Hanisco v. Township of Warminster

41 A.3d 116, 2012 WL 19811, 2012 Pa. Commw. LEXIS 10

• Court: Commonwealth Court of Pennsylvania
• Decided: January 5, 2012
• Status: Published

Opinions

OPINION BY

Judge COHN JUBELIRER.

Mark Hanisco (Hanisco) appeals the January 11, 2010 Order of the Court of Common Pleas of Bucks County (trial court) denying his Petition for Preliminary and Permanent Injunctive Relief (Petition) and dismissing his Amended Complaint. Hanisco sought to invalidate a two-year extension of a waste services contract between the Township of Warminster (Township) and Solid Waste Services, Inc. d/b/a J.P. Masearo & Sons (Masearo) on the grounds that the parties renegotiated the price for the extension thereby triggering the application of the public, competitive bidding requirements of Section 3102(a) of the Pennsylvania Second Class Township Code² (Code), 53 P.S. § 68102(a).

The parties stipulated to the facts. (Joint Stipulation of Facts and Evidence (Stipulation), R.R. at 189a-202a.) In the fall of 2004, the Township sought bids from private waste haulers to provide waste pickup and disposal services within the Township. (Stipulation at ¶ 1, R.R. at 189a.) The Township’s Notice to Bidders stated that the proposed waste services contract, to begin on January 1, 2005, should be presented as: (1) a three-year contract with an option for two one-year extensions; or (2) a five-year contract with an option for two one-year extensions. (Stipulation at ¶ 2, R.R. 190a.)

The Township awarded the contract to Masearo as the lowest responsible bidder and the only bidder (2005 Contract). (Stipulation at ¶¶ 5, 6, R.R. at 190a.) The Township selected the five-year alternative with the option exercisable by the Township for two one-year extensions. (Stipulation at ¶ 6, R.R. at 190a.) Accordingly, the 2005 Contract would end on December 31, 2009, unless extended by the Township through the exercise of its options. (Stipulation at ¶ 11, R.R. at 191a.) In its final form, the 2005 Contract prices for each year were as follows:

Year Total Amount Unit[ 3 ] Price Per Month [Unit Price Per Year]

2005 2,191,224.00 $21.90 [$262.80]

2006 2,736,000.00 $27.34 [$328.08]

2007 3,286,000.00 $32.84 [$394.08]

2008 3,476,992.00 $34.75 [$417.00]

2009 3,680,008.00 $36.78 [$441.36]

Total $15,370,22b.00

Options:

Year Total Amount [Unit Price Per Month ] Unit Price Per Year

$3,977,940.00 [$39.76] $477.09 O r-H o <N

$3,977,940.00 [$39.76] $477.09 r-t i-H o <M

(Stipulation at ¶ 10, R.R. at 191a.)

The parties executed the 2005 Contract on March 24, 2005. (Stipulation at ¶8, R.R. at 191a.) In the fall of 2009, with the end of the five-year contract terra approaching, the Township began to study the question of whether to exercise the options in the 2005 Contract, or advertise for a new contract. (Stipulation at ¶ 12, R.R. at 192a.) Mascaro and the Township held a telephone conference call on September 18, 2009 and scheduled a meeting for September 25, 2009. (Stipulation at ¶¶ 13-17, R.R. at 192a-93a.) The day before the scheduled meeting between Mas-caro and the Township, the Township’s Board of Supervisors (Supervisors) held its regular bi-monthly public meeting, at which it considered the Township’s waste hauling contract. (Stipulation at ¶ 18, R.R. at 193a.) At the meeting, it was suggested that advertising for a new waste hauling contract should be postponed until after the meeting with Mascaro scheduled for the next day. (Stipulation at ¶ 19, R.R. at 193a.) Additionally, the question arose whether authorizing advertising for bids would impact “the negotiations” scheduled for the next day between Mascaro and the Township. (Stipulation at ¶ 20, R.R. at 193a.) Because there was only a very short window before year-end to conduct a new bid solicitation, the authorization for advertising was considered appropriate. (Stipulation at ¶ 19, R.R. at 193a.) If the Township exercised the options under the 2005 Contract, it would cost $477.09 per year per unit, but two neighboring townships were paying less than that amount for similar trash and recycling services.⁴ (Stipulation at ¶¶ 21, 22, R.R. at 193a-94a.) Given the lower rates being paid by nearby municipalities, it was recommended that the Township either try to arrange a better deal with Mascaro at less than the option prices under the 2005 Contract or solicit bids for a new contract. (Stipulation at ¶ 23, R.R. at 194a.) Thus, the Supervisors voted to authorize advertising for new bids only if the meeting planned for the following day with Mascaro did not result in an acceptable reduction in the current option price under the 2005 Contract. (Stipulation at ¶ 24, R.R. at 194a.)

