Fulton County Superior Court

***EFILED***BB
Date: 12/29/2015 4:32:48 PM
Cathelene Robinson, Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

UTILITY ASSOCIATES, INC.,

Plaintiff,
v.
CITY OF ATLANTA,
Defendant.

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2015CV269704
Civil Action No. ______________

VERIFIED COMPLAINT
NOW COMES Plaintiff Utility Associates, Inc. (Utility) and, for its Complaint against
Defendant City of Atlanta, alleges and avers as follows.
PARTIES, JURISDICTION AND VENUE
1.

Plaintiff Utility is a Delaware corporation with a place of business at 250 E.

Ponce De Leon Avenue, Decatur, Georgia 30030.

2.

Defendant the City of Atlanta (City) is a municipality capable of being sued and

may be served through its Mayor, The Honorable Kasim Reed, at 55 Trinity Avenue, Atlanta,
Georgia 30303.
INTRODUCTION
3.

In the spring of 2015, Utility was selected to be a vendor for body cameras and

related video management services for the Atlanta Police Department. Utility was able to sell
body cameras to the City via a State of Georgia Contract and stood ready to perform on that
contract. Despite its own testing that confirmed the superiority of Utilitys product offering, the
1

City sought to sole source the contract to another vendor. After the sole sourcing attempt failed,
in part because of Utilitys objections, the City ostensibly sought to conduct a competitive bid
process. However, that process is and has been fatally flawed from the outset, both facially and
in application, all to Utilitys detriment. Among other flaws, the City (1) did not properly
consider or fairly weigh Utilitys proposal, particularly in terms of experience, cost factors and
the resumes of its team members, (2) improperly measured items that were not set out in the
Citys request for proposal, and (3) improperly awarded the body camera contract to a third party
vendor. Later, when Utility pointed out the errors in the evaluation process to the City, including
that the evaluators positive scoring of the experience of Utilitys team undercut the Citys claim
that Utility should get no points for relevant experience, the City declared, without any basis,
those scores to be a clerical error, amended its notice of award and wrongly denied Utilitys
Protests of these and other flaws in the process.
4.

When Utility appealed the denial of its Protests, the City referred the matter to a

procurement hearing officer who, on information and belief, has served for a decade or more, in
direct contravention to the City Codes requirements that hearing officers be rotated out, without
ever upholding a protest of any of the Citys procurement decisions. When Utility pointed this
violation out to the City, the City pushed an ordinance through City Council improperly seeking
to extend the term of service of the Citys hearing officers. The City has failed to provide due
process to Utility and now wants to proceed with performing the contract with the proponent
deemed the winner while Utilitys Protest is pending, thus threatening to bar Utility from
obtaining any effective relief in its Protests. Accordingly, the protest remedy offered by the City
regarding this request for proposal is futile.

5.

Utility requests an interlocutory injunction that will preclude the City from

performing on the contract with the third party vendor for body cameras and associated services
for the Atlanta Police Department. Further, Utility requests a declaratory judgment that the
Citys Protest process be declared futile, both facially and in its application as to Utility, and thus
not a prerequisite for relief. Utility further requests that, in recognition of the futility of the
Protest process, the Court grant expedited discovery and conduct an expedited hearing on the
merits of Utilitys Protests in lieu of the Citys protest and appeal process, and that the Court
award the contract for the APD body cameras and associated services to Utility, or alternatively,
order that the contract for the APD body cameras be rebid in accordance with fundamental
principles of fairness and due process.
BACKGROUND
6.

Utility is a certified State of Georgia vendor. Municipalities, such as the City, are

able to purchase goods and services from Utility under a so-called State contract.
7.

On information and belief, in or about 2014 and/or early 2015, the Atlanta Police

Foundation (Foundation) evaluated several body cameras, excluding any camera product
offered by Utility. The Foundation issued a report rating the body camera made and sold by
Taser International (Taser) as superior to the other cameras evaluated.
8.

In or about April of 2015, the Atlanta Police Department (APD) evaluated

Utilitys body camera. APD subsequently conducted a field test of the Utility camera product
and the Taser camera product.
9.

At that time of APDs test, Utility was known to APD and the City, because

Utility was already providing mobile routers, which are used with in-car video systems, to APD.

10.

Based on its test, APD determined that the Utility camera product was superior to

the Taser camera product. See generally, Exhibit A.

11.

On information and belief, on or about April 21, 2015, APD Deputy Chief of

Police CJ Davis recommended purchase of the Utility camera products in written correspondence
to the Chief Operating Officer (COO) of the City, Mr. Michael Geisler, stating:
We have just completed the final field test on a devise [sic] recommended through a
state vendor, Utility. Based on our observations, we feel their product will serve us
well. This company is currently providing dash-cam services for APD patrol
vehicles, and will utilize the same solution and platform for body camera video
storage. We anticipate the contractual agreement with Utility finalized within the
next two weeks, and the first cameras on our officers by the first of June. In the
interim, we have concurrently worked with the Law Department to develop a suitable
policy and coordinate the department wide training and roll-out plan. We are excited
to finally reach this stage of procurement process and look forward to implementing
this new technology in the coming weeks. We will be certain to keep you abreast as
we make further progress.
See Exhibit A1. On information and belief, Deputy Chief Davis copied Police Chief George
Turner and Assistant Police Chief Shawn Jones on this correspondence.
12.

