School Projects May Be Done Through Single Contract
Benjamin L. Pratt
School Projects May Be Done Through Single Contract
By: Attorney Benjamin L. Pratt
On November 21, 2007, the Pennsylvania Supreme Court issued a decision that is significant to contractors that perform work on school projects in Pennsylvania. In the companion cases of Mechanical Contractors Association of Eastern Pennsylvania vs. the Commonwealth of Pennsylvania, Department of Education, et al. and General Building Contractors Association, et al. vs. Commonwealth of Pennsylvania, Pennsylvania Department of Education, et al., the Supreme Court wrestled with apparent conflicts in the language of the Educational Empowerment Act which was added to the School Code in May 2000, Section 751(a) of the School Code (which requires that separate contracts be entered into for work done on plumbing, heating, and ventilating or lighting systems in school buildings) and the Separations Act itself, which generally requires separate bids and contracts for plumbing, heating, and ventilating, and electrical work on public projects in Pennsylvania.
Specifically, the Educational Empowerment Act provides a procedure whereby school boards could apply to the Department of Education for a wavier of any provision of the School Code if it would enable the school district to improve its educational program or operate in a more effective, efficient, or economical manner. The Educational Empowerment Act identified certain specific provisions of the School Code which were not subject to waiver, but Section 751(a), requiring separate contracts, was not one of the sections listed.
In January 2004, the Mechanical Contactors Association of Eastern Pennsylvania filed an action in Commonwealth Court seeking a declaration that a waiver of the separations requirement issued by the Department of Education to the Philadelphia School Board was invalid under the Educational Empowerment Act and Section 1 of the Separations Act. While that case was pending, the General Building Contractors Association, the Pennsylvania School Boards Association, various school districts, and other groups, including the Pennsylvania State Council of Carpenters, filed an action seeking a declaration from Commonwealth Court that the Separations Act did not apply to public school construction and that the Mandate Waiver Program set forth in the Educational Empowerment Act did authorize the granting of waivers of the requirements of Section 751(a) of the School Code.
After analyzing the language in the various statues, our Supreme Court held that the separate contract requirements provision of the School Code was subject to waiver under the Mandate Waiver Program. Accordingly, based upon this decision, school districts may apply for waivers of this provision if they determine that the waiver will enable the school district to “improve its instructional program or operate in a more effective, efficient or economical manner.” Given the outcome of the Supreme Court’s decision, it now appears that this issue may be contested school district-by-school district. All public school entities will need to pay attention to how these waivers are handled by the Department of Education to determine if requesting a waiver in the future is best for the District.
Other public authorities may want to pay attention to this issue as well. Relief from the Separations Act may trickle down to townships, boroughs and authorities in the future if it can be proven to be effective cost savings in the public school setting.
For more information on this issue please contact CGA Law Firm Municipal Law Division for assistance.
