Empathy List Archives

JE

Joseph E. Bresnan

Tue, Oct 15, 2019 7:41 PM

Hello all,

I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of "maintenance" (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage.

The Borough/First Class/Second Class codes all say that you do not have to go to bid for "routine maintenance, repair or replacement", provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding.

However, the Prevailing Wage Act applies to "repair work, other than maintenance", meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not.

The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance.

Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section "3" of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid).

Any input on these inconsistent uses of repair/maintenance is much appreciated.

Joe Bresnan

[Dischell, Bartle & Dooley]http://dischellbartle.com/
Joseph E. Bresnan | Partner
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 | F: 215.362.6722
224 King Street | Pottstown, PA 19464
jbresnan@dischellbartle.com mailto:jbresnan@dischellbartle.com
www.dischellbartle.com http://www.dischellbartle.com
This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it.

Hello all, I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of "maintenance" (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage. The Borough/First Class/Second Class codes all say that you do not have to go to bid for "routine maintenance, repair or replacement", provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding. However, the Prevailing Wage Act applies to "repair work, other than maintenance", meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not. The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance. Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section "3" of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid). Any input on these inconsistent uses of repair/maintenance is much appreciated. Joe Bresnan [Dischell, Bartle & Dooley]<http://dischellbartle.com/> Joseph E. Bresnan | Partner Dischell, Bartle & Dooley, P.C. P: 215.362.2474 | F: 215.362.6722 224 King Street | Pottstown, PA 19464 jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com> www.dischellbartle.com<http://www.dischellbartle.com> This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it.

WJ

Warren Jr., William W.

Tue, Oct 15, 2019 8:32 PM

Joe,

Welcome to the world of public contracting! Fun, eh?

First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that’s a given, unless the project is actually under the bid threshold. If you’re bidding it, you will need to apply the Prevailing Wage statute. It’s that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply.

And don’t bother with PennDOT’s regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best.

There are lots of other inconsistencies. For example, nonprofits don’t have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren’t consistent either.

William W. Warren, Jr.
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
william.warren@saul.com mailto:william.warren@saul.com
Office (717) 238-7698 | Cell (717) 979-5570

From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Tuesday, October 15, 2019 3:42 PM
To: pmlsolicitors@lists.imla.org
Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements

EXTERNAL EMAIL - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments.

Hello all,

I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of “maintenance” (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage.

The Borough/First Class/Second Class codes all say that you do not have to go to bid for “routine maintenance, repair or replacement”, provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding.

However, the Prevailing Wage Act applies to “repair work, other than maintenance”, meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not.

The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance.

Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section “3” of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid).

Any input on these inconsistent uses of repair/maintenance is much appreciated.

Joe Bresnan

[Dischell, Bartle & Dooley]http://dischellbartle.com/
Joseph E. Bresnan | Partner
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 | F: 215.362.6722
224 King Street | Pottstown, PA 19464
jbresnan@dischellbartle.com mailto:jbresnan@dischellbartle.com
www.dischellbartle.com http://www.dischellbartle.com
This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it.

"Saul Ewing Arnstein & Lehr LLP (saul.com) " made the following annotations:
+~~~~~~~~~~~~~~~~~~~~~~~+
This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete.
+~~~~~~~~~~~~~~~~~~~~~~~~+

Joe, Welcome to the world of public contracting! Fun, eh? First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that’s a given, unless the project is actually under the bid threshold. If you’re bidding it, you will need to apply the Prevailing Wage statute. It’s that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply. And don’t bother with PennDOT’s regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best. There are lots of other inconsistencies. For example, nonprofits don’t have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren’t consistent either. William W. Warren, Jr. Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 william.warren@saul.com<mailto:william.warren@saul.com> Office (717) 238-7698 | Cell (717) 979-5570 From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan Sent: Tuesday, October 15, 2019 3:42 PM To: pmlsolicitors@lists.imla.org Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements **EXTERNAL EMAIL** - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments. Hello all, I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of “maintenance” (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage. The Borough/First Class/Second Class codes all say that you do not have to go to bid for “routine maintenance, repair or replacement”, provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding. However, the Prevailing Wage Act applies to “repair work, other than maintenance”, meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not. The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance. Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section “3” of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid). Any input on these inconsistent uses of repair/maintenance is much appreciated. Joe Bresnan [Dischell, Bartle & Dooley]<http://dischellbartle.com/> Joseph E. Bresnan | Partner Dischell, Bartle & Dooley, P.C. P: 215.362.2474 | F: 215.362.6722 224 King Street | Pottstown, PA 19464 jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com> www.dischellbartle.com<http://www.dischellbartle.com> This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it. "Saul Ewing Arnstein & Lehr LLP (saul.com) " made the following annotations: +~~~~~~~~~~~~~~~~~~~~~~~+ This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete. +~~~~~~~~~~~~~~~~~~~~~~~~+

JE

Joseph E. Bresnan

Tue, Oct 15, 2019 8:44 PM

Bill,
In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage.
Joe

Sent from my phone
Joseph E. Bresnan
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 F: 215.362.6722
224 King Street
Pottstown, PA 19464

From: Warren Jr., William W. william.warren@saul.com
Sent: Tuesday, October 15, 2019 4:32:33 PM
To: Joseph E. Bresnan jbresnan@dischellbartle.com; pmlsolicitors@lists.imla.org pmlsolicitors@lists.imla.org
Subject: RE: Bidding requirements vs Prevailing wage requirements

Joe,

Welcome to the world of public contracting! Fun, eh?

