CALDERWOOD & HARKNESS LLP Attorneys at Law
311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606 Telephone: (312) 555-7200 Facsimile: (312) 555-7201 www.calderwoodharkness.com
August 10, 2022
Via Email and FedEx
Dr. Alicia Fernwood, Principal Consultant Linden Analytics Group, LLC 1925 Ballenger Avenue, Suite 310 Alexandria, VA 22314
Re: Engagement of Linden Analytics Group, LLC as Expert Procurement Consultant Matter: Metropolitan Transit Development Corp. v. Illinois Department of Transportation Protest No. IDOT-BPC-2022-0047 RFP No. IDOT-TS-2022-014 — Illinois Integrated Transit Modernization Program (IITMP) Calderwood & Harkness Matter No. 1031-00003
Dear Dr. Fernwood:
1. Introduction and Purpose of Engagement
Calderwood & Harkness LLP represents Metropolitan Transit Development Corp. ("MTDC"), a unit of local government and public transit authority organized under the Illinois Local Mass Transit District Act, 70 ILCS 3610, headquartered at 550 West Adams Street, 14th Floor, Chicago, Illinois 60661. MTDC operates one of the largest public transit networks in the State of Illinois and is a major recipient of both state and federal transportation funding.
MTDC has filed an agency-level bid protest, designated as Protest No. IDOT-BPC-2022-0047, with the Office of Chief Counsel of the Illinois Department of Transportation ("IDOT"). The protest challenges the award of the Illinois Integrated Transit Modernization Program ("IITMP") contract, solicited under RFP No. IDOT-TS-2022-014, to Pinnacle Transit Solutions, Inc. ("Pinnacle"). The protest was filed on August 8, 2022, pursuant to the Illinois Procurement Code, 30 ILCS 500/20-80, and the implementing regulations set forth at 44 Ill. Admin. Code § 1.5530. The protest raises significant questions regarding the reasonableness of IDOT's source selection decision, the adequacy of its cost-realism analysis, and the potential application of unstated evaluation criteria — questions that, in our assessment, require the analytical support of a qualified procurement expert.
The purpose of this letter is to retain Linden Analytics Group, LLC ("Linden") and you, Dr. Alicia Fernwood, as an expert procurement consultant to assist MTDC in the protest proceeding and any potential litigation escalation that may follow. Calderwood & Harkness has identified Linden's expertise as an independent procurement analytics and cost-estimation consultancy as uniquely suited to this engagement. In particular, your background as a former federal contracting officer with over twenty years of experience in competitive source selections, cost-realism analyses, and best-value tradeoff determinations is specifically relevant to the issues raised in this matter. We are confident that your independent analysis will materially strengthen MTDC's position in the protest proceeding and, if necessary, in any subsequent judicial action.
This letter sets forth the terms and conditions under which Linden and Dr. Fernwood will provide expert consulting services to Calderwood & Harkness on behalf of MTDC. Upon your countersignature below, this letter shall constitute a binding agreement between Calderwood & Harkness LLP and Linden Analytics Group, LLC.
2. Background of the Dispute
To provide context for the scope of services described in this engagement letter, the following summarizes the relevant facts and circumstances of the procurement at issue.
On January 18, 2022, IDOT issued RFP No. IDOT-TS-2022-014 for the Illinois Integrated Transit Modernization Program (IITMP), a comprehensive program intended to modernize and integrate transit infrastructure, signaling systems, fleet management technology, and passenger information platforms across multiple transit authorities within the State of Illinois. Proposals were due on April 29, 2022. The contract type specified in the RFP was Firm-Fixed-Price with Cost-Reimbursable Line Items for Technology Development, reflecting the dual nature of the program's established infrastructure components and its more speculative technology development work.
The base performance period under the RFP is seven years, with an anticipated start date of October 1, 2022, and an anticipated end date of September 30, 2029. The RFP also contemplated two three-year option periods, extending the potential contract performance through September 30, 2035. The total maximum contract value, inclusive of the base period and both option periods, is up to $310 million.
MTDC submitted a comprehensive proposal valued at $234.9 million for the seven-year base period. Pinnacle submitted a proposal valued at $247.6 million for the same base period — a price differential of $12.7 million, meaning Pinnacle's proposed price was approximately 5.4% higher than MTDC's proposed price. This price differential is significant in the context of the evaluation and is a central element of MTDC's protest.