Subsequently, Utility was asked by the City if it could deliver approximately 450

body cameras by June 30, 2015. Utility responded affirmatively, and Utility was informed that
APD would purchase Utilitys camera products via a Georgia State Contract. See generally,
Exhibit B.
13.

On information and belief, in or about May of 2015, the Citys Chief Information

Officer, Samir Saini, conducted a separate evaluation of the Utility and Taser body camera
products, and, on or about May 22, 2015, in written correspondence to Deputy Chief Davis and
Chief Turner, Mr. Saini recommended that the City purchase Utilitys camera products and
services, stating:
Based on my evaluation summarized in the table below, I highly recommend
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moving forward with the Utility solution. The Utility offering is far more than just a
body camera. Its a platform that provides advanced video recording, near real-time
video evidence search/retrieval, and situational awareness & response capability that
no other vendor is providing in the market today, and at the lower price than Taser. It
is also fully compatible with existing infrastructure in the precincts. Lastly, the CEO
of Utility lives in midtown Atlanta and appears extremely committed to supporting
our city. . . .
See Exhibit C.
14.

After Mr. Sainis evaluation, Utility was again informed by the City that it had

been selected for the APD body camera deployment.

15.

On information and belief, subsequent to Mr. Sainis evaluation, the City COO,

Mr. Geisler, directed APD to conduct a 30-day, 30-unit test of Utilitys body camera products.
Utility was asked to commit to fully outfit 30 officers for 30 days. In correspondence from
Anthony Baldoni to the City Police Department dated June 5, 2015, Utility agreed. See Exhibit
D.
16.

In fact, Utility exceeded the Citys request by offering to outfit an entire zone

(approximately 130 officers) for ninety (90) days at no cost to the City, if the City would move
forward with Utility camera products based upon reasonable performance objectives. Utilitys
President, Mr. Ted Davis, confirmed the foregoing events in correspondence to the City COO,
Mr. Geisler. See Exhibit E.
17.

On information and belief, on or about June 5, 2015, contrary to Mr. Geislers

direction, APD, through Deputy Chief C.J. Davis, presented so called walk-in legislation to the
Atlanta City Council that would have engaged Taser as the Citys sole supplier of body cameras
for APD, without any bid process. The walk-in legislation did not pass.
18.

On information and belief, legislation was subsequently presented to the City

Council seeking to award the deployment of more than 1200 body cameras for the APD to Taser

as a sole supplier under a special procurement process. See Exhibit F. More particularly, on
or about June 23, 2015, the following resolution 15-R-3794 was proposed to the City Council by
the Public Safety and Legal Administration Committee:

A RESOLUTION BY PUBLIC SAFETY AND LEGAL

ADMINISTRATION COMMITTEE AUTHORIZING THE
MAYOR OF HIS DESIGNEE TO EXECUTE AN APPROPRIATE
SPECIAL PROCUREMENT AGREEMENT, PURSUANT TO 21191 OF THE CITY OF ATLANTA CODE OF ORDINANCES
BY THE DEPARTMENT OF PROCUREMENT AS FC-8342,
FOR PURCHASE NOT TO EXCEED ONE THOUSAND, TWO
HUNDRED FIFTY (1250) POLICE WORN BODY CAMERAS
AND VIDEO STORAGE FROM TASER INTERNATIONAL, ON
BEHALF OF THE ATLANTA POLICE DEPARTMENT
(DEPARTMENT), IN AN AMOUNT NOT TO EXCEED ONE
MILLION, THREE HUNDRED THOUSAND DOLLARS
($1,300,000), WITH THE PURCHASE OF 1100 POLICE BODY
CAMERAS AND VIDEO STORAGE NOT TO EXCEED ONE
MILLION, ONE HUNDRED THOUSAND DOLLARS
($1,100,000) WITH COSTS CHARGED TO AND PAID FROM:
7701-TRUST FUND, 240101-APD CHIEF OF POLICE, 5316001EQUIPMENT ($1,000-4,999), 1320000-CHIEF EXECUTIVE,
600234-FEDERAL-RICO, 69999-FUNDING SOURCE NON
CAPITAL TRUST; WITH 150 ATLANTA AIRPORT POLICE
BODY CAMERAS AND VIDEO STORAGE NOT TO EXCEED
TWO HUNDRED THOUSAND DOLLARS ($200,000) WITH
COST CHARGED TO AND PAID FROM: 5501 AIRPORT
REVENUE FUND, 240602 APD AIRPORT UNIT, 5212001
CONSULTING/PROFESSIONAL
SERV,
3223000
PROFESSIONAL PATROL; AND FOR OTHER PURPOSES.
(Exhibit F, emphasis added.) In fact, under the State Contract, Utilitys cost of its superior
cameras and services to the City would have been approximately $500,000 less than what
Taser was demanding for its camera products and services.

19.

On information and belief, in July 2015, the foregoing Resolution 15-R-3794,

which sought to establish Taser as a sole source supplier of body cameras to the City came
before the City Council but the City Counsel did not pass the resolution.
20.

In a June 22, 2015 email correspondence, Mr. Geisler informed Mr. Saini that the

[l]egislation proposed by APD, to outfit 1000+ officers with Laser [sic, Taser] cameras, has
been held pending further discussion. See Exhibit F1.
21.

