Bidding instructions are for the most part mandatory. The failure to follow bid instructions can easily result in the rejection of a bid. That is exactly what happened to one unfortunate bidder who submitted its bid by email instead of through the online portal specified by the bid instructions.
In January 2017, the PA Department of Environment Protection (DEP) advertised a bid solicitation on the PA eMarketplace website for a contract to provide services in support of the development of a climate change action plan. The bid advertisement specified, in bold print, that potential contractors were required to complete their bids via an online portal and further stated, also in bold print, that bid responses “will only be accepted electronically.”
Center for Climate Strategies, Inc. (CCS) was unable to submit its bid via the specified online portal. Instead, CCS emailed its bid to three DEP employees as a “failsafe” measure prior to the bid deadline. Because CCS’s bid was not submitted via the online portal, DEP rejected the bid as “non-responsive.” CCS protested the rejection on grounds that its bid submission was timely and complete in all respects and that the online portal was unavailable to CCS through no fault of its own. The protest was denied, and CCS then appealed to the Commonwealth Court.
On appeal, the Commonwealth Court upheld the bid rejection, holding that:
The use of the definite and unambiguous language “only” and “must” made the PA Supplier Portal use submission requirement mandatory and thus nonwaivable. The Solicitation’s mandate was clear and easily understood: to be considered for the contract, prospective contractors needed to timely submit their bids via the PA Supplier Portal. CCS’s failure to comply with this unambiguous mandatory requirement rendered its bid non-responsive, regardless of the timely submission of its bid through a different electronic submission method.
The lesson here is that bid instructions should be carefully considered and strictly followed. Bidders who fail to adhere to this rule do so at their peril. On the other hand, I am extremely sympathetic to CCS’s plight, as it appears that CCS’s bid was both complete and timely. Had DEP waived the “informality” of how CCS’s bid was submitted (is there is a substantive difference between email and an online portal?), and if DEP had then awarded the contract to CCS, I wonder if the Commonwealth Court would have upheld a counter protest challenging the award to CCS.
If you need assistance with a public contracting issue, feel free to call or email me. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
