By: Jennifer Horn
In a decision this month PennDot’s Design-Build Best-Value Bid (DBBV) procurement method has been deemed illegal by Pennsylvania’s Commonwealth Court. Strengthening earlier rulings, the Court noted that the illegality of the DBBV procurement method flows from the fact that the method permits a “subjective evaluation of construction contractors rather than utilizing criteria that are objectively measureable.”
In the case of Brayman Construction Corp., et. al, v. Commonwealther of Pennsylvania Dep’t of Transportation, a contractor Brayman, sought and obtained a permanent injunction that prohibits PennDot from using the two-step bid procurement selection method outlined in PennDot’s Publication 448, Innovative Bidding Toolkit (Publication 448). Publication 448 described the DBBV bid procurement method as one in which the number of bidders on a Project is short-listed to just three bidders who are then given stipends to prepare their final bids.
Previously, the Supreme Court of Pennsylvania enjoined Commonwealth agencies, including PennDot, from procuring construction contracts using DBBV unless there was a potential for harm to the travelling public.
This month’s ruling, however, left no room for exception. In rejecting PennDot’s attempt to justify the DBBV procurement method by proceeding under a different subsection of Section 512 of the Procurement Code, the Court found that PennDot was permanently enjoined from using this “illegal method of the selection of bidders” and would not be harmed if required to comply with the law requiring the use of objectively measurable bidding criteria.
Jennifer M. Horn is Senior Counsel at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.