Schaefer v. Commonwealth

Dissenting Opinion by

Judge Blatt :

I must respectfully dissent.

It seems clear to me that the 1971 addition of subsection (h) to Section 2403 of the Administrative Code of 1929, Act of April 9, 1929, P. L. 177, 71 P.S. §633, was intended merely to permit political subdivisions or authorities to participate in or to off-purchase from contracts into which the Department of Property and Supplies (Department) was already authorized by law to enter and into which it actually does enter for the purchase of Commonwealth materials, supplies or equipment.

In no manner whatsoever does subsection (h) extend the purchasing power of the Department, which is already outlined in subsections (a) through (g) of *356Section 2403. Instead, it seems to me, the Legislature merely inserted subsection (h) after the then existing enumeration of departmental powers in Section 2403 as a totally separate grant of power to political subdivisions or authorities. It permitted them to benefit by the Commonwealth’s expertise in the purchase of materials, supplies or equipment, and gave them the opportunity to buy at the presumably more advantageous prices negotiated by the Commonwealth through its own authorized bidding procedures. It did so, however, only for materials, supplies or equipment which the Commonwealth already had authority to buy, needed to buy, and legally bought.

Consequently, because the Commonwealth does not itself contract for the purchase of school buses for its own use, there can be no Commonwealth contract authorized in which a political subdivision or authority can participate, and there will be no supply of school buses purchased by the Commonwealth from which any political subdivision or authority can make an off-purchase.

If the time should come, of course, when the Commonwealth does require school buses for its own use, and if it properly negotiates a contract for their purchase, the way will then be open for political subdivisions or authorities to take advantage of the privilege afforded them under subsection (h). The same will be true as to other materials, supplies or equipment which the Commonwealth does not now purchase but for which it might later have some need to purchase. At the present time, however, I can see no legal justification for the Department to advertise for bids for an item which the Commonwealth does not have the need or the authority to buy for its own use.

Furthermore, it seems clear to me that, if the Legislature had ever intended the Department to serve as a general purchasing agent for all of the materials, sup*357plies or equipment needed by any or all of the hundreds of political subdivisions and authorities, it would have so provided in clear and explicit language, fully realizing what great responsibilities it would thereby be placing upon the Department and what procedural and other problems it would be creating for the political subdivisions and authorities as well as for the Commonwealth.