Tuesday, January 17, 2012

It was “Specific Patented Items” I Tell You

Both City Newspapers The Citizens Voice, and The Times Leader quoted our assistant city attorney Bill Vinsko at the last council meeting saying the city charter allowed Wilkes-Barre to circumvent the public bidding process because the trucks included "specific patented items."

But according to the Pennsylvania Governor’s Center for Local Government Service, Solicitor’s Handbook

Page 70, Patented and Manufactured Items:
  • Where particular types, models, pieces of new equipment, articles, apparatus, appliances and vehicles are patented and manufactured, the purchase of the item need not be competitively bid or quoted. To qualify under this exception, however, the type or class of article sought by the municipality must be manufactured by only one company under patent or copyright protection, and there can be no competitor manufacturing the same type of class of article.
Help me out folks is KME-Kovatch Organization the only company that produces this type of Fire Engine using the same “patented items"???

I would highly recommend our FINE City Attorneys read the fallowing links before making any further statements that may cause their pants to burst into flames. Come on Guys haven’t our Fire Fighters been through enough without having to worry about dousing your pants every 5 minuets.  

Coleman v. Stevenson, 72 Pa. D. & C.2d 499

In Knapp v. Miller, 34 D. & C. 2d 380 (1963), affirmed 415 Pa. 575(1964), the court had occasion to interpret the application of an identical exception to the advertising and bidding requirement in The Borough Code of May 4, 1927, 53 P.S. § 46402(d)(3). There, the borough council contracted for the purchase of 177 new parking meters without advertising for bids. The court held:

"that the 'patented and manufactured or copyrighted' exemption to the public bidding requirement applies only when the type or class of article sought by the municipality is manufactured only by one manufacturer under patent or copyright protection, and where there is absolutely no competitor manufacturing the same type or class of article.": Id. page 385;

Certainly, the purchase of a police-type vehicle in the instant case could have been obtained from any one of the major car manufacturers. In fact, as indicated above, a price was obtained from a Ford dealer. Thus, it appears clear that there is competition in the manufacturing in the same class of article, and competitive bidding should have been secured.

The fact that such an automobile consists of at least some patented parts should not automatically bring the purchase within subsection (h)(3). As so aptly pointed out in Knapp v. Miller, supra, scarcely a manufactured product is made which does not contain a patented part: The critical inquiry in determining the applicability of subsection (h)(3) is not whether the product desired contains a component part which is patented but whether the product is so patented as to eliminate competition in its manufacture and thus render advertising for bids futile.

Finally, there is some testimony in the record that the county desired the type of car employed by the State Police which were then Plymouths and that a heavy duty suspension and battery were preferred. However, as was pointed out in Knapp v. Miller, supra, page 385, where no monopoly in the manufacture of this type or generic class, if specific features or characteristics are found appealing, the solution is to indicate these characteristics in the specifications for bidding, not to eliminate the bidding altogether.

Therefore, we find that the exemption created by subsection 1802(h)(3) was inapplicable to the purchase of this vehicle and that 16 P.S. § 1802 required the public advertising for bids.

Wake Up Wilkes Barre

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