Instructions to Bidders 2023 DMVA.doc

TABLE OF CONTENTS

Sections

Page No.

1. BID SUBMISSIONS

2. WORK TO BE PERFORMED

3. FAMILIARITY WITH PROPOSED WORK

4. INTERPRETATION OF CONTRACT DOCUMENTS

5. SUBMISSION/SIGNING OF BIDS

6. AWARD TO A DOMESTIC AND FOREIGN BUSINESS

7. WITHDRAWAL OR MODIFICATION OF A SUBMITTED BID PRIOR TO

BID OPENING

8. BID OPENING PROCEDURE

9. REJECTION OF BID

10. WITHDRAWAL OF BIDS AFTER BID OPENING

11. EXPERIENCE QUESTIONNAIRE & FINANCIAL STATEMENT

PROVIDED ON REQUEST

12. REFUSAL TO SUBMIT REQUESTED INFORMATION

13. COLLUSIVE BIDS WILL BE REJECTED

14. BID PROTEST PROCEDURE

15. BIDDER CERTIFIED NOT UNDER DEBARMENT

16. SUBCONTRACT WITH DEBARRED OR SUSPENDED FIRM

17. REIMBURSEMENT OF COSTS OF INSPECTOR GENERAL

INVESTIGATION

18. CURRENT LIST OF SUSPENDED AND DEBARRED CONTRACTORS

19. ASSIGNMENT OF ANTITRUST CLAIMS

Sections

Page No.

20. NONDISCRIMINATION//SEXUAL HARASSMENT

21. CONTRACTOR INTEGRITY PROVISIONS

22. CONTRACTOR RESPONSIBILITY PROVISIONS

23. AMERICANS WITH DISABILITIES ACT

5-6

24. ENHANCED MINIMUM WAGE PROVISION

25. OFFSET PROVISION

26. PROJECT WAGES

27. STEEL PRODUCTS PROCUREMENT ACT

28. PRODUCT DISCRIMINATION

29. SMALL DIVERSE BUSINESS PARTICIPATION

7-10

30. PRE-AWARD OF CONTRACT

31. AWARD OF CONTRACT

32. EXECUTION OF CONTRACT, SMALL DIVERSE BUSINESS PARTICIPATION,

BOND, AND RETURN OF INSURANCE CERTIFICATES

33. FAILURE TO EXECUTE CONTRACT

34. PROOF OF SURETY’S RESPONSIBILITY ON CONTRACT BOND

35. REINSURANCE

36. VETERAN’S PREFERENCE

37. SMALL BUSINESS SUPPLIER PREFERENCE

38. ENVIRONMENTAL STATEMENT

39. APPLICABLE LAWS

13-19 Appendix A

NONDISCRIMINATION/SEXUAL HARASSMENT CLAUSE

Appendix B

CONTRACTOR INTEGRITY PROVISIONS

23-25 Appendix C

CONTRACTOR RESPONSIBILITY PROVISION

Appendix D

AMERICANS WITH DISABILITIES ACT

Appendix E

ENHANCED MINIMUN WAGE PROVISION

Appendix F

RIGHT TO KNOW LAW

29-30

FAILURE TO COMPLY WITH THESE INSTRUCTIONS MAY RESULT IN THE

REJECTION OF THE BID AS NOT RESPONSIVE.

SECTION 1. BID SUBMISSIONS. To improve productivity and efficiency, and to streamline the process of construction management bidders are required to access the advertisement located in PA e-marketplace at www.emarketplace.state.pa.us.

SECTION 2. WORK TO BE PERFORMED. The work to be performed is described in the Contract Documents.

SECTION 3. FAMILIARITY WITH PROPOSED WORK. The Bidder is responsible for examining the nature and location of the work, the conformation of the ground, the soil and rock conditions, and the character, quality, and quantity of the materials that will be required. The Bidder shall also examine the proposed Contract Documents, including the plans, specifications, the General Conditions, Special Conditions (if applicable), Administrative Procedures, and all other documents and data pertaining to the Project. After the award of the contract, the Contractor may not submit any claim alleging insufficient data, incorrectly assumed conditions, or misunderstanding with regard to matters for which no such clarification was sought during the bidding phase of the Project, as described further in the General Conditions of the Construction contract. The Bidder is responsible for ensuring that the price submitted with their bid includes all requirements outlined in all of the bid documents, including bid requirements, specifications, drawings, General Conditions, Special Conditions, Instructions to Bidders, and Administrative Procedures.

SECTION 4. INTERPRETATION OF CONTRACT DOCUMENTS.

A. Questions during the bid stage shall be submitted electronically to the Contracting Officer. All questions related to the proposed work or proposed Contract Documents must be submitted no later than close of business ten (10) days prior to the Bid Opening Date. Only questions received no later than ten (10) days prior to the date fixed for the opening of bids will be considered by the Department. If a question is submitted within 10 days of the Bid Opening Date, the Department may, in its sole discretion, answer the question.

B. NEITHER THE DEPARTMENT, THE PROFESSIONAL, NOR ANY REPRESENTATIVE OF THE CLIENT AGENCY SHOULD BE ASKED TO PROVIDE ANY ORAL OR WRITTEN INTERPRETATION TO ANY BIDDER REGARDING INTERPRETATION OF THE CONTRACT DOCUMENTS. ANY CONVERSATION OR WRITING BETWEEN A BIDDER AND EITHER THE DEPARTMENT, THE PROFESSIONAL, OR THE REPRESENTATIVE OF THE CLIENT AGENCY FOR WHOM THE PROJECT IS BEING CONSTRUCTED, SHOULD NOT BE RELIED UPON BY ANY BIDDER, IS NOT BINDING UPON THE DEPARTMENT, AND SHALL NOT BECOME PART OF THE CONTRACT DOCUMENTS UNLESS THE INFORMATION SUBSEQUENTLY APPEARS IN AN ADDENDUM or FLYER ISSUED BY THE DEPARTMENT.

