Tactical Public Safety, LLC v. PA DGS ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tactical Public Safety, LLC, :
Petitioner :
:
v. : No. 1090 C.D. 2022
:
Pennsylvania Department of :
General Services, :
Respondent : Submitted: May 8, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY JUDGE CEISLER FILED: June 5, 2023
Tactical Public Safety, LLC (TPS) petitions for review of the September 26,
2022 final decision of the Pennsylvania Department of General Services (DGS),
which denied TPS’s bid protest on the grounds that the protest was untimely and
lacked merit. We affirm.
Background
For several years, TPS had been an approved vendor in the Commonwealth’s
cooperative purchasing program, commonly known as COSTARS, for the sale of
two-way radio equipment and services. Pet. for Rev. ¶ 4. TPS’s most recent
COSTARS contract for two-way radio equipment and services was set to expire at
the end of 2022. Id. ¶ 5.
Due to the impending expiration of TPS’s COSTARS contract, on June 20,
2022, DGS issued Invitation for Bid Number 6100055625 (IFB) seeking bids for
two-way radio equipment and services from January 1, 2023, through December 31,
2023. Id. ¶ 6; Reproduced Record (R.R.) at 41a. The deadline for the submission
of all bids was 1:00 p.m. on July 19, 2022 (Bid Deadline). Pet. for Rev. ¶ 7. The
IFB provided that all “[b]ids must be submitted electronically” via the Pennsylvania
Supplier Portal website (Portal) on or before the specified due date and that “[a]ny
bid submitted to the Issuing Office in hardcopy format will be rejected.” R.R. at
42a; see id. at 56a.1 The IFB also provided that to be eligible for selection, a bid
must be both timely received and properly signed by the bidder. Id. at 65a. In the
IFB, DGS “reserve[d] the right to reject any and all [b]ids, to waive technical defects
or any informality in [b]ids, and to accept or reject any part of any [b]id if the best
interests of the Commonwealth are thereby served.” Id. at 62a.
Between 8:30 a.m. and 12:43 p.m. on July 19, 2022, TPS logged into, or
attempted to log into, the Portal 11 times. Pet. for Rev. ¶ 14; see R.R. at 7a-16a.
TPS uploaded its bid documents to the Portal at approximately 11:30 a.m., 90
minutes before the Bid Deadline. Pet. for Rev. ¶ 8.
However, to fully complete a bid submission, the Portal also required TPS to
answer two bid-related questions via digital drop-down boxes. Id. ¶ 9; see R.R. at
18a, 20a. After uploading its bid documents, TPS discovered that one of the required
questions did not appear on TPS’s computer screen. TPS attempted to resolve the
issue by contacting the Portal’s help desk by phone and by email. At 11:51 a.m.,
TPS called and spoke with a help desk associate, Randy Miller, but Mr. Miller was
unable to resolve TPS’s issue.
With the Bid Deadline quickly approaching, TPS’s representative sent an
email to the IFB’s Issuing Officer, Raeden Hosler, at 12:03 p.m. on July 19, 2022,
in which he stated:
1
The IFB actually set the Bid Deadline as 12:00 p.m. on July 19, 2022, not 1:00 p.m. See
R.R. at 41a. However, other record documents, including screenshots of the Portal on the day of
the Bid Deadline, indicate that the Bid Deadline was 1:00 p.m., see id. at 5a, 23a, and 26a, and the
parties do not dispute that the Bid Deadline was 1:00 p.m. on July 19, 2022, see TPS Br. at 6 n.1.
2
I have uploaded all of my files to the . . . Portal but I am unable to
submit because Question #1 is not showing. I have reached out to
Randy Miller for support (copied).
I don’t want to miss the deadline because of a glitch.
I have attached a screen[]shot of the problem.
R.R. at 25a. However, at the time TPS sent the email, Mr. Hosler was unavailable
because he was on a scheduled lunch break. At 12:49 p.m., TPS sent another email
to both Mr. Hosler and Mr. Miller, stating that TPS was responding “Yes” to both
questions on the Portal and that TPS had uploaded all of its documents. Pet. for Rev.
