Calderwood & Harkness LLP 311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606

February 17, 2023

Nadine Pryor Chief Counsel, Office of Chief Counsel Illinois Department of Transportation 2300 South Dirksen Parkway, Room 317 Springfield, Illinois 62764

Re: Protest No. IDOT-BPC-2022-0047 Metropolitan Transit Development Corp. v. Illinois Department of Transportation (RFP No. IDOT-TS-2022-014 — Illinois Integrated Transit Modernization Program) Calderwood & Harkness Matter No. 1031-00003

Dear Chief Counsel Pryor:

This firm represents Metropolitan Transit Development Corp. ("MTDC") in connection with the above-referenced agency-level bid protest pending before the Illinois Department of Transportation ("IDOT") Administrative Review Board. The purpose of this letter is to respectfully request a status update on the Board's pending decision in Protest No. IDOT-BPC-2022-0047, which has been under advisement since December 2, 2022. We write in a spirit of cooperation and with the shared objective of facilitating a timely and well-reasoned resolution of this significant procurement dispute.

As Chief Counsel Pryor is aware, MTDC filed its agency-level bid protest on August 8, 2022, pursuant to Section 20-80 of the Illinois Procurement Code, 30 ILCS 500/20-80, and the implementing regulations set forth at 44 Ill. Admin. Code § 1.5530, challenging the award of the $247.6 million Illinois Integrated Transit Modernization Program ("IITMP") contract under RFP No. IDOT-TS-2022-014 to Pinnacle Transit Solutions, Inc. ("Pinnacle"). The procedural history of this protest is as follows. IDOT acknowledged receipt of MTDC's protest on August 22, 2022, and thereafter requested the Agency Report from the Contracting Officer. On September 12, 2022, Pinnacle, through its counsel Brannick, Hartley & Voss LLP, filed a Notice of Intervention in the protest proceeding. The Agency Report and Protest File — comprising approximately 2,400 pages of evaluation materials, correspondence, scoring worksheets, and related procurement records — were produced on September 30, 2022. MTDC timely filed its Comments on the Agency Report on October 14, 2022, addressing the substantive deficiencies in the evaluation process that form the basis of the protest. Pinnacle's Intervenor Response was filed on October 28, 2022. Oral argument was held before Administrative Law Judge Terrence Odum on November 15, 2022, at which all parties had a full and fair opportunity to present their respective positions. On December 2, 2022, ALJ Odum issued an order taking the matter "under advisement," indicating that a written decision would be forthcoming. No further orders, rulings, or communications have been issued since that date.

We respectfully bring to the Chief Counsel's attention that more than two and one-half months have now elapsed since ALJ Odum's December 2, 2022 order taking the matter under advisement, and more than three months have passed since the November 15, 2022 oral argument. During this entire period, neither MTDC nor its counsel has received any substantive ruling, interim order, request for supplemental briefing, or communication of any kind regarding the anticipated timeline for issuance of a decision. MTDC is mindful of the complexity of the issues presented and the thoroughness that a decision of this magnitude warrants; however, the prolonged silence and absence of any indication as to when a decision may be expected is a source of growing concern. As the Chief Counsel is aware, MTDC is a unit of local government and a public transit authority organized under the Local Mass Transit District Act, 70 ILCS 3610/1 et seq., serving a six-county service area encompassing Cook, DuPage, Kane, Lake, McHenry, and Will Counties. MTDC operates with an annual operating budget of approximately $1.82 billion and provides essential transit services to millions of residents across the greater Chicago metropolitan area. The modernization program at issue in this protest — valued at up to $310 million over the base and option periods, inclusive of all contract options — has significant and far-reaching implications for MTDC's transit operations, capital planning, and the communities it serves.

The gravity of MTDC's protest grounds further underscores the importance of a timely resolution. As set forth in the protest submissions and argued at the November 15, 2022 hearing, MTDC received the highest aggregate evaluation score among all offerors — 923 of 1,000 available points — yet was not selected for award under the best-value tradeoff determination articulated by the Source Selection Authority. The contract was instead awarded to Pinnacle at a proposed price of $247.6 million, which is approximately $12.7 million — or approximately 5.4% — higher than MTDC's proposed price of $234.9 million. MTDC's protest raises serious questions regarding the rationality and documentation of the tradeoff analysis, the consistency of the evaluation with the stated evaluation criteria in the RFP, and the adequacy of the Source Selection Authority's justification for paying a significant price premium in the face of MTDC's superior aggregate score. Moreover, the IITMP contract's anticipated performance start date of October 1, 2022, has already passed without the commencement of work, and continued delay in resolving the protest may cause material prejudice to MTDC and further complicate the procurement, including with respect to the availability and scheduling of critical subcontractors and suppliers whose commitments were based on the original project timeline. It bears emphasis that the IITMP contract is funded through a combination of a Federal Transit Administration ("FTA") Capital Investment Grant in the amount of $148.5 million, State General Revenue Fund appropriations totaling $74.3 million, and allocations from the IDOT Transit Modernization Fund in the amount of $24.8 million. The involvement of substantial federal and state taxpayer funds further underscores the strong public interest in a timely, transparent, and well-reasoned resolution of this protest.