The evaluation criteria were set forth in RFP Section M and consisted of four factors, weighted as follows:
According to the Source Selection Decision Document dated July 14, 2022, the Technical Evaluation Panel ("TEP") scored the proposals as follows:
As is evident from the scoring, MTDC held a 30-point aggregate scoring advantage over Pinnacle — an advantage spanning three of the four evaluation factors, including the most heavily weighted factor (Technical Approach) and the Cost/Price factor. Pinnacle outscored MTDC only on Factor 2 (Management & Staffing Plan), and by a margin of only 17 points. MTDC's proposal was both lower-priced and higher-scored in the aggregate.
Notwithstanding MTDC's clear scoring advantage, the Source Selection Authority ("SSA"), Angela Moreau, Deputy Secretary for Multimodal Transportation, selected Pinnacle under a best-value tradeoff rationale. In the Source Selection Decision Document, the SSA cited Pinnacle's "superior workforce integration methodology" and a subcontractor teaming arrangement between Pinnacle and Northlake Signal Systems, Inc. as providing a qualitative advantage that justified the selection of the higher-priced, lower-scored offeror. The Contracting Officer for the procurement is Gerald Fassett, P.E., Chief of the Bureau of Transit Operations at IDOT.
The IITMP contract is funded from multiple sources: Federal Transit Administration ("FTA") Capital Investment Grant funds in the amount of $148.5 million (approximately 60% of the base contract value); State of Illinois General Revenue Fund appropriations in the amount of $74.3 million (approximately 30%); and the IDOT Transit Modernization Fund in the amount of $24.8 million (approximately 10%). The involvement of federal funds may have additional implications for the applicable procurement standards and the availability of additional protest forums, which we may discuss with you as the engagement progresses.
MTDC's protest raises several grounds for challenge, including but not limited to: (a) the unreasonableness of the SSA's best-value tradeoff determination in light of the 30-point scoring differential and the $12.7 million price differential; (b) the inadequacy of IDOT's cost-realism analysis as applied to Pinnacle's cost-reimbursable line items; and (c) the SSA's potential reliance on an unstated evaluation criterion not identified as a sub-factor in RFP Section M. These issues form the core of the analytical work we expect Linden to perform, as described more fully in Section 3 below.
3. Scope of Services
3.1 Protest-Phase Services (Primary Scope)
Linden shall provide the following services during the agency-level protest phase, in support of MTDC's bid protest before the IDOT Administrative Review Board (presided over by Administrative Law Judge Terrence Odum):
(a) Evaluation Scoring Methodology Analysis. Linden shall conduct a detailed evaluation and analysis of IDOT's technical scoring methodology as applied to both the MTDC and Pinnacle proposals under the four evaluation factors set forth in RFP Section M. This analysis shall assess the consistency and reasonableness of the TEP's scoring across each factor and sub-factor, identify any scoring anomalies or inconsistencies, and evaluate whether the TEP's scoring rationale was adequately supported by the record. Linden shall compare the evaluation documentation against the stated criteria in the RFP to determine whether the TEP applied the criteria as written or deviated from the published evaluation scheme.
(b) Best-Value Tradeoff Analysis. Linden shall assess whether the SSA's best-value tradeoff rationale was reasonable given MTDC's 30-point scoring advantage and the $12.7 million price differential. This assessment shall examine whether the SSA's tradeoff analysis adequately explained why Pinnacle's perceived qualitative advantages were worth the additional cost to the government and the departure from the consensus scores of the TEP. Linden shall apply established principles of best-value procurement, drawing upon applicable Illinois procurement law, federal procurement analogies where instructive, and generally accepted procurement practices.
(c) Cost-Realism Analysis Assessment. Linden shall conduct a detailed evaluation of IDOT's cost-realism analysis (or lack thereof) as applied to Pinnacle's cost-reimbursable line items. Specifically, Pinnacle's cost-reimbursable line items totaled $38.4 million, compared to the Independent Government Cost Estimate ("IGCE") of $49.2 million — a shortfall of $10.8 million, representing a 21.95% variance below the IGCE. Linden shall assess whether IDOT adequately evaluated the risk of cost growth, performance shortfalls, or buy-in pricing associated with Pinnacle's substantially below-IGCE cost-reimbursable pricing. Linden shall further assess whether the absence or inadequacy of a cost-realism analysis constituted a material error in the evaluation process that prejudiced MTDC.
