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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY VANCE, ROBBINS, WAUGH, ERICKSON, FARNESE, FERLO AND WASHINGTON, AUGUST 2, 2011 |
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| REFERRED TO STATE GOVERNMENT, AUGUST 2, 2011 |
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| AN ACT |
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1 | Amending Title 62 (Procurement) of the Pennsylvania Consolidated |
2 | Statutes, further providing for application of part; and |
3 | providing for local government unit roofing projects. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Section 3101 of Title 62 of the Pennsylvania |
7 | Consolidated Statutes is amended to read: |
8 | § 3101. Application of part. |
9 | Except for [Chapter] Chapters 46 (relating to electronic |
10 | bidding by local government units) and 47 (relating to local |
11 | government unit roofing projects), which [applies] apply only to |
12 | local government units, this part applies to government |
13 | agencies. In the case of Commonwealth agencies, this part shall |
14 | be read in pari materia with Part I (relating to Commonwealth |
15 | Procurement Code). |
16 | Section 2. Title 62 is amended by adding a chapter to read: |
17 | CHAPTER 47 |
18 | LOCAL GOVERNMENT UNIT ROOFING PROJECTS |
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1 | Sec. |
2 | 4701. Short title of chapter. |
3 | 4702. Definitions. |
4 | 4703. Roofing project specifications. |
5 | 4704. Prohibited acts. |
6 | 4705. Disclosure of financial interest. |
7 | 4706. Advertisement of prebid meeting and bid opening. |
8 | 4707. Enforcement and remedies. |
9 | 4708. Cooperative purchasing prohibited. |
10 | 4709. Scope of chapter. |
11 | § 4701. Short title of chapter. |
12 | This chapter shall be known and may be cited as the Roofing |
13 | Projects Act. |
14 | § 4702. Definitions. |
15 | The following words and phrases when used in this chapter |
16 | shall have the meanings given to them in this section unless the |
17 | context clearly indicates otherwise: |
18 | "Brand name." Materials unique or proprietary to only one |
19 | manufacturer. |
20 | "Brand name equivalent." Materials substituted for a brand |
21 | name that: |
22 | (1) are at least equal in quality, durability, strength, |
23 | appearance, energy efficiency and design, but not necessarily |
24 | of an identical color; |
25 | (2) will perform at least as well as the function |
26 | imposed by the general design for the roofing project; or |
27 | (3) will conform substantially, even with deviations, to |
28 | the requirements for the materials in the specifications. |
29 | Materials substituted for brand names will only be considered |
30 | unequal to brand name material if the resulting roof system |
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1 | would be substantially different from other equal or better |
2 | systems in terms of performance and durability, not merely |
3 | different by virtue of the inclusion of proprietary products or |
4 | a proprietary warranty. |
5 | "Compensation arrangement." Any arrangement involving |
6 | remuneration, direct or indirect, in cash or in kind, between |
7 | two or more persons. |
8 | "Contracting officer." The individual, board, committee or |
9 | agency authorized to enter into and administer contracts and |
10 | make written determinations with respect to contracts on behalf |
11 | of a local government unit. |
12 | "Design professional." Either a professional engineer as |
13 | defined in the act of May 23, 1945 (P.L.913, No.367), known as |
14 | the Engineer, Land Surveyor and Geologist Registration Law, or |
15 | an architect as defined in accordance with the act of December |
16 | 14, 1982 (P.L.1227, No.281), known as the Architects Licensure |
17 | Law, who is retained by the local government unit to draft |
18 | specifications for a roofing project or to advise the |
19 | contracting officer on awarding a roofing contract. |
20 | "Local government unit." A county, city, borough, |
21 | incorporated town, township, school district, vocational school |
22 | district, county institution district, home rule municipality, |
23 | local authority or any joint or cooperative body of local |
24 | government units or any instrumentality, authority or |
25 | corporation thereof which has authority to enter into a |
26 | contract. |
27 | "Professional consultant." A design professional or other |
28 | design or construction consultant providing professional |
29 | services related to a roofing contract. |
30 | "Roofing project." A project to replace or repair a roof of |
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1 | a facility owned by a local government unit. The term shall not |
2 | include a project for the repair of 25% or less of the roof or a |
3 | repair project that has a total cost of $10,000 or less. |
4 | "Specifications." The bid specifications for supplying |
5 | materials to a roofing project. |
6 | § 4703. Roofing project specifications. |
7 | (a) General rule.--Notwithstanding any other provision of |
8 | law, specifications for roofing projects shall be based upon |
9 | generally accepted standards in the commercial roofing industry |
10 | and shall be written to encourage open and competitive bidding |
11 | and to prevent corruption and favoritism in order to achieve the |
12 | best work and materials at the lowest reasonable cost. |
13 | (b) Preparation of specifications.--The plans and |
14 | specifications for a roofing project shall be prepared by a |
15 | design professional and shall bear the stamp or seal of the |
16 | design professional who prepared the plans or specifications. |
17 | The contracting officer shall require that every design |
18 | professional preparing plans and specifications submit |
19 | verification to the contracting local government unit that the |
20 | design professional holds a valid Pennsylvania license or |
21 | registration and a certification required by section 4705 |
