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(1) If any prospective bidder makes a false or deceptive statement in any such certified statement or makes any material omission therein, he shall be liable to the City in the amount of the certified check filed as security for his bid, as liquidated damages.
(2) Unless an advertisement or other written invitation to bid competitively for a City contract expressly provides for a different period, any person may withdraw any bid filed and any security therefor and may refuse to enter into any contract with the City if his bid has not been accepted within 60 days of the opening for bids. 7
(3) Any bidder, not lawfully released from his bid, who refuses to execute a contract in accordance with his bid which the Procurement Department has accepted, or refuses to furnish required bonds, shall be liable to the City in the amount of the certified check filed as security for his bid, as liquidated damages; or shall be comparably liable on any annual bid bond which the Procurement Department has accepted pursuant to subsection 8-200(2)(a) of the Charter; or where the damages are readily ascertainable, such bidder shall be liable for the actual loss or damage sustained by the City by the failure of such bidder to perform the contract. 8
(4) The cost to successful bidders for the preparation of the contract documents shall be in accordance with such schedule of fees as the Law Department may establish to cover the costs of such preparation. 9
(5) (a) As to each bid which is advertised by the Procurement Department and publicly opened, each person submitting a bid shall pay a processing fee, as follows:
(.1) During the City's Fiscal Year 1993, the following fee depending on the amount of the bid:
Amount of the Bid | Processing Fee |
Amount of the Bid | Processing Fee |
$10,001 - 100,000 | $10 |
$100,001 - 300,000 | $30 |
$300,001 - 500,000 | $50 |
$500,001 - 1,000,000 | $100 |
$1,000,001 - 2,000,000 | $200 |
$2,000,001 - 3,000,000 | $300 |
$3,000,001 - 4,000,000 | $400 |
$4,000,001 - 5,000,000 | $500 |
Over $5,000,000 | $600 |
(.2) During the City's Fiscal Year 1994 and thereafter, the fee shall be in an amount set by the Procurement Department by regulation. In promulgating such regulations, the Procurement Department shall determine the fees that are required to reimburse the City for the costs it incurs in processing bids to which this subsection 17-102(5) applies. Until the Procurement Department promulgates such regulations, the fees set forth in subsection 17-102(5)(a)(.1) shall continue in effect.
(b) The Procurement Department shall not accept any bid from any person who has: (i) failed to pay any processing fee imposed by this Section as to any previously submitted bid; and (ii) failed to comply with a written request for such payment within the time period specified in the notification sent by the Procurement Department pursuant to subsection 17-102(5)(c). In addition, in every contract awarded based on a bid to which this subsection 17-102(5) applies, a provision shall be included that obligates the bidder to pay any unpaid processing fees imposed by this Section before any payments are made to the bidder under the contract.
(c) The Procurement Department shall notify any bidder who has failed to pay any processing fee imposed by this Section of such fact. Such notification shall inform the bidder of the consequences of the failure to pay such fee as set forth in subsection 17-102(5)(b), and shall request payment within a specified time period.
(d) In addition to the remedies set forth in subsection 17-102(5)(b), any unpaid processing fees imposed by this Section shall be considered a debt due and owing the City and shall be collected in the manner provided by law.
Notes
| 6 | Amended by adding subsection (5), 1992 Ordinances, p. 594. |
| 7 | Source: 1918 Ordinances, p. 183. |
| 8 | Source: 1940 Ordinances, p. 331. |
| 9 | Source: 1931 Ordinances, p. 402. |
(1) The Procurement Department, with the consent of the Law Department, may permit the reduction of a contractor's bond or the substitution of a new bond in smaller amount whenever a contractor has satisfactorily performed his basic obligation to perform duties of maintenance or repair as to work done or goods supplied. 10
(2) Labor and Materials Bonds. The Procurement Department shall, in accordance with the Acts of June 22, 1931, P.L. 880 and P.L. 881, 53 P.S. §§ 523 et seq., require labor and materials bonds before work is commenced under any contract for the construction, erection, installation, completion, alteration, repair, or addition to, any public work or improvement of any kind where the amount of the contract is in excess of one thousand dollars ($1,000). 11
Notes
| 10 | Source: 1885 Ordinances, p. 331. |
| 11 | Source: 1932 Ordinances, p. 109; see also 53 P.S. §§ 1292 - 1297 and City Solicitor's Formal Opinion No. 112 (1954). |
(1) Definitions. For the purpose of this subsection, the following definitions shall apply:
(a) Business Entity. Any individual, domestic corporation, foreign corporation, association, syndicate, joint stock company, partnership, joint venture, or unincorporated association, including any parent company, subsidiary, exclusive distributor or company affiliated therewith, engaged in a business or commercial enterprise.
