ALJDEC decisions subject to certification as final
18-0001-PHX · City of Phoenix · 2018-05-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the matter of:
Starwest Associates, LLC
v.
City of Phoenix
No. 18-0001-PHX
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: No hearing was conducted; the matter was resolved based on the administrative record provided by the City of Phoenix
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
The City of Phoenix and the Arizona Office of Administrative Hearings have a contract under which OAH conducts administrative review of appeals of procurement disputes as provided for in Phoenix City Code, Chapter 43.
The City referred this matter to OAH on May 11, 2018.
The issue is Starwest Associates, LLC’s protest and appeal of the proposed award resulting from the City’s Request for Proposal 18-032 (RX) - Electronic Patient Care Reporting (ePCR) System.
RFP 18-032 was issued on September 7, 2017 by the City’s Finance Department on behalf of the Phoenix Fire Department. At least one addendum was subsequently issued.
RFP 18-032 requested proposals for the implementation, operation, maintenance, and support of an ePCR system, with the desired solution being a configurable real-time information system that will allow emergency medical services personnel to electronically input, store, transmit, and analyze medical incident and transportation data. The Fire Department currently utilizes a manual paper-based process, not an ePCR system.
RFP 18-032 is a reissuance of RFP 16-014 (RXL). RFP 16-014 was issued in 2016. Through a Memo dated May 9, 2017, the City announced it was canceling RFP 16-014. The Memo shows that the City intended to revise the scope of work and that the solicitation would be reissued at a future date.
A mandatory Pre-Offer Conference for those intending to respond to RFP 18-032 was held on September 20, 2017. Representatives for Starwest were present at that Conference.
Three companies submitted proposals in response to RFP 18-032: Starwest, ImageTrend Inc., and Physio-Control.
RFP 18-032 at section 1, paragraph 14 provides that a preliminary offer tabulation would be posted on the City’s website, https://www.phoenix.gov/solicitations within five calendar days of the offer opening, and that the award recommendation posted to the website would be the only notification provided to the unsuccessful offerors.
RFP 18-032 at section 1, paragraph 18.4 provides that any protests must be submitted to the City within seven days after the posting of the award recommendation, with exceptions only for good cause shown. Phoenix City Code section 43-25 (Protests) also shows that any protest was required to be submitted within seven days of the notification of the award recommendation.
Under Phoenix City Code section 43-8 (Definitions) “Days” means “Calendar days, except as otherwise expressly provided in this chapter.”
On January 26, 2018, the City posted a Public Notice of Award Recommendation showing that its evaluation committee had recommended that ImageTrend be awarded the contract.
Because the City posted the Public Notice of Award Recommendation on January 26, 2018, protests had to be received by the City on or before February 2, 2018.
Starwest filed with the City a protest via email on February 5, 2018. Starwest’s protest was not timely filed.
RFP 18-032 at section 1, paragraph 18.4 shows that a protest must establish that the protestor had a substantial chance of being awarded the contract and will be harmed by the recommended award. Paragraph 18.5.3 provides that all protests must include a detailed statement describing the legal and factual grounds for the protest, including copies of relevant documents.
Phoenix City Code section 43-25 (Protests) provides that a protest must include a detailed statement of the legal or factual basis of the protest including any copies of relevant documents, and that a protestor must establish that it had a substantial chance of being awarded the contract and will be harmed by the recommended award.
Starwest’s protest provided the following statement regarding the legal and factual basis for its protest:
We believe the procurement process with the submissions from our company and the submissions from the competing company and the relevance scoring, including the demonstrations of the product to firefighters and the department who would utilize the this critical clinical lifesaving data solutions ePCR which clearly reveal all of the factual grounds that procurement process was deeply in error. Furthermore, our attorneys are being notified of the actions and will legally proceed as necessary.
Starwest’s protest did not include a detailed statement of the legal or factual basis for its protest. Starwest did not establish that it has a substantial chance of being awarded the contract.
On February 6, 2018, the City issued a Protest Response denying Starwest’s protest because it found that Starwest’s protest was not filed in a timely manner because the protest was filed more than seven days after the Public Notice of Award Recommendation was posted. The City also found that Starwest’s statement of the legal or factual basis for its protest was vague and would not have provided a sufficient basis on which the City could respond to the protest.
On February 13, 2018, Starwest filed its Appeal of Denial of Protest under RFP 18-032, and on February 20, 2018, Starwest filed a Supplement to Appeal of Denial of Protest under RFP 18-032.
In its Appeal and Supplement, Starwest argues (1) that the City should exercise its discretion and accept Starwest’s Protest; (2) that the lack of detail in its protest was a result of Starwest not having a copy of the procurement file; (3) that there were mistakes in the scoring; and (4) that the scoring sheets are not specific enough to meet the law because these do not include a sufficiently detailed narrative.
Starwest argues to the effect that its late protest should be excused because it was not aware that the protest had to be filed within seven days of the posting of the award recommendation, and that had it made a public records request the deadline would have been extended.