¶ 24; R.R. at 28a.2 TPS further stated: “Please consider this as a submitted bid
response to [the] IFB.” R.R. at 28a.
The IFB closed on July 19, 2022, at 1:00 p.m. DGS did not receive a
completed electronic bid via the Portal from TPS. Multiple other bidders
successfully submitted bids in response to the IFB through the Portal before the Bid
Deadline. See id. at 36a; DGS Br. at 5. The IFB set the bid opening time as 1:01
p.m. on July 19, 2022 (Bid Opening Time). See R.R. at 5a, 23a, and 26a.
At 9:38 a.m. on July 20, 2022, Mr. Hosler replied to TPS’s email from the
prior day regarding its technical issue with the Portal, stating: “Apparently the field
was inadvertently hidden due to the mouse function you performed. Below is the
response I got from [the Integrated Enterprise System Department]. It appears that
until you go to the same screen and perform the same function, you will continue to
have this problem until the field is unhidden.” Id. at 30a (emphasis added). Mr.
2
In its July 19, 2022 email to Mr. Hosler and Mr. Miller, TPS stated that it replied “Yes”
to both bid-related questions on the Portal, R.R. at 28a, even though only one question was visible
on its computer screen during its attempted bid submission, id. at 26a.
3
Hosler also informed TPS: “I have been told there is nothing we can do about the
[bid] submission at this point.” Id.
On July 26, 2022, TPS submitted its protest to DGS, challenging DGS’s
refusal to consider its bid. TPS asserted that its “inability to respond to the first
question [on the Portal] after uploading its bid documents . . . was due to nothing
more than a programming quirk” and that “[t]he sole irregularity with TPS’s bid is
that TPS provided answers to the questions via email due to issues with the [Portal].”
Id. at 2a. TPS argued that, as a result, any variance in its bid submission was “at
most di minimis [sic] and should be waived by DGS.” Id. It further argued that
waiver of its bid defect would be “harmless to the other successful bidders,” as it
“would not deprive any other successful bidder of its award under the [IFB], but
instead merely add to [DGS’s] approved vendor list.” Id. at 3a. Thus, TPS requested
that “its bid . . . be considered responsive and that DGS award TPS a cooperative
purchasing contract pursuant to the [IFB].” Id.
On August 3, 2022, DGS’s Contracting Officer recommended to DGS’s
Deputy Secretary of Procurement (Deputy Secretary) that DGS deny TPS’s protest.
Based on her review of the record, the Contracting Officer determined:
Since TPS’[s] bid was never electronically submitted in [the
Portal], meaning that the full electronic process was not completed
thereby allowing the electronic bid to be submitted and recorded in [the
Portal], TPS is a prospective bidder and not a bidder. As a prospective
bidder, TPS was obligated to submit a bid protest prior to the Bid
Opening Time in order for such bid protest to be considered timely
received. TPS, as a prospective bidder, did not submit a bid protest
prior to the Bid Opening Time. Because TPS is not a bidder, the bid
protest is untimely and therefore should be disregarded.
....
4
In addition to untimeliness, this bid protest should also be denied
as clearly without merit.
Contrary to TPS’[s] . . . assertion, [DGS] does dispute that TPS
submitted all the requisite bid documents and provided answers in the
affirmative to both of the requisite questions prior to the Bid Opening
Time. All bid documents must be submitted through [the Portal], not
merely uploaded, in order to be officially received. The documents are
not officially received by [the Portal] or able to be reviewed by [DGS]
until the bidder submits them. Submission does not take place until all
of the steps are completed in [the Portal], including the answering in
the affirmative of the last two questions in [the Portal], which TPS was
unable to do. The email to the Issuing Officer from TPS at 12:49 [p.m.]
on July 19, 2022, stating that TPS’[s] answer to both of the remaining
questions was “yes” is not sufficient. TPS was the only vendor that
[DGS] is aware of that had an issue submitting a bid in response to the
IFB. [DGS] does not have access to any of the documents that TPS
asserts were uploaded to [the Portal] on July 19, 2022.
