Christopher I. McCabe, Esq.

Commonwealth Court: Laches Requires Reversal Of Injunction Issued For Violation Of Separations Act

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A recent decision by the Commonwealth Court of Pennsylvania illustrates the extreme perils of waiting too long to challenge a violation of the public bidding laws.

In December 2015, the West Jefferson Hill School District solicited bids for a new high school project. All sanitary, storm, and water line installations inside and up to five feet outside the building were included in the scope of the prime plumbing contract. All site sanitary, storm, and water line installations more than five feet from the building were included in the scope of the prime general contract as “site utility” work. In January 2016, the school district awarded the prime plumbing contract to Wheels Mechanical Contracting (Wheels). Read more

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Posted on by Christopher I. McCabe, Esq. in Court Decisions, Separations Act Leave a comment

Regulations Issued For City of Philadelphia Best Value Contracting

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On July 27, the regulations governing the City of Philadelphia’s purchase of goods and non-professional services under the “best value” standard became official.

Under the regulations, the Procurement Commissioner can permit a contract to be awarded under the “best value” standard only after a City department has made a detailed recommendation to the Commissioner.  The regulations also cover issues such as the technical scoring criteria, makeup of the selection committee, and the evaluation and scoring of bidder proposals. For example, price must receive at least 30% of the total score and non-price attributes must receive at least 50% of the total score.

Read more

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Posted on by Christopher I. McCabe, Esq. in Best Value Contracting, City of Phila. Leave a comment

Third Circuit Affirms Decision On DRPA Bridge Contract But Reverses Judicial Award Of Contract To Low Bidder

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The U.S. Court of Appeals for the Third Circuit recently affirmed a N.J. federal district court decision which found that that the Delaware River Port Authority (DRPA) had acted improperly in rejecting the low bidder for a painting contract for the Commodore Barry Bridge. My original post on the DRPA case can be found here.

In 2016, the DRPA rejected Alpha Painting & Construction Company, Inc.’s low bid and awarded the contract to Corcon, Inc., the second low bidder.  After its protest was denied, Alpha sued the DRPA to rescind the award to Corcon. The district court found that the DRPA’s actions were arbitrary and capricious, and ordered the DRPA to award the contract to Alpha. The DRPA appealed.

On appeal, the Third Circuit agreed with the district court, finding in a lengthy opinion that the DRPA’s decision to reject the low bidder was irrational, arbitrary, and capricious.  However, the Third Circuit held that district court went too far in directing the DRPA to award the contract to Alpha. Instead, the Third Circuit remanded the case for entry of a more limited injunction, stating:

Here, DRPA arbitrarily removed Alpha from contention for the Phase 2 contract. Accordingly, Alpha should be restored to competition and DRPA should evaluate Alpha’s bid and affirmatively determine, per its guidelines, whether Alpha, the lowest bidder, is a “responsible” contractor.

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Posted on by Christopher I. McCabe, Esq. in Court Decisions, DRPA Leave a comment

AIA Pennsylvania To Host Debate On Separations Act

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On Thursday, July 13, AIA Pennsylvania, the unifying body of the Pennsylvania chapters of the American Institute of Architects, will host a debate on the Separations Act. The moderated debate will take place at Harrisburg University and will feature key players on both sides of the Separations Act. You can find more information and register to attend the event at the AIA Pennsylvania registration page.

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Posted on by Christopher I. McCabe, Esq. in Separations Act Leave a comment

DGS Issues List Of Exempt Steel Products For 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 2017 under the PA Steel Products Procurement Act.  The list was published in the Pa. Bulletin on Saturday, May 13, 2017, and can be found here.  New items on the list are noted. The 30-day comment period has now expired. Read more

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Posted on by Christopher I. McCabe, Esq. in DGS, Steel Products Act Leave a comment

Is The Separations Act In Danger Of Repeal?

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In Pennsylvania, public construction projects are nearly always governed by the Separations Act, a law that was passed in 1913, more than 100 years ago.

The Separations Act (variations of which also appear in statutes governing Boroughs, Townships, and other government entities) provides as follows:

Hereafter in the preparation of specifications for the erection, construction, and alteration of any public building, when the entire cost of such work shall exceed four thousand dollars, it shall be the duty of the architect, engineer, or other person preparing such specifications, to prepare separate specifications for the plumbing, heating, ventilating, and electrical work; and it shall be the duty of the person or persons authorized to enter into contracts for the erection, construction, or alteration of such public buildings to receive separate bids upon each of the said branches of work, and to award the contract for the same to the lowest responsible bidder for each of said branches.

So, what does this mean? It means that for public building construction 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. Read more

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Posted on by Christopher I. McCabe, Esq. in Separations Act Leave a comment

Philadelphia Voters Approve Best Value Contracting

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It’s official! Philadelphia voters have voted in favor of the best value ballot question. Read more

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Posted on by Christopher I. McCabe, Esq. in Best Value Contracting, City of Phila. Leave a comment

Committee of Seventy Throws Its Weight Behind City Of Philadelphia Best Value Initiative

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On Tuesday, May 16, Philadelphia voters will be asked to vote YES or NO to the following ballot question: “Shall The Philadelphia Home Rule Charter be amended to allow for the award of certain contracts based on best value to the City?”

The ballot question is vague and confusing, and fails to inform voters that the City of Philadelphia now awards contracts on the basis of “lowest responsible bid,” a method that many believe already results in “best value” contracting for the City.

Nonetheless, the nonpartisan Committee of Seventy recently announced its support for the ballot question. The Committee of Seventy is not typically thought of as proficient on matters of public procurement, so it formed a task force comprised of Board members “with contracting experience in the public- and private-sector” to study the issue. Read more

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Posted on by Christopher I. McCabe, Esq. in Best Value Contracting, City of Phila. Leave a comment

Best Value Contracting Question On Philadelphia Primary Election Ballot

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Is “best value” the next, best thing in City of Philadelphia procurement? We will all know soon enough.  The best value initiative is on the official election ballot for the upcoming Philadelphia primary election.

On May 16, 2017, voters in Philadelphia will be asked to answer “yes” or “no” to the following question: “Shall The Philadelphia Home Rule Charter be amended to allow for the award of certain contracts based on best value to the City?”

If passed by the voters, best value will certainly prove to be a momentous change for Philadelphia procurement, though it remains to be seen just how momentous. Only time will tell.

My original post and thinking on the best value initiative can be found here.

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Posted on by Christopher I. McCabe, Esq. in Best Value Contracting, City of Phila. Leave a comment

E-Verify, Revisited

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The Pennsylvania Public Works Employment Verification – Act 127 of 2012 but better known as E-verify – has now been the law in Pennsylvania for more than four years, since January 1, 2013.

E-verify requires that all public works contractors and subcontractors must utilize the federal government’s E-Verify system to ensure that all employees performing work on public works projects are authorized to work in the United States.

Prime contractors are cautioned that the Pa. Department of General Services continues to enforce the requirements of E-verify, as is evident from the formal notices posted on the DGS E-verify webpage.  For example, in 2016, more than 50 contractors received warning letters concerning violations of E-verify.

Prime contractors are also cautioned that they must inform their subcontractors of their duty to comply with E-verify.  If they do this, then prime contractors will not liable for a subcontractor’s failure to comply with E-verify.

DGS has also posted an FAQ for E-verify. This can be found here.  My original post on E-verify can be found here.

If you need assistance on an E-verify issue, call or email me for a no-cost consultation.  I’ll be happy to assist in anyway possible.

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Posted on by Christopher I. McCabe, Esq. in DGS, E-Verify Leave a comment