(d) Source Selection Decision Document Review. Linden shall review and analyze the Source Selection Decision Document dated July 14, 2022, and assess the adequacy of the documented rationale for selecting the higher-priced, lower-scored offeror. This review shall evaluate whether the rationale articulated by the SSA was sufficiently detailed, internally consistent, and supported by the underlying evaluation record.
(e) Unstated Evaluation Criterion Analysis. Linden shall analyze whether the SSA's reliance on "workforce integration methodology" as a basis for the tradeoff decision constituted the use of an unstated evaluation criterion not identified as a sub-factor or discriminator in RFP Section M. Linden shall review the RFP's stated evaluation criteria, sub-factors, and any amplifying instructions to determine whether "workforce integration methodology" was encompassed within the published evaluation framework or, alternatively, whether its use introduced an impermissible evaluation consideration that was not disclosed to offerors.
(f) Expert Report Preparation. Linden shall prepare expert report materials, including written analyses, declarations, and summary exhibits suitable for submission to the IDOT Administrative Review Board in connection with Protest No. IDOT-BPC-2022-0047. All expert report materials shall be prepared in a format and at a level of detail consistent with the evidentiary standards applicable to administrative protest proceedings before IDOT. Dr. Fernwood shall be prepared to sign declarations and certifications attesting to the accuracy and basis of her expert opinions.
(g) Damages Analysis. Linden shall calculate and analyze MTDC's estimated lost profits over the seven-year base period, applying the appropriate profit margin to MTDC's $234.9 million proposal value, and shall separately quantify MTDC's proposal development costs, which are estimated at approximately $3.2 million. This damages analysis shall be conducted in a manner consistent with established methodologies for calculating bid protest damages under Illinois law and shall be supported by documentation and data provided by MTDC.
(h) Agency Report Review. Linden shall review the Agency Report and Protest File (anticipated to be approximately 2,400 pages) to be produced by IDOT, with a production date currently anticipated as September 30, 2022. Linden shall prepare responsive analytical materials identifying any deficiencies, inconsistencies, or additional issues revealed by the Agency Report and Protest File. This review shall be conducted within a timeframe consistent with the deadlines established by ALJ Odum for the protest proceeding.
(i) Attorney Consultation. Linden shall be available for consultation with Calderwood & Harkness attorneys — specifically, Ian Blackwood (Partner), Sara Hendricks (Senior Associate), and Christopher Aiken (Associate) — in preparation of protest filings, oral argument, and overall protest strategy. This consultation may take place by telephone, videoconference, or in person at Calderwood & Harkness's Chicago offices or such other locations as the parties may agree.
3.2 Litigation-Phase Services (Contingent Scope)
In the event that the agency-level protest is denied by the IDOT Administrative Review Board or the Board fails to issue a timely decision within the time periods prescribed by applicable regulations, and if MTDC elects to escalate the matter to the Illinois Court of Claims under the Illinois Court of Claims Act, 705 ILCS 505, Linden shall provide litigation-phase support services as described below. The litigation-phase scope is contingent in nature and will be activated only if escalation to judicial proceedings becomes necessary.
Litigation-phase services shall include the following:
(a) Formal Expert Report. Preparation of a formal expert report suitable for submission in judicial proceedings before the Illinois Court of Claims, compliant with all applicable rules of evidence and procedure, including any requirements regarding the form, content, and timing of expert disclosures.
(b) Deposition Testimony Preparation. Preparation for and, if called upon, participation in deposition testimony by Dr. Fernwood, including preparation sessions with Calderwood & Harkness attorneys and review of relevant documents in advance of deposition.
(c) Trial Testimony Preparation and Testimony. Preparation for trial testimony and, if called upon, live testimony by Dr. Fernwood at evidentiary hearings or trial proceedings before the Illinois Court of Claims. Dr. Fernwood shall make herself available for trial testimony on dates to be coordinated with Calderwood & Harkness and the Court's schedule.
