This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its July 2018 decision in Center for Climate Strategies, Inc. v. Department of Environmental Protection, the Commonwealth Court of Pennsylvania upheld the rejection of a bid that was submitted by email since this breached the bid submission rules established for the tendering process in question. The case dealt with a tendering process for the award of a contract for technical and economic analysis services for the Pennsylvania Department of Environmental Protection. The complainant failed to follow the bid submission rules, which required that submissions be made through the government’s online bid portal. The complainant explained that it emailed its bid directly to three Department employees after encountering difficulties with the government’s bid portal. Even so, the email bid was rejected. The complainant challenged its disqualification, arguing that it was provided with inadequate instructions and technical support to use the government’s bid portal and that the government erred in rejecting its email bid. However, the Court disagreed, finding that the submission rules were clear and easily understood and that the rejection of the email bid was valid:
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. CCS’s 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.
For the preceding reasons, the Executive Deputy Secretary’s Final Determination was not arbitrary, capricious, an abuse of discretion, or contrary to law. Accordingly, we affirm the April 28, 2017 Final Determination’s rejection of CCS’s bid submission as non-responsive to the bid submission requirements of the Solicitation.
As this case illustrates, once an institution establishes an online bid submission portal, bidders will be required to use that online portal or face the disqualification of their bids. While bidders may legally challenge their disqualifications, the courts will typically enforce established online bidding requirements and will not compel public institutions to remain mired in paper-based bidding procedures, nor compel them to accept bids that are submitted using other improvised procedures.
