against the

evaluation criteria set forth in this ITN

to establish a competitive range of

Replies reasonably susceptible of award.

DMS may then select Respondents within

the com petitive range (pursuant to

Section 3.4) with which to commence

negotiations.

8. The ITN require s the appointment of a five - member

e valuation t eam to review and evaluate the vendorsÓ Replies.

The e valuation t eam was composed of: Abdul Majid ; Eric Larson ;

Adam Jones , the network and information security manager for the

Florida Department of Environmental Protection; Bret Hart , the

network services administrator for the Florida Department of

Health; and Troy Berry, the data processing manager for the

Flori da Department of Law Enforcement. The Department provided

the e valuators with detailed i nstructions for evaluating the ITN.

9. The i nstructions given to the evaluators expressly

provided that, Ð[t]he written information submitted will be the

sole basis upon which Replies are evaluated and scored.Ñ

Evaluators were not responsible for determining responsiveness of

Replies or conducting independent research to verify information

provided by the proposers .

10. The ITN directed the e valuation t eam to evalu ate each

Reply based on the following three categories:

Category 1 Î Statement of Work (Technical

Solution) Î 1,700 points

Ca tegory 2 Î Performance Measures

(Service Level Agreements) Î 250 points

Category 3 Î Migration and Transition

Planning (Support S ervices) Î 550 points

11. Each of t hese c ategories contain a number of specific

subjects which the evaluators were to score. Thes e scoring

questions correspond with subsections of the ITN, and were set

forth in a ttachment C, the e valuator s core s heet w o rkbook.

12. Evaluators were directed to score R eplies on a defined

scale ranging from Ð0Ñ to Ð4Ñ in accordance with the s coring

g uidelines set forth in the e valuator i nstructions.

13. In addition, the ITN also provid es that Replies are

scored on pricing via an automated price workbook included with

the ITN. Pricing scores were broken into the following

categories, with the following number of points available:

Category 4 Î Price: E - rate Eligible

Items Î 1,750 points

Category 5 Î Price: Non E - rate Elig ible

Items Î 250 points

Category 6 Î Price: Snapshot Comparison

Items Î 500 points

14. The pricing scores were then added to the technical

scores to reach a total score, with 5,000 being the maximum total

number of obtainable points.

15. The evaluator s worked independently from one another in

their review of the Replies and scored each section in accordance

with the s coring g uidelines.

16. Based on the scoring of the Replies, including both

technical scores and pricing scores, the Department determin ed

both vendors to be reasonably susceptible of award.

E. Posting the Notice of Intent to Negotiate

17. On January 5, 2015 , the Department posted a Notice of

In tent to Negotiate which provides in relevant part as follows:

The Department of Management Ser vices

hereby provides Notice of Intent to

Negotiate with the following vendors:

AT&T Corporation

CR MSA, LLC.

Failure to file a protest within the time

prescribed in [s] ection 120.57(3),

Florida Statutes, or failure to post the

bond or other security re quired by law

within the time allowed for filing a bond

shall constitute a waiver of proceedings

under [c] hapter 120, Florida Statutes.

Any protest must be timely filed with the

Department of Management Services Agency

Clerk listed at:

Http://www.dms.myflorida.com/agencyadmini

stration/generalcounsel

18. No protests to the DepartmentÓs Notice of Intent to

Negotiate with AT&T and Harris were filed.

19 . Erik Lindborg testifie d that the individuals

r esponsible for managing AT&TÓs R eply to the ITN conducted

research into the corporate identity of CR MSA, LLC (CR MSA) , at

the time the Notice of Intent to Negotiate was released .

Mr. LindbergÓs research revealed that CR MSA had b een

incorporated less than 5 years prior to the submission of Replies

in response to the ITN.

F. Negotiation P hase

2 0 . The ITN provide s for negotiations using a four - member

n egotiation t eam. The ne gotiation t eam consisted of: Chuck

Hartsfield, the b ur eau c hief of e ngineering within the

DepartmentÓs Division of Telecommunications; Mark Lovell, a

c ontract m anager within the DepartmentÓs Division of

Telecommunications; Coleman Ayers, the s ystems p roject

a dministrator for the Office of Agriculture Technolo gy Services

within the Florida Department of Agriculture and Consumer

Services; and Kasey Bickley, the b ureau c hief of the Information

Technology/Telecommunications Bureau within the DepartmentÓs

Division of State Purchasing. Ms. Bickley left the negotiat ion

team following the first negotiation session.

2 1 . The n egotiation t eam was assisted by the DepartmentÓs

purchasing officer, Jesse Tillman. T he negotiators were also

assisted by subject matter experts, including Abdul Majid, Amir

Qureshi, Tammy Willia ms, Kevin Langston, Jonathan Rakestraw, and

Tabitha Hunter .

2 2 . The n egotiation t eam held a total of 22 negotiation

s essions , 11 with each vendor. T he ne gotiation t eam also held 50

strategy sessions where they discussed questions for the

proposers , poten tial negotiation strategies, and options for

achieving the best value for the State. During the negotiation

sessions, the n egotiation t eam reviewed each vendorÓs technical

proposals and sought innovative suggestions from the vendors as

to how cost could b e reduced.

2 3 . Because cost was a significant consideration , and the

Replies indicated that costs would be higher than the Department

expected , the n egotiation t eam requested that each proposer

submit a list of potential cost savings solutions that could be

considered by the Department to reduce the cost for MFN - 2. Each

proposer submitted such a list proposing certain changes to the

s tatement of w ork. Among the suggested cost savings suggestions

was the possibility of reducing the minimum number of core

fac ilities required by the ITN and the removal of Ð s ession

i nitiation p rotocol c ore r outing [ (SCR) ] . Ñ

2 4 . On May 11, 2015, following the completion of 10

negotiation sessions with each vendor, the Department issued a

Request for Revised Replies to each v endor pursuant to its

reserved right to do so under section 3.5(B) of the ITN. Section

3.5(B) provide s that the Department reserve s the right to

Ð[r]equire any or all responsive vendors to provide additional,

revised or final written replies addressing sp ecified topics.Ñ 3/

25 . The DepartmentÓs Request for Revised Replies made

certain revisions to the statement of w ork in an effort to

achieve cost savings and best value for the State, including

reducing the minimum number of required core facilities from 10

to 5 .

