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2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 37 - Contract Clauses and Preference Provisions › Section 3756 - Commonwealth contracts

§ 3756. Commonwealth contracts.
In connection with the letting of any guaranteed energy savings contract for a governmental unit under this subchapter, the department shall have the power to waive the process for selection of architects or engineers otherwise prescribed under section 905 (relating to procurement of design professional services). In exercising its discretion under this section, the department shall consider the best interests of this Commonwealth and any relevant circumstances peculiar to the proposed contract.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 37 - Contract Clauses and Preference Provisions › Section 3758 - Review of proposed capital improvement projects

§ 3758. Review of proposed capital improvement projects.
Prior to entering into a guaranteed energy savings contract, every governmental unit shall review all proposed capital improvement projects for potential applicability of this subchapter and shall consider proceeding with a guaranteed energy savings contract under this subchapter where appropriate.
(July 15, 2004, P.L.703, No.77, eff. 60 days)
2004 Amendment.
Act 77 added section 3758.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Extra - Chapter Notes

Enactment.
Chapter 39 was added May 15, 1998, P.L.358, No.57, effective in 180 days.
Cross References.
Chapter 39 is referred to in section 11901.7 of Title 11 (Cities); section 1750 of
            Title 74 (Transportation).
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3901 - Application and purpose of chapter

§ 3901. Application and purpose of chapter.
(a) Application.--
Except as otherwise specifically provided in this chapter, this chapter applies to contracts entered into by a government agency through competitive sealed bidding or competitive sealed proposals.
(b) Purpose of chapter.--
The purpose of this chapter is to establish a uniform and mandatory system governing public contracts to the extent of the requirements set forth in this chapter and shall be construed to effectuate such purpose. The provisions of this chapter shall in no way affect the provisions of the act of August 15, 1961 (P.L.987, No.442), known as the Pennsylvania Prevailing Wage Act, nor the regulations promulgated under that act, nor shall any requirements of this chapter affect any provisions of a contract to be awarded pursuant to any Federal law or regulations containing specific provisions which are different from the public contract requirements of this chapter.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3902 - Definitions

§ 3902. Definitions.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Contract."
A contract exceeding $50,000 for construction as defined in section 103 (relating to definitions), including heating or plumbing contracts but excluding Department of Transportation contracts under section 301(c)(1) (relating to procurement responsibility).
"Contractor."
A person who enters into a contract with a government agency.
"Deficiency item."
Work performed but which the design professional, the contractor or the inspector will not certify as being completed according to the contract.
"Design professional."
Persons performing professional services as defined in section 901 (relating to definitions).
"Government agency."
Includes any State-aided institutions.
"Inspector."
The person authorized or engaged by the government agency to inspect the work performed and materials furnished pursuant to a contract to determine whether the work completed is in compliance with the contract.
"Local government unit."
Any county, city, borough, incorporated town, township, school district, vocational school district, county institution, local authority or any joint or cooperative body of local government units or any instrumentality, authority or corporation thereof which has authority to enter into a contract.
"State-aided institution."
Any institution which receives State funds directly or indirectly for construction as defined in section 103 (relating to definitions).
"Subcontractor."
A person who has contracted to furnish labor or materials to or has performed labor for a contractor or another subcontractor in connection with a contract.
"Substantial completion."
Construction that is sufficiently completed in accordance with the contract and certified by the architect or engineer of the government agency, as modified by change orders agreed to by the parties, so that the project can be used, occupied or operated for its intended use. In no event shall a project be certified as substantially complete until at least 90% of the work on the project is completed.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3911 - Time for awarding contract

§ 3911. Time for awarding contract.
(a) General rule.--
In the case of a contract to be entered into by a government agency through competitive sealed bidding, the contract shall be awarded to the lowest responsible and responsive bidder within 60 days of the bid opening, or all bids shall be rejected except as otherwise provided in this section.
(b) Delay.--
If the award is delayed by the required approval of another government agency, the sale of bonds or the award of a grant, the contract shall be awarded to the lowest responsible and responsive bidder within 120 days of the bid opening, or all bids shall be rejected.
(c) Extensions.--
Extensions of the date for the award may be made by the mutual written consent of the government agency and the lowest responsible and responsive bidder.
(d) List of bidders.--
All government agencies shall be required to provide a list of the bidders and their bid amount on each contract within ten working days of the bid opening to interested parties for a fee to be determined by the government agency to cover the cost of developing such list. This requirement shall not apply to the contracting bodies of any political subdivision or local authority which has the authority to enter into a contract.
(e) Contract negotiation.--
When the amount of the bid submitted by the lowest responsive and responsible bidder for a Department of General Services construction contract exceeds the verifiable contract allocation established by the Department of General Services for the contract, the department may, prior to awarding the contract, negotiate the price, work items and time requirements for the contract with the lowest responsive and responsible bidder to bring the bid within the established contract allocation.
(Dec. 3, 2002, P.L.1147, No.142, eff. imd.)
2002 Amendment.
Act 142 added subsec. (e).
Cross References.
Section 3911 is referred to in section 3913 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3912 - Time for executing contract

