16-002766BID Motorola Solutions, Inc. vs. Bay County, Florida, Board Of County Commissioners Status: Closed DOAH Final Order on Monday, July 25, 2016.

Summary: Petitioner did not prove by a preponderance of evidence that the County's approval of the bid proposal submitted by Williams Communications should be reversed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOTOROLA SOLUTIONS, INC. ,

Petitioner ,

vs. Case No. 16 - 2766BID

BAY COUNTY, FLORIDA, BOARD OF

COUNTY COMMISSIONERS ,

Respondent ,

and

WILLIAMS COMMUNICATIONS, INC.,

I ntervenor .

/

FINAL ORDER

Pursuant to notice to all parties, a final hearing was held

in this matter before Administrative Law Judge R. Bruce

McKibben, pursuant to a contract between the Florida Division of

Administrative Hearings (ÐDOAHÑ) and Bay County, Florida. The

final hearing was held on June 23 and 24, 2016, in Panama City,

Florida.

APPEARANCES

For Petitioner: J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551 (32302)

Tallahassee, Florida 32301

For Respondent: Frederick J ohn Springer, Esquire

Jack Lombardo, Esquire

Bryant, Miller & Olive, P . A .

Suite 900

101 North Monr oe Street

Tallahassee, Florida 32301

Jennifer W. Shuler, Esquire

Bay County Attorney's Office

840 West 11th Street

Panama City, Florida 32401 - 2336

For Intervenor: Mark M. Barber, Esquire

Lacey Corona, Esquire

Broad and Casse l

100 North Tampa Street, Suite 3500

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether the decision by Respondent, Bay County, Florida,

Board of County Commissioners (the ÐCountyÑ or the Ð Board Ñ), to

approve the bid proposal submitted by Intervenor, Williams

Communication, Inc. (ÐWilliamsÑ) , should be reversed in favor of

granting the proposal by Petitio ner, Motorola Solutions, Inc.

(ÐMotorolaÑ) .

PRELIMINARY STATEMENT

In April 2016, the County posted notice of its intent to

award a contract to Williams to provide Bay County with a

turnkey project that would pro vide the c ounty and other

jurisdictions and agencies within the c ounty a Ð P25 - standard

compliant 800MHz digital linear simulcast trunked radio

network.Ñ Motorola had also submitted a bid proposal, but its

proposal was rejected in favor of Williams Ó proposal . On May 4,

2016, Motorola timely filed a Consolidated Formal Written

Protest Petition, challenging the denial of its bid proposal and

the approval of WilliamsÓ proposal.

Pursuant to a contract between DOAH and the County , the

undersigned Administrative Law Judge was assigned to conduct a

fina l hearing in this matter. The hearing was conducted in

accordance with the Bay County Procurement Code, specifically

§ 2 - 114(11).

At the final hearing, Motorola called three witnesses:

Brian Whaley, senior account manager for the Florida panhandle;

Dr. C arole Amidon, Berkeley Research Group; and Wendi Sellers,

purchasing director for the County. Mr. Whaley was also

recalled as a rebuttal witness. MotorolaÓs Exhibits 3, 4,

6 through 15, 18, 22, 24 through 26, 29 through 31 (including

30.1 and 30.2), 33 t hrough 35, 37, 43, 49, 52 and 53 were

admitted into evidence. The County called three witnesses:

Dr. Rodney Roberts, Brian Whaley, and Dominic Tusa . The BoardÓs

Exhibits 2 and 4 through 11 were admitted into evidence.

Exhibits 12 through 16 were proffe red. Williams did not call

any witnesses to testify at final hearing ; its Exhibits

17 through 20, 22, 25 through 34, and 39 were admitted into

evidence. Joint Exhibits 1 and 2 were also received into

evidence.

A transcript of the proceeding was ordered. Although there

are no provisions in the County Procurement Code for such, t he

parties agreed to submit proposed findings of fact and

conclusions of law on or before July 12, 2016. Each party

timely submitted their post - hearing submission and each was

co nsidered in the preparation of this Final Order.

FINDING S OF FACT

(Findings of fact 1 through 24 were

stipulated to by the parties and were

included in their Prehearing Stipulation.)

1 . Motorola is a Delaware corporation with its principal

place of busin ess located at 1303 East Algonquin Road,

Schaumburg, Illinois.

2 . The County is the legislative and governing body of Bay

County, Florida, pursuant to Article VIII, Section (1)(e) of the

Florida Constitution , and chapter 125 , Florida Statutes, and has

its principal business address at 840 West 1 1th S treet, Panama

City, Florida.

3 . The County contracted with Tusa Consulting

Services, II, LLC (ÐTusaÑ) to support its request for proposal

( Ð RFP Ñ ) process.

4 . On July 31, 2015, the Board issued RFP # 15 - 32, en titled

ÐP25 Public Safety Radio System.Ñ Subsequently, the County

issued six addenda to the RFP.

5 . RFP section 1.2.2.18, entitled ÐEvaluation Process and

Criteria,Ñ described the process that the County planned to

follow in evaluating responses.

6 . Mot orola, Williams and one other entity timely

submitted proposals for consideration. On October 15, 2015, the

County ultimately disqualified on e proposer, and consider ed only

Motorola and Williams for award.

7 . Tusa employees Nick Tus a and Dean Hart perfor med the

technical evaluation of the proposals.

8 . On December 21, 2015, the County announced its intent

to award the contract to Williams, indicating total scores of

85.21 for Williams and 84.07 for Motorola.

9 . On December 22, 2015, Motorola filed a not ice of intent

to protest.

10 . Upon review of MotorolaÓs protest, the County

concluded that the relative weights assigned to evaluation

criteria during the scoring process did not match the relative

weights indicated in RFP section 1.2.2.18. Applying the correct

weights changed the total scores to 84.18 for Motorola and

83.95 for Williams.

11 . Upon recommendation of Tusa, the County rounded the

total scores to 84 and deemed the proposals a tie.

12 . County staff proposed to reject all proposals and re -

adv ertise the RFP.

13 . On January 5, 2016, the Board of County Commissioners

considered the staff recommendation. By a 3 - 2 vote, the

Commission accepted TusaÓs recommendation to round the scores

and to commence contract negotiations with Williams.

14 . Mo torola filed another written challenge to the

CountyÓs January 5 action, which i t characterized as an award of

the contract to Williams.

15 . On January 19, 2016, the Board of County Commissioners

again considered the RFP process. County staff again

rec ommended rejecting all proposals and re - advertising the

procurement. After a motion to continue negotiations with

Williams failed by a vote of 3 - 2, the Commission passed a motion

to hire an outside attorney with experience and expertise in the

area of pro curement law to advise the County.

16 . On March 15, 2016, the Commission voted to continue

negotiations with Williams.

17 . On March 17, 2016 , Motorola filed an intent to protest

the CommissionersÓ vote of March 15, 2016.

18 . On March 21, 2016, the Cou nty responded to MotorolaÓs

various pending protests, concluding that the protests were

premature because the County had not yet made an award decision.

19 . On March 31, 2016, Motorola filed an Amended and

Supplemental Formal Written Protest Petition.

20 . On April 19, 2016, the Board of County Commissioners

voted to authorize County staff to post a Notice of Award to

Williams and to accept protests to the decision prior to

entering into any contract with Williams.

21 . On April 21, 2016, Motorola filed a n other intent to

protest the notice of award.

22 . On May 4, 2016, Motorola filed its Consolidated Formal

Protest Petition.

23 . On May 10, 2016, the County procurement director,

Wendi Sellers, issued the CountyÓs written decision denying

MotorolaÓs protes t.

24 . The P25 Public Safety Radio S ystem i n the RFP was

intended to be a turnkey system that met or exceeded all

requirements.

25 . The RFP contained a number of important and necessary

elements, including but not limited to: 1) Portable units must

have a one quarter (1/4) wavelength antenna; 2) Portable and

mobile radio devices must meet minimum electrical

specifications; 3) Portable and mobile radio units must include

separate volume and channel select knobs; 4) Microwave link

segments must have a 40 dB flat fade margin and be designed with

a microwave loop that excludes any single point of failure; and

5) The proposed network must be able to migrate to P25 Phase II

in the future without adding new hardware.

26 . The County had some concerns about MotorolaÓs response

relating to some of the required items . Clearly, the portable

radio units d id not have 1/4 wavelength antennas; the radios

Motorola proposed had 1/2 wavelength antennas which are much

longer and bulkier, and less easy to use . Motorol a indicated

that it could address that problem Ðduring negotiationsÑ with

the County, but its response to the RFP was definitely

deficient.