2 6 . Both vendors responded to th e Request for Revised

Replies. In its Revised Reply, Harris reduced the number of

proposed core facilities from 11 to 6. AT&T revised certain

aspects of its Reply and e lected to maintain a 10 - core facility

propos al.

2 7 . On July 2, 2015, following the completion of all

negotiation sessions with the vendors, and further consideration

by the n egotiation t eam of cost savings possibilities, the

Department issued a RBAFO , pursuant to section 3.6(A) of the ITN.

Section 3.6 authorize s the RBAFO , and subpart (A) of this section

provide s that a vendorÓs BAFO must contain all negotiated terms

and conditions that will be included in the final contract , a s

well as all revisions to the s tatement of w ork .

2 8 . The RBAFO include s a revised a ttachment A, s tatement of

w ork, which reflect s the negotiated changes from the original

s tatement of w ork. The revised s tatement of w ork incorporate s

the changes that were discussed during negotiations, including

specifically the remo val of S CR and the reduction in the minimum

number of core facilities from 10 to 5 .

29 . Each vendor sub mitted its BAFO on July 10, 2015. Each

vendor removed SCR in their BAFO . H owever, like with its Revised

Repl y , Harris, in its BAFO, reduced the number of core facilities

it proposed from 11 to 6, while AT&T continued to propose a

10 - core facility solution.

3 0 . The BAFOs were scored in accordance with section 3.7 of

the ITN. AT&T received a total technical score of 42.9 from the

negotiators, while Harris rece ived a total technical score of

42.2 from the negotiators. BAFO pricing was scored using the

DepartmentÓs automated price workbook scoring. AT&T received a

price score of 34.8, while Harris received a price score of 41.9.

The technical and price scores of each vendor were combined, with

Harris receiving a total score of 84.1, and AT&T receiving a

total score of 77.7.

3 1 . DMS then held a final public meeting on July 20, 2015,

at which the n egotiation t eam discussed its award recommendation

and prepared i ts award memorandum. The memorandum provided a

summary of the procurement and negotiation process es, recited the

scoring of the R eplies and BAFOs, and memorialized the

negotiation teamÓs recommendation that, based on total BAFO

scores, including both tech nical and price, the contract be

awarded to Harris as the vendor representing the best value to

the State .

3 2 . The Department accepted the n egotiation t eamÓs

recommendation, and on August 11, 2015, posted the Notice of

Intent to Award indicating its inten t to award the contract to

Harris.

G. The Protest

3 3 . On August 24, 2015, AT&T filed its Formal Written

Protest and Petition for Formal Administrative Hearing in this

matter. On September 30, 2015, AT&T filed an Amended Formal

Written Protest.

3 4 . Bas ed upon the Amended Formal Written Protest and the

issues preserved for hearing by AT&T in the Pre - Hearing

Stipulation, the following four categories of issues are being

determined in this proceeding: (1) w hether Harris was responsive

in light of the deci sion to submit the Harris Re ply Ðby and

throughÑ its wholly - owned subsidiary, CR MSA, LLC; (2) whether

the Harris Reply complied with the technical requirements of the

s tatement of w ork; (3) whether the Department was permitted to

negotiate changes to the s tatement of w ork during the neg otiation

phase of the ITN ; and (4) whether the Harris Ó BAFO complied with

the revised statement of w ork included in the RBAFO.

3 5 . The undersigned finds that none of the four issues

raised by AT&T presents a basis for overt urning the DepartmentÓs

intended award.

H. Corporate Identity Issues

3 6 . AT&T alleges that the Harris Reply should have been

evaluated for responsiveness based solely on the qualifications

of its subsidiary, CR MSA, because the Harris bid was made Ðby

an d though CR MSA.Ñ AT&T argues that i f only CR MSA is

considered as submitting the Reply, then it failed to satisfy the

ITNÓs requirements that vendors : (1) possess a minimum of 5

years of experience as either a prime contractor or subcontractor

providing services on an MPLS enterprise services network with at

least 800 sites ( attachment K, q ualification q uestion 4) ; and

(2) submit a letter from a surety or bonding agent documenting

its ability to obtain a performance bond for the contract in an

amount of at least $60 million.

3 7 . The evidence presented at the final hearing established

that the DepartmentÓs responsiveness determinations , as to both

Harris and AT&T , were based on a careful and even - handed review

of the Reply documents and clarifications r eceived from both

vendors.

3 8 . Jesse Tillman, the DepartmentÓs procurement officer for

the ITN, reviewed each vendorÓs Reply for responsiveness and

determined that both Harris and AT&T were responsive. The

Department concluded, as to each vendor, that th e information

supplied in the respective Repl ies was sufficient, and any

irregularity was minor.

39 . The DepartmentÓs responsiveness determination relied in

part on responses provided by each vendor to a request for

clarification regarding the role that a ffiliated companies would

play in providing services to the Department. The Harris

response explained that its Reply was submitted through its

subsidiary , CR MSA, for business and accounting reasons, but that

ÐHarris will ensure that all appropriate Harri s entities and

personnel are assigned to MFN - 2.Ñ HarrisÓ corporate

representative at the final hearing also testified to these

circumstances. Harris also provided an absolute guarantee to the

Department confirming that Harris stood behind the proposal it

had submitted through its wholly - owned subsidiary.

4 0 . The DepartmentÓs responsiveness determination as to

Harris is also consistent with the documentary evidence admitted

at hearing, including the cover letter on Harris letterhead with

the subject line ÐHarris Reply to MFN - 2 ITNÑ ; the Harris

narrative response to section 2.2 of the s tatement of w ork

(referring to Harris as the p rime c ontractor) ; the Harris

response at page 4 through 7 (indicating Harris as the prime

contractor); the business references set forth in section 2.2

(identifying Harris as the prime contractor for the business

references); and the proof of credit letter (indicating that it

concerns the bonding ability of Harris, by and through its

subsidiary, CR MSA LLC).

4 1 . AT&T nonetheless argues that HarrisÓ submission in this

manner was not permitted by the ITN. As support for its

assertion, AT&T cites to the ITN definition for Ðrespondent,Ñ

which is defined as Ð[a] vendor who submits a Reply to this ITN,Ñ

a nd to the definition of Ðvendo r Ñ as Ðan entity that is capable

and in the business of providing a commodity or contractual

service similar to those within the solicitation . Ñ While AT&T

accurately cites to the definitions, nothing in these

definitions, nor anything contained elsewhere in the ITN,

prohibits the submission of a reply in the manner that Harris

elected (i.e. , submission of a reply on behalf of the Harris by

and through its wholly - owned subsidiary, CR MSA ) .