Despite Utilitys superior product offering and the prior selection of Utility as a

vendor for APD, on or about August 5, 2015, the City issued a Request for Proposals, FC-8342,
entitled Body Camera and Video Management (RFP). Exhibit G. The RFP set an unusually
short period for response, as all responses were to be received by 2:00 p.m. on August 20, 2015.
22.

The RFP stated that it was soliciting proposals from qualified proponents to

provide a fully functional and ready for operational use body camera and video management
system. See Exhibit G. Part 3 of the RFP, entitled Evaluation of Proposals, stated that an
award shall be made to the most responsible and responsive offeror. The RFP indicated that
the City would consider the following factors with the following relative weights:
RELATIVE
WEIGHT
15

GRADED ITEMS
Technical Approach/Management Plan

25

Overall Experience, Qualifications and Performance on

Previous Projects

10

Executive Summary

20

Cost Proposal

20

Key Resources/Resumes

10

Financial Conditions

(100%)

TOTAL SCORE
7

SCORE

However, the RFP failed to include a section Exhibit A: Scope of Services, but did include a
section entitled Exhibit A.1 Cost Proposal indicating that the City sought to procure 200 body
cameras.
23.

On August 7, thirteen days prior to the submission date, the City issued

Addendum No. 1 (Exhibit H), which included an Exhibit A: Scope of Services (Attachment 3)
and an Appendix E.1 Minimum System Requirements Questionnaire (Attachment 7). For the
first time, the City stated and described a Technical Approach that was to be provided by the
offerors, including:
Section 1
Proposal Requirements and Response
Outlined below is a format to be used for Volume III Technical Approach
Title Page
Table of Contents
1.0
Executive Summary
2.0
Company Background and Information
3.0
Proposed Application Software and Computing Environment
4.0
Database Software
5.0
Optional Software or Hardware
6.0
System Security
7.0
Responses to Requirements for Body Cameras
8.0
Responses to Requirements for Storage System (Onsite or Cloud)
9.0
Implementation Support and Training
10.0 Maintenance Program
11.0 Client References
12.0 Oral Presentation/Demonstration
13.0 Testing Period
14.0 Cost Quotations

24.

Also, the new Appendix E.1 indicated that the body camera specifications would

be evaluated on whether the offerors product supported the following specified item:

Minimum video resolution of 640 x 480

Field of View: at least 75 degrees
Camera system meets MIL-STD 810F Rain and Blowing Rain
Operating temperatures: 0 to 140 degrees Fahrenheit
Equipment shall withstand a drop of up to six (6) feet without a protective case, sheath or
carrying case
Configurable A/V Settings: (variable settings adjust for quality and size of data
Pre-event buffer: Captures no less than 30 seconds prior
Battery life: minimum 12 hours for each piece requiring battery
Power activation: shall have a switch
Entire system weight: 8 ounces or less
Adjustable audio tones to alert user of usage and low battery
Multiple mounting options: torso, head, shoulder, helmet, ball cap, car dash, and sunglasses
mount available
Ability to show current battery level and operational status
Record activation: push button, shall not be easily activated by mistake
GPS tagging of videos
Officer Point of View Mounting
Charging via USB, wall charger, vehicle charger
Ability to playback video on smart phones, tablets, or Windows pcs
Recording time: Minimum 8 hours
Data protection: Officer may not delete or edit audio/video from device
Automated upload to management/storage system
Camera can charge and upload data simultaneously
During the Maintenance Period, all replacement cameras will be the most current comparable
model available
Low light capability: <= .1 lux. The goal is to have a camera that closely matches the
capability of human vision

25.

City Procurement Code Section 2-1188(c)(1), incorporated into the competitive

proposal process by Code Section 2-1189(c), requires public notice of invitations to bid for not
less than 14 consecutive days prior to the due date for bids. The RFP was incomplete without
such requirements as set forth in Appendix E.1, and as such, the complete RFP was public for
less than the required 14 consecutive days before the August 20, 2015 due date for bids.
26.

On August 13, seven days before the due date for the bids, the City issued an

Addendum Number 2 (Exhibit I) with two additional documents that were not present in the
original RFP, namely a statement of minimal requirements to be supported by a local server
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video storage option and a statement of the minimal requirements to be supported by a cloud
video storage system. These requirements, provided for the first time in Addendum No. 2, stated
as follows:
Table 2A: Local Server Option
Management/storage system
Category based evidence automatic retention policies that can be easily customized
System stores and supports major digital file types (.mp3, .mp4, .mpeg, .jpg, .pdf, etc.)
System automatically tracks all system and user activity
Generates real-time full audit reports to show chain of custody etc.
Encryption in storage and data transport
Backup system (elaborate)
Ability to share videos with third parties outside our network
Ability to easily create optical disks for court use
Ability to easily create tags, markers, clips
Ability to easily redact footage as needed
Case creation for multiple evidence files
Searchable fields used to locate users and evidence easily
Ability to recover deleted evidence within 3 days of deletion
Controlled access to evidence; customizable roles, permissions, and credentials.
Software including to manage and/or view system or evidence from Windows PC
Software included to manage and/or view system or evidence from portable devices (Android,
iOS)
Minimum of five (5) year storage, catalog, and retrieval of digital evidence capability
Ability for Officers to add notes to evidence
Mapping: maps can be created with software tied to evidence GPS
Video can be played without the need of additional software
Table 2B: Cloud Storage System
Management/storage system
Category based evidence automatic retention policies that can be easily customized
System stores and supports major digital file types (.mp3, .mp4, .mpeg, .jpg, .pdf, etc.)
System automatically tracks all system and user activity
Generates real-time full audit reports to show chain of custody etc.
Encryption in storage and data transport
Backup system (elaborate)
Ability to share videos with third parties outside our network
Ability to easily create optical disks for court use
Ability to easily create tags, markers, clips
Ability to easily redact footage as needed
Case creation for multiple evidence files
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Searchable fields used to locate users and evidence easily

