Telmate Resp Securus Appeal

STATE OF GEORGIA

DEPARTMENT OF ADMINISTRATIVE SERVICES

In the Matter of:

SECURUS TECHNOLOGIES, INC.,

Protestor, v.

DEPARTMENT OF ADMINISTRATIVE

SERVICES,

Agency.

DOAS FILE NO.

RFP No. 46700-GDC0000609

TELMATE, LLC’S RESPONSE TO SECURUS TECHNOLOGIES, INC.’S

REQUEST FOR FORMAL REVIEW/APPEAL OF PROTEST DECISION

Telmate, LLC (“Telmate”) responds to Securus Technologies, Inc.’s (“Securus”)

Request for Review/Appeal of Protest Decision, as follows:

I. INTRODUCTION

The purpose of the protest process is to ensure that procurements are carried out in a proper manner by the parties involved in the procurement. It is not to substitute [DOAS’s] judgment, or in this case the judgment of [the protestor], for that of the evaluation team when an unsuccessful bidder feels as though its proposal was not scored high enough.

See Telmate’s Response to Securus’s Protest (“Telmate Response”), p 1, Ex. A (May 9, 2014 Decision in eRFP-40800-14 by DOAS Deputy Commissioner Lowe).

Securus is attempting to use the protest process to ask DOAS to reject the considered judgment of the agency that has managed the inmate telephone contract for a dozen years, developed the requirements for the RFP, and evaluated the proposals received in response to the RFP. This is not what the protest process was designed to accomplish.

The Georgia Department of Corrections (“GDC”) carefully evaluated the proposals in accordance with evaluation criteria that were rationally related to GDC’s goals and the purpose of the procurement. That evaluation yielded a well-documented finding that Telmate had the superior proposal that was the most advantageous to the State. As shown in detail below, Securus has provided no basis to upend that evaluation, and the appeal must therefore be denied.

II. SUBSTANTIVE GROUNDS FOR APPEAL

A. THE DEPUTY COMMISSIONER DID NOT ERR IN UPHOLDING GDC’S

EVALUATION OF THE COST PROPOSALS.

1. GDC’s selection of the financial scoring methodology and execution of that methodology was a legitimate exercise of agency discretion.

GDC exercised its reasoned judgment to allocate 350 evaluation points to cost factors and 650 evaluation points to technical factors. This was stated expressly in the RFP. When it evaluated the proposals, GDC further broke down the 350 cost points as follows:

Cost Component Maximum Points Commission Rate 150 Financial Incentive 125

MMG 75

TOTAL 350

GDC correctly applied those point allocations as reflected in its financial analysis of the proposals, excerpted below:

TELMATE

SECURUS

Commission Rate 82.0% 85.1% Est. Annual Commission $14,056,025 $14,587,411 Financial Incentive $3,000,000 $2,000,000 Annualized MMG $26,100,000 $32,400,000 Total Estimated Commission + Financial

$17,056,025 $16,587,411

Total Guaranteed Revenue (MMG + Financial

$29,100,000 $34,400,000

As shown in more detail below, DOAS should not disturb GDC’s evaluation of the financial proposals because, contrary to Securus’s claims: (1) GDC was not required to disclose evaluation subfactors; and (2) GDC acted reasonably in establishing the financial evaluation methodology and it correctly applied that methodology to the submitted proposals.

- 2 -

a. No disclosure of evaluation sub-factors was required.

Securus takes issue with the fact that GDC did not disclose to the offerors the 150/125/75 cost-point allocation, making the paranoid and unsupported claim that this “secret” cost scoring methodology “created a situation that reveals a clear potential to become a means of fraud, favoritism, or corruption to the detriment of Georgia taxpayers.” See Securus Appeal, p. 8. GDC’s cost scoring methodology was rationally based and fully consistent with Georgia law and it would not have been appropriate for GDC to reveal the methodology before the proposal deadline. Specifically, the Georgia Procurement Manual directs the state agency to develop a scoring tool and a point allocation formula, but also instructs that, [t]he developed evaluation documents should not be posted as part of the RFP; however, at a minimum, the RFP must state the relative importance of cost and technical factors by stating the total number of points assigned to the technical proposal and the total number of points assigned to the cost proposal. Ideally, the evaluation criteria should be finalized prior to the posting of the RFP, however, at a minimum, the evaluation criteria must be finalized prior to the closing date of the RFP.

See Georgia Procurement Manual, § 3.5.8.3 (emphasis added). See also Matter of:

Technical Services Corporation, B-214634, 64 Comp. Gen. 245 (1985) (“While agencies are required to identify the major evaluation factors applicable to a procurement, they need not explicitly identify the various aspects of each which may be taken into account, provided that such aspects are reasonably related to the stated criteria.”)

Thus, it is clear that GDC was not required to reveal the cost evaluation subfactors. Securus offers no support for its contrary position. Even if GDC should have revealed this information to the offerors, Securus had an obligation to raise that argument before it submitted its proposal. That ship has sailed. See Georgia Procurement Manual, § 6.5.4 (Failure to file a protest of solicitation terms at least two days prior to the RFP closing date may result in the supplier’s voluntary relinquishment of such grounds).

b. GDC’s scoring methodology was reasonable and it correctly applied that methodology.

Securus also challenges the manner in which GDC allocated the cost points, claiming that GDC awarded too many points for the Estimated Annual Commission (150) and Financial Incentive (125), and not enough points for the Minimum Monthly Guarantee (75). Again, Securus offers no authority and has no basis to challenge the virtually unlimited authority GDC has in this area.

