Bureau Veritas N. Am., Inc. v. Dep't of Transp.
| Decision Date | 03 November 2015 |
| Docket Number | No. 99 C.D. 2015,99 C.D. 2015 |
| Citation | 127 A.3d 871 |
| Parties | BUREAU VERITAS NORTH AMERICA, INC., Petitioner v. DEPARTMENT OF TRANSPORTATION, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Patrick C. Campbell, Lima, for petitioner.
Angela N. Rainey, Assistant Counsel, Harrisburg, for respondent.
BEFORE: RENÉE COHN JUBELIRER, Judge, and PATRICIA A. McCULLOUGH, Judge, and JAMES GARDNER COLINS, Senior Judge.
OPINION BY Senior Judge JAMES GARDNER COLINS.
Bureau Veritas North America, Inc. (BV) petitions for review of a final determination of the Secretary (Secretary) of the Department of Transportation (DOT) denying as untimely BV's protest concerning four inspection contracts on which it had submitted a Statement of Interest (SOI). For the reasons that follow, we conclude that the Secretary correctly held that the protest was not filed within the seven-day time limit imposed by Section 1711.1(b) of the Commonwealth Procurement Code (Procurement Code), 62 Pa.C.S. § 1711.1(b), but reverse the Secretary's rejection of BV's request that the protest be heard nunc pro tunc and remand this matter to the Secretary to address the protest on the merits.
In July 2014, DOT advertised four fabricated structural steel plant inspection contracts. (Record Item (R. Item) 10, Final Determination at 1; R. Item 6, Reproduced Record (R.R.) at 21a–36a.) Five firms, including BV, submitted SOI in response to this advertisement. (R. Item 10, Final Determination at 2; R. Item 6 Advertisement for Inspection Contracts, R.R. at 56a.) On November 13, 2014, DOT published its final rankings of the five firms that submitted SOI. (R. Item 10, Final Determination at 2; R. Item 6 Bracken Certification, R.R. at 56a ¶¶ 10–11.) These final rankings ranked BV as fifth overall and second with respect to each of the four contracts. (R. Item 10, Final Determination at 2; R. Item 6 BV Final Ranking for Agreement E03236, Bracken Certification & Harter Certification, R.R. at 50a–53a, 56a ¶ 9, 58a ¶ 2.)
BV learned of the final rankings when they were published on November 13, 2014. (R. Item 9 BV Reply in Support of Protest & Rzonca Certification, R.R. at 81a, 89a ¶ 2.) On November 14, 2014 in response to an inquiry from BV, a DOT Contract & Consultant Agreement Engineer sent BV the following email:
I spoke with Michele Harter from Central Office about the four referenced agreements that your firm was ranked # 2. There is no formal bid protest process for consultant agreements. However, you can request a debriefing meeting be scheduled with the selection team. Since these are all central office agreements and not District 11, you can email or call Mr. Joseph Bracken ... and request a meeting. If I can assist you any further, please do not hesitate to call me.
(R. Item 9 11/14/14 DOT email, R.R. at 95a.) BV later that day sent the following response to DOT:
(R. Item 9 11/14/14 BV email, R.R. at 94a.) On November 18, 2014, DOT conducted a debriefing meeting with BV. (R. Item 10, Final Determination at 2; R. Item 6 Bracken Certification, R.R. at 56a ¶ 13; R. Item 9 Rzonca Certification, R.R. at 89a ¶ 4.)
BV sent a protest concerning the four contracts to DOT by regular mail and email on November 20, 2014, the seventh day after the publication of the final rankings. (R. Item 3, BV Protest, R.R. at 9a–10a; R. Item 9 Rzonca Certification, R.R. at 89a–90a ¶¶ 5, 7.) BV's email of its protest was sent at 6:33 p.m. and was rejected by DOT's computer server. (R. Item 10, Final Determination at 2; R. Item 9 Rzonca Certification & Email Delivery Failure Report, R.R. at 90a ¶¶ 7–8, 92a.) DOT's Delivery Failure Report notifying BV of the rejection did not explain the reason or give any information on how the email could be successfully resent, stating only:
(R. Item 9 Email Delivery Failure Report, R.R. at 92a) (emphasis in original).
