           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). Allan Myers, L.P., a nonunion construction company, petitions for review
of the order of the Secretary of Transportation dismissing its protest to the PLA
requirement in the bid solicitation. The 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.
Reproduced Record at 349a (R.R. __). In August 2017, PennDOT issued a bid
solicitation for the second phase 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 identified in the PLA (Local Unions).1
The PLA obligated bidding contractors to hire craft labor personnel through the
Local Unions and to be bound by the Local Unions’ collective bargaining
agreements. In response, multiple contractors, both union and nonunion, filed
taxpayer 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 obligated contractors to hire through the Local Unions in
accordance with the terms of their collective bargaining agreements. The December
bid solicitation differed 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 Union 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
the hiring requirements under the PLA.


                                               2
              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
              through 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 successful 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. And 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 issuance
              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.


                                             3
             Article VI: CONFLICT AVOIDANCE PROCEDURES

             Section 1: No Strikes-No Lock Outs. The Parties recognize 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 that 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 Union and its
             signatory contractors.

R.R. 25a, 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 bid protest asserted that the use of the PLA violates Section 404.1 of the
State Highway Law,4 which requires 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 September 20,
1961, P.L. 1529, 36 P.S. §670-404.1.


                                            4
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. Because the
PLA provides that “any qualified contractors may bid or perform 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 services[.]” 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, filed
December 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] would



                                         5
have been contractually unable to enter the PLA.” Final Determination, 2/26/2018,
at 12. The Secretary rejected Allan Myers’ 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.
              Allan 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 placed 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 Keystone 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).


                                            6
                          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 favors 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 [United 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 applies only to the Local Unions.6
Because PennDOT’s bid solicitation does not prescribe common standards 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 Local 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. Allan 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.


                                                7
               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 specifications 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 bidding
except as otherwise 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 Burrell, 208 A.2d
847, 850 (Pa. 1965) (citation omitted). The intent of competitive bidding statutes 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,
supplies or other personal property used by the government of this Commonwealth shall so far as
practicable be made.” PA. CONST. art. III, §22.


                                                8
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 bids 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 “procedures
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, regardless 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 considered 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 they 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.


                                             9
structure of their working relationships with their employees, thereby effectively
restricting the pool of eligible contractors and suppressing competition.
             This Court held that the authority had the discretion to develop the
contours of its public contract. We explained that the lowest responsible bidder does
not necessarily mean “the one whose bid on its face is lowest in dollars;” rather, it
includes 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 project. The authority faced the loss of an anchor tenant and state funding if
construction was 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, we recognized that the competitive bidding laws preclude
public bodies from discriminating between union and nonunion contractors in the
award of public projects. However, the protesters 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
             20% 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 Plaintiffs 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
preliminary injunction to prevent a school district from awarding a contract for two


                                          10
school construction projects.         The contractor alleged that the school district’s
inclusion of a PLA in the bidding process effectively 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 injunction
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. Given 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.
               We 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 bids 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
municipal or other local authority, or agency of any political subdivision or local authority.” 62
Pa. C.S. §3102.



                                               11
               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 Services’ 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 nonunion employee testified about the adverse
effects of the PLA.         The Department presented testimony on the urgency of
completing 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 unpublished 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 Court 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 injunction



                                                12
                                            B. Analysis
                With 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 from 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, this 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 overlapping;” 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 the 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 Rocky
Mount, Inc., 828 A.2d 995 (Pa. 2003)).
        In denying the request for a preliminary injunction, the Court further ruled that the
nonunion contractors failed to prove that greater injury would result from 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 would be harmed by granting the request for injunctive
relief.” Hawbaker, slip op. at 30.


                                                  13
               We agree with Allan Myers that the exemption for United Steelworkers
contractors tilts the playing field. If 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 otherwise, United Steelworkers contractors do not bid “on an equal footing”
with other contractors. Hallowell, 490 A.2d at 957. In addition, by 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, PennDOT counters that in Pickett, Sossong, and
Hawbaker, this Court established that PLAs “are legally valid in principle” where
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 shortages may cause “increased costs” and “unwarranted traffic congestion.”
R.R. 25a-26a. Section 403 of the State Highway Law12 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
  Section 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).


                                               14
or abused its power,” PennDOT argues that its decision to use a PLA must be upheld.
We are not persuaded.
             We agree 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 prohibit discrimination between union and
nonunion contractors in the award of public contracts. Pickett, 738 A.2d at 25. To
be sure, the 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
Construction] Council or its Local Unions.” R.R. 26a. Notwithstanding this lip
service to the principle of competitive bidding, the PLA does 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 Steelworkers, 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 Agreements 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 successor



                                         15
agreements or amendments thereto.” R.R. 27a (emphasis added). It is unknown
whether a “successor agreement” would amend this 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’ existing workforce as members or assign them back if they
are accepted. Allan Myers cannot bid for the Project with an unknown workforce.
The 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 has 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
agreements “and any successor agreements or amendments” and requires that
nonunion contractors hire all craft labor personnel through the Local Unions. R.R.
27a. The PLAs in Pickett, Sossong and Hawbaker did not contain an exemption for
certain contractors with a specific union affiliation. Here, by contrast, the PLA



                                          16
permits United Steelworkers contractors to use their normal workforce but requires
nonunion contractors to hire through the Local Unions. In sum, Pickett, Sossong,
and Hawbaker are factually distinguishable.
             Further, our precedent in Pickett and Sossong did not establish the
broad principle that a PLA is appropriate so long as it contains the boilerplate
language “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 year 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 Markley 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. This 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 violates competitive bidding. Given this conclusion, we
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 good



                                         17
faith, or lack thereof, 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 does 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 shall order is limited to canceling the solicitation or award
       and declaring void any resulting contract.
62 Pa. C.S. §1711.1(j).


                                                  18
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Allan Myers, L.P.,                       :
                     Petitioner          :
                                         :
            v.                           :   No. 314 C.D. 2018
                                         :
Department of Transportation,            :
                  Respondent             :



                                    ORDER

            AND NOW, this 11th day 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
