Construction Procurement
West Chester University
201 Carter Drive, Suite 200
West Chester, PA 19383
Frequently Asked Questions
Please note that nothing contained within this site may be construed as "legal advice" from the Office of Legal Counsel. Some of the material found here has been condensed from statutes, regulations, court decisions, policies of the Commonwealth of Pennsylvania and of the State System, and other sources. Users should always consult with University Contracting Officers first and then appropriate licensed counsel if specific legal or factual issues are involved. The materials here are presented for informational purposes only. (source: System Legal Counsel )
How do I find out the status of a contract that was submitted to Harrisburg?
Which contracts must be submitted for legal approval?
Are all contracts reviewed by the Office of Attorney General and the Office of General Counsel?
May I direct a contractor to perform services prior to approval?
CONTRACTS - COMMONWEALTH PROCUREMENT CODE (ACT 57)
When did the Code take effect?
Does the Code apply to all expenditures of contractual funds by a University?
Does the Code alter the non-bid ceiling?
Does the Code define how long procurement records must be kept?
Where are procurement records to be kept?
Is the public entitled to see procurement information?
Who should be signing sole source and emergency certifications?
In what ways have procedures changed in regards to filing an action with the Board of Claims?
Will new regulations be promulgated and by who?
Does the Code regulate the behavior of Commonwealth employees?
What is bid-rigging and how does it play a part in procurement?
Are all the procurement laws found in the Code?
Are there other new things in the Code not addressed here?
CONTRACTS - IN GENERAL
How
do I find out the status of a contract that was submitted to
Harrisburg?
Generally, contracts that have not been returned to the university
within 30 days are still with the Office
of General Counsel or the Office
of Attorney General. However, if you must find out the
status of a particular contract, please contact the Purchasing
Office (for goods or non-construction contracts) or the Contract
Services Office (for construction and real property type contracts).
Someone from those offices will contact the appropriate authorities
to seek a status report and provide you with the findings.
Which
contracts must be submitted for legal approval?
Legal review and approval is required for any contract for goods
and/or services (including "agreements" and "memoranda
of understanding") between a University and another party,
except those contracts in amounts under $5,000 made exempt from
review by Section 5.2d(2) of Manual M215.1. The Commonwealth
Attorneys Act authorizes the Office of Attorney General and the
Governor's Office of General Counsel to review and approve our
contracts, deeds and leases. Exceptions must be based on written
statements of authorized personnel.
Are
all contracts reviewed by the Office of Attorney General and
the Office of General Counsel?
The Office of Attorney General reviews all original Service Purchase
contracts in excess of $20,000, and all bluebacks and amendments
regardless of the dollar amount. Renewal contracts, provided
there are no amendments other than those established by the original
contract (i.e., change of price based on a predetermined formula
or a change of term), only require the signature of university
legal counsel.
The Office of General Counsel reviews contracts where the original
term is in excess of $500,000.
Both offices retain the right at any time to review any contract
should they request to do so.
Our university desires to enter into an agreement in which no
dollar amounts are involved. Must this agreement be submitted
for legal approval?
With limited exceptions, university legal counsel is required
by the Commonwealth Attorneys Act to review and approve contracts
and agreements entered into by the State System universities.
Legal approval is not required for $0 contracts if such contracts
are also on the list of pre-approved services in Section 5.2d(2)
of Manual M215.1 and the contract is on an unmodified SPC form – one
in which none of the standard clauses are changed, the services
are briefly and simply described, and there are no additional
terms or conditions.
May
I direct a contractor to perform services prior to approval?
No, unless it falls within the statutory definition of emergency
contracting as noted in the Commonwealth Procurement Code. State
System employees may not approve the purchase of goods or services
without a properly authorized contract. Moreover, no such employee
is authorized to commit the agency to any contractual relationship
covered by the appropriate statutes, regulations, and policies
without the approval of legal counsel. Contractors proceed at
their own risk of nonpayment if they initiate provision of goods
or services prior to receipt of a contract requiring, where applicable,
the approval of university legal counsel, the Office
of the Chancellor, the Office of General Counsel, and/or
the Office of Attorney General. Invitations to bid, requests
for proposals, and other contact with vendors should make this
clear, and explicitly provide that the university reserves the
right to reject any and all bid, RFP's, etc. Only Contracting
Officers and Fiscal Officers with delegated signatory authority
from the University President may process contracts on behalf
of the University.
When
must I bid?
With some exceptions, all contracts in excess of $18,500 must
be competitively bid. (Competitive bidding is highly recommended
for those contracts under $18,500.) Exceptions include, but are
not limited to (1) contracts funded by federal funds or private
donations regardless of the amount; (2) purchases from the Department
of General Services’ master contracts by use of a purchase
order; and (3) contracts where the contractor is the sole source
of the requested service. The Office of Attorney General, however,
sometimes requires that we demonstrate the accuracy of a sole
source determination by showing that one, or preferably two,
of what are the closest to what might be other apparently qualified
bidders were contacted and failed to bid. Listing three contacts
is the preferred procedure. See also the University’s Small
(Under $ 18,500) Procurement Policy.