27 . There is some question whether MotorolaÓs proposed

radios met the minimum electrical specifications for portabl e

radios. While the datasheet for the radios included by Motorola

in its bid proposal was out of date, Motorola maintains that the

radios it specifically meant to include would meet the

standards.

28 . The hand - held radios proposed by Motorola did not c ome

equipped with individual knobs for volume control and channel

selection. Instead, the radio proposed by Motorola contained a

knob for volume and a switch for channel selection. Again,

Motorola said it would address the discrepancy with the County

dur ing negotiations, if necessary.

29 . MotorolaÓs proposal for meeting the 40 dB flat fade

margin was suspect. The applicant suggested that if there was a

ÐfixÑ needed, it would do so without cost to the County. As to

the loop/ring design without a single point of failure, again

Moto rolaÓs proposal appeared somewhat deficient. One of the

proposed sites on the system, in Mexico Beach, spurs off from

the rest of the system, leaving only one link to and from the

site. That could result in a single point of f ailure.

30 . It appears that Motorola would need to add hardware in

order to do the complete upgrade to Phase II, and no costs were

included in its proposal to cover that need. This resulted in a

cost estimate lower than Williams, but the lower cost was not

justified.

31 . Tusa assigned two experienced employees to evaluate

the technical portions of the bid proposals. They assigned

points to literally hundreds of line items on their scoresheets,

totaled scores for each section, and weighted the section s cores

in accordance with section 1.2.2.18 of the RFP. The section

scores were then totaled and multiplied by .70 (i.e.,

70 percent ) to obtain a final technical score for consideration.

That figure was added to the final cost score figure and

combined for an ÐOverall Project ScoreÑ for each proposal.

32. Tusa incorrectly weighted some of the scores,

resulting in a complaint from Motorola. Those errors were

corrected and revised Overall Project Scores were assigned.

33 . Upon completion of its error cor rections , Tusa found

the Overall Project S cores to be Ðmathematically identical,Ñ

i.e., 84.175 for Motorola and 83.950 for William s, a difference

of about two tenths of a point. Never before had Tusa seen

scores so close in an RFP s ituation . The scores w ere close

enough that the County considered rejecting all the bids and

starting over with the RFP process . However, so much time and

work had gone into the project that another resolution was

sought. So, instead of rejecting both bids, Tusa recommended

r ounding the scores to the nearest whole number , resulting in a

tie score of 84. Inasmuch as WilliamsÓ technical score was

higher than MotorolaÓs, and the Motorola cost projection was

suspect due to possible omissions of costs , the County decided

to negoti ate with Williams. Motorola timely file d a protest to

challenge that decision.

34 . Motorola had numerous concerns about the scoring

process used by Tusa and the County during the proposal

evaluation conducted by Tusa .

35 . First, Motorola objected to t he rounding of scores.

However, both Tusa and the County justified the concept as a

means of effectuating a faster and final resolution , which was

preferable to starting over. The rationale for rounding the

scores was explained credibly by Tusa and accep ted as reasonable

by the County.

36. Motorola complained that while the RFP did not

specifically allow an applicant to get more point s by showing it

ÐexceededÑ the criteria, Williams received scores higher than

the maximum for some sections . However, it is evident from

MotorolaÓs own submission that it also designated areas of its

proposal as exceeding the requirements. In fact, Motorola had

prior experience in bids evaluated by Tusa as to the ability to

exceed a criterion. Motorola did not receive as m any ÐexceedsÑ

as Williams during the review, but that was based on the quality

of the proposals, not favoritism to one applicant versus the

other.

37 . Motorola pointed out some scoring errors made by Tusa

in the evaluation of the proposals. For example , points were

awarded by one evaluator for a section that did not even exist,

i.e., section 3.2.5. The other evaluator did not make that

mistake. When the mistake was pointed out, the evaluator

inexplicably corrected it by givi ng both applicants a score

of 1 on that non - existent section. O n section 6.1, which should

result in a score of 0 or 1, Tusa awarded Williams a 2. Both of

the errors were corrected when pointed out, but show some level

of sloppiness by Tusa in its evaluation. However, neither of

the errors was significant enough to warrant rejection of the

final decision. There were, for example, other errors made by

the evaluators that benefitted Motorola instead of Williams.

