Protest

From: Barrineau, Ross To: Primus, Marcia Subject: FW: VirTras Inc. Protest, eRFQ No. 46700-GDC0000979 Date: Wednesday, November 24, 2021 11:27:41 AM

FYI

Ross Barrineau, GCPM, GCPCA Agency Procurement Officer Georgia Department of Corrections / Georgia Correctional Industries Purchasing – Ponder Hall 300 Patrol Road / P.O. Box 1529 Forsyth, GA 31029 Phone: (404) 556-3794 E-mail: Ross.Barrineau@gdc.ga.gov

GDC - REGAINING MOMENTUM

The Georgia Department of Corrections protects the public by operating safe and secure facilities through the development of professional staff and effective offender management.

From: Protests, DOAS <DOAS.Protests@doas.ga.gov> Sent: Wednesday, November 24, 2021 11:27 AM To: Barrineau, Ross <Ross.Barrineau@gdc.ga.gov> Subject: FW: VirTras Inc. Protest, eRFQ No. 46700-GDC0000979

FYI

From: Protests, DOAS <DOAS.Protests@doas.ga.gov> Sent: Wednesday, November 24, 2021 11:03 AM To: Jennifer K. Coalson <Jcoalson@pcwlawfirm.com>; J. Matthew Maguire, Jr.

<mmaguire@pcwlawfirm.com>; brivero@pcwlawfirm.com Cc: Sullivan, Rebecca <Rebecca.Sullivan@doas.ga.gov>; Protests, DOAS <DOAS.Protests@doas.ga.gov> Subject: RE: VirTras Inc. Protest, eRFQ No. 46700-GDC0000979

The Georgia Department of Corrections has elected to cancel eRFQ No. 46700-GDC0000979.

Accordingly, your protest is moot and no further action will be taken by DOAS.

If your client has any questions regarding a future procurement, please contact the Issuing Officer.

mailto:Ross.Barrineau@gdc.ga.gov mailto:Marcia.Primus@gdc.ga.gov mailto:Ross.Barrineau@gdc.ga.gov mailto:DOAS.Protests@doas.ga.gov mailto:Jcoalson@pcwlawfirm.com mailto:mmaguire@pcwlawfirm.com mailto:brivero@pcwlawfirm.com mailto:Rebecca.Sullivan@doas.ga.gov mailto:DOAS.Protests@doas.ga.gov

Catherine “McCall” Ginsberg Deputy General Counsel Georgia Department of Administrative Services McCall.Ginsberg@DOAS.Ga.Gov 404-657-0586 Lead. Empower. Collaborate.

Facebook, Twitter, or LinkedIn page!

From: Jennifer K. Coalson <Jcoalson@pcwlawfirm.com> Sent: Thursday, November 18, 2021 4:07 PM To: Protests, DOAS <DOAS.Protests@doas.ga.gov> Cc: J. Matthew Maguire, Jr. <mmaguire@pcwlawfirm.com>; Belyse H. Rivero <BRivero@pcwlawfirm.com> Subject: VirTras Inc. Protest, eRFQ No. 46700-GDC0000979

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.

Good afternoon, Attached please find the protest of VirTras, Inc. to the NOIA issued on November 8, 2021 in favor of TI Training LE LLC in connection with eRFQ No. 46700-GDC0000979. Due to the size of the file, I have also linked to it below in case the attachment does not come through.

https://www.dropbox.com/s/2fwge6hxik1pwkz/VirTra%20Protest%202021.11.18%2 0%28with%20Exhibits%29.pdf?dl=0

Please acknowledge receipt, and let me know if you require anything further. Thank you very much.

Sincerely, Jenn Coalson Counsel for Protestor VirTras, Inc.

Jenn Coalson

75 14th Street NE, 26th Floor | Atlanta, Georgia 30309 Phone: 404-873-8000 | Fax: 404-873-8050 jcoalson@pcwlawfirm.com | bio | www.pcwlawfirm.com

This electronic message is from the law firm of Parks, Chesin & Walbert, P.C. It may contain confidential or privileged information. If you received this transmission in error, please reply to the sender to advise of the error and delete this transmission and any attachments. The sender prohibits any unauthorized use or dissemination of this communication.

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STATE OF GEORGIA

DEPARTMENT OF ADMINISTRATIVE SERVICES

In the Matter of:

VIRTRA, INC.,

Protestor, v.

DEPARTMENT OF ADMINISTRATIVE

SERVICES,

Agency.

DOAS FILE NO.

eRFQ No. 46700-GDC0000979

PROTEST

Pursuant to Rule 6.5 of the Georgia Procurement Manual (2021) (“GPM”), VirTra, Inc. (“VirTra” or “Protestor”) hereby protests the Notice of Intent to Award (“NOIA”) the Georgia Department of Corrections (“GDC”) Use of Force Training Simulators contract solicited under Request for Quotes No. 46700-GDC0000979 (the “RFQ”), as follows:

Protestor: VirTra, Inc.

Representatives: J. Matthew Maguire, Jr.

Jennifer K. Coalson

Parks, Chesin & Walbert, P.C.

