          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Center for Climate Strategies, Inc.,      :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Department of Environmental               :
Protection,                               :   No. 594 C.D. 2017
                 Respondent               :   Submitted: July 20, 2018


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge



OPINION
BY JUDGE FIZZANO CANNON                       FILED: September 24, 2018


             Center for Climate Strategies, Inc. (CCS) petitions for review of the
April 28, 2017 final determination of the Executive Deputy Secretary for
Administration and Management, Commonwealth of Pennsylvania, Department of
Environmental Protection (DEP) (Final Determination), denying CCS’s protest of
the rejection of its bid submission in response to a DEP invitation for bids as non-
responsive to DEP’s bid submission requirements. For the reasons that follow, we
affirm.
             On January 31, 2017, DEP advertised Solicitation No. 6100041471
(Solicitation) on the PA eMarketplace website.1 Final Determination, Findings of
Fact (F.F.) 1. The Solicitation invited bids for a contract to provide DEP with

      1
          PA. DEP’T OF GEN. SERVS., PA EMARKETPLACE, www.emarketplace.state.pa.us (last
visited Sept. 11, 2018).
technical and economic analysis services in support of the development of a
statewide climate change action plan update, pursuant to the Pennsylvania Climate
Change Act.2 F.F. 2. The Advertisement for Solicitation (Advertisement) specified,
in        bold      print,     that      potential       contractors   “must      go      to
http://www.pasupplierportal.state.pa.us [the PA Supplier Portal] to complete
this bid.” F.F. 5. The advertisement further expressly stated, also in bold print, that
“[r]esponses to this bid will only be accepted electronically.” F.F. 4 (emphasis in
original). The due date for bid submissions was 2:00 p.m. on February 21, 2017.3
F.F. 9.
                 At 1:32 p.m. on February 21, 2017, CCS contacted the help line for the
PA Supplier Portal. F.F. 12. Although CCS was already registered with the PA
Supplier Portal, CCS’s representative explained to the help line that CCS’s listed
point of contact was not a current CCS employee and further that CCS could not
locate its password for the PA Supplier Portal. F.F. 11, 13-14. The help line
instructed CCS to send an email to the PA Supplier Portal inbox address to request
a change of its point of contact and password information, which CCS accordingly
did at 1:39 p.m. F.F. 15-16.
                 CCS did not timely submit its bid submission for the Solicitation via
the PA Supplier Portal by the due date of 2:00 p.m. on February 21, 2017. F.F. 20.
Instead, at 1:57 p.m. on February 21, 2017, CCS sent an email to three DEP



       2
           Act of July 9, 2008, P.L. 935, 71 P.S. §§ 1361.1-1361.8.
       3
        Bid submissions for the Solicitation were originally due by 2:00 p.m. on February 14,
2017. F.F. 6. However, a February 7, 2017 addendum extended the Solicitation’s due date to
February 21, 2017 at 2:00 p.m. F.F. 9.

                                                 2
employees4 attaching its bid submission materials for the Solicitation. F.F. 17-18.
CCS’s email stated that CCS was submitting its bid documentation via email as “a
failsafe measure, undertaken because we have encountered challenges with the
submission via the PA Supplier Portal eMarketplace.” F.F. 19.
               Although CCS sent its materials via email prior to the deadline,5 DEP
rejected CCS’s bid submission as non-responsive to the bid submission
requirements. F.F. 22-23. CCS protested DEP’s rejection of its bid submission by
letter dated February 27, 2017 (Protest) and received by DEP on February 28, 2017.
F.F. 24-25. In the Protest, CCS argued that DEP should have accepted CCS’s bid
submission as responsive because “all the procurement requirements for the proposal
were completed and transmitted prior to the deadline and CCS had made reasonable
attempts to submit the proposal by way of the portal but was prevented from doing
so because the portal was unavailable to CCS without agency assistance, which, in
turn, was not available prior to the deadline.” F.F. 26; Protest at 1.
               DEP’s contracting officer (CO) recommended that the Protest be
denied as non-responsive because CCS failed to submit its bid through the electronic
bidding portal in a memorandum dated March 13, 2017 (CO Response). F.F. 27-29.
CCS filed a reply to the CO Response by letter dated March 16, 2017 (Reply to the
CO Response). F.F. 30. In its Reply to the CO Response, CCS argued first that its
failure to properly submit the bid resulted from the PA Supplier Portal’s inadequate
technical support, and second that the Solicitation provided no guidance on