Id. at 36a (emphasis added). On August 12, 2022, TPS submitted a reply to the
Contracting Officer’s recommendation. Pet. for Rev. ¶ 32.
On September 26, 2022, the Deputy Secretary issued a final decision denying
TPS’s protest. With regard to timeliness, the Deputy Secretary determined:
It is important to understand the method by which bids are submitted
electronically through the electronic submission system in response to
a solicitation. Prospective bidders go into the . . . Portal in order to
review the solicitation documents and requirements and to upload
documents required to be submitted in response to the solicitation.
Once the prospective bidder has uploaded all the documents and
completed any required information in the . . . Portal, the bid must
actually be submitted electronically through the . . . Portal to [DGS’s]
electronic submission system, referred to as “SRM.” There is, within
SRM, a submit button by which this electronic submission is
accomplished. Until such submission is effectuated and the bid due
date and time have passed, the Issuing Officer does not have the ability
to see or access anything uploaded by the prospective bidder until the
prospective bidder actually submits the bid. Any bids timely submitted
5
through SRM are available for review only after the bid close date and
time.
This is important to note as TPS argues that it had submitted a bid in
response to the IFB because it had uploaded documents in the . . . Portal.
However, TPS never actually submitted its bid response into the SRM
system. I further note that TPS, in its protest filings, states that it began
logging into the . . . Portal at 8:13 a[.]m[.] on July 19, 2022, and then
repeatedly kept trying to do so until 12:43 p[.]m[.] on that same day.
However, at no point prior to 11:59 a[.]m[.] did TPS reach out to [DGS]
for assistance. When TPS finally did reach out, no one was available
at that time to assist since it was over scheduled lunch periods. It is
also noted that no other bidder encountered the difficulty that TPS did
and therefore this was a not a system issue with either the . . . Portal or
SRM.
R.R. at 102a (emphasis added).
The Deputy Secretary also concluded that TPS’s protest lacked merit,
rejecting its assertion that DGS can waive the defect in its bid submission, as follows:
The timely submission of a bid is a critical component to the sealed
competitive bid method of procurement, or an [IFB]. It has always been
the requirement that if a bid is not submitted prior to the bid due date
and time, it will not be considered. This is not a di minimis [sic]
variance to the IFB requirements but rather one of the fundamental and
mandatory requirements of an IFB. TPS itself acknowledges the firm
requirement of a timely submission in its email to Mr. . . . Hosler, the
Issuing Officer for the IFB[,] at 12:03 p[.]m[.] on July 19, [2022,]
stating[,] “I don’t want to miss the deadline because of a glitch.” While
many things within a bid submission could be waived, mandatory
requirements such as submission prior to the due date and time is not
one of them.
Id. at 103a (emphasis added). TPS now petitions this Court for review.3
3
Section 1711.1(i) of the Commonwealth Procurement Code (Procurement Code), 62 Pa.
C.S. § 1711.1(i), provides that in an appeal from a final determination of a purchasing agency, this
Court “shall affirm the determination of the purchasing agency unless it finds from the record that
(Footnote continued on next page…)
6
Analysis
1. Merits of Protest
TPS asserts that DGS erred in concluding that its bid protest lacked merit.
TPS argues that DGS should have waived its bid submission defect because TPS
uploaded its bid documents to the Portal in a timely manner and because DGS has
the discretion to waive a de minimis variance in the bid process. In support of its
waiver argument, TPS points out that: it complied with the instructions in the IFB
for requesting help with technical issues but received no response from DGS until
after the Bid Deadline; it uploaded its bid documents to the Portal before the Bid
Deadline; and it emailed its response to the two bid-related questions before the Bid
Deadline. In response, DGS asserts that it had no discretion to waive the defect in
TPS’s bid submission because the electronic submission requirements were
mandatory pursuant to the language of the IFB.
