with the party seeking to overturn the agency's decision, and that party must prove that
no competent evidence supports the Board's decision. See Bischoff v. Bd. of Trs., 661
A.2d 167, 170 (Me. 1995).
As a general rule, the State is required to award contracts by competitive
bidding. See 5 M.R.S. § 1825-C; Me. Dep't of Admin. & Fin. Serv., 18 554 CNIR 110 §
2(A). Specifically, "[a]ll contracts issued under the review of the Contract Review
Committee which do not qualify as sole source or emergency procurements must be
competitively bid using the Request for Proposal." Id. The RFP must contain "at a
minimum a clear definition (scope) of the project, the evaluation criteria and relative
scoring weights to be applied, the proposal opening date and time, and agency contact
person." Id. at § 2(A)(i).
A contract awarded pursuant to an RFP may be appealed to the panel. Id. at 120
§ 2(B). An "aggrieved person,,3 has the burden of proving by clear and convincing
evidence that the contract award was: (1) in violation of law; (2) contained irregularities
creating fundamental unfairness; or (3) was arbitrary or capricious. Id. at § 3(B); 4(A).
Upon a finding by clear and convincing evidence that one or more of these standards
have been met, the panel is limited to "[i]nvalidat[ing] the contract award decision
under appeaL" Id. at § 4(A)(2). The clear and convincing evidence standard requires
that the aggrieved party convince the panel that the "truth of its factual contentions was
3 An "aggrieved person" means "any person who bids on a contract and who is adversely affected financially, professionally or personally by that contract award decision." Me. Dep't of Admin. & Fin. Serv., 18554 CMR 120 § 1(G). Motorola and GE were the aggrieved parties in the appeal.
3 highly probable, rather than merely more probable than not." Pine Tree Legal
Assistance v. Dep't of Human Servs., 655 A.2d 1260, 1264 (Me. 1995).
Although the panel was divided over the issue of whether the RFP was
"sufficiently clear to put bidders on notice that they could bid a design that varied from
the conceptual design contained in the RFP," a majority of the panel determined that
any lack of clarity in the RFP concerning the design did not rise to the level of an
irregularity creating a fundamental unfairness. (R. at 6672-73.) The panel was
unanimous, however, in determining that "the two tiered method used to score costs
for this RFP created a situation where the cost score could be skewed to the
disadvantage of other bidders." (Id. at 6673.) The panel found that "a bid with a
greater overall contract cost to the State could conceivably prevail over a lower cost bid
with equivalent scores on the technical merits of the proposal." (Id.) Accordingly, the
panel found that this "cost scoring method caused an irregularity creating a
fundamental unfairness," and invalidated the contract award to the petitioner. (Id.)
The petitioner argues that the court should vacate the panel's decision
invalidating the contract award based on the following:
1. the panel wrongfully substituted its judgment for OIT's judgment in concluding that the two-tiered cost scoring formula was an "irregularity";
2. even assuming the cost scoring formula was irregular, its use was harmless error not rising to the level of fundamental fairness; and
3. even assuming the scoring system was irregular and fundamentally unfair, Motorola and GE waived any right to appeal the award on the basis of the cost scoring formula because they never asserted any objection about the formula until after the award was made to petitioner.
(See Pet'r Br. at 3.)
4 1. Whether the panel wrongfully substituted its judgment for OIT's judgment
In the RFP, OIT provided details regarding how bids would be scored. (R. at 130
133.) The bids were scored in two areas: "Technical Submission" and "Contract/ Cost
Submission."4 (Id.) The focus of the panel's decision and this appeal is the cost
submission component of the scoring system. The cost submission component utilized
a two-tiered scoring system with a maximum score available of 150 points. (rd. at 132.)
The RFP awarded 125 points for cost sheet A and 25 total points for cost sheets C and D.
(Id. at 132, 138, 140, 141.) Cost sheet A covered base costs for fixed-end items and
project services. (Id. at 138.) Cost sheet C covered an extended warranty option. (Id. at
140.) Cost sheet D covered base costs for additional optional elements. (Id.141.)