75 14th St. NE, Suite 2600 Atlanta, GA 30309

(404) 873 – 8000 mmaguire@pcwlawfirm.com jcoalson@pcwlawfirm.com

Event: eRFQ No. 46700-GDC0000979 (Use of Force Training Simulators)

Standing: Having submitted a proposal in response to the RFQ, VirTra is an “interested supplier” within the meaning of Rule 6.5 of the Georgia Procurement Manual because it is an actual bidder or offeror with a direct economic interest in the procurement and a bidder that would potentially be in line for award if the protest were sustained.

mailto:mmaguire@pcwlawfirm.com mailto:jcoalson@pcwlawfirm.com

- 2 -

Protest Summary: The November 8, 2021, NOIA announcing TI Training LE LLC (“TI Training”) as the apparent successful offeror should be rescinded due to significant and material errors in the evaluation of the respective bidders’ proposals. TI Training’s proposal failed in several material respects to comply with mandatory requirements and detailed product specifications in the solicitation, rendering it non-responsive and ineligible for award, such that any contract awarded to TI Training cannot be said to be in the best interests of the State. A new NOIA should issue to VirTra, as it is the lowest responsive and responsible bidder.

Requested Relief: VirTra seeks: (1) an immediate stay of the procurement pending resolution of this protest; (2) a declaration sustaining this protest; (3) rescission of the NOIA to TI Training; (4) rejection of TI Training’s bid as non-responsive; (5) issuance of a NOIA in favor of VirTra; and

(6) such other and further relief as may be necessary or appropriate.

Timeliness: This protest is timely filed on November 18, 2021, which is within ten calendar days of the November 8, 2021 posting of the NOIA.

FACTUAL BACKGROUND AND GROUNDS FOR PROTEST

Introduction and Background to the Procurement

On September 15, 2021, the GDC issued an electronic Request for Quotes (the “eRFQ”) “seeking a vendor to provide Law Enforcement Use of Force Training Simulators that meets all the equipment, supplies, software capability, and needed mobility and space requirements note[d] in the attached Detailed Specifications.” Exhibit A at p.1, § 1.1. The solicitation specified that the contract would be awarded “to the lowest, responsive and responsible supplier meeting all specifications” set forth in the eRFQ. Id. at p.14, § 6.6. In addition, the eRFQ specified that certain mandatory requirements, including product specifications, “must be met by the supplier in order for the supplier to be considered ‘responsive’ and, therefore, eligible for contract award.” Id. at p.12, § 4.2. Suppliers submitting bids “that materially change the terms or the requirements of the eRFQ” were cautioned that they were at risk of being “deemed non-responsive” and thus having their bids rejected. Id. at p.15, § 7. Thus, potential offerors were encouraged to use the Q&A process to seek clarification from the GDC about whether a particular contract exception would be permissible. Id.

Three bidders submitted responses to the eRFQ: VirTra, FAAC Incorporated, and TI Training. On November 8, 2021, a NOIA was issued (Exhibit B) identifying TI Training as the apparent successful offeror. The evaluators did not assign cost scores, technical scores, and final scores to rank the offerors’ proposals, but the NOIA indicated that VirTra and FAAC were rejected because they were not the lowest bid. Presumably, the evaluation

- 3 -team determined (erroneously) that all three bidders were responsive, and ranked the proposals based solely on the total price of the bid. See generally GPM § 5.6.3.1 (noting that RFQ responses are ranked pass/fail based on whether the supplier meets the solicitation’s requirements, and then award made to the lowest priced responsible and responsive supplier). This process led to TI Training being ranked first, with a total contract price of $294,570, followed by FAAC ($330,350) and then VirTra ($491,341). As detailed below, however, only VirTra was responsive to the eRFQ, and the fact that its total extended contract price was higher than the other bidders is reflective only of the fact that VirTra has invested in patented intellectual property that is not just beneficial, but in fact critical, to providing GDC with the products and services it requires. VirTra’s competitors are only able to undercut VirTra’s pricing because they either do not have the specifications called for in the eRFQ or can only provide the products called for by infringing on VirTra’s intellectual property rights.

Comparing the technical specifications accompanying the eRFQ with the proposals submitted by the three offerors and the GDC’s evaluation and scoring documents, it is clear that the lowest responsive and responsible bidder is VirTra. TI Training’s proposed solution does not—and legally, cannot—satisfy the detailed specifications demanded by the eRFQ. The defects are material and plain, and not within the discretion of the GDC to waive. In any event, it is clear from the evaluation documents that GDC did not intend to waive any irregularities. Rather, it appears that the evaluation team was, due to no fault of its own, misled by the vagaries and omissions in TI Training’s proposal. A closer analysis reveals that TI Training should have been disqualified as non-responsive.

FAAC, too, is non-responsive and ineligible for award, for the reasons detailed below. Although not designated as non-responsive in the NOIA, the evaluation team was alert to the shortcomings in FAAC’s response, as the evaluation document indicates in bold, red lettering that FAAC “DID NOT MEET” the requirements of the eRFQ:

Evaluation Checklist (Exhibit C) at p.1.1

Consistent with its proven experience and documented successes as an industry leader, VirTra is the only offeror who can reasonably be deemed responsive or responsible.

The contract should be awarded to VirTra.

1 Exhibit C indicates that VirTra’s bid had not met the 4-day training requirement set forth in the eRFQ. Ex. C at p.1. In a request for clarification, however, VirTra confirmed unequivocally that it would meet the training requirements. See Exhibit P. There can be no question that VirTra is a fully responsive and responsible bidder.

