Appeal from the Order of the Department of Transportation, Board of Review, in the case of In Re: Pennsylvania Department of Transportation v. Latrobe Road Construction Company, Inc., No. 003 Prequalification, Docket 85.
Donald J. Snyder, Jr., with him, B. Patrick Costello, Costello & Berk, for petitioner.
Gregory C. Santoro, Assistant Counsel, with him, Michael A. Finio, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 107 Pa. Commw. Page 55]
Latrobe Road Construction, Inc. (petitioner) petitions for review of the order of the Board of Review (Board) of the Department of Transportation (Department) which affirmed the Department's three year suspension of the petitioner as a bidder on departmental contracts.
[ 107 Pa. Commw. Page 56]
The petitioner admits that, on August 27, 1984, it pled guilty in United States District Court to a Sherman Anti-Trust Act violation, 15 U.S.C. § 1, and that it paid a $100,000 fine as a result thereof. This plea arose from the conduct of the petitioner's estimator and corporate secretary, Mr. Rodkey, who, during the preparation of a bid on a Department contract (the contract), telephoned the president of a competitor to inquire if the competitor intended to bid on the contract. Upon being advised that the competitor had no such intention, Mr. Rodkey, acting on a belief that, if the petitioner were the only bidder, the contract would not be let, an assumption which is contradicted by the record in this case, requested the competitor's president to submit a "complementary" bid, higher than the petitioner's. The competitor's president agreed, and Mr. Rodkey revealed the petitioner's intended bid to the competitor. Mr. Rodkey then slightly lowered the petitioner's bid and submitted it to the Department. The competitor bid an amount slightly higher than the bid it expected the petitioner to submit. These were the only bids submitted on the contract and the contract was awarded to the petitioner. These events occurred in 1979. Neither Mr. Rodkey, nor any of the other corporate officers of the petitioner was individually charged in the criminal prosecution.
Due to the petitioner's conviction, the Department,*fn1 in a January 9, 1985 letter, notified the petitioner that it was suspended from bidding on Department work, that its Prequalification Certificate was revoked and that an application for reinstatement by the petitioner would
[ 107 Pa. Commw. Page 57]
not be considered for three years from January 9, 1985, or until otherwise notified.*fn2
The petitioner appealed this determination to the Department's Prequalification Committee,*fn3 which, after what is described in the record before us as an informal hearing, i.e., a proceeding of which no record is made, affirmed the Department's actions. Upon the petitioner's further appeal, the Board*fn4 held a formal hearing, i.e., the hearing which generated the record in this matter. Thereafter, the Board rendered the written adjudication, ...