Florida Judge Recommends Dismissal of Harris Protest of State P25 Network Award
Tuesday, September 11, 2018 | Comments

A Florida administrative law judge (ALJ) recommended that the Florida Department of Management Services (DMS) dismiss a protest from Harris over the award of a contract for a new statewide Project 25 (P25) network to Motorola Solutions. ALJ J. Bruce Culpepper additionally recommended that the department award the contract to Motorola.

In October 2016, the DMS issued an invitation to negotiate (ITN) that sought a new statewide P25 network to replace Florida’s current Statewide Law Enforcement Radio System (SLERS), which allows communications between more than 4,000 state law enforcement personnel and is based on Harris’ EDACS technology.

The state was seeking a new P25 network that would allow better interoperability between different law enforcement agencies because P25 technology is nonproprietary.

Three companies including Motorola and Harris, which built, maintains and operates the current SLERS network, responded to the ITN. After each vendor’s proposal was scored, the state invited Motorola and Harris to negotiate for the new SLERS contract.

Following that process, the state found Motorola’s offer as the most responsive and recommended that the state award the new SLERS contract to Motorola in March. Harris filed a protest with the Florida Division of Administrative Hearings, arguing that Motorola’s best and final offer contained a network design that the company could not deliver.

The current SLERS contract with Harris runs through 2021. The initial contract for the new SLERS system will include a transition period of up to four years where the vendor will not be paid. That period will be followed by a 15-year payment period that will begin July 1, 2021 at the earliest.

Harris focused its protest on three primary arguments. First, the company argued that the negotiation team was not qualified to negotiate or score the responses to the ITN.

Harris pointed out that not a single member of Florida’s negotiation team was an engineer and that several members did not have technical knowledge or background in law enforcement radio systems.

In response, the state argued that the members of the negotiation team had the required collective knowledge of radio systems and government contracting, and the team used two consultants who served as subject matter experts to assist with any technical issues or questions.

Culpepper cited testimony from the negotiation team at a court hearing that demonstrated the team had the required knowledge and expertise to make a proper decision on the contract.

“Accordingly, the department persuasively established that the negotiation team ‘collectively’ had the required experience and knowledge to evaluate, negotiate and score the vendors’ replies,” Culpepper wrote.

Harris also argued that Motorola would be unable to deliver the required coverage, capacity and reliability that it had included in its network design.

Harris said that Motorola would be unable to use several tower sites that it listed in its best and final offer because those tower sites are part of the current SLERS network that Florida conveyed to Harris as part of the original SLERS contract.

During the final court hearing in the case, Harris said it had no intention of allowing Motorola to use any of those conveyed towers, and that Florida does not have the authority to allow use of those towers, according to Culpepper’s order. Without those 21 towers, Motorola’s network design would not meet coverage and capacity arguments, Harris argued.

In its response, the DMS said its negotiation team looked at the issue of the conveyed towers and determined that the state has the right to authorize Motorola to use the towers. Additionally, the department found that Motorola’s submissions included alternative plans for either constructing or acquiring a tower for each proposed conveyed tower.

Motorola argued that its understanding was that the state would have access to the conveyed towers free of charge beginning in 2021 when the current SLERS contract with Harris ends and the new network begins operation. Additionally, Motorola argued that according to the ITN, a finalized list of towers was not required, and the contract winner could finalize the tower sites during the transition period prior to the start of the new SLERS contract.

Motorola also argued that during negotiations, it told the state that it would be responsible for any additional costs related to tower sites if it could not use the conveyed towers.

Harris also attacked other portions of Motorola’s proposed design, arguing that it would not meet the required capacity, coverage and reliability requirements. For example, Harris argued that the design’s reliance on 11 GHz microwave links would make the system unreliable because rain is common in the state.

In response to Harris’ arguments over coverage requirements, Motorola and DMS pointed to rigorous acceptance testing that will occur before the SLERS contract begins. If the network does not meet the requirements in that testing phase, Motorola, under its contract, would be responsible for getting the network up to those requirements without additional cost to the state.

Motorola also said that it builds levels of redundancy into its network to cover for issues such as rain affecting microwave paths.

Harris also argued that Motorola’s frequency plan was inadequate because some of the frequencies it listed in its plan are unavailable. Motorola noted that the department did not require respondents to the ITN to pre-license their frequencies prior to submitting their best and final offers. The company also argued that RF licenses are normally issued after a communications tower or network has been constructed or installed.

The DMS argued that it had only asked respondents to the ITN to describe how they would develop their frequency plan as it recognized that conducting frequency interference or intermodulation analyses are costly and time-consuming process. So, the department did not expect vendors to undertake the process prior to receiving the contract.

Culpepper found that DMS’ decision to award the contract to Motorola did not violate the terms of the ITN, even if Motorola has to modify some of its design to meet requirements prior to the start of the contract.

“The ITN called for a preliminary design, with the ultimate delivery system to be developed by the winning vendor after the execution of the contract,” Culpepper wrote. “The ITN did not require the vendors to present a final, fixed tower network. Instead, this procurement focused on selecting a vendor who best demonstrated the ability to construct, operate and maintain a statewide radio communications system beginning in July 2021.”

Harris’ third contention in the protest was over the different prices submitted by the companies. Harris submitted a total price of $980 million, while Motorola’s total price came in substantially lower at nearly $688 million.

Harris argued that Motorola would be unable to deliver its proposed network for that price and alleged that Motorola had excluded several components, such as site fencing, that would later add to the cost. Additionally, Harris argued that because Motorola will not be able to use some of the towers it identified, it was impossible for the negotiation team to determine the actual price of Motorola’s proposal.

Motorola and DMS noted that one of the provisions in the contract was that the price submitted was the final price, and the state would not be responsible for paying anything above that quoted price, even if some costs were not included in the original price.

“… Motorola pithily responded that ‘the price is the price,’ ” wrote Culpepper in his order. “In other words, should Motorola be awarded the SLERS contract, the total price that the department will be obligated to pay for the service is capped by the figure Motorola quoted on the final pricing workbook.”

Culpepper pointed to both DMS and Motorola, acknowledging that the price would be capped by the price Motorola submitted and found that the department did not err in making its decision.

For all of those reasons, Culpepper determined that DMS had properly determined that Motorola’s proposal would provide the best value to the state and the department was reasonable and rational in making the decision.

“The department’s selection of Motorola should not be aside,” Culpepper concluded.

A spokesperson for Harris said the company was disappointed in the judge’s decision.

“Harris is one of the largest public companies headquartered in Florida, and we are dedicated to providing first responders in our home state with the best equipment and technology they need to serve our communities every day,” the spokesperson said. “Harris is committed to the successful operation of the SLERS system in Florida and confident Harris’ incremental investment strategy is superior to our out-of-state competitor’s plan to build a costly, duplicate system. We will review today’s recommendation, and we will continue to work with DMS and state leaders on appropriate next steps with SLERS.”

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Comments
On 9/17/18, Harris Bully said:
Clear and simple. I have dealt with them doing the same thing. They ended up losing but it pushed our rollout by many years because of them trying to bully their way in. I asked them why should I believe them; they said it's in the spec sheet.

On 9/14/18, Wally Calhoun said:
It appears Florida knows a great product when they see it...

On 9/13/18, Lars Poulsen said:
So Harris is arguing that Motorola will not be able to deliver because Harris intends to sabotage the rollout?
Does not make me love Harris.

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