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
Starting this fall, in a move to make bidding more efficient and competitive, the City of Philadelphia will begin to accept electronic bids and contract proposals. Philadelphia officials hope to make all aspects of City contracting electronic-based – from vendor registration to bids and even contract signatures. The change will affect contracts for public works, contracts for non-professional services, and contracts for goods and equipment. Contracts for professional services contracts are already subject to e-bidding. Contractors who wish to bid for City contracts must register for the new program.
The new PHLContracts website can be found here.
Contractors can find registration information here.
An FAQ on the new program can be found here.
An article in The Philadelphia Inquirer on the new program can be found here.
If a public owner breaches its payment obligations to a public contractor and acts in bad faith in doing so, is the public contractor automatically entitled to an award of its attorney’s fees and a 1% penalty under section 3935 of the Procurement Code?
In a recently published opinion, the Supreme Court of Pennsylvania has ruled that such an award is discretionary, not automatic, reversing a 2014 Commonwealth Court decision which had held that a bad faith finding entitled the contractor to recover its attorney’s fees and the 1% penalty. Read more