JACKSON KELLY ATTORNEYS AT LAW PLLC I099 18"' STREET 0 SUITE 2l50 - DENVER. COLORADO 80202 -TELEPHON E: 303-390-0003 303390-DI77 November 11, 2013 BY HAND DELIVERY AND BY EMAIL: Mr. Clint Woodruff, Director Division of Financial Services Department of Human Services 1575 Sherman Street Suite 611 Denver, Colorado 80235 E--mail: clint.woodruff@ state.co.us Re: Protest by Crisis Access, LLC of the Colorado Department of Human Services Determination to Cancel Solicitation NCR W14070750BH (Crisis Stabilization Services, Mobile Crisis Services, Crisis Residential/Respite Services) and to Withdraw the Award Dear Mr. Woodruff: Crisis Access, LLC d/b/a Crisis Access of Colorado, a Colorado limited liability company ("Crisis Access") protests the determination made by the Colorado Department of Human Services to cancel Solicitation for Crisis Stabilization Services, Mobile Crisis Services, Crisis Residential/Respite Services ("Crisis Services and to withdraw the award made to Crisis Access on October 16, 2013. This determination must be reversed because it is clearly erroneous, arbitrary, capricious, and contrary to law. C.R.S. 24-103-701. Moreover, this determination was the direct result of inappropriate ex parte efforts by aggrieved offerors affiliated and/or sponsored by the Colorado Behavioral Healthcare Counsel (collectively, "the CBHC Group") to reverse the award to Crisis Access without following the proper statutory bid protest process. Such an unprecedented, flagrant disregard of established procedures cannot be allowed to stand. However, if this determination is upheld, then in the alternative, Crisis Access protests CDHS's determination not to also cancel the companion Solicitation for Behavioral Health Crisis Prevention Hotline Warmline Services ("Call Center on the same grounds CDHS uses to justify cancellation of the companion Crisis Services The third companion Solicitation for the Colorado Crisis System Public Information and Educational Marketing Campaign ("Marketing Public Education is not a subject of this protest because Crisis Access did not submit a proposal in response to that solicitation. However, Crisis Access submits that, should CDHS determine to sustain the cancellation of the Crisis Services RFP and cancel the Call Center RFP on the same grounds, then the Marketing Public Education RFP should also be cancelled as well. 1 - C|arksburg.WV - Martinsburg.WV - Mor-gantown.WV -Whee|ing.WV Denver. CO - Evansviile. IN - Lexington, KY - Canton. OH 0 Pittsburgh. PA -Washington. DC Mr. Clint Woodruff, Director A Division of Financial Services Department of Human Services November 11, 2013 Page 2 As described in more detail below, the grounds for Crisis Access' protest are as follows: A. CDHS's Determination that It Failed to Fully Incorporate the Statutory Requirements in the Crisis Services RFP is Clearly Erroneous, Arbitrary, Capricious and Contrary to Law. B. CDHS's Determination that There Were Irregularities in the Evaluation Process is Clearly Erroneous, Arbitrary, Capricious, and Contrary to Law. C. CDHS Acted in Violation of Applicable Procurement Law and Regulations When it Failed to Follow the Standard Bid Protest Procedures Afforded to Aggrieved Bidders. D. CDHS Improperly Failed to Eliminate the Organizational Conflict of Interest that Existed as a Result of the Colorado Behavioral Healthcare Counsel's Assistance in Drafting the Specifications of the Companion RFPS. Crisis Access submitted bids in response to both the Crisis Services RFP and the Call Center RFP. Crisis Access was selected for award in all four regional divisions of the Crisis Services RFP but was not selected for award under the Call Center RFP. Crisis Access is therefore, an actual bidder who is aggrieved by CDHS's determination to cancel its award under the Crisis Services RFP but not to cancel the award made under the Call Center RFP. C.R.S. 24-109-102. This protest is timely pursuant to C.R.S. 24-109-102 because it is submitted within seven working days of November 1, 2013, the date Crisis Access was notified of CDHS's determination to cancel the Crisis Services RFP and withdraw its award. SUMMARY OF THE FACTS A. The Requests for Proposals In the summer of 2013, the CDHS initiated several procurements in response to findings and recommendations from CDHS Office of Behavioral Health House Bill 2010-13, Behavioral Health Crisis Response Services Study Report (January 2013) and in accordance with Senate Bill 13-266, which modified the Colorado Revised Statutes by adding 27-60-103 (the "Enabling Statute"). Direct and indirect stakeholders in one or more of the unsuccessful offerors whose owners are members of the CBHC Group (Community Crisis Connection, LLC, AspenPoint, Inc., Northeast Behavioral Health, LLC and West Slope CASA, LLC) were intimately involved in the legislative and administrative process that resulted in the Enabling Statute. They attempted to influence the legislative process in a manner that would ensure that they would be '1 