*1 932A.2d BUILDERS ASSOCIATED PENNSYLVANIA CONTRACTORS,INC., Appellee AND OF DEPARTMENT COMMONWEALTH SERVICES, Appellant. GENERAL Pennsylvania. Supreme Court of Argued Dec. Decided Oct. *3 PA O’Reilly, Harrisburg, Department Elizabeth Anne Pincus, Jeffrey Cooper, Iris Wolf Services Susan General Berk, Liss, for Department Gaines & General Services. & L.L.P., Waites, for O’Donoghue, O’Donoghue
Gerard M. PA Contractor Associations. Powell, Hutman,
John Alan Boyle, Roy W. Daniel Jones PA Day, Pittsburgh, Contractors, for Associated Builders and Inc. CAPPY, C.J, CASTILLE, SAYLOR,
Before: EAKIN, BAER, BALDWIN, JJ.
OPINION Chief Justice CAPPY. appeal, this Order, we review the Commonwealth Court’s
granting partial summary judgment appellee, Pennsyl- vania Contractors, Associated Builders (“ABC”), Inc. enjoining the appellant, the Commonwealth Department (“DGS”), General Services from using competitive sealed proposal process set forth in Section 513 of the Common- (“Procurement wealth Procurement Code “Code”), Code” or for certain future construction projects. For below, the reasons stated the Order of the Commonwealth reversed, Court is and this case is remanded the Common- wealth Court for further proceedings consistent opinion.
The record on summary judgment is as follows. In ofMay 1913, the General Assembly statute, enacted a commonly referred to Act, as the Separations which governs the letting of certain erection, contracts construction, and altera- tion of any public building. 1, 1913, Act of May P.L. No. §104 1. Under the Separations when the total cost project $4,000, exceeds those who secure the plumbing, heat- ing, ventilating, and electrical work are duty-bound to prepare *4 separate specifications, bids, separate receive and sepa- award rate contracts to the lowest responsible bidder for each of 1618.1,2 these § branches. 71P.S. Separations
1. The provides: Act § Separate specifications 1618. plumbing, heating, for ventilating work; and separate electrical bids and contracts erection, Hereafter in preparation specifications the of for the con- struction, any public and alteration building, of when the entire cost dollars, of such work shall exceed four thousand duty it shall be the
584 the 1998, Assembly enacted Procure
In
of
the General
May
Code,
supplies,
of
ser
which
the
governs
ment
1998,
vices,
May
for
Act of
15
public.
and construction
the
3
(“Act
Code,
57”).
the
Act
establishing
In
§
No. 57
1
P.L. 358
or
or modifies
nothing
repeals
supplants
57
it
provides
stated
one
except
explicitly
Separations
the
6(d)
322(6).
Act 57
§
of
provisions,
Code’s
1998,
of
P.L. 358.4
architect,
person
specifica-
engineer,
preparing
or
such
the
other
of
tions,
heating,
plumbing,
prepare separate specifications for the
to
work;
duty
person
of
ventilating,
it shall be the
and electrical
and
erection,
for the
con-
persons
to enter into contracts
or
struction,
authorized
separate
buildings to receive
public
or
of such
alteration
work,
to
of
and
award
upon
of the said branches
bids
each
responsible
for
of said
bidder
each
contract for the same
lowest
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alteration,
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repair,
Every contract
comply
public
shall
improvement maintenance of
works
or
6,
3),
3,
(P.L.
No.
known as
provisions of the act of March
Act.
Steel Products Procurement
omitted).
(footnote
to
cite
P.S.
