Major ITN Ruling from DOAH- many important aspects to consider

This week a major ruling in a Bid Challenge filed by AT&T to the Department of Management Services procurement of statewide telephone services was issued. The procurement was an Invitation to Negotiate. A copy of the recommended order is here,  AT&T ITN Challenge Ruling. The case may have been correctly decided, but what was most striking to me was how many grounds for Challenge were held to have been waived by the challenger, because AT&T waited until the notice of intent to award the contract to challenge. By doing so, the ALJ held that

the undersigned concludes that AT&T has waived the issue of Harris’ responsiveness by failing to protest on these grounds at the point of entry accompanying the Notice of Intent to Negotiate. Section 2.5 of the ITN allowed AT&T to request the Harris Reply following the completion of the evaluation phase of the ITN, which would have revealed the issues of responsiveness that AT&T now complains about.[emphasis added]

It is undisputed that AT&T did not protest the ITN’s specifications, including the specifications regarding the Department’s reservation of the right to negotiate the statement of work. The scope of AT&T’s waiver includes any challenge to the Department’s authority under the ITN’s specifications to negotiate the terms of the statement of work, including the number of core facilities and the removal of SCR capability, as well as the Department’s authority to make changes to the statement of work without publicly posting an addendum containing point of entry language to VBS.[emphasis added]

AT&T did not protest the Notice of Intent to Negotiate, and, accordingly, has waived any arguments as to Harris’ responsibility or the responsiveness of the initial Reply submitted by Harris. These waived arguments include AT&T’s challenges involving Harris’ corporate identity.[emphasis added]

The Department’s determinations that both AT&T and Harris were responsible vendors, whose initial Replies were responsive to the ITN, became final 72 hours after the Notice of Intent to Negotiate was posted in accordance with section 120.57(3). Any challenge related to these determinations has been waived.[emphasis added]

This appears to be a lot of waivers charged against a fairly sophisticated vendor, and highlights why waiting until the notice of intent to award has been posted may be too late.