22 | (relating to disclosure of financial interest). |
23 | (c) Brand name specifications.-- |
24 | (1) A local government unit may specify materials by |
25 | brand name in order to signify the kind or quality of |
26 | materials sought. Specifications calling for materials by |
27 | brand name shall be construed as requesting materials of the |
28 | general style, type, character and quality of the materials |
29 | identified by brand name. |
30 | (2) In response to any specification calling for a brand |
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1 | name, a bidder may furnish the brand name or a brand name |
2 | equivalent. |
3 | (d) Specification features.--None of the following features, |
4 | if present in the specifications for a roofing project, may be |
5 | used to reject materials substituted for a brand name: |
6 | (1) Requirements applicable to substitute materials or |
7 | bidders proposing the use of substitute materials that differ |
8 | substantially from the requirements to be met by the |
9 | materials named in the specifications. |
10 | (2) Provisions conferring authority to accept or reject |
11 | substitute materials upon persons other than the contract |
12 | officer acting upon the recommendation of the design |
13 | professional who prepared the specifications. |
14 | (3) Testing requirements that may be met by only one |
15 | manufacturer's materials. However, specifications may require |
16 | materials to meet standards issued by independent testing |
17 | organizations. In any case in which a material is required to |
18 | meet a certain standard set forth in the specifications, the |
19 | material shall be deemed to do so if it meets or exceeds that |
20 | standard. |
21 | (4) Testing requirements that are exclusionary due to |
22 | time or expense for compliance. |
23 | (5) Provisions setting a standard for, or placing a |
24 | restriction on, the use of substitute materials that are not |
25 | related to the purpose, function or activity for which the |
26 | contract is awarded. |
27 | § 4704. Prohibited acts. |
28 | (a) Separate contracts.--A local government unit, |
29 | contracting officer or design professional may not divide a |
30 | roofing project into smaller projects to avoid the application |
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1 | of this chapter. |
2 | (b) Improper influence.--A contracting officer may not |
3 | solicit, accept or agree to accept from another, and no person |
4 | may offer, agree to offer or confer or agree to confer on a |
5 | contracting officer, any pecuniary benefit as consideration for: |
6 | (1) purchasing or recommending the purchasing of |
7 | materials for a roofing project; |
8 | (2) the incorporation or recommendation for |
9 | incorporation of materials in the specifications of a roofing |
10 | project; |
11 | (3) the award or recommendation of an award of a |
12 | contract for a roofing project; or |
13 | (4) the recommendation, promotion or endorsement of |
14 | materials for a roofing project. |
15 | (c) Defenses prohibited.--It is no defense to a violation of |
16 | this section that a person whom the actor sought to influence |
17 | was not qualified to act in the desired way because of a lack of |
18 | authority or for any other reason. |
19 | § 4705. Disclosure of financial interest. |
20 | (a) Professional consultants.--A professional consultant |
21 | shall disclose any ownership, investment or compensation |
22 | relationship with any architect, engineer, consultant, materials |
23 | manufacturer, distributor or vendor by completing and signing |
24 | the certification set forth in subsection (d). The certification |
25 | shall be submitted to the contracting local government unit |
26 | prior to the time the professional services are engaged. |
27 | (b) Manufacturers, contractors and vendors.--A materials |
28 | manufacturer, contractor, vendor or any other party making a bid |
29 | or proposal for a roofing project shall disclose any ownership, |
30 | investment or compensation relationships with any architect, |
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1 | engineer, consultant, materials manufacturer, distributor or |
2 | vendor by completing and signing the certification set forth in |
3 | subsection (e). The certification shall be submitted with the |
4 | bid or proposal. |
5 | (c) Disclosure of employer interest.--For purposes of this |
6 | section, a professional consultant who is employed by a |
7 | partnership, corporation, limited liability company or other |
8 | organization and who owns more than 10% of the employer's |
9 | ownership interests shall disclose the ownership, investment or |
10 | compensation relationships of the employer as if they were held |
11 | personally by the professional consultant. |
12 | (d) Exception.--For purposes of this section, an ownership |
13 | or investment interest shall not include a holding of less than |
14 | 10% of outstanding voting stock of any corporation listed for |
15 | sale to the general public on a national securities exchange and |
16 | registered with the United States Securities and Exchange |
17 | Commission. |
18 | (e) Certification.--When required in accordance with this |
19 | chapter, a professional consultant, materials manufacturer, |
20 | contractor or vendor shall complete and submit a certification |
21 | in the following form: |
22 | I, (name), |
23 | (name of employer), |
24 | certify that I have not offered, given, or agreed to |
25 | give, received, accepted or agreed to accept, any gift, |
26 | contribution or any financial incentive whatsoever to or |
27 | from any person in connection with the roofing project. |
28 | As used in this certification, "person" means any natural |
29 | person, business, partnership, corporation, union, |
30 | committee, club or other organization, entity or group of |
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1 | individuals. Furthermore, I certify that I do not have, |
2 | and throughout the duration of the contract I will not |