Mr. Clint Woodruff, Director Division of Financial Services A Department of Human Services November 11, 2013 Page 3 the recipients of the awarded contacts and the associated funds appropriated by the Enabling Statute. The Enabling Statute requires the issuance of RFPs aimed at creating "a coordinated and seamless behavioral health crisis response system (the "System") to provide intervention services . . . for communities throughout the state" C.R.S. It also identifies five specific components that the resulting System must have: a twenty--four hour telephone crisis service; (ii) walk--in crisis services and crisis--stabilization units; mobile crisis services and units; (iv) residential and respite crisis services; and (V) a public information campaign. C.R.S. While the Enabling Statute allowed the use of separate solicitations for each of these System components, CDHS opted to cover all five using only three solicitations. On July 11, 2013, the CDHS issued the Call Center RFP addressing the first System component; the Crisis Services RFP addressing System components two through four; and the Marketing Public Education RFP addressing component five. The Crisis Services RFP requires offerors to submit a separate, complete proposal for offering all three components (mobile crisis services; crisis stabilization services; and crisis residential respite services) in each of four geographic service areas (Metro Denver; Westem Slope; Northeast; and Southeast). Crisis Services RFP, at Section p. 3. The Crisis Services RFP and Call Center RFP establish identical timelines and are generally very similar. Not surprisingly, their Background Overview and Goals and Statement of Work/Requirements sections reflect the differences between their subject matter. Compare Sections Ill and IV of the Crisis Services RFP to Sections and IV of the Call Center RFP. However, the two documents contain identical Evaluation and Award provisions. Compare Section VI of the Crisis Services RFP to Section VI of the Call Center RFP. B. The Procurement Process The companion RFPS were issued on July 11, 2013. Proposals were submitted on August 28, 2013. Crisis Access submitted a proposal for each of the four regions included in the Crisis Services RFP and a proposal for the Call Center RFP. On October 16, 2013, CDHS posted its award decisions online and sent notifications to all offerors. Crisis Access received notice that its Crisis Services proposals for all four regions had been accepted and that CDHS intended to award the contracts to Crisis Access. See Notice of Intent to Award Contract (Oct. 16, 2013), attached as Exhibit A. The Notice further explained that Crisis Access was the "apparent successful offeror" and that Crisis Access has "not yet been awarded a contract" because "[p]ursuant to Colorado law, may not proceed with a contract until the time period for unsuccessful offerors to protest has expired." Id. (emphasis in original). However, the Notice authorized Crisis Access to begin contract development and discussions with the agency contact. Chris Habgood. That same day, Crisis Access received a Mr. Clint Woodruff, Director Division of Financial Services Department of Human Services November 11, 2013 Page 4 separate notification that it was the unsuccessful in the Call Center RFP. CDHS selected Metro Crisis Services, Inc., a member of the CBHC Group, for award of the Call Center contract. The following day, the state procurement website no longer listed the contract awards for any of the companion RFPS, because, on information and belief, the Office of Behavioral Health withdrew the awards. However, the awards were reinstated on the website later that same day without explanation. C. Post-Award Efforts of the Unsuccessful Offerors Shortly after award notices were issued, the CBHC Group, who had been unsuccessful offerors under the Crisis Services RFP, began informal efforts to contest the Crisis Services award to Crisis Access. Notably, these organizations only contested the Crisis Service RFP, not the Call Center RFP. On October 2l, 2013, Harriett Hall, the Jefferson County Mental Health Chief Executive Officer and President of the CBHC sent an e--mail to a large group of community stakeholders that stated: We are extremely disappointed by the Department of Human Service's [sic] decision. I am quite concerned that this will not have the positive impact that was intended by the legislature. We are exploring all legal options for review of the awards process. . . . As you know, Colorado's community mental health centers worked very hard with the legislature and the Govemor's office last session to expand the proposed funding for a more robust crisis response system that would build on the strong community systems and services that already are in place to serve Coloradans. We believe that the proposal that Jefferson Center collaborated with the other five metro community mental health centers to submit had a strong foundation to do just that. See H. Hall e--mail (Oct. 21, 2013), attached as Exhibit B. On information and belief, these same community stakeholders who received this e--mail were also contacted by the other Colorado mental health center leaders affiliated with Ms. Hall members of the CBHC Group), who expressed disappointment that that CDHS had not chosen them for award and instead chose an out of state, for profit organization. On October 24, 2013, Crisis Access contacted a community stakeholder to find out about the status of the CBHC Group's efforts to challenge the award. The stakeholder informed Crisis Access that the CBHC Group intended to take a political route instead of following the protest procedures outlined in the RFP and the Procurement Code. Specifically, the CBHC Group intended to have the Administration reverse the award. A Mr. Clint Woodruff, Director Division of Financial Services Department of Human Services November 11, 2013 Page 5 Later that same day, Crisis Access received a news release issued by Reggie Bicha, Executive Director of CDHS. See News Release (Oct. 24, 2013), attached as Exhibit C. The news release explained that Mr. Bicha "asked the Department of Personnel and Administration Executive Director Kathy Nesbitt to conduct an independent, comprehensive review of the Crisis Services procurement" and "directed the procurement team to suspend the contracting phase until the DPA analysis has been completed." Id. The next day, Crisis Access' Chief Executive Officer, David Covington, contacted Bill Martin at CDHS to request more information on the status of the Crisis Services RFP. Mr. Covington asked whether a formal bid protest had been filed, and whether the statutory bid protest procedures had been circumvented. Mr. Covington also asked for copies of CDHS's scoring sheets and copies of the other offerors' proposals. On October 28, 2013, Steve Rosenthal, CDHS Division Director of Procurement, responded to Mr. Covington's e-mail by providing a copy of the spreadsheet that detailed the scoring of each reviewer for all Crisis Services proposals. Mr. Rosenthal stated that additional documents would only be provided following completion of the independent review referenced in the news release. In sharp contrast, it appears that the unsuccessful CBHC group was given informal access to additional documents that relate to the Crisis Services RFP. Most notably, a representative of the CBHC was provided with a copy of Crisis Access' proposal for Crisis Services (and all other vendor proposals) on October 21, 2013. See undated document titled "Behavioral Health Crisis Services RFP Distributed Information," received from the CDHS by Crisis Access on November 7, 2013 in response to Crisis Access' information requests, attached here as Exhibit D. Later that same day, Crisis Access reached out to a community stakeholder, with whom Crisis Access intended to form a collaborative relationship to perform the Crisis Services. That stakeholder informed Crisis Access that it had been advised by the state to put a hold on any discussions with Crisis Access. The community stakeholder was also contacted by members of the CBHC Group to see if the stakeholder would support their efforts to have the award of the Crisis Services contract to Crisis Access cancelled. The stakeholder declined and expressed its willingness to work with Crisis Access. On October 30, 2013, Mr. Covington met with a senior community health center executive affiliated and/or aligned with the unsuccessful CBHC Group (and who is also a current or former director of Metro Crisis Services, lnc., the successful offeror for the Call Center RFP). At the meeting, the executive told Mr. Covington that wrote this and that there were "significant issues with the review process." Specifically, the executive claimed that the evaluation team had "not done their job correctly." When pressed by Mr. Covington, the executive would not provide more details to support his statements or explain how he acquired confidential information about the RFP review and evaluation process. However, he disclosed that he had access to non--public information about the evaluation of Crisis Access's proposal and the evaluation process because CBHC had immediately requested and was provided with a copy of the Crisis Access proposal immediately following announcement of the Crisis Access award. Mr. Clint Woodruff, Director Division of Financial Services A Department of Human Services November 11, 2013 Page 6 The executive then stated that he might consider awarding a subcontract to Crisis Access once the initial award was reversed and his group prevailed. Late afternoon on November 1, 2013, Crisis Access and all other offerors who submitted proposals in response to the Crisis Access RFP received a letter from your office. See C. Woodruff Letter (Nov. 1, 2013), attached as Exhibit E. The letter explained that "the independent Department of Personnel and Administration review of [the Crisis Services determined that a failure to fully incorporate