- 4 -

Detailed Specification Requirements in the Solicitation

The solicitation spelled out Detailed Specification Requirements that the successful offeror would be required to provide to the GDC. Exhibit D. These are not mere aspirations; rather, the technical criteria spelled out must be satisfied in order for a bidder to be responsive and eligible for award. This is spelled out not only in the solicitation itself—see Ex. A at p.1, § 1.1 (vendor must “meet[] all the equipment, supplies, software capability, and needed mobility and space requirements note[d] in the attached Detailed Specifications”) (emphasis added); id. at p.12, § 4.2 (describing “product specifications” contained in attachments to the eRFQ as “mandatory requirements . . . which must be met by the supplier in order for the supplier to be considered ‘responsive’”)—but also in the GPM, which makes clear that in the context of an RFQ, every one of the product specifications and requirements must be met in order for a bid to be responsive. GPM §

3.5.5.1 (“To be considered responsive, the supplier’s bid must meet all of the identified specifications and requirements.”) (emphasis added); see also id. at § 5.6.3.1 (“A supplier that fails one or more of the RFQ requirements is non-responsive.”). Among the mandatory requirements set forth in the eRFQ are the following five equipment and supplies specifications:

1) Training Curriculum Meeting IADLEST Standards. “All simulator systems must have built in Training Curriculum that meets the standards set by the International Association of Directors of Law Enforcement Standards and Training (IADLEST) National Certification Program for POST Certification.” Ex. D at p.3.

2) Threat Fire Product. The vendor would be expected to supply “Threat Fire- Simulated physiological response of stress when being engaged by a threat to the student.”

Ex. D at p.4. Elsewhere in the specifications, the GDC elaborated: “Vendor must have the capability of having a device that will initiate an electronic impulse resulting in physiological change to the body during screen-based simulation to add a physiological response that significantly enhances the effectiveness of simulation training.” Ex. D at p.5.

3) TASER Simulation Cartridges. The eRFQ was specific in requiring TASER simulation cartridges that had three features. First, the cartridges must utilize “two laser modules per device. Units with one laser emitter will not be accepted.” Ex. D at p.5.

Second, “[t]he simulation cartridges must function in live TASER/AXON weapons.” Id. It was important to the GDC that the simulator use “active weapons” rather than “plastic or artificial” ones in order to ensure that training is as realistic as possible and to avoid training scars. Id. at p.4. And finally, the simulation cartridges, when inserted into a live weapon, had to be “activated by the audio frequencies produced by the live arching of the device.”

Id. at p.5.

4) Laser-Based Flashlights. To facilitate training officers to deal with night time and poor visibility conditions, the offerors were required to offer flashlights that met certain specifications. Specifically, the successful vendor “must have the capability to utilize

- 5 -

Simulator LASER-BASED Low Light System Low-light flashlights bounce beam that can be adjusted. The system must be capable of syncing with multiple flashlights to improve cooperation among trainees.” Ex. D at p.5. The GDC underscored its desire for “LASER- BASED” solutions.

5) Refill Stations Featuring Pumps. “Vendor must provide Refill Station Table-top refill station for all refillable magazines to include automatic push button activation and one CO2 tank which must ship empty for each simulator. This refill station must use liquid CO2 with an internal pump chamber.” Ex. D at p.5.

As detailed below, neither TI Training nor FAAC did or even could satisfy each of these requirements.

TI Training’s Proposal Is Non-Responsive

TI Training submitted a proposal that is in various places vague and in others silent as to its ability to meet the specified criteria in the eRFQ. This was intentional on TI Training’s part. It knows that it cannot provide the solutions the GDC is seeking, and it apparently believed that if it failed to highlight the ways in which it was non-responsive, the GDC would not notice. Such evasion should not be rewarded with lucrative government contracts.

1. TI Training Has Not Offered to Provide, and Legally Cannot Provide, the Threat-Fire® Products or TASER Simulation Cartridges That Are Called for in the eRFQ

There is no supplier other than VirTra that can meet the eRFQ’s demands for Threat- Fire® products and TASER simulation cartridges, as the minimum requirements for these products detailed in the eRFQ are protected by patents and registered trademarks belonging to VirTra.

VirTra’s patented and trademarked technology called Threat Fire® delivers a non-disabling electric impulse to a trainee that simulates return fire, dog bites, explosions, and other negative consequences during training to reinforce good tactical decision-making.2 It is fully simulated, so that it requires no clean-up and entails only a minimal risk of injury, and it can be fully controlled by a training instructor from a computer screen. Threat-Fire allows for a far more realistic training scenario than traditional training methods, which either do not allow simulated suspects to engage trainees at all or require trainees to wear protective devices that do not replicate real-world scenarios. Although the GDC did clarify during the Q&A process that no specific proprietary software was being required, 2 “Threat Fire” is protected by VirTra’s registered trademark No. 5,323,581, referring to a “low voltage impulse device used to provide trainee feedback in a simulated firearm training environment.”

Exhibit E.

