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Castille, C.J., Saylor, Eakin, Baer, Todd, Mccaffery, Orie Melvin, Jj. v. Commonwealth of Pennsylvania

February 22, 2011

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, ORIE MELVIN, JJ. BRAYMAN CONSTRUCTION CORPORATION AND STEPHEN M. MUCK, APPELLANTS/CROSS-APPELLEES
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE/CROSS-APPELLANTS



Appeal from the Order of Commonwealth Court at No. 527 MD 2008 dated 2/17/09

The opinion of the court was delivered by: Mr. Justice Saylor

[J-43A&B-2010]

ARGUED: May 12, 2010

OPINION

In this direct appeal, we address whether the Pennsylvania Department of Transportation (PennDOT) may use innovative "best value" and "short listing" methods to solicit and select among bids for highway construction projects.

I.

In 2008, PennDOT decided to rebuild two bridges, one eastbound and one westbound, carrying Interstate 90 over Six Mile Creek in Erie County (the "Erie County Project"). The existing structures are steel-deck truss bridges, the same general type of construction involved in the fatal bridge collapse in Minneapolis on August 1, 2007. The Erie County bridges were built in 1957 and redecked in 1976. They are each nearly 800 feet long, and their height is 180 feet from the stream bottom to the roadway deck, making them among the highest state-owned bridges in Pennsylvania. Traffic over these bridges consists of 40,000 vehicles daily, a figure that includes some 12,000 trucks. According to PennDOT, the bridges must be rebuilt because their structural integrity has been compromised by cracks, corroding, and other defects. To replace the bridges, PennDOT sought to select a contractor in accordance with procedures outlined in its relatively new internal publication, entitled, "Publication 448, Innovative Bidding Toolkit" ("Publication 448").

Publication 448 describes various innovative bidding methods for selecting contractors for highway projects. It explains that innovative bidding seeks, among other things, to account for social costs, such as disturbance to the traveling public, in addition to taxpayer dollar costs. Publication 448 also recites that there are a variety of methods of innovative bidding, such as the design-build method, which is a "process by which a single entity bids to provide both the design and construction under a single contract between the Department and the design-build contractor." Publication 448 at 1-3. See generally 62 Pa.C.S. §103 (defining a design/build contract as a "construction contract in which the contractor is responsible for both the design and construction of any public structure or building or other public improvements . . ..").*fn1

The design-build method differs from traditional bidding, in which PennDOT designs (or hires an engineering firm to design) the project and then solicits bids for its construction, a process known as design-bid-build procurement. Under design-build, by contrast, PennDOT supplies general technical criteria, and each design-build team formulates a design satisfying those criteria. Thus, the team supplies both design and construction services. See Publication 448 at 2-2. Moreover, there are multiple variants of the design-build method, including "design-build best-value" (DBBV). According to PennDOT, DBBV provides the agency "with the most potential for multiple design solutions and innovation in the use of materials." Id. at 3-1. Its goal is to "reduce overall time from design start to completion of the project, which provides for a shorter project completion time at a lower cost." Id. at 2-2.

PennDOT's DBBV procedure includes two steps.*fn2 The first step is aimed at creating a "short list" of three to five design-build teams, one of which will eventually be awarded the contract. To arrive at this list, PennDOT first publishes advertisements containing, inter alia, a general description of the work and its requirements, any additional technical qualifications desired, and the time frame for submitting responses. See id. at 2-1. Prospective design-build teams respond by submitting statements of interest detailing their qualifications, the resumes of key personnel, and organizational charts. The statements of interest, however, do not include any monetary bid on the project in question. From the list of timely-submitted statements of interest, PennDOT picks a short list of three to five teams that it considers best suited to the project. It communicates with the short-listed teams to ensure they have a clear understanding of the work involved and that any technical approach they may be considering is responsive to the project's needs. PennDOT additionally debriefs the non-short-listed teams, on request, concerning how they can improve their statements of interest for the next DBBV project. See id. at D-20.

The second step in two-step DBBV is for each short-listed team to submit a technical approach and a price, which becomes the basis for a negotiated stipend agreement. To accomplish this, PennDOT enters into a separate stipend agreement with the teams on the short list, under which PennDOT agrees to pay the team a stipend to develop a proposed design for the project. Thereafter, the design partner for each team develops a proposed technical approach and submits it, along with a price bid, to PennDOT. See id. at 1-3. The agency utilizes its best-value assessment methodology to determine which proposal supplies the best value for the cost of the bid. The team that submitted the winning proposal is awarded the contract.

II.

On July 8, 2008, pursuant to Publication 448, PennDOT issued an advertisement seeking statements of interest from teams of engineers and contractors wishing to enter into a DBBV-based contract for the Erie County Project. The statements were due by July 17, 2008. The advertisement stated that PennDOT would short-list three firms to receive stipend agreements based upon the agency's evaluation of all of the statements it received. The advertisement did not include the scope of the work involved, and it did not indicate that the teams could supply a price bid for the project. Appellant Brayman Construction Corporation, together with the design firm of Drewberry-Goodkind, Inc., submitted a timely statement of interest to PennDOT for consideration. Six other teams also submitted timely statements.

In mid-August 2008, PennDOT short-listed three design-build teams based upon the following weighted criteria as enumerated in its advertisement: experience with similar work (25%); management strategy for design and construction (20%); timely completion and budget control (20%); experience of key personnel (15%); past performance reports (10%); and current workload of the design-build team (10%). The short-listed teams entered into a stipend agreement with PennDOT, and they were invited to submit a technical approach for the project. Brayman-Drewberry was not one of the short-listed teams.

In early September 2008, PennDOT again advertised the Erie County Project on its ECMS system (see supra note 1), and, for the first time, stated that bids for the project's construction costs would be accepted. Bids were due November 13, 2008. Brayman's vice president testified that this second advertisement was akin to the typical notice that PennDOT provides when it seeks competitive bids on a construction job pursuant to its ordinary design-bid-build procedure, as the notice included a description of the scope of the work and a place for the construction contractor to submit a price bid. However, the advertisement also contained a qualifier in its "Special Provisions" section, indicating that bids would only be accepted from the design-build teams that were short-listed by PennDOT, and that all other bids would be rejected.

On November 3, 2008, ten days before bids were due, Brayman Construction, together with its owner and president, Stephen M. Muck (collectively, "Brayman"), filed in the Commonwealth Court a petition for review in the nature of a complaint in equity (the "Petition"), directed to the court's original jurisdiction. Brayman asserted taxpayer standing, and alleged that PennDOT's actions in using a two-step DBBV process to select a contractor for the Erie County Project was contrary to the Commonwealth Procurement Code (the "Code"),*fn3 and would compromise the integrity of the competitive bidding process by reducing competition. Brayman contended that the Code sets forth the system of competitive bidding required for all public construction jobs in the Commonwealth, and that it does not authorize PennDOT to use DBBV procurement for such undertakings. Specifically, Brayman averred that Section 512 of the Code, 62 Pa.C.S. §512, requires competitive sealed bidding except as otherwise provided in Section 511, which in turn refers to Section 513, which does not authorize a "best value" approach. Brayman stated, in this respect, that PennDOT's utilization of that approach results in an over-expenditure of public funds, as compared to the competitive sealed-bid process that the Code directs PennDOT to utilize.*fn4

Based on these averments, Brayman sought preliminary and permanent injunctive relief, precluding PennDOT from awarding a construction contract relative to the Erie County Project or future endeavors based upon any form of design-build procurement, including two-step DBBV. Brayman asserted that it had no adequate remedy at law and that the relief it sought represented the only means available to abate the harm caused by PennDOT's conduct. In this regard, Brayman averred that it was precluded from using the administrative appeal process set forth in the Code, see 62 Pa.C.S. §1711.1, because it was not technically a disappointed bidder. Brayman contended that the statement-of-interest process -- as contemplated by Publication 448 -- essentially constitutes a prequalification procedure to narrow the list of prospective bidders to the short list of design-build teams. Thus, according to Brayman, only the short-listed teams who are not awarded the final contract are entitled to make use of the Code's administrative protest procedures. See Petition at 27-28. PennDOT filed a preliminary objection, contending that exclusive jurisdiction over Brayman's claims regarding the agency's procurement procedures is vested in the Secretary of Transportation pursuant to the administrative appeal process, i.e., the bid protest procedure set forth in Section 1711.1 of the Code.*fn5

A two-day hearing was held to address the Petition and the preliminary objection, at which Stephen Muck, one other Brayman employee, and various PennDOT employees testified regarding, inter alia, two-step DBBV and the bridges in question.*fn6

At the conclusion of the hearing, the court ruled from the bench, denying PennDOT's preliminary objection and requesting briefing on the merits of Brayman's request for injunctive relief. See N.T., Jan. 15, at 207-17. As for the preliminary objection, the Commonwealth Court reasoned that Brayman was not required to use the Code's bid-protest mechanism, available to bidders and prospective bidders, because the short-listing process did not involve any bidding or bid solicitation, but instead amounted to a prequalification process by which PennDOT determined which teams were eligible to submit bids during the second step of the process. Since ...


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