IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allan Myers, L.P., :

Petitioner :

:

v. : No. 314 C.D. 2018

: Argued: October 17, 2018

Department of Transportation, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: January 11, 2019

At issue in this appeal is the Department of Transportation’s

(PennDOT) inclusion of a requirement in a bid solicitation for a highway

construction project that the winning bidder execute a project labor agreement

(PLA)

. Alla n Myers, L.P., a nonunion construction company, petitions for review

of the order of the Secretary of Transportation dismiss ing its protest to the PLA

requirement in the bid solicitation

. T he Secretary held, inter alia

, that the PLA did

not violate Pennsylvania’s competitive bidding laws. For the following reasons, we

reverse.

Background

For some time, PennDOT has been making improvements to Markley

Street

, which is State Route 202 in Montgomery County ( Markley Street Project).

A nonunion contractor, J.D. Eckman, Inc., won the bid for the first phase of the

Markley Street Project and completed it a year ahead of schedule and on budget

.2

Reproduced Record at 349a (R.R. __). In August 2017, PennDOT issued a bid

solicitation for the second ph ase of the Markley Street Project. The solicitation

provided that all contractors were required to sign a PLA with the Building and

Construction Council of Philadelphia and Vicinity (Building and Construction

Council), which represents 11 local unions ide ntified in the PLA (Local Unions). 1

T he PLA obligated bidding contractors to hire craft labor personnel through the

Local Unions and to be bound by the Local Unions’ collective bargaining

agreement s

. In response, multiple contractors, both union and nonunion, filed

taxpaye r lawsuits, bid protests, and petitions for preliminary injunction. PennDOT

withdrew its August bid solicitation.

On December 20, 2017, PennDOT issued another bid solicitation,

which also required contractors to sign a PLA with the Building and Construction

Council. The PLA again obligate d contractors to hire through the Local Unions in

accordance with the terms of their collective bargaining agreements

. The December

bid solicitation differ ed from the August bid solicitation in one key respect: the PLA

provides that if the successful bidder already has a collective bargaining agreement

with United Steelworkers, that bidder was not subject to the hiring requirements

under the PLA and permitted to use its United Steelworkers workforce

. 2

Specifically, the PLA states in pertinent part:

1 These Local Unions, representing various crafts, are Bricklayers & Allied Craft Workers #1,

Carpenters Regional Council, Cement Masons Local #592, IBEW Local Union #98, Iron Workers

Local Union #401, Iron Workers Local #405 (Rod Setters), International Un ion of Operating

Engineers Local #542, Laborers District Council, Painters District Council #21, Plumbers Local

#690, and Teamsters Local #107.

2 On January 6, 2017, PennDOT submitted a request to the Federal Highway Administration

seeking its approval to utilize a PLA on the Project. The Federal Highway Administration

approved the request. Notably, the PLA approved was the one PennDOT used in its August bid

solicitation, which did not contain the provision exempting United Steelworkers contractors from

t he hiring requirements under the PLA.3 Article I: SOURCING RELIABLE CRAFT LABOR

***

[Section 3

- E]. Unless otherwise specified in this Agreement, the

Project Contractor shall be bound by the terms of the Local

Union Collective Bargaining Agreements included as Appendix

B hereto (“Local Agreements”), and any successor agreements

or amendments thereto....

[Section 3

- F]. All craft labor personnel employed on the Project,

whether by the Project Contractor or other entities, shall be hired

throug h the Local Unions identified in this Agreement, and in

accordance with the hiring procedures of Local Agreements,

included as Appendix B hereto.

[Section 3

- G]. All Parties shall respect the sanctity of Local

Agreements, which shall control wages, benefits

, hiring

procedures and other terms and conditions of employment,

unless otherwise specified in this Agreement.