If
bidding instructions are silent and DO NOT provide for any
individuals other than officers to sign on behalf of the corporation,
may a university accept other signatures if a certified board
resolution is provided? Must it reject the bid for noncompliance?
The bid need not be rejected for noncompliance if a certified
board resolution is attached to the submission evidencing the
authority of the signing individuals. For contracts, we permit
the contractor to provide alternate signatures so long as they
have proper documentation to support authority. Therefore, it
should be reasonable to allow it in this instance also.
Statutory authority supports this position. The law provides
that a document is properly executed by a corporation when "signed
by one or more officers or agents having actual or apparent authority
to sign it, OR by the President or Vice-President and Secretary
or Treasurer. . . ." 15 Pa.C.S.A. §1506(a).
CONTRACTS - COMMONWEALTH PROCUREMENT CODE (ACT 57)
When
did the Code take effect?
November 11, 1998.
Does
the Code apply to all expenditures of contractual funds by
a University?
Almost. There are three exceptions: a) if the funds are expended
in compliance with federal requirements, b) if it involves a
contract between Commonwealth agencies or other governments (except
as provided in Chapter 19 of the Code), and c) if the expenditure
is in compliance with funding by a gift, grant, bequest or cooperative
agreement.
Does
the Code alter the non-bid ceiling?
Yes. The non-bid ceiling set forth in the Code (i.e., $18,500
for small procurements) will take effect on November 11, 1998.
In the interim, the $18,500 non-bid ceiling contained in the
recent amendments to Act
188 has been in effect since July of this year.
Does
the Code define how long procurement records must be kept?
Yes. All procurement records shall be maintained for a minimum
of three years. This requirement includes, but is not limited
to, the following types of records a) determinations and other
documents related to competitive sealed bidding, b) determination
and other documents related to competitive sealed proposals,
c) determination and other documents related to sole source procurement,
d) determination and other documents related to emergency procurement,
and e) determination and other documents related to competitive
selection procedures for certain services.
Where
are procurement records to be kept?
The State System must establish and maintain a central office
for the retention of information subject to public access under
the Code. However, it is believed that Act
188 would permit decentralization of this function to university
purchasing departments.
Is
the public entitled to see procurement information?
The Code provides public access to any documents created by or
provided to any Commonwealth agency for any procurement to the
extent currently provided for in the Pennsylvania Right to Know
Law.
May
a comptroller certify to fiscal responsibility AND bind the
university if they have contracting authority to do so?
No. For the sake of the integrity of the process, the "comptroller" or
person certifying the availability of funds and the fiscal appropriateness
of the contract should be an individual separate and apart from
the university official (Contracting Officer with Presidential
Delegated Signatory Authority) who signs on behalf of the university.
This is designed as a check and balance system.
I
need to make an emergency repair and cannot wait. Does the
Code allow me to do this and if so, how?
An emergency procurement is the need to purchase goods or services
when circumstances do not permit the delays intrinsically involved
in the mandatory competitive bidding practices. The properly
authorized contracting officer or his/her designee may make an
emergency procurement when there exists a threat to public health,
welfare or safety or circumstances outside the control of the
university. Under no circumstances will bad planning be considered
an "emergency" justifying this form of procurement.
Emergency contracts will not require the pre-approval of university
legal counsel. However, great care must be taken to insure that
any such contract would pass legal review based on the statutory
criteria and any questions and concerns should be directed to
counsel prior to the contractor commencing work. Rejection of
the contract for failure to comply with emergency procurement
criteria draws the university and contractor into an unavoidable,
and preferably avoidable, contractual dispute.
All emergency contracts must be certified by the contracting
officer or his designee by the pre-approved form prepared by
the office of Chief Counsel when submitted for legal review.
Unfortunately, any contracts failing to contain the mandatory
certification will be returned to the university.
There
is only one known contractor I know that can provide the services
I need. The contract is over $18,500. Do I really need to competitively
bid this?
It depends. The procurement of a good, service, or construction
item on a "sole source" basis involves the award of
a contract without competition, where there is only one vendor
available to provide such good, service, or item. Section 515
of the Code sets forth the requirements for sole source procurement.
Who
should be signing sole source and emergency certifications?
The person signing either of these certifications on behalf of
the university should have the contract authority to bind the
university contract at the monetary level of the contract. For
example, if the contract for which a certification is being submitted
is anticipated to be $100,000, then the individual signing the
certification must have contracting authority up to and including
$100,000.
What
is the time frame for an actual or prospective bidder to file
a protest and how are such protests filed?
Actual or prospective bidders, offerors or contractors who believes
that they are aggrieved may protest to the contracting officer
in writing within seven days after the claimant knows or should
have known of the facts giving rise to the protest. If the protestor
did not submit a bid, his protest must be received by the contracting
officer prior to the opening of bids, as designated in the request/invitation.
Failure to do so is an untimely submission that can be disregarded.
