HOUSE AMENDED
PRIOR PRINTER'S NOS. 228, 1100, 1478, PRINTER'S NO. 1808
1574, 1661
No. 5 Session of 1997
INTRODUCED BY THOMPSON, LOEPER, GERLACH, TOMLINSON, SALVATORE,
MUSTO, O'PAKE, ARMSTRONG, ROBBINS, WENGER, HART, RHOADES,
MOWERY, WOZNIAK, HECKLER, MURPHY, MADIGAN, DELP, EARLL,
CORMAN, LEMMOND AND SLOCUM, JANUARY 29, 1997
AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF
REPRESENTATIVES, AS AMENDED, MARCH 18, 1998
AN ACT
1 Amending Titles 62 (Procurement), 1 (General Provisions) and 42
2 (Judiciary and Judicial Procedure) 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.
1 § 108. Recycled materials.
2 Chapter 3. Procurement Organization
3 Subchapter A. Organization of Public Procurement
4 § 301. Procurement responsibility.
5 Subchapter B. Procurement Policy
6 § 311. Powers and duties.
7 § 312. Procurement regulations.
8 Subchapter C. Powers and Duties of Department
9 § 321. Powers and duties.
10 § 322. Specific construction powers, duties and procedures.
11 Subchapter D. Powers and Duties of the Board
12 of Commissioners of Public Grounds and
13 Buildings and the Office of the Budget
14 § 326. Board of Commissioners of Public Grounds and Buildings.
15 § 327. Office of the Budget.
16 Subchapter E. Coordination, Training and Education
17 § 331. Collection of data concerning public procurement.
18 § 332. Advisory groups.
19 Chapter 5. Source Selection and Contract Formation
20 Subchapter A. Definitions
21 § 501. Definitions.
22 Subchapter B. Methods of Source Selection
23 § 511. Methods of source selection.
24 § 512. Competitive sealed bidding.
25 § 513. Competitive sealed proposals.
26 § 514. Small procurements.
27 § 515. Sole source procurement.
28 § 516. Emergency procurement.
29 § 517. Multiple awards.
30 § 518. Competitive selection procedures for certain services.
19970S0005B1808 - 2 -
1 § 519. Selection procedure for insurance and notary bonds.
2 § 520. Supplies manufactured by, and services performed by,
3 persons with disabilities.
4 Subchapter C. Cancellation of Invitations for Bids or
5 Requests for Proposals
6 § 521. Cancellation of invitations for bids or requests for
7 proposals.
8 Subchapter D. Qualifications and Duties
9 § 531. Debarment or suspension.
10 § 532. Prequalification of bidders and offerors.
11 § 533. Security and performance bonds.
12 § 534. Cost or pricing data.
13 § 535. Printing.
14 Subchapter E. Types of Contracts
15 § 541. Approval of accounting system.
16 § 542. Multiterm contracts.
17 § 543. Effective contracts.
18 Subchapter F. Inspection of Plant and Audit of Records
19 § 551. Right to inspect plant.
20 § 552. Right to audit records.
21 Subchapter G. Determinations and Reports
22 § 561. Finality of determinations.
23 § 562. Anticompetitive practices.
24 § 563. Retention of procurement records.
25 § 564. Record of certain actions.
26 Chapter 7. (Reserved)
27 Chapter 9. Procurement of Construction and Design
28 Professional Services
29 § 901. Definitions.
30 § 902. Bid or proposal security.
19970S0005B1808 - 3 -
1 § 903. Contract performance and payment bonds.
2 § 904. Copies of bonds.
3 § 905. Procurement of design professional services.
4 Chapter 11. (Reserved)
5 Chapter 13. (Reserved)
6 Chapter 15. Supply Management
7 § 1501. Definitions.
8 § 1502. Supply management regulations.
9 § 1503. Proceeds from sale or disposal of surplus supplies.
10 § 1504. Exception.
11 Chapter 17. Legal and Contractual Remedies
12 Subchapter A. General Provisions
13 § 1701. Definitions.
14 § 1702. Sovereign immunity.
15 Subchapter B. Prelitigation Resolution of Controversies
16 § 1711. Authority to resolve protests of solicitations or
17 awards.
18 § 1712. Authority to resolve contract and breach of contract
19 controversies.
20 Subchapter C. Board of Claims
21 § 1721. Function of Board of Claims.
22 § 1722. (Reserved).
23 § 1723. (Reserved).
24 § 1724. (Reserved).
25 § 1725. Hearings, decisions and awards.
26 § 1726. Appeals.
27 Subchapter D. Solicitations or Awards in Violation of Law
28 § 1741. Applicability.
29 § 1742. Remedies prior to execution of contract.
30 § 1743. Remedies after execution of contract.
19970S0005B1808 - 4 -
1 Subchapter E. Interest
2 § 1751. Interest.
3 Chapter 19. Intergovernmental Relations
4 § 1901. Definitions.
5 § 1902. Cooperative purchasing authorized.
6 § 1903. Sale, acquisition or use of supplies by a public
7 procurement unit.
8 § 1904. Cooperative use of supplies or services.
9 § 1905. Joint use of facilities.
10 § 1906. Supply of personnel, information and technical
11 services.
12 § 1907. Use of payments received by a supplying public
13 procurement unit.
14 § 1908. Compliance of public procurement units.
15 § 1909. Review of procurement requirements.
16 § 1910. Contract controversies.
17 § 1911. Immunity.
18 § 1912. Investment management agreements.
19 Chapter 21. Small and Disadvantaged Businesses
20 § 2101. Policy.
21 § 2102. Definitions.
22 § 2103. Regulations.
23 § 2104. Duties of department.
24 § 2105. Bonding and progress payments.
25 § 2106. Business assistance offices.
26 § 2107. Report to General Assembly.
27 § 2108. Compliance with Federal requirements.
28 Chapter 23. Ethics in Public Contracting
29 Subchapter A. General Policy and Standards
30 § 2301. Policy.
19970S0005B1808 - 5 -
1 § 2302. General standards of ethical conduct.
2 § 2303. Reporting of breaches of ethical standards.
3 Subchapter B. Specific Standards
4 § 2311. Bonds.
5 PART II. GENERAL PROCUREMENT PROVISIONS
6 Chapter 31. General Provisions
7 § 3101. Application of part.
8 § 3102. Definitions.
9 Chapter 33. Prevention of Environmental Pollution
10 § 3301. Invitations for bids and requests for proposals.
11 § 3302. Additional work.
12 Chapter 35. (Reserved)
13 Chapter 37. Contract Clauses and Preference Provisions
14 Subchapter A. Labor
15 § 3701. Contract provisions prohibiting discrimination.
16 Subchapter B. Motor Vehicles
17 § 3731. Short title of subchapter and general provisions.
18 § 3732. Definitions.
19 § 3733. Police power.
20 § 3734. Contract provisions.
21 § 3735. Payment under contract and action to recover
22 unauthorized payments.
23 § 3736. Penalty.
24 Subchapter C. Used Oil Products <--
25 § 3741. Preference.
26 SUBCHAPTER C. MASS TRANSPORTATION VEHICLES <--
27 § 3741. PROCUREMENT OF MASS TRANSPORTATION VEHICLES.
28 SUBCHAPTER D. USED OIL PRODUCTS
29 § 3746. PREFERENCE.
30 Subchapter D E. Guaranteed Energy Savings Contracts <--
19970S0005B1808 - 6 -
1 § 3751. Short title of subchapter.
2 § 3752. Definitions.
3 § 3753. Contracting procedures.
4 § 3754. Contract provisions.
5 § 3755. Funding.
6 § 3756. Commonwealth contracts.
7 § 3757. Construction.
8 Chapter 39. Construction Contracts Over $50,000 CONTRACTS <--
9 FOR PUBLIC WORKS
10 Subchapter A. Preliminary Provisions
11 § 3901. Application and purpose of chapter.
12 § 3902. Definitions.
13 Subchapter B. General Provisions
14 § 3911. Time for awarding contract.
15 § 3912. Time for executing contract.
16 § 3913. Release of successful bidder.
17 Subchapter C. Retainage
18 § 3921. Retainage.
19 § 3922. Payment of retainage to subcontractors.
20 Subchapter D. Prompt Payment Schedules
21 § 3931. Performance by contractor or subcontractor.
22 § 3932. Government agency's progress payment obligations.
23 § 3933. Contractors' and subcontractors' payment obligations.
24 § 3934. Withholding of payment for good faith claims.
25 § 3935. Penalty and attorney fees.
26 § 3936. Contracts involving Federal aid.
27 § 3937. Certain provisions unenforceable.
28 § 3938. Applicability.
29 § 3939. Claims by innocent parties.
30 Subchapter E. Substantial/final Payment
19970S0005B1808 - 7 -
1 § 3941. Substantial/final payment under contract.
2 § 3942. Arbitration.
3 Chapter 41. Purchase of Surplus Federal Property
4 § 4101. Contracts with United States.
5 § 4102. Bids and down payments.
6 Chapter 43. Public Facilities Concessions
7 § 4301. Short title of chapter and general provisions.
8 § 4302. Definitions.
9 § 4303. Terms of contracts.
10 Chapter 45. Antibid-Rigging
11 § 4501. Short title of chapter.
12 § 4502. Definitions.
13 § 4503. Prohibited activities.
14 § 4504. Civil action and damages.
15 § 4505. Suspension or debarment.
16 § 4506. Liability for increased costs.
17 § 4507. Noncollusion affidavits.
18 § 4508. Responsibility for enforcement.
19 § 4509. Investigation.
20 The General Assembly of the Commonwealth of Pennsylvania
21 hereby enacts as follows:
22 Section 1. Title 62 of the Pennsylvania Consolidated
23 Statutes is amended by adding parts to read:
24 TITLE 62
25 PROCUREMENT
26 Part
27 I. Commonwealth Procurement Code
28 II. General Procurement Provisions
29 PART I
30 COMMONWEALTH PROCUREMENT CODE
19970S0005B1808 - 8 -
1 Chapter
2 1. General Provisions
3 3. Procurement Organization
4 5. Source Selection and Contract Formation
5 7. (Reserved)
6 9. Procurement of Construction and Design Professional
7 Services
8 11. (Reserved)
9 13. (Reserved)
10 15. Supply Management
11 17. Legal and Contractual Remedies
12 19. Intergovernmental Relations
13 21. Small and Disadvantaged Businesses
14 23. Ethics in Public Contracting
15 CHAPTER 1
16 GENERAL PROVISIONS
17 Sec.
18 101. Short title of part.
19 102. Application of part.
20 103. Definitions.
21 104. General principles of law otherwise applicable.
22 105. Determinations.
23 106. Public access to procurement information.
24 107. Reciprocal limitations.
25 108. Recycled materials.
26 § 101. Short title of part.
27 This part shall be known and may be cited as the Commonwealth
28 Procurement Code.
29 § 102. Application of part.
30 (a) Application to Commonwealth procurement.--This part
19970S0005B1808 - 9 -
1 applies to every expenditure of funds, other than the investment
2 of funds, by Commonwealth agencies under any contract,
3 irrespective of their source, including Federal assistance
4 moneys except as specified in section 2108 (relating to
5 compliance with Federal requirements). This part does not apply
6 to grants nor does it apply to contracts between Commonwealth
7 agencies or between the Commonwealth and its political
8 subdivisions or other governments except as provided in Chapter
9 19 (relating to intergovernmental relations). Nothing in this
10 part or in accompanying regulations shall prevent any
11 Commonwealth agency or political subdivision from complying with
12 the terms and conditions of any grant, gift, bequest or
13 cooperative agreement.
14 (b) Application to disposal of Commonwealth supplies.--This
15 part applies to the disposal of supplies of Commonwealth
16 agencies.
17 (c) Application to General Assembly and unified judicial
18 system.--The General Assembly and its agencies and the unified
19 judicial system and its agencies may use the department as its
20 purchasing agency for the purchase of supplies under this part
21 and may use the department to dispose of surplus supplies under
22 Chapter 15 (relating to supply management).
23 (d) Application to certain entities.--Nothing in this part
24 shall apply to the entity created by the act of August 7, 1963
25 (P.L.549, No.290), referred to as the Pennsylvania Higher
26 Education Assistance Agency Act.
27 (E) APPLICATION TO MEDICAL ASSISTANCE PROVIDERS.--NOTHING IN <--
28 THIS PART SHALL APPLY TO MEDICAL ASSISTANCE PROVIDER AGREEMENTS
29 ENTERED INTO BY THE DEPARTMENT OF PUBLIC WELFARE UNDER THE
30 MEDICAL ASSISTANCE PROGRAMS.
19970S0005B1808 - 10 -
1 (e) (F) Impact on existing acts.--Nothing in this part shall <--
2 affect the scope, effect or applicability of the act of August
3 15, 1961 (P.L.987, No.442), known as the Pennsylvania Prevailing
4 Wage Act, the act of March 3, 1978 (P.L.6, No.3), known as the
5 Steel Products Procurement Act, and the act of July 23, 1968
6 (P.L.686, No.226), entitled "An act equalizing trade practices
7 in public works procurement; authorizing the purchase by the
8 Commonwealth, its political subdivisions, and all public
9 agencies, of aluminum and steel products produced in a foreign
10 country, provided the foreign country does not prohibit or
11 discriminate against the importation to, sale or use in the
12 foreign country of supplies, material or equipment manufactured
13 in this Commonwealth; establishing procedures for determining
14 whether foreign countries discriminate against supplies,
15 materials or equipment manufactured in this Commonwealth; and
16 imposing penalties and providing for relief for violation of
17 this act."
18 § 103. Definitions.
19 Subject to additional definitions contained in subsequent
20 provisions of this part which are applicable to specific
21 provisions of this part, the following words and phrases when
22 used in this part shall have the meanings given to them in this
23 section unless the context clearly indicates otherwise:
24 "Change order." A written order signed by the contracting
25 officer directing the contractor to make changes which the
26 changes clause of the contract authorizes the contracting
27 officer to order. The change order may be either with the
28 consent of the contractor or a unilateral order by the
29 contracting officer.
30 "Commonwealth agency." An executive agency, an independent
19970S0005B1808 - 11 -
1 agency or a State-affiliated entity.
2 "Construction." The process of building, altering,
3 repairing, improving or demolishing any public structure or
4 building or other public improvements of any kind to any public
5 real property. The term does not include the routine operation
6 or maintenance of existing structures, buildings or real
7 property.
8 "Contract." A type of written agreement, regardless of what
9 it may be called, for the procurement or disposal of supplies,
10 services or construction.
11 "Contract modification." A written alteration in
12 specifications, delivery point, rate of delivery, period of
13 performance, price, quantity or other provisions of any contract
14 accomplished by mutual action of the parties to the contract.
15 "Contracting officer." A person authorized to enter into and
16 administer contracts and make written determinations with
17 respect to contracts.
18 "Department." The Department of General Services of the
19 Commonwealth.
20 "Design/Build contract." A construction contract in which
21 the contractor is responsible for both the design and
22 construction of any public structure or building or other public
23 improvements of any kind to any public real property.
24 "Employee." An individual drawing a salary or wages from a
25 Commonwealth agency, whether elected or not, and any
26 noncompensated individual performing personal services for any
27 Commonwealth agency.
28 "Executive agency." The Governor and the departments,
29 boards, commissions, authorities and other officers and agencies
30 of the Commonwealth. The term does not include any court or
19970S0005B1808 - 12 -
1 other officer or agency of the unified judicial system, the
2 General Assembly and its officers and agencies or any
3 independent agency or State-affiliated entity.
4 "Firm, fixed-price contract." A contract where the total
5 amount to be paid to the contractor is fixed and is not subject
6 to adjustment by reason of the cost experience of the
7 contractor. The term includes contracts where the unit price is
8 set but the total price varies because actual quantities
9 purchased deviate from the quantities estimated to be purchased.
10 The term also includes contracts where the price may be adjusted
11 in accordance with a contractually established price adjustment
12 provision which is not based upon the contractor's costs.
13 "Grant." The furnishing of assistance by the Federal <--
14 Government, Commonwealth or any person, whether financial or
15 otherwise, to any person to support a program authorized by law.
16 The term does not include an award whose primary purpose is to
17 procure for the grantor an end product, whether in the form of
18 supplies, services or construction. A contract resulting from
19 such an award is not a grant but a procurement contract.
20 "Independent agency." Boards, commissions and other agencies
21 and officers of the Commonwealth which are not subject to the
22 policy supervision and control of the Governor. The term does
23 not include any State-affiliated entity, any court or other
24 officer or agency of the unified judicial system, the General
25 Assembly and its officers and agencies, any State-related
26 institution, political subdivision or any local, regional or
27 metropolitan transportation authority.
28 "Policy statement." Any document, except an adjudication,
29 regulation or privileged communication prepared by a
30 Commonwealth agency which sets forth substantive or procedural
19970S0005B1808 - 13 -
1 personal or property rights, privileges, immunities, duties,
2 liabilities or obligations of the public or any person,
3 including any document interpreting or implementing any statute
4 enforced or administered by the agency.
5 "Procurement." Buying, purchasing, renting, leasing,
6 licensing or otherwise acquiring any supplies, services or
7 construction. The term also includes all functions that pertain
8 to the obtaining of any supply, service or construction,
9 including description of requirements, selection and
10 solicitation of sources, preparation and award of contract and
11 all phases of contract administration.
12 "Purchasing agency." A Commonwealth agency authorized by
13 this part or by other law to enter into contracts for itself or
14 as the agent of another Commonwealth agency. When purchasing for
15 another Commonwealth agency, the purchasing agency acts on
16 behalf of the principal which needs the supplies, services and
17 construction and shall coordinate and cooperate with that
18 agency.
19 "Regulation." A regulation as defined in 45 Pa.C.S. § 501
20 (relating to definitions). This term shall include the
21 amendment, revision or otherwise alteration of the terms and
22 provisions of a regulation.
23 "Services." The furnishing of labor, time or effort by a
24 contractor not involving the delivery of a specific end product
25 other than drawings, specifications or reports which are merely
26 incidental to the required performance. The term shall include
27 the routine operation or maintenance of existing structures,
28 buildings or real property. The term does not include employment
29 agreements, OR collective bargaining agreements or agreements <--
30 with litigation consultants. The term includes utility services
19970S0005B1808 - 14 -
1 and those services formerly provided by public utilities such as
2 electrical, telephone, water and sewage service.
3 "Specification." A description of the physical or functional
4 characteristics or the nature of a supply, service or
5 construction item, including a description of any requirement
6 for inspecting, testing or preparing a supply, service or
7 construction item for delivery.
8 "State-affiliated entity." A Commonwealth authority or a
9 Commonwealth entity. The term includes the Pennsylvania Turnpike
10 Commission, the Pennsylvania Housing Finance Agency, the
11 Pennsylvania Municipal Retirement System, the Pennsylvania
12 Infrastructure Investment Authority, the State Public School
13 Building Authority, the Pennsylvania Higher Educational
14 Facilities Authority and the State System of Higher Education.
15 The term does not include any court or other officer or agency
16 of the unified judicial system, the General Assembly and its
17 officers and agencies, any State-related institution, political
18 subdivision or any local, regional or metropolitan
19 transportation authority.
20 "State-related institution." The Pennsylvania State
21 University, the University of Pittsburgh, Lincoln University or
22 Temple University.
23 "Statewide requirements contract." A contract entered into
24 by the Department of General Services as purchasing agency which
25 covers the annual, semiannual or quarterly contract requirements
26 of all Commonwealth agencies and allows the agencies to order
27 needed supplies directly from the contractor.
28 "Supplies." Any property, including, but not limited to,
29 equipment, materials, printing, insurance and leases of and
30 installment purchases of tangible or intangible personal
19970S0005B1808 - 15 -
1 property. The term does not include real property or, leases of <--
2 real property OR ALCOHOLIC BEVERAGES OR LIQUOR PURCHASED FOR <--
3 RESALE BY THE PENNSYLVANIA LIQUOR CONTROL BOARD.
4 "Using agency." A Commonwealth agency which utilizes any
5 supplies, services or construction procured under this part.
6 § 104. General principles of law otherwise applicable.
7 Unless displaced by the particular provisions of this part,
8 existing Pennsylvania law, including Title 13 (relating to
9 commercial code), shall supplement the provisions of this part.
10 § 105. Determinations.
11 Written determinations required by this part shall be
12 retained in the appropriate official contract file.
13 § 106. Public access to procurement information.
14 Except as provided in section 512(d) (relating to competitive
15 sealed bidding), any documents created by or provided to any
16 Commonwealth agency for any procurement shall be subject to
17 inspection and copying only to the extent already required under
18 the act of June 21, 1957 (P.L.390, No.212), referred to as the
19 Right-to-Know Law.
20 § 107. Reciprocal limitations.
21 (a) Short title of section.--This section shall be known and
22 may be cited as the Reciprocal Limitations Act.
23 (b) Legislative findings.--It is hereby determined by the
24 General Assembly to reaffirm the legislative findings contained
25 in the act of November 28, 1986 (P.L.1465, No.146), known as the
26 Reciprocal Limitations Act, and codified in this section:
27 (1) The award of contracts to the lowest responsible
28 bidder generally provides for the most economical procurement
29 of supplies and construction.
30 (2) In some cases, award to the lowest responsible
19970S0005B1808 - 16 -
1 bidder may not be the most economical and practicable when
2 the best interests of the Commonwealth are concerned.
3 (3) Some states apply a preference favoring in-state
4 supplies or bidders or they apply a prohibition against the
5 use of out-of-State supplies or bidders.
6 (4) The application of this preference or prohibition by
7 other states diminishes or eliminates opportunities for
8 bidders and manufacturers who reside in this Commonwealth to
9 obtain construction contracts from or to sell supplies to
10 states that have this preference, thereby resulting in the
11 loss of business for resident bidders and manufacturers.
12 Therefore, in order to offset or counteract the
13 discriminatory practices of other states, discourage other
14 states from applying a preference and ultimately to aid
15 employment, help business and industry located in this
16 Commonwealth, attract new business and industry to this
17 Commonwealth and provide additional tax revenue both from
18 those receiving contracts and those employed by contractors,
19 the General Assembly hereby declares that it is the policy of
20 this Commonwealth to respond in like manner against those
21 states that apply preferences or prohibitions by giving a
22 similar offsetting preference to residents in this
23 Commonwealth and bidders offering supplies manufactured in
24 this Commonwealth and by prohibiting the purchase or use of
25 certain supplies, in accordance with the provisions of this
26 section.
27 (c) Preference for supplies.--In all procurements of
28 supplies exceeding the amount established by the department for
29 small procurements under section 514 (relating to small
30 procurements), all Commonwealth agencies shall give preference
19970S0005B1808 - 17 -
1 to those bidders or offerors offering supplies produced,
2 manufactured, mined, grown or performed in this Commonwealth as
3 against those bidders or offerors offering supplies produced,
4 manufactured, mined, grown or performed in any state that gives
5 or requires a preference to supplies produced, manufactured,
6 mined, grown or performed in that state. The amount of the
7 preference shall be equal to the amount of the preference
8 applied by the other state for that particular supply.
9 (d) Preference for resident bidders or offerors.--When a
10 contract for construction or supplies exceeding the amount
11 established by the department for small procurements under
12 section 514 is to be awarded, a resident bidder or offeror shall
13 be granted a preference as against a nonresident bidder or
14 offeror from any state that gives or requires a preference to
15 bidders or offerors from that state. The amount of the
16 preference shall be equal to the amount of the preference
17 applied by the state of the nonresident bidder or offeror.
18 (e) Prohibition.--For public contracts exceeding the amount
19 established by the department for small procurements under
20 section 514, no Commonwealth agency shall specify for, use or
21 procure any supplies which are produced, manufactured, mined,
22 grown or performed in any state that prohibits the specification
23 for, use or procurement of these supplies in or on its public
24 buildings or other works when these supplies are not produced,
25 manufactured, mined, grown or performed in that state.
