Mark Twain once famously said: “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” The same can be said for corporate counsel tasked with evaluating an adverse procurement decision from a commonwealth agency. While you may think that you know what mistakes to avoid in the critical days following notice that the company’s bid has been rejected or its proposal has not been selected for negotiation, do you really know for sure?
With few exceptions, the procurement of supplies, services, and construction by commonwealth agencies is governed by the Commonwealth Procurement Code, 62 Pa.C.S. Section 101 et seq. The rules governing protests of solicitations and awards are set forth in Sections 1711.1 and 1711.2 of the code. Section 1711.1(a) provides that 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.” Following the filing of a timely protest, the purchasing agency is tasked with evaluating the protest and issuing a written determination specifying the reasons for the agency’s decision. If the head of the purchasing agency determines prior to execution of a contract that the solicitation or award was conducted in a manner contrary to law, a company’s remedies are limited to cancellation of the solicitation or proposed award or revision of the solicitation or proposed award to comply with the law. If the agency head denies the protest, the company can appeal to the Commonwealth Court, which may cancel the solicitation or award and declare void any resulting contract that is made contrary to the law.
