Appellant's Prehearing Statement - Arizona Office of Administrative ...

1234567891011121314151617181920212223242526record).2. ADES Early Intervention Bid Scoring Summary Sheet.3. ADES Working Evaluation Form for MOSAIC Region 2 Bid.4. ADES Working Evaluation Form for SEEK Arizona Region 2 Bid5. ADES Working Evaluation Form for Sunny Days Region 2 Bid6. ADES Working Evaluation Form for Sunrise Therapy Region 2 Bid7. ADES Working Evaluation Form for United Cerebral Palsy Region 2Bid8. ADES Working Evaluation Form for Arizona Cooperative TherapiesRegion 2 Bid9. ADES Working Evaluation Form for Dynamite Therapy Region 2Bid10. ADES Working Evaluation Form for Family Partners Region 2 Bid11. ADES Working Evaluation Form for MOSAIC Region 5 Bid.12. ADES Working Evaluation Form for Rise Early Interventions Region5 Bid.13. ADES Working Evaluation Form for SEEK Arizona Region 5 Bid.14. ADES Working Evaluation Form for Southwest HumanDevelopment Region 5 Bid.15. ADES Working Evaluation Form for Sunny Days Region 5 Bid.16. ADES Working Evaluation Form for United Cerebral Palsy Region 5Bid.17. ADES Working Evaluation Form for Arizona Cooperative TherapiesRegion 5 Bid.18. ADES Working Evaluation Form for Dynamite Therapy Region 5Bid.19. ADES Working Evaluation Form for Family Partners Region 5 Bid.20. ADES Working Evaluation Form for MOSAIC Region 7 Bid.21. ADES Working Evaluation Form for Rise Early Interventions Region7 Bid.3

123456789101112131415161718192021222324252622. ADES Working Evaluation Form for SEEK Arizona Region 7 Bid.23. ADES Working Evaluation Form for Sunny Days Region 7 Bid.24. ADES Working Evaluation Form for Arizona Cooperative TherapiesRegion 7 Bid.25. ADES Working Evaluation Form for Dynamite Therapy Region 7Bid.26. ADES Working Evaluation Form for Family Partners Region 7 Bid.27. ADES Working Evaluation Form for Generations Physical TherapyRegion 7 Bid.28. ADES Working Evaluation Form for MOSAIC Region 8 Bid.29. ADES Working Evaluation Form for Easter Seals Region 8 Bid.30. ADES Working Evaluation Form for Rise Early Interventions Region8 Bid.31. ADES Working Evaluation Form for Generations Physical TherapyRegion 8 Bid.32. ADES Working Evaluation Form for Sunny Days Region 8 Bid.33. ADES Working Evaluation Form for Arizona Cooperative TherapiesRegion 8 Bid.34. ADES Working Evaluation Form for Dynamite Therapy Region 8Bid.35. ADES Working Evaluation Form for MOSAIC Region 9 Bid.36. ADES Working Evaluation Form for Easter Seals Region 9 Bid.37. ADES Working Evaluation Form for Generations Physical TherapyRegion 9 Bid.38. ADES Working Evaluation Form for Gila County Association forRetarded Citizens Region 9 Bid.39. ADES Working Evaluation Form for Horizon Pediatric TherapyRegion 9 Bid.40. ADES Working Evaluation Form for SEEK Arizona Region 9 Bid.41. ADES Working Evaluation Form for Sunny Days Region 9 Bid.42. ADES Working Evaluation Form for Arizona Cooperative Therapies4

1234567891011121314151617181920212223242526Region 9 Bid.43. ADES Working Evaluation Form for Dynamite Therapy Region 9Bid.44. Chief Procurement Officer’s January 23, 2013 Decision regardingDynamite’s Protest for Region 2.45. Chief Procurement Officer’s January 23, 2013 Decision regardingDynamite’s Protest for Region 5.46. Chief Procurement Officer’s January 23, 2013 Decision regardingDynamite’s Protest for Region 7.47. Chief Procurement Officer’s January 23, 2013 Decision regardingDynamite’s Protest for Region 8.48. Chief Procurement Officer’s January 23, 2013 Decision regardingDynamite’s Protest for Region 9.49. ADES Special Instructions to Offerors relating to subject bids.50. ADES Special Terms and Conditions relating to subject bids.51. Arizona Early Intervention Program Scope of Work Definitions.52. Arizona Early Intervention Program Scope of Work Definitions forRegion 2 for subject bids.53. AzEIP Special Terms and Conditions for subject bids, as revised5/9/2012.54. Dynamite Complete Bid Proposal for Region 2.55. Dynamite Complete Bid Proposal for Region 5.56. Dynamite Complete Bid Proposal for Region 7.57. Dynamite Complete Bid Proposal for Region 8.58. Dynamite Complete Bid Proposal for Region 9.59. June 27, 2012 email regarding revised AzEIP Policies andProcedures effective July 1, 2012.60. AzEIP Policies and Procedures Screen Shot61. Any and all non-objectionable exhibits listed by Respondent.62. Any and all exhibits identified between the time of filing Statementand the time of Hearing.5

