HOUSE AMENDED
PRIOR PRINTER'S NOS. 863, 1298, 1346 PRINTER'S NO. 1655
No. 793 Session of 1973
INTRODUCED BY NOLAN, MESSINGER, ROSS, WADE, W. E. FLEMING AND
CIANFRANI, MAY 9, 1973
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
DECEMBER 4, 1973
AN ACT
1 Prescribing the procedure, after the opening of bids, for the
2 withdrawal of bids on certain public works contracts, setting <--
3 forth the rights of the parties involved and providing
4 penalties.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. As used in this act:
8 (1) "Contracting body" means any officer, employe,
9 authority, board, bureau, commission, department, agency or
10 institution of the Commonwealth of Pennsylvania, or any State-
11 aided institution, or any county, city, district, municipal
12 corporation, municipality, municipal authority, political
13 subdivision, school district, educational institution, borough,
14 incorporated town, township, poor district, county institution
15 district, other incorporated district or other public
16 instrumentality, which has authority to contract for the
17 construction, reconstruction, demolition, alteration or repair
18 of any public building, or other public work or public
1 improvement OR FOR THE PROVISION OF SERVICES TO OR LEASE OF REAL <--
2 OR PERSONAL PROPERTY WHETHER BY LEASE OR CONCESSION FROM SUCH
3 CONTRACTING BODY, excepting highway work.
4 (2) "State-aided institutions" shall mean and include any
5 institution which receives State funds directly or indirectly
6 for the construction, reconstruction, demolition, alteration or
7 repair of its buildings, works or improvements, excepting
8 highway work.
9 Section 2. A bidder to any construction contract for the
10 construction, reconstruction, demolition, alteration or repair
11 of any public building or other public improvement OR FOR THE <--
12 PROVISION OF SERVICES TO OR LEASE OF REAL OR PERSONAL PROPERTY
13 WHETHER BY LEASE OR CONCESSION FROM SUCH CONTRACTING BODY,
14 excepting highway work, may withdraw his bid from consideration
15 after the bid opening without forfeiture of the certified check,
16 bank cashier's check, or surety bid bond OR OTHER SECURITY filed <--
17 with the bid if the price bid was submitted in good faith, and
18 the bidder submits credible evidence that the reason for the
19 price bid being substantially lower was a clerical mistake as
20 opposed to a judgment mistake, and was actually due to an
21 unintentional and substantial arithmetical error or an
22 unintentional omission of a substantial quantity of work, labor,
23 or material MATERIAL OR SERVICES made directly in the <--
24 compilation of the bid; provided, (i) notice of a claim of the
25 right to withdraw such bid is made in writing with the
26 contracting body within two business days after the opening of
27 bids; and (ii) the withdrawal of the bid would not result in the
28 awarding of the contract or ON another bid of the same bidder, <--
29 including joint ventures. HIS PARTNER, OR TO A CORPORATION OR <--
30 BUSINESS VENTURE OWNED BY OR IN WHICH HE HAS A SUBSTANTIAL
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1 INTEREST. No bidder who is permitted to withdraw a bid shall
2 supply any material or labor to, or perform any subcontract or
3 other work agreement for any person to whom a contract or
4 subcontract is awarded in the performance of the construction <--
5 project CONTRACT for which the withdrawn bid was submitted, <--
6 without the written approval of the contracting body. THE <--
7 CONTRACTING BODY MAY PREPARE REGULATIONS TO CARRY OUT THE INTENT
8 AND PURPOSES OF THE ACT.
9 Section 3. If a bid is withdrawn in accordance with the
10 provisions of this act, the contracting body may award the
11 contract to the next lowest bidder or reject all bids and
12 resubmit the project for bidding. In the event the contracting
13 body resubmits the project for bidding the withdrawing bidder
14 shall pay the costs, in connection with the resubmission, of
15 printing new contract documents, required advertising, and
16 printing and mailing notices to prospective bidders, if the
17 contracting authority finds that such costs would not have been
18 incurred but for such withdrawal. In no event shall the
19 withdrawing bidder be permitted to resubmit a bid for the
20 project.
21 Section 4. (a) If the contracting body intends to contest
22 the right of a bidder to withdraw a bid, it shall hold a hearing
23 thereon within ten BUSINESS days after the opening of such bids <--
24 and issue an order allowing or denying the claim of such right
25 within five days after the hearing. The contracting body shall
26 give to the withdrawing bidder timely and reasonable notice of
27 the time and place of any such hearing. The contracting body
28 shall make a stenographic record of all testimony and other
29 evidence presented at the hearing. Such order may be arbitrated
30 under the applicable terms of the bidding documents or, if the
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1 bidding documents contain no such provision for arbitration, the
2 then obtaining CURRENT rules of the American Arbitration <--
3 Association.
4 (b) If the contracting body denies the claim for withdrawal
5 and the bidder elects to arbitrate the matter or otherwise
6 refuses to perform, the contracting body may proceed immediately
7 in accordance with the provisions of this act. If it is finally
8 determined in accordance with the provisions of this section
9 that the bidder did not have the right to withdraw the bid
10 pursuant to the provisions of this act the certified check, bank
11 cashier's check, or surety bid bond OR OTHER SECURITY furnished <--
12 as the proposal guaranty shall be forfeited as liquidated
13 damages.
14 Section 5. Neither the contracting body nor any elected or
15 appointed official, employe, representative or agent of such
16 contracting body shall incur any liability or surcharge, in the
17 absence of fraud or collusion, by permitting the withdrawal of a
18 bid pursuant to the provisions of this act.
19 Section 6. Whoever violates section 2 of this act
20 prohibiting a withdrawing bidder from supplying any labor or
21 material or performing any subcontract for any person performing
22 work on the construction project without the approval of the
23 contracting body is guilty of a misdemeanor and shall, upon
24 conviction thereof, be fined not more than twenty-five thousand
25 dollars ($25,000) or undergo imprisonment for not less than one
26 nor more than two years, or both.
27 Section 7. All acts and parts of acts, general, local and
28 special, are repealed in so far as inconsistent herewith.
29 Section 8. This act shall not be applicable to any contract
30 awarded pursuant to an invitation for bids issued on or before
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1 its effective date.
2 Section 9. This act shall take effect thirty days after its
3 enactment.
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