C. The Department’s response to any Question will be in the form of an Addendum and posted in eMarketplace. All Bidders that have created a user profile will be notified as addenda are issued. All Bidders are responsible for monitoring eMarketplace for addenda that are issued. If an addenda is issued prior to the bid opening, but after the Bidder submitted its bid, the Bidder will need to resubmit its bid prior to the bid opening date and time. All addenda become a part of the Contract Documents and all Bidders on any portion of the contract for the Project are bound by all addenda issued on the Project. The Bidder will be required to acknowledge all addenda prior to submitting a bid.

SECTION 5. SUBMISSION/SIGNING OF BIDS. All bids shall be submitted prior to the date and time scheduled for the bid opening. Only timely submissions will be accepted by the Department. E-mail, fax or any other type of delivery of bid submissions will not be accepted by the Department and will be returned to sender.

A. Base Bids. All base bids will be considered separate and distinct bids. If a base bid is left blank or a zero (0) is present, the Department will interpret this to mean that the Bidder did not submit a bid on that base bid, but this will not invalidate any remaining base bids.

i. Do NOT only submit the additive amount for a Base Bid. The Base Bid price submitted shall include the price to perform all work associated with that Base Bid. If only the additive price is submitted on a Base Bid, that Base Bid will be rejected as non-responsive.

B. Small Diverse Business and Veteran Business Enterprise Submittals. The Small Diverse Business Participation Packet and the Veteran Business Enterprise Participation Packet are included in e-Marketplace in the Bid Documents. When an SDB Participation Goal and a VBE Participation Goal are provided for specific Base Bids, failure to submit with each of those Base Bids an SDB Participation Submittal and a VBE Participation Submittal will result in rejection of that particular Base Bid as non- responsive. Also, failure to submit an SDB Participation Submittal and a VBE Participation Submittal with each Base Bid consistent with the instructions contained within those Packets may result in rejection of your Base Bid(s) as non-responsive.

SECTION 6. AWARD TO A DOMESTIC AND FOREIGN BUSINESS.

A. No contract will be awarded to a domestic business unless the Bidder has complied with, or agreed to comply with, the registration requirements under the Business Corporation Law of 1988 (15 Pa. C.S. §1101-§4131) and/or the Pennsylvania Uniform Partnership Act of 2016 (15 Pa. C.S. §8411-§8486), and/or the Pennsylvania Uniform Limited Partnership Act of 2016 (15 Pa. C.S. §8611-§8695), and/or the Pennsylvania Uniform Limited Liability Company Act of 2016 (15 Pa. C.S. §8811-§8898),and/or the Fictitious Names Act (54 Pa. C.S. §301-§332).

B. No contract will be awarded to a Bidder which is a foreign business unless the Bidder has complied with or agreed to comply with Chapter 4 (relating to Foreign Associations) of Title 15 Corporations and Unincorporated Associations (15 Pa. C.S. §402-§419).

SECTION 7. WITHDRAWAL OR MODIFICATION OF A SUBMITTED BID PRIOR TO BID OPENING.

A. Complete Withdrawal Before Bid Opening Date and Time. For a bid to be withdrawn before the date and time of bid opening, the Bidder must submit this request electronically in writing to the Contracting Officer.

B. Modification of a Bid Before Bid Opening Date and Time. If, before the date and time of bid opening, a Bidder wishes to modify its bid already submitted, the Bidder must re-submit a bid with the modified amounts, indicate it replaces the original bid and clearly identify the updated bid. If the modified bid is not submitted, the previous bids are still effective.

SECTION 8. BID OPENING PROCEDURE. Bids will be opened by two (2) representatives of the Department at the date and time designated in the Notice, or as close after this time as reasonably possible. The Department will not, under any circumstances, open a bid before the Bid Opening Date and time. The Bid Opening is open to the public. The amount of each bid, together with the name of each Bidder will be recorded under a Bid Tabulation sheet. The Bid Tabulation shall be considered unofficial and shall be open to public inspection. The Bid Tabulation, listing the Bidders and their bid amount, will be available and posted to the Department’s publicly accessible website within two (2) calendar days of the Bid Opening.

SECTION 9. REJECTION OF BID. The Department reserves the right to reject any or all bids or parts thereof. A bid may be rejected if it shows any omission, alterations of Form, scope of work, additions or deductions not called for, conditional language or uninvited alternate bids, or irregularities of any kind. The Department reserves the right, however, to waive technical defects or irregularities on bids. The Department may reject the bid of any Bidder failing to meet the requirements of these Instructions to Bidders or any other requirements of Bidders set forth in the Contract Documents. The reasons for rejection will appear next to the Bidder’s name on the Bid Tabulation.

SECTION 10. WITHDRAWAL OF BIDS AFTER BID OPENING. Within three (3) days after the opening of the bids, but before award, a Bidder may request permission to withdraw its entire bid or a particular base bid if it submits a request in writing to the Contracting Officer. With the request for withdrawal, the Bidder must submit evidence that the reason for withdrawal is a clerical mistake, as opposed to a judgment mistake, and was actually due to an unintentional arithmetical error or an unintentional omission of a substantial quantity of work, labor, material, or services made directly in the compilation of its bid. The evidence should be attached to the e-mail at the time the request is submitted.

SECTION 11. EXPERIENCE QUESTIONNAIRE AND FINANCIAL STATEMENT PROVIDED ON REQUEST. At the Department’s request, or if specifically required by the Invitation to Bid, Bidders shall attach an experience questionnaire and financial statement with the Department on the Form provided by the Department in the Supporting Documentation tab in the Invitation to Bid for the Project. The questionnaire and statement shall be certified to be true and correct by an affidavit sworn to or affirmed before a Notary Public, or other officer empowered to administer oaths or affirmations. Falsification of any requested information shall result in a rejection of the bid as not responsible and/or cancellation of the Contract Award.

SECTION 12. REFUSAL TO SUBMIT REQUESTED INFORMATION. If the Bidder fails, refuses, or neglects to submit any requested information within the time stated in any request, the Bidder will fail to qualify as a responsible Bidder and its bid shall be rejected as not responsible and/or its Contract Award will be rescinded. Such event may result in the Bidder being entered into the Contractor Responsibility Program.