At the next day’s meeting on September 25, 2005, the Township and Mascaro negotiated a change in the option year prices for 2010 and 2011. Mascaro essentially agreed to freeze the 2009 prices, which reduced the cost from $477 per year per unit to $429.36 per year per household. (Stipulation at ¶26, R.R. at 194a.) This would be accomplished by Mascaro preparing an “amendment” to the 2005 Contract establishing a “rebate” that would reflect the proposed price reduction to $429.36, so that Township could exercise the options for years 2010-2011 in the amount of $477.09 as set forth in the 2005 Contract. (Stipulation at ¶ 27, R.R. at 195a.) In all other respects, the 2005 Contract remained the same. This arrangement, consisting of a proposed rebate, would reduce the prices for 2010-2011 by $797,592. The parties memorialized their negotiations in what was termed Amendment No. 1 (the Amendment) to the 2005 Contract.⁵ (Stipulation, Ex. 15, R.R. at 304a.) At its next regularly scheduled public meeting on October 8, 2009, after reviewing the Amendment, the Supervisors voted to approve it. (Stipulation at ¶¶ 40-43, R.R. at 198a.)

Hanisco, an adult taxpayer residing within the Township, filed a complaint for declaratory judgment against the Township, which was later amended to add Masearo as a defendant.⁶ (Amended Complaint, R.R. at 6a-130a.) Hanisco then filed the Petition against implementation of the Amendment and to require the Township to engage in competitive bidding for a new waste services contract. (Petition, R.R. at 131a-43a.) On January 11, 2010, the trial court denied Hanisco’s request for declaratory and injunctive relief. (Trial Ct. Order, January 11, 2010.) Appellant appealed.⁷

In its Pa. R.A.P.1925(a) opinion, the trial court looked at whether the Amendment to the 2005 Contract was a valid extension of the original contract. Relying on its interpretation of precedent, the trial court concluded that the Amendment did not create a new contract because the two-year extension had been contemplated in the original bidding process and the Amendment did not affect the scope or type of services being provided. The trial court approved the rebate, noting that it did not make “common sense” to force the Township to stick to the original bid prices for 2010-2011. The trial court believed that prohibiting the rebate would satisfy Hanisco’s view of what the law requires, but it would force Township residents to pay more. The matter is now before this Court for our consideration.⁸

On appeal, Hanisco argues that the privately negotiated price term in the form of a “rebate” created a new contract that was subject to the competitive bidding requirements of Section 68102(a) of the Code.⁹ 53 P.S. § 68102(a). Hanisco contends that the options, the terms of which were set forth in the 2005 Contract, were not exercised in accordance with their original terms by the Township, and that the private negotiations between Mascaro and the Township changed those terms thereby creating a new contract. Hanisco further contends that Mascaro received an advantage over other waste haulers through the private negotiations, which changed the original contract option price, reducing that price so that Mascaro was retained as the Township’s waste hauler.¹⁰ Hanisco also argues, that had the Township advertised for new bids, the Township may have realized an even better price but, because there was no such bidding, it is unknown whether the negotiated price is fair. Therefore, Hanisco argues, the Amendment is illegal and void.

