Preview:

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Perry Construction Group, Inc., Petitioner v. Department of General Services, Respondent BEFORE: : : : : : : :

No. 1340 C.D. 2004 Submitted: November 5, 2004

HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION BY SENIOR JUDGE McCLOSKEY

FILED: December 20, 2004

Perry Construction Group, Inc. (Perry) petitions for review of the decision of the Deputy Secretary for Public Works, denying its bid protest following the rejection of its bid by the Department of General Services (DGS). We now affirm. On March 22, 2004, DGS issued a notice to bidders concerning a new, one-story Welcome Center for the Department of Transportation in Erie, Pennsylvania.1 This notice provided that, in accordance with the Commonwealth's Executive Order No. 1996-8, DGS "has established Minority Business Enterprise (MBE) and Women Business Enterprise (WBE) participation levels on all Commonwealth Public Works Projects" and that only certified contractors can be

This notice detailed the various types of construction work that would need to be completed, including general construction, HVAC construction, plumbing, electrical, site civil and site electrical.

1

used to achieve these participation levels.

(R.R. at 2a).

This notice further

provided that all bidders must complete and submit a MBE/WBE subcontractor and supplier solicitation and commitment form with its bid, identifying "all MBE's and WBE's that have been solicited, all quotes that have been received (solicited and unsolicited) and MBE's and WBE's to which commitments have been made." (R.R. at 3a) (emphasis in original). With respect to this particular project, the instructions for completion of the MBE/WBE subcontractor and supplier solicitation and commitment form provided that bid submissions which met the minimum participation levels (MPL's) for MBE's and WBE's were to be presumed responsive.2 With regard to these levels, the instructions specifically provided that "the bidder must solicit at least five (5) eligible, certified MBE's and five (5) eligible, certified WBE's for subcontract proposals and at least five (5) eligible, certified MBE's and five (5) eligible, certified WBE's for supply proposals." (R.R. at 48a). In the event that a bidder is unable to achieve these MPL's, the instructions directed the bidder to provide a written explanation as to why it was unable to achieve these levels. On April 14, 2004, Perry did indeed submit a bid package for the aforementioned project. This bid package did contain a MBE/WBE subcontractor and supplier solicitation and commitment form and a checklist related to this form. On this checklist, Perry acknowledged that its bid submission did not meet the MPL's set for the MBE's and WBE's on this project. Perry submitted a written

The instructions noted that the "MPL's serve exclusively as a threshold in determining bidder responsibility. A bidder will not be rejected as not responsive because it fails to reach the MPL's; however, the bidder must provide evidence of credible attempts to meet the MPL's...." (R.R. at 48a).

2

2

explanation as to its failure to meet these MPL's, providing that not enough MBE's and WBE's bid the project and/or the bids received were not the low bidder. In addition, Perry noted in this explanation that "non M.B.E./W.B.E. quotes will be provided upon request." (R.R. at 16a). Perry's bid package was thereafter reviewed by the Bureau of Professional Selections and Administrative Services and the Bureau of Minority and Women Business Opportunities. DGS subsequently rejected Perry's bid as non-responsive. In a rejection letter to Perry, DGS explained that Perry had "failed to submit sufficient documentation to support its failure to respond to the participation levels for MBEs and WBEs." (R.R. at 53a). Additionally, DGS explained that Perry "failed to meet the minimal solicitation requirements of five (5) eligible, certified MBEs for each discipline, subcontracting and supplies, and did not provide an explanation for the failure." Id. Further, DGS explained that Perry failed to explain why it did not use quotes from several MBE's and WBE's.3 Perry thereafter sent a protest letter to the Deputy Secretary of DGS contending that it solicited forty-seven proposals from certified MBE and WBE subcontractors and suppliers but was unable to include them all with its bid package because some were received just prior to the opening of the bids.4 As to the minimum solicitation requirement, Perry contended that DGS failed to recognize that several of the MBE's and WBE's were qualified to perform

In the event that Perry refused to use these quotes because they were not competitive or not low enough, DGS noted that Perry was required to submit any lower quotes to justify said refusal. Perry attempted to submit these proposals with its protest letter, along with other proposals/quotes to attempt to justify its refusal of certain MBE's and WBE's.
4

3

3

different scopes of work and appeared in several different categories on the MBE/WBE subcontractor and supplier solicitation and commitment form. On these bases, Perry requested reconsideration of the rejection of its bid as nonresponsive. By letter dated May 26, 2004, Robert Glenn, Director of DGS' Bureau of Engineering and Architecture and the contracting officer for this project, responded to Perry's protest letter, recommending that the protest be denied. Mr. Glenn noted that Perry's MBE/WBE subcontractor and supplier solicitation and commitment form only identified twenty-one MBE/WBE firms, seventeen WBE's and only four MBE's. Mr. Glenn also noted that the instructions to bidders specified that all firms solicited must be included in the bid documents or the bid would be rejected as non-responsive. As to the ability of one MBE or WBE to provide several different services and receive multiple credits, Mr. Glenn acknowledged that Perry was correct that one firm may provide more than one type of service. However, Mr. Glenn indicated that Perry still failed to solicit the required number of five MBE and WBE firms as per the instructions to bidders as well as the instructions for completion of the MBE/WBE subcontractor and supplier solicitation and commitment form. In other words, Mr. Glenn explained that "whatever number of categories any single MBE or WBE may be solicited for, it is a single entity." (R.R. at 72a). Perry then filed a reply with the Deputy Secretary to the response of Mr. Glenn. Perry contended in this reply that Mr. Glenn admitted that it should

4

receive multiple credits for one certified MBE or WBE.5 Perry interprets Mr. Glenn's reasoning as requiring a bidder to solicit a total of twenty MBE/WBE firms, notwithstanding his admission that one firm may provide different services. Perry contended that "the more reasonable interpretation...is that the five (5) MBE firms that are solicited for subcontract proposals may also be qualified to be solicited for supply proposals." indicated.6 Nevertheless, after reviewing the bid package, Perry's bid protest, the response of Mr. Glenn and the reply of Perry, by letter dated June 11, 2004, the Deputy Secretary for Public Works denied Perry's protest. The Deputy Secretary issued a decision supporting this denial wherein he found that Perry failed to meet the MPL of at least five eligible, certified MBE's for subcontract proposals and at least five eligible, certified MBE's for supply proposals. The Deputy Secretary noted that the instructions provided for the rejection of a bid as non-responsive if the bidder failed to submit all appropriate information related to MBE/WBE solicitations, quotes and commitments. Perry thereafter filed a petition for review with this Court. (R.R. at 103a). Perry noted that neither instructions required each firm to be treated as a single entity, as Mr. Glenn so

Mr. Glenn never admitted the above. Rather, Mr. Glenn merely admitted that one MBE/WBE firm may provide different types of service. In this regard, Perry noted that it solicited nine eligible, certified MBE's and thirteen eligible, certified WBE's for subcontract proposals, and six eligible, certified MBE's and seventeen eligible, certified WBE's for supply proposals. However, in terms of Mr. Glenn's reasoning, the subcontract proposals included only three MBE firms and nine WBE firms, whereas the supply proposals included only four MBE firms and eight WBE firms.
6

5

5

On appeal,7 Perry argues that the Deputy Secretary erred in denying its bid protest and rejecting its bid as non-responsive, as it solicited a sufficient number of MBE's and WBE's in accordance with the bid instructions as well as the instructions for completion of the MBE/WBE subcontractor and supplier solicitation and commitment form. We disagree. Section 512(g) of the Commonwealth Procurement Code (the Code) provides that, within sixty days of the bid opening, the contract "shall be awarded...to the lowest responsible bidder...." 62 Pa. C.S.

Download 1340cd04-12-20-04.pdf

Pennsylvania Law