Is “best value” contracting the next, new thing for the City of Philadelphia?
The Philadelphia City Council recently passed a resolution proposing an amendment to the Philadelphia Home Rule Charter that would give the Procurement Department the option to award contracts, which are normally awarded to the lowest, responsible bidder, to “the responsible bidder whose proposal provides the City with the best value.” This amendment would radically alter a provision in Article VIII, Chapter 2, of the Charter that has been in place since the Charter was first enacted in 1952. Read more
The Pa. Prevailing Wage Act mandates that workers on Pennsylvania public construction, reconstruction, demolition, alteration, or repair projects costing more than $25,000, other than those involving “maintenance work,” must be paid the general prevailing minimum wage rates. “Maintenance work” is defined in the Act as “the repair of existing facilities when the size, type or extent of such facilities is not thereby changed or increased.”
According to the Pa. Supreme Court’s 2008 decision in Borough of Youngwood v. Pennsylvania Prevailing Wage Appeals Board, the definition of maintenance work must be narrowly construed:
[B]ecause the Act provides that “public work” includes “repair” and that the exception to “public work” (i.e., “maintenance work”) includes “repair” of a specific type, it logically follows that the General Assembly intended that “maintenance work” be considered a lesser or minor form of “repair.” Therefore, we hold that in construing the Act, the focus must fall principally on the Act’s clear mandate that prevailing wages are to be paid to workers on public works projects that meet the criteria of 43 P.S. § 165-2(5), taking into consideration that “maintenance work” is an exception to this mandate and must be narrowly construed. The linguistic construction of “maintenance work,” in turn, must recognize that the Act defines “maintenance work” as a subset of “repair,” and must be accordingly viewed in this narrow manner.
The Commonwealth Court has further held that “maintenance work” is “the repair of existing facilities, that is, facilities that at some point were operating properly but have now failed to do so.” Read more
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
I am happy to report that PA Public Contracts has been selected to compete in The Expert Institute’s Best Legal Blog Competition. From a field of hundreds of potential nominees, PA Public Contracts has received enough nominations to join the one of the largest competitions for legal blog writing online today.
Now that the blogs have been nominated and placed into their respective categories, it is up to their readers to select the very best. With an open voting format that allows participants one vote per blog, the competition will be a true test of the dedication of each blog’s existing readers, while also giving up-and-coming players in the legal blogging space exposure to a wider audience. Each blog will compete for rank within its category, while the three blogs that receive the most votes in any category will be crowned overall winners.
The competition will run from now until the close of voting at 12:00 am on November 14, 2016, at which point the votes will be tallied and the winners announced.
So, if you like what you see on this blog, please cast a vote for PA Public Contracts here.
Thank you for your support and continued readership!
Recently I was asked, what rules govern competitive bidding? There are many different rules that govern public bidding in Pennsylvania, many of which can be found in the Commonwealth Procurement Code. Some govern the timing of bid awards and withdrawal of bids.
The primary “unwritten” rule of public bidding is the “level playing field” rule. This rule means that all bidders are treated the same, and are judged by a common standard that governs all bids that are received. A common standard implies universal specifications, freely accessible to all bidders, and not written in favor of a single bidder. The level playing field is violated where the public owner applies a different standard to the bids it receives, or awards a contract based upon unpublished or unadvertised standards, or otherwise deviates from the published bid instructions and bidding requirements. Read more