Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, e.g., our posts on bid protests in North Carolina, Georgia, the District of Columbia, Virginia, and Alabama). For the next state in this series, we focus on the bid protest procedures in Pennsylvania.

What Rules Apply?

• The Department of General Services (DGS) is responsible for contracting for equipment and supplies for the Commonwealth of Pennsylvania.
• Purchasing is governed by the Commonwealth Procurement Code, which is codified at 62 Pa. C.S., Part I.
• Bid protest procedures are governed by 62 Pa. C.S. § 1711.1.

Who May Protest and When?

• “A bidder or offeror, a prospective bidder or offeror or a prospective contractor that is aggrieved in connection with the solicitation or award of a contract, except as provided in section 521 (relating to cancellation of invitations for bids or requests for proposals), may protest to the head of the purchasing agency in writing.” (62 Pa. C.S. § 1711.1(a))
• If the protester is a bidder, offeror or a prospective contractor, the protest shall be filed with the head of the purchasing agency within seven days after they knew or should have known of the facts giving rise to the protest, except that in no event may a protest be filed later than seven days after the date the contract was awarded. (62 Pa. C.S. § 1711.1(b))
• If the protester is a prospective bidder or offeror, a protest shall be filed with the head of the purchasing agency prior to the bid opening time or the proposal receipt date. (Id.) 
• If a bidder or offeror, a prospective bidder or offeror, or a prospective contractor fails to file a protest or files an untimely protest, it shall be deemed to have waived its right to protest the solicitation or award of the contract in any forum. Untimely filed protests shall be disregarded by the purchasing agency. (Id.) 

What Happens After the Protest Is Filed?

Within 15 days of receipt of a protest, the contracting officer may submit to the head of the purchasing agency and the protester a response to the protest, including any documents or information deemed relevant to the protest. (62 Pa. C.S. § 1711.1(d))

• The protester may file a reply to the response within 10 days of the date of the response. (Id.)
• The head of the purchasing agency or their designee shall review the protest and any response or reply and may request and review such additional documents or information they deem necessary to render a decision and may, at their sole discretion, conduct a hearing. The head of the purchasing agency or their designee shall provide to the protester and the contracting officer a reasonable opportunity to review and address any additional documents or information deemed necessary by the head of the purchasing agency to render a decision. (62 Pa. C.S. § 1711.1(e))

When Will a Decision on the Protest Be Issued?

• Upon completing an evaluation of the protest, the head of the purchasing agency or their designee shall issue a written determination stating the reasons for the decision. (62 Pa. C.S. § 1711.1(f))
• The determination shall be issued within 60 days of the receipt of the protest unless extended by consent of the head of the purchasing agency or their designee and the protester. (Id.)
• The determination shall be the final order of the purchasing agency. (Id.)
• If the head of the purchasing agency determines that the solicitation or award of the contract was contrary to law, they may enter an order authorized by Section 1711.2 (relating to solicitations or awards contrary to law). (Id.)

Is There a Stay During the Protest?

• In the event a protest is filed timely and until the time has elapsed for the protester to file an appeal with the Commonwealth Court, the purchasing agency shall not proceed further with the solicitation or with the award of the contract unless and until the head of the purchasing agency, after consultation with the head of the using agency, makes a written determination that the protest is clearly without merit or that award of the contract without delay is necessary to protect substantial interests of the Commonwealth. (62 Pa. C.S. § 1711.1(k))

What Are the Rules on Intervention?

• There is no specific regulatory provision addressing intervention in the underlying administrative state-level protest.
• However, if the protest escalates to judicial appeal, any party may petition to become a party by filing a motion to intervene, as provided in 231 Pa. Code Chapter 2320.

May a Bid Protest Decision Be Appealed?

• Within 15 days of the mailing date of a final determination denying a protest, the protester may file an appeal with the Commonwealth Court. (62 Pa. C.S. § 1711.1(g))
• Issues not raised by the protester before the purchasing agency are deemed waived and may not be raised before the court. (Id.)
• The record of determination for review by the court shall consist of the solicitation or award; the contract, if any; the protest; any response or reply; any additional documents or information considered by the head of the purchasing agency; the hearing transcript and exhibits, if any; and the final determination. (62 Pa. C.S. § 1711.1(h))
• The court shall hear the appeal, without a jury, on the record of determination certified by the purchasing agency. The court shall affirm the determination of the purchasing agency unless it finds from the record that the determination is arbitrary and capricious, an abuse of discretion or is contrary to law. (62 Pa. C.S. § 1711.1(i))
• If the determination is not affirmed, the court may enter any order authorized by 42 Pa. C.S. § 706 (relating to disposition of appeals), provided that, if the court determines that the solicitation or award of a contract is contrary to law, then the remedy the court shall order is limited to canceling the solicitation or award and declaring void any resulting contract. (62 Pa. C.S. § 1711.1(j))