IN THE CHANCERY COURT OF TENNESSEE TWENTIETH JUDICIAL DISTRICT DAVIDSON COUNTY LLC, Petitioner. v. Chancellor 451? THE PROCUREMENT BOARD OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY. TENNESSEE and THE CHIEF PROCUREMENT OFFICER AND PURCHASING AGENT MICHELLE A. (ONLY iN HER OFFICIAL CAPACITY), 32 UI [t'ti'ri?ti Respondents. Case No. {77:22: of?: x3 VERIFIED WRIT OF CERTIORARI AND SUPERSEDEAS INTRODUCTION Pursuant to Section of the Metropolitan Code, when a protest to a bid is timely filed, The Metropolitan Government of Nashville and Davidson County ("Metro") "shalt not proceed further with the solicitation of or with the award of the contract until the Purchasing Agent. after consultation with the head of the using agency? makes a written determination that the award of the contract without delay is necessary to protect substantial interests of the metropolitan government," Here, there is no dispute that LLC or "Petittoner") timely fiIed a protest to Metro?s improper disquali?cation of its response to Request for Quotation 1207658 (the "2019 The 2019 RFQ relates to a solicitation by Metro for a third party to operate Metro?s on~street and certain garage parking for a period of thirty years. Instead of complying with Section Metro proceeded with the 2019 RFQ, stating only that ?it is in the best interest" of Metro to do so. There is also no evidence that the Purchasing Agent consulted with the head of the using agency.1 Furthermore, after attempted to appeal that decision to the Procurement Appeals Board - the next step in the procedure set forth in Metro?s procurement rules - the Procurement Appeals Board failed to respond, and the Purchasing Agent asserted that its decision to immediately proceed with the other bidder is unappealable. Metro seems to attempt to justify its position by citing to a timing "emergency" related to Metro's budget for Ftscai Year 2020 2020"), which begins on July 1, 2019 ("2020 Fiscal Year?), This argument fails for at least two reasons. First. there is nothing in the Metro Charter or Metro Code that requires that a contract be "?nalized" before the start of a new fiscal year for the projected revenue to be considered for budget planning purposes. In fact, Metro's 2019 fiscal year budget factored in revenue from certain sales of Metro owned real property that were not finalized prior to the beginning of the 2019 ?scal year.2 Second, the need to complete the contract by June 30 so that projected revenue can be factored into the FY 2020 budget is not the type of "substantial interest" that needs to be protected. indeed. a thirty-year transaction that for Actions Metro has taken since protest was flied include: 1) notifying the only other respondent, LAZ Parking Georgia, LLC of its intent to award LAZ the contract; 2) setting the approval of said contract on the Metro Council calendar; and 3) filing a budget that relies upon the terms of the LAZ contract. 2 Upon information and belief. Metro's reason for wanting the parking contract approvat process to track with the budget approval process may be one of political expediency. By having the budget depend upon the revenue from the parking contract, it appears the administration is applying pressure to the Metro Councii to either approve the contractor be the reason certain expenditures may be removed from the budget. it goes without saying that budgeting potitics is not a ?substantial interest" as required by the regulations. the first time outsources Metro's on-street parking is not something that should be rushed. To the contrary, this type of arrangement should be carefully considered and debated especially considering that Petitioner believes its proposal is far more lucrative to Metro than the prOposal currently being negotiated.3 is asking this Court to reverse Metro's decision to "proceed further" with the current negotiations and require Metro to comply with its own rules. As discussed below, an additional consequence of that decision will be to net Metro an additional $30,000,000 and demonstrate the city's commitment to diversity in contracting. STATUTORY REQUIREMENTS FOR THIS REQUEST 1. This is action is being brought pursuant to Section 27-8-102 of the Tennessee Code, as a statutory writ of certiorari to correct errors of fact and law made by Metro?s Purchasing Agent. More specifically, Metro's Purchasing Agent made an incorrect final decision as to a stay and then informed that this decision is unappealable. The Purchasing Agent's decision is one for which no judicial review is provided, is the result of an essentially judicial function, and finally determined rights. As a result, her decision should be reversed as both made pursuant to an improper standard and incorrect under the correct standard. 