§ 3912. Time for executing contract.
In the case of a contract entered into by a government agency through competitive sealed bidding, the contract shall be executed by the government agency within 60 days of the date that the contract is awarded.
Cross References.
Section 3912 is referred to in section 3913 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3913 - Release of successful bidder

§ 3913. Release of successful bidder.
Failure of the government agency to comply with the requirements of sections 3911 (relating to time for awarding contract) and 3912 (relating to time for executing contract) shall, unless the successful bidder waives the noncompliance by written notice to the government agency, release the successful bidder from any liability in respect to its bid or contract and entitle all bidders to the immediate return of any bonds or security deposits posted in connection with the bid or contract.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3921 - Retainage

§ 3921. Retainage.
(a) Contract provision.--
A contract may include a provision for the retainage of a portion of the amount due the contractor to insure the proper performance of the contract except that the sum withheld by the government agency from the contractor shall not exceed 10% of the amount due the contractor until 50% of the contract is completed. When the contract is 50% completed, one-half of the amount retained by the government agency shall be returned to the contractor. However, the architect or engineer must approve the application for payment. The contractor must be making satisfactory progress, and there must be no specific cause for greater withholding. The sum withheld by the government agency from the contractor after the contract is 50% completed shall not exceed 5% of the value of completed work based on monthly progress payment requests. In the event a dispute arises between the government agency and any prime contractor, which dispute is based upon increased costs claimed by one prime contractor occasioned by delays or other actions of another prime contractor, additional retainage in the sum of one and one-half times the amount of any possible liability may be withheld until such time as a final resolution is agreed to by all parties directly or indirectly involved unless the contractor causing the additional claim furnishes a bond satisfactory to the government agency to indemnify the agency against the claim. All money retained by the government agency may be withheld from the contractor until substantial completion of the contract.
(b) Department of General Services.--
Notwithstanding subsection (a), when the Department of General Services is the government agency, the contract may include a provision for the retainage of a portion of the amount due the contractor to insure the proper performance of the contract except that the sum withheld by the department for the contractor shall not exceed 6% of the then total estimates until 50% of the contract is satisfactorily completed. The sum withheld by the department from the contractor after the contract is 50% satisfactorily completed shall not exceed 3% of the original contract amount.
Cross References.
Section 3921 is referred to in sections 3932, 3941 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3922 - Payment of retainage to subcontractors

§ 3922. Payment of retainage to subcontractors.
In the absence of sufficient reason, within 20 days of the receipt of payment by the contractor, the contractor shall pay all subcontractors with which it has contracted their earned share of the payment the contractor received.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3931 - Performance by contractor or subcontractor

§ 3931. Performance by contractor or subcontractor.
(a) Entitlement of contractor to payment.--
Performance by a contractor in accordance with the provisions of a contract shall entitle the contractor to payment by the government agency.
(b) Entitlement of subcontractor to payment.--
Performance by a subcontractor in accordance with the provisions of a contract shall entitle the subcontractor to payment from the contractor with whom the subcontractor has contracted.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3932 - Government agency's progress payment obligations

§ 3932. Government agency's progress payment obligations.
(a) Payments in accordance with contract.--
The government agency shall pay the contractor or design professional strictly in accordance with the contract.
(b) Application for progress payments.--
If the contract does not contain a term governing the time for payment, the contractor or design professional shall be entitled to make application for payment from the government agency for progress payments, and the government agency shall make payment less the applicable retainage amount as authorized in section 3921 (relating to retainage) to the contractor or design professional within 45 calendar days of the date the application for payment is received.
(c) Interest on progress payments not timely made.--
Except as otherwise agreed by the parties, if any progress payment less the applicable retainage amount as authorized in section 3921 is not made to a contractor or design professional by the due date established in the contract or in subsection (b), the government agency shall pay to the contractor or design professional, in addition to the amount due, interest on the amount due, and the interest shall be computed at the rate determined by the Secretary of Revenue for interest payments on overdue taxes or the refund of taxes as provided in sections 806 and 806.1 of the act of April 9, 1929 (P.L.343, No.176), known as The Fiscal Code.
(d) When interest payment not required.--
In the event that the contract does not contain a grace period and if a contractor or design professional is not paid by the payment date required by subsection (b), no interest penalty payment required under this section shall be paid if payment is made on or before the 15th calendar day after the payment date required under this subchapter.
Cross References.
Section 3932 is referred to in sections 3933, 3938 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3933 - Contractors' and subcontractors' payment obligations

