[HISTORY: Adopted by the Board of Supervisors
of the Township of Lower Makefield 5-2-2007 by Ord. No. 369. Amendments
noted where applicable.]
GENERAL REFERENCES
Building construction — See
Ch. 87.
Uniform construction codes — See Ch. 97.
The purpose of this chapter is to establish
clearly defined, minimum standards relating to contractor responsibility,
including requirements and criteria concerning technical qualifications,
competency, experience, adequacy of resources, including equipment,
financial and personnel, and satisfactory records regarding past performance,
safety, law compliance and business integrity, in selecting responsible
contractors for public contracts, as hereinafter more specifically
set forth.
A.
All contractors and subcontractors of any tier that
perform work valued at over $75,000 on any public facility or public
works project, including construction, alteration, renovation, repair,
service or maintenance work, shall meet the requirements of this chapter.
B.
All firms engaged in contracts covered by this chapter
shall be qualified, responsible contractors or subcontractors that
have sufficient capabilities in all respects to successfully perform
contracts on which they are engaged, including the necessary experience,
equipment, technical skills and qualifications and organizational,
financial and personnel resources. Qualified, responsible firms shall
also have a satisfactory past performance record and a satisfactory
record of law compliance, integrity and business ethics.
A.
As a condition of performing work on a public works
contract subject to this chapter, a general contractor, construction
manager or other lead or prime contractor seeking award of a contract
shall submit a contractor responsibility certification at the time
it submits its bid for a contract.
B.
The contractor responsibility certification shall
be completed on a form provided by Lower Makefield Township, and the
applicable departments within, and shall reference the project for
which a bid is being submitted by name and contract or project number.
C.
In the contractor responsibility certification the
construction manager, general contractor or other lead or prime contractor
shall confirm the following facts regarding its past performance and
work history and its current qualifications and performance capabilities:
(1)
The firm has all valid, effective licenses, registrations
or certificates required by federal, state, county, or local law,
including, but not limited to, licenses, registrations, or certificates
required to do business in the designated locale; and perform the
contract work it seeks to perform, including but not limited to licenses,
registrations or certificates for any type of trade work or specialty
work which the firm proposes to self-perform.
(2)
The firm meets the bonding requirements for the contract,
as required by applicable law or contract specifications, and any
insurance requirements, as required by applicable law or contract
specifications, including general liability insurance, workers' compensation
insurance and unemployment insurance requirements.
(3)
The firm has not been debarred or defaulted on any
project by any federal, state or local government agency or authority
in the past three years.
(4)
The firm has not had any type of business, contracting
or trade license, registration or other certification suspended or
revoked in the past three years.
(5)
The firm has not committed a willful violation of
federal or state safety laws, as determined by a final decision of
a court or government agency, in the past three years.
(6)
The firm and its owners have not been convicted of
any crime relating to the contracting business by a final decision
of a court or government agency for the past 10 years.
(7)
The firm has not within the past three years been
found by a final decision of a court or government agency in violation
of any law applicable to its contracting business, including, but
not limited to, licensing laws, tax laws, prompt payment laws, wage
and hour laws, prevailing wage laws, environment laws or others, where
the result of such violation was the imposition of a fine, back pay,
damages or any other type of penalty in the amount of $1,000 or more.
(8)
The firm will pay all craft employees that it employs
on the project the current wage rates and benefits as required under
the Pennsylvania Prevailing Wage Act for the duration of the referenced
project.
(9)
[1]The firm has all other technical qualifications and resources,
including equipment, personnel and financial resources, to perform
the referenced contract, or will obtain same through the use of qualified,
responsible subcontractors.
[1]
Editor's Note: Former Subsection C(9), regarding the firm's
participation in a Class A apprenticeship program, was repealed 3-3-2010
by Ord. No. 382. This ordinance provided for the redesignation of
former Subsection C(10) as Subsection C(9).
D.