(d) Supplemental Analysis. Supplemental analysis as may be necessary based on additional discovery materials obtained during the litigation phase, including but not limited to deposition transcripts, interrogatory responses, and documents produced by IDOT, Pinnacle, or other parties or non-parties.
Activation of litigation-phase services requires written authorization from Calderwood & Harkness LLP, and such services are subject to the fee provisions set forth in Section 4.2 below. Unless and until such written authorization is provided, Linden shall have no obligation to perform, and Calderwood & Harkness shall have no obligation to pay for, litigation-phase services.
4. Fees and Payment Terms
4.1 Protest-Phase Fee
Calderwood & Harkness and Linden agree to a flat fee of One Hundred Forty-Five Thousand Dollars ($145,000) for all protest-phase services described in Section 3.1 above. This flat fee is inclusive of all professional time of Dr. Fernwood and any Linden staff working under Dr. Fernwood's direct supervision, including all analytical work, report preparation, exhibit development, and up to two (2) days of on-site or videoconference consultation with Calderwood & Harkness attorneys. For purposes of this provision, a "day" of consultation shall consist of up to eight (8) hours of professional time.
The flat fee does not include reasonable out-of-pocket expenses, including but not limited to travel, lodging, meals, document reproduction, courier and shipping charges, and similar costs directly incurred in connection with the engagement. Such expenses shall be reimbursed at cost upon submission of itemized invoices with supporting documentation.
Payment of the protest-phase flat fee shall be made according to the following schedule:
• First Installment: Fifty percent (50%) of the flat fee — Seventy-Two Thousand Five Hundred Dollars ($72,500) — shall be due and payable upon execution of this engagement letter by both parties.
• Second Installment: The remaining fifty percent (50%) of the flat fee — Seventy-Two Thousand Five Hundred Dollars ($72,500) — shall be due and payable upon delivery of the final expert report materials to Calderwood & Harkness.
4.2 Litigation-Phase Fee
An additional fee of Eighty-Five Thousand Dollars ($85,000) is authorized for litigation-phase support services as described in Section 3.2 above. This litigation-phase fee is contingent upon written activation by Calderwood & Harkness and will not be invoiced unless and until such written activation occurs. The litigation-phase fee covers preparation of a formal expert report for judicial proceedings and up to three (3) days of deposition or trial testimony preparation, including mock examination sessions. For purposes of this provision, a "day" shall consist of up to eight (8) hours of professional time.
Any additional testimony preparation days or actual testimony days beyond the three-day allotment included in the litigation-phase fee shall be billed at Dr. Fernwood's standard daily rate of Four Thousand Five Hundred Dollars ($4,500) per day. Such additional days shall be invoiced monthly in arrears with appropriate descriptions of services rendered.
Reasonable out-of-pocket expenses incurred during the litigation phase shall be reimbursed at cost, consistent with the expense reimbursement provisions applicable to the protest phase.
4.3 Invoicing and Payment
All invoices shall be directed to:
Calderwood & Harkness LLP 311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606
Attention: Stephanie Okafor, Partner (Billing Partner)
Payment terms are Net Thirty (30) days from date of invoice. All invoices shall include a reasonably detailed description of the services rendered and expenses incurred, consistent with applicable billing guidelines. Calderwood & Harkness Matter No. 1031-00003 shall appear on all invoices submitted by Linden.
All fees and expenses incurred under this engagement are being incurred on behalf of MTDC and will be passed through to MTDC as disbursements on Calderwood & Harkness's client billing statements. Notwithstanding the foregoing, Linden's contractual relationship is with Calderwood & Harkness LLP, and Calderwood & Harkness LLP shall be responsible for payment of all amounts due to Linden hereunder.
