Protest - SLIS

May 16, 2011

VIA FACSIMILE: (404) 657-8444

VIA E-MAIL: protests@doas.ga.gov

VIA HARD COPY U.S. MAIL

23 Pages Total

Attn: Assistant Commissioner - Procurement State Purchasing Division, Department of Administrative Services 200 Piedmont Ave., SE, Suite 1308.

West Tower, Atlanta, GA 30334-9010

Re: Protest of Solicitation from Georgia Department of Administrative Services for Sign Language and Other Related Services;

RFP No. 99999‐SPD0000052

Dear Sir or Madam:

Pursuant to Section 6.5 of the Georgia Procurement Manual, this letter will constitute the formal protest of the solicitation from the Georgia Department of Administrative Services for Sign Language and Other Related Services as set out in RFP No. 99999-SPD0000052.

A. Name and Address of Party Filing Protest.

This protest is being submitted by Susan Eddy, President, and Ruth Dubin, Director, Sign Language Interpreting Specialists, Inc. (SLIS), 3292 Thompson Bridge Road #333, Gainesville, Georgia, 30506.

We are professionals in the sign language and interpreting services industry and have been leaders and innovators in this profession for over 30 years. SLIS is incorporated and located in the State of Georgia and has been for over 16 years.

We are both interested in and qualified to submit a proposal under this solicitation.

B. Identification of the Solicitation Notice.

This protest is being filed with respect to the referenced RFP No. 99999-SPD0000052 posted by the Georgia Department of Administrative Services for Sign Language and Other Related Services.

mailto:protests@doas.ga.gov

C. Statement of Reasons for Protest.

1. Sign Language Interpreting Service is a specific type of Professional Service and is thus exempt from the State Purchasing Act.

First and foremost, it is clear that sign language interpreting services are recognized both in Georgia and nationwide as “professional services.”

According to the current Georgia Procurement Manual, Section 1.2.3.1, Exemptions from the State Purchasing Act, certain Professional Services are exempt.

As you are aware, the NIGP (National Institute for Government Purchasing) Codes which DOAS has assigned to this RFP include 96117 and 96167. It is essential to note that the 961 category is entitled Miscellaneous Professional Services. Under that 961 Category code are:

Section 96117 being “Interpreter Services Electronically Assisted ‐ Foreign Language, Hearing Impaired, etc.,” and

Section 96167 being “Sign Language Services for the Hearing Impaired.”

Another Federal reference to the status of sign language interpreters as professionals is included in the United States Department of Labor Bureau of Labor Statistics, 2011 Occupational Outlook Handbook. Sign Language Interpreters are categorized as “Professional and related Occupations”, sub category Media and Communications Related Occupations. See Supporting Documentation and Exhibits for reference. Note: of the 20 professions listed as examples of those considered exempt under the Georgia State Purchasing Act, 16 of these are specifically included in this US DOL BLS listing of professions.

In this RFP, DOAS requires that sign language interpreters maintain Professional Liability Insurance. This is for a type of policy specifically designed for professionals, including coverage for malpractice.

The Georgia Procurement Manual references “statutory definitions” for the designation “professional”. However, there is by inference a substantiating rationale for each and all of the examples of professions listed, for including these in the category of the professions which are deemed exempt. This rationale could reasonably be understood to include, among other factors:

the years of training needed to get to the entry level point of the profession the complexity of the work performed by those in the profession the rigorous certification process for those professionals the college degree and continuing education requirements for professional certification the high level of independence and skill required for working without onsite supervision the continuous independent decision-making required, including ethical, cultural, and language-related decisions required to perform the work

Furthermore, a statewide contract is not needed to ensure these professional services are provided. Sign language interpreting services already have been and are currently being provided throughout the State of Georgia. There are multiple Georgia‐based qualified sign language interpreters and qualified sign language interpreting vendors providing these professional services on an as needed basis to these State entities. These State entities are individually responsible to order and pay for the services they need. They should be allowed to continue to select the qualified sign language professionals with whom they work, based on who provides the highest quality of service rather than being constrained to use only the vendor(s) mandated by a DOAS contract award. If any agency needing these services is unaware of the resources available, information can be disseminated on the existing qualified sign language interpreters and qualified sign language interpreting vendors in the State.