2. This action is also being brought pursuant to Section 27-8-101 of the Tennessee Code, as a common law writ of certiorari to correct Metro?s Purchasing Agent's illegal and improperly motivated actions. Metro?s Purchasing Agent made a final, essentially judicial decision as to a stay that was contrary to relevant Metro law, ordinance and 3 Over the 30~year term, response would provide Metro with $30,000,000 more than LAZ's proposal as a result of having a much lower operative expense percentage than LAZ. This does not account additional money Metro would receive from proposal as a result of having $70,000,000 less in expenses to be subtracted out of the revenue share. 3 regulations, in what appears to be a rush to finalize a contract so that its approval by Council woutd track with Council?s approval of a budget. all at the expense of fundamental fairness and diversity There is no legal requirement that the contract be finalized before the beginning of FY 2020 for the projected revenue to be considered factored in as part of the budget. As a result, the Purchasing Agent's decision should be quashed, and the automatic stay resulting from a timely-tiled protest should be instituted. 3. Finally. brings this action pursuant to Section 27-9?101 of the Tennessee Code of the same reasons listed in Paragraphs 1 and 2. above. 4. Pursuant to Section 2743-106 of the Tennessee Code. states that this is its first application for a writ and that the allegations contained in all numbered paragraphs herein are made under oath, as evidenced by this statement and signed, notarized statement of oath at the end of this writ. 5. Metro rendered the decisions underlying this writ on: 1) April 26, 2019, when its Purchasing Agent informed that it was not abiding by the required stay because "it is in the best interest" of Metro not to do so (See Ex. and 2) April 29 2019, when its Purchasing Agent informed that her decision was final and unappealable (See Ex. 2). Both of those decisions occurred well within 60 days of the filing of this writ. 6. Venue is proper in this Court. as Metro "resides" in this judicial district. 7. Metro is the only proper defendant to this writ as it was the only party ?involved in the hearing" before the Metro. 8. The Purchasing Agent's decisions that serve as a basis for this writ make a material change in the status of the matters being determined herein. The Purchasing Agent's decision to opt out of the automatic stay will result in the negotiation of a ?nal contract with LAZ, which will in turn tead to the consideration of that contract by the Metro Council, which may then lead to the approval and start of the performance of the ?nal contract. The automatic stay of proceedings during a protest is to prevent those very things from happening, as once they do, unwinding the effects of any one of them (much less all of them) becomes very difficult. it is also worth noting that the issuance of a writ of supersedeas wilt not harm Metro or the passage of the administration's budget. As a result, is seeking a writ of supersedeas, which would stay alt further decisions and actions by Metro related to the RFQ. 9. gives a bond for costs, with its counsel WSMLEGAL as the surety, in an amount not to exceed $500. The contract resulting from the 2019 RFQ wilt not be effecttve until severai additional procedural steps are completed, including approval by the Metro Councii after three readings and approval by Metro's Traffic and Parking Commission. in addition, no material preparations or expenditures by Metro for finalizing the resulting contract are required. As a result, no damage to Metro will result from this Court's issuance of a writ of supersedeas pending final decision. Accordingly. only a minimal bond of $500 should be required against any supersedeas stay issued by this Court. 10. in an effort to resolve this dispute, on April 29, 2019, counsel for met with counsel for Metro. At that meeting, counsel for noti?ed counsel for Metro of the possibility of it filing a writ of supersedeas. in addition, on May 2, counsel for spoke with counsei for Metro to inform her that he would be fittng this writ on May 3. 11.While this writ does not involve a final decision revoking. suspending, or denying a iicense or permit that is required to engage in any activity protected by the First Amendment, requests an expedited resolution of the issues contained herein as there are time-sensitive aspects to consider. UNDERLYING I. The 2018 RFQ 12.in 2018, Metro issued Request for Quotation 1037675 (the "2018 The 2018 RFQ sought quotations to modernize and manage on?street parking in Davidson County. 13. LAZ and Atwater Infrastructures LLC ("Atwatef') both responded to the RFQ, as did four other entities. Atwater is a member of 14. Metro scored Atwater's response 85.5 out of 100. Metro scored LAZ's response 62 out of 100. 