Lower Makefield Township and its designated departments
may require any other additional information it deems necessary to
evaluate a prospective contractor's technical qualifications, financial
capacity or other resources and performance capabilities. Lower Makefield
Township and its designated departments may require that such information
be included in a separate statement of qualifications and experience
or as an attachment to the contractor responsibility certification.
E.
In the contractor responsibility certification, the submitting firm shall stipulate that if it receives a notice of intent to award contract it will provide a subcontractor list and required subcontractor information as specified in § 99-5 of this chapter.
F.
If the submitting firm has ever operated under another
name or controls or is controlled by another company or business entity
or in the past five years controlled or was controlled by another
company or business entity, whether as a parent company, subsidiary
or in any other business relation, it shall attach a separate statement
to its contractor responsibility certification that explains in detail
the nature of any such relationship. Additional information may be
required from such an entity if the relationship in question could
potentially impact contract performance.
G.
Contractor responsibility certifications shall be
executed by a person who has sufficient knowledge to address all matters
in the certification and shall include an attestation stating, under
the penalty of perjury, that all information submitted is true, complete
and accurate.
H.
If a firm fails to provide a contractor responsibility
certification required by this section, it shall be disqualified from
bidding. No action of any nature shall lie against Lower Makefield
Township and/or its designated departments because of its refusal
to accept a bid for failing to provide information required by this
section.
A.
After it has received bids for a project, Lower Makefield
Township and its designated departments shall issue a notice of intent
to award contract to the firm offering the lowest responsive bid.
B.
Such notice shall be issued immediately or as soon as practicable after bids are submitted and shall stipulate that the contract award will be conditioned on the issuance of a written contractor responsibility determination, as required by § 99-6 of this chapter and any other conditions determined appropriate by Lower Makefield Township and its designated departments.
A.
Within seven days from the date of notice of intent
to award contract, a prospective awardee shall submit to Lower Makefield
Township and its designated departments a subcontractor list containing
the name of subcontractors that will be used for the referenced project,
their addresses and a description of the work each listed subcontractor
will perform on the project.
B.
At the time a prospective awardee submits the subcontractor
list it shall also submit subcontractor responsibility certifications
for all listed subcontractors to Lower Makefield Township or its designated
departments. Subcontract responsibility certifications shall be executed
by the respective subcontractors and contain the same information
and representations required in the contractor responsibility certifications.
C.
Subcontract responsibility certifications shall be
executed by persons having sufficient knowledge to address all matters
in the certification and shall include an attestation stating, under
the penalty of perjury, that all information submitted is true, complete
and accurate.
A.
After a notice of intent to award contract has been
issued, Lower Makefield Township and its designated departments shall
undertake a review process for a period no longer than 30 days to
determine whether the prospective awardee is a qualified, responsible
contractor in accordance with the requirements of this chapter and
other applicable law and regulations and has the resources and capabilities
to successfully perform the contract.
[Amended 5-6-2020 by Ord. No. 422]
B.
As part of this review process, Lower Makefield Township
and its designated departments shall ensure that the contractor responsibility
certification, the subcontractor list and subcontractor responsibility
certifications, as required by this chapter, have been submitted and
properly executed.
C.
Lower Makefield Township and its designated departments
may conduct any additional inquiries to verify the prospective awardee
and its subcontractors have the technical qualification and performance
capabilities necessary to successfully perform the contract and that
the firms have a sufficient record of law compliance and business
integrity to justify the award of a public contract. In conducting
such inquiries, Lower Makefield Township and its designated departments
may seek relevant information from the firm, its prior clients or
customers, its subcontractors or any other relevant source.
D.
If, at the conclusion of its review process, Lower
Makefield Township and its designated departments determine that all
responsibility certifications have been properly completed and executed
and if it concludes that the qualifications, background and responsibility
of the prospective awardee and the firms on its subcontractor list
are satisfactory, it shall issue a written contractor responsibility
determination verifying that the prospective awardee is a qualified,
responsible contractor. In the event a firm is determined to be nonresponsible,
Lower Makefield Township and its designated departments shall advise
the firm of its finding in writing and proceed to conduct a responsibility
review of the next lowest, responsive bidder or, if necessary, re-bid
the project.
E.
The contractor responsibility determination shall
be issued no later than 30 days after the date of the notice of intent
to award contract. The responsibility determination may be revoked
or revised in any manner at any time during the project in the event
Lower Makefield Township and its designated departments obtains relevant
information warranting any such revocation or revisions.
[Amended 5-6-2020 by Ord. No. 422]
A.
A construction manager, general contractor or other lead or prime contractor shall not be permitted to use a subcontractor for any work performed for Lower Makefield Township unless it has identified the subcontractor on its subcontractor list and provided a subcontractor responsibility certification in accordance with the requirements of § 99-5 of this chapter.
B.
A subcontractor listed on a firm's subcontractor list
shall not be substituted unless written authorization is obtained
from Lower Makefield Township and its designated departments and a
subcontractor responsibility certification is provided for the substitute
subcontractor.
C.
In the event that Lower Makefield Township and its
designated departments determines that a prospective subcontractor
listed by the apparent low bidder does not meet the responsibility
standards of this section, it may, after informing the prospective
awardee, exercise one of the following options:
(1)
Permit the awardee to substitute a qualified, responsible,
subcontractor in accordance with the requirements of this section;
(2)
Require the awardee to self-perform the work in question
if the firm has the required experience, licenses and other qualifications
to perform the work in question; or
(3)
Disqualify the prospective awardee.
D.
In the event that a subcontractor is disqualified
under this chapter, the general contractor, construction manager or
other lead or prime contractor shall not be permitted to make any
type of contractual claim against Lower Makefield Township on the
basis of a subcontractor disqualification.
A.
The contractor responsibility certification for a
firm identified in a notice of intent to award contract, subcontractor
list and subcontractor responsibility certification shall be made
immediately available to the public for inspection through a publicly
accessible website or other comparable means.
B.
During the public review period, any person or organization
may protest a contractor or subcontractor for failing to meet applicable
requirements of this chapter or on any other relevant grounds by submitting
a letter with supporting evidence to Lower Makefield Township and
its designated departments.
C.
If Lower Makefield Township determines that a contractor's
or subcontractor's responsibility certification contains false or
misleading material information that was provided knowingly or with
reckless disregard for the truth or omits material information that
was omitted knowingly or with reckless disregard of the truth, the
firm for which the certification was submitted shall be prohibited
from performing work for Lower Makefield Township for a period of
three years and subject to any other penalties and sanctions, including
termination, available to Lower Makefield Township under law. A contract
terminated under these circumstances shall further entitle Lower Makefield
Township to withhold payment of any monies due to the firm as damages.
D.
A procurement contract subject to this chapter shall
not be executed until all requirements of this chapter have been fulfilled
and until contractor and subcontractor responsibility certifications
and subcontractor lists have been made available for public inspection
for at least 21 days.
(1)
The
review period prescribed in this section shall be reduced to a period
of no more than 14 days for public inspection for those contracts
that are recurring, i.e., occur on a regular basis, such as annually.
Such recurrent contracts include, for reference purposes only and
are not limited to, annual street and road resurfacing contracts,
and municipal pool repainting contracts.
[Added 4-7-2021 by Ord. No. 425]
(2)
The
initial determination as to whether a contract is recurrent will be
made by .the Township Manager, upon the recommendation of one of the
following individuals, as applicable, under the particular contract:
[Added 4-7-2021 by Ord. No. 425]
A.
If any provision of this chapter shall be held to
be invalid or unenforceable by a court of competent jurisdiction,
any such holding shall not invalidate any other provision of this
chapter and all remaining provisions shall remain in full force and
effect.
B.
This chapter shall become effective five days after
enactment, but Lower Makefield Township shall take such anticipatory
administrative action in advance as shall be necessary for the implementation
of this chapter.
C.
The requirements of this chapter shall not apply to
contracts executed prior to the effective date of this chapter, except
that the exercise of an option on a contract covered by this chapter
shall be deemed to create a new contract for purposes of this chapter.