§ 3933. Contractors' and subcontractors' payment obligations.
(a) Performance by subcontractor entitles subcontractor to payment.--
Performance by a subcontractor in accordance with the provisions of the contract shall entitle the subcontractor to payment from the party with whom the subcontractor has contracted. For purposes of this section, the contract between the contractor and subcontractor is presumed to incorporate the terms of the contract between the contractor and the government agency.
(b) Disclosure of progress payment due dates.--
A contractor or subcontractor shall disclose to a subcontractor, before a subcontract is executed, the due date for receipt of progress payments from the government agency. Notwithstanding any other provisions of this subchapter, if a contractor or a subcontractor fails to accurately disclose the due date to a subcontractor, the contractor or subcontractor shall be obligated to pay the subcontractor as though the due dates established in subsection (c) were met by the government agency. This subsection shall not apply to a change in due dates because of conditions outside of the contractor's control, including, but not limited to, design changes, change orders or delays in construction due to weather conditions.
(c) Payment.--
When a subcontractor has performed in accordance with the provisions of the contract, a contractor shall pay to the subcontractor, and each subcontractor shall in turn pay to its subcontractors, the full or proportional amount received for each such subcontractor's work and material, based on work completed or services provided under the subcontract, 14 days after receipt of a progress payment. Payment shall be made under this section unless it is being withheld under section 3934 (relating to withholding of payment for good faith claims).
(d) Interest due when progress payment not timely.--
If any progress payment is not made to a subcontractor by the due date established in the contract or in subsection (c), the contractor shall pay to the subcontractor, in addition to the amount due, interest as computed in section 3932(c) (relating to government agency's progress payment obligations).
(e) When interest payment not required.--
In the event that the contract does not contain a grace period and if a subcontractor is not paid by the payment date required by subsection (c), no interest penalty payment required under this section shall be paid if payment is made on or before the 15th calendar day after the payment date required under this subchapter.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3934 - Withholding of payment for good faith claims

§ 3934. Withholding of payment for good faith claims.
(a) When government agency may withhold payment.--
The government agency may withhold payment for deficiency items according to terms of the contract. The government agency shall pay the contractor according to the provisions of this subchapter for all other items which appear on the application for payment and have been satisfactorily completed. The contractor may withhold payment from any subcontractor responsible for a deficiency item. The contractor shall pay any subcontractor according to the provisions of this subchapter for any item which appears on the application for payment and has been satisfactorily completed.
(b) Notification when payment withheld for deficiency item.--
If a government agency withholds payment from a contractor for a deficiency item, it shall notify the contractor of the deficiency item within the time period specified in the contract or 15 calendar days of the date that the application for payment is received. If a contractor withholds payment from a subcontractor for a deficiency item, it must notify the subcontractor or supplier and the government agency of the reason within 15 calendar days of the date after receipt of the notice of the deficiency item from the government agency.
Cross References.
Section 3934 is referred to in sections 3933, 3935 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3935 - Penalty and attorney fees

§ 3935. Penalty and attorney fees.
(a) Penalty.--
If arbitration or a claim with the Board of Claims or a court of competent jurisdiction is commenced to recover payment due under this subchapter and it is determined that the government agency, contractor or subcontractor has failed to comply with the payment terms of this subchapter, the arbitrator, the Board of Claims or the court may award, in addition to all other damages due, a penalty equal to 1% per month of the amount that was withheld in bad faith. An amount shall be deemed to have been withheld in bad faith to the extent that the withholding was arbitrary or vexatious. An amount shall not be deemed to have been withheld in bad faith to the extent it was withheld pursuant to section 3934 (relating to withholding of payment for good faith claims).
(b) Attorney fees.--
Notwithstanding any agreement to the contrary, the prevailing party in any proceeding to recover any payment under this subchapter may be awarded a reasonable attorney fee in an amount to be determined by the Board of Claims, court or arbitrator, together with expenses, if it is determined that the government agency, contractor or subcontractor acted in bad faith. An amount shall be deemed to have been withheld in bad faith to the extent that the withholding was arbitrary or vexatious.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3936 - Contracts involving Federal aid

§ 3936. Contracts involving Federal aid.
If any provision of this chapter conflicts with a Federal statute or regulation or with conditions attached to the receipt of Federal aid, this chapter shall not operate to prevent receipt of the Federal aid in accordance with any Federal statute or regulation.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3937 - Certain provisions unenforceable

§ 3937. Certain provisions unenforceable.
A provision in the contract making it subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occurs in another state shall be unenforceable.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3938 - Applicability

§ 3938. Applicability.
(a) Not applicable in certain situations.--
This subchapter shall not apply in the following situations:
(1) Section 3932 (relating to government agency's progress payment obligations) shall not apply when the Commonwealth agency's nonpayment on a particular project is caused by the failure of the General Assembly to enact a budget for the fiscal year of payment.
(2) Section 3932 shall not apply when a local government unit's nonpayment on a particular project is caused by failure of the Federal or State Government to pay funds due and payable to the local government unit.
(3) Section 3932 shall not apply when a government agency's nonpayment on a particular project is caused by the failure of the General Assembly to enact an operating budget for the fiscal year of payment or a capital budget for the capital project or by failure of the Federal, State or local government to pay funds designated or to be designated for the specific project.
(4) Nothing in this subchapter shall be construed to require payment of interest penalties by the Federal or State Government if the local government unit is liable for the interest.
(b) Not applicable to following entities.--
This chapter shall not apply to any of the following:
(1) A municipality determined to be distressed under the act of July 10, 1987 (P.L.246, No.47), known as the Municipalities Financial Recovery Act.
(2) A school district which has been determined to be a distressed school district under section 691 of the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949.
(3) (Repealed).
(4) A corporate entity or school district as defined in the Pennsylvania Intergovernmental Cooperation Authority Act for Cities of the First Class.
(5) A transportation authority organized or operating under 74 Pa.C.S. Ch. 17 (relating to metropolitan transportation authorities).
(July 7, 2022, P.L.440, No.36, eff. 60 days)
2022 Repeal.
Act 36 repealed subsec. (b)(3).
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3939 - Claims by innocent parties

§ 3939. Claims by innocent parties.
(a) No obligation to third parties.--
The government agency shall have no obligation to any third parties for any claim.
(b) Barred claims.--
Once a contractor has made payment to the subcontractor according to the provisions of this subchapter, future claims for payment against the contractor or the contractor's surety by parties owed payment from the subcontractor which has been paid shall be barred.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3941 - Substantial/final payment under contract

§ 3941. Substantial/final payment under contract.
(a) Contract containing provision for retainage.--
A contract containing a provision for retainage as provided in section 3921 (relating to retainage) shall contain a provision requiring the architect or engineer to make final inspection within 30 days of receipt of the request of the contractor for final inspection and application for final payment. If the work is substantially completed, the architect or engineer shall issue a certificate of completion and a final certificate for payment, and the government agency shall make payment in full within 45 days except as provided in section 3921, less only one and one-half times the amount required to complete any then-remaining uncompleted minor items, which amount shall be certified by the architect or engineer and, upon receipt by the government agency of any guarantee bonds which may be required, in accordance with the contract, to insure proper workmanship for a designated period of time. The certificate given by the architect or engineer shall list in detail each uncompleted item and a reasonable cost of completion. Final payment of any amount withheld for the completion of the minor items shall be paid upon completion of the items in the certificate of the engineer or architect.
(b) Interest.--
The final payment due the contractor from the government agency after substantial completion of the contract shall bear interest at a rate of 6% per annum for all contracts without provisions for retainage and at a rate of 10% per annum for all contracts with provisions for retainage, the interest to begin after the date that such payment becomes due and payable to the contractor. However, where the government agency has issued bonds to finance the project, interest shall be payable to the contractor at the rate of interest of the bond issue or at the rate of 10% per annum, whichever is less, but in no event shall the interest payable to the contractor be at a rate of interest less than the legal rate of interest.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 39 - Contracts for Public Works › Section 3942 - Arbitration