The Township and Mascaro respond that the Amendment is a supplement to the existing contract, not a new contract. They contend that, once a public contract has been lawfully awarded in accordance with competitive bidding to the lowest responsible bidder, a lower price may be negotiated¹¹ and there is no restriction in the Code to prevent the Township from accepting a rebate. They note that the options to extend the 2005 Contract were specified in the original bid solicitation and were a term of the 2005 Contract. They further argue that amendments that are not substantial and are favorable to the taxpayers, such as the Amendment here, are matters committed to the discretion of the contracting authority, and neither Hanisco nor this Court may substitute its judgment for that of the Township’s elected governing body.

The issue before this Court is whether the prices for the waste services provided by Mascaro set forth in the 2005 Contract for the two, one-year options for 2010 and 2011 could be privately renegotiated by the parties or whether such a renegotiation required public, competitive bidding pursuant to Section 3102(a) of the Code. Section 3101¹² gives a township board of supervisors the power to “make contracts for purchases under this act and the laws of this Commonwealth.” 53 P.S. § 68101. Section 3102 of the Code identifies the contracts that must be awarded through the competitive bidding process, stating in relevant part:

All contracts or purchases in excess of the required advertising amount of ten thousand dollars ($10,000), except those specifically excluded, shall not be made except with and from the lowest responsible bidder after due notice in one newspaper of general circulation in the township.

53 P.S. § 68102(a) (emphasis added). The parties agree that the 2005 Contract at issue here was not a type specifically excluded from the requirement of competitive bidding. (Amended Complaint and Answer at ¶¶ 1-5, R.R. at 9a, 157a-59a.) In interpreting the competitive bidding requirements for public contracts within Section 3102(a), our Supreme Court has stated:

[T]he statutory requirements for competitive bidding, and the ordinances enacted thereunder, do not exist solely to secure work or supplies at the lowest possible price, but also have the “ ‘purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption in the awarding of municipal contracts ... and are enacted ... not for the benefits or enrichment of bidders.’ ”

Conduit and Foundation Corporation v. City of Philadelphia, 41 Pa.Cmwlth. 641, 401 A.2d 376, 379 (1979) (adopting 10 McQuillan, Municipal Corporations § 29.29 (3rd ed.1950)). The Supreme Court has consistently expressed the value of competitive bidding as follows:

The obvious intent of the applicable statute is thus also to “ ‘close, as far as possible, every avenue to favoritism and fraud in its varied forms.’” Louchheim v. Philadelphia, 218 Pa. 100, 66 A. 1121 (1907) (quoting Mazet v. City of Pittsburgh, 137 Pa. 548, 20 A. 693 (1890)). Therefore, as ... Louchheim ... illustrates, the courts will not condone a situation that reveals 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, which we do not doubt here.

Conduit, 401 A.2d at 379. Those who bid 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, 88 Pa.Cmwlth. 574, 490 A.2d 955, 957 (1985). "Where the bid process fails to place bidders on equal footing, the resulting contract will be declared void. The Supreme Court has noted that the “mere convenience of performance cannot be considered in the award of municipal contracts.” Pearlman v. City of Pittsburgh, 304 Pa. 24, 30, 155 A. 118, 120 (1931). For these reasons, the Code is “intended to prevent the circumvention of bidding requirements in a manner which would permit or encourage such evasion.” Yohe v. City of Lower Burrell, 418 Pa. 23, 28, 208 A.2d 847, 849 (1965).

Bidding requirements ‘are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption in the awarding of municipal contracts, and to secure the best work or supplies at the lowest price practicable, and are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest.’ (Footnotes omitted.) 10 McQuillan, Municipal Corporations § 29.19, at 266-67 (3d ed.1950).