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designation
lowest
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At the time the
Act was
Pennsylvania
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part
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3. The Procurement Code defines "Procurement” follows: leasing, licensing Buying, purchasing, renting, or "Procurement.” any supplies, term acquiring or construction. The otherwise services obtaining any supply, of pertain includes functions that also all construction, description requirements, including of selec- or service sources, preparation and award of contract tion and solicitation phases all contract administration. building, improving process altering, repairing, The Construction. building public any public or or other demolishing structure property. The improvements any any public kind to real term does existing operation struc- include routine or maintenance tures, buildings property. or real provides: 4. Act 57 modify following
Nothing repeal, supplant acts act shall parts of acts: *5 322(6) turn, required In provides DGS is comply Separations the Act for construction contracts with $25,000, that cost less than but that all to or projects equal $25,000 are exceeding subject to the statute. 62 Pa.C.S. 322(6).5 Code, Under the is for or procuring super- vising the of all services or procurement supplies, needed for by agencies pur- Commonwealth which it acts as 321(a). In chasing agent. order to execute its the responsibilities, Code policy authorizes DGS to formulate 103, 301, 311-312, §§ enter into contracts. 62 Pa.C.S. Code, the the word “contract” defined as follows: § 103. Definitions
Subject subsequent to additional definitions contained in provisions part of this are applicable specific which provisions part, of this the following phrases words and this part given when used in shall have the meanings them in section unless the context indicates clearly otherwise: 322(6), Except explicitly stated in addition of 62 Pa.C.S. 1, (P.L.155, No.104), May section 1 act of entitled "An Act erection, regulating letting of certain contracts construc- tion, public buildings.” and alteration of 6(d) Act 57 of P.L. 358. 322(6), In Section the Code states: following procedure completed The apply shall to construction to be
by department by which costs more than the amount established department (relating procurements) under section 514 to small procurement by for construction unless the work is to done be agency employees by patients Commonwealth inmates or agency Commonwealth institution: (6) For construction contracts where total construction costs are $25,000, department less required comply than shall not be (P.L. 104), May with the the act No. entitled "An act erection, letting regulating the of certain contracts for the construc- tion, public buildings,” department may and alteration of and the projects award such contracts in accordance section 511. All $25,000 equal exceeding subject to or shall be (P.L. 155, 104), May regulating the act of entitled “An No. act construction, erection, letting of certain contracts for public buildings....” alteration of 322(6). it regardless of what type agreement, A written
Contract. called, disposal supplies, for the by all parties construction and executed services or *6 (P.L. 950, 15, No. the act accordance with October 164), Attorneys Act. as the Commonwealth known omitted). (footnote § with Purdons citation 62 Pa.C.S. states that all Section 511 of Code Commonwealth Since bid- competitive sealed by shall be awarded agency contracts 512, by law provided under unless otherwise ding Section uses in DGS specified exceptions, as for Code except provided set forth in Section competitive bidding process sealed § Under contracts. 62 Pa.C.S. to award construction an for bids issues invitation and awards Section DGS to bidder. 62 Pa.C.S. responsible the lowest contract 512(b),(g).6 511 is to Section 512 listed in exceptions One Section §§ 513.7 Under Section 513. 62 Pa.C.S. Section part: provides Section 512 in relevant (a) competitive by shall be awarded Conditions for use.—Contracts (relating provided in bidding except as section 511 sealed otherwise selection). to methods of source (b) invitation for bids shall be issued Invitation for bids.—An terms, all procurement description and shall include a contractual procurement. applicable practical, whenever and conditions days bid (g) shall awarded within 60 Award.—The contract be or all bids opening by written notice to the lowest bidder rejected except provided as in this section..... be otherwise shall 512(a)-(b),(g). 62 Pa.C.S. provides in full: 7. Section 513
(a) contracting in determines for use.—When the officer Conditions bidding writing competitive 512] sealed [under that the use Commonwealth, advantageous a to the practicable either competitive may by proposals. into sealed contract (b) be entered through a Request proposals. Proposals shall be for solicited — request proposals. for (c) request proposals Public notice of the for shall notice.—Public 512(c) (relating given provided the same manner section bidding). competitive sealed (d) proposal proposals. shall Receipt of submit their —Offerors proposals prior to time and date ensure their are received competitive DGS determine whether the use of sealed bidding under 512 is either not practicable advanta- 513(a). geous so, If Commonwealth. DGS proposals by solicits from offerors for issuing request pro- [“RFP”], posals and selects for contract the offeror negotiation submits the responsive proposal who that is determined to be DGS, most advantageous taking price and other evaluation factors into account. 513(b),(g).
