Commonwealth Court Directs Municipal Authority To Execute Public Contract With Highest Scoring Bidder

How many votes are needed for a municipal authority board to award a public contract? The Commonwealth Court recently held, in Seda-Cog Joint Rail Authority v. Carload Express, Inc., 185 A.2d 1232 (2018), that a majority vote of board members present Read more

Is Your Bid Responsive?

If you've ever submitted a bid for a public contract, you've no doubt heard the term "lowest responsive, responsible bidder." In this context, what does "responsive" mean? "Responsive" concerns whether a bid complies with the requirements specified in a bid Read more

Bid Protests Upheld Due To Unauthorized Meeting With Bidder

In three recent, unreported decisions arising out of the same procurement, the Commonwealth Court has held that a meeting between the public entity and a bidder, after bids had been received in response to an RFP, but before the Read more

Separations Act Not Superseded By Guaranteed Energy Savings Act

In a recent, unreported opinion, the Commonwealth Court held that the Separations Act is not superseded by the Guaranteed Energy Savings Act (GESA), 62 Pa.C.S. §§ 3751-3758, which allows a public entity to award a single contract to implement an Read more

List Of Exempt Steel Products For 2018 Is Unchanged From 2017

The Pennsylvania Department of General Services (DGS) has finally issued the list of machinery and equipment steel products which will be exempt for calendar year 2018 under the PA Steel Products Procurement Act.  The list was published in the Pa. Read more

Commonwealth Court Directs Municipal Authority To Execute Public Contract With Highest Scoring Bidder

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How many votes are needed for a municipal authority board to award a public contract? The Commonwealth Court recently held, in Seda-Cog Joint Rail Authority v. Carload Express, Inc., 185 A.2d 1232 (2018), that a majority vote of board members present and voting is sufficient and effective to award the contract and that abstaining board members are not counted as “present” even if they are physically present.

The Seda-Cog Joint Rail Authority (Authority), is governed by a 16-member board of directors and owns rail lines in several Pennsylvania counties, which are operated by a private railroad operator. In 2014, the Authority issued an RFP for a new operating agreement. The RFP contemplated that the highest scoring operator would receive the new agreement. Because of abstentions by board members, it was clear throughout the RFP selection process that no more than 10 board members would vote to decide the contract award. The Authority also informed candidates that it would require “yes” votes from at least nine board members to award a contract. However, this voting requirement was not included in the RFP or the Authority’s bylaws.

At the end of the evaluation process, Carload Express, Inc. (Carload) received the highest score. A meeting of all 16 board members was held, with seven votes in favor of Carload, three votes against, and six abstaining. The Authority declined to award the contract to Carload, and filed an action seeking a declaration that the 7-3 vote was ineffective. Carload filed a counterclaim seeking a contrary declaration, and an order requiring the Authority to execute a contract with Carload. The trial court ruled in favor of the Authority and Carload appealed to the Commonwealth Court. Read more

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Posted on by Christopher I. McCabe, Esq. in Court Decisions, Municipal Authorities Comments Off on Commonwealth Court Directs Municipal Authority To Execute Public Contract With Highest Scoring Bidder

Is Your Bid Responsive?

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If you’ve ever submitted a bid for a public contract, you’ve no doubt heard the term “lowest responsive, responsible bidder.” In this context, what does “responsive” mean?

“Responsive” concerns whether a bid complies with the requirements specified in a bid invitation.  Before a public bid can be accepted, it must be “responsive” to the bidding specifications, i.e., it must satisfy the mandatory terms, conditions, and instructions contained in the invitation to bid.  If a bid fails to adhere to the mandatory bidding requirements, the bid is deemed “non-responsive” and must ordinarily be rejected, except in the rare circumstances where waiver of the bid defect is permitted.

Why is this important? Compliance with bidding instructions guarantees that contract awards will be made fairly and economically. First, with clear-cut ground rules for competition among bidders, none of them will obtain an unfair advantage from a special knowledge of the bidding requirements. Second, the principle of strict adherence to the bid instructions reduces the possibility of fraud, corruption, or favoritism in favor of one bidder over another.