SECTION 13. COLLUSIVE BIDS WILL BE REJECTED. The bids of any Bidder or Bidders, who engage in collusive bidding or bid-rigging, as discussed in the Antibid-Rigging Act, will be rejected. 62 Pa. C.S. §§ 4501 – 4509. Any Bidder who commits a prohibited act under the Antibid-Rigging Act will be prosecuted to the fullest extent of the law SECTION 14. BID PROTEST PROCEDURE. The Commonwealth Procurement Code (62 Pa. C.S. §1711.1, as amended) governs the protest procedure, which is summarized below. In the event that this general description conflicts with the statute, the statutory language controls.

A. Who may File. Any Bidder or Prospective Bidder who is aggrieved in connection with the bid or the award of a contract resulting from the bid may file a protest.

1. “Prospective Bidder” is defined as an entity that has not submitted a bid in response to the Notice to Bidders.

2. “Bidder” is defined as an entity that has submitted a bid in response to the Notice to Bidders.

B. Time Limits.

1. If a protest is filed by a Prospective Bidder, a protest must be filed prior to the Bid Opening Date and time established in the Notice to Bidders by either e-mail or regular mail.

i. E-MAIL. Prospective Bidders may submit a Protest via e-mail. The Protest, along with any supporting documentation, must be e-mailed, to the Contracting Officer.

ii. MAIL. Prospective Bidders may file a protest, in writing, with the Contracting Officer trebuck@pa.gov , Department of Military and Veterans Affairs, Building 0-47, Fort Indiantown Gap, Annville, PA 17003.

2. If a protest is filed by a Bidder, the protest must be filed within seven (7) days after the protesting Bidder knew or should have known of the facts giving rise to the protest, except in no event may a protest be filed later than 7 days after the Bid Tabulation is available and posted to the DMVA website. Bidders must file protests by either:

i. E-MAIL. Bidders may complete and submit a Protest Form electronically to the DMVA Contracting Officer at trebuck@pa.gov. The Form, along with any supporting documentation, must be e-mailed, or

ii. MAIL. Protest may be filed, in writing, with the Contracting Officer, Department of Military and Veterans Affairs, Procurement and Contracting Office, Attn: Tina Rebuck, Fort Indiantown Gap, Fisher and Wiley Road, Annville PA 17003-5002

3. “Filed” is defined as the date upon which the Department receives the written protest.

4. If the Bidder fails to file/submit a bid protest or files/submits an untimely protest, then the Bidder shall be deemed to have waived the right to protest the solicitation or award of the contract in any forum. Untimely protests will be disregarded by the Department.

C. The Department may cancel an Invitation for Bids or may reject all bids at any time prior to the time a contract is executed by all parties when it is in the best interests of the Commonwealth. The Bidder may not submit a protest relating to cancellation of the bid or rejection of all bids.

D. A protest shall state all grounds upon which the protestant asserts that the solicitation or award of the contract was improper. The protestant may submit with the protest any documents or information it deems relevant to the protest.

E. The full text of the Bid Protest Procedure can be found at 62 Pa. C.S §1711.1 et seq.

SECTION 15. BIDDER CERTIFIED NOT UNDER DEBARMENT. The Bidder must certify that it is not currently under suspension or debarment by the Commonwealth, any other state, or the federal government; if the Bidder cannot so certify, then the Bidder shall submit, along with the bid, a written explanation of why such certification cannot be made. Written explanations, if provided, should be attached to the Supporting Documents Tab under the Invitation to Bid for the Project.

SECTION 16. SUBCONTRACT WITH DEBARRED OR SUSPENDED FIRM. If the successful Bidder enters into subcontracts, or employs any subcontractors/individuals who are currently suspended or debarred by the Commonwealth or the federal government, or who become suspended or debarred by the Commonwealth or federal government during the term of the contract, or any extensions or renewals thereof, the Commonwealth shall have the right to require the Contractor to terminate such subcontracts or employment.

SECTION 17. REIMBURSEMENT OF COSTS OF INSPECTOR GENERAL INVESTIGATION. The Bidder/Contractor shall reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of State Inspector General for investigations of the Bidder’s/Contractor's compliance with the terms of the contract, or any other agreement between the Bidder’s/Contractor and the Commonwealth, which result in the suspension or debarment of the Bidder’s/Contractor. Such costs shall include, but are not limited to, the salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Bidder’s/Contractor shall not be responsible for investigative costs for investigations which do not result in the Bidder’s/Contractor's suspension or debarment.

SECTION 18. CURRENT LIST OF SUSPENDED AND DEBARRED CONTRACTORS. The Bidder/Contractor may obtain the current list of suspended and debarred Contractors by referring to the Department’s website at www.dgs.state.pa.us SECTION 19. ASSIGNMENT OF ANTITRUST CLAIMS. The successful Bidder/Contractor and the Commonwealth recognize that, in actual economic practice, overcharges by the successful Bidder’s/Contractor's suppliers, resulting from the violations of State or Federal antitrust laws, are, in fact, borne by the Commonwealth. As part of the consideration for the award of the contract, and, intending to be legally bound, the successful Bidder/Contractor assigns to the Commonwealth all right, title and interest in, and to, any claims Contractor now has, or may hereafter acquire, under State or Federal antitrust laws relating to the goods or services, which are the subject of this contract.

SECTION 20. NONDISCRIMINATION/SEXUAL HARASSMENT. The successful Bidder/Contractor shall comply with all applicable provisions of state and federal constitutions, laws, regulations, and judicial orders pertaining to nondiscrimination, sexual harassment, and equal employment opportunity, including the provisions of the Nondiscrimination/Sexual Harassment Clause, which is attached hereto as Appendix A.

SECTION 21. CONTRACTOR INTEGRITY PROVISIONS. The successful Bidder/Contractor shall comply with the Integrity Provisions, which are attached hereto as Appendix B.

SECTION 22. CONTRACTOR RESPONSIBILITY PROVISIONS. All Bidders and the successful Bidder/Contractor shall comply with the Responsibility Provisions, which are attached hereto as Appendix C.

SECTION 23. AMERICANS WITH DISABILITIES ACT. The successful Bidder/Contractor shall comply with The Americans with Disabilities Act Provisions, which are attached hereto as Appendix D.

SECTION 24. ENHANCED MINIMUM WAGE PROVISIONS. The successful Bidder/Contractor shall comply with the Enhanced Minimum Wage Provisions, which are attached hereto as Appendix E.

SECTION 25. OFFSET PROVISION. The successful Bidder/Contractor agrees that the Commonwealth may set off the amount of any state tax liability or other obligation of the successful Bidder to the Commonwealth against any payments due the successful Bidder/Contractor under any contract with the Commonwealth.

SECTION 26. PROJECT WAGES. The successful Bidder/Contractor shall comply with the provisions, duties, obligations, remedies, and penalties of the Pennsylvania Prevailing Wage Act, 43 P.S. §§ 165-1 et seq., which is incorporated herein by reference. To the extent that the Project has federal funds involved, the Davis-Bacon Act may apply. THE DAVIS BACON ACT APPLIES TO THIS PROJECT.

SECTION 27. STEEL PRODUCTS PROCUREMENT ACT. The successful Bidder/Contractor agrees to comply with the provisions of the Steel Products Procurement Act of March 3, 1978, P.L. 6, as amended (73 P.S. §1881 et seq.). Information regarding the Act’s requirements, including a list of exempt products, is available on the Department’s web site at http://www.dgs.pa.gov/Businesses/Design-and-Construction/Steel-Products-Act-Exemptions/Pages/default.aspx.

SECTION 28. PRODUCT DISCRIMINATION. Successful Bidders agree to comply with the following Acts regarding Product Discrimination:

A. Reciprocal Limitation Act.

1. Background Requirements of the Reciprocal Limitations Act. The Act (62 Pa.C.S. (2008 Sup.) § 107) requires the Department:

i. In the award of contracts exceeding $10,000 for the erection, construction, alteration, improvement, or repair of any building or other public work, or the purchase or lease of any goods, supplies, equipment, printing, or materials, to give resident Bidders a preference against a nonresident Bidder from any state that gives or requires a preference to Bidders from that state. The amount of the preference shall be equal to the amount of the preference applied by the state of the nonresident Bidder. A resident Bidder is a person, partnership, or corporation or other business entity authorized to transact business in Pennsylvania and having a bona fide establishment for transacting business within Pennsylvania at which it was transacting business on the date when bids for the public contract were first solicited.

ii. In the erection, construction, alteration, improvement, or repair of any public building or other public work, and in all purchases of goods, supplies, equipment, printing, or materials, not to specify, use or purchase any goods, supplies, equipment, printing, or materials which are produced, manufactured, mined, grown, or performed in any state that prohibits the specification for, use, or purchase of such items in or on its public building or other works, when such items are not produced, manufactured, mined, grown, or performed in such state.

2. List of Discriminating States.

i. States which apply preference favoring in-state Bidders and the amount of such preference (that may affect this contract), as found by the Department.

STATE

PREFERENCE

Arizona

5% (construction materials from Arizona resident dealers only)

Montana

3%

West Virginia

2.5% for construction, repair or improvements of any buildings

Wyoming

5%

ii. States which prohibit the use of out-of-state goods, supplies, equipment, materials, or printing and the prohibition (that may effect this contract), as found by the Department.

STATE

PREFERENCE

Georgia

Forest products only

Indiana

Coal

New Jersey For Bidders for the following items: major household appliances, chain link fence, portable sanitation units, glass, glazier supplies, storage batteries, carpet and cushion, shades, room air conditioning, electrical supplies, plumbing supplies, hardware supplies, fasteners, lumber, building supplies, audio-visual/video equipment, fire extinguishers, fire hose, motor oils, fuel oil, photographic supplies, Venetian blinds, drapes, paper towel dispensers, water hose

New Mexico

Construction

3. Calculations of Preference.

i. In calculating the preference, the amount of a bid submitted by a Pennsylvania Bidder shall be reduced by the percentage preference which would be given to a nonresident Bidder by its state of residence. Similarly, the amount of a bid offering Pennsylvania goods, supplies, equipment, materials, and printing shall be reduced by the percentage preference which would be given to another Bidder by the state where the goods, supplies, equipment, materials, or printing are produced, manufactured, mined, grown, or performed.

B. Trade Practices Act.

In accordance with the Trade Practices Act (71 P.S. §773.101 et seq.) the successful Bidder/Contractor shall not use, or permit to be used, in the work, any aluminum or steel products made in a foreign country that discriminates against aluminum or steel products manufactured in Pennsylvania. The countries of Brazil, South Korea, Spain, and Argentina have been found to discriminate against certain products manufactured in Pennsylvania. Therefore, the purchase or use of those countries' products, as listed below, is not permitted for a Project. Penalties for violation of this paragraph may be found in the Trade Practices Act. Penalties include becoming ineligible for award of any Public Works contracts for a period of three years.

1. Brazil:

Welded carbon steel pipes and tubes; carbon steel wire rod; tool steel; certain stainless steel products, including hot-rolled stainless steel bar; stainless steel wire rod and cold-formed stainless steel bar; pre-stressed concrete steel wire strand; hot-rolled carbon steel plate in coil; hot-rolled carbon steel sheet and cold-rolled carbon steel sheet.

2. Spain:

Certain stainless steel products, including stainless steel wire rod; hot-rolled stainless steel bars and cold-formed stainless steel bars; pre-stressed concrete steel wire strand; certain steel products, including hot-rolled steel plate, cold-rolled carbon steel plate, carbon steel structural shapes, galvanized carbon steel sheet; hot-rolled carbon steel bars and cold-formed carbon steel bars.

3. South Korea:

Welded carbon steel pipes and tubes; hot-rolled carbon steel plate and hot-rolled carbon steel sheet; and galvanized steel sheet.

4. Argentina:

Carbon steel wire rod and cold-rolled carbon steel sheet.