5. Confidentiality and Privilege Preservation
5.1 Confidential Information
All information, documents, data, and communications provided to Linden by Calderwood & Harkness or MTDC in connection with this engagement constitute "Confidential Information" as that term is used throughout this letter. Confidential Information includes, but is not limited to, the following:
(a) MTDC's proposal submitted in response to RFP No. IDOT-TS-2022-014, including all pricing data, technical volumes, management plans, past performance references, and supporting documentation;
(b) the IDOT Agency Report and Protest File, including all evaluation documentation, TEP score sheets, the Source Selection Decision Document, the IGCE, and all correspondence and memoranda generated during the procurement process;
(c) internal Calderwood & Harkness memoranda, legal analyses, strategy materials, and attorney work product prepared in connection with the protest and any subsequent litigation;
(d) communications between Calderwood & Harkness and MTDC, and between Calderwood & Harkness and Linden, relating to the subject matter of this engagement;
(e) any work product, analyses, draft reports, final reports, declarations, exhibits, and other materials generated by Linden in the course of this engagement; and
(f) any other information designated as confidential by Calderwood & Harkness or MTDC, whether provided orally, in writing, or in electronic form.
Linden shall not disclose Confidential Information to any third party without the prior written consent of Calderwood & Harkness, except as may be required by law, regulation, or order of a court or administrative tribunal of competent jurisdiction. In the event that Linden receives a subpoena, discovery request, or other legal process seeking disclosure of Confidential Information, Linden shall provide prompt written notice to Calderwood & Harkness — and in no event later than five (5) business days after receipt of such process — before making any disclosure, to permit Calderwood & Harkness to seek appropriate protective relief. Linden shall cooperate with Calderwood & Harkness in any effort to obtain a protective order or other appropriate remedy.
5.2 Attorney Work Product and Litigation Privilege
Linden's engagement under this letter is at the direction of counsel for purposes of pending and anticipated litigation and administrative proceedings. The parties intend that all communications between Calderwood & Harkness and Linden, all draft and final work product prepared by Linden, and all analyses, notes, memoranda, data compilations, and materials generated by Linden in connection with this engagement shall be protected by the attorney work-product doctrine, as articulated under Illinois Supreme Court Rule 201(b)(2) and the federal work-product doctrine set forth in Hickman v. Taylor, 329 U.S. 495 (1947), and its progeny, and, where applicable, by the attorney-client privilege.
Linden shall take all reasonable steps to preserve the privileged and protected nature of all communications and materials generated in connection with this engagement, including the following:
(a) All documents, reports, draft reports, memoranda, and correspondence prepared by Linden in connection with this engagement shall be marked "PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT" on each page, where appropriate and practicable;
(b) Linden shall not discuss the substance of its engagement, its analyses, its opinions, or any Confidential Information with any person or entity not authorized to receive such information under this letter;
(c) Linden shall maintain engagement materials in a manner that segregates them from Linden's non-engagement files and records; and
(d) Linden shall not produce or disclose any work product, draft reports, final reports, declarations, or communications to any party — including IDOT, Pinnacle Transit Solutions, Inc., Northlake Signal Systems, Inc., or their respective counsel (including the Office of the Illinois Attorney General and the law firm of Brannick, Hartley & Voss LLP) — without the express written authorization of Calderwood & Harkness LLP.
Nothing in this Section 5.2 shall prevent the submission of Dr. Fernwood's expert report, declarations, or testimony in the protest proceeding or litigation, as directed by Calderwood & Harkness in the ordinary course of the engagement.
5.3 Return and Destruction of Materials
Upon conclusion of the engagement, or upon written request by Calderwood & Harkness at any time during or after the engagement, Linden shall promptly return all Confidential Information and all Calderwood & Harkness and MTDC documents in its possession, custody, or control, in whatever form (including paper, electronic, and digital media). Linden shall destroy all copies of such materials, including electronic copies stored on servers, hard drives, backup systems, cloud storage, and portable media, and shall certify such destruction in writing to Calderwood & Harkness within fifteen (15) business days of the request.
Notwithstanding the foregoing, Linden may retain copies of engagement materials only to the extent strictly required by applicable law, regulation, or professional standards governing the retention of expert consulting records. Any materials so retained shall remain subject to the confidentiality and privilege obligations set forth in this letter for so long as such materials are in Linden's possession.
6. Document Handling and Security
Linden shall maintain all Confidential Information and engagement materials in secure, access-controlled physical and electronic storage at all times during the engagement. Physical documents shall be stored in locked facilities with access limited to authorized personnel. Electronic files shall be encrypted both in transit and at rest using industry-standard encryption protocols, with a minimum encryption standard of AES-256 or equivalent.
