Design-Build Case Study: Pennsylvania Supreme Court Bars PennDOT From Conducting Design-Build CompetitionsSunday, February 12, 2012 18:25
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).