Ability to recover deleted evidence within 3 days of deletion
Controlled access to evidence; customizable roles, permissions, and credentials.
Software included to manage and/or view system or evidence from Windows PC
Software included to manage and/or view system or evidence from portable devices (Android,
iOS)
Minimum of five (5) year storage, catalog, and retrieval of digital evidence capability
Ability for Officers to add notes to evidence
Mapping: maps can be created with software tied to evidence GPS
Video can be played without the need of additional software
City can recover all Cloud data at the end of the contract
The RFP was incomplete without such requirements as set out in Addendum No. 2, and as such,
the complete RFP was public for less than the required 14 consecutive days before the August
20, 2015 date for bids.
27.

The City issued Addendum No. 3 (Exhibit J) on August 18, 2015, just two (2)

days before the August 20 submission date. For the first time, the RFP was defined as being for
a six (6) month pilot phrase for 110 devices. Thus, the RFP was still incomplete as of August 18
and the complete RFP was public for less than the required 14 consecutive days before the
August 20, 2015 due date for bids. The Special Procurement underscores that the RFP was a
precursor to a larger procurement.
28.

Despite the late disclosure of necessary information, the City expressly refused to

consider extending the time for response even for a period of two business days. Addendum No.
3 specified that proposals would be received by 2:00 p.m. on August 20, and reviewed for
responsiveness that same day.
29.

Various offerors responded to the RFP, including Utility, Taser International, L-3,

Digital Ally, Coban Technologies and WatchGuard Video.

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30.

Utility, as metro-Atlanta-based business, offered the best financial terms. On

information and belief, Utilitys bid price was less than one-tenth (or more than $100,000 less
than) that of any offeror.
31.

Utility recognized that as a metro-Atlanta based business, obtaining a contract

with the City would enhance its ability to compete for other contracts, and strengthen Utilitys
reputation and goodwill while also providing the City and its citizens (including Utility
employees) with superior products.
32.

On information and belief, after the incomplete RFP was propounded, the City

developed the criteria to evaluate the various proposals, beginning on August 4, 2015. See
Exhibit K. The drafting process continued for several days until at least August 19, when Ms.
Darlene Jackson, Project Manager for the APD, wrote an e-mail at 7:34 p.m. to Mimie Woods of
the City Procurement Office, stating: The attached represents APDs final format of the PreDetermined Matrix for FC-8342 Body Camera and Video Management RFP, and has been
approved by the evaluators. A copy of that final format of the Pre-Determined Matrix is
attached as Exhibit L.
33.

The APDs final Pre-Determined Matrix described the Overall Experience,

Qualifications and Performance on Previous Projects evaluation criteria as follows:

Points
1

Description
Organization has at least 2 years of experience within the last 10 years
but has not successfully managed a project of similar or larger scope and
complexity.

Organization has at least 2 years of experience within the last 10 years,

and at a minimum has successfully managed 1 project of similar or larger
scope and complexity.

Organization has at least 3 years of experience within the last 10 years;

and at a minimum has successfully managed 2 projects of similar or
larger scope and complexity.
12

4
5
6
7
8
9
10

Organization has at least 3 years of experience within the last 10 years;

and at a minimum has successfully managed 3 projects of similar or
larger scope and complexity.
Organization has at least 3 years of experience within the last 10 years;
and at a minimum has successfully managed 4 projects of similar or
larger scope and complexity.
Organization has at least 3 years of experience within the last 10 years;
and at a minimum has successfully managed 5 projects of similar or
larger scope and complexity.
Organization has at least 4 years of experience within the last 10 years;
and at a minimum has successfully managed 6 projects of similar or
larger scope and complexity.
Organization has at least 4 years of experience within the last 10 years;
and at a minimum has successfully managed 7 projects of similar or
larger scope and complexity.
Organization has at least 4 years of experience within the last 10 years;
and at a minimum has successfully managed 8-9 projects of similar or
larger scope and complexity.
Organization has at least 5 years of experience within the last 10 years;
and at a minimum has successfully managed 10 projects of similar or
larger scope and complexity.

See Exhibit L.
34.

The APD final Pre-Determined Matrix further described the Key Resources /

Resumes evaluation criteria as follows:

Points
1

Description
All 3 required resumes are provided, however the City does not approve
of the quality of the candidates as a whole.

All 3 required resumes are provided, however the City does not approve
of the quality of two of the candidates. Key personnel have experience
on 1-2 relevant projects collectively.

All 3 required resumes are provided, however the City does not approve
of the quality of one of the candidates. Key personnel have experience
on 3 relevant projects collectively.

Resumes provided for all 3 positions requested. Key personnel have

experience on 4 relevant projects collectively.

13

Resumes provided for all 3 positions requested. Key personnel have

experience on 5 relevant projects collectively.

