The Pennsylvania Liquor Control Board (PLCB) is accepting bids for the purchase of certain expired restaurant liquor licenses as set forth in this Invitation for Bids #260317 (IFB) and in conformity with Section 470.3 of the Pennsylvania Liquor Code. 47 P.S. § 4-470.3.
This IFB is issued by the PLCB, Purchasing and Contract Administration Division, Room 316, Northwest Office Building, Harrisburg, PA 17124-0001; email: RA-LBLicenseAuction@pa.gov. Melinda John is the Issuing Officer and the sole point of contact at the PLCB for this IFB.
Questions regarding this IFB must be submitted via e-mail only, with the subject line entitled “IFB #260317 Questions” to the Issuing Officer, Melinda John, email: RA-LBLicenseAuction@pa.gov, no later than 12:00 P.M. EDT on Tuesday, September 27, 2016. Do not contact the Issuing Office by phone with any questions. Bidders shall not attempt to contact the Issuing Officer by any other means.
Until the results of this IFB are posted on the DGS website as set forth herein, no Bidder or agent on behalf of a Bidder shall address questions regarding this IFB to any other employee or agent of the PLCB. Violation of this requirement may constitute grounds for disqualification of the Bidder.
All questions received will be answered in writing, and such responses shall be posted to the Department of General Services (DGS) website at www.emarketplace.state.pa.usas an addendum to the IFB by 12:00 P.M. EDT on Wednesday, October 5, 2016.
All questions and official responses are considered an addendum to, and part of, this IFB. The PLCB shall not be bound by any verbal information, nor shall it be bound by any written information that is not either contained within the IFB or formally issued as an addendum by the Issuing Office. The Issuing Office does not consider questions to be a protest of the specifications or of the solicitation.
If the Issuing Office deems it necessary to revise any part of this IFB before the bid response date, the Issuing Office will post an addendum to the DGS website at www.emarketplace.state.pa.us. It is the Bidder’s responsibility to periodically check the website for any new information or addenda to the IFB.
Each license being auctioned has been assigned an auction number. Bidders may bid on one or more licenses; however, each PLCB Bid Sheet is specific to a particular license being auctioned. For example, if a Bidder wishes to bid on licenses # 1, 13 and 40, then Bidder must submit three separate bid packages.
Each bid package must include the required bid surety and the relevant PLCB Bid Sheet for each particular license, properly signed and properly sealed. Failure to include these required documents will render the bid non-responsive and will result in bid rejection. Bids may not be conditioned in any manner, nor may Bidders make any changes to the PLCB Bid Sheet.
Each sealed bid package must be prominently labeled on the outside of the envelope with “IFB #260317,” the auction number of the license, and the name of the bidding individual or legal entity. For example:
LICENSE # 13
J. Doe LLC IFB #260317
LICENSE # 40
J. Doe LLC IFB #260317
LICENSE # 1
J. Doe LLC
Bid amounts must be in whole dollar figures (example: $25,001.00). Any bid less than $25,000.00 will be rejected. 47 P.S. § 4-470.3(g).
Bids must be signed in ink by an official authorized to bind the Bidder to its provisions. Failure to sign and/or submit the PLCB Bid Sheet(s) (Attachments A #1-40) shall disqualify your bid(s) immediately.For this IFB, all elements of bids must remain valid for at least 240 days, including but not limited to bid amount and bid surety.
Bids must be hand carried or mailed (U.S. Postal service, Fed Ex., etc.) to:
Bids must be received on or before Thursday, October 27, 2016, no later than 12:00 P.M. EDT.
Bidders mailing bids should allow time to insure timely receipt of their bid. If a receipt is desired, send by U.S. Certified or Registered mail.
Each bid must be accompanied by a Certified Check, Cashier’s Check or Bid Bond in the amount of $5,000.00 payable to the Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board, as a bid guarantee. The bid surety of a selected Bidder will be forfeited as liquidated damages if the Bidder fails to comply with the terms of the IFB. See Specifications section below. Failure to include a $5,000.00 Cashier’s Check, Certified Check, or Bid Bond with each individual license bid shall disqualify the bid immediately.