The flaw in this two-tiered cost system, according to the panel, was that
[t]he method used to score costs in this RFP created a condition whereby a bid which contained a higher system cost (Cost Sheet A) but a lower cost for the optional items (Cost Sheets C and D) could receive a higher total cost score than a bid which contained a lower system cost but higher costs for the optional items - even though the total cost for both bids might be the same. Under this scenario, a bid with a greater overall contract cost to the State could prevail over a lower cost bid with equivalent scores on the technical merits of the proposal.
(Id. at 6671-72.) Based upon this finding, the panel "was convinced that this cost
scoring method caused an irregularity creating a fundamental unfairness." (Id. at 6673.)
The panel concluded that "the two tiered method used to score costs for this RFP
created a situation where the cost score could be skewed to the disadvantage of other
bidders" and that "a bid with a greater overall contract cost to the State could
conceivably prevail over a lower cost bid with equivalent scores on the technical merits
of the proposal." (Id. at 6673.) The panel did not determine whether a skewing of cost
4 Proposals could receive a maximum score of 500 points. In addition to the Cost Submission component, the Technical Submission component for each bid contained a maximum score of 300 points; 250 points for the technical evaluation and 50 points for the qualifications evaluation. (R. at 131-32.) The bids were also subject to a contractual evaluation that contained a maximum score of 50 points. Od. at 132.)
5 scores actually occurred, or that a bid with the greater overall contract cost had actually
prevailed.
The petitioner contends that the panel committed an error of law and acted
arbitrarily and capriciously by concluding that it was irregular for OIT to use a two
tiered cost scoring formula. (Pet'r Br. at 17.) The petitioner argues that the hypothetical
improperly assumes that " a dollar of system costs is worth the same as a dollar of
warranty and maintenance costs" when, according to the petitioner, warranty costs are
worth more than up-front dollars. (Pet'r Br. at 22.) In the decision, the panel noted
OII's explanation that the cost scoring method was designed to put greater emphasis
on the warranty and local project office options. (R. at 6671.) The petitioner argues that
this design by OIT was a reasonable exercise of its discretion, and the panel substituted
its judgment for OII's judgment in concluding that cost dollars in the system cost tier
(in cost sheet A) should be valued equally with the cost dollars in the warranty and
maintenance tier (in cost sheets C and D). (Pet'r Br. at 10-12, 17,21.)
Contrary to this argument, substantial evidence in the record supported the
panel's decision. The panel found that the cost scoring formula used in the RFP
contained an irregularity because bidders could receive a higher score merely by
pricing options in one category rather than another. Because this irregularity could
create a situation where a proposal with a greater overall contract cost to the State could
prevail over a lower cost proposal with equivalent scores on the technical merits of the
proposal, the panel found the scoring method fundamentally unfair. Such a finding is
supported in the record. For example, Richard Thompson, Chief Information Officer
for the State of Maine and manager of OIT, in response to questioning by Motorola,
testified that it is possible to get a substantially higher score if the optional items are
priced lower and the system items are priced higher under the constraints of the same
6 total price-in other words, whether elements of a proposal are listed on cost sheet A or
cost sheets C and D. Mr. Thompson described this as "gaming the system essentially."
(R. at 6605.)5
The record reflects that the Motorola hypothetical posed to Mr. Thompson did
not occur in the bidding on the first RFP. (Id. at 6597, 6619-20.) But the panel
concluded that this irregularity, the failure of the cost scoring methodology to ensure
the lower total cost bid received a higher total cost score, created a fundamental
unfairness. (rd. at 6673.) The panel was not required find actual harm occurred in the
process; the petitioner cites federal case law and relies on its hypothetical that "there is
no chance that any bidder other than MI A-Com would have won the bid if costs had
been scored in a single category worth 150 points." (Pet'r Br. at 28-29).
The petitioner argues that OrT should have been given discretion by the panel to
weight system-item and optional-item dollars differently in the cost-score formula. 6
RFPs must accord at least 25% of the total score to cost. Me. Dep't of Admin. & Fin.
