Recent Commonwealth Court Decision Affirms Core Bidding Principles

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. Read more

Posted on February 3, 2022 by Christopher I. McCabe, Esq. in Bid Protests, Bidder Responsibility, Com. of Pa., Court Decisions, PennDOT, Public Bidding 101, Responsibility Comments Off

Can A Public Owner Recover Legal Fees From A Bidder Who Loses A Challenge To A Bid Rejection?

Can a public entity include in its bid instructions the right to recover its legal fees from a bidder if the bidder’s bid protest lawsuit is unsuccessful? In the course of providing advice recently to a client, I came across the following clause in a bidder’s qualification statement:

By submission of any Bid, the bidder agrees that in the event its bid is rejected by the Owner for any reason and such rejection is contested by the bidder through the commencement of legal proceeding, whether in law or equity, the Owner shall be entitled to an award of reasonable attorneys’ fees and costs if the Owner’s rejection of the bid is upheld, affirmed, or otherwise not set aside.

Is this clause even enforceable? In my opinion, such a clause is patently unenforceable as against public policy. It is also a brazen attempt by a public entity to prevent a good faith bid challenge and keep its public bidding process out of the public eye. Read more

Posted on January 11, 2022 by Christopher I. McCabe, Esq. in Bid Protests, Bid Specifications, Bidder Responsibility Comments Off

Commonwealth Court Strikes Down Use Of Project Labor Agreements Except In Extraordinary Circumstances

A project labor agreement (PLA) is a “pre-hire” collective bargaining agreement with one or more labor unions that establishes the working conditions on a specific, usually public, construction project. PLAs are controversial, not least because they typically restrict nonunion contractors from using their own workforce and require them instead to hire their workforce from the local unions’ labor pool, but their previous use on public projects in Pennsylvania has been upheld. However, in a recent case brought by two nonunion contractors, the Commonwealth Court has now invalidated the use of a PLA on a public highway project as a violation of Pennsylvania’s strict competitive bidding requirements for public contracts.

In December 2017, the Pennsylvania Department of Transportation (PennDOT) issued a bid for a highway improvement project for US Route 202 in Norristown. The bid required the winning contractor to sign a PLA with the Building and Construction Council of Philadelphia and Vicinity, which represented 11 local unions. The PLA required the winning contractor to hire their workforce through the local unions and to be bound by the local unions’ collective bargaining agreements. However, the PLA also specified that, if the winning contractor had a collective bargaining agreement with the United Steelworkers union, which was not one of the 11 local unions, then the contractor was permitted to use its own workforce.

Allan Myers, L.P. (Myers) and J.D. Eckman, Inc. (Eckman), two nonunion contractors, filed protests with PennDOT, challenging the use of the PLA. Myers and Eckman argued that the PLA was unlawful, arbitrary and discriminatory, as it disfavored nonunion contractors and unduly favored contractors affiliated with United Steelworkers. PennDOT disagreed, arguing that case law supported the use of a PLA on a public works project. The protests were denied, and Myers and Eckman then appealed to the Commonwealth Court. Read more

Posted on January 17, 2019 by Christopher I. McCabe, Esq. in Bid Protests, Com. of Pa., Court Decisions, PennDOT, Procurement Code, Project Labor Agreements Comments Off

Bid Submitted By Email Was Properly Rejected

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. Read more

Posted on January 10, 2019 by Christopher I. McCabe, Esq. in Bid Protests, Bid Responsiveness, Court Decisions Comments Off

Bid Protests Upheld Due To Unauthorized Meeting With Bidder

In three recent, unreported decisions arising out of the same procurement, the Commonwealth Court has held that a meeting between the public entity and a bidder, after bids had been received in response to an RFP, but before the bidder was determined to be responsible and before its proposal was deemed to be responsive or the most advantageous, was unauthorized and improper.

In July 2016, the Pa. Department of Human Services (DHS) issued an RFP seeking proposals from managed care organizations to provide health care services in five different “zones” to medical assistance beneficiaries. In November 2016, after bids were received, the DHS issued a selection memo which was subsequently rescinded due to a scoring error. In December 2016, after rescission of the November selection memo but before a new selection of bidders was made, DHS and its counsel met with representatives of a bidder, Pennsylvania Health & Wellness, Inc. (PHW), to discuss PHW’s “operational readiness to operate as an MCO on a statewide basis.” Read more

Posted on June 7, 2018 by Christopher I. McCabe, Esq. in Bid Protests, Procurement Code Comments Off

Can A Public Owner Ever Seek Clarification Of Ambiguous Pricing?