Section 512(e) of the Procurement Code, 62 Pa. C.S. § 512(e), provides that
all bid evaluation criteria for a Commonwealth contract solicitation must appear in
the invitation for bids. For a bid to be valid, the bid must comply with the mandatory
requirements set forth in the purchasing agency’s invitation for bids. Glasgow, Inc.
v. Pa. Dep’t of Transp., 851 A.2d 1014, 1017 (Pa. Cmwlth. 2004) (en banc). Our
courts have held that where a term or condition in an invitation for bids is mandatory,
the determination is arbitrary and capricious, an abuse of discretion[,] or is contrary to law.”
Further,
[t]he record of determination for review by th[is C]ourt 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 or his designee; the hearing transcript and exhibits, if any; and the final
determination.
Id. § 1711.1(h).
7
a bidder must strictly adhere to such requirement. Dragani v. Borough of Ambler,
37 A.3d 27, 31 (Pa. Cmwlth. 2012); see Cardiac Sci., Inc. v. Dep’t of Gen. Servs.,
808 A.2d 1029, 1033 (Pa. Cmwlth. 2002) (“‘Variances from instructions and
specifications in public works bidding are to be discouraged and, at a minimum,
implicate the government’s discretionary authority to reject a non-compliant bid.’”)
(citation omitted).
As TPS correctly points out, there are some instances in which a purchasing
agency has the discretion to waive a bid defect. Our Supreme Court has identified
the following two criteria for determining whether a bid defect can be waived or
cured:
“[F]irst, [the purchasing agency must consider] whether the effect of a
waiver would be to deprive the municipality of its assurance that the
contract will be entered into, performed and guaranteed according to its
specified requirements, and second, whether it is of such a nature that
its waiver would adversely affect competitive bidding by placing a
bidder in a position of advantage over other bidders or by otherwise
undermining the necessary standard of competition.”
Gaeta v. Ridley Sch. Dist., 788 A.2d 363, 367-68 (Pa. 2002) (citation omitted).
However, the purchasing agency may only waive a bid defect where the defect does
not involve a mandatory requirement that the bid instructions treat as non-waivable.
Cardiac Sci., 808 A.2d at 1033. Hence, where the bid instructions indicate that a
bid will be rejected if certain qualifications are not met, the purchasing agency lacks
the discretion to waive those qualifications. See id. at 1034; see also Glasgow, 851
A.2d at 1017 (“Where specifications set forth in a bidding document are mandatory,
they must be strictly followed for the bid to be valid, and a violation of those
mandatory bidding instructions constitutes a legally disqualifying error for which a
public agent may reject a bid.”) (emphasis added).
8
In this case, the IFB provided that to be eligible for selection, a bid must be
both timely received and properly signed by the bidder. R.R. at 65a. The IFB also
explicitly stated: “Bidders must submit their bids through the Commonwealth’s
electronic system (SRM).” R.R. at 56a (emphasis added). Further, the IFB stated:
It is the responsibility of each bidder to ensure that its Bid is received
through the electronic system prior to the date and time set for the
opening of bids (“Bid Opening Time”). No Bid shall be considered if
it arrives after the Bid Opening Time, regardless of [the] reason for the
late arrival.
Id. (emphasis added).
With regard to evaluating defects in the submission of bids, we are guided by
this Court’s decisions in Center for Climate Strategies, Inc. v. Department of
Environmental Protection, 194 A.3d 742 (Pa. Cmwlth. 2018), and Glasgow, supra.In Climate Strategies, this Court upheld the Department of Environmental
Protection’s (DEP) rejection of a bid on the basis that Climate Strategies failed to
submit its bid through the electronic supplier portal, as specified in the advertisement
for solicitation. 194 A.2d at 745. Due to technical difficulties, Climate Strategies
submitted the bid via email, rather than through the electronic portal. Id. at 743.