[Section 3

- H]. In the event that a contractor bound by a

Collective Bargaining Agreement (CBA) with the United

Steelworkers (USW) is the success ful bidder, the contractors will

be permitted to utilize its USW workforce and its USW CBA [ 3 ]

provided that the contractor adheres to the conditions and

economic terms of the Agreement excluding any hiring hall

obligations or union security provisions. An d provided further

that the USW contractor is either a protected contractor, under

the terms of the Harmony Agreement of February 24, 1994 or

has been organized by USW pursuant to paragraph 3(b) of the

Harmony Agreement for at least 120 days prior to the i ssuance

of any bid specification for the Project and provided that it

normally performs the type of work being let in the geographical

area of the project.

***

3 Although mentioned in the PLA, United Steelworkers ’ collective bargaining agreement is not

included as an appendix to the PLA.4 Article VI: CONFLICT AVOIDANCE PROCEDURES

Section 1: No Strikes

- No Lock Outs. The Parties recog nize that

the timely planning and execution of this Project is critical and,

therefore, agree that there shall be no lock

- outs by Project Owner

or the Project Contractor. The Unions agree that there will be no

strikes or other work stoppages, provided tha t in the event a

Local Union collective bargaining agreement expires during the

course of this Project, the Project Contractor agrees to retroactive

application of the terms of the new collective bargaining

agreement entered between the affected Local Unio n and its

signatory contractors.

R.R. 25 a

, 27a

- 28a, 32a (emphasis omitted)

. The PLA states that “[t]ime is of the

essence for the Project” and that “any qualified contractors may bid or perform work

on this Project, regardless of whether or not they are affiliated with the [ Building

and Construction Council] or its Local Unions.” R.R. 25a

- 26a.

On December 27, 2017, Allan Myers filed a bid protest, asserting that

the PLA was “unlawful and arbitrary

, ” and it requested PennDOT to reissue the bid

solicitation without the PLA requirement. R.R. 2a. The bid protest challenged the

PLA as discriminatory because it effectively precludes nonunion contractors from

bidding and unduly favors contractors affiliated with United Steelworkers. A report

prepared for PennDOT by Keystone Research Center (Keystone Report)

recommended the use of the PLA

. The bid protest challenged the Keystone Report

because it did not use “ objective data ” and was “inherently biased.” R.R. 6a

- 7a.

Finally, the b id protest asserted that the use of the PLA violates Section 404.1 of the

State Highway Law

, 4 which require s PennDOT to qualify bidders using statutory

4 Act of June 1, 1945, P.L. 1242, as amended

, added by Section 1 of the Act of Septembe r 20,

1961, P.L. 1529, 36 P.S. §670

- 404.1.5

criteria. A bidder’s union affiliation, or its willingness to sign a PLA, is not a

qualifying factor under Section 404.1 of the State Highway Law

.

PennDOT filed a response, asserting that case law precedent has

authorized the use of a PLA in bids for public construction projects

. B ecause the

PLA provides that “any qualified contractors may bid or perfor m work on this

Project” regardless of their union affiliation or lack thereof

, PennDOT contended

that Allan Myers could bid on the Markley Street Project. R.R. 26a. PennDOT

relied on the Keystone Report, which stated that a PLA is a useful way to address

labor shortages

. PennDOT argued that the PLA did not violate Section 404.1 of the

State Highway Law because PennDOT has discretion to decide “the particular

contractual terms and conditions under which PennDOT is to purchase the labor,

materials and serv ices [

. ] ” PennDOT Response at 12 ; R.R. 459a.

By a final determination dated February 26, 2018, the Secretary of

Transportation dismissed Allan Myers’ bid protest. Relying on this Court’s

decisions in A. Pickett Construction, Inc. v. Luzerne County Convention Center

Authority

, 738 A.2d 20 (Pa. Cmwlth. 1999) ( Pickett ) ; Sossong v. Shaler Area School

District

, 945 A.2d 788 (Pa. Cmwlth. 2008) ( Sossong ) ; and Glenn O. Hawbaker, Inc.

v. Department of General Services (Pa. Cmwlth.