26 (f) Listing discriminating states.--The department shall
27 prepare a list of the states which apply a preference favoring
28 in-State supplies or bidders or offerors or a prohibition
29 against the use of out-of-State supplies or bidders or offerors
30 and shall publish the list in the Pennsylvania Bulletin. When a
19970S0005B1808 - 18 -
1 state applies a new preference or prohibition, the department
2 shall publish that information in the Pennsylvania Bulletin as
3 an addition to the original list.
4 (g) Inclusion in invitation for bids or request for
5 proposals.--In all invitations for bids and requests for
6 proposals for the procurement of supplies exceeding the amount
7 established by the department for small procurements under
8 section 514 all Commonwealth agencies shall include a list of
9 all the states that have been found by the department to have
10 applied a preference favoring in-State supplies, bidders or
11 offerors and the amount of the preference. All invitations for
12 bids, requests for proposals and notices issued for the purpose
13 of securing bids or proposals for public contracts as issued by
14 any Commonwealth agency exceeding the amount established by the
15 department for small procurements under section 514 shall
16 include a list of all states that have been found by the
17 department to have applied a preference for in-State bidders or
18 offerors and the amount of the preference. All invitations for
19 bids, requests for proposals and notices issued for the purpose
20 of securing bids or proposals for contracts for construction or
21 supplies as issued by any Commonwealth agency exceeding the
22 amount established by the purchasing agency for small
23 procurements under section 514 shall also include a list of all
24 states that apply a prohibition against certain supplies and
25 shall inform potential bidders or offerors that they are
26 prohibited from using supplies from those states. If a bid or
27 proposal discloses that the bidder or offeror is offering
28 supplies from a state which prohibits the use of out-of-State
29 supplies, the bid or proposal shall be rejected.
30 (h) Federal funds.--The provisions of this section shall not
19970S0005B1808 - 19 -
1 be applicable when the application of this section may
2 jeopardize the receipt of Federal funds.
3 (i) Waiver.--The provisions of this section may be waived
4 when the head of the purchasing agency determines in writing
5 that it is in the best interests of the Commonwealth.
6 (j) Definitions.--As used in this section, the following
7 words and phrases shall have the meanings given to them in this
8 subsection:
9 "Resident bidder or offeror." A person, partnership,
10 corporation or other business entity authorized to transact
11 business in this Commonwealth and having a bona fide
12 establishment for transacting business in this Commonwealth at
13 which it was transacting business on the date when bids or
14 proposals for the public contract were first solicited.
15 § 108. Recycled materials.
16 (a) Commonwealth agency review.--All Commonwealth agencies
17 shall review their procurement procedures and specifications in
18 accordance with section 1504 of the act of July 28, 1988
19 (P.L.556, No.101), known as the Municipal Waste Planning,
20 Recycling and Waste Reduction Act.
21 (b) Preference for recycled content.--For contracts
22 exceeding the amount established by the department for small
23 procurements under section 514 (relating to small procurements),
24 the contracting officer shall comply with section 1505 of the
25 Municipal Waste Planning, Recycling and Waste Reduction Act
26 regarding a preference for bids containing a minimum percentage
27 of recycled content for the supply subject to the bid.
28 CHAPTER 3
29 PROCUREMENT ORGANIZATION
30 Subchapter
19970S0005B1808 - 20 -
1 A. Organization of Public Procurement
2 B. Procurement Policy
3 C. Powers and Duties of Department
4 D. Powers and Duties of the Board of Commissioners of
5 Public Grounds and Buildings and the Office of the Budget
6 E. Coordination, Training and Education
7 SUBCHAPTER A
8 ORGANIZATION OF PUBLIC PROCUREMENT
9 Sec.
10 301. Procurement responsibility.
11 § 301. Procurement responsibility.
12 (a) General organization.--Formulation of procurement policy
13 governing the procurement, management, control and disposal of
14 supplies, services and construction for executive and
15 independent agencies shall be the responsibility of the
16 department as provided for in Subchapter B (relating to
17 procurement policy). The procurement and supervision of the
18 procurement of supplies, services and construction for executive
19 agencies and those independent agencies for which the department
20 acts as purchasing agency shall be the responsibility of the
21 department as provided for in Subchapter C (relating to powers
22 and duties of department).
23 (b) Application to independent agencies.--Except as
24 otherwise specifically provided by law and this section,
25 independent agencies shall use the department as their
26 purchasing agency for the procurement of supplies or
27 construction. Independent agencies shall have the authority to
28 procure their own services. However, when any independent agency
29 acts as its own purchasing agency it shall use the procedures
30 provided in this part for any procurement of supplies, services
19970S0005B1808 - 21 -
1 or construction.
2 (c) Exceptions for executive and independent agencies.--The
3 following supplies, services and construction need not be
4 procured through the department, nor shall the procurement
5 policy be established by the department, but shall nevertheless
6 be procured by the appropriate purchasing agency, subject to the
7 requirements of this part:
8 (1) Bridge, highway, dam, airport (except vertical
9 construction), railroad or other heavy or specialized
10 construction including:
11 (i) The construction of facilities and improvements
12 by the Department of Conservation and Natural Resources
13 in State parks and State forests.
14 (ii) Construction activities, excluding buildings,
15 solely within the expertise of the Department of
16 Environmental Protection, including, but not limited to,
17 mine reclamation, oil and gas well plugging, waste site
18 remediation, flood control and stream rehabilitation.
19 (2) Works of art, historic objects and documents for
20 acquisition and public exhibition.
21 (3) Published books, maps, periodicals and technical
22 pamphlets.
23 (4) Perishable food stuffs.
24 (5) The procurement of services, the renting of
25 machinery and equipment and the licensing of specialized
26 computer software by the Office of Attorney General, the
27 Department of the Auditor General and the Treasury
28 Department.
29 (d) Application to State-affiliated entities.--State-
30 affiliated entities may formulate their own procurement policy
19970S0005B1808 - 22 -
1 governing the procurement, management, control and disposal of
2 supplies, services and construction and may act as their own
3 purchasing agency for the procurement of supplies, services and
4 construction, but they are required to use the procedures
5 provided in this part for such procurement.
6 SUBCHAPTER B
7 PROCUREMENT POLICY
8 Sec.
9 311. Powers and duties.
10 312. Procurement regulations.
11 § 311. Powers and duties.
12 Except as otherwise provided in this part, the department may
13 promulgate regulations governing the procurement, management,
14 control and disposal of any and all supplies, services and
15 construction to be procured by Commonwealth agencies. The
16 department shall consider and decide matters of policy within
17 the provisions of this part. The department may audit and
18 monitor the implementation of its regulations and the
19 requirements of this part.
20 § 312. Procurement regulations.
21 Regulations shall be promulgated by the department as
22 provided in 45 Pa.C.S. Part II (relating to publication and
23 effectiveness of Commonwealth documents) and by the appropriate
24 purchasing agencies for those matters contained in section
25 301(c) (relating to procurement responsibility). The regulations
26 shall be subject to the act of June 25, 1982 (P.L.633, No.181),
27 known as the Regulatory Review Act. The department may not
28 delegate its power to promulgate regulations. No regulation may
29 change any commitment, right or obligation of any Commonwealth
30 agency or of a contractor under a contract in existence on the
19970S0005B1808 - 23 -
1 effective date of the regulation.
2 SUBCHAPTER C
3 POWERS AND DUTIES OF DEPARTMENT
4 Sec.
5 321. Powers and duties.
6 322. Specific construction powers, duties and procedures.
7 § 321. Powers and duties.
8 Except as otherwise specifically provided in this part, the
9 department shall have the following powers and duties:
10 (1) Procure or supervise the procurement of all
11 supplies, services and construction needed by executive
12 agencies and those independent agencies for which the
13 department acts as purchasing agency. Procurement authority
14 may be delegated in writing by the Secretary of General
15 Services.
16 (2) Exercise general supervision and control over all
17 inventories of supplies belonging to executive agencies.
18 (3) Sell, trade or otherwise dispose of surplus supplies
19 belonging to executive or independent agencies.
20 (4) Coordinate programs of executive and independent
21 agencies for the inspection, testing and acceptance of
22 supplies and construction to ensure availability of
23 facilities and to avoid a duplication of functions.
24 (5) Establish and maintain a central office where
25 businesses operating in this Commonwealth may obtain
26 information pertaining to the procurement needs of
27 Commonwealth agencies.
28 (6) Participate in the management and maintenance of a
29 contractor responsibility program in coordination with the
30 Office of the Budget and other agencies as may be directed by
19970S0005B1808 - 24 -
1 the Governor.
2 § 322. Specific construction powers, duties and procedures.
3 The following procedure shall apply to construction to be
4 completed by the department which costs more than the amount
5 established by the department under section 514 (relating to
6 small procurements) for construction procurement, unless the
7 work is to be done by Commonwealth agency employees or by
8 inmates or patients of a Commonwealth agency institution:
9 (1) The Commonwealth agency or State-related institution
10 shall notify the department to have plans and specifications
11 for the project.
12 (2) Promptly after the notice, in such cases, or
13 promptly after any appropriation made to it becomes
14 available, the department shall, if necessary, select an
15 architect and/or an engineer, in accordance with the
16 selection procedures of section 905 (relating to procurement
17 of design professional services) to design the work and
18 prepare the specifications therefor. The department may, as
19 an alternative, enter into a design/build contract IN <--
20 ACCORDANCE WITH SECTION 511 (RELATING TO METHODS OF SOURCE
21 SELECTION). Such design/build contracts shall be subject to
22 the requirements of this act and the provisions of the act of
23 August 15, 1961 (P.L.987, No.442), known as the Pennsylvania
24 Prevailing Wage Act, and ACT. DESIGN/BUILD CONTRACTS SHALL <--
25 ALSO BE SUBJECT TO the act of May 1, 1913 (P.L.155, No. 104),
26 entitled "An act regulating the letting of certain contracts
27 for the erection, construction, and alteration of public
28 buildings," to the extent provided in paragraph (6).
29 (3) The department shall enter into a contract with the
30 architect or engineer, which shall provide all of the
19970S0005B1808 - 25 -
1 following:
2 (i) A date for the completion of the plans and
3 specifications.
4 (ii) That the plans and specifications must meet
5 with the approval of the Commonwealth agency or State-
6 related institution for which the building is being
7 erected, altered or enlarged and, in the case of an
8 administrative board or commission of the Commonwealth
9 agency with which the board or commission is respectively
10 connected, to the extent of the type and general
11 character of the building, design of the floor layouts,
12 medical equipment or other equipment of a nature peculiar
13 to the building for which the plans and specifications
14 are being prepared.
15 (iii) That the plans, drawings and specifications
16 must be approved by the department.
17 (iv) That the plans and specifications must be
18 approved by the Department of Labor and Industry, the
19 Department of Health and the Department of Environmental
20 Protection, to the extent to which those Commonwealth
21 agencies, respectively, have jurisdiction to require the
22 submission to them for approval of certain features of
23 the building.
24 The architect or engineer in preparing plans and
25 specifications shall consult with the department and the
26 department shall insist upon the prompt completion of the
27 plans and specifications, within the time prescribed in the
28 architect's or engineer's contracts unless it shall
29 specifically agree in writing to an extension thereof.
30 (4) The enforcement of all contracts provided for by
19970S0005B1808 - 26 -
1 this section shall be under the control and supervision of
2 the department. The department shall have the authority to
3 engage the services of a construction management firm to
4 coordinate the work of the total project. All questions or
5 disputes arising between the department and any contractor
6 with respect to any matter pertaining to a contract entered
7 into with the department or any part thereto or any breach of
8 contract arising thereunder shall be submitted to final and
9 binding arbitration as provided by the terms of the contract
10 which finding shall be final and not subject to further
11 appeal or, if not so provided, shall be referred to the Board
12 of Claims as set forth in the act of May 20, 1937 (P.L.728,
13 No.193), referred to as the Board of Claims Act, whose
14 decision and award shall be final and binding and conclusive
15 upon all parties thereto, except that either party shall have
16 the right to appeal from the decision and award as provided
17 by law.
18 (5) The department shall examine all bills on account of
19 the contracts entered into under the provisions of this
20 section, and, if they are correct, the department shall
21 certify that the materials have been furnished, or that the
22 work or labor has been performed in a workmanlike manner, and
23 in accordance with the contract, approve the bills and issue
24 its requisition therefor, or forward its certificate to the
25 proper Commonwealth agency or State-related institution, as
26 the case may be. Progress payments and final payments shall
27 not estop the department from pursuing its lawful remedies
28 for defects in workmanship or materials or both and other
29 damages.
30 (6) The department may award construction contracts for <--
19970S0005B1808 - 27 -
1 all the work or separately for parts of the work or both on
2 all projects under $25,000 base construction cost.
3 (6) FOR CONSTRUCTION CONTRACTS WHERE THE TOTAL <--
4 CONSTRUCTION COSTS ARE LESS THAN $25,000, THE DEPARTMENT
5 SHALL NOT BE REQUIRED TO COMPLY WITH THE ACT OF MAY 1, 1913
6 (P.L.155, NO.104), ENTITLED "AN ACT REGULATING THE LETTING OF
7 CERTAIN CONTRACTS FOR THE ERECTION, CONSTRUCTION, AND
8 ALTERATION OF PUBLIC BUILDINGS," AND THE DEPARTMENT MAY AWARD
9 SUCH CONTRACTS IN ACCORDANCE WITH SECTION 511. All projects
10 equal to or exceeding $25,000 shall be subject to the act of
11 May 1, 1913 (P.L.155, No.104), entitled "An act regulating
12 the letting of certain contracts for the erection,
13 construction, and alteration of public buildings." Whenever
14 the department enters into a single contract for a project,
15 in the absence of good and sufficient reasons, the contractor
16 shall pay each subcontractor within 15 days of receipt of
17 payment from the department, an amount equal to the
18 percentage of completion allowed to the contractor on the
19 account of the subcontractor's work. The contractor shall
20 also require the subcontractor to make similar payments to
21 his subcontractors.
22 (7) The department shall have the right to engage the
23 services of any architect or consulting or supervising
24 engineer or engineers, whom it may deem necessary for the
25 proper designing of or inspection or supervision of projects
26 constructed, altered or enlarged by the department under this
27 section in accordance with the selection procedures of
28 section 905.
29 (8) Changes in scope in the plans or specifications, or
30 both, may be made after their approval only with the consent
19970S0005B1808 - 28 -
1 of the Governor and all of the Commonwealth agencies and
2 State-related institutions whose approval of the original
3 plans or specifications, or both, was necessary under this
4 section.
5 (9) If the appropriation is to a Commonwealth agency,
6 other than the department or State-related institution, the
7 department shall award and enter into the contract as agent
8 for the Commonwealth agency or State-related institution to
9 which the appropriation was made.
10 SUBCHAPTER D
11 POWERS AND DUTIES OF THE BOARD OF COMMISSIONERS OF
12 PUBLIC GROUNDS AND BUILDINGS AND THE OFFICE OF THE BUDGET
13 Sec.
14 326. Board of Commissioners of Public Grounds and Buildings.
15 327. Office of the Budget.
16 § 326. Board of Commissioners of Public Grounds and Buildings.
17 No lease of real estate for use by an executive or
18 independent agency and no sole source procurement of supplies
19 for an executive or independent agency for which the department
20 acts as the purchasing agency shall be valid or effective
21 unless, upon review, it is approved by the Board of
22 Commissioners of Public Grounds and Buildings. Where the board
23 is reviewing a proposed sole source lease or procurement being
24 submitted pursuant to section 515 (relating to sole source
25 procurement), approval of the lease or procurement shall require
26 the unanimous vote of the board. Where the board is reviewing a
27 proposed non-sole source lease, the lease shall be approved when
28 one member of the board votes to approve the lease. All votes
29 shall take place at a public meeting.
30 § 327. Office of the Budget.
19970S0005B1808 - 29 -
1 (a) Encumbrance of funds.--For executive agencies and
2 independent agencies and State-affiliated entities where the
3 department is used as the purchasing agency, Office of the
4 Budget shall encumber sufficient funds for the payment of all
5 invoices for the procurement of supplies, services and
6 construction.
7 (b) Contractor responsibility program.--The Office of the
8 Budget shall participate in the management and maintenance of a
9 contractor responsibility program in coordination with the
10 department and other agencies as may be directed by the
11 Governor.
12 (c) Contracts for services.--Except for contracts awarded <--
13 pursuant to section 514 (relating to small procurements), the
14 Office of the Budget shall review and approve all contracts for
15 services for executive agencies and independent agencies and
16 State-affiliated entities where the department acts as
17 purchasing agency for:
18 (1) Fiscal responsibility and budgetary appropriateness.
19 (2) Availability of funds.
20 (C) COMPTROLLER REVIEW OF CONTRACTS FOR SERVICES.-- <--
21 (1) EXCEPT FOR CONTRACTS AWARDED PURSUANT TO SECTION 514
22 (RELATING TO SMALL PROCUREMENTS), THE COMPTROLLER AUTHORIZED
23 IN PARAGRAPH (2) SHALL REVIEW AND APPROVE ALL CONTRACTS FOR
24 SERVICES FOR:
25 (I) FISCAL RESPONSIBILITY AND BUDGETARY
26 APPROPRIATENESS.
27 (II) AVAILABILITY OF FUNDS.
28 (2) WHERE THE SERVICE CONTRACT IS FOR AN EXECUTIVE
29 AGENCY, INDEPENDENT AGENCY OR STATE-AFFILIATED ENTITY FOR
30 WHICH THE OFFICE OF THE BUDGET ACTS AS COMPTROLLER, THE
19970S0005B1808 - 30 -
1 OFFICE OF THE BUDGET SHALL REVIEW AND APPROVE THE CONTRACT.
2 WHERE THE SERVICE CONTRACT IS FOR AN INDEPENDENT AGENCY OR
3 STATE-AFFILIATED ENTITY FOR WHICH THE OFFICE OF THE BUDGET
4 DOES NOT ACT AS COMPTROLLER, THE FISCAL OFFICE OR COMPTROLLER
5 OF THAT AGENCY OR ENTITY SHALL REVIEW AND APPROVE THE
6 CONTRACT.
7 (d) Agency comptrollers.--A Commonwealth agency comptroller
8 may, at his option, serve as a nonvoting member of an evaluation
9 committee for requests for proposals or a similar contract
10 bidding or selection committee for the acquisition of services.
11 (e) Exceptions.--Notwithstanding the foregoing, subsections
12 (a) and (c) shall not apply to procurements made by the Office
13 of Attorney General, the Department of the Auditor General or
14 the Treasury Department. However, where the department is used
15 as the purchasing agency, the Office of Attorney General, the
16 Department of the Auditor General and the Treasury Department
17 shall certify to the department that they have encumbered
18 sufficient funds for the procurement.
19 SUBCHAPTER E
20 COORDINATION, TRAINING AND EDUCATION
21 Sec.
22 331. Collection of data concerning public procurement.
23 332. Advisory groups.
24 § 331. Collection of data concerning public procurement.
25 All executive and independent agencies shall furnish such
26 reports as the department may require concerning usage, needs
27 and stock on hand, and the department may prescribe the format
28 and forms to be used by the agencies in requisitioning, ordering
29 and reporting supplies, services and construction.
30 § 332. Advisory groups.
19970S0005B1808 - 31 -
1 (a) Procurement Advisory Council.--The department may
2 establish a Procurement Advisory Council and allocate funds for
3 it that may be available. If created, the council, upon adequate
4 public notice, shall meet at least once a year for the
5 discussion of problems and recommendations for improvement of
6 the procurement process. When requested by the department, the
7 council may conduct studies, research and analyses and make
8 reports and recommendations with respect to subjects or matters
9 within the jurisdiction of the department. The council may
10 consist of any qualified persons the department deems
11 appropriate.
12 (b) Other advisory groups.--The department may appoint
13 advisory groups to assist with respect to specifications or
14 procurement in specific areas and with respect to any other
15 matters within the authority of the department.
16 (c) Reimbursement of expenses.--Members of the council and
17 other advisory groups may be reimbursed for expenses incurred in
18 the performance of their duties, subject to expenditure
19 limitations prescribed by the department.
20 (d) Conflict of interest.--Members of the council and other
21 advisory groups shall be considered State advisors under the act
22 of July 19, 1957 (P.L.1017, No.451), known as the State Adverse
23 Interest Act, and, as such, shall be subject to the prohibitions
24 for State advisors set forth in that act, provided that a member
25 shall not be deemed to have an adverse interest by virtue of any
26 action taken by the council or other advisory groups if the
27 member discloses the conflict of interest and properly recuses
28 himself from participating in any recommendation of the council
29 or an advisory group.
30 CHAPTER 5
19970S0005B1808 - 32 -
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 Requests 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 "Established catalog price." The price included in a
20 catalog, price list, schedule or other form that:
21 (1) is regularly maintained by a manufacturer or
22 contractor;
23 (2) is either published or otherwise available for
24 inspection by customers; and
25 (3) states prices at which sales are currently or were
26 last made to a significant number of any category of buyers
27 or buyers constituting the general buying public for the
28 supplies or services involved.
29 "Invitation for bids." All documents, including those either
30 attached or incorporated by reference, used for soliciting bids.
19970S0005B1808 - 33 -
1 "Life cycle cost." The total cost of the supply in terms of
2 purchase cost, installation cost, maintenance cost, energy cost,
3 supply cost and other costs.
4 "Procurement description." The words used in a solicitation
5 to describe the supplies, services or construction to be
6 procured. The term includes specifications attached to or made a
7 part of the solicitation.
8 "Request for proposals." All documents, including those
9 either attached or incorporated by reference, used for
10 soliciting proposals.
11 "Responsible bidder or offeror." A person who has the
12 capability in all respects to fully perform the contract
13 requirements and the integrity and reliability which will assure
14 good faith performance.
15 "Responsive bidder or offeror." A person who has submitted a
16 bid which conforms in all material respects to the invitation
17 for bids.
18 "Sealed bid or proposal." A bid or proposal whose contents
19 is not disclosed until the bid opening time or the proposal
20 receipt date. Bids and proposals are typically submitted in
21 sealed envelopes to meet this requirement, but electronic
22 submission is not prohibited so long as the purchasing agency
23 has the electronic capability to maintain the confidentiality of
24 the bid or proposal until the bid opening time or proposal
25 receipt date.
26 SUBCHAPTER B
27 METHODS OF SOURCE SELECTION
28 Sec.
29 511. Methods of source selection.
30 512. Competitive sealed bidding.
19970S0005B1808 - 34 -
1 513. Competitive sealed proposals.
2 514. Small procurements.
3 515. Sole source procurement.
4 516. Emergency procurement.
5 517. Multiple awards.
6 518. Competitive selection procedures for certain services.
7 519. Selection procedure for insurance and notary bonds.
8 520. Supplies manufactured by, and services performed by,
9 persons with disabilities.
10 § 511. Methods of source selection.
11 Unless otherwise authorized by law, all Commonwealth agency
12 contracts shall be awarded by competitive sealed bidding under
13 section 512 (relating to competitive sealed bidding) except as
14 provided in:
15 Section 513 (relating to competitive sealed proposals).
16 Section 514 (relating to small procurements).
17 Section 515 (relating to sole source procurement).
18 Section 516 (relating to emergency procurement).
19 Section 517 (relating to multiple awards).
20 Section 518 (relating to competitive selection procedures
21 for certain services).
22 Section 519 (relating to selection procedure for
23 insurance and notary bonds).
24 Section 520 (relating to supplies manufactured by, and
25 services performed by, persons with disabilities).
26 Section 905 (relating to procurement of design
27 professional services).
28 § 512. Competitive sealed bidding.