(b) City. The City of Philadelphia.
(c) City Agency. The City of Philadelphia, its departments, boards and commissions.
(d) City-related Agency. All authorities and quasi-public corporations which either:
(.1) receive appropriations from the City; or
(.2) have entered into continuing contractual or cooperative relationships with the City; or
(.3) operate under legal authority granted to them by City ordinance.
(e) Department. The Procurement Department.
(f) Doing Business in Iran. A business entity does business in Iran when it has, with actual knowledge, made an investment of twenty million dollars ($20,000,000) or more, or any combination of investments of at least ten million dollars ($10,000,000) each, which in the aggregate equals or exceeds twenty million dollars ($20,000,000) in any 12-month period, and which directly or significantly contributes to the enhancement of Iran's ability to develop the petroleum or natural gas resources of Iran.
(g) Doing Business in Sudan. A business entity does business in Sudan by maintaining or leasing equipment, facilities, personnel, or other apparatus of business or commerce in oil-related activities, mineral extraction activities, power production activities, or production of military equipment of Sudan, unless the business can demonstrate that it meets one of the exceptions set forth in Section 3(d) of the Sudan Accountability and Divestment Act of 2007, P.L. 110-174, 121 Stat. 2516 (2007).
(h) Exclusion From Disqualification. A situation in which (i) the business entity has been affirmatively excluded from the United States Government's sanctions regime relating to Sudan or Iran, as applicable; or (ii) the business entity is terminating business in Iran or Sudan, as applicable.
(i) Federal Override with Respect to Iran. A circumstance in which the Congress or President of the United States has affirmatively and unambiguously declared, by means including, but not limited to, legislation, executive order, or written certification from the President to Congress, that (.1) the Government of Iran is no longer seeking a nuclear weapons capability and no longer supports international terrorism; or (.2) local government laws or policies regarding economic disengagement from Iran interfere with the conduct of United States foreign policy.
(j) Federal Override with Respect to Sudan. A circumstance in which:
(.1) the Congress or President of the United States affirmatively declares that the government of Sudan has:
(.a) honored its commitments to abide by United Nations Security Council Resolution 1769 (2007);
(.b) ceased attacks on civilians;
(.c) demobilized and demilitarized the Janjaweed and associated militias;
(.d) granted free and unfettered access for delivery of humanitarian assistance; and
(.e) allowed for the safe and voluntary return of refugees and internally displaced persons;
(.2) the President of the United States rescinds or repeals Executive Order 13067, and does not replace the Order with a substantially similar Order; or
(.3) the Congress or President of the United States affirmatively and unambiguously declares, by means including, but not limited to, legislation, executive order, or written certification from the President to Congress, that local government laws or policies regarding economic disengagement from Sudan interferes with the conduct of United States foreign policy.
(k) Government of Iran. The Government of The Islamic Republic of Iran, its instrumentalities, and companies owned or controlled by the Government of Iran.
(l) Sudan. The government in Khartoum, Sudan that is led by the National Congress Party (formerly known as the National Islamic Front) or any successor government formed on or after October 13, 2006, including the coalition national unity government agreed on in the comprehensive peace agreement for Sudan. The term Sudan does not include the regional government of Southern Sudan.
(m) Terminating Business in Iran or Sudan. Has produced a plan to end doing business in Iran or Sudan, as applicable, within one year and has been implementing its plan in good faith in order to disinvest or cease business operations over the twelve month period following adoption of the plan.
(2) Slavery Era Business/Corporate Insurance Disclosure and Financial Reparations. 13
(a) Business, Corporate and Slavery Era Insurance Ordinance. This subsection shall be known and cited as the "Business, Corporate and Slavery Era Insurance Ordinance". The purpose of this subsection is to promote full and accurate disclosure to the public about any slavery policies sold by any companies, or profits from slavery by other industries (or their predecessors) who are doing business with any City Agency or City-related Agency.
(b) Each contractor with whom a City Agency enters into a contract, whether subject to competitive bid or not, shall, immediately following execution of the contract, complete an affidavit verifying that the contractor has searched any and all records of the company or any predecessor company regarding records of investments or profits from slavery or slaveholder insurance policies during the slavery era. The names of any slaves or slaveholders described in those records must be disclosed in the affidavit.
(c) The Department shall make the information contained in the affidavit available to the public, including but not limited to making the information accessible on the City's internet accessible world wide web home page and provide an annual report to the City Council.
