[HISTORY: Adopted by the Township Council of the Township
of Upper Darby as indicated in article histories. Amendments noted
where applicable.]
[Adopted 1-20-1976 by Res. No. 1-76; amended in its entirety at time
of adoption of Code (see Ch. 1, General Provisions, Art. I)]
The definitions of certain words or phrases used in this article
shall be as follows:
The Home Rule Charter of Upper Darby Township.
Upper Darby Township.
The Township may make contracts for any lawful purpose as may
be necessary for carrying into execution the provisions of The Home
Rule Charter and the laws of the Commonwealth of Pennsylvania. All
contracts or purchases made by the Township shall be made in accordance
with the contracts provisions of the Pennsylvania First Class Township
Code, 53 P.S. §§ 56801 through 56811, as may be amended.
[Adopted 12-15-2021 by Ord. No. 3107[1]]
[1]
Editor's Note: This ordinance superseded former Art. II, Contractor
Responsibility and Eligibility, adopted 11-6-2013 by Ord. No. 3012.
A.Â
Upper Darby Township 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.Â
To effectuate the purpose of selecting responsible contractors for
these public contracts and to protect Upper Darby Township's
investments in such contracts, prospective contractors and subcontractors
should be required to meet preestablished, 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.Â
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.Â
Therefore, Upper Darby Township shall require compliance with the
provisions of this article by business entities seeking to provide
services as specified herein. The requirements of this article are
intended to supplement, not replace, existing contractor qualification
standards or other criteria currently required by Upper Darby Township.
However, in the event that this article conflicts with any law, public
policy or contracting documents of Upper Darby Township, the requirements
of this article shall prevail.
A.Â
This article shall apply to public works projects undertaken by Upper
Darby Township for construction, demolition, alteration, renovation,
modernization, service or maintenance of buildings, structures or
facilities valued at $100,000 or more. 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 article.
B.Â
All firms engaged in public works contracts subject to this article,
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.Â
The firm will pay all craft employees on the project, at a minimum,
the applicable prevailing wage and fringe benefit rates, as established
for the classification in which the worker is employed, in accordance
with 43 P.S. § 165-1 et seq.
A.Â
As a condition of performing work on a public works contract subject
to this article, 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.Â
The contractor responsibility certification shall be completed on
a form provided by Upper Darby Township and reference the project
for which a bid is being submitted by name and contract or project
number.
C.Â
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)Â
The firm and its employees have all licenses, registrations, certificates
or other credentials required by federal and state law and the laws
of Upper Darby Township with respect to the contract work it seeks
to self-perform.
(2)Â
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)Â
The firm has not been debarred or suspended by any federal, state
or local government agency or authority in the past three years.
(4)Â
The firm has not defaulted on any project in the past three years.
(5)Â
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)Â
The firm and its principals/owners have not been convicted of any
crime relating to its contracting business in the past 10 years.
(7)Â
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)Â
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.
(9)Â
The firm shall 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 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.
(10)Â
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. This requirement, along with the requirements specified in Subsection C(11), help ensure that workers employed on the project are participants in or graduates of bona fide apprenticeship training programs in each trade or craft in which their services are utilized, as evidenced by the fact that the program is registered with federal or state government and has been in continuous existence for no fewer than five years prior to the project relating to the certification.
(a)Â
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)Â
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.
(11)Â
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 Subsection C(10). The apprenticeship participation specified by this section must be in the same trade or craft for which the workers are employed on the project.
(12)Â
The firm 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.
(13)Â
The firm shall comply with the wage and benefit requirements set forth in § 33-4C of this article.
(14)Â
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)Â
The firm shall notify Upper Darby Township within seven days of any
material changes in its operation that relate to any matter attested
to in this certification.
D.Â
Execution of the contractor responsibility certification required
by this article shall not establish a presumption of contractor responsibility,
and Upper Darby Township 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. Upper Darby Township 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.Â
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 § 33-7 of this article.
F.Â
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.Â
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 Upper Darby Township because
of its refusal to accept a bid for this reason.
A.Â
After it has received bids for a project, Upper Darby Township shall
issue a notice of intent to award contract to the firm that has submitted
the lowest responsive bid.
B.Â
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 § 33-8 of this article, compliance with subcontractor certifications required by § 33-7 of this article, and any other qualification standards required by Upper Darby Township.
A.Â
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.
B.Â
The prospective awardee shall not be permitted to use a subcontractor
on any work performed for Upper Darby Township unless it has identified
the subcontractor on its subcontractor list and provided a subcontractor
responsibility certification in accordance with the requirements of
this section.
C.Â
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
Upper Darby Township.
D.Â
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 order to do business in the state in which it is located.
E.Â
Subcontractor responsibility certifications be executed by the respective subcontractors on forms prepared by Upper Darby Township and contain the same information, representations and supporting information required in contractor responsibility certifications, including verification of apprenticeship qualifications required by § 33-5C(11) for each trade or classification of craft workers it will employ on the project.
F.Â
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.Â
A subcontractor listed on a firm's subcontractor list shall
not be substituted unless written authorization is obtained from Upper
Darby Township and a subcontractor responsibility certification is
provided for the substitute subcontractor.
H.Â
In the event that Upper Darby Township determines that a subcontractor
fails to meet the requirements of this article or is otherwise determined
to be nonresponsible, it may, after informing the prospective awardee,
exercise one of the following options:
(1)Â
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 Upper Darby Township;
(2)Â
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)Â
Disqualify the prospective awardee.
I.Â
In the event a subcontractor is disqualified under this article,
the general contractor, construction manager or other lead or prime
contractor shall not be permitted to make any type of claim against
Upper Darby Township on the basis of a subcontractor disqualification.
A.Â
After Upper Darby Township 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 article
and other applicable laws and regulations. The time frame for conducting
this review process shall be as determined by Upper Darby Township.
B.Â
As part of the review process, Upper Darby Township shall ensure
that the contractor responsibility certification and subcontractor
responsibility certifications and applicable supporting information
comply with the requirements of this article.
C.Â
Upper Darby Township 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, Upper Darby Township may seek
relevant information from the firm, its prior clients or customers,
its subcontractors or any other relevant source.
D.Â
After Upper Darby Township 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.Â
In the event a firm is determined to be nonresponsible, Upper Darby
Township 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 Upper Darby Township obtains relevant information warranting
any such revocations.
A.Â
A contract subject to this article shall not be executed until all requirements of this article have been fulfilled and until a contractor responsibility determination has been issued by Upper Darby Township pursuant to § 33-8.
B.Â
Prior to the execution of a final contract under this section, Upper
Darby Township 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.
If Upper Darby Township 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 Upper Darby Township for a period
of three years. Upper Darby Township 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.