, No. 405 M.D. 2009, fil ed

D ecember 1, 2009) ( unreported single judge opinion ) ( Hawbaker ), the Secretary

held that the PLA was not discriminatory because nonunion contractors are free to

bid on the Markley Street Project. The Secretary concluded that the PLA does not

favor United Steelworkers contractors because they are bound by the same terms

and conditions of the PLA as all other contractors. The Secretary observed that the

purpose of Section 3

- H of Article I of the PLA is not to “limit the pool of workers”

but, rather, to “remove[] a barrier to entry by certain contractors who [sic] would6

have been contractually unable to enter the PLA.” Final Determination

, 2/26/2018

,

at 12. The Secretary rejected Allan Mye rs’ legal claims that PennDOT’s imposition

of the PLA requirement violates the prequalification provisions set forth in the State

Highway Law and is arbitrary and capricious.

A llan Myers petitioned for this Court’s review. 5

Appeal

On appeal, Allan Myers raises four issues for our consideration, which

we combine into three for clarity. First, it argues that PennDOT’s use of the PLA

violates Pennsylvania’s competitive bidding laws because the three different classes

of bidders, i.e

., union contractors, nonunion contractors, and United Steelworkers

contractors, will not be p l aced on an equal footing with respect to their ability to

compete for the work

. Second, Allan Myers argues that PennDOT abused its

discretion by relying on the Ke ystone Report to justify its use of the PLA because

that report is biased and flawed

. Third

, Allan Myers argues that the PLA violates

the State Highway Law and the corresponding regulations because it deprives

PennDOT of the ability to qualify bidders in accordance with the criteria mandated

by law

.

5 This Court’s review is governed by Section 1711.1(i) of the Commonwealth Procurement Code

(Procurement Code) , which states:

(i) Standard of review.

-- The court shall hear the appeal, without a jury, on the

record of determination certified by the purchasing agency. The court shall affirm

the determination of the purchasing agency unless it finds from the record that the

determination is arbitrary and capricious, an abuse of discretion or is contrary to

law.

62 Pa. C.S. §1711.1(i). See also CenturyLink Public Communications, Inc. v. Department of

Corrections , 109 A.3d 820, 827 n.13 (Pa. Cmwlth. 2015).7 Competitive Bidding Requirements

In its first issue, Allan Myers argues that the PLA violates

Pennsylvania’s competitive bidding laws because it discriminates against nonunion

contractors and favor s United Steelworkers contractors. Specifically, Section 3

- H

of Article I of the PLA provides that a contractor bound by a collective bargaining

agreement with United Steelworkers “will be permitted to utilize its [United

Steelworkers] workforce and its [U nited Steelworkers collective bargaining

agreement],” while all other contractors must hire their workforce through the Local

Unions. R.R. 28a. United Steelworkers contractors are not bound by the no

- strike

provision in Article VI of the PLA, which ap pli es only to the Local Unions. 6

Because PennDOT’s bid solicitation does not prescribe common standard s for all

bidders on the Markley Street Project, it violates the “integrity of the competitive

bidding process.” Allan Myers Brief at 12 (citing Ezy Parks v. Larson

, 454 A.2d

928, 932 (Pa. 1982)).

Allan Myers also argues that the PLA effectively precludes nonunion

contractors from bidding on the Markley Street Project because it requires the

winning bidder to hire all craft labor personnel through the Loca l Unions. However,

Allan Myers cannot force its employees and subcontractors to join the Local Unions.

What is more, the PLA does not require the Local Unions to accept Allan Myers’

workforce or assign them back to Allan Myers if they are accepted. Alla n Myers

argues that it cannot prepare a meaningful bid “with an unknown workforce.” Allan

Myers Brief at 33.

6 Article VI, Section 1 of the PLA states, in relevant part: “[t] he [Local] Unions agree that there

will be no strikes or other work stoppages[.]” R.R. 32a.8 PennDOT responds that this Court approved a PLA requirement in

Pickett

, 738 A.2d 20, Sossong

, 945 A.2d 788, and Hawbaker (Pa. Cmwlth.

