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JPay, Inc. v. Dep't of Corr. & Governor's office of Admin.

Commonwealth Court of Pennsylvania

April 8, 2014

JPay, Inc., Petitioner
v.
Department of Corrections and Governor's Office of Administration, Respondents

Argued December 11, 2013

Page 757

Appealed from No. Protest Docket No. 2013-01AD 2013. State Agency: Pennsylvania Office of Administration.

William W. Warren, Jr., Harrisburg, for petitioner.

P. Oliver Kerwin, Assistant Counsel, Harrisburg, for respondents.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 758

JAMES GARDNER COLINS, Senior Judge

JPay, Inc. (JPay) petitions for review of an order of the Governor's Office of Administration (OA) dismissing JPay's protest of the selection of Global Tel*Link (GTL) for contract negotiations pursuant to Request for Proposals #6100021729 (2012 RFP). In its protest, JPay argued that OA's selection of GTL was made without adequate justification and violated a previous contract between JPay and the Department of Corrections (DOC) covering similar services. For the reasons that follow, we affirm.

On December 11, 2008, DOC issued Request for Proposals #08-IGWF-80 (2008 RFP) for vendors to provide products that could handle incoming inmate email and electronic funds transfers (EFT) at DOC facilities. (2008 RFP § § I-1, I-4, IV-1, IV-5, Reproduced Record (R.R.) at 7a, 28a, 39a.) In addition to these " established services," DOC also sought proposals for related services to be provided " under one umbrella" of a money order lock box service tied into the EFT system and an " inmate release card program" to eliminate the necessity of giving inmates paper checks upon release. ( Id. § I-4, R.R. at 7a.)

The 2008 RFP also provided that a " [s]ingle kiosk is required for all inmate related applications," and that the offering parties must propose a kiosk system and also be prepared to use DOC or third-party kiosks for other inmate related applications. ( Id. § § IV-4.B.1.a, IV-4.B.2, R.R. at 31a, 35a.) DOC clarified these requirements in a question-and-answer document incorporated as an addendum to the 2008 RFP, stating that the " kiosk feature is a future enhancement to the [2008] RFP, specifically outgoing email," that the " costs for outgoing email will be negotiated at a later date," and that, in the future, " it may be required for the vendor to 'share' a kiosk with other inmate related applications (i.e. commissary)." (Jan. 21, 2009 Questions and Answers ¶ 35, R.R. at 61a.) The question-and-answer document further provided that DOC envisioned a " centralized solution with the use of a kiosk to allow inmates to select/access web-based

Page 759

applications from a menu of available options (including email)" but that this " would be negotiated when outgoing email is addressed at a later date." ( Id. ¶ 56, R.R. at 63a.)

DOC selected JPay as the successful offeror on the 2008 RFP and on March 1, 2010, a contract was executed between the two parties with a term of May 1, 2010 to April 30, 2015 (2010 Contract). The 2010 Contract provided that JPay would provide the following services:

[1] Inmate Electronic Funds Transfer service to include ALL electronic funding of inmates' accounts.
[2] Money Order Lock Box to include ALL money orders received for PA DOC inmates to be included in the daily deposit file.
[3] Incoming Inmate Email for ALL PA DOC inmates housed at any State Correctional Institution. Only incoming email is being implemented at this time.

(2010 Contract Specified Services, R.R. at 66a.) The 2010 Contract listed the " following optional services proposed in the contractor response to the [2008] RFP [that] are not included as part of the contract" : " Outgoing Inmate Email services" and " Kiosks that would provide additional services." ( Id.) The 2010 Contract further provided that DOC reserved the right to issue change orders at any time during the term of the contract to increase or decrease the quantities of products ordered or " to make changes to the services within the scope of the [2010] Contract." ( Id. Terms and Conditions § 29, R.R. at 80a.)

On July 25, 2012, OA issued the 2012 RFP on behalf of DOC seeking " to procure services to design, install and implement a turnkey kiosk-like system [] that will provide the opportunity for institutionalized offenders to obtain a variety of offender services through a secure, offeror hosted and managed kiosk system" and the provision of secure MP3/media player devices to be offered for sale to inmates. (2012 RFP § I-4, R.R. at 98a.) In addition to allowing inmates to perform such tasks as placing commissary orders, downloading digital media and checking phone time, the 2012 RFP also required that the kiosks would allow inmates to " [a]ccess incoming email and send outgoing email." ( Id. § IV-3.C.a, R.R. at 118a.). The 2012 RFP also provided that the kiosks would have the capability to allow visitors and the public to make monetary deposits to inmate accounts. ( Id. § IV-3.C.b, R.R. at 118a.). In a question-and-answer document incorporated as an addendum to the 2012 RFP, OA indicated that a vendor that had not yet implemented a kiosk commissary system would still be able to submit an offer, and that the vendor selected would not be the exclusive EFT provider but would instead have to integrate the kiosk services with the existing EFT service supplier. (Aug. 15, 2012 Questions and Answers ¶ ¶ 3, 27, R.R. at 256a, 258a, 261a, 263a.)

The 2012 RFP required that each proposal contain an appendix detailing the offeror's prior experience on at least three prior projects with " at least one (1) project where your firm has implemented a project of similar size and scope and one (1) project you have completed that is related to Kiosk like solutions." (2012 RFP ยง II-4, R.R. at 108a.) The offeror was required to include client references for each project, and to " provide examples [of] prior experience in providing MP3 players, downloadable digital entertainment (music), communication (email) and information through kiosks designed for a ...


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