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PENNSYLVANIA INDUSTRIES FOR BLIND AND HANDICAPPED v. DEPARTMENT GENERAL SERVICES (05/20/88)

decided: May 20, 1988.

PENNSYLVANIA INDUSTRIES FOR THE BLIND AND HANDICAPPED, PETITIONER
v.
DEPARTMENT OF GENERAL SERVICES, RESPONDENT



Appeal from the Order of the Department of General Services, in the case of Pennsylvania Industries for the Blind and Handicapped, No. Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 116 Pa. Commw. Page 265]

Pennsylvania Industries for the Blind and Handicapped (petitioner) appeals the order of the Secretary of

[ 116 Pa. Commw. Page 266]

General Services (Secretary) which confirmed the presiding officer's proposed report finding that the Department of General Services (respondent) did not abuse its discretion in awarding service purchase contracts to the lowest bidder. For the reasons which follow, we agree.

The facts are as follows: In February, 1986, petitioner informed the Pennsylvania Department of Transportation, Engineering Division (DOT) that it was interested in providing complete maintenance services for Rest Area Sites 17-18, 19-20, 21-22, and E beginning July 1, 1986.*fn1 As petitioner was interested in a number of the Rest Area maintenance contracts, DOT asked its central office for guidelines.

The DOT central office provided DOT with guidelines for establishing the fair market price, which was supplied by the respondent. The guidelines instructed DOT to solicit bids in the open market and to establish the low bid price as the fair market price. DOT solicited bids from contractors interested in providing maintenance services for the Rest Area Sites.

DOT informed petitioner, by letter dated May 5, 1986, that the fair market price for each of the Rest Area Sites was established by the low bid prices meeting specifications. In a letter dated May 19, 1986, petitioner accepted the Rest Area maintenance contracts for Sites 17-18 and 19-20 at the established fair market prices (the low bid prices). Contracts for those sites were awarded to petitioner.

[ 116 Pa. Commw. Page 267]

In petitioner's May 19, 1986, letter, petitioner also informed DOT that the respondent should review the fair market prices established by DOT for Sites 21-22 and E, and that the respondent should establish the fair market price in accordance with the law. The Bureau of Purchases for the respondent reviewed the prices established by DOT for Sites 21-22 and E and concluded that they represented the fair market prices. DOT subsequently requested a hearing before the respondent and a determination by the Secretary.

In a proposed report, the presiding officer concluded that the respondent did not abuse its discretion in determining that the low bid price meeting specifications was established as the fair market price. The report also concluded that the low bid prices for the Rest Area Sites 21-22 and E were fair market prices for 1986-87. In an order dated May 4, 1987, the Secretary confirmed the presiding officer's proposed report.

Petitioner argues that: (1) it was an abuse of discretion for the Secretary to establish the low bid price as the fair market price; (2) the cost of the agency in performing the services in the prior year should have been considered by the respondent in establishing the fair market price for the current contract year; and (3) a contract which is subject to review to determine the fair market price should not be awarded until the final determination of the fair market price.

Our scope of review is limited to a finding of whether an error of law was committed, constitutional rights were violated, or whether substantial evidence supports the findings of fact. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

We note that the issue presented before us is moot. However, in cases in which there is a likelihood that the issue will reappear ...


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