Under a determination policy April made DGS considers use of Section 513 for the of contracts for complex projects or those allocations in $5,000,000. excess of regard, developed a com- petitive proposal sealed process referred to as the “RFP process,” which is described in two documents that DGS distributed, the Request “Standard for Proposals Multiple (“Standard RFP”) Prime Contractors for Construction” (“RFP Guidelines”).8 the “Request for Proposals Guidelines” *7 receipt proposals. Proposals established for shall be submitted required by request in proposals. Proposals the format for shall opened competing be so as to avoid disclosure of their contents to offerors. (e) importance Evaluation.—The relative of the evaluation factors prior opening shall be proposals. fixed to A Commonwealth agency required comptroller participate to invite its in the nonvoting any evaluation aas member of evaluation committee. (f) responsible proposals.— Discussion with offerors and revision of provided request proposals, As in the negotiations for and discussions responsible be conducted with purpose for the offerors of clarifi- obtaining cation Responsible and of best and final offers. offers shall equal be respect any opportunity accorded fair and treatment with discussions, for proposals. conducting discussion and revision of In any there propos- shall be no disclosure of information derived from by competing als submitted offerors. (g) negotiation. responsible Selection for propos- offeror whose —The writing al is advantageous determined in to be the most purchasing agency, taking factors, price into consideration and all evaluation negotiation. shall selected be for contract § 62 Pa.C.S. 513. process, 8. Under RFP proposal DGS calculates a score for each responsive proposal timely responsible that is submitted. The offeror responsive proposal highest proposal whose receives the score is select- negotiation. ed for calculating contract The formula DGS uses = (0.60) proposal Proposal x score is: score Cost Submittal Score + contractors who comprised general is an association ABC Commonwealth, in the doing are or business incorporated 2005, 11, a Petition for Review October ABC filed both. On in the against Nature of a DGS Complaint Equity alleged In its ABC complaint, Commonwealth Court. RFP results in the process use of the award because DGS’s than the re contracts to someone other lowest Pennsylvania it under Consti sponsible bidder is unlawful 22; tution, III, § 71 P.S. Pa. Const. Art. Code, 511, 513, 1618, §§ the Procurement DGS 69.6; and common ABC regulations, Pa.Code law.9 in a man alleged process implemented further RFP was Law, ner Documents 45 P.S. that violated the Commonwealth seq.; et requirements; and conflicts with Section 513’s that the rights meaningful protest Procurement thwarts negotia to those are not selected for contract gives Code who tion, requested that DGS be prelimi 1711.1.ABC enjoined using from the RFP narily permanently process construction con any process other that does not award tracts to the lowest bidder. Review, Petition for DGS filed response prelim- ABC’s standing, objections, raising ABC’s lack of failure
inary remedies, failure to state a claim exhaust administrative injunctive upon granted. By relief can Order dated which denied February the Commonwealth Court DGS’s preliminary objections, and DGS filed its Answer New Matter. 25, 2006,
On March 2006 and March ABC DGS filed for partial summary judgment, respectively. cross motions The raised threshold motions the same issue—whether *8 may competitive process the sealed set forth proposal use (0.30) Disadvantaged x + Submittal Submit- Technical Score Business (0.10). proposal tal The is 100. Score maximum score noted, Separations separate specifica- requires the Act also that As heating, ventilating, plumbing, work be tions for electrical prepared; separate separate this received and that bids for work be that case, supra 1. In ABC contracts for this work be awarded. See n. this process particular argued that RFP these re- has not DGS’s violates quirements. Section 513 of the Code for the of construction contracts. 62 Pa.C.S. 513.10 The Commonwealth Court en banc addressed this threshold issue in a published opinion and order, and that procure held not construction con- tracts through competitive proposal sealed be- process cause Section 513 does not apply to construction contracts. Contractors, Pennsylvania Associated Builders and Inc. v. Commonwealth, Services, Department General A.2d (Pa.Cmwlth.2006).