Bids that are missing critical pricing information, or an authorized signature of the bidder are prime examples of non-responsive bids. A bid that fails to include a bid bond, that contains a counter-offer that deviates from the specifications of the bid, or that fails to include a required form, such as a signed addendum, may also be deemed non-responsive. A determination that a bid is non-responsive is typically considered final, and is normally not subject to any review or administrative appeal by the rejected bidder.  The concept of bid responsiveness was described in Nielson v. Womer, 46 Pa. Cmwlth. 283, 406 A.2d 1169, 1171 (1979):

Since Aardvark’s bid failed to comply with the bidding specifications in that it did not provide “evidence of non-cancellable agreement . . . for the life of the contract,” defendants could properly have rejected it. It is equally well settled that a defective bid cannot be remedied once the bids have been opened

If you need assistance with a bidding issue, feel free to call or email me.  I’ll be happy to assist in anyway possible.

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Posted on by Christopher I. McCabe, Esq. in Bid Responsiveness Comments Off on Is Your Bid Responsive?

Bid Protests Upheld Due To Unauthorized Meeting With Bidder

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In three recent, unreported decisions arising out of the same procurement, the Commonwealth Court has held that a meeting between the public entity and a bidder, after bids had been received in response to an RFP, but before the bidder was determined to be responsible and before its proposal was deemed to be responsive or the most advantageous, was unauthorized and improper.

In July 2016, the Pa. Department of Human Services (DHS) issued an RFP seeking proposals from managed care organizations to provide health care services in five different “zones” to medical assistance beneficiaries. In November 2016, after bids were received, the DHS issued a selection memo which was subsequently rescinded due to a scoring error. In December 2016, after rescission of the November selection memo but before a new selection of bidders was made, DHS and its counsel met with representatives of a bidder, Pennsylvania Health & Wellness, Inc. (PHW), to discuss PHW’s “operational readiness to operate as an MCO on a statewide basis.” Read more

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Posted on by Christopher I. McCabe, Esq. in Bid Protests, Procurement Code Comments Off on Bid Protests Upheld Due To Unauthorized Meeting With Bidder

Separations Act Not Superseded By Guaranteed Energy Savings Act

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In a recent, unreported opinion, the Commonwealth Court held that the Separations Act is not superseded by the Guaranteed Energy Savings Act (GESA), 62 Pa.C.S. §§ 3751-3758, which allows a public entity to award a single contract to implement an “energy conservation measure.”

In May 2017, James P. Wescott, the owner of Wescott Electric Company, filed a taxpayer lawsuit to enjoin the Delaware County Intermediate Unit (IU) from awarding a single $38 million contract for the construction of two new additions to an existing structure, the removal of a boiler system, and installation of a new centralized HVAC system to serve all three connected structures. Wescott challenged the award based on the IU’s failure to follow the Separations Act which requires separate bids for plumbing, HVAC, and electrical work. The IU argued that GESA specifically permitted the award of a single contract because the project, which included replacement of an existing boiler and installation of a new centralized HVAC system, qualified as an “energy conservation measure” under 62 Pa.C.S. § 3752. The trial court agreed with the IU and denied the injunction, ruling that a guaranteed energy savings contract did not have to comply with the Separations Act. Read more

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Posted on by Christopher I. McCabe, Esq. in Guaranteed Energy Savings Act, Separations Act Comments Off on Separations Act Not Superseded By Guaranteed Energy Savings Act

List Of Exempt Steel Products For 2018 Is Unchanged From 2017

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The Pennsylvania Department of General Services (DGS) has finally issued the list of machinery and equipment steel products which will be exempt for calendar year 2018 under the PA Steel Products Procurement Act.  The list was published in the Pa. Bulletin on Saturday, April 14, 2018, and can be found here. There were no new steel products added to the list. The 30-day comment period expires on May 14, 2018. Read more

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Posted on by Christopher I. McCabe, Esq. in DGS, Steel Products Act Comments Off on List Of Exempt Steel Products For 2018 Is Unchanged From 2017
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