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05/16/97 J.J.D. URETHANE CO. AND JOHN J. DINENNA v.

May 16, 1997

J.J.D. URETHANE CO. AND JOHN J. DINENNA, APPELLANTS
v.
MONTGOMERY COUNTY, MARIO MELE, RICHARD BUCKMAN AND JOSEPH HOEFFEL, COMMISSIONERS



Appealed From No. 95-12146. Common Pleas Court of the County of Montgomery. Judge SUBERS.

Before: Honorable Doris A. Smith, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Leadbetter

The opinion of the court was delivered by: Leadbetter

OPINION BY JUDGE LEADBETTER

FILED: May 16, 1997

J.J.D. Urethane Co. and John DiNenna (collectively "Urethane") *fn1 appeal from an order of the Court of Common Pleas of Montgomery County that dismissed their complaint in mandamus and denied their request for an injunction. Appellants assert that the Commissioners of Montgomery County violated Pennsylvania law when they awarded a public contract to a contractor who had submitted a higher bid than that submitted by J.J.D. Urethane Co. We affirm.

On April 1, 1995, the Montgomery County Commissioners posted a public bid for the furnishing of all labor and materials for re-roofing the nine-story Tower Building at the Montgomery County Geriatric and Rehabilitation Center. A complete removal of the existing roofing and replacement was called for in the contract specifications. The specifications further required that a temporary exterior elevator be installed to convey personnel, machinery and materials to and from the roof of the Tower Building. During a pre-bid meeting, a question arose as to whether the county would allow an exterior scaffold-type stairway in lieu of the elevator. On May 11, 1995, the county amended the contract proposal form to provide that "in lieu of exterior elevator the contractor may elect to substitute a stairway." The amended proposal form directed contractors to submit a base bid reflecting the cost to perform the advertised contract utilizing the elevator and an alternate bid reflecting an addition or deduction from the base bid amount to reflect the use of a stairway. At all times, the county reserved the right to reject any and all bids.

Upon the opening of the sealed bids it was found that on the base bid (including an elevator), Hygrade Co. was the lowest bidder. On the alternate (stairway) bid, Urethane was the lowest bidder. Overall, Urethane's bid on the stairway alternative was the lowest. It is undisputed that except for price and the conveyance mechanism, there was no difference in the bids; both contractors were deemed to be responsible bidders and would construct the same kind and quality of roof.

On June 1, 1995, the county announced that Hygrade was selected as the lowest responsible bidder and the contract was awarded to Hygrade. The county selected Hygrade, rather than J.J.D. Urethane, as the winning bidder on the ground that the cost of the elevator was within budget and the elevator was the better means by which to ensure safety at the job site. On June 15, 1995, appellants filed a complaint in mandamus and request for injunction. After a hearing, the trial court dismissed the complaint and denied injunctive relief. *fn2 This appeal followed.

"Where bids for public work are invited and received in the alternative, there is a presumption, in the absence of fraud or collusion, that the public officials charged with the duty of awarding a contract thereunder acted in good faith and in the best interests of the governmental agency in making the award." McIntosh Road Materials Co. v. Woolworth, 365 Pa. 190, 210, 74 A.2d 384, 393 (1950). When the actions of such public officials are challenged, the burden of showing to the contrary rests on those asserting it, and it is a heavy burden. Hibbs v. Arensberg, 276 Pa. 24, 26, 119 A. 727, 728 (1923).

However, the county's discretion is not unfettered. When a county is expending public funds it has a duty to employ competitive bidding imposed by the General Assembly so that it attempts to secure for the taxpayers the least costly contract. Lasday v. Allegheny County, 499 Pa. 434, 440, 453 A.2d 949, 952 (1982). Unless there is an emergency, County Commissioners are prohibited from making a contract in excess of ten thousand dollars ($10,000) except with and from the lowest responsible bidder meeting specifications. Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 5001(a) - (a.1). *fn3 The general standard was stated by our Supreme Court in Hibbs :

Though the directors were not bound in law to give the contract to the lowest bidder, who might be irresponsible, they were bound to investigate, and, if a bidder measured up to the law's requirement as a responsible party, the board could not capriciously award the contract to another.

276 Pa. at 29-30, 119 A. at 729.

Since it is undisputed that Urethane was a responsible bidder which submitted the lowest overall bid, it argues that the award to Hygrade was capricious, and an abuse of discretion. However, the court in Hibbs went on to note that: "but there should be a sufficient reason, where a bidder is lowest and responsible, why the job was not given to him. And, where such reason appears, the action of the board is generally conclusive." 276 Pa. at 30, 119 A. at 729. Here, the county articulated worksite safety concerns as its reason for selecting Hygrade. The county reasoned that laborers would be less likely to enter the building if they had access to an elevator, rather than walking nine flights of stairs when they needed to go on break for personal convenience or to access equipment on the ground. As the trial court noted:

According to the record, the building in question is a nine-story, high-rise that houses approximately six hundred (600) geriatric patients. On the eighth floor, the floor immediately under the roof where the work is to be done, live Alzheimer's patients. It was the explanation of the County that once the base bids, which included the construction of an elevator, were opened, the Commissioners decided this was the safer manner in which to complete the project, rather than subject the Alzheimer's patients who live in the building, to frequent confrontations with construction workers, as could be the case with the scaffold-type staircase over the elevator. The alternate bids which included the deductions for the staircase, were permitted based on the concern to keep the project under budget. Once the ...


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