Recent Changes to Delaware Port Authority Bidding Rules

Posted by Veronica Finkelstein on September 21, 2010

Prompted by criticism relating to inappropriate perks, nepotism, and corruption, the Delaware River Port Authority (DRPA) hDRPA.jpgas recently enacted reforms that will affect DRPA’s construction projects. The DRPA is responsible for operating 4 toll bridges between Philadelphia and New Jersey, as well as the Port Authority Transit Corporation (PATCO) commuter rail line.

The DRPA first came under scrutiny last month when it was revealed that its public safety director, Michael Joyce, had allowed his daughter to use a DRPA EZ-Pass account for free. Soon after, DRPA raised eyebrows again when it revoked certain employee perks, including the use of a free EZ-Pass, on August 18, 2010, and then backtracked and attempted to reinstate the perks on August 30, 2010, less than two weeks later. Last week, New Jersey Governor Chris Christie vetoed the DRPA’s attempt to restore the perks.

Public scrutiny arising from the discovery of employee perks and other corruption resulted in a push for reform not only from Governor Christie but also from Pennsylvania Governor, Edward G. Rendell. Substantial changes resulted, including the institution of regular audits and rules prohibiting nepotism.

Elimination of No-Bid Contracts

One notable reform is the elimination of no-bid contracts. Generally, no-bid contracts on government projects are permitted only in limited circumstances. No-bid contracts may be permitted where there is only one source for a product; for example, if only one manufacturer produced the materials necessary for a project. Similarly, for projects where time is of the essence, such as when repairs to a bridge must be done within a matter of hours to prevent harm to commuters, a no-bid contract may be appropriate. Prior to the recent reforms, assertions were made that the DRPA allowed no-bid contracts for projects that should have been open for bidding.

The elimination of no-bid contracts is great news for Philadelphia and New Jersey contractors. Bridge and rail line projects that otherwise would have been funneled to regular DRPA contractors without any open bidding will now be made available for public bid. Open bidding means more opportunities for area contractors. Area contractors should become aware of all of the new DRPA requirements to ensure that their bids will be eligible for consideration for newly available projects.

Failure to List Equipment Could Be a Problem for Your Bid

Posted by Janesa Urbano on August 23, 2010

Contractors and subcontractors who engage in public work must be mindful of the language contained in bid solicitations.  While equipment.jpgit is easy to presume that the solicitations or advertisements for certain types of contracts are consistent within the same municipality, agency or public entity, bid requirements could be unintentionally created by the use of particular words over others, for example, “shall” as opposed to “may.” 

In a recent New Jersey case, Cioffi’s Towing Service, Inc. v. Borough of Collingswood, et. al., the Court held that a bidder who failed to list certain equipment deemed mandatory by the municipality would be disqualified from consideration.  The Court determined that compliance with the list of equipment was mandatory because the word “shall” was used.  Although this is not necessarily a construction case, the lesson for New Jersey bidders is that they must be increasingly mindful of any list of requirements contained in a bid solicitation or advertisement, especially since failure to meet such requirements could result in “material, non-waivable” bid defects. 

In this case, the municipality included certain equipment requirements in the bid, and the list of equipment owned provided by the bidder did not comport with these requirements.  The reasoning behind the inclusion of the requirement for certain items was so that the municipality could be certain of the availability of the equipment during the performance of the project.  Because the bidder failed to comply, the municipality had no assurance that this equipment would be available, or that the job could be done properly.  Additionally, it would not have been fair to award the job to the bidder here because there may have been potential bidders who declined to bid on the project because they did not have the required equipment or the ability to obtain it, even if they could adequately perform the job.  Allowing this bid to be considered, the Court reasoned, would give an unfair advantage to the bidder despite their failure to comply with the requirements. 

The Court noted that the bid solicitation included language stating that the bid “shall meet the minimum requirement…”.  The Court ruled that this language was purposeful and, therefore, it would be impermissible for the municipality to “transform the mandatory requirement in specifications into a request”.

This case illustrates why it is so important for contractors and subcontractors to always read each portion of a bid solicitation or advertisement with extreme care, even if it looks like a template or boilerplate language.