15.Atwater scored higher than LAZ. and ail other responders. in each of the four categories Metro stated it would consider: technical and experience capabilities, capacity and approach, ?nancial proposal, and diversity plan. 16. On January 25, 2019. Metro notified Atwater of its intent to award it the related contract. 17. Over the next two months, Metro and Atwater spent a significant amount of time working together to develop parking policies, a concession agreement, a revenue 4 While this writ relates to the Purchasing Agent's decision on the stay, additional background about the RFC and its history is necessary to gain a compiete understanding of the relevant issues. As such. that background is included in this section. 6 sharing model, Metro's presentation to Metro's Traffic and Parking Commission. and various other terms for a final contract. 18.At Metro's request. and as evidence of its importance, Atwater, a minority-owned business. further enhanced its diversity plan related to the contract. 19. On March 11, after a two-month negotiation of the material terms of a final relationship, Metro submitted the proposed parking regulations to the Metro Traffic and Parking Commission, which it unanimously approved. ll. Protest and Metro?s Withdrawal of the 2018 RFP. 20. LAZ filed a protest, seeking review of Metro's decision to award the contract to Atwater. 21 . Metro's Purchasing Agent denied protest. 22. LAZ appealed that decision to Metro?s Procurement Appeals Board. As that board was considering the protest, on March 6, Metro's Purchasing Agent decided to cancel the 2018 RFQ. 23. Metro?s Purchasing Agent did not give any reason for cancelling the 2018 RFC). in violation of applicable regulations. That said. Atwaler chose not to file a protest to the Purchasing Agent's violation of Metro regulations. instead seeking to move forward with Metro in good faith. Ill. The 2019 RFC. 24.0n March 11, Metro informed Atwater that it intended to issue an updated RFQ with a much more rapid response requirement. 25.0n or about March 21. Metro issued the 2019 RFQ. The 2019 RFQ required all proposals to be submitted by April 12, 2019. 26. Over the course of the next two weeks, Metro amended the RFQ multiple times. with the final amendment issued on April 8. 2019. 27. The contents of the 2019 RFQ and its differences from the 2018 RFQ demonstrate that Metro learned from and adopted much of what it and Atwater had discussed in their prior negotiations. ln fact, substantial portions of the concession agreement developed by Atwater appeared in 2019 RFQ. In addition, the 2019 RFQ contained a net revenue share agreement recommended by Atwater, as opposed to the gross revenue share agreement used in the 2018 RFC). 28.0ne primary difference between the 2018 RFQ and 2019 RFQ was Metro strongly encouraged that a parking operator be a direct contractor with Metro in the 2019 RFQ. 29.As part of its 2018 RFQ response, which Metro had accepted, Atwater had proposed a subcontractor relationship between it and a parking operator. 30.This change required Atwater to partner with a parking Operator in the very short time Metro allowed for responding to the 2019 RFQ. 31.Atwater did so. partnering with Republic Parking Systems. LLC, to form 32. LAZ is a parking operator. and Metro's change did not require any additional effort on that front to respond to the 2019 RFQ. Metro was aware of that. 33. timely submitted its response to the 2019 RFQ on April 12 on iSuppiier. 34.There was only one other response to the 2019 RFC) 35. Over the 30-year term, response would provide Metro with $30,000,000 more than LAZ's proposal as a result of having a much lower operative expense percentage than LAZ. This does not account additional money Metro would receive from proposal as a result of having $70,000,000 less in expenses to be subtracted out of the revenue share. 36. On Sunday. April 14, at 11:06 AM. Metro Senior Procurement Officer Terri Troup emailed representatives to inform that she was unable to locate the pricing worksheet as an attachment to response. She asked whether the omission ?was in error" or whether it was an intentional omission. Finally, she asked for a response by 8:30 AM on Monday, April 15. 37. It being a Sunday, without being absolutely sure what was or was not included in initial response and out of an abundance of caution. sent Ms. Troup the pricing worksheet that same day at 4:43 PM. 38. It is important to note that the information contained in the subsequently sent pricing worksheet was consistent with the information that had already been received by Metro.5 39. On April 17, Metro notified that it had disqualified response as ?due to a failure to comply with the Financial Proposal 40. On April 24? Metro notified that it intended to award the contract to LAZ. IV. Protest. 