Bureau Veritas North America, Inc. v. Departmnet of Transportation
127 A.3d 871
| Pa. Commw. Ct. | 2015Background
- In July 2014 DOT advertised four fabricated structural steel plant inspection contracts; five firms (including Bureau Veritas North America, Inc. — BV) submitted Statements of Interest.
- DOT published final rankings on November 13, 2014, showing BV ranked fifth overall and second for each contract; BV became aware of the rankings that day.
- BV attended a debriefing on November 18, 2014. BV emailed a protest on November 20, 2014 (the seventh day after notice), but DOT’s server rejected the message because the attachment was a .ZIP file; BV resubmitted in a different format on November 21, 2014 and DOT docketed the protest that day.
- The Deputy Secretary issued a determination dismissing BV’s protest as untimely and denied nunc pro tunc relief; BV appealed to the Commonwealth Court.
- The court held the seven‑day filing period began when the rankings were published (Nov. 13) and that filing is measured by agency receipt, not when sent, so BV’s protest was received after the deadline.
- The court reversed the Secretary’s refusal to grant nunc pro tunc relief, finding extraordinary non‑negligent circumstances (DOT’s undisclosed .ZIP restriction and failure‑of‑delivery notice) and remanded for consideration of the protest on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the 7‑day Procurement Code protest period begin? | BV: Period did not begin until later (argued debriefing/award context); relied on Omnicare. | DOT: Period began when final rankings were published (Nov. 13). | Held: Period began on publication of rankings; BV knew or should have known on Nov. 13. |
| Is an attempted but rejected email transmission a filing? | BV: Sending email on Nov. 20 should count as timely filing. | DOT: Filing occurs when agency receives the protest; BV’s email was not received until Nov. 21. | Held: Filing is the date received by the agency; unsuccessful transmission is not filing. |
| May a Procurement Code protest be accepted nunc pro tunc? | BV: Even if untimely, relief should be allowed due to extraordinary circumstances. | DOT: Procurement Code does not permit nunc pro tunc and BV failed to show extraordinary circumstances. | Held: Nunc pro tunc relief is available in equity; DOT erred in denying it here. |
| Did BV meet the standards for nunc pro tunc relief? | BV: Rejection due to DOT’s undisclosed .ZIP restriction was extraordinary, BV promptly cured and filed next day, and DOT suffered no prejudice. | DOT: No extraordinary circumstance; procedural rules bar relief. | Held: BV satisfied the three‑part test (extraordinary non‑negligent cause, prompt filing after learning of delay, no prejudice); grant nunc pro tunc and remand. |
Key Cases Cited
- Janeway Truck & Trailer Recovery v. Pennsylvania Turnpike Commission, 16 A.3d 551 (Pa. Cmwlth.) (strict enforcement of Procurement Code deadlines)
- Firetree, Ltd. v. Department of Corrections, 3 A.3d 762 (Pa. Cmwlth.) (filing date is date received; debriefing does not delay deadline)
- Omnicare, Inc. v. Department of Public Welfare, 68 A.3d 20 (Pa. Cmwlth.) (equitable considerations can affect timeliness where disclosure timing matters)
- Roman‑Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286 (Pa. Cmwlth.) (unsuccessful electronic transmission does not itself constitute filing)
- Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa.) (standards for nunc pro tunc relief)
- Union Electric Corp. v. Board of Property Assessment, Appeals & Review, 746 A.2d 581 (Pa.) (extraordinary circumstances can excuse untimely filings)