PRINTER'S NO. 1524
No. 1291 Session of 1983
INTRODUCED BY McVERRY, OLIVER, SPENCER, SWEET, MARMION, WAMBACH,
STEVENS, WOGAN, MICHLOVIC, COLAFELLA, MADIGAN, R. C. WRIGHT,
GAMBLE, BURD, CESSAR, BOOK, KENNEDY, RICHARDSON, GREENWOOD,
BOWSER, WACHOB, ARTY, SEMMEL, PISTELLA, FARGO, E. Z. TAYLOR,
MORRIS, SAURMAN, PETERSON, BUNT, HAGARTY AND POTT, JUNE 29,
1983
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 29, 1983
AN ACT
1 Amending Titles 1 (General Provisions), 42 (Judiciary and
2 Judicial Procedure) and 62 (Procurement) of the Pennsylvania
3 Consolidated Statutes, adding provisions relating to
4 procurement; and making repeals.
5 TABLE OF CONTENTS
6 TITLE 62
7 PROCUREMENT
8 PART I. COMMONWEALTH PROCUREMENT CODE
9 Chapter 1. General Provisions
10 § 101. Short title of part.
11 § 102. Application of part.
12 § 103. Definitions.
13 § 104. General principles of law otherwise applicable.
14 § 105. Determinations.
15 § 106. Public access to procurement information.
16 § 107. Reciprocal limitations.
17 Chapter 3. Procurement Organization
1 Subchapter A. Organization of Public Procurement
2 § 301. Procurement responsibility.
3 Subchapter B. Commonwealth Procurement Policy Office
4 § 311. Composition and administrative support.
5 § 312. Powers and duties.
6 § 313. Procurement regulations.
7 Subchapter C. Powers and Duties of Department
8 § 321. Powers and duties.
9 Subchapter D. Coordination, Training and Education
10 § 331. Collection of data concerning public procurement.
11 § 332. Advisory groups.
12 Chapter 5. Source Selection and Contract Formation
13 Subchapter A. Definitions
14 § 501. Definitions.
15 Subchapter B. Methods of Source Selection
16 § 511. Methods of source selection.
17 § 512. Competitive sealed bidding.
18 § 513. Competitive sealed proposals.
19 § 514. Small purchases.
20 § 515. Sole source procurement.
21 § 516. Emergency procurement.
22 § 517. Multiple awards.
23 § 518. Competitive selection procedures for certain services.
24 § 519. Selection procedure for insurance and bonds.
25 § 520. Handicapped-made supplies and services.
26 Subchapter C. Cancellation of Invitations for Bids or
27 Request for Proposals
28 § 521. Cancellation of invitations for bids or requests for
29 proposals.
30 Subchapter D. Qualifications and Duties
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1 § 531. Debarment or suspension.
2 § 532. Prequalification of bidders and offerors.
3 § 533. Responsibility of bidders and offerors.
4 § 534. Bid security and performance bonds.
5 § 535. Cost or pricing data.
6 § Subchapter E. Types of Contracts
7 § 541. Restrictions on contracts.
8 § 542. Approval of accounting system.
9 § 543. Multiterm contracts.
10 Subchapter F. Inspection of Plant and Audit of Records
11 § 551. Right to inspect plant.
12 § 552. Right to audit records.
13 Subchapter G. Determinations and Reports
14 § 561. Finality of determinations.
15 § 562. Anti-competitive practices.
16 § 563. Retention of procurement records.
17 § 564. Record of certain actions.
18 Chapter 7. Specifications
19 § 701. Purpose and scope.
20 § 702. Duties of policy office.
21 § 703. Duties of department.
22 § 704. Exempted items.
23 § 705. Relationship with using agencies.
24 § 706. Wage specifications.
25 Chapter 9. Procurement of Construction, Architect, Engineer
26 and Land Surveying Services
27 § 901. Definitions.
28 § 902. Selection of method of construction contracting.
29 § 903. Bid security.
30 § 904. Contract performance and payment bonds.
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1 § 905. Bond forms and copies.
2 § 906. Contract clauses and their administration.
3 § 907. Fiscal responsibility.
4 § 908. Architect, engineer and land surveying services.
5 Chapter 11. Modification and Termination of Contracts for
6 Supplies and Services
7 § 1101. Contract clauses and their administration.
8 Chapter 13. Cost Principles
9 § 1301. Cost principles regulations required.
10 Chapter 15. Supply Management
11 § 1501. Definitions.
12 § 1502. Supply management regulations required.
13 § 1503. Proceeds from sale or disposal of surplus supplies.
14 Chapter 17. Legal and Contractual Remedies
15 Subchapter A. General Provisions
16 § 1701. Definitions.
17 § 1702. Sovereign immunity.
18 Subchapter B. Prelitigation Resolution of Controversies
19 § 1711. Authority to resolve protests of solicitations or
20 awards.
21 § 1712. Authority to resolve contract and breach of contract
22 controversies.
23 Subchapter C. Board of Claims
24 § 1721. Composition.
25 § 1722. Hearing panels.
26 § 1723. Administrative matters.
27 § 1724. Jurisdiction.
28 § 1725. Procedure.
29 § 1726. Appeals.
30 Subchapter D. Solicitations or Awards in Violation of Law
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1 § 1741. Applicability.
2 § 1742. Remedies prior to an award.
3 § 1743. Remedies after the award.
4 Subchapter E. Interest
5 § 1751. Interest.
6 Chapter 19. Intergovernmental Relations
7 § 1901. Definitions.
8 § 1902. Cooperative purchasing authorized.
9 § 1903. Sale, acquisition or use of supplies by a public
10 procurement unit.
11 § 1904. Cooperative use of supplies or services.
12 § 1905. Joint use of facilities.
13 § 1906. Supply of personnel, information and technical
14 services.
15 § 1907. Use of payments received by a supplying public
16 procurement unit.
17 § 1908. Compliance of public procurement units.
18 § 1909. Review of procurement requirements.
19 § 1910. Contract controversies.
20 Chapter 21. Small and Disadvantaged Businesses
21 § 2101. Policy.
22 § 2102. Definitions.
23 § 2103. Regulations.
24 § 2104. Duties of department.
25 § 2105. Bonding and progress payments.
26 § 2106. Business assistance offices.
27 § 2107. Report to policy office and General Assembly.
28 § 2108. Compliance with Federal requirements.
29 Chapter 23. Ethics in Public Contracting
30 Subchapter A. General Policy and Standards
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1 § 2301. Policy.
2 § 2302. General standards of ethical conduct.
3 § 2303. Reporting of breaches of ethical standards.
4 Subchapter B. Specific Standards
5 § 2311. Bonds.
6 PART II. GENERAL PROCUREMENT PROVISIONS
7 Chapter 31. General Provisions
8 § 3101. Application of part.
9 § 3102. Definitions.
10 Chapter 33. Prevention of Environmental Pollution
11 § 3301. Invitations for bids and requests for proposals.
12 § 3302. Additional work.
13 § 3303. Arbitration of disputes.
14 Chapter 35. Foreign Corporations
15 § 3501. Condition precedent to release of bond.
16 Chapter 37. Contract Clauses and Preference Provisions
17 Subchapter A. Labor
18 § 3701. Contract provisions prohibiting discrimination.
19 § 3702. Contract provision requiring United States citizens to
20 be employed.
21 § 3703. Contract provision requiring residents to be employed.
22 Subchapter B. Steel Products
23 § 3711. Short title of subchapter.
24 § 3712. Definitions.
25 § 3713. Required contract provisions.
26 § 3714. Payments under contracts.
27 Subchapter C. Trade Practices
28 § 3721. Short title of subchapter.
29 § 3722. Definitions.
30 § 3723. Unlawful acts.
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1 § 3724. Preference.
2 § 3725. Listing discriminating countries.
3 § 3726. Determining discrimination.
4 § 3727. Foreign registry docket.
5 § 3728. Aluminum or steel products from a discriminating
6 country.
7 Subchapter D. Used Oil Products
8 § 3741. Preference.
9 Chapter 39. Construction Contracts Over $50,000
10 § 3901. Application of chapter.
11 § 3902. Definitions.
12 § 3903. Time for awarding contract.
13 § 3904. Time for executing contract.
14 § 3905. Release of successful bidder.
15 § 3906. Retainage.
16 § 3907. Payment of retainage to subcontractors.
17 § 3908. Final payment under contract.
18 § 3909. Arbitration.
19 Chapter 41. Purchase of Surplus Federal Property
20 § 4101. Contracts with United States.
21 § 4102. Bids and down payments.
22 Chapter 43. Public Facilities Concessions
23 § 4301. Short title of chapter.
24 § 4302. Definitions.
25 § 4303. Terms of contracts.
26 The General Assembly of the Commonwealth of Pennsylvania
27 hereby enacts as follows:
28 Section 1. Section 2310 of Title 1 of the Pennsylvania
29 Consolidated Statutes is amended to read:
30 § 2310. Sovereign immunity reaffirmed; specific waiver.
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1 Pursuant to section 11 of Article 1 of the Constitution of
2 Pennsylvania, it is hereby declared to be the intent of the
3 General Assembly that the Commonwealth, and its officials and
4 employees acting within the scope of their duties, shall
5 continue to enjoy sovereign immunity and official immunity and
6 remain immune from suit except as the General Assembly shall
7 specifically waive the immunity. When the General Assembly
8 specifically waives sovereign immunity, a claim against the
9 Commonwealth and its officials and employees shall be brought
10 only in such manner and in such courts and in such cases as
11 directed by the provisions of Title 42 (relating to judiciary
12 and judicial procedure) or 62 (relating to procurement), unless
13 otherwise specifically authorized by statute.
14 Section 2. Section 763(a) of Title 42 is amended to read:
15 § 763. Direct appeals from government agencies.
16 (a) General rule.--Except as provided in subsection (c), the
17 Commonwealth Court shall have exclusive jurisdiction of appeals
18 from final orders of government agencies in the following cases:
19 (1) All appeals from Commonwealth agencies under
20 Subchapter A of Chapter 7 of Title 2 (relating to judicial
21 review of Commonwealth agency action) or otherwise and
22 including appeals from the Board of Claims, the Environmental
23 Hearing Board, the Pennsylvania Public Utility Commission,
24 the Unemployment Compensation Board of Review and from any
25 other Commonwealth agency having Statewide jurisdiction.
26 (2) All appeals jurisdiction of which is vested in the
27 Commonwealth Court by any statute hereafter enacted.
28 * * *
29 Section 3. Title 62 is amended by adding parts to read:
30 TITLE 62
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1 PROCUREMENT
2 Part
3 I. Commonwealth Procurement Code
4 II. General Procurement Provisions
5 PART I
6 COMMONWEALTH PROCUREMENT CODE
7 Chapter
8 1. General Provisions
9 3. Procurement Organization
10 5. Source Selection and Contract Formation
11 7. Specifications
12 9. Procurement of Construction, Architect, Engineer and Land
13 Surveying Services
14 11. Modification and Termination of Contracts for Supplies
15 and Services
16 13. Cost Principles
17 15. Supply Management
18 17. Legal and Contractual Remedies
19 19. Intergovernmental Relations
20 21. Small and Disadvantaged Businesses
21 23. Ethics in Public Contracting
22 CHAPTER 1
23 GENERAL PROVISIONS
24 Sec.
25 101. Short title of part.
26 102. Application of part.
27 103. Definitions.
28 104. General principles of law otherwise applicable.
29 105. Determinations.
30 106. Public access to procurement information.
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1 107. Reciprocal limitations.
2 § 101. Short title of part.
3 This part shall be known and may be cited as the Commonwealth
4 Procurement Code.
5 § 102. Application of part.
6 (a) Application to Commonwealth procurement.--This part
7 applies to every expenditure of funds other than the investment
8 of funds by Commonwealth agencies under any contract,
9 irrespective of their source, including Federal assistance
10 moneys except as specified in section 2108 (relating to
11 compliance with Federal requirements). This part does not apply
12 to grants or contracts between Commonwealth agencies or between
13 the Commonwealth and its political subdivisions, or other
14 governments except as provided in Chapter 19 (relating to
15 intergovernmental relations). Nothing in this part or in
16 accompanying regulations shall prevent any Commonwealth agency
17 or political subdivision from complying with the terms and
18 conditions of any grant, gift, bequest or cooperative agreement.
19 (b) Application to disposal of Commonwealth supplies.--This
20 part applies to the disposal of supplies of Commonwealth
21 agencies.
22 (c) Application to local agencies.--Any political
23 subdivision or other local public agency may specifically or by
24 reference adopt all or any part of this part and its
25 accompanying regulations.
26 § 103. Definitions.
27 Subject to additional definitions contained in subsequent
28 provisions of this part which are applicable to specific
29 provisions of this part, the following words and phrases when
30 used in this part shall have the meanings given to them in this
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1 section unless the context clearly indicates otherwise:
2 "Change order." A written order signed by the procurement
3 officer directing the contractor to make changes which the
4 changes clause of the contract authorizes the procurement
5 officer to order without the consent of the contractor.
6 "Commonwealth agency." Any executive or independent agency.
7 "Construction." The process of building, altering,
8 repairing, improving or demolishing any public structure or
9 building or other public improvements of any kind to any public
10 real property. The term does not include the routine operation,
11 repair or maintenance of existing structures, buildings or real
12 property.
13 "Contract." Any type of written agreement, regardless of
14 what it may be called, for the procurement or disposal of
15 supplies, services or construction.
16 "Contract modification." Any written alteration in
17 specifications, delivery point, rate of delivery, period of
18 performance, price, quantity or other provisions of any
19 contract, accomplished by mutual action of the parties to the
20 contract.
21 "Department." The Department of General Services of the
22 Commonwealth.
23 "Employee." An individual drawing a salary from a
24 Commonwealth agency, whether elected or not, and any
25 noncompensated individual performing personal services for any
26 Commonwealth agency.
27 "Executive agency." The Governor and the departments,
28 boards, commissions, authorities and other officers and agencies
29 of the Commonwealth government. The term does not include any
30 court or other officer or agency of the unified judicial system,
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1 the General Assembly and its officers and agencies or any
2 independent agency.
3 "Grant." The furnishing of assistance by the Commonwealth,
4 Federal Government or any person, whether financial or
5 otherwise, to any person to support a program authorized by law.
6 The term does not include an award whose primary purpose is to
7 procure an end product, whether in the form of supplies,
8 services or construction. A contract resulting from such an
9 award is not a grant but a procurement contract.
10 "Independent agency." Boards, commissions, authorities and
11 other agencies and officers of the Commonwealth government which
12 are not subject to the policy supervision and control of the
13 Governor. The term does not include any court or other officer
14 or agency of the unified judicial system or the General Assembly
15 and its officers and agencies.
16 "Policy office." The Commonwealth Procurement Policy Office.
17 "Procurement." Buying, purchasing, renting, leasing or
18 otherwise acquiring any supplies, services or construction. The
19 term also includes all functions that pertain to the obtaining
20 of any supply, service or construction, including description of
21 requirements, selection and solicitation of sources, preparation
22 and award of contract and all phases of contract administration.
23 "Procurement officer." Any person authorized to enter into
24 and administer contracts and make written determinations with
25 respect to contracts.
26 "Purchasing agency." Any Commonwealth agency authorized by
27 this part to enter into contracts.
28 "Regulation." A regulation as defined in 45 Pa.C.S. § 501
29 (relating to definitions).
30 "Services." The furnishing of labor, time or effort by a
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1 contractor, not involving the delivery of a specific end product
2 other than reports which are merely incidental to the required
3 performance. The term does not include employment agreements,
4 collective bargaining agreements, the rendering of professional
5 legal services or agreements with litigation consultants.
6 "Specification." Any description of the physical or
7 functional characteristics or the nature of a supply, service or
8 construction item, including a description of any requirement
9 for inspecting, testing or preparing a supply, service or
10 construction item for delivery.
11 "Supplies." Any property including, but not limited to,
12 equipment, materials, printing, insurance and leases of personal
13 and real property, excluding land or a permanent interest in
14 land.
15 "Using agency." Any Commonwealth agency which utilizes any
16 supplies, services or construction procured under this part.
17 § 104. General principles of law otherwise applicable.
18 Unless displaced by the particular provisions of this part,
19 existing Pennsylvania law, including Title 13 (relating to
20 commercial code), shall supplement the provisions of this part.
21 § 105. Determinations.
22 Written determinations required by this part shall be
23 retained in the appropriate official contract file.
24 § 106. Public access to procurement information.
25 Except for information to which there is a right of
26 nondisclosure under section 533(b) (relating to responsibility
27 of bidders and offerors) or information resulting from an
28 inspection under section 551 (relating to right to inspect
29 plant) or an audit under section 552 (relating to right to audit
30 records), procurement information shall be a public record to
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1 the extent provided in the act of June 21, 1957 (P.L.390,
2 No.212), referred to as the Right-to-Know Law, and shall be
3 available to the public as provided in that act.
4 § 107. Reciprocal limitations.
5 No Commonwealth agency may purchase any supplies or specify
6 for or permit to be used in construction any supplies
7 manufactured in a state which prohibits the purchase of supplies
8 or the specification or use in construction of supplies not
9 manufactured in that state.
10 CHAPTER 3
11 PROCUREMENT ORGANIZATION
12 Subchapter
13 A. Organization of Public Procurement
14 B. Commonwealth Procurement Policy Office
15 C. Powers and Duties of Department
16 D. Coordination, Training and Education
17 SUBCHAPTER A
18 ORGANIZATION OF PUBLIC PROCUREMENT
19 Sec.
20 301. Procurement responsibility.
21 § 301. Procurement responsibility.
22 (a) General organization.--Formulation of procurement policy
23 governing the procurement, management, control and disposal of
24 supplies, services and construction for Commonwealth agencies
25 shall be the responsibility of the policy office as provided for
26 in Subchapter B (relating to Commonwealth procurement policy
27 office). The procurement and supervision of the procurement of
28 supplies, services and construction for Commonwealth agencies
29 shall be the responsibility of the department as provided for in
30 Subchapter C (relating to powers and duties of department).
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1 (b) Emergency procurement.--For the purpose of making an
2 emergency procurement under section 516 (relating to emergency
3 procurement), any Commonwealth agency may act as a purchasing
4 agency and contract on its own behalf for the supply, service or
5 construction.
6 (c) Contracting for certain services.--For the purpose of
7 procuring the services specified in section 518 (relating to
8 competitive selection procedures for certain services), any
9 Commonwealth agency may act as a purchasing agency and contract
10 on its own behalf for the specified services. The purchasing
11 agency may consult with the department when procuring these
12 services.
