PRINTER'S NO. 2272
No. 1545 Session of 2002
INTRODUCED BY CONTI, TOMLINSON, LEMMOND AND M. WHITE,
OCTOBER 1, 2002
REFERRED TO LOCAL GOVERNMENT, OCTOBER 1, 2002
AN ACT
1 Amending the act of July 28, 1953 (P.L.723, No.230), entitled,
2 as amended, "An act relating to counties of the second class
3 and second class A; amending, revising, consolidating and
4 changing the laws relating thereto," further providing for
5 authority of county commissioners to make contracts.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 2001 of the act of July 28, 1953
9 (P.L.723, No.230), known as the Second Class County Code,
10 amended or added July 1, 1978 (P.L.696, No.121), November 26,
11 1978 (P.L.1268, No.302), December 10, 1980 (P.L.1165, No.213),
12 December 10, 1982 (P.L.1084, No.254), October 5, 1990 (P.L.519,
13 No.125), January 27, 1998 (P.L.1, No.1) and October 30, 2000
14 (P.L.616, No.85), is amended to read:
15 Section 2001. County Commissioners to Make Contracts.--The
16 County Commissioners may make contracts for lawful purposes and
17 for the purposes of carrying into execution the provisions of
18 this section and the laws of the Commonwealth.
19 (a) Except as provided in subsection (a.1), all contracts or
1 purchases in excess of ten thousand dollars ($10,000) shall be
2 in writing and, except those hereinafter mentioned, and except
3 as provided by the act of October 27, 1979 (P.L.241, No.78),
4 entitled, as amended, "An act authorizing political
5 subdivisions, municipality authorities and transportation
6 authorities to enter into contracts for the purchase of goods
7 and the sale of real and personal property where no bids are
8 received," shall not be made except with and from the lowest
9 responsible and responsive bidder meeting specifications, after
10 due notice in at least one newspaper of general circulation,
11 published or circulating in the county at least [three (3)] two
12 (2) times, at intervals of not less than three (3) days where
13 daily newspapers of general circulation are employed for such
14 publication, or in case weekly newspapers are employed, then the
15 notice shall be published once a week for two (2) successive
16 weeks. The first advertisement shall be published not less than
17 ten (10) days prior to the date fixed for the opening of bids.
18 (a.1) The requirements of this subsection need not be
19 followed in cases of emergency, but in such cases the actual
20 emergency shall be declared and stated by resolution of the
21 commissioners.
22 (b) The acceptance of all bids shall be by the controller.
23 They shall be opened publicly at a time and place to be
24 designated in the notice by the chief clerk, the commissioners
25 or their designee. All the figures shall be announced publicly
26 by the chief clerk, the commissioners or their designee, as the
27 case may be, and referred to the appropriate departments for
28 tabulation [without the presence of the commissioners].
29 Whenever, for any reason, the bid openings shall not be held,
30 the same business may be transacted at a subsequent [time, if at
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1 least five (5) days notice thereof shall be published in the
2 newspaper aforesaid.] meeting, the time and place of which shall
3 have been announced at the previous meeting held for such
4 openings. The contract shall be awarded or all bids shall be
5 rejected within thirty (30) days of the opening of the bids,
6 except for bids subject to 62 Pa.C.S. (relating to procurement).
7 Thirty-day extensions of the date for the award may be made by
8 the mutual written consent of the commissioners and any bidder
9 who wishes to remain under consideration for award. The
10 commissioners shall excuse from consideration any bidder not
11 wishing to agree to a request for extension of the date for the
12 award and shall release such bidder from any bid bond or similar
13 bid security furnished under subsection (b.1). All contracts
14 shall be filed with the controller or with the chief clerk, as
15 the case may be, immediately after their execution.
