  IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE


PROTECH SOLUTIONS, INC.,              )
                                      )
                 Petitioner,          )
                                      )
           v.                         )     C.A. No. 2017-0642-TMR
                                      )
THE DELAWARE DEPARTMENT               )
OF HEALTH AND HUMAN                   )
SERVICES, an agency of the State of   )
Delaware,                             )
                                      )
                 Respondent,          )
                                      )
           v.                         )
                                      )
CONDUENT STATE & LOCAL                )
SOLUTIONS, INC.,                      )
                                      )
           Nominal Respondent.        )

                       MEMORANDUM OPINION
                    Date Submitted: November 14, 2017
                    Date Decided: November 30, 2017

David A. Felice, BAILEY & GLASSER LLP, Wilmington, Delaware; Brian A.
Glasser, Victor S. Woods, and James L. Kauffman, BAILEY & GLASSER LLP,
Washington, District of Columbia; Attorneys for Petitioner.

Lawrence W. Lewis and John H. Taylor III, STATE OF DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware; Attorneys for Respondent
Delaware Department of Health and Social Services
Steven L. Caponi, K & L GATES LLP, Wilmington, Delaware; Steven G.
Schortgen and Jennifer Klein Ayers, K & L GATES LLP, Dallas, Texas;
Attorneys for Nominal Respondent Conduent State & Local Solutions, Inc.




MONTGOMERY-REEVES, Vice Chancellor.
      In March 2017, the State of Delaware Division of Child Support Services (the

“Division” or the “State”) issued a Request for Proposal (“RFP”) for maintenance

and operations (“M&O”) services for the Delaware Child Support System (the

“System”).1 Ultimately, three vendors submitted bids in response to the RFP. Two

of the vendors, Conduent State & Local Solutions, Inc. (“Conduent”) and Protech

Solutions, Inc. (“Protech”), were the current contractor and subcontractor,

respectively, for the System. Protech chose to rely on nonpublic data and stale

information when writing its bid, all of which was in direct conflict with the

information provided to the bidders by the Division. The Division ultimately

rejected Protech’s bid. Protech now comes to the Court asking to be saved from its

own miscalculation because the winning bidder allegedly received nonpublic

information—information that was consistent with the publicly available

information. Specifically, Protech seeks a preliminary injunction to prevent the

Division from awarding the contract to the winning bidder, Conduent, until the Court

can determine whether to permanently enjoin the contract and require a re-bid

process. I deny the Motion for Preliminary Injunction because Protech fails to show

a reasonable probability of success in proving the contract should be permanently

enjoined and rebid.



1
      Resp’t’s Ex. A Attach. B, at 4.


                                         1
    I.   BACKGROUND
         Conduent had a contract with the Division from May 1, 2010 to September

30, 2017 for the design, development, and implementation of the System (the “Prime

Contract”).2 Protech served as a subcontractor under the Prime Contract until the

final year.3 In late October or early November 2016, the Division began drafting the

RFP and issued it on March 1, 2017.4 The new contract was to begin in August

2017.5

         Both Conduent and Protech submitted bids in response to the RFP, as did a

third non-party, Computer Aid, Inc, (“CAI”).6 The Division selected Conduent’s

bid.7 On July 24, 2017, Protech submitted a written bid protest to the Division.8 On

August 4, 2017, Protech and the Division reached a standstill agreement such that

Protech would not file or pursue litigation, and the Division would not award a




2
         Resp’t’s Opening Br. 1-2.
3
         Id. at 2.
4
         Resp’t’s Ex. B 119: 17-20; Resp’t’s Ex. A 1.
5
         Id.
6
         Pet’r’s App. A735-828.
7
         Pet. 2.
8
         Resp’t’s Ex. J.


