Disappointed Bidder Lacks Standing To Challenge P3 Contract Award By Non-Commonwealth Entity

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 Read more

City Of Allentown Permitted To Use RFP Process For Waste Services Contract

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 Read more

Are RFQs Immune From Protest Under The Procurement Code?

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. Read more

Pennsylvania Initiates Disparity Study For Small Diverse Business Program

In June 2017, the Commonwealth of Pennsylvania initiated a disparity study that will provide information to help the Department of General Services (DGS) implement the Pennsylvania's Small Diverse Business Program. The expected completion date for the disparity study is Read more

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

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 Read more

Bid Protests

Are RFQs Immune From Protest Under The Procurement Code?

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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.

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Posted on by Christopher I. McCabe, Esq. in Bid Protests, Com. of Pa., Procurement Code Leave a comment

Pennsylvania Initiates Disparity Study For Small Diverse Business Program

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In June 2017, the Commonwealth of Pennsylvania initiated a disparity study that will provide information to help the Department of General Services (DGS) implement the Pennsylvania’s Small Diverse Business Program. The expected completion date for the disparity study is September 2018.

The study will include analyses of the participation of minority-, women-, disabled-, veteran-, and LGBT-owned businesses in prime contracts and subcontracts awarded by DGS during the period from July 1, 2011, through June 30, 2016.

DGS has created a webpage highlighting the disparity study, with materials and a description of study team members.

The materials presented at the disparity study’s kickoff meeting can be found here.

An FAQ on the disparity study can be found here.

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Posted on by Christopher I. McCabe, Esq. in Com. of Pa., DBE/MBE/WBE, DGS Leave a comment

No-Bid Busing Contracts Cost School Districts An Extra $53.7 Million Over State Reimbursement

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According to recent audits conducted by the Pa. Department of the Auditor General, Pennsylvania school districts spent at least $53.7 million in excess of the state’s transportation reimbursement formula through the use of no-bid busing contracts.

The conclusion of the Auditor General was based on audits of about 450 of the state’s 500 public school districts. As a result, Auditor General Eugene DePasquale called on the Pa. General Assembly to mandate competitive bidding for such transportation services, saying:

To get the best possible price and ensure transparency for taxpayers, student transportation contracts should be re-bid every time they are up for renewal. I’m calling on the General Assembly to enact legislation to ensure school districts are getting the best possible price by requiring them to seek competitive bids for transportation services. Amending the Public School Code to require schools to competitively bid transportation services will improve transparency and could put more money in our classrooms.

The Auditor General press release issued on May 12, 2016, can be found here.  A PennLive story on the Auditor General’s findings can be found here.

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Posted on by Christopher I. McCabe, Esq. in Com. of Pa., Public School Code Leave a comment

Executive Order Prohibits Discrimination On The Basis Of Sexual Orientation Or Gender Identity Or Expression By Contractors Doing Business With State

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On April 7, 2016, Pa. Governor Tom Wolf signed a new Executive Order establishing that future Commonwealth of Pennsylvania contracts must ensure that contractors doing business with the state will not discriminate in the award of subcontracts or supply contracts, or in hiring, promotion, or other labor matters, on the basis of sexual orientation, or gender identity or expression. The Executive Order also mandates that contractors receiving state funds must have, as a condition of payment, a written sexual harassment policy and that employees of the contractor are aware of the policy. Read more

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Posted on by Christopher I. McCabe, Esq. in Com. of Pa., DGS Leave a comment

Minimum Wage Increased For Employees Of Certain State Contractors

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On March 7, 2016, Governor Tom Wolf signed an Executive Order that raises the minimum wage to $10.15 an hour for employees of certain state contractors.

The employees covered the Executive Order include:

Employees who: (1) directly perform services or construction; or (2) directly perform services for the Commonwealth and are employed by a lessor of property to the Commonwealth; or (3) spend at least 20 percent of their working time in a given work week performing an ancillary service called for in a new lease of property or contract for services or construction exceeding the applicable small purchase threshold entered into with a Commonwealth agency under the jurisdiction of the Governor, including bilateral modifications to existing such leases or contracts, after the effective date of this Executive Order.

According to a 6ABC Action News report:

[The Executive Order] also will affect a narrow set of state contracts – potentially 109 vendors that provide janitorial, landscaping, delivery and food preparation services – that does not include hospitals, nursing care or state universities, administration officials said. The overall cost to the state and its contractors was projected at just above $4 million.

Executive Order No. 2016-02, which takes effect on July 1, 2016, for employees of state contractors, can be found here.

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Posted on by Christopher I. McCabe, Esq. in Com. of Pa. Leave a comment