Delaware County, PA Chapter 29 Contractors

[HISTORY: Adopted by the County Council of the County of Delaware 9-11-2007 by Ord. No. 2007-5; amended in its entirety 6-15-2022 by Ord. No. 2022-7. Subsequent amendments noted where applicable.]

§ 29-1 Findings; purpose.

A. Delaware County recognizes that there is a need to ensure that all work on public construction and maintenance contracts is performed by responsible, qualified firms that maintain the capacity, expertise, personnel and other qualifications and resources necessary to successfully perform such contracts in a timely, reliable and cost-effective manner.

B. To effectuate the purpose of selecting responsible contractors for these public contracts and to protect Delaware County's investments in such contracts, prospective contractors and subcontractors should be required to meet pre-established, clearly defined, minimum qualification standards regarding past project performance in terms of competency, safety and law compliance, technical abilities, experience, and adequacy of resources.

C. Further, due to the critical impact that skilled craft labor has on the execution of public works projects, and the increasingly limited availability of such labor, it is necessary to require contractors and subcontractors to participate in proven apprenticeship training programs as a condition of bidding to promote successful project delivery and help ensure future workforce development.

D. Therefore, Delaware County shall require compliance with the provisions of this chapter by business entities seeking to provide services as specified herein. The requirements of this chapter are intended to supplement, not replace, existing contractor qualification standards or other criteria currently required by Delaware County. However, in the event that this chapter conflicts with any law, public policy or contracting documents of Delaware County, the requirements of this chapter shall prevail.

§ 29-2 Responsible contractor requirements.

A. This chapter shall apply to contracts valued at $500,000 or more for public works projects undertaken by Delaware County for construction, demolition, alteration, renovation, modernization, service or maintenance of buildings, structures or facilities. All contractors and subcontractors of any tier that perform work on such projects, regardless of value of individual contract or subcontract packages, shall meet the requirements of this chapter.

B. All firms engaged in public works contracts subject to this chapter, including general contractors, construction managers, other lead or prime contractors, and subcontractors at any level, shall be qualified, responsible contracting firms 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. Firms bidding or otherwise participating in public works contracts shall also be required to have a satisfactory past performance record and a satisfactory record of law compliance, integrity and business ethics.

C. This chapter does not apply to work incident to the installation of specialized equipment pursuant to either warranty requirements or manufacturers' requirements.

D. Compliance with this chapter and compliance with the provisions of Article V (Central Purchasing) of the Administrative Code[1] are separate requirements which need to be independently satisfied.

[1] Editor's Note: See Ch. 6, Administrative Code, Part 3, Rules of General Applicability in County Government, Art. V, Central Purchasing.

§ 29-3 Contractor responsibility certifications.

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 as specified herein.

B. The contractor responsibility certification shall be completed on a form provided by Delaware County and 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 and its employees have all licenses, registrations, certificates or other credentials required by federal and state law and the laws of Delaware County with respect to the contract work it seeks to self-perform.

(2) The firm meets the bonding requirements for the contract required by law or contract specifications, as well as applicable insurance requirements for the contract, including general liability, workers' compensation and unemployment insurance.

(3) The firm has not been debarred or suspended by any federal, state or local government agency or authority in the past three years.

(4) The firm has not defaulted on any project in the past three years.

(5) The firm has not had any type of business, contracting or trade license, registration or certification revoked or suspended in the past three years.

(6) The firm and its principals/owners have not been convicted of any crime relating to its contracting business in the past 10 years.

(7) Within the past three years, the firm has not been found in violation of any law applicable to its contracting business, including, but not limited to, licensing laws, tax laws, wage and hour laws, prevailing wage laws, environmental laws or others, where the result of such violation was the payment of a fine, back pay damages or any other type of penalty in the amount of $5,000 or more.

(8) The firm will employ a sufficient number of craft labor personnel required to successfully perform any project work it self-performs or shall use qualified subcontractors to meet this requirement and shall assign workers to perform only work in their respective craft or trade for which they have sufficient skills and training or shall use qualified subcontractors to meet this requirement.

