Can Retainage Be Held Until Final Completion Of The Project?

On public projects, an owner typically withholds retainage of 10%. Can the owner hold this 10% retainage until final completion? The short answer is, No! Section 3921 of the PA Procurement Code mandates that, when the contract is 50% completed, retainage "shall Read more

Can A Public Owner Ever Seek Clarification Of Ambiguous Pricing?

Recently, a public owner solicited bids for a university construction project. The bid form sought pricing for base bid work and alternate work. One of the bidders included ambiguous pricing for an alternate item, in that the pricing was Read more

Debriefing After Non-Selection Does Not Toll 7-Day Deadline For Bid Protest

The Pa. Procurement Code sets a strict deadline for bid protests - the protest must be filed within seven days after the protestant knew or should have known of the facts giving rise to the protest.  If the protest is untimely, it Read more

Does Separations Act Prohibit Use Of Best Value Contracting For Construction Of Philadelphia Public Buildings?

Now that "best value" contracting is officially the new game in town for City of Philadelphia procurement, with the issuance of the new best value regulations, it's worth asking whether the longstanding Separations Act precludes the City from using best Read more

Does PA Steel Act Prohibit Public Owner From Specifying Foreign-Made Cast Iron Boiler?

The PA Steel Products Procurement Act requires that all steel products (including cast iron products) supplied on a Pennsylvania public works project must be made from U.S.-made steel. Recently, a school district's contract specified a cast iron boiler manufactured in Europe as the Read more

General

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

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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

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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