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CONDUIT AND FOUNDATION CORPORATION v. CITY PHILADELPHIA (04/12/79)

decided: April 12, 1979.

THE CONDUIT AND FOUNDATION CORPORATION
v.
CITY OF PHILADELPHIA, THE WATER DEPARTMENT OF THE CITY OF PHILADELPHIA, AND CARMEN F. GUARINO, WATER COMMISSIONER. CITY OF PHILADELPHIA AND CARMEN F. GUARINO, APPELLANTS. THE CONDUIT AND FOUNDATION CORPORATION V. CITY OF PHILADELPHIA, THE WATER DEPARTMENT OF THE CITY OF PHILADELPHIA, AND CARMEN F. GUARINO, WATER COMMISSIONER. COLANERO CONTRACTING COMPANY, APPELLANT



Appeals from the Order of the Court of Common Pleas of Philadelphia County in case of The Conduit and Foundation Corporation v. City of Philadelphia, The Water Department of the City of Philadelphia and Carmen F. Guarino, Water Commissioner, No. 3426 June Term, 1977.

COUNSEL

John M. McNally, Jr., First Deputy City Solicitor, with him Sheldon L. Albert, City Solicitor, Marilyn Z. Kutler, Assistant City Solicitor, and Sally J. Bellet, Assistant City Solicitor, for City of Philadelphia, Water Department and Carmen F. Guarino, Water Commissioner.

Peter Hearn, with him Edith G. Laver, and Pepper, Hamilton & Scheetz, for The Conduit and Foundation Corporation.

Leonard B. Rosenthal, with him William F. Coyle, Albert Momjian, and, of counsel, Abrahams & Loewenstein, for intervenor, Colanero Contracting Co.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Blatt, DiSalle and Craig. Judges Rogers and MacPhail did not participate. Opinion by Judge Craig. Concurring and Dissenting Opinion by Judge Wilkinson, Jr.

Author: Craig

[ 41 Pa. Commw. Page 643]

On May 27, 1977, Defendant, the City of Philadelphia, advertised for bids for "general construction work and furnishing and installing mechanical equipment and piping for additions to Mingo Creek Stormwater Pumping Station and appurtenant work. . . ." Part of the special specifications in the proposal, as advertised, required that each bidder:

Fill out and furnish in detail in the space provided, at the time of filing of the bids, the make, type and other information necessary to identify equipment and material which has been used by him as a base bid for the various items of work. All equipment and material listed and described, shall comply with the requirements of the specifications. The City reserves the right to reject the proposal of any bidder who fails to comply with this requirement or who fails to immediately supply additional information requested by the City. No contract award shall be made until all necessary information has been submitted.

Appellant-Intervenor Colanero Contracting Company (Colanero) was the lowest bidder; The Conduit and Foundation Corporation (Conduit) was the next lowest. Like all the other bidders, Conduit listed only one make and supplier for a pump and a motor, the two categories where a special designation was requested; Colanero listed alternative suppliers in both.

The same day that the bids were opened, the city's Deputy Water Commissioner telephoned Colanero's president and requested that he designate the supplier

[ 41 Pa. Commw. Page 644]

    that he intended to use. At that time, he at least specified the supplier of the pumping apparatus, and the suppliers of the pump and the motor were confirmed by letter received two days later.

Conduit filed a complaint in equity and requested a preliminary injunction to prevent the city from awarding the contract to Colanero and to enjoin permanently the city from awarding the contract to any bidder other than Conduit. The court below, after hearings, determined that the bidding was not competitive because only Colanero listed multiple subcontractors and the city allowed it to narrow the list to one supplier after the formal opening of the bids. The court therefore issued a ...


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