Public Consulting Group, LLC v. DHS ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Public Consulting Group, LLC, :
Petitioner :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Human Services, : No. 850 C.D. 2022
Respondent : Submitted: March 31, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 8, 2023
Public Consulting Group, LLC (PCG) petitions this Court for review of
the Commonwealth of Pennsylvania (Commonwealth), Department of Human
Services’ (Department) July 27, 2022 Final Agency Determination denying PCG’s
bid protest (Protest). PCG presents two issues for this Court’s review: (1) whether
the Department’s Bureau of Financial Operations, Office of Administration’s
Director (Director) acted in an arbitrary or capricious manner, abused her discretion,
and/or acted contrary to law in concluding that PCG’s Protest was untimely; and (2)
whether the Director acted in an arbitrary or capricious manner, abused her
discretion, and/or acted contrary to law in affirming the Department’s decision that
PCG’s proposal was untimely. After review, this Court affirms.
On March 17, 2022, the Department issued a Request for Proposals
(RFP) seeking to procure the use of an online system for the School-Based ACCESS
Program,1 along with associated services to operate and maintain the system. The
RFP contained four mandatory responsiveness requirements. The first mandatory
requirement was that a proposal must be timely submitted by, and timely received
from, an offeror. The RFP required that all electronic proposals be uploaded to the
Commonwealth’s JAGGAER2 system portal by May 3, 2022, at 12:00 p.m.3 On
April 30, 2022, the Department sent PCG an email reminder of the proposal
submission deadline. PCG uploaded documents to the JAGGAER system on May
2 and May 3, 2022.
PCG modified questions in the JAGGAER system between 11:52 a.m.
and 11:59 a.m. on May 3, 2022. PCG last modified its answer to RFP Question 1.5.1
at 11:59:48 a.m. The JAGGAER system did not record that PCG completed the
Review and Submit page for its proposal submission before 12:00 p.m. on May 3,
2022. Thus, the JAGGAER system did not receive PCG’s submission before the
event closure at 12:00 p.m. on May 3, 2022. PCG staff member Jennifer Taylor
(Taylor) emailed the Department’s Issuing Officer Ross Bowman (Bowman) on
May 3, 2022, at 3:11 p.m., requesting confirmation of PCG’s proposal submission.
On May 4, 2022, Bowman replied to Taylor’s email, stating that he did
not receive PCG’s submission in JAGGAER, and that if she had a technical issue,
1
“The School[-]Based ACCESS Program [] is a program that allows school districts and
intermediate units to receive reimbursement through Medicaid for medical/mental health-related
services that are provided by health care professionals to students with an [individualized
education program] that are enrolled in the [Pennsylvania] Medical Assistance program.”
https://www.philasd.org/treasury/divisions-of-special-finance/access (last visited Aug. 7, 2023).
2
JAGGAER is an all-in-one software platform which provides Cloud-based business
automation technology for business spend management. See www.jaggaer.com (last visited
Aug.7, 2023).
3
An offeror must complete the Review and Submit page on the JAGGAER portal to
electronically submit a proposal. When an offeror selects the Submit Response button, the
Supplier Response log displays Review and Submit, Submit Response, and Submitted for the
offeror’s recorded actions. Once a proposal is successfully submitted, the offeror will receive a
confirmation message with summary details of the event.
2
she should contact JAGGAER Support. Bowman further stated that, at that point,
he could only accept a submission if PCG could prove that it had attempted
submission before the deadline, that the failure to submit was the result of a technical
issue, and that the proposal had not changed since the attempted submission. PCG
opened a case with JAGGAER Support concerning PCG’s response not being
submitted.
On May 5, 2022, PCG Manager Peter Marshall (Marshall) contacted
Bowman about PCG’s proposal submission. Bowman informed Marshall that the
proposal was not submitted successfully in the JAGGAER system and, thus, was not
available for the Department to view or download. Bowman reiterated that, due to
the RFP’s mandatory responsiveness requirements, in order to consider the proposal
for submission, PCG had to supply additional information; namely, proof of
submission before the deadline, evidence of a technical issue, and no change in the
proposal after the submission deadline.
Bowman confirmed that the JAGGAER system showed PCG was
working in the JAGGAER system when the event closed, and that PCG had not
completed the final Review and Submit step prior to the closing of the event. PCG
provided the Department with screenshots showing that PCG uploaded documents,
but did not provide confirmation of its receipt in the JAGGAER system.
The Department’s procurement staff verified with the Department of
General Services staff that there were no JAGGAER system issues on May 3, 2022,
that PCG was working in the JAGGAER system at the time the solicitation closed,
that the supplier response log shows when Review and Submit is completed with a
response, and that once an event closes, the Review and Submit button becomes
unavailable.
On May 13, 2022, PCG filed its Protest. On May 27, 2022, the
Department issued a response to PCG. On June 3, 2022, PCG filed a reply to the
3
Department’s response.4 On July 27, 2022, the Director denied PCG’s Protest,
concluding that it was untimely, but even if it was timely, the Department did not
err by rejecting PCG’s proposal. PCG appealed to this Court.5
PCG first argues that the Director acted in an arbitrary or capricious
manner, abused her discretion, and/or acted contrary to law in concluding that PCG’s
Protest was untimely. Specifically, PCG contends that it filed its Protest two days
after it knew or should have known that the Department rejected its proposal. PCG
asserts that the Department left open whether it would accept or reject PCG’s
proposal; thus, PCG did not learn until May 11, 2022, when the Department
informed PCG that no known technical issue had prevented PCG’s proposal from
being submitted, that the Department was rejecting its proposal. PCG claims that it
filed its Protest two days later, on May 13, 2022. The Department rejoins that PCG
knew on May 4, 2022, that timely receipt was a mandatory requirement of the RFP,
and that the Department had not received PCG’s proposal, yet PCG did not file its
protest until May 13, 2022.
Initially, Section 1711.1(a) of the Commonwealth Procurement Code
(Code) provides:
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 [S]ection 521 [of the Code] (relating to cancellation of
invitations for bids or requests for proposals), may protest
to the head of the purchasing agency in writing.
4
PCG did not request an evidentiary hearing in either its initial Protest or its reply.
5
“This Court’s scope of review of the Director’s final determination is limited to
considering ‘whether the determination of the [Department] [was] arbitrary and capricious, an
abuse of discretion[,] or contrary to law.’” KPMG LLP v. Dep’t of Hum. Servs., 276 A.3d 308,
313 n.4 (Pa. Cmwlth. 2022) (quoting JPay, Inc. v. Dep’t of Corr., 89 A.3d 756, 761 n.2 (Pa.
Cmwlth. 2014)).
4
62 Pa.C.S. § 1711.1(a). Significantly, Section 1711.1(b) of the Code mandates:
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. If the
protestant is a prospective bidder or offeror, a protest shall
be filed with the head of the purchasing agency prior to the
bid opening time or the proposal receipt date. If a bidder
or offeror, a prospective bidder or offeror or a prospective
contractor fails to file a protest or files an untimely protest,
the bidder or offeror, the prospective bidder or offeror or
the prospective contractor shall be deemed to have waived
its right to protest the solicitation or award of the contract
in any forum. Untimely filed protests shall be
disregarded by the purchasing agency.
62 Pa.C.S. § 1711.1(b) (emphasis added).
This Court has explained:
Where the protest challenges a term or provision of the
invitation for bids or request for proposals or the issue that
it raises was apparent from the invitation for bids or
request for proposals, the offeror or bidder must file that
protest no later than seven days after it has notice of
that term or provision, despite the fact that no selection
or rejection of any bids or proposals has occurred.
Gateway Health Plan, Inc. v. Dep’t of Hum. Servs., 172 A.3d 700, 705 (Pa. Cmwlth.
2017) (emphasis added).
Here, Section 12 of the RFP stated:
To be considered for selection, the electronic submission
of an [o]fferor’s proposal must be uploaded to this website
on or before the time and date specified in the RFP
Calendar of Events Buyer Attachment . Offerors should
allow sufficient time for the electronic uploading of
documents within this site. Hard copies of the completed
Corporate and Key Personnel Reference Questionnaires
5
need to arrive at the Issuing Office by the date and time
specified in the RFP Calendar of Events [Buyer
Attachment]. [The Department] will not accept
submission of these reference questionnaires via email or
facsimile transmission. [The Department] will reject any
late proposals.
Reproduced Record (R.R.) at 23a (underline emphasis added). Further, Section 32
of the RFP instructed, in relevant part: “Mandatory Responsiveness Requirements.
To be eligible for evaluation and selection, a proposal must: A. Be timely received
from and timely submitted by an [o]fferor (see Section 12 [of the RFP])[.]” R.R.
at 28a (emphasis added).
According to the RFP’s “CALENDAR OF EVENTS [BUYER]
ATTACHMENT[,]” ‘[t]he electronic proposal must be submitted within this site and
reference questionnaire forms should be received by the Issuing Office at RA-
PWRFPQUESTIONS@PA.GOV” by “Offerors” on “May 3, 2022[,] 12:00 P[.]M[.]
EST[.]” R.R. at 33a (underline emphasis added).
On May 4, 2022, in response to an email from Taylor asking for
confirmation of receipt of PCG’s proposal, Bowman expressly stated:
I did not receive [PCG’s] submission in JAGGAER. If
you had a technical issue, please contact JAGGAER
Support at + 1 (800) 233-1121. I can only accept your
submission at this point if you are able to provide proof
that you attempted submission prior to the deadline, that
the failure to submit was the result of a technical issue, and
that the proposal has not changed since attempted
submission.
R.R. at 42a (emphasis added). Consequently, PCG was aware on May 4, 2022, that
its proposal was not “timely received from and timely submitted” as required by
Section 32 of the RFP. R.R. at 32a. Because the proposal’s timeliness “was apparent
from the . . . [RFP,]” PCG had “seven days after it ha[d] notice of that term or
provision” to file its Protest. Gateway, 172 A.3d at 705. Thus, PCG had until May
6
11, 2022, to file its Protest. Given that PCG filed its Protest on May 13, 2022, the
Department properly concluded that it was untimely.
Even if PCG’s bid protest was timely filed, because the JAGGAER
system did not receive PCG’s submission before the deadline, and PCG was
“[un]able to provide proof that [it] attempted submission prior to the deadline, that
the failure to submit was the result of a technical issue, and that the proposal ha[d]
not changed since attempted submission[,]” the Director properly affirmed the
Department’s ruling that PCG’s proposal was untimely. R.R. at 42a; see also id. at
38a (“if you are unable to demonstrate a technical error in the JAGGAER system
that prevented completion of this final step, then [the Department] must reject the
proposal”); id. at 35a (“there were no known technical issues with JAGGAER at the
time”).
For all of the above reasons, the Department’s Final Agency
Determination is affirmed.
_________________________________
ANNE E. COVEY, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Public Consulting Group, LLC, :
Petitioner :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Human Services, : No. 850 C.D. 2022
Respondent :
ORDER
AND NOW, this 8th day of August, 2023, the Commonwealth of
Pennsylvania, Department of Human Services’ July 27, 2022 Final Agency
Determination is affirmed.
_________________________________
ANNE E. COVEY, Judge