Bid Protest for Allegedly Evaluating Bids That Were Not Enumerated In the Request for Proposal

In Common Sense Adoption Services v. Department of Public Welfare, 799 A.2d 225 (Pa. Cmwlth. 2002), the disappointed bidder filed a bid protest contending that the contracting agency's evaluation committee improperly considered two factors in evaluating bids that were not enumerated in the request for proposal. Specifically, the disappointed bidder objected to the evaluation committee considering an audit report of the contractor who had previously performed the contract that was now subject to bid. The Court agreed with the Department of Public Welfare, the contracting agency, that such protest was untimely because the audit report was distributed to all potential bidders on January 21, 2000, as part of materials supplied following a pre-proposal conference and the Department's handbook specified that such answers constituted a formal amendment to the request for proposal. The Court agreed with the Department that once the audit report became a formal amendment to the request for proposal, the disappointed bidder had seven days from the time it received the information to file a protest because at that point it knew or should have known of the facts giving rise to the protest. Thus, since the disappointed bidder failed to file his protest within seven days of receiving such material, the Court concluded that his bid was untimely.