29 (a) Conditions for use.--Contracts shall be awarded by
30 competitive sealed bidding except as otherwise provided in
19970S0005B1808 - 35 -
1 section 511 (relating to methods of source selection).
2 (b) Invitation for bids.--An invitation for bids shall be
3 issued and shall include a procurement description and all
4 contractual terms, whenever practical, and conditions applicable
5 to the procurement.
6 (c) Public notice.--Adequate public notice of the invitation
7 for bids shall be given a reasonable time prior to the date set
8 for the opening of bids. The purchasing agency shall establish
9 written policies and may promulgate regulations regarding
10 methods of public notice. The method of public notice may
11 include any of the following:
12 (1) Electronic publication which is accessible to the
13 general public.
14 (2) Advertisement as provided for in 45 Pa.C.S. § 306
15 (relating to use of trade publications).
16 (3) Issuance of invitations for bids to bidders on the
17 solicitation mailing list of the purchasing agency.
18 (4) Publication in a newspaper of general circulation.
19 (5) Where prequalification is a requirement of
20 submitting a bid, notification to all contractors who have
21 been prequalified by the purchasing agency.
22 Copies of invitations to bid shall be made available to any
23 interested person upon request to the purchasing agency.
24 Purchasing agencies may establish procedures for the
25 distribution of invitations to bid including the imposition of a
26 fee to reimburse the agency for the costs of photocopying and
27 mailing.
28 (d) Bid opening.--Bids shall be opened publicly in the
29 presence of one or more witnesses at the time and place
30 designated in the invitation for bids. The amount of each bid
19970S0005B1808 - 36 -
1 and any other relevant information as may be specified by
2 regulation, together with the name of each bidder, shall be
3 recorded. The record shall be open to public inspection.
4 (e) Bid acceptance and evaluation.--Bids shall be
5 unconditionally accepted without alteration or modification
6 except as authorized in this part or in the invitation for bids.
7 Bids shall be evaluated based on the requirements set forth in
8 the invitation for bids, which may include criteria to determine
9 acceptability such as inspection, testing, quality, workmanship,
10 delivery and suitability for a particular purpose. Those
11 criteria that will affect the bid price and be considered in
12 evaluation for award shall be objectively measurable, such as
13 discounts, transportation costs and total or life cycle costs.
14 The invitation for bids shall set forth the evaluation criteria
15 to be used. No criteria may be used in bid evaluation that are
16 not set forth in the invitation for bids.
17 (f) Modification or withdrawal of bids.--
18 (1) Bids may be modified or withdrawn by written notice
19 or in person by a bidder or its authorized representative if
20 its identity is made known and a receipt for the bid is
21 signed prior to the exact hour and date set for the opening
22 of bids. Except as otherwise provided in this part,
23 withdrawals and modifications of bids received after the
24 exact hour and date specified for the opening of bids shall
25 not be considered.
26 (2) Withdrawal of erroneous bids after bid opening but
27 before award based on bid mistakes shall be permitted by the
28 written determination of the contracting officer when the
29 bidder requests relief and presents credible evidence that
30 the reason for the lower bid price was a clerical mistake as
19970S0005B1808 - 37 -
1 opposed to a judgment mistake and was actually due to an
2 unintentional arithmetical error or an unintentional omission
3 of a substantial quantity of work, labor, material or
4 services made directly in the compilation of the bid. The
5 request for relief and the supporting evidence must be
6 received by the contracting officer within a reasonable time
7 period after the bid opening. The time period shall be
8 specified by the department.
9 (3) The contracting officer shall not permit a
10 withdrawal of a bid if the withdrawal of the bid would result
11 in the awarding of the contract on another bid of the same
12 bidder, its partner or a corporation or business venture
13 owned by or in which the bidder has a substantial interest.
14 No bidder who is permitted to withdraw a bid shall supply any
15 material or labor to or perform any subcontract or other work
16 agreement for any person to whom a contract or subcontract is
17 awarded in the performance of the contract for which the
18 withdrawn bid was submitted, without the written approval of
19 the contracting officer.
20 (g) Award.--The contract shall be awarded within 60 days of
21 the bid opening by written notice to the lowest responsible and
22 responsive bidder whose bid meets the requirements and criteria
23 set forth in the invitation for bids or all bids shall be
24 rejected except as otherwise provided in this section.
25 Extensions of the date for the award may be made by mutual
26 written consent of the contracting officer and the lowest
27 responsible and responsive bidder. Within 30 days of the bid
28 opening the contracting officer shall, if bid security was
29 required by the invitation for bids, return the bid security to
30 all but the lowest and next-to-lowest bidders then under
19970S0005B1808 - 38 -
1 consideration for contract award.
2 (h) Multistep sealed bidding.--When it is considered
3 impractical to prepare initially a procurement description to
4 support an award based on price, an invitation for bids may be
5 issued requesting the submission of unpriced offers, to be
6 followed by an invitation for bids limited to those bidders
7 whose offers have been qualified under the criteria set forth in
8 the first solicitation.
9 § 513. Competitive sealed proposals.
10 (a) Conditions for use.--When the contracting officer
11 determines in writing that the use of competitive sealed bidding
12 is either not practicable or advantageous to the Commonwealth, a
13 contract may be entered into by competitive sealed proposals.
14 (b) Request for proposals.--Proposals shall be solicited
15 through a request for proposals.
16 (c) Public notice.--Public notice of the request for
17 proposals shall be given in the same manner as provided in
18 section 512(c) (relating to competitive sealed bidding).
19 (d) Receipt of proposals.--Offerors shall submit their
20 proposal to ensure that their proposals are received prior to
21 the time and date established for receipt of the proposals.
22 Proposals shall be submitted in the format required by the
23 request for proposals. Proposals shall be opened so as to avoid
24 disclosure of their contents to competing offerors.
25 (e) Evaluation.--The relative importance of the evaluation
26 factors shall be fixed prior to opening the proposals. A
27 Commonwealth agency is required to invite its comptroller to
28 participate in the evaluation as a nonvoting member of any
29 evaluation committee.
30 (f) Discussion with responsible offerors and revision of
19970S0005B1808 - 39 -
1 proposals.--As provided in the request for proposals,
2 discussions may be conducted with responsible offerors who
3 submit proposals determined to be reasonably susceptible of
4 being selected for award for the purpose of clarification to
5 assure full understanding of and responsiveness to the
6 solicitation requirements and for the purpose of obtaining best
7 and final offers. Offerors shall be accorded fair and equal
8 treatment with respect to any opportunity for discussion and
9 revision of proposals. In conducting discussions, there shall be
10 no disclosure of any information derived from proposals
11 submitted by competing offerors.
12 (g) Award of contract.--The responsible offeror whose
13 proposal is determined in writing to be the most advantageous to
14 the purchasing agency, taking into consideration price and all
15 evaluation factors, shall be selected for contract negotiation.
16 (h) Contract negotiation.--After selection, the purchasing
17 agency shall proceed to negotiate a contract with the selected
18 offeror.
19 § 514. Small procurements.
20 If the procurement is not the subject of a Statewide
21 requirements contract between the purchasing agency and a
22 contractor, the head of the purchasing agency may authorize in
23 writing procurements without formal bid procedures, not
24 exceeding the amount established by the purchasing agency. The
25 department may authorize procurement on a no-bid basis for
26 procurements which do not exceed the amount established by the
27 department for small, no-bid procurements. Procurement
28 requirements shall not be artificially divided so as to
29 constitute a small procurement under this section. Small
30 procurements shall be made in accordance with the requirements
19970S0005B1808 - 40 -
1 of the written authorization and this section. Records of all
2 small procurements shall be transmitted to the purchasing
3 agency.
4 § 515. Sole source procurement.
5 A contract may be awarded for a supply, service or
6 construction item without competition when the contracting
7 officer first determines in writing that one of the following
8 conditions exists:
9 (1) Only a single contractor is capable of providing the
10 supply, service or construction.
11 (2) A Federal or State statute or Federal regulation
12 exempts the supply, service or construction from the
13 competitive procedure.
14 (3) The total cost of the supply, service or
15 construction is less than the amount established by the
16 department for small, no-bid procurements under section 514
17 (relating to small procurements).
18 (4) It is clearly not feasible to award the contract on
19 a competitive basis.
20 (5) The services are to be provided by attorneys or
21 litigation consultants selected by the Office of General
22 Counsel, the Office of Attorney General, the Department of
23 the Auditor General or the Treasury Department.
24 (6) The services are to be provided by expert witnesses.
25 (7) The services involve the repair, modification or
26 calibration of equipment and they are to be performed by the
27 manufacturer of the equipment or by the manufacturer's
28 authorized dealer, provided the contracting officer
29 determines that bidding is not appropriate under the
30 circumstances.
19970S0005B1808 - 41 -
1 (8) The contract is for investment advisors or managers
2 selected by the Public School Employees' Retirement System,
3 the State Employees' Retirement System or a State-affiliated
4 entity.
5 (9) The contract is for financial or investment experts
6 to be used and selected by the Treasury Department or
7 financial or investment experts selected by the Secretary of
8 the Budget.
9 (10) It is in the best interest of the Commonwealth.
10 The written determination authorizing sole source procurement
11 shall be included in the contract file. With the exception of
12 small procurements under section 514 and emergency procurements
13 under section 516 (relating to emergency procurement), if the
14 sole source procurement is for a supply for which the department
15 acts as purchasing agency, it must be approved by the Board of
16 Commissioners of Public Grounds and Buildings prior to the award
17 of a contract.
18 § 516. Emergency procurement.
19 The head of a purchasing agency may make or authorize others
20 to make an emergency procurement when there exists a threat to
21 public health, welfare or safety or circumstances outside the
22 control of the agency creates an urgency of need which does not
23 permit the delay involved in using more formal competitive
24 methods. Whenever practical, in the case of a procurement of a
25 supply, at least two bids shall be solicited. A written
26 determination of the basis for the emergency and for the
27 selection of the particular contractor shall be included in the
28 contract file.
29 § 517. Multiple awards.
30 (a) Conditions for use.--Contracts may be entered into on a
19970S0005B1808 - 42 -
1 multiple award basis when the head of the purchasing agency
2 determines that 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 (5) The agency should select the contractor to furnish
16 the supply, service or construction based upon best value or
17 return on investment.
18 (b) Solicitation process.--Invitations to bid or requests
19 for proposals shall be issued for the supplies, services or
20 construction to be purchased.
21 (c) Public notice.--Public notice of the invitation for bids
22 shall be given in the same manner as provided in section 512(c)
23 (relating to competitive sealed bidding).
24 (d) Receipt of bids or proposals.--Bids shall be opened in
25 the same manner as provided in section 512(d). Proposals shall
26 be received in the same manner as provided in section 513(d)
27 (relating to competitive sealed proposals).
28 (e) Award.--The invitation for bids or request for proposals
29 shall describe the method for selection of the successful
30 bidders or offerors. There are three options:
19970S0005B1808 - 43 -
1 (1) Awards shall be made to the lowest responsible and
2 responsive bidder or offeror for each designated
3 manufacturer.
4 (2) Awards shall be made to the two or three lowest
5 responsible and responsive bidders or offerors for each
6 designated manufacturer.
7 (3) Awards shall be made to all responsible and
8 responsive bidders or offers. The Commonwealth agency shall
9 have the discretion to select the contractor to furnish the
10 supply, service or construction based upon best value or
11 return on investment.
12 § 518. Competitive selection procedures for certain services.
13 (a) Conditions for use.--The services of accountants,
14 clergy, physicians, lawyers, dentists and other personal
15 services which are not performed by other Commonwealth employees
16 shall be procured in accordance with this section except as
17 authorized under section 514 (relating to small procurements),
18 515 (relating to sole source procurement) or 516 (relating to
19 emergency procurement).
20 (b) Statement of qualifications.--Persons engaged in
21 providing the types of services specified in subsection (a) may
22 submit statements of qualifications and expressions of interest
23 in providing these services. The contracting officer may specify
24 a uniform format for statements of qualifications. Persons may
25 amend these statements at any time by filing a new statement.
26 (c) Request for proposals.--Adequate notice of the need for
27 the services specified in subsection (a) shall be given by the
28 purchasing agency through a request for proposals. The request
29 for proposals shall describe the services required, list the
30 type of information required of each offeror and state the
19970S0005B1808 - 44 -
1 relative importance of the particular information.
2 (d) Discussions.--The contracting officer may conduct
3 discussions with any offeror who has submitted a proposal to
4 determine the offeror's qualifications for further
5 consideration. Discussions shall not disclose any information
6 derived from proposals submitted by other offerors.
7 (e) Award.--Award shall be made to the offeror determined in
8 writing by the contracting officer to be best qualified based on
9 the evaluation factors set forth in the request for proposals.
10 Fair and reasonable compensation shall be determined through
11 negotiation. If compensation cannot be agreed upon with the best
12 qualified offeror, then negotiations will be formally terminated
13 with the selected offeror. If proposals were submitted by one or
14 more other offerors determined to be qualified, negotiations may
15 be conducted with the other offeror or offerors in the order of
16 their respective qualification ranking. The contract may be
17 awarded to the offeror then ranked as best qualified if the
18 amount of compensation is determined to be fair and reasonable.
19 § 519. Selection procedure for insurance and notary bonds.
20 (a) Conditions for use.--Insurance and notary bonds shall be
21 procured by the department in accordance with this section
22 except as authorized under section 515 (relating to sole source
23 procurement) or 516 (relating to emergency procurement).
24 (b) Statement of qualifications.--Insurance and bond
25 carriers may submit statements of qualifications and expressions
26 of interest in providing insurance or notary bonds. The
27 department may specify a uniform format for statements of
28 qualifications.
29 (c) Request for proposals.--Adequate notice of the need for
30 insurance or notary bond coverage shall be given by the
19970S0005B1808 - 45 -
1 purchasing agency through a request for proposals. The request
2 for proposals shall describe the type of insurance or bond
3 coverage required and list the type of information and data
4 required of each offeror.
5 (d) Receipt of proposals.--Offerors shall submit their
6 proposals prior to the time and date specified.
7 (e) Discussions with responsible offerors and revision to
8 proposals.--Discussions and negotiations may be conducted with
9 responsible offerors who submit proposals determined to be
10 reasonably susceptible of being selected for award. Offerors
11 shall be accorded fair and equal treatment with respect to any
12 opportunity for discussion, negotiation and revision of
13 proposals. Revisions may be permitted after submissions and
14 prior to award for the purpose of obtaining best and final
15 offers.
16 (f) Award.--Award shall be made to the offeror whose
17 proposal is determined in writing by the department to be the
18 most advantageous to the Commonwealth based on criteria
19 determined by the department, including the coverage offered and
20 the cost of the premium.
21 § 520. Supplies manufactured by, and services performed by,
22 persons with disabilities.
23 (a) General rule.--Contracts may be entered into for <--
24 supplies manufactured by, and services performed by, persons
25 with disabilities without competition in accordance with this
26 section.
27 (A) GENERAL RULE.--CONTRACTS FOR SUPPLIES MANUFACTURED BY <--
28 AND SERVICES PERFORMED BY PERSONS WITH DISABILITIES SHALL BE
29 ENTERED INTO IN ACCORDANCE WITH THIS SECTION WITHOUT THE
30 REQUIREMENT FOR COMPETITIVE BIDDING.
19970S0005B1808 - 46 -
1 (b) Fair market price.--Upon request from an agency for <--
2 persons with disabilities OF THE DEPARTMENT and notice to the <--
3 purchasing agency, the department shall determine the fair
4 market price of any supply manufactured by, or service performed
5 by, persons with disabilities and offered for sale to any
6 Commonwealth agency by an agency for persons with disabilities.
7 The department shall revise the prices in accordance with
8 changing market conditions.
9 (c) Distribution.--At the request of the department, the
10 Department of Public Welfare, or a nonprofit agency with the
11 approval of the Department of Public Welfare, shall facilitate
12 the distribution of orders for supplies manufactured by or
13 services performed by persons with disabilities among agencies
14 for persons with disabilities.
15 (d) Procurement of supplies manufactured by, and services
16 performed by, persons with disabilities.--Except as provided in
17 subsection (e), all supplies manufactured by, and services
18 furnished by, persons with disabilities shall be procured in
19 accordance with applicable specifications of the department or
20 other Commonwealth agencies from any agency for persons with
21 disabilities whenever the supplies and services are available at
22 a price determined by the department to be the fair market
23 price. The head of a purchasing agency shall annually discuss
24 its needs for supplies or services with the ANY agency for <--
25 persons with disabilities.
26 (e) Procurement from Commonwealth agency.--If any supply
27 manufactured by, or any service performed by, persons with
28 disabilities and offered for sale is available for procurement
29 from any Commonwealth agency and this part or any other statute
30 requires the procurement of the supply or service from the
19970S0005B1808 - 47 -
1 Commonwealth agency, then the procurement of the supply or
2 service shall be made in accordance with the other provisions.
3 (F) EXCEPTION.--NOTWITHSTANDING SUBSECTION (H), WHEN THE <--
4 COMMONWEALTH ENTERS INTO A CONTRACT UNDER THIS SECTION FOR THE
5 OPERATION OF THE COMMONWEALTH'S DRIVER'S LICENSE PHOTO CENTERS,
6 AT LEAST 70% OF THE AMOUNT PAID BY THE COMMONWEALTH SHALL BE
7 USED TO COVER PAYMENT OF WAGES AND SALARIES TO PERSONS WITH
8 DISABILITIES AND TO COVER ACTUAL MANUFACTURING COSTS, REAL
9 ESTATE LEASE COSTS, PROPERTY INSURANCE AND OTHER COSTS WHICH ARE
10 SPECIFICALLY REQUIRED BY CONTRACT.
11 (G) APPLICATION.--
12 (1) THIS SECTION SHALL NOT SUPERSEDE ANY CONTRACT
13 CURRENTLY IN FORCE BETWEEN A COMMONWEALTH AGENCY AND ANOTHER
14 PARTY.
15 (2) NOTHING IN THIS SECTION SHALL BE CONSTRUED AS
16 CONFERRING UPON ANY PARTY ANY RIGHT OR INTEREST IN ANY
17 CONTRACT ENTERED INTO WITH THE COMMONWEALTH.
18 (f) (H) Definitions.--As used in this section, the following <--
19 words and phrases shall have the meanings given to them in this
20 subsection:
21 "Agency for persons with disabilities." Any charitable,
22 nonprofit agency incorporated under the laws of this
23 Commonwealth and approved by the department through which
24 persons with disabilities manufacture supplies or perform
25 services in this Commonwealth.
26 "Mentally retarded." Subaverage general intellectual
27 functioning which originates during the developmental period and
28 is associated with the impairment of maturation, learning or
29 social adjustment.
30 "Persons with a disability." A person who is visually
19970S0005B1808 - 48 -
1 impaired, mentally retarded or physically disabled.
2 "Physically disabled." A limitation of most activities and
3 functioning by virtue of a severe impairment of the various
4 bodily systems which cannot be eliminated, modified or
5 substantially reduced by the usual rehabilitation services and
6 which precludes competitive employment.
7 "Supply manufactured by, or service performed by, person with
8 disabilities." At least 75% of the personnel either engaged in
9 the direct labor of manufacturing of a product or engaged in the
10 direct labor in performing a service in this Commonwealth must
11 be visually impaired, mentally retarded or physically disabled.
12 In addition, at least 75% of the amount paid by the Commonwealth
13 agency for the product or the service shall be remitted to the
14 agency for persons with disabilities to cover payment of wages
15 and salaries to persons with disabilities and to cover other
16 actual manufacturing costs incurred by the agency for persons
17 with disabilities in manufacturing of a product.
18 "Visually impaired." A condition in which central visual
19 acuity does not exceed 20/200 in the better eye with correcting
20 lenses or in which the widest diameter of the visual field
21 subtends an angle no greater than 20 degrees.
22 SUBCHAPTER C
23 CANCELLATION OF INVITATIONS FOR BIDS OR
24 REQUESTS FOR PROPOSALS
25 Sec.
26 521. Cancellation of invitations for bids or requests for
27 proposals.
28 § 521. Cancellation of invitations for bids or requests for
29 proposals.
30 An invitation for bids, a request for proposals or other
19970S0005B1808 - 49 -
1 solicitation may be canceled or any or all bids or proposals may
2 be rejected when it is in the best interests of the
3 Commonwealth. Bids may be rejected in part when specified in the
4 solicitation. The reasons for the cancellation or rejection
5 shall be made part of the contract file.
6 SUBCHAPTER D
7 QUALIFICATIONS AND DUTIES
8 Sec.
9 531. Debarment or suspension.
10 532. Prequalification of bidders and offerors.
11 533. Security and performance bonds.
12 534. Cost or pricing data.
13 535. Printing.
14 § 531. Debarment or suspension.
15 (a) Authority.--After reasonable notice to the person
16 involved and reasonable opportunity for that person to be heard,
17 the head of a purchasing agency, after consultation with the
18 head of the using agency, shall have authority to debar a person
19 for cause from consideration for award of contracts for a period
20 of not more than three years or to suspend a person from
21 consideration for award of contracts if there is probable cause
22 for debarment for a period of not more than three months.
23 (b) Causes for debarment or suspension.--The causes for
24 debarment or suspension include:
25 (1) Commission of embezzlement, theft, forgery, bribery,
26 falsification or destruction of records, making false
27 statements or receiving stolen property.
28 (2) Commission of fraud or a criminal offense or other
29 improper conduct or knowledge of, approval of, or
30 acquiescence in such activities by a contractor or any
19970S0005B1808 - 50 -
1 affiliate, officer, employee or other individual or entity
2 associated with:
3 (i) obtaining;
4 (ii) attempting to obtain; or
5 (iii) performing a public contract or subcontract.
6 The contractor's acceptance of the benefits derived from the
7 conduct shall be deemed evidence of such knowledge, approval
8 or acquiescence.
9 (3) Violation of Federal or State antitrust statutes.
10 (4) Violation of any Federal or State law regulating
11 campaign contributions.
12 (5) Violations of any Federal or State environmental
13 law.
14 (6) Violation of any Federal or State law regulating
15 hours of labor, minimum wage standards or prevailing wage
16 standards; discrimination in wages; or child labor
17 violations.
18 (7) Violation of the act of June 2, 1915 (P.L.736,
19 No.338), known as the Workers' Compensation Act.
20 (8) Violation of any Federal or State law prohibiting
21 discrimination in employment.
22 (9) Debarment by any agency or department of the Federal
23 Government or by any other state.
24 (10) Three or more occurrences where a contractor has
25 been declared ineligible for a contract.
26 (11) Unsatisfactory performance, including, but not
27 limited to, any of the following:
28 (i) Failure to comply with terms of a Commonwealth
29 agency contract or subcontract, including, but not
30 limited to: willful failure to perform in accordance with
19970S0005B1808 - 51 -
1 the terms of one or more contracts, a history of failure
2 to perform, or unsatisfactory performance of one or more
3 contracts.
4 (ii) Offering unbalanced bids.
5 (iii) Failure to complete the work in the time frame
6 specified in the contract.
7 (iv) Being declared in default on prior work or
8 project.
9 (v) Failure to submit documents, information or
10 forms as required by contract.
11 (vi) Making false statements or failing to provide
12 information or otherwise to cooperate with the
13 contracting agency, the Office of State Inspector General
14 or other Commonwealth authorities.
15 (vii) Discrimination in violation of laws or
16 regulations in the conduct of business as a contractor.
17 (12) Any other act or omission indicating a lack of
18 skill, ability, capacity, quality control, business integrity
19 or business honesty that seriously and directly affect the
20 present responsibility of a contractor as determined by the
21 purchasing agency.
22 (c) Decision.--After the contractor has been given notice of
23 the potential debarment and the opportunity to be heard, the
24 head of a purchasing agency shall issue a written decision. The
25 decision shall:
26 (1) State the reasons for the action taken.