First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that’s a given, unless the project is actually under the bid threshold. If you’re bidding it, you will need to apply the Prevailing Wage statute. It’s that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply.

And don’t bother with PennDOT’s regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best.

There are lots of other inconsistencies. For example, nonprofits don’t have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren’t consistent either.

William W. Warren, Jr.
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
william.warren@saul.com mailto:william.warren@saul.com
Office (717) 238-7698 | Cell (717) 979-5570

From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Tuesday, October 15, 2019 3:42 PM
To: pmlsolicitors@lists.imla.org
Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements

EXTERNAL EMAIL - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments.

Hello all,

I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of “maintenance” (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage.

The Borough/First Class/Second Class codes all say that you do not have to go to bid for “routine maintenance, repair or replacement”, provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding.

However, the Prevailing Wage Act applies to “repair work, other than maintenance”, meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not.

The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance.

Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section “3” of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid).

Any input on these inconsistent uses of repair/maintenance is much appreciated.

Joe Bresnan

[Dischell, Bartle & Dooley]http://dischellbartle.com/
Joseph E. Bresnan | Partner
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 | F: 215.362.6722
224 King Street | Pottstown, PA 19464
jbresnan@dischellbartle.com mailto:jbresnan@dischellbartle.com
www.dischellbartle.com http://www.dischellbartle.com
This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it.

"Saul Ewing Arnstein & Lehr LLP (saul.com)" has made the following annotations:
+~~~~~~~~~~~~~~~~~~~~~~~+
This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete.
+~~~~~~~~~~~~~~~~~~~~~~~~+

This email has been scanned for spam and viruses. Click herehttps://procirrus.cloud-protect.net/index01.php?mod_id=11&mod_option=logitem&mail_id=1571171558-rAjKfZyWoPj1&r_address=jbresnan%40dischellbartle.com&report=1 to report this email as spam.

Bill, In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage. Joe Sent from my phone Joseph E. Bresnan Dischell, Bartle & Dooley, P.C. P: 215.362.2474 F: 215.362.6722 224 King Street Pottstown, PA 19464 ________________________________ From: Warren Jr., William W. <william.warren@saul.com> Sent: Tuesday, October 15, 2019 4:32:33 PM To: Joseph E. Bresnan <jbresnan@dischellbartle.com>; pmlsolicitors@lists.imla.org <pmlsolicitors@lists.imla.org> Subject: RE: Bidding requirements vs Prevailing wage requirements Joe, Welcome to the world of public contracting! Fun, eh? First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that’s a given, unless the project is actually under the bid threshold. If you’re bidding it, you will need to apply the Prevailing Wage statute. It’s that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply. And don’t bother with PennDOT’s regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best. There are lots of other inconsistencies. For example, nonprofits don’t have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren’t consistent either. William W. Warren, Jr. Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 william.warren@saul.com<mailto:william.warren@saul.com> Office (717) 238-7698 | Cell (717) 979-5570 From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan Sent: Tuesday, October 15, 2019 3:42 PM To: pmlsolicitors@lists.imla.org Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements **EXTERNAL EMAIL** - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments. Hello all, I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of “maintenance” (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage. The Borough/First Class/Second Class codes all say that you do not have to go to bid for “routine maintenance, repair or replacement”, provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding. However, the Prevailing Wage Act applies to “repair work, other than maintenance”, meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not. The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance. Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section “3” of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid). Any input on these inconsistent uses of repair/maintenance is much appreciated. Joe Bresnan [Dischell, Bartle & Dooley]<http://dischellbartle.com/> Joseph E. Bresnan | Partner Dischell, Bartle & Dooley, P.C. P: 215.362.2474 | F: 215.362.6722 224 King Street | Pottstown, PA 19464 jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com> www.dischellbartle.com<http://www.dischellbartle.com> This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it. "Saul Ewing Arnstein & Lehr LLP (saul.com)" has made the following annotations: +~~~~~~~~~~~~~~~~~~~~~~~+ This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete. +~~~~~~~~~~~~~~~~~~~~~~~~+ ________________________________ This email has been scanned for spam and viruses. Click here<https://procirrus.cloud-protect.net/index01.php?mod_id=11&mod_option=logitem&mail_id=1571171558-rAjKfZyWoPj1&r_address=jbresnan%40dischellbartle.com&report=1> to report this email as spam.

WJ

Warren Jr., William W.

