CALDERWOOD & HARKNESS LLP Attorneys at Law
311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606
Telephone: (312) 554-7200 Facsimile: (312) 554-7201 www.calderwoodharkness.com
March 15, 2024
Ian Blackwood Partner Direct Dial: (312) 554-7238 Direct Fax: (312) 554-7302
Email: iblackwood@calderwoodharkness.com
Calderwood & Harkness Matter No. 1031-00003
Via U.S. Mail and Electronic Transmission
Nadine Pryor, Chief Counsel Office of Chief Counsel Illinois Department of Transportation 2300 South Dirksen Parkway, Room 317 Springfield, Illinois 62764
Re: Agency-Level Bid Protest of Metropolitan Transit Development Corp. Protest No. IDOT-BPC-2022-0047 RFP No. IDOT-TS-2022-014 — Illinois Integrated Transit Modernization Program (IITMP) Fourth Status Inquiry Regarding Pending Administrative Review Board Decision
Dear Chief Counsel Pryor:
This firm represents Metropolitan Transit Development Corp. ("MTDC") in the above-referenced agency-level bid protest challenging the award of the $247.6 million Illinois Integrated Transit Modernization Program contract to Pinnacle Transit Solutions, Inc. ("Pinnacle") under RFP No. IDOT-TS-2022-014. We write in our capacity as counsel of record for MTDC with respect to Protest No. IDOT-BPC-2022-0047, which remains pending before the IDOT Administrative Review Board (the "Board").
This letter constitutes MTDC's fourth formal status inquiry regarding the Board's pending decision in this matter. The purpose of this correspondence is threefold: (1) to request an immediate status update on the Board's anticipated ruling; (2) to express MTDC's grave and growing concern regarding the protracted and unexplained delay in the adjudication of this protest; and (3) to formally reserve all of MTDC's rights, remedies, and claims, including but not limited to the right to pursue judicial review of any final or constructive agency action. As set forth in greater detail below, MTDC has now waited more than fifteen months since Administrative Law Judge Terrence Odum took this matter under advisement, and more than nineteen months since the protest was originally filed, without receiving any decision, interim order, or substantive communication from the Board.
I. Procedural History of the Protest
For the convenience of your office, we briefly recount the relevant procedural history of this proceeding.
On August 8, 2022, MTDC timely filed its agency-level bid protest with the Illinois Department of Transportation, 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. The protest challenged the Department's award determination under RFP No. IDOT-TS-2022-014 on multiple grounds, including material evaluation errors, the failure to apply disclosed evaluation criteria in a fair and equitable manner, and the improper treatment of MTDC's technical proposal during the evaluation process.
On August 22, 2022, the Department acknowledged receipt of MTDC's protest and directed Contracting Officer Gerald Fassett, P.E., to prepare and submit the Agency Report in accordance with applicable regulations.
On September 12, 2022, Pinnacle Transit Solutions, Inc., through its counsel, Victoria Hartley of Brannick, Hartley & Voss LLP, filed its Notice of Intervention in the protest proceeding.
On September 30, 2022, the Department produced the Agency Report and Protest File, comprising approximately 2,400 pages of documentation, including the source evaluation materials, evaluation panel score sheets, consensus memoranda, technical and cost evaluation narratives, and related procurement records.
On October 14, 2022, MTDC, through this firm, filed its Comments on the Agency Report, identifying specific factual and legal deficiencies in the evaluation process and demonstrating that the Department's award determination was arbitrary, capricious, and contrary to the terms of the solicitation.
On October 28, 2022, Pinnacle, through Brannick, Hartley & Voss LLP, filed its Intervenor Response.
On November 15, 2022, Administrative Law Judge Terrence Odum conducted oral argument on the protest. At the conclusion of oral argument, all parties had fully briefed the issues and the matter was ripe for decision.
On December 2, 2022, ALJ Odum issued an order stating that he was taking the matter "under advisement" and that the Board would issue its decision in due course. No estimated timeline for the decision was provided at that time.
As of the date of this letter, more than fifteen months have elapsed since ALJ Odum's December 2, 2022 order, and more than nineteen months have elapsed since MTDC filed its protest on August 8, 2022. During this entire period, the Board has issued no substantive ruling, no interim order, and no communication of any kind to MTDC or its counsel regarding the status of the proceeding, the anticipated timing of a decision, or the reason for the extraordinary delay.
II. Prior Unanswered Status Inquiries
Underscoring MTDC's diligence and good faith in pursuing this administrative remedy, this firm has submitted three prior formal status inquiries to your office on behalf of MTDC. Each of those inquiries was sent via U.S. Mail and electronic transmission to your attention. None has generated a substantive response.
First Status Inquiry — February 17, 2023. Approximately two and one-half months after ALJ Odum took the matter under advisement, this firm submitted its first written status inquiry requesting a projected timeline for the Board's decision. We noted that the matter had been fully briefed and argued, and that MTDC was eager to receive a timely adjudication. No substantive response was received from your office or from the Board.
