The City of Erie, Pennsylvania

Joseph E. Sinnott, Mayor

To:
From:
Date:
Re:

David Brennan, President of City Council and members of council

Gregory A. Karle, City Solicitor
September 8, 2015
Mayors Power to Award a Contract

You have asked the question whether the Mayor has the legal authority to override a City Council vote that
declined to ratify the award of a contract arising out of the Citys bid process where the administration declared
one of the participants in the process, the Humane Society, the bid winner.
The Mayor has such authority. The organic law the City operates under is the Optional Third Class City
Charter Law. The City adopted the Charter Law in 1961 and has operated under the charter law system since
1962. The City further opted to adopt the form of the Charter Law known as the Mayor-Council Plan A, referred
to as the Strong Mayor form of government.
Section 412 of the Charter Law confers onto the Mayor the authority to enforce the charter and ordinances
of the city and all general laws applicable thereto. Also, Section 413 of the Charter Law places under the
direction and supervision of the mayor the duty to [a]dminister a centralized purchasing system [.]
The Citys bidding law is contained in Sections 1901-1919 of the Third Class City Law and is a general
law as referenced by the Optional Charter Law. So, by application, the Mayor is charged with enforcing the
pertinent bidding and contract laws.
The following events and facts are pertinent to your present question: apparently the Citys stray animal
contract expired a year and half ago; the incumbent provider, the ANNA Shelter, has been providing the service
month to month; the City then went out to bid for the stray animal service in June of this year; two providers
submitted bid proposals, the ANNA Shelter and the Humane Society; the process was conducted by the Citys
purchasing department; at bid opening, the documents revealed that the ANNA Shelter submitted a bid of $25,000
and the Humane Societys bid came in at $22,000; however, the ANNA Shelter failed to provide the requisite bid
bond, thereby eliminating it from participation; the City, after the bid opening, and clarifications by the police
department, declared the Humane Society the bid winner.

Office of the City Solicitor

Gregory A. Karle, Esquire, City Solicitor
626 State Street, Room 505, Erie, PA 16501-1128
Ph: (814) 870-1230 Fax: (814) 455-9438 Email: gkarle@erie.pa.us

David Brennan, President, City Council

September 8, 2015
Page Two

The contract was ultimately placed on the August 19, 2015 Council agenda for ratification. Prior to
Councils meeting, my office issued an opinion that the Humane Society was the prevailing bid and that Council
should award it the contract. Council voted against the contract at that meeting.
On August 21, 2015, I sent another opinion stating that Council lacked the discretion to reject the bid and
requested that they place it on the next agenda for another vote. It did so and at the September 2, 2015 meeting
Council again rejected the bid.
In rejecting the bid, some Councilmen voiced objections to the award based on the further travel distance to
the Humane Societys location; its location outside the City, and the potential for additional police overtime. All
of these concerns were brought up after awarding the bid and were never addressed or included in the bid
specifications. The concerns brought up by Council at its meetings could be construed by a bid challenger as
pretextual in nature, asserted merely to defeat the winning bid. In a bid challenge, the standard utilized by the
examining court to determine whether a bid was legitimately denied is whether the reasons given were not
arbitrary or capricious. I advised Council of this standard at the September 2, 2015 caucus meeting.
Those involved believe that voting against the Humane Society contract leaves the City with only two
alternatives: doing nothing or rebidding the contract.
Neither of these alternatives is appropriate or legal. If we were to do nothing, the month-to-month status
quo is preserved. Councils lack of approval creates a paradox whereby the losing bidder, the ANNA Shelter,
becomes the de facto winner of the bid. I am sure that this was not Councils intention, but that would be the
effect. I can find no legal authority to maintain such a relationship.
A rebidding is also inappropriate. There has been no bidding irregularity or budgetary difficulty identified
that warrants a rebid. The administration has considered the reasons Council offered to reject the Humane Society
bid and determined that they are not legitimate defects in the bid process requiring a rebid. A rebid would only
serve to unjustifiably burden the winning bidder and, at the same, erode the integrity of the bidding process.
Both the Mayor and the City Controller have expressed their unwillingness to become complicit in such a
process.

David Brennan, President, City Council

September 8, 2015
Page Three

The State Assemblys rationale in enacting Sections 412 and 413 of the Charter Law appears to intend to
place the procurement responsibility under the mayors authority in order to attempt to create a purchasing system
as unified and objective as possible. Placing the ultimate decision for purchasing in the mayors hands strives to
remove a purely subjective motivation from the bidding system - using a baseball metaphor - it seeks to deter the
protracted argument over balls and strikes that subjective discretion invites were it to become a matter of public
debate at a council meeting.
I have given the Mayor and Controller an opinion that they are permitted to grant the contract to the
Humane Society without Councils ratification. My reasoning is stated above, based on the Mayors authority
under the Third Class City Optional Charter Laws, which authorizes him to enforce the bidding laws the City is
obligated to adhere to. Councils action in failing to ratify the Humane Society contract is clearly contrary to the
relevant law. The Mayor and Controllers action in authorizing the contract has placed us back in compliance with
the bidding and contract law.
All parties have signed the contract and the Humane Society has indicated that it is ready to begin
performance.
You have also asked what impact this action may have in terms of precedent for future actions. I really
cannot make any predictions. The present situation arises out of the bidding process, an area where the mayor is
particularly empowered. I would have to be informed of the particular facts concerning a matter involving disputes
between legislative and executive authority in order to give a more informed opinion. If you have any questions,
please do not hesitate to contact me.

cc: Joseph E. Sinnott, Mayor

Teresa Stankiewicz, City Controller