Commw Court Affirms Judge Dally in P3 Bridge Case

Judge Renée Cohn Jubelirer 

A disappointed bidder challenging Northampton County's innovative bridge bundling project was rejected last October by Judge Craig Dally. He ruled Clearwater Construction and Northampton County Bridge Partners, LLC, who failed to win the bid, lacked standing. Yesterday, a three-panel agreed with Judge Dally. This is the first case to construe standing under the Public Private Transportation Partnership Act, known as the P3 Act.

What's involved here is Northampton County's use of a P3 contract to repair or replace 33 structurally deficient bridges, all in one shot. The bridges were conveyed to the county's General Purpose Authority, which then sought bids from one set of experts for the entire $40 million project. This is expected to both save money and create efficiencies.

The contract had been awarded to Kriger Construction, but disappointed bidders Clearwater and NorCo Bridge Partners sued. They contended that Kriger failed to satisfy the prerequisite requirements for a responsible bidder, lacked bridge experience. and used undue influence.

Under Pennsylvania law, a disappointed bidder generally has no standing to sue. This is because he holds no property interest in a lost contract. Judge Dally was asked to interpret the P3 Act to conclude that Clearwater and NorCo Bridge Partners do have standing as a "development entity." But in what seems like a Catch-22, the P3 Act defines a development entity as a party to a P3 contract. I doubt that Kriger would have sued itself, saying it should never have been awarded the bid.

Writing for the Court, Judge Renée Cohn Jubelirer noted that, in early drafts of the P3 Act, bidders (called "prospective offerors") could sue. But that language was eliminated. She declined to extend the definition of "development agency" to include disappointed bidders because "we would be essentially rewriting the statutory provision and reinstating the exact language that the General Assembly specifically removed before enactment. This is beyond our authority to do."