Securus Techs. v. Dep't of Tech.

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SECURUS TECHNOLOGIES, LLC, Plaintiff and Respondent, v. DEPARTMENT OF TECHNOLOGY et al., Defendants and Appellants;

GLOBAL TEL*LINK CORPORATION, Real Party in Interest and Appellant.

C095097

California Court of Appeals, Third District, Sacramento

March 20, 2023

NOT TO BE PUBLISHED

Order Filed Date 4/13/23

Super Ct. No. 34202180003594CUWMGDS

ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION

THE COURT:

It is ordered that the nonpublished opinion filed herein on March 20, 2023, be modified as follows: 1. At page 17, delete the last sentence in footnote 17 and replace it with "The trial court sustained those objections." Footnote 17 should read in its entirety:

Securus subsequently offered additional evidence, by way of a supplemental declaration submitted with its reply brief. Global appears to have objected to the supplemental declaration only. The trial court sustained those objections.

There is no change in the judgment. The petition for rehearing is denied.

RENNER, ACTING P.J.

Appellants California Department of Technology (Department of Technology) and California Department of Corrections and Rehabilitation (Corrections) (together, the State) awarded a six-year contract to real party in interest and appellant Global Tel*Link Corporation (Global) to provide communications equipment and services to incarcerated persons. Respondent Securus Technologies, LLC (Securus), an unsuccessful bidder petitioned for a writ of mandate challenging the award of the contract to Global. The trial court granted the petition and set aside the contract.

The State and Global appeal, arguing the trial court either misinterpreted a "not to exceed" (NTE) rate provision in the State's request for proposals (RFP), or should have deferred to the State's reasonable interpretation of the provision. In the alternative, the State and Global argue any variance from the RFP was inconsequential and does not justify setting aside the contract. We will reject these arguments and affirm the order granting the petition for a writ of mandate.

I. BACKGROUND

Corrections operates correctional facilities throughout the State of California, including adult institutions, fire camps, and youth facilities. Persons incarcerated with Corrections have traditionally communicated with the outside world using conventional telephone equipment (e.g., wall-mounted phones) which allow them to make domestic and international calls across an inmate/ward telephone network.^[1] An earlier contract to administer the inmate/ward telephone network was awarded to Global.^[2]

More recently, Corrections has started offering more advanced forms of communications and services, such as email and inbound video clips and photos downloadable to a tablet, on a pilot basis in select institutions. According to the State, such additional forms of communication have been successfully deployed in other correctional systems around the country and have been shown to increase family and community unification.

Prompted by such potential benefits, the Department of Technology issued an RFP to solicit bids for a contract to provide communications equipment and services to persons incarcerated with Corrections.^[3] The RFP sought to increase access to existing communications services and eventually provide access to new services, such as video calling. The successful bidder would be responsible for purchasing and providing all necessary equipment (including infrastructure, hardware, and software), and providing maintenance and operational support for an initial term of six years, with options to extend the primary term to a maximum of 10 years.

A. The RFP Process

The RFP was issued pursuant to Public Contract Code section 6611,^[4] which authorizes the Department of General Services and the Department of Technology to use a negotiation process when contracting for information technology and telecommunications goods and services, provided certain conditions are met.^[5] (§ 6611, subd. (a).)

The RFP establishes a multi-step process for collecting and evaluating bids. First, bidders would submit proposals describing the products and services to be provided in narrative form, and "cost workbooks" identifying the costs associated with those products and services in tabular form. Proposals would then be scored, with each proposal receiving a maximum of 2,000 points.^[6] Bidders could receive up to 1,400 points for their technical responses, and 600 points for their cost proposals.

Second, the State would invite eligible bidders to negotiate pursuant to section 6611. Following negotiations, the State would have the option to request that bidders make best and final offer submissions clarifying any negotiated items or deviations from their proposals.