                                             2
contract while the parties continued discussions between their lawyers.9 On August

11, 2017, after consideration of Protech’s bid protest, the Division issued Protech a

written denial.10 On September 5, 2017, Protech filed its Verified Petition to

Protest/Enjoin a State Contract Award (the “Petition”). On November 14, 2017, the

Court heard oral arguments on the Motion for a Preliminary Injunction.

II.   ANALYSIS

      A.     Standard of Review
      “[A] motion for preliminary injunctive relief requires [this Court] to take a

step that, procedurally speaking, is extraordinary: to make a ‘preliminary’

determination of the merits of a cause before there can be a final adjudication of

[petitioner’s] claims.”11 “To obtain a preliminary injunction, the [petitioner] must

demonstrate: (1) a reasonable probability of success on the merits; (2) that they will

suffer irreparable injury without an injunction; and (3) that their harm without an

injunction outweighs the harm to the defendants that will result from the

injunction.”12   “A party showing a ‘reasonable probability’ of success must




9
      Resp’t’s Opening Br. 4.
10
      Id.
11
      In re the New Maurice J. Moyer Acad., Inc., 108 A.3d 294, 311 (Del. Ch. 2015).
12
      C & J Energy Servs., Inc. v. City of Miami Gen. Empls.’ & Sanitation Empls.’ Ret.
      Tr., 107 A.3d 1049, 1066 (Del. 2014).


                                          3
demonstrate that it ‘will prove that it is more likely than not entitled to relief.’”13

The preliminary injunction “burden is not a light one,” and such an “extraordinary

remedy. . . will never be granted unless earned.”14

      Here, in order to prevail, Protech must demonstrate that it is more likely than

not that the Division violated the express requirements of the procurement statute,

employed a process that was arbitrary or capricious, or acted in bad faith.15

             This Court will not normally or lightly decline to defer to
             a . . . decision made by [an agency]. Given the broad
             discretion conferred upon the agency . . . and the highly
             deferential nature of the applicable judicial review
             standard, only in extraordinary cases would this Court be
             justified in setting aside such a decision.16

“Simple disagreement with the agency’s evaluations or conclusions is . . . not enough

to support allegations of bias.”17 “Neither [are] [b]ald allegations of bias; inferences,

suspicion and innuendo; nor the possibility and appearance of impropriety, without




13
      Id. at 1067.
14
      Wayne Cty. Empls.’ Ret. Sys. v. Corti, 954 A.2d 319, 329 (Del. Ch. 2008).
15
      Doctors Pathology Servs. P.A. v. State Div. of Pub. Health, Dept. of Health & Soc.
      Servs., 2009 WL 4043299, at *4-5 (Del. Ch. Nov. 20, 2009).
16
      Id. at *5 (alterations in original) (quoting Harmony Constr., Inc. v. State Dept. of
      Transp., 668 A.2d 746, 752 (Del. Ch. 1995)).
17
      Id. at *8.


                                           4
‘hard facts’ implying actual misconduct, . . . sufficient to fulfill the clear and

convincing proof required to show bias on the part of the government.”18

      B.     Protech Has Not Demonstrated a Reasonable Probability of
             Success on the Merits
      Protech advances four main arguments related to alleged deficiencies or

biases in the procurement process, which it contends are sufficient to require a do-

over of the entire bidding process.      First, Protech asserts the RFP was not

“sufficiently definite to permit free, open, and competitive bidding on a common

basis.”19 Second, Protech contends the Division provided Conduent with inside

information about “personnel resources.”20 Third, Protech argues the Division

utilized a “deficient and otherwise arbitrary” process by not disclosing the use of a

technology scoring committee in the RFP.21 Fourth and finally, Protech avers that

Conduent’s proposal “failed to meet the material requirements of the RFP and should

have been summarily rejected.”22       Unfortunately for Protech, however, these

arguments are based on misunderstanding of Delaware procurement law,




18
      Id.
19
      Pet’r’s Opening Br. 31.
20
      Id.
21
      Id. at 31-32.
22
      Id. at 32.


                                         5
misconstruction of the facts, and rather ironic allegations of use of nonpublic

information.