3 | have, any financial relationship in connection with the |
4 | performance of this contract with any architect, |
5 | engineer, roofing consultant, materials manufacturer or |
6 | vendor that is not disclosed below. |
7 | I have the following ownership, investment or |
8 | compensation relationships with an architect, engineer, |
9 | roofing consultant, materials manufacturer, distributor |
10 | or vendor: |
11 | I certify that, to the best of my knowledge, the contents |
12 | of this disclosure are true or are believed to be true. |
13 | ___________________________________Signature |
14 | ___________________________________Date |
15 | ___________________________________Print Name |
16 | ___________________________________Print Name of Employer |
17 | § 4706. Advertisement of prebid meeting and bid opening. |
18 | (a) Prebid meeting.--In addition to advertising as required |
19 | by any other provision of law, if the contracting officer makes |
20 | the attendance of a bidder at a prebid meeting or conference a |
21 | condition of the acceptance of a bid for a roofing contract, the |
22 | contracting officer shall publish notice of the time and date of |
23 | the prebid meeting twice in one newspaper of general circulation |
24 | published or circulating in the county where the roofing project |
25 | is located at intervals of not less than three days. The first |
26 | notice may not be published less than 14 days prior to the date |
27 | of the meeting. If attendance at a prebid meeting is not |
28 | advertised as required by this section, then a contracting |
29 | officer may not refuse to accept a bid from a bidder on the sole |
30 | basis that the bidder failed to attend the prebid meeting. |
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1 | (b) Bid opening.--In addition to advertising as required by |
2 | any other provision of law, the contracting officer shall |
3 | publish notice of the time and date of the opening of bids for a |
4 | roofing project twice in one newspaper of general circulation |
5 | published or circulating in the county where the roofing project |
6 | is located at intervals of not less than three days. The first |
7 | notice may not be published less than 14 days prior to the date |
8 | fixed for the opening of bids. If the date and time fixed for |
9 | the opening of bids was not advertised in accordance with this |
10 | section, any contracts awarded by the contracting officer after |
11 | the opening of bids are void, and the contracting officer shall |
12 | readvertise a new date and time fixed for the opening of bids as |
13 | required by this section. |
14 | § 4707. Enforcement and remedies. |
15 | (a) Contracts voidable.--A contract awarded in violation of |
16 | this chapter is voidable by the contracting officer. |
17 | (b) Attorney General.--At any time up to ten calendar days |
18 | after a roofing contract is awarded, a prospective bidder or any |
19 | bidder not awarded the contract may file a complaint with the |
20 | Attorney General or his or her designee alleging that the |
21 | specifications used in the solicitation for, or award of, a |
22 | roofing project contract violate section 4703 (relating to |
23 | roofing project specifications). The person challenging the |
24 | specifications has the burden of demonstrating that the |
25 | specifications violate this chapter. If the Attorney General or |
26 | his or her designee concludes that the specifications do not |
27 | comply with this chapter, the Attorney General or his or her |
28 | designee shall declare any contract awarded void and shall |
29 | direct the contracting officer to revise the specifications and |
30 | reinitiate the solicitation procedure. The contracting officer |
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1 | shall provide documentation to the Attorney General certifying |
2 | that the specifications have been modified to comply with this |
3 | chapter. The decision of the Attorney General or his or her |
4 | designee regarding the compliance of the specifications is final |
5 | and may not be appealed. |
6 | (c) Attorney General.--The Attorney General may petition a |
7 | court with jurisdiction to impose a civil penalty on any person |
8 | who knowingly violates this chapter in an amount not to exceed |
9 | $25,000 per violation, plus any investigative costs incurred and |
10 | documented by the Attorney General. |
11 | (d) Local government units.--A local government unit may |
12 | bring a civil action in the court of common pleas against any |
13 | person who knowingly provides false information or knowingly |
14 | fails to disclose an ownership, investment or compensation |
15 | relationship in violation of section 4705 (relating to |
16 | disclosure of financial interest). In the event the court finds |
17 | a violation of section 4705, the local government unit may |
18 | recover any costs that, when compared to the competing bids, are |
19 | excessive or unnecessary costs to the local government unit and |
20 | are reasonably attributable to the nondisclosure of the |
21 | financial relationship. |
22 | § 4708. Cooperative purchasing prohibited. |
23 | Notwithstanding any other law, a local government unit may |
24 | not procure a roofing project or the materials for a roofing |
25 | project from or though a cooperative-purchasing agency or |
26 | cooperative-purchasing agreement. A local government unit shall |
27 | personally bid its roofing projects according to this act and |
28 | the public-bidding laws applicable to that purchasing entity. |
29 | § 4709. Scope of chapter. |
30 | The provisions of this chapter shall preempt and supersede |
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1 | any contrary law, ordinance or regulation. |
2 | Section 3. This act shall apply to roofing project contracts |
3 | initially advertised after the effective date of this act. |
4 | Section 4. This act shall take effect January 1, 2012. |
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