16 (b.1) All bids [may] shall if required by the commissioners
17 be accompanied by cash [or by a certified good faith check], a
18 certified check, cashier's check, bank good faith check or
19 irrevocable letter of credit in a reasonable amount drawn upon a
20 bank authorized to do business in the Commonwealth[, in an
21 amount not exceeding five per centum (5%) of the bid] or by a
22 bond with corporate surety [not exceeding five per centum (5%)
23 of the amount bid] in a reasonable amount. In the event any
24 bidder shall, upon award of the contract to him, fail to comply
25 with the requirements hereinafter stated as to [a bond] security
26 guaranteeing the performance of the contract, or fail or refuse
27 to enter into a contract, or otherwise fail or refuse to render
28 the required services, the [good faith deposit by cash,
29 certified check or bond] security furnished under this
30 subsection shall be forfeited to the county as liquidated
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1 damages, and the contract subsequently may be awarded to the
2 next lowest bidder, who shall manifest his acceptance of such
3 contract by giving a good faith deposit in the amount and manner
4 set forth in this subsection on or before the third day after
5 the award of the contract to such bidder and otherwise comply
6 with the provisions of this section.
7 (b.2) The amount or price of the contract shall, in all
8 cases whether of straight sale price, conditional sale, lease,
9 lease purchase or otherwise, be the entire amount which the
10 county pays to the successful bidder, or his assigns, less the
11 value of personal property transferred from the county to the
12 bidder or his assigns at any time during the duration of the
13 contract, in order to obtain the services or property, or both,
14 and shall not be construed to mean only the amount which is paid
15 to acquire title or to receive any other particular benefit or
16 benefits of the whole bargain. The value of personal property
17 transferred to the bidder or his assigns upon execution of the
18 contract shall be specified in the bid. The method of
19 determining the value of personal property transferred to the
20 bidder or his assigns at a time during the duration of the
21 contract shall be specified in the bid and shall be determined
22 using generally accepted valuation methods.
23 (c) The successful bidder, when [advertising] a formal bid
24 is required herein, [shall] may be required to furnish a bond
25 [with suitable reasonable requirements] or irrevocable letter of
26 credit or other security in an amount sufficient to the
27 commissioners guaranteeing performance of the contract[, with
28 sufficient surety in the amount of fifty per centum (50%) of the
29 amount of the contract,] within thirty (30) days after the
30 contract has been awarded, unless the commissioners shall
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1 prescribe a shorter period or unless the commissioners shall
2 waive the bond requirement in the bid specification. Performance
3 security for services and contracts for labor and materials
4 delivered on a periodic basis, including, but not limited to,
5 food service contracts, home health services and janitorial
6 services and supplies, may be computed on the expected average
7 value for one or more months at the discretion of the
8 commissioners. Upon failure to furnish any required bond within
9 such time, the previous awards shall be void and the
10 commissioners may award the contract to the next lowest bidder.
11 Deliveries, performances, accomplishment and guarantees may be
12 required in all cases of expenditures, including the exceptions
13 herein.
14 (d) The contracts or purchases made by the commissioners
15 involving an expenditure of over ten thousand dollars ($10,000)
16 which shall not require advertising or bidding as hereinbefore
17 provided are as follows:
18 (1) Those for maintenance, repairs or replacements for
19 water, electric light, or other public works: Provided, That
20 they do not constitute new additions, extensions or enlargements
21 of existing facilities and equipment[, but a bond]. Security may
22 be required by the county commissioners as in other cases of
23 work done.
24 (2) Those made for improvements, repairs and maintenance of
25 any kind made or provided by the county through its own
26 employes[: Provided, That this]. This paragraph shall not apply
27 to construction materials used in a street improvement.
28 (3) Those where particular types, models or pieces of new
29 equipment, articles, apparatus, appliances, vehicles or parts
30 thereof are desired by the county commissioners, which are
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1 patented and manufactured products or copyrighted products.
