My age makes me part of perhaps the last generation to go to college where computers, the internet, and email were not in widespread use. Before the internet age, Villanova University, where I went to undergraduate and law school, would notify students of the time and location of final exams by posting several small print pages that you would need to decipher to find the date, time, and location of your final exam. The date, time, and location of the final exam for every class Villanova offered appeared on these print outs. You can imagine what they must have looked like. I can remember trying to find my class and then following the small print line over to find the date, time, and location when it would be held.
On one occasion, most likely attributable to a few Yuengling’s the night before, I wrote down the wrong place and time for my final exam. I showed up on at the time and location when I thought the exam should begin only to find the classroom empty and locked. Luckily, I was able to contact the professor, which required me to actually call or go see him in person — no email, and he agreed to let me take the final exam. However, I still ended up with a C, in a class when I should have done much better. The grade was no doubt influenced by my failure to show up at the right place and time.
Moral of the story – don’t be in the wrong place at the wrong time. This adage applies to bid protest litigation involving the Commonwealth of Pennsylvania as well. In Scientific Games Intern, Inc. v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held that under the Pennsylvania Procurement Code the Commonwealth Court did not have jurisdiction over a successful bidder’s claim for specific performance.
The case involved an award of a bid for a computer system to monitor slot machine’s for the Department of Revenue. The plaintiff, SGI, was submitted the winning bid and contract negotiations ensued. Eventually, an agreement on terms was reached and the Office of Chief Counsel transmitted a copy to SGI for execution. SGI signed the contract and returned it to the Commonwealth. However, before the Commonwealth could fully execute the contract. The Commonwealth cancelled the contract under Section 521 of the Procurement Code. SGI then brought an action against the Commonwealth in Commonwealth Court seeking specific performance of the contract. The Commonwealth raised preliminary objections challenging the Commonwealth Court’s jurisdiction to hear the dispute, which the Commonwealth Court overruled. On appeal the Supreme Court overturned the Commonwealth Court and explained:
“The Procurement Code establishes administrative processes to address disputes arising in the procurement setting. On account of the doctrine of sovereign immunity, however, contractors, bidders, and offerors have limited recourse and remedies. Relative to controversies in matters arising from procurement contracts with Commonwealth agencies, the Board of Claims retains exclusive jurisdiction (subject to all jurisdictional prerequisites), which is not to be supplanted by a court of law through an exercise of original jurisdiction.As to challenges to cancellations of solicitations asserted under Section 521 of the Procurement Code, the Legislature did not implement any waiver of sovereign immunity and afforded no remedy to aggrieved bidders and offerors which have not yet entered into an executed contract with a Commonwealth agency. For those attaining the status of contractor—which we find should be deemed to occur at the time a contract is executed by all parties (as that event is also understood for purposes of Section 521)—the remedial procedure is via Section 1712.1, subject to review within the exclusive jurisdiction of the Board of Claims.”
As a result, the plaintiff’s claim was dismissed. When dealing with a challenge to an action involving the Procurement Code it pays to file your claim at the right place at the right time.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