There can be no question that the services being solicited under this RFP are Professional Services based on this rationale. Further, this rationale forms the basis for why there are any professions at all exempt from the State Purchasing Act: the mission of DOAS does not include possessing the expertise in every possible professional service, which expertise is needed to appropriately oversee contracting .

Consequently, this solicitation should be cancelled as it calls for Professional Services which are exempt under the State Purchasing Act.

2. Established industry standards in Georgia for practices, policies, and pricing were not followed or considered in this RFP.

In creating this RFP, DOAS did not follow currently accepted industry standards, statewide or national, for sign language interpreting, in practice, policy, or pricing. It is understood that one of the functions of the competitive bidding process is to gain the best pricing for the needed good or service. However, the structure of this RFP does not recognize the standards in place related to the provision of this specialized service. These statewide standards were established by the State of Georgia first in 1987, and have been consistently implemented and followed since then to the present day. These standards are supported by national industry standards for sign language interpreting. They include, among others:

qualifications of sign language interpreters working conditions necessary for performance, such as assigning a team of two interpreters for assignments over 2 hours in length, or for any legal deposition or witness testimony, or for deaf blind interpreting, etc., having a minimum billing for each assignment, etc.

valuation of certain types of interpreting as more difficult and requiring a higher or different skill set the value of accommodating last minute needs recognition of the limited number of qualified interpreters, and their locations relative to the locations of presenting needs the resulting need to have qualified interpreters travel to provide needed services in areas where no qualified interpreters exist in any proximity, and be paid to do so in order to cover the entire State’s need the importance of a comprehensive cancellation policy, in recognition of the time committed to the assignment and the resulting impact on the availability of the interpreter for other needs.

Also relevant, the use of the statewide “State Service Delivery Regions Map” (eRFP Attachment J) as it is referenced in this solicitation is inapplicable. This does not relate in any way to, nor is there an equal distribution of, the needs present or the qualified sign language interpreters or sign language interpreting vendors across the State. These regional divisions are used in this RFP for distinguishing which areas a bidder will service, and they affect a major aspect of pricing in an artificial and arbitrary way. The response given by DOAS to this question when raised was that this gives opportunities to small businesses in each region. However, in many of the regions there are no small businesses at all that are qualified to provide this service.

3. If it proceeds, this should lead to Convenience Contract not Mandatory Contract.

Why is this solicitation to be a mandatory contract? Further, how does making this a mandatory award benefit the State and its Deaf citizens? The justification for this RFP leading only to mandatory contract is arbitrary. Pursuant to the Georgia Procurement Manual, we submitted Questions regarding the proposed program and RFP. Question 25 asked for the reasons justifying the State’s plan to make the contracts mandatory as opposed to convenience and how the program would benefit both the State and the ultimate consumer of these services – Deaf citizens. In the “Answer” to this Question, DOAS justifies the decision only with the following explanation:

“The decision to make this a mandatory contract was a business decision.”

No supporting facts, reasons, surveys, or documentation were provided with this response.

This suggests that the State’s justification for this Solicitation leading to mandatory contract is arbitrary and without reason. Certainly it does not justify totally revising the entire system of providing sign language interpreting services in the State of Georgia in place for over 25 years.

Finally, making one or more vendors the mandatory source does not increase the number of qualified interpreters available to state agencies to provide services, but in fact does the opposite. Individual qualified sign language interpreters and qualified sign language interpreting vendors are currently providing services to state agencies, and have been for many years. By forcing state agencies to use only the vendors with mandatory contracts, many of these resources will be lost. There are three primary reasons for this potential loss.

1. Many individual qualified sign language interpreters prefer to work on an as-needed basis directly with state agencies instead of through a vendor, and have been doing so for many years. These interpreters would be prohibited from continuing this work.

2. Most qualified sign language interpreters choose not to work with vendors who possess no experience, expertise, or education in sign language or deafness, such as foreign language companies. Should such vendors be awarded mandatory contracts, these qualified interpreters will no longer be available to state agencies for service provision.

