PENNSYLVANIA COMMONWEALTH COURT REJECTS PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BIDDING POLICY
Matthew Chabal III, Esq.
James Smith Dietterick & Connelly, LLP
P.O. Box 650, Hershey, PA 17033
On October 5, 2011, the Pennsylvania Commonwealth Court issued a decision in Brayman Construction Corp. v. Pennsylvania Dept. of Transp., 30 A.3d 560 (Pa. Cmwlth. 2011), upholding the trial court’s issuance of a permanent injunction against the Pennsylvania Department of Transportation’s use of the “Design-Build Best-Value Process” to award construction contracts. The Court found that it violated the open and competitive bidding requirements of the Pennsylvania Procurement Code.
This case involved a contract for the Interstate-90 Six-Mile Creek Bridge Replacement Project for which PaDOT attempted to use the “Design-Build Best-Value Process.” PaDOT advertised for design-build teams, the design-build teams submitted their Statements of Interest, and PaDOT created a “short-list” of teams. The selected teams then submitted technical proposals and entered into stipend agreements with PaDOT for further development of those technical approaches. After submission of the refined technical approaches, PaDOT published the scope of work and bid package to be used by the design-build teams to submit final proposals. PaDOT analyzed the proposals using the “Design-Build Best-Value Process” to determine which design- build team would win the award of the project.
The Commonwealth Court found that the discretionary nature of the “Design-Build Best-Value Process” violated Section 512 of the Commonwealth Procurement Code, 62 Pa. C.S.A. § 512, which requires a contract to be awarded to the “lowest responsible bidder.” The Court rejected PaDOT’s contention that it was permitted to avoid competitive bidding and short-list design- build teams under 62 Pa. C.S.A. § 905, which controls the procurement of design professional services.
The Commonwealth Court also rejected PaDOT’s argument that 62 Pa. C.S.A. § 512(h) permits the challenged practice by authorizing “multistep sealed bidding.” The Court concluded that 62 Pa. C.S.A. § 512, read in its entirety, requires “that any criteria which are established for the basis of an award must be objectively measurable and must be specifically set forth in the invitation to bid” and 62 Pa. C.S.A. § 512(h) does not give PaDOT “a free pass on the bidding requirements under Section 512(e).”
For more information, please contact Matt Chabal, P.O. Box 650, Hershey, PA 17033 | 134 Sipe Ave., Hummelstown, PA 17036 | 717.533.3280 EXT 2070 | email@example.com.
This Alert is provided for informational purposes only and does not constitute legal advice. Before taking any action related to the issues addressed above, you should consult with an attorney of your choice.