27 (2) Inform the contractor involved of the right to
28 judicial review as provided in subsection (e).
29 (d) Notice of decision.--A copy of the decision under
30 subsection (c) shall be delivered by registered mail to the
19970S0005B1808 - 52 -
1 contractor, any other party intervening or any interested party
2 that has provided written notice to the purchasing agency of
3 that party's interest in the decision under subsection (c).
4 (e) Finality of decision and appeal.--A decision under
5 subsection (c) shall be final and conclusive unless the
6 contractor appeals to the Commonwealth Court under 42 Pa.C.S. §
7 763(a)(1) (relating to direct appeals from government agencies)
8 within 30 days after receipt of the decision.
9 (f) Effect of suspension/debarment.--Suspension or debarment
10 of a contractor, vendor or other person shall automatically
11 prohibit all Commonwealth agencies from awarding any contract to
12 such contractor, vendor or other person or renewing or extending
13 any contract with such contractor, vendor or other person,
14 unless the contracting officer determines that there are
15 compelling reasons for such award, renewal or extension and the
16 head of the purchasing agency approves the determination.
17 § 532. Prequalification of bidders and offerors.
18 Prospective bidders and offerors may be prequalified for
19 particular types of supplies, services and construction.
20 § 533. Security and performance bonds.
21 (a) Contract for supplies or services.--
22 (1) In the case of competitive sealed bidding or
23 competitive sealed proposals for a contract for supplies or
24 services, bidders or offerors may be required by the
25 contracting officer to provide bid or proposal security. Bid
26 or proposal security shall be in the form of a certified or
27 bank check or a bond provided by a surety company authorized
28 to do business in this Commonwealth or another form of
29 security as specified in the invitation for bids or request
30 for proposals. Bid or proposal security shall be at least in
19970S0005B1808 - 53 -
1 the minimum amount or percentage of the amount of the bid as
2 shall be specified in the advertisement, invitation for bids
3 or request for proposals.
4 (2) When the invitation for bids or the request for
5 proposals requires security, noncompliance by the bidder or
6 offeror with the instructions in the invitation for bids or
7 request for proposals requires that the bid or proposal be
8 rejected unless it is determined that the bid or proposal
9 fails to comply with the security requirements in a
10 nonsubstantial manner.
11 (3) After the bids are opened, they shall be irrevocable
12 for the period specified in the invitation for bids or the
13 request for proposals except as provided in section 512(f)
14 (relating to competitive sealed bidding). If a bidder or
15 offeror is permitted to withdraw its bid before award, no
16 action shall be had against the bidder or offeror or against
17 the bid or proposal security.
18 (4) A contractor may be required by the contracting
19 officer to provide a performance bond executed by a surety
20 company authorized to do business in this Commonwealth. In
21 lieu of a bond, a contractor may provide other security as
22 permitted by the head of the purchasing agency. The
23 performance bond or other required security shall be in an
24 amount determined by the head of the purchasing agency, and
25 it shall be conditioned upon the faithful performance of the
26 contract.
27 (b) Contract for construction.--Bid security and performance
28 bonds as required for contracts for construction are provided
29 for in sections 902 (relating to bid or proposal security) and
30 903 (relating to contract performance and payment bonds).
19970S0005B1808 - 54 -
1 § 534. 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 its 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 award of any contract under section 513
9 (relating to competitive sealed proposals) or 515 (relating
10 to sole source procurement) where, under either section, the
11 total contract price is expected to exceed an amount
12 established by the head of the purchasing agency; or
13 (2) the pricing of any change order or contract
14 modification which is expected to exceed an amount
15 established by the head of the purchasing agency.
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 purchasing
19 agency, including profit or fee, shall be adjusted to exclude
20 any significant sums by which the purchasing 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) When responsive proposals are received from two or
28 more offerors.
29 (2) When the contract price is based on established
30 catalog prices or market prices.
19970S0005B1808 - 55 -
1 (3) When contract prices are set by statute or
2 regulation.
3 (4) When it is determined in writing by the contracting
4 officer that the requirements of this section may be waived
5 and the reasons for the waivers are stated in writing.
6 § 535. Printing.
7 No contract for printing shall be entered into with any
8 contractor until the purchasing agency is satisfied that the
9 contractor is the owner or lessee of machinery and equipment
10 necessary to properly and promptly perform any orders issued to
11 the contractor under the proposed printing contract.
12 SUBCHAPTER E
13 TYPES OF CONTRACTS
14 Sec.
15 541. Approval of accounting system.
16 542. Multiterm contracts.
17 543. Effective contracts.
18 § 541. Approval of accounting system.
19 No contract type shall be used unless it has been determined
20 in writing by the head of the purchasing agency that:
21 (1) The proposed contractor's accounting system will
22 permit timely development of all necessary cost data in the
23 form required by the specific contract type contemplated.
24 (2) The proposed contractor's accounting system is
25 adequate to allocate costs in accordance with generally
26 accepted accounting principles.
27 Notwithstanding the preceding, a contract may be used without a
28 prior written determination where the contract is a firm fixed
29 price contract, or a contract awarded under section 516
30 (relating to emergency procurement).
19970S0005B1808 - 56 -
1 § 542. Multiterm contracts.
2 (a) Specified period.--A contract for supplies, construction
3 or services may be entered into for a period of time deemed to
4 be in the best interests of the Commonwealth. The term of the
5 contract and conditions of renewal or extension, if any, shall
6 be included in the solicitation, and funds shall be available
7 for the first fiscal period at the time of contracting. Payment
8 and performance obligations for succeeding fiscal periods shall
9 be subject to the availability and appropriation of funds.
10 (b) Cancellation for unavailability of funds in succeeding
11 fiscal periods.--When funds are not appropriated or otherwise
12 made available to support continuation of performance in a
13 subsequent fiscal period, the contract shall be canceled, and
14 the contractor shall be reimbursed for the reasonable value of
15 any nonrecurring costs incurred but not amortized in the price
16 of the supplies, services or construction delivered under the
17 contract. Such reimbursement shall not include loss of
18 anticipated profit, loss of use of money or administrative or
19 overhead costs. The cost of cancellation may be paid from any
20 appropriations available for that purpose. The contractor shall
21 not be entitled to any reimbursement where the Commonwealth
22 elects not to exercise a renewal or extension option provided
23 for in the contract.
24 § 543. Effective contracts.
25 (a) General rule.--Irrespective of the type of contract, no
26 contract shall be effective until executed by all necessary
27 Commonwealth officials as provided by law.
28 (b) Certain contracts.--Those Statewide requirements
29 contracts where the total dollar purchasing amount, based upon
30 estimated quantities, is in excess of $1,000,000 shall not be
19970S0005B1808 - 57 -
1 effective unless first approved by the State Treasurer. The
2 $1,000,000 amount shall be adjusted each year by the department
3 to reflect the annual percentage change in the Composite
4 Construction Cost Index of the United States Department of
5 Commerce occurring in the one-year period ending December 31
6 each year.
7 SUBCHAPTER F
8 INSPECTION OF PLANT AND AUDIT OF RECORDS
9 Sec.
10 551. Right to inspect plant.
11 552. Right to audit records.
12 § 551. Right to inspect plant.
13 The purchasing agency may, at reasonable times, inspect the
14 part of the plant or place of business of a contractor or any
15 subcontractor which is related to the performance of any
16 contract awarded or to be awarded by the purchasing agency.
17 § 552. Right to audit records.
18 (a) Audit of cost or pricing data.--The purchasing agency or
19 its designee may, at reasonable times and places, audit the
20 books and records of any person who has submitted cost or
21 pricing data under section 534 (relating to cost or pricing
22 data) to the extent that the books and records relate to the
23 cost or pricing data. A person who receives a contract, change
24 order or contract modification for which cost or pricing data is
25 required shall maintain the books and records that relate to the
26 cost or pricing data for three years from the date of final
27 payment under the contract unless a shorter period is otherwise
28 authorized by the purchasing agency in writing.
29 (b) Contract audit.--The purchasing agency may audit the
30 books and records of a contractor or any subcontractor under any
19970S0005B1808 - 58 -
1 negotiated contract or subcontract other than a firm fixed-price
2 contract to the extent that the books and records relate to the
3 performance of the contract or subcontract. The books and
4 records shall be maintained by the contractor for a period of
5 three years from the date of final payment under the prime
6 contract and by the subcontractor for a period of three years
7 from the date of final payment under the prime contract unless a
8 shorter period is otherwise authorized by the purchasing agency
9 in writing.
10 SUBCHAPTER G
11 DETERMINATIONS AND REPORTS
12 Sec.
13 561. Finality of determinations.
14 562. Anticompetitive practices.
15 563. Retention of procurement records.
16 564. Record of certain actions.
17 § 561. Finality of determinations.
18 The determinations required by the following sections are
19 final and conclusive unless they are clearly erroneous,
20 arbitrary, capricious or contrary to law:
21 Section 512(f) (relating to competitive sealed bidding).
22 Section 513(a) and (g) (relating to competitive sealed
23 proposals).
24 Section 515 (relating to sole source procurement).
25 Section 516 (relating to emergency procurement).
26 Section 518(e) (relating to competitive selection
27 procedures for certain services).
28 Section 519(f) (relating to selection procedure for
29 insurance and notary bonds).
30 Section 534(c) (relating to cost or pricing data).
19970S0005B1808 - 59 -
1 Section 541 (relating to approval of accounting system).
2 § 562. Anticompetitive practices.
3 Collusion among bidders is unlawful. Every contract,
4 combination or conspiracy which unreasonably restrains trade
5 among bidders or offerors is unlawful. Contracts so arrived at
6 may be declared void at the option of the Commonwealth. In
7 addition to remedies available to the Commonwealth in the
8 Federal courts, there shall be the same remedies in the courts
9 of this Commonwealth. When any person has reason to believe
10 collusion or other anticompetitive practices have occurred among
11 any bidders or offerors, a notice of the relevant facts shall be
12 transmitted to the Attorney General who shall investigate the
13 reports.
14 § 563. Retention of procurement records.
15 All procurement records, including any written determinations
16 issued in accordance with section 561 (relating to finality of
17 determinations), shall be retained for a minimum of three years
18 from the date of final payment under the contract and disposed
19 of in accordance with records retention guidelines and schedules
20 as provided by law. In accordance with applicable law, all
21 retained documents shall be made available to the State
22 Treasurer, Auditor General, General Counsel, Inspector General
23 and Attorney General upon request.
24 § 564. Record of certain actions.
25 The purchasing agency shall maintain a record listing all
26 contracts made under sections 514 (relating to small
27 procurements), 515 (relating to sole source procurement) and 516
28 (relating to emergency procurement) for a minimum of three years
29 from the date of final payment under the contract. The record
30 shall contain:
19970S0005B1808 - 60 -
1 (1) Each contractor's name.
2 (2) The amount and type of each contract.
3 (3) A listing of the supplies, services or construction
4 procured under each contract.
5 CHAPTER 7
6 (Reserved)
7 CHAPTER 9
8 PROCUREMENT OF CONSTRUCTION AND DESIGN
9 PROFESSIONAL SERVICES
10 Sec.
11 901. Definitions.
12 902. Bid or proposal security.
13 903. Contract performance security and payment bonds.
14 904. Copies of bonds.
15 905. Procurement of design professional services.
16 § 901. Definitions.
17 The following words and phrases when used in this chapter
18 shall have the meanings given to them in this section unless the
19 context clearly indicates otherwise:
20 "Design professional services." Those professional services
21 within the scope of the practice of architecture, geology,
22 engineering, landscape architecture or land surveying, including
23 studies, investigations, surveying, mapping, tests, evaluations,
24 consultations, comprehensive planning, program management,
25 conceptual design, plans and specifications, value engineering,
26 maintenance manuals and other related services associated with
27 research, planning, development, design, construction,
28 alteration or repair of real property. The term includes
29 services provided under the supervision of a professional
30 engineer to develop engineering software which will aid design
19970S0005B1808 - 61 -
1 professionals in performing their work. The term does not
2 include those services which are not exclusively within the
3 scope of architecture, geology, engineering or landscape
4 architecture, but which are related to capital improvements such
5 as, but not limited to, environmental hygienics, construction
6 management as described in section 322 (relating to specific
7 construction powers, duties and procedures), exhibit design,
8 fine arts or lesser arts and crafts, even though an architect,
9 geologist, engineer or landscape architect may provide such
10 services.
11 § 902. Bid or proposal security.
12 (a) Requirement for bid security.--Bidders or offerors may
13 be required to provide bid or proposal security for construction
14 contracts. Bid or proposal security shall be in the form of a
15 certified or bank check or a bond provided by a surety company
16 authorized to do business in this Commonwealth or another form
17 of security as specified in the invitation for bids or request
18 for proposals.
19 (b) Amount of bid or proposal security.--Bid security shall
20 be at least in the minimum amount or percentage of the amount of
21 the bid as shall be specified in the advertisement, the
22 invitation for bids or the request for proposals.
23 (c) Rejection of bids or proposals.--When the invitation for
24 bids or the request for proposals requires security,
25 noncompliance with the instructions in the invitation for bids
26 or the request for proposals requires that the bid or proposal
27 be rejected unless it is determined that the bid or proposal
28 fails to comply with the security requirements in a
29 nonsubstantial manner.
30 (d) Withdrawal of bids.--After the bids are opened, they
19970S0005B1808 - 62 -
1 shall be irrevocable for the period specified in the invitation
2 for bids except as provided in section 512(f) (relating to
3 competitive sealed bidding). If a bidder is permitted to
4 withdraw its bid before award, no action shall be had against
5 the bidder or the bid security.
6 § 903. Contract performance security and payment bonds.
7 (a) When required and amounts.--For construction contracts
8 awarded for amounts between $25,000 and $100,000, the purchasing
9 agency shall require contract performance security, in an amount
10 equal to at least 50% of the contract price, as the purchasing
11 agency, in its discretion, determines necessary to protect the
12 interests of the Commonwealth. When a construction contract is
13 awarded in excess of $100,000, the following bonds shall be
14 delivered to the purchasing agency and shall be binding on the
15 parties upon the execution of the contract:
16 (1) A performance bond, executed by a surety company
17 authorized to do business in this Commonwealth and made
18 payable to the Commonwealth, in an amount equal to 100% of
19 the price specified in the contract and conditioned upon the
20 faithful performance of the contract in accordance with the
21 plans, specifications and conditions of the contract.
22 (2) A payment bond, executed by a surety company
23 authorized to do business in this Commonwealth and made
24 payable to the Commonwealth, in an amount equal to 100% of
25 the price specified in the contract and conditioned upon the
26 prompt payment for all materials furnished or labor supplied
27 or performed in the prosecution of the work. Labor or
28 materials include public utility services and reasonable
29 rentals of equipment for the periods when the equipment is
30 actually used at the site.
19970S0005B1808 - 63 -
1 (b) Protection.--A performance bond shall be solely for the
2 protection of the purchasing agency which awarded the contract.
3 A payment bond shall be solely for the protection of claimants
4 supplying labor or materials to the prime contractor to whom the
5 contract was awarded or to any of its subcontractors in the
6 prosecution of the work provided for in the contract, whether or
7 not the labor or materials constitute a component part of the
8 construction.
9 (c) Authority to require additional bonds.--Nothing in this
10 section shall be construed to limit the authority of the
11 Commonwealth agency to require a performance bond, payment bond
12 or other security in addition to those bonds or in circumstances
13 other than specified in subsection (a).
14 (d) Actions on payment bonds.--
15 (1) Subject to paragraph (2), any claimant who has
16 performed labor or furnished material in the prosecution of
17 the work provided for in any contract for which a payment
18 bond has been given under subsection (a) and who has not been
19 paid in full before the expiration of 90 days after the day
20 on which the claimant performed the last of the labor or
21 furnished the last of the materials for which it claims
22 payments may bring an action on the payment bond in its own
23 name, in assumpsit, to recover any amount due it for the
24 labor or material and may prosecute the action to final
25 judgment and have execution on the judgment.
26 (2) Any claimant who has a direct contractual
27 relationship with any subcontractor of the prime contractor
28 who gave the payment bond but has no contractual
29 relationship, express or implied, with the prime contractor
30 may bring an action on the payment bond only if it has given
19970S0005B1808 - 64 -
1 written notice to the contractor within 90 days from the date
2 on which the claimant performed the last of the labor or
3 furnished the last of the materials for which it claims
4 payment, stating with substantial accuracy the amount and the
5 name of the person for whom the work was performed or to whom
6 the material was furnished.
7 (3) Notice shall be served by registered mail in an
8 envelope addressed to the contractor at any place where its
9 office is regularly maintained for the transaction of
10 business or served in any manner in which legal process may
11 be served in the manner provided by law for the service of a
12 summons except that the service need not be made by a public
13 officer.
14 (e) Adjustment of threshold amount.--The dollar thresholds
15 set forth in subsection (a) shall be adjusted annually by the
16 department to reflect the annual percentage change in the
17 Composition Construction Cost Index of the United States
18 Department of Commerce occurring in the one-year period ending
19 on December 31 of each year.
20 § 904. Copies of bonds.
21 (a) Copies of bonds.--The purchasing agency shall furnish a
22 copy of any payment bond and the contract for which the bond was
23 given to any person who makes an application for the copy.
24 (b) Fee for copies.--Each applicant shall pay for each copy
25 of any payment bond a fee fixed by the purchasing agency to
26 cover the actual cost of the preparation of the copy.
27 (c) Evidence.--A copy of any payment bond and of the
28 contract for which the bond was given constitutes prima facie
29 evidence of the contents, execution and delivery of the original
30 of the bond and contract.
19970S0005B1808 - 65 -
1 § 905. Procurement of design professional services.
2 (a) Applicability.--Design professional services shall be
3 procured as provided in this section except as authorized by
4 sections 514 (relating to small procurements), 515 (relating to
5 sole source procurement) and 516 (relating to emergency
6 procurement).
7 (b) Policy.--It is the policy of this Commonwealth to
8 publicly announce all requirements for design professional
9 services and to award contracts for design professional services
10 on the basis of demonstrated competence and qualification for
11 the types of services required. There shall be a committee to
12 review the qualifications, experience and work of design
13 professionals seeking contracts with purchasing agencies.
14 (c) Selection committees for Department of Transportation,
15 Department of Environmental Protection, Department of
16 Conservation and Natural Resources and State-affiliated
17 entities.--Where they are authorized by law to act as purchasing
18 agency for design professional services, the Department of
19 Transportation, the Department of Environmental Protection, the
20 Department of Conservation and Natural Resources and State-
21 affiliated entities shall each establish as many selection
22 committees as the department deems appropriate and a procedure
23 for the selection of committee members.
24 (d) Selection committee for all other Commonwealth
25 agencies.--Except as provided for in subsection (c), all
26 purchasing agencies shall use the selection committee appointed
27 by the Governor which shall be composed of five members, none of
28 whom shall be employees of the Commonwealth or hold any elective
29 office or office in any political party. The members shall be
30 architects, engineers or other persons knowledgeable in
19970S0005B1808 - 66 -
1 construction. The members shall serve for terms of two years and
2 shall not be removed except for cause. Of the original members,
3 three shall serve for terms of two years and two for terms of
4 one year. Thereafter, all terms shall be for two years. Each
5 member shall be reimbursed for reasonable travel and other
6 expenses incurred incident to attendance at meetings and to
7 assigned duties and also a per diem allowance in accordance with
8 Commonwealth travel policies.
9 (e) Procedure for selection committees.--The selection
10 committees shall use the procedure set forth in this subsection:
11 (1) The committee shall give public notice of projects
12 requiring design services and publicly recommend to the
13 purchasing agency three qualified design professionals for
14 each project.
15 (2) If desired, the committee may conduct discussions
16 with three or more professionals regarding anticipated design
17 concepts and proposed methods of approach to the assignment.
18 The committee shall select, based upon criteria established
19 by the head of the purchasing agency, no less than three
20 design professionals deemed to be the most highly qualified
21 to provide the services required. In exercising its
22 responsibility, the committee shall consider the following
23 factors:
24 (i) An equitable distribution of contracts to design
25 professionals.
26 (ii) Particular capability to perform the design or
27 construction services for the contract being considered.
28 (iii) Geographic proximity of the design
29 professional to the proposed facility.
30 (iv) The design professional selected has the
19970S0005B1808 - 67 -
1 necessary available personnel to perform the services
2 required by the project.
3 (v) Any other relevant circumstances peculiar to the
4 proposed contract.
5 (f) Design professionals.--Except as provided for in
6 subsection (g), the head of the purchasing agency shall select
7 design professionals as follows:
8 (1) Where the amount of the base construction allocation
9 is less than $20,000,000, the head of the purchasing agency
10 shall choose one of the three firms approved by the selection
11 committee. The fee to be paid to the appointed design
12 professional may be established by the selection committee or
13 may be negotiated at the discretion of the head of the
14 purchasing agency. The $20,000,000 threshold shall be
15 adjusted by the department to reflect the annual percentage
16 change in the Composite Construction Cost Index of the United
17 States Department of Commerce occurring in the one-year
18 period ending December 31 each year.
19 (2) Where the amount of base construction allocation is
20 in excess of or equal to $20,000,000, as annually adjusted,
21 the head of the purchasing agency shall choose one of the
22 three firms approved by the selection committee to begin
23 contract negotiations. The fee to be paid to the design
24 professional and the terms of the contract between the design
25 professional and the department shall be negotiated by the
26 head of the purchasing agency. In negotiating the contract
27 and the fee, the head of the purchasing agency shall take
28 into account the estimated value, scope, complexity,
29 uniqueness and the professional nature of the services to be
30 rendered. In the event the head of the purchasing agency is
19970S0005B1808 - 68 -
1 unable to negotiate a satisfactory contract or fee with the
2 appointed design professional, negotiations with that design
3 professional shall be terminated and the head of the
4 purchasing agency shall commence negotiations with one of the
5 other firms chosen by the selection committee. In the event
6 the head of the purchasing agency is unable to negotiate a
7 satisfactory contract or fee with the second firm, the head
8 of the purchasing agency shall terminate negotiations with
9 the second design professional and commence negotiation with
10 the third firm. In the event the head of the purchasing
11 agency is unable to negotiate a satisfactory contract with
12 any of the selected firms, the selection committee shall
13 choose additional qualified firms and the head of the
14 purchasing agency shall continue negotiations in accordance
15 with this subsection until an agreement is reached.
16 (g) Selection method for Department of Transportation,
17 Department of Conservation and Natural Resources, Department of
18 Environmental Protection and State-affiliated entities.--In the
19 event the Department of Transportation, the Department of
20 Conservation and Natural Resources, the Department of
21 Environmental Protection or a State-affiliated entity otherwise
22 authorized by law to use its own selection committee requires
23 the services of a design professional, the head of the
24 purchasing agency or a State-affiliated entity shall choose one
25 of the three firms approved by the selection committee. The head
26 of the purchasing agency or a State-affiliated entity shall
27 negotiate with the firm determined to be the highest qualified
28 firm for design professional services at a fee which is
29 determined to be fair and reasonable to the Commonwealth. In
30 making this decision, the head of the purchasing agency shall
19970S0005B1808 - 69 -
1 take into account the estimated value, scope, complexity and
2 professional nature of the services to be rendered. Should the
3 head of the purchasing agency be unable to negotiate a
4 satisfactory contract with the firm considered to be the most
5 qualified at a fee he determines to be fair and reasonable to
6 the Commonwealth, negotiations with that firm shall be formally
7 terminated. The head of the purchasing agency shall then
8 undertake negotiations with the firm he determines to be the
9 second highest qualified firm. Failing accord with the second
10 most qualified firm, the head of the purchasing agency shall
11 formally terminate negotiations and then undertake negotiations
12 with the third highest qualified firm. Should the head of the
13 purchasing agency be unable to negotiate a satisfactory contract
14 with any of the selected firms, the committee shall select
15 additional qualified firms, and the head of the purchasing
16 agency shall continue negotiations in accordance with this
17 section until an agreement is reached.