38 . A primary complaint by Motorola had to do with how the

cost p ortion s of the proposa ls were weighted. RFP section

1.2.2.18 provides , in pertinent part :

The County plans to use a two - step process

when evaluating Proposals. Technical and

Pricing Proposals shall be evaluated

separately using a weighted point system.

Out of a maximum 100% Overall Project Score,

70% shall be allocated to Technical Proposal

evaluation scores with 30% being allocated

to system cost over the life of the system

(initial cost one year warranty plus

additional 14 years of maintenance and

op erational costs (15 year warranty

support).

* * *

Proposals that are determined responsive and

complete will be evaluated by an Evaluation

Committee comprised of three (3) Tusa

Consulting Services personnel. The Proposal

scoring the highest will be subm itted to the

County with recommendations to begin

negotiations with the corresponding Vendor.

Technical Proposals will be graded in the

following areas, listed in relative order of

importance, with respect to the requirements

as outlined in this RFP:

1. Performance, coverage, capability, and

versatility (30%).

2. Reliability, redundancy, and warranty

(20%).

3 . Proposer qualifications, history of

product support, RFP deviations (20%).

4 . Quality of maintenance, response time,

availability of service pa rts (10%).

5 . Interoperability, and proposed timeframe

for project completion (5%).

6 . Proposed Training (5%).

7 . System installation, and implementation

planning (5%).

8 . Organization, scope, and detail of

proposal (5%).

The scored results of this Te chnical

Evaluation will be multiplied by 0.70,

thereby yielding a weighted technical

project - total score. The results of this

portion of the Evaluation shall be submitted

to the Bay County Purchasing Department.

The cost Proposals will comprise of 30% of

the total Proposal score.

* * *

The Total Cost will be calculated by

comparing the relative cost differences

between responsive Cost Proposals and

evaluating the Proposal costs by simple

percentage on the total cost of procurement

and annual operation. The combination will

be determined at the sole discretion of the

County.

The Proposer Submittal receiving the highest

Overall Project Score shall be considered

for the Contract Award, by the Evaluation

Committee, subject to Bay CountyÓs Total

Cost Analys is set forth below. Further, the

County retains the right to reject all bids

for any and all reasons, in the exercise of

its sole discretion. In the case of a tied

Overall Project Score, the Consultant shall

recommend the Proposal Submittal having the

hi ghest Technical Proposal evaluation score.

39 . Motorola contends that Tusa improperly assigned the

cost scores under this section. Tusa took both applicantsÓ cost

projections ($17,569,299 by Motorola; $20,335,354 by Williams),

totaled them, and divided e ach projection by the total. This

resulted in a figure of 46.35 for Motorola, 53.65 for Williams.

Those numbers were divided by .30 (i.e., 30 percent ) for a final

cost score of 16.10 for Motorola and 13.91 for Williams. Those

scores were added to their technical scores for their Overall

Project Score s (which were ultimately deemed mathematically

identical).

40 . Motorola contends that at least one of the parties Ó

cost proposals should have had a score of 30 under the terms of

RFP section 1.2.2.18, but that contention is not persuasive.

Tusa credibly explained how the cost score calculation worked.

An expert witness, Dr. Roberts, supported the Tusa method,

although he agreed it was but one way of approaching the issue.

Another expert, Dr. Amidon, cons tructed a totally different

method which, though reasonable, was not sufficiently proven to

be more reasonable than the method Tusa used.

41 . Motorola also took exception to the fact that only two

evaluators reviewed the projects even though the RFP not es that

a Ðcommittee comprised of three Ñ would review the proposals. At

the beginning, there were three Tusa employees involved, but one

of them had to recuse himself due to a relationship with one of

the vendors. While he remained involved in a clerical capacity,

he did not evaluate the proposals directly. His removal from

the evaluation process and resulting two - man evaluation was

completely understandable.

42 . All in all, the review process and the final decision

were consistent with the spirit of the RFP, even if mistakes

were made. The CountyÓs decision to negotiate with Williams was

justified.