- 3 -

Securus’s argument that GDC allocated too many points to the Estimated Annual Commission subfactor is perplexing at best, because Securus received all 150 points in that category. Less surprising is Securus’s claim that GDC over-emphasized the Financial Incentive with 125 points, because Securus only offered a $2 million incentive in contrast to the $3 million offered by Telmate and GTL. In weighting this factor as it did, GDC perhaps considered the fact that while the Financial Incentive may only represent 10% of the total financial benefit to the State, it is nevertheless a guaranteed 10%. See Telmate Response, p. 4, Ex. D (Telmate Proposal, Telmate’s February 24, 2014 BAFO). That a state agency subject to the budgetary unpredictability would prefer a bird in the hand over two in the bush is hardly surprising and eminently reasonable.

Another potential scenario is that the GDC developed the cost scoring methodology before bids were submitted and, thus, could not have anticipated that the financial incentives would represent such a small part of the overall cost proposals. The offerors could have offered lower commission rates and MMGs but higher financial incentives. Hindsight is 20/20. To the extent Securus contends that GDC should have gone back to tweak the scoring methodology after receiving the bids, this was expressly prohibited. Section 3.5.8.3 of the Georgia Procurement Manual required GDC to finalize the scoring matrix before the RFP closed. This is sound policy because it reduces the risk that a state agency, upon comparison of several competing bids, would tailor its cost scoring methodology to favor one preferred bidder.

GDC’s scoring methodology was rationally related to GDC’s legitimate objectives, notwithstanding Securus’s opinion that GDC could have done a better job in light of after-acquired information (namely the bids themselves). Securus has not identified any rule that would require GDC to award all 350 cost points to the offeror with the highest Total Guaranteed Commission (including Financial Incentive). As previously stated, Section 3.5.8.3 of the Georgia Procurement Manual prohibits GDC from revising its pre-determined scoring methodology after receipt of the bids, even if it turns out that the Total Guaranteed Commission (MMG plus Financial Incentive) appears to be a more accurate yardstick.

The selection of a scoring methodology is a classic exercise of agency discretion which should not be disturbed “unless fraud or corruption is shown or the power or discretion is being manifestly abused to the oppression of the citizen.” Nelson v.

Spalding Cnty., 249 Ga. 334, 336, 290 S.E.2d 915 (1982). The Deputy Commissioner deferred to GDC’s vast experience in developing the point allocations, and she was correct in doing so. See Protest Decision, p. 2, n.2.

2. The Deputy Commissioner did not err in finding that GDC properly applied the cost evaluation criteria.

Securus claims that because the State will allegedly receive more revenue from

- 4 -

Securus “under any possible hypothetical call projection scenario,” GDC must have abused its discretion in awarding Telmate more cost points than Securus. This overly simplistic argument misses the mark.

As the Deputy Commissioner noted, GDC had the option of scoring cost proposals on an overall basis or on a category by category basis relative to other proposals. See Protest Decision, p. 2 (quoting RFP, § 6.3.1). GDC exercised its considerable discretion to choose the latter approach. While Securus claims (incorrectly, as explained above) that GDC should have allocated the cost points differently, it does not claim that GDC miscalculated the values within those categories. Thus, there is no basis to challenge the evaluation.

The Deputy Commissioner also rightly questioned Securus’s claim that it would have generated more revenue under any scenario. She noted that the cost proposal evaluation was based upon call projections that were derived from historical data and, thus, did not “factor in the variable component of a vendor’s efforts in increasing call volume.” See Protest Decision, p. 2, n.1. Securus dismisses this premise as “absurd,” but that is not the case. See Securus Appeal, p. 5. Telmate provided GDC with its own call projections, see Telmate BAFO Clarification, p. 1, attached as Exhibit 1, and it explained in its proposal how its reduced rates, additional billing options, and Preview Plus program could be expected to increase call volumes. See, e.g., Telmate Response, Ex. G (Telmate Additional Scored Response), p. 104. Thus, contrary to Securus’s suggestion, there is a scenario under which Telmate could generate more revenue than Securus.

But even if that were not the case, the Deputy Commissioner correctly noted that GDC’s scoring methodology is held to a standard of reasonableness, not perfection. See Protest Decision, p. 3. See also O.C.G.A. § 50-5-67(a)(7) (stating only that price must be taken into consideration). GDC could not have developed a “perfect” methodology until it had an opportunity to compare the various bids and this is expressly forbidden by Section 6.3.1 of the Georgia Procurement Manual, which requires the methodology to be finalized before bid submissions.

In summary, GDC’s scoring methodology is rationally related to the objectives of the procurement and is therefore not subject to challenge. Because Securus does not contend that GDC applied that methodology incorrectly, the cost evaluation must stand.

3. Telmate did not offer multiple commission rates.

Contrary to Securus’s claims, Telmate strictly adhered to the RFP requirement that a single commission rate be paid on all gross revenue as provided by RFP, Attachment R, § 1.1.2. Telmate’s commission rate was 82% on all gross revenue as defined in the RFP.

See Telmate Response, p. 5, Ex. D (Telmate’s February 24, 2014 BAFO). Telmate affirmed this many times over that it would pay the commission on all gross revenue as defined in the RFP. See, e.g., id. at p. 5, Ex. E (Telmate Proposal, Attachment O), § 1.1

- 5 -and Ex. F (Telmate Proposal, Attachment R), §§ 1.1, 1.1.2.

