Prospective bidders who wish to challenge the Commonwealth’s award of a bid must do so through the Prelitigation Resolution of Controversies procedure described at 62 Pa. C.S.A. Secs. 1701- 1726. This procedure requires that any prospective bidder’s protest:
The Pennsylvania Commonwealth Court has held that a protest filed prior to contract award and 1 year before the bids were to be solicited was correctly dismissed because the protestor’s claim was not yet ripe. In a recent decision (Philips Bros. Electrical Contractors Inc. v. Penna. Turnpike Commission, 960 A.2d 941, 946 (Pa. 2008)), the Court held that an electrical contractor’s December 2007 protest filed a year before an actual award of the contract was not yet ripe. The contractor argued that the Turnpike Commission intended to violate the Separations Act in December 2008 by issuing specifications and bid documents that did not require separate bids for plumbing, heating, ventilation and electrical work. The contractor claimed that the intended violation prevented it from bidding on the work in the future and determining its bonding requirements during the intervening year. The Court observed that there are two factors to be considered when determining whether a claim is ripe (i.e. whether they could make the claim): 1) whether the claim is sufficiently developed to permit judicial review, and; 2) the hardship caused by the delay in review. The Court concluded that, although the claim was sufficiently developed for review, the hardships claimed by the contractor (the inability to plan future work and bonding allocations) were hardships caused by the merits of the underlying claim and not the delay in review. Therefore, a bid protest filed 1 year before the bids were solicited was premature when the hardships were related to underlying claim, not the delay caused by the review. The Court did note that the protestor could file a new protest before the opening of the bids.
Since that ruling, the Commonwealth Court had found that a protest filed prior to contract award may be ripe in some circumstances. In another recent case (GTECH Corp. v. Commw. of Penna. Dept. of Revenue, 965 A.2d 1276 (Pa. Commw. 2009). Note this decision is being appealed), the Commonwealth Court held that, “.. to wait until the agency has finalized a contract to begin the bid protest means that the agency is less likely to conduct an open-minded review of the protest; its position will have become entrenched (GTECH Corp., 965 A.2d at 1287). The Court also observed that there were many irregularities in the request for proposal process used by the agency, including the disclosure of confidential pricing information, the determination that the successful bidder could begin performance prior to the contract award and the refusal to stop contract negotiations while the protest was pending. This conduct deprived the protesting contractor of its administrative remedy. The Court found that a bid protest filed prior to contract award is not premature if the agency’s actions will result in the protestor being deprived of any actual remedy after award.
These two rulings are not necessarily inconsistent. In the first instance, the Court found that a protest filed 1 year before the contract was to be awarded and in the absence of any allegations that the protestor would be deprived of its remedy at the time of contract award was premature. In the other case, the protest was filed after contractor selection and prior to an uncertain award date.
The lesson of these cases seems to be that a bidder who wishes to protest an agency’s determination about a bid prior to contract award, should review the particular facts and harm that he alleges prior to filing a protest. Our experienced attorneys can assist you in determining the most appropriate time for filing a bid protest.