               1.   Protech fails to show a reasonable probability that the
                    Division used unlawful procurement procedures
      Protech’s initial argument fails for two reasons. First, Protech’s arguments

about the statutory requirements of the RFP apply the standard for large public work

contracts rather than the correct standard for professional services contracts.

Second, even applying the correct standard, Protech has failed to demonstrate a

reasonable probability that the Division violated an express requirement of the

procurement statute.

      Procurement law in Delaware is largely statutory and found in Title 29,

Chapter 69 of the Delaware Code. Under the current statutory configuration,

Chapter 69 has six subchapters: general provisions, central contracting, materiel and

nonprofessional services, public works contracting, the energy performance

contracting act, and professional services.23 “‘Professional services’ means services

which generally require specialized education, training or knowledge and involve

intellectual skills. Examples of professional services include, but are not limited to,

. . . computer information management . . . .”24 The professional services subchapter



23
      29 Del. C. §§ 6901-6988.
24
      29 Del. C. § 6902(19).


                                          6
governs the contract at issue in this litigation.25 The contract at issue in this litigation

is a “large professional service procurement process” under Sections 6981 and

6982.26

       Protech relies on a standard from Delaware Technical and Community

College v. C & D Contractors, Inc., where the Supreme Court of Delaware examined

a prior version of the public works subchapter.27 “‘Public works contract’ means

construction, reconstruction, demolition, alteration and repair work and maintenance

work paid for, in whole or in part, with public funds.”28 Current Section 6962

governs large public works contract procedures. Subsection (d) is titled “Bid

specifications and plans requirements,” and states in part:

              Preparation of plans and specifications and approvals. --
              The contracting agency shall cause suitable plans and
              specifications to be prepared for all contracts pursuant to
              this section. All plans and specifications shall be prepared
              by registered and licensed architects and/or engineers who




25
       Resp’t’s Ex. A 1 (“This request for proposals (“RFP”) is issued pursuant to 29 Del.
       C. §§ 6981 and 6982.”).
26
       Id.
27
       Del. Tech. & Cmty. Coll. v. C & D Contractors, Inc., 338 A.2d 568, 569 (Del. 1975)
       (“It follows that ‘suitable’ plans and specifications, within the meaning of § 6905(b),
       are only those which are sufficiently complete, definite, and explicit as to permit
       free, open, and competitive bidding on a common basis.”).
28
       29 Del. C. § 6902(22).


                                              7
             shall sign the plans and specifications and affix their seals
             thereto.29

Case law has developed around this Section and its prior incarnations, specifically

about what suitable plans and specifications entail.30 Protech relies on this case law

for its argument that the RFP, issued pursuant to Sections 6981 and 6982 and not

Section 6962, was not “sufficiently complete, definite, and explicit as to permit free,

open, and competitive bidding on a common basis,”31 because it did not provide

bidders with exact staffing numbers and a budget expectation, which Protech alleges

were necessary for it to prepare its bid competitively.32 None of the case law Protech

relies on applies to professional services procurement or the current case.33




29
      29 Del. C. § 6962(d)(1) (emphasis added).
30
      See, e.g., Del. Tech. & Cmty. Coll., 338 A.2d 568; Harmony Const., Inc. v. State
      Dep’t of Transp., 668 A.2d 746 (Del. Ch. 1995); Wohlsen Constr. Co. v. Dep’t of
      Admin. Servs., 1998 WL 157365 (Del. Ch. Mar. 31, 1998).
31
      Pet’r’s Opening Br. 32.
32
      Id. at 22-24.
33
      Protech also cites a case from 1954 interpreting the requirements under then Title
      22, Chapter 5, which governed the establishment of municipal parking authorities.
      Wilm. Parking Auth. v. Ranken, 105 A.2d 614 (Del. 1954). This case also is not on
      point as to the statutory requirements of the RFP. Furthermore, Protech fails to
      show a reasonable probability that the Division failed “so far as possible” to put the
      bidders “on terms of perfect equality, so that they may bid on substantially the same
      proposition, and on the same terms.” Id. The Division provided all bidders with the
      same information, but Protech drew different conclusions based on their own
      nonpublic information. See infra Section II.B.2.a.


