Pennsylvania

Key Agency(ies): The Department of General Services (DGS) is responsible for contracting for equipment, supplies and services, for executive agencies within the Commonwealth of Pennsylvania.

Key Statute: Purchasing is governed by the Commonwealth Procurement Code, which is codified in the Pennsylvania Consolidated Statutes (Pa. Cons. Stat.) at 62 Pa. Cons. Stat., Parts I & II.

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Key Regulations: Pennsylvania’s state procurement is largely handled through agency policy rather than formal regulations. DGS further implements procurement policy through its DGS Procurement Handbook. While not a regulation with the force of law, the Procurement Handbook provides a comprehensive overview of the guidelines, policies, and procedures governing procurement in Pennsylvania.

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Procurement Types/Highlights:

Competitive sealed bidding is the default method for most procurements of supplies services and construction. Agencies are also authorized under 62 Pa. Cons. Stat. § 513 to use an RFP process when factors other than price are required to be considered.

Pennsylvania allows for simplified procedures for purchases under specified dollar thresholds.  Under 62 Pa. Cons. Stat. § 514, DGS establishes the threshold for small purchases, which is currently $26,991 for most goods and services. Contracts under that threshold may be made with informal quotes or direct purchasing. 

Bid Protests:

Regs Governing Bid Protests:

• Bid protest procedures are governed by 62 Pa. Cons. Stat. § 1711.1.

Eligible Protesters:

• According to 62 Pa. Cons. Stat. § 1711.1, “[a] bidder or offeror, a prospective bidder or offeror or a prospective contractor that is aggrieved in connection with the solicitation or award of a contract, except as provided in section 521 (relating to cancellation of invitations for bids or requests for proposals), may protest to the head of the purchasing agency in writing.”

Timeliness Rules:

• Pre-award: must be filed with the head of the purchasing agency prior to the bid opening time or proposal receipt date.
• Post-award: must be filed with the head of the purchasing agency within seven days after offeror 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.

Protest Process:

• Within 15 days of receipt of a protest, the contracting officer may submit to the head of the purchasing agency and the protester a response to the protest, including any documents or information deemed relevant to the protest.
• The protester can respond within 10 days of the date of the response.
• The head of the purchasing agency or their designee shall review the protest and any response or reply and may request and review such additional documents or information they deem necessary to render a decision and may, at their sole discretion, conduct a hearing.
  • The head of the purchasing agency or their designee shall provide to the protester and the contracting officer a reasonable opportunity to review and address any additional documents or information deemed necessary by the head of the purchasing agency to render a decision.
• Protest Decision due within 60 days of receipt of the protest.
• Award (pre-award)/performance (post-award) are stayed pending a decision being issued unless a written determination is made to proceed by the head of the purchasing agency.

Appeals:

• Filed with the Commonwealth Court within 15 days of the mailing date of the final determination (protest decision).
• Can’t raise at Court new issues not raised at agency level.
• Must show that the purchasing agency’s protest determination was arbitrary, capricious, an abuse of discretion or contrary to law.
• If Court finds that the solicitation or award of a contract is contrary to law, then the remedy the court shall order is limited to canceling the solicitation or award and declaring void any resulting contract.

Claims: Claims in Pennsylvania are governed by 62 Pa. Cons. Stat. § 1712.1.

If a contractor believes it has a claim arising out of a state contract, they must first file a written claim with the agency’s contracting officer within six months of accrual of the claim. The contracting officer must review the claim and issue a final determination in writing within 120 days after receiving the claim. If the claim is denied, the contractor may appeal to the Pennsylvania Board of Claims. To do so, the contractor must file a statement of claims with the Board of Claims within 15 days of the mailing date of the contracting officer’s final decision.

The Board of Claims will then conduct a hearing for evidence to be presented by both the contractor and the agency. After the hearing, the Board will issue a written decision. Either party may then appeal the Board’s final decision to the Commonwealth Court. The Commonwealth Court will review the Board’s decision. The Court will review questions of law de novo, and will defer to findings of fact absent “substantial evidence.”

Suspension & Debarment: Suspension and debarment in Pennsylvania are governed by 62 Pa. Cons. Stat. § 531.

The head of a purchasing agency has authority to debar a contractor or vendor after providing notice and a reasonable opportunity to be heard. Decisions to debar must be based on “substantial evidence” of a cause for debarment. By statute, a debarment may last up to three years, suspensions may be imposed for up to 3 months.

Causes for debarment include convictions of criminal offenses including embezzlement, theft, forgery, bribery, falsification of records, and false statements. They also include contract violations or unethical conduct, including fraud, collusion, bid-rigging, antitrust violations, or chronically unsatisfactory performance on state contracts.

A debarred party may seek judicial review of their debarment by filing a petition in the Commonwealth Court.

Interesting/Distinctions: Pennsylvania’s Steel Products Procurement Act requires that any steel products used in state public works projects be made in the United States. Contractors on state projects must certify U.S. steel usage, and violations may lead to contract termination or other penalties.