Access to engagement materials shall be limited to Dr. Fernwood and those Linden personnel directly assisting on the engagement. Each such individual shall be made aware of, and shall be bound by, the confidentiality obligations set forth in this letter prior to being granted access to any engagement materials. Linden shall maintain a current list of all personnel with access to engagement materials and shall provide such list to Calderwood & Harkness upon request.
Linden shall promptly notify Calderwood & Harkness — and in no event later than forty-eight (48) hours after discovery — of any actual or suspected security breach, unauthorized access, or loss involving engagement materials, whether in physical or electronic form. Such notification shall include a description of the nature and scope of the breach, the materials affected, and the remedial steps taken or planned.
7. Independence and Conflicts
Linden represents and warrants that, as of the date of this letter, it has no financial interest in, business relationship with, or other conflict of interest relating to any party to the protest proceeding, including but not limited to: Metropolitan Transit Development Corp. (MTDC); the Illinois Department of Transportation (IDOT); Pinnacle Transit Solutions, Inc.; Northlake Signal Systems, Inc.; the law firm of Brannick, Hartley & Voss LLP (counsel for Pinnacle); or the Office of the Illinois Attorney General.
Linden further confirms that Dr. Alicia Fernwood has no prior professional or personal relationship with any of the following individuals involved in the IITMP procurement or the protest proceeding:
• Angela Moreau, Deputy Secretary for Multimodal Transportation (Source Selection Authority)
• Gerald Fassett, P.E., Chief of Bureau of Transit Operations (Contracting Officer)
• Dr. Franklin Yee (Technical Evaluation Panel member)
• Constance Hartigan (Technical Evaluation Panel member)
• Marcus Ellerbee, Chief Executive Officer, Pinnacle Transit Solutions, Inc.
• Denise Whitfield, Chief Operating Officer, Pinnacle Transit Solutions, Inc.
Linden shall promptly notify Calderwood & Harkness, in writing, of any conflict of interest or potential conflict of interest that arises or becomes known during the course of the engagement. Upon such notification, the parties shall confer in good faith to determine whether the conflict can be resolved or whether termination of the engagement is necessary.
8. Term and Termination
This engagement shall commence upon the execution of this letter by both parties and shall continue until the conclusion of the protest-phase services described in Section 3.1, unless earlier terminated in accordance with this Section 8. The litigation-phase engagement described in Section 3.2 shall commence only upon written activation by Calderwood & Harkness LLP and shall continue until the conclusion of the litigation or earlier termination.
Either party may terminate this engagement upon thirty (30) days' prior written notice to the other party; provided, however, that Linden shall complete any work in progress at the time of the termination notice, and shall deliver all work product completed or in progress to Calderwood & Harkness as of the effective date of termination. Linden shall be entitled to payment for all services rendered and expenses incurred through the effective date of termination, prorated as appropriate in the case of the flat fee based on the proportion of work completed at the time of termination.
In the event of termination, the confidentiality, privilege preservation, document return and destruction, and limitation of liability obligations set forth in Sections 5, 6, and 11 of this letter shall survive the termination of the engagement and shall remain in full force and effect.
9. Relationship of the Parties
Linden is retained as an independent contractor for purposes of this engagement. Nothing in this letter shall be construed to create an employment, partnership, joint venture, or agency relationship between Linden and Calderwood & Harkness LLP, or between Linden and MTDC. Linden shall not have the authority to bind Calderwood & Harkness or MTDC to any obligation or commitment, nor shall Linden represent itself as an agent or employee of either entity.
Dr. Fernwood shall exercise her independent professional judgment in performing the scope of services described herein. Calderwood & Harkness's direction pertains to the legal and strategic framework of the engagement — including the identification of issues to be analyzed, the format and timing of deliverables, and the overall litigation strategy — and does not extend to the substance of Dr. Fernwood's expert opinions, analyses, or conclusions. Dr. Fernwood's opinions shall be based solely on her independent professional assessment of the facts, data, and circumstances relevant to the engagement.
10. Governing Law and Dispute Resolution
This engagement letter shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to conflict-of-laws principles. All rights and obligations of the parties hereunder shall be determined in accordance with Illinois law.
Any dispute, controversy, or claim arising out of or relating to this engagement letter, or the breach, termination, or validity thereof, shall be resolved by binding arbitration in Chicago, Illinois, administered under the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall be conducted by a single arbitrator selected in accordance with the rules of the American Arbitration Association. The arbitrator's award shall be final and binding upon the parties, and judgment upon the award may be entered in any court of competent jurisdiction. Each party shall bear its own costs and attorneys' fees in connection with any arbitration proceeding, unless the arbitrator determines that an award of costs and fees is appropriate.
11. Limitation of Liability
Linden's aggregate liability under this engagement, whether in contract, tort, or otherwise, shall not exceed the total fees actually paid to Linden under this engagement letter. This limitation of liability applies to all claims arising out of or in connection with Linden's performance of services hereunder, regardless of the theory of liability.
Neither party shall be liable to the other for any consequential, incidental, indirect, special, or punitive damages arising out of or in connection with this engagement, regardless of whether such damages were foreseeable or whether the party has been advised of the possibility of such damages. This limitation shall not apply to breaches of the confidentiality obligations set forth in Section 5 of this letter.
12. Entire Agreement and Amendments
This letter constitutes the entire agreement between Calderwood & Harkness LLP and Linden Analytics Group, LLC with respect to the subject matter hereof. This letter supersedes all prior discussions, negotiations, understandings, and agreements between the parties, whether written or oral, relating to the engagement described herein. No representations, warranties, or commitments have been made by either party except as expressly set forth in this letter.
This letter may not be amended, modified, or supplemented except by a written instrument duly executed by authorized representatives of both Calderwood & Harkness LLP and Linden Analytics Group, LLC. No waiver of any provision of this letter shall be effective unless made in writing and signed by the party against whom enforcement of such waiver is sought.
We are pleased to have the opportunity to engage Linden Analytics Group, LLC and Dr. Fernwood in this matter, and we look forward to working with you. If the foregoing terms are acceptable, please indicate your acceptance by signing and dating this letter in the space provided below and returning one fully executed original to the undersigned at the address above. Please retain one fully executed original for your records.
Should you have any questions regarding this engagement letter or the scope of services, please do not hesitate to contact me directly at (312) 555-7218 or by email at iblackwood@calderwoodharkness.com.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Name: Ian Blackwood
Title: Partner, Government Contracts Practice
Calderwood & Harkness LLP 311 South Wacker Drive, Suite 4800 Chicago, Illinois 60606
Date: ________
ACCEPTED AND AGREED
The undersigned, on behalf of Linden Analytics Group, LLC, hereby accepts and agrees to the terms and conditions set forth in this engagement letter, effective as of the date set forth below.
LINDEN ANALYTICS GROUP, LLC
By: ________
Name: Dr. Alicia Fernwood
Title: Principal Consultant
Linden Analytics Group, LLC 1925 Ballenger Avenue, Suite 310 Alexandria, Virginia 22314
Date: ________
cc:
Dr. Raymond Alcázar, Executive Director, Metropolitan Transit Development Corp. Patricia Ng, General Counsel, Metropolitan Transit Development Corp. Stephanie Okafor, Partner, Calderwood & Harkness LLP
Encl.: IDOT Protest Filing materials to be transmitted separately under cover of confidentiality notice.
| Evaluation Factor | Weight | Maximum Points | |
| Factor 1 — Technical Approach | 40% | 400 | |
| Factor 2 — Management & Staffing Plan | 25% | 250 | |
| Factor 3 — Past Performance | 20% | 200 | |
| Factor 4 — Cost/Price | 15% | 150 | |
| Total | 100% | 1,000 | |
| Evaluation Factor | MTDC Score | Pinnacle Score | Differential |
| Factor 1 — Technical Approach | 378 | 351 | MTDC +27 |
| Factor 2 — Management & Staffing Plan | 221 | 238 | Pinnacle +17 |
| Factor 3 — Past Performance | 182 | 176 | MTDC +6 |
| Factor 4 — Cost/Price | 142 | 128 | MTDC +14 |
| Total | 923 | 893 | MTDC +30 |