       4
         CCS sent the email to Mark Brojakowski and Kelly Campbell, both of whom were DEP
contacts for technical questions regarding the Solicitation, as well as to Sherry Morrow, DEP’s
contact person for the Solicitation’s contracting and bidding procedures. F.F. 7-8, 17.
       5
          No party disputes that CCS electronically transmitted its bid submission to DEP via email
prior to the deadline.
                                                3
registering points of contact or expected technical support wait times, to CCS’s
detriment. F.F. 31-32.
              On April 28, 2017, DEP’s Executive Deputy Secretary filed the Final
Determination, which denied the Protest because CCS failed to comply with the
mandatory requirement that prospective contractors submit their bids through the
PA Supplier Portal. See Final Determination at 6. This timely appeal followed.6
              On appeal, CCS argues that DEP erred when it rejected CCS’s emailed
bid submission as non-responsive to the bid submission requirements of the
Solicitation. See CCS’s Brief at 2-3, 6-9. CCS argues that “all stated requirements
in the January 31, 2017 Solicitation for Bids were satisfied” and that the Solicitation
did not specify that bids needed to be submitted through the PA Supplier Portal. See
id. at 6-9. We do not agree.
              The Commonwealth Procurement Code, 62 Pa. C.S. §§ 101-2311,
provides that all bid evaluation criteria for a Commonwealth contract solicitation
must appear in the invitation for bids for the specific solicitation. See 62 Pa. C.S. §
512(e). This Court has further explained as follows:

              Where specifications set forth in a bidding document are
              mandatory, they must be strictly followed for the bid to be
              valid, and a violation of those mandatory bidding
              instructions constitutes a legally disqualifying error for
              which a public agent may reject a bid.




       6
         This Court determines protest appeals of the Commonwealth Procurement Code, 62 Pa.
C.S. §§ 101-2311, based on the record certified by the agency. Bureau Veritas N. Am., Inc. v.
Dep’t of Transp., 127 A.3d 871, 887 n.1 (Pa. Cmwlth. 2015); see also 62 Pa. C.S. § 1711.1(i).
Unless we determine the agency determination to be arbitrary and capricious, an abuse of
discretion, or contrary to law, this Court must affirm the agency determination. Id.
                                             4
Glasgow, Inc. v. Pa. Dep’t of Transp., 851 A.2d 1014, 1017 (Pa. Cmwlth. 2004)
(citation omitted). Bidding instructions control whether bidding specifications are
considered mandatory or waivable. See id. (noting agency removed any discretion
it had to waive certain submission errors by making the requirement in question
mandatory in the bidding instructions). Bids that fail to conform to all mandatory
requirements and criteria contained in an invitation for bids are non-responsive to
the invitation.7
               In the instant matter, the Solicitation’s original invitation for bids
explicitly stated that the invitation for bids included all documents attached to the
invitation or incorporated by reference, as well as later-added addenda.                         See
Invitation for Bid 35-140603 at 1. Therefore, the information and requirements
contained in the Advertisement and posted on the PA eMarketplace website form
part of the Solicitation’s requirements/bid evaluation criteria. The Advertisement
provided, in bold print:

               Responses to this bid will only be accepted
               electronically.

Advertisement (emphasis in original); see also F.F. 4. On the very next line, also in
bold print, the Advertisement further provided:


               You             must               go            to
               http://www.pasupplierportal.state.pa.us to complete
               this bid.



       7
         The Commonwealth Procurement Code defines a “responsive bid” as “a bid which
conforms in all material respects to the requirements and criteria in the invitation for bids.” 62 Pa.
C.S. § 103.
                                                  5
Id.; see also F.F. 5. Accordingly, in addition to requiring electronic submission, the
Solicitation specified the exact electronic submission method prospective
contractors would need to employ to properly electronically submit their bids. Id.
The use of the definite and unambiguous language “only” and “must” made the PA
Supplier Portal use submission requirement mandatory and thus non-waivable. 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. 8




                                             __________________________________
                                             CHRISTINE FIZZANO CANNON, Judge




       8
          Given our determinations that (1) electronic submission via the PA Supplier Portal
submission was mandatory, and (2) that DEP did not err by rejecting CCS’s bid submission as
non-responsive, this Court need not address CCS’s further argument discussing the materiality of
CCS’s defect and the underlying merits of its bid submission for the Solicitation. See CCS’s Brief
at 10-13.
                                                6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Center for Climate Strategies, Inc.,      :
                   Petitioner             :
                                          :
             v.                           :
                                          :
Department of Environmental               :
Protection,                               :   No. 594 C.D. 2017
                 Respondent               :


                                       ORDER


             AND NOW, this 24th day of September, 2018, the April 28, 2017 final
determination of the Commonwealth of Pennsylvania, Department of Environmental
Protection is AFFIRMED.




                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge
