If you respond to a Request for Quotes (RFQ) issued by a Commonwealth department or agency, can you protest if the resulting purchase order is awarded to another bidder?
According to the Commonwealth’s Office of Administration, the answer is no. In a recent protest, the OA issued a letter which took the remarkable position that “‘Award’ under an RFQ merely results in a Purchase Order under an existing multiple-award contract; therefore an RFQ is not the solicitation or award of a contract, and cannot be protested.”
Needless to say, this position is not supported by a fair reading of section 1711.1 of the Commonwealth Procurement Code which allows an aggrieved bidder or prospective bidder to protest the solicitation or award of a state contract. Certainly, a purchase order that is part of a multiple-award contract is nonetheless a contract; indeed, without issuance of a purchase order, the multiple-award contract is essentially meaningless. Likewise, an RFQ is a solicitation for a quote which may result in a contract – i.e., the purchase order.
When I received this letter from the OA, I was dumbstruck. I followed up with the Commonwealth attorney handling the protest whose response was even more startling: “The Commonwealth Procurement Code does not offer a remedy for selections made under existing multiple-award contracts. It is my understanding that this is the uniform Commonwealth position.”
Of course, there is no reported court decision which supports the Commonwealth’s “uniform” position, and the statutory language, which should be read liberally, certainly allows for a protest on an RFQ.
Nevertheless, if you are bidding in response to an RFQ, be forewarned – your protest may be denied without a decision, even if you are aggrieved by the process, and you may need to pursue relief in the Commonwealth Court to push back against the Commonwealth’s legally untenable position.
If you need assistance with a protest on a Commonwealth contract, including on an RFQ, call or email me. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