Tue, Oct 15, 2019 8:52 PM

Okay, on the basis of your analysis, you would not bid the project, but you would pay prevailing wage. Each of the statutes in the public contracting arena have to be applied on the basis of their own provisions. Most people assume that work is either public or not, and that all the statutes either apply or they don't. Your staff and the engineers understandably have that view. It just doesn't work that way.

Paying outside firms prevailing wage in the context of no bid contracts does seem weird, but that's where your analysis is pointing to.

As an aside, why not bid the maintenance contract anyway, even if not mandated by the municipal codes. Your maintenance contract could have a lot of value, especially with a prevailing wage requirement!

William W. Warren, Jr.
Moderator PML Listserv
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
Office (717) 238-7698 | Cell (717) 979-5570
william.warren@saul.com mailto:william.warren@saul.com

From: Joseph E. Bresnan [mailto:jbresnan@dischellbartle.com]
Sent: Tuesday, October 15, 2019 4:45 PM
To: Warren Jr., William W.; pmlsolicitors@lists.imla.org
Subject: Re: Bidding requirements vs Prevailing wage requirements

Bill,
In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage.
Joe
Sent from my phone
Joseph E. Bresnan
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 F: 215.362.6722
224 King Street
Pottstown, PA 19464

From: Warren Jr., William W. william.warren@saul.com
Sent: Tuesday, October 15, 2019 4:32:33 PM
To: Joseph E. Bresnan jbresnan@dischellbartle.com; pmlsolicitors@lists.imla.org pmlsolicitors@lists.imla.org
Subject: RE: Bidding requirements vs Prevailing wage requirements

Joe,

Welcome to the world of public contracting! Fun, eh?

First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that's a given, unless the project is actually under the bid threshold. If you're bidding it, you will need to apply the Prevailing Wage statute. It's that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply.

And don't bother with PennDOT's regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best.

There are lots of other inconsistencies. For example, nonprofits don't have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren't consistent either.

William W. Warren, Jr.
Saul Ewing Arnstein & Lehr LLP
2 North Second Street, Suite 700
Harrisburg, PA 17101
william.warren@saul.com mailto:william.warren@saul.com
Office (717) 238-7698 | Cell (717) 979-5570

From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Tuesday, October 15, 2019 3:42 PM
To: pmlsolicitors@lists.imla.org
Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements

EXTERNAL EMAIL - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments.

Hello all,

I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of "maintenance" (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage.

The Borough/First Class/Second Class codes all say that you do not have to go to bid for "routine maintenance, repair or replacement", provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding.

However, the Prevailing Wage Act applies to "repair work, other than maintenance", meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not.

The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance.

Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section "3" of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid).

Any input on these inconsistent uses of repair/maintenance is much appreciated.

Joe Bresnan

[Dischell, Bartle & Dooley]http://dischellbartle.com/
Joseph E. Bresnan | Partner
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 | F: 215.362.6722
224 King Street | Pottstown, PA 19464
jbresnan@dischellbartle.com mailto:jbresnan@dischellbartle.com
www.dischellbartle.com http://www.dischellbartle.com
This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it.

"Saul Ewing Arnstein & Lehr LLP (saul.com)" has made the following annotations:
+~~~~~~~~~~~~~~~~~~~~~~~+
This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete.
+~~~~~~~~~~~~~~~~~~~~~~~~+

This email has been scanned for spam and viruses. Click herehttps://procirrus.cloud-protect.net/index01.php?mod_id=11&mod_option=logitem&mail_id=1571171558-rAjKfZyWoPj1&r_address=jbresnan%40dischellbartle.com&report=1 to report this email as spam.