§ 3942. Arbitration.
If a dispute should arise between the contractor and the government agency over the payment of retainages and final payment, then the dispute shall be arbitrated under the applicable terms of the contract. If the contract contains no provision for arbitration, then both parties may mutually agree to arbitrate the dispute under the rules of the American Arbitration Association or in accordance with 42 Pa.C.S. Ch. 73 (relating to arbitration). In any event, either party shall have the right of appeal from any decision and award as provided by law.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 41 - Purchase of Surplus Federal Property › Section 4101 - Contracts with United States

§ 4101. Contracts with United States.
Any government agency may enter into a contract with the Federal Government for the purchase, lease or other acquisition, including the warehousing and distribution, of any surplus real or personal Federal property without complying with any requirement of law as to specifications, advertising, award of contract or approval by another government agency. However, an executive or independent agency may only enter into a contract authorized by this section through the Department of General Services.
Cross References.
Section 4101 is referred to in section 4102 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 41 - Purchase of Surplus Federal Property › Section 4102 - Bids and down payments

§ 4102. Bids and down payments.
Any government agency authorized to enter into a contract under section 4101 (relating to contracts with United States) may designate by appropriate order an officeholder or employee of its own to enter a bid in its behalf at any sale of any surplus real or personal Federal property and may authorize the designee to make any down payment or payment in full required in connection with the bidding.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 43 - Public Facilities Concessions › Section 4301 - Short title of chapter and general provisions

§ 4301. Short title of chapter and general provisions.
(a) Short title.--
This chapter shall be known and may be cited as the Public Facilities Concession Regulation Act.
(b) Legislative findings.--
It is hereby determined by the General Assembly to reaffirm the legislative findings contained in the act of November 26, 1978 (P.L.1303, No.315), known as the Public Facilities Concession Regulation Act, and codified in this chapter:
(1) It is and has been the policy of this Commonwealth to require and encourage public agencies to own and operate a variety of public facilities for the conduct of public business and for the health, education, protection, transportation, recreation, entertainment and cultural advancement of the people of this Commonwealth.
(2) It is and has been the policy of this Commonwealth to promote the public welfare by permitting the operation, within these public facilities, of various concessions to provide goods and services to the public.
(3) Due to the nature, configuration and location of many public facilities, members of the public utilizing the facilities must either patronize the concessionaires operating therein or undergo great expense, inconvenience and hardship.
(4) The general welfare of the people of this Commonwealth requires that concessionaires operating in public facilities offer to the public goods and services of good quality at reasonable prices. The General Assembly therefore declares it to be the policy of this Commonwealth that all public officers and agencies should, at all times, make efforts to see that concessionaires in public facilities provide goods and services of high quality at reasonable prices in order to protect the public and encourage use of public facilities.
(c) Police power.--
This chapter shall be deemed to be an exercise of the police powers of this Commonwealth for the protection of the health, safety and general welfare of the people of this Commonwealth.
(d) Purpose of chapter.--
This chapter is intended as remedial legislation designed to promote the general welfare, protect the public and encourage full and proper use of public facilities. Each provision of this chapter is intended to receive a liberal construction as will best effectuate those purposes, and no provision is intended to receive a strict or limited construction.
(e) Certain rights preserved.--
This chapter is not intended to limit or deny any other rights previously enjoyed by any government agency.
References in Text.
The act of November 26, 1978 (P.L.1303, No.315), known as the Public Facilities Concession Regulation Act, referred to in subsec. (b), was repealed by the act of May 15, 1998 (P.L.358, No.57). The subject matter is now contained in Chapter 43 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 43 - Public Facilities Concessions › Section 4302 - Definitions

§ 4302. Definitions.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Public facility."
Any building, airport, school, park, hospital or other structure, grounds or place owned or operated by a government agency, whether for governmental or proprietary use.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 43 - Public Facilities Concessions › Section 4303 - Terms of contracts

§ 4303. Terms of contracts.
(a) General rule.--
Each government agency shall require that every contract granting any concession, license, permit or right to sell, lease, contract for or otherwise make available for consideration goods or services to the public in any public facility contains provisions giving the government agency the right to regulate the kinds, quality and prices of the goods and services upon terms and conditions as may be appropriate.
(b) Exceptions.--
This section is not intended to apply in any of the following cases:
(1) Where the right to regulate price or quality is vested exclusively in or has been preempted by the United States or any of its agencies or another government agency.
(2) Where the head of the government agency determines in writing that the retention of the right to regulate is not necessary to protect the general welfare.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 45 - Antibid-Rigging › Section 4502 - Definitions

§ 4502. Definitions.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Bid-rigging."
The concerted activity of two or more persons to determine in advance the winning bidder of a contract let or to be let for competitive bidding by a government agency. The term includes, but is not limited to, any one or more of the following:
(1) Agreeing to sell items or services at the same price.
(2) Agreeing to submit identical bids.
(3) Agreeing to rotate bids.
(4) Agreeing to share profits with a contractor who does not submit the low bid.
(5) Submitting prearranged bids, agreed-upon higher or lower bids or other complementary bids.
(6) Agreeing to set up territories to restrict competition.
(7) Agreeing not to submit bids.
"Government agency."
The Commonwealth and any of its departments, boards, agencies, authorities and commissions, any political subdivision, municipal or other local authority or any officer or agency of any political subdivision or local authority.
"Person."
An individual, corporation or partnership or any other entity capable of submitting a bid to the Commonwealth.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 45 - Antibid-Rigging › Section 4503 - Prohibited activities

§ 4503. Prohibited activities.
(a) Bid-rigging unlawful.--
It is unlawful for any person to conspire, collude or combine with another in order to commit or attempt to commit bid-rigging involving:
(1) A contract for the purchase of equipment, goods, services or materials or for construction or repair let or to be let by a government agency.
(2) A subcontract for the purchase of equipment, goods, services or materials or for construction or repair with a prime contractor or proposed prime contractor for a government agency.
(b) Simultaneous bids.--
Notwithstanding other provisions of this chapter, it is not unlawful for the same person to simultaneously submit bids for the same work, or a portion thereof, as a proposed prime contractor and subcontractor.
(c) Fines and imprisonment.--
Any person who violates this section commits a felony of the third degree and shall, upon conviction, be sentenced to pay a fine of not more than $1,000,000 if an entity other than an individual or a fine of not more than $50,000 if an individual or to serve a term of imprisonment for not more than three years, or both.
(d) Alternative civil penalty.--
In lieu of criminal prosecution for violation of this section, the Attorney General may bring an action for a civil penalty. In this action, a person found by a court to have violated this section shall be liable for a civil penalty of not more than $100,000.
(e) Disposition of fines and penalties.--
Criminal fines and civil penalties collected under subsections (c) and (d) shall be paid into the State Treasury and deposited in the appropriate fund.
(f) Factors to be considered in determining fines, imprisonment or civil penalties.--
In determining the appropriate sanctions to be imposed for a violation of this section, the court shall consider at least the following three factors:
(1) The prior record and the number of previous violations.
(2) The net worth of the person.
(3) The size and amount of the contract involved.
(g) Civil action not barred.--
A conviction or civil penalty imposed under this section shall not bar a government agency from pursuing additional civil action and administrative sanctions.
(h) Limitation on prosecution.--
No criminal prosecution under this section shall be brought against a person who has been previously charged by information or indictment with a criminal violation of the Federal antitrust laws, based upon the same allegedly unlawful conduct upon which a criminal prosecution under this chapter could be based, where jeopardy has attached under the Federal prosecution.
Cross References.
Section 4503 is referred to in sections 4504, 4505, 4508, 4509 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 45 - Antibid-Rigging › Section 4504 - Civil action and damages

§ 4504. Civil action and damages.
(a) Government agency to have right of action.--
Any government agency entering into a contract which is or has been the subject of activities prohibited by section 4503 (relating to prohibited activities) shall have a right of action against the participants in the prohibited activities to recover damages.
(b) Options.--
The government agency shall have the option to proceed jointly and severally in a civil action against any one or more of the participants for recovery of the full amount of the damages. There shall be no right to contribution among participants not named defendants by the government agency.
(c) Measure of damages.--
The measure of damages recoverable under this section shall be the actual damages, which damages shall be trebled plus the cost of suit, including reasonable attorney fees.
(d) When cause of action arises.--
The cause of action shall arise at the time the government agency which entered into the contract discovered or should have discovered the conduct amounting to the unlawful offense. The action shall be brought within four years of the date that the cause of action arose. No civil action shall be maintained after the expiration of ten years from the date the contract was signed by the parties.
(e) Conviction to be dispositive of liability.--
Any conviction under section 4503 shall be dispositive of the liability of the participants with the only issues for trial being the fact and amount of damages.
Cross References.
Section 4504 is referred to in section 4508 of this title.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 45 - Antibid-Rigging › Section 4505 - Suspension or debarment

§ 4505. Suspension or debarment.
(a) Maximum suspension or debarment.--
A government agency proceeding under its rules and regulations to exclude or render ineligible a person from participation in contracts or subcontracts based upon conduct prohibited by section 4503 (relating to prohibited activities) shall limit the exclusion or ineligibility to a period not to exceed the following:
(1) Three years in the case of a person found for the first time to have engaged in this conduct.
(2) Five years in the case of a person found to have engaged in this conduct for a second or subsequent time.
(b) Lists of persons excluded.--
A government agency that lets a contract by competitive bidding shall maintain a current list of persons excluded or ineligible by reason of suspension or debarment for participation in contracts or subcontracts with that agency and shall furnish a copy of the list upon request to a person considering the submission of a bid as a prime contractor or as a subcontractor.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 45 - Antibid-Rigging › Section 4506 - Liability for increased costs

§ 4506. Liability for increased costs.
A person who enters into a contract with a government agency, either directly as a contractor or indirectly as a subcontractor, during a period of suspension or debarment imposed upon that person by that agency under its rules and regulations shall be liable to the government agency and to an eligible contractor for increased costs incurred as a result of replacing the excluded or ineligible person.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 45 - Antibid-Rigging › Section 4507 - Noncollusion affidavits

§ 4507. Noncollusion affidavits.
Noncollusion affidavits may be required by rule or regulation of any government agency for all persons. Any requirement for noncollusion affidavits shall be set forth in the invitation to bid. Failure of any person to provide a required affidavit to the government agency may be grounds for disqualification of his bid. Any required noncollusion affidavit shall state whether or not the person has been convicted or found liable for any act prohibited by Federal or State law in any jurisdiction involving conspiracy or collusion with respect to bidding on any public contract within the last three years. The form for any required noncollusion affidavit shall provide that the person's statement on the affidavit that he has been convicted or found liable for any act prohibited by Federal or State law in any jurisdiction involving conspiracy or collusion with respect to bidding on any public contract within the last three years does not prohibit a government agency from accepting a bid from or awarding a contract to that person, but it may be grounds for administrative suspension or debarment in the discretion of the government agency under the rules and regulations of that agency or, in the case of a government agency with no administrative suspension or debarment regulations or procedures, may be grounds for consideration on the question of whether the agency should decline to award a contract to that person on the basis of lack of responsibility. The provisions of this section are in addition to and not in derogation of any other powers and authority of any government agency.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 45 - Antibid-Rigging › Section 4508 - Responsibility for enforcement

§ 4508. Responsibility for enforcement.
(a) Criminal prosecution.--
The Office of Attorney General and the district attorneys of the several counties shall have concurrent jurisdiction for the investigation and prosecution of violations of section 4503 (relating to prohibited activities).
(b) Civil action.--
The Office of Attorney General shall have the authority to bring civil action under section 4504 (relating to civil action and damages) on behalf of the Commonwealth and any of its departments, boards, agencies, authorities and commissions. Political subdivisions or municipal or other local authorities or any officer or agency of any such political subdivision or local authority shall have the right to bring a civil action under section 4504. Upon the filing of a complaint, a copy shall be served on the Attorney General. The plaintiff, at any time, may request the Attorney General to act on its behalf. The Attorney General, upon determining that it is in the best interest of the Commonwealth, shall have the authority to intervene on behalf of the Commonwealth in these actions.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 46 - Electronic Bidding by Local Government Units. › Section 4602 - Definitions

§ 4602. Definitions.
The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
"Local government unit."
A county, city, borough, incorporated town, township, school district, vocational school district, county institution district, home rule municipality, local authority or any joint or cooperative body of local government units or any instrumentality, authority or corporation thereof which has authority to enter into a contract.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 46 - Electronic Bidding by Local Government Units. › Section 4603 - Electronic bidding

§ 4603. Electronic bidding.
Notwithstanding any other provision of law concerning the requirements for competitive bidding for purchases and contracts by a local government unit, a local government unit may permit the electronic submission of bids and may receive bids electronically if the local government unit has the electronic capability to maintain the confidentiality of the bid until the bid opening time.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 62 - PROCUREMENT › Chapter 46 - Electronic Bidding by Local Government Units. › Section 4604 - Competitive electronic auction bidding