(d) If a contractor fails to provide the affidavit when required or includes materially false information on such affidavit, the contract shall be voidable.
(e) City Related Agencies. Any contract, lease, grant condition or other agreement entered into by the City with any City-related Agency shall contain a provision requiring the City-related Agency, in the procurement of goods and services purchased pursuant to such contract, lease, grant condition or other agreement with the City, to abide by the provisions of subsection 17-104(2).
(.1) by January 1 of each year, provide the City with an annual certification that it is in compliance with the requirements of this Section; and
(.2) if it has disclosed, pursuant to this subsection, slavery policies it, or its predecessor, has sold or profits from slavery it, or its predecessor, has received, provide the City with a statement of financial reparations. The reparations statement shall include a description of any new financial products or programs developed by the depository to address racial disparity in its lending and investment activities.
(3) Contractor Obligation to Disclose the Number of Women and Minorities Serving as Board Members and Executive Staff. 15
(a) Contracts above the formal bidding threshold awarded by the City shall require that all prospective City contractors to disclose, prior to execution of the contract:
(.1) the current percentage of female and minority executive officers in the company and the current percentage of females and minorities on the company's executive and full boards;
(.2) the company's aspirational goals for the inclusion of females and minorities in executive positions and on the executive and full boards; and
(.3) the intended efforts by the contractor to achieve the aspirational goals.
(b) For purposes of this subsection (3), the term "minority" shall include members of those groups identified in Section 17-1608 of the Code ("Annual Disparity Assessment of Workforce Diversity") whose employment establishes workforce diversity.
(a) Entities Doing Business in Northern Ireland. In the procurement of goods and services, no City Agency may accept any bid from, nor enter into an original or renewal contract with, nor purchase any product manufactured by any Business Entity having any investments, licenses, franchises, management agreements or operations of any kind in Northern Ireland, if such Business Entity has not implemented the fair employment principles embodied in the MacBride Principles.
(b) Entities Doing Business in Iran or Sudan. 17 In the procurement of goods and services, no City Agency may accept any bid from, nor enter into an original or renewal contract with, nor purchase any product manufactured by any Business Entity doing business in Iran or Sudan, unless a federal override with respect to Iran or Sudan, as applicable, is in place or unless an exclusion from disqualification applies. In the case of disqualification of a business entity from a City contract based on doing business in Sudan, the procedural requirements of Section 3(e) of the Sudan Accountability and Divestment Act of 2007, P.L. 110-174, 121 Stat. 2516 (2007), shall apply in addition to procedural requirements otherwise provided for in this Section.
(c) Contract Requirements. 18
(.1) Each City bid and contract must contain a clause stating that the Business Entity does not retain any investments, licenses, franchises, management agreements, or operations in Northern Ireland nor that any products being delivered pursuant to the contract originate in Northern Ireland, unless the Business Entity has implemented the fair employment principles embodied in the MacBride Principles.
(.2) Each City bid and contract must contain a clause stating that the Business Entity does not do business in Iran or Sudan, and that no products being delivered pursuant to the contract were manufactured by an entity doing business in Iran or Sudan, unless a federal override with respect to Iran or Sudan, as applicable, is in place or unless an exclusion from disqualification applies. 19
(.a) A prospective bidder shall be liable to the City in the amount of the bid surety provided by the bidder, as liquidated damages;
(.b) A contractor shall be deemed to be in breach of its contract, for which the remedy shall be the cancellation or termination of the contract and the withholding of voucher payments due and owing under the contract; and
(.c) Business Entities that falsely execute a bid or contract shall be ineligible to bid on City contracts or subcontracts for a period of up to five (5) years.
(d) Notice. All invitations to bid, bid specifications, and contracts shall contain an appropriate notice and description of the duties, obligations, responsibilities, requirements, penalties, and sanctions imposed by this subsection. 21
(e) Waivers. 22
(.a) The contract is for the purchase of goods and services from a sole source where there are no other sources available following extensive search certified to by the Procurement Commissioner;
(.b) The purchase or contract during any fiscal year is less than or equal to the City's formal contract amount;
(.c) The contract involves amendments to, or modifications of, contracts in existence on March 17, 1995 (with respect to the restrictions of subsection (a)) or January 1, 2010 (with respect to the restrictions of subsection (b)), and said amendments or modifications do not significantly alter the scope or extend the duration of the contract; 24
(.d) The contract is for the purchase of goods and services which are needed for the continued operation of equipment, mechanical or other systems that were purchased by the City prior to March 17, 1995 (with respect to the restrictions of subsection (a)) or January 1, 2010 (with respect to the restrictions of subsection (b)), and cannot be procured from any other source and is so certified by the Procurement Commissioner; 25
(.e) The contract is for the purchase of goods and services which are necessary and essential to the protection of the public health and safety and cannot be procured from any other source and is so certified by the Procurement Commissioner;
(.f) The contract is for the acquisition of news publication services, or for the acquisition of books, magazines or other publications;
(.g) The contract is for the acquisition of long distance telephone, telegraph or mail services;
(.2) All waiver decisions including supporting documentation, shall be matters of public record. Copies of certifications by the Procurement Commissioner shall be forwarded to the President of City Council no later than one (1) week following award.