3. There are qualified sign language interpreting vendors who are and have been successfully meeting the sign language interpreting needs of state agencies, through long standing contractual agreements. Most qualified sign language interpreters work with these vendors. Without a mandatory contract award, these vendors and interpreters will be prohibited from providing services to state agencies.

Clearly, awarding mandatory contract(s) will diminish the pool of qualified sign language interpreters available to meet the needs of Georgia’s state agencies. Given that the number of qualified sign language interpreters is limited, it would be devastating to restrict the access state agencies currently have to the entire supply. Creating such mechanisms that restrict access to qualified sign language interpreters would jeopardize the state’s ability to comply with its ADA requirements.

4. Granting one vendor a pricing advantage s is unfair and illegal.

If the RFP goes forward, an inappropriate price advantage has been designated for one potential bidder. The Georgia Enterprises for Products and Services- GEPS- is given an 8% price advantage for purposes of comparison with other bidders, as provided for in the State Use Law.

In an official opinion from the Georgia Attorney General, it has been previously determined that the State Use Law does not apply when the services being purchased are sign language interpreting services. A copy of the Attorney General’s letter is included in Supporting Documents and Exhibits.

This question was submitted to DOAS, responded to but without resolution. This price advantage should be removed.

D. Supporting Documents and Exhibits.

1. In further support of the professional service status of sign language interpreters, the following is attached:

a. The Standard Practice Paper on Professional Sign Language Interpreting from the national Registry of Interpreters for the Deaf (3 pages). This document fully supports the position of our industry that the services rendered by sign language interpreters is subject to professional regulation, certification, and ethical standards that meet or exceed those of the statutorily enumerated professions in the Georgia Code. The Paper lists the professional certifications and organizations associated with our industry.

b. The US Department of Labor Bureau of Labor Statistics 2011 Occupational Outlook Handbook (7 pages) listing Professional and related occupations, which includes Interpreters, as well as the vast majority of professions listed as examples of those exempt under the State Purchasing Act.

2. In further support of the industry standards in place in the State of Georgia since

1987, the following is attached:

a. Standard Policies example. This sample does not contain any pricing, rates, or fee information. It does contain the standards related to sign language interpreting provision which were originally established by the State of Georgia in 1987, and are still in pace today. These standards include working conditions as these relate to scheduling, pricing structures related to regular assignments vs. medical, mental health or legal assignments, differentials paid for emergencies or non-typical business hours, cancellation considerations, etc.

For illustrative purposes, this attachment from the RFP is also included:

b. State Service Delivery Regions Map

3. There is no additional supporting documentation needed on the protest point of this leading to a convenience contract award as opposed to a mandatory award.

4. In further support of the protest to the pricing advantage for GEPS, the following is attached:

The Georgia State Attorney General’s letter (4 pages)

E. Desired Remedy.

Accordingly, the Solicitation will not be in the best interests of citizens of the State of Georgia needing sign language interpreting services. Nor will it be in the best interests of the State of Georgia to go to a mandatory source system for sign language services as solicited.

1. Because sign language interpreting services are a specific type of professional services, and as such exempt from DOAS contracting under the State Purchasing Act, we request that the Georgia Department of Administrative Services cancel its Solicitation for sign language and related service as set out in RFP No. 99999-SPD0000052.

2. In the alternative, if this solicitation goes forward, we request that Georgia statewide industry standards for practices, policies, and pricing be used to structure this RFP, and that the State Service Delivery Regions Map be removed with all references.

3. If this Solicitation goes forward, we request that it lead to convenience contract only, and should not be converted to mandatory contact in the future. Additional education of State agencies should be done to ensure that their right to access the convenience contract(s) or to choose their own suppliers is understood.

4. If this solicitation goes forward, we request that the preferred pricing for GEPS be eliminated as in conflict with state law precedent.

Thank you for your consideration of this protest. If you have any questions or would like to schedule a public hearing on the matters raised herein, please contact me.

Sincerely yours, Susan Eddy, President Ruth Dubin, Director Sign Language Interpreting Specialists, Inc.

ENCLOSURES

Cc w/Encl: Bruce H. Henderson, Esq.