the statutory requirements in the solicitation, coupled with irregularities noted in the evaluation process, lead to the conclusion that this is a failed solicitation." Id. The letter then explained that "[t]he Intent to Award is being withdrawn, and the Notice on Bids will be cancelled" and that CDHS will "issued a new RFP within the next several weeks." Id. That same day, Crisis Access received another News Release from Mr. Bicha announcing the determination that the Crisis Services RFP was a "failed solicitation." See News Release (Nov. 1, 2013), attached as Exhibit F. On November 4, 2013, Harriet Hall, sent an e-mail to the same group of community stakeholders to announce CBHC's success at persuading the CDHS to cancel the Crisis Services RFP. H. Hall e-mail (Nov. 4, 2013), attached as Exhibit G. Specifically, she wrote that the agency's action was "unprecedented, as far as [she] knows" and that the "decision that this was a failed procurement seems appropriate and correct." Id. She also thanked stakeholders for "express[ing their] concern to CDHS and/or the Governor's office" explaining that "the concerns expressed by many of [the stakeholders] and the strong community support were vital to this solution." Id. The e-mail also confirms that Community Crisis Connection, LLC, the unsuccessful offeror for the Metro Denver Regional portion of the Crisis Services RFP is under the control of the Community health centers in the Denver metro area. On November 4, 2013, Mr. Covington of Crisis Access sent an e-mail to Mr. Rosenthal questioning the CDHS's unprecedented decision to simply cancel and re--issue the Crisis Services RFP despite the fact that the evaluation workbook shows that the evaluators carefully considered and evaluated all proposals on an objective basis and determined that the Crisis Access proposal was the most advantageous to the State of Colorado. His e-mail also expressed Crisis Access' concems about the prejudicial effect of the CDHS's decision to abandon the formal protest process in response to inappropriate contacts by the unsuccessful offerors, especially when Crisis Access' competitors are now in possession of Crisis Access' successful proposal. Mr. Covington's e-mail also followed up on his previous request for access to documents and information relating to the RFP, including the proposals submitted by the unsuccessful offerors. Two days later on November 6, 2013, Clint Woodruff of the CDHS sent a brief e-mail to Mr. Covington which states that a package of responsive documents was being sent to Crisis Access by overnight delivery. Mr. Woodruff's e-mail did not provide any responses to Mr. Covington's specific questions, did not describe the specific manner in which the RFP did not comply with the statutory requirements, and did not identify the alleged "irregularities" in the Mr. Clint Woodruff, Director I Division of Financial Services Department of Human Services November 11, 2013 Page 7 evaluation process. The documents sent by Mr. Woodruff were not received until November 7, 2013. The documents provided to Crisis Access so far also show that the review committee completed a very thorough review that complied with the Enabling Statute and RFP, and that the Crisis Services RFP is anything but a "failed solicitation." A copy of an undated letter from Mr. Chris Habgood, Chair RFP Review Committee, to notify Mr. Stephen Rosenthal, Division Director, Procurement, of the review committee's decision is attached hereto as Exhibit H. Mr. Habgood's letter and the scoring workbook confirm that the reviewers considered the guideline of the Enabling Statute and all evaluation factors in connection with its review and concluded that Crisis Access' proposal for Crisis Services was the most advantageous to the State of Colorado and embodies the best service delivery approach. Another untitled document provided to Crisis Access on November 7, 2013 appears to be the committee's notes and summarizes its review of the submitted proposals for Crisis Services, including a list of "Encouraging" and "Less Favorable" factors for each offeror. See untitled document provided by the CDHS on November 7, 2013 attached hereto as Exhibit 1. Conversely, the only document provided by the CDHS to support the decision to cancel the Crisis Services RFP is a one page "executive summary" of the DPA's "independent review" which has no substance and merely makes the same conclusory statements about the committee's alleged "failure to fully incorporate the statutory requirements, coupled with noted irregularities in the evaluation process" that were included in the November 1, 2013 news release and related correspondence. This document does not identify any specific requirement of the Enabling Statute that was not addressed by the review committee or describe any alleged "irregularities." See Executive Summary, attached as Exhibit J. Crisis Access has also recently learned that the CBHC interest group appears to be engaged in a campaign to tum the