In an unpublished opinion issued in November 2012, in a case brought by two disappointed bidders involving contracts awarded in 2002, the Commonwealth Court revisited some core principles of public bidding which are worth repeating.
The underlying facts concerned an Request for Proposals issued by Hazleton Area School District for school bus transportation contracts. The school district awarded the contracts, not to the lowest bidders, but to other bidders based upon the model year of the buses proposed for the contracts. The low bidders sued and challenged the award and also asserted a tortious interference claim against the competing bidders.
As a preliminary matter, the Court noted that the low bidders’ standing as taxpayers did not also give them a cause of action for breach of contract or tortious interference. Taxpayer standing does not translate into a claim for damages.
The Court first held that the bidders’ response to the school district’s RFP did not create a binding contract with the school district. The bidders argued that the circulation of the RFP constituted a unilateral contract offer which was accepted by the school district. The Court rejected this position and reiterated the long-standing rule in Pennsylvania that an invitation to bid or an RFP is merely an invitation for an offer and is not an offer itself. Rather, the bid is the offer which the public entity is free to accept or reject. Thus, the Court held that the issuance of the RFP did not bind the school district to award the bus contracts to the low bidders.
Second, the Court held that there was no interference by the other competing bidders with the low bidders’ “prospective” business relationship with the school district. The competing bidders were free to ask the school district to consider the age of the buses in making its decision to award the bus contracts. This sort of conduct was privileged and could not subject the other bidders to a tortious interference claim by the disappointed bidder.
The moral of the story? Bid protests are not easy to win, especially where the bid protests are based on unwarranted extensions of the law and where counsel argue points that have no support in public bidding law and muck up their clients’ claims with silly theories like tortious interference with contract.
The decision in Yurcho v. Hazleton Area School District can be found here.
Christopher I. McCabe, Esq.
