PRINTER'S NO.  1488

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

1192

Session of

2011

  

  

INTRODUCED BY VANCE, ROBBINS, WAUGH, ERICKSON, FARNESE, FERLO AND WASHINGTON, AUGUST 2, 2011

  

  

REFERRED TO STATE GOVERNMENT, AUGUST 2, 2011  

  

  

  

AN ACT

  

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Amending Title 62 (Procurement) of the Pennsylvania Consolidated

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Statutes, further providing for application of part; and

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providing for local government unit roofing projects.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Section 3101 of Title 62 of the Pennsylvania

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Consolidated Statutes is amended to read:

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§ 3101.  Application of part.

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Except for [Chapter] Chapters 46 (relating to electronic

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bidding by local government units) and 47 (relating to local

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government unit roofing projects), which [applies] apply only to

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local government units, this part applies to government

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agencies. In the case of Commonwealth agencies, this part shall

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be read in pari materia with Part I (relating to Commonwealth

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Procurement Code).

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Section 2.  Title 62 is amended by adding a chapter to read:

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CHAPTER 47

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LOCAL GOVERNMENT UNIT ROOFING PROJECTS

 


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Sec.

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4701.  Short title of chapter.

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4702.  Definitions.

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4703.  Roofing project specifications.

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4704.  Prohibited acts.

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4705.  Disclosure of financial interest.

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4706.  Advertisement of prebid meeting and bid opening.

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4707.  Enforcement and remedies.

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4708.  Cooperative purchasing prohibited.

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4709.  Scope of chapter.

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§ 4701.  Short title of chapter.

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This chapter shall be known and may be cited as the Roofing

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Projects Act.

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§ 4702.  Definitions.

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The following words and phrases when used in this chapter

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shall have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Brand name."  Materials unique or proprietary to only one

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manufacturer.

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"Brand name equivalent."  Materials substituted for a brand

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name that:

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(1)  are at least equal in quality, durability, strength,

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appearance, energy efficiency and design, but not necessarily

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of an identical color;

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(2)  will perform at least as well as the function

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imposed by the general design for the roofing project; or

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(3)  will conform substantially, even with deviations, to

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the requirements for the materials in the specifications.

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Materials substituted for brand names will only be considered

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unequal to brand name material if the resulting roof system

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would be substantially different from other equal or better

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systems in terms of performance and durability, not merely

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different by virtue of the inclusion of proprietary products or

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a proprietary warranty.

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"Compensation arrangement."  Any arrangement involving

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remuneration, direct or indirect, in cash or in kind, between

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two or more persons.

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"Contracting officer."  The individual, board, committee or

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agency authorized to enter into and administer contracts and

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make written determinations with respect to contracts on behalf

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of a local government unit.

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"Design professional."  Either a professional engineer as

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defined in the act of May 23, 1945 (P.L.913, No.367), known as

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the Engineer, Land Surveyor and Geologist Registration Law, or

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an architect as defined in accordance with the act of December

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14, 1982 (P.L.1227, No.281), known as the Architects Licensure

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Law, who is retained by the local government unit to draft

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specifications for a roofing project or to advise the

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contracting officer on awarding a roofing contract.

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"Local government unit."  A county, city, borough,

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incorporated town, township, school district, vocational school

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district, county institution district, home rule municipality,

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local authority or any joint or cooperative body of local

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government units or any instrumentality, authority or

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corporation thereof which has authority to enter into a

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contract.

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"Professional consultant."  A design professional or other

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design or construction consultant providing professional

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services related to a roofing contract.

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"Roofing project."  A project to replace or repair a roof of

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a facility owned by a local government unit. The term shall not

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include a project for the repair of 25% or less of the roof or a

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repair project that has a total cost of $10,000 or less.

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"Specifications."  The bid specifications for supplying

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materials to a roofing project.

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§ 4703.  Roofing project specifications.

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(a)  General rule.--Notwithstanding any other provision of

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law, specifications for roofing projects shall be based upon

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generally accepted standards in the commercial roofing industry

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and shall be written to encourage open and competitive bidding

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and to prevent corruption and favoritism in order to achieve the

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best work and materials at the lowest reasonable cost.

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(b)  Preparation of specifications.--The plans and

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specifications for a roofing project shall be prepared by a

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design professional and shall bear the stamp or seal of the

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design professional who prepared the plans or specifications.