Climate Strategies protested DEP’s determination, arguing, inter alia, that its failure
to properly submit the bid was the result of both inadequate technical support and
the solicitation’s lack of guidance on expected technical support wait times. Id. at
744.
In concluding that Climate Strategies’ failure to submit its bid through the
electronic portal was a non-waivable defect, this Court explained:
[T]he Solicitation’s original invitation for bids explicitly stated that the
invitation for bids included all documents attached to the invitation or
incorporated by reference, as well as later-added addenda. Therefore,
9
the information and requirements contained in the Advertisement and
posted on the PA eMarketplace website form part of the Solicitation’s
requirements/bid evaluation criteria.
The Advertisement provided, in bold print:
Responses to this bid will only be accepted electronically.
On the very next line, also in bold print, the Advertisement further
provided:
You must go to http://www.pasupplierportal.state.pa.us to
complete this bid.
Accordingly, in addition to requiring electronic submission, the
Solicitation specified the exact electronic submission method
prospective contractors would need to employ to properly
electronically submit their bids. The use of the definite and
unambiguous language “only” and “must” made the PA Supplier
Portal use submission requirement mandatory and thus non-waivable.
The Solicitation’s mandate was clear and easily understood: to be
considered for the contract, prospective contractors needed to timely
submit their bids via the PA Supplier Portal. [Climate Strategies’]
failure to comply with this unambiguous mandatory requirement
rendered its bid non-responsive, regardless of the timely submission of
its bid through a different electronic submission method.
Id. at 745 (internal citations omitted) (bold in original; italics added). This Court
further held that “[b]ids that fail to conform to all mandatory requirements and
criteria contained in an invitation for bids are non-responsive to the invitation.” Id.
(emphasis added). Therefore, because Climate Strategies failed to comply with the
mandate to submit its bid via the electronic portal, this Court affirmed the denial of
its protest. Id.
Moreover, in Glasgow, the Pennsylvania Department of Transportation
(DOT) solicited bids for a construction project. The bid instructions directed bidders
10
to submit certain information electronically via DOT’s website and stated that the
lowest bidder’s failure to submit the information by the due date and time would
result in the contract being awarded to the next lowest bidder. 851 A.2d at 1016 &
n.1. Glasgow, the lowest bidder, entered the required information on DOT’s website
but failed to press the “submit” button. Id. at 1016. As a result, DOT rejected
Glasgow’s bid because the information was not timely submitted per the bid
instructions. Id.On appeal, Glasgow argued that DOT abused its discretion by failing to waive
an “insubstantial and immaterial irregularity in the bidding process.” Id. at 1017.
An en banc panel of this Court, however, disagreed and affirmed the denial of
Glasgow’s protest. We specifically declined to apply the Gaeta test because we
concluded that Glasgow’s failure to electronically submit the required information
was a non-waivable, material defect, holding: “While [DOT] could have provided
otherwise, it removed any discretion it had to waive the time to submit the
information when it provided in the bid instructions that the bid would be rejected if
the information was not provided within the time specified.” Id. (emphasis added).4
Here, in the IFB, DGS reserved “the right to waive technical defects or any
informality in [b]ids.” R.R. at 62a. However, as in Climate Strategies and Glasgow,
DGS removed any discretion to waive a defect relating to the submission of a bid by
clearly stating in the IFB that: all bids “must” be submitted electronically through
the Portal by the due date; it was the bidder’s responsibility to ensure that its bid was
received through the electronic Portal; and no bids would be considered if they
arrived late, “regardless of [the] reason for the late arrival.” R.R. at 56a (emphasis
4
In so holding, the Glasgow Court observed: “What occurred here is no different than
what occurs in normal, every[]day commercial transactions; until the submit button was clicked,
Glasgow, as [DOT] found, was not bound by any of its representations.” 851 A.2d at 1018-19.
