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Brayman Construction Corporation and Stephen M. Muck v. Commonwealth of Pennsylvania

October 5, 2011

BRAYMAN CONSTRUCTION CORPORATION AND STEPHEN M. MUCK, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, RESPONDENT



The opinion of the court was delivered by: Dan Pellegrini, Judge

Argued: September 13, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION BY JUDGE PELLEGRINI

Before this Court is a motion for summary judgment filed by Brayman

Construction Corporation and Stephen M. Muck (collectively, Brayman) seeking a permanent injunction prohibiting the Commonwealth of Pennsylvania, Department of Transportation (PennDot) from using a short-list process and a best-value assessment method of procurement in awarding constructing contracts. For the reasons that follow, the motion for summary judgment is granted.

This matter involves the efforts of PennDot to award a contract for the Interstate-90 Six-Mile Creek Bridge Replacement Project (Project) and all future PennDot projects using a Design-Build Best-Value Process. The Best-Value Process is a two-step selection method mentioned in PennDot‟s "Publication 448 Innovative Bidding Toolkit" (Publication 448) by which the number of bidders on the Project is short-listed to just three bidders who are then given stipends to prepare their final bids. The first step of the process involves advertising by PennDot for design-build teams. Statements of interest accepted by the design-build teams are analyzed by PennDot based on "certain criteria," the selection criteria which are set forth in the advertisement, and PennDot chooses three design-build teams, i.e., a "short-list." In the second step, the short-listed teams submit technical proposals and later a stipend agreement is negotiated between PennDot and the short-listed contractors pursuant to which they ultimately develop their proposals. Once the stipend agreement is executed by PennDot and the short-listed teams, the design partner for each short- listed team then develops the technical approach which is ultimately evaluated by PennDot. PennDot then publishes on its Electronic Contract Management System website the scope of the work and bid package for the project to be used by both the design professional and by the contractor. Upon receipt of the technical approaches and bids, PennDot utilizes the "Best-Value" approach to analyze the proposals.

Brayman initially brought an action seeking both a preliminary and permanent injunction to enjoin the use of the Publication 448 Best-Value method on the bidding of the Project because, in contrast to a normal bidding process based on the lowest responsible bidder, the method of bidding actually utilized by PennDot for the Project was one where the contract was awarded on what PennDot believed was the "Best Value" based on its overall review of the bid, not the lowest price.

I.

Brayman Construction Corporation and Stephen M. Muck v. Commonwealth of Pennsylvania, Department of Transportation (Brayman I) (No. 527 M.D. 2008, filed February 17, 2009). The issue in that case was whether PennDot was authorized under the Procurement Code to utilize the Best-Value process to award contracts under the Procurement Code on the present Project and on any future projects. Relying on Section 512(g) of the Procurement Code, 62 Pa. C.S. §512(g),*fn1 which requires that a contract only be awarded to the lowest responsible bidder, we held that the Best-Value system violated the Procurement Code because in seeking bids for construction contracts, PennDot was not allowed to short-list bidders or evaluate bids based on factors not enunciated in the invitation for bids. We stated that "[t]he "Best-Value‟ system violates the Procurement Code because in seeking bids for "construction contracts,‟ PennDot is not allowed to short-list bidders or evaluate bids based on factors not enunciated in the invitation for bids."*fn2 (Brayman I) (No. 527 M.D. 2008, filed February 17, 2009, at 17.)

PennDot appealed to our Supreme Court contending, among other things,*fn3 that it could avoid competitive bidding and short-list the design-build teams that were interested in bidding on the Project through the process called for by Section 905 of the Procurement Code, 62 Pa. C.S. §905 (relating to procurement of design professional services), before soliciting competitive sealed bids from the short-listed design-build teams and awarding the contract based on the competitive sealed bids. It also argued that after the short-listing process narrowed the field to three teams, it was proper to allow the short-listed teams to engage in multiple step- sealed bidding under Section 512(h) of the Procurement Code, 62 Pa. C.S. §512(h). Our Supreme Court affirmed our decision and remanded the matter to this Court for further proceedings. Brayman II. Relying on our Supreme Court‟s decision, Brayman now requests that we grant its motion for summary judgment seeking a permanent injunction arguing that the Supreme Court‟s decision is persuasive in this matter.*fn4

An application for summary relief filed pursuant to Pa. R.A.P. 1532(b) is generally the same as a motion for peremptory judgment filed in the court of common pleas. See Official Note to Pa. R.A.P. 1532(b) which provides: "Subdivision (b) of this rule is a generalization of Pa. R.C.P. No. 1098 (peremptory judgment)‟. Summary relief may be granted only where the right thereto is clear. Pa. R.A.P. 1532(b). Where there are material issues of fact in dispute or if it is not clear that the applicant is entitled to judgment as a matter of law, the application will be denied. [Marshall v. Board of Probation and Parole, 638 A.2d 451 (Pa. Cmwlth. 1994).] See also Darlington, McKeon, Schuckers & Brown, 1 Pennsylvania Appellate Practice §1532:7 (1995). Sherman v. Kaiser, 664 A.2d 221, 225 (Pa. Cmwlth. 1995).[*fn5 ]

II.

Brayman contends that its right to relief is clear because the short-list process used by PennDot is illegal under the express provisions of the Procurement Code. Section 511 of the Procurement Code, 62 Pa. C.S. §511, mandates that: Unless otherwise authorized by law, all Commonwealth agency contracts shall be awarded by competitive sealed bidding under section 512 (relating to competitive sealed bidding) except as provided in: Section 905 (relating to procurement of design professional services). (Emphasis added.) Section 512(a) of the Procurement Code, 62 Pa. C.S. §512(a), provides that "[c]ontracts shall be awarded by competitive sealed bidding except as otherwise provided in section 511 (relating to methods of source selection)." Subsection (b) of Section 512 provides that "an invitation for bids shall be issued and shall include a procurement description and all contractual terms, whenever practical, and conditions applicable to the procurement." Section 512(g) of the Procurement Code, 62 Pa. C.S. §512,*fn6 requires that a contract can only be awarded to the lowest responsible bidder.

PennDot contends that it is not required to competitively bid the projects and can develop a "short-list" of design-build teams through the process outlined in Section 905 of the Procurement Code, 62 Pa. C.S. §905, relating to the "Procurement of design professional services." Section 905 of the Procurement Code provides, in relevant part, the following: a. Applicability. -- Design professional services shall be procured as provided in this section except as authorized by sections 514 (relating to small procurements), 515 (relating to sole source procurement) and 516 (relating to emergency procurement).

b. Policy. -- It is the policy of this Commonwealth to publicly announce all requirements for design professional services and to award contracts for design professional services on the basis of demonstrated competence and qualification for the types of services required. There shall be a committee to review the qualifications, ...


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