§ 17-1402.  Open and Public Process Required For Non-Competitively Bid Contracts.
   (1)   The Procurement Commissioner shall develop procedures to ensure that Non-Competitively Bid Contracts are advertised, awarded and approved in a timely, efficient and coordinated manner in the best interest of the City; in a manner that maximizes accessibility by vendors and maximizes transparency to the public; and in compliance with all applicable provisions of this Chapter. A Non-Competitively Bid Contract shall be awarded in compliance with the following: 137
      (a)   A City Agency that seeks to enter into a Non-Competitively Bid Contract shall so notify the Procurement Department, and shall coordinate with the Procurement Department in carrying out the requirements of this Chapter. The Procurement Commissioner shall develop applications, disclosure forms, and procedures and guidelines to assist Applicants, Contractors and Disadvantaged Business Enterprises in complying with the provisions of this Chapter. The City Agency that seeks to enter into a Non-Competitively Bid Contract shall publish on the City's official website and file with the Procurement Commissioner, the Finance Director and the Commerce Director a notice of the availability of such contracting opportunity, and shall award such contract only to a party that completes an application form supplied by such City Agency, which application form shall contain all disclosure forms required by subsection (1)(b) and shall include a summary of the provisions and requirements of this Chapter. The required notices shall appear on the City's official website for at least fourteen days before the time by which application forms must be filed. The Procurement Commissioner, the Finance Director and the Commerce Director shall each keep a printed copy of all required notices in a registry organized by the date application forms must be filed, and make such registry available for public inspection during regular business hours. The required notices must be available for public inspection in such registries at least fourteen days before the time by which application forms must be filed. The required notices shall set forth: 138
         (.1)   The City Agency seeking to enter into the contract;
         (.2)   The nature of the goods or services being sought;
         (.3)   The requirement that no party may be awarded the contract unless it files an application form provided by the City Agency, and the manner and time by which such application forms must be filed;
         (.4)   The requirements of subsection (1)(b) that the Applicant disclose the names of subcontractors the Applicant intends to use on the contract, the names of Consultants used to assist in securing the contract, certain contributions made by the Applicant and such Consultants, and the continuing disclosure requirements of subsection (1)(e) concerning such contributions made during and after the term of the contract; and
         (.5)   The criteria by which the selection will be made.
      (b)   Mandatory Disclosures.
         (.1)   An Applicant must disclose, by completing and signing disclosure forms attached to the application:
            (.a)   The names, business addresses and phone numbers of all Consultants used by the Applicant with respect to the contract at issue within the year prior to the date the application must be filed, and the amount paid or to be paid to each such Consultant for such services, or certify that no Consultants were so used;
            (.b)   All contributions of money or in-kind assistance made by the Applicant or by a Consultant during the two years prior to the date the application must be filed to any candidate for nomination or election to any elective City office or to an Incumbent, or to any political committee or party in the City of Philadelphia, or to any group, committee or association organized in support of any such candidate, office holder, political committee or party in the City of Philadelphia, or any contribution covered by subsection (3) or (4) of Section 17-1405 ("Attribution Rules"), and the date and amount of each such contribution, or certify that no such contributions have been made. The attribution rules of Section 17-1405 shall apply to determine what contributions must be disclosed as contributions of the Applicant or of a Consultant under this subsection (1)(b); 139
            (.c)   The names, business addresses and phone numbers of all subcontractors the Applicant intends to use on the contract, and the amount or percentage to be paid to each such subcontractor;
            (.d)   The name and title of each City officer or employee who, within two years prior to the date the application must be filed, asked the Applicant, any officer, director or management employee of the Applicant, or any Person representing the Applicant, to give money, services, or any other thing of value (other than a Contribution as defined in Section 17-1401) to any Person, and any payment of money, provision of services, or any other thing of value (other than a Contribution as defined in Section 17-1401) given to any Person in response to any such request. The Applicant shall also disclose the date of any such request, the amount requested, and the date and amount of any payment made in response to such request;
            (.e)   The name and title of each City officer or employee who, within two years prior to the date the application must be filed, directly or indirectly advised the Applicant, any officer, director or management employee of the Applicant, or any Person representing the Applicant that a particular Person could be used by the Applicant to satisfy any goals established in the contract for the participation of minority, women, disabled or disadvantaged business enterprises. The Applicant shall also disclose the date the advice was provided, and the name of such particular Person.