18 CHAPTER 11
19 (RESERVED)
20 CHAPTER 13
21 (Reserved)
22 CHAPTER 15
23 SUPPLY MANAGEMENT
24 Sec.
25 1501. Definitions.
26 1502. Supply management regulations.
27 1503. Proceeds from sale or disposal of surplus supplies.
28 1504. Exception.
29 § 1501. Definitions.
30 The following words and phrases when used in this chapter
19970S0005B1808 - 70 -
1 shall have the meanings given to them in this section unless the
2 context clearly indicates otherwise:
3 "Excess supplies." All nonexpendable supplies having a
4 remaining useful life but which are no longer required by the
5 using agency in possession of the supplies.
6 "Expendable supplies." All tangible supplies other than
7 nonexpendable supplies.
8 "Nonexpendable supplies." All tangible supplies having an
9 original acquisition cost of over $100 per unit and a probable
10 useful life of more than one year.
11 "Supplies." Supplies owned by Commonwealth agencies.
12 "Surplus supplies." Nonexpendable supplies no longer having
13 any use to any Commonwealth agency. The term includes obsolete
14 supplies, scrap materials and nonexpendable supplies that have
15 completed their useful life cycle. The term does not include
16 road or bridge materials or equipment that have been declared
17 surplus by the Department of Transportation under section 510 of
18 the act of April 9, 1929 (P.L.177, No.175), known as The
19 Administrative Code of 1929.
20 § 1502. Supply management regulations.
21 For executive and independent agencies, the department shall
22 establish policy and may promulgate regulations governing:
23 (1) The management of supplies during their entire life
24 cycle.
25 (2) The sale, lease or disposal of surplus supplies by
26 public auction, competitive sealed bidding or other
27 appropriate method designated by the department. However, no
28 employee of the owning or disposing agency shall be entitled
29 to purchase any of these supplies except when the sale price
30 of the surplus supply is less than the amount established by
19970S0005B1808 - 71 -
1 the department for permissible purchases by such employees.
2 (3) Transfer of excess supplies.
3 § 1503. Proceeds from sale or disposal of surplus supplies.
4 The proceeds from the sale, lease or disposal of surplus
5 supplies by an executive or independent agency shall be paid
6 into the State Treasury and deposited in the fund out of which
7 the supplies sold was originally purchased by the appropriate
8 credit to the then-current appropriation. The costs incurred by
9 the department in advertising or selling the supplies shall be
10 deducted from the purchase price, and that amount shall be an
11 executively authorized augmentation to the appropriation from
12 which the costs were paid by the department.
13 § 1504. Exception.
14 This chapter shall not apply to actions taken by the Office
15 of Attorney General under 42 Pa.C.S. Ch. 68 (relating to
16 controlled substances forfeitures).
17 CHAPTER 17
18 LEGAL AND CONTRACTUAL REMEDIES
19 Subchapter
20 A. General Provisions
21 B. Prelitigation Resolution of Controversies
22 C. Board of Claims
23 D. Solicitations or Awards in Violation of Law
24 E. Interest
25 SUBCHAPTER A
26 GENERAL PROVISIONS
27 Sec.
28 1701. Definitions.
29 1702. Sovereign immunity.
30 § 1701. Definitions.
19970S0005B1808 - 72 -
1 The following words and phrases when used in this chapter
2 shall have the meanings given to them in this section unless the
3 context clearly indicates otherwise:
4 "Claimant." A person filing a claim with the Board of
5 Claims.
6 § 1702. Sovereign immunity.
7 (a) General rule.--The General Assembly under section 11 of
8 Article I of the Constitution of Pennsylvania reaffirms
9 sovereign immunity, and, except as otherwise provided in this
10 chapter, no provision of this part shall constitute a waiver of
11 sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating
12 to sovereign immunity reaffirmed; specific waiver) or otherwise.
13 (b) Exception.--The General Assembly under section 11 of
14 Article I of the Constitution of Pennsylvania does hereby waive
15 sovereign immunity as a bar to claims against Commonwealth
16 agencies arising under this chapter but only to the extent set
17 forth in this chapter.
18 SUBCHAPTER B
19 PRELITIGATION RESOLUTION OF CONTROVERSIES
20 Sec.
21 1711. Authority to resolve protests of solicitations or
22 awards.
23 1712. Authority to resolve contract and breach of contract
24 controversies.
25 § 1711. Authority to resolve protests of solicitations or
26 awards.
27 (a) Right to protest.--An actual or prospective bidder,
28 offeror or contractor who is aggrieved in connection with the
29 solicitation or award of a contract may protest to the head of
30 the purchasing agency in writing. All protests under this
19970S0005B1808 - 73 -
1 subsection must be made within seven days after the protestant
2 knows or should have known of the facts giving rise to the
3 protest. If a protest is submitted by a protestant who did not
4 submit a bid, the protest must be received by the head of the
5 purchasing agency prior to the bid opening time or the proposal
6 receipt date or it shall be considered untimely and can be
7 disregarded by the purchasing agency.
8 (b) Authority to resolve protests.--The head of the
9 purchasing agency shall have the authority to settle and resolve
10 a protest of an aggrieved bidder, offeror or contractor, actual
11 or prospective, concerning the solicitation or award of a
12 contract.
13 (c) Decision.--If the protest is not resolved by mutual
14 agreement, the head of the purchasing agency shall promptly, but
15 in no event later than 120 days from the filing of the protest,
16 issue a decision in writing. The decision shall:
17 (1) State the reasons for the action taken.
18 (2) Inform the protestant of his right to file an action
19 in Commonwealth Court as provided in subsection (e).
20 (d) Notice of decision.--A copy of the decision under
21 subsection (c) shall be delivered by registered mail to the
22 protestant and any other person determined by the head of the
23 purchasing agency to be affected by the decision.
24 (e) Finality of decision.--A decision under subsection (c)
25 shall be final and conclusive unless a person adversely affected
26 by the decision files an action based on subsection (a) in
27 Commonwealth Court within 14 days of receipt of the decision. No
28 action may be commenced in Commonwealth Court under this
29 subsection until the protestant has exhausted the administrative
30 remedies provided for in this section.
19970S0005B1808 - 74 -
1 (f) Stay of procurements during protests.--In the event of a
2 timely protest under subsection (a) and until the time has
3 elapsed for the protestant to file an action in Commonwealth
4 Court, the purchasing agency shall not proceed further with the
5 solicitation or with the award of the contract unless and until
6 the head of the purchasing agency, after consultation with the
7 head of the using agency, makes a written determination that the
8 protest is clearly without merit or that award of the contract
9 without delay is necessary to protect substantial interests of
10 the Commonwealth.
11 § 1712. Authority to resolve contract and breach of contract
12 controversies.
13 (a) Applicability.--This section applies to controversies
14 between a Commonwealth agency and a contractor which arise under
15 or by virtue of a contract between them, including controversies
16 based upon breach of contract, mistake, misrepresentation or
17 other cause for contract modification or rescission. Prior to
18 filing a claim under this section with the Board of Claims under
19 the exclusive jurisdiction provided in the act of May 20, 1937
20 (P.L.728, No.193), referred to as the Board of Claims Act, the
21 claim must first be filed in writing with the contracting
22 officer within six months after it accrues and not thereafter.
23 (b) Authority.--The contracting officer is authorized to
24 settle and resolve a controversy described in subsection (a).
25 (c) Decision.--If the controversy is not resolved by mutual
26 agreement, the head of the purchasing agency shall promptly
27 issue a decision in writing. The decision shall:
28 (1) State the reasons for the action taken.
29 (2) Inform the contractor of its right to administrative
30 and judicial review as provided in this chapter.
19970S0005B1808 - 75 -
1 (d) Notice of decision.--A copy of the decision under
2 subsection (c) shall be delivered by registered mail to the
3 contractor.
4 (e) Finality of decision.--The decision under subsection (c)
5 shall be final and conclusive unless the contractor files a
6 claim with the Board of Claims within 30 days of receipt of the
7 decision.
8 (f) Failure to render timely decision.--If the contracting
9 officer does not issue the written decision required under
10 subsection (c) within 120 days after written request for a final
11 decision or within a longer period as may be agreed upon by the
12 parties, then the contractor may proceed as if an adverse
13 decision had been received.
14 SUBCHAPTER C
15 BOARD OF CLAIMS
16 Sec.
17 1721. Function of Board of Claims.
18 1722. (Reserved).
19 1723. (Reserved).
20 1724. (Reserved).
21 1725. Hearings, decisions and awards.
22 1726. Appeals.
23 § 1721. Function of Board of Claims.
24 The Board of Claims created under the act of May 20, 1937
25 (P.L.728, No.193), referred to as the Board of Claims Act, shall
26 be constituted and administered as provided in that act.
27 § 1722. (Reserved).
28 § 1723. (Reserved).
29 § 1724. (Reserved).
30 § 1725. Hearings, decisions and awards.
19970S0005B1808 - 76 -
1 (a) General rule.--All hearings before the Board of Claims
2 under this part shall be in accordance with the procedure set
3 forth in the act of May 20, 1937 (P.L.728, No.193), referred to
4 as the Board of Claims Act.
5 (b) Hearing and decision.--All hearings before the Board of
6 Claims or hearings before a hearing panel shall be public and
7 the proceedings shall be de novo. Any prior determinations by
8 administrative officials shall not be final or conclusive except
9 as provided in section 561 (relating to finality of
10 determinations). The board or hearing panel shall make a
11 decision within a reasonable time from the date of the hearing.
12 The board shall promptly decide the contract or breach of
13 contract controversy and, if appropriate, make an award of a sum
14 that it determines the claimant is entitled to receive.
15 (c) Certification of award.--The Board of Claims shall
16 certify an award for the purpose of entering the same as a
17 judgment in any court of record.
18 (d) Public records.--All papers filed under this subchapter
19 shall be a public record to the extent provided in the act of
20 June 21, 1957 (P.L.390, No.212), referred to as the Right-to-
21 Know Law, and shall be available to the public as provided in
22 that act.
23 § 1726. Appeals.
24 Any person, including a Commonwealth agency, aggrieved by a
25 decision of the Board of Claims may appeal to the Commonwealth
26 Court under 42 Pa.C.S. § 763(a)(1) (relating to direct appeals
27 from government agencies) within 30 days after certification of
28 the decision.
29 SUBCHAPTER D
30 SOLICITATIONS OR AWARDS IN VIOLATION OF LAW
19970S0005B1808 - 77 -
1 Sec.
2 1741. Applicability.
3 1742. Remedies prior to execution of contract.
4 1743. Remedies after execution of contract.
5 § 1741. Applicability.
6 The provisions of this subchapter apply where it is
7 determined by the contracting officer or the court that a
8 solicitation or award of a contract is in violation of law.
9 § 1742. Remedies prior to execution of contract.
10 If prior to execution of a contract it is determined that a
11 solicitation or proposed award of a contract is in violation of
12 law, then the remedies are limited to cancellation of the
13 solicitation or proposed award or revision of the solicitation
14 or proposed award to comply with the law.
15 § 1743. Remedies after execution of contract.
16 If after the execution of a contract it is determined that a
17 solicitation or award of a contract is in violation of law,
18 then:
19 (1) If the person awarded the contract has not acted
20 fraudulently or in bad faith:
21 (i) the contract may be ratified and affirmed
22 provided it is determined by the purchasing agency that
23 doing so is in the best interest of the Commonwealth;
24 (ii) the contract, with the consent of all parties,
25 may be modified to comply with the law; or
26 (iii) the contract may be terminated and the person
27 awarded the contract shall be compensated for the actual
28 expenses reasonably incurred under the contract prior to
29 the termination. Such compensation shall not include loss
30 of anticipated profit, loss of use of money or
19970S0005B1808 - 78 -
1 administrative or overhead costs.
2 (2) If the person awarded the contract has acted
3 fraudulently or in bad faith:
4 (i) the contract may be declared void;
5 (ii) the contract, with the consent of all parties,
6 may be modified to comply with the law; or
7 (iii) the contract may be ratified and affirmed,
8 provided it is determined by the purchasing agency, if
9 that action is in the best interest of the Commonwealth
10 and without prejudice to the right of the Commonwealth
11 agency to damages as may be appropriate.
12 SUBCHAPTER E
13 INTEREST
14 Sec.
15 1751. Interest.
16 § 1751. Interest.
17 Interest on amounts ultimately determined to be due shall be
18 payable at the statutory rate applicable to judgments from the
19 date the claim was filed with the contracting officer. Interest
20 on claims arising out of the provisions of section 1507 of the
21 act of April 9, 1929 (P.L.343, No.176), known as The Fiscal
22 Code, shall be payable as provided therein.
23 CHAPTER 19
24 INTERGOVERNMENTAL RELATIONS
25 Sec.
26 1901. Definitions.
27 1902. Cooperative purchasing authorized.
28 1903. Sale, acquisition or use of supplies by a public
29 procurement unit.
30 1904. Cooperative use of supplies or services.
19970S0005B1808 - 79 -
1 1905. Joint use of facilities.
2 1906. Supply of personnel, information and technical services.
3 1907. Use of payments received by a supplying public
4 procurement unit.
5 1908. Compliance of public procurement units.
6 1909. Review of procurement requirements.
7 1910. Contract controversies.
8 1911. Immunity.
9 1912. Investment management agreements.
10 § 1901. Definitions.
11 The following words and phrases when used in this chapter
12 shall have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Cooperative purchasing." Procurement conducted by or on
15 behalf of more than one public procurement unit or by a public
16 procurement unit with an external procurement activity.
17 "External procurement activity." A buying organization not
18 located in this Commonwealth which if located in this
19 Commonwealth would qualify as a public procurement unit. An
20 agency of the United States is an external procurement activity.
21 "Local public procurement unit." A political subdivision,
22 public authority, educational, health or other institution and,
23 to the extent provided by law, any other entity, including a
24 council of governments or an area government, which expends
25 public funds for the procurement of supplies, services and
26 construction, any nonprofit corporation operating a charitable
27 hospital and any nonprofit fire company, nonprofit rescue
28 company and nonprofit ambulance company.
29 "Public procurement unit." A local public procurement unit
30 or a purchasing agency.
19970S0005B1808 - 80 -
1 § 1902. Cooperative purchasing authorized.
2 A public procurement unit may either participate in, sponsor,
3 conduct or administer a cooperative purchasing agreement for the
4 procurement of any supplies, services or construction with one
5 or more public procurement units or external procurement
6 activities in accordance with an agreement entered into between
7 the participants. Cooperative purchasing may include, but is not
8 limited to, joint or multiparty contracts between public
9 procurement units and open-ended purchasing agency contracts
10 which are made available to local public procurement units.
11 § 1903. Sale, acquisition or use of supplies by a public
12 procurement unit.
13 A public procurement unit may sell to, acquire from or use
14 any supplies belonging to another public procurement unit or
15 external procurement activity independent of the requirements of
16 Chapters 5 (relating to source selection and contract formation)
17 and 15 (relating to supply management).
18 § 1904. Cooperative use of supplies or services.
19 A public procurement unit may enter into an agreement,
20 independent of the requirements of Chapters 5 (relating to
21 source selection and contract formation) and 15 (relating to
22 supply management), with any other public procurement unit or
23 external procurement activity for the cooperative use of
24 supplies or services under the terms agreed upon between the
25 parties.
26 § 1905. Joint use of facilities.
27 Any public procurement unit may enter into agreements for the
28 common use or lease of warehousing facilities, capital equipment
29 and other facilities with another public procurement unit or an
30 external procurement activity under the terms agreed upon
19970S0005B1808 - 81 -
1 between the parties.
2 § 1906. Supply of personnel, information and technical
3 services.
4 (a) Supply of personnel.--Upon written request from another
5 public procurement unit or external procurement activity, a
6 public procurement unit may provide personnel to the requesting
7 public procurement unit or external procurement activity. The
8 public procurement unit or external procurement activity making
9 the request shall compensate the public procurement unit
10 providing the personnel the direct and indirect cost of
11 furnishing the personnel in accordance with an agreement between
12 the parties.
13 (b) Supply of services.--The informational, technical and
14 other services of any public procurement unit may be made
15 available to any other public procurement unit or external
16 procurement activity. However, the requirements of the public
17 procurement unit tendering the services shall have precedence
18 over the requesting public procurement unit or external
19 procurement activity. The requesting public procurement unit or
20 external procurement activity shall compensate for the expenses
21 of the services provided in accordance with an agreement between
22 the parties.
23 (c) Information services.--Upon request, the department may
24 make available to public procurement units or external
25 procurement activities the following services, among others:
26 (1) Standard forms.
27 (2) Printed manuals.
28 (3) Product specifications and standards.
29 (4) Quality assurance testing services and methods.
30 (5) Qualified products lists.
19970S0005B1808 - 82 -
1 (6) Source information.
2 (7) Common use commodities listings.
3 (8) Supplier prequalification information.
4 (9) Supplier performance ratings.
5 (10) Debarred and suspended bidders lists.
6 (11) Forms for invitations for bids, requests for
7 proposals, instructions to bidders, general contract
8 provisions and other contract forms.
9 (12) Contracts or published summaries of contracts,
10 including price and time of delivery information.
11 (d) Technical services.--The department may provide the
12 following technical services, among others:
13 (1) Development of products specifications.
14 (2) Development of quality assurance test methods,
15 including receiving, inspection and acceptance procedures.
16 (3) Use of product testing and inspection facilities.
17 (4) Use of personnel training programs.
18 (e) Fees.--The department may enter into contractual
19 arrangements and publish a schedule of fees for the services
20 provided under subsections (c) and (d).
21 § 1907. Use of payments received by a supplying public
22 procurement unit.
23 All payments from any public procurement unit or external
24 procurement activity received by a public procurement unit
25 supplying personnel or services shall be available to the
26 supplying public procurement unit.
27 § 1908. Compliance of public procurement units.
28 Where the public procurement unit or external procurement
29 activity administering a cooperative purchase complies with the
30 requirements of this part, any public procurement unit
19970S0005B1808 - 83 -
1 participating in the purchase shall be deemed to have complied
2 with this part. Public procurement units may not enter into a
3 cooperative purchasing agreement for the purpose of
4 circumventing this part.
5 § 1909. Review of procurement requirements.
6 To the extent possible, the department may collect
7 information concerning the type, cost, quality and quantity of
8 commonly used supplies, services or construction being procured
9 or used by Commonwealth agencies. The department may also
10 collect this information from local procurement units. The
11 department may make this information available to any public
12 procurement unit upon request.
13 § 1910. Contract controversies.
14 (a) Public procurement unit subject to certain legal and
15 contractual remedies.--Under a cooperative purchasing agreement,
16 controversies arising between an administering public
17 procurement unit subject to Chapter 17 (relating to legal and
18 contractual remedies) and its bidders, offerors or contractors
19 shall be resolved in accordance with Chapter 17.
20 (b) Local public procurement unit not subject to certain
21 legal and contractual remedies.--Any local public procurement
22 unit which is not subject to Chapter 17 is authorized to:
23 (1) Enter into an agreement with the Board of Claims to
24 use the board to resolve controversies between the local
25 public procurement unit and its contractors, whether or not
26 the controversy arose from a cooperative purchasing
27 agreement.
28 (2) Enter into an agreement with another local public
29 procurement unit or external procurement activity to
30 establish procedures or use existing procedures of the unit
19970S0005B1808 - 84 -
1 or activity to resolve controversies with contractors,
2 whether or not the controversy arose under a cooperative
3 purchasing agreement.
4 § 1911. Immunity.
5 A public procurement unit which provides personnel, property,
6 supplies or services to another public procurement unit shall be
7 immune from liability for any damages which arise out of the use
8 of such items PERSONNEL, PROPERTY, SUPPLIES OR SERVICES provided <--
9 under this chapter.
10 § 1912. Investment management agreements.
11 This chapter shall not apply to any contract for investment
12 management services, or any proposed contract for such services,
13 between a local public procurement unit and the Treasury
14 Department.
15 CHAPTER 21
16 SMALL AND DISADVANTAGED BUSINESSES
17 Sec.
18 2101. Policy.
19 2102. Definitions.
20 2103. Regulations.
21 2104. Duties of department.
22 2105. Bonding and progress payments.
23 2106. Business assistance offices.
24 2107. Report to General Assembly.
25 2108. Compliance with Federal requirements.
26 § 2101. Policy.
27 The policy of this Commonwealth is to assist small and
28 disadvantaged businesses in learning how to do business with
29 Commonwealth agencies. The department shall implement this
30 policy in accordance with regulations promulgated by the
19970S0005B1808 - 85 -
1 department.
2 § 2102. Definitions.
3 Subject to section 2103 (relating to regulations), the
4 following words and phrases when used in this chapter shall have
5 the meanings given to them in this section unless the context
6 clearly indicates otherwise:
7 "Disadvantaged business." A small business which is owned or
8 controlled by a majority of persons, not limited to members of
9 minority groups, who have been deprived of the opportunity to
10 develop and maintain a competitive position in the economy
11 because of social disadvantages.
12 "Small business." A business in the United States which is
13 independently owned, is not dominant in its field of operation
14 and meets the criteria established by the Department of General
15 Services, by regulation, for qualification as a small business.
16 The department, through regulation, shall have the authority to
17 establish the maximum number of persons a company may employ to
18 qualify as a small business, which number shall not exceed 50
19 persons.
20 § 2103. Regulations.
21 The department shall establish policy for executive and those
22 independent agencies for which the department acts as purchasing
23 agency and may promulgate regulations establishing detailed
24 definitions of the words and phrases defined in section 2102
25 (relating to definitions) using, in addition to the criteria set
26 forth in section 2102, other criteria as it deems appropriate,
27 including the number of employees and the dollar volume of
28 business. State-affiliated entities shall implement the policy
29 for their procurement programs.
30 § 2104. Duties of department.
19970S0005B1808 - 86 -
1 The department shall have the following duties:
2 (1) Where feasible, provide appropriate staff who shall
3 be responsible to the department and who shall serve within
4 designated Commonwealth agencies to assist small and
5 disadvantaged businesses in this Commonwealth in learning how
6 to do business with Commonwealth agencies.
7 (2) Give special publicity to procurement procedures and
8 issue special publications designed to assist small and
9 disadvantaged businesses in learning how to do business with
10 Commonwealth agencies.
11 (3) Compile, maintain and make available source lists of
12 small and disadvantaged businesses for the purpose of
13 encouraging procurement from small and disadvantaged
14 businesses.
15 (4) Include small and disadvantaged businesses on
16 solicitation mailing lists.
17 (5) Assure that small and disadvantaged businesses are
18 solicited on each procurement for which the businesses may be
19 suited.
20 (6) Develop special training programs to assist small
21 and disadvantaged businesses in learning how to do business
22 with Commonwealth agencies.
23 § 2105. Bonding and progress payments.
24 (a) Bonding.--Notwithstanding other provisions of this part,
25 a purchasing agency may reduce the level or change the types of
26 bonding normally required or accept alternative forms of
27 security to the extent reasonably necessary to encourage
28 procurement from small and disadvantaged businesses.
29 (b) Progress payments.--A purchasing agency may make special
30 provisions for progress payments as it deems reasonably
19970S0005B1808 - 87 -
1 necessary to encourage procurement from small and disadvantaged
2 businesses.
3 § 2106. Business assistance offices.
4 The department shall establish, as it deems appropriate,
5 business assistance offices throughout this Commonwealth to
6 assist and carry out the provisions of this chapter.
7 § 2107. Report to General Assembly.