Resumes provided for all 3 positions requested. Key personnel have

experience on 6 relevant projects collectively.

Resumes provided for all 3 positions requested. Key personnel have

experience on 7 relevant projects collectively.

Resumes provided for all 3 positions requested. Key personnel have

experience on 8 relevant projects collectively.

Resumes provided for all 3 positions requested. Key personnel have

experience on 9 relevant projects collectively.

10

Resumes provided for all 3 positions requested. Key personnel have

experience on 10 or more relevant projects collectively.

See Exhibit L. This sliding scale was not disclosed in the RFP.
35.

Thus, although not stated in the RFP, an offeror could acquire more points by

demonstrating additional years of experience within the last 10 years, and by demonstrating an
additional number of projects.
36.

Utility responded to the RFP. The Utility proposal, attached as Exhibit M,

identified various team members including: the Core Team of Ray Grant, Project Manager;
Randy Gaines, Network Engineer; and Eric Bedell, Database Manager; the Support Team of
Keith Harper and Samson Aberra, both Support Engineers; and the Executive Team of Anthony
Baldoni, Principal in Charge, and Scott Worley, Major Accounts Manager. Utility also included
its Implementation Team, which consisted of Paul Bryant, Deployment Manager, and David
McKeeman, Trainer/Project Manager Assistant.
37.

Utilitys proposal included resumes for the Core Team of Messrs. Grant, Gaines,

and Bedell, and also the resumes of the Executive Team, Mr. Baldoni and Mr. Worley. See
14

resume excerpts at Exhibit M1. The discussion of the Core Team of Messrs. Grant, Gaines, and
Bedell and their relevant project experience is, generally described, as follows:
a. Ray Grant. Mr. Grants resume states that, over the past 23 years, he has
developed proven expertise in video management and its integration throughout
Utilitys digital communication solutions. It also states that Grant has been actively
working on the leading edge of video evidence collection since 2007.
Specific projects worked on by Mr. Grant were identified:

Boca Raton Police Department - the project was Utilitys Rocket, RAP,
ATLAS upgrades, in-car video and video upload and BodyWorn (body
camera products), back office server configuration and installation. The
stated Project Completion Date was 2007 and Ongoing.
Raleigh NC Police Department the project was server installation and
configuration, in-car video, and the Project Completion Date was 2006
and Ongoing; and
Alexandria LA Police Department the project was Rocket, RAP,
ATLAS upgrades, in-car video and video upload and BodyWorn [camera
products], back office server configuration and installation. The Project
Completion Date was shown as 2008 and Ongoing.
Utilitys proposal plainly showed that the listed products are used for in
car video collection and management (see, for example, Vol I, pp. 5-6, and
21-34; and Vol III, confidential disclosure of Proposed Application
Software and Computing Environment, pp. 1-31), so this clearly shows
Mr. Grant had experience in video systems management, and that he had
been involved in such work for much more than three years.

b. Randy Gaines. The introduction states that Mr. Gaines joined Utility in 2010 and
before that had successful career as an NYPD law enforcement officer. The
identified projects worked on by Mr. Gaines were:

The New York City Department of Environmental Protection - the project

was Plan and implementation of in vehicle routers to provide real-time
data sharing and resource management for the City of New York during
day-to-day and emergency operational needs; The Project Completion
Date was Phase 1, Feb 2013;
Milwaukee Police Department the project was Plan and implementation
of in vehicle routers to provide real-time data sharing and resource
15

management for the City of Milwaukee York during day-to-day and

emergency operational needs; and the stated Project Completion Date
was April 2013; and
Delaware State Police the project was Plan and implementation of in
vehicle routers to provide real-time data sharing and resource management
for the Delaware State Police during day-to-day and emergency
operational needs; provide High Speed Data offload of in car video
solutions; and the Project Completion Date was July 2014.
Thus. Mr. Gaines was shown to have three years of experience in video
systems management.

c. Eric Bedell. Mr. Bedell has been with Utility since its inception (more than 10
years ago) and was part of the original team that designed in car video related
products such as AVaiL. He was also a major part of the design and roll out of
DataSync, Utilitys Atlas brand video recorder (a functionality now being
incorporated into Utilitys Rocket product), backend software and most recently,
AVaiLWeb. For specific projects, Mr. Bedells resume listed:

38.

Florida Highway Patrol the project was Deployment of 1937 Rockets

with WiFi Hot Spot, GPS to CAD, High Speed Offload of Video Data;
Atlanta Department of Corrections the project was Install Video
systems in 5 Transport vans for the City of Atlanta. The stated Project
Completion Date is 2015 and Ongoing; and
Columbia SC Police Department Project - the project was Installed 200
Rockets in all CPD vehicles to work with their internal network and
cellular communications and to send GPS to their CAD system.
Implemented Avail Web across the agency. The stated Project
Completion Date was 2011 and Ongoing.
Thus, it was demonstrated that Mr. Bedell has significant experience for
more than three years in video management, including designing several
of Utilitys video products.

Utilitys Executive Summary provided additional information, explaining that

Utility offered superior video quality and automated video redaction (i.e., video systems
management services; not merely transmission of data). And consistent with the more detailed
information set forth above, the Utility Executive Summary stated: Our project manager has at
least three years of experience in video management managing initiatives for police and public
16

safety departments comparable in size to that of the City of Atlanta, and each team member is so
qualified.
39.

