Nos. 162 and 170 January Term, 1978, Appeals from the Order of the Commonwealth Court at No. 1192 C.D. 1976
Patrick W. Kittredge, David Gutin, Philadelphia, for appellant in No. 162 and for appellee in No. 170.
Donald J. Murphy, Deputy Atty. Gen., for appellees in Nos. 162 and 170.
Frank A. Sinon, R. Stephen Shibla, Harrisburg, for appellee in No. 162 and for appellant in No. 170.
Eagen, C. J, and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Larsen, J., files a dissenting opinion.
The instant controversy concerns the competitive bidding process and award of a contract for the supply of equipment
and technology to be used for the Daily Numbers Game operated by the Bureau of State Lotteries.
On February 19, 1976, the Bureau of State Lotteries issued a request for proposal, inviting companies to submit bids for a computerized daily numbers game. Appellant, American Totalisator Company, Inc., and intervenor-appellee, Control Data Corporation, were the only companies to submit bids. The request for proposal stated that the contract would be awarded in "conformity with the concept of the lowest responsible bidder," and further provided:
" Innovative Suggestions and Recommendations : The Bureau welcomes and invites innovative suggestions and recommendations from bidders who feel the operation of the proposed daily lottery can be improved. Such suggestion and recommendations may not be substituted for, but should be in addition to bid provisions required in this RFP. No bid will be disqualified or rejected for failure to submit such suggestions and recommendations. In the event that the evaluation committee determines that any such suggestion or recommendation is worth further exploration, all bidders will have an opportunity to conform their proposals in accordance with the revised provisions." (Emphasis added.)
On March 26, 1976, both American Totalisator and Control Data submitted technical proposals, which were reviewed by an evaluation committee.*fn1 To review said technical proposals, the committee divided its inquiry into eight areas: internal control systems, management reports capabilities, security, training, terminal, central computer facility, maintenance capabilities and general ability of company to perform. The committee found no significant disparity between the two proposals in six of the eight areas; however, in the areas of terminal and training, ...