Okay, on the basis of your analysis, you would not bid the project, but you would pay prevailing wage. Each of the statutes in the public contracting arena have to be applied on the basis of their own provisions. Most people assume that work is either public or not, and that all the statutes either apply or they don't. Your staff and the engineers understandably have that view. It just doesn't work that way. Paying outside firms prevailing wage in the context of no bid contracts does seem weird, but that's where your analysis is pointing to. As an aside, why not bid the maintenance contract anyway, even if not mandated by the municipal codes. Your maintenance contract could have a lot of value, especially with a prevailing wage requirement! William W. Warren, Jr. Moderator PML Listserv Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 Office (717) 238-7698 | Cell (717) 979-5570 william.warren@saul.com<mailto:william.warren@saul.com> From: Joseph E. Bresnan [mailto:jbresnan@dischellbartle.com] Sent: Tuesday, October 15, 2019 4:45 PM To: Warren Jr., William W.; pmlsolicitors@lists.imla.org Subject: Re: Bidding requirements vs Prevailing wage requirements Bill, In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage. Joe Sent from my phone Joseph E. Bresnan Dischell, Bartle & Dooley, P.C. P: 215.362.2474 F: 215.362.6722 224 King Street Pottstown, PA 19464 ________________________________ From: Warren Jr., William W. <william.warren@saul.com> Sent: Tuesday, October 15, 2019 4:32:33 PM To: Joseph E. Bresnan <jbresnan@dischellbartle.com>; pmlsolicitors@lists.imla.org <pmlsolicitors@lists.imla.org> Subject: RE: Bidding requirements vs Prevailing wage requirements Joe, Welcome to the world of public contracting! Fun, eh? First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that's a given, unless the project is actually under the bid threshold. If you're bidding it, you will need to apply the Prevailing Wage statute. It's that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply. And don't bother with PennDOT's regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best. There are lots of other inconsistencies. For example, nonprofits don't have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren't consistent either. William W. Warren, Jr. Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 william.warren@saul.com<mailto:william.warren@saul.com> Office (717) 238-7698 | Cell (717) 979-5570 From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan Sent: Tuesday, October 15, 2019 3:42 PM To: pmlsolicitors@lists.imla.org Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements **EXTERNAL EMAIL** - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments. Hello all, I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of "maintenance" (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage. The Borough/First Class/Second Class codes all say that you do not have to go to bid for "routine maintenance, repair or replacement", provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding. However, the Prevailing Wage Act applies to "repair work, other than maintenance", meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not. The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance. Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section "3" of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid). Any input on these inconsistent uses of repair/maintenance is much appreciated. Joe Bresnan [Dischell, Bartle & Dooley]<http://dischellbartle.com/> Joseph E. Bresnan | Partner Dischell, Bartle & Dooley, P.C. P: 215.362.2474 | F: 215.362.6722 224 King Street | Pottstown, PA 19464 jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com> www.dischellbartle.com<http://www.dischellbartle.com> This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it. "Saul Ewing Arnstein & Lehr LLP (saul.com)" has made the following annotations: +~~~~~~~~~~~~~~~~~~~~~~~+ This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete. +~~~~~~~~~~~~~~~~~~~~~~~~+ ________________________________ This email has been scanned for spam and viruses. Click here<https://procirrus.cloud-protect.net/index01.php?mod_id=11&mod_option=logitem&mail_id=1571171558-rAjKfZyWoPj1&r_address=jbresnan%40dischellbartle.com&report=1> to report this email as spam.

WP

William P. Leeson

Wed, Oct 16, 2019 2:42 PM

In Bethlehem, generally, we apply the statutes independently. If one applies and the other doesn't we'll look to apply the one that applies rather than infer an exception. We favor a more conservative approach to preempt challenges and protect public funds (even though, to some, paying prevailing sometimes seems at odds with the the goal of conserving funds). We prefer to avoid tieing the statutes together out of concern that it invites unnecessarily creative interpretations with the effect of avoidance of statutory requirements.

William P. Leeson, Esq.

From: Pmlsolicitors pmlsolicitors-bounces@lists.imla.org on behalf of Warren Jr., William W. william.warren@saul.com
Sent: Tuesday, October 15, 2019 4:52 PM
To: 'Joseph E. Bresnan' jbresnan@dischellbartle.com; pmlsolicitors@lists.imla.org pmlsolicitors@lists.imla.org
Subject: Re: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements

Okay, on the basis of your analysis, you would not bid the project, but you would pay prevailing wage. Each of the statutes in the public contracting arena have to be applied on the basis of their own provisions. Most people assume that work is either public or not, and that all the statutes either apply or they don’t. Your staff and the engineers understandably have that view. It just doesn’t work that way.

Paying outside firms prevailing wage in the context of no bid contracts does seem weird, but that’s where your analysis is pointing to.

As an aside, why not bid the maintenance contract anyway, even if not mandated by the municipal codes. Your maintenance contract could have a lot of value, especially with a prevailing wage requirement!

William W. Warren, Jr.

Moderator PML Listserv

Saul Ewing Arnstein & Lehr LLP

2 North Second Street, Suite 700

Harrisburg, PA 17101

Office (717) 238-7698 | Cell (717) 979-5570

william.warren@saul.com mailto:william.warren@saul.com

From: Joseph E. Bresnan [mailto:jbresnan@dischellbartle.com]
Sent: Tuesday, October 15, 2019 4:45 PM
To: Warren Jr., William W.; pmlsolicitors@lists.imla.org
Subject: Re: Bidding requirements vs Prevailing wage requirements

Bill,

In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage.

Joe

Sent from my phone

Joseph E. Bresnan

Dischell, Bartle & Dooley, P.C.

P: 215.362.2474 F: 215.362.6722

224 King Street

Pottstown, PA 19464

From: Warren Jr., William W. william.warren@saul.com
Sent: Tuesday, October 15, 2019 4:32:33 PM
To: Joseph E. Bresnan jbresnan@dischellbartle.com; pmlsolicitors@lists.imla.org pmlsolicitors@lists.imla.org
Subject: RE: Bidding requirements vs Prevailing wage requirements

Joe,

Welcome to the world of public contracting! Fun, eh?

First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that’s a given, unless the project is actually under the bid threshold. If you’re bidding it, you will need to apply the Prevailing Wage statute. It’s that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply.

And don’t bother with PennDOT’s regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best.

There are lots of other inconsistencies. For example, nonprofits don’t have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren’t consistent either.

