House Committee Votes To Amend HB 163 To Repeal Separations Act

The latest onslaught against the more than 100-year old Separations Act has begun.

On June 19, 2019, the House State Government Committee voted 15-10 in favor of amending House Bill 163 to remove the language which would have allowed public projects to be completed by one of four different project delivery methods. Instead, the amended HB 163 now simply repeals the Separations Act in its entirety. The Committee also voted 15-10 to report the amended HB 163 out of the Committee.

The newly amended HB 163 can be found here.

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

Posted on June 20, 2019 by Christopher I. McCabe, Esq. in Separations Act Comments Off

Is The Separations Act Again In Danger Of Repeal?

Is the Separations Act once again in danger of repeal?

House Bill 163, whose prime sponsor is Representative Garth D. Everett, proposes to fully repeal the Separations Act and further amend the Pa. Procurement Code to allow for public projects to be completed by one of four different project delivery methods: (1) construction management at-risk; (2) design-bid-build with multiple prime contractors; (3) design-bid-build with a single prime contractor; or (4) design-build. Each of these delivery methods is defined in the HB 163.

The memorandum for HB 163 describes the Separations Act as “an entirely outdated law costing the taxpayers of Pennsylvania money unnecessarily.” The Separations Act was enacted in 1913 and requires public entities to solicit and award separate contracts for plumbing, heating, electrical, and ventilating work that is part of a public construction project where the cost of construction exceeds $4,000.

A vote on HB 163 is scheduled for Tuesday, June 18th, before the House State Government Committee.

Time will tell whether the Separations Act survives this latest repeal effort.

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

Posted on June 17, 2019 by Christopher I. McCabe, Esq. in Separations Act Comments Off

Separations Act Not Superseded By Guaranteed Energy Savings Act

In a recent, unreported opinion, the Commonwealth Court held that the Separations Act is not superseded by the Guaranteed Energy Savings Act (GESA), 62 Pa.C.S. §§ 3751-3758, which allows a public entity to award a single contract to implement an “energy conservation measure.”

In May 2017, James P. Wescott, the owner of Wescott Electric Company, filed a taxpayer lawsuit to enjoin the Delaware County Intermediate Unit (IU) from awarding a single $38 million contract for the construction of two new additions to an existing structure, the removal of a boiler system, and installation of a new centralized HVAC system to serve all three connected structures. Wescott challenged the award based on the IU’s failure to follow the Separations Act which requires separate bids for plumbing, HVAC, and electrical work. The IU argued that GESA specifically permitted the award of a single contract because the project, which included replacement of an existing boiler and installation of a new centralized HVAC system, qualified as an “energy conservation measure” under 62 Pa.C.S. § 3752. The trial court agreed with the IU and denied the injunction, ruling that a guaranteed energy savings contract did not have to comply with the Separations Act. Read more

Posted on May 24, 2018 by Christopher I. McCabe, Esq. in Guaranteed Energy Savings Act, Separations Act Comments Off

Does Separations Act Prohibit Use Of Best Value Contracting For Construction Of Philadelphia Public Buildings?

Now that “best value” contracting is officially the new game in town for City of Philadelphia procurement, with the issuance of the new best value regulations, it’s worth asking whether the longstanding Separations Act precludes the City from using best value contracting for contracts for the construction of public buildings.

The Separations Act provides that, for public building construction in Pennsylvania in excess of $4,000, all public owners must prepare separate specifications, solicit separate bids, and award separate contracts for general construction, plumbing, heating and ventilating, and electrical work, with the additional requirement that the award must be made to the “lowest responsible bidder.”

The Separations Act unquestionably applies to the City. With a mandate to award the contract to “the lowest responsible bidder,” the Separations Act would appear to prohibit the City from using a “best value” standard to award construction contracts for a City public building project. Of course, time will tell whether City officials and the courts will agree with this viewpoint.

If you need assistance on a Separations Act issue, feel free to call or email me for a no-cost consultation. I’ll be happy to assist in anyway possible.

Posted on November 21, 2017 by Christopher I. McCabe, Esq. in Best Value Contracting, City of Phila., Separations Act Comments Off

Commonwealth Court: Laches Requires Reversal Of Injunction Issued For Violation Of Separations Act

A recent decision by the Commonwealth Court of Pennsylvania illustrates the extreme perils of waiting too long to challenge a violation of the public bidding laws.

In December 2015, the West Jefferson Hill School District solicited bids for a new high school project. All sanitary, storm, and water line installations inside and up to five feet outside the building were included in the scope of the prime plumbing contract. All site sanitary, storm, and water line installations more than five feet from the building were included in the scope of the prime general contract as “site utility” work. In January 2016, the school district awarded the prime plumbing contract to Wheels Mechanical Contracting (Wheels). Read more

Posted on August 10, 2017 by Christopher I. McCabe, Esq. in Court Decisions, Separations Act Comments Off

AIA Pennsylvania To Host Debate On Separations Act

On Thursday, July 13, AIA Pennsylvania, the unifying body of the Pennsylvania chapters of the American Institute of Architects, will host a debate on the Separations Act. The moderated debate will take place at Harrisburg University and will feature key players on both sides of the Separations Act. You can find more information and register to attend the event at the AIA Pennsylvania registration page.

Posted on July 3, 2017 by Christopher I. McCabe, Esq. in Separations Act Comments Off

Is The Separations Act In Danger Of Repeal?

In Pennsylvania, public construction projects are nearly always governed by the Separations Act, a law that was passed in 1913, more than 100 years ago.

The Separations Act (variations of which also appear in statutes governing Boroughs, Townships, and other government entities) provides as follows:

Hereafter in the preparation of specifications for the erection, construction, and alteration of any public building, when the entire cost of such work shall exceed four thousand dollars, it shall be the duty of the architect, engineer, or other person preparing such specifications, to prepare separate specifications for the plumbing, heating, ventilating, and electrical work; and it shall be the duty of the person or persons authorized to enter into contracts for the erection, construction, or alteration of such public buildings to receive separate bids upon each of the said branches of work, and to award the contract for the same to the lowest responsible bidder for each of said branches.

So, what does this mean? It means that for public building construction in excess of $4,000, all public owners must prepare separate specifications, solicit separate bids, and award separate contracts for general construction, plumbing, heating and ventilating, and electrical work. Read more

Posted on June 13, 2017 by Christopher I. McCabe, Esq. in Separations Act Comments Off

Proposed Bill Will Exclude School Work From Separations Act

The Pennsylvania Separations Act was enacted in 1913, a century ago. It requires public entities to solicit separate bids and award separate contracts for plumbing, heating, electrical, and ventilating work that is part of a public construction project where the costs of construction generally exceed $4,000.

In recent years, there have been many efforts in the Pennsylvania General Assembly to do away with the Separations Act or to limit its application. None have been successful. This year, there are again efforts brewing in the General Assembly to exclude school construction from the requirements of the Separations Act, with one bill progressing more quickly than others.

On April 17, 2013, HB324 was reported out of the House Education Committee. This bill amends the Public School Code to provide for the removal of the Separations Act requirements for school construction.

The sponsor of HB324 provides this rationale for his bill:

My legislation will relieve school districts of the mandate to comply with the Separations Act and will give them the flexibility to determine whether a single or multiple prime delivery system provides the most efficient and cost-effective way to complete a project.

It remains to be seen whether this latest effort to amend the Separations Act will be successful.