                                            8
      Instead, the requirements for a large professional service RFP are more

flexible and set out in Section 6981:

             (f) Each agency shall establish written administrative
             procedures for the evaluation of applicants. These
             administrative procedures shall be adopted and made
             available to the public by each agency before publicly
             announcing an occasion when professional services are
             required. One or more of the following criteria may be
             utilized in ranking the applicants under consideration:
                    (1) Experience and reputation;
                    (2) Expertise (for the particular project under
             consideration);
                    (3) Capacity to meet requirements (size, financial
             condition, etc.);
                    (4) Location (geographical);
                    (5) Demonstrated ability;
                    (6) Familiarity with public work and its
             requirements; or
                    (7) Distribution of work to individuals and firms or
             economic considerations.

             (g) In addition to the above, other criteria necessary for a
             quality, cost-effective project may be utilized.

             (h) Each project shall be given individual attention, and a
             weighted average may be applied to criteria according to
             its importance to each project.

             (i) For the selection process described in § 6982(b) of this
             title, price may be a criteria used to rank applicants under
             consideration.34




34
      29 Del. C. § 6981 (emphasis added).


                                            9
      This Court analyzed the standards for professional services RFPs in Doctors

Pathology Services P.A. v. State Division of Public Health, Department of Social

Services.35 There, this Court considered a request for injunctive and declaratory

relief when “a frustrated provider of laboratory services, assert[ed] that the agency

failed to comply with the statutes governing its procurement of professional

services.”36 “Agency procurement procedures are deemed ‘lawful unless they

deviate materially from the relevant statute.’” 37 Section 6981 establishes only two

requirements for the professional services procurement process: there must be (1) a

public announcement including several enumerated items of information, and (2)

“written administrative procedures for the evaluation of applicants.”38 This Court

has recognized that the remainder of “the professional services negotiation

subchapter establishes only general guidelines for the procurement process: agencies

are granted great discretion to shape the process to meet their needs.”39




35
      2009 WL 4043299 (Del. Ch. Nov. 20, 2009).
36
      Id. at *1.
37
      Id. at *4 (quoting Danvir Corp. v. City of Wilm., 2008 WL 4560903, at *5 (Del. Ch.
      Oct. 6, 2008)).
38
      29 Del. C. § 6981; see also Doctors Pathology, 2009 WL 4043299 at *4.
39
      Doctors Pathology, 2009 WL 4043299 at *4.


                                          10
      Thus, to show a material deviation from Section 6981 sufficient to obtain a

preliminary injunction, Protech must show a reasonable probability of success on

claims that the Division failed to make the necessary public announcement or had

no written procedures for the evaluation of applicants. At oral argument, Protech

withdrew its argument that the Division did not make the necessary public

announcement,40 and Protech has not alleged that there were no written procedures

for the evaluation of applicants. Therefore, the Division’s procedures did not deviate

materially from Section 6981.

             2.     Protech fails to show a reasonable probability that the
                    Division’s process was arbitrary, capricious, or in bad faith

      Protech’s remaining three arguments relate to whether the Division’s decision

process was arbitrary, capricious, or in bad faith.

                    a.    Protech fails to show a reasonable probability that
                          Conduent’s alleged “inside information” was
                          inconsistent with information provided to all bidders

      Ultimately, Protech objects to three forms of alleged inside information that

Conduent received: the September 9, 2016 email from Midge Holland41 to John




40
      Oral Arg. Tr. 28.
41
      Midge Holland was the Chief of Administration of the Division until March 2016.
      Pet. ¶ 34. After March 2016, Holland became the Director of Information Resources
      Management (“IRM”). IRM is responsible for the Delaware Department of Health
      and Social Services’ information technology, including the System. Id. ¶ 35.