(f) Contracts with a federal or state chartered bank or holding or trust company or federal or state savings or building and loan association, thrift institution or any other institution permitted by state or federal law to receive deposits of money and to pay out such money through loans, draft accounts or the sale of financial institution securities shall not be subject to this subsection 17-104(4)(a) or (b), but shall be subject to Section 19-201 of The Philadelphia Code. 28
(g) Grievances. Any Business Entity aggrieved by the decision of the Department that the City may not contract with the Business Entity pursuant to subsection 17-104(4)(a) or (b), or that action shall be taken pursuant to subsection 17-104(4)(a) or (b), may request a hearing before the Department. Such request shall be in writing and shall be filed within twenty-four (24) hours after receipt of written notification by the Department of its decision. 29
(.2) Pre-qualification procedures for Business Entities that bid on contracts on a regular basis;
(.3) Procedures for investigating Business Entities bidding on, or awarded, contracts in order to ascertain the origins of their goods and products and determine whether the City may contract with said Business Entities pursuant to subsection 17-104(4)(a) or (b), including the gathering and interpretation of information received from public and private sources. 32
(i) Professional Service Contracts. The provisions of subsection 17-104(4) apply to contracts for the rendering of professional services. However, the enforcement of the provisions of this subsection 17-104(4) with respect to such contracts shall be the duty of the Director of Finance, and any powers and duties of the Procurement Department under this subsection 17-104(4) shall also constitute the powers and duties of the Director of Finance with respect to professional service contracts. 33
(j) City Related Agencies. Any contract, lease, grant condition or other agreement entered into by the City with any City-related Agency shall contain a provision requiring the City-related Agency, in the procurement of goods and services purchased pursuant to such contract, lease, grant condition or other agreement with the City, to abide by the provisions of subsection 17-104(4). Such provision shall require City approval for any waivers from compliance with the provisions of subsection 17-104(4)(a) or (b). 34
(k) Penalties. A vendor's failure to comply with any of the requirements of this subsection, or of any contract clause mandated by this subsection, shall be deemed a material breach by such vendor of its contract and the following sanctions and penalties shall be applied: 35
(.1) The cancellation or termination of the contract or subcontract and the withholding of voucher payments due and owing under the contract or subcontract; and
(.2) For a first offense, the imposition of a fine or penalty of not less than fifty dollars ($50) nor more than one hundred dollars ($100) per day for each day the violation persists; or
(.3) For a second offense, the imposition of a fine or penalty of not less than one hundred dollars ($100) nor more than two hundred dollars ($200) per day for each day the violation persists; or
(.4) For a third offense, the imposition of a fine of not less than three hundred dollars ($300) per day for each day the violation persists and denial of eligibility to bid on City Agency contracts for a period of not less than three (3) nor more than five (5) years. 36
(l) Enforcement. For the purpose of enforcement of the provisions of this ordinance, the Department shall subscribe to information reporting services on the Investor Responsibility Research Center (Washington, D.C.). Such reporting services shall be used by the Department to periodically review the degree of compliance by City contractors with the provisions of this ordinance. This report shall be made available to the public free of charge by request of the Procurement Department. 37
(m) Repeat Offenders. A vendor who, on more than two (2) occasions, fails to comply with any of the requirements of this subsection, or of any contract clause mandated by this subsection, shall be guilty of a separate offense of Repeat Violation, and for such Repeat Violation, shall be subject to a fine of not more than three hundred dollars ($300), or both. A person shall be guilty of a Repeat Violation regardless whether the third or subsequent violation occurs before or after a judicial finding of a previous violation, but only if the third or subsequent violation was intentional. Each violation, after the second, shall constitute a separate Repeat Violation offense. 38
Notes
| 12 | This Section, with former subsection (1), was originally enacted with the Code in 1956. Former subsection (2) was added in 1989 (1989 Ordinances, p. 1160) and amended in 1991 (1991 Ordinances, p. 988). In 1994 two Ordinances were approved: 1994 Ordinances, p. 904 deleted subsection (2); 1994 Ordinances, p. 914 repealed Section 17-104 altogether. In 1995, Bill No. 890 (approved March 29, 1995), 1995 Ordinances, p. 161, added a new subsection (2), assuming the existence of the Section itself. Bill No. 040133-A (approved March 31, 2005), effective June 29, 2005, renumbered subsection (2) as subsection (1), added a new subsection (2), and renumbered much of former subsection (2) as subsection (3). Caption amended, Bill No. 050615 (approved December 15, 2005); subsections (1)(f) through (1)(m) added by Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 13 | |