, No. 405

M.D. 2009, filed December 1, 2009). The State Highway Law authorizes PennDOT

to develop specifica tions for its highway contracts, and PennDOT has the authority

to use a PLA to ensure timely project performance

.

A. The Law on Competitive Bidding

We begin with a review of the law on competitive bidding. Section

512(a) of the Commonwealth Procurement Code (Procurement Code) requires all

Commonwealth agency contracts to “ be awarded by competitive sealed bid d ing

except as otherwi se provided in section 511 (relating to methods of source

selection).” 62 Pa. C.S. §512(a). The competitive bidding process must result in the

contract being awarded to “the lowest responsible bidder.” 62 Pa. C.S. §512(g). A

“responsible bidder” is one “ that has submitted a responsive bid and that possesses

the capability to fully perform the contract requirements in all respects and the

integrity and reliability to assure good faith performance.” 62 Pa. C.S. §103.

Competitive bidding in public contracts is mandated by the

Pennsylvania Constitution. 7 Competitive bidding requirements “ guard against

favoritism, improvidence, extravagance, fraud and corruption in the awarding of

...

contracts

... and are enacted for the benefit of property holders and taxpayers, and

not for the benefit or enrichment of bidders.” Yohe v. City of Lower Bu r rell

, 208 A.2d

847, 850 (Pa. 1965) (citation omitted)

. The intent of competitive bidding statute s is

“ to ‘close, as far as possible, every avenue to favoritism and fraud in its varied

7 Article III, Section 22 of the Pennsylvania Constitution requires that the General Assembly “shall

maintain by law a system of competitive bidding under which all purchases of materials, printing,

suppli es or other personal property used by the government of this Commonwealth shall so far as

practicable be made.” P A

. C ONST . art. III, §22.9

forms.’” Premier Comp Solutions, LLC v. Department of General Services

, 949

A.2d 381, 382 n.1 (Pa. Cmwlth. 2008) ( quoting Louchheim v. Philadelphia

, 66 A.

1121, 1122 (Pa. 1907)). Bidders for a public contract must be “on an equal footing”

and enjoy the same opportunity for open and fair competition. Philadelphia

Warehousing and Cold Storage v. Hallowell

, 490 A.2d 955, 957 (Pa. Cmwlth. 1985).

Where there is no common standard on which bi ds are based, “[t]he integrity of the

competitive bidding process is violated and the purpose of competitive bidding is

frustrated.” Ezy Parks

, 454 A.2d at 932. Thus, when the actual “ procedure s

followed emasculate the benefits of [competitive] bidding, judicial intervention is

proper.” Id

. See also Conduit and Foundation Corporation v. City of Philadelphia

,

401 A.2d 376, 379 (Pa. Cmwlth. 1979) (“[T]he courts will not condone a situation

that reveals a clear potential to become a means of favoritism, re gardless of the fact

that the

... officials may have acted in good faith in the particular case.”).

Case law precedent has, on several occasions, addressed the use of a

PLA in a public contract. In certain circumstances a PLA has been held not to

interfere with competitive bidding.

In Pickett

, 738 A.2d 20, this Court consider ed whether a PLA

requirement violated the competitive bidding requirements of the former

Municipalities Authorities Act of 1945

. 8 In that case, a county authority required

bidders on a convention center construction project to enter into a PLA, which

mandated the employment of a certain number of union laborers at union wages.

Nonunion contractors protested the bid, arguing that t hey were discouraged from

bidding on the project because the PLA would necessitate drastic revisions in the

8 Act of May 2, 1945, P.L. 382, as amended

, formerly 53 P.S. §§301

- 322, repealed by Section 3

of the Act of June 19 , 2001, P.L. 287.10

structure of their working relationships with their employees, thereby effectively

restricting the pool of eligible contractors and suppressing comp etition.

