Malloy v. Boyertown Area School Board

630 A.2d 1283, 158 Pa. Commw. 1, 1993 Pa. Commw. LEXIS 833
CourtCommonwealth Court of Pennsylvania
DecidedMay 19, 1993
DocketNo. 1189 C.D. 1992
StatusPublished
Cited by1 cases

This text of 630 A.2d 1283 (Malloy v. Boyertown Area School Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malloy v. Boyertown Area School Board, 630 A.2d 1283, 158 Pa. Commw. 1, 1993 Pa. Commw. LEXIS 833 (Pa. Ct. App. 1993).

Opinion

LORD, Senior Judge.

This is an appeal by Heidi Malloy, a taxpayer, from an order of the Court of Common Pleas of Berks County denying a preliminary injunction against the Boyertown Area School District (school district) which sought to enjoin the execution of a contract with Alexander Construction Management (construction manager). Malloy’s principal argument is that the school district entered into a non-bid contract and therefore did not comply with Article VII, Section 751 of the Public School Code (School Code), 24 P.S. § 7-751, which provides:

[3]*3(a) All construction, reconstruction, repairs, maintenance or work of any nature, including the introduction of plumbing, heating and ventilating, or lighting systems, upon any school building or upon any school property, or upon any building or portion of a building leased under the provisions of section 703.1, made by any school district, where the entire cost, value, or amount of such construction, reconstruction, repairs, maintenance or work, including labor and material, shall exceed ten thousand dollars ($10,000), shall be done under separate contracts to be entered into by such school district with the lowest responsible bidder, upon proper terms after due public notice has been given asking for competitive bids.

The contract between the school district and the Construction Manager provided for a payment of $525,000 and certain reimbursable costs as well as payment for additional services.

Although this case involved a request for a preliminary injunction, the trial judge did not take evidence on the requisite elements for granting a preliminary injunction1 or discuss them in his opinion. Rather, he decided on the merits that there was no requirement that the contract be executed only after compliance with the strict bidding procedures in Article VII, Section 751 of the School Code. In light of this unusual procedure, therefore, this court will address first the legal question of whether the trial court’s conclusion that this contract could be made without bids was correct.

[4]*4The general area of the law which requires government bodies entering into public contracts to do so by method of competitive bids has been the subject of much litigation.

On the one hand, the public policy of competitive bidding is designed to prevent fraud and favoritism and, most importantly, to protect the public fisc. Doverspike v. Black, 126 Pa.Commonwealth Ct. 11, 541 A.2d 1191 (1988). So important is this consideration that the very statute involved applies to contracts over $10,000. The provision for competitive bidding is also mandatory. R. & B. Builders, Inc. v. School District of Philadelphia, 415 Pa. 50, 202 A.2d 82 (1964). On the other hand, the statutes all contain a limitation that the contract be awarded to the lowest responsible bidder, and thus allow a certain limited discretionary evaluation by the authority involved. In addition, contracts with certain professionals (architects, engineers, certified public accountants) or “other personal services involving professional expert advice” have in some instances been specifically excluded by statute from the bidding process. See, e.g., Section 1802(h)(5) of The County Code, 16 P.S. § 1802(h)(5).

Malloy’s argument on this appeal proceeds as follows. The statute here involved, 24 P.S. § 7-751, contains no specific exceptions to the general rule requiring competitive bidding when the basic contract is for construction. Therefore, Appeal of Belcastro, 528 Pa. 29, 595 A.2d 15 (1991), interpreting The County Code, which contains the provision specifically exempting those contracts covering the services of “members of the medical or legal profession, registered architects, engineers, certified public accountants or other personal services involving professional expert advice,” is not authority for the trial court’s decision. Indeed, Malloy goes further. She argues that the specific exceptions which were present in The County Code examined in Belcastro demonstrate that the General Assembly knew how to make specific exceptions; thus, the absence of specific exceptions in the School Code is a clear indication that the legislature did not intend any exception to exist. This argument is compelling. When coupled with the obvious purposes of competitive bidding as outlined [5]*5above and the size of the contract involved, it must be seriously considered.

However, careful examination of the two statutes — The County Code in Belcastro and the School Code here — leads us to conclude that Malloy’s argument is flawed.

The County Code interpreted in Belcastro is found at 16 P.S. § 1802, and that statute now states:

(a) All contracts for services and personal property where the amount there exceeds the sum of ten thousand dollars ($10,000) shall be written and shall, except as otherwise hereinafter specified, be made by advertising for bids.
* * * H* Hi * .
(h) The contracts or purchases made by the commissioners involving an expenditure of over ten thousand dollars ($10,000) which shall not require advertising or bidding, as hereinbefore provided, are as follows:
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(5) Those involving services of members of the medical or legal profession, registered architects, engineers, certified public accountants or other personal services involving professional expert advice.

It is therefore obvious that the statute is all-encompassing. All contracts for services and personal property unless excepted by, for example, Section 1802(h)(5) for professional services, would be included in the requirement of competitive bidding. The portion of the School Code here involved is by no means as inclusive as the statute our Supreme Court considered in Belcastro. The School Code’s provision at issue here is limited to one type of contract, that for “work.... upon any ... building,” and thus is distinct from the service contracts to which certain exceptions are made in The County Code. In light of this analysis, the absence of the exceptions in the School Code statute loses its significance.

However, we do accept Malloy’s argument that Belcastro is not authority for the trial court’s decision because this statute is simply another statute which the General Assembly has [6]*6constructed in a fashion entirely different from The County Code.

There are two cases worthy of discussion. In Stratton v. Allegheny County, 245 Pa. 519, 91 A. 894 (1914), the Supreme Court held that the county commissioners were not required to put out for bids an architect’s contract, despite the fact that there was no express exception to competitive bidding in the statute considered therein. The drawback in using this case as authority is that a “construction manager” is simply not an architect. The record indicates that an architect is already on this school construction job.

In the next case, Hibbs v. Arensberg, 276 Pa. 24, 119 A.

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Related

Malloy v. Boyertown Area School Board
657 A.2d 915 (Supreme Court of Pennsylvania, 1995)

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Bluebook (online)
630 A.2d 1283, 158 Pa. Commw. 1, 1993 Pa. Commw. LEXIS 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malloy-v-boyertown-area-school-board-pacommwct-1993.