| 14 | Subsection (2)(f) added, Bill No. 050615 (approved December 15, 2005). |
| 15 | |
| 16 | |
| 17 | Added, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 18 | Renumbered, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 19 | Added, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 20 | Renumbered and amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 21 | Renumbered, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 22 | Renumbered, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 23 | Amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 24 | Amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 25 | Amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 26 | Amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 27 | Added, Bill No. 960405 (approved February 7, 1997); amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 28 | Renumbered and amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 29 | Renumbered and amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 30 | Renumbered and amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 31 | Amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 32 | Amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 33 | Renumbered and amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 34 | Renumbered and amended, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 35 | Renumbered, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 36 | Amended, 1995 Ordinances, p. 1081. |
| 37 | Renumbered, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
| 38 | Added, 1995 Ordinances, p. 1081; renumbered, Bill No. 080746 (approved December 16, 2009), effective June 16, 2010. |
§ 17-104.1. Contractor Obligation to Disclose Workforce Composition and City Contracting History. 39
(1) Definitions. For the purpose of this subsection, the following definitions shall apply:
(a) Demographic Data means statistical information on a group of individuals, aggregated by specific characteristics, including but not limited to race, ethnicity, gender identity, salary range, Philadelphia residence, and such other categories as may be established by regulation.
(b) Gender Identity means an individual's gender as reported to the employer.
(c) Report Date means June 30th immediately preceding the date the bid is filed.
(d) Workforce means all individuals performing work for compensation on a regular basis.
(2) No contract for goods that is subject to the competitive bidding requirements of subsection 8-200(2) of the Home Rule Charter and valued above the formal bidding threshold shall be entered with a contractor who does not agree to disclose the following and such other related disclosures as may be required by the Procurement Department by regulation:
(a) The contractor's prior years of experience performing on City contracts in any capacity during the five calendar years prior to the date of the opening of bids for such contract;
(b) Demographic Data on the Workforce of the contractor as of the Report Date; and
(c) Demographic Data on all individuals serving as board members of the contractor as of the Report Date.
(3) No services contract that is subject to the competitive bidding requirements of subsection 8-200(2) of the Home Rule Charter and valued above the formal bidding threshold shall be entered with a contractor who does not agree to disclose the following and such other related disclosures as may be required by the Procurement Department by regulation:
(a) The contractor's prior years of experience performing on City contracts in any capacity during the five calendar years prior to the date of the opening of bids for such contract;
(b) Demographic Data on the Workforce of the contractor as of the Report Date;
(c) Demographic Data on all individuals serving as board members of the contractor as of the Report Date.
(4) The disclosures required by this subsection shall be provided at such times as determined by regulation.
(5) Violation of any requirement of this section or of the provisions of a City contract required thereby shall be considered a substantial breach of the contractor's obligation under the contract.
(6) No later than October 1st of each year, the Director of Procurement, Director of Labor, 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 pursuant to this section during the previous fiscal year. A copy of the report shall be posted on the City's official website. Further, for purposes of improving the City's capacity in terms of businesses and workforce diversity, the Director of Labor shall also provide copies of the report to area organizations that specialize in business growth and workforce development, including but not limited to:
(a) Philadelphia Industrial Development Corporation;
(b) The Enterprise Center;
(c) Urban Affairs Coalition;
(d) The Chamber of Commerce for Greater Philadelphia;
(e) African American Chamber of Commerce for PA, NJ and DE;
(f) Greater Philadelphia Hispanic Chamber of Commerce;
(g) Asian American Chamber of Commerce for Greater Philadelphia;
(h) University City District;
(i) Delaware Valley Regional Planning Commission; and
(j) Urban League of Philadelphia.
Notes
| 39 |
(1) No requisition for any payment under any contract shall be issued by the agency supervising performance of the contract unless the agency has assured itself that all the terms and conditions have been performed.
Notes
| 40 |
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