In light of the foregoing, MTDC respectfully requests that Chief Counsel Pryor provide a status update on the Administrative Review Board's deliberations and an anticipated timeline for issuance of ALJ Odum's decision. In addition, MTDC requests that, should the Board determine that additional briefing, supplemental information, or further oral argument would be useful in reaching its decision, IDOT inform Calderwood & Harkness at the earliest opportunity so that MTDC may respond promptly and fully. MTDC remains prepared to participate in any further proceedings — including supplemental briefing, evidentiary submissions, or additional hearing sessions — that the Board deems necessary or appropriate to facilitate a thorough and expeditious resolution of this matter.

MTDC expressly reserves all rights and remedies available to it under the Illinois Procurement Code, 30 ILCS 500/1-1 et seq., the Illinois Court of Claims Act, 705 ILCS 505/1 et seq., the Administrative Review Law, 735 ILCS 5/3-101 et seq., and any other applicable statute, regulation, or rule, including without limitation the right to seek judicial review of any final agency decision and the right to seek appropriate relief in the event of further unreasonable delay in the issuance of the Board's decision or denial of the protest. This letter is intended as a cooperative and good-faith inquiry into the status of the pending proceedings, and nothing herein shall be construed as a waiver of any deadline, claim, defense, right, or remedy to which MTDC is or may become entitled under applicable law.

Thank you for your attention to this matter. We appreciate the Office of Chief Counsel's diligence and recognize the demands placed upon the Administrative Review Board. Should you wish to discuss the status of this matter, I am available at your convenience and may be reached directly at (312) 881-4500 or by email at iblackwood@calderwoodharkness.com. Copies of this letter are being provided to MTDC's client representatives and to intervenor's counsel as indicated below.

Respectfully submitted,

________________________________________

Ian Blackwood Partner Calderwood & Harkness LLP 311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606 Tel: (312) 881-4500

Email: iblackwood@calderwoodharkness.com

cc:

Dr. Raymond Alcázar, Executive Director, Metropolitan Transit Development Corp., 550 West Adams Street, 14th Floor, Chicago, IL 60661

Patricia Ng, General Counsel, Metropolitan Transit Development Corp., 550 West Adams Street, 14th Floor, Chicago, IL 60661

Thomas J. Brannick, Brannick, Hartley & Voss LLP, Counsel for Intervenor Pinnacle Transit Solutions, Inc. (via first-class mail and electronic mail)

