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

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 the Pa. Bulletin can be found here. The list for 2022 contains no new steel products but does contain one steel product that was inadvertently omitted from the 2020 and 2021 Exempt Machinery and Equipment Steel Products lists. The DGS’s 30-day comment period ends on March 21, 2022. Read more

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Posted on by Christopher I. McCabe, Esq. in DGS, Steel Products Act Comments Off on List Of Exempt Steel Products Issued For 2022

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 denial of a bid protest filed on a contract for line-clearance tree-trimming services.  The hearing officer determined that the disappointed bidder was non-responsible due to its poor performance on prior PennDOT contracts, and denied the protest. On appeal, the Commonwealth Court affirmed. Read more

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Posted on by Christopher I. McCabe, Esq. in Bid Protests, Bidder Responsibility, Com. of Pa., Court Decisions, PennDOT, Public Bidding 101, Responsibility Comments Off on Recent Commonwealth Court Decision Affirms Core Bidding Principles

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 that contains both foreign and U.S. steel qualifies as U.S. steel product “only if at least 75% of the cost of the articles, materials and supplies have been mined, produced or manufactured, as the case may be, in the United States.”

The Act does not define the word “cost,” and it has been somewhat of a mystery as to what can be included as a “cost” for purposes of satisfying the 75% rule. It has always been my view of the 75% rule, and my advice to clients, that whatever cost was incurred as part of the mining, production, or manufacturing process to obtain and produce the materials that are incorporated into the finished product should count as a “cost” in determining whether the 75% rule has been satisfied.

Since its enactment, there have been few cases interpreting the Act, leading to great uncertainty and confusion among all affected parties. Now, in a case of first impression, the Pennsylvania Supreme Court has offered much needed guidance on this issue. In United Blower, Inc. v. Lycoming County Water and Sewer Authority, 259 A.3d 960 (Pa. 2021), the question concerned whether air blowers supplied on a public project for the Lycoming County Water and Sewer Authority qualified as U.S. steel products. During the project, the prime contractor provided the Authority with an ST-3 form, attesting that more than 75% of the cost of the air blowers – which contained both foreign and domestic steel – was attributable to U.S.-produced “articles, materials and supplies.” However, the Authority disputed compliance with the Act. Subsequently, a hearing was held before an independent hearing officer to decide whether the air blowers complied with the Act. Read more

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Posted on by Christopher I. McCabe, Esq. in Court Decisions, Steel Products Act Comments Off on PA Supreme Court Clarifies The Meaning Of “Cost” Under the PA Steel Products Procurement Act

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 the following clause in a bidder’s qualification statement:

By submission of any Bid, the bidder agrees that in the event its bid is rejected by the Owner for any reason and such rejection is contested by the bidder through the commencement of legal proceeding, whether in law or equity, the Owner shall be entitled to an award of reasonable attorneys’ fees and costs if the Owner’s rejection of the bid is upheld, affirmed, or otherwise not set aside.

Is this clause even enforceable? In my opinion, such a clause is patently unenforceable as against public policy. It is also a brazen attempt by a public entity to prevent a good faith bid challenge and keep its public bidding process out of the public eye. Read more

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Posted on by Christopher I. McCabe, Esq. in Bid Protests, Bid Specifications, Bidder Responsibility Comments Off on Can A Public Owner Recover Legal Fees From A Bidder Who Loses A Challenge To A Bid Rejection?

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 the Pa. Bulletin can be found here. There were four new steel products added to the exempt list – Condensing Boilers, Dielectric Nipples, Mega Press Fittings, Mega Press XL and G Fittings, and Screw Air Compressor. Read more

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Posted on by Christopher I. McCabe, Esq. in Steel Products Act Comments Off on List Of Exempt Steel Products Issued For 2020
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