The Pa. Procurement Code sets a strict deadline for bid protests – the protest must be filed within seven days after the protestant knew or should have known of the facts giving rise to the protest. If the protest is untimely, it will be rejected. The impact of this brightline rule was shown in a recent Commonwealth Court decision involving a late-filed protest.
In 2016, the Pa. Department of Human Services issued an RFP seeking proposals from managed care organizations to implement a managed care program for physical health and long-term services for the elderly and disabled. After evaluation of proposals, the Department notified one of the bidders, UnitedHealthcare of Pennsylvania, Inc., that it was not selected. Thereafter, the Department conducted a debriefing with UnitedHealthcare where it provided information concerning the strengths and weaknesses of UnitedHealthcare’s proposal. Unhappy with the outcome, UnitedHealthcare filed a protest, more than seven days after it was notified that it was not selected, but within seven days of the debriefing. The Department denied the protest as untimely, and UnitedHealthcare filed an appeal with the Commonwealth Court.
The Commonwealth Court rejected UnitedHealthcare’s appeal. In affirming that the protest was untimely, the Commonwealth Court reaffirmed the seven-day rule, and held that the later “debriefing” did not extend the time within which UnitedHealthcare was required to file its protest:
The fact that a debriefing later occurs does not delay the seven-day period for filing a protest, if the offeror or bidder had notice of the ground for protest before the debriefing or the debriefing provided no additional information on which the protest is based.
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Where the protest challenges a term or provision of the invitation for bids or request for proposals or the issue that it raises was apparent from the invitation for bids or request for proposals, the offeror or bidder must file that protest no later than seven days after it has notice of that term or provision, despite the fact that no selection or rejection of any bids or proposals has occurred.
The takeaway from this decision? If you are a disappointed bidder, it is the best practice to file the protest within seven days of the rejection of your bid and not to wait until after a debriefing. If the debriefing discloses additional grounds for a protest, the original protest can always be amended and supplemented. However, if you wait to file the protest until after the debriefing, you will more than likely suffer the fate suffered by UnitedHealthcare.
The UnitedHealthcare decision can be found here.
If you are a contractor needing assistance with a bid protest, feel free to call or email me for a consultation. I’ll be happy to assist in anyway possible.
Christopher I. McCabe, Esq.