William W. Warren, Jr.

Saul Ewing Arnstein & Lehr LLP

2 North Second Street, Suite 700

Harrisburg, PA 17101

william.warren@saul.com mailto:william.warren@saul.com

Office (717) 238-7698 | Cell (717) 979-5570

From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Tuesday, October 15, 2019 3:42 PM
To: pmlsolicitors@lists.imla.org
Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements

EXTERNAL EMAIL - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments.

Hello all,

I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of “maintenance” (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage.

The Borough/First Class/Second Class codes all say that you do not have to go to bid for “routine maintenance, repair or replacement”, provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding.

However, the Prevailing Wage Act applies to “repair work, other than maintenance”, meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not.

The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance.

Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section “3” of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid).

Any input on these inconsistent uses of repair/maintenance is much appreciated.

Joe Bresnan

[Dischell, Bartle & Dooley]http://dischellbartle.com/
Joseph E. Bresnan | Partner
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 | F: 215.362.6722
224 King Street | Pottstown, PA 19464
jbresnan@dischellbartle.com mailto:jbresnan@dischellbartle.com
www.dischellbartle.com http://www.dischellbartle.com

This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it.

"Saul Ewing Arnstein & Lehr LLP (saul.com)" has made the following annotations:

+~~~~~~~~~~~~~~~~~~~~~~~+

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This email has been scanned for spam and viruses. Click herehttps://procirrus.cloud-protect.net/index01.php?mod_id=11&mod_option=logitem&mail_id=1571171558-rAjKfZyWoPj1&r_address=jbresnan%40dischellbartle.com&report=1 to report this email as spam.

In Bethlehem, generally, we apply the statutes independently. If one applies and the other doesn't we'll look to apply the one that applies rather than infer an exception. We favor a more conservative approach to preempt challenges and protect public funds (even though, to some, paying prevailing sometimes seems at odds with the the goal of conserving funds). We prefer to avoid tieing the statutes together out of concern that it invites unnecessarily creative interpretations with the effect of avoidance of statutory requirements. William P. Leeson, Esq. ________________________________ From: Pmlsolicitors <pmlsolicitors-bounces@lists.imla.org> on behalf of Warren Jr., William W. <william.warren@saul.com> Sent: Tuesday, October 15, 2019 4:52 PM To: 'Joseph E. Bresnan' <jbresnan@dischellbartle.com>; pmlsolicitors@lists.imla.org <pmlsolicitors@lists.imla.org> Subject: Re: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements Okay, on the basis of your analysis, you would not bid the project, but you would pay prevailing wage. Each of the statutes in the public contracting arena have to be applied on the basis of their own provisions. Most people assume that work is either public or not, and that all the statutes either apply or they don’t. Your staff and the engineers understandably have that view. It just doesn’t work that way. Paying outside firms prevailing wage in the context of no bid contracts does seem weird, but that’s where your analysis is pointing to. As an aside, why not bid the maintenance contract anyway, even if not mandated by the municipal codes. Your maintenance contract could have a lot of value, especially with a prevailing wage requirement! William W. Warren, Jr. Moderator PML Listserv Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 Office (717) 238-7698 | Cell (717) 979-5570 william.warren@saul.com<mailto:william.warren@saul.com> From: Joseph E. Bresnan [mailto:jbresnan@dischellbartle.com] Sent: Tuesday, October 15, 2019 4:45 PM To: Warren Jr., William W.; pmlsolicitors@lists.imla.org Subject: Re: Bidding requirements vs Prevailing wage requirements Bill, In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage. Joe Sent from my phone Joseph E. Bresnan Dischell, Bartle & Dooley, P.C. P: 215.362.2474 F: 215.362.6722 224 King Street Pottstown, PA 19464 ________________________________ From: Warren Jr., William W. <william.warren@saul.com> Sent: Tuesday, October 15, 2019 4:32:33 PM To: Joseph E. Bresnan <jbresnan@dischellbartle.com>; pmlsolicitors@lists.imla.org <pmlsolicitors@lists.imla.org> Subject: RE: Bidding requirements vs Prevailing wage requirements Joe, Welcome to the world of public contracting! Fun, eh? First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that’s a given, unless the project is actually under the bid threshold. If you’re bidding it, you will need to apply the Prevailing Wage statute. It’s that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply. And don’t bother with PennDOT’s regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best. There are lots of other inconsistencies. For example, nonprofits don’t have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren’t consistent either. William W. Warren, Jr. Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 william.warren@saul.com<mailto:william.warren@saul.com> Office (717) 238-7698 | Cell (717) 979-5570 From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan Sent: Tuesday, October 15, 2019 3:42 PM To: pmlsolicitors@lists.imla.org Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements **EXTERNAL EMAIL** - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments. Hello all, I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of “maintenance” (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage. The Borough/First Class/Second Class codes all say that you do not have to go to bid for “routine maintenance, repair or replacement”, provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding. However, the Prevailing Wage Act applies to “repair work, other than maintenance”, meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not. The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance. Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section “3” of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid). Any input on these inconsistent uses of repair/maintenance is much appreciated. Joe Bresnan [Dischell, Bartle & Dooley]<http://dischellbartle.com/> Joseph E. Bresnan | Partner Dischell, Bartle & Dooley, P.C. P: 215.362.2474 | F: 215.362.6722 224 King Street | Pottstown, PA 19464 jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com> www.dischellbartle.com<http://www.dischellbartle.com> This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it. "Saul Ewing Arnstein & Lehr LLP (saul.com)" has made the following annotations: +~~~~~~~~~~~~~~~~~~~~~~~+ This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete. +~~~~~~~~~~~~~~~~~~~~~~~~+ ________________________________ This email has been scanned for spam and viruses. Click here<https://procirrus.cloud-protect.net/index01.php?mod_id=11&mod_option=logitem&mail_id=1571171558-rAjKfZyWoPj1&r_address=jbresnan%40dischellbartle.com&report=1> to report this email as spam.

