HOUSE AMENDED PRIOR PRINTER'S NOS. 807, 2220 PRINTER'S NO. 2371
No. 743 Session of 1989
INTRODUCED BY STOUT, CORMAN, STEWART, BRIGHTBILL, PUNT, LEMMOND, PORTERFIELD, WENGER, MADIGAN, AFFLERBACH, REIBMAN AND PETERSON, MARCH 23, 1989
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, JUNE 26, 1990
AN ACT 1 Amending the act of February 1, 1966 (1965 P.L.1656, No.581), 2 entitled "An act concerning boroughs, and revising, amending 3 and consolidating the law relating to boroughs," FURTHER <-- 4 PROVIDING FOR THE DISPLAY OF FLAGS; further providing for the 5 awarding of contracts; AND PROVIDING A PENALTY. <-- 6 The General Assembly of the Commonwealth of Pennsylvania 7 hereby enacts as follows: 8 SECTION 1. SECTION 1202(42) OF THE ACT OF FEBRUARY 1, 1966 <-- 9 (1965 P.L.1656, NO.581), KNOWN AS THE BOROUGH CODE, IS AMENDED 10 TO READ: 11 SECTION 1202. SPECIFIC POWERS.--THE POWERS OF THE BOROUGH 12 SHALL BE VESTED IN THE CORPORATE AUTHORITIES. AMONG THE SPECIFIC 13 POWERS OF THE BOROUGH SHALL BE THE FOLLOWING, AND IN THE 14 EXERCISE OF ANY OF SUCH POWERS INVOLVING THE ENACTMENT OF ANY 15 ORDINANCE OR THE MAKING OF ANY REGULATION, RESTRICTION OR 16 PROHIBITION, THE BOROUGH MAY PROVIDE FOR THE ENFORCEMENT THEREOF 17 AND MAY PRESCRIBE PENALTIES FOR THE VIOLATION THEREOF OR FOR THE 18 FAILURE TO CONFORM THERETO:
1 * * * 2 (42) FLAGS. TO DISPLAY THE FLAG OF THE UNITED STATES OF 3 AMERICA, OF THE COMMONWEALTH OF PENNSYLVANIA, THE OFFICIAL 4 POW/MIA FLAG OR THE FLAG OF ANY COUNTY, CITY, BOROUGH OR OTHER 5 MUNICIPALITY IN THE STATE, ON THE PUBLIC BUILDINGS OR GROUNDS 6 AND IN PUBLIC PLACES OF THE BOROUGH. 7 * * * 8 Section 1 2. Subsection (a) and the first paragraph and <-- 9 clause (2) of subsection (d) of section 1402, and sections 1403 <-- 10 and 1405, of the act of February 1, 1966 (1965 P.L.1656, <-- 11 No.581), known as The Borough Code, amended December 22, 1981 12 (P.L.537, No.155), are amended AND FEBRUARY 14, 1990 (P.L.60, <-- 13 NO.10), ARE AMENDED AND THE SECTION IS AMENDED BY ADDING 14 SUBSECTIONS A SUBSECTION to read: <-- 15 Section 1402. Regulation of Contracts.--(a) All contracts <-- 16 or purchases in excess of [four thousand dollars ($4,000)] ten 17 thousand dollars ($10,000), except those hereinafter mentioned, 18 shall not be made except with and from the lowest responsible 19 bidder after due notice in one newspaper of general circulation 20 in the borough, at least three times at intervals of not less 21 than three days where daily newspapers of general circulation 22 are available for such publication, in case of weekly 23 newspapers, such notice once a week for two successive weeks. 24 The first advertisement shall be published not less than ten 25 days prior to the date fixed for the opening of bids. The amount 26 of the contract shall in all cases, whether of straight sale 27 price, conditional sale, bailment lease, or otherwise, be the 28 entire amount which the borough pays to the successful bidder or 29 his assigns in order to obtain the services or property, or 30 both, and shall not be construed to mean only the amount which 19890S0743B2371 - 2 -
