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CenturyLink Pub. Communications, Inc. v. Dep't of Corrections

Commonwealth Court of Pennsylvania

February 17, 2015

CenturyLink Public Communications, Inc., Petitioner
v.
Department of Corrections, Respondent

Submitted: January 9, 2015.

Page 821

Appealed from No. BP-36 of 2014. State Agency: Department of Corrections.

Jan L. Budman, II, Harrisburg, for petitioner.

Valerie Janosik-Nehilla, Assistant Counsel, and Julie R. Tilghman, Assistant Counsel, Mechanicsburg, for respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI.

OPINION

Page 822

DAN PELLEGRINI, President Judge

CenturyLink Public Communications, Inc. (CenturyLink) petitions for review of the order of the Department of Corrections (Department) dismissing CenturyLink's protest of the selection of Securus Technologies, Inc. (Securus) for contract negotiations as a result of Request for Proposal (RFP) for a competitive sealed proposal[1] to provide for a secure inmate telephone system (ITS) for inmates housed at Department facilities. We affirm.

I.

In October 2013, the Department issued the RFP " to provide inmates confined at [Department] facilities with a highly reliable, high quality service to call family and friends, [and to] give the [Department] the capability to perform oversight and monitoring of inmate calls and fund the inmate general welfare fund." (Reproduced Record (RR) at 42a). The RFP stated that the sole point of contact was the Issuing Officer and that the Department would notify in writing the offeror " whose proposal is determined to be the most advantageous" by a committee of qualified personnel after considering " all of the evaluation factors." ( Id. at 42a, 56a).[2]

The following criteria was to be used to evaluate the proposals: (1) technical considerations such as inmate telephone service, contractor qualifications, capability and capacity for monitoring and recording, ease of use and investigative and intelligence features, maintenance and training (50% of total points); (2) cost rating giving the proposal with the lowest total cost the maximum number of points and rating the others based on a predetermined formula (30% of total points); [3] (3) Small Diverse

Page 823

Business (SDB) Participation granting additional points based on the extent of SDB participation (20% of total points); and (4) Domestic Workforce Utilization adding bonus points to the total points based on the use of the domestic work force in fulfilling the contract (3% bonus points). The RFP specifically provided that an offeror's proposal must receive at least 70% of the available technical points to be eligible for continued contract negotiations and to submit a best and final offer (BAFO). The RFP provided that the Department " must select for contract negotiations the Offeror with the highest overall score...." ( Id. at 59a, 60a).

The Department was permitted to seek oral or written clarification of a proposal at any stage of the selection process prior to contract execution " to ensure thorough mutual understanding" and " responsiveness" to its requirements. (RR at 45a).[4] The Department also reserved the right to request additional information necessary to ensure the offeror's ability to perform; to conduct investigations " as deemed necessary" to determine an offeror's ability to perform; and to reject a proposal if the additional information or investigation fail to show the proper qualification to carry out the obligations of the RFP. ( Id. at 51a). Any offeror determined to be " reasonably susceptible of being selected" could also be required to provide a site demonstration to show " the functional capability" to perform. ( Id. at 85a).[5]

The Department was to notify all offerors in writing as to who was selected for contract negotiations after determining " the proposal that is most advantageous to the [Department]." (RR at 49a). The Department would also notify offerors whose proposals were not selected when contract negotiations were successfully completed and the Department has received the final contract signed by the selected offeror. On receiving notification of non-selection, an offeror was given the opportunity to be debriefed or to file a protest " within seven days after the protesting party knew or should have known of the facts giving rise to the protest," but it could not be filed " later than seven days after the date the notice of award of the contract is posted on the [Department of General Services] website." ( Id. at 49a-50a) (emphasis in original).[6]

In December 2013, the Department received proposals from Securus, CenturyLink, Global Tel*Link Corporation (GTL),

Page 824

and Telmate. In March 2014, the Issuing Officer issued a Recommendation for Contractor Selection based on the Evaluation Committee (Committee) review of the technical proposals submitted by the bidders. Neither CenturyLink nor Telmate met the threshold 70% of the points necessary to be considered for a site demonstration, BAFOs, or selection for contract negotiations: CenturyLink received 348.68 and Telmate received 330.50 out of the 500 total points available.

However, because GTL and Securus received over 70% of the total available points, the Committee had conducted site visits at prisons where each had systems in place. Those technical evaluations were reported to the Issuing Officer and the technical scores were updated. The Department then opened and scored the proposals and combined the technical scores, cost scores and SDB and bonus points and Securus and GTL submitted BAFOs for their costs and SDB proposals. ( Id. at 288a, 364a-365a). Ultimately, Securus received the highest score, 861.32 points, and the Department determined that Securus's proposal was the most advantageous to the Commonwealth and a contract was executed in April 2014 following negotiations; CenturyLink was notified that the contract was awarded to Securus.[7]

In April 2014, CenturyLink was informed during a debriefing that its proposal did not meet the 70% threshold and that it lost points because: (1) it did not respond to Part IV-3(A)(2) of the RFP requiring agreement to comply with federal, state and local laws, rules and regulations and Part IV-3(A)(3) requiring the provision of TTYs or portable telephones; (2) infrastructure maintenance issues were noted during reference checks with another Department of Corrections; (3) the proposal indicated that additional investigative tools needed to be negotiated at an additional cost; ...


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