JE

Joseph E. Bresnan

Wed, Oct 16, 2019 2:58 PM

Thank you for the input on this. I, too, see them as independent, and wanted to make sure I was not missing something since I have already opined to clients to that effect. However, just as an observation about what was happening out there in the real world, I would get an email from staff or the municipal engineer asking me whether a particular job was exempt from bidding under the applicable Borough or Township code. I would tell them it was exempt as maintenance, unaware that they, in turn, assumed it was also exempt from prevailing wage since both statutes have a maintenance exemption with a subtle difference not known to them. I now know to add to each such email, "prevailing wage is a separate matter entirely". Also, Bill Warren I agree, once you are shackled with prevailing wages, it makes that much more sense to go to bid, with the numbers being bigger, although for certain very specific work, staff has certain providers they trust implicitly to the exclusion of others, which is what generates the question initially.

Thanks again,

Joe

From: William P. Leeson [mailto:bill@leeson3.com]
Sent: Wednesday, October 16, 2019 10:43 AM
To: Warren Jr., William W. william.warren@saul.com; Joseph E. Bresnan jbresnan@dischellbartle.com; pmlsolicitors@lists.imla.org
Subject: Re: Bidding requirements vs Prevailing wage requirements

In Bethlehem, generally, we apply the statutes independently. If one applies and the other doesn't we'll look to apply the one that applies rather than infer an exception. We favor a more conservative approach to preempt challenges and protect public funds (even though, to some, paying prevailing sometimes seems at odds with the the goal of conserving funds). We prefer to avoid tieing the statutes together out of concern that it invites unnecessarily creative interpretations with the effect of avoidance of statutory requirements.

William P. Leeson, Esq.

From: Pmlsolicitors <pmlsolicitors-bounces@lists.imla.org mailto:pmlsolicitors-bounces@lists.imla.org> on behalf of Warren Jr., William W. <william.warren@saul.com mailto:william.warren@saul.com>
Sent: Tuesday, October 15, 2019 4:52 PM
To: 'Joseph E. Bresnan' <jbresnan@dischellbartle.com mailto:jbresnan@dischellbartle.com>; pmlsolicitors@lists.imla.org mailto:pmlsolicitors@lists.imla.org <pmlsolicitors@lists.imla.org mailto:pmlsolicitors@lists.imla.org>
Subject: Re: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements

Okay, on the basis of your analysis, you would not bid the project, but you would pay prevailing wage. Each of the statutes in the public contracting arena have to be applied on the basis of their own provisions. Most people assume that work is either public or not, and that all the statutes either apply or they don't. Your staff and the engineers understandably have that view. It just doesn't work that way.

Paying outside firms prevailing wage in the context of no bid contracts does seem weird, but that's where your analysis is pointing to.

As an aside, why not bid the maintenance contract anyway, even if not mandated by the municipal codes. Your maintenance contract could have a lot of value, especially with a prevailing wage requirement!

William W. Warren, Jr.

Moderator PML Listserv

Saul Ewing Arnstein & Lehr LLP

2 North Second Street, Suite 700

Harrisburg, PA 17101

Office (717) 238-7698 | Cell (717) 979-5570

william.warren@saul.com mailto:william.warren@saul.com

From: Joseph E. Bresnan [mailto:jbresnan@dischellbartle.com]
Sent: Tuesday, October 15, 2019 4:45 PM
To: Warren Jr., William W.; pmlsolicitors@lists.imla.org mailto:pmlsolicitors@lists.imla.org
Subject: Re: Bidding requirements vs Prevailing wage requirements

Bill,

In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage.

Joe

Sent from my phone

Joseph E. Bresnan

Dischell, Bartle & Dooley, P.C.

P: 215.362.2474 F: 215.362.6722

224 King Street

Pottstown, PA 19464

From: Warren Jr., William W. <william.warren@saul.com mailto:william.warren@saul.com>
Sent: Tuesday, October 15, 2019 4:32:33 PM
To: Joseph E. Bresnan <jbresnan@dischellbartle.com mailto:jbresnan@dischellbartle.com>; pmlsolicitors@lists.imla.org mailto:pmlsolicitors@lists.imla.org <pmlsolicitors@lists.imla.org mailto:pmlsolicitors@lists.imla.org>
Subject: RE: Bidding requirements vs Prevailing wage requirements

Joe,

Welcome to the world of public contracting! Fun, eh?