                                          11
Polk42 and Maggie Claypool,43 the June and July 2016 meetings about staffing under

the Prime Contract, and the “dreaming sessions” Conduent conducted under the

Prime Contract.

      Conduent had a contractual relationship with, and contractual obligations to,

the Division until September 30, 2017. The June and July 2016 meetings were to

discuss the operations of the Division and Conduent’s staff, and available office

space, through the final year of the prime contract—October 2016 to September

2017.44 The allegedly “secret meetings” on June 16 and July 25 were about business

under the Prime Contract. Protech’s objection to these meetings suggests that either

Conduent should have stopped communicating with the Division about anything

three months before the new RFP was even conceived of, regardless of any ongoing

contractual obligations Conduent had under the Prime Contract, or that the Division

had a duty to disclose any and all information about current operations in the RFP.

Neither of these outcomes is tenable.

      Conduent conducted the “dreaming session” Protech objects to in January

2017, and it was a service provided to many customers in many jurisdictions, not



42
      John Polk is Senior Vice President and Managing Director of Child Support
      Services for Conduent. Id. ¶ 29.
43
      Maggie Claypool is Conduent’s Project Manager for the System. Id. ¶ 26.
44
      Resp’t’s Ex. B 33-37.


                                         12
some elaborate scheme to illicit nonpublic information as Protech suggests.45

Moreover, by the time Conduent submitted its bid, it had already “provided a set of

a dozen or more recommendations that will have positive program impact” from the

“dreaming session.”46 The dreaming sessions were about providing a service under

the Prime Contract. For the Court to penalize Conduent in this bidding process for

providing services under a prior contract would result in an absurd rule.

Furthermore, as a matter of public policy, the Court would be unwise to

disincentivize state contractors from striving to improve their performance under

their contracts by precluding them from, or crippling them in, forthcoming bids for

other contracts.

      The September 9, 2016 email exchange is more relevant to the current

litigation. On September 9, 2016 at 4:18 pm, John Polk, Managing Director at

Conduent, wrote to Midge Holland and Maggie Claypool:

             Midge, I think he’s playing this.
             We’ve had many conversations about this and the quality
             of their work has never been part of the discussion.
             Simply stated, we told him we wanted to be able to bid on
             the work in Oct. 2017 and we would not be able to if we
             didn't have some experience in the technical aspects of the
             work.




45
      Pet’r’s App. A745.
46
      Id.


                                         13
            And, we have not closed the door on teaming with them
            on the rebid but did tell them based on our understanding
            the contract would be about half what it is today.
            We’ll make it work Midge.
            Nagaraj is just running the plays in his playbook.47

Midge Holland replied at 4:30 pm the same day:

            Not sure where half came from - I have not heard that from
            IRM although I know that child support is really interested
            in cutting costs. [W]hile a 50% reduction would great for
            the business’s expenses, from the technical side I have not
            see[n] anything that indicates that the state would be able
            to competently pick up that much of the work. That being
            said, I would ask that if they will agree to team for the bid,
            in writing of course, we consider the impact on the current
            team with that in mind.48

The Division’s corporate representative Midge Holland has admitted she presumed

John Polk was referencing the upcoming bid for the 2017-2018 contract in his

email.49 Ultimately, however, this conversation does not show that Protech has a

reasonable probability of success in showing bad faith or an arbitrary or capricious

process because Ms. Holland only conveyed information that was consistent with

publicly available information during the bid process.