Good cause for the late filing of a protest exists only if the offeror can show that the late filing was beyond its control due to misinformation relayed in writing by a City employee. See Phoenix City Code § 43-8.
Starwest has not shown that good cause exists for the late filing of its protest. Starwest has not shown that its failure to obtain a copy of the procurement file before filing its protest excuses its failure to provide sufficient legal or factual detail in that protest.
Phoenix City Code Section 43-26 limits appeals to those issues that were raised in the protest. Starwest’s arguments alleging that there were mistakes in the scoring and that the scoring sheets do not have sufficient detail are new issues that were not raised in its protest.
On May 8, 2018, the City’s Deputy Finance Director and Assistant Chief Counsel submitted to the Special Assistant to the City Manager an Electronic Patient Care (ePCR) Reporting System Appeal Report summarizing the process and providing responses to the issues raised in Starwest’s appeal.
CONCLUSIONS OF LAW
The City has jurisdiction over the subject matter in this case.
The Director of the Office of Administrative Hearings is authorized to enter into contracts with political subdivisions of this state for the purpose of providing administrative proceedings. Ariz. Rev. Stat. § 41-1092.01(J).
The City contracted with the Office of Administrative Hearings to provide the administrative proceeding in this matter, including the preparation of Findings of Fact, Conclusions of Law, and Recommended Order for action by the City.
Starwest bears the burden of proof. See Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952); see also Ariz. Admin. Code § R2-19-119.
The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Phoenix City Code Chapter 43 governs procurement issues.
This matter is suitable for resolution based on the administrative record. Phoenix City Code § 43-26(E)(“If assigned to a hearing officer for fact finding, the appeal may be supplemented in the discretion of the hearing officer ....”).
Phoenix City Code section 43-25 (Protests) provides:
A. Protests regarding solicitations issued under this chapter may be submitted to the Procurement Officer as set forth below:
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2. Offerors or respondents may protest an adverse determination issued by the Procurement Officer, regarding whether the offeror or respondent is responsible or its offer or response is responsive, within seven days of the date the offeror or respondent was notified of the adverse determination.
3. Offerors or respondents may protest an award recommendation if the offeror or respondent can establish that it had a substantial chance of being awarded the contract and will be harmed by the recommended award.
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B. To be considered, all protests under this section must be submitted in writing and must include the name, address, telephone number, e-mail address and signature of the protester or its authorized representative; the solicitation number and title; a detailed statement of the legal or factual basis of the protest including any copies of relevant documents; and the relief requested. An offeror or respondent protesting an award recommendation shall also establish in its protest that it had a substantial chance of being awarded the contract and will be harmed by the recommended award. Protests received after the protest due dates set forth in this article will not be considered, except for good cause.
Under Phoenix City Code section 43-8 (Definitions) “Days” means “Calendar days, except as otherwise expressly provided in this chapter.”
Under Phoenix City Code section 43-8 (Definitions), good cause is defined as:
Substantial grounds or evidence based upon facts not in dispute as determined by the Procurement Officer that the failure by an aggrieved party, an offeror or a respondent to submit a timely offer, response, protest or appeal was beyond its control due to misinformation relayed in writing by a City employee.
Appeals of adverse decisions related to protests must be filed within seven days of the protest decision. “The scope of an appeal, the evidence presented and arguments made may not extend beyond the scope of the original protest by the aggrieved party, offeror or respondent.” Phoenix City Code § 43-26.
A city’s procurement decision should not be disturbed absent a finding that the decision was “illegal, unfair or arbitrary.” Brown v. City of Phoenix, 77 Ariz. 368, 377, 272 P.2d 358, 364 (1954).
An arbitrary action is an “unreasoning action, without consideration and in disregard for facts and circumstances; where there is room for two opinions, the action is not arbitrary or capricious if exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.” Maricopa County v. Gottsponer, 150 Ariz. 367, 372, 723 P.2d 716, 721 (App. 1986)(quoting Petras v. Arizona State Liquor Board, 129 Ariz. 449, 631 P.2d 1107 (App. 1981)).
Starwest’s protest was not filed within seven days of the City’s posting of the Public Notice of Award Recommendation. Starwest has not proven that good cause exists for its late filing. As such, Starwest’s protest does not comply with Phoenix City Code section 43-25, and its protest and appeal should be dismissed.
Starwest’s protest did not comply with Phoenix City Code section 43-25 because it did not include a detailed statement of the legal or factual basis of the protest. As such, Starwest’s protest and appeal should be dismissed.
In its protest, Starwest did not establish that it had a substantial chance of being awarded the contract or that it will be harmed by the recommended award. As such, Starwest’s protest does not comply with Phoenix City Code section 43-25, and its protest and appeal should be dismissed.
The new issues raised in Starwest’s appeal cannot be considered by this tribunal and cannot provide a basis on which to overturn the award recommendation.
RECOMMENDED ORDER
In view of the foregoing, it is recommended that Starwest Associates LLC’s protest and appeal be dismissed.
Done this day, May 30, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Ed Zuercher, City Manager
City of Phoenix