CONCLUSIONS OF LAW

43 . The Division of Administrative Hearings has

jurisdiction over this proceeding in accordance with a contract

between DOAH and the B ay County , Florida Board of County

Commissioners. Pursuant to that contract, provisions of the Bay

County Procurement Code were to be followed when conducting the

final hearing . Specifically, section (11)d. of that code

states:

To the maximum extent prac ticable, the

hearing shall be informal. The [ALJ] shall

conduct a de novo hearing consistent with

minimum procedural due process. All parties

shall have the opportunity to respond, to

present evidence and argument on all issues

and to conduct cross - exami nation and submit

rebuttal evidence. The standard of proof

shall be the preponderance of the evidence

standard. The protesters shall have the

burden of proof. The [ALJÓs] decision shall

be based on competent substantial evidence.

Judicial rules of evid ence and procedure

shall not apply to the hearing. There shall

be a court reporter present at the hearing.

44 . The pr e scribed Code section was followed to the extent

possible. Each party was allowed the opportunities enumerated

in the rule, and the p rocess was made as informal as possible.

No party objected to the procedures adopted by the undersigned

for consideration of this matter.

45 . Both the County and Williams made persuasive arguments

in their proposed conclusions of law that 1) MotorolaÓs

s hortcomings in its proposal militate against Motorola having

standing in this proceeding ; and 2) t he final decision in this

matter should be based on an abuse of discretion or arbitrary

and capricious standard. However, in light of the ÐinformalÑ

nature o f this proceeding as set forth in the Bay County

Procurement Code, those arguments are rejected.

46 . Instead, the traditional preponderance of evidence

standard under a de novo review is more appropriate. It must

still be noted that a Ðpublic body has wi de discretion in

soliciting and accepting bids for public improvements and its

decision, when based on an honest exercise of this discretion,

will not be overturned . . . even if it may appear erroneous and

even if reasonable persons may disagree.Ñ Libert y Cnty. v.

BaxterÓs Asphalt & Concrete, Inc. , 421 So. 2d 505, 507 (Fla.

1982).

47 . Motorola did prove, by a preponderance of evidence,

that the County (through Tusa) made mistakes in the review of

the RFP responses by the two applicants. The scoresheets had

errors. Only two evaluators were used. Those errors were de

m inimis .

48 . Further, MotorolaÓs objections to the assignment of

additional points for exceeding a criterion are rejected.

Motorola knew or should have known that such points could be

awa rded. Its own proposal strongly suggests knowledge of that

fact. Its arguments in that regard are waived. See Consultech

of Jacksonville, Inc. v. DepÓt of Health , 876 So. 2d 731,

734 (Fla. 1st DCA 2004).

49 . Motorola did not prove that its project Î as presented

in its proposal Î should have been approved instead of WilliamsÓ

proposal.

50 . Bay County Procurement Code §2 - 114 (11) states in

pertinent part:

e. [The ALJ] shall issue a written decision

setting forth findings of fact and

conclusions of law.

1. If the [ALJ] upholds the decision,

the county may resume the procurement

process . . . .

f. The [ALJ] shall send a copy of the

written decision to the parties and counsel

of record and shall inform the parties that

any person aggrieved by any actio n or

dec ision of the [ALJ] may seek appropriate

judicial review.

51 . Bay County Procurement Code §2 - 114(12) states:

The decision of the [ALJ] shall be final and

may not be appealed to the Bay County Board

of County Commissioners.

ORDER

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is hereby ORDERED that the challe nge by Motorola

Solutions, Inc. , as to the decision of the Bay County, Florida,

Board of County Commissioners , in RFP #15 - 32 is D ENIED .

DONE AND ORDERED this 2 5th day of July , 2016 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July, 2016 .

COPIES FURNISHED:

Jennifer W. Shuler, Esquire

Bay County Attorney's Office

840 West 11th Street

Panama City, Florida 32401 - 2336

(eServed)

Frederick John Springer, Esquire

Bryant Miller Olive, P.A.

Suite 900

101 North Monroe Street

Tallahassee, Florida 32301

(eServed)

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Off ice Box 551 (32302)

Tallahassee, Florida 32301

(eServed)

Mark M. Barber, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Tampa, Florida 33602

(eServed)

Terrell Arline

Bay County Attorney's Office

840 West 11th Street

Panama City, Florida 32401 - 2336

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Bay County Procurement

Code §2 - 114 (11)f. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

with the agency clerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy of the notice, accompanie d by any filing fees prescribed by

law, with the clerk of the District Court of Appeal in the

appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.