Now that “best value” contracting is officially the new game in town for City of Philadelphia procurement, with the issuance of the new best value regulations, it’s worth asking whether the longstanding Separations Act precludes the City from using best value contracting for contracts for the construction of public buildings.
The Separations Act provides that, for public building construction in Pennsylvania in excess of $4,000, all public owners must prepare separate specifications, solicit separate bids, and award separate contracts for general construction, plumbing, heating and ventilating, and electrical work, with the additional requirement that the award must be made to the “lowest responsible bidder.”
The Separations Act unquestionably applies to the City. With a mandate to award the contract to “the lowest responsible bidder,” the Separations Act would appear to prohibit the City from using a “best value” standard to award construction contracts for a City public building project. Of course, time will tell whether City officials and the courts will agree with this viewpoint.
If you need assistance on a Separations Act issue, feel free to call or email me for a no-cost consultation. I’ll be happy to assist in anyway possible.
The PA Steel Products Procurement Act requires that all steel products (including cast iron products) supplied on a Pennsylvania public works project must be made from U.S.-made steel.
Recently, a school district’s contract specified a cast iron boiler manufactured in Europe as the so-called “basis of design.” No domestic cast iron boilers were permitted under the boiler specification. Is this practice legal under the PA Steel Products Procurement Act? Can a public owner simply override the Steel Act with a proprietary specification for a name-brand product which is made outside the U.S. but which is preferred by the owner’s design team? Read more
In a recent case of first impression, the Commonwealth Court of Pennsylvania has affirmed a lower court ruling that a disappointed bidder lacked standing to challenge a contract awarded by a non-Commonwealth entity under the Public-Private Transportation Partnership Act (P3 Act).
In April 2016, the Northampton County General Purpose Authority issued a Request for Proposals under the P3 Act for the Northampton County Bridge Renewal Program for the replacement, rehabilitation, and maintenance of 33 bridges in Northampton County. Four bidders responded, including Clearwater Construction, Inc./Northampton County Bridge Partners LLC and Kriger Construction, Inc. Ultimately, the Authority selected Kriger to negotiate a public-private partnership agreement to develop the bridge renewal program. Read more
In a decision issued on July 20, 2017, the Commonwealth Court of Pennsylvania upheld the City of Allentown’s use of the Request for Proposals (RFP) process in a contract award.
In 2015, Allentown issued an RFP for the award of a long-term solid waste and recyclables contract. Previously, Allentown had used an Invitation to Bid (ITB) process for the same contract. When a contract award was ultimately made to Waste Management of Pennsylvania, Inc., two bidders filed for an injunction, arguing that Allentown’s use of the RFP process was contrary to law. The trial court denied the injunction and an appeal was taken. Read more
If you respond to a Request for Quotes (RFQ) issued by a Commonwealth department or agency, can you protest if the resulting purchase order is awarded to another bidder?
According to the Commonwealth’s Office of Administration, the answer is no. In a recent protest, the OA issued a letter which took the remarkable position that “‘Award’ under an RFQ merely results in a Purchase Order under an existing multiple-award contract; therefore an RFQ is not the solicitation or award of a contract, and cannot be protested.”
Needless to say, this position is not supported by a fair reading of section 1711.1 of the Commonwealth Procurement Code which allows an aggrieved bidder or prospective bidder to protest the solicitation or award of a state contract. Certainly, a purchase order that is part of a multiple-award contract is nonetheless a contract; indeed, without issuance of a purchase order, the multiple-award contract is essentially meaningless. Likewise, an RFQ is a solicitation for a quote which may result in a contract – i.e., the purchase order.