SECTION 29. SMALL DIVERSE BUSINESS and VETERAN BUSINESS PARTICIPATION INFORMATION

A. SDB and VBE Participation Goals.

1. All Bidders shall refer to the Documents for the Instructions for Completing the Small Diverse Business (SDB) Participation Submittal and SDB Utilization Schedule and the Instructions for Completing the Veteran Business Enterprise (VBE) Participation Submittal and VBE Utilization Schedule for all requirements.

2. The Department has established both SDB and VBE participation goals for utilization of SDB and VBE subcontractors, manufacturers, and suppliers for this Project.

i. The Goals for each Prime Contractor is set forth in the Notice to Bidders in the following Form:

SDB

VBE

.1 General Construction

.2 HVAC

N/A N/A

.3 Plumbing N/A N/A

.4 Electrical N/A N/A

3. The Administrative Procedures, which are included in the Contract Documents, have a chapter titled “Small Diverse Business and Veteran Business Enterprise Participation.”

B. Upon Bid Opening.

The Bidder’s SDB and VBE submittals will be reviewed for responsiveness according to these Instructions to Bidders and the SDB Participation Submittal and the VBE Participation Submittal instructions. When an SDB Participation Goal and a VBE Participation Goal are provided for specific Base Bids, failure to submit with each of those Base Bids an SDB Participation Submittal and a VBE Participation Submittal will result in rejection of that particular Base Bid as non-responsive. Also, failure to submit an SDB Participation Submittal and a VBE Participation Submittal with each Base Bid consistent with the instructions contained within those Packets may result in rejection of your Base Bid(s) as non-responsive.

C. Upon Contract Execution.

1. SDB and VBE Participation Documents. All documents completed and submitted by the selected Bidder in connection with its SDB Participation Submittal (including the SDB Participation Submittal, SDB Utilization Schedule, and any Good Faith Efforts Documentation to Support Waiver Request of SDB Participation Goal) and its VBE Participation Submittal (including the VBE Participation Submittal, VBE Utilization Schedule, and any Good Faith Efforts Documentation to Support Waiver Request of VBE Participation Goal) shall be considered a part of the Contract and are hereby expressly incorporated into the Contract by reference thereto.

2. Bidder/Contractor SDB and VBE Participation Obligations.

i. For purposes of monitoring compliance with the Bidder’s/Contractor’s SDB participation commitments and VBE participation commitments, the contract cost is the Contract Sum. The Bidder’s/Contractor’s SDB and VBE participation percentages will also apply to Change Orders if the work that is the subject of the Change Order is the type of work being performed by an SDB or VBE on the Contract. DMVA reserves the right to require SDB or VBE participation on change orders for additional work not already subject to an SDB or VBE commitment as further described in the solicitation documents.

ii. The Bidder/Contractor cannot alter its overall SDB or VBE commitments or commitments made to individual SDB or VBE subcontractors without written approval from the Bureau of Construction and BDISBO.

iii. Both the overall percentage of SDB and VBE commitments, and individual SDB and VBE commitments must be maintained in the event the contract is assigned to another prime contractor.

3. Subcontract requirements.

i. The Bidder/Contractor and each SDB listed on the SDB Utilization Schedule or VBE listed on the VBE Utilization Schedule must enter into a final, definitive subcontract agreement signed by the selected offeror and the SDB or VBE prior to the commencement of any work by the subcontractor.

ii. All subcontracts must contain:

a. The requirements in Article 7.5 of the General Conditions to the Construction Contract, as applicable;

b. The specific work, supplies or services the SDB or VBE will perform and the location for work performed;

c. The fixed dollar value that each SDB or VBE is to be paid;

d. Payment terms indicating that the SDB or VBE will be paid for work satisfactorily completed within 14 calendar days of the Bidder’s/Contractor’s receipt of payment from the Commonwealth for such work. Subcontractors are encouraged to utilize electronic payment methods;

e. Commercially reasonable terms for the applicable business/industry that are no less favorable than the terms of the Bidder’s/Contractor’s contract with the Commonwealth and that do not place disproportionate risk on the SDB or VBE relative to the nature and level of the SDB’s or VBE’s participation in the contract; and

iii. If the subcontract terms omit any of the information required in subparagraph C.3.ii but that information is otherwise reflected within the Bidder’s/Contractor’s SDB Participation Submittal, VBE Participation Submittal, or associated documents

(SDB Utilization Schedule, VBE Utilization Schedule, and Letters of Commitment), the information listed in the SDB Participation Submittal, VBE Participation Submittal, or associated documents is incorporated into the subcontract agreement.

iv. If the Bidder/Contractor and a SDB listed on the SDB Utilization Schedule or VBE listed on the VBE Utilization Schedule cannot agree upon a definitive subcontract prior to the commencement of any work by the subcontractor, the Contractor must provide written notification to the Bureau of Construction and BDISBO.

4. Utilization Reports.

i. The contractor shall submit a Utilization Report with each Application for Payment. Each Utilization Report must have current data (totals to date) identifying at least each element as follows:

a. Detailed information, including but not limited to, any subcontracts and purchase orders documenting the dollar value commitments, commission, or fees to SDB and VBE firms to be used toward the satisfaction of the Project’s goals. All SDBs and VBEs identified on the Utilization Report shall be retained on the Utilization Report throughout the duration of the Project.

b. Detailed information regarding any work that is claimed to be self-performed by the contractor and therefore, allegedly not eligible for subcontracting to a SDB and VBE.

c. Regarding Construction Subcontracts and Purchase Orders:

1. All Subcontract/Purchase Orders awarded to date are $

2. Commitments to Small Diverse Businesses and Veteran Business Enterprises totals to date:

i. $ (dollars) for SDBs

ii. % (percentage) for SDBs

iii. $ (dollars) for VBEs

iv. % (percentage) for VBEs

3. For each SDB and VBE subcontract and purchase order awarded since the previous Application for Payment, the:

i. Identification and status of the SDB as a minority business enterprise (MBE), woman business enterprise (WBE), LGBT business enterprise (LGBTBE), Disability-owned business enterprise (DOBE), Service- Disabled Veteran-Owned Small Business Enterprise (SDVBE) or the status of the VBE as a Veteran-Owned Small Business Enterprise (VBE) or a Service-Disabled Veteran-Owned Small Business Enterprise (SDVBE) that will be performing the work; and

ii. The type of work, service, or material to be performed/supplied; and

iii. The amount paid to date on each SDB and VBE subcontract/purchase order this month; and

iv. The designation of SDB and VBE stocking suppliers as either an MEP (i.e., mechanical, electrical, and plumbing) stocking supplier or a General Construction stocking supplier; and

v. The fee or commission paid to the nonstocking supplier. No credit will be given if the fee or commission is not listed, and the maximum credit shall not exceed 10 percent of the purchase order cost.

ii. Failure to submit a Utilization Report with each Application for Payment will result in an incomplete Application for Payment and it being returned to the contractor. An incomplete Application for Payment will not be processed.

