Philips Bros. Contractors v. Pa Tpke. Com'n
Decision Date | 24 November 2008 |
Docket Number | No. 318 C.D. 2008.,318 C.D. 2008. |
Citation | 960 A.2d 941 |
Parties | PHILIPS BROTHERS ELECTRICAL CONTRACTORS, INC., Petitioner v. PENNSYLVANIA TURNPIKE COMMISSION, Respondent. |
Court | Pennsylvania Commonwealth Court |
Barbara Sumple-Sullivan, New Cumberland, for petitioner.
Shanon S. Levin, Philadelphia, for respondent.
BEFORE: SMITH-RIBNER, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.
OPINION BY Judge SIMPSON.
We are asked whether a prospective bidder may file a bid protest under the Commonwealth Procurement Code1 one year prior to the contracting agency's anticipated solicitation of bids. The Pennsylvania Turnpike Commission (Contracting Agency) denied the bid protest of Philips Brothers Electrical Contractors, Inc. (Prospective Bidder), which challenged the Agency's determination that a proposed new turnpike maintenance facility is not a public building subject to the Separations Act.2 Contracting Agency determined the bid protest was not ripe for review. It also concluded the facility is not a public building. On appeal, Prospective Bidder assigns error in Contracting Agency's conclusion the facility is not a public building subject to the Separations Act. Notwithstanding Prospective Bidder's interesting argument on the merits, we are compelled to dismiss the petition for review for lack of an actual controversy at this time.
The fully developed record in this matter reveals the following. On September 12, 2007, Prospective Bidder inquired with Contracting Agency whether its project bid for construction of the $20 million Plymouth Meeting Maintenance Facility (Facility)3 sought a single, general contractor bid or separate bids from prime contractors for electrical, mechanical and/or plumbing work. Reproduced Record (R.R.) at 27a. Contracting Agency responded the proposed bid sought a single contractor inasmuch as the Facility is not a public building. Id. at 28a. Importantly, the project description, below, indicates Contracting Agency anticipates soliciting bids in the fourth quarter of 2008.
The parties exchanged further correspondences which ultimately resulted in Prospective Bidder's December 12, 2007, formal bid protest. The bid protest averred:
The proposed construction bidding process is in violation of the Separations Act. The proposed construction being bid includes the erection of public buildings and separate bids for primary contractors [are] mandated by statute.
Please review this protest in accordance with the procedure set forth in [the Commonwealth Procurement Code, 62 Pa.C.S. § 1711.1].
Contracting Agency denied Prospective Bidder's bid protest as premature because Agency has not requested bids or established a bid opening time. See Contracting Agency Dec., 2/8/08. Nevertheless, Contracting Agency also addressed the merits of the bid protest. It rejected Prospective Bidder's assertions the term "public building" should be interpreted to mean "publicly owned building" and accepted the more restrictive meaning of "a building open to the public." Id. at 3. Consequently, Contracting Agency determined the Facility is not a public building subject to the Separations Act because it is not intended for public use.4
Prospective Bidder appeals.5 Relying on Supreme Court precedent,6 Prospective Bidder asserts error in Contracting Agency's application of a narrow definition to the term. It urges any building constructed with public funds and for the public benefit is a public building for purposes of the Separations Act. Here, there is no dispute the public funds will be used for construction of the $20 million Facility, and the costs exceed the Separations Act's $4,000 statutory threshold. Further, it is irrelevant whether the Facility will be open to the public; the proper inquiry is whether the building benefits the public. Prospective Bidder claims Contracting Agency has applied its narrow definition of public building to other proposed projects in order to thwart compliance with the Separations Act.
For its part, Contracting Agency maintains the Separations Act does not define "public building," and the Court precedent upon which Prospective Bidder relies provides a circular definition of the term so as to leave its meaning unresolved. Contracting Agency therefore relies on the Statutory Construction Act of 19727 to adopt the following definition of public building: "A building that is accessible to the public; [especially] one owned by the government." Black's Law Dictionary, 1243 (7th ed. 1999). As further support, Contracting Agency contends use of the word public in the Separations Act would be redundant if the General Assembly intended the Act to apply to all Commonwealth-owned buildings. See Twp. of O'Hara v. Condemnation of Permanent Fee Simple Interest for Pub. Park & Recreation Area & Facilities of 4.65 Acres, more or less in O'Hara, 910 A.2d 166 (Pa.Cmwlth.2006), appeal denied, 592 Pa. 763, 923 A.2d 412 (2007) ( ).
