BUREAU VERITAS NORTH AMERICA, INC., Petitioner v. DEPARTMENT OF TRANSPORTATION, Respondent.
Commonwealth Court of Pennsylvania.
Decided Nov. 3, 2015.
Reargument Denied Dec. 17, 2015.
Argued Oct. 5, 2015.
Angela N. Rainey, Assistant Counsel, Harrisburg, for respondent.
BEFORE: RENÉE COHN JUBELIRER, Judge, and PATRICIA A. McCULLOUGH, Judge, and JAMES GARDNER COLINS, Senior Judge.
OPINION BY Senior Judge JAMES GARDNER COLINS.
Bureau Veritas North America, Inc. (BV) petitions for review of a final determination of the Secretary (Secretary) of the Department of Transportation (DOT) denying as untimely BV‘s protest concerning four inspection contracts on which it had submitted a Statement of Interest (SOI). For the reasons that follow, we conclude that the Secretary correctly held that the protest was not filed within the seven-day time limit imposed by Section 1711.1(b) of the Commonwealth Procurement Code (Procurement Code),
In July 2014, DOT advertised four fabricated structural steel plant inspection contracts. (Record Item (R. Item) 10, Final Determination at 1; R. Item 6, Reproduced Record, (R.R.) at 21a-36a.) Five firms, including BV, submitted SOI in response to this advertisement. (R. Item 10, Final Determination at 2; R. Item 6 Advertisement for Inspection Contracts, R.R. at 56a.) On November 13, 2014, DOT published its final rankings of the five firms that submitted SOI. (R. Item 10, Final Determination at 2; R. Item 6 Bracken Certification, R.R. at 56a ¶¶ 10-11.) These final rankings ranked BV as fifth overall and second with respect to each of the four contracts. (R. Item 10, Final Determination at 2; R. Item 6 BV Final Ranking for Agreement E03236, Bracken Certification & Harter Certification, R.R. at 50a-53a, 56a ¶ 9, 58a ¶ 2.)
BV learned of the final rankings when they were published on November 13, 2014. (R. Item 9 BV Reply in Support of Protest & Rzonca Certification, R.R. at 81a, 89a ¶ 2.) On November 14, 2014 in response to an inquiry from BV, a DOT Contract & Consultant Agreement Engineer sent BV the following email:
I spoke with Michele Harter from Central Office about the four referenced agreements that your firm was ranked # 2. There is no formal bid protest process for consultant agreements. However, you can request a debriefing meeting be scheduled with the selection team. Since these are all central office agreements and not District 11, you can email or call Mr. Joseph Bracken ... and request a meeting. If I can assist you any further, please do not hesitate to call me.
(R. Item 9 11/14/14 DOT email, R.R. at 95a.) BV later that day sent the following response to DOT:
Thank you for your e-mail.
By copy, I am forwarding this on to appropriate BVNA staff. Also, thanks again for directing my inquiry to the other PennDOT representatives and their assistance in provided [sic] us with direction to the Pennsylvania Procurement Handbook and Title 62—Procurement—Commonwealth Procurement Code. This information is also being reviewed for applicability to this situation. BVNA had previously contacted Mr. Bracken and there is a Debriefing meeting scheduled for next Tuesday.
(R. Item 9 11/14/14 BV email, R.R. at 94a.) On November 18, 2014, DOT conducted a debriefing meeting with BV. (R. Item 10, Final Determination at 2; R. Item 6 Bracken Certification, R.R. at 56a ¶ 13; R. Item 9 Rzonca Certification, R.R. at 89a ¶ 4.)
BV sent a protest concerning the four contracts to DOT by regular mail and email on November 20, 2014, the seventh day after the publication of the final rankings. (R. Item 3, BV Protest, R.R. at 9a-10a; R. Item 9 Rzonca Certification, R.R. at 89a-90a ¶¶ 5, 7.) BV‘s email of its protest was sent at 6:33 p.m. and was rejected by DOT‘s computer server. (R. Item 10, Final Determination at 2; R. Item 9 Rzonca Certification & Email Delivery Failure Report, R.R. at 90a ¶¶ 7-8, 92a.) DOT‘s Delivery Failure Report notifying BV of the rejection did not explain the reason or give any information on how the email could be successfully resent, stating only:
Delivery Failure Report
Your message: Protest of Procurement Decision and Request for Reconsideration—Bureau Veritas
was not delivered to: Ra-penndotexecutiveoffices@pa.gov
because: 5.x.0—Message bounced by administrator (delivery attempts: 0) What should you do?
