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

Regulations Issued For City of Philadelphia Best Value Contracting

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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” standard only after a City department has made a detailed recommendation to the Commissioner.  The regulations also cover issues such as the technical scoring criteria, makeup of the selection committee, and the evaluation and scoring of bidder proposals. For example, price must receive at least 30% of the total score and non-price attributes must receive at least 50% of the total score.

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Posted on by Christopher I. McCabe, Esq. in Best Value Contracting, City of Phila. Leave a comment

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

AIA Pennsylvania To Host Debate On Separations Act

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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 on both sides of the Separations Act. You can find more information and register to attend the event at the AIA Pennsylvania registration page.

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Posted on by Christopher I. McCabe, Esq. in Separations Act 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

Is The Separations Act In Danger Of Repeal?

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In Pennsylvania, public construction projects are nearly always governed by the Separations Act, a law that was passed in 1913, more than 100 years ago.

The Separations Act (variations of which also appear in statutes governing Boroughs, Townships, and other government entities) provides as follows:

Hereafter in the preparation of specifications for the erection, construction, and alteration of any public building, when the entire cost of such work shall exceed four thousand dollars, it shall be the duty of the architect, engineer, or other person preparing such specifications, to prepare separate specifications for the plumbing, heating, ventilating, and electrical work; and it shall be the duty of the person or persons authorized to enter into contracts for the erection, construction, or alteration of such public buildings to receive separate bids upon each of the said branches of work, and to award the contract for the same to the lowest responsible bidder for each of said branches.

So, what does this mean? It means that for public building construction in excess of $4,000, all public owners must prepare separate specifications, solicit separate bids, and award separate contracts for general construction, plumbing, heating and ventilating, and electrical work. Read more

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Posted on by Christopher I. McCabe, Esq. in Separations Act Leave a comment