01-20-2015 Regular School Board Meeting
Agenda Item #53


Title
ENTRY OF FINAL ORDER IN AT&T CORP. v. BREVARD COUNTY SCHOOL BOARD AND BRIGHT HOUSE NETWORK BID PROTEST – DOAH CASE NO. 14-1024BID

Discussion


This bid protest case was referred to the Division of Administrative Hearings (“DOAH”).  The Administrative Law Judge (“ALJ”) entered a Recommended Order on October 1, 2014, recommending that the intended award to Bright House be withdrawn due to Bright House’s misconduct and that a final order be entered rejecting all proposals for this RFP.

Both AT&T and Bright House filed timely exceptions to the Recommended Order and timely responses to each parties’ exceptions.

The School Board Attorney has reviewed the Recommended Order, the transcript of the formal hearing, exhibits admitted in evidence and exceptions and responses to exceptions filed by AT&T and Bright House.

The ALJ’s findings of fact in the Recommended Order are supported by competent, substantial evidence. 

The ALJ’s conclusions of law in the Recommended Order are correct except for the conclusions of law in paragraphs 33, 36, 37, 38 and 39 that the two-step pricing process and best and final pricing (“BAFO”) specified in the RFP are not allowed by Section 120.57(3)(f), Florida Statutes.  The two-step pricing process and best and final pricing or “BAFO” set forth in the RFP were part of the terms and conditions of the RFP and not a submission made after the bid or proposal opening which would amend or supplement the bid or proposal or allow a non-responsive bidder to supplement a non-conforming bid or proposal to cure a defect.  This “BAFO” process gave both AT&T and Bright House an opportunity to review their initial pricing submittals (which were not disclosed to either Bright house or AT&T or any member of the public) and “sharpen their pencils” to provide the Board with their best and final price.  The BAFO process resulted in AT&T reducing its initial pricing by $327,000 per year which over the three year term of the contract will save the Board and the taxpayers $981,000, or $1,625,000 if the Board exercises its option to extend the contract for two additional years.  The ALJ’s conclusion of law that the BAFO pricing process utilized by the Board in this RFP is not allowed by Section 120.57(3)(f), Florida Statutes, is not supported by applicable law and is incorrect.

The ALJ correctly made the findings of fact that neither Bright House or AT&T objected to or challenged the two-step pricing process or best and final pricing (“BAFO”) contained in the RFP within 72 hours of the posting of the specifications.  Pursuant to Section 120.57(3)(b), Florida Statutes, protests or challenges to specifications of an RFP not filed within 72 hours of posting are waived.  Since neither Bright House or AT&T protested the two-step and best and final pricing in the RFP any objections to same are waived as a matter of law.  Therefore, the ALJ’s recommendation that the School Board reject all proposals on the basis that the pricing process specified in the RFP was not allowed by Section 120.57(3)(f), Florida Statutes, is incorrect because any objection to the pricing process was waived by any proposer to the RFP.  Instead, the School Board should award the contract to AT&T as the only remaining responsive and responsible proposer which complied with all the terms and conditions of the RFP.

Therefore, it is recommended that the School Board enter the proposed Final Order:

1.Denying Bright House’s exceptions to the Recommended Order.

2. Denying AT&T’s exceptions to paragraphs 17, 18 and 20 of the Recommended Order.

3. Adopt the ALJ’s findings of fact in totality.

4. Granting AT&T’s exceptions to the ALJ’s conclusions of law in paragraphs 33, 36, 37, 38 and 39 of the Recommended Order.

5.  Granting AT&T’s exceptions to the recommendation of the ALJ to reject all proposals for the RFP.

6. Finding that the two-step pricing and best and final pricing, or “BAFO”, specified in the RFP is lawful and not contrary to Section 120.57(3)(f), Florida Statutes.

7. Finding that any objections or challenges to the two-step pricing process and best and final pricing specified in the RFP were waived by any party or proposer due to the failure to protest or challenge the pricing specifications within 72 hours of the posting of the RFP.

8. Disqualifing Bright House from this competitive solicitation due to its misconduct and inappropriate actions in the oral presentation process and withdrawing the intended award to Bright House.

9. Awarding the contract to provide the District IP Wide Area Network Services pursuant to RFP No. 14-P-081-WH to AT&T Corp. as the sole remaining responsive and responsible proposal at its best and final pricing.

 

Exhibits:

A.Proposed Final Order

B. Recommended Order

C. Bright House Exceptions to Recommended Order

D. AT&T Exceptions to Recommended Order

E. Bright House Responses to AT&T Exceptions

F. AT&T Responses to Bright House Exceptions



Recommendation
Enter the proposed Final Order awarding AT&T Corp. the contract to provide IP Wide Area Network Services pursuant to Request For Proposal No. 14-P-081-WH.

Meeting Date(s)
Consent w/o Information - 1/20/2015

Authority for Action
Section 120.57, Florida Statutes

Involves Expenditure of Funds Directly in the Classroom
No

Source of Funding
Operating - Other

FY
Amount
Budgeted
Fund
Cost Center
Project
Function
Object
Program
14-15TBDYesxxxxxxxxxxxxxxxxxxxxxxx

Contact
Harold Bistline, School Board Attorney, 321-639-0505


Attachment:  EXHIBIT A-Final Order.pdf
Attachment:  EXHIBIT B - Recommended Order.pdf
Attachment:  EXHIBIT C-Bright House Exceptions to Recommended Order.pdf
Attachment:  EXHIBIT D-AT&T Exceptions to Recommended Order.pdf
Attachment:  EXHIBIT E-Bright House Responses to AT&T Exceptions.pdf
Attachment:  EXHIBIT F-AT&T Responses to Bright House Exceptions.pdf