List Of Exempt Steel Products Issued For 2022

On February 19, 2022, the Pennsylvania Department of General Services (DGS) issued the list of machinery and equipment steel products which are exempt for calendar year 2022 under the PA Steel Products Procurement Act. The list was published in Read more

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 Read more

PA Supreme Court Clarifies The Meaning Of "Cost" Under the PA Steel Products Procurement Act

The PA Steel Products Procurement Act was first enacted in 1978. At its core, the Act provides that any steel products used or supplied on a public works project in Pennsylvania must be U.S. steel products. Under the Act, a product Read more

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 Read more

List Of Exempt Steel Products Issued For 2020

On June 27, 2020, the Pennsylvania Department of General Services (DGS) issued the list of machinery and equipment steel products which are exempt for calendar year 2020 under the PA Steel Products Procurement Act.  The list was published in Read more

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Bid Responsiveness

Public Bidding 101: Responsiveness

This post is one in a continuing series on the basics of public bidding in Pennsylvania.  The topic of this post is “responsiveness.”

The term “responsiveness” refers to whether a bid is compliant with the requirements specified in the invitation to bid.  For a public bid to be accepted, it must be “responsive” to the bidding instructions, meaning that it must satisfy the mandatory terms, conditions, and instructions contained in the bid invitation.  If a bid fails to adhere to the mandatory bidding requirements, the bid is considered “non-responsive.”

Mandatory compliance with bidding instructions guarantees that contract awards will be made fairly and economically.   First, with clear-cut ground rules for vendor competition, none of the bidders will obtain an unfair advantage from a special knowledge of the bidding requirements.  Second, the principle of strict adherence to the bid instructions reduces the possibility of fraud or favoritism in favor of one bidder over another.

Examples of non-responsive bids are those that are missing critical pricing information, or an authorized signature of the bidder.  A non-responsive bid may be missing a bid bond, may contain a counter-offer that deviates from the specifications of the bid, or may be missing a required form, such as a signed addendum.  A determination that a bid is non-responsive is typically final and is normally not subject to any review or administrative appeal by the rejected bidder.  The concept of bid responsiveness was noted and explained in Nielson v. Womer, 46 Pa. Cmwlth. 283, 406 A.2d 1169, 1171 (1979).

Whether a bid which is non-responsive can nonetheless be accepted by waiving the bid defect was addressed in my earlier post on the “Hall of Fame” decision in Gaeta v. Ridley School District.

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Posted on May 2, 2012 by Christopher I. McCabe, Esq. in Bid Responsiveness, Public Bidding 101 Comments Off on Public Bidding 101: Responsiveness

Public Bidding 101: A Level Playing Field

This post is the first in what will be a continuing series of posts on the basic tenets of public bidding and contracting in Pennsylvania.

A cornerstone of public bidding is the concept of a “level playing field” which binds all of the bidders to a common standard which governs all bids that are received.  A common standard implies previously prepared specifications, freely accessible to all competitors, and not written in favor of one particular bidder.  The level playing field is violated whenever the public entity applies a different standard to the bids received, or awards a contract based upon unpublished or unadvertised standards, or otherwise deviates from the published bid instructions and requirements.

In Ezy Parks v. Larson, 499 Pa. 615,  454 A.2d 928 (1982), a case which is often cited, 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 either clever enough to seek such advice or who simply, for whatever reason, have special access to the ears of the public officials.

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Posted on April 24, 2012 by Christopher I. McCabe, Esq. in Public Bidding 101 Comments Off on Public Bidding 101: A Level Playing Field
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