THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY BEYER, WHEATLEY, BUXTON, JOSEPHS, THOMAS, MUSTIO, BISHOP, McCALL, PAYTON, PRESTON, REICHLEY, SIPTROTH, STURLA, WATERS AND WATSON, JANUARY 19, 2010

AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 29, 2010   

AN ACT

Amending Title 62 (Procurement) of the Pennsylvania Consolidated

Statutes, in small and disadvantaged businesses, providing

for prime contractors' contractor performance.

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The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 62 of the Pennsylvania Consolidated

Statutes is amended by adding a section to read:

§ 2109.  Prime contractors' performance.

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The department shall develop concise and detailed good faith

effort requirements for its prime contractors to ensure their

genuine attempt at meeting the State's disadvantaged business

subcontractor participation requirements. Contractors and

grantees doing business with the Commonwealth shall make

reasonable and good faith efforts to provide maximum practicable

opportunities for small disadvantaged businesses to participate

as contractors, professional service providers, subcontractors

and suppliers and to keep the contractual commitment made to

disadvantaged business subcontractors. Documentation of a good

faith effort shall include, but is not limited to, the

following:

(1)  Attendance at prebid or preproposal conferences.

(2)  Copies of written notification sent to all

disadvantaged businesses that perform the type of work to be

subcontracted in sufficient time to allow the businesses to

participate effectively.

(3)  Advisement to the disadvantaged businesses of the

specific work the prime contractor intends to subcontract,

that their interest in the project is being solicited and how

to obtain information for the review and inspection of the

plans, specifications and requirements of the bid.

(4)  A written statement that economically feasible

portions of work were selected to be performed by

disadvantaged businesses, including, where appropriate,

segmenting or combining elements of work into economically

feasible units.

(5)  A statement of the efforts made to negotiate with

disadvantaged businesses, including the name, address and

telephone number of any disadvantaged business that was

contacted; the date the negotiations took place; and a

description of the information provided to the disadvantaged

businesses regarding the plans, specifications and

requirements for the portion of the work to be performed.

(6)  Consulting with the Bureau of Minority and Women

Business Opportunities to ensure significant contracting,

professional service, subcontracting and purchasing

opportunities for disadvantaged businesses unless the

department agrees that contractor or grantee participation in

outreach activities will satisfy this requirement.

(7)  Participating in outreach activities and events to

increase small and disadvantaged business interest and

participation in contracting, professional service,

subcontracting and purchasing opportunities. The extent of

the contractor's or grantee's commitment to participate in

outreach participation shall be a consideration in the award

of any contract or grant.

(8)  Using the department's Internet website to identify

certified disadvantaged businesses as potential sources for

professional service, subcontracting, purchasing,

construction, equipment, services and supplies.

(9)  Soliciting certified disadvantaged businesses for

all contracting, professional service agreements,

subcontracting and purchasing opportunities.

(10)  Including certified disadvantaged businesses on

solicitation lists.

(11)  Preparing and retaining records of solicitations,

including a bid tabulation, showing names of all firms

solicited and the dollar amount of the bid, quote or

proposal, as well as copies of all bids, quotes and proposals

received.

(12)  Providing quarterly reports to the Bureau of

Minority and Women Business Opportunities on small

disadvantaged business utilization.

(13)  Demonstrating good faith efforts in the oversight

and timely payment, as provided under Ch. 39, Subch. D

(relating to prompt payment schedules), to disadvantaged

businesses and commitment to maintain the disadvantaged

subcontractor commitment made at the time of the award or

thereafter.

§ 2109.  Contractor performance; general conditions.

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Each Commonwealth agency taking bids in connection with the

award of any contract shall provide in the general conditions,

under which a bid will be received, that any person making a bid

as a prime contractor shall, in his bid or offer, set forth the

following information:

(1)  The name and address of the place of business of

each subcontractor certified as a disadvantaged business that

will perform work or labor or render service to the prime

contractor in connection with the performance of the contract

and that will be used by the prime contractor to fulfill

disadvantaged business participation goals.

(2)  The portion of the contract that will be performed

by each subcontractor under paragraph (1). Except that, in

the case of an emergency where a contract is necessary and

essential for the immediate preservation of the public

health, welfare or safety or the protection of State

property, the prime contractor shall list only one

subcontractor for each portion of the contract as is defined

by the prime contractor in his bid or offer.

(3)  A statement of the efforts made to negotiate with

disadvantaged businesses, including the name, address and

telephone number of any disadvantaged business contacted by

the prime contractor; the date the negotiations took place,

if any; and a description of the information provided to the

disadvantaged businesses regarding the plans, specifications

and requirements for the portion of the contract proposed to

be performed by the disadvantaged business.

(4)  The bid or offer may also set forth any of the

following information:

(i)  Whether the person or a representative of the

person attended any prebid or preproposal conferences.

(ii)  A copy of any written notification of the bid

or offer to perform a contract sent by certified mail,

return receipt requested, or electronic mail, read

receipt, to disadvantaged businesses that perform the

type of work to be subcontracted in sufficient time to

allow the disadvantaged businesses to participate

effectively.

(iii)  The specific work the person intends to

subcontract, that interest in the project is being

solicited and how to obtain information for the review

and inspection of the plans, specifications and

requirements of the invitation for bids or requests for

proposals.

(iv)  A statement of whether economically feasible

portions of the contract will be performed by

disadvantaged businesses, including, where appropriate,

segmenting or combining elements of a contract into

economically feasible units.

(v)  Information on whether the person or a

representative of the person consulted with the Bureau of

Minority and Women Business Opportunities to ensure

significant contracting, subcontracting and purchasing

opportunities for disadvantaged businesses.

(vi)  Information on whether the person or a

representative of the person participated in any outreach

activities or events to increase disadvantaged business

interest and participation in contracting, subcontracting

and purchasing opportunities.

(vii)  Information on use of the department's

Internet website to identify certified disadvantaged

businesses as prospects for contracting, subcontracting

and purchasing opportunities in connection with a bid or

offer.

(viii)  Any solicitation of certified disadvantaged

businesses for contracting, subcontracting or purchasing

opportunities and inclusion of certified disadvantaged

businesses on solicitation lists.

(ix)  Records of solicitations, including a bid

tabulation, showing the names of all disadvantaged

businesses solicited and the dollar amount of the bid,

quote or proposal, as well as copies of all bids, quotes

and proposals received.

(x)  Any quarterly reports or other report provided

to the Bureau of Minority and Women Business

Opportunities depicting disadvantaged business

utilization.

(xi)  Evidence demonstrating any good faith effort in

the oversight of and timely payment, as provided under

Subchapter D of Chapter 39 (relating to prompt payment

schedules), to disadvantaged businesses and to maintain

the commitment made to disadvantaged businesses that

serve as subcontractor at the time the subcontract was

awarded, and thereafter.

Section 2.  This act shall take effect immediately.