Disappointed Bidder Lacks Standing To Challenge P3 Contract Award By Non-Commonwealth Entity

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In a recent case of first impression, the Commonwealth Court of Pennsylvania has affirmed a lower court ruling that a disappointed bidder lacked standing to challenge a contract awarded by a non-Commonwealth entity under the Public-Private Transportation Partnership Act (P3 Act).

In April 2016, the Northampton County General Purpose Authority issued a Request for Proposals under the P3 Act for the Northampton County Bridge Renewal Program for the replacement, rehabilitation, and maintenance of 33 bridges in Northampton County. Four bidders responded, including Clearwater Construction, Inc./Northampton County Bridge Partners LLC and Kriger Construction, Inc.  Ultimately, the Authority selected Kriger to negotiate a public-private partnership agreement to develop the bridge renewal program.

Clearwater then filed suit to protest the award to Kriger, alleging multiple issues with the RFP process and challenging Kriger’s qualifications. Clearwater argued that it had standing to protest under section 9109(n) of the P3 Act which states as follows:

If a development entity is aggrieved by a selection under this section and the proprietary public entity in the contract is an entity other than the Commonwealth, a development entity may file a claim with the court of common pleas where the proprietary public entity is located. The process for the filing and resolution of claims, including rights, contents, timing, evaluation, determination and remedies, which are established in 62 Pa.C.S. Ch. 17, shall apply insofar as they are practicable.

The trial court denied Clearwater’s protest, finding that it lacked standing under the P3 Act. Clearwater then appealed.

The Commonwealth Court rejected Clearwater’s arguments and affirmed the trial court’s decision. The Commonwealth Court held that Clearwater generally lacked standing as a disappointed bidder and that section 9109(n) of the P3 Act allowed only a “development entity” to protest a P3 contract award by a non-Commonwealth entity. Because Clearwater was merely a bidder and not a development entity, it lacked standing to protest the award of the P3 contract to Kriger.

The Commonwealth Court’s decision can be found here.

If you need assistance on a P3 Act project, feel free to call or email me for a no-cost consultation.  I’ll be happy to assist in anyway possible.

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Posted on by Christopher I. McCabe, Esq. in Bid Protests, Court Decisions, Public Private Partnership Leave a comment