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Philips Brothers Electrical Contractors, Inc. v. Valley Forge Sewer Authority

July 1, 2010

PHILIPS BROTHERS ELECTRICAL CONTRACTORS, INC., APPELLANT
v.
VALLEY FORGE SEWER AUTHORITY



The opinion of the court was delivered by: Judge Brobson

Argued: May 17, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Appellant Philips Brothers Electrical Contractors, Inc. (Philips) appeals from an order of the Court of Common Pleas of Chester County (trial court) that denied Philips's petition for preliminary injunctive relief. Philips initiated its action against the Valley Forge Sewer Authority (Authority) in order to compel the Authority to comply with the law commonly referred to as the Separations Act.*fn1

The Separations Act provides as follows:

Hereafter in the preparation of specifications for the erection, construction, and alteration of any public building, when the entire cost of such work shall exceed four thousand dollars, it shall be the duty of the architect, engineer, or other person preparing such specifications, to prepare separate specifications for the plumbing, heating, ventilating, and electric work; and it shall be the duty of the person or persons authorized to enter into contract for the erection, construction, or alteration of such public buildings to receive separate bids upon each of the said branches of work, and to award the contract for the same to the lowest responsible bidder for each of said branches.

53 P.S. § 1003.

Philips, an electrical contracting company, filed a complaint in equity with the trial court on August 10, 2009, asserting that the Authority, as a governmental entity established under the Municipal Authorities Act (MAA), 53 Pa. C.S. §§ 5601-5623, was required to comply with the Separations Act. We summarize the averments in the complaint below.

The Authority advertised that it was seeking bids for Contract No. 09-02 for construction upgrades to several of the Authority's sewage pump stations. Initially, the Authority intended to open the bids on August 3, 2009, but it extended the opening date to August 13, 2009. Philips asserted that it is (or would have liked to have been) a prospective bidder on the project and that, consequently, it had a direct, immediate, and substantial interest in ensuring that the Authority complied with the Separations Act. Philips further asserted that the Authority, by failing to comply with the Act, precluded Philips from participating in the public bidding process with respect to the electrical aspects of the project.

Philips averred that the pump stations are public buildings under the Separations Act and that, therefore, the Authority is and was required to comply with the Separations Act. The estimated cost of the electrical work for the project is $500,000. Hence, the amount exceeds the statutory $4,000 amount below which the Separations Act does not apply. Philips averred that the work required under the project includes replacement of station pumps, motors and valves, piping relocations and mechanical, electrical and structural upgrades and repairs. As per the contract specifications, the work to be performed includes demolition at the site, concrete repair, masonry restoration, metal work, carpentry work, door work, ceiling work, HVAC work, and electrical construction work. The totality of the work involved under the contract, Philips asserted, rendered the contract one that encompassed the "alteration" of public buildings-the buildings constituting the pump stations.

Philips averred that the bid request identified "separate, prime construction disciplines" as "subgroups," but that these disciplines are really separate construction trades, which the Separations Act refers to as "branches," and that these individual disciplines are necessary to complete the "alteration" work. The work, Philips averred, will alter the pump station buildings as well as replace equipment located in the buildings. This unification of work under a single prime contractor, Philips contended, violates the Separations Act. Philips implied in the complaint that it requested the Authority to separate the work and to request bids on separate contracts, but counsel for the Authority refused to comply.

Based upon these facts, Philips requested the trial court to grant preliminary and permanent injunctive relief, preventing the Authority from opening bids and awarding a contract for the project, to void any contract the Authority might award to a single prime contractor, and to direct the Authority to request bids for each particular discipline addressed in the Separations Act.

On the same day it filed its complaint, Philips filed a petition for preliminary injunction, asserting the above facts and claiming that (1) such relief is necessary to maintain the status quo, and (2) any potential harm that might result to the Authority if the trial court granted a preliminary injunction was outweighed by the impact on Philips of a bidding and award process that violates the Separations Act. The pleading also states that "a formal bid protest has been filed with [the Authority]." (Reproduced Record (R.R.) at 9a.) The trial court entered an order on August 12, 2009, enjoining the Authority from opening any bids it had received and from awarding a contract. The trial court also scheduled a hearing for September 10, 2009, on whether the preliminary injunction should continue.

By order dated October 5, 2009, the trial court denied Philips's petition for preliminary injunction. The trial court, while tacitly agreeing with Philips that the contract work contemplated by the Authority fell within the ambit of the Separations Act, concluded that Philips was not entitled to a preliminary injunction. The trial court reasoned that Philips's failure to submit a bid meant that it was impossible to determine if Philips would have been a successful bidder and that, therefore, Philips could not quantify its damages. The trial court, while recognizing that Philips, through its complaint, was seeking to compel the Authority to comply with the Separations Act, relied upon this Court's decision in C.O. Falter Construction Company v. Towanda Municipal Authority, 614 A.2d 328 (Pa. Cmwlth. 1992), and concluded that Philips could not satisfy the standing requirements necessary to maintain its action based solely on the fact that Philips is neither a ...


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