This is the another in a series of posts on bid protests in Pennsylvania. This post covers the potential grounds for the bid protest.
Based on my experience, there are two primary potential bases for a bid protest. The first concerns a bid’s responsivesness or whether the bid is complete and responsive to the bidding instructions. The second concerns a bidder’s responsibililty or qualifications.
A challenge that a bid is non-responsive will likely be successful if the challenged bid (which has been accepted by the public entity) is materially defective in some way. Is it missing a required form? Are there prices missing? Did the bidder fail to sign its bid? If the protesting taxpayer can show that the winning bid is “defective” in some way, courts will be receptive to a challenge to the award. This type of protest is appealing as it raises the question of an unlevel playing field which is a bedrock principle of public contracting. On the other hand, if the public entity has rejected a bid because it is non-responsive, it is unlikely that a protest by the rejected bidder will be unsuccessful. A court will be extremely hesitant to overrule a finding that the bid is defective.
A challenge to a bidder’s responsibility is difficult to win. Normally, whether a bidder is qualified (responsible) to perform a contract is left to the sound discretion of the public officials. A court will normally err on the side of allowing the public entity to decide these questions on its own. On the other hand, if the public entity has excluded a bidder from the bid, either as part of a pre-qualification process, or an ad hoc basis, on grounds that the bidder is “unqualified,” the disqualified and excluded bidder will have a good chance of success if the bidder can show that it is as qualified as the other permitted bidders, or if the criteria under which the bidder is excluded are unpublished or unevenly applied. Excluding bidders from the bidding process is counter to the notion of competition. The more bidders there are, the better the price will be for the taxpayers.
Besides these two primary bases, a bid protest can raise other aspects of the bid process that were irregular or were not in conformance with the bidding instructions. Did the bid comply with minority contracting requirements? Did a bidder has some sort of advantage over other bidders?
As always, it is advisable to consult with experienced counsel before proceeding with a bid protest.
Christopher I. McCabe, Esq.
