What is the PA Unified Certification Program?

The Pennsylvania Unified Certification Program (PA UCP) was created as a result of a change in the Disadvantaged Business Enterprise (DBE) regulations issued by the U.S. Department of Transportation, and is designed to provide “one-stop shopping” for firms seeking certification as a DBE in accordance with 49 CFR Part 26 and as an Airport Concession DBE (ACDBE) in accordance with 49 CFR Part 23. These regulations are issued by the US DOT and governn its DBE program which mandates disadvantaged contractor goals in federally-funded contracts. Information on the US DOT program can be found here.

The PA UCP is comprised of all Pennsylvania recipients of funds from the Federal Aviation Administration (FAA), the Federal Highway Administration (FHWA), and the Federal Transit Administration (FTA).

The PA UCP makes all certification decisions on behalf of all agencies and organizations in Pennsylvania with respect to participation in the DBE and ACDBE Programs. In other words, firms certified as a DBE or ACDBE with the PA UCP are eligible to participate on any FAA-, FHWA-, or FTA-funded contract as a DBE or ACDBE.

The PA UCP website can be found here. Click here to learn how to become certified as a DBE or ACDBE.

Posted on May 16, 2012 by Christopher I. McCabe, Esq. in DBE/MBE/WBE Comments Off

Philadelphia Revokes Certification Of MBE Supply Firm; Second Action In 12 Months

In January, the City of Philadelphia’s Office of Economic Opportunity revoked the 25-year-old certification of a minority-owned supply firm and announced that it would seek to bar another contractor from receiving City contracts for three years. The OEO’s action was reported in The Philadelphia Inquirer. The OEO’s revocation was the second time in 12 months that the OEO took enforcement action stemming from abuses in the City’s minority-contracting efforts.

The OEO alleges that the MBE supply firm acted essentially as a “pass-through” entity – contending that a prime contractor agreed to use the MBE supply firm for materials, but instead bought materials from a second firm and paid a 3% fee to the MBE supply firm. The Inquirer further reported that City investigators found that the prime contractor and the non-DBE firm had generated false invoices to cover their tracks. The City alleges that the non-DBE firm had used the MBE supply firm as a sham minority contractor on at least fourteen other city contracts.

Last year, in May 2011, the OEO had announced the voluntary 20-month debarment of a significant locally-based general contractor for failure to comply with the City’s contracting requirements. The Philadelphia Inquirer article on this suspension can be found here. The suspension in May 2011 was the first time the City had suspended a contractor, but it certainly won’t be the last.

The City’s enforcement actions mean that City contractors can no longer evade the OEO requirements on City contracts. The OEO will closely monitor contractors for compliance, and serious sanctions may be imposed on contractors for non-compliance.

Posted on May 14, 2012 by Christopher I. McCabe, Esq. in City of Phila., DBE/MBE/WBE Comments Off

Renegotiation Of Prices For Contract Extension Held Unlawful; Competitive Bidding Required

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.

Posted on May 9, 2012 by Christopher I. McCabe, Esq. in Court Decisions Comments Off

Should The Prevailing Wage Act Be Amended?

The Pa. Prevailing Wage Act mandates the payment of specified wages for publicly-funded public works contracts of $25,000 or more. The wages are typically tied to the wages established by area collective bargaining agreements.

Currently, there are a number of proposed amendments to the Act which would alter application of the Act to different public contracts.

House Bill 709, or the “School Construction Cost Reduction Act,” would exempt school districts as a public entity required to pay prevailing wages, unless the school board votes to be subject to prevailing wage.

House Bill 1329 would raise the contract monetary limit from $25,000 to $185,000. The $25,000 limit was set in 1961.

There are opposing viewpoints on the various proposed amendments to the Act as well as to the general concept of payment of prevailing wages on public contracts. Viewpoints in favor of the amendments and against the Act can be found here and here. Viewpoints in favor of the Act and opposing the proposed amendments can be found here and here.

For a non-partisan viewpoint from an economist with the nonpartisan Keystone Research Center, click here.

