BuTLER|SNOW April 18, 2013, VIA FACSIMILE and HAND-DELIVERY Mr. J. Brent Christensen, Executive Director Mississippi Development Authority 501 North West Street Jackson, MS 39201 Facsimile: (601)359-3613 RE: Protest Regarding Request for Proposals to Provide Economic Development Advertising Agency Services, RFP # BCDV03192013 Dear Mr. Christensen: Pursuant to Mississippi Development Authority's Policy and Procedures for Protest, the following Protest is submitted on behalf of Godwin Adveitising Agency, Inc. d/b/a GodwinGroup and Frontier Strategies, LLC (“Godwin-Frontier”) regarding the above-referenced RFP. The failure of MDA’s evaluntors to follow the REP’s written procedures and applicable State regulations resulted in an erroneous result that should be remedied by the Executive Director. Background ‘The Mississippi Development Authority (“MDA”) released its Request for Proposals to Provide Economic Development Advertising Agency Services, RFP # ECDV03192013 (the “REP”), on or about February 27, 2013, (Exhibit A). Through the RFP MDA sought proposals from professional services contractors to serve as the agency of record for MDAVs Economic Development marketing and advertising, See REP, p. 1, ‘Those interested in providing proposals ‘were given less than three weeks to respond.! Proposals which met certain minimum specifications,” Step I, were to be analyzed by MDA in Step II according to the following “evaluation factors:” A, The overall quality of the proposed plan for performing the required services (Critical), B, Understanding of the services and its objectives (Critical. * Proposers were to submit the original and six (6) copies ofthe proposal and all attachments in a sealed package and delivered to MDA on or before March 19,2013. REP, Sect. 16. * REP, Seot.6, pA Mane W. Gaaica | Sete 1400 Poe Off Roe 6010 601.985.4506 | 1020 Highend Colony Pertany Ridgeland, MS 39158-6010 nate gurigu@butersnomenm Rida, HS 38157 T 6019485711 + F 601.985.4500 » wombutrioncom BuTLAK, Sow, O'MARA, Srevans R CannMAod, PLLCMr. Brent Christensen April 18, 2013, Page 2 C. The degree of completeness of response to the specific requirements of the solicitation (Very Important) D, Proposer’s ability to provide the requiced services as reflected/evidenced by qualifications (education, experience, minority participation, ete includes the ability of the Proposer to provide a work product that is legally defensible (Critical). E, A record of past performance of similar work (Very Important). F, The personael, equipment, and financial resources to perform the services currently available or demonsttated to be made available atthe time of contracting, (important), G, Price (Important), id. at Sect 3 (emphasis in original). “[T]op-scoring Proposers, based on evaluation of the ‘written proposal” were required to participate in oral presentations. No evaluation factors were provided for oral presentations; instead, the RFP clearly stated that the only purpose of presentations would be for Proposers to “support and clarify their proposals.” Id. (emphasis added). ‘Godwin-Frontier timely submitted its proposal (the “Proposal”). Shortly before 5 p.m. on April 1, MDA notified Godwin by email that its presentation had been rescheduled for April 4 at 9 am. (Exhibit B). The email also informed Godwin-Frontier that it should be prepared to addtess five topies at the presentation: 1) Demonstrate how your agency will market Mississippi to multiple audiences as a choice location for business vin digital media and other venues you deem appropriate. 2) Show us how your agency is competent and possesses the expertise needed to effectively market Mississippi with the goal of increasing business investment in i the State, 3) Using a prior campaign as an example, describe and show your most successful ‘media campaign and your method (o completion, 4) Show us how yout agency is cross functional, media buying, account ‘management, writing, design, production (print and electronic), social media, web design, web programming, mobile marketing, content management, all across a fully integrated marketing progeam, 5) Any additional examples or insights of your choice may be included in this section, (Exhibit B). ‘These evaluation criteria were aew to the process and are not found in the RFP. Godwin- i Frontier’s presenters made their presentation before nine individuals (eight MDA employees andMe. Brent Christensen April 18, 2013, Page 3 ‘one non-employee) on the appointed date and time. On April 8, 2013, MDA informed Godwin- Frontier that it bad not been selected as the winning proposer. Protest Issue MDA’s Evaluators Failed to Follow PSCRB Regulations and Procedures Outlined In the RFP and Improperly Scored the Godwin-Frontier Proposal, The use of competitive sealed proposals to select a vendor is one of a number of Procurement vehicles sanctioned by the Mississippi Personal Services Contract Review Board CPSCRB"). This form of procurement, also known as a Request for Proposals, is appropriate ‘when the offering agency must weigh degrees of technical or professional expertise. See PSCRB Reg, 3-203.03.2.2 (Effective Jan. 1, 2013), Although the RFP process is designed to be somewhat more flexible than some other forms of procurement, PSCRB regulations are clear in their requirement that: (1) evaluation factors and their relative importance must be clearly stated in the RFP; and (2) oral presentations are not the “proposal,” but instead, are used “for the purpose of clarification to assure full understanding of, and responsiveness (0, the solicitation requitements.” Id. at 3-203.01(); see also id. at (e). The REP procedures followed by MDA’s evaluators violate both of these requirements. While the REP states that proposers may be required to participate in oral presentations, the procurement instrument itself references no separate evaluation factors for such presentations, The new factors referenced by an MDA employee in his email informing Godwin-Frontier of the date for the oral presentation, as stated previously, wero used and scored by the evaluators, This is clearly contrary to PSCRB regulations that provide that an award should only be based on the price and “the evaluation factors set forth in the Request for Proposal.” dd. at 3-203.01(g). “No other factors or