In further support of the professional service status of sign language interpreters, the following is attached:

1. Standard Practice Paper from the national Registry of Interpreters for the Deaf (3 pages)

2. US DOL BLS Reference (7 pages):

Occupational Outlook Handbook, 2010-11 Edition

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Fashion designers

Floral designers

Graphic designers http://www.bls.gov/oco/ocos272.htm http://www.bls.gov/oco/ocos272.htm http://www.bls.gov/oco/ocos053.htm http://www.bls.gov/oco/ocos114.htm http://www.bls.gov/oco/ocos065.htm http://www.bls.gov/oco/ocos065.htm http://www.bls.gov/oco/ocos269.htm http://www.bls.gov/oco/ocos068.htm http://www.bls.gov/oco/ocos316.htm http://www.bls.gov/oco/ocos153.htm http://www.bls.gov/oco/ocos289.htm http://www.bls.gov/oco/ocos289.htm http://www.bls.gov/oco/ocos066.htm http://www.bls.gov/oco/ocos317.htm http://www.bls.gov/oco/ocos317.htm http://www.bls.gov/oco/ocos318.htm http://www.bls.gov/oco/ocos318.htm http://www.bls.gov/oco/ocos064.htm http://www.bls.gov/oco/ocos070.htm http://www.bls.gov/oco/ocos358.htm http://www.bls.gov/oco/ocos092.htm http://www.bls.gov/oco/ocos290.htm http://www.bls.gov/oco/ocos291.htm http://www.bls.gov/oco/ocos292.htm http://www.bls.gov/oco/ocos090.htm

Interior designers

Entertainers and performers, sports and related occupations

Actors, producers, and directors

Athletes, coaches, umpires, and related workers

Dancers and choreographers

Musicians, singers, and related workers

Media and communications-related occupations

Announcers

Authors, writers, and editors

Broadcast and sound engineering technicians and radio operators

Interpreters and translators

News analysts, reporters, and correspondents

Photographers

Public relations specialists

Technical writers

Television, video, and motion picture camera operators and editors

Health diagnosing and treating practitioners

Audiologists

Chiropractors

Dentists

Dietitians and nutritionists

Occupational therapists

Optometrists http://www.bls.gov/oco/ocos293.htm http://www.bls.gov/oco/ocos093.htm http://www.bls.gov/oco/ocos251.htm http://www.bls.gov/oco/ocos251.htm http://www.bls.gov/oco/ocos094.htm http://www.bls.gov/oco/ocos095.htm http://www.bls.gov/oco/ocos087.htm http://www.bls.gov/oco/ocos320.htm http://www.bls.gov/oco/ocos109.htm http://www.bls.gov/oco/ocos109.htm http://www.bls.gov/oco/ocos175.htm http://www.bls.gov/oco/ocos088.htm http://www.bls.gov/oco/ocos088.htm http://www.bls.gov/oco/ocos264.htm http://www.bls.gov/oco/ocos086.htm http://www.bls.gov/oco/ocos319.htm http://www.bls.gov/oco/ocos091.htm http://www.bls.gov/oco/ocos091.htm http://www.bls.gov/oco/ocos085.htm http://www.bls.gov/oco/ocos071.htm http://www.bls.gov/oco/ocos072.htm http://www.bls.gov/oco/ocos077.htm http://www.bls.gov/oco/ocos078.htm http://www.bls.gov/oco/ocos073.htm