community stakeholders against Crisis Access in connection with the currently planned new RFP process. A copy of an e-mail received from a community stakeholder that describes meetings where representatives of the CBHC interest group made incorrect and disparaging statements about Crisis Access is attached hereto as Exhibit K. DISCUSSION A. CDHS's Determination that It Failed to Fully Incorporate the Statutory Requirements in the Crisis Services RFP is Clearly Erroneous, Arbitrary, Capricious and Contrary to Law. Any decision by CDHS related to the award, or in this case withdrawing award, of a contract cannot be upheld if it is clearly erroneous, arbitrary, capricious, or contrary to law. C.R.S. 24--lO3--701. In other words, the agency must provide a rational and reasonable basis for its decision, and must have adequate documentation to support its judgment. See, Division of Financial Services Department of Human Services November ll, 2013 Page 8 Mr. Clint Woodruff, Director Trailboss Enters, Inc, B--407093 (Comp. Gen. Nov. 6, 20l3).2 Here, CDHS's determination that the Crisis Services RFP failed to fully incorporate the statutory requirements is not adequately supported and cannot stand?' In reality, the Crisis Services RFP is anything but a "failed solicitation." The RFP Evaluation Committee's Recommendation demonstrates that the reviewers considered the guideline of the Enabling Statute and all evaluation factors in connection with its review and concluded that Crisis Access's proposal for Crisis Services was the most advantageous to the State of Colorado and embodies the best service delivery approach. See Evaluation Committee Recommendation (undated), attached as Exhibit H. Conversely, the only document provided by the CDHS to support the decision to cancel the Crisis Services RFP is a one page "executive summary" of the DPA's "independent review" which has no substance and merely makes the same conclusory statements about the committee's alleged "failure to fully incorporate the statutory requirements, coupled with noted irregularities in the evaluation process" that were included in the CDHS's November 1, 2013 news release and related correspondence. See Executive Summary, attached as Exhibit J. This document does not identify any specific requirement of the Enabling Statute that was not addressed by the review committee or describe 2 Procurement officials are instructed to conduct all purchasing activities in accordance with the laws. including the Federal Acquisition Regulations See State of Colorado. Procurement Code of Ethics and Guidelines, at 7. 3 To the extent that this determination is the result of efforts by the aggrieved CBHC Group to complain about the terms of the RFP, that argument is untimely. C.R.S. 24-109-102; see also PAR 33--lO3(e) (relating to Agency- level protests) ("Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals") The Government Accountability Office, which also handles protests under the FAR, has a similar rule: "Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals." 4 CFR GAO has explained its timeliness rules as follows: [O]ur timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. More specifically, underlying our timeliness rules regarding solicitation improprieties is the principle that challenges which go to the heart of the underlying ground rules by which a competition is conducted, should be resolved as early as practicable during the solicitation process, but certainly in advance of an award decision if possible, not afterwards. . . . Such a rule promotes fundamental fairness in the competitive process by preventing an offeror from taking advantage of the govemment as well as other offerors, by waiting silently only to spring forward with an alleged defect in an effort to restart the procurement process, potentially armed with increased knowledge of its competitors' position or information. . . . It also promotes efficiency by ensuring that concems regarding a solicitation are raised before contractor and government resources are expended in pursuing and awarding the contract, thus avoiding costly and unproductive litigation after the fact. Armorworks Enterprises, LLC, B-400394 (September 23, 2008) (Citations omitted and emphasis added) (holding protest based on solicitation impropriety untimely where protester waited until after award to file its protest). Like the protester in Armorworks, the CBHC Group waited for the outcome of the procurement to decide whether to complain about the content of the Crisis Services RFP and, as a result, waited too long to submit a timely protest. Allowing them to avoid timeliness rules applicable to protests by simply ignoring the protest process would be clearly erroneous, arbitrary, capricious and contrary to law. Mr. Clint Woodruff, Director Division of Financial Services Department of Human Services November ll, 2013 Page 9 any alleged "irregularities." Id. Furthermore, CDHS has failed to provide any other justification for its determination