The holding Commonwealth Court’s was on premised sever- First, al conclusions. the court though concluded even the word “contract” as defined in the Code at 62 Pa.C.S. includes contracts, construction “that definition is not preclu- sive because within Procurement Code definition is always used include construction contracts.” Id. at 396. Second, the court concluded that more importantly, application of the Code’s definition of contract to Section 513 was “essen- tially by incorporation vitiated” Act Separations into 322(6). the Code by Section Id. regard, court reasoned that if it were to interpret Section 513 as applying to contracts, the Code Separations would modify Act, 6(d) a result that prohibited was under Section of Act 57’s repealer third, section. Id. And the court concluded that a ruling that Section 513 included construction contracts would partial ABC's summary judgment motion for also raised whether the process law, RFP contrary was arbitrary capricious and an discretion; abuse of process whether the RFP Separations violates the Act; process Constitution; whether the RFP Pennsylvania violates the whether applicable DGS failed to follow making rule procedures in implementing process the RFP and whether the Standard RFP renders protest Procurement procedures meaningless. Code's bid partial DGS’s summary judgment motion for also raised the issues whether multiple its solicitation of prime construction contracts through proposal the use of a process sealed violates the Constitution, Pennsylvania the Commonwealth Docu- and/or Law; ments language whether the in DGS’ multiple solicitation for prime through construction contracts proposal the use of a sealed process properly protect rights protest; specific and whether two decisions determining DGS made in competitive to use the sealed
proposal process arbitrary were or an abuse of discretion. Court, None by of these issues was addressed the Commonwealth given resolution the threshold issue. *9 refer- portions legislative history the Code’s where ignore competitive to contracts and the sealed ences construction process early versions certain Code sections proposal enacted. Id. at hot sections as finally included in those were 397. 18, 2006, the
Accordingly, by May dated Common- Order summary motion granted partial Court ABC’s wealth partial summary judg- motion for judgment; denied DGS’s ment; enjoined utilizing from sealed competitive DGS future under its proposal process any project on Id. RFP and its RFP process, RFP Standard Guidelines. at 397.11 Court, timely appeal raising
DGS filed a in this held that Section correctly Commonwealth Court whether thus, not 513 does to construction contracts is apply to of construction cont procurement unavailable for the racts.12 Judge Judges dissenting opinion, a which
11. President Colins authored McGinley joined. The dissent would have concluded Leadbetter competitive proposal method that the for construction contracts sealed statute; clearly prohibited by given not constitution or is enactment, Separation Act's its use date of of the word “bidder” does preclude process, long require- so of the RFP as its other use followed; ments are and that it is unwise for the courts to microman- practices. age executive branch at 397-400. Id. jurisdiction We have Our under substantive Pennsylvania review is reflected in the Rules of Civil Procedure that Rules, summary govern judgment. Under the the court shall enter genuine any judgment whenever is no material fact as there issue of necessary of action could a element of the cause or defense that 1035.2(1). by discovery. No. Under established additional Pa.R.C.P. Rules, summary judgment evidentiary a an motion for is based on moving party judgment entitles a record that as a matter law. Note to Pa.R.C.P. No. 1035.2. appellate granting summary An reverse the of a motion for court judgment if there an error of law or an abuse of discretion. has been Inc., Club, Gulph 812 A.2d Mills Tennis 571 Pa. Atcovitz (2002). genuine As whether issues the issue as to there are no law, any question presents material fact our standard of review novo; thus, by de not defer to the made is we need determinations Checcio, 582 Pa. 857 n. lower tribunals. Fine v. (2005). 870 A.2d review, legal scope necessary extent Our resolve us, Id.; 2111(a)(2). question plenary. before Pa.R.A.P. The issue that DGS raises a matter of presents statutory Therefore, construction. the Statutory Act of Construction “Act”) 3972 (“Statutory Construction Act” or controls. 1 seq. 1501 et Under the it is fundamental that *10 object of all interpretation “[t]he and construction of statutes is to ascertain and effectuate the intention of the General that Assembly[,]” construed, and statute “[ejvery shall be if possible, effect give to all its 1 provisions.” Pa.C.S. 1921(a). § In this the Act regard, instructs that the “[w]hen of words a statute are clear and free from all ambiguity, the letter of it is not to be disregarded pretext under the 1921(b). pursuing spirit.” When, 1 however, Pa.C.S. the words of the statute are not explicit, the General Assembly’s intent is to be ascertained by considering matters other than statutory like language, the occasion necessity for the statute; enactment; the circumstances of its object it attain; seeks to remedied; laws; mischief to be former consequences particular of a interpretation; contemporaneous legislative history; and legislative and interpre- administrative 1921(c). tations. 1 Pa.C.S.
