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Janeway Truck and Trailer Recovery, D/B/A Janeway Towing v. Pennsylvania Turnpike Commission

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


March 4, 2011

JANEWAY TRUCK AND TRAILER RECOVERY, D/B/A JANEWAY TOWING, PETITIONER
v.
PENNSYLVANIA TURNPIKE COMMISSION, : RESPONDENT :

The opinion of the court was delivered by: Honorable P. Kevin Brobson, Judge

Submitted: November 5, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENEE COHN JUBELIRER, Judge

OPINION BY JUDGE BROBSON

Petitioner Janeway Truck and Trailer Company d/b/a Janeway Towing (Janeway) petitions for review of a decision of Respondent Pennsylvania Turnpike Commission (Turnpike), which disregarded a bid protest as untimely. The matter before the Court is in the nature of a statutory appeal under Section 1711.1 of the Commonwealth Procurement Code (Code), 62 Pa. C.S. § 1711.1.*fn1 Janeway places two issues before the Court. First, Janeway claims that the Turnpike acted arbitrarily and/or capriciously, abused its discretion, or committed an error of law when it dismissed Janeway's bid protest as untimely. Second, Janeway claims that the Turnpike acted arbitrarily and/or capriciously, abused its discretion, or committed an error of law by not reaching the substantive merits of Janeway's bid protest. contract to EVB Towing instead of Janeway. Janeway points out that following the award to EVB Towing, it immediately sought a meeting with the Turnpike to discuss the award and tried to discern the Turnpike's reasons for awarding the contract to EVB Towing. The meeting, however, did not occur until April 21, 2010--more than seven (7) days after the award. Janeway, having been apprised of the Turnpike's reasoning for its decision, thereafter filed its protest on April 26, 2010.

In reaching this conclusion, we recognize that Section 1711.1(c) of the Code provides that "[a] protest shall state all grounds upon which the protestant asserts the solicitation or award of the contract was improper." This requirement would seem insurmountable where, as here, a disappointed offeror lacks all of the information necessary to evaluate the propriety of the agency's decision because the agency did not explain the reasons for its decision prior to the expiration of the abbreviated protest deadline. Indeed, there is nothing in the Code that expressly requires agencies of the Commonwealth to give any explanation for their contracting decision in advance of expiration of the protest deadline. We recognized this conundrum in Firetree and, for that reason, included the following language in the opinion:

Because of our disposition of this issue, we need not address whether Firetree filed its protest within seven days after it knew or should have known the facts giving rise to the protest. Even if we were to address the issue, we would determine that, to meet the seven-day requirement in the statute, a disappointed bidder should not wait for a de-briefing before filing a protest.

Firetree, 3 A.3d at 764 n.8 (emphasis added).

Here, at a minimum, Janeway knew on April 6, 2010, that it was an unsuccessful offeror. Under the Code, the seven-day clock to file a protest started to run on that date. To the extent Janeway wished to protest its non-selection, the Code unambiguously required Janeway to submit its protest no later than seven (7) days after the award to EVB Towing. Janeway did not file a protest within the deadline.*fn2

Accordingly, the Turnpike properly disregarded Janeway's late protest under the clear language of Section 1711.1(b) of the Code.*fn3

P. KEVIN BROBSON, Judge

Judge Butler did not participate in the decision in this case.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janeway Truck and Trailer Recovery, d/b/a Janeway Towing, : Petitioner : v. Pennsylvania Turnpike Commission, : Respondent :

No. 1001 C.D. 2010

ORDER

AND NOW, this 4th day of March, 2011, the decision of the Pennsylvania Turnpike Commission to disregard the Petitioner's protest as untimely is AFFIRMED.

P. KEVIN BROBSON, Judge


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