- 6 -consistent with § 3.5.5.1.3 of the GPM, it also clarified that VirTra’s simulator system had been “identified . . . as meeting all of our requirements for the system” and specified that any other system would still have to “meet the minimum requirements specified.” Exhibit F at p.1. Neither TI Training’s nor FAAC’s proposals meet those minimum requirements.

Given VirTra’s exclusive rights to the technology that is at the core of the “minimum requirements specified” in the eRFQ, it would be impossible for any other vendor to provide compliant products without infringing on VirTra’s intellectual property.

The Threat-Fire technology is the subject of two patents (U.S. Patent No. 8,016,594 (Exhibit G) and No. 8,267,691 (Exhibit H)) owned by VirTra. The technology covered by these patents includes the selective delivery of non-disabling electrical impulses to trainees to simulate the impact of projectiles in response to tactical decisions made (or not made) by the trainee during training simulations. See Ex. G at p.11, Claim 1; Ex. H at p.12, Claim 1. VirTra holds the only patents for electrical stimulation within a simulated training environment, and VirTra has not licensed any party, including TI Training, to make, use, or sell products that incorporate technology protected by its patents. In fact, VirTra and TI Training—competitors within a relatively small industry—have gone head to head before about TI Training’s offering of products that infringe VirTra’s patents. As early as 2012, VirTra raised a concern that TI Training was offering infringing products as part of its training simulations. See Exhibit I (Nov. 19, 2012 letter from VirTra’s counsel to Setcan Corporation, the manufacturer a “stress vest” once offered by TI Training as part of its simulations); Exhibit J (Oct. 24, 2012 e-mail from TI Training’s Greg Otte to VirTra’s CEO Bob Ferris, telling Mr. Ferris that “[c]oncerns with the ‘Stress Vest’ should be taken up with Setcan”).

TI Training knows that it cannot offer a “device that will initiate an electronic impulse resulting in physiological change to the body during screen-based simulation to add a physiological response that significantly enhances the effectiveness of simulation training.” Ex. D at p.5. But its proposal makes no mention of that critical fact. Instead, TI Training glosses over that requirement by making reference to a “vest that is worn by the trainee” that can “activate[] with an Audible Alarm, Bright Light, and Intense Vibration to indicate a hit” during training. Exhibit K at p.12, § 7.4. But neither an alarm, a light, nor a vibration constitutes “an electronic impulse resulting in physiological change to the body.” This was a mandatory requirement of the eRFQ, and for good reason. The purpose of fitting trainees with electrodes capable of delivering electric shocks is to reinforce the real, and potentially catastrophic, consequences of poor tactical decision-making during trainings. Bells, whistles, and vibrating vests are easy to ignore; at a minimum, they are things that a trainee can and will become accustomed to, even if he or she makes a series of poor decisions during a simulated training. The physiological response of an electric shock, on the other hand, is not something that one can ignore or grow numb to. It is the

- 7 -most reliable and safe means of replicating the real-world consequences that law enforcement officers face, which is why GDC specified it.3

Equally apparent is that TI Training cannot satisfy the eRFQ’s specifications regarding TASER simulation cartridges. TI Training’s proposal does not even purport to comply with the eRFQ’s requirement that vendors supply a simulation cartridge that works in a live TASER device. Instead, it is clear from TI Training’s cost proposal that TI Training offered only to provide inert devices that contain built-in cartridges. See Ex. K at p.29 (providing quote for 8 “X2 inert training simulation device[s] with built-in cartridges”).

This is plainly non-compliant with the eRFQ, which emphasized that plastic and artificial weapons were not acceptable substitutes for active weapons. Ex. D at p.4. TI Training additionally fails to specify whether the cartridges on its non-compliant inert TASER devices contain two lasers, rather than the unacceptable “one laser emitter.” Ex. D at p.5.

Perhaps most importantly, it is again impossible for TI Training to provide a TASER training device with an activation mechanism comparable to that called for by the eRFQ.

The solicitation specified that the simulation cartridges, when inserted into a live weapon, must be “activated by the audio frequencies produced by the live arching of the device.”

Ex. D at p.5. As with the Threat Fire product, VirTra owns patents that give it the exclusive right to use that technology. Specifically, VirTra owns U.S. Patent No. 10,438,503, which is for a “simulated non-lethal weapon” that “comprises a cartridge that is fitted with an acoustic triggering mechanism,” such that “[b]y detecting, capturing, and processing the sound of an electrical arc, the cartridge can activate a laser emitter.” Exhibit L at p.1.

Again, VirTra has not licensed this technology for use by any other entity, including TI Training. Thus, not only does TI Training submission fail to even purportedly comply with the TASER simulation cartridges called for in the eRFQ, it would be impossible for TI Training to provide the referenced technology without infringing on VirTra’s intellectual property rights.