The Act provides that and phrases “[w]ords shall be construed according the rules of grammar and according to their common approved usage”; and that “technical words and phrases and such others as have a acquired peculiar and appropriate . .. meaning shall be construed according to such peculiar and appropriate or meaning definition.” 1 Pa.C.S. 1903(a). Further, if the General Assembly defines words that statute, are used in a those definitions are binding. Kimmel, Commonwealth 523 Pa. 565 A.2d (1989). The Act a presume allows court to that the General Assembly does not absurd, intend a result that is impossible of unreasonable; execution or that the Assembly General intends the entire statute to be effective, certain and and intends to favor the public interest as against any private interest. 1922(1),(2),(5). Moreover, Pa.C.S. the Act sets forth rules court to follow when provisions or among statutes are in conflict and cannot be reconciled. 1 §§ Pa.C.S. 1933-1936. conclusion that Court’s
Turning- Commonwealth from its construction contracts terms of Section 513 exclude must, start, language. we with the statute’s we coverage, is definition contract asserts that when the Code’s 513(a), the statute states effectively into incorporated wilting use determines “[w]hen [DGS] or practicable advanta- bidding sealed either competitive means a Commonwealth, a contract writ- geous to [which disposal supplies, ten ... for agreement by competitive be entered into construction] services 513(a) (emphasis §§ add- proposals.” sealed Pa.C.S. ed). Thus, con- includes clearly explicitly 513(a). §§ scope. struction contracts within its Pa.C.S. coun- Reflecting analysis, Court’s ABC Commonwealth definition of contract in 62 ters that even though Code’s agreement types, § 103 three alternative includes purposes construing is more to the definition for there *11 that inasmuch as sever- exceptions. argues Section 512’s ABC 517,13 like contain the word exceptions, al of the not, “construction,” others, 513 do the word like Section while for construction alterna- “contract” is to include contract also mentions the word “con- only exception when the tive not, does it does not cover struction.” Since Section 513 contracts. construction is in one there more to General respect:
ABC is correct is, 103. § in 62 ABC Assembly’s definition contract Pa.C.S. however, In mistaken as to more there is. addition what terms, § 103 opens passage Code with defining Pa.C.S. following in that “the words and part, that states relevant part meanings given in this shall have the phrases when used clearly to them in the context indicates this section unless added). (emphasis § From these otherwise.” Pa.C.S. words, that Assembly contemplated it follows that the General in in a term defined might there be instances the Code when 517, awards, exception multiple 512 for states 13. Section an to Section requests of its to bid or ‘‘[i]nvitations in one subsections that supplies, to be proposals shall be issued for the services or construction § purchased.” Pa.C.S. “contract,” like has a that meaning differs it, from the definition given and directed that attention be paid to what in surrounds the term order to determine whether not the Code’s definition applies.
Applying
these
instructions
we observe
context,
when read
there
nothing
to indicate that the
General
intended for the
Assembly
word “contract” as used in
that exception to mean
other
something
than its Code defini
. .. written
...
agreement
“[a]
for the
tion—
disposal
supplies, services or construction.” 62 Pa.C.S.
585-87,
Moreover,
supra pp.
See
Court’s two alternative bases for holding were unfounded. The first was Commonwealth Court’s reliance on contem poraneous legislative history to construe Section 513 and decide that it did not apply to construction contracts. Under the Statutory Construction it is only when the words of a statute are not explicit factors extraneous to statutory language may be consulted to ascertain the General Assem bly’s 1921(c); intent. 1 Packer, Commonwealth v. (2002) 568 Pa. 798 A.2d (observing that only when the language of the ambiguous statute is does statutory 1921(c) construction under 1 Pa.C.S. become necessary). Because the words of Section 513 are clear respect question us, before contemporaneous Code’s legislative *12 history, one of the Act, extraneous factors listed in the should 1921(c)(7). been § have consulted. 1 Pa.C.S.
