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

Com. of Pa.

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

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

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

Commonwealth Court Affirms Dismissal Of Late-Filed Claim With The Board Of Claims

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In a recent, unreported decision, the Commonwealth Court of Pennsylvania affirmed the dismissal by the Board of Claims (Board) of a late-filed contractor claim.  Under the Board’s jurisdictional statute, 62 Pa. C.S. § 1712.1(e), a formal statement of claim must be filed with the Board, either within 15 days of the mailing date of a final determination denying a claim, or within 135 days of the filing of a claim, whichever occurs first. Read more

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Posted on by Christopher I. McCabe, Esq. in Board of Claims, DGS 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

DGS Issues Preliminary List Of Exempt Steel Products For 2016

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The Pennsylvania Department of General Services (DGS) has issued a preliminary and updated list of machinery and equipment steel products which will be exempt under the Pa. Steel Products Procurement Act for 2016.  The list was published in the Pa. Bulletin on Saturday, February 6, 2016, and can be found here.

Read more

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

Gov. Tom Wolf Signs Executive Order To Improve Participation Of Small & Diverse Businesses

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On September 23, 2015, Pennsylvania Governor Tom Wolf signed an Executive Order solidifying his commitment to improving the participation of minority-owned, women-owned, LGBT-owned, veteran-owned, and disabled-owned businesses in state government contracting.

According to the official press release, Executive Order 2015-11, entitled “Diversity, Inclusion, and Small Business Opportunities in State Contracting and Pennsylvania’s Economy,”

directs a consistent and coordinated effort to ensure diversity and inclusion in all contracting opportunities for small and diverse businesses throughout agencies under the governor’s jurisdiction and promotes the creation of programs to better prepare those businesses to compete and succeed in Pennsylvania’s economy.

Read more

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

Continuing Pa. Budget Impasse Affects Payments To Contractors

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The current Pennsylvania budget impasse is now entering its fifth month.  How does the impasse and the lack of a state budget affect vendors and contractors holding contracts with the Commonwealth of Pennsylvania and its departments, boards and agencies?

According to the FAQ webpage of the Office of the Budget, the following questions and answers address payments to vendors and contractors and future contracts:

Question 9: Will Commonwealth agencies process invoices from vendors?

Answer: Yes. Vendors with state contracts who continue to provide goods and services to commonwealth agencies can submit invoices and Commonwealth agencies will process all invoices received. All invoices held during the budget impasse will be sent promptly to the State Treasury for processing after the FY15-16 budget is enacted.

Question 10: How will the budget impasse affect existing contracts?

Answer: Most state contracts include language addressing this situation, which states that the commonwealth’s obligation to make payments shall be subject to the availability and appropriation of funds and that contractors may not stop work or refuse to make delivery because of non-payment. If the Commonwealth’s untimely payment results in a default situation, the contractor may pursue the remedies set forth in the contract.

Question 11: Can Commonwealth agencies enter into new contracts for 2015-16?

Answer: Agencies may enter into new contracts for FY 2015-16. The contracts will clearly state that payment is subject to appropriation.

The takeaway here is that vendors and contractors doing business with a public entity like the Commonwealth of Pennsylvania should never forget that public contracts are unlike private contracts in many ways, not the least of which is that the payment obligations of the public entity are nearly always subject to legislative appropriation of the funds necessary for payment. So, while payment may be delayed due to non-appropriation, the obligation to perform the work covered by the contract continues even in the face of non-payment.

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Posted on by Christopher I. McCabe, Esq. in DGS, General Leave a comment

Disappointed Bidder On State Contract Has No Due Process Rights

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In a recent, unreported decision concerning a bid protest for a state contract, the Pa. Commonwealth Court reaffirmed its position that a disappointed bidder for a state contract has no due process rights in connection with the award of the contract.  Therefore, the bidder has no right to a hearing on its bid protest.  Instead, the bidder has only those protest rights enumerated in the Pa. Procurement Code.  The Court ruled that a prior decision finding due process rights was expressly overruled by later enacted legislative amendments to the Procurement Code.

The Commonwealth Court also held that it was proper for the winning bidder to participate in the bid protest.

The Court’s full decision, in Corizon Health, Inc. v. Department of General Services, can be found here.

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Posted on by Christopher I. McCabe, Esq. in Bid Protests, Court Decisions, DGS Leave a comment

DGS Publishes List of Exempt Steel Products

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On February 9, 2013, the Pa. Department of General Services finally published in the Pa. Bulletin a list of exempt machinery and equipment steel products, as authorized under section 4(b) of the Steel Products Procurement Act (73 P. S. § 1884(b)).

The DGS notice listing the exempt steel products can be found here.  The DGS statement of policy relating to its notice can be found here.

According to the DGS notice, the public has 30 days to submit comments regarding the list.  Comments can be submitted in writing to: Deputy Secretary for Public Works, Department of General Services, 18th and Herr Streets, Harrisburg, PA 17125. Comments can also be submitted by e-mail to: ra-steel@pa.gov.

My prior post on the amendment to the Steel Products Procurement Act mandating a list of exempt products can be found here.

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