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ADONIZIO BROTHERS v. COMMONWEALTH PENNSYLVANIA (07/27/87)

decided: July 27, 1987.

ADONIZIO BROTHERS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Department of Transportation Board of Review, in case of In Re: Pennsylvania Department of Transportation v. Adonizio Brothers, Inc., No. 001 Pre-Qualification Docket No. 85, dated March 15, 1985.

COUNSEL

Joseph F. Saporito, for petitioner.

Gregory C. Santoro, Assistant Counsel, with him, Jay C. Waldman, General Counsel, Spencer A. Manthorpe, Chief Counsel, for respondent.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 108 Pa. Commw. Page 26]

Petitioner, Adonizio Brothers, Inc., seeks review of an order of the Department of Transportation Board of

[ 108 Pa. Commw. Page 27]

Review (Board), which suspended petitioner's bidding privileges on Department of Transportation's (DOT) contracts for ninety days. We affirm the Board's suspension.

DOT awarded Contract No. 042009, a contract for a road construction project designed as Montage Access Road, Phase II Project (Montage Project), to petitioner on December 5, 1983. The contract established a goal of ten percent (10%) participation in the project work by disadvantaged business enterprises (DBE). The contract requires that the ten percent (10%) goal be reached only by expenditures to DBEs which perform a commercially useful function in the work contract. Under the contract, a DBE is considered to perform a commercially useful function when it is responsible for the execution of a distinct element of the work of a contract and carries out its responsibilities by actually performing, managing and supervising the work involved. The contract further states that a failure to carry out these requirements shall constitute a breach of contract that may result in termination of the contract and may bar petitioner from bidding on DOT contracts for up to three years.

Petitioner listed Thames Hauling Service (Thames), a certified DBE firm, as a subcontractor to provide haulage. The inclusion of Thames brought petitioner's proposed participation by DBE firms in the Montage Project to 11.85 percent. Following an investigation by the State Inspector General's office, the Board held a hearing to determine whether Thames was in fact actively involved in the performance of the work as required by the contract.

The Board found that at the time of the contract petitioner was aware that Thames owned and operated only one truck and that by agreement petitioner leased trucks to Thames for a price. Petitioner was to control

[ 108 Pa. Commw. Page 28]

    the dispatching of these leased trucks and none of the trucks doing the hauling were dispatched by Thames. The Board also found that during the performance of the contract, trucks from other firms were procured by employees of petitioner, and/or its subsidiaries, for use on the project and that Thames did not perform any function in the procurement of trucks used on the project. Petitioner paid Thames $1.00 per hour for completed hauling services performed by others, ...


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