2 (4) Those involving any policies of insurance or surety
3 company bonds, those made for public utility service and
4 electricity, natural gas or telecommunication services:
5 Provided, That, in the case of utilities not under tariffs on
6 file with the Pennsylvania Public Utility Commission[.] ,
7 contracts made without advertising and bidding shall be made
8 only after receiving written or telephonic price quotations from
9 at least three (3) qualified and responsible contractors or, in
10 lieu of price quotations, a memorandum shall be kept on file
11 showing that fewer than three (3) qualified contractors exist in
12 the market area within which it is practicable to obtain
13 quotations. A written record of telephonic price quotations
14 shall be made and contain at least the date of the quotation,
15 the name of the contractor and the contractor's representative.
16 (5) Those involving personal or professional services[.],
17 including, but not limited to, services of members of the
18 medical or legal profession, registered architects, engineers,
19 certified public accountants or other personal services
20 involving professional expertise.
21 (6) Those involving tangible client services provided by
22 nonprofit agencies. For the purposes of this clause, the term
23 "tangible client services" shall mean congregate meals, home-
24 delivered meals, transportation and chore services provided
25 through area agencies on aging.
26 (7) Those involving the purchase of milk.
27 (8) Those made with any public body, including, but not
28 limited to, the sale, lease or loan of any supplies or materials
29 to the county by a public body, provided that the price thereof
30 shall not be in excess of that fixed by the public body. The
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1 requirements of 53 Pa.C.S. Ch. 23 Subch. A (relating to
2 intergovernmental cooperation) shall not apply when a county
3 purchases cooperatively with another public body which has
4 entered into a contract for supplies or materials. As used in
5 this paragraph, "public body" shall mean any of the following:
6 (i) the Federal Government;
7 (ii) the Commonwealth of Pennsylvania;
8 (iii) any other state;
9 (iv) a political subdivision, local or municipal authority
10 or other similar local entity of the Commonwealth or any other
11 state; or
12 (v) an agency of the Federal Government, the Commonwealth or
13 any other state.
14 (9) Those exclusively involving construction management
15 services.
16 (10) Those involving computer software.
17 (d.1) Notwithstanding the provisions of this article to the
18 contrary, the county commissioners shall have authority to enter
19 into contracts for equipment and services related to technology
20 and information systems on the basis of best value procurement.
21 Contracts under best value procurement shall be made only after
22 the county has solicited proposals based on performance and
23 outcome specifications developed by the county and describing at
24 minimum the objectives to be met by the system, the tasks to be
25 performed by the system, the users of the system, system
26 security issues, the time frame for system implementation,
27 potential operating technologies, compatibility with existing
28 systems, training and maintenance and shall indicate the process
29 by which the contract shall be awarded. Best value procurement
30 shall not require a sealed bid process and shall permit the
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1 commissioners to negotiate the terms of the agreement with any
2 responsive and responsible vendor.
3 (e) [Every contract for the construction, reconstruction,
4 alteration, repair, improvement or maintenance of public works
5 shall comply with the provisions of the act of March 3, 1978
6 (P.L.6, No.3), known as the "Steel Products Procurement Act."]
7 Every contract subject to this article shall comply, as
8 applicable, with the provisions of:
9 (1) The act of August 15, 1961 (P.L.987, No.442), known as
10 the "Pennsylvania Prevailing Wage Act."
11 (2) The act of December 20, 1967 (P.L.869, No.385), known as
12 the "Public Works Contractors' Bond Law of 1967."
13 (3) The act of January 23, 1974 (P.L.9, No.4), referred to
14 as the Public Contract Bid Withdrawal Law."
15 (4) The act of March 3, 1978 (P.L.6, No.3), known as the
16 "Steel Products Procurement Act".
17 (5) The act of February 17, 1994 (P.L.73, No.7), known as
18 the "Contractor and Subcontractor Payment Act."
19 (6) 62 Pa.C.S. Chs. 37 Subch. B (relating to motor
20 vehicles), 39 (relating to contracts for public works) and 45
21 (relating to antibid-rigging).