Nevertheless, on information and belief, on or about August 24, the City issued a

notice of award to the party deemed most responsible, WatchGuard, and, APD issued a
memorandum to the City Procurement Department stating that Utility was found to be not
responsible on the following grounds:
[Utility] did not demonstrate a minimum of three (3) years for an
implemented fully functional and ready for operational use video
management system; as outlined in the Scope of Work and supplemental
RFP documents.
See Exhibit N1.
40.

Also by a letter dated August 24, 2015, the City notified Utility that it was

deemed a non-responsible party, stating:

[Utility] did not demonstrate a minimum of three (3) years for an
implemented, fully functional and ready for operational use body camera
and video management system.
See Exhibit N2.
41.

A copy of the score sheets generated and used by the City to evaluate and rank the

offerors is attached as Exhibit O.

42.

As shown in the score sheets (Exhibit O), despite the fact that it was already a

City vendor that had previously been identified as the party with the superior camera product and
service, and the detailed information demonstrating experience in its proposal, Utility received a
score of 0 for Overall Experience, Qualifications and Performance Previous Projects.
43.

Yet, reflecting better the substantial experience of its team members, Utility

received a score of 9, and a weighted score of 45, for Key Resources/Resumes. See Exhibit O.

17

44.

On September 3, 2015, Utility protested the decision that Utility was not a

responsible offeror. See Exhibit P.

45.

On September 14, 2015, Utility provided an amended and revised Protest based,

in part, on facts learned after filing its earlier Protest. See Exhibit Q.
46.

On September 21, 2015, after first taking an extension of time, the Citys Chief

Procurement Officer (CPO), Mr. Adam Smith, denied Utilitys protest. See Exhibit R. In so
doing, the CPO stated: Utility failed to submit information that reflects the requisite amount of
and type of experience at the time it submitted its proposal for FC-8342. Therefore, Utility was
given a zero (0) score for experience and was appropriately deemed non-responsible.
47.

On September 28, 2015, Utility timely filed a Notice of Appeal of its denied

Protest. See Exhibit S.

48.

Mr. George Maynard was subsequently appointed by the City as the Procurement

Hearing Officer for this matter.

49.

Per the City Procurement Code, Sec. 2-1164, a hearing officer can only properly

serve for two consecutive two year terms in that position.

50.

On information and belief, Mr. Maynard has served multiple terms as a

Procurement Hearing Officer. On further information and belief, Mr. Maynard, while serving as
a Procurement Hearing Officer, has never ruled in favor of a protestor and against the City.
51.

By letter dated October 30, 2015 (see Exhibit T), Utility raised concerns about

Mr. Maynards ability to serve as the Procurement Hearing Officer. On information and belief,
neither Mr. Maynard nor any other hearing officer had been duly and legally appointed in
accordance with the City Code Section 2-1164(c), which states that [t]he officer shall serve a
two year term and shall not be eligible to serve more than two consecutive terms. On

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information and belief, Mr. Maynard was first appointed as a hearing officer in 1999, and served
in that capacity until 2007. Further, upon information and belief, Mr. Maynard was most
recently appointed on or about June 27, 2011, for a term of two (2) years, and was not
reappointed. See generally, Exhibit T. Even if he had been reappointed, Mr. Maynards second
term would have expired on June 27, 2015, before Utility lodged its protest.
52.

Rather than properly appoint a new, authorized hearing officer, on or about

November 3, 2015 the City passed an Ordinance No. 15-O-1516, purporting to waive Section 21164 of the Procurement Code and allow the current Procurement Hearing Officers, including
Mr. Maynard, to remain in their respective positions through 2016. See Exhibit U.
53.

By letter dated November 12, 2015, the City amended its August 24, 2015 notice

letter to Utility. See Exhibit V. Contrary to earlier internal and external correspondence, the
City now stated that there was a clerical error in the August 24 letter (Exhibit N2) and that
Utilitys proposal lacked the minimum requirements stated in Addendum 2 as follows:
Each Proponent team member (Service Provider Key Personnel) shall have a minimum of
three (3) years experience within the last ten (10) years in video management managing
initiatives for police or public safety departments comparable in size to that of the City of
Atlanta.
The Citys November 12, 2015 letter contained no information about how this alleged error was
discovered.
54.

On November 23, 2015, Utility timely filed a second Amended Protest. See

Exhibit W. In its second Amended Protest, Utility demonstrated that the Citys November 12,
2015 amended notice letter was in error, as each of Utilitys key personnel had the requisite
minimum of three years experience within the last 10 years.
55.

Moreover, when WatchGuards team members biographies are compared to

those of Utilitys team members, it is apparent that the City did not judge fairly and abused its
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discretion. For example, the biography of WatchGuards Project Manager, Granvel Golden,
does not specify a single customer installation he has worked on, much less show any installation
that was comparable to the proposed Atlanta project. (See excerpts of WatchGuard Proposal,
Vol. 1, p. 17, collected at Exhibit X).
56.

Similarly, the biography of Justin Vanman (WatchGuards Technical Services

Manager) indicates that he has experience with in-car video deployments, but does not identify
any particular customer he worked with, much less show that he worked with customers
comparable to Atlanta or that he has three years experience with any of them. (WatchGuard
Proposal (Exhibit X), Vol. 1, p. 19.)
57.