even when asked directly and repeatedly what statutory requirements are missing from the RFP. The fact that CDHS cannot provide a basis for its decision demonstrates that the decision is irrational on its face. Indeed, a careful review of the Crisis Services RFP belies the DPA's summary conclusions. Section explains that "Evaluation criteria for the proposals will be used for the purpose of ranking the proposals in a relative position based on how fully each proposal meets be requirements of this Section makes clear that the majority of the evaluation depends on the Business Proposal, which was to be graded on both the "comprehensiveness and appropriateness of the work plan (technical criteria) and the "adequacy and completeness of the proposal with regard to the requirements specified in the The specific requirements that offerors were directed to address in their proposals are set forth primarily in Sections and IV, which contain the RFP Goals and the Statement of Work Requirements. As detailed in the chart attached as Exhibit ("Statutory Evaluation Criteria"), those goals and requirements cover all of the criteria required for evaluation by the Enabling Stature. Similarly, the principles on which the Enabling Statute requires the System to be based are all referenced in the Crisis Services RFP, as demonstrated by the chart attached as Exhibit ("Statutory Principles for System"). Even if the Crisis Services RFP were found not to have adequately included all the statutory evaluation criteria or not to have adequately required the System to reflect all the statutory principles, such a finding would not support the notion that it is part of a "failed solicitation" under the circumstances here. In order to successfully demonstrate that a challenged procurement is improper, a protester must show that it was actually prejudiced by the alleged misstep. As noted by the GAO, "Prejudice is an essential element of every viable protest, and where none is shown or otherwise evident, we will not sustain a protest, even where a protester may have shown that an agency's actions arguably were improper." ITT Sys., B--402808 (Aug. 6, 2010) (citations omitted). Here, given the extensive involvement of the various stakeholders -- including those involved in the back channel "protest" that led to the Crisis Services RFP award being withdrawn -- in the legislative process that culminated in the Enabling Statute, the idea that any offeror was either unaware of the evaluation criteria being used or the principles that had to be reflected in the System is without support. The notion that any of them would have failed to address all the statutory requirements in their proposals because of what the RFP said or did not say is similarly absurd. And the question of whether the RFP contents or the actual evaluation resulted in prejudice to any offeror is properly answered by determining whether remedying the alleged shortcomings would result in a different outcome. Crisis Access respectfully submits that fixing the purported problems with the solicitation would not alter the outcome in any way and, therefore, there is no prejudice that would support a protest. Mr. Clint Woodruff, Director Division of Financial Services A Department of Human Services November 11, 2013 Page 10 Perhaps this lack of prejudice explains why the CBHC Group opted not to file a protest, but the prejudice requirement should not be ignored simply because the established protest procedure has been. B. CDHS's Determination that There Were Irregularities in the Evaluation Process is Clearly Erroneous, Arbitrary, Capricious, and Contrary to Law. Under the terms of the RFP, CDHS was to award the contract "to the Offeror whose proposal, conforming to the RFP, will be the most advantageous to the Department, price and other factors considered." Crisis Services RFP Section VI. Specifically, the RFP provided that proposals would be scored in three categories: Administrative and Organizational Structure and Demonstrated Experience and Capabilities Business Proposal and Pro Forma Financial Statement Id. Within each category, the RFP provided the specific factors to be considered. Id. Finally, the RFP provided precisely what would be considered to support the basis for award. Id. Notably, there was no requirement in the Enabling Statute or the RFP that the awardee be a Colorado company. In fact, on July 24, 20l3, the CDHS held a bidders conference during which offerors were permitted to ask questions and request clarification of the RFP terms. One question raised at the conference and answered in writing by the CDHS was "[w]ill any preference be given to firms based in Colorado?" The response specifically states that "[p]reference will n_ot be given to firms solely because they are based in Colorado; however, Senate Bill l3-266 (Section C.R.S.) requires the Department to evaluate proposals based on Offerors ability to "show evidence of collaboration with existing systems of care . . . responses (July 