      The publicly available information is as follows. First, Amendment Six of the

Prime Contract, the 2016 amendment which is a public document, clearly identifies


47
      Id. at A532-33.
48
      Id. at A532.
49
      Resp’t’s Ex. B 78: 20-23.


                                         14
47,040 as the total number of hours Conduent was contractually obligated to provide

in 2016-2017.50 Second, at the mandatory pre-bid meeting a non-party asked, “[c]an

you provide the current team size/expected staffload throughout the engagement?”51

The Division replied that the “[c]urrent team size is 22, excluding batch operations,

technical and non-technical. We are looking for efficiencies.”52 Third, in the written

public response to pre-bid questions the Division confirms “[t]here are 23 full-time

positions and 1 part-time position vendor staff supporting the M&O section of the

current contract.”53

      Instead of relying on this publicly available information, Protech accessed a

nonpublic database to make its own projections of staffing needs in the future based

on trends in tickets.54 Protech combined its nonpublic information with the vague

statement that the Division was “looking for efficiencies” and statements of hope

about the Division taking over more of the M&O work from contracts that were



50
      Resp’t’s Ex. D.
51
      Resp’t’s Ex. W.
52
      Id.
53
      Resp’t’s Ex. N.
54
      Resp’t’s Ex. M 61-62. The doctrine of unclean hands may bar Protech’s claims
      should this litigation advance. Nakahara v. NS 1991 American Tr., 718 A.2d 518
      (Del. Ch. 1998). Under the doctrine of unclean hands, this “Court refuses to
      consider requests for equitable relief in circumstances where the litigant’s own acts
      offend the very sense of equity to which he appeals.” Id. at 522.


                                           15
years old.55 Protech then came up with a staffing suggestion significantly lower than

the current staffing needs, from which the Division gave no indication it was

considering deviating, and lower than both other bidders. Protech gambled based

on its inside information and now asks the Court to grant a re-do based on a

convoluted and manufactured suggestion that Conduent had inside information that

gave it an unfair advantage. Thus, Protech fails to show a reasonable probability of

success on the merits of this argument.

                   b.     Protech fails to show a reasonable probability that it
                          was prejudiced by the Division’s failure to uphold its
                          implied obligation to adhere to the terms of the RFP
      The Division had an implied obligation to the bidders to adhere to the terms

of the RFP.56    The bidders’ alleged reliance on the RFP, however, must be

reasonable, and the bidder must show it was misled and prejudiced by the supposed

non-adherence by the State.57 Protech argues the Division failed to adhere to its own

RFP. Protech’s two main objections are that (1) the technology scoring committee

was not disclosed in the RFP and (2) the Department of Health and Social Services’

Division of Management Services, Office of Contracts Management and



55
      Resp’t’s Ex. W; Pet’r’s App. A543.
56
      See Autotote Lottery Corp. v. Del. State Lottery, 1994 WL 163633, at *8 (Del. Ch.
      Apr. 22, 1994).
57
      Id.


                                           16
Procurement approved the RFP instead of the Delaware State Procurement Office.

Protech has not shown a reasonable probability of success on the merits of either of

these arguments.

      First, the RFP disclosed that the business and technology portions of the bid

would be considered separately by a two-tier scoring system. Protech was not

“misled” because the Division did not explicitly explain that slightly different group

of people would score the two tiers.58 Second, Protech has not alleged any prejudice

from either of these supposed procedural deficiencies and, therefore, fails to show a

reasonable probability that the Division acted in bad faith or employed an arbitrary

or capricious process.

                   c.     Protech fails to show a reasonable probability that
                          Conduent’s proposal was materially deficient
      Finally, Protech argues Conduent’s bid was materially deficient in that it

failed to adhere to the two percent inflation rate cap between the first and second

years or to include a separate line item for the Affordable Care Act (“ACA”) safe

harbor fee. Both of these arguments are without merit.