The same is true of Leo Stoa, WatchGuards Technical Services Manager (though

it does say he installed a mobile video system in a Porsche 911 Turbo, two BMWs, and two
Chevy cars. (WatchGuard Proposal (Exhibit X), Vol. 1, p. 20), and Eddie Babiak, Technical
Services Engineer, who only began working at WatchGuard in 2013. (WatchGuard Proposal
(Exhibit X), Vol. 1, p. 21.) And WatchGuards project team references only identify two
customers that are close to Atlantas size, Pasadena and Palo Alto, and does not state how long
they have been customers. (WatchGuard Proposal (Exhibit X), Vol. 1, pp. 24-26.) Yet,
WatchGuard was awarded 250 points for experience, the maximum possible. See Exhibit O.
58.

The award of 0 points to Utility, especially in view of an award of 250 points

to WatchGuard, is arbitrary, capricious and an abuse of discretion.

59.

On December 16, 2015, after taking two extensions of time to respond, the City

CPO denied Utilitys Amended Protest. See Exhibit Y.

60.

On December 23, 2015, Utility filed another timely Notice of Appeal of the Citys

renewed denial of its November 23, 2015 Protest. See Exhibit Z.

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61.

On information and belief, the City has just recently indicated that it will proceed

with deployment of the WatchGuard cameras despite Utilitys protest. But, the City has yet to
deploy any such cameras.
62.

On information and belief, the City was aware of Utilitys protest and its

objections to the award of a contract to WatchGuard at all times after September 3, 2015,
including when the City executed any contract with WatchGuard.
63.

On December 23, 2015, Utility sent a letter to the City Attorney, stating that it had

recently learned through a news report of the Citys intent to proceed with the deployment of the
WatchGuard product, and stated its objection to such deployment, particularly in view of
Utilitys pending Protest. Utility specifically informed the City that if it proceeded with such
deployment, Utility intended to file an action because doing so would render its Protest futile.
See Exhibit Z1.
64.

On or about December 23, 2015, the City Attorney informed Utility that the City

would respond to Utilitys December 23 letter by the close of business on Monday, December
28, 2015.
65.

By letter dated December 24, Utility requested that in view of the unique

circumstances of this situation, the City respond to Utilitys December 23, 2015 letter by 1:00
pm on Monday, December 28.
66.

On December 28, 2015, the City responded to Utility, informing Utility that the

City has signed a contract with WatchGuard, and declined to stop the deployment, saying that
the City was going ahead with the contract.
67.

The City thus intends to move forward with the WatchGuard contract even though

Utilitys Protests are pending and have not been finally resolved.

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68.

The deployment of cameras in performance of the WatchGuard contract will moot

any administrative or legal challenge that Utility has to the award. Utility will suffer irreparable
harm and has no adequate remedy at law.
69.

The Citys conduct herein, both in terms of its Protest procedures generally and in

terms of Utilitys specific Protest has been in bad faith, has been stubbornly litigious, and has
caused unnecessary expense to be incurred by Utility.
Count I Interlocutory Injunction
70.

Utility realleges and reincorporates each of its allegations as set forth in

paragraphs 1 69 hereinabove.
71.

As the entity that properly should have been found the most responsive and

responsible proponent, Utility has a legally protectable right to protest the award to WatchGuard
and to a fair procedure for hearing its protest.
72.

In moving forward with the WatchGuard contract and the deployment of cameras

based on that contract, the City is failing and refusing to provide Utility with a hearing at a
meaningful time and in a meaningful manner as is constitutionally required. See Paratt v.
Taylor, 451 U.S. 527, 540 (1981).
73.

Utility believes in good faith that is has meritorious grounds to challenge the

award of the contract to WatchGuard and to the Citys protest and appeal process, and that
Utility is likely to succeed on such grounds.
74.

Utility has no adequate remedy at law. Utility will suffer irreparable harm in that

its grounds for challenging the award to WatchGuard are meritorious but will be mooted by the
Citys and WatchGuards performance of such contract.

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75.

The public interest weighs heavily in favor of an RFP and a protest process that

fairly and expediently address the various proposals submitted and the merits of any challenge
and allows for the correction of errors made in the Citys procurement process.
76.

The equities weigh in favor of giving Utility an opportunity to meaningfully

challenge the award to WatchGuard by means of a hearing at a meaningful time and in a

meaningful way.
77.

Accordingly, Utilitys interests are worthy and capable of being protected through

an interlocutory injunction to maintain the status quo, namely by prohibiting the City from
moving forward with the disputed contract with WatchGuard pending a final resolution of
Utilitys challenge thereto.
Count II Declaratory Judgment that City Protest Process is Unconstitutional
78.

Utility realleges and reincorporates each of its allegations as set forth in

paragraphs 1 77 hereinabove.
79.

In addition to the relief set forth in Count I, Utility alleges that the Citys protest

procedure, both facially and as applied in this circumstance, has deprived disappointed bidders of
the procedural due process protections guaranteed by Art. I, Sec. 1, Para. 1 of the Georgia
Constitution of 1983, in at least the following ways:
a. By denying protestors (including Utility) the right to compel documents and
witnesses to enable development of a record that binds protestors and the City
on certiorari to the Superior Court; and
b. By allowing and actually mooting protestors (including Utilitys) challenges
to procurement decisions by refusing to stay contract awards pending final
resolution of any such protests.

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c. By allowing the continued service of hearing officers beyond their legal terms.
80.

The Citys protest and appeal procedures, both facially and as applied in this

circumstance, deny protestors (including Utility) a hearing at a meaningful time and in a

meaningful way.
81.

In view of Utilitys pending protest of the RFP, the award to WatchGuard and the

Citys intent to proceed, an actual and justiciable controversy exists between the parties which
places Utility in a grave position of uncertainty as to it legal rights, making a declaratory
judgment appropriate under O.C.G.A. 9-4-1.
82.

For these and other reasons, Utility is entitled to a declaratory judgment that the

protest process employed by the City is a futile remedy that is not a condition precedent to
seeking judicial review because the Citys protest and appeal procedures deprive Utility of due
process, both facially and as applied.
Count III These Protests and Appeals Did Not Provide Due Process
83.

Utility realleges and reincorporates each of its allegations as set forth in

paragraphs 1 82 hereinabove.
84.

Utility alleges and avers that the Citys protest and appeal process, as particularly

applied to Utility, has failed and is failing to provide Utility with a meaningful hearing at a
meaningful time for at least the following reasons:
a. The Citys first basis for finding that Utility was not a responsible offeror to
the RFP was erroneous, arbitrary, capricious and an abuse of discretion;
b. The Citys second (amended) basis for finding that Utility was not a
responsible offeror to the RFP was erroneous, arbitrary, capricious and an
abuse of discretion;

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c. The City did not fairly credit Utilitys experience, resumes and cost quote;
d. The clerical error set forth in the Citys November 12, 2015 letter is
substantially and substantively unexplained;
e. The City evaluated the RFP by measuring items or performance that were not
set out in the RFP;
f. The Citys method of evaluating the financial component of offerors cost
proposal did not properly credit Utilitys offer relative to other offerors;
g. The Citys use or proposed use of Procurement Hearing Officers that are not
properly appointed is improper and fails to provide due process;
h. The Citys passage of an ordinance for the apparent purpose of retaining a
Procurement Hearing Officer that has evidently never ruled against the City is
improper and fails to provide due process;
i. Belatedly amending the basis for finding a party (Utility) not to be a
responsible offeror (as in the Citys November 12, 2015 letter), without basis
and/or further evaluation, is improper and fails to provide due process; and
j. Proceeding to execute on a contract by deploying goods and/or services (e.g.,
WatchGuard body cameras) while aware of a properly lodged protest or
appeal to such contract (as filed by Utility), is improper and fails to provide
due process.
85.

The City protest and appeal procedures as applied in this circumstance are so

flawed that this Court should determine the merits of Utilitys protests and appeals.

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Count IV: Equitable Relief

86.

Utility realleges and reincorporates each of its allegations as set forth in

paragraphs 1 85 hereinabove.
87.

This Court is empowered to grant injunctive and other such relief as it deems

appropriate to address violations of rights and injury to citizens, including the right to protest and
otherwise challenge the procurement process and the protest and appeal process of the City of
Atlanta.
88.

Unless enjoined by this Court, the City is likely to deploy body cameras and

related services in performance of a contract with WatchGuard, as described hereinabove.

89.

Such a deployment will result in irreparable harm to Utility and Utility has no

adequate remedy at law. On information and belief, deployment of body cameras under an
awarded contract to WatchGuard will deprive Utility of any remedy and moot its pending Protest
and Appeal. Under such circumstances, Utility is not receiving and cannot receive a meaningful
opportunity for a fair, timely and impartial hearing.
90.

The exercise of the Courts equitable jurisdiction and power is just and proper

here to protect Utilitys rights and interests, including its right and interest in a fair and impartial
hearing of its challenge to the contract award to WatchGuard, the RFP and the Citys protest and
appeals process.
Prayer for Relief
Wherefore, Plaintiff Utility respectfully requests the following relief:
1.

An interlocutory injunction precluding performance of any recommended or awarded

contract between the City and WatchGuard, and/or precluding the deployment of any

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body cameras and related video services, pending final resolution of Utilitys challenges
to the award of such contract;
2.

A declaratory judgment that the Citys protest and appeals procedures, generally and as
applied to Utility, are a futile remedy and not a prerequisite for relief;

3.

An order that the Citys protest and appeal procedures, facially and as applied, deny
Utility its rights to due process, such that the Court should determine Utilitys challenge
to the RFP, the protest and appeal process and award to WatchGuard;

4. Expedited discovery so that the parties will have an opportunity to promptly conduct
discovery and address the merits of Utilitys challenges;
5. An order that the determination that Utility was not a responsible proponent was
incorrect, arbitrary, and capricious;
6. An order that the existing contract award to WatchGuard is null and void and that a new
RFP process should be instituted; and
7.

Such other and further relief as the Court deems just or proper.

Date: December 29, 2015

Respectfully Submitted
/s/ Stephen M. Schaetzel
Stephen M. Schaetzel (GA Bar No. 628653)
sschaetzel@mcciplaw.com
John W. Harbin (GA Bar No. 324130)
jharbin@mcciplaw.com
Walter Hill Levie III (GA Bar No. 415569)
tlevie@mcciplaw.com
MEUNIER CARLIN & CURFMAN LLC
999 Peachtree Street, Suite 1300
Atlanta, Georgia 30309
T: 404-645-7724
F: 404-645-7707
ATTORNEYS FOR PLAINTIFF
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