Second Status Inquiry — June 9, 2023. Approximately six months after the matter was taken under advisement, and nearly four months after our first unanswered inquiry, this firm submitted a second written status inquiry reiterating MTDC's request for information regarding the anticipated timing of the Board's decision. We again emphasized that the matter was ripe and that the passage of time was beginning to cause concern. No substantive response was received.
Third Status Inquiry — November 3, 2023. Approximately eleven months after the matter was taken under advisement, and in light of the complete absence of any response to our two prior inquiries, this firm submitted a third written status inquiry expressing MTDC's growing concern regarding the protracted delay and respectfully requesting an explanation for the Board's inaction. We noted that the delay was approaching an unreasonable duration and that MTDC was evaluating its options for seeking judicial relief. Once again, no substantive response was received from your office or from any representative of the Board.
To summarize: over the course of more than one year, MTDC has submitted three separate formal written inquiries to the Office of Chief Counsel, and has received no substantive response, no projected timeline, and no indication whatsoever of when — or whether — the Administrative Review Board intends to act on this fully briefed and argued protest. This pattern of non-responsiveness is, respectfully, without precedent in our firm's experience with IDOT procurement protest proceedings and is deeply troubling to our client.
III. Prejudice to MTDC
The extended and unexplained delay in the adjudication of Protest No. IDOT-BPC-2022-0047 is causing ongoing and mounting prejudice to MTDC, to the communities it serves, and to the public interest at large.
MTDC is a unit of local government and a public transit authority organized and operating under the Illinois Local Mass Transit District Act, 70 ILCS 3610. MTDC provides essential public transportation services across a six-county service area encompassing Cook, DuPage, Kane, Lake, McHenry, and Will Counties, serving millions of riders annually and constituting a critical component of the regional transportation infrastructure.
The Illinois Integrated Transit Modernization Program — the subject of RFP No. IDOT-TS-2022-014 — was specifically designed to modernize critical transit infrastructure across MTDC's service area, including signaling systems, fleet management technology, passenger information systems, and multimodal integration platforms. The contract carries a total maximum value of up to $310 million over a seven-year base performance period with two three-year option periods. The anticipated contract commencement date was October 1, 2022, which has now been delayed by approximately eighteen months as a direct consequence of the pendency of this unresolved protest.
MTDC invested approximately $3.2 million in proposal development costs for this solicitation, including engineering analyses, technical design work, staffing plans, cost modeling, and the engagement of specialized subconsultants. Those costs were incurred in reliance on the expectation that the Department would conduct a fair and lawful evaluation and that any protest would be resolved through timely administrative adjudication.
The continued dormancy of this proceeding leaves MTDC in an untenable position. On one hand, MTDC is unable to receive the contract award to which it believes it is entitled based on the merits of its proposal and the documented deficiencies in the Department's evaluation. On the other hand, MTDC is effectively unable to pursue judicial relief while the agency-level administrative proceeding remains nominally pending and no final agency action has been issued. MTDC is thus held in a state of indefinite procedural limbo — a result that is fundamentally inconsistent with the purposes of the Illinois Procurement Code and with basic principles of administrative due process.
Beyond the direct prejudice to MTDC, we note the significant public interest in the timely resolution of this protest. The funding structure for the IITMP contract includes a Federal Transit Administration Capital Investment Grant of $148.5 million, a State General Revenue Fund contribution of $74.3 million, and an IDOT Transit Modernization Fund allocation of $24.8 million. The availability and scheduling of these federal and state funds are subject to fiscal year constraints, authorization periods, and programmatic deadlines. Continued delay in the resolution of this protest threatens not only MTDC's interests but also the efficient deployment of substantial public resources and the delivery of essential transit improvements to the communities of northeastern Illinois.
IV. Renewed Request for Immediate Action
In light of the foregoing, MTDC respectfully but firmly requests that the Administrative Review Board, through your office, take one of the following actions:
(a) Issue its decision on the merits of Protest No. IDOT-BPC-2022-0047 within thirty (30) calendar days of the date of this letter — that is, on or before April 14, 2024; or
(b) Provide MTDC, through undersigned counsel, with a definitive written timeline specifying the date by which the Board's decision will be issued, together with an explanation for the extraordinary delay that has occurred in this proceeding.
MTDC has fully complied with every administrative requirement, briefing schedule, procedural obligation, and regulatory mandate throughout this proceeding. MTDC submitted its protest in a timely manner, filed responsive pleadings within every prescribed deadline, participated in oral argument as scheduled, and has engaged in repeated good-faith efforts to ascertain the status of the Board's deliberations. MTDC is entitled — both as a matter of regulatory right and fundamental fairness — to a timely adjudication of its protest.