This Court held that the authority ha d the discretion to develop the

contours of its public contract. We explained that t he lowest responsible bidder does

not necessarily mean “the one whose bid on its face is lowest in dollars ; ” rather, it

inc ludes a consideration of a bidder’s financial responsibility, integrity, efficiency,

industry experience, promptness and ability to successfully carry out the job.

Pickett

, 738 A.2d at 24. A key factor in Pickett was the need for prompt completion

of the pro ject

. T he authority faced the loss of an anchor tenant and state funding if

construction w as not completed by the specified date

. Given those constraints, this

Court held that the authority did not abuse its discretion by requiring the PLA.

Nevertheless, w e recognized that the competitive bidding laws preclude

public bodies from discriminating between union and nonunion contractors in the

award of public projects. However

, the proteste rs in Pickett failed to make a case of

discrimination. We observed that

[t]he PLA does not mandate the integration of local collective

bargaining agreements, permits Plaintiffs [i.e., Appellants] to

employ core [i.e. their existing non

- union] personnel in ranges of

2 0% to 50% of the Project’s workforce, does not contain

provisions requiring discrimination based on union affiliation,

and opens the bidding process to all non

- union and union

contractors. Quite simply, that it may be difficult or distasteful

for Plaintif

fs to accept the provisions of the PLA does not mean

it is anti

- competitive.

Id

. at 25 ( quotation to internal record omitted)

.

Nine years after Pickett

, this Court was again confronted with a

challenge to a PLA requirement. In Sossong

, 945 A.2d 788, a contractor sought a

preliminar y injunction to prevent a school district from awarding a contract for two11

school construction projects. The contractor alleged that the school district’s

inclusion of a PLA in the bidding process effectivel y prevented nonunion contractors

from bidding, in violation of the lowest responsible bidder requirement set forth in

Section 3911(a) of the Procurement Code. 9 The trial court denied the injuncti on

request

, and this Court affirmed. We noted that a trial court’s decision on a

preliminary injunction can be set aside only where “ it is clear that no apparently

reasonable grounds exist to support it.” Sossong, 945 A.2d at 793 n.6. Gi v en this

deferential standard of review, we upheld the trial court’s conclusion that the

contractor did not establish “immediate and irreparable harm,” a prerequisite for a

preliminary injunction. Id

. at 793.

W e also concluded that the school district appropriately exercised its

discretion to include the PLA requirement

, noting that the bid stated that “time is of

the essence” and that the work had to be performed with “no delays.” Id. at 791.

The PLA precluded strikes, lockouts, work stoppages or disruptions. As in Pickett

,

the PLA in Sossong was prompted by the need for prompt completion of the projects.

Notably, Sossong did not address whether the terms of the PLA discriminated

against nonunion contractors or favored union contractors, an issue presented in the

case sub judice

.

9 It states:

In the case of a contract to be entered into by a government agency through

competitive sealed bidding, the contract shall be awarded to the lowest responsible

and responsive bidder within 60 days of the bid opening, or all b ids shall be rejected

except as otherwise provided in this section.

62 Pa. C.S. §3911(a). Section 3102 defines a “government agency” as “[a]ny Commonwealth

agency, any transportation authority or agency created by statute or any political subdivision or

m unicipal or other local authority, or agency of any political subdivision or local authority.” 62

Pa. C.S. §3102.12 This Court again considered a PLA requirement in Hawbaker

, (Pa.

Cmwlth., No. 405 M.D. 2009, filed December 1, 2009) (single judge

opinion)( Pellegrini, J.)

. 10 In that case, nonunion contractors requested that this Court

preliminarily enjoin the Department of General Services from awarding the

successful bidder the design/build contract on a construction project at the State

Correctional Institution (SCI) at Graterford, and enjoin the use of a PLA in all of the

Department of General Ser vices’ future projects. The nonunion contractors asserted,

inter alia

, that the terms of the PLA unlawfully discriminated against them by

placing them at a competitive disadvantage. At the preliminary injunction hearing,

the nonunion contractors and a no nunion employee testified about the adverse

effects of the PLA. The D epartment presented testimony on the urgency of

completi ng construction at SCI

- Graterford due to the growing prison population.