Pharmacists

Physical therapists

Physician assistants

Physicians and surgeons

Podiatrists

Radiation therapists

Recreational therapists

Registered nurses

Respiratory therapists

Speech-language pathologists

Veterinarians

Health technologists and technicians

Athletic trainers

Cardiovascular technologists and technicians

Clinical laboratory technologists and technicians

Dental hygienists

Diagnostic medical sonographers

Emergency medical technicians and paramedics

Licensed practical and licensed vocational nurses

Medical records and health information technicians

Nuclear medicine technologists

Occupational health and safety http://www.bls.gov/oco/ocos079.htm http://www.bls.gov/oco/ocos080.htm http://www.bls.gov/oco/ocos081.htm http://www.bls.gov/oco/ocos074.htm http://www.bls.gov/oco/ocos075.htm http://www.bls.gov/oco/ocos299.htm http://www.bls.gov/oco/ocos082.htm http://www.bls.gov/oco/ocos083.htm http://www.bls.gov/oco/ocos321.htm http://www.bls.gov/oco/ocos099.htm http://www.bls.gov/oco/ocos076.htm http://www.bls.gov/oco/ocos294.htm http://www.bls.gov/oco/ocos100.htm http://www.bls.gov/oco/ocos100.htm http://www.bls.gov/oco/ocos096.htm http://www.bls.gov/oco/ocos096.htm http://www.bls.gov/oco/ocos097.htm http://www.bls.gov/oco/ocos273.htm http://www.bls.gov/oco/ocos101.htm http://www.bls.gov/oco/ocos101.htm http://www.bls.gov/oco/ocos102.htm http://www.bls.gov/oco/ocos102.htm http://www.bls.gov/oco/ocos103.htm http://www.bls.gov/oco/ocos103.htm http://www.bls.gov/oco/ocos104.htm http://www.bls.gov/oco/ocos323.htm specialists

Occupational health and safety technicians

Opticians, dispensing

Pharmacy technicians and aides

Radiologic technologists and technicians

Surgical technologists

Veterinary technologists and technicians

Other professional and related occupations

Epidemiologists

Respiratory therapy technicians

Last Modified Date: March 11, 2010

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Document in Support of Industry Standards- Sample Rates and Polices:

RATE SCHEDULE FOR CUSTOMERS

Customers are charged for services rendered using these definitions and policies.

1. Hourly rates for assignments are charged on a portal-to-portal basis (maximum of one hour travel each way within metro Atlanta) plus mileage at the IRS established rate, in place when the request is accepted, with a two-hour minimum/assignment.

2. For assignments over two hours in length, or of an extremely difficult nature, for depositions, or for Deaf-

Blind assignments at least two interpreters are required. For all-day assignments, lunchtime is a working lunch. For luncheons or banquets, the interpreter(s) will also be served.

3. Cancellation Policy: if all or part of your assignment is cancelled with less than 24 hours notice, the full scheduled interpreting hours will be charged; if cancelled on arrival, travel time one way and mileage round trip are also charged. If the assignment is more than one day in length (consecutive days), and cancelled with less than 24 hours notice, the total of scheduled hours with less than 24 hours notice will be charged, the scheduled hours with 24-48 hours notice will be charged at 50%, and the scheduled hours with more than 48 hours notice will not be charged.

Regular Assignments:

A. Scheduled to occur more than 24 hours in advance of request

B. Will occur between 8 am and 6 pm, Monday through Friday

General Assignments:

Are not medical, mental health, or legal related; involve a person (and/or their immediate family members) in employment, entertainment, academic, political, religious, community and other such settings.

Medical or Mental Health Related Assignments:

Involve any medical or mental health patient (and/or their immediate family members) with their medical or mental health care provider(s), taking place in a hospital, doctor's office, residential or day treatment center, etc.

Legal Related Assignments:

Involve any person (and/or their immediate family members) participating in a legal or court related procedure as a defendant, witness, suspect, litigant, etc. with legal counsel, police, district attorney, judge, etc. taking place in a courtroom, lawyer's office, police station, jail, etc.

REGULAR ASSIGNMENTS

General ………………………………………... /hour

Medical or Mental Health Related …………. /hour

Legal – Related ………………………………. /hour

Added Differentials:

After - Hours Assignments:

Occur between 6 pm and 8 am, Monday through Thursday, or 6 pm Friday to 8 am Monday, or on a state or national holiday.

Emergency Assignments:

All assignments, including general, medical, mental health, legal, as well as any after-hours assignments, which are scheduled to occur in less than 24 hours of the time of the request.

After - Hours and Emergency:

When both criteria above apply to any assignment category, both differentials are added to the hourly rate.

ADDED DIFFERENTIALS:

After - Hours............................ add....... / hour to hourly rate above

Emergency.............................. add........ / hour to hourly rate above

Rates subject to annual increases. Late fee of 1.5%, compounded monthly, is applied to due balance.

For illustrative purposes, this attachment from the RFP is also included: