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A01346
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1449
Session of
2023
INTRODUCED BY SIEGEL, KRUEGER, MALAGARI, PIELLI, HILL-EVANS,
McNEILL, MADDEN, PROBST, SCHLOSSBERG, D. WILLIAMS, NEILSON,
SHUSTERMAN, GUENST, DONAHUE, SANCHEZ, MERSKI, D. MILLER,
CERRATO, CEPEDA-FREYTIZ, BOROWSKI, DELLOSO, WEBSTER, CIRESI,
BRENNAN, OTTEN, KHAN AND T. DAVIS, JUNE 20, 2023
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JUNE 20, 2023
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, in source selection and contract formation,
providing for additional qualifications for public work
projects; imposing duties on the Office of State Inspector
General; and imposing penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Chapter 5 of Title 62 of the Pennsylvania
Consolidated Statutes is amended by adding a subchapter to read:
SUBCHAPTER D.1
ADDITIONAL QUALIFICATIONS FOR PUBLIC WORK PROJECTS
Sec.
539. Definitions.
539.1. Applicability.
539.2. Forms.
539.3. Responsibilities of purchasing agency.
539.4. Additional qualifications.
539.5. Enforcement, penalties and remedies.
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539.6. Criminal penalty.
§ 539. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Apprenticeship program." As follows:
(1) An apprenticeship training program that is approved
by and registered with the Department of Labor and Industry
under the act of July 14, 1961 (P.L.604, No.304), known as
The Apprenticeship and Training Act, and that provides for
on-the-job training, classroom training and the graduation of
apprentice trainees to journeyperson status.
(2) The term includes an apprenticeship program subject
to ERISA or a non-ERISA program.
"ERISA." The Employee Retirement Income Security Act of 1974
(Public Law 93-406, 29 U.S.C. § 1001 et seq.).
"Public work contract." A contract for a public work
project.
"Public work project." A project providing for any aspect of
construction, reconstruction, demolition, alteration, repair or
maintenance work completed under a contract or cooperative
purchasing agreement by a Commonwealth agency, which costs at
least $300,000.
"Skilled craft laborer." A member of a trade who:
(1) is a journeyperson who has work experience
equivalent to the total number of on-the-job training hours
required by the applicable apprenticeship program; or
(2) graduated from or is currently enrolled in an
apprenticeship program.
§ 539.1. Applicability.
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Notwithstanding any provision of law and this title, this
subchapter shall apply to public work projects. The requirements
of this subchapter are intended to supplement the requirements
under this chapter.
§ 539.2. Forms.
(a) Development of form.--The department shall develop a
form that a contractor or subcontractor will certify compliance
with all of the requirements specified under this subchapter.
(b) Completion and submission.--The form under this section
must be completed by a contractor and submitted to a purchasing
agency with an offer or bid.
(c) Subcontractor.--Forms must be completed by a
subcontractor, regardless of tier, and submitted to the
contractor and purchasing agency prior to commencing work on a
public work project.
§ 539.3. Responsibilities of purchasing agency.
A purchasing agency:
(1) Shall only award a public work contract to a
contractor that meets the requirements of this subchapter.
(2) Shall review a form submitted by a contractor for
compliance before awarding a public work contract.
(3) May require any additional information from a
contractor that it deems necessary to evaluate compliance
with this subchapter.
(4) Shall determine if each subcontractor on a
subcontractor list provided under section 539.4(b) (relating
to additional qualifications) meets the requirements of this
subchapter. If the purchasing agency determines that a
subcontractor does not meet the requirements of this
subchapter, the purchasing agency shall inform the contractor
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in writing of the determination and shall:
(i) Permit the contractor to substitute the
subcontractor with a subcontractor that meets the
requirements of this subchapter.
(ii) Disqualify the contractor if the subcontractor
remains in noncompliance.
(5) Shall notify the contractor, in writing, whether a
contractor or subcontractor meets or does not meet the
requirements of this subchapter.
§ 539.4. Additional qualifications.
(a) Requirements for public work project.--In addition to
the requirements under this subchapter, to receive an award for
or commence work on a public work project, a contractor or
subcontractor, regardless of tier, shall:
(1) Maintain all registrations, certificates or other
credentials required by Federal and State law and regulations
that may be required to do business.
(2) Be in compliance with bonding and general liability
insurance requirements required by law or contract
specifications and with the act of June 2, 1915 (P.L.736,
No.338), known as the Workers' Compensation Act, and the act
of December 5, 1936 (2nd Sp.Sess., 1937 P.L.2897, No.1),
known as the Unemployment Compensation Law.
(3) Within the previous three years, have not, after
notice and appeal procedures specified in applicable law:
(i) been debarred or suspended by a Federal, State
or local government agency or authority;
(ii) defaulted on a project;
(iii) had any business, contracting or trade
license, registration or certification revoked or
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suspended; or
(iv) been found in violation of any law applicable
to its business, including licensing, tax, wage and hour,
environmental or safety laws.
(4) Within the previous 10 years, have not been
convicted of any crime relating to its business.
(5) Ensure that all construction workers employed on the
public work project and the prime contractor or onsite
supervisor have completed the Occupational Safety and Health
Administration 10-hour construction training course
established by the United States Department of Labor.
(6) Participate in an apprenticeship program for each
specific trade or classification employed by the contractor
on the project.
(7) Provide a list of all crafts or classifications for
all construction workers that it will employ on the public
work project and the names and addresses of the applicable
apprenticeship programs.
(8) (6) Have all other resources, including equipment,
personnel and financial resources, to successfully perform
the public work contract or subcontract and to maintain
capabilities throughout the duration of the public work
project or obtain these resources through the use of
subcontractors or vendors.
(9) (7) Notify the purchasing agency within seven days
of any material changes in its operation that impact
compliance with this subsection.
(10) (8) For the previous five years, disclose any
fictitious name changes or controlling interests by another
company or business entity.
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(b) Contractors.--A contractor shall:
(1) Submit a subcontractor list to the purchasing agency
that provides the name and address of the subcontractors that
it intends to use on the public work project and the scope of
work assigned to each subcontractor. The contractor shall
only use subcontractors identified on the list and may
request written authorization from the purchasing agency to
substitute or add subcontractors.
(2) Ensure that 70% of workers employed for the
construction of a public work project are skilled craft
laborers.
§ 539.5. Enforcement, penalties and remedies.
(a) Termination and forfeiture of money.--If a purchasing
agency determines that a contractor has knowingly falsified a
compliance form or failed to meet additional qualifications
under section 539.4 (relating to additional qualifications), the
purchasing agency may terminate the public work contract, and
all money due or to become due to the contractor may be
forfeited as a violation of the terms and conditions of the
contract.
(b) Enforcement by Office of State Inspector General.--In
addition to the responsibilities assigned to a purchasing agency
under this subchapter, the Office of State Inspector General
shall provide supplemental enforcement by:
(1) Accepting, reviewing and investigating in a timely
manner any credible complaint that a contractor has violated
a provision of this subchapter.
(2) Conducting complaint-based and random audits of
contracts covered by this subchapter to ensure compliance.
(c) Penalties imposed by Office of State Inspector
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General.--If the Office of State Inspector General finds that a
contractor has knowingly falsified a compliance form or failed
to meet the additional qualifications under section 539.4, the
Office of State Inspector General shall:
(1) Assess an administrative fine of $1,000 for a first
offense and up to $25,000 for a subsequent offense, depending
on the severity of the violation.
(2) Notify the purchasing agency and require
cancellation or termination of the public work contract at no
fault to the purchasing agency.
(3) Refer all identified or suspected violations of
existing wage and hour, safety, procurement or other laws to
the appropriate Federal or State agency for additional
enforcement.
(d) Cooperative agreements.--To the extent permitted by
Federal and State law, the Office of State Inspector General or
purchasing agencies may enter into cooperative agreements with
purchasing agencies to facilitate information sharing and
enforcement of the requirements of this subchapter.
(e) Notice and hearing.--Enforcement actions under this
section may be appealed in accordance with 2 Pa.C.S. (relating
to administrative law and procedure).
§ 539.6. Criminal penalty.
An individual or contractor who knowingly submits a form or
other information to the purchasing agency under this subchapter
which is false in any material manner shall be guilty of a
misdemeanor in accordance with 18 Pa.C.S. § 4903 (relating to
false swearing) and shall be subject to a fine not to exceed
$1,000.
Section 2. The addition of 62 Pa.C.S. Ch. 5 Subch. D.1 shall
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apply to bids or proposals made on or after the date that is one
year after the effective date of this section.
Section 3. This act shall take effect in 60 days.
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