         (.2)   The City Agency awarding the contract shall forward a copy of all disclosure forms it receives to the Mayor, Finance Director, Procurement Department, and the Department of Records.
         (.3)   No Non-Competitively Bid Contract shall be awarded unless all required disclosure forms are completed, signed and attached to the application for such contract and on file with the Mayor, Finance Director, Procurement Department, and the Department of Records.
         (.4)   No Non-Competitively Bid Contract valued at one hundred thousand dollars ($100,000) or more shall be entered with an Applicant who does not agree to disclose, and agree to require all Subcontractors on the contract to disclose, the following and such other related disclosures as may be required by the Finance Department by regulation: 139.1
            (.a)   The Applicant's and each anticipated Subcontractor's prior years of experience performing on City contracts in any capacity during the five calendar years prior to the date the application must be filed;
            (.b)   Demographic Data on all individuals employed by the Applicant and each anticipated Subcontractor on the Report Date; and
            (.c)   Demographic Data on all individuals serving as board members of the Applicant on the Report Date.
      (c)   After the City Agency has selected the Applicant with which it intends to contract, the City Agency shall publish a notice on the City's official website setting forth the names of all Applicants, the Applicant to which the contract will be awarded, and the basis for the award, including a statement as to whether the Applicant to be awarded the contract was the lowest bidder and if not, why the applications of all lower bidders were rejected. Such notice shall also contain a copy of the notice of the availability of such contracting opportunity (including any Request For Proposals or other related documents) previously published pursuant to subsection (a). All information published to comply with this subsection (c) shall appear on the City's website for at least one week before the contract is executed, and shall remain on the website for at least five years. No later than the date the notice first appears on the City's website, the City Agency shall file a copy of the notice with the President and Chief Clerk of Council, and the Mayor, Finance Director, Procurement Department, and Department of Records. 140
      (d)   If Council approval of a Non-Competitively Bid Contract is required under Section 2-309 or other provision of the Charter, then such contract must be specifically approved by ordinance. An ordinance approving a Non-Competitively Bid Contract shall include as exhibits:
         (.1)   A copy of the notice required by subsection (1)(a);
         (.2)   A copy of the application form submitted by the Applicant to whom the contract is proposed to be awarded, together with a copy of all disclosure forms required to be submitted by such Applicant under subsection (1)(b); and
         (.3)   A copy of the notice required by subsection (1)(c).
      (e)   Every Non-Competitively Bid Contract shall include the following provisions: 141
         (.1)   For contracts in an amount greater than the amount set forth in subsection 17-1404(1)(a) (where the Contractor is an individual) or the amount set forth in subsection 17-1404(1)(b) (where the Contractor is a business): The Contractor shall covenant that during the term of the contract, contributions will not be made that would render the Contractor ineligible to apply for or enter into a Non-Competitively Bid Contract under the provisions of subsection 17-1404(1). Breach of such covenant shall render the contract voidable at the City's option, and shall make the Contractor liable for liquidated damages to the City in an amount up to ten percent (10%) of the maximum payments to the Contractor allowed under the contract, regardless whether actually paid.