13 (d) Exceptions.--The following supplies, services and
14 construction need not be procured through the department, but
15 shall nevertheless be procured by the appropriate purchasing
16 agency, subject to the requirements of this part and regulations
17 promulgated by the policy office:
18 (1) Bridge, highway, dam, airport, railroad or other
19 heavy or specialized construction.
20 (2) Works of art for museum and public display.
21 (3) Published books, maps, periodicals and technical
22 pamphlets.
23 (4) Architect, engineer and land surveying services as
24 defined in section 901 (relating to definitions).
25 SUBCHAPTER B
26 COMMONWEALTH PROCUREMENT POLICY OFFICE
27 Sec.
28 311. Composition and administrative support.
29 312. Powers and duties.
30 313. Procurement regulations.
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1 § 311. Composition and administrative support.
2 (a) Membership.--The Commonwealth Procurement Policy Office
3 shall consist of the Secretary of General Services, who shall be
4 chairman, the Secretary of Environmental Resources and the
5 Secretary of Transportation.
6 (b) Quorum.--Two members of the policy office, one of whom
7 must be the chairman, shall constitute a quorum.
8 (c) Executive director.--The department shall provide an
9 executive director who shall be responsible for the
10 administrative work of the policy office. The executive director
11 shall be an employee of the department and may be a deputy
12 secretary.
13 § 312. Powers and duties.
14 Except as otherwise provided in this part, the policy office
15 may promulgate regulations governing the procurement,
16 management, control and disposal of any and all supplies,
17 services and construction to be procured by Commonwealth
18 agencies. The policy office shall consider and decide matters of
19 policy within the provisions of this part. The policy office may
20 audit and monitor the implementation of its regulations and the
21 requirements of this part, but shall not exercise authority over
22 the award or administration of any particular contract or over
23 any dispute, claim or litigation.
24 § 313. Procurement regulations.
25 Regulations shall be promulgated by the policy office as
26 provided in 45 Pa.C.S. Part II (relating to publication and
27 effectiveness of Commonwealth documents). The policy office may
28 not delegate its power to promulgate regulations. No regulation
29 shall change any commitment, right or obligation of any
30 Commonwealth agency or of a contractor under a contract in
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1 existence on the effective date of the regulation.
2 SUBCHAPTER C
3 POWERS AND DUTIES OF DEPARTMENT
4 Sec.
5 321. Powers and duties.
6 § 321. Powers and duties.
7 Except as otherwise specifically provided in this part, the
8 department shall have the following powers and duties, in
9 accordance with regulations promulgated by the policy office:
10 (1) Procure or supervise the procurement of all
11 supplies, services and construction needed by Commonwealth
12 agencies.
13 (2) Exercise general supervision and control over all
14 inventories of supplies belonging to Commonwealth agencies.
15 (3) Sell, trade or otherwise dispose of surplus supplies
16 belonging to Commonwealth agencies.
17 (4) Establish and maintain programs for the inspection,
18 testing and acceptance of supplies, services and
19 construction.
20 (5) Establish and maintain a central office where
21 businesses operating in this Commonwealth may obtain
22 information pertaining to the procurement needs of
23 Commonwealth agencies.
24 SUBCHAPTER D
25 COORDINATION, TRAINING AND EDUCATION
26 Sec.
27 331. Collection of data concerning public procurement.
28 332. Advisory groups.
29 § 331. Collection of data concerning public procurement.
30 The department shall cooperate with the Office of the Budget
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1 and the Department of the Auditor General in the preparation of
2 statistical data concerning the procurement, usage and
3 disposition of all supplies, services and construction and
4 employ such trained personnel as may be necessary to carry out
5 this function. All using agencies shall furnish reports as the
6 department may require concerning usage, needs and stock on hand
7 and the department may prescribe forms to be used by the using
8 agencies in requisitioning, ordering and reporting supplies,
9 services and construction.
10 § 332. Advisory groups.
11 (a) Procurement Advisory Council.--The policy office may
12 establish a Procurement Advisory Council and allocate funds for
13 it that may be available and the policy office deems
14 appropriate. If created, the council, upon adequate public
15 notice, shall meet at least once a year for the discussion of
16 problems and recommendations for improvement of the procurement
17 process. When requested by the policy office, the council may
18 conduct studies, research and analyses and make reports and
19 recommendations with respect to subjects or matters within the
20 jurisdiction of the policy office. The council may consist of
21 any qualified persons the policy office deems desirable.
22 (b) Other advisory groups.--The department may appoint
23 advisory groups to assist with respect to specifications or
24 procurement in specific areas and with respect to any other
25 matters within the authority of the department.
26 (c) Reimbursement of expenses.--Members of the council and
27 other advisory groups may be reimbursed for expenses incurred in
28 the performance of their duties, subject to expenditure
29 limitations prescribed by the policy office.
30 CHAPTER 5
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1 SOURCE SELECTION AND CONTRACT FORMATION
2 Subchapter
3 A. Definitions
4 B. Methods of Source Selection
5 C. Cancellation of Invitations for Bids or Request for
6 Proposals
7 D. Qualifications and Duties
8 E. Types of Contracts
9 F. Inspection of Plant and Audit of Records.
10 G. Determinations and Reports
11 SUBCHAPTER A
12 DEFINITIONS
13 Sec.
14 501. Definitions.
15 § 501. Definitions.
16 The following words and phrases when used in this chapter
17 shall have the meanings given to them in this section unless the
18 context clearly indicates otherwise:
19 "Cost-reimbursement contract." A contract under which a
20 contractor is reimbursed for costs which are allowable and
21 allocable in accordance with the contract terms and the
22 provisions of this part, and a fee, if any.
23 "Established catalogue price." The price included in a
24 catalogue, price list, schedule or other form that:
25 (1) is regularly maintained by a manufacturer or
26 contractor;
27 (2) is either published or otherwise available for
28 inspection by customers; and
29 (3) states prices at which sales are currently or were
30 last made to a significant number of any category of buyers
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1 or buyers constituting the general buying public for the
2 supplies or services involved.
3 "Invitation for bids." All documents, whether attached or
4 incorporated by reference, used for soliciting bids.
5 "Life cycle cost." The total cost of the supply in terms of
6 purchase, installation, maintenance, energy, supply and other
7 costs.
8 "Purchase description." The words used in a solicitation to
9 describe the supplies, services or construction to be purchased.
10 The term includes specifications attached to or made part of the
11 solicitation.
12 "Request for proposals." All documents, whether attached or
13 incorporated by reference, used for soliciting proposals.
14 "Responsible bidder or offeror." A person who has the
15 capability in all respects to perform fully the contract
16 requirements and the integrity and reliability which will assure
17 good faith performance.
18 "Responsive bidder." A person who has submitted a bid which
19 conforms in all material respects to the invitation for bids.
20 SUBCHAPTER B
21 METHODS OF SOURCE SELECTION
22 Sec.
23 511. Methods of source selection.
24 512. Competitive sealed bidding.
25 513. Competitive sealed proposals.
26 514. Small purchases.
27 515. Sole source procurement.
28 516. Emergency procurement.
29 517. Multiple awards.
30 518. Competitive selection procedures for certain services.
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1 519. Selection procedure for insurance and bonds.
2 520. Handicapped-made supplies and services.
3 § 511. Methods of source selection.
4 Unless otherwise authorized by law, all Commonwealth agency
5 contracts shall be awarded by competitive sealed bidding under
6 section 512 (relating to competitive sealed bidding), except as
7 provided in:
8 Section 513 (relating to competitive sealed proposals).
9 Section 514 (relating to small purchases).
10 Section 515 (relating to sole source procurement).
11 Section 516 (relating to emergency procurement).
12 Section 517 (relating to multiple awards).
13 Section 518 (relating to competitive selection procedures
14 for certain services).
15 Section 519 (relating to selection procedure for
16 insurance and bonds).
17 Section 520 (relating to handicapped-made supplies and
18 services).
19 Section 908 (relating to architect, engineer and land
20 surveying services).
21 § 512. Competitive sealed bidding.
22 (a) Conditions for use.--Contracts shall be awarded by
23 competitive sealed bidding, except as otherwise provided in
24 section 511 (relating to methods of source selection).
25 (b) Invitation for bids.--An invitation for bids shall be
26 issued and shall include a purchase description and all
27 contractual terms and conditions applicable to the procurement.
28 (c) Public notice.--Adequate public notice of the invitation
29 for bids shall be given a reasonable time prior to the date set
30 for the opening of bids, in accordance with regulations
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1 promulgated by the policy office. The notice may include
2 publication in a newspaper of general circulation a reasonable
3 time before bid opening. The notice may also include
4 advertisement as provided for in 45 Pa.C.S. § 306 (relating to
5 use of trade publications).
6 (d) Bid opening.--Bids shall be opened publicly in the
7 presence of one or more witnesses at the time and place
8 designated in the invitation for bids. The amount of each bid
9 and any other relevant information as may be specified by
10 regulation, together with the name of each bidder, shall be
11 recorded. The record and each bid shall be open to public
12 inspection.
13 (e) Bid acceptance and evaluation.--Bids shall be
14 unconditionally accepted without alteration or modification,
15 except as authorized in this part. Bids shall be evaluated based
16 on the requirements set forth in the invitation for bids, which
17 may include criteria to determine acceptability such as
18 inspection, testing, quality, workmanship, delivery and
19 suitability for a particular purpose. Those criteria that will
20 affect the bid price and be considered in evaluation for award
21 shall be objectively measurable, such as discounts,
22 transportation costs and total or life cycle costs. The
23 invitation for bids shall set forth the evaluation criteria to
24 be used. No criteria may be used in bid evaluation that are not
25 set forth in the invitation for bids.
26 (f) Modification or withdrawal of bids.--
27 (1) Bids may be modified or withdrawn by written notice
28 or in person by a bidder or his authorized representative, if
29 his identity is made known and he signs a receipt for the
30 bid, prior to the exact hour and date set for the opening of
19830H1291B1524 - 22 -
1 bids. Withdrawals and modifications of bids received after
2 the exact hour and date specified for the opening of bids
3 shall not be considered.
4 (2) Withdrawal of erroneous bids after bid opening but
5 before award based on bid mistakes shall be permitted by the
6 written determination of the head of the purchasing agency:
7 (i) When the head of the purchasing agency knows or
8 has reason to know that an obvious error had been made.
9 (ii) When the bidder requests relief and presents
10 credible evidence that the reason for the lower bid price
11 was a clerical mistake as opposed to a judgment mistake
12 and was actually due to an unintentional arithmetical
13 error or an unintentional omission of a substantial
14 quantity of work, labor, material or services made
15 directly in the compilation of the bid.
16 (g) Award.--The contract shall be awarded within 60 days of
17 the bid opening by written notice to the lowest responsible and
18 responsive bidder whose bid meets the requirements and criteria
19 set forth in the invitation for bids. Thirty-day extensions of
20 the date for the award may be made by mutual written consent of
21 the head of the purchasing agency and the lowest responsible and
22 responsive bidder. Before the award of the contract, the head of
23 the purchasing agency may return the bid security to all but the
24 lowest and next to lowest responsible and responsive bidders.
25 All unsuccessful bidders shall be given notice in accordance
26 with regulations promulgated by the policy office.
27 (h) Multistep sealed bidding.--When it is considered
28 impractical to prepare initially a purchase description to
29 support an award based on price, an invitation for bids may be
30 issued requesting the submission of unpriced offers, to be
19830H1291B1524 - 23 -
1 followed by an invitation for bids limited to those bidders
2 whose offers have been qualified under the criteria set forth in
3 the first solicitation.
4 § 513. Competitive sealed proposals.
5 (a) Conditions for use.--When, under regulations promulgated
6 by the policy office, the head of a purchasing agency or a
7 designee above the level of the procurement officer determines
8 in writing that the use of competitive sealed bidding is either
9 not practicable or advantageous to the Commonwealth, a contract
10 may be entered into by competitive sealed proposals. The policy
11 office may provide by regulation that it is either not
12 practicable or advantageous to the Commonwealth to procure
13 specified types of supplies, services or construction by
14 competitive sealed bidding.
15 (b) Request for proposals.--Proposals shall be solicited
16 through a request for proposals.
17 (c) Public notice.--Public notice of the request for
18 proposals shall be given in the same manner as provided in
19 section 512(c) (relating to competitive sealed bidding).
20 (d) Receipt of proposals.--Offerors shall submit their
21 proposal in two separate sealed envelopes. One envelope shall
22 contain a technical description of the supply or construction
23 which is being offered in response to the request for proposals.
24 The other envelope shall contain the price.
25 (e) Evaluation factors.--The request for proposals shall
26 state the relative importance of technical, price and other
27 evaluation factors.
28 (f) Discussion with responsible offerors and revision of
29 proposals.--As provided in the request for proposals and under
30 regulations promulgated by the policy office, discussions may be
19830H1291B1524 - 24 -
1 conducted with responsible offerors who submit proposals
2 determined to be reasonably susceptible of being selected for
3 award for the purpose of clarification to assure full
4 understanding of and responsiveness to the solicitation
5 requirements. Offerors shall be accorded fair and equal
6 treatment with respect to any opportunity for discussion and
7 revision of proposals. Revisions may be permitted after
8 submissions and prior to award for the purpose of obtaining best
9 and final offers. In conducting discussions, there shall be no
10 disclosure of any information derived from proposals submitted
11 by competing offerors.
12 (g) Award.--After the date and time fixed for submission of
13 a proposal, a committee of employees with technical, managerial
14 or other appropriate expertise and experience in negotiation and
15 costing, previously selected by the purchasing agency, shall
16 proceed to open all envelopes containing the technical submittal
17 of the supply or construction which is being offered in response
18 to the request for proposals. The committee shall then review
19 the description and assign a point value to it using the
20 evaluation factors developed prior to opening the envelopes. The
21 committee shall then open all envelopes containing the prices
22 and assign to them a point value. The purchasing agency shall
23 then enter into a contract with the responsible offeror whose
24 proposal is determined in writing by the committee to be the
25 most advantageous to the Commonwealth based on the total point
26 value obtained from the technical and price evaluation factors.
27 No other factors or criteria shall be used in the evaluation.
28 § 514. Small purchases.
29 If the procurement is not the subject of a requirements
30 contract between the purchasing agency and a contractor, the
19830H1291B1524 - 25 -
1 department may authorize in writing any Commonwealth agency to
2 make purchases without formal bid procedures in the field, not
3 exceeding the amount established by regulations promulgated by
4 the policy office. Procurement requirements shall not be
5 artificially divided so as to constitute a small purchase under
6 this section. Records of all small purchases shall be
7 transmitted to the department.
8 § 515. Sole source procurement.
9 A contract may be awarded for a supply, service or
10 construction item without competition when, under regulations
11 promulgated by the policy office, the head of a purchasing
12 agency or a designee above the level of the procurement officer
13 determines in writing that there is only one source for the
14 required supply, service or construction item. If the sole
15 source procurement is of a supply, service or construction item
16 under section 301(c) or (d) (relating to procurement
17 responsibility), the purchasing agency shall transmit a record
18 of the procurement to the department.
19 § 516. Emergency procurement.
20 The head of a purchasing agency may make or authorize others
21 to make an emergency procurement when there exists a threat to
22 public health, welfare or safety or the urgency of the need does
23 not permit the delay involved in using more formal competitive
24 methods. Whenever practical, at least two bids shall be
25 solicited. A written determination of the basis for the
26 emergency and for the selection of the particular contractor
27 shall be included in the contract file. Records of all emergency
28 procurements shall be transmitted to the department.
29 § 517. Multiple awards.
30 (a) Conditions for use.--The department under regulations
19830H1291B1524 - 26 -
1 promulgated by the policy office may procure supplies on a
2 multiple award basis if one or more of the following criteria is
3 applicable:
4 (1) It is administratively or economically impractical
5 to develop or modify specifications for a myriad of related
6 supplies because of rapid technological changes.
7 (2) The subjective nature in the use of certain supplies
8 and the fact that recognizing this need creates a more
9 efficient use of the item.
10 (3) It is administratively or economically impractical
11 to develop or modify specifications because of the
12 heterogeneous nature of the product lines.
13 (4) There is a need for compatibility with existing
14 systems.
15 (b) Invitation for bids.--Invitations to bid shall be issued
16 for the supplies to be purchased.
17 (c) Public notice.--Public notice of the invitation for bids
18 shall be given in the same manner as provided in section 512(c)
19 (relating to competitive sealed bidding).
20 (d) Bid opening.--Bids shall be opened in the same manner as
21 provided in section 512(d).
22 (e) Award.--Bids shall be accepted and awards made to the
23 lowest responsible and responsive bidder for supplies of each
24 designated manufacturer. The contract shall cover the periodic
25 requirements of Commonwealth agencies for supplies of each
26 particular manufacturer. The number of supplies purchased from a
27 particular contractor shall be determined by the actual
28 requirements of the Commonwealth agencies as defined by the
29 functional needs and space limitations of the using agency and a
30 comparison with prices of corresponding supplies offered by
19830H1291B1524 - 27 -
1 other prospective contractors.
2 (f) Issuance of order.--When a Commonwealth agency has a
3 need for a particular supply which is the subject of a contract,
4 the Commonwealth agency shall issue an order to the vendor
5 offering the particular supply which the Commonwealth agency
6 desires.
7 § 518. Competitive selection procedures for certain services.
8 (a) Conditions for use.--The services of accountants,
9 clergy, physicians and dentists shall be procured in accordance
10 with this section, except as authorized under section 514
11 (relating to small purchases), 515 (relating to sole source
12 procurement) or 516 (relating to emergency procurement).
13 (b) Statement of qualifications.--Persons engaged in
14 providing the types of services specified in subsection (a) may
15 submit statements of qualifications and expressions of interest
16 in providing these services. The procurement officer may specify
17 a uniform format for statements of qualifications. Persons may
18 amend these statements at any time by filing a new statement.
19 (c) Request for proposals.--Adequate notice of the need for
20 the services specified in subsection (a) shall be given by the
21 purchasing agency through a request for proposals. The request
22 for proposals shall describe the services required, list the
23 type of information and data required of each offeror and state
24 the relative importance of particular qualifications.
25 (d) Discussions.--The head of a purchasing agency may
26 conduct discussions with any offeror who has submitted a
27 proposal to determine the offeror's qualifications for further
28 consideration. Discussions shall not disclose any information
29 derived from proposals submitted by other offerors.