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The contracting officer shall require that every design

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professional preparing plans and specifications submit

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verification to the contracting local government unit that the

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design professional holds a valid Pennsylvania license or

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registration and a certification required by section 4705

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(relating to disclosure of financial interest).

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(c)  Brand name specifications.--

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(1)  A local government unit may specify materials by

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brand name in order to signify the kind or quality of

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materials sought. Specifications calling for materials by

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brand name shall be construed as requesting materials of the

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general style, type, character and quality of the materials

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identified by brand name.

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(2)  In response to any specification calling for a brand

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name, a bidder may furnish the brand name or a brand name

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equivalent.

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(d)  Specification features.--None of the following features,

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if present in the specifications for a roofing project, may be

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used to reject materials substituted for a brand name:

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(1)  Requirements applicable to substitute materials or

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bidders proposing the use of substitute materials that differ

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substantially from the requirements to be met by the

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materials named in the specifications.

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(2)  Provisions conferring authority to accept or reject

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substitute materials upon persons other than the contract

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officer acting upon the recommendation of the design

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professional who prepared the specifications.

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(3)  Testing requirements that may be met by only one

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manufacturer's materials. However, specifications may require

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materials to meet standards issued by independent testing

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organizations. In any case in which a material is required to

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meet a certain standard set forth in the specifications, the

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material shall be deemed to do so if it meets or exceeds that

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standard.

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(4)  Testing requirements that are exclusionary due to

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time or expense for compliance.

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(5)  Provisions setting a standard for, or placing a

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restriction on, the use of substitute materials that are not

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related to the purpose, function or activity for which the

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contract is awarded.

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§ 4704.  Prohibited acts.

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(a)  Separate contracts.--A local government unit,

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contracting officer or design professional may not divide a

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roofing project into smaller projects to avoid the application

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of this chapter.

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(b)  Improper influence.--A contracting officer may not

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solicit, accept or agree to accept from another, and no person

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may offer, agree to offer or confer or agree to confer on a

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contracting officer, any pecuniary benefit as consideration for:

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(1)  purchasing or recommending the purchasing of

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materials for a roofing project;

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(2)  the incorporation or recommendation for

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incorporation of materials in the specifications of a roofing

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project;

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(3)  the award or recommendation of an award of a

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contract for a roofing project; or

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(4)  the recommendation, promotion or endorsement of

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materials for a roofing project.

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(c)  Defenses prohibited.--It is no defense to a violation of

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this section that a person whom the actor sought to influence

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was not qualified to act in the desired way because of a lack of

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authority or for any other reason.

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§ 4705.  Disclosure of financial interest.

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(a)  Professional consultants.--A professional consultant

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shall disclose any ownership, investment or compensation

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relationship with any architect, engineer, consultant, materials

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manufacturer, distributor or vendor by completing and signing

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the certification set forth in subsection (d). The certification

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shall be submitted to the contracting local government unit

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prior to the time the professional services are engaged.

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(b)  Manufacturers, contractors and vendors.--A materials

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manufacturer, contractor, vendor or any other party making a bid

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or proposal for a roofing project shall disclose any ownership,

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investment or compensation relationships with any architect,

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engineer, consultant, materials manufacturer, distributor or

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vendor by completing and signing the certification set forth in

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subsection (e). The certification shall be submitted with the

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bid or proposal.

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(c)  Disclosure of employer interest.--For purposes of this

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section, a professional consultant who is employed by a

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partnership, corporation, limited liability company or other

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organization and who owns more than 10% of the employer's

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ownership interests shall disclose the ownership, investment or

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compensation relationships of the employer as if they were held

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personally by the professional consultant.

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(d)  Exception.--For purposes of this section, an ownership

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or investment interest shall not include a holding of less than

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10% of outstanding voting stock of any corporation listed for

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sale to the general public on a national securities exchange and

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registered with the United States Securities and Exchange

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Commission.

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(e)  Certification.--When required in accordance with this

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chapter, a professional consultant, materials manufacturer,

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contractor or vendor shall complete and submit a certification

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in the following form:

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I,                                     (name),

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                                   (name of employer),

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certify that I have not offered, given, or agreed to

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give, received, accepted or agreed to accept, any gift,

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contribution or any financial incentive whatsoever to or

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from any person in connection with the roofing project.