4 2 . The DepartmentÓs even - handed review of the vendors is

reflect ed by the testimony and documentary evidence that AT&TÓs

Reply similarly referred to affiliated business entities and that

the Department provided AT&T the same opportunity to provide

clarification regarding the role affiliated companies would play.

4 3 . A s to the corporate identity issues, the undersigned

finds that the testimony and exhibits demonstrate that the

Department complied with the terms of the ITN and Florida law in

determining that both AT&T and Harris were responsive as to these

issues. The D epartment treated both vendors equally in this

regard .

4 4 . Finally, as discussed in the Conclusions of Law below,

the undersigned concludes that AT&T has waived the issue of

HarrisÓ responsiveness by failing to protest on these grounds at

the point of ent ry accompanying the Notice of Intent to

Negotiate. Section 2.5 of the ITN allo wed AT&T to request the

Harris R eply following the completion of the evaluation phase of

the ITN, which would have revealed th e issue s of responsiveness

that AT&T now complains about . Moreover, AT&T had actual

knowledge , at or near the time the Notice of Intent to Negotiate

was posted, of issues related to CR MSAÓs corporate identity, yet

AT&T failed to timely protest this issue, electing instead to

take an impermissible Ðwait a nd seeÑ approach.

I. Statement of Work Issue

4 5 . Generally, AT&T argues that the initial Harris Reply to

the ITN failed to comply with certain technical requirements of

the ITN , and was therefore non - responsive . The s tatement of

w ork, a ttachment A to the ITN, consist s of 192 pages of technical

details concerning MFN - 2. The ITN clearly provide s that

statement of work requirements are not responsiveness

requirements whose omission would render a vendorÓs bid non -

responsive. Instead, the ITN provide s th at statement of work

requirements are to be scored by the evaluators and the

negotiators as part of the ITNÓs evaluation and selection

process. Responsiveness was determined based upon the

responsiveness requirements (attachment K) of the ITN, while the

t echnical solutions were scored by the evaluators and the

negotiators in both the ITN reply and BAFO stage.

4 6 . Each of the evaluators and negotiators who testified in

this proceeding, as well as the DepartmentÓs procurement staff,

uniformly stated that a ny deficiencies in a vendorÓs response to

a statement of work requirement was to be addressed in the

scoring of the response, and was not a responsiveness issue .

This point is underscored by the scoring guidelines themselves ,

which specifically contemplat e that Replies might contain

technical solutions that d o not meet the technical requirements

of the ITN, as the scoring guidelines provide for a possible

score of 0, indicating that a response was ÐInadequateÑ and

demonstrated ÐBelow minimum required funct ionalityÑ or ÐFail[ed]

to demonstrate capability.Ñ If , as AT&T argues, a reply was

required to be judged non - resp onsive for failure to meet a

statement of work requirement, there would be no need for the ITN

to contemplate a score of Ð0,Ñ because that fai lure would

eliminate the vendor from further evaluation.

47. Furthermore, if a failure to comply with the statement

of work requirements is fatal to an entityÓs proposal, AT&TÓs

Reply would itself have to be rejected as non - responsive. The

record demon strates that AT&T refused to provide a response, in

either its Reply or BAFO, to the section 2.2.5 statement of work

requirement that vendors disclose their dispute history. AT&T

also failed to comply with the section 5.1 statement of work

requirement for vendors to provide a proposed migration plan.

AT&T left this part of its Reply intentionally blank, contending

a migration plan was unnecessary.

i . Harris Complied W ith Core Facilities Requirements

4 8 . Specifically, as to HarrisÓ initial Reply to the

statement of work, AT&T argues that Harris failed to satisfy the

requirements o f section 2.7.12, which require a minimum of 10

geographically dispersed core facilities throughout the state.

This requirement provides : ÐThe Respondent may propose changes

t o the selected cities in the diagram section 2.7, but the number

of core facilities shall not be altered unless the Respondent

includes more core facilities than those provided in MFN.Ñ

49 . The Harris Reply complied with this requirement,

providing for 11 core facilities. The narrative text of the

Harris Reply provides that: ÐOur proposed MFN - 2 design places

core nodes in the following cities: Pensacola, Panama City, two

core nodes in Tallahassee, Jacksonville, Gainesville, Daytona,

Tampa, Orlando, Ft. Myers, and Miami,Ñ thus providing for a total

of 11 core facilities.

50 . AT&T argues that HarrisÓ Reply failed to meet th e

requirement s of 2.7.12 because of the labeling used by Harris to

describe the routing equipment in its proposed facilities,

identi fying some of the facilities as Ðaggregation nodes,Ñ and

others as Ðcore nodes.Ñ According to AT&T , HarrisÓ proposed

Ðaggregation nodesÑ do not meet the requirements of a Ðcore

facility,Ñ and that HarrisÓ Reply, therefore, did not propose at

least 10 core facilities. All witnesses test ified, however, that

the ITN does not define what constitute s a Ðcore facility,Ñ a

Ðcore node,Ñ or an Ðaggregation node.Ñ The witnesses likewise

agreed that there is no consensus industry definition for these

terms. Abdul Majid credibly testified that each of th e

facilities proposed by Harris - - whether labeled by Harris as a

Ðcore nodeÑ or an Ðaggregation nodeÑ - - satisfies the core facility

requirements of the ITN. Mr. Nick Platt, a former Department

employee who helped draf t the ITN statement of work , testified

that his intention was to have dual routers at each core

facility, and for the nodes to be able to inter - operate with one

another and transfer inter - LATA traffic. The routers proposed by

Harris in its Reply, whether identified as "aggregation n odes" or

"core nodes," satisfy these requirements.

ii . Harris Complied W ith IDS Requirements

5 1 . AT&T contends that the Harris R eply failed to comply

with the intrusion d e tection s ystem (IDS) requirements set for th

in section 2.7.7 of the ITN. This argument, however, is based

upon AT&TÓs mistaken contention that the ITN required IDS

equipment to be located at each core facility.