You can resend the undeliverable document to the recipients listed above by choosing the Resend button or the Resend command on the Actions menu.
Once you have resent the document you may delete this Delivery Failure Report.
If resending the document is not successful you will receive a new failure report.
Unless you receive other Delivery Failure Reports, the document was successfully delivered to all other recipients.
Routing path
MTAAmerica2/USA/VERITAS,
HUB2America1/USA/VERITAS,
AMEMAIL15/SRV/VERITAS
(R. Item 9 Email Delivery Failure Report, R.R. at 92a) (emphasis in original).
On November 21, 2014, BV learned that the DOT server rejected the email because it was in a .ZIP file format. (R. Item 9 Rzonca Certification, R.R. at 90a ¶ 8.) BV promptly changed the file format and successfully resent the protest to DOT by email. (Id.) DOT received and docketed the protest on November 21, 2014, eight days after the November 13, 2014 publication of the final rankings. (R. Item 10, Final Determination at 2; R. Item 6 Bracken Certification, R.R. at 56a ¶ 14.) BV was not aware prior to November 21, 2014 that DOT‘s server rejects .ZIP file attachments. (R. Item 9 Rzonca Certification, R.R. at 90a ¶ 9.)
The Deputy Secretary of DOT issued a Memorandum on December 8, 2014, rejecting BV‘s protest both as untimely and on the merits, and lifting the stay of procurement on the grounds that the protest was without merit and that proceeding without delay was necessary because the existing inspection contracts would expire at the end of December 2014. (R. Item 10, Final Determination at 3; R. Item 7, Memorandum of Deputy Secretary, R.R. at 12a-13a.) On December 8, 2014, DOT also filed its response to the protest, asserting that the protest was both untimely and without merit. (R. Item 10, Final Determination at 3; R. Item 6 DOT Response to Protest, R.R. at 14a-19a.) BV in its Reply in Support of its Protest argued both that its protest was timely and that it should prevail on the merits of the protest. (R. Item 10, Final Determination at 3; R. Item 9 BV Reply in Support of Protest, R.R. at 80a-88a.) With respect to timeliness, BV argued that the Procurement Code‘s seven-day deadline did not begin to run on November 13, 2014, and that its email protest was filed on November 20, 2014, and also requested that it be granted leave to file the protest nunc pro tunc if the filing was not within the Procurement Code deadline. (R. Item 9 BV Reply in Support of Protest, R.R. at 80a-82a.)
On January 16, 2015, the Secretary issued a final determination dismissing BV‘s protest as untimely. The Secretary concluded that the seven-day deadline for filing a protest under the Procurement Code expired on November 20, 2014 and that BV‘s protest was not filed until November 21, 2014. (R. Item 10, Final Determination at 4-5.) The Secretary denied BV‘s request that its protest be allowed nunc pro tunc on the ground that the Procurement Code does not permit nunc pro tunc filing of protests and did not address whether BV had shown that it satisfied the standards for nunc pro tunc filing. (Id. at 4 n. 4.) The Secretary did not address the merits of the protest. BV timely appealed the Secretary‘s final determination to this
The issues in this appeal concern only the timeliness of BV‘s protest, not the merits of the protest. BV asserts three arguments: 1) that the seven-day period for filing a protest did not begin to run on November 13, 2014, when the final rankings for the inspection contracts were published; 2) that the unsuccessful emailing of its protest on November 20, 2014 constituted filing of the protest; and 3) that its protest should have been allowed nunc pro tunc.2 We reject BV‘s first two arguments, but conclude that BV has shown grounds for nunc pro tunc relief and that the Secretary therefore erred in not addressing the merits of its protest.
Section 1711.1(b) of the Procurement Code imposes the following time limitation on the filing of protests:
If the protestant is a bidder or offeror or a prospective contractor, the protest shall be filed with the head of the purchasing agency within seven days after the aggrieved bidder or offeror or prospective contractor knew or should have known of the facts giving rise to the protest except that in no event may a protest be filed later than seven days after the date the contract was awarded.
