The Supreme Court of Pennsylvania recently rejected the Pennsylvania Department of Transportation’s Innovative Bidding Tool-kit, including its best-value design-build process for failing to comply with competitive bidding laws.  

Nearly four years ago, and not long after the I-35 bridge collapse in Minneapolis, PennDOT determined it needed to rebuild two stretches of bridges along I-90 in Erie County.  PennDOT had what it called an Innovative Bidding Tool-kit authorizing best-value design-build procurement, but it created the Tool-kit without statutory authority. 

PennDOT requested “statements of interest” from potential design-builders to evaluate the teams’ qualifications and create a short-list of three teams to submit proposals for the contract.  Brayman Construction Corporation responded but failed to make the short-list.  It then filed a lawsuit seeking a ruling that the Toolkit violated Pennsylvania public bidding laws. 

The trial court agreed with Brayman, and in 2011, the Supreme Court of Pennsylvania issued a decision upholding the trial court’s ruling.  The Court stated that “the general rule for procurement under the [Pennsylvania] Code is that, ‘[u]nless otherwise authorized by law, all Commonwealth agency contracts shall be awarded by competitive sealed bidding under section 512[.]‘”  The Tool-kit and design-build process, the Court reasoned, failed to comply with this section because PennDOT was allowed to consider factors other than price. 

The I-90 project was allowed to proceed due to fear of a failure if PennDOT was forced to start over.  Nevertheless, PennDOT was barred from soliciting additional design-build proposals without statutory authority.

Case Citation:  Brayman Construction Corporation v. Commonwealth of Pennsylvanis, Department of Transportation, 608 Pa. 584, 588, 13 A.3d 925, 927 (Penn. 2011).