Recently, in Hanisco v. Township of Warminster, the Commonwealth Court ruled that Warminster Township improperly negotiated new pricing for an extension of a waste services contract. The Court held that the township should have let the new contract by competitive bidding.
While the general rule is that a municipality may extend and renew public contracts without the need for competitive bidding, to do so the municipality must specify in the original bid requirements that the contract can be renewed or extended and under what terms. If the specifications do not spell out this allowance, then the contract must be competitively bid again when it expires.
The problem in Hanisco was that, while the original 5-year waste contract allowed for two 1-year extensions, the prices for the two 1-year extensions were already set by the contract. But in 2009, rather than adhering to these fixed prices, the township and the contractor, knowing that the prices were higher than in the marketplace, privately negotiated more favorable pricing for the two 1-year extensions in the form of a “rebate.” This new pricing required an amendment to the contract to reflect the better pricing and to permit the township to exercise the renewal option.
In Hanisco, the Court framed the issue as follows:
The issue before this Court is whether the prices for the waste services provided by [the contractor] set forth in the 2005 Contract for the two, one-year options for 2010 and 2011 could be privately renegotiated by the parties or whether such a renegotiation required public, competitive bidding pursuant to Section 3102(a) of the [Pennsylvania Second Class Township] Code.
The Commonwealth Court held that the conduct of the township and the contractor was improper:
… the option in the instant case contained the essential terms, including price, and was a part of the competitive bidding process. This price term was definite and not open for future negotiation. Indeed, the option here was even more definite than that in Bevilacqua, where the term of the option remained open for negotiation based on the value of the improvements the concessionaire made. Here, because the Township did not exercise the option in accordance with its terms but, instead negotiated a new price, the Township and [the contractor] entered into a new contract that became subject to the Code’s mandatory public bidding requirements.
The evil which the Commonwealth Court addressed in Hanisco is the opportunity for favoritism when a municipality negotiates in private for a contract that should be competitively bid. While the township officials may have believed that they were acting in good faith, in order to get the best deal they could for their constituents, in reality by not putting the contract out for bid the township would not know if it could have achieved even greater savings.
As the Commonwealth Court stated:
The overarching public policy encompassed by the public bidding requirements must take precedence to ensure the integrity of the process, its transparency and fairness, and to engender a greater sense of trust in government among the citizen taxpayers. While we understand that the Township wanted to provide savings to its constituents, the decision not to advertise its waste services contract for competitive bidding has prevented the parties from knowing whether greater savings could have been achieved had the contract been rebid pursuant to the Code.
The Hanisco decision can be found here.
Christopher I. McCabe, Esq.