5 2 . Section 2.7.7 d oes not require IDS equipment to be

included at each core facility, but instead require s only that

all traffic be IDS - monitored. Mr. Majid specifically confirmed

this fact. Indeed, the statement of work contemplate s

flexibility in the monitoring solutions proposed by vendors, as

illustrated in s ection 2.7.7(d) , which directs that v endors

Ð[i]nclude a discussion of how and where backbone traffic is

captured, plus how and where local traffic is captured.Ñ Both

Scott Morris, AT&TÓs expert , and Mr. Sullivan, its lead MFN

engineer, agree that s ection 2.7.7 d oes not require IDS hardware

to be located at each core facility, b ut only that all traffic be

IDS - monitored. Further, both of AT&TÓs experts agree that

HarrisÓ design would result in all traffic being IDS - monitored.

iii . Harris Complied W ith Access Requirements

53 . AT&T argue s th at the Harris Reply does not satisfy

section 2.7(o) of the statement of work because the R eply does

not provide frame relay access at all core facilities.

54 . Section 2.7(o) require s that the proposed network

provide access to all forms of technology th at might be used by

the StateÓs agencies and departments, which could include frame

relay access. Frame relay access is, as even AT&TÓs experts

acknowledge , an older technology that is being phased out and

replaced by newer access technologies , such as E t hernet.

55 . HarrisÓ Reply specifically addresse s frame relay

access, and state s that all traffic using frame relay access is

to be routed to either a core node or the Orlando aggregation

node, which would have the capability to provide such access. To

av oid the cost of providing access for this legacy technology

that is being phased out, Harris expressly state s that access

will not be provided at its other aggregation nodes. However,

b ecause HarrisÓ design provide s access to the network for frame

relay t echnology, HarrisÓ Reply satisfie s the s ection 2.7 (o)

requirement.

iv . Long Haul Circuits

56 . AT&T argue s that the State would be harmed by the

inclusion of long haul circuits in HarrisÓ six - facility

architecture . T he evidence does not support this argu ment.

Mr. Graham testified that because pricing is not based on

distance (such that longer distance access costs the same as

shorter distance access), the inclusion of long haul circuits

would not impact price. A ddition ally , because optical signals

trav el at nearly the speed of light, the distance of such

circuits would be covered faster than the blink of an eye and

would not impact network speed. While the evidence establishes

that the Department initially wanted to avoid long haul circuits

because of previous experience with outages, the Department

softened its position regarding this issue when Harris presented

a solution that both allayed the DepartmentÓs concerns and

reduced costs. AT&T enjoyed the same opportunities as Harris ,

but decided to stay tethered to a solution that more closely

resembles the existing MFN product.

v . Unavailability of HarrisÓ Network

57 . Mr. Turner expressed concern that HarrisÓ proposed

network may be unavailable while updates ar e being applied to IDS

software. The sugg estion is that any such system unavailability

would negatively impact the functionality of MFN - 2. T his concern

is not supported by the evidence. M r. Graham noted in his

testimony that Harris specifically addressed this issue in its

BAFO, and its design i ncludes bypass switches to re - route traffic

if IDS equipment were to fail or go offline during any software

updates.

J . Changes to the Statement of Work

58 . AT&T asserts that it was improper for the Department to

negotiate changes to the s tatement of w o rk during the negotiation

phase of the ITN. These arguments do not present a basis for

overturning the DepartmentÓs intended award.

59 . The ITN process was specifically designed to provide

agencies with the flexibility to negotiate requirements in order

to receive the best value for the State under circumstances where

there are multiple methods available for meeting a specified goal

of the agency. The process recognizes that negotiation on terms

that differ from those of the procurement , or the initial w ritten

response , may be necessary. The plain language of the ITN

statute supports this understanding , noting that the ITN : Ðis

intended to determine the best method for achieving a specific

goal or solving a particular problem and identifies one or more

responsive vendors with which the agency may negotiate in order

to receive the best value.Ñ £ 287.057(1)(c), Fla. Stat. Thus,

State agencies are specifically authorized by statute to

negotiate the requirements and contractual terms in ITN

procurements to identify and obtain the best method for achieving

the procurement goal at the best value for the State. Changes to

requirements during the negotiation process are an integral and

necessary part of the ITN procurement process, as the agency

gains more inf ormation from vendors regarding the alternatives

available to meet its goals.

60 . Consistent with the statutory purposes of the ITN

procurement, th e ITN at issue in this dispute provide s, in a

multitude of places , that changes to the statement of work c ould

occur during the negotiation phase of the ITN. For example,

section 3.4 of the ITN provides:

Negotiations will include discussions of

the Statement of Work and related

services to be provided by the Respondent

until acceptable terms are agreed upon,

or it is determined that an acceptable

agreement cannot be reached. The

negotiation process will also include

negotiation of the terms and conditions

of the Contract. As this is an ITN, the

Department reserves the right to

negotiate the terms and condit ions

determined to be in the best interest of

the State.

The ITN further provides in section 2.4 that:

The awarded contract will consist of

Attachment A (Statement of Work) as

modified through negotiations,

Attachment B (Contract), Attachment H,

Specia l Conditions, and the revised

Attachment E (Price Workbook) submitted

with the Best and Final Offer.

6 1 . Moreover, the Department , in section 3.5(B) of the ITN,

expressly reserve s the right at any time during the negotiation

process to Ð [r] equire any or all responsive vendors to provide

additional, revised or final written replies addressing specified

topics.Ñ Furthermore, section 3.5(B) of the ITN also reserves to

the Department the right to award a contract for all, or part, of

the work contemplated by the ITN .

62 . Ad dition ally , the evidence does not establish that the

revisions to the statement of work constitute a material change

to the procurement. The goals and questions being explored by

the ITN remained unchanged, as did the selection criteria upon

which the best value decision w as determined. Simply put, the

ITN sought a network to process the StateÓs telecommunications

tra ffic while meeting certain high - availability and high -

reliability requirements. 4/ Neither t he reduction in the number

of core facilities included within the network, n or the removal

of the SCR functionality, affect ed the fundamental nature of what

was being procured.

K. BAFO and Revised Statement of Work

63 . AT&T argues that HarrisÓ BAFO design fails to satisfy

the requi rements of the RBAFO statement o f work with regards to

the high - availability (HA) and high - reliability (HR) requirement.