Bidders may withdraw submitted bids by notifying the Issuing Officer by email at RA-LBLicenseAuction@pa.gov. Withdrawal emails must be received by the Issuing Officer no later than 10:00 a.m. EDT on Thursday, October 27, 2016. The subject line of the email shall be entitled “License Auction Bid Withdrawal,” followed by the assigned auction number of the license at issue; for example, “License Auction Bid Withdrawal License # 40.” If more than one license bid is to be withdrawn, the Bidder shall send one such email notification for each license bid to be withdrawn. Bid packages will be returned unopened to the Bidder for any bids withdrawn by the Bidder in conformity with this section and the PLCB will make no claim against the bid surety for such timely withdrawn bids.
BID OPENING AND BID TABULATIONS RESULTS
The Issuing Officer shall open bids starting at 9:00 a.m. EDT on Monday, October 31, 2016 in PA PUC Hearing Room #1 in the Commonwealth Keystone Building, 400 North Street, Harrisburg, PA. Bids will be opened in sequence starting with all bids for license #1 and continuing until all bids for all licenses have been opened. The bid opening shall be public; however, due to space constraints, it is requested that Bidders limit attendance to two persons per bidding party or entity. Attendance at the bid opening is optional and is not a requirement for participation in the IFB. In the event that bid opening is not completed by 5:00 p.m. EDT on Monday, October 31, 2016, the PLCB reserves the right to suspend the bid opening and to resume on Tuesday, November 1, 2016 at 9:00 a.m. EDT. If needed, the continuation of bid opening on Tuesday, November 1, 2016 will be held in PA PUC Hearing Room #5 in the Commonwealth Keystone Building, 400 North Street, Harrisburg, PA.
The PLCB will provisionally award each license auctioned to the qualified Bidder submitting the responsive bid having the highest bid amount. Such awards will be made via a formal Notice of Selection. In the event that the highest bid amount for any license is submitted by two or more qualified Bidders, the Issuing Officer shall notify each such Bidder of the tie via email, confirming the amount of the tie bids and the number of tied bids. The tied Bidders will each have the option to submit one best and final offer bid amount (BAFO) by responsive email to the Issuing Officer at RA-LBLicenseAuction@pa.gov, which email must be received by the Issuing Officer no later than 3:00 p.m. EDT/EST on the next business day.1 In the event of a further tie among BAFOs, the Issuing Officer will repeat the process until there is only one highest bid.
Once all bids have been opened, finalized and provisionally awarded as set forth above, full results of this IFB will be posted within two business days to the DGS website at http://www.emarketplace.state.pa.us/. Bid results do not confer any legal or contractual rights until a formal Notice of Selection has been issued by the Issuing Officer. Any additional information will require a Right to Know request, instructions for which may be found at http://www.lcb.state.pa.us/cons/groups/externalaffairs/documents/form/003274.pdf.
REJECTION OF INVITATION FOR BID SUBMISSIONS
The PLCB reserves the unqualified right to reject any and/or all bids received as a result of this IFB, to waive technical defects or any informality in bids, and to accept or reject any part of any bid if, in its sole judgment, the best interest of the Commonwealth is thereby served.
The PLCB is not liable for any cost incurred by anyone for any purpose relating to this IFB.
LEGAL SPECIFICATIONS AND REQUIREMENTS
Act 39 of 2016, as amended by Act 85 of 2016, requires the PLCB to auction expired restaurant licenses in cases where the licenses were either non-renewed, revoked by an administrative law judge, or are no longer eligible for safekeeping. 47 P.S. § 4-470.3(a). This requirement applies to all restaurant licenses that expired on or after January 1, 2000 to the present. 47 P.S. § 4-470.3(a.1)(1).
The PLCB may auction a maximum of fifty restaurant liquor licenses per county per year and any eligible licenses not sold at a scheduled auction shall be available for sale at future auctions. 47 P.S. § 4-470.3(a.1)(2).
Auctions shall be conducted in the manner set forth by the PLCB, at times and dates and under conditions set by the PLCB. The PLCB shall provisionally award to the person or entity making the highest bid for the license the right to file an application for the license. No bid lower than $25,000.00 shall be accepted. 47 P.S. § 4-470.3(g).
The Selected Bidder shall pay to the PLCB the full bid amount as set forth in the Notice of Selection no later than fourteen calendar days from date of Issuing Officer’s Notice of Selection. Payment may be made by cashier’s check, certified check, or ACH payment. The PLCB will hold the bid amount in escrow until the license application is approved. 47 P.S. § 4-470.3(h).