University presidents have the authority to settle or resolve
a protest within 60 days of its filing. Chief Counsel must approve
any action resulting in a settlement. If a settlement is not
reached within sixty days, the president should advise the protestor
in writing that the matter is being referred to the Office of
the Chancellor. In the case of no mutual agreement/settlement,
the Chancellor will, within 120 days from the filing of an original
protest, issue a decision in writing. The decision, which is
to be sent by registered mail to the protestor and any other
interested party, must state the rationale for its final decision
and advise all affected parties of their rights to file a judicial
action with the Commonwealth Court of Pennsylvania within 14
days of receipt of the decision. No action may be taken to the
Commonwealth Court unless all administrative procedures have
been exhausted.
During the pending protest and until all avenues of appeal have
been exhausted, the university may not proceed with the solicitation
or with the award of the contract, unless it is determined by
the contracting officer or designee that the protest is clearly
without merit or that the award of the contract without delay
is necessary to protect the substantial interests of the Commonwealth.
University Legal Counsel should be consulted prior to any determination
and subsequent action.
In
what ways have procedures changed in regards to filing an action
with the Board of Claims?
If a controversy arises between a contractor and a university
as a result of a contractual relationship (i.e., breach of contract,
mistake, misrepresentation or other cause for contract modification
or recession), a claim must first be filed in writing with the
contracting officer within six months after it accrues. The contracting
officer has the authority to settle or resolve this action without
the necessity of bringing the matter before the Board of Claims
for formal adjudication. However, all settlement must be reviewed
and approved by Chief Counsel.
If the controversy is not settled within 120 days, the contracting
officer or designee must issue an opinion in writing. That decision
must state the reasons for the decision made as to the dispute
and inform the contractor of its right to administrative and
judicial review by the Board of Claims. The decision is to be
served by registered mail.
The decision of the purchasing head shall be final, unless the
contractor files a claim with the Board of Claims within 30 days
of the receipt of the decision. If the university does not issue
a timely decision, the contractor may proceed to court as if
an adverse decision was rendered.
Will
new regulations be promulgated and by who?
Department of General
Services retains authority to promulgate regulations governing
the procurement, management, control, and disposal of any and
all supplies, services and construction to be procured by Commonwealth
agencies, including the State System. This could include the
authority of DGS to "audit" and "monitor" the
implementation of its regulations and the requirements of the
Code. The State System will have to monitor and participate
in the regulatory review process in order to have input into
those regulations authorized under the Code.
Does
the Code regulate the behavior of Commonwealth employees?
In a manner. The Code incorporates the provision of the Public
Official Ethics Act, and the State Adverse Interest Act. The
Code also states that it is the duty of public employees to act
impartially in regards to the procurement process. It is also
unlawful for any employee to require that a bond be furnished
by a particular surety company, agent, or broker. Anyone found
in violation of this section could be found guilty of having
committed a misdemeanor of the first degree. Lastly, Chapter
45 of the Code incorporates the provisions of the Anti-bid Rigging
Act. Conviction under this chapter could result in both criminal
and civil sanctions.
What
is bid-rigging and how does it play a part in procurement?
Bid-rigging is when two or more individuals conspire together
to determine in advance the winning bidder of a contract involving
a government agency. It includes, but is not limited to, the
following scenarios:
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.
It is illegal for any person individually, or with another person, to engage in bid-rigging involving a contract for the purchase of goods, equipment, services or materials or for construction or repair and/or a subcontract for the purchase of equipment, goods, services or material or for construction or repair with a prime contractor or proposed prime contractor for a government agency.
Any university which discovers that it is the victim of bid-rigging as a result of any contractor, third party, and/or Commonwealth employee has the authority to sue in a civil action all participants for the recovery for the full amount of damages, which are then tripled. In addition, damages, which are awarded in a successful action, also include the cost of the suits plus reasonable attorney fees. The statute of limitations for such an action is four years from the date the action arose and cannot extend past ten years from the date the contract was signed by the parties. As far as criminal penalties are concerned, any entity found to have engaged in anti-bid rigging activities can be sentenced to pay a fine of up to one million dollars ($1,000,000). An individual can be fined up to fifty thousand dollars ($50,000) and/or serve a prison term of three years.
In
the past, the university has been very impressed in regards
to a contractor. Can I write my request in such a way that
he would be a shoe-in? He is a known quantity and the university
knows it will get value for its money.
No. A "not-so-distant cousin" to anti-bid rigging is
specification rigging. This occurs when the writing of a specification
is so restrictive that it virtually guarantees the awarding of
the contract to a pre-selected individual. In that this is a
pre-conceived arrangement, which requires advance knowledge of
a contractor's capability and the intent to exclude others, this
is technically a violation of the anti-bid rigging laws. Effort
should be made to insure that this does not occur either intentionally
or unintentionally.
Are
all the procurement laws found in the Code?
No. There are four laws that were not incorporated into the Code
but still require compliance. Although not in the Code, universities
must still adhere to the Steel Products Procurement Act, the
Prevailing Wage Law, the Separations Act, and the law relating
to interest on delinquent payments to non-construction contracts.
Are
there other new things in the Code not addressed here?
Absolutely, and all personnel who contract on behalf of the universities
should reference the new edition of the Contract
Manual which was initially distributed in February of 1999
and is regularly updated via the office of legal counsel's web
page. Monthly checks of the web page are strongly encouraged
to ensure receipt of modification and alterations.
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