Commonwealth Court Rules on Bid Protest

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Recently, the Commonwealth Court issued an opinion affirming the Pennsylvania Department of General Services’ (DGS) denial of a procurement award protest.  DGS issued a request for proposal (RFP) that may have been in violation of the sole source procurement requirements of the Pennsylvania Procurement Code, but the prospective contractor waived its right to protest the award by sending a letter to DGS.  The letter was considered a protest and was denied without merit.  The prospective contractor hired legal counsel, but the appeal period had lapsed and the second appeal prepared by the attorney was denied for being untimely and because under the Procurement Code, a protest must state all the grounds upon which a protest was based.  The letter sent by the prospective contractor failed to allege the sole source procurement violation.  The entire court decision is available at http://www.aopc.org/OpPosting/Cwealth/out/328MD10_1-5-11.pdf.

This case highlights the importance of:

  • Not sending correspondence to the purchasing agency prior to the filing of the protest.
  • Filing the protest within 7 days of learning of the facts giving rise to the protest or of the contract award date, whichever comes first.
  • Stating in the protest all possible grounds upon which the award of the contract was improper.
  • Filing an appeal within 15 days of the date of mailing of the determination.
  • Consulting with legal counsel immediately after learning of facts giving rise to the protest to assist you in filing the protest.

Wayne S. Martin, who is part of Reager & Adler’s Litigation Group, contributed to this post.  He may be reached by calling (717) 763-1383 or via email at WMartin@ReagerAdlerPC.com.

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