Securus focuses on a single statement contained in Section 1.8 of Telmate’s Additional Scored Response that discusses to a 40% commission rate for a product that is still under development and is not a part of this RFP. In that section, Telmate merely informed GDC that this product would be coming on line in the near future, stating:

Additionally, Telmate is also in the final stages of implementing Telmate Mobile Bill which will allow Friends and Family whom are on a non prepaid mobile account to have calls billed directly to their mobile phone. This system will allow the applicable billable charge to be placed on the end users bill without the need of a credit card to accept the call. This billing product does come at a reduced commission of 40% of at [sic] the applicable charge however easily allows for communication of inmates with their friends and family no matter where they reside.

Id. at p. 5, Ex. G (Telmate Proposal, Additional Scored Response), pp. 73-74 (Attachment L, § 1.8).

Telmate could not have made it any clearer that Mobile Bill was an option that went above and beyond the RFP specifications that GDC would have to affirmatively select before the 40% commission rate would be triggered. The RFP specifications do not mandate, or even contemplate, direct billing to the called party’s mobile phone number. See RFP, Attachment J, § 1.2 (“The ITS shall be configured to process all or any combination of the following bill types, without limitation: collect, free, pre-paid collect, debit and/or speed dial.”) The Deputy Commissioner was therefore correct in her finding that the 40% commission rate applied to an optional offering that in no way represents a deviation from the RFP requirements. See Protest Decision, p. 9.

B. THE DEPUTY COMMISSIONER DID NOT ERR IN UPHOLDING THE

STATE’S EVALUATION OF THE TECHNICAL PROPOSALS.

1. The Deputy Commissioner properly found that Telmate’s proposal did not materially deviate from RFP requirements.

As with the cost factors and evaluation, Securus is asking DOAS to discard GDC’s technical evaluation, even though GDC has managed the Inmate Telephone Service (“ITS”) contract for twelve years and developed the RFP requirements based upon that experience. GDC is therefore in a much better position than DOAS to determine its needs and evaluate the competing proposals, and it has broad discretion under the law to do so.

- 6 -

In arguing that Telmate’s proposal fails to comply with the RFP’s requirements, Securus seems to forget that a proposal must only “materially conform” to those requirements. GDC “is permitted to waive minor informalities in the supplier’s response as well as certain administrative requirements, if doing so is in the best interest of the state.” See Georgia Procurement Manual, § 5.6.2.1. The “best interest of the state” is synonymous with best value. R.D. Brown Contractors v. Bd. of Educ. of Columbia Cnty., 280 Ga. 210, 626 S.E.2d 471 (2006) (public bidding “was designed to protect the public coffers from waste and to assure that taxpayers receive quality work and goods for the lowest possible price.”). See also Amdahl Corp. v. DOAS, 260 Ga. 690, 695, 398 S.E.2d 540 (1990) (Even “in lowest-responsible-bidder cases [of which this is not], DOAS has discretion regarding which bidder is the ‘lowest responsible bidder’ and should be awarded the contract.”); 1974 Op. Atty. Gen. Ga. 74-16 (stating that DOAS has “considerable discretion” when evaluating proposals.)

Importantly, it is GDC – and not Securus or DOAS – that must “determine whether the deviation is material.” See Georgia Procurement Manual, § 5.6.2.1. This makes perfect sense because GDC is in a much better position to police compliance with its own specifications. R.D. Brown, 280 Ga. at 213-14 (“As the genesis of the specification concerning a list of subcontractors is solely by the Board, we see no reason why the Board could not determine that it was not a material requirement, but rather a technicality that could be waived.”) If the deviation is deemed by GDC to be material, the proposal must be rejected, but if the deviation is deemed to be immaterial, the proposal must be scored as if no deviation existed at all. See Georgia Procurement Manual, § 5.6.2.1 (“An immaterial deviation will be processed as if no deviation had occurred.” (Emphasis added.)).

As the above rules make clear, GDC has substantial discretion to distinguish between a material and an immaterial deviation and to excuse the latter. To the extent there were any deviations in Telmate’s proposal, they were properly found to be immaterial and were waived in the best interest of the state. Each alleged deviation is addressed in turn below.

a. The Deputy Commissioner did not err in finding that Telmate’s proposal did not materially deviate from the RFP’s liquidated damages provision.

Attachment O, Section 1 of the RFP addressed the gross revenue on which commissions were to be due from the selected vendor to GDC. Section 1.3 required that “[a]ny additional fees to be added to the called party’s bill or paid by the calling or called party . . . for inmate telephone calls from the Facilities must be approved by GDC prior to implementation.” Telmate responded “[r]ead, agree, and will comply” in response to Section 1.3. See Telmate Response, p. 7, Ex. E (Telmate Proposal, Attachment O), p. 2 (§ 1.3).

- 7 -

Section 1.4 then provided for liquidated damages in the event such fees were added to a called party’s bill without GDC’s express written consent, providing for “a fine of $350.00 per day from the date the additional charges/fees were first added through the date the charges/fees were discontinued.” In response to this provision, Telmate indicated “[r]ead and do not comply,” explaining:

Any charges/fees added to a called party’s bill without prior discussion with GDC would be unintentional and without malice. Telmate agrees to a fine of $350 per day upon notification of such error up to the date the changes/fees [sic] are discontinued.

See Telmate Response, p. 7, Ex. E (Telmate Proposal, Attachment O), p. 2 (§ 1.4).

Telmate responded in this manner because it was unwilling to pay liquidated damages for unauthorized charges placed upon a bill by a local exchange provider over whom Telmate has no control.

Telmate’s “[r]ead and do not comply” response was contemplated and expressly permitted under the instructions contained at the beginning of Attachment O:

If Contractor is in full compliance with the section or numbered item, Contractor’s response shall be, “Read, agree and will comply.” Otherwise, Contractor’s response shall be, “Read and do not comply” and shall include a detailed explanation of non-compliance.

Id., p. 1. Telmate followed those instructions to the letter by objecting to GDC’s liquidated damages provision and by proposing alternative terms. Securus’s claim that “Telmate can freely charge unauthorized fees with impunity and without penalty” is blatantly false. See Securus Appeal, p. 12. Telmate expressly agreed to remove all “fees, charges, penalties, etc. . . . that were not specified as allowable in the RFP.” See Telmate Response, p. 7, Ex. H (Telmate Response to Request for Clarification No. 3), p. 2.

Thus, the only deviation is Telmate’s request that liquidated damages be imposed from the date of discovery of any unauthorized charge. GDC had broad discretion to determine that its interests were adequately protected under this counterproposal. As the Deputy Commissioner concluded, this was an immaterial deviation from the terms of the RFP because unauthorized charges would be discovered by GDC within approximately 24 hours, thus virtually eliminating the lag between placement and discovery of the unauthorized charge. See Protest Decision, p. 4. Importantly, the evaluation team penalized Telmate for this deviation, awarding Telmate “adequate” and “marginal” scores, in contrast to the “adequate” scores given to Securus. See Master Technical Evaluation (Revalidated), Telmate Sheet, Row 345. This confirms that the process worked just as it should have.

- 8 -

b. Telmate was responsive to the RFP’s call forwarding/three-way calling, call acceptance/interruption, automatic phone tree fraud prevention, and paid-debit application requirements.

In this section of its Appeal, Securus contends that because Telmate responded to several mandatory scored questions with “[r]ead, agree and will comply,” but did not provide any additional information, Telmate should have been deemed non-responsive.

In several instances, Telmate did provide the supplemental information. In the remaining instances, the Deputy Commissioner correctly found that Telmate was not required to provide supplementation. Each requirement is discussed in turn below.

(i) Call Forwarding/Three-Way Calling Prevention.

Section 4.7 of Attachment J to the RFP reads:

The ITS, upon detection of a three-way call, forwarded call, conference call, etc. shall be able to flag the call immediately.

If so required by GDC, the ITS shall have the capability to also terminate the detected three-way call.

See RFP, Attachment J, § 4.7.

This section sets forth the requirement and asks the offeror whether or not it will comply. Telmate responded “[r]ead, agree and will comply,” correctly indicating that it had the ability to detect, flag, and (where necessary) terminate the specified calls. See Telmate Response, p. 8, Ex. I (Telmate Proposal, Attachment J), p. 15 (§ 4.7). Sections

4.7.1 and 4.7.2 asked follow up questions that required further explanation from the offeror. See id. Telmate answered the questions set forth in Sections 4.7, 4.7.1, & 4.7.2 in its Additional Scored Response. See Telmate Response, p. 8, Ex. G (Telmate Additional Scored Response), p. 49. Thus, Telmate provided complete responses to every question in this section (including subsections).

Relatedly, Section 4.8 of the RFP asked each offeror to “[i]ndicate whether the ITS is capable of detecting and terminating Remote Call Forwarding (“RCF”) calls,” and if it is unable to detect RCF calls, to provide the status of research and development in that regard. See Telmate Response, p. 8, Ex. I (Telmate Proposal, Attachment J), pp. 15- 16 (§ 4.8). Telmate responded “[r]ead, agree and will comply,” indicating again that it was capable of detecting and terminating RCF calls. See id.

In a supplemental response to Section 4.7.2, Telmate elaborated that it “employs variable silence, ringing and DTMF detection to monitor three-way calling, conference calling and call forwarding to flag calls suspected of 3-way calling,” thus answering the question posed in Section 4.8. See Telmate Response, p. 9, Ex. I (Telmate Proposal,

- 9 -

Attachment J), p. 49 (§ 4.7.2) (emphasis added). Securus’s argument that Telmate failed to address whether it can detect and terminate RCF calls is wholly lacking in merit.

(ii) Call Acceptance/Interruption.

The RFP asked offerors to provide information about the call acceptance recording that would be played to the called party and the called party’s ability to interrupt that recording. Specifically, Attachment J, Section 1.11.4 read as follows:

Contractor shall indicate the number of times the ITS plays the call acceptance information to the called party and whether the called party may interrupt the prompts by selecting a digit on the keypad. Contractor shall provide a script of the call acceptance information provided to the called party.

Telmate responded “[r]ead, agree and will comply.” See Telmate Response, p. 10, Ex. I (Telmate Proposal, Attachment J), p. 4 (§ 1.11.4). This is all that was required of Telmate, as the Deputy Commissioner found. See Protest Decision, pp. 4-5. The instructions to the Mandatory Scored Questions clearly stated that “[s]everal highlighted sections and numbered items of this RFP require additional explanation by Contractor.” See Telmate Response, Ex. I (Telmate Proposal, Attachment J), p. 1 (emphasis added). The GDC did not highlight Section 1.11.4, which proves that a “read, agree and will comply” response was all that was required. As the Deputy Commissioner found, GDC’s intent was confirmed in the offerors’ conference when it stated that certain other questions “could be considered to be ‘forward looking’ and that the successful offeror would be able to provide certain specified information at a future time upon Notice of Award.” See Protest Decision, p. 4. The Deputy Commissioner’s interpretation is fully consistent with the RFP, which defines “Contractor” as the “Successful Offeror/Awarded Supplier,” which is in contrast to the definition of “Offeror,” which is “a supplier responding to this RFP.” See RFP, § 1.6.

