List Of Exempt Steel Products Issued For 2022

On February 19, 2022, the Pennsylvania Department of General Services (DGS) issued the list of machinery and equipment steel products which are exempt for calendar year 2022 under the PA Steel Products Procurement Act. The list was published in Read more

Recent Commonwealth Court Decision Affirms Core Bidding Principles

A recent decision concerning a bid protest filed on a PennDOT contract re-affirmed core principles of public bidding and bid protests on Commonwealth contracts. In Sidelines Tree Service, LLC v. Department of Transportation, the Commonwealth Court considered an appeal from a Read more

PA Supreme Court Clarifies The Meaning Of "Cost" Under the PA Steel Products Procurement Act

The PA Steel Products Procurement Act was first enacted in 1978. At its core, the Act provides that any steel products used or supplied on a public works project in Pennsylvania must be U.S. steel products. Under the Act, a product Read more

Can A Public Owner Recover Legal Fees From A Bidder Who Loses A Challenge To A Bid Rejection?

Can a public entity include in its bid instructions the right to recover its legal fees from a bidder if the bidder's bid protest lawsuit is unsuccessful? In the course of providing advice recently to a client, I came across Read more

List Of Exempt Steel Products Issued For 2020

On June 27, 2020, the Pennsylvania Department of General Services (DGS) issued the list of machinery and equipment steel products which are exempt for calendar year 2020 under the PA Steel Products Procurement Act.  The list was published in Read more

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Commonwealth Court Strikes Down Use Of Project Labor Agreements Except In Extraordinary Circumstances

A project labor agreement (PLA) is a “pre-hire” collective bargaining agreement with one or more labor unions that establishes the working conditions on a specific, usually public, construction project. PLAs are controversial, not least because they typically restrict nonunion contractors from using their own workforce and require them instead to hire their workforce from the local unions’ labor pool, but their previous use on public projects in Pennsylvania has been upheld. However, in a recent case brought by two nonunion contractors, the Commonwealth Court has now invalidated the use of a PLA on a public highway project as a violation of Pennsylvania’s strict competitive bidding requirements for public contracts.

In December 2017, the Pennsylvania Department of Transportation (PennDOT) issued a bid for a highway improvement project for US Route 202 in Norristown. The bid required the winning contractor to sign a PLA with the Building and Construction Council of Philadelphia and Vicinity, which represented 11 local unions. The PLA required the winning contractor to hire their workforce through the local unions and to be bound by the local unions’ collective bargaining agreements. However, the PLA also specified that, if the winning contractor had a collective bargaining agreement with the United Steelworkers union, which was not one of the 11 local unions, then the contractor was permitted to use its own workforce.

Allan Myers, L.P. (Myers) and J.D. Eckman, Inc. (Eckman), two nonunion contractors, filed protests with PennDOT, challenging the use of the PLA. Myers and Eckman argued that the PLA was unlawful, arbitrary and discriminatory, as it disfavored nonunion contractors and unduly favored contractors affiliated with United Steelworkers. PennDOT disagreed, arguing that case law supported the use of a PLA on a public works project. The protests were denied, and Myers and Eckman then appealed to the Commonwealth Court. Read more

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Posted on January 17, 2019 by Christopher I. McCabe, Esq. in Bid Protests, Com. of Pa., Court Decisions, PennDOT, Procurement Code, Project Labor Agreements Comments Off on Commonwealth Court Strikes Down Use Of Project Labor Agreements Except In Extraordinary Circumstances

Bid Submitted By Email Was Properly Rejected

Bidding instructions are for the most part mandatory. The failure to follow bid instructions can easily result in the rejection of a bid. That is exactly what happened to one unfortunate bidder who submitted its bid by email instead of through the online portal specified by the bid instructions.

In January 2017, the PA Department of Environment Protection (DEP) advertised a bid solicitation on the PA eMarketplace website for a contract to provide services in support of the development of a climate change action plan. The bid advertisement specified, in bold print, that potential contractors were required to complete their bids via an online portal and further stated, also in bold print, that bid responses “will only be accepted electronically.”

Center for Climate Strategies, Inc. (CCS) was unable to submit its bid via the specified online portal. Instead, CCS emailed its bid to three DEP employees as a “failsafe” measure prior to the bid deadline. Because CCS’s bid was not submitted via the online portal, DEP rejected the bid as “non-responsive.” CCS protested the rejection on grounds that its bid submission was timely and complete in all respects and that the online portal was unavailable to CCS through no fault of its own. The protest was denied, and CCS then appealed to the Commonwealth Court. Read more

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Posted on January 10, 2019 by Christopher I. McCabe, Esq. in Bid Protests, Bid Responsiveness, Court Decisions Comments Off on Bid Submitted By Email Was Properly Rejected

Employees Of Nonunion Contractor Lack Standing To Challenge PennDOT Bid Solicitation

A challenge to a public bid or contract ultimately depends on the “standing” of the challenger to bring the challenge. Standing means that the party initiating legal action must show that it has been “aggrieved” – i.e., that it has a “substantial, direct, and immediate interest in the outcome of the matter. A recent decision by the Commonwealth Court squarely addressed the issue of standing in the context of a public bid solicitation and found it lacking.

