A recent decision concerning a bid protest filed on a PennDOT contract re-affirmed core principles of public bidding and bid protests on Commonwealth contracts.
In Sidelines Tree Service, LLC v. Department of Transportation, the Commonwealth Court considered an appeal from a denial of a bid protest filed on a contract for line-clearance tree-trimming services. The hearing officer determined that the disappointed bidder was non-responsible due to its poor performance on prior PennDOT contracts, and denied the protest. On appeal, the Commonwealth Court affirmed.
In support of the determination that the bidder was non-responsible, the Commonwealth Court held that:
A purchasing agency’s firsthand knowledge of a protestant’s poor performance on a prior contract may serve as evidence that the protestant is not the lowest responsible bidder.
The Commonwealth Court also rejected the bidder’s argument that the contracting officer should have conducted a hearing on the protest. On this point the Court noted:
Under Section 1711.1(e) of the Procurement Code, the head of the purchasing agency or his designee has “sole discretion” to decide whether a hearing is necessary on a bid protest. … That decision [not to hold a hearing] will not be reversed in the absence of bad faith, fraud, capricious action or abuse of power. … Where the record contains sufficient unchallenged facts to support the determination, no hearing is required.
The takeaways from this decision? First, responsibility is vested in the sound discretion of government officials, and courts are unlikely to overturn decisions concerning bidder responsibility and qualifications. Second, a hearing on a bid protest is not guaranteed. Absent a great set of facts and egregious conduct by the government, e.g., an unlevel playing field, different rules, or grossly inconsistent evaluations of bidders, most bid protests will fail.
If you need assistance with a bid protest or a public contracting issue, feel free to call or email me. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