64 . The evidence establishes that the Department acted

rationally and reasonably in negotiating revisions to the

statement of work . Because t he n egotiation t eam was concerned

with the costs of the initial proposals , the team explored

potential cost - saving ideas with both Harris and AT&T . The

suggestion to reduce the number of required core facilities made

financial sense, as long as the HA/HR requirements of the ITN

could still be met. Indeed , the ITN business case, a ttachment G

to the ITN, recognize s that Ð[r]equiring high numbers of nodes in

the procurement specification should be avoided as this could

inadvertently inject higher c ost structures from the prospective

vendor to recover the cost of deployment of necessary

infrastructure to support the core routing design.Ñ There is no

record evidence suggesting that this language was inserted in the

business case study in order to pro vide a competitive advantage

to Harris.

65 . To address the ITNÓs HA/HR r equirement s with a design

involving fewer core facilities, Harris performed extensive

modeling and analyzed several designs potentially using 5 to 10

core facilities. Based on this e xtensive analysis, which Harris

shared with the n egotiation t eam as it was consider ing a revisi on

to the required number of core facilities, Harris ultimately

concluded that a six - core facility design was optimal. HarrisÓ

analysis was thoroughly considere d and reviewed by the

n egotiation t eam, and through this process , the Department

decided to reduce the number of core facilities required by the

statement of work . The n egotiation t eamÓs decision to revise the

statement of work in this regard was well - co n sidered , rational ,

and reasonable.

66 . Also, th e process utilized by the Department in

reaching its decision to reduce the number of core facilities

afforded both vendors the same opportunity to propose a design

with fewer core facilities, and therefore , provided no

competitive advantage to either vendor. 5/ Indeed, by not allowing

vendors the flexibility to consider and propose alternate designs

that could accomplish the same goals, and instead requiring all

vendors to mirror the design chosen by the inc umbent vendor, this

likely would have hindered competition and certa inly would not

have served the S tateÓs interests.

67 . Further, the evidence demonstrate s that HarrisÓ

six - core facility BAFO design met, and in fact exceeded, the

statement of work HA/H R requirement. Harris conducted a

statistical availability analysis , and detailed this analysis and

the results in presentations to the n egotiation t eam during

negotiations, and later in its BAFO. HarrisÓ expert, Dr. Rupe,

confirmed that HarrisÓ assumpti ons and information were

reasonable. Dr. Rupe conducted his own statistical analysis of

HarrisÓ BAFO core design and independently verified the results

reached by Harris.

6 8 . The DepartmentÓs decision to remove SCR functionality

from the statement of wo rk was likewise not improper. SCR was

merely an add - on to the network and the n egotiation t eam, after

due consideration, made the decision to delete this requirement.

As testified to by Mr. Ayers, a number of factors played into the

negotiatorsÓ decision to remove SCR functionality, including the

fact that: (1) the technology is fairly expensive today;

(2) technology changes could result in lower prices in the

future; (3) the Department was not capable of adequately defining

their parameters and/or what SCR functionality it required; (4)

the functionality would be paid for from the time the contract

was signed , notwithstanding that it was not required to be in

place for three years; and (5) the State could easily obtain SCR

functionality through another procurement if it ultimately

determined that the functionality was needed. This analysis, and

the n egotiation t eamÓs decision to remove this requirement, was

rational, reasonable , and did not create any competitive

advantage to either vendor, both of whom did not include this

functionality in their BAFOs.

L . Ultimate Findings of Fact

69 . Based on the foregoing, the undersigned finds that

Harris was a responsive and responsible vendor who submitted a

fully responsive reply to the ITN. The undersigned fur ther finds

that the DepartmentÓs negotiations and negotiation phase

revisions to the s tatement of w ork were consistent with Florida

l aw and the rights reserved to the Department by the ITN.

Finally, the undersigned finds that the BAFO submitted by Harris

was fully responsive to the RBAFO and , pursuant to the selection

criteria set forth in the ITN, the solution proposed by Harris

represented the best value to the State of Florida. Simply

stated, the record evidence failed to expose the existence of any

sh enanigans in the instant procurement.

70 . Based on the above, the DepartmentÓs decision to award

a contract to Harris fully complied with applicable law , rules ,

and terms and conditions of the ITN and was not arbitrary,

capricious, clearly erroneous, or c ontrary to competition.

CONCLUSIONS OF LAW

71 . The Division of Administrative Hearings has

jurisdiction to hear this protest and to issue a recommended

order. §§ 120.569 and 120.57, Fla. Stat. (2015).

72 . This is a de novo proceeding to determine whethe r the

DepartmentÓs notice of intent to award a contract to Harris is

contrary to the DepartmentÓs governing statutes, rules, or

policies or to the ITN specifications. § 120.57(3)(f), Fla.

Stat. Although this is a de novo proceeding, DOAH does not

substit ute its judgment for that of the Department. Instead,

DOAH engages in a form of Ðinter - agency review,Ñ the object of

which is to evaluate the action taken by the Department. State

Contracting & EngÓg Corp. v. DepÓt of Transp. , 709 So. 2d 607,

609 (Fla. 1 st DCA 1998).

73 . Petitioner ha s the burden of proof. Petitioner must

establish that the DepartmentÓs proposed action was either:

(1) contrary to the agencyÓs governing statutes; (2) contrary to

the agencyÓs rules or policies; or (3) contrary to the IT N

specifications. § 120.57(3)(f), Fla. Stat.

74 . To prevail, Petitioner must prove that the agencyÓs

proposed action was: (1) clearly erroneous; (2) contrary to

competition; or (3) arbitrary or capricious (that is, an abuse of

discretion). R.N. Exper tise, Inc. v. Miami - Dade Cnty. Sch. Bd. ,

Case No. 01 - 2663BID (Fla. DOAH Feb. 4, 2002; Sch. Bd. Miami - Dade

Mar. 20, 2002). Petitioner must establish all of the above by a

preponderance of the evidence. Id.

75 . Agency action will be found to be clearly er roneous if

it is without rational support and, consequently, the

Administrative Law Judge has a Ðdefinite and firm conviction that

a mistake has been committed.Ñ United States v. U.S. Gypsum Co. ,

333 U.S. 364, 395 (1948); s ee also , Pershing Indus., Inc. v .

DepÓt of Banking & Fin. , 591 So. 2d 991, 993 (Fla. 1st DCA 1991).

Agency action may also be found to be clearly erroneous if the

agencyÓs interpretation of the applicable law conflicts with the

lawÓs plain meaning and intent. Colbert v. DepÓt of Health , 890

So. 2d 1165, 1166 (Fla. 1st DCA 2004).