In denying the preliminary injunction, this Court first observed that it

is illegal “to distinguish between contractors employing union people from those

employing people who were not organized.” Hawbaker

, slip op. at 14 (quotation

omitted)

. Nevertheless, we found that the PLA, as was the case in Pickett and

Sossong

, allowed nonunion contractors to bid on the project and did not require them

to employ persons based on union affiliation. Thus, this Court declined to “ say that

all PLAs or this one are illegal.” Hawbaker

, slip op. at 17. 11

10 An u npublished single judge opinion , while not binding, may be cited for its persuasive value.

See Section 414( b ) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(b)

(“Except as provided in subsection (d) (relating to single judge opinions in election law matters),

a single

- judge opinion of this court, even if reported, shall be cited only for its persuasive value

and not as a binding precedent.”).

11 In Hawbaker , the C ourt noted that, in requesting an injunction, a petitioner must prove that (1)

relief is necessary to prevent immediate and irreparable harm that cannot be adequately

compensated by money damages; (2) greater injury will occur from refusing to grant the injunction13 B. Analysis

Wit h these principles in mind, we turn to the question of whether the

instant PLA violates competitive bidding

. Article I of the PLA requires all

contractors to hire their workforce through the Local Unions, but United

Steelworkers contractors are exempted f rom that requirement. Article VI of the PLA

provides that all Local Unions “agree that there will be no strikes or other work

stoppages.” R.R. 32a. There is no evidence that United Steelworkers are bound by

this provision. According to Allan Myers, thi s aspect of the PLA allows United

Steelworkers contractors to “bid in a completely different environment.” Allan

Myers Brief at 15.

PennDOT responds that it exempted United Steelworkers contractors

from hiring hall obligations and union security provisions after multiple contractors

challenged its August 2017 bid solicitation. This exemption was intended to “avoid

conflicts and overla pping ;” otherwise, a successful bidder might have to comply

with “two different union [] requirements.” PennDOT Brief at 45. In any event, all

bidders, regardless of their affiliation with United Steelworkers, must adhere to the

terms and conditions of t he PLA.

than from granting it; (3) the injunction will restore the parties to their status quo as it existed

immediately before the alleged wrongful conduct; (4) the injunction is reasonably suited to abate

the alleged wrong; (5) the petitioner’s right to relief is clear; and (6) the public interest will not be

harmed if the injunction is granted. A petitioner must meet all six prongs of this test to be awarded

an injunction. Hawbaker , slip op. at 8

- 9 (citing Summit Towne Centre, Inc. v. Shoe Show of Roc ky

Mount , Inc ., 828 A.2d 995 (Pa. 2003)).

In denying the request for a preliminary injunction, the C ourt further ruled that the

nonunion contractors failed to prove that greater injury would result f rom refusing an injunction.

Relying on the department personnel’s testimony regarding the crowded conditions at SCI

Graterford and the growing safety and security concerns for both correctional officers and inmates,

this Court concluded that the “public w ould be harmed by granting the request for injunctive

relief.” Hawbaker , slip op. at 30.14 We agree with Allan Myers that the exemption for United Steelworkers

contractors tilts the playing field. I f affiliated with United Steelworkers, a successful

contractor can use its existing workforce. Other contractors, however, must hire

their workforce through the Local Unions. In addition, the United Steelworkers

collective bargaining agreement is not among the agreements appended to the PLA.

Thus, it is not established that the steelworkers are bound by a no

- strike provision.

Stated otherw ise, United Steelworkers contractors do not bid “on an equal footing”

with other contractors. Hallowell

, 490 A.2d at 957. In addition, b y requiring the

winning bidder to hire all craft labor personnel through the Local Unions, the PLA

introduced “uncertainty in bidding the job” for prequalified nonunion contractors

like Allan Myers. Allan Myers Brief at 33.