41 .The following day, April 25, filed its bid protest and asked for a stay of contract negotiations with LAZ. 42. On April 26, the Purchasing Agent informed that it was not staying contract negotiations with LAZ because of her "determination that it is in the best interest of? Metro. Her written determination made no mention of that proceeding with the ?award of 5 The pricing worksheet is a detailed spreadsheet that further details the basic parameters of the transaction that were contained in sections of response Metro received on Aprii 12. 9 the contract without delay is necessary to protect substantial interests? of Metro as required by Section it also made no mention of any discussions she had had with the "head of the using agency" as required by the same Section. 43.That same day, appealed the Purchasing Agent?s stay determination to Metro's Procurement Appeals Board. (See Ex. 3.) 44. On April 29, Metro?s Purchasing Agent sent a letter declaring her decision ?nal and unreviewable. 45. Since that time, has learned that response was not adequate as it relates to the diversity plan requirements of the 2019 RFQ. in addition, the pricing worksheet submitted by LAZ was incomplete. Media sources have reported that Metro, rather than disqualifying response as in the case of intended to negotiate diversity planning terms with LAZ. METRO CODE, RULES, AND REGULATIONS TO THE UNDERLYING PROTEST 46. Chapter 4.12.010 of the Metro Code defines "request for proppealsLl" it has separate de?nitions for "invitation to bid" and ?muiti-step sealed From this distinction. it is ciear that the Metro Code views bid processes different than RFQ processes. 47. Chapter 4.12.030 entitled "Competitive sealed bidding? governs Metro's "bid" process. 48. Chapter 4.12.040 entitied ?Competitive sealed proposals" governs Metro?s RFQ process. 49. in the "bid" process. Section requires that an ?invitation to bid" include "a purchase description and ail contractual terms and conditions applicable to 10 the procurement." Section states that, "[b]ids shall be accepted without alteration or correction, except as authorized in this code." Section goes on to state that, "[a]fter bid Opening no changes in bid prices or other provisions of bids prejudicial to the interest of the metropolitan government or fair competition shall be permitted." 50. In its powers granted in the Metro Code, the Procurement Officer has also promulgated regulations related to the "bid" process. Those include which states that a bid may be rejected if it ?is not responsive, that is, it does not conform in all material respects to the invitation for 51 .The RFQ process, on the other hand. explicitly provides for discussion between the offerors and revision of proposals. Chapter of the Metro Code states: As provided in the request for proposals and under regulations promulgated by the standards board, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clari?cation 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 revision of proposals and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and finai offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing ofterors. Id. (emphasis added). 52. in its powers granted in the Metro Code, the Procurement Officer has also promulgated rules related to the RFQ process. In distinguishing the "bid" process from the RFQ process, R4.12.040.02 states, 11 An important difference between competitive seated proposals and competitive sealed bidding is the ?nality of initial offers. Under competitive sealed preposals, alterations in the nature of a proposal. and in prices. may be made after proposals are opened. Such changes are not allowed, however, under competitive sealed bidding (except to the extent allowed in the first phase of multi-step sealed bidding). 53.The Procurement Officer also promulgated R4.12.040.15.3. which states: This Subsection sets forth procedures to be applied in four situations in which mistakes in proposals are discovered after receipt of proposals but before award. 3) During Discussions; Prior to Best and Final Offers. Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may freely correct any mistake by modifying or withdrawing the proposal until the time and date set for receipt of best and final offers. b) Minor lnformalities. Minor informalities. uniess otherwise corrected by an offeror as provided in this Section, shall be treated as they are under competitive sealed bidding. See Section R4.12.030.13.4 (Mistakes in Bids, Mistakes Discovered After Opening but Before Award). 0) Correction of Mistakes. If discussions are not held, best and final offers are not solicited, or the best and final offers upon which award wiil be made have been received, mistakes may be corrected and the intended correct offer considered only if: i) the mistake and the intended correct offer are clearly evident on the face of the proposal. in which event the proposal may not be withdrawn; or ii) the mistake is not clearly evident on the face of the proposal, but the offeror submits proof of evidentiary value that clearly and convincingly demonstrates both the existence of a mistake and the intended correct offer, and such correction would not be contrary to the fair and equal treatment of other offerors. 