30 (e) Award.--Award shall be made to the offeror determined in
19830H1291B1524 - 28 -
1 writing by the head of the purchasing agency to be best
2 qualified based on the evaluation factors set forth in the
3 request for proposals. Fair and reasonable compensation shall be
4 determined through negotiation. If compensation cannot be agreed
5 upon with the best qualified offeror, then negotiations will be
6 formally terminated with the selected offeror. If proposals were
7 submitted by one or more other offerors determined to be
8 qualified, negotiations may be conducted with the other offeror
9 or offerors in the order of their respective qualification
10 ranking. The contract may be awarded to the offeror then ranked
11 as best qualified if the amount of compensation is determined to
12 be fair and reasonable.
13 § 519. Selection procedure for insurance and bonds.
14 (a) Conditions for use.--Insurance and bonds shall be
15 procured in accordance with this section, except as authorized
16 under section 515 (relating to sole source procurement) or 516
17 (relating to emergency procurement).
18 (b) Statement of qualifications.--Insurance and bond
19 carriers may submit statements of qualifications and expressions
20 of interest in providing insurance or bonds. The department may
21 specify a uniform format for statements of qualifications.
22 (c) Request for proposals.--Adequate notice of the need for
23 insurance or bond coverage shall be given through a request for
24 proposals. The request for proposals shall describe the type of
25 insurance or bond coverage required and list the type of
26 information and data required of each offeror.
27 (d) Receipt of proposals.--Offerors shall submit their
28 proposals prior to the time and date specified.
29 (e) Discussions with responsible offerors and revision to
30 proposals.--Discussions and negotiations may be conducted with
19830H1291B1524 - 29 -
1 responsible offerors who submit proposals determined to be
2 reasonably susceptible of being selected for award. Offerors
3 shall be accorded fair and equal treatment with respect to any
4 opportunity for discussion, negotiation and revision of
5 proposals. Revisions may be permitted after submissions and
6 prior to award for the purpose of obtaining best and final
7 offers.
8 (f) Award.--Award shall be made to the offeror whose
9 proposal is determined in writing by the department to be the
10 most advantageous to the Commonwealth based on criteria
11 determined by the department, including the coverage offered and
12 the cost of the premium.
13 § 520. Handicapped-made supplies and services.
14 (a) General rule.--Handicapped-made supplies and services
15 shall be procured by a purchasing agency in accordance with this
16 section.
17 (b) Fair market price.--The department shall determine the
18 fair market price of any handicapped-made supply or service
19 which has been offered for sale to any Commonwealth agency by an
20 agency for the handicapped. The department shall also revise the
21 prices in accordance with changing market conditions and
22 promulgate regulations regarding specifications, time of
23 delivery and other relevant matters.
24 (c) Distribution.--At the request of the department, the
25 Department of Public Welfare or a nonprofit agency with the
26 approval of the Department of Public Welfare shall facilitate
27 the distribution of orders for supplies and services among
28 agencies for the handicapped.
29 (d) Procurement of handicapped-made supplies and services.--
30 Except as provided in subsection (e), all handicapped-made
19830H1291B1524 - 30 -
1 supplies or services shall be procured in accordance with
2 regulations promulgated by the policy office and in accordance
3 with specifications under Chapter 7 (relating to specifications)
4 from any agency for the handicapped, whenever the supplies and
5 services are available at a price determined to be the fair
6 market price. The head of a purchasing agency shall annually
7 discuss its needs for supplies or services with agencies for the
8 handicapped.
9 (e) Procurement from Commonwealth agency.--If any
10 handicapped-made supply or service offered for sale is available
11 for procurement from any Commonwealth agency and this part or
12 any other statute requires the procurement of the supply or
13 service from the Commonwealth agency, then the procurement of
14 the supply or service shall be made in accordance with the other
15 provisions.
16 (f) Definitions.--As used in this section the following
17 words and phrases shall have the meanings given to them in this
18 subsection:
19 "Agency for the handicapped." Any charitable nonprofit
20 agency incorporated under the laws of this Commonwealth and
21 approved by the department through which handicapped persons
22 manufacture supplies and provide services in this Commonwealth.
23 "Blind." A condition in which central visual acuity does not
24 exceed 20/200 in the better eye with correcting lenses or in
25 which the widest diameter of the visual field subtends an angle
26 no greater than 20 degrees.
27 "Handicapped person." A person who is blind, mentally
28 retarded or physically handicapped.
29 "Handicapped-made supply or service." Any supply
30 manufactured or service rendered in this Commonwealth by a
19830H1291B1524 - 31 -
1 handicapped person. The term does not include any service the
2 practice of which is licensed under the laws of this
3 Commonwealth.
4 "Mentally retarded." Subaverage general intellectual
5 functioning which originates during the developmental period and
6 is associated with impairment of maturation, learning or social
7 adjustment.
8 "Physically handicapped." A limitation of most activities
9 and functioning by virtue of a severe impairment of the various
10 bodily systems which cannot be eliminated, modified or
11 substantially reduced by the usual rehabilitation services and
12 which precludes competitive employment.
13 SUBCHAPTER C
14 CANCELLATION OF INVITATIONS FOR BIDS OR
15 REQUESTS FOR PROPOSALS
16 Sec.
17 521. Cancellation of invitations for bids or requests for
18 proposals.
19 § 521. Cancellation of invitations for bids or requests for
20 proposals.
21 An invitation for bids, a request for proposals or other
22 solicitation may be cancelled, or any or all bids or proposals
23 may be rejected in whole or in part as may be specified in the
24 solicitation, when it is in the best interests of the
25 Commonwealth in accordance with regulations promulgated by the
26 policy office. The reasons for the cancellation or rejection
27 shall be made part of the contract file.
28 SUBCHAPTER D
29 QUALIFICATIONS AND DUTIES
30 Sec.
19830H1291B1524 - 32 -
1 531. Debarment or suspension.
2 532. Prequalification of bidders and offerors.
3 533. Responsibility of bidders and offerors.
4 534. Bid security and performance bonds.
5 535. Cost or pricing data.
6 § 531. Debarment or suspension.
7 (a) Authority.--After reasonable notice to the person
8 involved and reasonable opportunity for that person to be heard,
9 the head of a purchasing agency, after consultation with the
10 head of the using agency, shall have authority to debar a person
11 for cause from consideration for award of contracts for a period
12 of not more than three years or to suspend a person from
13 consideration for award of contracts if there is probable cause
14 for debarment for a period not exceeding three months.
15 (b) Causes for debarment or suspension.--The causes for
16 debarment or suspension include:
17 (1) Conviction, including a plea of guilty or nolo
18 contendere, for commission of a criminal offense as an
19 incident to obtaining or attempting to obtain a public or
20 private contract or subcontract or in the performance of the
21 contract or subcontract.
22 (2) Conviction, including a plea of guilty or nolo
23 contendere, under state or Federal statutes of embezzlement,
24 theft, forgery, bribery, falsification or destruction of
25 records, receiving stolen property or any other offense
26 indicating a lack of business integrity or business honesty
27 which currently, seriously and directly affects
28 responsibility as a contractor.
29 (3) Conviction, including a plea of guilty or nolo
30 contendere, under state or Federal antitrust statutes arising
19830H1291B1524 - 33 -
1 out of the submission of bids or proposals.
2 (4) Violation of contract provisions, as set forth
3 below, of a character which is regarded by the head of a
4 purchasing agency to be so serious as to justify debarment
5 action:
6 (i) deliberate failure without good cause to perform
7 in accordance with the specifications or within the time
8 limit provided in the contract; or
9 (ii) a recent record of failure to perform or of
10 unsatisfactory performance in accordance with the terms
11 of one or more contracts. Failure to perform or
12 unsatisfactory performance caused by acts beyond the
13 control of the contractor shall not be considered to be a
14 basis for debarment.
15 (5) Any other cause the head of a purchasing agency
16 determines to be so serious and compelling as to affect
17 responsibility as a contractor, including debarment by
18 another governmental entity for any cause listed in
19 regulations of the policy office.
20 (6) For violation of the ethical standards set forth in
21 Chapter 23 (relating to ethics in public contracting) or the
22 act of July 19, 1957 (P.L.1017, No.451), known as the State
23 Adverse Interest Act.
24 (c) Decision.--The head of a purchasing agency shall issue a
25 written decision to debar or suspend. The decision shall:
26 (1) State the reasons for the action taken.
27 (2) Inform the debarred or suspended person involved of
28 his rights to administrative and judicial review as provided
29 in Chapter 17 (relating to legal and contractual remedies).
30 (d) Notice of decision.--A copy of the decision under
19830H1291B1524 - 34 -
1 subsection (c) shall be delivered by registered mail to the
2 debarred or suspended person and any other party intervening.
3 (e) Finality of decision and appeal.--A decision under
4 subsection (c) shall be final and conclusive unless the debarred
5 or suspended person appeals to the Board of Claims within 30
6 days of receipt of the decision.
7 § 532. Prequalification of bidders and offerors.
8 Prospective bidders and offerors may be prequalified for
9 particular types of supplies, services and construction.
10 Solicitation mailing lists of potential contractors shall
11 include, but shall not be limited to, prequalified bidders and
12 offerors.
13 § 533. Responsibility of bidders and offerors.
14 (a) Determination of nonresponsibility.--A written
15 determination of nonresponsibility of a bidder or offeror shall
16 be made in accordance with regulations promulgated by the policy
17 office. The unreasonable failure of a bidder or offeror to
18 promptly supply information in connection with an inquiry with
19 respect to responsibility may be grounds for a determination of
20 nonresponsibility with respect to that bidder or offeror.
21 (b) Right of nondisclosure.--Information furnished by a
22 bidder or offeror pursuant to this section shall not be
23 disclosed outside of the purchasing agency without prior written
24 consent by the bidder or offeror, except as otherwise provided
25 in section 563 (relating to retention of procurement records).
26 § 534. Bid security and performance bonds.
27 (a) Contract for supplies.--
28 (1) In the case of competitive sealed bidding for a
29 contract for supplies, bidders may be required by the head of
30 a purchasing agency pursuant to regulations promulgated by
19830H1291B1524 - 35 -
1 the policy office to provide bid security. Bid security shall
2 be by certified or bank check or a bond provided by a surety
3 company authorized to do business in this Commonwealth or the
4 equivalent in cash. Bid security shall be at least in the
5 minimum amount or percentage of the amount of the bid as
6 shall be specified in the advertisement.
7 (2) When the invitation for bids requires security,
8 noncompliance by the bidder requires that the bid be rejected
9 unless, pursuant to policy office regulations, it is
10 determined that the bid fails to comply with the security
11 requirements in a nonsubstantial manner.
12 (3) After the bids are opened, they shall be irrevocable
13 for the period specified in the invitation for bids except as
14 provided in section 512(f) (relating to competitive sealed
15 bidding). If a bidder is permitted to withdraw his bid before
16 award, no action shall be had against the bidder or the bid
17 security.
18 (4) A contractor may be required by the head of a
19 purchasing agency under regulations promulgated by the policy
20 office to provide a performance bond executed by a surety
21 company authorized to do business in this Commonwealth. In
22 lieu of a bond, a contractor may provide other security as
23 permitted by regulations promulgated by the policy office.
24 The performance bond shall be in an amount determined by the
25 head of the purchasing agency and it shall be conditioned
26 upon the faithful performance of the contract.
27 (b) Contract for construction.--Bid security and performance
28 bonds as required for contracts for construction are provided
29 for in sections 903 (relating to bid security) and 904 (relating
30 to contract performance and payment bonds).
19830H1291B1524 - 36 -
1 § 535. Cost or pricing data.
2 (a) Submission by contractor.--A contractor shall, except as
3 provided in subsection (c), submit cost or pricing data and
4 shall certify that, to the best of his knowledge and belief, the
5 cost or pricing data submitted was accurate, complete and
6 current as of a mutually determined specified date prior to the
7 date of:
8 (1) the pricing of any contract awarded under section
9 513 (relating to competitive sealed proposals) or 515
10 (relating to sole source procurement) where the total
11 contract price is expected to exceed an amount established by
12 the policy office; or
13 (2) the pricing of any change order or contract
14 modification which is expected to exceed an amount
15 established by policy office regulations.
16 (b) Price adjustment.--Any contract, change order or
17 contract modification under which a certificate is required
18 shall contain a provision that the price to the Commonwealth
19 agency, including profit or fee, shall be adjusted to exclude
20 any significant sums by which the Commonwealth agency finds that
21 the price was increased because the cost or pricing data
22 furnished by the contractor was inaccurate, incomplete or not
23 current as of the date agreed upon between the parties.
24 (c) Cost or pricing data not required.--The requirements of
25 this section need not be applied to contracts under any of the
26 following circumstances:
27 (1) The contract price is based on adequate price
28 competition.
29 (2) The contract price is based on established catalogue
30 prices or market prices.
19830H1291B1524 - 37 -
1 (3) Contract prices are set by statute or regulation.
2 (4) It is determined in writing in accordance with
3 regulations promulgated by the policy office that the
4 requirements of this section may be waived and the reasons
5 for the waivers are stated in writing.
6 SUBCHAPTER E
7 TYPES OF CONTRACTS
8 Sec.
9 541. Restrictions on contracts.
10 542. Approval of accounting system.
11 543. Multiterm contracts.
12 § 541. Restrictions on contracts.
13 The use of a cost-plus-a-percentage-of-cost contract is
14 prohibited. A cost-reimbursement contract may be used only when
15 a determination is made in writing that the contract is likely
16 to be less costly to the Commonwealth than any other type or
17 that it is impracticable to obtain the supplies, services or
18 construction required except under a cost-reimbursement
19 contract.
20 § 542. Approval of accounting system.
21 Except with respect to firm fixed-price contracts, no
22 contract type shall be used unless it has been determined in
23 writing by the head of a purchasing agency that:
24 (1) the proposed contractor's accounting system will
25 permit timely development of all necessary cost data in the
26 form required by the specific contract type contemplated; and
27 (2) the proposed contractor's accounting system is
28 adequate to allocate costs in accordance with generally
29 accepted accounting principles.
30 § 543. Multiterm contracts.
19830H1291B1524 - 38 -
1 (a) Specified period.--A contract for supplies or services
2 may be entered into for any period of time deemed to be in the
3 best interests of the Commonwealth. The term of the contract and
4 conditions of renewal or extension, if any, shall be included in
5 the solicitation and funds shall be available for the first
6 fiscal period at the time of contracting. Payment and
7 performance obligations for succeeding fiscal periods shall be
8 subject to the availability and appropriation of funds.
9 (b) Determination prior to use.--Before using a multiterm
10 contract, it shall be determined in writing that:
11 (1) Estimated requirements cover the period of the
12 contract and are reasonably firm and continuing.
13 (2) The contract will serve the best interests of the
14 Commonwealth by encouraging effective competition or
15 otherwise promoting economy in Commonwealth agency
16 procurement.
17 (c) Cancellation for unavailability of funds in succeeding
18 fiscal periods.--When funds are not appropriated or otherwise
19 made available to support continuation of performance in a
20 subsequent fiscal period, the contract shall be cancelled and
21 the contractor shall be reimbursed for the reasonable value of
22 any nonrecurring costs incurred but not amortized in the price
23 of the supplies or services delivered under the contract. The
24 cost of cancellation may be paid from any appropriations
25 available for that purpose.
26 SUBCHAPTER F
27 INSPECTION OF PLANT AND AUDIT OF RECORDS
28 Sec.
29 551. Right to inspect plant.
30 552. Right to audit records.
19830H1291B1524 - 39 -
1 § 551. Right to inspect plant.
2 The purchasing agency may, at reasonable times, inspect the
3 part of the plant or place of business of a contractor or any
4 subcontractor which is related to the performance of any
5 contract awarded or to be awarded by the purchasing agency.
6 § 552. Right to audit records.
7 (a) Audit of cost or pricing data.--The purchasing agency
8 may, at reasonable times and places, audit the books and records
9 of any person who has submitted cost or pricing data under
10 section 535 (relating to cost or pricing data) to the extent
11 that the books and records relate to the cost or pricing data.
12 Any person who receives a contract, change order or contract
13 modification for which cost or pricing data is required shall
14 maintain the books and records that relate to the cost or
15 pricing data for three years from the date of final payment
16 under the contract unless a shorter period is otherwise
17 authorized in writing.
18 (b) Contract audit.--The purchasing agency may audit the
19 books and records of a contractor or any subcontractor under any
20 negotiated contract or subcontract other than a firm fixed-price
21 contract to the extent that the books and records relate to the
22 performance of the contract or subcontract. The books and
23 records shall be maintained by the contractor for a period of
24 three years from the date of final payment under the prime
25 contract and by the subcontractor for a period of three years
26 from the date of final payment under the prime contract unless a
27 shorter period is otherwise authorized in writing.
28 SUBCHAPTER G
29 DETERMINATIONS AND REPORTS
30 Sec.
19830H1291B1524 - 40 -
1 561. Finality of determinations.
2 562. Anti-competitive practices.
3 563. Retention of procurement records.
4 564. Record of certain actions.
5 § 561. Finality of determinations.
6 The determinations required by the following sections are
7 final and conclusive unless they are clearly erroneous,
8 arbitrary, capricious or contrary to law:
9 Section 512(f) (relating to competitive sealed bidding).
10 Section 513(a) and (g) (relating to competitive sealed
11 proposals).
12 Section 515 (relating to sole source procurement).
13 Section 516 (relating to emergency procurement).
14 Section 518(e) (relating to competitive selection
15 procedures for certain services).
16 Section 519(f) (relating to selection procedure for
17 insurance and bonds).
18 Section 533(a) (relating to responsibility of bidders and
19 offerors).
20 Section 535(c) (relating to cost or pricing data).
21 Section 541 (relating to restrictions on contracts).
22 Section 542 (relating to approval of accounting system).
23 Section 543(b) (relating to multiterm contracts).
24 § 562. Anti-competitive practices.
25 Collusion among bidders is unlawful. Every contract,
26 combination or conspiracy which unreasonably restrains trade
27 among bidders or offerors is unlawful. Contracts so arrived at
28 may be declared void at the option of the Commonwealth. In
29 addition to remedies available to the Commonwealth in the
30 Federal courts, there shall be the same remedies in the courts
19830H1291B1524 - 41 -
1 of this Commonwealth. When any person has reason to believe
2 collusion or other anti-competitive practices have occurred
3 among any bidders or offerors, a notice of the relevant facts
4 shall be transmitted to the Attorney General who shall
5 investigate the reports.
6 § 563. Retention of procurement records.
7 All procurement records shall be retained for a minimum of
8 three years and disposed of in accordance with records retention
9 guidelines and schedules approved by the General Counsel. All
10 retained documents shall be made available to the General
11 Counsel or Attorney General upon request.
12 § 564. Record of certain actions.
13 (a) Contents of record.--The department shall maintain a
14 record listing all contracts made under sections 514 (relating
15 to small purchases), 515 (relating to sole source procurement)
16 and 516 (relating to emergency procurement) for a minimum of
17 three years from the date of final payment under the contract.
