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

Posted on March 4, 2022 by Christopher I. McCabe, Esq. in DGS, Steel Products Act Comments Off

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

Posted on February 3, 2022 by Christopher I. McCabe, Esq. in Bid Protests, Bidder Responsibility, Com. of Pa., Court Decisions, PennDOT, Public Bidding 101, Responsibility Comments Off

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

Posted on January 13, 2022 by Christopher I. McCabe, Esq. in Court Decisions, Steel Products Act Comments Off

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

Posted on January 11, 2022 by Christopher I. McCabe, Esq. in Bid Protests, Bid Specifications, Bidder Responsibility Comments Off

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

Posted on October 9, 2020 by Christopher I. McCabe, Esq. in Steel Products Act Comments Off

Congress Modifies Forgiveness Rules For Paycheck Protection Program Loans

On June 5, President Trump signed into law the Paycheck Protection Program Flexibility Act which modifies certain provisions pertaining to the use and forgiveness of loans made under the Small Business Administration’s Paycheck Protection Program (PPP).

First, the Act extends the covered period for PPP loans from 8 weeks to 24 weeks from the date the loan is disbursed, meaning the loan proceeds can now be used during the extended period, or during the original 8-week period. Second, the Act allows up to 40% of the PPP loan proceeds to be used for non-payroll costs, such as rent and utility payments. This is an increase from the 25% ceiling initially set by the SBA rules governing PPP loans. Third, the Act extends the deferral period for re-payment of a PPP loan to the date on which the SBA pays the forgiven loan proceeds to the PPP lender, or, if no forgiveness is sought, to 10 months after the end of the 8-week or 24-week covered period. The Act also establishes safe harbors from reduction of loan forgiveness based on reductions in full time employees due to inability to rehire employees.

The SBA intends to promptly issue new guidance and a modified PPP Loan Forgiveness Application to reflect the new rules. A joint statement by the Treasury Secretary and the SBA Administrator explaining the new PPP loan forgiveness rules can be found here.

Posted on June 12, 2020 by Christopher I. McCabe, Esq. in Covid-19, General Comments Off

Philadelphia LBE Bidder Must Include Subcontractor LBE Compliance With Its Bid

A recent Commonwealth Court decision has clarified what is required from a bidder for a City of Philadelphia (City) contract in order to be afforded the 5% bid preference for a certified local business entity (LBE) under the City’s local bidding preference ordinance.

Under the City of Philadelphia local bidding preference ordinance, an LBE receives a 5% reduction/preference from its bid price for purposes of determining the lowest bidder for award. According to the ordinance, and the City’s local bidding preference regulations, the LBE is entitled to the LBE 5% preference so long as it will perform at least 51% of the work with its own forces, or with the forces of its certified LBE subcontractors. Pursuant to the local bidding preference ordinance, and the regulations, the bidder is required to submit with its bid its LBE certification and annual affidavit, as well as the LBE certification and annual affidavit of any LBE subcontractors it intends to use to satisfy the 51% requirement.

However, notwithstanding the plain language in the ordinance and regulations, the City’s standard bid instructions normally required only submission of the bidder’s own LBE certification, even where the bidder intended to use LBE subcontractors to satisfy the requirement that the bidder will perform at least a majority of the work under the contract.

In April 2019, the City awarded a Water Department contract to Thomas P. Carney, Inc. (Carney), an LBE whose bid price was the second lowest, but was the lowest after the local preference was applied. Carney included with its bid its own LBE certification and affidavit, but did not include any LBE paperwork for its subcontractors, even though the work involved would have been performed by Carney’s LBE subcontractors.

C. Abbonizio Contractors, Inc. (Abbonizio), the low bidder, filed for a preliminary injunction to stop the contract award to Carney, claiming that Carney’s bid was defective because it failed to include a current LBE certification and affidavit for its subcontractors. The trial court refused to enter an injunction. On appeal, the Commonwealth Court reversed, finding that:

Based upon this Court’s strict reading of Section 17-109(5)(a) of the Philadelphia Code, Carney had to fulfill the requirements in Section 17-109(5)(a)(.1), (.2), (.3) and (.4) of the Philadelphia Code when it submitted its bid in order to receive the LBE preference in accordance with the Philadelphia Code. It being undisputed that Carney did not satisfy the specific LBE preference requirements, Carney should not have received the benefit thereof. Without the LBE preference, Carney was not the lowest bidder. Rather, Appellants submitted the Project’s lowest bid. Accordingly, Appellants are likely to prevail on the merits and their right to relief is clear.

Posted on June 10, 2020 by Christopher I. McCabe, Esq. in City of Phila., Local Bidding Preference Comments Off

U.S. Treasury Department Issues New Guidance Concerning Good Faith PPP Loan Certification

In response to the COVID-19 pandemic, Congress passed the CARES Act which set up the SBA-administered Paycheck Protection Program (PPP) to provide for emergency financial relief in the form of forgivable loans to small businesses with less than 500 employees. My earlier post concerning the relief offered by the CARES Act can be found here. On April 24, in response to overwhelming demand, Congress authorized additional funding of $310 billion for more PPP loans.

However, on April 23, apparently in response to critical news reports that numerous PPP loans had been obtained by large, well-financed public companies, the U.S. Department of the Treasury added Question 31 to its PPP Frequently Asked Questions (FAQ) to clarify a borrower’s required good faith certification that current “economic uncertainty” makes the PPP loan “necessary” to support “ongoing operations.” The Treasury Department has also publicly announced that it will audit all PPP loans in excess of $2 million.

The Treasury Department’s new guidance now advises borrowers to assess their economic need for a PPP loan and to carefully review the required good faith certification, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to their business. The Treasury Department guidance also establishes a “safe harbor” that specifies that any borrower, who applied for the PPP loan prior to April 23, and repays the loan in full by May 7, 2020, will be deemed to have made the required certification in good faith. Read more

Posted on April 29, 2020 by Christopher I. McCabe, Esq. in Covid-19, General Comments Off

Construction Activities May Resume In Pennsylvania On May 1

The temporary, Covid-19 related shutdown of the construction industry in Pennsylvania is finally coming to an end.

Beginning Friday, May 1, all construction industry businesses will be permitted to maintain in-person operations statewide in Pennsylvania, so long as their activities strictly adhere to the official guidance issued by Governor Tom Wolf, applicable public health safety measures, and applicable OSHA requirements. The official PA guidance covers residential, commercial, and public works construction activities. Local governments, like the City of Philadelphia, may, however, elect to impose more stringent requirements than those contained in the official guidance, in which case businesses will need to adhere to the more stringent requirements.

In resuming their construction activities and operations, all construction industry businesses must follow the official PA guidance for the construction industry, the applicable PA public health safety measures, and OSHA guidance for the construction workforce. Read more

Posted on April 27, 2020 by Christopher I. McCabe, Esq. in Com. of Pa., Covid-19, General Comments Off

The CARES Act Provides Emergency Financial Relief For Small Businesses Affected By The COVID-19 Pandemic

On March 27, in response to the ongoing COVID-19 pandemic, President Trump signed a $2.2 trillion stimulus package known as the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

The CARES Act provides provides for emergency financial relief to small businesses with less than 500 employees in the form of a new Small Business Administration “Paycheck Protection” loan program (available on April 3), refundable payroll tax credits, and deferrals of the employer portion of the payroll tax. In addition, the CARES Act expanded the SBA Economic Injury Disaster Loan Program, providing for an emergency loan advance of $10,000 which does not have to be repaid.

Please follow the links below for the specified information: