Scientific Games International, Inc. v. Governor's Office of Administration
2013 Pa. Commw. LEXIS 405
| Pa. Commw. Ct. | 2013Background
- Pennsylvania sought proposals for a replacement Central Computer Control System (CCCS); DGS issued a 2010 RFP and later a cancelled procurement led to a 2012 RFP.
- SGI won the 2010 selection but execution was stayed and the 2010 award was later cancelled; litigation and Board claims stemming from the 2010 RFP remained pending.
- GOA issued the 2012 RFP; SGI and GTECH were the only offerors. SGI asked whether submitting a proposal would waive pending 2010 claims and was told it would not.
- DGS selected GTECH for negotiations under the 2012 RFP on April 19, 2013; SGI filed a protest on April 26, 2013 challenging that selection on three grounds (conflict with pending 2010 litigation, misuse of SGI’s confidential information by GTECH, and improper incumbency points).
- GOA dismissed SGI’s protest as untimely under the Procurement Code’s seven-day rule (file within seven days after the offeror knew or should have known the facts giving rise to the protest). SGI appealed; the court affirmed GOA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 62 Pa.C.S. § 1711.1(b) – when the seven-day clock runs | SGI: Not aggrieved until GTECH was selected (April 19, 2013); protest filed April 26, 2013 was timely | GOA/DGS: SGI knew or should have known facts giving rise to protest earlier (upon RFP issuance or proposal submission); seven-day period started then | Held: Protest untimely; seven-day period began when SGI knew or should have known the facts (at proposal submission or RFP issuance) |
| Whether pending 2010 litigation made SGI not aggrieved at proposal submission | SGI: Pending 2010 claims made outcome uncertain; it wasn’t aggrieved until selection occurred | GOA: 2012 RFP and potential award were the aggrieving events; SGI should have protested earlier | Held: Rejected SGI’s argument; possibility of award to others does not defer the seven-day rule |
| Use of confidential information / unfair competitive advantage by GTECH | SGI: GTECH received SGI’s 2010 proposal information via debriefing and RTKL and used it to gain advantage; should have been protested after RFP issuance | GTECH/GOA: Facts were known when 2012 RFP issued; protest period ran from then | Held: Ground was untimely because SGI knew facts at RFP issuance |
| Incumbency points for GTECH (existing vendor advantage) | SGI: GTECH improperly received incumbency points; challenge should relate to selection | GOA: SGI knew or should have known incumbency facts at RFP issuance | Held: Untimely; facts were known at issuance so seven-day clock ran then |
Key Cases Cited
- Cummins v. Department of Transportation, 877 A.2d 550 (Pa. Cmwlth. 2005) (seven-day protest period runs from when bidder knew or should have known facts underlying protest)
- Collinson v. Department of Transportation, 959 A.2d 480 (Pa. Cmwlth. 2008) (disappointed bidder must file challenge within statutory time when facts were knowable at advertising/issuance)
- Common Sense Adoption Services v. Department of Public Welfare, 799 A.2d 225 (Pa. Cmwlth. 2002) (challenge based on audit/formal amendment must be filed within seven days of receipt)
- Northwestern National Bank v. Commonwealth, 27 A.2d 20 (Pa. 1942) (elements and limits of equitable estoppel)