In a per curiam decision, the Supreme Court of Pennsylvania last month rejected a bid protest brought by an electrical contractor arising out of the award of a $20 million contract for a new 14-story, Ewing Cole-designed Family Court building in center city Philadelphia (pictured). Two justices filed dissenting opinions (both of which are available at 2011 WL 2507091 and were filed on June 24). Although there is little in the way of novel green building legal precedent in either dissent, the decision is notable for a number of key reasons that we have discussed previously here at GRELJ in the context of public contracts.
Back in January, the contractor (Hampton Technologies, Inc.) filed an emergency application for a stay of the Pennsylvania Department of General Services’ final determination denying its protest of the award of an electrical contract to another contractor (which was an intervenor in the proceeding) even though Hampton was the lowest bidder. After the award, DGS told Hampton that it received “weak” scores in certain evaluative categories. But DGS refused to provide the detailed score sheets used in the determination. So Hampton proceeded to file the protest in writing under the applicable Pennsylvania statute.
In its protest, Hampton claimed that DGS inappropriately considered each of the bidders’ “experience with LEED certification” and alleged that “the factor was not included in the solicitation criteria of the RFP for the Family Court Project.” Hampton argued that any award based on LEED-related criteria would therefore be arbitrary and capricious.
In March, DGS rejected the bid protest. It determined that the winning bidder had, in fact, earned the highest technical score in its response to the RFP. It also specifically addressed Hampton’s claim that it had improperly considered the bidders’ LEED-related expertise, noting that an appendix to the RFP “specifically referenced LEED experience in two categories worth 21 of the potential 400 points.”
The reasons why the dissenting justices would have granted the emergency stay were unrelated to the LEED-related issues (and had to do with questions about the winning bidder’s licensing status). But the protest itself demonstrates how LEED- and green building-related requirements are winding their way into RFPs and other contracting guidelines. For project teams, it also emphasizes the increasing importance in accurately presenting green building credentials in RFP responses, particularly as federal, state, and local government entities continue to require third-party certification for public projects.