We recognize that the Board's deliberative processes require appropriate time and care. However, the passage of more than fifteen months since the matter was taken under advisement, without any communication to the parties, far exceeds any reasonable deliberative period and suggests that this matter may have fallen through an administrative gap. We respectfully urge your office to give this matter its immediate and personal attention.
V. Formal Reservation of Rights
MTDC hereby formally and unequivocally reserves all rights, remedies, and claims available to it under applicable federal, state, and local law, including but not limited to the following:
(i) The right to seek judicial review of any final or constructive agency action before the Illinois Court of Claims, pursuant to the Illinois Court of Claims Act, 705 ILCS 505, and any other court of competent jurisdiction;
(ii) The right to assert a constructive denial of the protest based on the Administrative Review Board's failure to act within a reasonable period, and to treat such constructive denial as a final agency action for purposes of seeking judicial review;
(iii) The right to pursue mandamus or other extraordinary relief in an appropriate court of competent jurisdiction to compel the Board to perform its non-discretionary duty to issue a timely decision on the protest;
(iv) The right to seek any and all damages, including but not limited to proposal preparation costs, lost profits, consequential damages, and attorneys' fees and costs, to the fullest extent permitted by applicable law; and
(v) Any and all other rights and remedies available to MTDC in any applicable administrative, judicial, or legislative forum.
This reservation of rights is made broadly and without waiver of any kind. MTDC's continued patience in awaiting an agency-level decision should not be construed, and MTDC does not intend it to be construed, as acquiescence to further delay, as a waiver of any claim or defense, or as a concession that the Board's extended inaction is lawful or appropriate. MTDC expressly preserves its right to take any and all actions it deems necessary to protect its interests at any time, with or without further notice.
VI. Exhaustion of Administrative Remedies
MTDC has diligently pursued the administrative protest process established by the Illinois Procurement Code and the Department's implementing regulations for a period now exceeding nineteen months since the filing of its protest on August 8, 2022, and exceeding fifteen months since ALJ Odum took the matter under advisement on December 2, 2022. Throughout this period, MTDC has submitted four written status inquiries — including the present letter — and has received no substantive response to any of them.
MTDC considers this period to be more than sufficient to satisfy any requirement for the exhaustion of administrative remedies as a prerequisite to judicial review. Neither the Illinois Procurement Code nor its implementing regulations contemplate an indefinite administrative deliberation period, and no provision of law requires a protesting party to wait indefinitely for an agency decision that may never come.
It is MTDC's position that the Administrative Review Board's protracted and unexplained inaction may itself constitute a constructive denial of the protest or, at a minimum, a failure of administrative due process warranting immediate judicial intervention. MTDC has been denied the timely adjudication to which it is entitled, and the Board's silence — in the face of four formal written inquiries — reinforces MTDC's belief that further delay in the administrative process will not produce a resolution and that judicial intervention may be necessary to vindicate MTDC's rights.
VII. Closing Request and Availability for Discussion
In closing, MTDC reiterates its respectful but urgent request that your office provide a written response within thirty (30) calendar days of the date of this letter — no later than April 14, 2024 — either transmitting the Board's decision on the merits of Protest No. IDOT-BPC-2022-0047 or providing a definitive timeline for the issuance of that decision.
Counsel for MTDC remains available to discuss this matter at your convenience, and we would welcome any communication from the Office of Chief Counsel regarding the status of this proceeding. Should you or any member of your staff wish to discuss this matter, I may be reached directly at (312) 554-7238 or by email at iblackwood@calderwoodharkness.com.
We trust that the Department recognizes the seriousness of the issues raised in this letter and the urgency of bringing this long-pending proceeding to a prompt and fair resolution. MTDC has been a patient and good-faith participant in this process, but the limits of administrative patience are not without bounds. We look forward to your timely response.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Ian Blackwood Partner
311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606 Telephone: (312) 554-7238 Facsimile: (312) 554-7302
Email: iblackwood@calderwoodharkness.com
Enclosures:
Copies of Prior Status Inquiry Letters (for the record):
1. Letter dated February 17, 2023 (First Status Inquiry)
2. Letter dated June 9, 2023 (Second Status Inquiry)
3. Letter dated November 3, 2023 (Third Status Inquiry)
cc: (via U.S. Mail and Electronic Transmission)
Dr. Raymond Alcázar, Executive Director Metropolitan Transit Development Corp. 550 West Adams Street, 14th Floor Chicago, Illinois 60661
Patricia Ng, General Counsel Metropolitan Transit Development Corp. 550 West Adams Street, 14th Floor Chicago, Illinois 60661
Martin Czarnecki, Assistant Attorney General Procurements & Contracts Division Office of the Illinois Attorney General Springfield, Illinois
Victoria Hartley, Esq. Brannick, Hartley & Voss LLP 180 North LaSalle Street, Suite 3210 Chicago, Illinois 60601 (Counsel for Intervenor Pinnacle Transit Solutions, Inc.)