2. TI Training’s Proposal Does Not Comply with the eRFQ’s Specifications for Laser-Based Low-Light Flashlights

Knowing that officers will need to be trained for night-time encounters and other low-visibility conditions, the solicitation required offerors to possess the capability of using “LASER-BASED” low-light flashlights. Ex. D at p.5. TI Training, again, did not purport

3 The fact that the GDC specified a device that would deliver an electric impulse to a trainee is all that matters for this procurement, as it is beyond dispute that the State can set the parameters for its solicitations so long as it subsequently abides by the parameters set. However, it is worth noting that scientific literature does support the reasonableness of this requirement. See, e.g., Electric Foot Shock Stress: A useful tool in neuropsychiatric studies, Reviews in the Neurosciences (July 2015), available at https://www.degruyter.com/document/doi/10.1515/revneuro-2015-0015/html (noting that in animal studies, “[a]nimals generally do not habituate to foot shocks in comparison to other stressors, including loud noise, bright light, and hot and cold temperatures”).

https://www.degruyter.com/document/doi/10.1515/revneuro-2015-0015/html

- 8 -to offer a solution meeting the specified criteria. Instead, its proposal relies on “the use of actual flashlights (covered by special filters)” instead of incorporating lasers. Ex. K at p.5, § 5.11. TI Training makes this abundantly clear two pages later, when it specifies that its “flashlight is not a laser device.” Id. at p.7, § 6.6.1.

3. TI Training’s Bid Does Not Show That the Training Curriculum Offered Complies with IADLEST Standards, as Required by the eRFQ

With respect to TI Training’s training curriculum, there is no evidence, nor even a claim by TI Training, that it satisfies IADLEST standards, as called for in the eRFQ. See Ex. D at p.3. IADLEST launched its national certification program to establish law enforcement training standards and best practices that are uniform across jurisdictions and agencies. VirTra offers eighteen training courses that are certified by IADLEST. See https://www.firstforward.com/Marketplace/Search?query=virtra. A search of the same training catalog reveals zero IADLEST-certified training courses from TI Training. TI Training’s silence in its submission about whether its training curriculum is IADLEST certified speaks volumes.

4. TI Training’s Refill Stations Do Not Meet the Pump-Mechanism Requirement in the eRFQ

Finally, although the eRFQ required table-top refill stations that “use liquid CO2 with an internal pump chamber,” Ex. D at p.5, upon information and belief based in part on industry knowledge and experience dealing with TI Training in other contexts, TI Training’s refill stations use pressure equalization systems, rather than a pump, to refill its refillable magazines. Significantly, TI Training does not specify in its proposal whether it offers a pump, a pressure-equalization system, or any other mechanism for its refill stations. See Ex. K at p.28 (referring only to refill stations including a “CO2 Tank” and “[a]ll necessary items for the Handgun Magazines and Rifle Magazines to be refilled”).

This is no mere technicality, and was included in the Detailed Specification Requirements for good reason. Using a pump to draw and compress liquid carbon dioxide into a magazine allows for a higher pressure of carbon dioxide to be contained in the magazine, relative to using a pressure-equalization system. The higher pressure, in turn, means that the end-user of the product experiences a stronger recoil, providing better and more realistic training to the trainee.

DOAS has repeatedly held in the past that an offeror is not entitled to the benefit of the doubt with respect to its ability to satisfy mandatory minimum RFQ requirements. For example, it rejected a protest filed by a bidder who had failed to include requested information, but who later contended that it should have been given the opportunity to submit the omitted information after the bid deadline. See Exhibit O (In re Protest, RFQ No. EQ-53900-210 (Utility Vehicle) (June 2, 2010)). TI Training’s failure to affirmatively confirm that its training curriculum and refill stations meet the eRFQ’s requirements is equivalent to an affirmative statement that those requirements are not met.

https://www.firstforward.com/Marketplace/Search?query=virtra

- 9 -

5. Summary

TI Training’s proposal is non-responsive because it materially deviated from the mandatory specifications contained in the eRFQ. The fact that the evaluation team apparently did not pick up on these deviations underscores that there was no intent to waive these requirements,4 nor could they be waived because they are mandatory and material to the procurement under both the GPM and the terms of the solicitation itself. Ex. A at p.1, § 1.1 (procurement’s purpose is to seek a simulator “that meets all the . . . requirements note[d] in the attached Detailed Specifications”); id. at p.12, § 4.2 (describing “product specifications” as “mandatory requirements . . . which must be met by the supplier in order for the supplier to be considered ‘responsive’ and, therefore, eligible for contract award”);

GPM at §§ 3.5.5.1, 5.6.3.1 (both requiring that a response to an RFQ satisfy all of the product specifications contained therein to be deemed responsive). TI Training failed, in multiple independent respects, to satisfy the mandatory requirements in the eRFQ, it should have been disqualified as non-responsive.

Significantly, the solicitation requires that the successful offeror demonstrate its compliance with the terms of the eRFQ prior to final contract award:

Supplier Demonstration: Prior to final award, supplier must provide a demonstration of all offered equipment to confirm compliance with all listed requirements upon request by the GDC. The supplier must provide the demonstration no less than 10 business days following the GDC’s request.

Ex. D at p.5. VirTra submits that it is abundantly clear from the parties’ proposals and the information in this Protest that TI Training’s bid was non-responsive. However, any doubt the State may have in that regard can easily be removed by simply requiring TI Training to demonstrate its compliance with the detailed specifications as part of this Protest process.

FAAC Was Likewise Non-Responsive and Ineligible for Award

FAAC’s proposal was likewise non-responsive. Although the evaluators seemed to seize on this—indicating in their evaluation form that FAAC “did not meet” the specified requirements in the eRFQ—it is worth pointing out that this determination was unquestionably correct.

4 The evaluators’ notes for the proposals do indicate an intention to waive certain requirements that were not mentioned in TI Training’s or FAAC’s proposals, but none of those waivers affected the criteria discussed in this protest that TI Training did not satisfy. It bears mentioning that VirTra was the only bidder for whom the evaluation team found it unnecessary to waive any requirements in the eRFQ, further underscoring the fact that VirTra’s solution offers the best overall value to the State. See Exhibit N.

- 10 -

As with TI Training, FAAC is not licensed to use any of VirTra’s proprietary and patented technology in its solutions, including the Threat-Fire product. On its face, FAAC’s proposal did not include “a device that will initiate an electronic impulse resulting in physiological change to the body.” Ex. D at p.5. It instead offered a “haptic feedback device, which it concedes “[d]oes not shock trainee.” Exhibit M at p.6, No. 10. FAAC cited to studies purportedly showing that shocking trainees is ineffective, but that misses the mark. The GDC unquestionably has the authority and discretion to determine what criteria it will insist on. A bidder cannot unilaterally change those terms, and the State can only waive immaterial terms, which the detailed specifications in this case were not.

FAAC, like TI Training, appears to offer the GDC not TASER simulation cartridges that can be used in a live TASER device, but rather modified TASER weapons. Ex. M at p.6, No. 9. This, too, is in violation of material terms of the eRFQ. It makes no reference to how its TASER cartridges are triggered, but again, VirTra’s ownership of the ’503 Patent discussed above precludes any suggestion that FAAC could comply with the requirement that the simulation cartridges be “activated by the audio frequencies produced by the live arching of the device.” Ex. D at p.5.

FAAC appears to offer the same filter-based flashlight solution that TI Training offered, which materially deviates from the solicitation’s specification that vendors offer a “LASER-BASED” flashlight. See Ex. M at pp.4, 5; Ex. D at p.5. And as with TI Training’s proposal, FAAC’s bid’s reference to refill stations fails to specify that it will offer a pump-based refill system in line with what is demanded by the eRFQ. See Ex. D at p.5; Ex. M at p.6 Nos. 6 & 8.

The Contract Should Be Awarded to VirTra

VirTra is the lowest responsive and responsible bidder in this procurement, and the contract should be issued to it. The NOIA issued to TI Training fails to achieve the best overall value for the State, because the contract amount proposed by TI Training comes at the price of critical product and performance specifications that are deemed mandatory in the eRFQ. “The state entity is bound by the terms of the solicitation as well as the established evaluation criteria.” Georgia Procurement Manual at § 5.6; see also Amdahl Corp. v. DOAS, 260 Ga. 690, 696 (1990) (holding that state is bound by the terms of the solicitation, even in cases in which it is granted certain discretions to determine which proposal is most advantageous). The fact that TI Training’s price was the lowest does not make TI Training’s bid the most advantageous. The GPM, the solicitation documents in this case, and Georgia law all expressly require that factors other than price alone be used to determine which supplier offers the best overall value.

To allow TI Training to be awarded this contract would be to award a fundamentally and materially different contract than the one GDC solicited. VirTra is the industry leader whose technology formed the basis of the specifications in the solicitation, and VirTra is the supplier who is in the best position to provide the State with the products it seeks

- 11 -through this procurement. Indeed, VirTra was the lone responsive bidder, and thus it is the only offeror eligible for contract award. The evaluation team’s contrary conclusion was erroneous, an error was invited by TI Training’s omissions and misrepresentations in its proposal.

Conclusion

For all of these reasons, VirTra respectfully asks that the November 8, 2021, NOIA issued to TI Training be rescinded and that a new NOIA issue announcing VirTra as the successful offeror, as it was the only bidder whose submission can reasonably be deemed responsive to the specifications in the eRFQ.

Respectfully submitted this 18th day of November, 2021.

J. Matthew Maguire, Jr.

Georgia Bar No. 372670 Jennifer K. Coalson Georgia Bar No. 266989

PARKS, CHESIN & WALBERT, P.C.

75 Fourteenth St., Suite 2600 Atlanta, GA 30309 Phone: (404) 873-8000 Fax: (404) 873-8050 mmaguire@pcwlawfirm.com jcoalson@pcwlawfirm.com

Counsel for Protestor VirTra, Inc.

mailto:mmaguire@pcwlawfirm.com mailto:jcoalson@pcwlawfirm.com

State Entity eRFQ Document Revised 1/4/2021 1 of 16 SPD-SP018

State of Georgia State Entity: Georgia Department of Corrections Request for Quotes (“eRFQ”) Event Name: Use of Force Training Simulators RFQ (Event) Number: GDC0000979

1. Introduction

1.1. Purpose of Procurement

Pursuant to the State Purchasing Act (Official Code of Georgia Annotated §§50-5-50 et seq.), this electronic Request for Quotes (“eRFQ”) is being issued to establish a contract with one or more qualified suppliers who will provide Use of Force Training Simulators to the Georgia Department of Corrections (hereinafter, “the State Entity”) as further described in this eRFQ.

The Georgia Department of Corrections (GDC) is seeking a vendor to provide Law Enforcement Use of Force Simulators that meets all the equipment, supplies, software capability, and needed mobility and space requirements note in the attached Detailed Specifications. Simulator systems shall include (1) Fixed Simulator, (6) mobile simulators, and all the necessary equipment required to install and operate the systems.

GDC is also interested in obtaining the cost of an Annual Service Plan which would be considered after Warranty expires.

Lastly, vendors are also encouraged to submit a proposal to buy-back (4) Meggitt simulators currently owned by GDC.

1.2. Electronic Records and Signatures

This eRFQ is being sourced through an electronic sourcing tool approved by the Department of Administrative Services and all suppliers’ responses must be submitted electronically in accordance with the instructions contained in Section 2 “Instructions to Suppliers” of this eRFQ. Electronic competitive sealed proposals will be administered pursuant to the Georgia Electronic Records and Signature Act.

Please note electronic competitive sealed bids meet the sealed bidding requirements of the State of Georgia, an electronic record meets any requirements for writing, and an electronic signature meets any requirements for an original signature.

1.3. Overview of the eRFQ Process

The objective of the eRFQ is to select one or more qualified suppliers (as defined by Section 1.1 “Purpose of the Procurement”) to provide the goods and/or services outlined in this eRFQ to the State Entity. This eRFQ process will be conducted to gather and evaluate responses from supplier for potential award. All qualified suppliers are invited to participate by submitting responses, as further defined below. After evaluating all suppliers’ responses received prior to the closing date of this eRFQ and resolution of any contract exceptions, the preliminary results of the eRFQ process will be publicly announced, including the names of all participating suppliers and the evaluation results. Subject to the protest process, final contract award(s) will be publicly announced thereafter.

NOTE TO SUPPLIERS: The general instructions and provisions of this document have been drafted with the expectation that the State Entity may desire to make one award or multiple awards. For example, this document contains phrases such as “contract(s)” and “award(s)”. Please refer to Section 1.1 “Purpose of the Procurement” and Section 6.6 “Selection and Award” for information concerning the number of contract awards expected.

Exhibit A

Revised 1/4/2021 2 of 16 SPD-SP018

1.4. Schedule of Events

The schedule of events set out herein represents the State Entity’s best estimate of the schedule that will be followed. However, delays to the procurement process may occur which may necessitate adjustments to the proposed schedule. If a component of this schedule, such as the close date, is delayed, the rest of the schedule may be shifted as appropriate. Any changes to the dates up to the closing date of the eRFQ will be publicly posted prior to the closing date of this eRFQ. After the close of the eRFQ, the State Entity reserves the right to adjust the remainder of the proposed dates, including the dates for evaluation, award and the contract term on an as needed basis with or without notice.

Description Date Time Release of eRFQ As Published on the Georgia

Procurement Registry (“GPR”) N/A

Deadline for written questions sent via email to the Issuing Officer referenced in Section 1.5.

09/24/2021 5:00 p.m. ET

Bidders/Offerors’ Conference/Site Visit Location:

Arnall Building, 2271 Vinson Hwy SE, Milledgeville, GA 31061

Attendance is: Optional

As Published on the GPR See GPR

Responses to Written Questions 09/28/2021 5:00 p.m. ET Bids Due/Close Date and Time As Published on the GPR See GPR Bid Evaluation Completed (on or about) 1 to 2 Weeks after Closing N/A Finalize Contract Terms 1 to 2 Weeks after Closing N/A Notice of Intent to Award* [NOIA] (on or about)

1 to 2 Weeks after Closing N/A

Notice of Award [NOA] (on or about) 10 calendar days after NOIA N/A *In the event the estimated value of the contract is less than $100,000, the State Entity reserves the right to proceed directly to contract award without posting a Notice of Intent to Award.

1.5. Official Issuing Officer (Buyer)

Marcia Primus Marcia.Primus@gdc.ga.gov

1.6. Definition of Terms

Please review the following terms:

Supplier(s) – companies desiring to do business with the State of Georgia.

State Entity – the governmental entity identified in Section 1.1 “Purpose of Procurement” of this eRFQ.

Any special terms or words which are not identified in this State Entity eRFQ Document may be identified separately in one or more attachments to the eRFQ. Please download, save and carefully review all documents in accordance with the instructions provided in Section 2 “Instructions to Suppliers” of this eRFQ.

1.7. Contract Term

This is not a multi-year agreement.

2. Instructions to Suppliers

By submitting a response to the eRFQ, the supplier is acknowledging that the supplier:

Revised 1/4/2021 3 of 16 SPD-SP018

1. Has read the information and instructions,

2. Agrees to comply with the information and instructions contained herein.

2.1. General Information and Instructions

2.1.1. Team Georgia Marketplace™ Registration System

DOAS requires all companies and/or individuals interested in conducting business with the State of Georgia to register in the State’s web-based registration system, through Team Georgia Marketplace™. Registration is free and enables the supplier to gain access to certain information, services and/or materials maintained in Team Georgia Marketplace™ at no charge to the registering company. All registering companies must agree to be bound by the applicable terms and conditions governing the company’s use of Team Georgia Marketplace™. In the event DOAS elects to offer certain optional or premium services to registered companies on a fee basis, the registered company will be given the opportunity to either accept or reject the service before incurring any costs and still maintain its registration. Companies may register at:

https://fscm.teamworks.georgia.gov/psc/supp/SUPPLIER/ERP/c/NUI_FRAMEWORK.PT_LANDING

PAGE.GBL?&

2.1.2. Restrictions on Communicating with Staff

From the issue date of this eRFQ until the final award is announced (or the eRFQ is officially cancelled), suppliers are not allowed to communicate for any reason with any State staff except through the Issuing Officer named herein, or during the Bidders/Offerors’ conference (if any), or as defined in this eRFQ or as provided by existing work agreement(s). Prohibited communication includes all contact or interaction, including but not limited to telephonic communications, emails, faxes, letters, or personal meetings, such as lunch, entertainment, or otherwise. The State Entity reserves the right to reject the response of any supplier violating this provision.