Id. at 28, 208 A.2d at 850. “The statutory mandate of competitive bidding is grounded in sound public policy.” Philips Brothers Electrical Contractors, Inc. v. Pennsylvania Turnpike Commission, 960 A.2d 941, 945 (Pa.Cmwlth.2008). “[I]t is the taxpaying citizen who provides the necessary funds and whose interest must be protected.” Yohe, 418 Pa. at 29, 208 A.2d at 850. Moreover, “[e]ven if the purpose of an award is to benefit the public ..., private negotiations between the party awarding the contract and a successful bidder through which the terms and conditions of the competitive bids are modified or changed, are not in keeping with the purpose of competitive bidding.” Philapelphia Warehousing, 490 A.2d at 957.

In Louchheim, our Supreme Court voided a contract awarded after private negotiations. Id. at 102, 66 A. at 1121. Louchheim had submitted the lowest bid. Id. The city then contacted a competing bidder, which modified its bid to make it lower than Louchheim’s bid and won the contract. Id. at 102, 66 A. at 1122. Our Supreme Court voided the contract, holding that private negotiations cannot be used to manipulate the outcome of competitive bidding. Id. at 104, 66 A. at 1122. The bidding process is intended to achieve ‘fair and just competition between bidders, and at the same time close, as far as possible, every avenue to favoritism and fraud in its varied forms.’ Id. at 103, 66 A. at 1122 (quoting Mazet v. City of Pittsburgh, 137 Pa. 548, 561-62, 20 A. 693, 697 (1890)).

A deviation from competitive bidding will not be countenanced even where there is no evidence of fraud or favoritism. In Shaeffer v. City of Lancaster, 754 A.2d (Pa.Cmwlth. 2000), the city invited bids for a construction project that specified all terms, including the reservation of certain salvage rights in the city. The city awarded the contract to the lowest bidder, whose bid was lowest by reason of its proposed price “credit” whereby the city waived its salvage right. Because there was no evidence of favoritism, fraud, or unfair advantage, the trial court refused to void the contract. It found that the successful bidder had simply been more resourceful in fashioning its bid. This Court reversed, holding that the successful bidder’s deviation from the city’s bid requirements was unfair. We reiterated that “all bidders must ... be given the same fan-opportunity to bid in free competition with each other.” Id. at 723. Moreover, citing Louchheim and Yohe, our Supreme Court recently re-emphasized that “ ‘competitive bidding rules exist, not only to secure work and supplies at the lowest possible price, but to guard against favoritism in the awarding of contracts.’ ” Brayman Construction Corp. v. Department of Transportation, (Brayman II) 608 Pa. 584, 606 n. 14, 13 A.3d 925, 938 n. 14 (2011) (quoting Brayman I).

All parties argue that On-Point Technology Systems, Inc. v. Department of Revenue, 569 Pa. 236, 803 A.2d 1175 (2002), and Bevilacqua v. Clark, 377 Pa. 1, 103 A.2d 661 (1954), compel a ruling in their favor. Bevilacqua involved a license agreement to operate a golf driving range concession in a city park. Id. at 2, 103 A.2d at 662. The original contract provided for an extension of additional yearly terms not to exceed four years upon the approval of permanent improvements to be made by licensee at his own expense.¹³ Id. at 3, 103 A.2d at 662. The city executed an extension agreement in accordance with the original contract provision, which extended the concession license for two additional years at the same rental rate. Id. at 3-4, 103 A.2d at 662-63. Bevilacqua was an unsuccessful bidder and taxpayer who challenged this extension. Bevilacqua argued that the clause in the original license contract, providing for the extension did not adequately define the standards under which the contract could be extended. Id. at 2, 4, 103 A.2d at 662-63. The Supreme Court disagreed, finding the standards “sufficiently definite to permit all who bid thereon to know under what conditions the license would be lengthened.” Id. at 5, 103 A.2d at 663-64. Furthermore, the Supreme Court expressly stated that “[t]he only term open to negotiation [wa]s the period of extension, and even then there is a four year limitation. There could be no negotiation on the amount of the rental.” Id. at 5-6, 103 A.2d at 663-64 (emphasis in the original). Like the contract in Bevilacqua, the option provisions in the 2005 Contract specified the price; however, in this case, the parties to the 2005 Contract did attempt to renegotiate the “amount.” Thus, Bevilacqua does not support the Township’s and Mascara’s position.

