The opinion of the court was delivered by: Judge Simpson
Argued: September 11, 2008
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
We are asked whether a prospective bidder may file a bid protest under the Commonwealth Procurement Code*fn1 one year prior to the contracting agency's anticipated solicitation of bids. The Pennsylvania Turnpike Commission (Contracting Agency) denied the bid protest of Philips Brothers Electrical Contractors, Inc. (Prospective Bidder), which challenged the Agency's determination that a proposed new turnpike maintenance facility is not a public building subject to the Separations Act.*fn2 Contracting Agency determined the bid protest was not ripe for review. It also concluded the facility is not a public building. On appeal, Prospective Bidder assigns error in Contracting Agency's conclusion the facility is not a public building subject to the Separations Act. Notwithstanding Prospective Bidder's interesting argument on the merits, we are compelled to dismiss the petition for review for lack of an actual controversy at this time.
The fully developed record in this matter reveals the following. On September 12, 2007, Prospective Bidder inquired with Contracting Agency whether its project bid for construction of the $20 million Plymouth Meeting Maintenance Facility (Facility)*fn3 sought a single, general contractor bid or separate bids from prime contractors for electrical, mechanical and/or plumbing work. Reproduced Record (R.R.) at 27a. Contracting Agency responded the proposed bid sought a single contractor inasmuch as the Facility is not a public building. Id. at 28a. Importantly, the project description, below, indicates Contracting Agency anticipates soliciting bids in the fourth quarter of 2008.
The parties exchanged further correspondences which ultimately resulted in Prospective Bidder's December 12, 2007, formal bid protest. The bid protest averred:
The proposed construction bidding process is in violation of the Separations Act. The proposed construction being bid includes the erection of public buildings and separate bids for primary contractors [are] mandated by statute.
Please review this protest in accordance with the procedure set forth in [the Commonwealth Procurement Code, 62 Pa. C.S. §1711.1].
Contracting Agency denied Prospective Bidder's bid protest as premature because Agency has not requested bids or established a bid opening time. See Contracting Agency Dec., 2/8/08. Nevertheless, Contracting Agency also addressed the merits of the bid protest. It rejected Prospective Bidder's assertions the term "public building" should be interpreted to mean "publicly owned building" and accepted the more restrictive meaning of "a building open to the public." Id. at 3. Consequently, Contracting Agency determined the Facility is not a public building subject to the Separations Act because it is not intended for public use.*fn4
Prospective Bidder appeals.*fn5 Relying on Supreme Court precedent,*fn6 Prospective Bidder asserts error in Contracting Agency's application of a narrow definition to the term. It urges any building constructed with public funds and for the public benefit is a public building for purposes of the Separations Act. Here, there is no dispute the public funds will be used for construction of the $20 million Facility, and the costs exceed the Separations Act's $4,000 statutory threshold. Further, it is irrelevant whether the Facility will be open to the public; the proper inquiry is whether the building benefits the public. Prospective Bidder claims Contracting Agency has applied its narrow definition of public building to other proposed projects in order to thwart compliance with the Separations Act.
For its part, Contracting Agency maintains the Separations Act does not define "public building," and the Court precedent upon which Prospective Bidder relies provides a circular definition of the term so as to leave its meaning unresolved. Contracting Agency therefore relies on the Statutory Construction Act of 1972*fn7 to adopt the following definition of public building: "A building that is accessible to the public; [especially] one owned by the government." Black's Law Dictionary, 1243 (7th ed. 1999). As further support, Contracting Agency contends use of the word public in the Separations Act would be redundant if the General Assembly intended the Act to apply to all Commonwealth-owned buildings. See Twp. of O'Hara v. Condemnation of Permanent Fee Simple Interest for Pub. Park & Recreation Area & Facilities of 4.65 Acres, more or less in O'Hara, 910 A.2d 166 (Pa. Cmwlth. 2006), appeal denied, 592 Pa. 763, 923 A.2d 412 (2007) (court should not interpret statute so as to render statutory language as mere surplusage).
Despite our serious concerns with Contracting Agency's interpretation of the term "public building," we must first address the threshold determination that the bid protest is not ripe. We conclude that we must forestall a full merits review because Prospective Bidder's December 2007 bid protest is premature.
The Procurement Code establishes a system of competitive bidding under which construction contracts are to be awarded. 62 Pa. C.S. §§901-907. The statutory mandate of competitive bidding is grounded in sound public policy; in addition to securing work at the lowest responsible price, competitive bidding invites competition and guards against favoritism, improvidence, extravagance, fraud and corruption in the award ...