BV asserts that the period for filing its protest could not begin to run on November 13, 2014 because the final rankings did not constitute an award of the contracts. This argument is without merit. A protest is barred as untimely if it is filed more than seven days after the disappointed offeror or bidder knew or had notice of the grounds for the protest, regardless of when the contract was awarded and even if the protest was filed within seven days of the contract award. JPay, Inc. v. Department of Corrections, 89 A.3d 756, 764-65 (Pa. Cmwlth. 2014); Collinson, Inc. v. Department of Transportation, 959 A.2d 480, 484 (Pa. Cmwlth. 2008); Cummins v. Department of Transportation, 877 A.2d 550, 553-55 (Pa. Cmwlth. 2005). Nothing in Omnicare, Inc. v. Department1
Here, BV knew or should have known of the facts giving rise to its protest when the final rankings were published by DOT on November 13, 2014. BV knew of those rankings on that date. (R. Item 9 BV Reply in Support of Protest at 2, R.R. at 81a.) BV‘s protest was based on the information in the rankings and its own pre-existing knowledge. Four of the five items listed in BV‘s protest as bases to set aside DOT‘s action refer solely to the published rankings and information already known to BV concerning its performance on prior DOT contracts and the past evaluations it has received from DOT on those other contracts. (R. Item 3, BV Protest, R.R. at 9a-10a ¶¶ 1-2, 4-5.)3 The lone reference in the protest to information obtained later, at the November 18, 2014 debriefing, concerns DOT‘s underlying opinion concerning BV‘s past performance, not information concerning the other firms or their SOI or criteria used by DOT in the rankings. (Id., R.R. at 9a ¶ 3.) The fact that a debriefing occurred and additional information was obtained in that debriefing does not delay the seven-day period for filing a protest. Firetree, Ltd., 3 A.3d at 764 n. 8 (in determining when the seven days from notice of facts giving rise to a protest begins to run, “a disappointed bidder should not wait for a de-briefing before filing a protest“). Moreover, BV in its arguments to the Secretary characterized the protest as based on “the reasons for the rankings published by the Department‘s own website” and did not assert as a basis for the protest any fact learned by BV at the debriefing or at any time after the November 13, 2014 rankings. (R. Item 9 BV Reply in Support of Protest at 3-8, R.R. at 82a-87a.)
Indeed, BV did not contend below that it lacked notice of the grounds for its protest on November 13, 2014; rather it asserted
BV‘s argument that it filed its protest on November 20, 2014 likewise fails. In determining whether a protest is untimely under Section 1711.1(b) of the Procurement Code, the date that the protest is filed is the date that it was received by the agency, not the date that it was sent to the agency. Firetree, Ltd., 3 A.3d at 764; see also
BV cites no rule, regulation or decision of any court holding that unsuccessful electronic transmission constitutes the receipt or filing of a document. The authorities on which BV relies do not provide or hold that filing occurs at the time when an electronic transmission is rejected; rather they allow unsuccessful electronic transmission as basis for nunc pro tunc relief despite the fact that the document was not received and filed at the time of the failed transmission. See
BV has, however, shown that its protest should have been heard nunc pro tunc. A document filed with an administrative agency after the expiration of a jurisdictional deadline that would ordinarily bar its consideration can be accepted as filed nunc pro tunc where the filer shows that extraordinary circumstances caused the delay in filing. Union Electric Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 560 Pa. 481, 746 A.2d 581, 584 (2000); Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130, 1131 (1996); H.D. v. Department of Public Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000); Martin Media v. Pennsylvania Department of Transportation, 727 A.2d 140, 142 (Pa. Cmwlth. 1999). The fact that the Procurement Code does not specifically address and provide for such relief does not preclude allowance of a protest nunc pro tunc. Nunc pro tunc relief is an equitable exception to strict deadlines that by their terms absolutely bar untimely filings. Criss v. Wise, 566 Pa. 437, 781 A.2d 1156, 1159 (2001); Martin v. Department of Public Welfare, 99 Pa. Cmwlth. 345, 514 A.2d 204, 208-09 (1986). Equitable considerations apply to Procurement Code protests and can permit a protest that would otherwise be untimely. Omnicare, Inc., 68 A.3d at 24 (agency would be estopped from enforcing Procurement Code seven-day time limit if it had misrepresented the deadline for filing a protest); Firetree, Ltd., 3 A.3d at 764 n. 6 (although Procurement Code “requires the filing of a protest no later than seven days after the date of the contract award, not the date the award is posted on the DGS website ... , because section I-28 of the RFP may have misled bidders, we shall use the date that the awards were posted on the DGS website in determining whether Firetree‘s protest was untimely“).
The party seeking nunc pro tunc filing must show 1) that extraordinary circumstances, involving fraud or breakdown in the administrative process or non-negligent circumstances related to the party, its counsel or a third party, caused the untimeliness; 2) that it filed the document within a short time period after the deadline or date that it learned of the untimeliness; and 3) that the respondent will not suffer prejudice due to the delay. Cook, 671 A.2d at 1131; C.E. v. Department of Public Welfare, 97 A.3d 828, 832 (Pa. Cmwlth. 2014); H.D., 751 A.2d at 1219. BV has satisfied all of these requirements.
The rejection of BV‘s email protest constitutes extraordinary circumstances sufficient to warrant nunc pro tunc relief.5 BV emailed its protest to
DOT on November 20, 2014, before the expiration of the filing deadline. The fact that the email was sent at 6:33 p.m., after business hours, does not negate its timeliness. Absent a statute or regulation requiring that an electronic transmission be received by a particular time of day to be considered filed on that day, a document is timely filed if it is successfully electronically transmitted at any time before midnight of the filing deadline. Dumberth v. Unemployment Compensation Board of Review, 837 A.2d 678, 681-83 (Pa. Cmwlth. 2003) (en banc) (fax transmission successfully sent after business hours on last day of deadline was timely filed). DOT does not contend that it has any regulation requiring that protests or other filings be received by the close of business to be treated as filed on the day that they are actually received. Compare
BV had reason to believe that its timely email was a proper method of filing its protest. BV understood from its dealings with DOT that DOT permitted filing by email. (R. Item 9 Rzonca Certification, R.R. at 90a ¶ 6.) DOT does not contend that its regulations or the Procurement Code or any other applicable regulations or statutes prohibit or restrict the filing of Procurement Code protests by email or advise filers that they utilize email transmission at their own risk. Indeed, DOT admitted at oral argument that it accepts protests filed by email. This case thus stands in sharp contrast to the decisions where this Court has held that unsuccessful email filing did not constitute grounds for nunc pro tunc relief. See Roman-Hutchinson, 972 A.2d at 1289 (failure of email transmission did not constitute extraordinary circumstances because the agency‘s regulation expressly provided that “[a] party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed“) (quoting
While BV‘s email was rejected by DOT‘s server and was therefore not received by DOT on November 20, 2014, the rejection was due to a DOT formatting restriction, not to any error in address or any malfunction in BV‘s transmission. (R. Item 9 Rzonca Certification, R.R. at 90a ¶ 8.) BV had no notice of DOT‘s formatting restriction. BV was unaware that DOT‘s server does not accept .ZIP files. (Id. ¶ 9.) DOT does not contend that its regulations prescribe format requirements for email fil-
There is no dispute that BV satisfied the other two requirements for nunc pro tunc relief. BV inquired into the reasons for the rejection of its email and successfully resent and filed its protest by email on November 21, 2014, the next day, only one day after the deadline. (R. Item 9 Rzonca Certification, R.R. at 90a ¶ 8.) There is no claim by DOT that the one-day delay caused it any prejudice. To the contrary, the only arguments that DOT has asserted against BV‘s request for nunc pro tunc relief are the contentions that such relief cannot be granted in Procurement Code protests and that BV has not shown extraordinary circumstances. (Respondent‘s Br. at 24-27.)
Because the Secretary erred in denying BV‘s request for leave to file its protest nunc pro tunc, we reverse the Secretary‘s dismissal of the protest as untimely and remand this matter to the Secretary for consideration of the protest on the merits.6
ORDER
AND NOW, this 3rd day of November, 2015, the final determination of the Secretary of the Department of Transportation (Secretary) is REVERSED. This matter is REMANDED to the Secretary to consider Petitioner‘s protest on the merits. Petitioner‘s application requesting that the Court take judicial notice is DENIED.
Jurisdiction relinquished.
JAMES GARDNER COLINS
SENIOR JUDGE
Notes
- Despite supplying PennDOT a service with a performance that has always been rated as at least “excelling” (8-9 out of 10), BV received a numerical ranking tabulation less than that of a firm with no direct Fabricated Structural Steel Plant Inspection experience with PennDOT;
- The “Ranking Reasons” as posted in EQMS [sic] include: a) information garnered from outside the submitted SOI, b) incorrect information, c) a comparatively understated characterization of BV‘s demonstrated credentials, and d) a characterization of past performance that is inconsistent with PennDOT‘s documented evaluations;
- During an 11/19/14 Debriefing Meeting, PennDOT staff informed BV that there are concerns with aspects of BV‘s current level of service to PennDOT. We believe those concerns impacted the evaluation of our SOI. This directly contradicts the Selection Criteria that specifies [sic] that “the final ranking will be established directly from the statements of interest“.
- Furthermore, the weight of any such concerns would be inconsistent with the highly-rated formal performance reviews that BV has received for our current performance;
- By not selecting BV, PennDOT is needlessly dismissing decades of continuous and significant experience and expertise while incurring the transition costs associated with engaging a new firm that has not previously performed services under PennDOT‘s Fabricated Structural Steel Plant Inspection contract.