22 (f) No person, consultant, firm or corporation contracting
23 with a county for purposes of rendering personal or professional
24 services to the county shall share with any county officer or
25 employe, and no county officer or employe shall accept, any
26 portion of the compensation or fees paid by the county for the
27 contracted services provided to the county except under the
28 following terms or conditions:
29 (1) Full disclosure of all relevant information regarding
30 the sharing of the compensation or fees shall be made to the
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1 board of commissioners.
2 (2) The board of commissioners must approve the sharing of
3 any fee or compensation for personal or professional services
4 prior to the performance of said services.
5 (3) No fee or compensation for personal or professional
6 services may be shared except for work actually performed.
7 (4) No shared fee or compensation for personal or
8 professional services may be paid at a rate in excess of that
9 commensurate for similar personal or professional services.
10 (g) (1) The board of commissioners may, in its sole
11 discretion, elect to use an alternative contracting procedure to
12 achieve the adaptive reuse of former jail facilities. If the
13 board of commissioners elects to utilize an alternative
14 contracting procedure, the board shall adopt a resolution that
15 the use of an alternative contracting procedure is the most
16 efficient, economical and timely method to secure an adaptive
17 reuse of former jail facilities. Upon adoption of a resolution,
18 the board of commissioners shall request written proposals from
19 proposers for the adaptive reuse of former jail facilities under
20 an alternative contracting method. In its request for proposals,
21 the board shall include such terms, conditions and requirements
22 which it deems necessary to protect the interests of the county.
23 (2) In reviewing and evaluating the proposals for the
24 adaptive reuse of former jail facilities, the board of
25 commissioners shall, in addition to compliance with the terms,
26 conditions and requirements set forth in the request for
27 proposals, consider the following criteria:
28 (i) the cost of the proposer's adaptive reuse proposal;
29 (ii) experience of the proposer;
30 (iii) preservation of the distinct architectural design and
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1 integrity of the former jail facilities;
2 (iv) adherence to prevailing wage laws and other work force
3 standards;
4 (v) commitment to enter into voluntary contract with
5 disadvantaged business enterprises.
6 After due consideration of proposals under the criteria
7 described above, the board of commissioners may, in its
8 discretion, select a proposal and award a contract to a
9 responsible proposer for the adaptive reuse of former jail
10 facilities under an alternative contracting procedure. The award
11 of a contract for the adaptive reuse of former jail facilities
12 need not be awarded to the lowest bidder.
13 (3) Any contract for the adaptive reuse for former jail
14 facilities awarded under this subsection shall be exempt from
15 and not be subject to sections 2517 and 2520 of this act or the
16 act of May 1, 1913 (P.L.155, No.104), entitled "An act
17 regulating the letting of certain contracts for the erection,
18 construction, and alteration of public buildings."
19 (4) As used in this section, the following words and phrases
20 shall have the meanings given to them in this subsection:
21 "Adaptive reuse." The alteration, renovation, remodeling,
22 modification or reconstruction of former jail facilities for
23 reuse as courtrooms, office space or such other facilities and
24 uses as the board of commissioners shall from time to time deem
25 necessary and appropriate.
26 "Alternative contracting procedure." A procedure under which
27 a proposer would be responsible for all aspects or phases
28 necessary to achieve the development of a parcel of property.
29 Such aspects or phases of development shall include, but not
30 necessarily be limited to, the planning, design, finance,
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1 construction and management of property. The term "alternative
2 contracting procedure" shall be similar in all respects to the
3 commonly understood term in the real estate development and
4 construction industry known as a "turnkey."
5 "Former jail facilities." A building or group of buildings
6 with related facilities owned by a county of the second class
7 which are more than one hundred years old and which were
8 previously used as jail facilities.
9 "Proposer." A firm, organization or company or a combination
10 of firms, organizations or companies acting as a partnership,
11 joint venture, consortium or similar joint relationship with
12 sufficient knowledge, expertise and experience in the areas of
13 architectural design, construction, financing of real estate
14 development or construction and real estate management.
15 Section 2. This act shall take effect in 60 days.
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