12 54.The Procurement Officer also chose not to adopt the language related to rejection of a bid for nonresponsiveness in the ?proposal" process. Instead, it uses less restrictive language in which states that a proposal may be rejected if "the proposal ultimately (that is, after any opportunity has passed for altering or clarifying the proposal) fails to meet Metro?s announced requirements in some material Id. (emphasis added). 55. Furthermore, states: Unless the solicitation states otherwise, proposals need not be unconditionally accepted without alteration or correction, and Metro's stated requirement may be revised or clarified after proposals are submitted. This flexibility must be considering in delen'nining whether reasons exist for rejecting all or any part of a proposal. 56. Given the very different language and rules related to the bid process and the RFQ process, it is obvious that the RFQ process is much less rigid and seemingly requires a back and forth between Metro and those responding. REASONS THE UNDERLYING PROTEST SHOULD SUCCEED 1 Metro Applied the Bid Standard to the RFQ Process 57. In informing of its disqualification of 2019 RFQ, Metro stated that the reason was disqualified was because its response was "nonresponsive" for failure to include a pricing worksheet. 58.This reason is specifically referenced in the rules promulgated by the Procurement Officer as it relates to "bids." not RFQs. 59.As a result. Metro applied the wrong rules standard in deciding to reject proposal. 2 Metro's Failure to Accept Submission of a Pricing Worksheet 13 60. R4.12.040.15.3 allows for the correction of mistakes in submission prior to the award of a contract. 61.Here. Metro failed to consider or ailow the correction in violation of that regulation. 3 Metro Treated Different Bidders Differently 62.Metro disqualified proposal as ?nonresponsive? for failure to include adequate pricing information. 63. Upon information and belief, Metro did not disqualify proposal as "nonresponsive" even though it failed to include an adequate diversity plan and its pricing worksheet was incomplete. 64. Metro?s actions constitute unequal treatment of two respondents. 4 Metro Violated the Best Interests Provisions of the Metro Code in Awarding the Contract to LAZ 65.0ver the life of the 30-year contract. provides Metro with roughly $30,000,000 more than LAZ's proposal. Part of that benefit comes from imposing a lower internal rate of return of 8 percent compared to LAZ's 9.75 percent. 66.Metro is accorded a great deal of ?exibility when it comes to discussing and awarded RFQs. 67. Metro. for reasons still unknown to but which it hopes to discover in the course of this action, chose to accept LAZ's proposal rather than negotiate further with to its own detriment. 14 CAUSES OF ACTION 1 -- Issuance of a Stay The Purchasing Agent Did Not Comply with Chapter 68. Chapter implements an automatic stay of all proceedings related to an RFQ if a protest is timely filed. 69.The Purchasing Agent can only set aside that automatic stay after consultation with the heading of the using agency and a finding that the ?award of the contract without delay is necessary to protect [Metro's] substantial interest." 70. Here. the Purchasing Agent improperly set aside the automatic stay without a ?nding as to Metro's ?substantial interest" or whether proceeding with the ?award of the contract without delay" is and without discussing her decision with the head of the using agency. 71 . Furthermore. the Purchasing Agent now asserts that her decision is completely unreviewable. 72.The Purchasing Agent?s actions are illegal, incorrect, and apply the wrong legal standard. 73. has been damaged by the Purchasing Agent's decision and has standing to pursue its reversal. 15 RELIEF REQUESTED In light of facts and law recited above, requests the following relief: 1. That the Court issue a writ of supersedeas barring any further action on the 2019 2. That the Court reverse the Purchasing Agent's decision to set aside the automatic stay; 3. That the Court order the preparation of the record of the decisions below; 4. That the Court hear and decide this matter on an expedited schedule; and 5. That the Court order any other such remedy it considers just and appropriate. Respectfully submitted, William N. Helou (#22839) WSMLEGAL PLLC 2817 West End Ave, Suite 126-107 Nashville, TN 37203 615.900.5585 whelou@wsmtegal.com Attorney for LLC WSMLEGAL PLLC is the surety for costs in this action, not to exceed $500. 16 VERIFICATION STATE OF TENNESSEE COUNTY OF DAVIDSON i. R. Graham White, on behalf of LLC, swear or affirm that the foregoing numbered allegations in this writ are true. accurate, and complete to the best of my know 9. By: 6W Mm Title: M?wqc/L Sworn togjubscribed before me on this 2 day of Mag 2019. Nytary Publi?? My commission expires: 3/7/20213 17 331.: um $175 It: I. Exhi it 1 OF FIN ANNE m?vm mm W. 51mm or 5:1 1 METROPOLITAN OFNASHNILLE AND DAVIDSON COUNTY I April 26, 2019 1207658 Parking Management and Modernization Services Please note that at timely protest of the intent to award a contract to LAX Parking Georgia, LLC pursuant to the above referenced solicitation has been received by the Purchasing Agent. This correspondence serves as notification of the Purchasing Agent?s determination that it is in the best interest of the Metropolitan Government of Nashville and Davidson County (Metro) to proceed with contract negotiations with the selected offeror. Respectfuliv, - . .-. f; efvc??z Michelle A. Hernandez Lane Chief Procurement Of?cer/Purchasing Agent The Metropolitan Government of Nashville and Davidson County I . it) 1 L423 flu: . i I mm 1 331T Pmcun'mcni Division Fax: 7'30 Awnuc South. Suite i l? P0 Rm i?it?fiil Nashville. Tennesscc Exhi it 2 DAVID AYUR lxtl?ARlMlim ?7 a 1r ?1 .1. in" METROPOLITAN GOVERNMENT AND DAVIDSON COUNTY a II.- II it April 29, 2019 i 5:93 Mr. Saul Solomon i TS Klein Solomon Attorneys at Law, PLLC i i 1224 5?h Avenue North i Nashville, TN 37208 d; .m ?at: 1207558 Parking Management and Moderntzation Sennces I: 3.: 1 Dear Mr. SoiomonThis correspondence serves to notify you that i am in receipt of your communication dated April 26, 2019, ?Notice of Appeal to the Procurement Appeals Board Denial of Stay of All Proceedings Related to 1207658?. Please note that the Purchasing Agent?s decision under authority granted by the Procurement Code and the Procurement Regulations at 4.36.010.lg) is not subject to appeal. Please note that the contract that is the subject of this procurement must be approved by the Metropolitan Council by ordinance. There should be no reason why your client's protest cannot be resolved before the Council takes final action. A hearing on the protest will be scheduled in the coming days. RespectfullyL/Latlf?l?l??f?f?w Michelle A. Hernandez Lane Chief Procurement Officer/Purchasing Agent The Metropolitan Government of Nashville and Davidson County Cc: Procurement File Jon Cooper, Director of Law Talia Lomax?O?dneal, Chair, Procurement Appeais Board Procurement Dis ixiun 73H Mound cnuu South. Suite i #2 . ?mt l? i Box l?JhSOi) i?himo Nashs?iilc, summon rm. ?tsetse?M79 Exhibit 3 m: K e n Saul Solomon direct 615.538.7305 ATTOR EYS AT LAW snul April 26. 2019 a 3 . (m Talia Lornax-O?dneal "f Director of Finance ea . 1 Public Square 12- t. Suite 106 in Nashville, Tennessee 3720i :3 . 2 Re: Notice of Appeal to the Procurement Appeals Board Denial of Stay ol?All Proceedings Related to RFQ #l207658 Dear Ms. Lomax-O?dneal. The Metropolitan Government of Nashville and Davidson County. Tennessee (?Metro") is moving expeditiously to award a 30-year contract under RFQ #1207658 (the in this process. Metro rejected a proposal submitted by LLC that would have generated $30 million more for Metro than the only competing proposal over the course of the contract. The sole procedural reason for rejecting proposal violates multiple ordinances in the Metropolitan Code of Ordinances (the ?Metro Code?), the Regulations to the 1992 Procurement Code. as revised in April 20!? (the ?procurement regulations"). and principles of equity. ?led a timely protest and requested that discussions with awarding the contract he stayed, as required by Metro Code 4.36.0l0(F} and procurement regulation On April 26, 2019? the Purchasing Agent denied the request for a stay. (Ex. I.) This decision substantially prejudices ability to he heard on its protest, is arbitrary and capricious, and is contrary to law. Accordingly. respectfully requests that the Procurement Appeals Board (the ?Appeals Board?) reverse the Purchasing Agent?s denial of a stay and require that all discussions between the Purchasing Agent and LAZ Parking Georgia. LLC cease pending a final decision of the protest on the merits. I. Jurisdiction The Appeals Board has jurisdiction over the denial of a stay, which a protester is generally entitled to under Metro Code and procurement regulation The Metro Code 4. 36 l00(A) gives the Appeals Board jurisdiction over determinations by the Purchasing Agent made under 4 36. 010 The decision to deny a stay is a determination by the Purchasing Agent made under Metro Code 4. 36. 01 l224 6th Avenue North anliwlle?. TN 37208 1 main 690.4780 Com Talia April 26. 2019 Page 2 all! ll. Standard of Review Procurement regulation requires the Procurement Appeals Board to hear and decide this appeal using a do new standard of review. Hi. Legal Standard Stays ot' procurements during protests are immediate and automatic. Metro Code 4.36.010tF). A limited exception in the Metro Code provides that the purchasing agent may. after consultation with the head ot'thc using agency. make a written determination ?that the award of the contract without delay is necessary to protect substantial interests of the metropolitan government.? Id. That same language is repeated in procurement regulation Put simply. the Purchasing Agent did not make the required detcnnination that ?award of the contract without delay is necessary to protect substantial interests of the metropolitan government.? Instead. in a letter dated April 20. the t?urehasing Agent wrote that she determined that it is ?in the best interest ot? the Metropolitan Government of Nashville and Davidson County (Metro) to proceed with contract negotiations with the selected ot?teror.? The standard that the Purchasing Agent used is substantially lower than the standard required by the Metro Code and the procurement regulations. First. the Purchasing Agent did not make a determination regarding the ?award of the contract without delay??at all. but instead made a determination regarding her decision ?to proceed with contract negotiations with the selected offcror.? Next. she did not decide whether it was "necessary to protect substantial interests oi? Metro. but instead decided that it was in the ?best interest? t?Mctro. The Purchasing Agent denied the stay based on the incorrect standard. and the decision should be reversed. There are significant issues at stake both legally and substantively in connection with this protest. As stated in protest (Ex. 2). its proposal would have generated an additional-$30 million for Metro over the course of the contract. Additionally. protest raises three substantial questions of law and equity. A determination on these substantial questions of law is necessary to ensure the public?s con?dence in the procurement process and to ensure that Metro receives full value in connection with the transactions contemplated by the RFQ. Metro Code Especially on an important contract that fundamentally de?nes how Metro will be handing parking over the next thirty years. Metro must ensure that its procurement process is fair and equitable. will be substantially prejudiced by the denial of a stay. According to page 7 ofthe RFQ. Metro intends to award the contract on April 29-tliis coming Monday. (Ex. 3.) Keeping in mind that was disqualified not even It) days ago. this expedited schedule does not allow a protest to be ?nally heard prior to the contract being awarded. If this schedule is allowed to proceed and is successful in its protest. under the Metro ode. Metro will only have two options alter a successful protest. neither ot?whieh would be in the best interest of Metro: (1) revise the award to comply with the law and ratify and affirm the contract as in the best interest of Metro. or (2) cancel the contract and award LAZ damages. contends that if the protest is successful. option 1 would not be possible to the award cannot be modified to comply with the law if the law in question relates to the wrongful disquali?cation of Thus. the only remedy available to Metro would be to cancel the LAZ contract and pay LAZ damages. On the other hand. Talia April 26. 2019 Page 3 of 3 if a stay is granted and the protest is ultimately successful, Metro can either I) cancel the RFQ or (2) revise the RFQ to comply with the law. Clearly. Metro?s remedies in the case of a successful protest are much more palatable prior to the granting of an award. Thus, given the length of the contract. amount of money at stake, and the substantial questions of law and equity raised in the protest. a ?nal detcmaination on the merits of the protest should be heard prior to an award of the contract. lV. Automatic Stay Pending Appeal Under the Metro Code. pending this appeal. all discussions between Metro and LAZ to ?nalize the contract must cease and all proceedings toward the ?nal award of the RFQ must be automatically and immediately stayed. Metro Code 4.36.0300?) and procurement regulation V. Conclusion The Appeals Board should reverse the Purchasing Agent?s decision to deny the stay of this procurement so that, it' is successful on the merits of its protest, a decision on the merits will occur prior to the award of contract. The Purchasing Agent did not make the required ?ndings to deny a stay. and and Metro will be substantially harmed it? the Purchasing Agent?s decision is not reversed. Further. all proceedings related to the RFQ should be automatically stayed pending this appeal. i appreciate your time in deciding this appeal. Vc Saul Solomon CC: Michelle A. Hernandez~Lane, Chief Procurement Of?cer/Purchasing Agent. Jon Cooper. Director of Law