      On its face, Conduent’s proposal appears to violate the two percent inflation

rate cap.   The first-year quote is $3,750,000 and the second-year quote is




58
      Resp’t’s Ex. A Attach. B, at 30.


                                         17
$4,314,600.59 Assuming each yearly quote is for 47,000 hours, the first year comes

out to $79 per hour, and the second year is $91.80 per hour. This reflects an increase

of greater than two percent per year. This is a miscalculation, however, since

Conduent explains in its “Assumptions” section of the Project Cost Information that

the Operational costs are based on 41,667 hours in year one and 47,000 hours in the

following years.60 This decrease in hours prevents Conduent from double billing the

Division for the roughly two months of overlap between the Prime Contract and new

2017-2018 contract overlap.61 The two-month overlap was a built-in “transition

period” in case the Division selected a new vendor.62 If the Division selected

Conduent for the new contract, then the Division would owe Conduent

compensation under both the Prime Contract and the new contract. The decrease in

hours and price for the first year essentially was a discount offered by the incumbent

bidder so as to not double-bill the Division for the same services. Taking into

account this assumption of lower hours, the hourly rate for year one is actually

$89.97 per hour. The increase to $91.80 per hour in year two is two percent and,

thus, in line with the two percent cap.


59
      Pet’r’s App. A749.
60
      Resp’t’s Ex. H A-3.
61
      Oral Arg. Tr. 88-89.
62
      Id.


                                          18
      Protech argues that Conduent unfairly provided this discount that no other

bidder could provide.      In order for the Division’s process to be arbitrary or

capricious, however, the Division must do something to treat the bidders differently.

That is not the case here. Instead, Conduent was in a position, through no fault of

the Division, to offer a discounted rate of services in the first year. As with the

services provided under the Prime Contract, it would be unwise for the Court to state

a rule that would incentivize current state contractors to double-bill the State for the

same work. Likewise, the Division is not acting in bad faith by preventing double-

billing for the same work.

      Protech also alleges that the RFP required Conduent to include a separate line

item denoting the additional fee required by the State in case the State is deemed a

Common-Law Employer under the Affordable Care Act (the “Additional Fee”). The

RFP says, “[t]he State requires that all Vendors shall identify the Additional Fee to

obtain health coverage from the Vendor and delineate the Additional Fee from all

other charges and fees.”63 Appendix E to Attachment B of the RFP, however, says

“Operational Costs may be categorized separately . . . or bidder may choose to bid a

single all-inclusive total operational cost per year.”64 Moreover, the schedule




63
      Resp’t’s Ex. A 16.
64
      Resp’t’s Ex. A Attach. B, at 53.


                                          19
supplied in Exhibit E to be used by the bidders does not include a separate line item

for the Additional Fee,65 and the scoring criteria supplied in the RFP has a single

item that says “Cost (including ACA Safe Harbor Additional Fees).”66                  It is

reasonable to submit a total operation cost for the year on the Schedule supplied in

Appendix E that does not have a separate line item for the Additional Fee as long as

it is for the total operation cost. In fact, the other bidder in this process, CAI, also

opted to submit a single, all-inclusive total operational cost without a separate line

item for the ACA fee.67 Finally, Protech admits that failure to separate the ACA fee

is not material enough alone to warrant setting aside the entire bidding process.68

      For all these reasons, Protech has not met its burden of showing a reasonable

probability of success on the merits. Because Protech fails “to demonstrate a

reasonable probability of success on the merits of any of the claims . . . [Protech has]




65
      Id.
66
      Resp’t’s Ex. A 12.
67
      Pet’r’s App. A818.
68
      Even if the allegations are true, the RFP gives the Division “the right to waive minor
      irregularities and minor instances of non-compliance,” Resp’t’s Ex. A Attach. B, at
      30, and thus, Protech has not shown a reasonable probability of success on the merits
      by this argument either.


                                            20
not satisfied the standard to earn a preliminary injunction. I thus need not address

the elements of irreparable injury or the balance of the equities.”69

III.   CONCLUSION

       For the foregoing reasons, the Motion for a Preliminary Injunction is denied.

       IT IS SO ORDERED.




69
       In re New Maurice J. Moyer Acad., Inc., 108 A.3d 294, 325-26 (Del. Ch. 2015).


                                          21