In response, Securus argues that GDC, in its responses to bidders’ questions, changed the rules by requiring the bidders to submit additional information even when not requested via highlighting of the Mandatory Scored Question. See Securus Appeal,

pp. 15-16 (citing to Securus Ex. 5, pp. 2-3). In rejecting that argument, the Deputy Commissioner noted that the Q&A document states on its face that it is “intended for informational purposes only” and that “[a]ny changes to the RFP must occur through a published addendum.” See Protest Decision, p. 7. Because there was no published addendum that required answers to non-highlighted Mandatory Scored Questions, the Deputy Commissioner correctly found that GDC’s answers to bidders’ questions could not override the provisions of the RFP. See Protest Decision, pp. 4-5. Her decision is consistent with the basic rule that the agency is bound by the terms of the RFP. Amdahl

- 10 -

Corp., 260 Ga. at 695.

In summary, the Deputy Commissioner did not err in finding that Telmate could provide the script after the contract is awarded. Even so, much of the information that Securus claims is lacking was contained elsewhere in Telmate’s proposal. For example, Telmate indicated in it would comply with Section 1.9 of Attachment J, which required that each call be preceded by an automated message advising the called party that the call was coming from a correctional facility, from a specific inmate, and that it may be monitored and recorded. See Telmate Response, p. 11, Ex. I (Telmate Proposal, Attachment J), p. 3 (§§ 1.9 – 1.9.3). In its Additional Scored Response, Telmate provided more information about its system of requiring positive call acceptance. See Telmate Response, p. 11, Ex. G (Telmate Additional Scored Response), p. 33. Telmate explained that, among other things, its system isolates the caller and called party so that they cannot communicate at any point prior to acceptance of the call. Id. It does so by muting the inmate’s keypad, rendering it useless until the recording is finished and the called party accepts the call. Id. Even after the called party accepts, they are required to complete an enrollment and verification process before they are permitted to actually speak to the inmate calling. Id.

Telmate provided all information required under Section 1.11.4.

(iii) Automated Phone Tree Fraud Prevention.

Attachment J, Section 1.15 of the RFP read:

Contractor shall provide information on any security configurations available within the ITS to prevent fraud relative to automated phone trees (e.g., inmates pressing digits and getting a live operator, etc.).

See RFP, Attachment J, § 1.15.

Telmate responded “[r]ead, agree and will comply.” GDC did not shade that question, so Telmate was under no obligation to provide supplemental information with its offer. The obligation to provide the requested information was only triggered by an award to the “Contractor.” See RFP, § 1.6. See also Telmate Response, p. 10, Ex. M (Transcript of Bidders’/Offerors’ Pre-Bid Conference (Aug. 1, 2013)), p. 40. Thus, Telmate’s response was appropriate and complete.

(iv) Paid/debit Application.

Attachment L to the RFP set forth certain requirements for the contractor’s use of a pre-paid/debit application. Securus challenges Telmate’s response to four sub-parts.

Section 1.3 provided that offerors “shall provide” inmates with balance information and

- 11 -

“shall indicate” whether called parties are able to set up and view pre-paid accounts online. Section 1.4 provided that each offeror “shall describe its process for accommodating real-time refunds.” Section 1.11 specified that each offeror “shall require a minimum amount of $25.00 for a pre-paid collect account to be opened/funded.” Finally, Section 1.15 provided “[c]ontractor shall provide the minimum amount required on a pre-paid collect account to attempt a call.”

In response to each of these provisions, Telmate appropriately responded “[r]ead, agree and will comply.” See Telmate Response, p. 19, Ex. T (Telmate Proposal, Attachment L). As discussed above, GDC did not request any supplemental information under these sections because it did not highlight them. It was enough that the offeror confirm that it has the capability to meet the specification and that it will be in a position to provide the information upon award. As was the case with the other RFP sections cited by Securus throughout its protest, Telmate was responsive here as well.

c. The Deputy Commissioner did not err in finding that Telmate substantially complied with the subcontractor disclosure requirements and was, therefore, responsive.

Securus seizes upon an obvious – and innocent – inconsistency in Telmate’s proposal to accuse Telmate of lying to GDC about its plans to use subcontractors. As discussed in more detail below, the Deputy Commissioner properly found that this was, at most, an immaterial defect in Telmate’s proposal. See Protest Decision, pp. 5-6.

In response to Attachment G, Telmate said it would fulfill all work requirements from within its organization. See Telmate Response, p. 9, Ex. J (Telmate Proposal, Attachment G), p. 2 (§ 1.3). In response to Attachment N, Section 1.6, however, Telmate identified Plant Communications and Mark Counts as resources who would be providing services under the contract. See Telmate Response, pp. 9-10, Ex. K (Telmate Proposal, Attachment N), p. 2 (§ 1.6); id. at p. 10, Ex. G (Telmate Additional Scored Response), p.

95 (Attachment N, § 1.6). Telmate later clarified that it intended to hire four full-time site administrators, twelve full-time technicians, and four backup service companies. See Telmate Response, p. 10, Ex. L (Telmate Supplemental Request No. 4 (1/15/14)), p. 2.

If Telmate had wanted to mislead GDC, it would not have mentioned Plant Communications or Mark Counts, but it had no reason to do so since the RFP contemplated and expressly permitted the use of subcontractors. See, e.g., RFP, Attachment F, Question M5. This was, quite obviously, an innocent mistake. Moreover, GDC made clear on several occasions that names and addresses of technicians could be provided after award of the contract, eliminating any argument that this information was material. See Telmate Response, p. 10, Ex. M (Transcript of Bidders’/Offerors’ Pre-Bid Conference (Aug. 1, 2013)), p. 46 (“We anticipate, actually, because you have to service the entire state and all facilities that if you don’t have the locations throughout the state

- 12 -you will need to hire some technicians, and so, potentially, that would come after award.”) See also id. at Ex. N (GDC Response to Offeror Questions & Answers (July 16, 2013)), p. 22 (Attachment N, § 1.6) (“If Contractor is hiring or subcontracting technicians to maintain service and perform any work as the result of the contract award, this information can be provided after the award.”).

Because Telmate was not even required to provide precise names, addresses, and resumes at this stage of the procurement, the fact that it identified Plant Communications and Mark Counts in response to one section but not another is at most an immaterial deviation that was properly waived by GDC. R.D. Brown, 280 Ga. at 214 (winning bidder’s failure to include list of subcontractors with its bid as expressly required by RFP was “a technicality” that was properly waived).

d. The Deputy Commissioner did not err in finding that Telmate satisfied the RFP’s reference requirement.

In response to Attachment G, § 1.4 of the RFP, Telmate provided the required three references. See Telmate Response, p. 11, Ex. J (Telmate Proposal, Attachment G),

p. 2 (§ 1.4) and Ex. G (Telmate Additional Scored Response), pp. 4-13. Securus contends that the services provided by Telmate to these facilities were not comparable to the services sought under the RFP, and argues that Telmate’s response was therefore non-responsive. The Deputy Commissioner was correct in rejecting Securus’s attempt to substitute its own judgment for that of GDC. See Protest Decision, p. 7.

Additionally, Securus’s argument fails because it reads requirements into the RFP that do not exist. The RFP’s call for references read as follows:

Contractor shall provide three (3) customer references where Contractor provides the equipment and services comparable to the requirements in this RFP as well as comparable in scope as requested by GDC. The references provided must be currently under contract with Contractor and have been operating under that contract for at least 1 year. Contractor shall include the following information for each reference:

facility name, facility address, contact name, contact title, telephone number and email address, ADP, total number of completed calls each month, contract effective date and number of inmate telephones. Such contact person provided for each of the references must be the individual who utilizes Contractor’s software application.

The references may be contacted at any time during this RFP process.

- 13 -

See Telmate Response, p. 12, Ex. J (Telmate Proposal, Attachment G), p. 2 (§ 1.4).

Telmate provided three references and all the required information for each reference, demonstrating that it was fully capable of providing the type of services sought under the

RFP.

Securus makes a hypocritical argument that Telmate’s references were improper because the average daily population (“ADP”) of the identified entities was smaller than that of GDC. The RFP did not require that the references have the same ADP as GDC.

In fact, the customer references section of the RFP initially required that services provided for the vendor’s references be comparable “in size and scope,” but was amended to remove the word “size” because “it caused confusion.” See Telmate Response, p. 12, Ex. M (Transcript of Bidders’/Offerors’ Pre-Bid Conference (Aug. 1, 2013)), p. 34. If the RFP had included this requirement, Securus would likewise have been unable to satisfy it, as the highest ADP of Securus’s three references (32,000) is approximately half the population of GDC’s facilities. See RFP, § 1.1.

Securus’s argument about the ADP of Telmate’s other customers is misguided for another reason. Telmate’s competitors use traditional switchboard calling technologies that segment calls based on the facility from which they are made. Telmate, on the other hand, is not merely a communications company, but a technology company, so it uses a more modern, unified infrastructure for all of its facilities. Once a call is made from any correctional facility and enters the Telmate system, it is no longer relevant what facility it was made from because Telmate’s system does not use facility-based technology to process those calls. See Telmate Response, p. 12, Ex. G (Telmate Additional Scored Response), p. 54. GDC has an average of approximately 188,000 completed calls per month, which is almost 10% of the 1.9 million completed calls processed by Telmate during the month of April 2014. See Telmate Response, p. 12, Ex. O (Affidavit of Darren Wallace). Telmate’s technology and infrastructure is currently at only 15% capacity, so it is more than capable of accommodating the 10% increase that GDC contract will represent. See Telmate Response, pp. 12-13, Ex. G (Telmate Additional Scored Response), p. 100. In fact, it would be more challenging for Securus to adapt its fragmented, facility-based switchboard infrastructure to handle that increase.

Telmate chose its references based upon comparable services and technology used for those customers instead of the largely irrelevant metric of inmate bed counts. GDC reviewed Telmate’s submissions and determined, based on the information provided, that Telmate was able to provide the needed services. That determination was well within GDC’s broad discretion to make.

- 14 -

e. The Deputy Commissioner did not err in finding that Telmate satisfied the RFP’s requirements regarding the storage of recordings.

Section 1.9 of Attachment K to the RFP required storage of call recordings online for at least two years and offline for at least two years following the termination of the contract. Telmate responded “[r]ead, agree and will comply.” See Telmate Response,

p. 13, Ex. P (Telmate Proposal, Attachment K), pp. 3-4 (§ 1.9). It elaborated on its answer in its Additional Scored Response, stating that it would store “all call recordings and associated data for the life of the contract, plus any extensions,” and that it would “be happy to arrange an additional extension as desired by Georgia DOC.” See Telmate Response, p. 13, Ex. G (Telmate Additional Scored Response), p. 56 (emphasis added).

Throughout the relevant time period, all stored calls and data “will be made available online, accessible immediately 24 hours a day, 7 days a week.” Id. at p. 57. Telmate further “guarantee[d] that no call recording will ever be lost or unavailable.” Id.

Securus interprets Telmate’s response as indicating that Telmate would not provide storage beyond the termination of the contract. The Deputy Commissioner rightly rejected this argument out of hand:

Since Telmate unequivocally stated that Telmate would comply with the requirement under Attachment K, and Telmate did not qualify its response by only agreeing to “discuss” arranging an additional extension, it does not appear that the evaluation team was unreasonable in its judgment that Telmate’s response complied with the terms of the RFP.

Protest Decision, p. 5.

f. The Deputy Commissioner did not err in rejecting Securus’s argument that Telmate violated the RFP’s prohibition against unauthorized fees.

Securus’s claim that Telmate attempted to charge prohibited fees is, at best, a fundamental misunderstanding of Telmate’s proposal. Telmate’s proposal referenced its optional mobile bill program which allows called parties to choose to have the cost of the call billed directly to their mobile bill. See Telmate Response, p. 13, Ex. G (Telmate Additional Scored Response), p. 38. However, under the terms of the program, some percentage of the cost must be paid directly to the mobile carrier. Id. That is not a fee to the user, nor is it a lower commission rate or additional charge to GDC. It merely has the effect of lowering the total gross revenue, which decreases the net commission to GDC.

In any event, the issue is moot because GDC did not opt for the mobile billing program.

- 15 -

More importantly, Telmate readily agreed to GDC’s request to remove additional fees, as Securus itself acknowledges elsewhere in its Appeal. See Securus Appeal, p. 20;

Exhibit 9 (Telmate Response to Request for Clarification No. 3), p. 2. That being the case, Securus defaults to the claim that GDC somehow acted improperly in seeking clarification from Telmate as to the contents of its proposal and accepting a proposal revision. GDC’s action is expressly sanctioned by O.C.G.A. § 50-5-67(a)(6), which provides in relevant part:

As provided in the request for proposals and under regulations to be developed by the Department of Administrative Services, discussions may be conducted with qualified offerors who submit proposals determined to be reasonably susceptible of being selected for award, for the purpose of clarification to assure full understanding of and responsiveness to the solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and clarification of proposals.

After such clarifications, revisions may be permitted to technical proposals and price proposals prior to award for the purpose of obtaining best and final offers.

O.C.G.A. § 50-5-67(a)(6). See also Georgia Procurement Manual, § 5.6.4 (during evaluation, the state entity may seek written clarification from any supplier to resolve conflicting or ambiguous provisions in the proposal).

The fact that Securus would even raise this argument exposes its hypocrisy since Securus also benefitted from GDC’s decision to allow post-submission proposal revisions. See, e.g., Telmate Response, p. 14, Ex. Q (Securus Supplemental Proposal Response, Attachment R (1/22/14)). See also id. at Ex. R (Securus Request for Clarification No. 2, submitted 11/26/13)) (Securus “clarifies” its response to Attachment J, § 1.30 because the original response “was not related to this requirement.”)

GDC’s requests for clarification show the extraordinary levels to which GDC went to ensure that it fully understood each proposal in order to facilitate an apples-to-apples comparison.

g. The Deputy Commissioner did not err in finding that Telmate met the requirements for traffic detail reports, billing files, and calling detail records.

As discussed in more detail below, Telmate responded to several Mandatory Scored Questions with “[r]ead and do not comply.” Telmate also provided an explanation for why it could not comply with the requirement. In doing so, Telmate complied with the Mandatory Scored Question instructions:

- 16 -

If Contractor is in full compliance with the section or numbered item, Contractor’s response shall be, “read, agree and will comply.” Otherwise, Contractor’s response shall be, “Read and do not comply” and shall include a detailed explanation of non-compliance.

See, e.g., Telmate Response, Ex. G (Mandatory Scored Responses, Attach. O), pp. 12-14.

During the Question and Answer phase, GDC arguably gave bidders a third response option as shown in the highlighted text below:

If the Contractor is in full compliance with the requirement statement, the Contractor needs to indicate its compliance by entering “Read, agree and will comply” in the “Contractor’s Response” Box. If Contractor can comply with the requirement with minor deviation or modification, then Contractor may enter “Read, agree and will comply” with a short phrase indicating how. If a Contractor cannot comply, then Contractor needs to enter “Read and do not comply” plus an explanation of the non-compliance.

Securus Appeal, Ex. 5, pp. 3-4 (emphasis added).

Securus relies upon this Q&A response to argue that Telmate’s “Read and do not comply” responses were admissions that Telmate was materially deviating from the RFP requirements. This is nonsense. As previously stated, in providing those responses to Mandatory Scored Questions, Telmate was following the instructions in the attachments containing the Mandatory Scored Question. It was, by no means, admitting material non-compliance. And to the extent that GDC purported to change the instructions via the Q&A response, that purported change was ineffective because it is not a formal amendment to the RFP. See Protest Decision, p. 7.

Additionally, GDC’s purpose in having the bidders explain why they are unable or unwilling to comply with a requirement is to give GDC enough information to determine whether the noncompliance is material or immaterial. Because the GDC has the discretion to determine whether a deviation is material or immaterial, it must also have the discretion to determine whether it had enough information to make that determination. Securus’s claim that the Q&A response takes that discretion away from GDC defies logic.