The second was Commonwealth Court’s decision to vitiate application of the Code’s definition of contract to 513, apparently Section out of a concern that there would be a 322(6) conflict between Section and Section if the defini tion applied were the latter. Under the a court is not to anticipate and avoid a conflict between statutory provisions a other lan- statutory statutory definition or
by disregarding to effect to but not by choosing give provision, to one guage 1921(a). Rather, the solution to another. See Pa.C.S. occur statutory should one once provisions, conflict construed, lies in have been the several provisions properly to analysis the Act a court provide sections of statutory provisions there are conflicts between followwhen §§ statutes. 1 Pa.C.S. 1938-36. however, ended. must is not We present inquiry,
Our 322(6) interplay Section 513 Section address between 322(6), concerns the area of because like Section Section and has on procurement bearing construction contract resolve, ultimately that we which is whether question must procure such contacts. use Section 513 322(6), if §§ that we were to read 513. DGS asserts history, its study legislative the Code as a whole and we would sought enlarge the methods Assembly see that the General and from this we con- public procurement, contract would 322(6) incorporates clude the mandate of separate that Section bids, for plumbing, heating, and contracts venti- specifications, from the Act into the Separations lation and electrical work Code, made to the but not mandate awards be lowest Therefore, bidder. P.S. See 71 Sections 322(6) are responds and 513 harmonious. ABC that DGS’s 322(6) no merit has because words Section position 6(d) 358, Act repealer of Act P.L. 57’s Section section, Separations that all of the Act’s requirements reveal contracts under apply to DGS’ the Code. 322(6), meaning agree
As we with ABC. Section 322(6) among makes the Separations no differentiation gives every Act’s effect in the Code to clearly elements 322(6). The requirements. one of the statute’s 322(6) Separations to the Act only modification Section makes $4,000 monetary Id. trigger. increase its See 71 P.S. 322(6), conclude that under Section Accordingly, 1618.14 we noted, Separations monetary trigger, modifying after Act’s 14. As 322(6) subjects all construction contracts
595 $25,000 equal construction contracts to or in excess of must be bidder, to the responsible Separation awarded as the lowest Act Id. requires.
Yet, time, at the same 513 Section allows DGS select a other person than lowest for con bidder Thus, negotiation. struction contract 62 513(g). Pa.C.S. 322(6) 513 clearly Section and conflict in the respective Section they rules set for the of construction contracts. 322(6), §§ 513(g). Pa.C.S. juncture, At this turn to we those sections in the Statutory provide Construction Act that instructions for ascertaining General intent Assembly’s statutory provisions when conflict.15 The Act has such several sections. The section that we conclude presently is which applies Pa.C.S. covers when, here, a conflicts court faces statutory provisions two subject that cover the same and speak question matter it, before regards, and in these can be differentiated as general special. respect With to the procurement of con- contracts, 322(6) struction since Section to “all” con- applies contracts, struction it is the general provision; since Section 513 applies to certain in only construction contracts specified circumstances, exceptional it special is the provision. 62 Pa. 322(6), §§ C.S. “Lwjhenever initially
Sectionl933 general instructs that a in provision shall statute be conflict a special provision statute, same another the two shall be construed, if possible so that can be given effect to both.” Section 1933 next instructs that the conflict between the “[i]f irreconcilable, provisions two special provisions shall prevail shall be exception construed as an to the general provision, general unless provision shall be enacted later 322(6). repealer
Act. Act 57’s section is consonant with Section 322(6); 6(d) supra Act 57 P.L. 358. See 4,5. nn. 15. We argued observe that because DGS that there was no conflict provisions argued the Code’s ABC apply that Section does contracts, party position to construction application neither took a on Statutory regard. of the Construction Act in this Assembly manifest intention General
and it shall Id.16 prevail.” general provision such Statutory Construction from the principles With these 822(6) mind, that Section Act in conclude we *14 322(6), is, can §§ 513. That we are 62 Pa.C.S. irreconcilable. clear given the provisions, to harmonize these way discern no Therefore, conclude that Section we further import of each. excep and is as an viewed special provision, prevails the 322(6). Accordingly, Id. general provision, tion the of construction the procurement that contracts for we hold 513, through the under Section by be entered § 513. process. competitive proposal sealed reasons, of the the Commonwealth For all of these Order reversed, to the Common- and case is remanded Court is this this further consistent with proceedings Court for wealth opinion. consider- the participate Newman did not
Former Justice ation of this case. or decision the join opinion. BAER
Justice CASTILLE and concurring opinion. EAKIN files a Justice dissenting opinion. Justice SAYLOR files dissenting opinion. files a Justice BALDWIN EAKIN, Concurring. Justice applicable § Pa.C.S. 513 is majority I with the 62 agree else, anything much as it is to see contracts as construction 1279; however, 592-93, at 932 A.2d Majority Op., at not addressed. yet has been constitutionality of statute Contractors, Inc. and Pennsylvania Associated Builders See Services, 899 A.2d Department General Commonwealth (Pa.Cmwlth.2006) 16 to address issues (declining n. 397 because Commonwealth summary motion judgment raised construction con- § 513 applicable Court decided is 322(6) at the same time. Act Pa.C.S. and 513 were enacted 62 May P.L. 358 No. 57 tracts). singular question answers majority While well time, to us at there are concerns under Pa. this presented Const, remand, Ill, § 22 must be on art. answered taken analysis decision should not be as precluding our them.1 SAYLOR, Dissenting.