11
added); see id. at 103a (concluding that the failure to timely submit a bid by the due
date is “not a di minimis [sic] variance to the IFB requirements but rather one of the
fundamental and mandatory requirements of an IFB”). Our case law instructs that
while DGS is empowered to waive non-material bid defects, it cannot waive a
mandatory requirement specified in the IFB. See Glasgow, 851 A.2d at 1017; see
also Kimmel v. Lower Paxton Twp., 633 A.2d 1271,1274-75 (Pa. Cmwlth. 1993) (“It
is well settled that the specifications set forth in a bidding document are mandatory
and must be strictly followed for the bid to be valid.”) (emphasis added). Like the
purchasing agency in Climate Strategies, DGS’s use of unambiguous, mandatory
language made the requirement of electronic submission via the Portal non-
waivable. Therefore, we conclude that TPS’s failure to electronically submit its bid
through the Portal by the Bid Deadline, regardless of the reason, was a material, non-
waivable defect. See Cardiac Sci., 808 A.2d at 1034 (“Where, as here, the condition
is a material nonconformance, it cannot be clarified or disregarded as a waivable
defect.”) (emphasis added).5
TPS further contends that DGS “should not be permitted to rely on its
complicity in preventing TPS from submitting its bid as the basis for preventing TPS
from protesting those same actions.” Pet. for Rev. ¶ 43. TPS maintains that “the
5
The cases on which TPS relies to support its waiver argument are inapposite here, as they
involved defects in the contents of the bid documents themselves, not defects in the submission of
the bids. See, e.g., KPMG LLP v. Dep’t of Hum. Servs., 276 A.3d 308, 314-15 (Pa. Cmwlth. 2022)
(holding that where the successful bidder met the two mandatory requirements in the RFP – that
the bid be timely received and signed by the bidder – its failure to include certain required
information in the bid documents was a waivable defect); see also Language Line Servs., Inc. v.
Dep’t of Gen. Servs., 991 A.2d 383, 390 (Pa. Cmwlth. 2010) (holding that because the RFP stated
that timely receipt and proper signature execution were the only two mandatory requirements and
the successful bidder met those requirements, the bid was responsive, despite the omission of
certain required information in the bid documents). With regard to a defect in bid submission, as
occurred in this case, we conclude that Climate Strategies and Glasgow are controlling.
12
Portal’s technical issues coupled with [DGS’s] non-responsiveness prevented TPS
from submitting its bid.” Id. ¶ 42. We conclude that the record belies this claim.
Contrary to TPS’s assertion, the record shows that the technical issue TPS
experienced was not attributable to DGS, but to TPS. After consulting with DGS’s
Integrated Enterprise System Department, Mr. Hosler informed TPS: “Apparently
the field was inadvertently hidden due to the mouse function you performed. . . . It
appears that until you go to the same screen and perform the same function, you will
continue to have this problem until the field is unhidden.” R.R. at 30a (emphasis
added). Importantly, DGS also determined, based on its review of the record, “that
no other bidder encountered the difficulty that TPS did and therefore this was a not
a system issue with either the . . . Portal or SRM.” Id. at 102a (emphasis added); see
also id. at 36a (“TPS was the only vendor that [DGS] is aware of that had an issue
submitting a bid in response to the IFB.”) (emphasis added).
In other words, it appears that there were no issues with the Portal itself on
the day of the Bid Deadline. Rather, the technical issue TPS experienced was likely
the result of user error, as TPS inadvertently caused the field containing one of the
required questions to become hidden. When TPS finally requested assistance,
approximately one hour before the Bid Deadline, there was insufficient time for the
help desk to identify or diagnose TPS’s problem. Furthermore, as the Deputy
Secretary found:
TPS, in its protest filings, states that it began logging into the . . . Portal
at 8:13 a[.]m[.] on July 19, 2022, and then repeatedly kept trying to do
so until 12:43 p[.]m[.] on that same day. However, at no point prior to
11:59 a[.]m[.] did TPS reach out to [DGS] for assistance. When TPS
finally did reach out, no one was available at that time to assist since it
was over scheduled lunch periods.
