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A.

SUMMARY OF REASONS FOR PROTEST OF AWARD

The Protest of Bombardier Transportation (Holdings) USA, Inc. (“Bombardier”)


concerning the Award of the Contract for the Core Systems and Design-Build-Operate-Maintain
(DBOM) for the Honolulu High-Capacity Transit Corridor Project, RFP No. RFP-DTS-198413 (the
"Core Systems Contract") is asserted on the grounds that:

1. In sealed proposal solicitations, the Hawai`i Procurement Code allows


contracting agencies to engage in discussions with priority listed offerors for the
purpose of assuring the offerors' full understanding of and responsiveness to the
solicitations requirements; and

2. Hawai`i implementing procurement rules require that, if the agency conducts


discussions, such discussions must be fair and operate to promote understanding
of the agency's requirements; and

3. The City's RFP further assured offerors that, if conducted, discussions would be
to:

a. Advise Offerors of Weaknesses, significant Weaknesses and/or


Deficiencies in their proposals ;

b. Resolve any uncertainties concerning the proposals;

c. Resolve any suspected mistakes by calling them to the attention of the


Priority Listed Offerors as specifically as possible; and

d. Provide Offerors a reasonable opportuity to submit any further


supplemental information to their proposals.

4. The City failed to use discussions with Bombardier to fulfill the above purposes
and thereby deprived Bombardier of fair and "meaningful discussions," as
defined in long-standing public contract law standards;

5. As a result of the City's failure to engage in "meaningful discussions," the City


wrongly rejected Bombardier's second Best and Final Offer (“BAFO #2”) for
containing an allegedly conditional term.

6. The City's disqualification of Bombardier's proposal was contrary to law and the
Request For Proposals (“RFP”) because:

a. The City failed during discussions to inform Bombardier in clear and


direct terms that the specified proposal provision was a material defect
which would disqualify Bombardier's proposal from consideration; and
b. By accepting Bombardier's initial proposal and its first Best and Final
Offer (“BAFO #1”) without comment during discussions, the City misled
Bombardier into reasonably believing the alleged condition contained in
the proposal was not a material defect which would disqualify
Bombardier's BAFO #2 from the competition.

1. The City's foregoing failure to conduct meaningful discussions is a procurement


error which prejudiced Bombardier and is a valid legal ground for the Chief
Procurement Officer to sustain this protest and grant Bombardier the remedy
requested.

B. ACTION AND REMEDY REQUESTED

For the reasons addressed in Bombardier’s Protest, the contract award to Ansaldo
Honolulu Joint Venture ("Ansaldo") should be terminated. In accordance with Hawai`i
Administrative Rules ("HAR") § 3-126-7(d) and related authority, Bombardier requests that the
Chief Procurement Officer:

2. Stay all further action on this procurement pending resolution of this protest
pursuant to HRS § 103D-701(f);

3. Terminate the contract award to Ansaldo;

4. Reopen limited discussions with Bombardier to address the alleged disqualifying


provision in Bombardier's BAFO #2;

5. Authorize Bombardier to revise its BAFO #2 only as to the alleged disqualifying


provision;

6. Accept and complete the evaluation of the revised Bombardier BAFO #2 from
the point where it was previously stopped prior to the improper finding of non-
compliance; and

7. Award the contract to the responsible offeror whose BAFO #2 the City
determines in writing to be the most advantageous taking into consideration
price and the evaluation factors set forth in the RFP.