First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that's a given, unless the project is actually under the bid threshold. If you're bidding it, you will need to apply the Prevailing Wage statute. It's that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply.

And don't bother with PennDOT's regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best.

There are lots of other inconsistencies. For example, nonprofits don't have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren't consistent either.

William W. Warren, Jr.

Saul Ewing Arnstein & Lehr LLP

2 North Second Street, Suite 700

Harrisburg, PA 17101

william.warren@saul.com mailto:william.warren@saul.com

Office (717) 238-7698 | Cell (717) 979-5570

From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan
Sent: Tuesday, October 15, 2019 3:42 PM
To: pmlsolicitors@lists.imla.org mailto:pmlsolicitors@lists.imla.org
Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements

EXTERNAL EMAIL - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments.

Hello all,

I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of "maintenance" (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage.

The Borough/First Class/Second Class codes all say that you do not have to go to bid for "routine maintenance, repair or replacement", provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding.

However, the Prevailing Wage Act applies to "repair work, other than maintenance", meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not.

The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance.

Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section "3" of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid).

Any input on these inconsistent uses of repair/maintenance is much appreciated.

Joe Bresnan

[Dischell, Bartle & Dooley]http://dischellbartle.com/
Joseph E. Bresnan | Partner
Dischell, Bartle & Dooley, P.C.
P: 215.362.2474 | F: 215.362.6722
224 King Street | Pottstown, PA 19464
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Thank you for the input on this. I, too, see them as independent, and wanted to make sure I was not missing something since I have already opined to clients to that effect. However, just as an observation about what was happening out there in the real world, I would get an email from staff or the municipal engineer asking me whether a particular job was exempt from bidding under the applicable Borough or Township code. I would tell them it was exempt as maintenance, unaware that they, in turn, assumed it was also exempt from prevailing wage since both statutes have a maintenance exemption with a subtle difference not known to them. I now know to add to each such email, "prevailing wage is a separate matter entirely". Also, Bill Warren I agree, once you are shackled with prevailing wages, it makes that much more sense to go to bid, with the numbers being bigger, although for certain very specific work, staff has certain providers they trust implicitly to the exclusion of others, which is what generates the question initially. Thanks again, Joe From: William P. Leeson [mailto:bill@leeson3.com] Sent: Wednesday, October 16, 2019 10:43 AM To: Warren Jr., William W. <william.warren@saul.com>; Joseph E. Bresnan <jbresnan@dischellbartle.com>; pmlsolicitors@lists.imla.org Subject: Re: Bidding requirements vs Prevailing wage requirements In Bethlehem, generally, we apply the statutes independently. If one applies and the other doesn't we'll look to apply the one that applies rather than infer an exception. We favor a more conservative approach to preempt challenges and protect public funds (even though, to some, paying prevailing sometimes seems at odds with the the goal of conserving funds). We prefer to avoid tieing the statutes together out of concern that it invites unnecessarily creative interpretations with the effect of avoidance of statutory requirements. William P. Leeson, Esq. ________________________________ From: Pmlsolicitors <pmlsolicitors-bounces@lists.imla.org<mailto:pmlsolicitors-bounces@lists.imla.org>> on behalf of Warren Jr., William W. <william.warren@saul.com<mailto:william.warren@saul.com>> Sent: Tuesday, October 15, 2019 4:52 PM To: 'Joseph E. Bresnan' <jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com>>; pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org> <pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org>> Subject: Re: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements Okay, on the basis of your analysis, you would not bid the project, but you would pay prevailing wage. Each of the statutes in the public contracting arena have to be applied on the basis of their own provisions. Most people assume that work is either public or not, and that all the statutes either apply or they don't. Your staff and the engineers understandably have that view. It just doesn't work that way. Paying outside firms prevailing wage in the context of no bid contracts does seem weird, but that's where your analysis is pointing to. As an aside, why not bid the maintenance contract anyway, even if not mandated by the municipal codes. Your maintenance contract could have a lot of value, especially with a prevailing wage requirement! William W. Warren, Jr. Moderator PML Listserv Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 Office (717) 238-7698 | Cell (717) 979-5570 william.warren@saul.com<mailto:william.warren@saul.com> From: Joseph E. Bresnan [mailto:jbresnan@dischellbartle.com] Sent: Tuesday, October 15, 2019 4:45 PM To: Warren Jr., William W.; pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org> Subject: Re: Bidding requirements vs Prevailing wage requirements Bill, In a nutshell you can have a contract that is maintenance under the municipal codes (no bidding needed) but not maintenance under