76 . An act is contrary to competition if it : (1) creates

the appearance of and opportunity for favoritism; (2) erodes

public confidence that contracts are awarded equitably and

economically; (3) causes the pro curement process to be genuinely

unfair or unreasonably exclusive; or (4) is unethical, dishonest,

illegal, or fraudulent. Syslogic Tech. Servs., Inc. v. S. Fla.

Water Mgmt. Dist. , Case No. 01 - 4385BID (Fla. DOAH Jan. 18, 2002),

modified in part , Case No. 2002 - 051 (Fla. SFWMD Mar. 6, 2002).

77 . An arbitrary decision is one not supported by facts or

logic or one that is despotic. Agrico Chem. Co. v. State DepÓt

of Envtl. Reg. , 386 So. 2d 759, 763 (Fla. 1st DCA 1978). To act

capriciously is to act without thought or reason or to act

irrationally. Id. If agency action is justifiable under any

analysis that a reasonable person would use to reach a decision

of similar importance, the decision is neither arbitrary nor

capricious. Dravo Basic Ma terials Co. v. DepÓt of Transp. , 602

So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).

78 . This procurement process is governed by the Ðinvitation

to negotiateÑ p rovisions of section 287.057(3) . The ITN process

is distinguished from requests for proposals and invitations to

bid , in part , because it provides the State and competitors more

flexibility in crafting a solution to meet the StateÓs needs.

Invitations to negotiate are used when an agency determines that

negotiations may be necessary for the State to receive the best

va lue. § 287.057(1)(c), Fla. Stat.

79 . Section 287.057 (1)(c)3. - 4. provides:

The criteria that will be used for

determining the acceptability of the

reply and guiding the selection of the

vendors with which the agency will

negotiate must be specified. The

evaluation criteria must include

consideration of prior relevant

experience of the vendor. The agency

shall evaluate replies against all

evaluation criteria set forth in the

invitation to negotiate in order to

establish a competitive range of replies

reasonably susceptible of award. T he

agency may select one or more vendors

within the competitive range with which

to commence negotiations. After

negotiations are conducted, the agency

shall award the contract to the

responsible and responsive vendor t hat

the agency determines will provide the

best value to the state, based on the

selection criteria.

80 . Thus, chapter 287 provides for two distinct parts to

every ITN. The first part consists of submission of proposals or

replies, evaluations, and rank ing. The second part consists of

negotiations with vendors selected from the ranking. In other

words, an agency first determines which vendors are responsive

and reasonably susceptible of award. The agency is then free to

negotiate with one or more vend ors and award a contract to the

vendor that provides the best value, taking into consideration

the selection criteria of the ITN.

A. AT&T Waive r as to ITN Specifications

81 . S ection 120.57(3)(b) provides that any protest to the

Ðterms, conditions, and sp ecifications contained in a

solicitation, including any provisions governing the methods for

ranking bids, proposals, or replies, awarding contracts,

reserving rights of further negotiation, or modifying or amending

any contractÑ must be filed within 72 ho urs after the posting of

the solicitation and the Ð[f] ailure to file a notice of protest

or failure to file a formal written protest shall constitute a

waiver of proceedingsÑ under c hapter 120.

82 . As set forth in the Findings of Fact, the terms of the

IT N made explicit that the statement of work would be negotiated.

83 . The Department and Harris argued in a Motion in Limine

that AT&T had waived its right to challenge these specifications

by failing to protest at the time the ITN was posted. The

u nders igned reserved ruling on this issue, but invited the

parties to include arguments in their respective proposed

recommended orders.

84 . It is undisputed that AT&T did not protest the ITNÓs

specifications, including the specifications regarding the

Departm entÓs reservation of the right to negotiate the s tatement

of w ork. The scope of AT&TÓs waiver includes any challenge to

the DepartmentÓs authority under the ITNÓs specifications to

negotiate the terms of the s tatement of w ork , including t he

number of core facilities and the removal of SCR capability , as

well as the DepartmentÓs authority to make changes to the

statement of work without publicly posting an addendum containing

point of entry language to VBS.

B. AT&T Ós Failure to Protest Short - List Results i n Waiver

85 . It is well settled that parties may raise

responsiveness issues regarding selected vendors at the posting

of a short - list in an ITN, and vendors regularly do so.

See, e.g. , Cubic Transp. Sys., Inc. v. DepÓt of Transp. ,

Case No. 14 - 2322B ID (Fla. DOAH Sept. 4, 2014) (Recommended O rder

resolving responsiveness of vendor issues on protest of Notice of

Intent to Negotiate); Verizon Bus. Network Servs., Inc. v. DepÓt

of Corr . , Case No. 07 - 2468BID at ¶¶ 39 - 40 (Fla. DOAH Aug. 13,

2007) (concluding that failure of parties to av ail themselves of

a clear point - of - entry at the posting of the Notice of Intent to

Negotiate meant that Ðthe time to complain about the selection of

[the selected vendors] ha[d] passedÑ).

86 . As set forth in the Findings of Fa ct, the Department

posted a Notice of Intent to Negotiate on January 5, 2015, that

included clear point - of - entry language allowing vendors to

protest the DepartmentÓ s intended decision to negotiate with

either vendor.

87 . The DepartmentÓs decision to nego tiate with a vendor

necessarily constitutes a determination by the Department that

the vendor was a ÐresponsiveÑ vendor and that the vendor

submitted a Reply Ðreasonably susceptible of award.Ñ

See § 287.057(1)(c), Fla. Stat.

8 8 . AT&T did not protest the Notice of Intent to Negotiate,

and , accordingly , has waived any arguments as to HarrisÓ

responsibility or the responsiveness of the initial Reply

submitted by Harris. These waived arguments include AT&TÓs

challenges involving HarrisÓ corporate identity.

89 . AT&TÓs argument that it was unable to discover these

issues at the time of the Notice of Intent to Negotiate is

contrary to s ection 2.5 of the ITN, which provided that Ð[o]nce

the Evaluation Team completes the evaluation phase, the Replies

may be disc losed pursuant to a public records request, subject to

any confidentiality claims.Ñ

90 . Had AT&T acted with reasonable diligence and made such

a request, the Harris Reply would have been provided to it at the

time the Notice of Intent to Negotiate was pos ted. B ecause the

Harris Reply was available to AT&T at the time the Notice of

Intent to Negotiate was posted, AT&T could have, and with

reasonable diligence should have, known of all purported

responsiveness or responsibility issues associated with the

Ha rris Reply.