Needless to say, the proposed amendments would radically alter the landscape of public contracting in Pennsylvania. Whether such an altered landscape would actually result in lower construction costs for public entities and taxpayers, without a reduction in decent, middle class wages for workers on public works projects, is an open question. In all likelihood, the possibility of significantly lower costs on public contracts is probably just an illusion, and something touted by politicians looking for votes.

Posted on May 7, 2012 by Christopher I. McCabe, Esq. in Prevailing Wage Comments Off

PENNVEST Announces $115 Million In Water And Wastewater Projects

On April 25, 2012, the Pennsylvania Infrastructure Investment Authority (PENNVEST) announced the investment of $115 million in 28 non-point source, drinking water, and wastewater projects in 17 counties. In the PENNVEST press release, Governor Tom Gorbett is quoted:

“These projects will significantly contribute to improved waterways, including the Chesapeake Bay, and will also create hundreds of new jobs that are so vital to our local communities.”

“These projects serve the dual purposes of responsible environmental stewardship and steadfast economic recovery, both of which are critical to the future of Pennsylvania.”

Of the $115 million total, $82 million is for low-interest loans and $33 million is offered as grants.

The funding comes from a combination of state funds approved by voters, federal grants to PENNVEST from the Environmental Protection Agency, and recycled loan repayments from previous PENNVEST funding awards. This new funding will undoubtedly mean more work for public works contractors performing wastewater and utility work in Pennsylvania.

For the official PENNVEST press release, click here.

Posted on May 3, 2012 by Christopher I. McCabe, Esq. in General Comments Off

Public Bidding 101: Responsiveness

This post is one in a continuing series on the basics of public bidding in Pennsylvania. The topic of this post is “responsiveness.”

The term “responsiveness” refers to whether a bid is compliant with the requirements specified in the invitation to bid. For a public bid to be accepted, it must be “responsive” to the bidding instructions, meaning that it must satisfy the mandatory terms, conditions, and instructions contained in the bid invitation. If a bid fails to adhere to the mandatory bidding requirements, the bid is considered “non-responsive.”

Mandatory compliance with bidding instructions guarantees that contract awards will be made fairly and economically. First, with clear-cut ground rules for vendor competition, none of the bidders 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 or favoritism in favor of one bidder over another.

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

Whether a bid which is non-responsive can nonetheless be accepted by waiving the bid defect was addressed in my earlier post on the “Hall of Fame” decision in Gaeta v. Ridley School District.

Posted on May 2, 2012 by Christopher I. McCabe, Esq. in Bid Responsiveness, Public Bidding 101 Comments Off

OEO Changes Policy on City Contracts for Non-Stocking M/W/DSBE Suppliers

After long treating M/W/DSBE supply firms the same as M/W/DSBE subcontractors, and giving City contractors 100% credit for the use of M/W/DSBE supply firms, the City of Philadelphia Office of Economic Opportunity has now changed its tune. Apparently, the OEO will no longer give full credit for use of an M/W/DSBE supply firm, unless the firm is a “stocking” supplier, meaning that it actually has in stock the supplies which it plans to furnish to the prime contractor on the City contract.

The new policy was reported in The Philadelphia Tribune in February. Angela Dowd-Burton, Executive Director of the OEO, was quoted in the Tribune article as follows:

“They [the M/W/DSBE] don’t have the inventory, and the probability is they’re just picking up the phone and collecting a fee…So, we’ve decided that whatever commission you get from making that call, that’s the only participation we’re going to report on.”

“Contractors will ultimately have to find participation from minority- and women-owned businesses that actually hire people and use contractors that do work, as opposed to someone that is providing more of a clerical function.”

The new OEO policy will undoubtedly affect many M/W/DSBE supply firms, as it is rare that any supplier will have in stock all of the needed supplies for a construction project. Where custom or special order equipment is involved, as is the case on many public works projects, it is unlikely that any supplier will have the equipment in stock.

The OEO is reportedly encouraging the use of subcontractors for the ordering of construction supplies. It is hard to see how this makes any difference, however, as it is unlikely that a subcontractor will have in stock the supplies that the supply firm does not.

