Clearwater Construction, Inc. and Northampton County Bridge Partners, LLC v. Northampton County General Purpose Authority
166 A.3d 513
| Pa. Commw. Ct. | 2017Background
- Northampton County Authority (on behalf of the County) issued an RFP under the P3 Act for a 33-bridge renewal program; Clearwater (as part of an LLC) submitted a proposal but was not selected; Kriger was chosen to negotiate a P3 agreement.
- Clearwater filed a petition under 74 Pa. C.S. § 9109(n) challenging the award and sought a preliminary injunction; the Authority filed preliminary objections arguing Clearwater lacked standing as a disappointed bidder.
- The Court of Common Pleas dismissed Clearwater’s petition for lack of standing; Clearwater appealed to the Commonwealth Court.
- Central legal question: whether Section 9109(n) of the P3 Act permits a disappointed offeror/offeror (not a party to the P3 agreement) to bring a court action challenging a selection for a non‑Commonwealth (municipal) project.
- The P3 Act defines “development entity” as a party to a public‑private transportation partnership agreement; Section 9109(m) (Commonwealth projects) expressly permits prospective offerors/offerors/development entities to protest or claim, while Section 9109(n) (non‑Commonwealth projects) refers only to an aggrieved “development entity.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a disappointed bidder (offeror) has standing under § 9109(n) to challenge a municipal P3 selection | § 9109(n) allows any party “aggrieved by a selection” to file; “development entity” should be read contextually to include offerors to avoid absurdity and leave offerors without a remedy | § 9109(n) is limited to the statutory term “development entity,” which the Act defines as a party to the P3 agreement; disappointed bidders generally lack standing absent statutory authorization | Held for defendants: § 9109(n) does not confer standing on disappointed offerors; limited to development entities (parties to the contract) |
| Whether the statutory phrase “development entity” should be read beyond its definition because it refers to those “aggrieved by a selection” | The introductory definition proviso permits deviation when context indicates; reading “development entity” narrowly would render the phrase “aggrieved by a selection” meaningless or absurd | Legislative history and text show the legislature narrowed the term and removed offerors from § 9109(n); § 9109(m) shows a deliberate distinction for Commonwealth projects | Held for defendants: context and legislative history support the statutory definition controlling; no expansion to offerors |
| Whether § 9109(n)’s use of the word “claim” implies contract‑claim (post‑award developer) rather than bid protest | Plaintiff argues “aggrieved by a selection” demonstrates intent to permit selection challenges | Defendants note “claim” typically refers to contractor contract claims; bid protests are separate and governed elsewhere (e.g., Procurement Code provisions) | Held for defendants: term “claim” and contrast with § 9109(m) support limiting § 9109(n) remedies to development entities (contract parties) |
| Whether extrinsic aids (legislative history, in pari materia statutes) support reading § 9109(n) to include offerors | Plaintiff: legislative silence on reasons for amendments is not dispositive; reading § 9109(n) with Procurement Code § 1711.1 supports offeror protest rights | Defendants: legislative amendment eliminated offerors and protests from § 9109(n); P3 Act was intended to differentiate Commonwealth vs. non‑Commonwealth remedies; common law also disfavors disappointed bidder standing | Held for defendants: extrinsic aids (legislative history, textual comparison § 9109(m) vs § 9109(n), prior law) support limiting § 9109(n) to development entities |
Key Cases Cited
- Dep’t of Transp. v. Walsh/Granite JV, 149 A.3d 425 (Pa. Cmwlth. 2016) (distinguishes P3 outcome‑based procurement from traditional Procurement Code process)
- In re Milton Hershey School, 911 A.2d 1258 (Pa. 2006) (standing requires a concrete, negative effect to be aggrieved)
- City of Phila. v. Commonwealth, 838 A.2d 566 (Pa. 2003) (standing principles)
- Black Ash Servs., Inc. v. DuBois Area Sch. Dist., 764 A.2d 672 (Pa. Cmwlth. 2000) (disappointed bidder generally lacks standing absent statute)
- James T. O’Hara, Inc. v. Borough of Moosic, 611 A.2d 1332 (Pa. Cmwlth. 1992) (same)
- J.P. Mascaro & Sons, Inc. v. Bristol Twp., 505 A.2d 1071 (Pa. Cmwlth. 1986) (same)
- Roethlein v. Portnoff Law Assoc., 81 A.3d 816 (Pa. 2013) (statutory words must be read in context)
- Meier v. Maleski, 670 A.2d 755 (Pa. Cmwlth. 1996) (legislative change in statutory language indicates changed intent)