Calderwood & Harkness LLP 311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606
February 17, 2023
Nadine Pryor Chief Counsel, Office of Chief Counsel Illinois Department of Transportation 2300 South Dirksen Parkway, Room 317 Springfield, Illinois 62764
Re: Protest No. IDOT-BPC-2022-0047 Metropolitan Transit Development Corp. v. Illinois Department of Transportation (RFP No. IDOT-TS-2022-014 — Illinois Integrated Transit Modernization Program) Calderwood & Harkness Matter No. 1031-00003
Dear Chief Counsel Pryor:
This firm represents Metropolitan Transit Development Corp. ("MTDC") in connection with the above-referenced agency-level bid protest pending before the Illinois Department of Transportation ("IDOT") Administrative Review Board. The purpose of this letter is to respectfully request a status update on the Board's pending decision in Protest No. IDOT-BPC-2022-0047, which has been under advisement since December 2, 2022. We write in a spirit of cooperation and with the shared objective of facilitating a timely and well-reasoned resolution of this significant procurement dispute.
As Chief Counsel Pryor is aware, MTDC filed its agency-level bid protest on August 8, 2022, pursuant to Section 20-80 of the Illinois Procurement Code, 30 ILCS 500/20-80, and the implementing regulations set forth at 44 Ill. Admin. Code § 1.5530, challenging the award of the $247.6 million Illinois Integrated Transit Modernization Program ("IITMP") contract under RFP No. IDOT-TS-2022-014 to Pinnacle Transit Solutions, Inc. ("Pinnacle"). The procedural history of this protest is as follows. IDOT acknowledged receipt of MTDC's protest on August 22, 2022, and thereafter requested the Agency Report from the Contracting Officer. On September 12, 2022, Pinnacle, through its counsel Brannick, Hartley & Voss LLP, filed a Notice of Intervention in the protest proceeding. The Agency Report and Protest File — comprising approximately 2,400 pages of evaluation materials, correspondence, scoring worksheets, and related procurement records — were produced on September 30, 2022. MTDC timely filed its Comments on the Agency Report on October 14, 2022, addressing the substantive deficiencies in the evaluation process that form the basis of the protest. Pinnacle's Intervenor Response was filed on October 28, 2022. Oral argument was held before Administrative Law Judge Terrence Odum on November 15, 2022, at which all parties had a full and fair opportunity to present their respective positions. On December 2, 2022, ALJ Odum issued an order taking the matter "under advisement," indicating that a written decision would be forthcoming. No further orders, rulings, or communications have been issued since that date.
We respectfully bring to the Chief Counsel's attention that more than two and one-half months have now elapsed since ALJ Odum's December 2, 2022 order taking the matter under advisement, and more than three months have passed since the November 15, 2022 oral argument. During this entire period, neither MTDC nor its counsel has received any substantive ruling, interim order, request for supplemental briefing, or communication of any kind regarding the anticipated timeline for issuance of a decision. MTDC is mindful of the complexity of the issues presented and the thoroughness that a decision of this magnitude warrants; however, the prolonged silence and absence of any indication as to when a decision may be expected is a source of growing concern. As the Chief Counsel is aware, MTDC is a unit of local government and a public transit authority organized under the Local Mass Transit District Act, 70 ILCS 3610/1 et seq., serving a six-county service area encompassing Cook, DuPage, Kane, Lake, McHenry, and Will Counties. MTDC operates with an annual operating budget of approximately $1.82 billion and provides essential transit services to millions of residents across the greater Chicago metropolitan area. The modernization program at issue in this protest — valued at up to $310 million over the base and option periods, inclusive of all contract options — has significant and far-reaching implications for MTDC's transit operations, capital planning, and the communities it serves.
The gravity of MTDC's protest grounds further underscores the importance of a timely resolution. As set forth in the protest submissions and argued at the November 15, 2022 hearing, MTDC received the highest aggregate evaluation score among all offerors — 923 of 1,000 available points — yet was not selected for award under the best-value tradeoff determination articulated by the Source Selection Authority. The contract was instead awarded to Pinnacle at a proposed price of $247.6 million, which is approximately $12.7 million — or approximately 5.4% — higher than MTDC's proposed price of $234.9 million. MTDC's protest raises serious questions regarding the rationality and documentation of the tradeoff analysis, the consistency of the evaluation with the stated evaluation criteria in the RFP, and the adequacy of the Source Selection Authority's justification for paying a significant price premium in the face of MTDC's superior aggregate score. Moreover, the IITMP contract's anticipated performance start date of October 1, 2022, has already passed without the commencement of work, and continued delay in resolving the protest may cause material prejudice to MTDC and further complicate the procurement, including with respect to the availability and scheduling of critical subcontractors and suppliers whose commitments were based on the original project timeline. It bears emphasis that the IITMP contract is funded through a combination of a Federal Transit Administration ("FTA") Capital Investment Grant in the amount of $148.5 million, State General Revenue Fund appropriations totaling $74.3 million, and allocations from the IDOT Transit Modernization Fund in the amount of $24.8 million. The involvement of substantial federal and state taxpayer funds further underscores the strong public interest in a timely, transparent, and well-reasoned resolution of this protest.
In light of the foregoing, MTDC respectfully requests that Chief Counsel Pryor provide a status update on the Administrative Review Board's deliberations and an anticipated timeline for issuance of ALJ Odum's decision. In addition, MTDC requests that, should the Board determine that additional briefing, supplemental information, or further oral argument would be useful in reaching its decision, IDOT inform Calderwood & Harkness at the earliest opportunity so that MTDC may respond promptly and fully. MTDC remains prepared to participate in any further proceedings — including supplemental briefing, evidentiary submissions, or additional hearing sessions — that the Board deems necessary or appropriate to facilitate a thorough and expeditious resolution of this matter.
MTDC expressly reserves all rights and remedies available to it under the Illinois Procurement Code, 30 ILCS 500/1-1 et seq., the Illinois Court of Claims Act, 705 ILCS 505/1 et seq., the Administrative Review Law, 735 ILCS 5/3-101 et seq., and any other applicable statute, regulation, or rule, including without limitation the right to seek judicial review of any final agency decision and the right to seek appropriate relief in the event of further unreasonable delay in the issuance of the Board's decision or denial of the protest. This letter is intended as a cooperative and good-faith inquiry into the status of the pending proceedings, and nothing herein shall be construed as a waiver of any deadline, claim, defense, right, or remedy to which MTDC is or may become entitled under applicable law.
Thank you for your attention to this matter. We appreciate the Office of Chief Counsel's diligence and recognize the demands placed upon the Administrative Review Board. Should you wish to discuss the status of this matter, I am available at your convenience and may be reached directly at (312) 881-4500 or by email at iblackwood@calderwoodharkness.com. Copies of this letter are being provided to MTDC's client representatives and to intervenor's counsel as indicated below.
Respectfully submitted,
________________________________________
Ian Blackwood Partner Calderwood & Harkness LLP 311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606 Tel: (312) 881-4500
Email: iblackwood@calderwoodharkness.com
cc:
Dr. Raymond Alcázar, Executive Director, Metropolitan Transit Development Corp., 550 West Adams Street, 14th Floor, Chicago, IL 60661
Patricia Ng, General Counsel, Metropolitan Transit Development Corp., 550 West Adams Street, 14th Floor, Chicago, IL 60661
Thomas J. Brannick, Brannick, Hartley & Voss LLP, Counsel for Intervenor Pinnacle Transit Solutions, Inc. (via first-class mail and electronic mail)

Calderwood & Harkness LLP 311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606

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