prevailing wage. Most of my staff and engineers have assumed that no bid means no prevailing wage. Joe Sent from my phone Joseph E. Bresnan Dischell, Bartle & Dooley, P.C. P: 215.362.2474 F: 215.362.6722 224 King Street Pottstown, PA 19464 ________________________________ From: Warren Jr., William W. <william.warren@saul.com<mailto:william.warren@saul.com>> Sent: Tuesday, October 15, 2019 4:32:33 PM To: Joseph E. Bresnan <jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com>>; pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org> <pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org>> Subject: RE: Bidding requirements vs Prevailing wage requirements Joe, Welcome to the world of public contracting! Fun, eh? First, you will want to bid your job under the bidding laws for your Borough/First Class/Second Class Townships, and so that's a given, unless the project is actually under the bid threshold. If you're bidding it, you will need to apply the Prevailing Wage statute. It's that statute that you should look at, and I would say exclusively, to determine whether Prevailing Wage applies. Think of it as a two-step process: (1) do I have to or should I bid it? (2) Does Prevailing Wage apply. And don't bother with PennDOT's regulations or its policy statements (e.g., Publication 408 is as I recall only a policy statement, and not a reg). Our world is full of contradictions, and this is one of the best. There are lots of other inconsistencies. For example, nonprofits don't have to secure payment and performance bonds because their construction projects are not public work under that bond law, but neither do they have to observe the mechanics lien laws so long as their functions are sufficiently charitable to further the public interest (i.e., it is public work for the lien laws). Those laws aren't consistent either. William W. Warren, Jr. Saul Ewing Arnstein & Lehr LLP 2 North Second Street, Suite 700 Harrisburg, PA 17101 william.warren@saul.com<mailto:william.warren@saul.com> Office (717) 238-7698 | Cell (717) 979-5570 From: Pmlsolicitors [mailto:pmlsolicitors-bounces@lists.imla.org] On Behalf Of Joseph E. Bresnan Sent: Tuesday, October 15, 2019 3:42 PM To: pmlsolicitors@lists.imla.org<mailto:pmlsolicitors@lists.imla.org> Subject: [Pmlsolicitors] Bidding requirements vs Prevailing wage requirements **EXTERNAL EMAIL** - This message originates from outside our Firm. Please consider carefully before responding or clicking links/attachments. Hello all, I am wondering whether any of you have insight on what looks like a dichotomy between the municipal code definitions of "maintenance" (no bids required for maintenance work) and the definition found in the Prevailing Wage Act. If I am looking at it correctly, you can have projects that are exempt from bidding as maintenance but which would still require compliance with prevailing wage. The Borough/First Class/Second Class codes all say that you do not have to go to bid for "routine maintenance, repair or replacement", provided you are not expanding or enlarging the municipal facilities or equipment. In other words, those codes are using maintenance and repair as two words with the same consequence- repairs and maintenance do not require bidding. However, the Prevailing Wage Act applies to "repair work, other than maintenance", meaning it is using repair and maintenance as two different things- repair work requires prevailing wages, maintenance does not. The Pa Supreme Court held in Borough of Youngwood, interpreting the Prevailing Wage Act, that maintenance is a subset, or specific type of, repair, and that a more expansive definition would eviscerate the protection of laborer wages (although the holding does not purport to extend itself beyond the Prevailing Wage Act). Also, I am aware of the PennDOT publication to the effect that with road work, anything other than oil and chip has to use prevailing wage, meaning, only oil and chip is maintenance. Although the Prevailing Wage Act does not actually say so, I wonder whether it was intended to apply only to contracts for which bids were solicited, since its threshold is just higher than the bid thresholds and because section "3" of the Act states that minimum wage rates have to be set forth in the bid specs for every contract for public work (staff rarely assembles full bid specs for jobs that do not have to be formally bid). Any input on these inconsistent uses of repair/maintenance is much appreciated. Joe Bresnan [Dischell, Bartle & Dooley]<http://dischellbartle.com/> Joseph E. Bresnan | Partner Dischell, Bartle & Dooley, P.C. P: 215.362.2474 | F: 215.362.6722 224 King Street | Pottstown, PA 19464 jbresnan@dischellbartle.com<mailto:jbresnan@dischellbartle.com> www.dischellbartle.com<http://www.dischellbartle.com> This email may contain confidential or privileged information. If you have received it in error, please notify the sender immediately and delete this message without copying or disclosing it. "Saul Ewing Arnstein & Lehr LLP (saul.com)" has made the following annotations: +~~~~~~~~~~~~~~~~~~~~~~~+ This e-mail may contain privileged, confidential, copyrighted, or other legally protected information. If you are not the intended recipient (even if the e-mail address is yours), you may not use, copy, or retransmit it. If you have received this by mistake please notify us by return e-mail, then delete. +~~~~~~~~~~~~~~~~~~~~~~~~+ ________________________________ This email has been scanned for spam and viruses. Click here<https://procirrus.cloud-protect.net/index01.php?mod_id=11&mod_option=logitem&mail_id=1571171558-rAjKfZyWoPj1&r_address=jbresnan%40dischellbartle.com&report=1> to report this email as spam. ________________________________ This email has been scanned for spam and viruses. 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