1 is paid to acquire title or to receive any other particular 2 benefit or benefits of the whole bargain. In awarding bids, 3 council shall have the right to take into consideration such 4 other factors as the availability, cost and quality of service. 5 SECTION 1402. REGULATION OF CONTRACTS.--(A) ALL CONTRACTS <-- 6 OR PURCHASES IN EXCESS OF [FOUR THOUSAND DOLLARS ($4,000)] THE <-- 7 MONETARY THRESHOLD LEVEL FOR THE BOROUGH TEN THOUSAND DOLLARS 8 ($10,000), EXCEPT THOSE HEREINAFTER MENTIONED, SHALL NOT BE MADE 9 EXCEPT WITH AND FROM THE LOWEST RESPONSIBLE BIDDER AFTER DUE 10 NOTICE IN ONE NEWSPAPER OF GENERAL CIRCULATION IN THE BOROUGH, 11 AT LEAST TWO TIMES AT INTERVALS OF NOT LESS THAN THREE DAYS 12 WHERE DAILY NEWSPAPERS OF GENERAL CIRCULATION ARE AVAILABLE FOR 13 SUCH PUBLICATION, IN CASE OF WEEKLY NEWSPAPERS, SUCH NOTICE ONCE 14 A WEEK FOR TWO SUCCESSIVE WEEKS. THE FIRST ADVERTISEMENT SHALL 15 BE PUBLISHED NOT MORE THAN FORTY-FIVE DAYS AND THE SECOND 16 ADVERTISEMENT NOT LESS THAN TEN DAYS PRIOR TO THE DATE FIXED FOR 17 THE OPENING OF BIDS. ADVERTISEMENTS FOR CONTRACTS OR PURCHASES 18 SHALL ALSO BE POSTED IN A CONSPICUOUS PLACE WITHIN THE BOROUGH. 19 THE AMOUNT OF THE CONTRACT SHALL IN ALL CASES, WHETHER OF 20 STRAIGHT SALE PRICE, CONDITIONAL SALE, BAILMENT LEASE, OR 21 OTHERWISE, BE THE ENTIRE AMOUNT WHICH THE BOROUGH PAYS TO THE 22 SUCCESSFUL BIDDER OR HIS ASSIGNS IN ORDER TO OBTAIN THE SERVICES 23 OR PROPERTY, OR BOTH, AND SHALL NOT BE CONSTRUED TO MEAN ONLY 24 THE AMOUNT WHICH IS PAID TO ACQUIRE TITLE OR TO RECEIVE ANY 25 OTHER PARTICULAR BENEFIT OR BENEFITS OF THE WHOLE BARGAIN. IN 26 AWARDING BIDS, COUNCIL SHALL HAVE THE RIGHT TO TAKE INTO 27 CONSIDERATION SUCH OTHER FACTORS AS THE AVAILABILITY, COST AND 28 QUALITY OF SERVICE. 29 (A.1) THE MONETARY THRESHOLD LEVEL ABOVE WHICH COMPETITIVE <-- 30 BIDDING SHALL BE REQUIRED SHALL BE ONE PER CENTUM (1%) OF THE 19890S0743B2371 - 3 -
1 TOTAL OF ALL BUDGETS ADMINISTERED BY THE BOROUGH, BUT IN NO CASE 2 SHALL THE MONETARY THRESHOLD BE LESS THAN FOUR THOUSAND DOLLARS 3 ($4,000), NOR MORE THAN TEN THOUSAND DOLLARS ($10,000). 4 (A.2) (A.1) WRITTEN OR TELEPHONIC PRICE QUOTATIONS FROM AT 5 LEAST THREE QUALIFIED AND RESPONSIBLE CONTRACTORS SHALL BE 6 REQUESTED FOR ALL CONTRACTS THAT EXCEED FOUR THOUSAND DOLLARS 7 ($4,000) BUT ARE LESS THAN THE AMOUNT REQUIRING ADVERTISEMENT 8 AND COMPETITIVE BIDDING OR, IN LIEU OF PRICE QUOTATIONS, A 9 MEMORANDUM SHALL BE KEPT ON FILE SHOWING THAT FEWER THAN THREE 10 QUALIFIED CONTRACTORS EXIST IN THE MARKET AREA WITHIN WHICH IT 11 IS PRACTICABLE TO OBTAIN QUOTATIONS. A WRITTEN RECORD OF 12 TELEPHONIC PRICE QUOTATIONS SHALL BE MADE AND SHALL CONTAIN AT 13 LEAST THE DATE OF THE QUOTATION, THE NAME OF THE CONTRACTOR AND 14 THE CONTRACTOR'S REPRESENTATIVE, THE CONSTRUCTION, 15 RECONSTRUCTION, REPAIR, MAINTENANCE OR WORK WHICH WAS THE 16 SUBJECT OF THE QUOTATION AND THE PRICE. WRITTEN PRICE 17 QUOTATIONS, WRITTEN RECORDS OF TELEPHONIC PRICE QUOTATIONS AND 18 MEMORANDA SHALL BE RETAINED FOR A PERIOD OF THREE YEARS. 19 * * * 20 (d) The contracts or purchases made by council, involving an 21 expenditure of over [four thousand dollars ($4,000)] ten <-- 22 thousand dollars ($10,000) THE MONETARY THRESHOLD LEVEL FOR THE <-- 23 BOROUGH TEN THOUSAND DOLLARS ($10,000), which shall not require 24 advertising or bidding as hereinbefore provided, are as follows: 25 * * * 26 (2) Those made for improvements, repairs and maintenance of 27 any kind, made or provided by any borough, through its own 28 employes: Provided, That all materials used for street 29 improvement, maintenance and/or construction in excess of [four 30 thousand dollars ($4,000)] ten thousand dollars ($10,000) THE <-- 19890S0743B2371 - 4 -