Third, the State would evaluate best and final offer submissions for compliance with RFP requirements and negotiated items. The contract would be awarded to "the value effective [best and final offer]." B. The Not to Exceed "NTE" Rate

The State determined the communications system should be revenue generating or cost neutral. Accordingly, the RFP contemplates that cost was to be "a primary evaluation criterion weighted at 30% of the total 2,000 points." To ensure that potential bidders kept costs top of mind, the RFP calls for an NTE rate of $.05 per minute. To this end, the RFP provides: "The State has established not-to-exceed (NTE) rates for this procurement. Bidder's [sic] rates for calls must not exceed $.05 per minute. Bidders may propose rates lower than the NTE identified." (Emphasis omitted.) The parties' dispute turns on the meaning of the word "call," as used in the NTE rate provision.

C. Proposals

Three bidders submitted timely proposals, including Global and Securus. Global and Securus presented their proposed rates using the required cost workbooks. The cost workbooks seek rates for two general categories of communications: telephone calls and "other offender communication[s]."

The first general category-telephone calls-is further divided into three subcategories: (1) "Adult - Local, IntraLATA, InterLATA, Interstate," (2) Youth -Local, IntraLATA, InterLATA, Interstate," and (3) "International Calls (Adults and Youth[)]." A glossary appended to the RFP defines the terms, "Local," "IntraLATA," "InterLATA," "Interstate," and "International." These definitions are set forth in footnote 7, below.^[7] Although the definition of "InterLATA" calls appears to include "International" calls, the parties treat "Local, IntraLATA, InterLATA [and] Interstate" calls, on the one hand, and "International" calls, on the other, as two separate and mutually exclusive subcategories. We will do the same. For convenience, we will refer to "Local, IntraLATA, InterLATA [and] Interstate" calls cumulatively as "domestic calls."^[8] The second general category-other offender communications-includes video calling.

Securus proposed the following rates for telephone calls: $0.009 per minute for domestic calls by incarcerated adults, $0.00 per minute for domestic calls by incarcerated youth, and $0.05 per minute for international calls by all incarcerated persons, adults, and youth. For video calling, Securus proposed a rate of $0.99 per transaction (i.e., per video call) rather than per minute.

Global proposed the following rates for telephone calls: $0.025 per minute for domestic telephone calls by incarcerated adults, $0.00 per minute for domestic telephone calls by incarcerated youth, and $0.10 per minute for international calls by incarcerated adults and youth. Global proposed a rate of $1.25 per transaction for video calls.

D. Negotiations

The State invited Securus and Global to participate in a negotiation process.^[9]During negotiations, representatives from the State informed Securus that its proposed rate for video calling ($0.99 per transaction) was high and should be expressed as a rate per minute, rather than a rate per transaction.^[10] Securus explained that the proposed rate assumed a 30 minute call. The State also told Securus that the rate for video calling should comply with the NTE rate of $0.05 per minute.

The State separately negotiated with Global. At the end of the negotiations, the State asked that Securus and Global submit best and final offers.

E. Best and Final Offers

Securus and Global each submitted best and final offers. For its best and final offer, Securus proposed a rate of $0.039 per minute for domestic calls by incarcerated adults, $0.00 per minute for domestic calls by incarcerated youth, and $0.039 per minute for international calls by incarcerated adults and youth. Securus proposed the same rate- $0.039 per minute-for video calling.

For its best and final offer, Global proposed a rate of $0.025 per minute for domestic calls by incarcerated adults, $0.00 per minute for domestic calls by incarcerated youth, and $0.07 per minute for international calls by incarcerated adults and youth. Global proposed a rate of $0.25 per minute for video calling.

F. Award

The State evaluated and scored the best and final offers. Securus received a total best and final offer score of 1,696.71, comprised of (1) a total non-cost score of 1,312.71, (2) a total cost score of 284, and (3) an award of 100 incentive points. Global received a total best and final offer score of 2,062.15, comprised of (1) a total non-cost score of 1,362.15, (2) a total cost score of 600, and (3) the same award of 100 incentive points. Corrections' evaluation and selection team recommended that the contract be awarded to Global.

The contract was awarded to Global.

G. Trial Court Proceedings

Securus filed a petition for writ of mandate in February 2021 arguing the State should have disqualified Global for exceeding...