13
R.R. at 102a; cf. Climate Strategies, 194 A.3d at 744-45 (holding that Climate
Strategies’ failure to submit its bid via the electronic portal was a non-waivable
defect, despite its claim that the defect was the result of the agency’s inadequate
technical support and the solicitation’s lack of guidance on expected technical
support wait times). Under these circumstances, we conclude that DGS properly
determined that TPS’s protest lacked merit.
2. Timeliness of Protest
TPS also asserts that DGS erred in concluding that its protest was untimely.
TPS contends that, as a bidder, it filed its protest within seven days after TPS became
aware of the facts giving rise to the protest, as required by Section 1711.1(b) of the
Procurement Code, 62 Pa. C.S. § 1711.1(b).6 According to TPS, DGS’s assertion
that TPS was only a prospective bidder and, thus, was required to submit its protest
before the Bid Opening Time is unreasonable, since the Bid Opening Time was only
one minute after the Bid Deadline. TPS argues that because it uploaded its bid
documents and answered the requisite questions by email before the Bid Deadline,
6
Section 1711.1(b) of the Procurement Code provides in relevant part:
If the protestant is a bidder or offeror or a prospective contractor, the protest shall
be filed with the head of the purchasing agency within seven days after the
aggrieved bidder or offeror or prospective contractor 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. If the protestant 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. If a bidder or
offeror, a prospective bidder or offeror or a prospective contractor fails to file a
protest or files an untimely protest, the bidder or offeror, the prospective bidder or
offeror or the prospective contractor 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.
62 Pa. C.S. § 1711.1(b) (emphasis added).
14
it could not have known prior to the Bid Opening Time that DGS would reject its
bid based on a technical defect.
To protest a bid solicitation issued by a Commonwealth agency, a person or
entity must be either a “bidder” or a “prospective bidder.” 62 Pa. C.S. § 1711.1(b).
The Procurement Code defines “bidder” as “[a] person that submits a bid in response
to an invitation for bids.” Id. § 103 (emphasis added). “Prospective bidder,”
however, is not defined in the Procurement Code. This Court, in considering the
time limitations for the filing of bid protests, has explained the distinction between
the two types of bidders as follows:
Section 1711.1 [of the Procurement Code] clearly refers throughout to
bidders and offerors and prospective bidders and offerors as separate
categories. In addressing the time limitation for filing a protest with
respect to actual bidders and offerors and prospective bidders and
offerors, Section 1711.1(b) sets forth separate time limitations for each
category. As Stanton[-Negley] is a prospective offeror in this instance,
the language of Section 1711.1(b)[,] which provides that “[i]f the
protestant 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,” is applicable . . . .
Stanton-Negley Drug Co. v. Dep’t of Pub. Welfare, 926 A.2d 554, 556 (Pa. Cmwlth.
2007) (emphasis added); see generally MSG Grp., Inc. v. Dep’t of Pub. Welfare, 902
A.2d 613 (Pa. Cmwlth. 2006) (applying Section 1711.1(b)’s time limitation to an
aggrieved prospective bidder). In other words, a bidder must file a protest within
seven days of discovering the facts giving rise to the protest, whereas a prospective
bidder must file a protest before the bid opening time. See 62 Pa. C.S. § 1711.1(b).
In response to TPS’s claims, DGS asserts that TPS failed to submit a
completed electronic bid in response to the IFB. Because TPS did not submit a
completed electronic bid via the Portal, as required by the IFB, TPS cannot be
15
considered a bidder under the Procurement Code, but only a prospective bidder.
Therefore, DGS contends that TPS was required to file its protest prior to the Bid
Opening Time. We agree.
As discussed earlier, the IFB clearly stated that in order to be considered, all
bids must be submitted electronically through the Portal before the Bid Deadline.
R.R. at 56a. The Deputy Secretary explained the submission process as follows:
[T]he bid must actually be submitted electronically through the . . .
Portal to [DGS’s] electronic submission system, referred to as “SRM.”