criteria shall be used in the evaluation.” Id (emphasis added), ‘The governing regulations repeat this prohibition in subsequent sections: 3-203.13.1 Evaluation of Proposals The Request for Proposal shall state all of the evaluation factors, including price, and their relative importance, 3-203,13.2 Evaluation ‘The evaluation shall be based on the evaluation factors set forth in the Request for Proposal... . Factors not specified in the Request for Proposal shall not be consideres PSCRB Reg. at p, 41 (emphasis added). iMr. Brent Christensen April 18, 2013, Page 4 ‘The fact that MDA scored Godwin-Frontier’s oral presentation, in addition to the proposal, only exacerbates this egregious error. Scoring sheets for the oral presentation procuced by MDA clearly show that the evaluators assigned points, on a scale of 1 — 5, using the previously referenced four criteria not found in the REP. Even worse, the evaluators were scripted 10 ask eight more questions not found in the oral presentation email or the REP: 1) How will you work within the confines of a state agency budget and implement successful marketing steatgies? 2) Does your agency provide any other “added value,” such as those attributes outside of an houty tate andor agency commission? 3) How many clicat services do you sub-contract with a third party? If any, explain why. 4) Who do you see as the primary target audiences for this overall campaign. 5) What is your approach to website development and what would be your agency plan for Mississipp.org? 5) What do you believe is the biggest opportunity in digital media for bui capacity and brand awareness for the Mississippi Development Auth marketing efforts? 7) How do you intend to prioritize MDA’s needs when trying to balance other clients? 8) How does your agency define success and how do you measure if? ‘These additional questions were scored also, representing a whopping 360 out of 540 possible points for the oral presentation, While PSCRB regulations sanction the use of discussions with proposers, the purpose of such procedures is limited to discussions to: “(a) promote understanding ‘of the State’s requirements and the offeror’s proposals; (b) facilitate arriving at a contract that will be most advantageous (0 the State ‘aking into consideration price and the other evaluation factors set forth in the Request for Proposal; (¢) determine in greater detail such ofteror’s qualifications.” PSCRB Reg. 3-203.14.2. (emphasis added). MDA’s ad hoc use of completely new evaluation factors and the scoring of those criteria also violated the terms of the RFP, which provides that the purpose of the oral presentations is only to “support and clarify” the written proposals. RFP, Sect. 3, p.2. Godwin-Fronties’s employees collectively spent hundreds of hours, on short notice, to prepare a thorough and responsive written proposal in response to the RPP. MDA's evaluators violated the terms of the RFP and PSCRB regulations by adding new evaluative factors at the last minute and scoring those criteria as, in effect, 2 separate proposal. As further confirmation of the mistaken nature of this approach a hand-written note Was produced by MDA to Godwin which was attached to the oral soore sheets that states: “Top 4 selected for orals — Best oral presentation score was selected.” (Exhibit C),Mg, Brent Christensen April 18, 2013 Page S GodwinGroup with Frontier Strategies received 594 points in the evaluation of its Proposal, while the proposer selected by the evaluation team, Maris, West and Baker (“MWB”), seccived only 492 points—fourth among the ight agencies scored (See Exhibit D). Godwin- Frontier scored higher than MWB in every evaluation category for the Proposal, except price ~ which they tied. Further, it should be noted that in the new scoring system (for the oral presentation added in mid-process), Godwin-Frontier trailed the declared winner, MWB, by only 12 points (of a total of 952 points awarded to the two firms for oral presentations). (See Exhibit B), The disproportionate effect of the improperly considered oral presentation is readily apparent. In fact, one scorer, Mary Martha Henson, participated in the oral presentation scoring but did not participate in the scoring of the Proposal (based on the sptead sheet provided). This anomaly further illustrates how the oral presentation process improperly aflected the result. Looking at the very high and top rating of Godwin-Frontier, 594 of 640 potential points for their Proposal, indicates that the evaluators appreciated and understood the written document and there was no need to score an oral presentation, However, even if the scoring for the Proposals and oral presentations were added together, Godwin-Frontier would emerge as the clear winner with 1064 points. The second place finisher would be The Ramey Agency with. 986 points, leaving the improperly designated winner, MWB, with only 974 points, e distant third, Based on this scoring methodology, PSCRB regulations, and the published process in the REP, Godwin-Frontier’s Proposal, whether you consider it to be the written document or written, plus oral presentation was the clear winner and should be awarded the account immediately. Summary PSCRB regulations and the terms of the REP provide that the MDA evaluators were to hhave used published evaluation factors to determine which Proposal best met the agency's needs. This did not happen. Instead, a second set of criteria was apparently developed ad hoc in mid- procurement that became the final and only factor in the decision. We would submit that the only reasonable way to read the RFP and to apply the applicable law is that the scores of the written document, the Proposals, should control, ‘The purpose of the oral presentations was to allow the evaluators to clatify any questions they had about the proposers’ Proposals or qualifications, not to become the new governing evaluative factors, ‘The Godwin-Frontier Proposal scored higher than that of any other proposer. When its Proposal scores are added to those of the oral presentation Godwin-Frontier still comes out on top. Therefore, we respectfully request that the Executive Director correct these errors and. award the contract for the MDA Economic Development Advertising Agency Services to GodwinGroup and Frontier Strategies,