24, 2013), attached as Exhibit N. Thus, consistent with the Enabling Statute and the terms of the RFP, CDHS provided no preferential treatment for Colorado companies, but instead, looked only at the offerors' abilities to show collaboration with existing systems of care. Crisis Access's proposal presented extensive evidence that it has a history of and the ability to collaborate with the existing systems of care in Colorado, as well as an expanded community stakeholder group. The scoring sheets provided to Crisis Access show that the evaluators considered this factor (as well as all other relevant factors), and gave Crisis Access competitive numerical scores that confirm its ability to successfully collaborate with the state's existing systems of care. The scoring worksheets show that the evaluation process was objective, complied with the RFP terms and the applicable statute, and arrived at the result that is most advantageous for the State of Colorado and its citizens. For the record, Crisis Access is a Colorado limited liability company. Additionally, the RFP Evaluation Committee's Recommendation demonstrates that the Committee followed all required evaluation procedures and that there were no irregularities in the evaluation process. See Evaluation Committee Recommendation (undated), attached as Exhibit H. The Recommendation explains that "[t]he Evaluation Committee, in accordance with the guidance provided in Senate Bill 13-266 and the evaluation criteria as published in the request for proposals, believes that Crisis Access of Colorado's proposal most closely aligns with Mr. Clint Woodruff, Director Division of Financial Services Department of Human Services November 11, 2013 Page 11 and meets the RFP requirements and is therefore, recommending the award go to Crisis Access of Colorado." Id. Specifically, the Evaluation Committee based its decision on "several factors" and found that "[o]verall Crisis Access of Colorado's proposal demonstrates a robust plan to provide statewide walk-in crisis stabilization services; mobile crisis services, and crisis respite/residential services across four regions." Id. The recommendation further lists specific bases for determining that Crisis Access's proposals were "the most innovative, integrated, and recovery focused proposals for transforming Colorado's crisis delivery across the state." Id. The Committee found that Crisis Access's proposals "to include very progressive, strength based, services for all populations, with a focus on least restrictive settings and services and a strong focus on recovery." Id. The Committee also listed several key components of Crisis Access's proposals that'"make it stand out." Id. The Recommendation is consistent with the Evaluation criteria in the RFP. It demonstrates that the Committee followed its stated criteria and conducted a thorough analysis of the proposals as required in the RFP. Thus, there is no basis for CDHS's determination that there were "irregularities in the evaluation process." C. Woodruff Letter (Nov. 1, 2013). Furthermore, CDHS has failed to provide any justification or support for its determination that is contrary to the demonstrated findings of the Evaluation Committee. Thus, CDHS's determination is clearly erroneous, arbitrary, capricious, and contrary to law. C. CDHS Acted in Violation of Applicable Procurement Law and Regulations When it Failed to Follow the Standard Bid Protest Procedures Afforded to Aggrieved Bidders. The Colorado Procurement Code unambiguously established the steps that an aggrieved offeror may take to challenge an agency's procurement decision. C.R.S. 24-109-102. An aggrieved offeror is to file a written protest detailing the grounds for its challenge to the head of the purchasing agency, and as correctly stated in the October 16, 2013 letters sent to all offers announcing the RFP results. 1.21.; see also Exhibit A. After filing a protest, an aggrieved offeror may request information regarding the protest. R--24-109-102-02. Consistent with these procedures, the RFP outlines exactly how communications should be made regarding the procurement. The RFP directs that "[a]ll communication for this procurement must be done through the CDHS Division of Procurement point of contact indicated in the RFP and Crisis Services RFP Section 1. Thus, the RFP and the Procurement Code create a fair and transparent method for offerors to communicate with the agency and challenge procurement decisions. It also permits other interested parties to participate in the process, and allows the agency to reach a reasonable and justifiable determination based on input from all interested parties. However, instead of following these statutory procedures, the CBHC Group chose to circumvent the rules and seek an ex parre political resolution that deprived Crisis Access of a chance to participate in the process. As established by Harriet Hall's November 4, 2013 e--mail, A Mr. cam Woodruff, Director Division of Financial Services Department of