There is, within SRM, a submit button by which this electronic
submission is accomplished. Until such submission is effectuated and
the bid due date and time have passed, the Issuing Officer does not have
the ability to see or access anything uploaded by the prospective bidder
until the prospective bidder actually submits the bid. Any bids timely
submitted through SRM are available for review only after the bid close
date and time.
Id. at 102a (emphasis added); see also id. at 36a (“Submission does not take place
until all of the steps are completed in [the Portal], including the answering in the
affirmative of the last two questions in [the Portal], which TPS was unable to do.”)
(emphasis added). In other words, submission of a bid is not completed, and any
uploaded documents cannot be accessed by DGS, until the bidder completes the
requisite steps in the Portal and clicks the “submit” button. After the submission
deadline, no additional bids can be submitted or accepted.
We conclude, based on our review of the record, that TPS failed to submit a
completed electronic bid through the Portal as required by the IFB. Under the plain
language of the Procurement Code, because TPS did not submit a completed bid,
TPS was not a bidder, as defined in Section 103 of the Procurement Code, but only
a prospective bidder. See 62 Pa. C.S. § 103 (defining “bidder” as “[a] person that
submits a bid in response to an invitation for bids”) (emphasis added). Under Section
16
1711.1(b) of the Procurement Code, TPS, as a prospective bidder, was required to
file its protest prior to the Bid Opening Time, i.e., by 1:01 p.m. on July 19, 2022.
See id. § 1711.1(b). TPS did not file its protest until July 26, 2022. Therefore, we
conclude that DGS properly determined that TPS’s protest was untimely under
Section 1711.1(b) of the Procurement Code.7
7
TPS also contends that DGS’s application of Section 1711.1(b) of the Procurement Code
created an unreasonable result in this case, because the Bid Opening Time was only one minute
after the Bid Deadline. TPS argues that it could not possibly have filed a protest within that
timeframe, because it would have had to file its protest before it knew that DGS refused to consider
its bid, which TPS did not learn until it received Mr. Hosler’s email on July 20, 2022. TPS asserts:
The unconscionability of DGS’s position is further highlighted where DGS
often publishes solicitations where the opening time is the exact same time as the
bid due time. . . .
. . . [I]f a bidder for these solicitations were to have issues with bid
submission, there is no period of time to file a protest because the harm of being
unable to submit a bid prior to the deadline would occur at the exact same moment
that the bid opening does. This would be true regardless of the cause of the issue,
including DGS’s own active or passive interference, as seen in a situation like the
instant matter where the [w]ebsite’s issue and [DGS’s] non-responsiveness to its
own directed help desk procedure causes or contributes to the problems complained
of by the protestor.
TPS Br. at 17-18.
While TPS raises a noteworthy question regarding the feasibility of applying the
Procurement Code’s time limitations to submission defects under certain unique circumstances,
we cannot conclude, based on our review of the record and relevant law, that DGS acted arbitrarily,
capriciously, or contrary to law in finding TPS’s protest untimely under Section 1711.1(b).
Moreover, contrary to TPS’s assertion in its brief, the technical issue that prevented TPS from
submitting its electronic bid was not attributable to “DGS’s own active or passive interference”
with the submission process. In any event, we need not address this question because, as explained
in Section 1 of the Analysis section of this Opinion, we conclude that TPS’s protest lacked merit.
17
Conclusion
For the foregoing reasons, we conclude that DGS’s denial of TPS’s bid protest
was not arbitrary, capricious, an abuse of discretion, or contrary to law. See 62 Pa.
C.S. § 1711.1(i). Accordingly, we affirm DGS’s September 26, 2022 final decision.
__________________________________
ELLEN CEISLER, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tactical Public Safety, LLC, :
Petitioner :
:
v. : No. 1090 C.D. 2022
:
Pennsylvania Department of :
General Services, :
Respondent :
ORDER
AND NOW, this 5th day of June 2023, the final decision of the Pennsylvania
Department of General Services, dated September 26, 2022, is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge