Dragani v. Borough of Ambler
2012 Pa. Commw. LEXIS 52
| Pa. Commw. Ct. | 2012Background
- Dragani appeals from trial court denial of his preliminary injunction challenging Borough of Ambler's award to BFI Waste Services as the lowest responsible bidder.
- Bids were solicited for 3-year service; bid specs required a Consent of Surety with underwriting authority of at least $20 million and a full-term performance bond.
- BFI submitted a consent from Fidelity-Maryland (underwriting authority $16 million) with a sample bond form intended to cover the full term; Zurich later backed Fidelity-Maryland’s consent.
- Mascaro alleged BFI’s bid did not conform to bid instructions and should be awarded to Mascaro as the lowest responsible bidder.
- Borough awarded the contract to BFI on December 22, 2010; BFI provided Zurich letter stating Zurich would back Fidelity-Maryland’s consent.
- Court of appeals reversed trial court, holding bid defect regarding the consent of surety was material under Glasgow and Gaeta principles, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the bid defects in the consent of surety waivable? | Dragani argues defects are material and non-waivable. | BFI/Borough contend defects may be cured or waived where permitted by bidding documents. | Waiver allowed only if not defeating assurance or competition; in this case, defect material per Glasgow. |
| Did BFI's consent of surety meet the bid specifications requiring $20M underwriting? | BFI lacked $20M underwriting at submission; defect non-waivable. | Consent form and cover letter indicated full compliance; underwriting amount not statutory, waiver permissible. | Material defect; Glasgow controls; non-conforming at bid submission. |
| Does Gaeta permit waiving nonstatutory bid defects where bid documents reserve discretion to waive? | Gaeta supports waiving only if not compromising assurance or competition. | Gaeta allows some waivers when impact on assurance/competition is minimal. | Gaeta factors require protection of assurance and competition; court applying Glasgow over Gaeta in this case. |
| Did Glasgow v. Penn. Dept. of Transp. bar waiving a mandatory bid requirement? | Mandatory requirement cannot be waived if noncompliant at bid submission. | Discretion to waive exists unless statute or mandatory rule prohibits waiver. | Glasgow controls; mandatory consent of surety defect not waived. |
| Should the trial court’s denial of preliminary injunction be reversed and remanded for further proceedings? | Yes, due to material bid defect and likelihood of success on merits. | Rationale of Gaeta allowed some waivers, but here defect is material. | Order reversed and remanded for further proceedings. |
Key Cases Cited
- Gaeta v. Ridley School District, 567 Pa. 500 (Pa.2002) (two central Gaeta factors: assurance and competitive impact of waivers)
- Glasgow v. Pennsylvania Department of Transportation, 851 A.2d 1014 (Pa.Cmwlth.2004) (mandatory bid defect cannot be waived when bid instructions fixed noncompliance as fatal)
- Fedorko Properties, Inc. v. Millcreek Twp. School Dist., 755 A.2d 118 (Pa.Cmwlth.2000) (mandatory bidding document provisions; strict responsiveness)
- Kimmel v. Lower Paxton Township, 633 A.2d 1271 (Pa.Cmwlth.1993) (strict adherence to bidding documents in bid responsiveness)