Under the Pa. Procurement Code, a protest must be filed within seven days after the protestant knew or should have known of the facts giving rise to the protest. If the protest is untimely, it will be rejected. Recently, in a published opinion and in a departure from the usual rule, the Commonwealth Court decided that equitable principles would allow a late-filed protest to be considered.
The case concerned Pa. Department of Transportation (PennDOT) inspection contracts on which Bureau Veritas (BV), the protestant, had submitted a statement of interest. PennDOT ranked BV fifth in its statement of rankings. BV learned of the rankings on November 13, 2014. Seven days later, on November 20, 2014, BV filed a protest, but the email of its protest was rejected by PennDOT’s computer server due to improper formatting of the file attachment. On November 21, 2014, BV learned of the email rejection and promptly re-sent the email with the proper formatting of the file attachment, eight days after the publication of the rankings. PennDOT rejected BV’s protest as untimely and on the merits. BV then argued that it should be allowed to file its protest nunc pro tunc (literally, “now for then”). PennDOT issued a final determination rejecting the protest, as well as the request that the protest be considered nunc pro tunc. BV appealed to the Commonwealth Court.
On appeal, the Commonwealth Court agreed that BV’s protest was outside the seven-day deadline. The Court noted that the filing date is the date that the protest is received by the agency, not the date it was sent. (Later, the Court agreed that protests could be filed by email at any time before midnight of the filing deadline, in order to be deemed timely.) However, the Court noted that equitable considerations can permit a protest that is otherwise untimely:
The party seeking nunc pro tunc filing must show 1) that extraordinary circumstances, involving fraud or breakdown in the administrative process or non-negligent circumstances related to the party, its counsel or a third party, caused the untimeliness; 2) that it filed the document within a short time period after the deadline or date that it learned of the untimeliness; and 3) that the respondent will not suffer prejudice due to the delay.
The Court found that BV satisfied all three factors: the rejection of the timely sent email protest was extraordinary, non-negligent circumstances that delayed its filing; BV re-sent its protest one day after the deadline; and PennDOT suffered no prejudice from the one-day delay. The Court then remanded the case to PennDOT so that BV’s protest could be considered on the merits.
The takeaway from this decision? Always better late than never, especially if there is some equitable argument you can make to justify the lateness of the protest. Better yet, transmit the protest by both fax and email so that there is no issue regarding receipt. (The Court noted in its opinion that in another case an appeal left in a drop box was found to be untimely when it was not picked up by the agency until the next day.)
The Commonwealth Court’s decision can be found here.
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Christopher I. McCabe, Esq.