In December 2017, the Pennsylvania Department of Transportation (PennDOT) issued a bid solicitation for a contract to perform highway improvements to US Route 202 in Norristown. The bid required contractors to sign a project labor agreement (PLA) with the Building and Construction Council of Philadelphia and Vicinity.

Two employees of a nonunion contractor, Allen Myers LP (Meyers), filed an action in the Commonwealth Court seeking to enjoin PennDOT from requiring contractors to sign the PLA as a condition for bidding and performing work on the Route 202 project. They alleged that the PLA precluded nonunion contractors from bidding on the project and applied different standards to different bidders, and alleged that the PLA requirement violated the Commonwealth Procurement Code and the State Highway Law. Read more

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Posted on December 27, 2018 by Christopher I. McCabe, Esq. in Court Decisions, PennDOT Comments Off on Employees Of Nonunion Contractor Lack Standing To Challenge PennDOT Bid Solicitation

Commonwealth Court Directs Municipal Authority To Execute Public Contract With Highest Scoring Bidder

How many votes are needed for a municipal authority board to award a public contract? The Commonwealth Court recently held, in Seda-Cog Joint Rail Authority v. Carload Express, Inc., 185 A.2d 1232 (2018), that a majority vote of board members present and voting is sufficient and effective to award the contract and that abstaining board members are not counted as “present” even if they are physically present.

The Seda-Cog Joint Rail Authority (Authority), is governed by a 16-member board of directors and owns rail lines in several Pennsylvania counties, which are operated by a private railroad operator. In 2014, the Authority issued an RFP for a new operating agreement. The RFP contemplated that the highest scoring operator would receive the new agreement. Because of abstentions by board members, it was clear throughout the RFP selection process that no more than 10 board members would vote to decide the contract award. The Authority also informed candidates that it would require “yes” votes from at least nine board members to award a contract. However, this voting requirement was not included in the RFP or the Authority’s bylaws.

At the end of the evaluation process, Carload Express, Inc. (Carload) received the highest score. A meeting of all 16 board members was held, with seven votes in favor of Carload, three votes against, and six abstaining. The Authority declined to award the contract to Carload, and filed an action seeking a declaration that the 7-3 vote was ineffective. Carload filed a counterclaim seeking a contrary declaration, and an order requiring the Authority to execute a contract with Carload. The trial court ruled in favor of the Authority and Carload appealed to the Commonwealth Court. Read more

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Posted on August 2, 2018 by Christopher I. McCabe, Esq. in Court Decisions, Municipal Authorities Comments Off on Commonwealth Court Directs Municipal Authority To Execute Public Contract With Highest Scoring Bidder

Is Your Bid Responsive?

If you’ve ever submitted a bid for a public contract, you’ve no doubt heard the term “lowest responsive, responsible bidder.” In this context, what does “responsive” mean?

“Responsive” concerns whether a bid complies with the requirements specified in a bid invitation.  Before a public bid can be accepted, it must be “responsive” to the bidding specifications, i.e., it must satisfy the mandatory terms, conditions, and instructions contained in the invitation to bid.  If a bid fails to adhere to the mandatory bidding requirements, the bid is deemed “non-responsive” and must ordinarily be rejected, except in the rare circumstances where waiver of the bid defect is permitted.

Why is this important? Compliance with bidding instructions guarantees that contract awards will be made fairly and economically. First, with clear-cut ground rules for competition among bidders, none of them will obtain an unfair advantage from a special knowledge of the bidding requirements. Second, the principle of strict adherence to the bid instructions reduces the possibility of fraud, corruption, or favoritism in favor of one bidder over another.

Bids that are missing critical pricing information, or an authorized signature of the bidder are prime examples of non-responsive bids. A bid that fails to include a bid bond, that contains a counter-offer that deviates from the specifications of the bid, or that fails to include a required form, such as a signed addendum, may also be deemed non-responsive. A determination that a bid is non-responsive is typically considered final, and is normally not subject to any review or administrative appeal by the rejected bidder.  The concept of bid responsiveness was described in Nielson v. Womer, 46 Pa. Cmwlth. 283, 406 A.2d 1169, 1171 (1979):

Since Aardvark’s bid failed to comply with the bidding specifications in that it did not provide “evidence of non-cancellable agreement . . . for the life of the contract,” defendants could properly have rejected it. It is equally well settled that a defective bid cannot be remedied once the bids have been opened

If you need assistance with a bidding issue, feel free to call or email me.  I’ll be happy to assist in anyway possible.

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Posted on July 3, 2018 by Christopher I. McCabe, Esq. in Bid Responsiveness Comments Off on Is Your Bid Responsive?
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