Despite our serious concerns with Contracting Agency's interpretation of the term "public building," we must first address the threshold determination that the bid protest is not ripe. We conclude that we must forestall a full merits review because Prospective Bidder's December 2007 bid protest is premature.
The Procurement Code establishes a system of competitive bidding under which construction contracts are to be awarded. 62 Pa.C.S. §§ 901-907. The statutory mandate of competitive bidding is grounded in sound public policy; in addition to securing work at the lowest responsible price, competitive bidding invites competition and guards against favoritism, improvidence, extravagance, fraud and corruption in the award of municipal contracts. Premier Comp Solutions, LLC v. Dep't of Gen. Servs., 949 A.2d 381 (Pa. Cmwlth.2008).
To that end, the Procurement Code sets forth procedures to challenge the solicitation or award of a contract allegedly in violation its provisions. See 62 Pa.C.S. § 1711.1; MSG Group, Inc. v. Dep't of Pub. Welfare, 902 A.2d 613 (Pa.Cmwlth. 2006). In pertinent part and with added emphasis, the Procurement Code provides:
(a) Right to protest.—A ... prospective bidder ... that is aggrieved in connection with the solicitation or award of a contract, except as provided in section 521 ( ), may protest to the head of the purchasing agency in writing.
(b) Filing of protest.—If the protestant is a ... prospective bidder or offeror, a protest shall be filed with the head of the purchasing agency prior to the bid opening time or the proposal receipt date. If the ... prospective bidder ... fails to file a protest or files an untimely protest, ... the prospective bidder ... shall be deemed to have waived its right to protest the solicitation or award of the contract in any forum. Untimely filed protests shall be disregarded by the purchasing agency.
62 Pa.C.S. § 1711.1(a) and (b).
Here, Prospective Bidder argues Contracting Agency does not contest it is creating single bid specifications for construction of the Facility or that it intends on soliciting single contract bids. Further, it asserts hardship due to its inability to bid on the Facility and to plan future work and bonding allocations. For these reasons, Prospective Bidder urges the matter is ripe for review.
The doctrine of ripeness arises out of a judicial concern not to become involved in abstract disagreements of administrative policies. Texas Keystone, Inc. v. Pa. Dep't of Conservation & Natural Res., 851 A.2d 228 (Pa.Cmwlth.2004). The doctrine insists on a concrete contest, where there is a final agency action so that the courts can properly exercise their function. Id. Court rulings applying the ripeness doctrine are premised on policies of sound jurisprudence; courts should not give answers to academic questions, render advisory opinions, or make decisions based on assertions of hypothetical events that might occur in the future. Phila. Entm't & Dev. Partners, L.P. v. City of Phila., 594 Pa. 468, 937 A.2d 385 (2007).
Our Supreme Court recently addressed the ripeness doctrine in Township of Derry v. Pa. Dep't of Labor & Industry, 593 Pa. 480, 482, 932 A.2d 56, 57-58 (2007):
In deciding whether the doctrine of ripeness bars our consideration of a declaratory judgment action, we consider "whether the issues are adequately developed for judicial review and what hardships the parties will suffer if review is delayed." Alaica v. Ridge, 784 A.2d 837, 842 (Pa.Cmwlth.2001) (quoting Treski v. Kemper Nat'l Ins. Co., [449 Pa.Super. 620, 674 A.2d 1106, 1113 (1996)]). The factors we consider under our "adequately developed" inquiry include: whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the amount of fact finding required to resolve the issue; and whether the parties to the action are sufficiently adverse. Id. Under the "hardship" analysis, we may address the merits even if the case is not as fully developed as we would like, if refusal to do so would place a demonstrable hardship on the party. Id.
Assuming this discussion of ripeness in a declaratory judgment action applies here to overcome an express statutory time frame for bid protests, we must consider whether the matter is adequately developed for review and what hardships the parties will suffer if review is delayed.
This Court agrees with Prospective Bidder that the current matter is adequately developed for judicial review. The record contains Prospective Bidders' protest, its brief in support of protest, which includes a proposed advertisement for solicitation of bids, and Contracting Agency's rationale for denial of the bid protest. The parties' positions are further developed in their appellate briefs.
We cannot agree, however, the requisite harm occasioned by delay in review...
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