         (.2)   The Contractor shall, during the term of such contract and for one year thereafter, disclose any contribution of money or in-kind assistance the Contractor or any Consultant has made during such time period to a candidate for nomination or election to any elective City office or to any political committee or party in the City of Philadelphia, or to any group, committee or association organized in support of any such candidate, office holder, political committee or party in the City of Philadelphia, or any contribution covered by subsection (3) or (4) of Section 17-1405 ("Attribution Rules"), and the date and amount of such contribution. Such disclosure shall be made on a form provided by the City Agency awarding the contract, and the form shall be signed and filed with such agency on the schedule set forth in subsection (.5) below. The City Agency receiving the disclosure form shall forward copies to the President and Chief Clerk of Council, and to the Mayor, Finance Director, Procurement Department, and the Department of Records. The attribution rules of Section 17-1405 shall apply to determine what contributions must be disclosed under this provision as contributions of the Contractor or of a Consultant.
         (.3)   The Contractor shall, during the term of such contract and for one year thereafter, disclose the name and title of each City officer or employee who, during such time period, asked the Contractor, any officer, director or management employee of the Contractor, or any Person representing the Contractor, to give money, services, or any other thing of value (other than a Contribution as defined in Section 17-1401) to any Person, and any payment of money, provision of services, or any other thing of value (other than a Contribution as defined in Section 17-1401) given to any Person in response to any such request. The Contractor shall also disclose the date of any such request, the amount requested, and the date and amount of any payment made in response to such request. Such disclosure shall be made on a form provided by the City Agency awarding the contract, and the form shall be signed and filed with such agency on the schedule set forth in subsection (.5) below. The City Agency receiving the disclosure form shall forward copies to the President and Chief Clerk of Council, and to the Mayor, Finance Director, Procurement Department, and the Department of Records.
         (.4)   The Contractor shall, during the term of such contract, disclose the name and title of each City officer or employee who directly or indirectly advised the Contractor, any officer, director or management employee of the Contractor, or any Person representing the Contractor that a particular Person could be used by the Contractor to satisfy any goals established in the contract for the participation of minority, women, disabled or disadvantaged business enterprises. The Contractor shall also disclose the date the advice was provided, and the name of such particular Person. Such disclosure shall be made on a form provided by the City Agency awarding the contract, and the form shall be signed and filed with such agency within on the schedule set forth in subsection (.5) below. The City Agency receiving the disclosure form shall forward copies to the President and Chief Clerk of Council, and to the Mayor, Finance Director, Procurement Department, and the Department of Records.
         (.5)   The disclosure forms required by subsections (.2), (.3) and (.4), above, shall be filed by each of the following dates, provided that no form need be filed if no contributions, requests, payments or advice was made during the relevant filing period: January 15 (for the period November 1 through December 31 of the immediately preceding year), March 15 (for the period January 1 through the last day of February), May 15 (for the period March 1 through April 30), July 15 (for the period May 1 through June 30), September 15 (for the period July 1 through August 31), and November 15 (for the period September 1 through October 31).
      (f)   Every Non-Competitively Bid Contract shall include a representation and covenant by the Contractor that the Contractor's disclosures required by subsection (1)(b) contain no material misstatements or omissions. Material misstatements or omissions in disclosures pursuant to subsection 17-1402(1)(b)(.4) under two or more contracts shall constitute a breach of such representation and covenants. Breach of representation and covenant under this subsection shall render the contract voidable at the City's option, and shall subject the Contractor to liquidated damages to the City in the amount of ten percent (10%) of the total value of the payments to be made to the Contractor under the contract. 141.1
      (g)   Every Non-Competitively Bid Contract shall be approved in writing by the Procurement Commissioner, the Finance Director, and the City Solicitor prior to execution, except that Non-Competitively Bid Contracts entered into by Council shall require only the approval in writing of the Council President prior to execution.