2.1.3. Submitting Questions

All questions concerning this eRFQ must be submitted in writing via email to the Issuing Officer identified in Section 1.5. No questions other than written will be accepted. No response other than written will be binding upon the State. All suppliers must submit questions by the deadline identified in the Schedule of Events for submitting questions. Suppliers are cautioned that the State Entity may or may not elect to entertain late questions or questions submitted by any other method than as directed by this section. All questions about this eRFQ must be submitted in the following format:

Company Name Question #1 Question, Citation of relevant section of the eRFQ Question #2 Question, Citation of relevant section of the eRFQ

Do not use the comments section of the Sourcing Event to submit questions to the issuing officer.

2.1.4. Attending Bidders/Offerors’ Conference

The Bidders/Offerors’ conference or any other information session (if indicated in the schedule of events) will be held at the offices referred to in Section 1.4 “Schedule of Events”. Unless indicated otherwise, attendance is not mandatory; although suppliers are strongly encouraged to attend.

However, in the event the conference has been identified as mandatory, then a representative of the supplier must attend the conference in its entirety to be considered eligible for contract award.

The supplier is strongly encouraged to allow ample travel time to ensure arrival in the conference meeting room prior to the beginning of any mandatory conference. The State Entity reserves the right to consider any representative arriving late to be “not in attendance.” Therefore, all suppliers are strongly encouraged to arrive early to allow for unexpected travel contingencies.

2.1.5. State’s Right to Request Additional Information - Supplier Responsibility

Prior to an award, the State Entity must be assured that the selected supplier has all of the resources to successfully perform under the contract. This includes, but is not limited to, adequate number of personnel with required skills, availability of appropriate equipment in sufficient quantity https://fscm.teamworks.georgia.gov/psc/supp/SUPPLIER/ERP/c/NUI_FRAMEWORK.PT_LANDINGPAGE.GBL?& https://fscm.teamworks.georgia.gov/psc/supp/SUPPLIER/ERP/c/NUI_FRAMEWORK.PT_LANDINGPAGE.GBL?&

Revised 1/4/2021 4 of 16 SPD-SP018 to meet the on-going needs of the State Entity, financial resources sufficient to complete performance under the contract, and experience in similar endeavors. If, during the evaluation process, the State Entity is unable to assure itself of the supplier’s ability to perform, if awarded, the State Entity has the option of requesting from the supplier any information deemed necessary to determine the supplier’s responsibility. If such information is required, the supplier will be so notified and will be permitted approximately seven (7) business days to submit the information requested.

2.1.6. Failing to Comply with Submission Instructions

Responses received after the identified due date and time or submitted by any other means than those expressly permitted by the eRFQ will not be considered. Responses must be complete in all respects, as required in each section of this eRFQ.

2.1.7. Rejection of Responses; State’s Right to Waive Immaterial Deviation

The State Entity reserves the right to reject any or all responses, to waive any irregularity or informality in a response, and to accept or reject any item or combination of items, when to do so would be to the advantage of the State of Georgia. It is also within the right of the State Entity to reject responses that do not contain all elements and information requested in this eRFQ. A response will be rejected if the response contains any defect or irregularity and such defect or irregularity constitutes a material deviation from the eRFQ requirements, which determination will be made by the State Entity on a case-by-case basis.

2.1.8. State’s Right to Amend and/or Cancel the eRFQ

The State Entity reserves the right to amend this eRFQ. Any revisions must be made in writing prior to the eRFQ closing date and time. By submitting a response, the supplier shall be deemed to have accepted all terms and agreed to all requirements of the eRFQ (including any revisions/additions made in writing prior to the close of the eRFQ whether or not such revision occurred prior to the time the supplier submitted its response) unless expressly stated otherwise in the supplier’s response. THEREFORE, EACH SUPPLIER IS INDIVIDUALLY RESPONSIBLE FOR REVIEWING THE REVISED eRFQ AND MAKING ANY NECESSARY OR APPROPRIATE

CHANGES AND/OR ADDITIONS TO THE SUPPLIER’S RESPONSE PRIOR TO THE CLOSE OF

THE eRFQ. Suppliers are encouraged to frequently check the eRFQ for additional information.

Finally, the State Entity reserves the right to cancel this eRFQ at any time.

2.1.9. Protest Process

Suppliers should familiarize themselves with the procedures set forth in Chapter 6 of the Georgia Procurement Manual.

2.1.10. Costs for Preparing Responses

Each response should be prepared simply and economically, avoiding the use of elaborate promotional materials beyond those sufficient to provide a complete presentation. The cost for developing the response and participating in the procurement process (including the protest process) is the sole responsibility of the supplier.