If the Selected Bidder fails to remit the full bid amount within the time allotted, the Notice of Selection will be rescinded and the next highest responsive Bidder for that license will be awarded the right to file an application for the license. Id.Failure to timely remit the full bid amount will result in forfeiture of the bid surety. In the event that there are no other qualified responsive bids for the license at issue, that license will be returned to the list of expired licenses to be made available at future auctions.
Within six months of being awarded the license, the Selected Bidder or its assignee shall file an application to transfer the license. Failure to timely file a transfer application will result in forfeiture of the bid surety, rescission of the Notice of Selection, and the license will be made available for bid at a future auction. The transfer application shall be processed by the PLCB in the same manner as any other transfer application and shall be subject to the same restrictions as any other transfer application. The PLCB’s three-member Board shall only approve the transfer of a license under this section to a municipality other than the municipality in which the expired license last operated if such transfer is first approved by the governing body of the receiving municipality. 47 P.S. §§ 4-461(b)(3), 4-470.3(i).
If the auctioned license was subject to any unpaid fines, unserved suspensions, liens and/or judgments accrued by the previous license holder at the time the license expired, then such fines, suspensions, liens and/or judgments are rendered null and void. Furthermore, the Selected Bidder or its assignee will not be required to supply any information about or secure any information from the previous license holder as part of the transfer application process. 47 P.S. § 4-470.3(j).
A person or entity that would be precluded from acquiring a license due to prohibited interlocking business interests, 47 P.S. § 4-411; 4-438(c); 4-443, or due to not being of good repute, 47 P.S. §§ 1-102, 4-404; 40 Pa. Code §§ 1.5, 5.23, may not apply for a license transfer and the PLCB shall reject any transfer applications submitted by that person or entity. 47 P.S. § 4-470.3(f). Failure of a Selected Bidder to comply with this requirement will result in forfeiture of the bid surety,rescission of the Notice of Selection, and the license will be made available for bid at a future auction. Individuals or entities considering participation in this IFB are encouraged to seek private counsel experienced in Pennsylvania liquor law to ensure eligibility. Due to the potential for conflicts of interest or other appearances of impropriety, the PLCB cannot provide legal advice to Bidders; however, the following general guidance is offered.
Interlocking Business Interests. The Liquor Code prohibits a person or entity from possessing more than one class of license. 47 P.S. § 4-438(c). Thus, the holder of a distributor or importing distributor license may not also hold a restaurant license. Likewise, the holder of a manufacturing license generally may not also hold a restaurant license.
There is an exception to the interlocking business prohibition that allows a holder of a restaurant license to also hold a manufacturing license, and operate as a “couplet,” which is an entity that has both a manufacturer’s license and a restaurant license for use at the same location. 47 P.S. §§ 4-411, 4-438(c). Neither the Liquor Code nor the PLCB’s Regulations provide interpretation of the term “same location.” However, as long as both buildings are on the same deeded property and the same entity owns the entire property, a restaurant license and a manufacturing license located on that same property could be considered a couplet.
The Liquor Code’s provisions on interlocking business practices generally prohibit licensees of one class from providing money or other things of value to equip or otherwise help the operation of a licensee of a different class. 47 P.S. §§ 4-411; 4-443. Further, there are interlocking business restrictions on the leasehold and financing of property used as licensed premises such that a person or entity holding one class of license may not be interested, either directly or indirectly, in the ownership or leasehold of any property or in any mortgage against the same, for which a license of a different class is granted.
Good repute. The PLCB’s three-member Board may consider criminal records of licensees and officers, directors, managers, or stockholders of licensees, because section 404 of the Liquor Code requires that licensees be persons of good repute, and the Board’s Regulations specify that criminal convictions impact a person’s reputation. 47 P.S. § 4-404; 40 Pa. Code §§ 1.5, 5.23. Section 404 further provides that the Board shall have discretion to refuse a license (including renewal thereof) to any person, corporation, partnership, or association or any officer, director, or member thereof who shall have been convicted or found guilty of a felony within a period of five years immediately preceding the date of application for said license. 47 P.S. § 4-404.
Upon submission of the above information, the PLCB’s Bureau of Licensing conducts an investigation and recommends to the three-member Board whether a person with a criminal record should be permitted to serve as an officer in the organization. The ultimate decision is made by the Board at its sole discretion.