Nevertheless, P ennDOT counters that in Pickett

, Sossong

, and

Hawba ker

, this Court established that PLAs “are legally valid in principle” whe re

used to reduce potential delays and inefficiencies. PennDOT Brief at 14. Indeed,

the PLA states that “[t]ime is of the essence” for the Markley Street Project and that

labor sho rtages may cause “increased costs” and “unwarranted traffic congestion.”

R.R. 25a

- 26a. Section 403 of the State Highway Law 12 authorizes PennDOT to

“prepare and approve specifications” for highway construction contracts

, which

includes, according to PennDOT, discretion to manage project labor. PennDOT

Brief at 18. Absent compelling evidence that it acted in “bad faith, or capriciously,

12 Sectio n 403 of the State Highway Law provides:

All work of construction, building or rebuilding of highways, excepting that of

repairing and maintenance, done under the provisions of this act, may be either (1)

by the agents, including cities when so designated by the department, servants and

employes of the department, or (2) by contract, and shall be according to plans and

specifications to be prepared or approved in every case by the department

.

36 P.S. §670

- 403 (emphasis added).15

or abused its power,” PennDOT argues that its decision to use a PLA must be upheld

.

We are not persuaded.

W e agr ee that PennDOT has the discretion under the State Highway

Law to develop specifications for highway contracts

. However, it is equally well

established that a public agency cannot exercise its discretion contrary to the

competitive bidding laws, which pro hibit discrimination between union and

nonunion contractors in the award of public contracts. Pickett

, 738 A.2d at 25. To

be sure, t he PLA states that “any qualified contractors may bid or perform work on

this Project, regardless of whether or not they are affiliated with the [Building and

Constructi on] Council o r its Local Unions.” R.R. 26a. Notwithstanding t his lip

service to the principle of competitive bidding

, the PLA do es not place nonunion

contractors “on an equal footing” with union contractors. Hallowell

, 490 A.2d at

957. Unlike contractors affiliated with the Local Unions or United Steel workers, a

nonunion contractor that bids on the Markley Street Project cannot use its own

experienced workforce. Rather, under Article I of the PLA, the nonunion contractor

must hire all craft labor personnel employed on the Project through the Local Unions

“in accordance with the hiring procedures of Local Agreements, included as

Appendix B hereto.” R.R. 28a.

PennDOT points out that not all Local Agree ments require “ hiring

through hiring halls or referral procedures.” PennDOT Brief at 39. For example,

the collective bargaining agreement with the Laborers District Council, one of the

Local Unions, provides that an employer reserves the right to use its key employees,

and the union will furnish competent laborers at the employer’s request. However,

under Section 3

- E of Article I of the PLA, a successful bidder is “ bound by the terms

of the Local Union Collective Bargaining Agreements

... and any successor16

agreements or amendments thereto

. ” R.R. 27a (emphasis added). It is unknown

whether a “successor agreement” would amend th is hiring requirement.

Allan Myers cannot make its employees or subcontractors join a union.

See Labor Relations Board v. Fabrication Specialists, Inc

., 383 A.2d 802 (Pa. 1978)

(recognizing that an employee has a right to join

, or decline to join, a union or other

existing labor organizations). The PLA does not guarantee that the Local Unions

will accept Allan Myers’ existin g workforce as members or assign them back if they

are accepted. Allan Myers cannot bid for the Pro ject with an unknown workforce

.

T he PLA has effectively precluded a nonunion contractor

, such as Allan Myers

, from

participating in the bid solicitation

.