5. Noncompliance with SDB and/or VBE commitments.

i. Upon BDISBO notifying the Department that a Bidder/Contractor did not comply with the SDB commitments or VBE commitments, the Department shall adhere to the Contract Documents, specifically the Administrative Procedures, for remedies and corrective actions required. The Bidder/Contractor would be required to initiate the corrective actions within 10 business days and complete them within the time specified by the Department.

ii. If the Department determines that material noncompliance with SDB and VBE contract provisions exists and that the Bidder/Contractor refuses or fails to take the corrective action required by the Department, the Department, in consultation with BDISBO, may impose any and all sanctions and remedies available under the contract as it deems appropriate. Such sanctions or remedies include, but are not limited to, termination of the contract along with consequential damages; revocation of the Bidder’s/Contractor’s SB, SDB, and/or VBE status; a determination that the Bidder’s SDB participation submittal or VBE participation submittal be deemed non-responsible in future procurements; and/or any actions under the Commonwealth’s Contractor Responsibility Program, up to and including suspension or debarment from future contracting opportunities with the Commonwealth.

D. Resources.

1. The Department is available for technical assistance to all Bidders submitting bids for this contract. Department certification of an entity as a SDB or VBE means only that the applicant for certification has submitted information that qualifies it as a SDB or VBE in terms of its ownership and control. It does not imply, and no Bidder shall infer, that the Department has in any way investigated or approved the entity’s competence to perform work.

2. Contact the Bureau of Diversity, Inclusion and Small Business Opportunities at (717) 783-3119.

Bureau of Diversity, Inclusion, and Small Business Opportunities 611 North Office Building

Harrisburg, Pennsylvania 17125

SECTION 30. PRE-AWARD OF CONTRACT. Once DMVA determines the apparent lowest responsible bidder, the Bidder must comply with the Public Works Employment Verification Act, 43 P.S. §§ 167.1-167.11, by submitting to the Department a Commonwealth Public Works Verification Form (“Form”) prior to the award of the contract. The Bidder shall within five (5) days after receipt of notice to provide the Form, send the Form to the Contracting Officer. Failure or refusal to provide the Form will be considered a refusal to comply with the bidding requirements, result in rejection of the bid, and the Bidder may be entered into the Contractor Responsibility Program.

The Form and relevant information are located on the DGS web page at www.dgs.state.pa.us.

SECTION 31. AWARD OF CONTRACT. If DMVA awards a contract, it will be made to the lowest responsible Bidder within ninety (90) days from the Bid Opening Date. This 90-day period may be extended by written consent of the lowest responsible Bidder(s). If the lowest Bidder is allowed to withdraw its bid, declines to extend the bid, or refuses the Award of Contract, the Department may award the contract to the next lowest responsible Bidder or reject all bids and re-bid the contract. There will be no contract with the Department until all parties have fully executed the contract.

A. Letter of Intent to Contract – The Department may, in its sole discretion on particular Projects, elect to issue a binding Letter of Intent To Contract. An apparent low bidder who receives a Letter of Intent may rely upon the Letter to start the scope of off-site activities described in the Letter and to incur costs in preparation of the performance of the contract.

SECTION 32. EXECUTION OF CONTRACT, SMALL DIVERSE BUSINESS PARTICIPATION, BOND, AND RETURN OF INSURANCE CERTIFICATES. Within ten (10) days after receipt of the contract, the successful Bidder, must:

A. Select the Small Diverse Business Participation MPL option in Article 9 of the contract; and B. Download, sign and return the contract to the Contracting Officer; and

1. The contract must be signed by a senior corporate officer Chairperson, President, Vice President, Senior Vice President, Executive Vice President, Assistant Vice President, Chief Executive Officer, and Chief Operating Officer. If another person signs the contract, then evidence of that person’s authority to sign the contract on the corporation’s behalf must accompany the contract. This evidence can be in the form of a corporate resolution, an internal corporate delegation document, or a letter from one of the senior officers or the Secretary, authorizing the signatory to sign on behalf of the corporation. The letter must be on a corporate letterhead.

C. Sign and return the Contract Bond, or Bonds in the penal sum equal to the amount of the awarded contract for the faithful performance of the contract, and to cover the prompt payment in full for all materials furnished and labor supplied or performed and equipment actually rented (but not sold.) The Bond, or Bonds, must be executed by a surety company or companies licensed to do business in Pennsylvania; and, D. Sign and return all insurance certificates required by the General Conditions and/or Special Conditions to the contract.

E. Mail the original signed contract, Contract Bond(s), insurance certificates, and any evidence of signature authority to the Department of Military and Veterans Affairs, Contracting Officer for verification by the Department.

F. After all Commonwealth signatures (handwritten or electronic) are obtained, and the contract is fully executed, the Department will forward a notification.

G. Understand and agree that a stamped “APPROVED ELECTRONICALLY” or similar wording by the Commonwealth on the contract signature page constitutes a valid, binding contract with the Commonwealth and represents that all approvals required by Commonwealth contracting procedures have been obtained. The fully executed contract may not contain “ink” signatures by the Commonwealth.

SECTION 33. FAILURE TO EXECUTE CONTRACT. Failure or refusal of the successful Bidder to accept the Award of Contract or properly execute the Contract Documents, including selecting an MPL option in Article 9 and/or to furnish the required Contract Bond, and/or to furnish the required insurance certificates within the 10-day time, will be viewed as a refusal to accept the Award. In the event any of these documents are not provided as required by Section 32 of these Instructions, the successful bidder shall be entered into the Contractor Responsibility Program.

