Brayman Construction Corp. v. Commonwealth, Department of Transportation, 13 A.3d 925

PennDOT sought to rebuild two 1957 steel-deck truss bridges on Interstate 90 over Six Mile Creek in Erie County, a high-traffic, fracture-critical corridor, due for replacement due to cracks and corrosion.
To replace them, PennDOT used Publication 448, which describes two-step design-build best-value (DBBV) procurement with a short list of three to five teams and stipends for selected teams to develop final designs.
First step: solicit statements of interest (no monetary bids) to create a short list; Brayman and other teams submitted statements, Brayman was not shortlisted.
Second step: shortlisted teams submit technical approaches and prices; PennDOT pays stipends to develop proposals, and uses a best-value assessment to select the winner; Brayman was excluded from bidding on the Erie County Project.
Brayman filed in Commonwealth Court challenging DBBV as contrary to the Commonwealth Procurement Code, seeking injunctions and arguing lack of statutory authorization and potential harm to competition.
Commonwealth Court preliminarily enjoined use of two-step DBBV for design-build procurements, but allowed best-value method for the Erie County bridges; Brayman appealed and PennDOT cross-appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brayman is within the exclusive protest remedy of Section 1711.1.	Brayman was aggrieved by the solicitation process and thus a prospective bidder under 1711.1.	Brayman was not a bidder or prospective contractor, since it was excluded before any bid solicitation.	Brayman not within 1711.1; Commonwealth Court properly exercised equity jurisdiction.
Whether two-step DBBV procurement is authorized under the Procurement Code.	DBBV is a valid innovation for design-build projects under the Code.	DBBV short-listing and best-value evaluation violate the Code's bidding requirements for construction contracts.	Commonwealth Court ruling that best-value DBBV as implemented is not authorized for construction contracts.
Whether the injunction properly reflected the status of PennDOT's procurement and public safety considerations.	Delaying bid/procurement would unnecessarily harm the traveling public and public safety.	Urgent need and fracture-critical condition justified delaying a restart of the procurement process.	Court had apparent reasonable grounds to find public-harm in starting over; injunction upheld in part and denied for Erie County Project.

Jackson v. Centennial School District, 509 Pa. 101, 501 A.2d 218 (1985) (exhaustion of administrative remedies and standing principles cited)
Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977) (administrative remedies and open-record principles discussed)
Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 828 A.2d 995 (2003) (standard for reviewing preliminary injunctions)
Roberts v. Bd. of Dirs. of Sch. Dist. of Scranton, 462 Pa. 464, 341 A.2d 475 (1975) (appellate review and standard of review for injunctions)
Yohe v. City of Lower Burrell, 418 Pa. 23, 208 A.2d 847 (1965) (competitive bidding and public contracting principles cited)
Louchheim v. City of Philadelphia, 218 Pa. 100, 66 A. 1121 (1907) (historical bidding and municipal contracting principles cited)
Randolph Rex Serv. Corp. v. United States, 448 F.3d 1305 (Fed.Cir.2006) (requires substantial chance to bid for a prospective bidder concept)
MCI Telecomms. v. United States, 878 F.2d 362 (Fed.Cir.1989) (definition of 'prospective bidder' and bid submission timing)
Pennsylvania Associated Builders & Contractors v. DGS, 593 Pa. 580, 932 A.2d 1271 (2007) (comprehensive procurement law context for state agencies)