Recently I was asked, what rules govern competitive bidding? There are many different rules that govern public bidding in Pennsylvania, many of which can be found in the Commonwealth Procurement Code. Some govern the timing of bid awards and withdrawal of bids.
The primary “unwritten” rule of public bidding is the “level playing field” rule. This rule means that all bidders are treated the same, and are judged by a common standard that governs all bids that are received. A common standard implies universal specifications, freely accessible to all bidders, and not written in favor of a single bidder. The level playing field is violated where the public owner applies a different standard to the bids it receives, or awards a contract based upon unpublished or unadvertised standards, or otherwise deviates from the published bid instructions and bidding requirements.
In Ezy Parks v. Larson, 499 Pa. 615, 454 A.2d 928 (1982), a case that is often cited in public bidding cases, the Supreme Court re-affirmed the concept of a level playing field. In Ezy Parks, the Supreme Court enjoined an award by PennDOT of new leases for existing parking lots where the bid instructions were ambiguous and did not provide a common basis on which all of the bids could be judged. Further, the Supreme Court re-emphasized that the bidding instructions could not be clarified on an ad hoc basis by ex parte explanations from public officials to those potential bidders who are clever enough to seek such advice or simply have, for whatever reason, special access to the ears of the public officials.
If you need assistance on a public bidding issue, call or email me for a no-cost consultation. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