Serv., 18554 CMR 110 § 2(A)(i)(aa). orT need not accept the lowest cost bid, as long as
the contract is awarded to the "best-value bidder." 5 NLR.S. § 1825-B(7); Carl 1. Cutler
Co. v. State Purchasing Agent, 472 A.2d 913, 917 (Me. 1984) (award to "lowest
responsible bidder"). The process appears quite flexible. (R. at 6620.r While there is no
5 Motorola's demonstrative exhibit is not in the record. (R. at 6498.) 6 The record reflects Richard Thompson's explaination of OIT's rationale for the two-tiered cost scoring system. (R. at 6601; see also id at 6594, 6619.) 7 Senior Project Manager for the MSCommNet project, Lavana Snyder, testified:
Q. Now, was there any consideration of completely excluding GE and the other bidders' proposal for failing to include that information?
A. Yes, actually the cost team when they started their process, they talked about whether those two proposals should be totally rejected out of hand and they were feeling very strong about that. I spoke with Dick Thompson to get some counseling on that issue and was encouraged to go back to the cost team and get them to find another approach to the scoring that would keep those proposals in the process.
7 requirement that all cost dollars be weighted equally, the panel did not dictate to arT a
new cost scoring formula. The panel identified an irregularity that created a
fundamental unfairness, supported on this record, and invalidated an award based on
the RFP that included that irregularity.
The petitioner next argues that the panel's finding exceeds the only regulatory
limitation on scoring cost proposals: that RFPs accord at least 25% of the total score to
cost. See Dep't of Admin. & Fin. Serv., 18 554 CMR 110 § 2(A)(i)(aa) ("Cost of the
contract must be included in the evaluation criteria and must receive a minimum of 25%
of the total weight of all criteria."). Although the petitioner is correct in asserting the
RFP met this standard, the panel's decision did not require that the RFP violate this
standard. The panel invalidated the contract award based upon an irregularity in the
cost scoring formula. Moreover, the regulation requires that the RFP evaluate costs at
"a minimum of 25% of the total weight of all criteria." The regulation does not
proscribe evaluating costs at a higher level.
Finally, petitioner contends that because previous appeal panels have upheld a
similar cost scoring formula in the past, this panel's departure from agency precedent
constitutes arbitrary and capricious decision-making. (Pet'r Br. at 25.) Notwithstanding
the factual distinctions noted by Motorola regarding many of the past cases cited by
petitioner, decisions by other agencies do not address whether the panel's decision here
is supported by substantial evidence in administrative record. Hall v. Bd. of Envtl.
Prot., 498 A.2d 260, 266 (Me. 1985). Arguably inconsistent prior agency decisions do not
render the panel's finding arbitrary or capricious where, as here, that decision is
supported by substantial evidence. rd.
(R. at 6620.)
8 II. Whether the irregularity in the cost scoring formula was fundamentally unfair
The petitioner argues that, even assuming the RFP's cost scoring method
contained an irregularity, there was no fundamental unfairness because if all dollars
were weighted equally, petitioner still would have had the highest cost score and thus
any irregularity was "harmless error." (Pet'r R. Br. at 14.) There is no support in the
record, however, that petitioner would have been awarded the contract utilizing a
different cost scoring formula. See Pine Tree Legal Assistance, 655 A.2d at 1263-64
(recognizing that agency has discretion to take into consideration factors other than
scores in awarding contracts). Additionally, the petitioner's hypothetical cost-score
formula had not been accepted by OlT. The panel could not assume that OIT would
have accepted the petitioner's formula, and had no authority to modify the cost scoring
system included in the first RFP. See 5 M.R.S. § 1825-E(3) (panel is limited to validating
or invalidating the contract award). The petitioner's contention that it would have still
won the contract award based upon an alternative, hypothetical cost scoring formula is
speculative. The record supports the panel's finding of "fundamental unfairness."
III. Whether Motorola and GE waived any right to appeal
The petitioner argues that because no bidder questioned or objected to the cost
scoring formula contained in the RFP before submitting bids, Motorola and GE waived
their right to challenge the formula on appeal. (Pet'r Br. at 29-30.) The petitioner relies
on federal bidding law to argue that bidders must object to an unfair solicitation prior
to submitting bids. See Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1038, 1314
(Fed. Cir. 2007); Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 176,
n.14 (Fed. Cl. 2005); Aerolease Long Beach & Satsuma Inv., Inc. v. United States, 31 Fed.
Cl. 342, 358 (Fed. Cl. 1994.).
9 The petitioner's federal authority is not persuasive because, unlike federal law,
Maine law does not expressly require bidders to protest improprieties in a solicitation
prior to a bid opening or the receipt of bid proposals. See 4 c.F.R. § 21.2(a)(I) (2007).
Instead, Maine regulations provide for the filing of an administrative appeal and a
request for hearing within "fifteen (15) days after notification of [the contract] award."
Me. Dep't of Admin. & Fin. Serv., 18 554 CMR 120 § 2(B)(3). The petitioner has
provided no Maine law in support of its contention and section 1825-E(3) explicitly
vests authority to invalidate a contract award in the panel. 5 M.R.S. § 1825-E(3). No
case law, statutory provision, or administrative rule binds the panel because of an
entity' s fail ure to act.
The court cannot second-guess the panel. Imagineering, Inc., 593 A.2d at 1053.
The panel's decision is supported by the record; the panel did not make errors of law or
act arbitrarily or capriciously. 5 M.R.S. 1l007(4)(C)(4)-(6).
The Decision of the Appeal Panel is AFFIRMED.
Date: November 3, 2008 Nancy Mills Justice, Superior Court
10 Date Filed _-----'6"-'/'--'1"-'2"-'/~0'_~8'_____ Kennebec Docket No. _~.~A=P,,-----,O,,--,8,,---_4,-,,2,___ _ County
Action _---'8"'-0~(c'=,.)L- _ J. Mills
Rebecca Wyke, Commissioner Chip Gavin, Director Appeal Panel, State of Maine
M/A-COM, INC vs. Plaintiff's A ttnrnev Defendant's Attorney Valerie Wright, Esq. Beth Dobson, Esq. Charles F. Dingman, Esq. (Motorola, Inc.) One Portland Square 45 Memorial Circle Portland, Maine 04112 PO Box 1058, Augusta, ME 04332
Bernard J. Kubetz, Esq. (GE Transportation: - -----=----------:----- PO Box 1210, Bangor, ME 04402-1210 (State of Maine OIT) William H. Laubenstein, AAG Janine A. Raquet, AAG (Wyke & Gavin) Date of 6 State House Station, 84· Harlow Street 2nd Floor Entry Augusta, ME 04333-0006 Bangor, Maine 04401
6/17/08 Petition for review of final agency action filed by Atty Dobson on 6/12/08.
6/17/08 Appearance and Statement of Position, filed. s/Dingman, Esq.
6/25/08 Appearance and Statement of Position by GE Transportation Systems Global Signaling, LLC, filed 6/24/08. s/Kubetz, Esq. 6/19/08 Entry of Appearance, filed. s/Raquet, AAG
7/10/08 Entry Of Appearance By State Of Maine Office Of Information Technology, filed 6/30/08. s/Laubenstein, AAG 7/15/08 Motion to enlarge time to file certified record filed by Atty Ranquet, AAG. (unopposed motion) ORDER, Mills, J. Motion GRANTED. The Certified Record shall be due 7/18/08. Copy to attorneys of record. 7/18/08 Second Motion to Enlarge Time to File Certified Record, s/Raquet, AAG Proposed Order, filed. 7/22/08 ORDER ••• upon second motion to enlarge time to file certified record and without objection, the court orders that the motion be granted. The CERTIFIED RECORD SHALL BE DUE Friday 7/25/08. /s/ Mills, Justice. Order dated 7/21/08. Copy mailed to Atty's on 7/22/08.
7/31/08 Certified record, filed 7/25/08. (in vault - 2 archive boxes) Motorola Cost Scoring Exhibit, filed 7/25/08. s/Laubenstein, AAG
7/31/08 Notice And Briefing Schedule mailed to attorneys of record.
08/19/08 Filed 08/19/08: Petitioner's Rule 80C Brief, along with Petitioner's Addendum of Bid Appeal Decisions. filed by Attorney Wright.
9/3/08 Letter regarding Petitioner's Motion for an Expedited Hearing, filed 8/27/08. s/Raquet, AAG Date of Entry Docket No. AP-08-042
9/3/08 Letter stating GE Transportation Systems Global Signaling, LLC has no objection to Petitioner's Motion for an Expedited Hearing. s/Kubetz, Esq. (filed 8/27/08)
9/3/08 Response By Party-In-Interest Motorola, Inc. to Petitioner's Motion To Expedite, filed 8/29/08. s/Dingman, Esq.
9/3/08 Letter stating Office of Information Technology joins in the Motion for an Expedited Hearing, filed 8/29/08. s/Laubenstein, III, AAG
9/3/08 Letter clarifying position of GE regarding Motion for an Expedited Hearing, filed 9/2/08. s/Kubetz, Esq.
9/10/08 Petitioner's Reply In Support Of Motion For An Expedited Hearing, filed 9/5/08. s/Wright, Esq.
9/12/08 Phone conference scheduled for 9/16/08 at 3:30.
9/16/08 Phone conference cancelled per J. Mills. Attorneys notified by phone.
9/17/08 Party-in-Interest Motorola's Rule 80C Brief, filed. s/Dingham, Esq. Motion to Dismiss by Party-in-Interest Motorola, Inc. and Incorpotated Memorandum of Law, filed. s/Dingham, Esq. Party-in-Interest Mororola's Addendum of Bid Appeal Decisions with attachments, filed. Affidavit of Robert s. Cruikshank, filed. s/Cruikshank
9/18/08 ORDER, Mills"J. Motion For Expedited Hearing DENIED. No oral argument is required. Court will endeavor to decide case expeditiously. Copy mailed to attorneys of record. 09/18/08 Filed 09/18/08: Brief of Respondents Wyke and Gavin pursuant to M.R.Civ.P. 80C. filed by AAG Raquet.
Filed 09/18/08: Rule 80C Brief of Party-in-Interest GE filed by Attorney Kubetz.
10/3/08 Petitioner's Reply Brief, filed 10/1/08. s/Wright, Esq.
10/7 /08 Respondents' Response To Motion To Dismiss, filed 10/7/08. s/Raquet, AAG 10/10/08 Office Of Information Technology Memorandum In Opposition To Motion To Dismiss, Affidavit Of Richard B. Thompson, filed 10/8/08. s/Laubenstein, AAG
10/10/08 Petitioner's Opposition To Motion To Dismiss By PII Motorola, Inc., Affidavit of Chris Sarantos (copy), Exhibits A and B, filed 10/8/08. s/Wright, Est}.
10/16/08 Affidavit of Chris Sarantos, filed 10/14/08. s/Wright, Esq.
10/16/08 Reply Memorandum In Support Of Motion To Dismiss By PII Motorola, Inc. filed 10/15/08. s/Dingman, Esq.
10/29/08 DECISION AND ORDER, Mills, J. Motorola's Motion for Summary Judgment is DENIED. Copy mailed to attorneys of record. Copy mailed to Garbrecht Law Library, Deborah Firestone, Goss Data Service. M/A Com, Inc. v. Rebecca Wyke, Commissioner, et a1 Date of Entry Docket No. A=P'"'-----... 0...8_---'4-'=2'----- _
11/3/08 DECISION AND ORDER, Mills, J. The Decisio~ of the Appeal Panel is AFFIRMED. Copy mailed to attorneys of record. Copy mailed to Garbrecht Law Library, Deborah Firestone, Goss Data Service.