List Of Exempt Steel Products Issued For 2019

The Pennsylvania Department of General Services (DGS) has finally issued the list of machinery and equipment steel products which will be exempt for calendar year 2019 under the PA Steel Products Procurement Act. The list was published in the Pa. Bulletin on Saturday, April 27, 2019, and can be found here. The 30-day comment period expired on May 27, 2018. There were only two new steel products added to the exempt list – Drip Pan ELL and Wall Mounted Boiler. Read more

Posted on June 5, 2019 by Christopher I. McCabe, Esq. in DGS, Steel Products Act Comments Off

SEPTA Teams With Contractors Association Of Eastern PA For DBE Matchmaker Event

SEPTA has teamed with the Contractors Association of Eastern Pennsylvania for a networking event which will bring together majority contractors with small, minority-owned, and women-owned construction firms for contracting opportunities on federally-funded public works projects. Attendees will also learn how to do business with PennDOT, PhilaPort, the City of Philadelphia Office of Economic Opportunity, and SEPTA.

The matchmaking event will be held on Wednesday, May 15, 2019, from 8:00 AM – 11:00 AM, at the Sheet Metal Workers Local Union 19, at 1301 S. Christopher Columbus Boulevard, Philadelphia, PA 19147.

A flyer announcing the event can be found here.

The U.S. DOT DBE program is explained here.

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

Posted on May 8, 2019 by Christopher I. McCabe, Esq. in DBE/MBE/WBE, SEPTA Comments Off

Federal Lawsuit Challenges Use Of PLAs On City Of Philadelphia Projects

The widespread use of Project Labor Agreements (PLA) on City of Philadelphia (City) public works projects may be headed for a swift demise.

On April 18, 2019, four union-affiliated contractors – Road-Con, Inc., Neshaminy Constructors, Inc., Loftus Construction, Inc., and PKF-Mark III – and an employee of Road-Con filed a lawsuit in U.S. District Court in Philadelphia seeking an injunction against the City’s blanket use of PLAs on City public works projects in excess of $3 million. The four contractors are signatory to collective bargaining agreements with the United Steelworkers of America and the Road-Con employee is a member of the United Steelworkers. Read more

Posted on May 1, 2019 by Christopher I. McCabe, Esq. in Project Labor Agreements Comments Off

Project Labor Agreement For Montgomery County Courthouse Project Is Likely Doomed

In late December 2018, the Philadelphia Inquirer published an article about lobbying by the Philadelphia Building Trades for the Montgomery County commissioners to approve a project labor agreement (PLA) for a courthouse renovation project in Norristown. The article reported as follows:

The labor group, which comprises 50 unions and is run by the politically powerful electricians union head John “Johnny Doc” Dougherty, is lobbying the Montgomery County commissioners to approve a project labor agreement for courthouse renovation in Norristown, a major part of a 10-year project whose estimated costs have increased to more than $400 million. The work includes renovating One Montgomery Plaza, constructing a new justice center, and expanding a nearby public park. A PLA, as it is known, sets standards for wages, includes local hiring requirements, and regulates how disputes are resolved. PLAs, common in the city but not in the suburbs, also require that contractors use union labor.

On January 11, 2019, in a case brought by two nonunion contractors contesting the use of a PLA on a PennDOT project, the Commonwealth Court struck down the use of PLAs on public projects, except in extraordinary circumstances. My post on that groundbreaking decision is here.

Given the breadth of the Commonwealth Court’s ruling against the use of PLAs, absent a showing of extraordinary circumstances, the use of a PLA on the Montgomery County project seems doomed from the start and is almost certain to be challenged in court if the Montgomery County Commissioners seek to use one on the project even in the face of the Commonwealth Court’s decision. For now, until there is a decision from the Supreme Court overturning the Myers and Eckman decisions (which is not a foregone conclusion), the use of PLAs on Pennsylvania public projects is at a standstill.

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

Posted on February 12, 2019 by Christopher I. McCabe, Esq. in Project Labor Agreements Comments Off

Bidding Thresholds For Municipalities And State Authorities Increased For 2019

Effective January 1, 2019, the thresholds for public bidding by Pennsylvania state authorities and municipalities increased moderately from 2018 and are as follows:

Purchases and contracts below $11,100 require no formal bidding or written/telephonic quotations
Purchases and contracts between $11,100 and $20,599 require three written/telephonic quotations
Purchases and contracts of $20,600 and more require formal bidding

Bidding thresholds are adjusted annually for inflation by the Pa. Department of Labor & Industry under Act 90 of 2011. The Pa. Bulletin announcement announcing the 2019 bidding thresholds can be found here.

Posted on January 29, 2019 by Christopher I. McCabe, Esq. in General Comments Off

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

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

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

Posted on January 10, 2019 by Christopher I. McCabe, Esq. in Bid Protests, Bid Responsiveness, Court Decisions Comments Off

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

Posted on December 27, 2018 by Christopher I. McCabe, Esq. in Court Decisions, PennDOT Comments Off

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

Posted on August 2, 2018 by Christopher I. McCabe, Esq. in Court Decisions, Municipal Authorities Comments Off

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.