18 The record shall contain:
19 (1) Each contractor's name.
20 (2) The amount and type of each contract.
21 (3) A listing of the supplies, services or construction
22 procured under each contract.
23 (b) Submission to General Assembly.--A copy of the record
24 required by subsection (a) shall be submitted to the General
25 Assembly on an annual basis.
26 CHAPTER 7
27 SPECIFICATIONS
28 Sec.
29 701. Purpose and scope.
30 702. Duties of policy office.
19830H1291B1524 - 42 -
1 703. Duties of department.
2 704. Exempted items.
3 705. Relationship with using agencies.
4 706. Wage specifications.
5 § 701. Purpose and scope.
6 All specifications shall seek to promote overall economy for
7 the purpose intended and encourage competition in satisfying
8 Commonwealth agency needs and shall not be unduly restrictive.
9 The requirements of this chapter regarding the purposes and
10 nonrestrictiveness of specifications shall apply to all
11 specifications including, but not limited to, those prepared by
12 architects, engineers, designers and drafters for public
13 contracts.
14 § 702. Duties of policy office.
15 The policy office shall promulgate regulations governing the
16 preparation, maintenance and content of specifications for
17 supplies, services and construction required by Commonwealth
18 agencies.
19 § 703. Duties of department.
20 The department shall prepare, issue, revise, maintain and
21 monitor the use of specifications for supplies, services and
22 construction required by Commonwealth agencies.
23 § 704. Exempted items.
24 Specifications for supplies, services or construction items
25 procured under sections 516 (relating to emergency procurement)
26 and 518 (relating to competitive selection procedures for
27 certain services) or exempted under section 301(d) (relating to
28 procurement responsibility) may be prepared by a purchasing
29 agency in accordance with the provisions of this chapter.
30 § 705. Relationship with using agencies.
19830H1291B1524 - 43 -
1 The department shall obtain expert advice and assistance from
2 personnel of using agencies in the development of specifications
3 and may delegate in writing to a using agency the authority to
4 prepare and use its own specifications.
5 § 706. Wage specifications.
6 (a) Prevailing wages.--Specifications prepared under this
7 chapter for construction contracts shall be consistent with the
8 requirements of the act of August 15, 1961 (P.L.987, No.442),
9 known as the Pennsylvania Prevailing Wage Act.
10 (b) Minimum wages.--Specifications prepared under this
11 chapter for construction contracts shall contain the minimum
12 wages which may be paid by the contractor or subcontractor for
13 work performed by laborers and mechanics. The specifications
14 shall require that the laborers and mechanics be paid at least
15 the minimum wages contained in the specifications and that the
16 laborers and mechanics shall not be required to refund, directly
17 or indirectly, any part of those wages. The specifications shall
18 require that the contractor or subcontractor certify that he is
19 not receiving or requiring, or will not receive or require,
20 directly or indirectly, any refund of the specified minimum
21 wages.
22 CHAPTER 9
23 PROCUREMENT OF CONSTRUCTION, ARCHITECT, ENGINEER
24 AND LAND SURVEYING SERVICES
25 Sec.
26 901. Definitions.
27 902. Selection of method of construction contracting.
28 903. Bid security.
29 904. Contract performance and payment bonds.
30 905. Bond forms and copies.
19830H1291B1524 - 44 -
1 906. Contract clauses and their administration.
2 907. Fiscal responsibility.
3 908. Architect, engineer and land surveying services.
4 § 901. Definitions.
5 The following words and phrases when used in this chapter
6 shall have the meanings given to them in this section unless the
7 context clearly indicates otherwise:
8 "Architect, engineer and land surveying services." Those
9 professional services within the scope of the practice of
10 architecture, professional engineering or land surveying as
11 defined by the laws of this Commonwealth.
12 § 902. Selection of method of construction contracting.
13 (a) General rule.--Construction contracts shall be awarded
14 by competitive sealed bidding under section 512 (relating to
15 competitive sealed bidding) or, when competitive sealed bidding
16 is either not practicable or advantageous to the Commonwealth,
17 by competitive sealed proposals under section 513 (relating to
18 competitive sealed proposals).
19 (b) Separate contracts for certain construction items.--In
20 the case of a public building, if the entire cost of the
21 construction exceeds $4,000, the architect, engineer, designer
22 or drafter of specifications under Chapter 7 (relating to
23 specifications) shall prepare separate specifications for the
24 following construction items:
25 (1) Plumbing.
26 (2) Heating, ventilating and air conditioning.
27 (3) Electrical work.
28 The purchasing agency shall invite bids or request proposals and
29 award a contract for each separate construction item.
30 § 903. Bid security.
19830H1291B1524 - 45 -
1 (a) Requirement for bid security.--Bid security is required
2 for all competitive sealed bidding for construction contracts
3 when the price is estimated by the procurement officer to exceed
4 $5,000. Bid security shall be by certified or bank check or a
5 bond provided by a surety company authorized to do business in
6 this Commonwealth or the equivalent in cash. This subsection
7 does not prevent the requirement of bid security for
8 construction contracts under $5,000.
9 (b) Amount of bid security.--Bid security shall be at least
10 in the minimum amount or percentage of the amount of the bid as
11 shall be specified in the advertisement.
12 (c) Rejection of bids.--When the invitation for bids
13 requires security, noncompliance requires that the bid be
14 rejected unless, pursuant to policy office regulations, it is
15 determined that the bid fails to comply with the security
16 requirements in a nonsubstantial manner.
17 (d) Withdrawal of bids.--After the bids are opened, they
18 shall be irrevocable for the period specified in the invitation
19 for bids except as provided in section 512(f) (relating to
20 competitive sealed bidding). If a bidder is permitted to
21 withdraw his bid before award, no action shall be had against
22 the bidder or the bid security.
23 § 904. Contract performance and payment bonds.
24 (a) When required and amounts.--When a construction contract
25 is awarded in excess of $5,000, the following bonds or security
26 shall be delivered to the purchasing agency and shall be binding
27 on the parties upon the execution of the contract:
28 (1) A performance bond, executed by a surety company
29 authorized to do business in this Commonwealth, in an amount
30 equal to 100% of the price specified in the contract and
19830H1291B1524 - 46 -
1 conditioned upon the faithful performance of the contract in
2 accordance with the plans, specifications and conditions of
3 the contract.
4 (2) A payment bond, executed by a surety company
5 authorized to do business in this Commonwealth, in an amount
6 equal to 100% of the price specified in the contract and
7 conditioned upon the prompt payment for all materials
8 furnished or labor supplied or performed in the prosecution
9 of the work. Labor or materials includes public utility
10 services and reasonable rentals of equipment for the periods
11 when the equipment is actually used at the site.
12 (b) Protection.--A performance bond shall be solely for the
13 protection of the purchasing agency which awarded the contract.
14 A payment bond shall be solely for the protection of claimants
15 supplying labor or materials to the prime contractor to whom the
16 contract was awarded or to any of his subcontractors in the
17 prosecution of the work provided for in the contract, whether or
18 not the labor or materials constitute a component part of the
19 construction.
20 (c) Reduction of bond amounts.--The policy office may
21 promulgate regulations that authorize the head of a purchasing
22 agency to reduce the amount of performance and payment bonds to
23 50% of the contract price for each bond.
24 (d) Authority to require additional bonds.--Nothing in this
25 section shall be construed to limit the authority of the
26 Commonwealth agency to require a performance bond or other
27 security in addition to those bonds or in circumstances other
28 than specified in subsection (a).
29 (e) Actions on payment bonds.--
30 (1) Subject to paragraph (2), any claimant who has
19830H1291B1524 - 47 -
1 performed labor or furnished material in the prosecution of
2 the work provided for in any contract for which a payment
3 bond has been given under subsection (a) and who has not been
4 paid in full before the expiration of 90 days after the day
5 on which the claimant performed the last of the labor or
6 furnished the last of the materials for which he claims
7 payments may bring an action on the payment bond in his own
8 name, in assumpsit, to recover any amount due him for the
9 labor or material and may prosecute the action to final
10 judgment and have execution on the judgment.
11 (2) Any claimant who has a direct contractual
12 relationship with any subcontractor of the prime contractor
13 who gave the payment bond but has no contractual
14 relationship, express or implied, with the prime contractor
15 may bring an action on the payment bond only if he has given
16 written notice to the contractor within 90 days from the date
17 on which the claimant performed the last of the labor or
18 furnished the last of the materials for which he claims
19 payment stating with substantial accuracy the amount and the
20 name of the person for whom the work was performed or to whom
21 the material was furnished.
22 (3) Notice shall be served by registered mail in an
23 envelope addressed to the contractor at any place where his
24 office is regularly maintained for the transaction of
25 business, or served in any manner in which legal process may
26 be served in the manner provided by law for the service of a
27 summons except that the service need not be made by a public
28 officer.
29 § 905. Bond forms and copies.
30 (a) Bond forms.--The policy office shall promulgate by
19830H1291B1524 - 48 -
1 regulation the form of the bonds required by this chapter.
2 (b) Certified copies of bonds.--The purchasing agency shall
3 furnish a certified copy of any payment bond and the contract
4 for which the bond was given to any person who makes an
5 application for the copy and who submits an affidavit stating
6 that the applicant:
7 (1) has furnished material or performed labor for the
8 completion of the work provided for in the contract and that
9 he has not been fully paid for the labor or material;
10 (2) is a defendant in an action brought on a payment
11 bond; or
12 (3) is surety in a payment bond on which an action has
13 been brought.
14 (c) Fee for certified copies.--Each applicant shall pay for
15 each certified copy of any payment bond a fee fixed by the
16 purchasing agency to cover the actual cost of the preparation of
17 the copy.
18 (d) Evidence.--A certified copy of any payment bond and of
19 the contract for which the bond was given constitutes prima
20 facie evidence of the contents, execution and delivery of the
21 original of the bond and contract.
22 § 906. Contract clauses and their administration.
23 (a) Contract clauses.--The policy office may promulgate
24 regulations permitting or requiring the inclusion in
25 Commonwealth agency construction contracts of clauses providing
26 for, but not limited to, adjustments in prices, time of
27 performance or other contract provisions, as appropriate, and
28 covering the following subjects:
29 (1) The unilateral right of the purchasing agency to
30 order in writing changes in the work within the scope of the
19830H1291B1524 - 49 -
1 contract and changes in the time of performance of the
2 contract that do not alter the scope of the contract work.
3 (2) Variations occurring between estimated and actual
4 quantities of work.
5 (3) Suspension of work ordered by the purchasing agency.
6 (4) Site conditions differing from those indicated in
7 the contract or ordinarily encountered except when the
8 contract is negotiated, the contractor provides the site or
9 design or the parties have otherwise agreed with respect to
10 the risk of differing site conditions.
11 (b) Price adjustments.--
12 (1) Adjustments in price pursuant to clauses promulgated
13 under subsection (a) shall be computed in one or more of the
14 following ways:
15 (i) By agreement on a fixed price adjustment before
16 commencement of the pertinent performance or as soon
17 after commencement as practicable.
18 (ii) By unit prices specified in the contract or
19 subsequently agreed upon.
20 (iii) By the costs attributable to the events or
21 situations under the clauses with adjustment of profit or
22 fee, all as specified in the contract or subsequently
23 agreed upon.
24 (iv) In any other manner as the contracting parties
25 may mutually agree.
26 (v) In the absence of agreement by the parties, by a
27 unilateral determination by the purchasing agency of the
28 costs attributable to the events or situations under the
29 clauses with adjustment of profit or fee, all as computed
30 by the purchasing agency in accordance with applicable
19830H1291B1524 - 50 -
1 sections of the regulations issued under Chapter 13
2 (relating to cost principles) and subject to the
3 provisions of Chapter 17 (relating to legal and
4 contractual remedies).
5 (2) A contractor shall be required to submit cost or
6 pricing data if any adjustment in contract price is subject
7 to the provisions of section 535 (relating to cost or pricing
8 data).
9 (c) Additional contract clauses.--The policy office may
10 promulgate regulations including, but not limited to,
11 regulations permitting or requiring the inclusion in
12 Commonwealth agency construction contracts of clauses providing
13 for appropriate remedies and covering the following subjects:
14 (1) Liquidated damages as appropriate.
15 (2) Specified excuses for delay or nonperformance.
16 (3) Termination of the contract for default.
17 (4) Termination of the contract in whole or in part for
18 the convenience of the purchasing agency.
19 (5) Noncompliance with the specifications issued under
20 section 706(b) (relating to wage specifications).
21 (d) Modification of required clauses.--The head of a
22 purchasing agency may vary the clauses promulgated under
23 subsections (a) and (c) for inclusion in any particular
24 Commonwealth agency construction contract. Any variation shall
25 be supported by a written determination that states the
26 circumstances justifying the variation. Notice of any material
27 variation shall be stated in the invitation for bids or request
28 for proposals.
29 § 907. Fiscal responsibility.
30 Every contract modification, change order or contract price
19830H1291B1524 - 51 -
1 adjustment under a construction contract with a Commonwealth
2 agency in excess of an amount set forth in regulations
3 promulgated by the policy office shall be subject to prior
4 written certification by the fiscal officer of the entity
5 responsible for funding the project or the contract or other
6 official responsible for monitoring and reporting upon the
7 status of the costs of the total project budget or contract
8 budget as to the effect of the contract modification, change
9 order or adjustment in contract price on the total project
10 budget or the total contract budget. In the event that the
11 certification of the fiscal officer or other responsible
12 official discloses a resulting increase in the total project
13 budget or the total contract budget, the procurement officer
14 shall not execute or make the contract modification, change
15 order or adjustment in contract price unless sufficient funds
16 are available or the scope of the project or contract is
17 adjusted so as to permit the degree of completion that is
18 feasible within the total project budget or total contract
19 budget as it existed prior to the contract modification, change
20 order or adjustment in contract price under consideration.
21 However, with respect to the validity, as to the contractor, of
22 any executed contract modification, change order or adjustment
23 in contract price which the contractor has reasonably relied
24 upon, it shall be presumed that there has been compliance with
25 the provisions of this section.
26 § 908. Architect, engineer and land surveying services.
27 (a) Applicability.--Architect, engineer and land surveying
28 services shall be procured as provided in this section except as
29 authorized by sections 514 (relating to small purchases), 515
30 (relating to sole source procurement) and 516 (relating to
19830H1291B1524 - 52 -
1 emergency procurement).
2 (b) Policy.--It is the policy of this Commonwealth to
3 publicly announce all requirements for architect, engineer and
4 land surveying services and to negotiate contracts for
5 architect, engineer and land surveying services on the basis of
6 demonstrated competence and qualification for the types of
7 services required at fair and reasonable prices. There shall be
8 a committee to review the qualifications, experience and work of
9 architect, engineer and land surveying services seeking
10 contracts with purchasing agencies.
11 (c) Selection committees for the Departments of
12 Transportation and Environmental Resources.--The Departments of
13 Transportation and Environmental Resources shall each establish
14 a selection committee in accordance with regulations promulgated
15 by each department and approved by the policy office. None of
16 the members of these committees shall hold any elective office
17 or office in any political party.
18 (d) Selection committee for all other Commonwealth
19 agencies.--Except as provided for in subsection (c), all
20 purchasing agencies shall use the selection committee appointed
21 by the policy office which shall be composed of five members
22 none of whom shall be employees or hold any elective office or
23 office in any political party. The members shall be architects,
24 engineers, land surveyors or other persons knowledgeable in
25 construction. The members shall serve for terms of two years and
26 shall not be removed except for cause. Each member shall be
27 reimbursed for reasonable travel and other expenses incurred
28 incident to his attendance and to his assigned duty and also a
29 per diem allowance as determined by the policy office.
30 (e) Procedure for selection committees.--The selection
19830H1291B1524 - 53 -
1 committees shall use the procedure set forth in this subsection:
2 (1) The committee shall give public notice of projects
3 requiring the services of architects, engineers and land
4 surveyors and publicly recommend to the purchasing agency
5 three qualified architects, engineers or land surveyors for
6 each project.
7 (2) If desired, the committee may conduct discussions
8 with three or more professional firms regarding anticipated
9 design concepts and proposed methods of approach to the
10 assignment. The committee shall select, based upon criteria
11 established by the head of the purchasing agency, no less
12 than three professional firms deemed to be the most highly
13 qualified to provide the services required. In exercising his
14 responsibility, the committee shall consider the following
15 factors:
16 (i) An equitable distribution of contracts to
17 architects, engineers and land surveyors.
18 (ii) Particular capability to perform the design,
19 construction or surveying services for the contract being
20 considered.
21 (iii) Geographic proximity of the architect,
22 engineer or land surveyor to the proposed facility.
23 (iv) The architect, engineer or land surveyor
24 selected has the necessary available personnel to perform
25 the services required by the project.
26 (v) Any other relevant circumstances peculiar to the
27 proposed contract.
28 (3) Of the three firms selected by the committee, the
29 head of the purchasing agency shall negotiate a contract with
30 the firm he determines to be the highest qualified firm for
19830H1291B1524 - 54 -
1 architectural, engineering or land surveying services at
2 compensation which he determines to be fair and reasonable to
3 the Commonwealth. In making this decision the head of the
4 purchasing agency shall take into account the estimated
5 value, scope, complexity and professional nature of the
6 services to be rendered. Should the head of the purchasing
7 agency be unable to negotiate a satisfactory contract with
8 the firm considered to be the most qualified, at a fee he
9 determines to be fair and reasonable to the Commonwealth,
10 negotiations with that firm shall be formally terminated. The
11 head of the purchasing agency shall then undertake
12 negotiations with the firm he determines to be the second
13 highest qualified firm. Failing accord with second most
14 qualified firm, the head of the purchasing agency shall
15 formally terminate negotiations and then undertake
16 negotiations with the third highest qualified firm. Should
17 the head of the purchasing agency be unable to negotiate a
18 satisfactory contract with any of the selected firms, the
19 committee shall select additional qualified firms and the
20 head of the purchasing agency shall continue negotiations in
21 accordance with this section until an agreement is reached.
22 CHAPTER 11
23 MODIFICATION AND TERMINATION OF CONTRACTS FOR
24 SUPPLIES AND SERVICES
25 Sec.
26 1101. Contract clauses and their administration.
27 § 1101. Contract clauses and their administration.
28 (a) Contract clauses.--The policy office may promulgate
29 regulations permitting or requiring the inclusion of clauses
30 providing for, but not limited to, adjustments in prices, time
19830H1291B1524 - 55 -
1 of performance or other contract provisions, as appropriate,
2 covering the following subjects:
3 (1) The unilateral right of the purchasing agency to
4 order in writing changes in the work within the scope of the
5 contract and temporary stopping of the work or delaying
6 performance.