(9) The firm will pay all craft employees on the project, at a minimum, the applicable wage and fringe benefit rates, as established for the classification in which the worker is employed, in accordance with the Pennsylvania Prevailing Wage Act (43 P.S. § 165-1 et seq.).

(10) The firm will ensure that all craft labor it employs on the project will have completed, prior to working on the project, the OSHA ten-hour training course for safety established by the U.S. Department of Labor. If the firm is a prime contractor, it shall also ensure that at least one person on the project has completed the OSHA thirty-hour construction training course established by the U.S. Department of Labor.

(11) The firm participates in a Class A apprenticeship training program, as defined below, for each separate trade or classification in which it employs craft employees.

(a) For purposes of this section, a Class A apprenticeship program is an apprenticeship program registered with and approved by the U.S. Department of Labor or a state apprenticeship agency and has graduated apprentices to journeyperson status for at least three of the past five years. This may be an apprenticeship program subject to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"), or a non-ERISA program.

(b) To demonstrate compliance with this section, the firm shall provide, with this certification, a list of all trades or classifications of craft employees it will employ on the project and documentation verifying it participates in a Class A apprenticeship program for each trade or classification listed.

(c) The requirements of this section and§ 29-3C(12) help ensure that the bulk of the craft labor workforce employed on the project will have sufficient skills and training to correctly perform work assigned to them.

(12) The construction manager, general contractor or other lead or prime contractor responsible for the project shall ensure that at least 70% of the craft labor workers employed on the project shall be comprised of either journeyperson workers who have successfully completed a Class A apprenticeship program as defined in § 29-3C(11) or apprentices registered in such programs. The apprenticeship participation specified by this section must be in the same trade or craft for which the workers are employed on the project.

(13) The firm shall assign craft labor personnel work only in the craft or trade in which they are employed.

(14) The firm has all other technical qualifications and resources, including equipment, personnel and financial resources, to successfully perform the referenced contract and shall maintain such capabilities throughout the duration of the project or will obtain same through the use of qualified, responsible subcontractors or vendors.

(15) The firm shall notify Delaware County within seven days of any material changes in its operation that relate to any matter attested to in this certification.

D. Execution of the contractor responsibility certification required by this chapter shall not establish a presumption of contractor responsibility, and Delaware County may require any additional information it deems necessary to evaluate a firm's status as a responsible contractor, including information regarding the firm's technical qualifications, financial capacity or other resources and performance capabilities. Delaware County 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. The submitting firm shall stipulate in the contractor responsibility certification that, if it receives a notice of intent to award contract, it will provide a subcontractor list and required subcontractor information as specified in § 29-5.

F. If the submitting firm has ever operated under another name 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 an appendix 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. If a firm fails to provide a contractor responsibility certification required by this section, it may be disqualified from bidding. No action of any nature shall lie against Delaware County because of its refusal to accept a bid for this reason.

§ 29-4 Notice of intent to award contract.

A. After it has received bids for a project, Delaware County shall issue a notice of intent to award contract to the firm that has submitted the lowest responsive bid.

B. Such notice shall be issued immediately or as soon as practicable after bids are opened and shall stipulate that the contract award is conditioned on the issuance of a written contractor responsibility determination for the firm as required by § 29-6, compliance with subcontractor certifications required by § 29-5, and any other qualification standards required by Delaware County.

§ 29-5 Subcontractor lists; subcontractor responsibility certifications.

A. Within 14 days of receiving a notice of intent to award contract, the prospective awardee shall submit a subcontractor list, which provides the name and address of the subcontractors it will use on the project, the scope of work assigned to each subcontractor, and subcontractor responsibility certifications as required by this section. The Director of Public Works may extend such deadline for submission upon good justification from a prospective awardee as to the delayed response.

B. The prospective awardee shall not be permitted to use a subcontractor on any work performed for Delaware County unless it has identified the subcontractor on its subcontractor list and provided a subcontractor responsibility certification in accordance with the requirements of § 29-5.

C. At the time a prospective awardee submits the subcontractor list, it shall also submit subcontractor responsibility certifications and applicable supporting information for all listed subcontractors to Delaware County.

D. A prospective awardee shall determine whether any firm on its subcontractor list is organized as a sole proprietorship owned and operated by a single person. This shall apply to subcontractors at any tier. For any such entity, the prospective awardee shall ensure that the sole proprietorship subcontractor is a legitimate business entity and not a misclassified employee by requiring the subcontractor to supplement its subcontractor certification with its employer identification number and copies of any license, certificate or registration it is required to maintain in to do business in the state in which it is located.

E. Subcontractor responsibility certifications shall be executed by the respective subcontractors on forms prepared by Delaware County and contain the same information, representations and supporting information required in contractor responsibility certifications, including verification of apprenticeship qualifications required by § 29-3C(11) for each trade or classification of craft workers it will employ on the project.

F. Subcontractor responsibility certifications shall be executed by a person 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.

G. A subcontractor listed on a firm's subcontractor list shall not be substituted unless written authorization is obtained from Delaware County and a subcontractor responsibility certification is provided for the substitute subcontractor.

H. In the event that Delaware County determines that a subcontractor fails to meet the requirements of this chapter or is otherwise determined to be nonresponsible, 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, upon submission of a completed subcontractor certification for the substitute and approval of the substitute by Delaware County;

(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.

I. In the event 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 claim against Delaware County on the basis of a subcontractor disqualification.

§ 29-6 Contractor responsibility review and determination.

A. After Delaware County has issued a notice of intent to award contract to the lowest responsive bidder, it shall undertake a contractor responsibility review process to determine whether the firm is a qualified, responsible firm in accordance with the requirements of this chapter and other applicable laws and regulations. The time frame for conducting this review process shall be as determined by Delaware County.

B. As part of the review process, Delaware County shall ensure that the contractor responsibility certification and subcontractor responsibility certifications and applicable supporting information comply with the requirements of this chapter.

C. Delaware County may conduct any additional inquiries to verify that the prospective awardee and its subcontractors have the technical qualifications 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, Delaware County may seek relevant information from the firm, its prior clients or customers, its subcontractors or any other relevant source.

D. After Delaware County determines that all responsibility certifications have been properly executed and has verified that all other relevant information requested for reviews indicates that the prospective awardee and its subcontractors are qualified, responsible firms, it shall issue a written contractor responsibility determination for the prospective awardee.

E. In the event a firm is determined to be nonresponsible, Delaware County shall notify the firm and proceed to conduct a responsibility review of the next lowest, responsive bidder or, if necessary, rebid the project. A responsibility determination may be revoked at any time if Delaware County obtains relevant information warranting any such revocations.

§ 29-7 Execution of final contract.

A. A contract subject to this chapter shall not be executed until all requirements of this chapter have been fulfilled and until a contractor responsibility determination has been issued by Delaware County pursuant to § 29-6.

B. Prior to the execution of a final contract under this section, Delaware County shall publicly post the notice of intent to award, contractor and subcontractor responsibility certifications, subcontractor lists, related supporting documentation and the contractor responsibility determination on a publicly available website for public inspection for a period of 10 calendar days after the issuance of the contractor responsibility determination.

§ 29-8 False, incomplete or misleading responsibility certifications.

If Delaware County determines that a contractor certification, subcontractor list or subcontractor responsibility certification contains false or misleading information that was provided knowingly or with reckless disregard for the truth or omits material information knowingly or with reckless disregard of the truth, the firm for which the certification was submitted shall be disqualified from the project and shall be prohibited from performing work for Delaware County for a period of three years. Delaware County may withhold payment of any monies due to the firm as damages and impose other applicable penalties and sanctions, including contract termination, as permitted by law or contract.