Pickett

, Sossong and Hawbaker are all factually distinguishable. In

Pickett

, the convention center had to be completed by an inflexible date because of

demands of the state funding and the need to keep an anchor tenant. In Sossong

, two

school buildings had to be completed in time for the school opening in the fall

. In

Hawbaker

, timely completion of a prison was critical because of a growing inmate

population and safety concerns. Here, by contrast

, there is no evidence that the

Markley Street Project ha s a critical deadline, notwithstanding the PLA ’s statement

that “[t]ime is of the essence for the Project.” R.R. 25a. In Pickett, the PLA did not

mandate the integration of local collective bargaining agreements and permitted

nonunion contractors to employ their core personnel in ranges of 20% to 50% of the

whole workforce

. Here, the PLA integrates the local collective bargaining

a greements “and any successor agreements or amendments” and requires that

nonunion contractors hire all craft labor personnel through the Local Unions. R.R.

27a. T he PLAs in Pickett

, Sossong and Hawbaker did not contain an exemption for

certain contractor s with a specific union affiliation

. Here, by contrast, the PLA17

permit s United Steelworkers contractors to use their normal work force but require s

nonunion contractors to hire through the Local Unions. In sum

, Pickett

, Sossong

,

and Hawbaker are factually distinguishable.

Further, o ur precedent in Pickett and Sossong did not establish the

broad principle that a PLA is appropriate so long as it contains the boilerplate

langua ge “time is of the essence” and “ nonunion contractors may bid .” The use of

a PLA is permitted where the contracting agency can establish extraordinary

circumstances

, and PennDOT did not make that demonstration in this case

. The

Markley Street Project is a long term road improvement, the first phase of which

was completed a ye ar ahead of schedule. Nor is there any evidence that there is a

labor shortage in the greater Philadelphia area. The Keystone Report’s

recommendation did not justify the PLA because it did not identify any extraordinary

circumstance surrounding the Markl ey Street Project that warranted its use. All road

improvements inconvenience motor vehicle operators. The PLA favored contractors

under agreement with United Steelworkers

, and for this reason alone, there is no

common standard on which bids are based

. T his violates “[t]he integrity of the

competitive bidding process” and frustrates the “purpose of competitive bidding.”

Ezy Parks

, 454 A.2d at 932.

We hold, therefore, that the PLA requirement in the bid solicitation for

the Markley Street Project violate s competitive bidding. G iven this conclusion, w e

need not consider whether PennDOT acted in good faith in revising the PLA after it

withdrew the August 2017 bid solicitation. This is because courts will not authorize

a bid with “ a clear potential to become a means of favoritism, regardless of the fact

that the

... officials may have acted in good faith in the particular case .” Conduit

and Foundation Corporation

, 401 A.2d at 379 (emphasis added). PennDOT’s good18

faith, or lack there of, is irrelevant because the PLA places United Steelworkers

contractors in a favored position.

Conclusion

For all of the foregoing reasons, we hold that the Secretary of

Transportation erred in holding that the use of the PLA in the Markley Street Project

bid do es not violate Pennsylvania’ s competitive solicitation bidding laws. 13

Accordingly, we reverse the Secretary’s order of February 26, 2018, and we cancel

PennDOT’s solicitation. 14

______________________ _______________ MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.

13 In light of our disposition, we do not address Allan Myers’ remaining issues.

14 Section 1711.1(j) of the Procurement Code states:

(j) Remedy.

-- if the determination is not affirmed, the court may enter any order

authorized by 42 Pa. C.S. §706 (relating to disposition of appeals), provided that,

if the court determines that the solicitation or award of a contract is contrary to law,

then the remedy the court s hall order is limited to cancel ing the solicitation or award

and declaring void any resulting co ntract.

62 Pa. C.S. §1711.1(j).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allan Myers, L.P., :

Petitioner :

:

v. : No. 314 C.D. 2018

: Department of Transportation, :

Respondent :

O R D E R

AND NOW, this 11 th d ay of January, 2019 , the order of the Secretary

of Transportation, dated February 26, 2018, in the above

- captioned matter, is hereby

REVERSED

, and the Department of Transportation’s bid solicitation of December

20 , 2017, is CANCELLED

.

_____________________________________ MARY HANNAH LEAVITT, President Judge