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As used in this certification, "person" means any natural

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person, business, partnership, corporation, union,

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committee, club or other organization, entity or group of

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individuals. Furthermore, I certify that I do not have,

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and throughout the duration of the contract I will not

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have, any financial relationship in connection with the

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performance of this contract with any architect,

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engineer, roofing consultant, materials manufacturer or

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vendor that is not disclosed below.

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I have the following ownership, investment or

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compensation relationships with an architect, engineer,

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roofing consultant, materials manufacturer, distributor

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or vendor:

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I certify that, to the best of my knowledge, the contents

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of this disclosure are true or are believed to be true.

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___________________________________Signature

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___________________________________Date

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___________________________________Print Name

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___________________________________Print Name of Employer

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§ 4706.  Advertisement of prebid meeting and bid opening.

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(a)  Prebid meeting.--In addition to advertising as required

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by any other provision of law, if the contracting officer makes

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the attendance of a bidder at a prebid meeting or conference a

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condition of the acceptance of a bid for a roofing contract, the

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contracting officer shall publish notice of the time and date of

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the prebid meeting twice in one newspaper of general circulation

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published or circulating in the county where the roofing project

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is located at intervals of not less than three days. The first

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notice may not be published less than 14 days prior to the date

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of the meeting. If attendance at a prebid meeting is not

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advertised as required by this section, then a contracting

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officer may not refuse to accept a bid from a bidder on the sole

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basis that the bidder failed to attend the prebid meeting.

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(b)  Bid opening.--In addition to advertising as required by

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any other provision of law, the contracting officer shall

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publish notice of the time and date of the opening of bids for a

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roofing project twice in one newspaper of general circulation

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published or circulating in the county where the roofing project

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is located at intervals of not less than three days. The first

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notice may not be published less than 14 days prior to the date

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fixed for the opening of bids. If the date and time fixed for

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the opening of bids was not advertised in accordance with this

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section, any contracts awarded by the contracting officer after

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the opening of bids are void, and the contracting officer shall

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readvertise a new date and time fixed for the opening of bids as

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required by this section.

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§ 4707.  Enforcement and remedies.

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(a)  Contracts voidable.--A contract awarded in violation of

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this chapter is voidable by the contracting officer.

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(b)  Attorney General.--At any time up to ten calendar days

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after a roofing contract is awarded, a prospective bidder or any

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bidder not awarded the contract may file a complaint with the

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Attorney General or his or her designee alleging that the

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specifications used in the solicitation for, or award of, a

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roofing project contract violate section 4703 (relating to

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roofing project specifications). The person challenging the

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specifications has the burden of demonstrating that the

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specifications violate this chapter. If the Attorney General or

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his or her designee concludes that the specifications do not

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comply with this chapter, the Attorney General or his or her

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designee shall declare any contract awarded void and shall

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direct the contracting officer to revise the specifications and

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reinitiate the solicitation procedure. The contracting officer

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shall provide documentation to the Attorney General certifying

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that the specifications have been modified to comply with this

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chapter. The decision of the Attorney General or his or her

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designee regarding the compliance of the specifications is final

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and may not be appealed.

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(c)  Attorney General.--The Attorney General may petition a

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court with jurisdiction to impose a civil penalty on any person

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who knowingly violates this chapter in an amount not to exceed

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$25,000 per violation, plus any investigative costs incurred and

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documented by the Attorney General.

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(d)  Local government units.--A local government unit may

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bring a civil action in the court of common pleas against any

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person who knowingly provides false information or knowingly

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fails to disclose an ownership, investment or compensation

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relationship in violation of section 4705 (relating to

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disclosure of financial interest). In the event the court finds

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a violation of section 4705, the local government unit may

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recover any costs that, when compared to the competing bids, are

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excessive or unnecessary costs to the local government unit and

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are reasonably attributable to the nondisclosure of the

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financial relationship.

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§ 4708.  Cooperative purchasing prohibited.

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Notwithstanding any other law, a local government unit may

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not procure a roofing project or the materials for a roofing

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project from or though a cooperative-purchasing agency or

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cooperative-purchasing agreement. A local government unit shall

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personally bid its roofing projects according to this act and

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the public-bidding laws applicable to that purchasing entity.

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§ 4709.  Scope of chapter.

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The provisions of this chapter shall preempt and supersede

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any contrary law, ordinance or regulation.

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Section 3.  This act shall apply to roofing project contracts

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initially advertised after the effective date of this act.

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Section 4.  This act shall take effect January 1, 2012.

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