The Deputy Commissioner acted appropriately in giving GDC the discretion to determine whether Telmate’s deviations were material or immaterial. Nevertheless, a summary of the specific requirements and Telmate’s responses is contained below to provide additional detail about the technological issues at play.

- 17 -

(i) Traffic Detail Reports.

Attachment O, Section 5 of the RFP called for the offeror to provide monthly traffic detail reports (“TDRs”) to GDC and set forth certain information that GDC desired to be included with the TDRs. Although Telmate responded “[r]ead and do not comply” to six categories of information, each response was based on a single explanation as shown below:

Telmate’s [TDRs] comply with this requirement with one exception: they do not contain commission information.

Commission information is available separately on a 24/7/365 basis from our Web-based TelmateCommand application, and we will issue monthly commission reports as well.

See Telmate Response, pp. 14-15, Ex. E (Telmate Proposal, Attachment O), pp. 12-14 (§§ 5.2.7-5.2.12).

In other words, Telmate agreed to provide all of the information sought, but that commission information would be provided separately from TDRs and was additionally available on-demand. To the extent Telmate’s response could be characterized as a deviation at all from the terms of the RFP, it is the very embodiment of a minor deviation and the evaluation team viewed it as such. See Master Technical Evaluation (Revalidated), Telmate Sheet, Rows 388-39 (noting that the evaluation team is “[o]kay with [Telmate’s] alternative/explanation” for §§ 5.2.7 through 5.2.12.)

(ii) Billing files.

The RFP called for billing files to contain certain specified information, called Exchange Message Interface (“EMI”). See Telmate Response, p. 15, Ex. E (Telmate Proposal, Attachment O), p. 15 (§ 5.5). EMI consists of a series of numerical codes that provide information that may be necessary for billing purposes about the call including the date, time and length of the call, the originating city and state, the facility from which the call originated, the telephone number of the person making and receiving the call, the revenue period, etc. Id. The purpose of EMI is to ensure that all billing files are consistent.

Telmate was fully forthcoming when it indicated that it would provide the majority of the required information with a few minor exceptions as noted by Telmate.

See Telmate Response, p. 15, Ex. E (Telmate Proposal, Attachment O), p. 15 (§ 5.5).

This is because Telmate uses more modern and efficient technology than Securus, GTL, and other traditional switchboard-based communications companies. Accordingly, some of the information identified in the RFP is simply inapplicable to Telmate’s voice-over internet protocol (“VOIP”) platform as explained below:

- 18 -

• Attachment O, Section 5.5.6 called for batch number and ID to be included in the billing file. Telmate’s response made clear that the only reason that information was not included in its billing files was because “[b]atch number and ID are associated with traditional switch-based calling technology and is not required to support Telmate’s VOIP calling platform.

Telmate tracks all calling data to ensure correct billing information is submitted, but this field is not needed to accomplish that.” See Telmate Response, pp. 15-16, Ex. E (Telmate Proposal, Attachment O), p. 16 (§ 5.5.6).

• Specialized calling indicators are likewise necessary only for traditional switch-based calling technology, not a VOIP calling platform. Id. at p. 18 (§ 5.5.25).

• The RFP also asked for certain information regarding billing calls at varying or multiple rates. See RFP, Attachment O, § 5.5. But the proposed rate structure did not call for varying rates, and all calls were to be billed at the same rate, making the multiple rate indicator (Attachment O, § 5.5.12 ), rate periods (Attachment O, § 5.5.28), and rate classes (Attachment O, § 5.5.29) inapplicable. Id., at §§ 5.5.12, 5.5.28, 5.5.29. The multiple rate indicator is likewise not part of Telmate’s VOIP platform, which Telmate made clear in its submission. See Telmate Response, p. 16, Ex. E (Telmate Proposal, Attachment O), pp. 16-17 (§ 5.5.12).

• The RFP asked for “message type” to be included in the billing file, but Telmate explained that this was unnecessary because all of its messages are the same type: “Message Type is associated with our EMI as all of our call records contained within our EMI is Collect Calls therefore multiple message types is not needed.” Id., at § 5.5.22. And where the RFP asked for the tax exempt indicator to be included in billing files, Telmate’s data and billing files by default bill calls as not tax exempt. Id., at § 5.5.27.

• Section 5.5.26 of Attachment O requires the billing file to include a “validation indicator.” When a call is made from a correctional facility, the communications provider must take certain steps to “validate” the called number. Traditionally, providers would look the number up in the line information database (“LIDB”). Telmate has that ability, but it also uses more accurate means of validating called numbers, including mobile lookup, and its Telmate Verified program. See Telmate Response, p. 16, Ex. G (Telmate Additional Scored Response), p. 39. But most importantly, it is unnecessary to include a validation indicator in Telmate’s billing files because every single called number must be validated before the call will be processed. In other words, validation is an integral part of the process

- 19 -and if it cannot be completed, the call will not go through. Id. at p. 5, Ex. E (Telmate Proposal, Attachment O), p. 18 (§ 5.5.25).

• GDC did ask for the billing files to include a rounded bill time indicator, and Telmate responded that was not part of its file, and that all calls are rounded to the next full minute. Id., p. 17 (§ 5.5.18). This is at most a minor deviation that GDC had the discretion to waive.

• Finally, although Telmate’s response initially indicated that it would not comply with Section 5.5.24 (“additional fees and line surcharges”) because those fees and surcharges would be assessed by local exchange carriers, GDC issued a clarification request, to which Telmate responded that it would work with GDC to determine exactly the charges and fees…