91 . The DepartmentÓs determinations that both AT&T and

Harris were responsible vendors , whose initial Rep lies were

responsive to the ITN, became final 72 hours after the Notice of

Intent to Negotiate was posted in accordance with section

120.5 7(3). Any challenge related to these determinations has

been waived. 6/

9 2 . Even if AT&T had not waived the right to protest

HarrisÓ responsibility and responsiveness, it failed to satisfy

its burden of proof as to these issues.

C. The DepartmentÓs Negot iations W ere Properly Conducted

93 . Even if AT&T had not waived its arguments regarding

negotiation of the s tatement of w ork, the assertion that an

agency may not alter the terms of an ITN during negotiations with

vendors is contrary to law.

94 . In Morph otrust USA v. Department of Highway Safety and

Motor Vehicles , Case No. 12 - 2917BID (Fla. DOAH Dec. 7,

2012), the undersigned concluded that Ð[g] enerally, the

Department is free to make changes to the provisions of an ITN

prior to the submission of BAFOs as long as the changes do not

favor, or create the opportunity for favoritism of, one bidder

over another. Ñ Id. at ¶ 55 .

95 . The parties presented legal argument regarding these

matters in a Motion in Limine and r esponse thereto . In a

P re - hearing Order D enying Motion to Relinquish Juri sdiction or,

in the Alternative to Dismiss Amended Formal Protest, the

undersigned noted that the a mended p etition included factual

allegations suggesting Ðcollusion or favoritismÑ that were not

appropriate for resolution be fore the presentation of evidence at

the final hearing.

9 6 . As stated in the Findings of Fact, AT&T did not carry

its burden of prov ing collusion or favoritism on the part of the

Department. AT&T put forth no credible evidence suggesting that

the Departm entÓs negotiations were designed to favor Harris or

provide to Harris a competitive advantage. T he DepartmentÓs

witnesses testified convincingly that the ITN negotiations

related to the s tatement of w ork were focused almost entirely on

achieving cost savi ngs for the State within the confines of a

technological solution that the Department determined would

satisfy its goals. 7/

D. The Harris Reply and BAFO W ere Responsive

97 . The issue concerning the c orporate i dentity of CR MSA

does not p resent a basis for overturn ing the award.

98 . In Securus Technologies, Inc. v. Dep artment of

Corr ections , Case No. 13 - 3030 (Fla. DOAH Nov. 1, 2013), Judge

Boyd conf ronted a nearly identical issue and determined that the

vendor was both responsive and responsible, reas oning as follows:

GTL alleges that in EPSIÓs reply, EPSI

relied upon the experience,

qualifications, and resources of its

affiliated entities in other areas as

well. For example, GTL asserts that

EPSIÓs claim that it would be providing

83 percent of the m anpower is false,

since EPSI has acknowledged that EPSI is

only a contracting subsidiary of

CenturyLink, Inc., and that EPSI has no

employees of its own. While it is clear

that EPSIÓs reply to the ITN relies upon

the resources of its parent to carry out

t he terms of the contract with respect to

experience, presence in the state, and

personnel, EPSI demonstrated that this

arrangement was common, and well

understood by the Department.

EPSI demonstrated that all required

capabilities would be available to it

through the resources of its parent and

subcontractors at the time the contract

was entered into, and that its reply was

in conformance with the provisions of the

ITN in all material respects. EPSI has

the integrity and reliability to assure

good faith p erformance of the contract.

Id. at ¶¶ 16 - 18.

99 . The same reasoning is equally applicable to both Harris

and AT&T in this instan t case . While each clearly relies on the

capabilities and resources of corporate affiliates to satisfy the

ITN requirements and carry out the contract, this issue was well

understood and considered in great depth by the Department, wh ich

requested clarification surrounding this issue from each vendor

and then made a reasoned decision that such an approach to

bidding was accepta ble. The evidence demonstrates that all

required capabilities are available to CR MSA through its parent,

Harris Corporation .

1 00 . Finally, AT&T argues that certain aspects of the

Harris R eply and BAFO were non - responsive to the s tatement of

w ork. The se arguments are without merit , as Harris complied with

the requirements of the ITN .

1 01 . A s described in the Findings of Fact above, the

evidence demonstrates that the Depart ment did not intend for the

192 - page technical s tatement of w ork document to con stitute

responsiveness requirements for the ITN, and the response to the

statement of work was instead to be scored. AT&T contends that

the DepartmentÓs use of the words Ðmust, shall, or will , Ñ

indicate mandatory requirements of the ITN as it relates to t he

statement of work. Compare Morphotrust USA , Case No. 12 - 2917BID

at ¥ 24. A search for the terms ÐmustÑ and ÐshallÑ in the

statement of work reveals that the terms collectively appear 657

times. Accepting AT&TÓs argument would result in the statement

of work including 657 different responsiveness requirements.

AT&TÓs argument is undercut by the ITN s coring g uidelines which

permit a score of zero when a vendorÓs response is Ðbelow minimum

required functionalityÑ or Ðfails to demonstrate capability.Ñ I n

sum, the terms of the ITN demonstrate that the requirements set

forth in the statement of work were not intended to be, and are

not, mandatory responsiveness requirements of the ITN.

1 02 . Additionally, each of AT&TÓs arguments regarding the

statement of work is based, not on any requirement plainly set

forth in the narrative of the statement of work , but instead upon

ÐrequirementsÑ that AT&T contends are implied by drawings

included within the statement of work or upon the meaning

ascr ibed to certain ter ms by AT&T - Î but which evidence

demonstrated were neither defined in the ITN nor subject to

agreed - upon definitions in the industry.

103 . Having failed to challenge the meaning of such terms

within the s tatement of w ork, the only interpretation of the

te rms that is relevant is that of the Department. The fact that

others may differ from the DepartmentÓs interpretation of the

terms as used in the s tatement of w ork is not relevant to this

proceeding. The sole issue that could conceivably remain is

whether the Department properly interpreted terms within its own

s tatement of w ork, and in this regard , the inquiry is limited to

whether the DepartmentÓs interpretation of such terms falls

within the range of reasonable interpretations and is not clearly

erroneo us. See Sunshine Towing at Broward, Inc. v. DepÓt of

Transp. , Case No. 10 - 0134BID at ¶ 40 (Fla. DOAH April 6, 2010)

(when a vendor has failed to timely challenge an ambiguous or

vague specification, it does not present a ground for protest of

the award i f the agency relied on any interpretation of the

specification that falls within the range of reasonable

interpretations and is not clearly erroneous).