7 (2) Variations occurring between estimated quantities of
8 work in a contract and actual quantities.
9 (b) Price adjustments.--
10 (1) Adjustments under subsection (a) shall be computed
11 in one or more of the following ways:
12 (i) By agreement on fixed price adjustment before
13 commencement of the pertinent performance or as soon as
14 practicable.
15 (ii) By unit prices specified in the contract or
16 subsequently agreed upon.
17 (iii) By the costs attributable to the events or
18 situations under the clauses with adjustment of profit or
19 fee, all as specified in the contract or subsequently
20 agreed upon.
21 (iv) In any other manner as the contracting parties
22 may mutually agree.
23 (v) In the absence of agreement by the parties, by a
24 unilateral determination by the purchasing agency of the
25 costs attributable to the events or situations under the
26 clauses with adjustment of profit or fee, all as computed
27 by the purchasing agency in accordance with applicable
28 sections of the regulations promulgated under Chapter 13
29 (relating to cost principles) and subject to the
30 provisions of Chapter 17 (relating to legal and
19830H1291B1524 - 56 -
1 contractual remedies).
2 (2) A contractor shall be required to submit cost or
3 pricing data if any adjustment in contract price is subject
4 to the provisions of section 533 (relating to cost or pricing
5 data).
6 (c) Additional contract clauses.--The policy office may
7 promulgate regulations including, but not limited to,
8 regulations permitting or requiring the inclusion in
9 Commonwealth agency contracts of clauses providing for
10 appropriate remedies and covering the following subjects:
11 (1) Liquidated damages as appropriate.
12 (2) Specified excuses for delay or nonperformance.
13 (3) Termination of the contract for default.
14 (4) Termination of the contract in whole or in part for
15 the convenience of the purchasing agency.
16 (d) Modification of clauses.--The head of a purchasing
17 agency may vary the clauses promulgated under subsections (a)
18 and (c) for inclusion in any particular Commonwealth agency
19 contract. Any variation shall be supported by a written
20 determination that states the circumstances justifying the
21 variation. Notice of any material variation shall be stated in
22 the invitation for bids or requests for proposals.
23 CHAPTER 13
24 COST PRINCIPLES
25 Sec.
26 1301. Cost principles regulations required.
27 § 1301. Cost principles regulations required.
28 The policy office shall promulgate regulations setting forth
29 cost principles which shall be used to determine the
30 allowability of incurred costs for the purpose of reimbursing
19830H1291B1524 - 57 -
1 costs under contract provisions which provide for the
2 reimbursement of costs. However, if a written determination is
3 approved at a level above the procurement officer, the cost
4 principles may be modified by contract.
5 CHAPTER 15
6 SUPPLY MANAGEMENT
7 Sec.
8 1501. Definitions.
9 1502. Supply management regulations required.
10 1503. Proceeds from sale or disposal of surplus supplies.
11 § 1501. Definitions.
12 The following words and phrases when used in this chapter
13 shall have the meanings given to them in this section unless the
14 context clearly indicates otherwise:
15 "Excess supplies." Any supplies other than expendable
16 supplies having a remaining useful life but which are no longer
17 required by the using agency in possession of the supplies.
18 "Expendable supplies." All tangible supplies other than
19 nonexpendable supplies.
20 "Nonexpendable supplies." All tangible supplies having an
21 original acquisition cost of over $100 per unit and a probable
22 useful life of more than one year.
23 "Supplies." Supplies owned by Commonwealth agencies.
24 "Surplus supplies." Any supplies other than expendable
25 supplies no longer having any use to any Commonwealth agency.
26 This includes obsolete supplies, scrap materials and
27 nonexpendable supplies that have completed their useful life
28 cycle.
29 § 1502. Supply management regulations required.
30 The policy office shall promulgate regulations governing:
19830H1291B1524 - 58 -
1 (1) The management of supplies during their entire life
2 cycle.
3 (2) The sale, lease or disposal of surplus supplies by
4 public auction, competitive sealed bidding or other
5 appropriate method designated by regulation. However, no
6 employee of the owning or disposing agency shall be entitled
7 to purchase any of these supplies.
8 (3) Transfer of excess supplies.
9 § 1503. Proceeds from sale or disposal of surplus supplies.
10 The proceeds from the sale, lease or disposal of surplus
11 supplies shall be paid into the State Treasury and deposited in
12 the appropriate fund.
13 CHAPTER 17
14 LEGAL AND CONTRACTUAL REMEDIES
15 Subchapter
16 A. General Provisions
17 B. Prelitigation Resolution of Controversies
18 C. Board of Claims
19 D. Solicitations or Awards in Violation of Law
20 E. Interest
21 SUBCHAPTER A
22 GENERAL PROVISIONS
23 Sec.
24 1701. Definitions.
25 1702. Sovereign immunity.
26 § 1701. Definitions.
27 The following words and phrases when used in this chapter
28 shall have the meanings given to them in this section unless the
29 context clearly indicates otherwise:
30 "Claimant." Any person appealing to the Board of Claims or
19830H1291B1524 - 59 -
1 filing a claim with the board under section 1724(b) (relating to
2 jurisdiction).
3 § 1702. Sovereign immunity.
4 (a) General rule.--The General Assembly pursuant to section
5 11 of Article I of the Constitution of Pennsylvania reaffirms
6 sovereign immunity and, except as otherwise provided in this
7 chapter, no provision of this part shall constitute a waiver of
8 sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating
9 to sovereign immunity reaffirmed; specific waiver) or otherwise.
10 (b) Exception.--The General Assembly pursuant to section 11
11 of Article I of the Constitution of Pennsylvania does hereby
12 waive sovereign immunity as a bar to claims against Commonwealth
13 agencies arising under this chapter but only to the extent set
14 forth in this chapter.
15 SUBCHAPTER B
16 PRELITIGATION RESOLUTION OF CONTROVERSIES
17 Sec.
18 1711. Authority to resolve protests of solicitations or
19 awards.
20 1712. Authority to resolve contract and breach of contract
21 controversies.
22 § 1711. Authority to resolve protests of solicitations or
23 awards.
24 (a) Right to protest.--Any actual or prospective bidder,
25 offeror or contractor who is aggrieved in connection with the
26 solicitation or award of a contract may protest to the head of a
27 purchasing agency in writing. All protests under this subsection
28 must be made within seven days after the protestant knows or
29 should have known of the facts giving rise to the protest.
30 (b) Authority to resolve protests.--The head of a purchasing
19830H1291B1524 - 60 -
1 agency shall have the authority to settle and resolve a protest
2 of an aggrieved bidder, offeror or contractor, actual or
3 prospective, concerning the solicitation or award of a contract.
4 This authority shall be exercised in accordance with regulations
5 promulgated by the policy office.
6 (c) Decision.--If the protest is not resolved by mutual
7 agreement, the head of a purchasing agency shall promptly issue
8 a decision in writing. The decision shall:
9 (1) State the reasons for the action taken.
10 (2) Inform the protestant of his right to administrative
11 and judicial review as provided in this chapter.
12 (d) Notice of decision.--A copy of the decision under
13 subsection (c) shall be delivered by registered mail to the
14 protestant and any other person determined by the head of the
15 purchasing agency to be affected by the decision.
16 (e) Finality of decision and appeal.--A decision under
17 subsection (c) shall be final and conclusive unless a person
18 adversely affected by the decision appeals to the Board of
19 Claims within 14 days of receipt of the decision.
20 (f) Stay of procurements during protests.--In the event of a
21 timely protest under subsection (a), the purchasing agency shall
22 not proceed further with the solicitation or with the award of
23 the contract unless and until the head of the purchasing agency,
24 after consultation with the head of the using agency, makes a
25 written determination that the award of the contract without
26 delay is necessary to protect substantial interests of the
27 Commonwealth.
28 (g) Entitlement to costs.--In addition to relief granted
29 under Subchapter D (relating to solicitations or awards in
30 violation of law), when a protest is sustained and if it is
19830H1291B1524 - 61 -
1 determined that the protesting bidder or offeror should have
2 been awarded the contract under the solicitation, then the
3 protesting bidder or offeror shall be entitled to the reasonable
4 costs incurred in connection with the solicitation, including
5 bid preparation costs other than attorney's fees.
6 § 1712. Authority to resolve contract and breach of contract
7 controversies.
8 (a) Applicability.--This section applies to controversies
9 between a Commonwealth agency and a contractor which arise
10 under, or by virtue of, a contract between them, including
11 controversies based upon breach of contract, mistake,
12 misrepresentation or other cause for contract modification or
13 rescission. A claim under this section must be filed in writing
14 with the head of the purchasing agency within six months after
15 it accrues and not thereafter.
16 (b) Authority.--The head of a purchasing agency is
17 authorized to settle and resolve a controversy described in
18 subsection (a). This authority shall be exercised in accordance
19 with regulations promulgated by the policy office.
20 (c) Decision.--If the controversy is not resolved by mutual
21 agreement, the head of a purchasing agency shall promptly issue
22 a decision in writing. The decision shall:
23 (1) State the reasons for the action taken.
24 (2) Inform the contractor of his right to administrative
25 and judicial review as provided in this chapter.
26 (d) Notice of decision.--A copy of the decision under
27 subsection (c) shall be delivered by registered mail to the
28 contractor.
29 (e) Finality of decision and appeal.--The decision under
30 subsection (c) shall be final and conclusive unless, where the
19830H1291B1524 - 62 -
1 amount in controversy amounts to $300 or more, the contractor
2 appeals to the Board of Claims within 60 days of receipt of the
3 decision.
4 (f) Failure to render timely decision.--If the head of a
5 purchasing agency does not issue the written decision required
6 under subsection (c) within 120 days after written request for a
7 final decision or within a longer period as may be agreed upon
8 by the parties, then the contractor may proceed as if an adverse
9 decision had been received.
10 SUBCHAPTER C
11 BOARD OF CLAIMS
12 Sec.
13 1721. Composition.
14 1722. Hearing panels.
15 1723. Administrative matters.
16 1724. Jurisdiction.
17 1725. Procedure.
18 1726. Appeals.
19 § 1721. Composition.
20 (a) Appointment and qualifications.--The Board of Claims
21 shall be an independent administrative board and shall consist
22 of three members appointed by the Governor. The members shall be
23 a lawyer who shall be chairman and hold the title of chief
24 administrative judge, a professional engineer who shall
25 specialize in civil engineering and a citizen and resident of
26 this Commonwealth.
27 (b) Terms.--Each member shall serve for a term of eight
28 years. In the event any member dies or resigns during his term
29 of office, the Governor shall appoint a successor who shall hold
30 office for the unexpired term.
19830H1291B1524 - 63 -
1 (c) Compensation.--Each member shall serve full time and
2 shall perform no duties inconsistent with his duties and
3 responsibilities as a member of the Board of Claims. Each member
4 shall receive an annual compensation set by the Executive Board
5 and shall be entitled to all necessary traveling and other
6 expenses incurred by him in the discharge of his official
7 duties. During the term of a member, his salary shall not be
8 diminished.
9 § 1722. Hearing panels.
10 (a) Appointment and qualifications.--The Board of Claims may
11 appoint three hearing panels consisting of two individuals each,
12 a lawyer who shall be chairman and a professional engineer who
13 shall specialize in civil engineering.
14 (b) Compensation.--An individual serving on a hearing panel
15 shall be entitled to all necessary traveling and other expenses
16 incurred by him in the discharge of his official duties and to
17 per diem compensation at the rate of $150 per day for the time
18 actually devoted to the business of the Board of Claims. No
19 panel member shall be paid more than $10,000 per diem
20 compensation in any calendar year.
21 (c) Jurisdiction.--The hearing panels shall be designated
22 the Eastern, Middle and Western District Hearing Panel,
23 respectively, and shall have jurisdiction in areas of this
24 Commonwealth coterminous with the three judicial districts of
25 the United States District Courts in this Commonwealth.
26 § 1723. Administrative matters.
27 (a) Employees.--The Board of Claims shall appoint an
28 executive secretary and may appoint other persons including
29 lawyers, engineers and stenographers as are needed in the proper
30 exercise of its functions. Administrative services shall be
19830H1291B1524 - 64 -
1 provided by the Department of the Auditor General.
2 (b) Location of office and official seal.--The Board of
3 Claims shall maintain its office in Harrisburg and adopt an
4 official seal which shall authenticate its proceedings.
5 (c) Copies of testimony and opinions.--No charge shall be
6 made against any Commonwealth agency for copies of notes of
7 testimony or other papers furnished to the agency. The claimant
8 or any other party may purchase a copy of testimony directly
9 from the official stenographer. The Board of Claims may employ a
10 reporter who shall catalogue and have published all opinions of
11 the board.
12 § 1724. Jurisdiction.
13 (a) Appellate jurisdiction.--The Board of Claims shall have
14 exclusive jurisdiction to review and determine de novo any
15 appeal by a claimant from a decision by the head of a purchasing
16 agency which is authorized by:
17 Section 531 (relating to debarment or suspension).
18 Section 1711 (relating to authority to resolve protests
19 of solicitations or awards).
20 Section 1712 (relating to authority to resolve contract
21 and breach of contract controversies).
22 (b) Original jurisdiction.--The Board of Claims shall have
23 exclusive jurisdiction to hear and determine those claims filed
24 with it within six months after the claim accrues authorized by
25 the act of March 30, 1811 (P.L.145, Ch.99), entitled "An act to
26 amend and consolidate the several acts relating to the
27 settlement of the public accounts and the payment of the public
28 monies, and for other purposes," and continued by Article X, of
29 the act of April 9, 1929 (P.L.343, No.176), known as The Fiscal
30 Code, where the Auditor General and State Treasurer were granted
19830H1291B1524 - 65 -
1 the power to adjust and settle certain claims against the
2 Commonwealth.
3 (c) Other jurisdiction.--The Board of Claims shall have
4 exclusive jurisdiction to hear and determine claims against the
5 Commonwealth filed within six months after the claim accrues to
6 the extent that it had such jurisdiction, other than that
7 provided for in subsections (a) and (b), under the former
8 provisions of the act of May 20, 1937 (P.L.728, No.193),
9 referred to as the Board of Claims Act.
10 § 1725. Procedure.
11 (a) General rule.--To the extent not inconsistent with the
12 provisions of this section, all trials before the Board of
13 Claims and hearings before panels appointed by the board shall
14 be governed by the Pennsylvania Rules of Civil Procedure and 2
15 Pa.C.S. Ch. 5, Subch. A (relating to practice and procedure of
16 Commonwealth agencies).
17 (b) Filing of claim.--The claimant shall file with the
18 executive secretary a concise and specific written statement of
19 his claim, signed and subject to the penalties of 18 Pa.C.S. §
20 4904 (relating to unsworn falsification to authorities). The
21 claimant at the same time shall file six copies of the
22 statement. The executive secretary shall deliver a copy to the
23 Commonwealth agency involved. At the time of filing the
24 statement of claim, the claimant shall pay to the State
25 Treasury, through the executive secretary, $50 as a filing fee
26 unless the fee is waived under regulations promulgated by the
27 Board of Claims. All filing fees received shall be credited to
28 the General Fund.
29 (c) Answer.--Within 30 days of the filing of the statement
30 with the executive secretary and delivery to the Commonwealth
19830H1291B1524 - 66 -
1 agency involved, the Commonwealth agency shall file with the
2 executive secretary an answer in writing to the averments of the
3 statement, signed and subject to the penalties of 18 Pa.C.S. §
4 4904. The Commonwealth agency at the same time shall file two
5 copies of the answer. The executive secretary shall deliver a
6 copy to the claimant. The answer may include a counterclaim
7 which arises from the same contract, transaction or occurrence
8 or series of transactions or occurrences from which the claim
9 arose.
10 (d) Place and time of trial.--Trials shall be held in this
11 Commonwealth at a place and time determined by the Board of
12 Claims. When the pleadings are complete, the executive secretary
13 shall list the case for trial at the earliest available date but
14 not earlier than 30 days after the filing of the answer. All
15 cases shall, as far as practicable, be listed for trial in the
16 order of the date of the filing of the respective claims. The
17 executive secretary shall serve upon the claimant and the
18 Commonwealth agency 30 days written notice of the trial.
19 (e) Hearing panels.--If in the opinion of the executive
20 secretary it appears unlikely that the case will be listed for
21 trial within 60 days after pleadings are complete, the executive
22 secretary may refer the case to one of the three hearing panels.
23 The hearing panel shall list the case for hearing at the
24 earliest available date after receipt of the case. The hearing
25 panel shall be subject to the same requirements, as to procedure
26 and opinions, as the Board of Claims. The hearing panel shall
27 forward its recommendation to the board within the time
28 established in subsection (h).
29 (f) Interpleader and impleader.--The Board of Claims shall
30 have the power to order the interpleader or impleader of other
19830H1291B1524 - 67 -
1 parties whenever necessary for a complete determination of any
2 claim or counterclaim.
3 (g) Subpoenas.--The executive secretary shall have the power
4 to issue subpoenas at the request of either the claimant or the
5 Commonwealth agency and to require the attendance of witnesses
6 and the production of books, documents and papers pertinent to
7 the case before the Board of Claims. The board shall prescribe
8 the form for all subpoenas. Each subpoena shall be signed by the
9 executive secretary. The subpoena may be served by any adult in
10 any part of this Commonwealth. Any person who refuses to obey a
11 subpoena or who refuses to testify or who fails to produce any
12 papers, books or documents pertinent to the case in which he is
13 subpoenaed or who is guilty of any contempt after summoned to
14 appear, may be punished for contempt of court. Witness fees and
15 expenses shall be divided between the claimant and the
16 Commonwealth agency in any proportion the board directs.
17 (h) Trial or hearing and decision.--All trials before the
18 Board of Claims or hearings before a hearing panel shall be
19 public and the proceedings shall be de novo. Any prior
20 determinations by administrative officials shall not be final or
21 conclusive except as provided in section 561 (relating to
22 finality of determinations). The board or hearing panel shall
23 make a decision within a reasonable time from the date of trial
24 or hearing. If the claim is a debarment or suspension under
25 section 531 (relating to debarment or suspension), the board
26 shall promptly decide whether, or the extent to which, the
27 debarment or suspension was in accordance with the Constitution
28 of Pennsylvania, statutes, regulations and the best interests of
29 the Commonwealth. If the claim is a protest of a solicitation or
30 award under section 1711 (relating to authority to resolve
19830H1291B1524 - 68 -
1 protests of solicitations or awards), the board shall promptly
2 decide whether the solicitation or award was in accordance with
3 the Constitution of Pennsylvania, statutes, regulations and the
4 terms and conditions of the solicitation. If the claim is a
5 contract controversy under section 1712 (relating to authority
6 to resolve contract and breach of contract controversies), the
7 board shall promptly decide the contract or breach of contract
8 controversy and, if appropriate, make an award of a sum that it
9 determines the claimant is entitled to receive. If the claim is
10 brought under section 1724(b) or (c) (relating to jurisdiction),
11 the board shall promptly decide to either dismiss the claim or
12 make an award of a sum it determines the claimant is entitled to
13 receive. If the proceeding is before a panel, the panel shall
14 make its decision in the form of a recommendation to the board
15 within 30 days after the hearing. The board shall dispose of all
16 costs of the proceedings by providing for their payment by the
17 claimant or the Commonwealth agency or by providing that the
18 costs be shared by the claimant and the Commonwealth agency in
19 any proportion as the board directs.