If the successful Bidder fails to execute the Contract Documents and provide the original documents as required, the Department may award the contract to the next lowest responsible Bidder, or reject all bids and re-bid the contract.

SECTION 34. PROOF OF SURETY’S RESPONSIBILITY ON CONTRACT BOND. The surety company, which is designated by the successful Bidder/Contractor for the faithful performance of the contract and prompt payment of materials, equipment, and labor, shall, with its Contract Bond, furnish to the Department a certificate showing that the amount of the Bond is within the limit of net retention, or evidence that appropriate reinsurance or other security has been obtained in conformance with Section 661 of the Pennsylvania Insurance Company Law of 1921 (40 P.S. § 832).

SECTION 35. REINSURANCE. If the surety has entered into an agreement for reinsurance under the foregoing paragraph, the Bond shall be supported by a duplicate original of the reinsurance agreement. The reinsurance agreement must contain a "direct liability to insured" clause, enabling the Department to maintain an action against the company reinsured jointly with the reinsurer, and, upon recovering judgment against such reinsured, to have recovery against such reinsurer, for payment to the extent to which it is liable under such reinsurance and in discharge thereof.

SECTION 36. VETERAN’S PREFERENCE. The Department strongly encourages that, all things being equal, Contractors give preference in employment on Projects of the Department to veterans of the Armed Services of the United States of America.

SECTION 37. SMALL BUSINESS SUPPLIER PREFERENCE. The Department strongly encourages that, all things being equal, Contractors give preference in material/equipment purchases on Projects of the Department to Small Business Suppliers.

SECTION 38. ENVIRONMENTAL STATEMENT. According to the Commonwealth Procurement Code, Act of May 15, 1998, P.L. 358, No. 57, 62 Pa. C.S. §§ 101-4509, all invitations for Bids and Requests for Bids for construction Projects issued by any government agency shall set forth any provision of Federal and State statutes, rules, and regulations dealing with the prevention of environmental pollution and the preservation of public natural resources that affect the Projects.

SECTION 39. Applicable LawS. The Bidder is hereby notified that this Project is subject to those statutes, rules and regulations shown on the following list and the work must be carried out in compliance with these statutes, rules and regulations. This listing does not represent the full listing of laws and regulations the Bidder and Awarded Contractor is required to comply with; the Awarded Contractor shall comply with all applicable local, state, federal laws, regulations and policies to include guidance on COVID-19 safety practices.

STATE LAW

I. Purdon's Statutes - Title 3 (Agriculture) Fertilizer Act, Act of Dec. 13, 2001, 3 Pa. C.S.A. § 6701, et seq.

Soil and Plant Amendment Act, Act of Dec. 13, 2001, 3 Pa. C.S.A. § 6901, et seq.

PA Pesticide Control Act of 1973, Act of March 1, 1974 as amended, 3 P.S. § 111.21, et seq.

Agricultural Liming Materials Act, Act of March 17, 1978, as amended, 3 P.S. § 132-1, et seq.

The PA Plant Pest Act of 1992, Act of December 16, 1992 as amended, 3 P.S. § 258.1, et seq.

Noxious Weed Control Law, Act of April 7, as amended, 3 P.S. § 255.1, et seq.

Conservation District Law, Act of May 15, 1945 as amended, 3 P.S. § 849, et seq.

(Relating to weather modification), Act of January 19, 1968, as amended, 3 P.S. § 1101, et seq.

II. Purdon's Statutes - Title 16 (Counties) (Relating to land use), Act of January 13, 1966 as amended, 16 P.S. § 11941, et seq.

III. Purdon's Statutes - Title 18 (Crimes and Offenses) The Crimes Code, Act of December 6, 1972, as amended, 18 Pa. C.S.A. § 101, et seq.

IV. Purdon's Statutes - Title 24 (Education) Public School Code of 1949, Act of March 10, 1949, as amended, 24 P.S. § 7-731, et seq.

V. Purdon's Statutes - Title 30 (Fish) The Fish and Boat Code, Act of October 16, 1980, as amended, 30 Pa. C.S.A. § 101, et seq.

VI. Purdon's Statutes - Title 32 (Forests, Waters and State Parks) (Relating to water power and water supply permits), Act of June 14, 1923, as amended, 32 P.S. § 591, et seq.

Water Well Drillers License Act, Act of May 29, 1956, as amended, 32 P.S. § 645.1, et sec.

(Relating to Flood Control), Act of August 7, 1936, as amended, 32 P.S. § 653, et seq.

Flood Plain Management Act, Act of October 4, 1978, as amended, 32 P.S. § 679.101, et seq.

Storm Water Management Act, Act of October 4, 1978, as amended, 32 P.S. § 680.1, et seq.

Dam Safety and Encroachments Act, Act of November 26, 1978, as amended, 32 P.S. § 693.1, et seq.

(Relating to Stream Clearance), Act of June 5, 1947, as amended, 32 P.S. § 701, et seq.

(Relating to Potomac River Pollution), Act of May 29, 1945 (P.L. 1134, § 1), as amended, 32 P.S. 741 et seq. Repealed in Part. Section 4 of Act 1981, May 1, P.L. 22 No. 9, repeals this section to “the extent it required one of the members of the Interstate Commission on the Potomic River Basin to be a member of the Pennsylvania Commission on Interstate Cooperation.”

(Relating to Schuylkill River pollution), Act of June 4, 1945, as amend., 32 P.S. § 751.1, et seq.

(Relating to Delaware River pollution) Act of April 19, 1945 as amend.32 P.S. § 815.31, et seq.

Delaware River Basin Compact, Act of July 7, 1961, as amended, 32 P.S. § 815.101, et seq.

Ohio River Valley Water Sanitation Compact, Act of April 2, 1945, as amended, 32 P.S. § 816.1, et seq.

Great Lakes Basin Compact, Act of March 22, 1956, as amended, 32 P.S. § 817.1, et seq.

Brandywine River Valley Compact, Act of September 9, 1959, as amend. 32 P.S. § 818, et seq.

Wheeling Creek Watershed Protection and Flood Prevention District Compact, Act of August 2, 1967, as amended, 32 P.S. § 819.1, et seq.

Susquehanna River Basin Compact, Act of July 17, 1968, as amended, 32 P.S. § 820.1, et seq.

Chesapeake Bay Comm. Agreement, Act of June 25, 1985, as amended, 32 P.S. § 820.11, et seq.

(Relating to Preservation and Acquisition of Land for Open Space Uses), Act of January 19, 1968, as amended, 32 P.S. § 5001, et seq.

Land and Water Conservation and Reclamation Act, Act of January 19, 1968, § 2), as amended, 32 P.S. § 5101, et seq.

Bluff Recession and Setback Act, Act of May 13, 1980, as amended, 32 P.S. § 5201, et seq.

Wild Resource Conservation Act, Act of June 23, 1982, as amended, 32 P.S. § 5301, et seq.

VII. Purdon's Statutes - Title 34 (Game) The Game and Wildlife Code, Act of July 8, 1986, as amended, 34 Pa. C.S.A. § 101, et seq.

VIII. Purdon's Statutes - Title 35 (Health and Safety) (Related to public eating and drinking places), Act of May 23, 1945, as amended, 35 P.S. 655.1 et seq. Repealed in Part. Section 6(b) of Act 1994, repealed this section in so far as it is inconsistent with said act (3 Pa. C.S.A. § 6501, et seq.).

The Public Bathing Law, Act of June 23, 1931, as amended, 35 P.S. § 672, et seq.

(Related to the protection of public water supply), Act of June 22, 1937, as amended, 35 P.S. § 691.1, et seq.

PA Safe Drinking Water Act, Act of May 1, 1984, as amended, 35 P.S. § 721.1, et seq.

PA Sewage Facilities Act, Act of January 24, 1966 as amended, 35 P.S. § 750.1, et seq. Repealed in Part. Section 15 of Act 1990, July 1, repealed this section insofar as it relates to fee payments.

PA Solid Waste-Resource Recovery Development Act, Act of July 20, 1974, as amended, 35 P.S. § 755.1, et seq.

(Related to pollution from abandoned mines), Act of December 15, 1965 as amended, 35 P.S. § 760.1, et seq.

Low-Level Radioactive Waste Disposal Act, Act of February 9, 1988, as amended, 35 P.S. § 7130.101, et seq.

(Related to Camp Regulation), Act of November 10, 1959 as amended 35 P.S. § 3001, et seq.

Air Pollution Control Act, Act of January 8, 1960, as amended 35 P.S. § 4001, et seq.

Solid Waste Management Act, Act of July 7, 1980 as amended, 35 P.S. § 6018.101, et seq. Repealed in Part. Section 905(b) of Act 1988, Feb. 9, the Low-Level Radioactive Waste Disposal Act (35 P.S. § 7130.101, et seq.), repealed this section insofar as it is inconsistent with said act.

Radiation Protection Act, Act of July 10, 1984, as amended, 35 P.S. 7110.101, et seq. Repealed in Part. Section 17(b) of Act 1992, Dec. 18,provides that this section is repealed insofar as it is inconsistent with said act.

Worker and Community Right-to-Know Act, Act of October 5, 1984 as amended, 35 P.S. § 7301, et seq.

IX. Purdon's Statutes - Title 36 (Highways and Bridges) State Highway Law, Act of June 1, 1945, as amended, 36 P.S. § 670-101, et seq. Repealed in Part. Section 4 of Act 1985, July 3, repealed this act insofar as it’s inconsistent with said act.

Junkyards along Highways), Act of July 28, 1966, as amended, 36 P.S. § 2719.1, et seq.

Highway Vegetation Control Act of December 20, 1983 as amended, 36 P.S. § 2720.1, et seq.

X. Purdon’s Statutes – Title 37 APPENDIX (Historical & Museums)

History Code, Act of May 26, 1988, as amd, 37 Pa. C.S.A. § 101, et seq.

XI. Purdon's Statutes - Title 43 (Labor) (Related to General Safety), Act of May 18, 1937, as amended, 43 P.S. § 25-1, et seq.

Seasonal Farm Labor Act, Act of June 23, 1978, as amended, 43 P.S. § 1301.101, et seq.

XII. Purdon's Statutes - Title 52 (Mines and Mining) The Coal Mine Sealing Act of 1947, Act of June 30, 1947, as amended, 52 P.S. § 28.1, et seq.

Coal Refuse Disposal Control Act of September 24, 1968, as amended, 52 P.S. § 30.51, et seq.

(Related to Coal Land Improvement), Act of July 19, 1965, as amended, 52 P.S. § 30.101, et seq.

(Related to Mine Fires & Subsidence),Act of April 3,1968, as amd. 52 P.S. § 30.201, et seq.

PA Anthracite Coal Mine Act, Act of November 10, 1965 as amended, 52 P.S. § 70-101, et seq.

(Related to discharge of coal into streams), Act of June 27, 1913 as amended, 52 P.S. § 631, et seq.

(Caving-in, Collapse, Subsidence), Act of May 27, 1921, as amended, 52 P.S. §661, et seq.

(Related to Subsidence), Act of September 20, 1961 as amended, 52 P.S. § 672.1, et seq.

Anthracite Strip Mining and Conservation Act, Act of June 27, 1947 as amended, 52 P.S. § 681.1, et seq. Repealed in Part. Section 16 of Act 1971, Nov. 30, provided that this section repealed insofar as it is inconsistent with Act No. 147.

(Related to control and drainage of water from coal formations), Act of July 7, 1955 as amended, 52 P.S. § 682, et seq.

PA Bituminous Coal Mine Act, Act of July 17, 1961 as amended, 52 P.S. § 701-101, et seq.

(Related to Abandoned Mines), Act of May 7, 1935, as amended, 52 P.S. § 809, et seq.

(Related to maps and plans of mines), Act of June 15, 1911, as amended, 52 P.S. § 823.

Surface Mining Conservation and Reclamation Act, Act of May 31, 1945 as amended, 52 P.