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Valdo R. Dragani v. Borough of Ambler and Bfi Waste Services of Pa

February 6, 2012

VALDO R. DRAGANI, APPELLANT
v.
BOROUGH OF AMBLER AND BFI WASTE SERVICES OF PA, LLC D/B/A ALLIED WASTE SERVICES OF VALLEY FORGE



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: October 18, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE McCULLOUGH

Valdo R. Dragani (Appellant) appeals from the order of the Montgomery County Court of Common Pleas (trial court), dated January 26, 2011, denying Appellant's request for a preliminary injunction to enjoin the Borough of Ambler (Borough) from awarding BFI Waste Service of PA, LLC, d/b/a Allied Waste Service of Valley Forge (BFI) a waste collection and recycling contract as the lowest responsible bidder under section 1402(a) of the Borough Code, 53 P.S. §46402(a).*fn2

In October of 2010, the Borough issued a public advertisement requesting sealed bids for its refuse, recyclables and yard waste hauling contract to provide service to 2,250 households over three years beginning on January 1, 2011. In relevant part, the bid specifications provide as follows:

8. BONDS & INSURANCE

A. CONSENT OF SURETY -- Each Bidder must accompany his Bid with an officer-signed Consent of Surety from an approved Surety Company that is licensed to transact business in the Commonwealth of Pennsylvania and is listed on the current United States Department of Treasury Circular 570 with its underwritten limitation therein stated at least equal to $20,000,000. The consent of surety shall state that the surety company in question unconditionally agrees to furnish the proper Performance Bond and a Labor and Material Bond where required covering up to the full amount of the Contract Price as security for the faithful performance of all work under the Contract including any option period required of the performance bond to be submitted. The Bond shall be furnished prior to award of the Contract. Each Consent of Surety must include the surety's most recent available financial statement. Failure to provide the required Consent of Surety at the time of bid submittal shall preclude a bid from being considered.

B. PERFORMANCE BOND -- Prior to the execution of the service contract the successful bidder will be required to furnish a performance bond for the full term of the 3-year or 5-year contract term accepted. Annually renewable bonds are not acceptable. Any bond can be reduced to cover the full amount of the remaining years of the contract as each year is completed. For option years the bond must equal 100% of the option year(s) when selected.

(Reproduced Record (R.R.) at 125a-26a) (emphasis added).

However, paragraph seventeen of the bid specifications states:

B. The Borough reserves the right to accept any Bid, and to reject any and all Bids, when such is deemed by the Borough to be in its best interest.

(R.R. at 195a) (emphasis added). Further, the Advertisement for Bids provides as follows:

The Borough of Ambler reserves the right, which is understood and agreed to by all bidders, to refuse any or all bids submitted when in the Borough's best interest to so refuse and also reserves the right to waive any informality in bids received, but any contract awarded will be to the lowest, responsible bidder. (R.R. at 122a) (emphasis added).

Waste Management Inc., BFI, and Solid Waste Services, Inc., d/b/a J.P. Mascaro & Sons (Mascaro) submitted bids on November 30, 2010. With its bid, BFI included a consent of surety, cover letter, and sample performance bond from Fidelity and Deposit Company of Maryland (Fidelity-Maryland).*fn3 The cover letter stated that if BFI is awarded the contract, Fidelity-Maryland "has agreed to act as a surety on the bond(s) as specified in the in the bid proposal" and that "[a] copy of the bond form to be used is attached." (R.R. at 154a.) The sample bond form attached to the consent of surety is titled "PERFORMANCE BOND (Annual Form 1001)", but provides that "the term of this bond is for ...


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