M. Regester, President Regester's Heating and Air Conditioning, LLC v. Dept. of Military and Veterans Affairs, 2344 C.D. 2015

The Department of Military and Veterans Affairs issued an ITB for on-call HVAC services at Fort Indiantown Gap; Regester and B&W were the only bidders.
ITB required the contractor to be certified in Siemens LMV 53 boilers and have a minimum of three years’ experience; it stated contractor "will directly perform all work" and that subcontracting "will not be authorized."
Department awarded the contract to B&W; Regester protested claiming B&W lacked certified employees at bid submission and relied on Mountainside Heating (Howell brothers) as a subcontractor.
Department procurement officials found B&W’s submission (certificates in the Howells’ names) met bid requirements, and later the Howells became B&W employees after award; the Deputy Secretary issued a final determination upholding the award.
Regester sought judicial review challenging (1) responsiveness/responsibility due to lack of certified employees and three years’ experience, and (2) denial of an evidentiary hearing; the court limited review to the agency record.

Issue	Regester's Argument	Department's Argument	Held
Was B&W a responsive/responsible bidder because it lacked certified employees at bid submission?	B&W’s certified personnel were subcontractors, not B&W employees at bid time; ITB forbids subcontracting.	The ITB language and record show B&W demonstrated capability; certificates in the Howells’ names satisfied requirements and Howells later became employees.	Held for Department: future-tense ITB language reasonably permits hiring before performance; certificates satisfied responsiveness.
Did B&W fail the ITB’s three‑years’ experience requirement?	B&W lacks three years’ working experience with Siemens LMV 53 boilers.	Department notes this issue was not raised before the Deputy Secretary and thus was waived; record lacks facts to resolve it.	Claim waived for failure to preserve at agency level; court refuses to consider it on appeal.
Was a hearing required on the protest (timing of hiring and factual conflicts)?	A hearing is necessary because facts (when Howells were hired) are disputed and material to responsiveness.	Hearing is discretionary; no disputed material facts affected the legal conclusion that certified employees were not required at bid submission.	Held: No hearing required; Deputy Secretary did not abuse discretion.

Arnold v. Workers’ Compensation Appeal Board (Lacour Painting, Inc.), 110 A.3d 1063 (Pa. Cmwlth. 2015) (issue-preservation principles for administrative appeals)
Wert v. Department of Transportation, Bureau of Driver Licensing, 821 A.2d 182 (Pa. Cmwlth. 2003) (new arguments on appeal allowed if related to preserved issue)
Doe-spun, Inc. v. Morgan, 502 A.2d 287 (Pa. Cmwlth. 1985) (permitting appellate arguments supportive of preserved issues)
Foster v. Mutual Fire, Marine and Inland Insurance Co., 676 A.2d 652 (Pa. 1996) (limits on raising new theories on appeal)
Fatzinger v. City of Allentown, 591 A.2d 369 (Pa. Cmwlth. 1991) (preservation and waiver doctrines in appeals)