On November 21, 2014, BV learned that the DOT server rejected the email because it was in a .ZIP file format. (R. Item 9 Rzonca Certification, R.R. at 90a ¶ 8.) BV promptly changed the file format and successfully resent the protest to DOT by email. (Id. ) DOT received and docketed the protest on November 21, 2014, eight days after the November 13, 2014 publication of the final rankings. (R. Item 10, Final Determination at 2; R. Item 6 Bracken Certification, R.R. at 56a ¶ 14.) BV was not aware prior to November 21, 2014 that DOT's server rejects .ZIP file attachments. (R. Item 9 Rzonca Certification, R.R. at 90a ¶ 9.)
The Deputy Secretary of DOT issued a Memorandum on December 8, 2014, rejecting BV's protest both as untimely and on the merits, and lifting the stay of procurement on the grounds that the protest was without merit and that proceeding without delay was necessary because the existing inspection contracts would expire at the end of December 2014. (R. Item 10, Final Determination at 3; R. Item 7, Memorandum of Deputy Secretary, R.R. at 12a–13a.) On December 8, 2014, DOT also filed its response to the protest, asserting that the protest was both untimely and without merit. (R. Item 10, Final Determination at 3; R. Item 6 DOT Response to Protest, R.R. at 14a–19a.) BV in its Reply in Support of its Protest argued both that its protest was timely and that it should prevail on the merits of the protest. (R. Item 10, Final Determination at 3; R. Item 9 BV Reply in Support of Protest, R.R. at 80a–88a.) With respect to timeliness, BV argued that the Procurement Code's seven-day deadline did not begin to run on November 13, 2014, and that its email protest was filed on November 20, 2014, and also requested that it be granted leave to file the protest nunc pro tunc if the filing was not within the Procurement Code deadline. (R. Item 9 BV Reply in Support of Protest, R.R. at 80a–82a.)
On January 16, 2015, the Secretary issued a final determination dismissing BV's protest as untimely. The Secretary concluded that the seven-day deadline for filing a protest under the Procurement Code expired on November 20, 2014 and that BV's protest was not filed until November 21, 2014. (R. Item 10, Final Determination at 4–5.) The Secretary denied BV's request that its protest be allowed nunc pro tunc on the ground that the Procurement Code does not permit nunc pro tunc filing of protests and did not address whether BV had shown that it satisfied the standards for nunc pro tunc filing. (Id. at 4 n. 4.) The Secretary did not address the merits of the protest. BV timely appealed the Secretary's final determination to this Court.1
The issues in this appeal concern only the timeliness of BV's protest, not the merits of the protest. BV asserts three arguments: 1) that the seven-day period for filing a protest did not begin to run on November 13, 2014, when the final rankings for the inspection contracts were published; 2) that the unsuccessful emailing of its protest on November 20, 2014 constituted filing of the protest; and 3) that its protest should have been allowed nunc pro tunc.2 We reject BV's first two arguments, but conclude that BV has shown grounds for nunc pro tunc relief and that the Secretary therefore erred in not addressing the merits of its protest.
Section 1711.1(b) of the Procurement Code imposes the following time limitation on the filing of protests:
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.
62 Pa.C.S. § 1711.1(b) (emphasis added). Failure to file a protest before expiration of this seven-day deadline bars consideration of the protest. Id. (); Janeway Truck & Trailer Recovery v. Pennsylvania Turnpike Commission, 16 A.3d 551, 553 (Pa.Cmwlth.2011) (courts "must strictly apply the deadlines in the Code"); Firetree, Ltd. v. Department of Corrections, 3 A.3d 762, 764 (Pa.Cmwlth.2010) (protest filed one day late is barred).
BV asserts that the period for filing its protest could not begin to run on November 13, 2014 because the final rankings did not constitute an award of the contracts. This argument is without merit. A protest is barred as untimely if it is filed more than seven days after the disappointed offeror or bidder knew or had notice of the grounds for the protest, regardless of when...
To continue reading
Request your trial
- Bureau Veritas N. Am., Inc. v. Dep't of Transp.
-
Ctr. for Climate Strategies, Inc. v. Dep't of Envtl. Prot., 594 C.D. 2017
...of the Commonwealth Procurement Code, 62 Pa. C.S. §§ 101 -2311, based on the record certified by the agency. Bureau Veritas N. Am., Inc. v. Dep't of Transp. , 127 A.3d 871, 887 n.1 (Pa. Cmwlth. 2015) ; see also 62 Pa. C.S. § 1711.1(i). Unless we determine the agency determination to be arbi......