8 The department shall annually, before October 1, report in
9 writing to the General Assembly concerning the awarding of
10 contracts to small and disadvantaged businesses during the
11 preceding fiscal year.
12 § 2108. Compliance with Federal requirements.
13 If a procurement involves the expenditure of Federal
14 assistance or contract funds, the purchasing agency shall comply
15 with Federal law and authorized regulations which are
16 mandatorily applicable and which are not presently reflected in
17 this part.
18 CHAPTER 23
19 ETHICS IN PUBLIC CONTRACTING
20 Subchapter
21 A. General Policy and Standards
22 B. Specific Standards
23 SUBCHAPTER A
24 GENERAL POLICY AND STANDARDS
25 Sec.
26 2301. Policy.
27 2302. General standards of ethical conduct.
28 2303. Reporting of breaches of ethical standards.
29 § 2301. Policy.
30 Public employment is a public trust. It is the policy of this
19970S0005B1808 - 88 -
1 Commonwealth to promote and balance the objective of protecting
2 government integrity and the objective of facilitating the
3 recruitment and retention of personnel needed by this
4 Commonwealth. Implementation of this policy requires that public
5 employees discharge their duties impartially so as to assure
6 fair competitive access to Commonwealth agency procurement by
7 responsible contractors and that they conduct themselves in a
8 manner that fosters public confidence in the integrity of the
9 Commonwealth procurement process. It is also essential that
10 those doing business with the Commonwealth agencies observe high
11 standards of honesty and integrity.
12 § 2302. General standards of ethical conduct.
13 (a) Employees.--Any attempt to realize personal gain through
14 public employment by conduct inconsistent with the proper
15 discharge of the duties of the employee is a breach of a public
16 trust. In order to fulfill this general prescribed standard,
17 employees must avoid any conflict of interest or improper use of
18 confidential information.
19 (b) Nonemployees.--Any effort to influence any employee to
20 breach the standards of ethical conduct set forth in this
21 section is also a breach of ethical standards.
22 § 2303. Reporting of breaches of ethical standards.
23 When any person has reason to believe that any breach of
24 standards set forth in this chapter has occurred, that person
25 shall report all relevant facts to the State Ethics Commission
26 and to the Attorney General for any appropriate action.
27 SUBCHAPTER B
28 SPECIFIC STANDARDS
29 Sec.
30 2311. Bonds.
19970S0005B1808 - 89 -
1 § 2311. Bonds.
2 It is a breach of ethical standards and unlawful for any
3 employee in issuing an invitation for bids or requests for
4 proposals to require that any bond required by this part be
5 furnished by a particular surety company or through a particular
6 agent or broker. Any employee who violates this section commits
7 a misdemeanor of the first degree.
8 PART II
9 GENERAL PROCUREMENT PROVISIONS
10 Chapter
11 31. General Provisions
12 33. Prevention of Environmental Pollution
13 35. (Reserved)
14 37. Contract Clauses and Preference Provisions
15 39. Construction Contracts Over $50,000
16 41. Purchase of Surplus Federal Property
17 43. Public Facilities Concessions
18 45. Antibid-Rigging
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
19970S0005B1808 - 90 -
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, any
7 transportation authority or agency created by statute or any
8 political subdivision or municipal or other local authority, or
9 agency of any political subdivision or local 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 § 3301. Invitations for bids and requests for proposals.
16 All invitations for bids and requests for proposals for
17 construction projects issued by any government agency shall set
18 forth any provision of Federal and State statutes, rules and
19 regulations dealing with the prevention of environmental
20 pollution and the preservation of public natural resources that
21 affect the projects.
22 § 3302. Additional work.
23 If the successful bidder or offeror must undertake additional
24 work due to the enactment of new or the amendment of existing
25 statutes, rules or regulations occurring after the submission of
26 the successful bid or proposal, the government agency shall
27 issue a change order setting forth the additional work that must
28 be undertaken, which shall not invalidate the contract. The cost
29 of a change order to the government agency shall be determined
30 in accordance with the provisions of the contract for change
19970S0005B1808 - 91 -
1 orders or force accounts, or, if there is not a provision set
2 forth in the contract, then the cost to the government agency
3 shall be the costs to the contractor for wages, labor costs
4 other than wages, wage taxes, materials, equipment rentals,
5 insurance and subcontracts attributable to the additional
6 activity plus a reasonable sum for overhead and profit.
7 Additional costs to undertake work not specified in the
8 invitation for bids or requests for proposals shall not be
9 approved unless written authorization is given the successful
10 bidder or offeror prior to its undertaking the additional
11 activity.
12 CHAPTER 35
13 (RESERVED)
14 CHAPTER 37
15 CONTRACT CLAUSES AND PREFERENCE PROVISIONS
16 Subchapter
17 A. Labor
18 B. Motor Vehicles
19 C. Used Oil Products
20 D. Guaranteed Energy Savings Contracts
21 SUBCHAPTER A
22 LABOR
23 Sec.
24 3701. Contract provisions prohibiting discrimination.
25 § 3701. Contract provisions prohibiting discrimination.
26 Each contract entered into by a government agency for the
27 construction, alteration or repair of any public building or
28 public work shall contain the following provisions by which the
29 contractor agrees that:
30 (1) In the hiring of employees for the performance of
19970S0005B1808 - 92 -
1 work under the contract or any subcontract, no contractor,
2 subcontractor or any person acting on behalf of the
3 contractor or subcontractor shall by reason of gender, race,
4 creed or color discriminate against any citizen of this
5 Commonwealth who is qualified and available to perform the
6 work to which the employment relates.
7 (2) No contractor or subcontractor or any person on
8 their behalf shall in any manner discriminate against or
9 intimidate any employee hired for the performance of work
10 under the contract on account of gender, race, creed or
11 color.
12 (3) The contract may be canceled or terminated by the
13 government agency, and all money due or to become due under
14 the contract may be forfeited for a violation of the terms or
15 conditions of that portion of the contract.
16 SUBCHAPTER B
17 MOTOR VEHICLES
18 Sec.
19 3731. Short title of subchapter and general provisions.
20 3732. Definitions.
21 3733. Police power.
22 3734. Contract provisions.
23 3735. Payment under contract and action to recover
24 unauthorized payments.
25 3736. Penalty.
26 § 3731. Short title of subchapter and general provisions.
27 (a) Short title.--This subchapter shall be known and may be
28 cited as the Motor Vehicle Procurement Act.
29 (b) Legislative findings.--It is hereby determined by the
30 General Assembly to reaffirm the legislative findings contained
19970S0005B1808 - 93 -
1 in the act of April 4, 1984 (P.L.193, No.40), known as the Motor
2 Vehicle Procurement Act, and codified in this chapter:
3 (1) The production of motor vehicles and component parts
4 constitutes a major industry of this Commonwealth. It
5 provides employment for and incomes of hundreds of thousands
6 of the people of this Commonwealth and, in turn, millions of
7 persons in the United States.
8 (2) The taxes paid to the Commonwealth and its political
9 subdivisions by employers and employees engaged in the
10 production and sale of motor vehicles is one of the largest
11 single sources of public revenues in this Commonwealth.
12 (3) It has for many years been the policy of this
13 Commonwealth to aid and support the development and expansion
14 of industry here to foster the economic well-being of this
15 Commonwealth and its people.
16 (4) The economy and general welfare of this Commonwealth
17 and its citizens, as well as the economy, general welfare and
18 national security of the United States, are inseparably
19 related in the preservation and development of the motor
20 vehicle industry in this Commonwealth and in other states of
21 the United States.
22 (5) The production of motor vehicles and motor vehicle
23 components in Canada involves the use of a substantial amount
24 of resources from the United States, including labor and
25 materials. The General Assembly declares it to be the policy
26 of the Commonwealth of Pennsylvania that public officers and
27 agencies should aid and promote the development of the motor
28 vehicle industry of North America to stimulate and improve
29 the economic well-being of this Commonwealth and its
30 citizens.
19970S0005B1808 - 94 -
1 (c) Purpose of subchapter.--This subchapter is intended as
2 remedial legislation designed to promote the general welfare and
3 stimulate the economy of this Commonwealth and its people. Each
4 provision shall receive a liberal construction to effectuate
5 that intention. None of the provisions of this subchapter shall
6 receive a strict or limited construction.
7 § 3732. Definitions.
8 The following words and phrases when used in this subchapter
9 shall have the meanings given to them in this section unless the
10 context clearly indicates otherwise:
11 "Motor vehicle." A vehicle which is self-propelled except
12 one which is propelled solely by human or animal power. The term
13 includes those vehicles designed primarily for use in
14 construction or agriculture or road maintenance such as tractors
15 and earth-moving equipment.
16 "North America." The United States and Canada. The United
17 States includes all territory, continental or insular, subject
18 to the jurisdiction of the United States.
19 "Procure." To acquire by purchase, lease or rent. The term
20 does not include any rentals or leases where the term thereof is
21 less than one month.
22 § 3733. Police power.
23 This subchapter shall be deemed to be an exercise of the
24 police power of this Commonwealth for the protection of the
25 health, safety and general welfare of its citizens.
26 § 3734. Contract provisions.
27 (a) Motor vehicles to be manufactured in North America.--All
28 government agencies shall procure only motor vehicles which are
29 manufactured in North America. A motor vehicle is manufactured
30 in North America if a substantial majority of the principal
19970S0005B1808 - 95 -
1 components are assembled into the final product in an assembly
2 plant in North America. Contract documents for the procurement
3 of motor vehicles shall contain a provision that the vehicles
4 procured by the government agency shall be manufactured in North
5 America.
6 (b) Exception.--This section shall not apply where the head
7 of the government agency states in writing that it is
8 inconsistent with the public interest or that the cost is
9 unreasonable.
10 § 3735. Payment under contract and action to recover
11 unauthorized payments.
12 A government agency shall not authorize, provide for or make
13 a payment to a person under a contract containing the provision
14 required by section 3734 (relating to contract provisions)
15 unless the government agency is satisfied that the person has
16 complied with the provision. The payment made to a person by a
17 government agency which should not have been made shall be
18 recoverable directly from the supplier of the motor vehicle who
19 did not comply with section 3734 by the government agency or the
20 Attorney General by appropriate legal action. Nothing in this
21 section shall authorize any government agency to initiate a
22 legal action independently of the Attorney General unless
23 otherwise authorized under the act of October 15, 1980 (P.L.950,
24 No.164), known as the Commonwealth Attorneys Act.
25 § 3736. Penalty.
26 In addition to the withholding of payments, any person who
27 willfully violates any of the provisions of this subchapter may
28 be prohibited by any government agency from participation in
29 contracts awarded by the government agency for a period of five
30 years from the date of the determination that a violation has
19970S0005B1808 - 96 -
1 occurred.
2 SUBCHAPTER C <--
3 SUBCHAPTER C <--
4 MASS TRANSPORTATION VEHICLES
5 SEC.
6 3741. PROCUREMENT OF MASS TRANSPORTATION VEHICLES.
7 § 3741. PROCUREMENT OF MASS TRANSPORTATION VEHICLES.
8 (A) GENERAL RULE.--NOTWITHSTANDING ANY OTHER PROVISION OF
9 LAW TO THE CONTRARY, WHENEVER A LOCAL, REGIONAL OR METROPOLITAN
10 TRANSPORTATION AUTHORITY DETERMINES IN WRITING THAT IT IS NOT
11 PRACTICABLE OR ADVANTAGEOUS TO THE AUTHORITY TO ENTER INTO A
12 CONTRACT FOR THE PURCHASE OF MASS TRANSPORTATION OR RAILWAY
13 VEHICLES THROUGH COMPETITIVE SEALED BIDDING, THE AUTHORITY MAY
14 UTILIZE THE COMPETITIVE SEALED PROPOSAL METHOD OF PROCUREMENT IN
15 ACCORDANCE WITH SECTION 513 (RELATING TO COMPETITIVE SEALED
16 PROPOSALS).
17 (B) DEFINITION.--AS USED IN THIS SECTION, THE TERM "MASS
18 TRANSPORTATION OR RAILWAY VEHICLES" INCLUDES BUSES, RAILCARS,
19 LOCOMOTIVES, TROLLEY CARS, FERRY BOATS AND OTHER VEHICLES USED
20 TO PROVIDE FOR THE MASS TRANSIT OF PEOPLE, AS WELL AS ANY
21 REPLACEMENT PARTS FOR THE VEHICLES.
22 SUBCHAPTER D
23 USED OIL PRODUCTS
24 Sec.
25 3741. Preference. <--
26 § 3741. Preference.
27 3746. PREFERENCE. <--
28 § 3746. PREFERENCE.
29 As provided for in the act of April 9, 1982 (P.L.314, No.89),
30 known as the Pennsylvania Used Oil Recycling Act, government
19970S0005B1808 - 97 -
1 agencies and persons holding contracts with government agencies
2 shall encourage and, to the extent possible, require the
3 procurement and purchase of recycled oil products as
4 substantially equivalent to products made from new oil.
5 SUBCHAPTER D E <--
6 GUARANTEED ENERGY SAVINGS CONTRACTS
7 Sec.
8 3751. Short title of subchapter.
9 3752. Definitions.
10 3753. Contracting procedures.
11 3754. Contract provisions.
12 3755. Funding.
13 3756. Commonwealth contracts.
14 3757. Construction.
15 § 3751. Short title of subchapter.
16 This subchapter shall be known and may be cited as the
17 Guaranteed Energy Savings Act.
18 § 3752. Definitions.
19 The following words and phrases when used in this subchapter
20 shall have the meanings given to them in this section unless the
21 context clearly indicates otherwise:
22 "Energy conservation measure." A training program or
23 facility alteration designed to reduce energy consumption or
24 operating costs. The term may include, without limitation:
25 (1) Insulation of the building structure or systems
26 within the building.
27 (2) Storm windows or doors, caulking or weather
28 stripping, multiglazed windows or doors, heat-absorbing or
29 heat-reflective glazed and coated window or door systems,
30 additional glazing, reductions in glass area or other window
19970S0005B1808 - 98 -
1 and door system modifications that reduce energy consumption.
2 (3) Automated or computerized energy control systems.
3 (4) Heating, ventilating or air-conditioning system
4 modifications or replacements.
5 (5) Replacement or modification of lighting fixtures to
6 increase the energy efficiency of the lighting system without
7 increasing the overall illumination of a facility, unless an
8 increase in illumination is necessary to conform to
9 applicable State or local building codes for the lighting
10 system after the proposed modifications are made.
11 (6) Energy recovery systems.
12 (7) Systems that produce steam or forms of energy such
13 as heat, as well as electricity, for use within a building or
14 complex of buildings.
15 (8) Energy conservation measures that provide operating
16 cost reductions based on life-cycle cost analysis.
17 "Guaranteed energy savings contract." A contract for the
18 evaluation and recommendation of energy conservation measures
19 and for implementation of one or more such measures.
20 "Governmental unit." Any contracting body as defined in <--
21 section 2 of the act of December 20, 1967 (P.L.869, No.385),
22 known as the Public Works Contractors' Bond Law of 1967.
23 "GOVERNMENTAL UNIT." ANY OFFICER, EMPLOYEE, AUTHORITY, <--
24 BOARD, BUREAU, COMMISSION, DEPARTMENT, AGENCY OR INSTITUTION OF
25 A GOVERNMENT AGENCY, INCLUDING, BUT NOT LIMITED TO, ANY
26 COMMONWEALTH AGENCY, STATE-AIDED INSTITUTION OR ANY COUNTY,
27 CITY, DISTRICT, MUNICIPAL CORPORATION, MUNICIPALITY, MUNICIPAL
28 AUTHORITY, POLITICAL SUBDIVISION, SCHOOL DISTRICT, EDUCATIONAL
29 INSTITUTION, BOROUGH, INCORPORATED TOWN, TOWNSHIP, POOR
30 DISTRICT, COUNTY INSTITUTION DISTRICT, OTHER INCORPORATED
19970S0005B1808 - 99 -
1 DISTRICT OR OTHER PUBLIC INSTRUMENTALITY WHICH HAS THE AUTHORITY
2 TO CONTRACT FOR THE CONSTRUCTION, RECONSTRUCTION, ALTERATION OR
3 REPAIR OF ANY PUBLIC BUILDING OR OTHER PUBLIC WORK OR PUBLIC
4 IMPROVEMENT, INCLUDING, BUT NOT LIMITED TO, HIGHWAY WORK.
5 "Qualified provider." A person or business which is
6 responsible and capable of evaluating, recommending, designing,
7 implementing and installing energy conservation measures as
8 determined by the governmental unit.
9 "Request for proposals (RFP)." A type of competitive <--
10 procurement.
11 § 3753. Contracting procedures.
12 (a) General rule.--Notwithstanding any other contrary or
13 inconsistent provision of law, a governmental unit may enter
14 into a guaranteed energy savings contract with a qualified
15 provider in accordance with the provisions of this subchapter or
16 in accordance with another statutorily authorized competitive <--
17 PROCUREMENT process. <--
18 (b) Guaranteed ENERGY SAVINGS contract.--If in accordance <--
19 with applicable law the award of a contract by a governmental
20 unit requires action at a public meeting, a governmental unit
21 may award a guaranteed energy savings contract at a public
22 meeting if it has provided public notice in the manner
23 prescribed by the act of July 3, 1986 (P.L.388, No.84), known as
24 the Sunshine Act, the notice including the names of the parties
25 to the contract and the purpose of the contract. For
26 governmental units that are not required to take actions on
27 contracts at public meetings, the governmental unit may award a
28 guaranteed energy savings contract in accordance with the
29 protocol for action on contracts PROCEDURES adopted by the <--
30 governmental unit and the requirements of this subchapter ALL <--
19970S0005B1808 - 100 -
1 APPLICABLE LAWS.
2 (c) Request for proposals.--Before entering into a <--
3 guaranteed energy savings contract under this section, a
4 governmental unit shall issue a request for proposals. The
5 (C) COMPETITIVE SEALED PROPOSALS.--FOR THE PURPOSE OF <--
6 ENTERING INTO A GUARANTEED ENERGY SAVINGS CONTRACT, ALL
7 GOVERNMENTAL UNITS ARE AUTHORIZED TO UTILIZE THE COMPETITIVE
8 SEALED PROPOSAL METHOD OF PROCUREMENT. THE governmental unit
9 shall evaluate any proposal that meets the requirements of the
10 governmental unit and is timely submitted by a qualified
11 provider. The RFP REQUEST FOR PROPOSALS shall be announced <--
12 through a public notice from the governmental unit which will
13 administer the program. The request for proposal shall include <--
14 all of the following:
15 (1) The name and address of the governmental unit.
16 (2) The name, address, title and telephone number of a
17 contact person.
18 (3) Notice indicating that the governmental unit is
19 requesting qualified providers to propose energy conservation
20 measures through a guaranteed energy savings contract.
21 (4) The date, time and place where proposals must be
22 received.
23 (5) The information to be included in the proposal.
24 (6) Any other stipulations and clarifications the
25 governmental unit may require. PROVIDE ALL INTERESTED PARTIES <--
26 WITH SUFFICIENT INFORMATION NECESSARY TO SUBMIT A TIMELY AND
27 RESPONSIVE PROPOSAL.
28 (d) Selection and notice.--The governmental unit shall
29 select the qualified provider that best meets the needs of the
30 governmental unit in accordance with criteria established by the
19970S0005B1808 - 101 -
1 governmental unit. For governmental units that are not required
2 to take actions on contracts at public meetings, the
3 governmental unit shall provide public notice of the award of
4 the guaranteed energy savings contract within 30 days in the
5 Pennsylvania Bulletin. The notice shall include the names of the
6 parties to the contract and the purpose of the contract. For
7 governmental units that are required to take actions on
8 contracts at public meetings, the public notice shall be made at
9 least ten days prior to the meeting. After reviewing the
10 proposals pursuant to subsection (e), a governmental unit may
11 enter into a guaranteed energy savings contract with a qualified
12 provider if it finds that the amount it would spend on the
13 energy conservation measures recommended in the proposal would
14 not exceed the amount to be saved in both energy and operational
15 costs within a ten-year period from the date of installation, if
16 the recommendations in the proposal were followed and the
17 qualified provider provides a written guarantee that the energy
18 or operating cost savings will meet or exceed the cost of the
19 contract.
20 (e) Report.--
21 (1) Before the award of a guaranteed energy savings
22 contract, the qualified provider shall provide a report as
23 part of its proposal which shall be available for public
24 inspection summarizing estimates of all costs of
25 installation, maintenance, repairs and debt service, and
26 estimates of the amounts by which energy or operating costs
27 will be reduced.
28 (2) The report shall contain a listing of contractors
29 and subcontractors to be used by the qualified provider with
30 respect to the energy conservation measures.
19970S0005B1808 - 102 -
1 (f) Bond.--A qualified provider to whom a contract is
2 awarded shall give a sufficient bond to the governmental unit
3 for its faithful performance in accordance with the act of FOR <--
4 ITS FAITHFUL PERFORMANCE. COMMONWEALTH AGENCIES SHALL OBTAIN
5 SUCH BONDS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 533
6 (RELATING TO SECURITY AND PERFORMANCE BONDS). ALL OTHER
7 GOVERNMENTAL UNITS SHALL OBTAIN SUCH BONDS IN ACCORDANCE WITH
8 THE ACT OF December 20, 1967 (P.L.869, No.385), known as the
9 Public Works Contractors' Bond Law of 1967.
10 (g) Award of contract.--Notwithstanding any other provision
11 of law governing the letting of public contracts, a governmental
12 unit may enter into a single guaranteed energy savings contract
13 with each responsible provider selected through the request for <--
14 proposals process in accordance with the provisions of this
15 subchapter.
16 § 3754. Contract provisions.
17 (a) General rule.--A guaranteed energy savings contract may
18 provide that all payments, except obligations on termination of
19 the contract before its scheduled expiration, shall be made over
20 a period of time. Every guaranteed energy savings contract shall
21 provide that the savings in any year are guaranteed to the
22 extent necessary to make payments under the contract during that
23 year.
24 (b) Written guarantee.--A guaranteed energy savings contract
25 shall include a written guarantee that savings will meet or
26 exceed the cost of the energy conservation measures to be
27 evaluated, recommended, designed, implemented or installed under
28 the contract.
29 (c) Payments.--A guaranteed energy savings contract may
30 provide for payments over a period of time, not to exceed ten
19970S0005B1808 - 103 -
1 years, and for the evaluation, recommendation, design,
2 implementation and installation of energy conservation measures
3 on an installment payment or lease purchase basis.
4 § 3755. Funding.
5 (a) General rule.--Guaranteed energy savings contracts which
6 have terms which extend beyond one fiscal year of the
7 governmental unit must include a provision which allows the
8 governmental unit to terminate the contract if in any fiscal
9 year during the term of the contract the governmental unit does
10 not receive sufficient funds in its annual appropriations to
11 make the payments required under the contract.
12 (b) Funds.--A governmental unit may use funds designated for
13 operating, utilities or capital expenditures for any guaranteed
14 energy savings contract, including, without limitation, for
15 purchases on an installment payment or lease purchase basis.
16 (c) Grants, subsidies or other payments.--Grants, subsidies
17 or other payments from the Commonwealth to a governmental unit
18 shall not be reduced as a result of energy savings obtained as a
19 result of a guaranteed energy savings contract during the life
20 of the contract.
21 § 3756. Commonwealth contracts.
22 In connection with the letting of any guaranteed energy
23 savings contract for a governmental unit under this subchapter,
24 the department shall have the power to waive the process for
25 selection of architects or engineers otherwise prescribed under
26 section 2401.1(19) of the act of April 9, 1929 (P.L.177, <--
27 No.175), known as The Administrative Code of 1929 905 (RELATING <--
28 TO PROCUREMENT OF DESIGN PROFESSIONAL SERVICES). In exercising
29 its discretion under this section, the department shall consider
30 the best interests of this Commonwealth and any relevant
19970S0005B1808 - 104 -
1 circumstances peculiar to the proposed contract.
2 § 3757. Construction.
3 This subchapter shall not be construed to abrogate any duty
4 to comply with prevailing wage or residency requirements
5 contained in any other act or part thereof.
6 CHAPTER 39
7 CONSTRUCTION CONTRACTS OVER $50,000 <--
8 CONTRACTS FOR PUBLIC WORKS <--
9 Subchapter
10 A. Preliminary Provisions
11 B. General Provisions
12 C. Retainage
13 D. Prompt Payment Schedules
14 E. Substantial/final Payment
15 SUBCHAPTER A
16 PRELIMINARY PROVISIONS
17 Sec.
18 3901. Application and purpose of chapter.
19 3902. Definitions.
20 § 3901. Application and purpose of chapter.
21 (a) Application.--Except as otherwise specifically provided
22 in this chapter, this chapter applies to contracts entered into
23 by a government agency through competitive sealed bidding or
24 competitive sealed proposals.
25 (b) Purpose of chapter.--The purpose of this chapter is to
26 establish a uniform and mandatory system governing public
27 contracts to the extent of the requirements set forth in this
28 chapter and shall be construed to effectuate such purpose. The
29 provisions of this chapter shall in no way affect the provisions
30 of the act of August 15, 1961 (P.L.987, No.442), known as the
19970S0005B1808 - 105 -
1 Pennsylvania Prevailing Wage Act, nor the regulations
2 promulgated under that act, nor shall any requirements of this
3 chapter affect any provisions of a contract to be awarded
4 pursuant to any Federal law or regulations containing specific
5 provisions which are different from the public contract
6 requirements of this chapter.
7 § 3902. Definitions.
8 The following words and phrases when used in this chapter
9 shall have the meanings given to them in this section unless the
10 context clearly indicates otherwise:
11 "Contract." A contract exceeding $50,000 for construction as
12 defined in section 103 (relating to definitions), including
13 heating or plumbing contracts but excluding Department of
14 Transportation contracts under section 301(c)(1) (relating to
15 procurement responsibility).
16 "Contractor." A person who enters into a contract with a
17 government agency.
18 "Deficiency item." Work performed but which the design
19 professional, the contractor or the inspector will not certify
20 as being completed according to the contract.
21 "Design professional." Persons performing professional
22 services as defined in section 901 (relating to definitions).
23 "Government agency." Includes any State-aided institutions.
24 "Inspector." The person authorized or engaged by the
25 government agency to inspect the work performed and materials
26 furnished pursuant to a contract to determine whether the work
27 completed is in compliance with the contract.
28 "Local government unit." Any county, city, borough,
29 incorporated town, township, school district, vocational school
30 district, county institution, local authority or any joint or
19970S0005B1808 - 106 -
1 cooperative body of local government units or any
2 instrumentality, authority or corporation thereof which has
3 authority to enter into a contract.
4 "State-aided institution." Any institution which receives
5 State funds for construction AS DEFINED IN SECTION 103 (RELATING <--
6 TO DEFINITIONS).
7 "Subcontractor." A person who has contracted to furnish
8 labor or materials to or has performed labor for a contractor or
9 another subcontractor in connection with a contract.
10 "Substantial completion." Construction that is sufficiently
11 completed in accordance with the contract and certified by the
12 architect or engineer of the government agency, as modified by
13 change orders agreed to by the parties, so that the project can
14 be used, occupied or operated for its intended use. In no event
15 shall a project CONTRACT be certified as substantially complete <--
16 until at least 90% of the work on the project is completed.
17 SUBCHAPTER B
18 GENERAL PROVISIONS
19 Sec.
20 3911. Time for awarding contract.
21 3912. Time for executing contract.
22 3913. Release of successful bidder.
23 § 3911. Time for awarding contract.
24 (a) General rule.--In the case of a contract to be entered
25 into by a government agency through competitive sealed bidding,
26 the contract shall be awarded to the lowest responsible and
27 responsive bidder within 60 days of the bid opening, or all bids
28 shall be rejected except as otherwise provided in this section.
29 (b) Delay.--If the award is delayed by the required approval
30 of another government agency, the sale of bonds or the award of
19970S0005B1808 - 107 -
1 a grant, the contract shall be awarded to the lowest responsible
2 and responsive bidder within 120 days of the bid opening, or all
3 bids shall be rejected.
4 (c) Extensions.--Extensions of the date for the award may be
5 made by the mutual written consent of the government agency and
6 the lowest responsible and responsive bidder.
7 (d) List of bidders.--All government agencies shall be
8 required to provide a list of the bidders and their bid amount
9 on each contract within ten working days of the bid opening to
10 interested parties for a fee to be determined by the government
11 agency to cover the cost of developing such list. This
12 requirement shall not apply to the contracting bodies of any
13 political subdivision or local authority which has the authority
14 to enter into a contract.
15 § 3912. Time for executing contract.
16 In the case of a contract entered into by a government agency
17 through competitive sealed bidding, the contract shall be
18 executed by the government agency within 60 days of the date
19 that the contract is awarded.
20 § 3913. Release of successful bidder.
21 Failure of the government agency to comply with the
22 requirements of sections 3911 (relating to time for awarding
23 contract) and 3912 (relating to time for executing contract)
24 shall, unless the successful bidder waives the noncompliance by
25 written notice to the government agency, release the successful
26 bidder from any liability in respect to its bid or contract and
27 entitle all bidders to the immediate return of any bonds or
28 security deposits posted in connection with the bid or contract.
29 SUBCHAPTER C
30 RETAINAGE
19970S0005B1808 - 108 -
1 Sec.
2 3921. Retainage.
3 3922. Payment of retainage to subcontractors.
4 § 3921. Retainage.
5 (a) Contract provision.--A contract may include a provision
6 for the retainage of a portion of the amount due the contractor
7 to insure the proper performance of the contract except that the
8 sum withheld by the government agency from the contractor shall
9 not exceed 10% of the amount due the contractor until 50% of the
10 contract is completed. When the contract is 50% completed, one-
11 half of the amount retained by the government agency shall be
12 returned to the contractor. However, the architect or engineer
13 must approve the application for payment. The contractor must be
14 making satisfactory progress, and there must be no specific
15 cause for greater withholding. The sum withheld by the
16 government agency from the contractor after the contract is 50%
17 completed shall not exceed 5% of the value of completed work
18 based on monthly progress payment requests. In the event a
19 dispute arises between the government agency and any prime
20 contractor, which dispute is based upon increased costs claimed
21 by one prime contractor occasioned by delays or other actions of
22 another prime contractor, additional retainage in the sum of one
23 and one-half times the amount of any possible liability may be
24 withheld until such time as a final resolution is agreed to by
25 all parties directly or indirectly involved unless the
26 contractor causing the additional claim furnishes a bond
27 satisfactory to the government agency to indemnify the agency
28 against the claim. All money retained by the government agency
29 may be withheld from the contractor until substantial completion
30 of the contract.
19970S0005B1808 - 109 -
1 (b) Department of General Services.--Notwithstanding
2 subsection (a), when the Department of General Services is the
3 government agency, the contract may include a provision for the
4 retainage of a portion of the amount due the contractor to
5 insure the proper performance of the contract except that the
6 sum withheld by the department for the contractor shall not
7 exceed 6% of the then total estimates until 50% of the contract
8 is satisfactorily completed. The sum withheld by the department
9 from the contractor after the contract is 50% satisfactorily
10 completed shall not exceed 3% of the original contract amount.
11 § 3922. Payment of retainage to subcontractors.
12 In the absence of sufficient reason, within 20 days of the
13 receipt of payment by the contractor, the contractor shall pay
14 all subcontractors with which it has contracted their earned
15 share of the payment the contractor received.
16 SUBCHAPTER D
17 PROMPT PAYMENT SCHEDULES
18 Sec.
19 3931. Performance by contractor or subcontractor.
20 3932. Government agency's progress payment obligations.
21 3933. Contractors' and subcontractors' payment obligations.
22 3934. Withholding of payment for good faith claims.
23 3935. Penalty and attorney fees.
24 3936. Contracts involving Federal aid.
25 3937. Certain provisions unenforceable.
26 3938. Applicability.
27 3939. Claims by innocent parties.
28 § 3931. Performance by contractor or subcontractor.
29 (a) Entitlement of contractor to payment.--Performance by a
30 contractor in accordance with the provisions of a contract shall
19970S0005B1808 - 110 -
1 entitle the contractor to payment by the government agency.
2 (b) Entitlement of subcontractor to payment.--Performance by
3 a subcontractor in accordance with the provisions of a contract
4 shall entitle the subcontractor to payment from the contractor
5 with whom the subcontractor has contracted.
6 § 3932. Government agency's progress payment obligations.
7 (a) Payments in accordance with contract.--The government
8 agency shall pay the contractor or design professional strictly
9 in accordance with the contract.
10 (b) Application for progress payments.--If the contract does
11 not contain a term governing the time for payment, the
12 contractor or design professional shall be entitled to make
13 application for payment from the government agency for progress
14 payments, and the government agency shall make payment less the
15 applicable retainage amount as authorized in section 3921
16 (relating to retainage) to the contractor or design professional
17 within 45 calendar days of the date the application for payment
18 is received.
19 (c) Interest on progress payments not timely made.--Except
20 as otherwise agreed by the parties, if any progress payment less
21 the applicable retainage amount as authorized in section 3921 is
22 not made to a contractor or design professional by the due date
23 established in the contract or in subsection (b), the government
24 agency shall pay to the contractor or design professional, in
25 addition to the amount due, interest on the amount due, and the
26 interest shall be computed at the rate determined by the
27 Secretary of Revenue for interest payments on overdue taxes or
28 the refund of taxes as provided in sections 806 and 806.1 of the
29 act of April 9, 1929 (P.L.343, No.176), known as The Fiscal
30 Code.
19970S0005B1808 - 111 -
1 (d) When interest payment not required.--In the event that
2 the contract does not contain a grace period and if a contractor
3 or design professional is not paid by the payment date required
4 by subsection (b), no interest penalty payment required under
5 this section shall be paid if payment is made on or before the
6 15th calendar day after the payment date required under this
7 subchapter.
8 § 3933. Contractors' and subcontractors' payment obligations.
9 (a) Performance by subcontractor entitles subcontractor to
10 payment.--Performance by a subcontractor in accordance with the
11 provisions of the contract shall entitle the subcontractor to
12 payment from the party with whom the subcontractor has
13 contracted. For purposes of this section, the contract between
14 the contractor and subcontractor is presumed to incorporate the
15 terms of the contract between the contractor and the government
16 agency.
17 (b) Disclosure of progress payment due dates.--A contractor
18 or subcontractor shall disclose to a subcontractor, before a
19 subcontract is executed, the due date for receipt of progress
20 payments from the government agency. Notwithstanding any other
21 provisions of this subchapter, if a contractor or a
22 subcontractor fails to accurately disclose the due date to a
23 subcontractor, the contractor or subcontractor shall be
24 obligated to pay the subcontractor as though the due dates
25 established in subsection (c) were met by the government agency.
26 This subsection shall not apply to a change in due dates because
27 of conditions outside of the contractor's control, including,
28 but not limited to, design changes, change orders or delays in
29 construction due to weather conditions.
30 (c) Payment.--When a subcontractor has performed in
19970S0005B1808 - 112 -
1 accordance with the provisions of the contract, a contractor
2 shall pay to the subcontractor, and each subcontractor shall in
3 turn pay to its subcontractors, the full or proportional amount
4 received for each such subcontractor's work and material, based
5 on work completed or services provided under the subcontract, 14
6 days after receipt of a progress payment. Payment shall be made
7 under this section unless it is being withheld under section
8 3934 (relating to withholding of payment for good faith claims).
9 (d) Interest due when progress payment not timely.--If any
10 progress payment is not made to a subcontractor by the due date
11 established in the contract or in subsection (c), the contractor
12 shall pay to the subcontractor, in addition to the amount due,
13 interest as computed in section 3932(c) (relating to government
14 agency's progress payment obligations).
15 (e) When interest payment not required.--In the event that
16 the contract does not contain a grace period and if a
17 subcontractor is not paid by the payment date required by
18 subsection (c), no interest penalty payment required under this
19 section shall be paid if payment is made on or before the 15th
20 calendar day after the payment date required under this
21 subchapter.
22 § 3934. Withholding of payment for good faith claims.
23 (a) When government agency may withhold payment.--The
24 government agency may withhold payment for deficiency items
25 according to terms of the contract. The government agency shall
26 pay the contractor according to the provisions of this
27 subchapter for all other items which appear on the application
28 for payment and have been satisfactorily completed. The
29 contractor may withhold payment from any subcontractor
30 responsible for a deficiency item. The contractor shall pay any
19970S0005B1808 - 113 -
1 subcontractor according to the provisions of this subchapter for
2 any item which appears on the application for payment and has
3 been satisfactorily completed.
4 (b) Notification when payment withheld for deficiency
5 item.--If a government agency withholds payment from a
6 contractor for a deficiency item, it shall notify the contractor
7 of the deficiency item within the time period specified in the
8 contract or 15 calendar days of the date that the application
9 for payment is received. If a contractor withholds payment from
10 a subcontractor for a deficiency item, it must notify the
11 subcontractor or supplier and the government agency of the
12 reason within 15 calendar days of the date after receipt of the
13 notice of the deficiency item from the government agency.
14 § 3935. Penalty and attorney fees.
15 (a) Penalty.--If arbitration or a claim with the Board of
16 Claims or a court of competent jurisdiction is commenced to
17 recover payment due under this subchapter and it is determined
18 that the government agency, contractor or subcontractor has
19 failed to comply with the payment terms of this subchapter, the
20 arbitrator, the Board of Claims or the court may award, in
21 addition to all other damages due, a penalty equal to 1% per
22 month of the amount that was withheld in bad faith. An amount
23 shall be deemed to have been withheld in bad faith to the extent
24 that the withholding was arbitrary or vexatious. An amount shall
25 not be deemed to have been withheld in bad faith to the extent
26 it was withheld pursuant to section 3934 (relating to
27 withholding of payment for good faith claims).
28 (b) Attorney fees.--Notwithstanding any agreement to the
29 contrary, the prevailing party in any proceeding to recover any
30 payment under this subchapter may be awarded a reasonable
19970S0005B1808 - 114 -
1 attorney fee in an amount to be determined by the Board of
2 Claims, court or arbitrator, together with expenses, if it is
3 determined that the government agency, contractor or
4 subcontractor acted in bad faith. An amount shall be deemed to
5 have been withheld in bad faith to the extent that the
6 withholding was arbitrary or vexatious.
7 § 3936. Contracts involving Federal aid.
8 If any provision of this chapter conflicts with a Federal
9 statute or regulation or with conditions attached to the receipt
10 of Federal aid, this chapter shall not operate to prevent
11 receipt of the Federal aid in accordance with any Federal
12 statute or regulation.
13 § 3937. Certain provisions unenforceable.
14 A provision in the contract making it subject to the laws of
15 another state or requiring that any litigation, arbitration or
16 other dispute resolution process on the contract occurs in
17 another state shall be unenforceable.
18 § 3938. Applicability.
19 (a) Not applicable in certain situations.--This subchapter
20 shall not apply in the following situations:
21 (1) Section 3932 (relating to government agency's
22 progress payment obligations) shall not apply when the
23 Commonwealth agency's nonpayment on a particular project is
24 caused by the failure of the General Assembly to enact a
25 budget for the fiscal year of payment.
26 (2) Section 3932 shall not apply when a local government
27 unit's nonpayment on a particular project is caused by
28 failure of the Federal or State Government to pay funds due
29 and payable to the local government unit.
30 (3) Section 3932 shall not apply when government
19970S0005B1808 - 115 -
1 agency's nonpayment on a particular project is caused by the
2 failure of the General Assembly to enact an operating budget
3 for the fiscal year of payment or a capital budget for the
4 capital project or by failure of the Federal, State or local
5 government to pay funds designated or to be designated for
6 the specific project.
7 (4) Nothing in this subchapter shall be construed to
8 require payment of interest penalties by the Federal or State
9 Government if the local government unit is liable for the
10 interest.
11 (b) Not applicable to following entities.--This chapter
12 shall not apply to any of the following:
13 (1) A municipality determined to be distressed under the
14 act of July 10, 1987 (P.L.246, No.47), known as the
15 Municipalities Financial Recovery Act.
16 (2) A school district which has been determined to be a
17 distressed school district under section 691 of the act of
18 March 10, 1949 (P.L.30, No.14), known as the Public School
19 Code of 1949.
20 (3) A city of the first class that has entered into an
21 intergovernmental cooperation agreement under the act of June
22 5, 1991 (P.L.9, No.6), known as the Pennsylvania
23 Intergovernmental Cooperation Authority Act for Cities of the
24 First Class, for so long as any deficit-reducing bonds issued
25 by the authority pursuant to section 301(b)(1) of that act
26 are outstanding and payable.
27 (4) A corporate entity or school district as defined in
28 the Pennsylvania Intergovernmental Cooperation Authority Act
29 for Cities of the First Class.
30 (5) A transportation authority organized or operating
19970S0005B1808 - 116 -
1 under 74 Pa.C.S. Ch. 17 (relating to metropolitan
2 transportation authorities).
3 § 3939. Claims by innocent parties.
4 (a) No obligation to third parties.--The government agency
5 shall have no obligation to any third parties for any claim.
6 (b) Barred claims.--Once a contractor has made payment to
7 the subcontractor according to the provisions of this
8 subchapter, future claims for payment against the contractor or
9 the contractor's surety by parties owed payment from the
10 subcontractor which has been paid shall be barred.
11 SUBCHAPTER E
12 SUBSTANTIAL/FINAL PAYMENT
13 Sec.
14 3941. Substantial/final payment under contract.
15 3942. Arbitration.
16 § 3941. Substantial/final payment under contract.
17 (a) Contract containing provision for retainage.--A contract
18 containing a provision for retainage as provided in section 3921
19 (relating to retainage) shall contain a provision requiring the
20 architect or engineer to make final inspection within 30 days of
21 receipt of the request of the contractor for final inspection
22 and application for final payment. If the work is substantially
23 completed, the architect or engineer shall issue a certificate
24 of completion and a final certificate for payment, and the
25 government agency shall make payment in full within 45 days
26 except as provided in section 3921, less only one and one-half
27 times the amount required to complete any then-remaining
28 uncompleted minor items, which amount shall be certified by the
29 architect or engineer and, upon receipt by the government agency
30 of any guarantee bonds which may be required, in accordance with
19970S0005B1808 - 117 -
1 the contract, to insure proper workmanship for a designated
2 period of time. The certificate given by the architect or
3 engineer shall list in detail each uncompleted item and a
4 reasonable cost of completion. Final payment of any amount
5 withheld for the completion of the minor items shall be paid
6 upon completion of the items in the certificate of the engineer
7 or architect.
8 (b) Interest.--The final payment due the contractor from the
9 government agency after substantial completion of the contract
10 shall bear interest at a rate of 6% per annum for all contracts
11 without provisions for retainage and at a rate of 10% per annum
12 for all contracts with provisions for retainage, the interest to
13 begin after the date that such payment becomes due and payable
14 to the contractor. However, where the government agency has
15 issued bonds to finance the project, interest shall be payable
16 to the contractor at the rate of interest of the bond issue or
17 at the rate of 10% per annum, whichever is less, but in no event
18 shall the interest payable to the contractor be at a rate of
19 interest less than the legal rate of interest.
20 § 3942. 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 under the rules of the American
27 Arbitration Association or in accordance with 42 Pa.C.S. Ch. 73
28 (relating to arbitration). In any event, either party shall have
29 the right of appeal from any decision and award as provided by
30 law.
19970S0005B1808 - 118 -
1 CHAPTER 41
2 PURCHASE OF SURPLUS FEDERAL PROPERTY
3 Sec.
4 4101. Contracts with United States.
5 4102. Bids and down payments.
6 § 4101. Contracts with United States.
7 Any government agency may enter into a contract with the
8 Federal Government for the purchase, lease or other acquisition,
9 including the warehousing and distribution, of any surplus real
10 or personal Federal property without complying with any
11 requirement of law as to specifications, advertising, award of
12 contract or approval by another government agency. However, an
13 executive or independent agency may only enter into a contract
14 authorized by this section through the Department of General
15 Services.
16 § 4102. Bids and down payments.
17 Any government agency authorized to enter into a contract
18 under section 4101 (relating to contracts with United States)
19 may designate by appropriate order an officeholder or employee
20 of its own to enter a bid in its behalf at any sale of any
21 surplus real or personal Federal property and may authorize the
22 designee to make any down payment or payment in full required in
23 connection with the bidding.
24 CHAPTER 43
25 PUBLIC FACILITIES CONCESSIONS
26 Sec.
27 4301. Short title of chapter and general provisions.
28 4302. Definitions.
29 4303. Terms of contracts.
30 § 4301. Short title of chapter and general provisions.
19970S0005B1808 - 119 -
1 (a) Short title.--This chapter shall be known and may be
2 cited as the Public Facilities Concession Regulation Act.
3 (b) Legislative findings.--It is hereby determined by the
4 General Assembly to reaffirm the legislative findings contained
5 in the act of November 26, 1978 (P.L.1303, No.315), known as the
6 Public Facilities Concession Regulation Act, and codified in
7 this chapter:
8 (1) It is and has been the policy of this Commonwealth
9 to require and encourage public agencies to own and operate a
10 variety of public facilities for the conduct of public
11 business and for the health, education, protection,
12 transportation, recreation, entertainment and cultural
13 advancement of the people of this Commonwealth.
14 (2) It is and has been the policy of this Commonwealth
15 to promote the public welfare by permitting the operation,
16 within these public facilities, of various concessions to
17 provide goods and services to the public.
18 (3) Due to the nature, configuration and location of
19 many public facilities, members of the public utilizing the
20 facilities must either patronize the concessionaires
21 operating therein or undergo great expense, inconvenience and
22 hardship.
23 (4) The general welfare of the people of this
24 Commonwealth requires that concessionaires operating in
25 public facilities offer to the public goods and services of
26 good quality at reasonable prices. The General Assembly
27 therefore declares it to be the policy of this Commonwealth
28 that all public officers and agencies should, at all times,
29 make efforts to see that concessionaires in public facilities
30 provide goods and services of high quality, at reasonable
19970S0005B1808 - 120 -
1 prices, in order to protect the public and encourage use of
2 public facilities.
3 (c) Police power.--This chapter shall be deemed to be an
4 exercise of the police powers of this Commonwealth for the
5 protection of the health, safety and general welfare of the
6 people of this Commonwealth.
7 (d) Purpose of chapter.--This chapter is intended as
8 remedial legislation designed to promote the general welfare,
9 protect the public and encourage full and proper use of public
10 facilities. Each provision of this chapter is intended to
11 receive a liberal construction as will best effectuate those
12 purposes, and no provision is intended to receive a strict or
13 limited construction.
14 (e) Certain rights preserved.--This chapter is not intended
15 to limit or deny any other rights previously enjoyed by any
16 government agency.
17 § 4302. Definitions.
18 The following words and phrases when used in this chapter
19 shall have the meanings given to them in this section unless the
20 context clearly indicates otherwise:
21 "Public facility." Any building, airport, school, park,
22 hospital or other structure, grounds or place owned or operated
23 by a government agency, whether for governmental or proprietary
24 use.
25 § 4303. Terms of contracts.
26 (a) General rule.--Each government agency shall require that
27 every contract granting any concession, license, permit or right
28 to sell, lease, contract for or otherwise make available for
29 consideration goods or services to the public in any public
30 facility contains provisions giving the government agency the
19970S0005B1808 - 121 -
1 right to regulate the kinds, quality and prices of the goods and
2 services, upon terms and conditions as may be appropriate.
3 (b) Exceptions.--This section is not intended to apply in
4 any of the following cases:
5 (1) Where the right to regulate price or quality is
6 vested exclusively in or has been preempted by the United
7 States or any of its agencies or another government agency.
8 (2) Where the head of the government agency determines
9 in writing that the retention of the right to regulate is not
10 necessary to protect the general welfare.
11 CHAPTER 45
12 ANTIBID-RIGGING
13 Sec.
14 4501. Short title of chapter.
15 4502. Definitions.
16 4503. Prohibited activities.
17 4504. Civil action and damages.
18 4505. Suspension or debarment.
19 4506. Liability for increased costs.
20 4507. Noncollusion affidavits.
21 4508. Responsibility for enforcement.
22 4509. Investigation.
23 § 4501. Short title of chapter.
24 This chapter shall be known and may be cited as the Antibid-
25 Rigging Act.
26 § 4502. 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 "Bid-rigging." The concerted activity of two or more persons
19970S0005B1808 - 122 -
1 to determine in advance the winning bidder of a contract let or
2 to be let for competitive bidding by a government agency. The
3 term includes, but is not limited to, any one or more of the
4 following:
5 (1) Agreeing to sell items or services at the same
6 price.
7 (2) Agreeing to submit identical bids.
8 (3) Agreeing to rotate bids.
9 (4) Agreeing to share profits with a contractor who does
10 not submit the low bid.
11 (5) Submitting prearranged bids, agreed-upon higher or
12 lower bids or other complementary bids.
13 (6) Agreeing to set up territories to restrict
14 competition.
15 (7) Agreeing not to submit bids.
16 "Government agency." The Commonwealth and any of its
17 departments, boards, agencies, authorities and commissions, any
18 political subdivision, municipal or other local authority or any
19 officer or agency of any political subdivision or local
20 authority.
21 "Person." An individual, corporation or partnership or any
22 other entity capable of submitting a bid to the Commonwealth.
23 § 4503. Prohibited activities.
24 (a) Bid-rigging unlawful.--It is unlawful for any person to
25 conspire, collude or combine with another in order to commit or
26 attempt to commit bid-rigging involving:
27 (1) A contract for the purchase of equipment, goods,
28 services or materials or for construction or repair let or to
29 be let by a government agency.
30 (2) A subcontract for the purchase of equipment, goods,
19970S0005B1808 - 123 -
1 services or materials or for construction or repair with a
2 prime contractor or proposed prime contractor for a
3 government agency.
4 (b) Simultaneous bids.--Notwithstanding other provisions of
5 this chapter, it is not unlawful for the same person to
6 simultaneously submit bids for the same work, or a portion
7 thereof, as a proposed prime contractor and subcontractor.
8 (c) Fines and imprisonment.--Any person who violates this
9 section commits a felony of the third degree and shall, upon
10 conviction, be sentenced to pay a fine of not more than
11 $1,000,000, if an entity other than an individual, or a fine of
12 not more than $50,000, if an individual, or to serve a term of
13 imprisonment for not more than three years, or both.
14 (d) Alternative civil penalty.--In lieu of criminal
15 prosecution for violation of this section, the Attorney General
16 may bring an action for a civil penalty. In this action, a
17 person found by a court to have violated this section shall be
18 liable for a civil penalty of not more than $100,000.
19 (e) Disposition of fines and penalties.--Criminal fines and
20 civil penalties collected under subsections (c) and (d) shall be
21 paid into the State Treasury and deposited in the appropriate
22 fund.
23 (f) Factors to be considered in determining fines,
24 imprisonment or civil penalties.--In determining the appropriate
25 sanctions to be imposed for a violation of this section, the
26 court shall consider at least the following three factors:
27 (1) The prior record and the number of previous
28 violations.
29 (2) The net worth of the person.
30 (3) The size and amount of the contract involved.
19970S0005B1808 - 124 -
1 (g) Civil action not barred.--A conviction or civil penalty
2 imposed under this section shall not bar a government agency
3 from pursuing additional civil action and administrative
4 sanctions.
5 (h) Limitation on prosecution.--No criminal prosecution
6 under this section shall be brought against a person who has
7 been previously charged by information or indictment with a
8 criminal violation of the Federal antitrust laws, based upon the
9 same allegedly unlawful conduct upon which a criminal
10 prosecution under this chapter could be based, where jeopardy
11 has attached under the Federal prosecution.
12 § 4504. Civil action and damages.
13 (a) Government agency to have right of action.--Any
14 government agency entering into a contract which is or has been
15 the subject of activities prohibited by section 4503 (relating
16 to prohibited activities) shall have a right of action against
17 the participants in the prohibited activities to recover
18 damages.
19 (b) Options.--The government agency shall have the option to
20 proceed jointly and severally in a civil action against any one
21 or more of the participants for recovery of the full amount of
22 the damages. There shall be no right to contribution among
23 participants not named defendants by the government agency.
24 (c) Measure of damages.--The measure of damages recoverable
25 under this section shall be the actual damages, which damages
26 shall be trebled plus the cost of suit, including reasonable
27 attorney fees.
28 (d) When cause of action arises.--The cause of action shall
29 arise at the time the government agency which entered into the
30 contract discovered, or should have discovered, the conduct
19970S0005B1808 - 125 -
1 amounting to the unlawful offense. The action shall be brought
2 within four years of the date that the cause of action arose. No
3 civil action shall be maintained after the expiration of ten
4 years from the date the contract was signed by the parties.
5 (e) Conviction to be dispositive of liability.--Any
6 conviction under section 4503 shall be dispositive of the
7 liability of the participants with the only issues for trial
8 being the fact and amount of damages.
9 § 4505. Suspension or debarment.
10 (a) Maximum suspension or debarment.--A government agency
11 proceeding under its rules and regulations to exclude or render
12 ineligible a person from participation in contracts or
13 subcontracts based upon conduct prohibited by section 4503
14 (relating to prohibited activities) shall limit the exclusion or
15 ineligibility to a period not to exceed the following:
16 (1) Three years in the case of a person found for the
17 first time to have engaged in this conduct.
18 (2) Five years in the case of a person found to have
19 engaged in this conduct for a second or subsequent time.
20 (b) Lists of persons excluded.--A government agency that
21 lets a contract by competitive bidding shall maintain a current
22 list of persons excluded or ineligible by reason of suspension
23 or debarment for participation in contracts or subcontracts with
24 that agency and shall furnish a copy of the list upon request to
25 a person considering the submission of a bid as a prime
26 contractor or as a subcontractor.
27 § 4506. Liability for increased costs.
28 A person who enters into a contract with a government agency,
29 either directly as a contractor or indirectly as a
30 subcontractor, during a period of suspension or debarment
19970S0005B1808 - 126 -
1 imposed upon that person by that agency under its rules and
2 regulations shall be liable to the government agency and to an
3 eligible contractor for increased costs incurred as a result of
4 replacing the excluded or ineligible person.
5 § 4507. Noncollusion affidavits.
6 Noncollusion affidavits may be required by rule or regulation
7 of any government agency for all persons. Any requirement for
8 noncollusion affidavits shall be set forth in the invitation to
9 bid. Failure of any person to provide a required affidavit to
10 the government agency may be grounds for disqualification of his
11 bid. Any required noncollusion affidavit shall state whether or
12 not the person has been convicted or found liable for any act
13 prohibited by Federal or State law in any jurisdiction involving
14 conspiracy or collusion with respect to bidding on any public
15 contract within the last three years. The form for any required
16 noncollusion affidavit shall provide that the person's statement
17 on the affidavit that he has been convicted or found liable for
18 any act prohibited by Federal or State law in any jurisdiction
19 involving conspiracy or collusion with respect to bidding on any
20 public contract within the last three years does not prohibit a
21 government agency from accepting a bid from or awarding a
22 contract to that person, but it may be grounds for
23 administrative suspension or debarment in the discretion of the
24 government agency under the rules and regulations of that agency
25 or, in the case of a government agency with no administrative
26 suspension or debarment regulations or procedures, may be
27 grounds for consideration on the question of whether the agency
28 should decline to award a contract to that person on the basis
29 of lack of responsibility. The provisions of this section are in
30 addition to and not in derogation of any other powers and
19970S0005B1808 - 127 -
1 authority of any government agency.
2 § 4508. Responsibility for enforcement.
3 (a) Criminal prosecution.--The Office of Attorney General
4 and the district attorneys of the several counties shall have
5 concurrent jurisdiction for the investigation and prosecution of
6 violations of section 4503 (relating to prohibited activities).
7 (b) Civil action.--The Office of Attorney General shall have
8 the authority to bring civil action under section 4504 (relating
9 to civil action and damages) on behalf of the Commonwealth and
10 any of its departments, boards, agencies, authorities and
11 commissions. Political subdivisions or municipal or other local
12 authorities or any officer or agency of any such political
13 subdivision or local authority shall have the right to bring a
14 civil action under section 4504. Upon the filing of a complaint,
15 a copy shall be served on the Attorney General. The plaintiff,
16 at any time, may request the Attorney General to act on its
17 behalf. The Attorney General, upon determining that it is in the
18 best interest of the Commonwealth, shall have the authority to
19 intervene on behalf of the Commonwealth in these actions.
20 § 4509. Investigation.
21 (a) Required attendance.--Whenever the Office of Attorney
22 General believes that a person may be in possession, custody or
23 control of documentary material or may have information relevant
24 to the subject matter of a civil investigation for the purpose
25 of ascertaining whether a person is or has been engaged in a
26 violation of this chapter, the Attorney General may require the
27 attendance and testimony of witnesses and the production of
28 books, accounts, papers, records, documents and files relating
29 to the civil investigation. For this purpose, the Attorney
30 General or his representatives may sign subpoenas, administer
19970S0005B1808 - 128 -
1 oaths or affirmations, examine witnesses and receive evidence
2 during the investigation. A request for information shall state
3 the subject matter of the investigation, the conduct
4 constituting the alleged violation which is under investigation
5 and the provisions of this chapter applicable to the alleged
6 violation. A request for documentary material shall describe the
7 material to be produced with reasonable particularity so as to
8 fairly identify the documents demanded, provide a return date
9 within which the material is to be produced and identify the
10 member of the Attorney General's staff to whom the material
11 shall be given. In case of disobedience of a subpoena or the
12 contumacy of a witness appearing before the Attorney General or
13 his representative, the Attorney General or his representative
14 may invoke the aid of a court of record of this Commonwealth,
15 and the court may issue an order requiring the person subpoenaed
16 to obey the subpoena or to give evidence or to produce books,
17 accounts, papers, records, documents and files relative to the
18 matter in question. Failure to obey an order of the court may be
19 punished by the court as a contempt.
20 (b) Confidentiality.--No information or documentary material
21 produced under a demand under this section shall, unless
22 otherwise ordered by a court for good cause shown, be produced
23 for inspection or copying by, nor shall the contents be
24 disclosed to, a person other than the Attorney General or his
25 representative without the consent of the person who produced
26 the information or material. However, the Attorney General or
27 his representative shall disclose information or documentary
28 material produced under this section or information derived
29 therefrom to officials of a government agency affected by the
30 alleged violation, for use by that agency in connection with an
19970S0005B1808 - 129 -
1 investigation or proceeding within its jurisdiction and
2 authority, upon the prior certification of an appropriate
3 official of the agency that the information shall be maintained
4 in confidence other than use for official purposes. Under
5 reasonable terms and conditions as the Attorney General or his
6 representative shall prescribe, the documentary material shall
7 be available for inspection and copying by the person who
8 produced the material or a duly authorized representative of
9 that person. The Attorney General or his representative may use
10 the documentary material or information or copies as he
11 determines necessary in the civil enforcement of this chapter,
12 including presentation before any court. Material which contains
13 trade secrets or other highly confidential matter shall not be
14 presented except with the approval of the court in which a
15 proceeding is pending after adequate notice to the person
16 furnishing the material.
17 (c) Limitation on use.--No criminal prosecution under
18 section 4503 (relating to prohibited activities) may be brought
19 by either the Attorney General or a district attorney based
20 solely upon information or documents obtained in a civil
21 investigation under this section.
22 Section 2. Section 2310 of Title 1 is amended to read:
23 § 2310. Sovereign immunity reaffirmed; specific waiver.
24 Pursuant to section 11 of Article 1 of the Constitution of
25 Pennsylvania, it is hereby declared to be the intent of the
26 General Assembly that the Commonwealth, and its officials and
27 employees acting within the scope of their duties, shall
28 continue to enjoy sovereign immunity and official immunity and
29 remain immune from suit except as the General Assembly shall
30 specifically waive the immunity. When the General Assembly
19970S0005B1808 - 130 -
1 specifically waives sovereign immunity, a claim against the
2 Commonwealth and its officials and employees shall be brought
3 only in such manner and in such courts and in such cases as
4 directed by the provisions of Title 42 (relating to judiciary
5 and judicial procedure) or 62 (relating to procurement), unless
6 otherwise specifically authorized by statute.
7 Section 3. Section 763(a) of Title 42 is amended to read:
8 § 763. Direct appeals from government agencies.
9 (a) General rule.--Except as provided in subsection (c), the
10 Commonwealth Court shall have exclusive jurisdiction of appeals
11 from final orders of government agencies in the following cases:
12 (1) All appeals from Commonwealth agencies under
13 Subchapter A of Chapter 7 of Title 2 (relating to judicial
14 review of Commonwealth agency action) or otherwise and
15 including appeals from the Board of Claims, the Environmental
16 Hearing Board, the Pennsylvania Public Utility Commission,
17 the Unemployment Compensation Board of Review and from any
18 other Commonwealth agency having Statewide jurisdiction.
19 (2) All appeals jurisdiction of which is vested in the
20 Commonwealth Court by any statute hereafter enacted.
21 * * *
22 Section 4. Except as otherwise provided, this act is
23 intended to provide a complete and exclusive procedure to govern
24 the procurement by Commonwealth agencies of supplies, services
25 and construction, including the disposal of surplus supplies.
26 Section 5. The terms of office of the present members of the
27 selection committee appointed pursuant to section 2401.1(19) of
28 the act of April 9, 1929 (P.L.177, No.175), known as The
29 Administrative Code of 1929, repealed by this act, shall not be
30 affected by 62 Pa.C.S. § 905(d).
19970S0005B1808 - 131 -
1 Section 6. (a) The following acts and parts of acts are
2 repealed:
3 Act of May 4, 1876 (P.L.99, No.68), entitled "A supplement to
4 an act, entitled 'An act to carry out the provisions of section
5 twelve, article three of the constitution, relative to contracts
6 for supplies for the legislature and various departments of the
7 state government.'"
8 Act of June 12, 1879 (P.L.170, No.187), entitled "An act to
9 carry out the provisions of section twelve, article three, of
10 the constitution, relative to contracts for supplies for the
11 legislature and the various departments of the state
12 government."
13 Act of June 25, 1895 (P.L.269, No.182), entitled "An act
14 providing that none but citizens of the United States shall be
15 employed in any capacity in the erection, enlargement or
16 improvement of any public building or public work within this
17 Commonwealth."
18 Act of May 24, 1917 (P.L.260, No.141), entitled "An act
19 regulating the time for advertising for and receiving proposals
20 for furnishing paper, cardboard, cuts, plates, and other
21 supplies for the use of the Commonwealth for executing the
22 public printing, and the time contracts for furnishing such
23 supplies shall run."
24 Act of May 1, 1919 (P.L.103, No.79), referred to as the State
25 Art Commission Law.
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,
19970S0005B1808 - 132 -
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 Sections 478, 2401.1(19), 2403(a), (b), (c) and (g), 2405,
7 2406(g), 2408, 2409, 2409.1, 2410, 2412, 2413 and 2414 of the
8 act of April 9, 1929 (P.L.177, No.175), known as The
9 Administrative Code of 1929.
10 Section 1809 of the act of June 24, 1931 (P.L.1206, No.331),
11 known as The First Class Township Code.
12 Act of January 2, 1934 (Sp.Sess., 1933 P.L.200, No.41),
13 entitled "An act authorizing officers, departments, boards and
14 commissions of any political subdivision of the Commonwealth,
15 and cities, counties, boroughs, incorporated towns, townships,
16 school districts, to make adjustments with certain supply
17 contractors to reimburse losses sustained in performance of
18 contracts under certain circumstances."
19 Act of July 18, 1935 (P.L.1173, No.382), entitled "An act to
20 prohibit discrimination on account of race, creed or color in
21 employment under contracts for public buildings or public
22 works."
23 Act of July 19, 1935 (P.L.1321, No.414), entitled "An act
24 requiring specifications for the construction, alteration, or
25 repair of public works of the Commonwealth, county,
26 municipality, or other subdivisions of the Commonwealth, to
27 contain a provision that the laborers or mechanics employed
28 thereon shall have been residents of this Commonwealth for at
29 least ninety days prior to their employment; and prescribing
30 penalties."
19970S0005B1808 - 133 -
1 Act of April 12, 1945 (P.L.220, No.99), entitled "An act
2 authorizing the Commonwealth and any administrative department,
3 boards, and commissions thereof acting through the Department of
4 Property and Supplies, and political subdivisions of the
5 Commonwealth, including municipal authorities, to enter into
6 contracts with the United States of America, or any agency
7 thereof, for the purchase, lease, or other acquisition of
8 property, real or personal, offered for sale pursuant to the
9 Surplus Property Act of one thousand nine hundred forty-four,
10 without complying with any requirement of existing law as to
11 specifications, advertising, award of contract, and approval of
12 purchases by a State agency receiving competitive bids, or the
13 delivery of property purchased before payment therefor."
14 Sections 404, 405 and 405.1 of the act of June 1, 1945
15 (P.L.1242, No.428), known as the State Highway Law.
16 Act of June 10, 1947 (P.L.493, No.223), entitled "An act
17 further prescribing the bonds required of foreign corporations
18 contracting for public buildings, public works or projects."
19 Sections 754 and 755 of the act of March 10, 1949 (P.L.30,
20 No.14), known as the Public School Code of 1949.
21 Section 11 of the act of March 31, 1949 (P.L.372, No.34),
22 known as The General State Authority Act of one thousand nine
23 hundred forty-nine.
24 Section 1408 of the act of February 1, 1966 (1965 P.L.1656,
25 No.581), known as The Borough Code.
26 Act of October 26, 1972 (P.L.1017, No.247), entitled "An act
27 relating to the prevention of environment pollution and the
28 preservation of public natural resources in construction
29 projects."
30 Act of November 26, 1978 (P.L.1303, No.315), known as the
19970S0005B1808 - 134 -
1 Public Facilities Concession Regulation Act.
2 Act of November 26, 1978 (P.L.1309, No.317), entitled "An act
3 regulating the awarding and execution of certain public
4 contracts; providing for contract provisions relating to the
5 retention, interest, and payment of funds payable under the
6 contracts; and repealing inconsistent acts."
7 Act of October 28, 1983 (P.L.176, No.45), known as the
8 Antibid-Rigging Act.
9 Act of April 4, 1984 (P.L.193, No.40), known as the Motor
10 Vehicle Procurement Act.
11 Act of November 28, 1986 (P.L.1465, No.146), known as the
12 Reciprocal Limitations Act.
13 (b) The following acts and parts of acts are repealed
14 insofar as they relate to Commonwealth agencies as defined in 62
15 Pa.C.S. § 103:
16 Act of December 20, 1967 (P.L.869, No.385), known as the
17 Public Works Contractors' Bond Law of 1967.
18 Act of January 23, 1974 (P.L.9, No.4), entitled "An act
19 prescribing the procedure, after the opening of bids, for the
20 withdrawal of bids on certain public contracts, setting forth
21 the rights of the parties involved and providing penalties,"
22 except insofar as the act applies to the leases of real
23 property.
24 Act of May 10, 1996 (P.L.153 No.29), known as the Guaranteed
25 Energy Savings Act.
26 (c) The following acts and parts of acts are repealed
27 insofar as they are inconsistent with this act:
28 Act of June 12, 1879 (P.L.170, No.187), entitled "An act to
29 carry out the provisions of section twelve, article three, of
30 the constitution, relative to contracts for supplies for the
19970S0005B1808 - 135 -
1 legislature and the various departments of the state
2 government."
3 Act of May 24, 1917 (P.L.260, No.141), entitled "An act
4 regulating the time for advertising for and receiving proposals
5 for furnishing paper, cardboard, cuts, plates, and other
6 supplies for the use of the Commonwealth for executing the
7 public printing, and the time contracts for furnishing such
8 supplies shall run."
9 Act of May 8, 1923 (P.L.161, No.120), entitled "An act
10 providing for and regulating the public printing and binding,
11 the editing for publication and the distribution of all
12 documents, reports, bulletins, and other publications for the
13 use of the Commonwealth, the several departments, boards,
14 commissions, and other agencies engaged in the legislative,
15 judicial, and administrative work of the State Government; the
16 sale of waste paper; the appointment of a director and other
17 employes; and repealing inconsistent and conflicting
18 legislation."
19 Sections 507, 508, 510 and 511 of the act of April 9, 1929
20 (P.L.177, No.175), known as The Administrative Code of 1929.
21 Act of June 23, 1931 (P.L.1181, No.321), entitled "An act
22 authorizing persons, co-partnerships, associations, and
23 corporations, who, whether as sub-contractor or otherwise, have
24 furnished material or supplied or performed labor in connection
25 with any public work or improvement, to intervene in or
26 institute actions on certain bonds given to the Commonwealth or
27 to municipal corporations in connection with the performance of
28 public contracts; fixing the time within which such actions must
29 be brought, and the amounts recoverable therein; and providing
30 for distribution of amounts recovered; and prescribing
19970S0005B1808 - 136 -
1 procedure."
2 Section 6 of the act of May 20, 1937 (P.L.728, No.193),
3 referred to as the Board of Claims Act only insofar as it is
4 inconsistent with the procedure provided for in 62 Pa.C.S. §
5 1712 regarding the resolution of a contract controversy by the
6 head of a purchasing agency.
7 Section 10 of the act of July 5, 1947 (P.L.1217, No.498),
8 known as the State Public School Building Authority Act.
9 Section 12 of the act of December 6, 1967 (P.L.678, No.318),
10 known as The Pennsylvania Higher Educational Facilities
11 Authority Act of 1967.
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 (d) Nothing in this act shall repeal, modify or supplant the
18 following acts and parts of acts:
19 Except as explicitly stated in the addition of 62 Pa.C.S. §
20 322(6), section 1 of the act of May 1, 1913 (P.L.155, No.104),
21 entitled "An act regulating the letting of certain contracts for
22 the erection, construction, and alteration of public buildings."
23 Section 516 of the act of April 9, 1929 (P.L.177, No.175),
24 known as The Administrative Code of 1929.
25 Section 303 of the act of April 9, 1929 (P.L.343, No.176),
26 known as The Fiscal Code.
27 Act of July 19, 1957 (P.L.1017, No.451), known as the State
28 Adverse Interest Act.
29 Act of February 11, 1976 (P.L.14, No.10), known as the
30 Pennsylvania Rural and Intercity Common Carrier Surface
19970S0005B1808 - 137 -
1 Transportation Assistance Act.
2 Act of April 3, 1992 (P.L.28, No.11), known as the Tuition
3 Account Program and College Savings Bond Act.
4 (e) All other acts and parts of acts are repealed insofar as
5 they are inconsistent with this act.
6 Section 7. This act shall apply to contracts solicited or
7 entered into on or after the effective date of this act unless
8 the parties agree to its application to a contract solicited or
9 entered into prior to the effective date of this act.
10 Section 8. This act shall take effect in 180 days.
L11L62JLW/19970S0005B1808 - 138 -