M. Regester, President Regester's Heating and Air Conditioning, LLC v. Dept. of Military and Veterans Affairs
2344 C.D. 2015
| Pa. Commw. Ct. | Oct 31, 2016Background
- 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.
Issues
| 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. |
Key Cases Cited
- 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)