§ 4604. Competitive electronic auction bidding.
(a) Conditions for use.--
Notwithstanding any other provision of law concerning the requirements for competitive bidding for purchases and contracts, if a local government unit determines by resolution that use of competitive electronic auction bidding is in the best interests of the local government unit, a contract for supplies or services, but not for construction or design professional services, may be entered into by competitive electronic auction bidding.
(b) Invitation for bids.--
An invitation for bids shall be issued and shall include a procurement description and all contractual terms, whenever practical, and conditions applicable to the procurement, including a notice that bids will be received in an electronic auction manner.
(c) Public notice.--
Public notice and advertisement of the invitation for bids shall be given in the same manner as provided in the law otherwise applicable to the local government unit.
(d) Auctions.--
Bids shall be accepted electronically at the time and in the manner designated in the invitation for bids. During the auction, each bidder shall have the capability to view their bid rank or the low bid price. Bidders may reduce their bid prices during the auction. At the conclusion of the auction, the record of the bid prices received and the name of each bidder shall be open to public inspection.
(e) Withdrawal of bids.--
After the auction period has terminated, withdrawal of bids shall be permitted by the written determination of the local government unit when the bidder requests relief and presents credible evidence that the reason for the lower bid price was a clerical mistake, as opposed to a judgment mistake, and was actually due to an unintentional arithmetical error or an unintentional omission of a substantial quantity of work, labor, material or services made directly in the compilation of the bid. The request for relief and the supporting evidence must be received by the local government unit within a reasonable time period after the bid opening. The time period shall be specified by the local government unit.
(f) Award.--
The contract shall be awarded within 60 days of the auction by written notice to the lowest responsible bidder, or all bids shall be rejected, except as otherwise provided in this section. Extensions of the date for the award may be made by mutual written consent of the local government unit and the lowest responsible bidder.
2023 Pennsylvania Consolidated & Unconsolidated Statutes › Title 63 - PROFESSIONS AND OCCUPATIONS (STATE LICENSED) › Chronological History

Provision Affected
How Affected
By Law, Decision or Rule
Title 63
Title
Added
Nov. 25, 1970, P.L.707, No.230
§ 101 Pt. I (Reserved)
Added
Jul. 1, 2020, P.L.575, No.53
§ 3101 and Pt. II and Ch. 31
Added
Jul. 1, 2020, P.L.575, No.53
§ 3102
Added
Jul. 1, 2020, P.L.575, No.53
§ 3102 defs. of "distance education," "practice act," "virtual platform" and "virtual supervision"
Added
Dec. 22, 2021, P.L.488, No.100
§ 3103
Added
Jul. 1, 2020, P.L.575, No.53
§ 3104
Added
Jul. 1, 2020, P.L.575, No.53
§ 3105
Added
Jul. 1, 2020, P.L.575, No.53
§ 3106
Added
Jul. 1, 2020, P.L.575, No.53
§ 3107
Added
Jul. 1, 2020, P.L.575, No.53
§ 3107.1
Added
Dec. 22, 2021, P.L.488, No.100
§ 3108
Added
Jul. 1, 2020, P.L.575, No.53
§ 3108 (b)(8)
Added
Nov. 25, 2020, P.L.1189, No.116
§ 3108 (a)(2) intro. par. and (i)
Amended
Dec. 14, 2023, P.L.464, No.65
§ 3109
Added
Jul. 1, 2020, P.L.575, No.53
§ 3110
Added
Jul. 1, 2020, P.L.575, No.53
§ 3111
Added
Jul. 1, 2020, P.L.575, No.53
§ 3112
Added
Jul. 1, 2020, P.L.575, No.53
§ 3112.1
Added
Jul. 1, 2020, P.L.575, No.53
§ 3113
Added
Jul. 1, 2020, P.L.575, No.53
§ 3113 (d)
Constitutional as applied
302 A.3d 240, Cmwlth (2023)
§ 3114
Added
Jul. 1, 2020, P.L.575, No.53
§ 3115
Added
Jul. 1, 2020, P.L.575, No.53
§ 3116
Added
Jul. 1, 2020, P.L.575, No.53
§ 3117
Added
Jul. 1, 2020, P.L.575, No.53
§ 3118
Added
Jul. 1, 2020, P.L.575, No.53
§ 3301 and Ch. 33
Added
Jul. 7, 2022, P.L.436, No.35
§ 3302
Added
Jul. 7, 2022, P.L.436, No.35
§ 3303
Added
Jul. 7, 2022, P.L.436, No.35
§ 3304
Added
Jul. 7, 2022, P.L.436, No.35
§ 3305
Added
Jul. 7, 2022, P.L.436, No.35
§ 3306
Added
Jul. 7, 2022, P.L.436, No.35
§ 3307
Added
Jul. 7, 2022, P.L.436, No.35