1 MONETARY THRESHOLD LEVEL FOR THE BOROUGH TEN THOUSAND DOLLARS 2 ($10,000) be subject to the advertising requirements contained 3 herein; 4 * * * 5 SECTION 2 3. SECTIONS 1403 AND 1405 OF THE ACT, AMENDED <-- 6 DECEMBER 22, 1981 (P.L.537, NO.155), ARE AMENDED TO READ: 7 Section 1403. Evasion of Advertising Requirements.--(A) No <-- 8 member or members of council shall evade the provisions of 9 section 1402 hereof as to advertising for bids, by purchasing or 10 contracting for services and personal properties piecemeal for 11 the purpose of obtaining prices under [four thousand dollars 12 ($4,000)] ten thousand dollars ($10,000) THE MONETARY THRESHOLD <-- 13 LEVEL FOR THE BOROUGH TEN THOUSAND DOLLARS ($10,000) upon 14 transactions, which transactions should, in the exercise of 15 reasonable discretion and prudence, be conducted as one 16 transaction amounting to more than [four thousand dollars 17 ($4,000)] ten thousand dollars ($10,000) THE MONETARY THRESHOLD <-- 18 LEVEL FOR THE BOROUGH TEN THOUSAND DOLLARS ($10,000). This 19 provision is intended to make unlawful the evading of 20 advertising requirements by making a series of purchases or 21 contracts, each for less than the advertising requirement price, 22 or by making several simultaneous purchases or contracts, each 23 below said price, when, in either case, the transactions 24 involved should have been made as one transaction for one price. 25 Any members of council who so vote in violation of this 26 provision and who know that the transaction upon which they so 27 vote is or ought to be a part of a larger transaction and that 28 it is being divided in order to evade the requirements as to 29 advertising for bids, shall be jointly and severally subject to 30 surcharge for ten percent of the full amount of the contract or 19890S0743B2371 - 5 -
1 purchase. Whenever it shall appear that a member of council may 2 have voted in violation of this section but the purchase or 3 contract on which he so voted was not approved by council, this 4 section shall be inapplicable. 5 (B) ANY COUNCIL MEMBER WHO VOTES TO UNLAWFULLY EVADE THE <-- 6 PROVISIONS OF SECTION 1402 AND WHO KNOWS THAT THE TRANSACTION 7 UPON WHICH HE SO VOTES IS OR OUGHT TO BE A PART OF A LARGER 8 TRANSACTION AND THAT IT IS BEING DIVIDED IN ORDER TO EVADE THE 9 REQUIREMENTS AS TO ADVERTISING FOR BIDS, COMMITS A MISDEMEANOR 10 OF THE THIRD DEGREE FOR EACH CONTRACT ENTERED INTO AS A DIRECT 11 RESULT OF THAT VOTE. THIS PENALTY SHALL BE IN ADDITION TO ANY 12 SURCHARGE WHICH MAY BE ASSESSED PURSUANT TO SUBSECTION (A). 13 Section 1405. Separate Bids for Plumbing, Heating, 14 Ventilating and Electrical Work.--In the preparation for the 15 erection, construction and alteration of any public building, 16 when the entire cost of such work shall exceed [four thousand 17 dollars ($4,000)] ten thousand dollars ($10,000) THE MONETARY <-- 18 THRESHOLD LEVEL FOR THE BOROUGH TEN THOUSAND DOLLARS ($10,000), 19 the architect, engineer, or other person preparing such 20 specifications may, if so requested by the borough council, 21 prepare separate specifications for the plumbing, heating, 22 ventilating and electrical work. The person or persons 23 authorized to enter into contracts for the erection, 24 construction or alteration of such public buildings may, if such 25 separate specifications shall have been proposed, receive 26 separate bids upon each of the said branches of work and shall 27 thereupon award the contract for the same to the lowest 28 responsible bidder for each of said branches. 29 Section 2 3 4. This act shall take effect in 60 days. <-- B13L08JRW/19890S0743B2371 - 6 -