1234567891011121314151617181920212223242526RELEVANT LEGAL ISSUESAs stated by the Arizona Department of Administration, State ProcurementOffice, the express purposes behind the enactment of the Arizona Procurement Code areto:state.agencies.1. Simplify, clarify and modernize the law governing procurement by the2. Permit the continued development of procurement policies and practices.3. Make as consistent as possible the procurement laws among various state4. Provide for increased public confidence in the procedures followed inpublic procurement.5. Ensure the fair and equitable treatment of all persons who deal with theprocurement system of this state.6. Provide increased economy in state procurement activities and maximizeto the fullest extent practicable in purchasing value of public monies of this state.system.7. Foster effective broad-based competition within the free enterprise8. Provide safeguards for the maintenance of a procurement system ofquality and integrity.As pointed out in the proceedings below, it is Dynamite’s belief that thescoring process utilized with respect to this procurement effort did not comply with thepurposes of the Arizona Procurement Act. Specifically, the instructions relating to whichspecific set of Policies and Procedures to utilize in responding to the bid was vague andambiguous under the circumstances, and this ambiguity lead to the majority of thedeductions from Dynamite’s bids. Furthermore, there were repeated and incontrovertibleerrors in the scoring performed on Dynamite’s bids. Finally, the scoring appears to bewholly subjective, without any objective measure for deductions from any bidder’s6

1234567891011121314151617181920212223242526submissions. Based upon all of these issues, it is clear that the purposes of the ArizonaProcurement Act (fairness, transparency, equity, clarity, integrity, free enterprise) werefrustrated here.As was set forth in the Arizona Department of Administration Director’sRequest for Hearing in this matter, Respondent has not provided any objective andrational basis for justifying specific scoring of the bids at issue, or set forth a sufficientlevel of detail showing how the scoring of the various areas in the bids were objectivelyperformed. The sole issue in this Appeal relates to the objective basis for the scoring,with specific emphasis placed upon the clarity of the instructions relating to which versionof the Policies and Procedures should be used in developing the bids.Again, it is not Appellant’s intent to question the decision to proceed with ateam-based model, or move away from an open marketplace. Appellant simply believesthat its bid was not scored appropriately under the circumstances, due to the inherentambiguity in the bidding instructions and lack of objective standards in the scoring.Appellant firmly believes that, if the bids were objectively rescored without deductionsfor utilizing the most current set of Policies and Procedures (and without deductions foradmitted errors in the scoring of Appellant’s bids), Appellant would qualify for a contractaward in all five of the regions set forth in this award. Appellant therefore requests a fairand impartial rescoring of the bids, based upon use of the Policies and Procedures in effectas of the date of the submissions.TELEPHONIC CONTACTUndersigned counsel can be contacted at 480-946-2309, or at 602-277-7123.The principals of Appellant (Svetlana Graber and Greg Graber) can be available uponrequest, subject to their pre-scheduled therapy sessions and other work-related obligations.7

1234567891011121314151617181920212223242526In any event, counsel has discussed the issues with Appellant in detail, and is prepared todiscuss resolution and case status with the Court and Respondent.DATED this 30 th day of May, 2013.ORIGINAL E-FILED this 30 th dayof May, with COPY EMAILED thissame day to:Barbara Behun, Assistant Attorney GeneralArizona Attorney General’s Office1275 West Washington Street, Site Code: 040APhoenix, Arizona 85007-2926Attorneys for Respondent/s/ Ryan LinderAppellant’s Prehearing StatementLINDER & GULLY, P.L.C.BY /s/ Ryan LinderRyan J. LinderDrew M. Gully60 East Rio Salado Parkway, Suite 900Tempe, Arizona 85281Attorneys for Appellant Dynamite Therapy8