A. PICKETT CONST., INC. v. LUZERNE CTY. CONV. CENTER AUTHORITY
Decision Date | 11 August 1999 |
Citation | 738 A.2d 20 |
Parties | A. PICKETT CONSTRUCTION, INC., Lackawanna Land & Energy, Inc., K & K Electric, Inc., Pinnacle Roofing & Sheet Metal, Inc., and Central Pennsylvania Chapter, Associated Builders and Contractors, Inc., Appellants, v. LUZERNE COUNTY CONVENTION CENTER AUTHORITY. |
Court | Pennsylvania Commonwealth Court |
Thomas R. Davies, Lancaster, for appellants.
Thomas P. Brogan, Harrisburg, for appellee.
Before McGINLEY, J., FLAHERTY, J., and McCLOSKEY, Senior Judge.
A. Pickett Construction, Inc., Lackawanna Land & Energy, Inc., K & K Electric, Inc., Pinnacle Roofing & Sheet Metal, Inc., and Central Pennsylvania Chapter, Associated Builders & Contractors, Inc. (collectively, Appellants) appeal from an order of the Court of Common Pleas of Luzerne County (trial court) which denied Appellants' motion for summary judgment and granted Luzerne County Convention Center Authority's (Authority) motion for summary judgment. We affirm.
Four of the Appellants are contractors who are non-union. The fifth appellant, Central Pennsylvania Chapter, Associated Builders & Contractors, Inc., is a not-for-profit association of mostly non-union contractors. The Authority was formed pursuant to the Municipalities Authorities Act of 1945, Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §§ 301-322, (the Act or the competitive bid statute) in 1994 for the construction of a civic arena-convention center in Luzerne County (the Project). After an Authority Board meeting conducted on August 28, 1997, the Authority commissioned James M. O'Neill (O'Neill) to evaluate and make recommendations on the inclusion of a Project Labor Agreement (PLA) in the bidding process for the Project. A PLA is an agreement between a government authority and a collection of unions represented by a council (often a construction trades council) which applies to parts of a construction project. The terms of PLAs vary according to the terms negotiated in each agreement. The PLA at issue herein requires inter alia that all contractors who submit bids to the Authority agree to employ a certain number of union laborers at union wages, regardless of whether the contractor is a union shop or not.
O'Neill Report at Reproduced Record (R.R.) at pp. 296-97 (emphasis added).
At its November 13, 1997 meeting, the Authority accepted the recommendation in O'Neill's Report and approved the use of a PLA. Following that meeting, the Authority and the Northeast Pennsylvania Building and Construction Trades and its affiliated unions among others entered into the PLA which provided, inter alia, that the "construction work covered by this Agreement [the PLA] shall be contracted exclusively to Contractors who agree to execute and be bound by the terms of [the PLA]." R.R. at p. 310.
On January 7, 1998, the Appellants filed a complaint in the trial court seeking a declaratory judgment that the actions of the Authority in embracing the PLA were contrary to the requirements of Pennsylvania's competitive bidding statutes. On February 27, 1998, the Appellants and the Authority both filed their respective motions for summary judgment. By order dated June 1, 1998, the trial court denied Appellants' motion for summary judgment and granted the Authority's motion for summary judgment. From this order, the Appellants timely appealed to this court.
The Appellants essentially argue that the purpose of the requirement to publicly bid contracts and award them to the "lowest responsible bidder" is to insure against favoritism in the award of such contracts and to protect taxpayers. The Appellants argue that the PLA will discourage non-union contractors from even bidding on projects because the requirement to employ union members on jobs will necessitate drastic revisions in how these contractors structure the working relationships with their employees, thereby effectively restricting the pool of eligible contractors and lessening competition. According to Appellants, the PLA guts the lowest responsible bidder mandate of the Legislature.
At first blush, the form of Appellants' argument appears to be that the PLA specification in the bid causes the cost of the proposed project and hence the respective bids to be higher than they would have been without the PLA specification. Indeed, the Authority even characterizes the Appellants' argument as requiring that the contract be awarded to the lowest cost bidder. See Authority's brief at pp. 20-22. However, Appellants' argument cannot simply be that the PLA specification raises the cost of the project and therefore is illegal because many specifications have this effect. Indeed, the Appellants assert that they are not arguing that the PLA specification violates the competitive bid requirement merely on the basis that it raises the cost of the project. See e.g., Appellant's reply brief at p. 2 (). Rather, Appellants are arguing that inclusion of the PLA specification violates the competitive bid statute because it "is contrary to law for government contracts [to be awarded based upon specifications] which do not relate to the responsibility of the bidders and which deter substantial numbers of qualified bidders from offering their services on the contract." Appellant's reply brief at p. 3. This attack appears to be twofold. First, Appellants imply that because the PLA specification bears no relationship to whether a bidder can be deemed "responsible" within the meaning of the "lowest responsible bidder" language of the competitive bid statute, inclusion of such a specification violates the statute. Second, Appellants assert that the inclusion of the PLA specification unduly favors the award of government contracts to union contractors, again in violation of the competitive bid statute.
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