WILLIAMSPORT – Penn State University contends that its request-for-proposal (RFP) rights to secure a new multimedia contract are being impeded and/or violated by its current and longtime provider of such content.
The Pennsylvania State University of University Park filed suit in the U.S. District Court for the Middle District of Pennsylvania on Dec. 5 versus Learfield Communications, LLC, of Dallas, Texas.
The parties have been in a contractual relationship for over 20 years and Penn State’s current grant of multimedia rights to Learfield runs through May 31, 2024.
“On Dec. 6, 2022, plaintiff sent out the RFP solicitation for Intercollegiate Athletics Multimedia Rights. The RFP sought proposals to provide multimedia rights partnerships beginning on June 1, 2024, after expiration of the current contractual term with Learfield for similar services. The RFP required proposals addressing seven items of interest to Penn State to be submitted by Wednesday, Dec. 12, 2022, at 5 p.m. EST via email to an employee of the Penn State Procurement Services Office,” the suit states.
“The prerequisites outline Penn State’s rights in the RFP process, including the rights to: A) Make all decisions regarding this sourcing event, including, without limitation, the right to decide whether an event response does or does not substantially comply with the requirements of this sourcing event; B) Accept, reject or negotiate modifications in any terms of supplier’s event response or any parts thereof; C) Waive any informalities; D) Accept or reject any or all event responses received; E) Renegotiate/rebid the equipment/products/services listed at any time if determined to be in the in the best interest of the University; F) Close an event early, postpone event opening or cancel the event for its own convenience; G) Negotiate with more than one supplier concurrently; and H) Use any or all concepts presented in any reply to the event.”
The suit adds that any RFP candidate “may protest the solicitation or award of a contract for violations of Penn State’s procurement policies or of laws and regulations governing Penn State’s procurement activities” and that in order to be considered, “all protests must be in writing and filed with and received by Penn State, not more than five business days following the date of issuance of Penn State’s notice of intent to award or notice of award with the contact below.”
The University added that “protests received by Penn State after this date will be returned to the sender and failure to timely file the bid protest shall constitute grounds for Penn State to deny the bid protest without further consideration of the grounds stated therein.”
“On Nov. 28, 2023, Learfield’s Chief Legal Officer, John H. Raleigh, sent a letter to Penn State protesting Penn State’s intent to award a contract. Learfield’s Protest Letter demands that Penn State provide the following related to the selected bidder: ‘proposal (including financial offer), the categories scored by the University, the score sheets for each evaluator, and any and all emails or other documents related to the RFP’. Learfield’s Protest Letter asserts that its right to information regarding the selected bidder’s proposal is grounded in ‘black letter procurement law,” the suit says.
“Learfield’s letter generally refers to ‘Section 1711.1 of the Pennsylvania Code’, ‘Pennsylvania’s Right to Know Law’, ‘the RFP’ and ‘PSU’s Procurement Policies’. Learfield’s letter also asserts that Penn State ‘is prohibited under the [sic] Pennsylvania state law from entering into a contract’ with the selected bidder ‘or taking any further steps to award the rights that are covered by the RFP.”
Raleigh then sent a second letter to the University on Dec. 4, which demanded the University “must immediately institute a complete stay of this procurement, which includes entering into or implementing a contract with [the selected bidder], or any other entity, resulting from this RFP” – despite the RFP process not permitting supplemental letters or for bidders to seek a stay of the process.
In response, Penn State found no merit to the factual or legal assertions set forth in Learfield’s protest and made the decision to reject Learfield’s protest and supplemental protest – then communicated that decision to Learfield by letter and secured an agreement with its soon-to-be new provider at that same time.
“Learfield’s protest letter, supplemental protest letter, and its request for information present a case of actual controversy as required under the Declaratory Judgments Act. Specifically, Learfield is demanding access to the requested information currently, which information Penn State is not legally obligated to provide. Relatedly, Learfield is asserting that Penn State is prohibited under Pennsylvania law from finalizing its RFP process and contracting with the selected bidder. Learfield’s assertions present precisely the sort of definite and concrete dispute related to the parties’ legal relations and interests that the Declaratory Judgments Act was enacted to address. Resolution of these issues now by this Court will enable the parties to move forward with next steps following the RFP process with certainty as to their respective legal rights and obligations,” the suit says.
“The University will suffer future harm if prohibited from proceeding with the selected bidder in connection with the rights covered under the RFP. A material term of any media rights partnership is the ramp-up period in which media partners negotiate key sponsorships prior to the start of the contract term. Commencement of the contract term in this instance is June 1, 2024. If prohibited from facilitating the selected bidder’s ramp-up time, the University faces a substantial likelihood of injury – including but not limited to, a breach of contract action from the selected bidder, potential loss of millions of dollars in sponsorship agreements, and damages arising from the inability to have sponsors secured for the upcoming academic year and related athletics season.”
For two counts of declaratory judgment, the plaintiff is seeking the following relief:
• A declaratory judgment that Learfield is not entitled to the requested information pursuant to Pennsylvania public procurement law, the Pennsylvania Right-to-Know Law or the University’s RFP prerequisites;
• A declaratory judgment that Penn State is not prohibited under Pennsylvania public procurement law or its RFP prerequisites from finalizing its RFP process and contracting with the selected bidder;
• A declaratory judgment that Learfield is not entitled to further process or disclosures pursuant to the RFP and its prerequisites;
• A declaratory judgment that Learfield is not entitled to further process or disclosures pursuant to the Pennsylvania Procurement Code;
• A declaratory judgment that Learfield is not entitled to further process or disclosures pursuant to the Pennsylvania Right-to-Know Law; and
• An order providing such other relief as the Court deems just and proper.
The plaintiff is represented by Jason W. Gordon, Jeffrey M. Weimer and Mariah H. McGrogan of Reed Smith, in Chicago, Ill. and Pittsburgh.
The defendant has not yet obtained legal counsel.
U.S. District Court for the Middle District of Pennsylvania case 4:23-cv-02009
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com