Human Services November 11, 2013 Page 12 members of the CBHC Group sought assistance from the Administration and other state officials in an effort to reverse the award without having to file a protest. In fact, Ms. Hall specifically recognizes that actions are "unprecedented." H. Hall e-mail (Nov. 4, 2013). Additionally, the CBHC Group has improperly obtained information regarding Crisis Access's proposal and the Evaluation Committee's determinations outside the proper procurement procedures. Thus, rather than following applicable law by evaluating and analyzing reasoned protest grounds, CDHS allowed the CBHC Group to reverse the award without any justification and without affording Crisis Access an opportunity to respond. CDHS's determination to reward the CBHC Group's actions in violation of procurement law and regulation cannot stand. D. CDHS Failed to Eliminate the Organizational Conflict of Interest that Existed as a Result of the CBHC's Assistance in Drafting the Specifications of the Companion RFPS. It is well-established under Colorado procurement law as well as under Federal procurement law, that an award cannot be made to an offeror that. has an organizational conflict of interest. State of Colorado, Procurement Code of Ethics and Guidelines, at 9; FAR 9504.4 Specifically, the Colorado Procurement Code of Ethics instructs procurement officials to eliminate participation of organizations that have provided "assistance with writing the specifications for bidding purposes." Procurement Code of Ethics at 9; see also FAR 9.505--2 ("If a contractor prepares and fumishes complete specifications . . . to be used in a competitive acquisition, that contractor shall not be allowed to fumish these items"). As a result, conduct that "in any way diminishes, or even appears to diminish, open and fair treatment of suppliers [must] be strictly avoided." Code of Ethics, at 5 (emphasis added). Here, on information and belief, members of the CBHC Group assisted CDI-IS with drafting the companion RFPs. In fact, one member of the CBHC Group (and director of Metro Crisis Services, lnc., the successful offeror for the Call Center RFP) has claimed to have actually written the RFPs. Such statements and participation by members of the CBHC Group in drafting the RFP specifications creates a clear conflict of interest prohibited by the Code of Ethics and other procurement laws. In the face of such a conflict, CDHS should have eliminated from competition all offerors who have an unequal, competitive advantage as a result of the CBHC's assistance in drafting the RFPs. Additionally, if decision to re--issue a new RFP stands, then CDHS should eliminate from the new competition all offerors who have a conflict of interest, consistent with Colorado procurement law. REQUEST FOR RELIEF For all of the reasons set forth above, Crisis Access requests that the CDHS take the following actions in response to this protest: 4 The Federal Acquisition Regulation is located in title 48 of the Code of Federal Regulations A Mr. Clint Woodruff, Director Division of Financial Services Department of Human Services November 11, 2013 Page 13 1. That the CDHS reinstate the Notice of Intent to Award Contract issued to Crisis Access as the successful offeror for the Crisis Services; 2. In the event the CDHS denies Crisis Access' protest and does not reinstate the Notice of Intent to Award Contract, that the CDHS stay the issuance of a new RFP until Crisis Access has exhausted all rights of appeal pursuant to the Colorado State Procurement Code and Rules; 3. In the event the CDHS denies Crisis Access' protest and does not reinstate the Notice of Intent to Award Contract (for Crisis Services), that the CDHS also cancel the Notice of Intent to Award Contract issued to Metro Crisis Services, Inc. in connection with the Call Center RFP and issue a new Call Center RFP so that Crisis Access and the other unsuccessful offerors are given the opportunity to submit new proposals. 4. That the CDHS direct all unsuccessful offerors who believe they have been aggrieved in connection with the Crisis Services RFP to resort solely to the statutory protest process and refrain from further inappropriate and prejudicial contacts with the CDHS and other agencies and offices of the executive branch of the State of Colorado. 5. That the CDI-IS take such other actions as are necessary and proper under the circumstances. Pursuant to C.R.S.A. 24--l03--702, we are also sending a copy of this letter and attachments to the attorney general to notify the attomey general of the collusive and anticompetitive practices of the unsuccessful offerors in connection with the Crisis Services RFP. Please let us know if you have any questions or require any additional information in connection with your consideration of this protest. Sincerely, Shayne l\/adsen Jackson Kelly PLLC 1099 18th Street Suite 2150 Denver, CO 80202 Tele: (303) 390-0012 Fax: (303) 390-0177 smadsen @jacksonkelly.com Counsel for Crisis Access, LLC 14