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

Regulations Issued For City of Philadelphia Best Value Contracting

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" Read more

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

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 Read more

AIA Pennsylvania To Host Debate On Separations Act

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 Read more

DGS Issues List Of Exempt Steel Products For 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 2017 under the PA Steel Products Procurement Act.  The list was published in the Pa. Read more

Court Decisions

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

Federal Judge Criticizes Mystery Procurement Practices Of Delaware River Port Authority

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A recent federal court decision rescinding a $17.8 million bridge painting contract award to the second low bidder ripped the cover off Delaware River Port Authority (DRPA) procurement practices that were “shrouded in mystery and obscured from public scrutiny.”  Although applying New Jersey law, the reasons underlying the decision of Judge Noel L. Hillman of the U.S. District Court for New Jersey are equally applicable to Pennsylvania bidding disputes.

In May 2016, the DRPA issued a bid for a painting contract for the Commodore Barry Bridge. Seven bids were received. Alpha Painting & Construction Company was the low bidder, with a price of $17,886,000; Corcon, Inc., was second with a price just $10,200 higher. Six weeks later, the DRPA rejected Alpha’s bid as “not responsible” for two reasons: Alpha’s bid was missing OSHA 300 forms, and Alpha did not have reported EMF (experience modification factors) scores that reflect a contractor’s workers’ compensation experience on prior jobs.  The DRPA then awarded the contract to Corcon.

After the DRPA denied Alpha’s protest, Alpha sued the DRPA for an injunction rescinding the award to Corcon and ordering an award to Alpha.  After three days of testimony, Judge Hillman determined that the DRPA’s stated reasons for the rejection of Alpha’s bid were arbitrary and capricious, and ordered the DRPA to award the contract to Alpha. Read more

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