20 (i) Certification of decision and costs.--Within 30 days
21 after a final decision is made by the Board of Claims, the
22 executive secretary shall certify to the claimant and
23 Commonwealth agency involved, under the seal of the board, a
24 statement of the decision, including any costs assessed against
25 the claimant or the Commonwealth agency or both and the persons
26 entitled to the costs. The award shall be paid by the
27 Commonwealth agency to the claimant out of any available funds.
28 Any costs assessed against the Commonwealth agency shall be paid
29 by the agency to the persons entitled, as evidenced by the
30 certificate of the executive secretary, out of the same funds.
19830H1291B1524 - 69 -
1 If the costs are assessed against the claimant, they shall be
2 deducted from the balance due the claimant under the contract
3 from which the claim arose and shall be paid by the Commonwealth
4 agency to the persons entitled, as evidenced by the certificate
5 of the executive secretary.
6 (j) Certification of award by court-of-record.--The claimant
7 or the Commonwealth agency involved may petition the
8 Commonwealth Court to have an award of the Board of Claims
9 certified as a judgment of a court-of-record.
10 (k) Public records.--All papers filed under this subchapter
11 shall be a public record to the extent provided in the act of
12 June 21, 1957 (P.L.390, No.212), referred to as the Right-to-
13 Know Law, and shall be available to the public as provided in
14 that act.
15 (l) Regulations.--The Board of Claims shall promulgate
16 regulations governing practice and procedure before it.
17 § 1726. Appeals.
18 Any person, including a Commonwealth agency, aggrieved by a
19 decision of the Board of Claims may appeal to the Commonwealth
20 Court under 42 Pa.C.S. § 763(a)(1) (relating to direct appeals
21 from government agencies) within 30 days after certification of
22 the decision under section 1725(i) (relating to procedure).
23 SUBCHAPTER D
24 SOLICITATIONS OR AWARDS IN VIOLATION OF LAW
25 Sec.
26 1741. Applicability.
27 1742. Remedies prior to an award.
28 1743. Remedies after the award.
29 § 1741. Applicability.
30 The provisions of this subchapter apply where it is
19830H1291B1524 - 70 -
1 determined by the head of a purchasing agency or upon Board of
2 Claims or judicial review that a solicitation or award of a
3 contract is in violation of law.
4 § 1742. Remedies prior to an award.
5 If prior to award it is determined that a solicitation or
6 proposed award of a contract is in violation of law, then the
7 remedies are limited to cancellation of the solicitation or
8 proposed award or revision of the solicitation or proposed award
9 to comply with the law.
10 § 1743. Remedies after the award.
11 If after an award it is determined that a solicitation or
12 award of a contract is in violation of law, then:
13 (1) If the person awarded the contract has not acted
14 fraudulently or in bad faith:
15 (i) the contract may be ratified and affirmed,
16 provided it is determined that doing so is in the best
17 interest of the Commonwealth; or
18 (ii) the contract may be terminated and the person
19 awarded the contract shall be compensated for the actual
20 expenses reasonably incurred under the contract, plus a
21 reasonable profit, prior to the termination.
22 (2) If the person awarded the contract has acted
23 fraudulently or in bad faith:
24 (i) the contract may be declared void; or
25 (ii) the contract may be ratified and affirmed if
26 that action is in the best interests of the Commonwealth,
27 without prejudice to the right of the Commonwealth agency
28 to damages as may be appropriate.
29 SUBCHAPTER E
30 INTEREST
19830H1291B1524 - 71 -
1 Sec.
2 1751. Interest.
3 § 1751. Interest.
4 Interest on amounts ultimately determined to be due shall be
5 payable at the statutory rate applicable to judgments from the
6 date the claim was filed with the head of the purchasing agency.
7 Interest on claims arising out of the provisions of section 1507
8 of the act of April 9, 1929 (P.L.343, No.176), known as The
9 Fiscal Code, shall be payable as provided therein. In the case
10 of a claim filed under section 1724(b) or (c) (relating to
11 jurisdiction), interest shall be payable from the date the claim
12 was filed with the Board of Claims.
13 CHAPTER 19
14 INTERGOVERNMENTAL RELATIONS
15 Sec.
16 1901. Definitions.
17 1902. Cooperative purchasing authorized.
18 1903. Sale, acquisition or use of supplies by a public
19 procurement unit.
20 1904. Cooperative use of supplies or services.
21 1905. Joint use of facilities.
22 1906. Supply of personnel, information and technical services.
23 1907. Use of payments received by a supplying public
24 procurement unit.
25 1908. Compliance of public procurement units.
26 1909. Review of procurement requirements.
27 1910. Contract controversies.
28 § 1901. Definitions.
29 The following words and phrases when used in this chapter
30 shall have the meanings given to them in this section unless the
19830H1291B1524 - 72 -
1 context clearly indicates otherwise:
2 "Cooperative purchasing." Procurement conducted by, or on
3 behalf of, more than one public procurement unit or by a public
4 procurement unit with an external procurement activity.
5 "External procurement activity." Any buying organization not
6 located in this Commonwealth which, if located in this
7 Commonwealth, would qualify as a public procurement unit. An
8 agency of the United States is an external procurement activity.
9 "Local public procurement unit." Any political subdivision,
10 public authority, educational, health or other institution and,
11 to the extent provided by law, any other entity, including a
12 council of governments or an area government, which expends
13 public funds for the procurement of supplies, services and
14 construction, and any nonprofit corporation operating a
15 charitable hospital.
16 "Public procurement unit." A local public procurement unit
17 or a purchasing agency.
18 § 1902. Cooperative purchasing authorized.
19 Any public procurement unit may either participate in,
20 sponsor, conduct or administer a cooperative purchasing
21 agreement for the procurement of any supplies, services or
22 construction with one or more public procurement units or
23 external procurement activities in accordance with an agreement
24 entered into between the participants. Cooperative purchasing
25 may include, but is not limited to, joint or multiparty
26 contracts between public procurement units and open-ended
27 purchasing agency contracts which are made available to local
28 public procurement units.
29 § 1903. Sale, acquisition or use of supplies by a public
30 procurement unit.
19830H1291B1524 - 73 -
1 Any public procurement unit may sell to, acquire from or use
2 any supplies belonging to another public procurement unit or
3 external procurement activity independent of the requirements of
4 Chapters 5 (relating to source selection and contract formation)
5 and 15 (relating to supply management).
6 § 1904. Cooperative use of supplies or services.
7 Any public procurement unit may enter into an agreement,
8 independent of the requirements of Chapters 5 (relating to
9 source selection and contract formation) and 15 (relating to
10 supply management), with any other public procurement unit or
11 external procurement activity for the cooperative use of
12 supplies or services under the terms agreed upon between the
13 parties.
14 § 1905. Joint use of facilities.
15 Any public procurement unit may enter into agreements for the
16 common use or lease of warehousing facilities, capital equipment
17 and other facilities with another public procurement unit or an
18 external procurement activity under the terms agreed upon
19 between the parties.
20 § 1906. Supply of personnel, information and technical
21 services.
22 (a) Supply of personnel.--Any public procurement unit is
23 authorized, in its discretion, upon written request from another
24 public procurement unit or external procurement activity, to
25 provide personnel to the requesting public procurement unit or
26 external procurement activity. The public procurement unit or
27 external procurement activity making the request shall pay the
28 public procurement unit providing the personnel the direct and
29 indirect cost of furnishing the personnel, in accordance with an
30 agreement between the parties.
19830H1291B1524 - 74 -
1 (b) Supply of services.--The informational, technical and
2 other services of any public procurement unit may be made
3 available to any other public procurement unit or external
4 procurement activity. However, the requirements of the public
5 procurement unit tendering the services shall have precedence
6 over the requesting public procurement unit or external
7 procurement activity. The requesting public procurement unit or
8 external procurement activity shall pay for the expenses of the
9 services provided, in accordance with an agreement between the
10 parties.
11 (c) Information services.--Upon request, the department may
12 make available to public procurement units or external
13 procurement activities the following services, among others:
14 (1) Standard forms.
15 (2) Printed manuals.
16 (3) Product specifications and standards.
17 (4) Quality assurance testing services and methods.
18 (5) Qualified products lists.
19 (6) Source information.
20 (7) Common use commodities listings.
21 (8) Supplier prequalfication information.
22 (9) Supplier performance ratings.
23 (10) Debarred and suspended bidders lists.
24 (11) Forms for invitations for bids, requests for
25 proposals, instructions to bidders, general contract
26 provisions and other contract forms.
27 (12) Contracts or published summaries of contracts,
28 including price and time of delivery information.
29 (d) Technical services.--The department may provide the
30 following technical services, among others:
19830H1291B1524 - 75 -
1 (1) Development of products specifications.
2 (2) Development of quality assurance test methods,
3 including receiving, inspection and acceptance procedures.
4 (3) Use of product testing and inspection facilities.
5 (4) Use of personnel training programs.
6 (e) Fees.--The department may enter into contractual
7 arrangements and publish a schedule of fees for the services
8 provided under subsections (c) and (d).
9 § 1907. Use of payments received by a supplying public
10 procurement unit.
11 All payments from any public procurement unit or external
12 procurement activity received by a public procurement unit
13 supplying personnel or services shall be available to the
14 supplying public procurement unit.
15 § 1908. Compliance of public procurement units.
16 Where the public procurement unit or external procurement
17 activity administering a cooperative purchase complies with the
18 requirements of this part, any public procurement unit
19 participating in the purchase shall be deemed to have complied
20 with this part. Public procurement units may not enter into a
21 cooperative purchasing agreement for the purpose of
22 circumventing this part.
23 § 1909. Review of procurement requirements.
24 To the extent possible, the department may collect
25 information concerning the type, cost, quality and quantity of
26 commonly used supplies, services or construction being procured
27 or used by Commonwealth agencies. The department may also
28 collect this information from local procurement units. The
29 department may make this information available to any public
30 procurement unit upon request.
19830H1291B1524 - 76 -
1 § 1910. Contract controversies.
2 (a) Public procurement unit subject to certain legal and
3 contractual remedies.--Under a cooperative purchasing agreement,
4 controversies arising between an administering public
5 procurement unit, subject to Chapter 17 (relating to legal and
6 contractual remedies), and its bidders, offerors or contractors
7 shall be resolved in accordance with Chapter 17.
8 (b) Local public procurement unit not subject to certain
9 legal and contractual remedies.--Any local public procurement
10 unit which is not subject to Chapter 17 (relating to legal and
11 contractual remedies) is authorized to:
12 (1) Enter into an agreement with the Board of Claims to
13 use the board to resolve controversies between the local
14 public procurement unit and its contractors, whether or not
15 the controversy arose from a cooperative purchasing
16 agreement.
17 (2) Enter into an agreement with another local public
18 procurement unit or external procurement activity to
19 establish procedures or use existing procedures of the unit
20 or activity to resolve controversies with contractors,
21 whether or not the controversy arose under a cooperative
22 purchasing agreement.
23 CHAPTER 21
24 SMALL AND DISADVANTAGED BUSINESSES
25 Sec.
26 2101. Policy.
27 2102. Definitions.
28 2103. Regulations.
29 2104. Duties of department.
30 2105. Bonding and progress payments.
19830H1291B1524 - 77 -
1 2106. Business assistance offices.
2 2107. Report to policy office and General Assembly.
3 2108. Compliance with Federal requirements.
4 § 2101. Policy.
5 The policy of this Commonwealth is to assist small and
6 disadvantaged businesses in learning how to do business with
7 Commonwealth agencies. The department shall implement this
8 policy in accordance with regulations promulgated by the policy
9 office.
10 § 2102. Definitions.
11 Subject to section 2103 (relating to regulations), the
12 following words and phrases when used in this chapter shall have
13 the meanings given to them in this section unless the context
14 clearly indicates otherwise:
15 "Disadvantaged business." A small business which is owned or
16 controlled by a majority of persons, not limited to members of
17 minority groups, who have been deprived of the opportunity to
18 develop and maintain a competitive position in the economy
19 because of social disadvantages.
20 "Small business." A business in the United States which is
21 independently owned and which is not dominant in its field of
22 operation or an affiliate or subsidiary of a business dominant
23 in its field of operation.
24 § 2103. Regulations.
25 The policy office shall promulgate regulations establishing
26 detailed definitions of the words and phrases defined in section
27 2102 (relating to definitions) using, in addition to the
28 criteria set forth in section 2102, other criteria as it deems
29 desirable, including the number of employees and the dollar
30 volume of business.
19830H1291B1524 - 78 -
1 § 2104. Duties of department.
2 The department shall have the following duties:
3 (1) Where feasible, provide appropriate staff who shall
4 be responsible to the department and who shall serve within
5 designated Commonwealth agencies to assist Pennsylvania small
6 and disadvantaged businesses in learning how to do business
7 with Commonwealth agencies.
8 (2) Give special publicity to procurement procedures and
9 issue special publications designed to assist small and
10 disadvantaged businesses in learning how to do business with
11 Commonwealth agencies.
12 (3) Compile, maintain and make available source lists of
13 small and disadvantaged businesses for the purpose of
14 encouraging procurement from small and disadvantaged
15 businesses.
16 (4) To the extent the department deems appropriate and
17 as may be required by regulation, include small and
18 disadvantaged businesses on solicitation mailing lists.
19 (5) Assure that small and disadvantaged businesses are
20 solicited on each procurement for which the businesses may be
21 suited.
22 (6) Develop special training programs to assist small
23 and disadvantaged businesses in learning how to do business
24 with Commonwealth agencies.
25 § 2105. Bonding and progress payments.
26 (a) Bonding.--Notwithstanding other provisions of this part,
27 the department may reduce the level or change the types of
28 bonding normally required or accept alternative forms of
29 security to the extent reasonably necessary to encourage
30 procurement from small and disadvantaged businesses.
19830H1291B1524 - 79 -
1 (b) Progress payments.--The department may make special
2 provisions for progress payments as it deems reasonably
3 necessary to encourage procurement from small and disadvantaged
4 businesses.
5 § 2106. Business assistance offices.
6 The department may establish, as it deems appropriate,
7 business assistance offices throughout this Commonwealth to
8 assist and carry out the provisions of this chapter.
9 § 2107. Report to policy office and General Assembly.
10 The department shall annually, before October 1, report in
11 writing to the policy office and the General Assembly concerning
12 the awarding of contracts to small and disadvantaged businesses
13 during the preceding fiscal year.
14 § 2108. Compliance with Federal requirements.
15 If a procurement involves the expenditure of Federal
16 assistance or contract funds, the department shall comply with
17 Federal law and authorized regulations which are mandatorily
18 applicable and which are not presently reflected in this part.
19 CHAPTER 23
20 ETHICS IN PUBLIC CONTRACTING
21 Subchapter
22 A. General Policy and Standards
23 B. Specific Standards
24 SUBCHAPTER A
25 GENERAL POLICY AND STANDARDS
26 Sec.
27 2301. Policy.
28 2302. General standards of ethical conduct.
29 2303. Reporting of breaches of ethical standards.
30 § 2301. Policy.
19830H1291B1524 - 80 -
1 Public employment is a public trust. It is the policy of this
2 Commonwealth to promote and balance the objective of protecting
3 government integrity and the objective of facilitating the
4 recruitment and retention of personnel needed by the
5 Commonwealth. Implementation of this policy requires that public
6 employees discharge their duties impartially so as to assure
7 fair competitive access to Commonwealth agency procurement by
8 responsible contractors and that they conduct themselves in a
9 manner that fosters public confidence in the integrity of the
10 Commonwealth procurement process. It is also essential that
11 those doing business with the Commonwealth agencies observe high
12 standards of honesty and integrity.
13 § 2302. General standards of ethical conduct.
14 (a) Employees.--Any attempt to realize personal gain through
15 public employment by conduct inconsistent with the proper
16 discharge of the duties of the employee is a breach of a public
17 trust. In order to fulfill this general prescribed standard,
18 employees must avoid any conflict of interest or improper use of
19 confidential information.
20 (b) Nonemployees.--Any effort to influence any employee to
21 breach the standards of ethical conduct set forth in this
22 section is also a breach of ethical standards.
23 § 2303. Reporting of breaches of ethical standards.
24 When any person has reason to believe that any breach of
25 standards set forth in this chapter has occurred, that person
26 shall report all relevant facts to the State Ethics Commission
27 and to the Attorney General for any appropriate action.
28 SUBCHAPTER B
29 SPECIFIC STANDARDS
30 Sec.
19830H1291B1524 - 81 -
1 2311. Bonds.
2 § 2311. Bonds.
3 It is a breach of ethical standards and unlawful for any
4 employee in issuing an invitation for bids or request for
5 proposals to require that any bond required by this part be
6 furnished by a particular surety company or through a particular
7 agent or broker. Any employee who violates this section commits
8 a misdemeanor of the first degree.
9 PART II
10 GENERAL PROCUREMENT PROVISIONS
11 Chapter
12 31. General Provisions
13 33. Prevention of Environmental Pollution
14 35. Foreign Corporations
15 37. Contract Clauses and Preference Provisions
16 39. Construction Contracts Over $50,000
17 41. Purchase of Surplus Federal Property
18 43. Public Facilities Concessions
19 CHAPTER 31
20 GENERAL PROVISIONS
21 Sec.
22 3101. Application of part.
23 3102. Definitions.
24 § 3101. Application of part.
25 This part applies to government agencies. In the case of
26 Commonwealth agencies, this part shall be read in pari materia
27 with Part I (relating to Commonwealth Procurement Code).
28 § 3102. Definitions.
29 Subject to additional definitions contained in subsequent
30 provisions of this part which are applicable to specific
19830H1291B1524 - 82 -
1 provisions of this part, the following words and phrases when
2 used in this part shall have the meanings given to them in this
3 section unless the context clearly indicates otherwise:
4 "Commonwealth agency." A Commonwealth agency as defined in
5 section 103 (relating to definitions).