As for City contractors, they must now pay greater attention to the firms that they propose to meet the City’s M/W/DSBE contracting goals. If those firms are suppliers, and not working subcontractors, the City contractor may need to think twice before using the supply firm to avoid risking disqualification for failure to meet the City’s contracting goals, or seek clarification from the OEO before submitting a bid.

Posted on April 30, 2012 by Christopher I. McCabe, Esq. in City of Phila., DBE/MBE/WBE Comments Off

City Issues FY2012 1st Quarter Report for M/W/DSBE Contracting

In January 2012, the City’s Office of Economic Opportunity issued its First Quarter Report for Fiscal Year 2012 for contracting activity by minority, woman, and disabled-owned business enterprises (M/W/DSBEs) on City and City-related contracts. The report can be found here.

Posted on April 28, 2012 by Christopher I. McCabe, Esq. in City of Phila., DBE/MBE/WBE Comments Off

Failure to Submit Proper Consent of Surety Is Non-Waiveable Bid Defect

In a recent decision, Dragani v. Borough of Ambler, 37 A.3d 27 (2012), the Commonwealth Court of Pennsylvania has ruled that a bid for a borough waste collection contract contained a non-waiveable defect where the bidder failed to include a proper consent of surety from a surety with an at least $20 million of underwriting authority, as per the bid instructions.

While the Court in Dragani recognized that the Supreme Court’s decision in Gaeta granted municipalities more leeway in waiving apparent defects, the Court declined to find that the defect was waiveable under the Gaeta decision. Instead, the Court held that the borough’s instructions were unambiguous and removed any discretion to waive the consent of surety requirement. The Court followed its decision in Glasgow v. Pennsylvania Department of Transportation, 851 A.2d 1014 (Pa. Cmwlth. 2004), where it held that, if a defect involves the waiver of a mandatory requirement that the bid specifications treat as non-waiveable, then the defect cannot be waived.

One concern, not explored in the Court’s opnion, is whether the underwriting authority limitation could serve in future bids as a means to disqualify an otherwise qualified bidder whose surety happens not to meet the $20 million threshold, without any real benefit for the municipality. In Dragani, the bidder’s surety, Fidelity-Maryland, had $16 million in underwriting authority, but its parent had $571 million in underwriting authority.

Nonetheless, the primary lesson from Dragani is that bidders must pay careful attention to the bid instructions, especially those concerning the bid security. This lesson cannot be overstated.

Posted on April 26, 2012 by Christopher I. McCabe, Esq. in Court Decisions Comments Off

Public Bidding Hall of Fame: Gaeta v. Ridley School District

This is one in a series of posts which will highlight significant Pennsylvania court decisions in the area of public bidding and contracts. The first decision highlighted concerns waiver of bid defects.

In Gaeta v. Ridley School District, 567 Pa. 500, 788 A.2d 363 (2002), the low bidder submitted as bid security a B-rated bid bond, whereas the bid instructions had required an “A-rated” bid bond. However, the school district waived the apparent bid defect and allowed the bidder to substitute an A-rated bid bond for the B-rated bid bond. The school district’s decision was challenged as a violation of the basic rules of public bidding.

On appeal, the issue was whether the school district could waive the defect in the low bidder’s bid. The Supreme Court of Pennsylvania rejected the taxpayer challenge, and upheld the bid bond substitution because no competitive advantage was conferred on the low bidder and because the bid bond did not affect the performance of the contract as the bid bond would ultimately be replaced by a performance bond.

In Gaeta, the Supreme Court announced a new test for waiver of bid defects. Under the test announced in Gaeta, a municipality is permitted to waive a bid defect where the waiver will not deprive the municipality of an assurance that the contract would be entered into, performed, and guaranteed according to its specified requirements, and where the waiver will not place one bidder in a position of advantage over the other bidders or will not otherwise undermine the necessary standard of competition.

The waiver test in Gaeta has been applied in numerous case since Gaeta was decided.