Motorola sues Florida; alleges violation of Sunshine law
Motorola filed suit against the state of Florida on July 20, alleging that the state had violated the Florida Sunshine Law by holding closed meetings during the competitive procurement process for the completion of a statewide public safety communications system.
Florida awarded Motorola a contract in the early ’90s to build a statewide digital communications system. Motorola had completed two of the five planned phases by 1998, on time and under budget. The 800MHz Astro digital trunked Smartzone system operates in 15 of Florida’s 67 counties. The contract for building and maintenance was set to expire on June 30, 2000, continued in effect by an agreement between Florida’s Department of Management Services (DMS) and Motorola.
The question now is who will complete Florida’s communications system? In 1999, Gov. Jeb Bush issued a letter to the DMS to conduct procurement for the completion of the radio system by a request for proposal (RFP). According to Steve Savor, Com-Net Ericsson Critical Radio Systems’ chief executive officer, Bush had stated that he was concerned that the cost of public safety radio communications for Florida had continued to rise while the price of telecommunications equipment in the private sector had decreased.
Com-Net and Motorola ended up as the only two contenders in this RFP process, and both submitted proposals in March. DMS did not award a contract, however, because the companies’ proposals initially did not comply with the RFP. DMS asked the companies to modify the proposals and to make new financial proposals. A five-person negotiation team then conducted fact-finding and evaluation meetings with Motorola and Com-Net.
On June 22, the team met with the two companies to discuss their respective proposals. That evening, according to Motorola’s complaint, the team met in secret to evaluate the two proposals.
Next came a public meeting where the officials voted to rank Com-Net as “one” and Motorola as “two” and to enter into sequential negotiation meetings. DMS initially met with Com-Net. The team conducted a public negotiation meeting on July 6, but subsequent meetings were closed. Motorola representatives were asked to leave a July 10 negotiation session.
Savor said that the meetings were closed because certain trade secrets were involved. “I think the DMS in Florida has complied with the law. They did what they said they were going to do. They had committals and fact-finding sessions with proposers. They’ve taken great measures to adhere to the law,” he said.
Patricia Sturmon, Motorola’s public relations manager, said that Motorola was surprised at Florida’s decisions. She said that the company thought Florida was going to conduct further discussions with both companies instead of leaving Motorola out of the final negotiations. “There should have been a clearly defined criteria. How was the decision made?” she said.
Motorola filed an administrative protest on July 10 against Florida’s decision to negotiate sequentially and initially with Com-Net, but DMS rejected a request for concurrent negotiations. Motorola filed the lawsuit when the DMS and Com-Net continued to meet in private. “It’s very unusual for Motorola to take what are extreme steps,” Sturmon said, referring to litigation.
Com-Net’s proposal is a public-private partnership in which Com-Net will own and operate the radio system. According to Savor, this type of system would allow the state agencies to focus on their core competency of protecting and serving the citizens of Florida. “They don’t have to continue to hire experts [or] worry about training,” he said.
Savor said that Com-Net projected finishing the communications project in “half the time” that Motorola could. “Motorola stated that it would take them five years to complete the system,” he said.
Motorola contends that its proposal is the best deal for Florida. “We actually believe that we have demonstrated that we’re really the only company that can put together statewide systems such as Florida’s, and we have the history of having done the first part. We certainly hope that the state reconsiders its decision,” Sturmon said.
Sturmon also said that Florida had been happy with the system that Motorola had already installed. In support of her contention, Sturmon cited an article published in the APCO Bulletin in December 1998. In the article, Captain Keith Gaston of the Florida Highway Patrol wrote, “Our 800MHz digital system with its simulcast capabilities provides us more communications features and reliable coverage than VHF and UHF systems currently in use by most law enforcement agencies.” The article referred to the system’s reliability during Hurricane Georges in 1998.
Motorola asked for a temporary injunction for DMS to stop conducting secret negotiations with Com-Net. The injunction was denied on Aug. 1, but Sturmon said that if Motorola does eventually prove that the state violated the Sunshine Law, then the judge could declare any contract null and void.
To take advantage of the 700MHz guard band auction, the Industrial Telecommunications Association (ITA) has authorized the formation of Access Spectrum L.L.C., a new entity that will participate in the auction. Access Spectrum filed the necessary Form 175 on Aug. 2 to bid in the auction, slated for Sept. 6.
“One of ITA’s critical strategic objectives is to pursue FCC actions that result in favorable spectrum allocation decisions that benefit the private wireless industry. The 700MHz band, specifically the 6MHz guard band manager allocations, presented such an opportunity consistent with ITA’s goals,” Mark E. Crosby, ITA president, said. “We realistically had no choice other than to plan to participate in this auction, as ITA’s leadership takes its private wireless advocacy quite seriously, and Access Spectrum was formed specifically to be the potential guard band manager licensee entity.”
If successful in the auction, ITA will maintain its frequency advisory role for other private wireless bands within which it has spectrum management responsibilities and, under agreement with Access Spectrum, ITA will provide its specialized knowledge of spectrum management infrastructure.