104 . In th e present case, the evid ence clearly establishes

that the DepartmentÓs interpretation of its specifications

relating to core facilities was satisfied by the Harris Reply,

and that HarrisÓ decision to label certain faciliti es as Ðcore

nodesÑ and certain facilities as Ðaggregation nodes , Ñ based upon

the capacity of those facilities , did not alter th e fact that

each of the Harris facilities met the DepartmentÓs interpretation

of a core facility. Likewise, the DepartmentÓs interpretation of

the IDS requirement as merely requiring all traffic to be

monitored as the ITN stated, and not as requiring IDS equipment

to be installed at each core facility , was clear and consistent

with the language included within the s tatement of w ork.

Succinctly stated, the DepartmentÓs interpretation of its

s tatement of w ork requirements was reasonable.

105 . Harris fully satisfied the technical requirements of

the s tatement of w ork and the Harris Reply is fully in line with

the reasonable interpretation assigned to those requirements by

the Department.

1 06 . AT&T has failed to meet its burden to proof that

either the Harri s Reply or BAFO failed to satisfy the

requirements of the s tatement of w ork, or deviated from the

DepartmentÓs reasonable interpretation of the s tatement of w ork.

The DepartmentÓs acceptance of HarrisÓ Reply and BAFO, and

intended award to Harris, are not arbitrary, capricious, contrary

to competition, clearly erroneous, or contrary to the laws, rules

and specifications governing the procurement.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

recommended that PetitionerÓs protes t be dismissed.

DONE AND ENTERED this 25 th day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

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 25 th day of November , 2015 .

ENDNOTE S

1/ The ÐITNÑ was later amended by addenda. A ll references to the

ÐITNÑ mean the ITN as amended by Addenda 1 - 8.

2/ All subsequent references to Florida Statutes will be to 2014,

unless otherwise indicated.

3/ Section 3.5 of the ITN provides that ÐDMS has sole discretion

in deciding whether and wh en to take any of the foregoing actions

[including requesting Revised R eplies pursuant to Section

responsive vendor or vendors affected, and whether to provide

concurrent public notice of such decisio n.Ñ

4/ The ITNÓs high - availability and high - reliability requirement

dictates that the network be available and running no less than

99.999% of the time.

5/ AT&TÓs argument that this change was necessary so that Harris

would be qualified to bid is not s upported by the evidence, as

HarrisÓ Reply complied with the initial statement of work

requirements of 10 core facilities and included SCR. Indeed, if

the statement of work had any competitive impact, it was to

reduce the competitive advantage that AT&T m ight have as the

incumbent provider of MFN, with core facilities and equipment

already largely in place. Further more , to the extent AT&T argues

that it could not propose a smaller number of facilities because

of its contracts with CenturyLink and Hayes, t hese arguments , on

the record before the undersigned, are not persuasive. I f AT&TÓs

contracts with CenturyLink and Hayes bar AT&T from proposing a

smaller design for MFN - 2 , then th e decision by AT&T to enter into

such binding agreements may be improvident , but any such

contractual limitations do not provide a basis for challenging

the present procurement.

6/ In Global Tel Link Corp oration v. Dep artment of Corr ections ,

Case No. 13 - 3028BID at ¶¶ 85 - 92 (Fla. DOAH Nov. 1, 2013) (ÐGTLÑ),

Judge Boyd held that certain responsiveness challenges to the

selected vendors were not waived by a failure to protest after

the posting of the Notice of Intent to Negotiate. In GTL ,

however, a s noted in paragraph 88 of the Recommended O rder

therein, the responsiveness issue s were not known, and could not

have been known, to the parties at the time of posting because

the information was contained only in the ITN R eplies, which

remained exempt from public release and therefore unavailable for

review. This is not the case here , where AT&TÓs designated

representative admitted that he had actual knowledge of the facts

surrounding CR MSAÓs qualifications prior to the expiration of

the Noti ce of Intent to Negotiate point - of - entry, and the

Department - - unlike the DOC in GTL - Î made the ITN R eplies publicly

available pursuant to section 2.5 of the ITN when the Notice of

Intent to Negotiate was posted.

7/ AT&T relies heavily on Infinity Software Dev elopment , Inc. v.

Dep artment of Educ ation , Case No. 11 - 1662BID (Fla. DOAH June 7,

2011), for the proposition that an agency may advance only a

responsive vendor to negotiations, and may not utilize negotiated

changes to its requirements in order to transform a non -

responsive reply into a responsive reply. This holding has no

applicability in th e instant case as the Findings of Fact clearly

demonstrate that the Harris Reply was responsive to the initial

ITN requirements. Moreover, AT&T waived any challenge to the

responsiveness of HarrisÓ Reply, and to its advancement to the

negotiation stage, by virtue of its failure to protest the Notice

of Intent to Negotiate.

COPIES FURNISHED:

Martha Harrell Chumbler, Esquire

Carlton Fields Jorden Burt, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302

(eServed)

Susan Dawson, Esquire

Florida Depar tment of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399

(eServed)

Joseph M. Goldstein, Esquire

Shutts and Bowen, LLP

200 East Broward Boulevard , Suite 2100

Fort Lauderdale, Florida 33301

(eServed)

Jason B. Gonzalez, Esqui re

Shutts and Bowen, LLP

215 South Monroe Street , Suite 804

Tallahassee, Florida 32302

(eServed)

Robert H. Hosay, Esquire

Foley and Lardner, LLP

106 East College Avenue , Suite 900

Tallahassee, Florida 32311

(eServed)

Benjamin J. Grossman, Esquire

Foley & Lardner, LLP

106 East College Avenue , Suite 900

Tallahassee, Florida 32301

(eServed)

James A. McKee, Esquire

Foley and Lardner, LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 32301

(eServed)

John A. Tucker, Esquire

Foley & Lardner, LLP

One Independent Drive, Suite 1300

Jacksonville, Florida 32202

(eServed)

Chad Poppell, Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 0950

(eServed)

J. Andrew Atkinson, General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.