Justice the face conflict patent of the Sections between 322(6) Code, majori- Procurement Commonwealth resolution of turns on ty’s appeal application as a Statutory provides, Construction which rule, a statute are in general provisions that where two conflict, special prevail irreconcilable shall provisions exception provision. be construed as an See general 593-96, Majority Opinion, at 1280-81 (citing A.2d at 1933). 322(6) majority The reasons that Section general provision, because it all applies to contracts, and is the special Section 513 because it provision, *15 only to in applies specified certain construction contracts exceptional 595-96, circumstances. See id. at A.2d at me, however,
It seems to that the better is that Section view is general 513 the provision, because on its terms it extends to (defined the broader category of “contracts” as type of “[a] agreement, called, of regardless written what it be the disposal supplies, or or services construction ...,” 322(6) 102); whereas, Pa.C.S. is the special provision, requirement because its to to Separa- adhere the contracts,” Act applies tions to only “construction and even to then a limited subset those construction con- (namely, process only permitted 1. The sealed bid is when the normal low bidder process practical advantageous” is "not the to Commonwealth. are, best, determination, vague guide There at that standards this determination, appear procedures do guide nowhere nor unsuccessful there to be that to challenge review or the made. determination once Neither the why man on bidders nor the the knows the “nor- street Likewise, process why mal” was not used. none can know the unsuc- bidder agencies’ cessful was unsuccessful. The Commonwealth's process awarding choices constitutional be contracts cannot immune from evaluate, scrutiny, yet challenge, one cannot nor mount a otherwise, use, process constitutional or to the decision on which nor process, the result of the when one the cannot determine basis for either decision. 322(6). Thus, $25,000 cost), tracts that exceed 1933 of the majority I the agree while with view, my Act Statutory dispositive, is Construction that construction contracts application yields conclusion $25,000 Act. exceeding governed by are there plausible perspectives To the extent are two 322(6) regarded should be of Sections 513 concerning which Court should special provision, as the Commonwealth contempo- for its review the Procurement Code’s faulted tool of history, this is an legislative appropriate raneous an statutory ambiguity. in the face of such See Thus, 1921(c)(7). that such it is me significant 322(6) as a that Section functions supports position review bill provision, prime sponsor underlying in that special Assembly assurances consis- offered members of General Pennsylvania Associated tent with this conclusion. See DGS, Contractors, Commonwealth, Builders and Inc. (Pa.Cmwlth.2006) (citing Legislative Journal- A.2d 395-96 (Feb. 10, 1998)) Senate, (reflecting query at 1475 “I to make sure it Thompson, just Robert want Honorable J. major responsible any contractor always the lowest bid,” Thompson’s receive that and Senator contract that would President, at response, proposal the lowest “Mr. time, yes.”).1 affirm reasons, I For would Commonwealth these order. Court’s BALDWIN, Dissenting.