In On-Point Technology, the Department of Revenue (Department), on behalf of the Pennsylvania Lottery, requested bids for an online games system. The bid request contained an “options” section, noting that bidders could also submit bids for lottery ticket vending machines, although such information would not be considered in awarding the online games contract. The online gaming system contract awarded to Automated Wagering stated that, if the Department chose to exercise an “option,” the price and terms would be “mutually agreed upon by the parties.” On-Point Technology, 569 Pa. at 238, 803 A.2d at 1177. Thereafter, the parties executed a contract amendment whereby Automated Wagering agreed to furnish 2,400 ticket vending machines to the Department at a cost of $225 per machine, per month. In holding that the option contract was an invalid amendment to the original contract, the Supreme Court reasoned that

because the original contract failed to contain any essential terms regarding the future acquisition of instant ticket vending machines, the ... amendment was not an extension of the work contemplated by the original agreement but instead was a new contract....

Id. at 243, 803 A.2d at 1180 (emphasis added). The Supreme Court further concluded that the amendment not only was an invalid extension of the original contract, but also constituted a new contract subject to competitive bidding. Id. The Court distinguished Bevilacqua, noting that the license agreement therein had been competitively bid, the extension of the concession license had been contemplated in that bidding, and the terms of any extension had all been spelled out in the original contract. Id. at 241-43, 803 A.2d at 1179-80. By contrast, the vending machines option in On-Point Technology had not been part of the competitive bidding or considered in the award of the contract. Id. at 243, 803 A.2d at 1180. The contract did not obligate the Department to acquire any vending machines, and it contained no terms for their purchase. Id.

Unlike the option in On-Point Technology, the option in the instant case contained the essential terms, including price, and was a part of the competitive bidding process. This price term was definite and not open for future negotiation. Indeed, the option here was even more definite than that in Bevilacqua, where the term of the option remained open for negotiation based on the value of the improvements the concessionaire made. Here, because the Township did not exercise the option in accordance with its terms but, instead negotiated a new price,¹⁴ the Township and Mascaro entered into a new contract that became subject to the Code’s mandatory public bidding requirements.¹⁵

Where, as here, there is deviation from the requirements of public bidding, “the proper procedure is to ... readvertise, and secure another open competitive bidding so that all of the bidders would be on an equal footing.”¹⁶ Philadelphia Warehousing, 490 A.2d at 957. This Court has emphasized that it “will not condone a situation that reveals a clear potential to become a means of favoritism, regardless of the fact that ... officials may have acted in good faith in the particular case.” Conduit, 401 A.2d at 379. The overarching public policy encompassed by the public bidding requirements must take precedence to ensure the integrity of the process, its transparency and fairness, and to engender a greater sense of trust in government among the citizen taxpayers. While we understand that the Township wanted to provide savings to its constituents, the decision not to advertise its waste services contract for competitive bidding has prevented the parties from knowing whether greater savings could have been achieved had the contract been rebid pursuant to the Code.

Accordingly, we reverse the trial court’s Order.

Judge McCullough did not participate in the decision in this case.

ORDER

NOW, January 5, 2012, the order of the Court of Common Pleas of Bucks County in the above-captioned case, dated January 11, 2010, is hereby REVERSED.

2 . Act of May 1, 1933, P.L. 103, added by Section 1 of the Act of November 9, 1995, P.L. 350, as amended.

3 . A "unit” is a household, and there are approximately 8,350 units in the Township.

4 . In Lower Southampton Township the cost in 2009 was $313 per household per year and in Middletown Township the cost in 2009 was $356 per household per year. (Stipulation at ¶ 22, R.R. at 194a.)

5 .The Amendment specifically states, in relevant part:

WHEREAS, the Contract provides for an option of two (2) one-year extensions to be exercised exclusively by the Township, as defined under the terms of the March 24, 2005 Contract between [Mascaro] and Township; and

WHEREAS, the Township desires to exercise the two one-year options; and

WHEREAS, [Mascaro] in consideration for the Township’s exercising of the two one-year options desires to provide the Township with a rebate;

NOW, THEREFORE, the parties hereby agree to the Amendment as follows:

1. The option years 2010 and 2011 are hereby exercised by the Township.

2. Although the option year pricing in the Contract provides for a monthly per unit price of $39.76 in 2010 and 2011, [Mascaro] agrees to rebate the sum of $3.98 per unit per month thereby setting the monthly per unit price at $35.78.

3.The rebate of $797,592 ($3.98 per unit x 8350 units x 24 months) is offered and provided solely at the discretion of [Mascaro],

(Stipulation, Ex. 15, R.R. 304a.)

6 . "[A] taxpayer has standing to enjoin the award of a public contract to anyone other than the lowest responsible bidder.... [Having an interest in public funds, [a taxpayer] may maintain an action aimed at preventing an unauthorized or unlawful expenditure of money.” The Conduit and Foundation Corp. v. City of Philadelphia, 41 Pa.Cmwlth. 641, 401 A.2d 376, 378 (1979).

7 . Hanisco also filed a motion for post-trial relief, which the trial court denied. (Trial Ct. Order, March 29, 2010.)

8 . This case involves a question of law; thus, our scope of review is plenary and the standard of review is de novo. Crandell v. Pennsbury Township Board of Supervisors, 985 A.2d 288, 293 n. 4 (Pa.Cmwlth.2009). The trial court also denied Hanisco's request for a preliminary injunction. However, because the trial court’s order dismissed the entire matter, review of the denial of the preliminary injunction is unnecessary.

9 . We have consolidated Hanisco’s four arguments.

10 . Hanisco asserts that, in addition to the price change, the parties also modified other aspects of the 2005 Contract by exercising both option years at once, modifying bond provisions, and shifting the discretion to Mas-caro to continue for two more years. However, it appears that the Amendment changed only the price of the original option agreement to the 2005 Contract.

11 . The Township points to the COSTARS program, created by the Department of General Services, as an example of where a government agency may award contracts to suppliers through competitive bidding and are then free to negotiate even lower prices with those suppliers. However, the Supreme Court recently affirmed this Court’s enjoining of the Department of Transportation’s contracting for services through innovative methods beyond the provisions of applicable statutory bidding requirements and stated:

Indeed, the court’s evaluation was expressed against a backdrop of case law explaining that competitive bidding rules exist, not only to secure work and supplies at the lowest possible price, but to guard against favoritism in the awarding of contracts. See Brayman [Construction Corp. v. Department of Transportation (Brayman I) ], No. 527 M.D. 2008, slip op. at 9 n. 7 [ (Pa.Cmwlth. Feb. 17, 2009)] (quoting Yohe v. City of Lower Burrell, 418 Pa. 23, 28, 208 A.2d 847, 850 (1965)); see also Louchheim v. City of Philadelphia, 218 Pa. 100, 103, 66 A. 1121, 1122 (1907). Accordingly, to the extent any question remains as to the propriety of this part of the order, we find that it is supported by the hearing testimony concerning the lack of objective standards in best-value assessment, and the consequent potential for subjective factors to play a substantial role in the awarding of contracts.

Brayman Construction Corp. v. Department of Transportation (Brayman II), 608 Pa. 584, 606 n. 14, 13 A.3d 925, 938 n. 14 (2011). In addition, the Supreme Court noted, "as did the Commonwealth Court, that the general rule for procurement under the Code is that, '[ujnless otherwise authorized by law, all Commonwealth agency contracts shall be awarded by competitive sealed bidding.' 62 Pa. C.S. § 511.” Id. at 606, 13 A.3d at 938.

On remand, this Court reiterated that: [bjecause the Best-Value method of awarding contracts violates all of those precepts, the use of that method is illegal under the Procurement Code and justifies the grant of a preliminary injunction. American Totali-sator Co., Inc. v. Seligman, 489 Pa. 568, 575, 414 A.2d 1037, 1040-41 (1980). ("A court may enjoin the award of a public contract when irregularities are shown in the bidding process.”) Brayman I, (No. 527 M.D. 2008, filed February 17, 2009, at 17-18.)

Brayman Construction Corp. v. Department of Transportation, 30 A.3d 560, 567 (Pa.Cmwlth.2011).

12 . Section 3101 of the Code was added by Section 1 of the Act of November 9, 1995, P.L. 350.

13 . The proposal, and the license, contained the following clause:

Where licensee considers that it is desirable or necessary to make permanent improvements to the concession structure, he shall submit a proposal to the Commission with a plan of the improvements and a statement of the actual cost thereof. If the Commission approves the construction of such permanent improvements, it will negotiate a supplemental agreement with licensee, providing that the license shall be extended for additional yearly terms not to exceed four years, depending upon the nature and cost of the improvements; and further providing that, if the Commission should elect to terminate the license within such extended period, it will pay to licensee such proportion of the actual cost of such improvements as the unexpired term bears to the total term of the license. In the event the license remains in effect for the full term agreed upon, no payment shall be due licensee. Bevilacqua, 377 Pa. at 3, 103 A.2d at 662.

14 . The dissent argues that amendments to public contracts can be made as long as they do not constitute a new undertaking, citing Commonwealth ex rel. Met-Con Co. v. Jones, 283 Pa. 582, 586, 129 A. 635, 636 (1925). Hanisco v. Township of Warminster, 41 A.3d 116, 128 (Pa.Cmwlth.2012) (Leavitt, J., dissenting). However, this concept has not been applied where the change was made to the price term of a contract that involved the same work and price originally agreed upon. Pointing to case law from Alaska and Massachusetts, the dissent seeks to adopt the material amendments doctrine for Pennsylvania, which would permit a contract previously awarded to be renegotiated to arrive at a more favorable term if that term is not a material amendment to the contract. The Township and Mascaro, however, do not raise this issue or assert this defense in their briefs and, therefore, it is waived. Pa. R.A.P. 2116(a), 2119(a), (e); Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 440 (Pa.Cmwlth.2010). We decline to develop an issue that was waived, particularly where the renegotiation of price was not contemplated by the original contract and, pursuant to Bevilacqua, 377 Pa. at 5-6, 103 A.2d at 663-64, "there could be no negotiation on the amount.”

15 . The law of contracts further supports Han-isco's position. An option is a contract to keep an offer open. Warner Brothers Theatres v. Proffitt, 329 Pa. 316, 319, 198 A. 56, 57 (1938); Restatement (First) of Contracts (1932), § 24; 1 Williston on Contracts, 1920, §61. The acceptance of an offer, to be effective, must be unconditional. Jaxtheimer v. Sharpsville Borough, 238 Pa. 42, 57, 85 A. 994, 999 (1913). An option presents no exception to this rule because "[a]n option is a unilateral agreement binding upon the party who executes it from the date of its execution and becomes a contract inter partes when exercised according to its terms.” Boyer v. Nesbitt, 227 Pa. 398, 405, 76 A. 103, 105 (1910) (emphasis added). Thus, “[a]n option is an unaccepted offer ... upon the conditions set forth in the written agreement.” Barnes v. Rea, 219 Pa. 279, 284, 68 A. 836, 838 (1908). The price term for the options as set forth in the 2005 Contract are material terms of the contract. See Stevens v. Doylestown Building & Loan Association, 321 Pa. 173, 174, 183 A. 922, 923 (1936) (noting that price is a material term of a contract).

16 . We disagree with the Township's argument that failure to renegotiate the options would have resulted in the Township’s payment of the higher prices set out in the original option contracts. The Supervisors had already voted to authorize the advertising of a new waste services contract if the private negotiations with Mascaro did not result in a reduction of the option price under the 2005 Contract; thus, they had determined not to exercise those options or to pay the higher prices. (Joint Stipulation at ¶¶ 23-24, R.R. at 194a.)