6 "Government agency." Any Commonwealth agency or any
7 political subdivision or municipal or other local authority, or
8 any officer or agency of any such political subdivision or local
9 authority.
10 CHAPTER 33
11 PREVENTION OF ENVIRONMENTAL POLLUTION
12 Sec.
13 3301. Invitations for bids and requests for proposals.
14 3302. Additional work.
15 3303. Arbitration of disputes.
16 § 3301. Invitations for bids and requests for proposals.
17 All invitations for bids and requests for proposals for
18 construction projects issued by any government agency shall set
19 forth any provision of Federal and State statutes, rules and
20 regulations dealing with the prevention of environmental
21 pollution and the preservation of public natural resources that
22 affect the projects.
23 § 3302. Additional work.
24 If the successful bidder or offeror must undertake additional
25 work due to the enactment of new or the amendment of existing
26 statutes, rules or regulations occurring after the submission of
27 the successful bid or proposal, the government agency shall
28 issue a change order setting forth the additional work that must
29 be undertaken, which shall not invalidate the contract. The cost
30 of a change order to the government agency shall be determined
19830H1291B1524 - 83 -
1 in accordance with the provisions of the contract for change
2 orders or force accounts or, if there is not a provision set
3 forth in the contract, then the cost to the government agency
4 shall be the costs to the contractor for wages, labor costs
5 other than wages, wage taxes, materials, equipment rentals,
6 insurance and subcontracts attributable to the additional
7 activity plus a reasonable sum for overhead and profit.
8 Additional costs to undertake work not specified in the
9 invitation for bids or requests for proposals shall not be
10 approved unless written authorization is given the successful
11 bidder or offeror prior to his undertaking the additional
12 activity.
13 § 3303. Arbitration of disputes.
14 In the event of a dispute between the government agency and
15 the successful bidder or offeror, arbitration procedures may be
16 commenced under the applicable terms of the construction
17 contract or, if the contract does not contain a provision for
18 arbitration, the then obtaining rules of the American
19 Arbitration Association.
20 CHAPTER 35
21 FOREIGN CORPORATIONS
22 Sec.
23 3501. Condition precedent to release of bond.
24 § 3501. Condition precedent to release of bond.
25 In any case where a government agency enters into a contract
26 with a foreign corporation for the erection, construction,
27 alteration or repair of any public building, public work or
28 public project, the bond required by law to be furnished by the
29 corporation, before the letting of the contract or in relation
30 to the contract, shall contain a provision that the corporation
19830H1291B1524 - 84 -
1 or its sureties shall not be discharged from liability on the
2 bond or bond surrendered until the corporation files with the
3 government agency the following:
4 (1) A certificate from the Department of Revenue
5 evidencing the payment in full of all bonus taxes, penalties
6 and interest.
7 (2) A certificate from the Department of Labor and
8 Industry evidencing the payment of all unemployment
9 compensation contributions, penalties and interest due the
10 Commonwealth from the corporation or subcontractor or for
11 which liability has accrued but the time for payment has not
12 arrived.
13 CHAPTER 37
14 CONTRACT CLAUSES AND PREFERENCE PROVISIONS
15 Subchapter
16 A. Labor
17 B. Steel Products
18 C. Trade Practices
19 D. Used Oil Products
20 SUBCHAPTER A
21 LABOR
22 Sec.
23 3701. Contract provisions prohibiting discrimination.
24 3702. Contract provision requiring United States citizens to
25 be employed.
26 3703. Contract provision requiring residents to be employed.
27 § 3701. Contract provisions prohibiting discrimination.
28 Each contract entered into by a government agency for the
29 construction, alteration or repair of any public building or
30 public work shall contain the following provisions by which the
19830H1291B1524 - 85 -
1 contractor agrees that:
2 (1) In the hiring of employees for the performance of
3 work under the contract or any subcontract, no contractor,
4 subcontractor or any person acting on behalf of the
5 contractor or subcontractor shall by reason of race, creed or
6 color discriminate against any citizen of this Commonwealth
7 who is qualified and available to perform the work to which
8 the employment relates.
9 (2) No contractor or subcontractor or any person on
10 their behalf shall, in any manner, discriminate against or
11 intimidate any employee hired for the performance of work
12 under the contract on account of race, creed or color.
13 (3) There may be deducted, from the amount payable to
14 the contractor under the contract, a penalty of $5 for each
15 person for each calendar day during which the person was
16 discriminated against or intimidated in violation of the
17 contract.
18 (4) The contract may be cancelled or terminated by the
19 government agency and all money due or to become due under
20 the contract may be forfeited for a second or any subsequent
21 violation of the terms or conditions of that portion of the
22 contract.
23 § 3702. Contract provision requiring United States citizens
24 to be employed.
25 (a) General rule.--Each contract entered into by a
26 government agency for the erection, enlargement or improvement
27 of any public building or public work shall contain a provision
28 that only citizens of the United States shall be employed in the
29 erection, enlargement or improvement of the public building or
30 work.
19830H1291B1524 - 86 -
1 (b) Exceptions.--This section does not apply to:
2 (1) Apprentices to a trade or profession who are under
3 21 years of age.
4 (2) Public work where the cost of the public work is
5 paid in whole or in part from assessments of benefits.
6 § 3703. Contract provision requiring residents to be employed.
7 Each contract entered into by a government agency for the
8 construction, alteration or repairs of any public works shall
9 contain a provision that laborers and mechanics employed on the
10 public works shall have been residents of this Commonwealth for
11 at least 90 days prior to their employment. Failure to comply
12 with this section shall be sufficient legal reason to refuse
13 payment of the contract price to the contractor.
14 SUBCHAPTER B
15 STEEL PRODUCTS
16 Sec.
17 3711. Short title of subchapter.
18 3712. Definitions.
19 3713. Required contract provisions.
20 3714. Payments under contracts.
21 § 3711. Short title of subchapter.
22 This subchapter shall be known and may be cited as the Steel
23 Products Procurement Act.
24 § 3712. Definitions.
25 The following words and phrases when used in this subchapter
26 shall have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Public works." Any structure, building, highway, waterway,
29 street, bridge, transit system, airport or other betterment,
30 work or improvement whether of a permanent or temporary nature
19830H1291B1524 - 87 -
1 and whether for governmental or proprietary use.
2 "Steel products." Products rolled, formed, shaped, drawn,
3 extruded, forged, cast, fabricated or otherwise similarly
4 processed, or processed by a combination of two or more of these
5 operations, from steel made in the United States by the open
6 hearth, basic oxygen, electric furnace, Bessemer or other steel
7 making process. The term includes cast iron products.
8 "United States." The United States of America including all
9 territory, continental or insular, subject to the jurisdiction
10 of the United States.
11 § 3713. Required contract provisions.
12 (a) General rule.--Each contract entered into by a
13 government agency for the construction, reconstruction,
14 alteration, repair, improvement or maintenance of public works
15 shall contain a provision that, if any steel products are to be
16 used or supplied in the performance of the contract, only steel
17 products as defined in this subchapter shall be used or supplied
18 in the performance of the contract or any subcontracts.
19 (b) Exception.--This section does not apply in any case
20 where the head of the government agency, in writing, determines
21 that steel products as defined in this subchapter are not
22 produced in the United States in sufficient quantities to meet
23 the requirements of the contract.
24 § 3714. Payments under contracts.
25 No government agency shall authorize, provide for or make any
26 payments to any person under any contract containing the
27 provision required by section 3713 (relating to required
28 contract provisions) unless the government agency is satisfied
29 that the person has fully complied with section 3713. Any
30 payments made to any person by any government agency which
19830H1291B1524 - 88 -
1 should not have been made as a result of this section shall be
2 recoverable by either the government agency or the Attorney
3 General directly from the contractor or subcontractor who did
4 not comply with section 3713.
5 SUBCHAPTER C
6 TRADE PRACTICES
7 Sec.
8 3721. Short title of subchapter.
9 3722. Definitions.
10 3723. Unlawful acts.
11 3724. Preference.
12 3725. Listing discriminating countries.
13 3726. Determining discrimination.
14 3727. Foreign registry docket.
15 3728. Aluminum or steel products from a discriminating
16 country.
17 § 3721. Short title of subchapter.
18 This subchapter shall be known and may be cited as the Trade
19 Practices Act.
20 § 3722. Definitions.
21 The following words and phrases when used in this subchapter
22 shall have the meanings given to them in this section unless the
23 context clearly indicates otherwise:
24 "Aluminum or steel products made in a foreign country."
25 Aluminum or steel products rolled, formed, shaped, drawn,
26 extruded, forged, cast, fabricated or otherwise similarly
27 processed, or processed by a combination of two or more of these
28 operations, from aluminum or steel not made in the United
29 States.
30 "Court." The Commonwealth Court.
19830H1291B1524 - 89 -
1 "Discriminates." Any act, regulation or policy of a foreign
2 country which, directly or indirectly:
3 (1) Prevents the importation, sale or use of any
4 supplies, materials or equipment manufactured in this
5 Commonwealth.
6 (2) Grants or bestows a preference, discount or other
7 competitive advantage to supplies, materials or equipment
8 manufactured in the foreign country, the effect of which is
9 to place similar supplies, materials or equipment
10 manufactured in this Commonwealth at a competitive
11 disadvantage.
12 (3) Restricts the opportunities for persons having a
13 business situs in this Commonwealth to bid on or compete for
14 government contracts including, but not limited to, a
15 preference for residents of the foreign country.
16 (4) Solicits for awards or negotiates public works
17 contracts on a selective tender basis.
18 (5) Imposes discriminatory duties, tariffs or border
19 taxes on the importation of supplies, materials or equipment
20 not produced in the foreign country, the effect of which is
21 to place supplies, materials, or equipment manufactured in
22 this Commonwealth at a competitive disadvantage with like
23 goods manufactured in any foreign country.
24 (6) Adopts or condones any other unfair method of
25 competition in international trade including, but not limited
26 to, the exportation of aluminum or steel products made in the
27 foreign country through cartels or the subsidization of
28 aluminum or steel products.
29 "Importer." Any person registered and doing business in this
30 Commonwealth who engages in the receiving, storing, distributing
19830H1291B1524 - 90 -
1 or other processing of aluminum or steel products made in a
2 foreign country or who engages in the solicitation or acceptance
3 of orders or contracts for the furnishing of or supplying of
4 aluminum or steel products made in a foreign country.
5 "Public works." Any structure, building, highway, waterway,
6 street, bridge, pier, transit car or system, airport or other
7 betterment, work or improvement whether of a permanent or
8 temporary nature and whether for governmental or proprietary use
9 contracted for by any government agency or financed in whole or
10 in part by any government agency.
11 § 3723. Unlawful acts.
12 It is unlawful for:
13 (1) Any government agency to specify, purchase or permit
14 to be furnished or used, in any public works, aluminum or
15 steel products made in a foreign country which has been
16 determined as discriminating by the court.
17 (2) Any person to sell or offer for sale to any person,
18 for use in any public works, aluminum or steel products made
19 in a foreign country which has been determined as
20 discriminating by the court.
21 § 3724. Preference.
22 If all considerations in or affecting a bid or proposal or a
23 bidder or offeror are equal, each government agency shall give
24 preference to aluminum and steel products made in the United
25 States.
26 § 3725. Listing discriminating countries.
27 Every government agency shall include in all its invitations
28 for bids or requests for proposals, schedules or purchase orders
29 issued for public works a listing of the foreign countries which
30 have been found by the court to discriminate.
19830H1291B1524 - 91 -
1 § 3726. Determining discrimination.
2 (a) Petition.--Any government agency, importer or taxpayer
3 of this Commonwealth may file with the court a petition
4 specifically setting forth alleged discrimination by a foreign
5 country and praying for a determination. A copy of the petition
6 to the court and notice of the time of hearing set by the court
7 shall be served by registered mail, on the consular officer, if
8 any, of the country having an office in this Commonwealth and
9 upon a person in charge of the embassy of the foreign country in
10 Washington, D.C.
11 (b) Hearing.--Upon presentation of a petition filed pursuant
12 to subsection (a), the court shall make an order fixing a time
13 for a hearing. The hearing shall be fixed on a day not later
14 than 45 days after the filing of the petition. The
15 representative of the foreign country and any other interested
16 person may appear and present testimony at the hearing. At the
17 hearing, the court shall consider the statutes, regulations,
18 policies, procedures and practices of the foreign country
19 specified in the petition.
20 § 3727. Foreign registry docket.
21 (a) Entering name in docket.--If, after a hearing, the court
22 determines that the foreign country discriminates, it shall
23 direct the prothonotary of the court to enter the name of the
24 foreign country in a foreign registry docket maintained in the
25 office of the prothonotary.
26 (b) Striking name from docket.--Any foreign country
27 determined to be practicing discrimination may petition the
28 court to have its name stricken from the foreign registry
29 docket. The court shall grant the prayer of the petition if,
30 after hearing, it determines that the foreign country has
19830H1291B1524 - 92 -
1 discontinued and not engaged in discrimination for a period of
2 at least one year prior to the filing of the petition. Notice of
3 the filing of the petition shall be served upon the original
4 petitioner and all other parties to the original petition.
5 § 3728. Aluminum or steel products from a discriminating
6 country.
7 (a) General rule.--It is unlawful for any person, in the
8 performance of a public works contract, subcontract or purchase
9 order, to furnish aluminum or steel products made in a foreign
10 country that is listed on a foreign registry docket. The person
11 or any organization, corporation, partnership, business unit,
12 association or joint venture in which the person has a
13 substantial interest shall not be eligible to bid or submit an
14 offer on or be awarded any contract or subcontract or be issued
15 a purchase order for public works for a period of three years.
16 (b) Persons deemed not in violation.--Notwithstanding
17 subsection (a), a person shall not be held to have violated this
18 subchapter if he has not received notification of the listing as
19 provided in section 3725 (relating to listing discriminating
20 countries) or solely because his subcontractor or supplier of
21 materials violates this subchapter if the person had no
22 knowledge of the violation.
23 SUBCHAPTER D
24 USED OIL PRODUCTS
25 Sec.
26 3741. Preference.
27 § 3741. Preference.
28 As provided for in the act of April 9, 1982 (P.L.314, No.
29 89), known as the Pennsylvania Used Oil Recycling Act,
30 government agencies and persons holding contracts with
19830H1291B1524 - 93 -
1 government agencies shall encourage and, to the extent possible,
2 require the procurement and purchase of recycled oil products as
3 substantially equivalent to products made from new oil.
4 CHAPTER 39
5 CONSTRUCTION CONTRACTS OVER $50,000
6 Sec.
7 3901. Application of chapter.
8 3902. Definitions.
9 3903. Time for awarding contract.
10 3904. Time for executing contract.
11 3905. Release of successful bidder.
12 3906. Retainage.
13 3907. Payment of retainage to subcontractors.
14 3908. Final payment under contract.
15 3909. Arbitration.
16 § 3901. Application of chapter.
17 Except as otherwise specifically provided in this chapter,
18 this chapter applies to contracts entered into by a government
19 agency through competitive sealed bidding or competitive sealed
20 proposals.
21 § 3902. Definitions.
22 The following words and phrases when used in this chapter
23 shall have the meanings given to them in this section unless the
24 context clearly indicates otherwise:
25 "Contract." A contract exceeding $50,000 for construction as
26 defined in section 103 (relating to definitions).
27 "Substantial completion." Construction that is sufficiently
28 completed in accordance with the contract and certified by the
29 architect or engineer of the government agency, as modified by
30 change orders agreed to by the parties, so that the project can
19830H1291B1524 - 94 -
1 be used, occupied or operated for its intended use. In no event
2 shall a project be certified as substantially complete until at
3 least 90% of the work on the project is completed.
4 § 3903. Time for awarding contract.
5 (a) General rule.--In the case of a contract to be entered
6 into by a government agency through competitive sealed bidding,
7 the contract shall be awarded to the lowest responsible and
8 responsive bidder within 60 days of the bid opening or all bids
9 shall be rejected except as otherwise provided in this section.
10 (b) Delay.--If the award is delayed by the required approval
11 of another government agency, the sale of bonds or the award of
12 a grant, the contract shall be awarded to the lowest responsible
13 and responsive bidder within 120 days of the bid opening or all
14 bids shall be rejected.
15 (c) Extensions.--Thirty-day extensions of the date for the
16 award may be made by the mutual written consent of the
17 government agency and the lowest responsible and responsive
18 bidder.
19 § 3904. Time for executing contract.
20 In the case of a contract entered into by a government agency
21 through competitive sealed bidding, the contract shall be
22 executed by the government agency within 30 days of the date
23 that the contract is awarded. The successful bidder and the
24 government agency shall issue a notice to proceed unless the
25 time shall be extended by the mutual written consent of the
26 government agency and the successful bidder.
27 § 3905. Release of successful bidder.
28 Failure of the government agency to comply with the
29 requirements of sections 3903 (relating to time for awarding
30 contract) and 3904 (relating to time for executing contract)
19830H1291B1524 - 95 -
1 shall, unless the successful bidder waives the noncompliance by
2 written notice to the government agency, release the successful
3 bidder from any liability in respect to its bid or contract and
4 entitle all bidders to the immediate return of any bonds or
5 security deposits posted in connection with the bid or contract.
6 § 3906. Retainage.
7 (a) Contract provision.--A contract may include a provision
8 for the retainage of a portion of the amount due the contractor
9 to insure the proper performance of the contract, except that
10 the sum withheld by the government agency from the contractor
11 shall not exceed 10% of the amount due the contractor until 50%
12 of the contract is completed. When the contract is 50%
13 completed, one-half of the amount retained by the government
14 agency shall be returned to the contractor. However, the
15 architect or engineer must approve the application for payment.
16 The contractor must be making satisfactory progress and there
17 must be no specific cause for greater withholding. The sum
18 withheld by the government agency from the contractor after the
19 contract is 50% completed shall not exceed 5% of the value of
20 completed work based on monthly progress payment requests. In
21 the event a dispute arises between the government agency and any
22 prime contractor, which dispute is based upon increased costs
23 claimed by one prime contractor occasioned by delays or other
24 actions of another prime contractor, additional retainage in the
25 sum of one and one-half times the amount of any possible
26 liability may be withheld until a time as a final resolution is
27 agreed to by all parties directly or indirectly involved, unless
28 the contractor causing the additional claim furnishes a bond
29 satisfactory to the government agency to indemnify the agency
30 against the claim. All money retained by the government agency
19830H1291B1524 - 96 -
1 may be withheld from the contractor until substantial completion
2 of the contract.