      (h)   No Non-Competitively Bid Contract shall be amended to increase the amount to be paid under the contract by more than twenty percent (20%) or by more than twenty-five thousand dollars ($25,000), whichever is greater, unless such amendment is approved in writing by the Procurement Commissioner, the Finance Director, and the City Solicitor prior to execution, except that such amendments to Non-Competitively Bid Contracts entered into by Council shall require only the approval in writing of the Council President prior to execution. The City Agency seeking to amend the contract shall publish on the City's official website a notice identifying the contract and explaining the need for the amendment. Such notice shall appear on the City's website for at least one week prior to execution of the amendment, and no later than the day the notice first appears on the City's website, the City Agency shall send a copy of the notice to the President and Chief Clerk of Council, and to the Mayor and Department of Records.
      (i)   No later than April 1st of each year, the Finance Director or such other officer as designated by the Mayor shall provide an annual report to the Mayor and the Clerk of Council summarizing the disclosures received under subsection 17-1402(1)(b)(.4) during the previous calendar year. Further, for purposes of improving the City's capacity in terms of businesses and workforce diversity, the Finance Director shall also provide copies of the report to area organizations that specialize in business growth and workforce development, including but not limited to: 141.2
         (.1)   Philadelphia Industrial Development Corporation;
         (.2)   The Enterprise Center;
         (.3)   Urban Affairs Coalition;
         (.4)   The Chamber of Commerce for Greater Philadelphia;
         (.5)   African American Chamber of Commerce for PA, NJ and DE;
         (.6)   Greater Philadelphia Hispanic Chamber of Commerce;
         (.7)   Asian American Chamber of Commerce for Greater Philadelphia;
         (.8)   University City District;
         (.9)   Delaware Valley Regional Planning Commission; and
         (.10)   Urban League of Philadelphia.
   (2)   Failure to Disclose Consultant Contributions.
      (a)   It shall not be a violation of subsection (1)(b)(.1)(.b) if an Applicant fails to disclose a contribution made by a Consultant because the Applicant was unable to obtain such information from the Consultant, provided the Applicant demonstrates that it used reasonable efforts to attempt to obtain such information, including, at a minimum:
         (.1)   Entering into a written agreement with the Consultant for such Consultant's services, before the filing of the application for the contract, and before the Consultant communicated with a City Agency, official or employee on behalf of the Applicant;
         (.2)   Including in such agreement a provision requiring the Consultant to provide the Applicant in a timely manner with all information required to be disclosed under the provisions of this Chapter, and providing, in effect, that the agreement will be terminated by the Applicant if the Consultant fails to provide all required information on a timely basis and that no further payments, including payments owed for services performed prior to the date of termination, will be made to the Consultant by or on behalf of the Applicant as of the date of such termination;
         (.3)   Communicating regularly with the Consultant concerning the Consultant's obligations to provide timely information to permit the Applicant to comply with all provisions of this Chapter; and
         (.4)   Invoking the termination provisions of the written agreement in a full and timely manner.
      (b)   The contract provision required by subsection (1)(e)(.2) shall include provisions excusing the failure to disclose a Consultant's contributions during the term of the contract under the same terms and conditions set forth in subsection (2)(a).
   (3)   Nothing in this Chapter shall be construed to require the award of a Non-Competitively Bid Contract to the lowest responsible bidder, nor shall this Chapter be construed in any other way to limit the discretion of a City Agency in awarding or not awarding a Non-Competitively Bid Contract if the procedures required by this Chapter have been followed.

 

Notes

137
   Amended, Bill No. 190787 (approved December 30, 2019).
138
   Amended, Bill No. 190787 (approved December 30, 2019).
139
   Amended, Bill No. 190786-AA (approved December 18, 2019), effective January 1, 2020.
139.1
   Added, Bill No. 200590-A (approved January 27, 2021), effective July 1, 2021.
140
   Amended, Bill No. 160678 (approved December 20, 2016).
141
   Amended, Bill No. 190786-AA (approved December 18, 2019), effective January 1, 2020.
141.1
   Amended, Bill No. 200590-A (approved January 27, 2021), effective July 1, 2021.
141.2
   Added, Bill No. 200590-A (approved January 27, 2021), effective July 1, 2021.