Recently, a public owner solicited bids for a university construction project. The bid form sought pricing for base bid work and alternate work. One of the bidders included ambiguous pricing for an alternate item, in that the pricing was neither an “add” nor a “deduct” to the base bid price. Instead, it appeared to be a “total” price for all of the work combined. This “total” price, if accepted, would have been the lowest if award was made on the basis of the alternate. The problem with this bid pricing was soon apparent. The bid instructions had informed bidders that alternate pricing was to be added to the base bid pricing to arrive at a total bid price for use in determining the ranking of the bids. The owner was understandably confused by the pricing which did not conform to the bidding instructions.

Under these circumstances, the owner did not reject the bid as ambiguous, but instead actually called the bidder to seek clarification of the pricing. Having received a “clarification,” the owner then expressed an intent to award a contract to the bidder. A protest was soon filed by another bidder, and the protest was later sustained for obvious reasons. Read more

Posted on January 18, 2018 by Christopher I. McCabe, Esq. in Bid Protests Comments Off

Debriefing After Non-Selection Does Not Toll 7-Day Deadline For Bid Protest

The Pa. Procurement Code sets a strict deadline for bid protests – the 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. The impact of this brightline rule was shown in a recent Commonwealth Court decision involving a late-filed protest.

In 2016, the Pa. Department of Human Services issued an RFP seeking proposals from managed care organizations to implement a managed care program for physical health and long-term services for the elderly and disabled. After evaluation of proposals, the Department notified one of the bidders, UnitedHealthcare of Pennsylvania, Inc., that it was not selected. Thereafter, the Department conducted a debriefing with UnitedHealthcare where it provided information concerning the strengths and weaknesses of UnitedHealthcare’s proposal. Unhappy with the outcome, UnitedHealthcare filed a protest, more than seven days after it was notified that it was not selected, but within seven days of the debriefing. The Department denied the protest as untimely, and UnitedHealthcare filed an appeal with the Commonwealth Court. Read more

Posted on December 12, 2017 by Christopher I. McCabe, Esq. in Bid Protests, Com. of Pa., Court Decisions, Procurement Code Comments Off

Disappointed Bidder Lacks Standing To Challenge P3 Contract Award By Non-Commonwealth Entity

In a recent case of first impression, the Commonwealth Court of Pennsylvania has affirmed a lower court ruling that a disappointed bidder lacked standing to challenge a contract awarded by a non-Commonwealth entity under the Public-Private Transportation Partnership Act (P3 Act).

In April 2016, the Northampton County General Purpose Authority issued a Request for Proposals under the P3 Act for the Northampton County Bridge Renewal Program for the replacement, rehabilitation, and maintenance of 33 bridges in Northampton County. Four bidders responded, including Clearwater Construction, Inc./Northampton County Bridge Partners LLC and Kriger Construction, Inc. Ultimately, the Authority selected Kriger to negotiate a public-private partnership agreement to develop the bridge renewal program. Read more

Posted on September 28, 2017 by Christopher I. McCabe, Esq. in Bid Protests, Court Decisions, Public Private Partnership Comments Off

Are RFQs Immune From Protest Under The Procurement Code?

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.

Posted on September 7, 2017 by Christopher I. McCabe, Esq. in Bid Protests, Com. of Pa., Procurement Code Comments Off

Was Bid Non-Conforming Where Use Of PennBid Was Mandatory?

If a public owner mandates that all bidders use PennBid, an electronic bidding system used by public owners in Pennsylvania, for receipt and tabulation of their bid prices, but also inexplicably requires each bidder to write out its base bid price in words and numbers, what bid form controls? The PennBid tabulation, or the handwritten bid form?

Suppose the PennBid tabulated base bid price is $100,000, but the bidder writes out $100,001? Which is the controlling bid price? Why, for that matter, would any public owner require two forms of bid pricing which only invites confusion and the possibility of conflicting prices?