3 (b) Department of General Services.--Notwithstanding
4 subsection (a), when the Department of General Services is the
5 government agency, the contract may include a provision for the
6 retainage of a portion of the amount due the contractor to
7 insure the proper performance of the contract, except that the
8 sum withheld by the department for the contractor shall not
9 exceed 6% of the then total estimates until 50% of the contract
10 is satisfactorily completed. The sum withheld by the department
11 from the contractor after the contract is 50% satisfactorily
12 completed shall not exceed 3% of the original contract amount.
13 § 3907. Payment of retainage to subcontractors.
14 In the absence of sufficient reason, within 20 days of the
15 receipt of payment by the contractor, the contractor shall pay
16 all subcontractors with whom he has contracted their earned
17 share of the payment the contractor received.
18 § 3908. Final payment under contract.
19 (a) Contract containing provision for retainage.--A contract
20 containing a provision for retainage as provided in section 3906
21 (relating to retainage) shall contain a provision requiring the
22 architect or engineer to make final inspection within 30 days of
23 receipt of the request of the contractor for final inspection
24 and application for final payment. If the work is substantially
25 completed, the architect or engineer shall issue a certificate
26 of completion and a final certificate for payment, and the
27 government agency shall make payment in full within 45 days
28 except as provided in section 3906, less only one and one-half
29 times the amount as is required to complete any then remaining
30 uncompleted minor items, which amount shall be certified by the
19830H1291B1524 - 97 -
1 architect or engineer, and upon receipt by the government agency
2 of any guarantee bonds which may be required, in accordance with
3 the contract, to insure proper workmanship for a designated
4 period of time. The certificate given by the architect or
5 engineer shall list in detail each uncompleted item and a
6 reasonable cost of completion. Final payment of any amount
7 withheld for the completion of the minor items shall be paid
8 upon completion of the items in the certificate of the engineer
9 or architect.
10 (b) Interest.--The final payment due the contractor from the
11 government agency after substantial completion of the contract
12 shall bear interest at a rate of 6% for all contracts without
13 provisions for retainage and at a rate of 10% for all contracts
14 with provisions for retainage, the interest to begin after the
15 date that such payment shall become due and payable to the
16 contractor. However, where the government agency has issued
17 bonds to finance the project, interest shall be payable to the
18 contractor at the rate of interest of the bond issue or at the
19 rate of 10%, whichever is less.
20 § 3909. Arbitration.
21 If a dispute should arise between the contractor and the
22 government agency over the payment of retainages and final
23 payment, then the dispute shall be arbitrated under the
24 applicable terms of the contract. If the contract contains no
25 provision for arbitration, then both parties may mutually agree
26 to arbitrate the dispute through the then obtaining rules of the
27 American Arbitration Association. In any event, either party
28 shall have the right of appeal from any decision and award as
29 provided by law.
30 CHAPTER 41
19830H1291B1524 - 98 -
1 PURCHASE OF SURPLUS FEDERAL PROPERTY
2 Sec.
3 4101. Contracts with United States.
4 4102. Bids and down payments.
5 § 4101. Contracts with United States.
6 Any government agency may enter into a contract with the
7 Federal Government for the purchase, lease or other acquisition,
8 including the warehousing and distribution, of any surplus real
9 or personal Federal property without complying with any
10 requirement of law as to specifications, advertising, award of
11 contract or approval by another government agency. However, any
12 Commonwealth agency may only enter into a contract authorized by
13 this section through the Department of General Services.
14 § 4102. Bids and down payments.
15 Any government agency authorized to enter into a contract
16 under section 4101 (relating to contracts with United States)
17 may designate by appropriate order an office holder or employee
18 of its own to enter a bid in its behalf at any sale of any
19 surplus real or personal Federal property and may authorize the
20 designee to make any down payment or payment in full required in
21 connection with the bidding.
22 CHAPTER 43
23 PUBLIC FACILITIES CONCESSIONS
24 Sec.
25 4301. Short title of chapter.
26 4302. Definitions.
27 4303. Terms of contracts.
28 § 4301. Short title of chapter.
29 This chapter shall be known and may be cited as the Public
30 Facilities Concession Regulation Act.
19830H1291B1524 - 99 -
1 § 4302. Definitions.
2 The following words and phrases when used in this chapter
3 shall have the meanings given to them in this section unless the
4 context clearly indicates otherwise:
5 "Public facility." Any building, airport, school, park,
6 hospital or other structure, grounds or place owned or operated
7 by a government agency, whether for governmental or proprietary
8 use.
9 § 4303. Terms of contracts.
10 (a) General rule.--Each government agency shall require that
11 every contract granting any concession, license, permit or right
12 to sell, lease, contract for or otherwise make available for
13 consideration goods or services to the public in any public
14 facility contain provisions giving the government agency the
15 right to regulate the kinds, quality and prices of the goods and
16 services, upon terms and conditions as may be appropriate.
17 (b) Exceptions.--This section is not intended to apply in
18 any of the following cases:
19 (1) Where the right to regulate price or quality is
20 vested exclusively in or has been preempted by the United
21 States or any of its agencies or another government agency.
22 (2) Where the head of the government agency, in writing,
23 determines that the retention of the right to regulate is not
24 necessary to protect the general welfare.
25 Section 4. This act is intended to provide a complete and
26 exclusive procedure to govern the procurement by Commonwealth
27 agencies of supplies, services and construction, including the
28 disposal of surplus supplies. This act is not intended to
29 enlarge or diminish the authority of any Commonwealth agency to
30 procure supplies, services and construction or to dispose of
19830H1291B1524 - 100 -
1 surplus property. However, the Commonwealth agency must procure
2 the supplies, services and construction or dispose of the
3 surplus supplies through the Department of General Services as
4 its purchasing agent unless the procurement or disposal is
5 exempted by 62 Pa.C.S. § 301 (relating to procurement
6 responsibility).
7 Section 5. The members of the Board of Claims appointed
8 pursuant to the act of May 20, 1937 (P.L.728, No.193), referred
9 to as the Board of Claims Act, repealed by this act, serving as
10 members when this act becomes effective shall continue to serve
11 as members of the board until the term for which they were
12 respectively appointed expires.
13 Section 6. (a) The following acts and parts of acts are
14 repealed:
15 Act of June 25, 1895 (P.L.269, No.182), entitled "An act
16 providing that none but citizens of the United States shall be
17 employed in any capacity in the erection, enlargement or
18 improvement of any public building or public work within this
19 Commonwealth."
20 Act of May 24, 1917 (P.L.260, No.141), entitled "An act
21 regulating the time for advertising for and receiving proposals
22 for furnishing paper, cardboard, cuts, plates, and other
23 supplies for the use of the Commonwealth for executing the
24 public printing, and the time contracts for furnishing such
25 supplies shall run."
26 Act of May 8, 1923 (P.L.161, No.120), entitled "An act
27 providing for and regulating the public printing and binding,
28 the editing for publication and the distribution of all
29 documents, reports, bulletins, and other publications for the
30 use of the Commonwealth, the several departments, boards,
19830H1291B1524 - 101 -
1 commissions, and other agencies engaged in the legislative,
2 judicial, and administrative work of the State Government; the
3 sale of waste paper; the appointment of a director and other
4 employes; and repealing inconsistent and conflicting
5 legislation."
6 Act of April 7, 1925 (P.L.189, No.137), entitled "An act
7 authorizing the Department of Property and Supplies under
8 certain conditions to exchange unservicable personal property of
9 this Commonwealth for, or on account of, the purchase price of
10 new personal property required by the Commonwealth."
11 Sections 478, 507, 508, 510, 511, 515, 522, 523, 709(i) and
12 as much of (j) as reads "to determine the number and type of
13 automobiles to be purchased by the Department of Property and
14 Supplies, acting either on its own behalf or as purchasing
15 agency for any other department, except the Department of the
16 Auditor General and the Treasury Department, or for any board or
17 commission, and", 2003(f), 2401.1(1), (2), (3), (5), (6), (7),
18 (8), (9), (10), (11) and (19), 2402(d), (i), (j) and (n), 2403,
19 2405, 2406(g), 2408, 2409, 2409.1, 2410, 2412 and 2413 of the
20 act of April 9, 1929 (P.L.177, No.175), known as The
21 Administrative Code of 1929.
22 Section 1809 of the act of June 24, 1931 (P.L.1206, No. 331),
23 known as The First Class Township Code.
24 Section 808 of the act of May 1, 1933 (P.L.103, No.69), known
25 as The Second Class Township Code.
26 Act of July 18, 1935 (P.L.1173, No.382), entitled "An act to
27 prohibit discrimination on account of race, creed or color in
28 employment under contracts for public buildings or public
29 works."
30 Act of July 19, 1935 (P.L.1321, No.414), entitled "An act
19830H1291B1524 - 102 -
1 requiring specifications for the construction, alteration, or
2 repair of public works of the Commonwealth, county,
3 municipality, or other subdivisions of the Commonwealth, to
4 contain a provision that the laborers or mechanics employed
5 thereon shall have been residents of this Commonwealth for at
6 least ninety days prior to their employment; and prescribing
7 penalties."
8 Act of May 20, 1937 (P.L.728, No.193), entitled, as amended,
9 "An act providing for the creation of a Board of Claims arising
10 from contracts with the Commonwealth; providing for and
11 regulating the procedure in prosecuting claims before such
12 board; defining the powers of the board; and fixing the
13 compensation of members and employes thereof; providing that the
14 awards of such board shall be final; providing for the payment
15 of awards; and authorizing an appropriation."
16 Section 1401(w), as much of the third sentence as reads
17 "direct, without prior confirmation of the Department of General
18 Services," and the penultimate sentence of section 1401(w) of
19 the act of June 3, 1937 (P.L.1225, No.316), known as The Game
20 Law.
21 Act of April 12, 1945 (P.L.220, No.99), entitled "An act
22 authorizing the Commonwealth and any administrative department,
23 boards, and commissions thereof acting through the Department of
24 Property and Supplies, and political subdivisions of the
25 Commonwealth, including municipal authorities, to enter into
26 contracts with the United States of America, or any agency
27 thereof, for the purchase, lease, or other acquisition of
28 property, real or personal, offered for sale pursuant to the
29 Surplus Property Act of one thousand nine hundred forty-four,
30 without complying with any requirement of existing law as to
19830H1291B1524 - 103 -
1 specifications, advertising, award of contract, and approval of
2 purchases by a State agency receiving competitive bids, or the
3 delivery of property purchased before payment therefor."
4 Sections 404, 404.1, 405 and 405.1 of the act of June 1, 1945
5 (P.L.1242, No.428), known as the State Highway Law.
6 Act of June 10, 1947 (P.L.493, No.223), entitled "An act
7 further prescribing the bonds required of foreign corporations
8 contracting for public buildings, public works or projects."
9 Section 10 of the act of July 5, 1947 (P.L.1217, No.498),
10 known as the State Public School Building Authority Act.
11 Sections 754 and 755 of the act of March 10, 1949 (P.L.30,
12 No.14), known as the Public School Code of 1949.
13 Section 11 of the act of March 31, 1949 (P.L.372, No.34),
14 known as The General State Authority Act of one thousand nine
15 hundred forty-nine.
16 Act of May 5, 1965 (P.L.40, No.34), entitled "An acting
17 authorizing the Commonwealth through the Department of Property
18 and Supplies and its duly authorized bureau or agents, to enter
19 into contracts with the United States of America or any agency
20 thereof, for the acquisition, acceptance, receipt, warehousing
21 and distribution of surplus property of the United States of
22 America pursuant to the 'Federal Property and Administrative
23 Services Act of 1949,' particularly section 203(j) and (k), as
24 amended, and Federal regulations appertaining thereto."
25 Section 1408 of the act of February 1, 1966 (1965 P.L.1656,
26 No.581), known as The Borough Code.
27 Section 12 of the act of December 6, 1967 (P.L.678, No.318),
28 known as The Pennsylvania Higher Educational Facilities
29 Authority Act of 1967.
30 Act of July 23, 1968 (P.L.686, No.226), entitled "An act
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1 equalizing trade practices in public works procurement;
2 authorizing the purchase by the Commonwealth, its political
3 subdivisions, and all public agencies, of aluminum and steel
4 products produced in a foreign country, provided the foreign
5 country does not prohibit or discriminate against the
6 importation to, sale or use in the foreign country of supplies,
7 material or equipment manufactured in this Commonwealth;
8 establishing procedures for determining whether foreign
9 countries discriminate against supplies, materials or equipment
10 manufactured in this Commonwealth; and imposing penalties and
11 providing for relief for violation of this act."
12 Section 4 of the act of November 20, 1968 (P.L.1075, No.329),
13 entitled "An act providing for the growth and development of
14 noncommercial educational television; creating the Pennsylvania
15 Public Television Network Commission as an independent
16 commission and defining its powers and duties."
17 Act of October 26, 1972 (P.L.1017, No.247), entitled "An act
18 relating to the prevention of environment pollution and the
19 preservation of public natural resources in construction
20 projects."
21 Act of March 3, 1978 (P.L.6, No.3), known as the Steel
22 Products Procurement Act.
23 Act of November 26, 1978 (P.L.1303, No.315), known as the
24 Public Facilities Concession Regulation Act.
25 Act of November 26, 1978 (P.L.1309, No.317), entitled "An act
26 awarding and execution of certain public contracts; providing
27 for contract provisions relating to the retention, interest and
28 payment of funds payable under the contracts; and repealing
29 inconsistent acts."
30 30 Pa.C.S. § 521(a)(12) (relating to establishment and use of
19830H1291B1524 - 105 -
1 fish fund) as much as reads "direct" and "in any amount, without
2 prior confirmation of the Department of General Services,".
3 (b) The following acts and parts of acts are repealed
4 insofar as they relate to Commonwealth agencies as defined in 62
5 Pa.C.S. § 103 (relating to definitions):
6 Act of June 12, 1879 (P.L.170, No.187), entitled "An act to
7 carry out the provisions of section twelve, article three, of
8 the constitution, relative to contracts for supplies for the
9 legislature and the various departments of the state
10 government."
11 Act of May 1, 1913 (P.L.155, No.104), entitled "An act
12 regulating the letting of certain contracts for the erection,
13 construction, and alteration of public buildings."
14 Act of June 23, 1931 (P.L.1181, No.321), entitled "An act
15 authorizing persons, co-partnerships, associations, and
16 corporations, who, whether as sub-contractor or otherwise, have
17 furnished material or supplied or performed labor in connection
18 with any public work or improvement, to intervene in or
19 institute actions on certain bonds given to the Commonwealth or
20 to municipal corporations in connection with the performance of
21 public contracts; fixing the time within which such actions must
22 be brought, and the amounts recoverable therein; and providing
23 for distribution of amounts recovered; and prescribing
24 procedure."
25 Act of December 20, 1967 (P.L.869, No.385), known as the
26 Public Works Contractors' Bond Law of 1967.
27 Act of January 23, 1974 (P.L.9, No.4), entitled "An act
28 prescribing the procedure, after the opening of bids, for the
29 withdrawal of bids on certain public contracts, setting forth
30 the rights of the parties involved and providing penalties."
19830H1291B1524 - 106 -
1 (c) The following acts and parts of acts are repealed
2 insofar as they are inconsistent with this act:
3 Act of May 14, 1915 (P.L.524, No.227), entitled "An act
4 creating a fund for the purpose of rebuilding, restoring, and
5 replacing buildings, structures, equipment, or other property of
6 the Commonwealth of Pennsylvania, damaged or destroyed by fire
7 or other casualty, and regulating the placing of insurance
8 thereon, and providing penalties for any violation of the
9 provisions of this act."
10 Sections 509, 1311(c.1), 1902-A(6), 1903-A, 1906-A(4), (8)
11 and (9), 1908-A(3), 1926-A, 2404 and 2407 of the act of April 9,
12 1929 (P.L.177, No.175), known as The Administrative Code of
13 1929.
14 Articles X and XI of the act of April 9, 1929 (P.L.343,
15 No.176), known as The Fiscal Code.
16 Section 10 of the act of August 7, 1936 (1st Sp. Sess.,
17 P.L.106, No.46), entitled "An act relating to flood control;
18 prescribing the powers and duties of the Water and Power
19 Resources Board of the Department of Forests and Waters in
20 relation to the creation of flood control districts, adoption of
21 plans for flood control works and improvements, carrying into
22 effect of such plans, assistance, aid and cooperation with
23 public and private agencies and the Federal Government in
24 Federal flood control works and improvements, and entering into
25 compacts and agreements with other states for flood control
26 works and improvements; conferring the power of eminent domain;
27 imposing certain charges upon the Commonwealth; providing for
28 appeals; and conferring certain powers on municipalities,
29 counties, and townships, the Department of Highways and the
30 Department of Property and Supplies."
19830H1291B1524 - 107 -
1 Sections 906(b), (c) and (d), 907 and the first sentence of
2 section 1401(w) of the act of June 3, 1937 (P.L.1225, No.316),
3 known as The Game Law.
4 Sections 2009-A(9) and 2010-A(10) of the act of March 10,
5 1949 (P.L.30, No.14), known as the Public School Code of 1949.
6 Section 2 of the act of July 7, 1955 (P.L.258, No.82),
7 entitled "An act providing for anthracite mine drainage,
8 contingent on Federal aid, and making an appropriation."
9 Sections 206 and 443.5 of the act of June 13, 1967 (P.L.31,
10 No.21), known as the Public Welfare Code.
11 (d) Nothing in this act shall repeal, modify or supplant the
12 following acts and parts of acts:
13 Sections 516, 1908-A(1)(h) and 2801-A(j) of the act of April
14 9, 1929 (P.L.177, No.175), known as The Administrative Code of
15 1929.
16 Act of July 19, 1957 (P.L.1017, No.451), known as the State
17 Adverse Interest Act.
18 Act of August 15, 1961 (P.L.987, No.442), known as the
19 Pennsylvania Prevailing Wage Act.
20 Act of January 22, 1968 (P.L.42, No.8), known as the
21 Pennsylvania Urban Mass Transportation Law.
22 Act of February 11, 1976 (P.L.14, No.10), known as the
23 Pennsylvania Rural and Intercity Common Carrier Surface
24 Transportation Assistance Act.
25 (e) All other acts and parts of acts are repealed insofar as
26 they are inconsistent with this act.
27 Section 7. This act shall apply to contracts solicited or
28 entered into on or after the effective date unless the parties
29 agree to its application to a contract solicited or entered into
30 prior to the effective date.
19830H1291B1524 - 108 -
1 Section 8. This act shall take effect in 180 days.
F14L62CM/19830H1291B1524 - 109 -