Justice majority’s conclusion that respectfully disagree I (62 of the Procurement Code of section 513 language *16 513) con- clearly unambiguously encompasses Pa.C.S. struction contracts. raising question expressly couch his Although senator did contracts, that the context indicates concern in terms "construction” concern, posed questioning was was in terms of the relevant assuring to the lowest bidder the award of contracts nonunion,” response Thompson’s "whether be union or Senator it contracts, distinguished larger consistent with Sec- between small and 322(6). See id. tion of the Procurement defines the Code term
“contract” as “a type agreement, written regardless of what called, it for the procurement or disposal supplies, ” services or However, construction.... while section 103 includes contracts for construction in the definition of “contract,” the term within Procurement Code the term “contract” does not always include construction contracts. Code,
Within the Procurement the Legislature where in- tends the contracts, statute to apply the statu- tory language frequently indicates specificity statute extends to contracts for construction. For example, section 517 governing award of multiple explicit- contracts ly encompasses contracts for construction in grant authority. (“A See also 62 Pa.C.S. contract may be awarded for a supply, service or construction item without if competition the contracting officer first determines in writ- ing that one ”) of the following ... conditions exists (emphasis added); governing allocation of small procurements for projects $10,000 that do not exceed distin- guishes service, between supply, and construction contracts as (“The follows: head of the purchasing agency may authorize procurement of the supply or service on a no-bid basis for procurements which do not exceed the amount by established the head of the purchasing agency for small no-bid procure- ments. The head the purchasing agency may authorize procurement on a no-bid basis for construction projects that do not exceed a total $10,000.”) construction cost of (emphasis added). word, Every sentence, or provision of a statute is intended for some purpose so that the statute must be con- strued so as to give effect to every word. Commonwealth v. Lobiondo, 599, 604, (1983). Pa. 462 A.2d While the Procurement Code many instances specifies which of its sections are to apply construction, to contracts the Legisla- ture failed to expressly indicate that section 513 was applica- ble to construction contracts.
It is axiomatic in determining legislative intent, all sections of a statute must be together read in conjunction
600 the other, to entire each and construed with reference with v. of Cty. Pennsylvania State statute. Hous. Auth. Chester of (1999). Comm’n, 621, 641, 935, Pa. 730 A.2d 946 556 Civil Serv. conjunction the Reading all sections of Procurement Code other, term “contract” does not each it is clear that the with Code, consistent, as used the explicit meaning a within have necessarily that the does not include construction term the Legislature includes contracts all instances. Where and excludes it in one section of statute language specific another, implied that should where language from Inc., 370, 379, Shandon, 555 724 A.2d Pa. excluded. Fonner (1999). 903, the Procurement Code the Because within con “contract” does not extend to construction always term specifically of and the does not language tracts section contracts, I not read section 513 to include construction would unambiguously encompass such contracts. 322(6) that 513 and section of the majority
The finds section in conflict. clearly engaging Procurement are When Code however, conflict between statutory various interpretation “[a] and, if possible, thereof is be avoided the parts statutes to must be construed conflicting provisions together apparently the provisions prevailing general the more over specific with Chester, Cty. Hous. 556 Pa. at ones.” Auth. of of the at 946. 513 of Procurement Code Reading A.2d for majority include contracts unambiguously the does those provi- creates an conflict with construction unavoidable expressly of the which incorporate sions Procurement Code statutory the Separations keeping principle Act. with statutes are any construction that conflicts within between avoided, hold the Legislature I decline to to be would pro- sealed permit competitive intended solicitation contracts, posals Separations construction through requires competi- which contracts be solicited process, irreconcilably conflicts Procure- bidding tive Code, Act ineffective. rendering Separations ment on contrary part In the of a intention manifestly absence Legislature, a construction two statutes which allows 460 Pa. operate mandatory. Appeal Yerger, both (1975). issue, The two statutes at A.2d Code, capable of a Act and the Procurement are by limiting remain allows both to effective which contracts, 513 to exclude construction scope section *18 leaving by bidding process such contracts to be governed determi- specified Accordingly, in the Act. Assembly nation of the Court that the General Commonwealth by did not let intend to allow construction contracts to be should be affirmed. proposal process
933A.2d 57 COMMONWEALTH
v. HOLMES, Christopher Appellant. Pennsylvania, Appellant,
Commonwealth of Appellee. Whitfield, Rufus Supreme Pennsylvania. Court of
Argued 2004. Oct.
Resubmitted Nov.
Decided Oct.