Payment Rights, Obligations and Remedies on Pennsylvania Public Works Projects

On Thursday, November 6, 2014, I gave a dinner presentation to the Southeast District meeting of the National Utility Contractors Association (Pennsylvania).  The topic was "Payment Rights, Obligations and Remedies on Public Works Projects."  If you would like a Read more

Commonwealth Court Rules That Award Of Fees And Penalty Is Mandatory On Finding Of Bad Faith

In a recently published opinion, the Commonwealth Court has held that a finding of bad faith by a public entity in refusing to make payment to a public contractor mandates the award of attorney's fees and the statutory penalty of 1% Read more

Procurement Code Is Not Violated Where Only One Price Is Considered In Contract Award

Can a Commonwealth agency consider just a single bidder's price and refuse to even look at the prices of other bidders in making a competitive contract award? According to a recent, unpublished decision of the Commonwealth Court of Pennsylvania, the Read more

Commonwealth Court: Bidder Qualification Criteria Can Be Waived Under Gaeta Decision

If a public entity issues a bid and specifies that bidders must have certain minimum experience, can the public entity waive those requirements for the low bidder?  In my view, the answer is no. Ordinarily, specified qualification criteria are for Read more

General

Former Philadelphia School Superintendent Ackerman Directed Award of No-Bid Contract

According to a recent Inquirer article, the Philadelphia School Reform Commission has concluded that former Philadelphia School Superintendent Arlene C. Ackerman directed Philadelphia School District staff to award a controversial $7.5 million no-bid contract for surveillance cameras to a small minority-owned firm in 2010.  The Philadelphia Inquirer article reporting the SRC’s conclusion can be found here.

My earlier post on the lawsuit which was filed by the company which lost the contract can be found here.  This news should bolster the chances of the company in its lawsuit against the School District.

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Posted on by Christopher I. McCabe, Esq. in General, Phila. School District Leave a comment

Philadelphia School District Sued Over Contract Award To Minority Firm

The Philadelphia School District has been sued by a suburban, white-owned firm which lost out on a School District contract in favor of a minority-owned firm.  The Philadelphia Inquirer has reported that the firm, which lost a $7.5 million surveillance-camera project after former Philadelphia School Superintendent Arlene C. Ackerman allegedly intervened on behalf of a minority-owned firm, has filed a federal civil rights lawsuit against the School District and Ackerman.

The firm may have an uphill battle in its suit.  It is well-established that disappointed bidders have no standing to sue public entities for lost profits due to the loss of a contract award.  Moreover, the federal courts have held that disappointed bidders have no claims for due process violations for alleged bidding irregularities because the bidders themselves have no personal or property rights in the lost contract.

On the other hand, if the firm can establish that, but for the actions of Ackerman and due to the race of its owner or the race of the owner of the minority-owned firm, it would have obtained the contract, it may be able to prevail against the School District.  This suit in such case would be no different that the challenges to minority “set-aside” laws which were viewed as quotas and which were struck down by the courts.  If successful, the suit will result in an award of attorney’s fees in favor of the firm.

The suit is the fourth brought against the district in the aftermath of the decision to award an emergency, no-bid contract to a minority-owned firm to install surveillance cameras in 19 city schools the state had deemed dangerous. The School District justified bypassing its normal bidding requirements by calling the camera installation an “emergency.”

The Philadelphia Inquirer article can be found here.  An Inquirer article on a whistleblower suit by a former School District official arising out of the same contract award can be found here.

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Posted on by Christopher I. McCabe, Esq. in Phila. School District Leave a comment