Bill Text: DE HB404 | 2011-2012 | 146th General Assembly | Draft
Bill Title: An Act To Amend Title 29 Of The Delaware Code Creating A Responsible Contractor Law.
Spectrum: Moderate Partisan Bill (Democrat 15-3)
Status: (Introduced - Dead) 2012-06-30 - Amendment HA 1 - Introduced in House [HB404 Detail]
Download: Delaware-2011-HB404-Draft.html
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SPONSOR: |
Rep. D.E. Williams & Sen. McDowell |
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Reps. Barbieri, Bolden, Heffernan, Jaques, J. Johnson, Keeley, Kowalko, Mitchell, Mulrooney, Osienski, Ramone, Viola, D.P. Williams; Sen. Cloutier, Connor, Sokola |
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HOUSE OF REPRESENTATIVES 146th GENERAL ASSEMBLY |
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HOUSE BILL NO. 404 |
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AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE CREATING A RESPONSIBLE CONTRACTOR LAW. |
Section 1.Amend Chapter 69, Title 29, Delaware Code by adding a new §6967, Title 29, Delaware Code to read as follows:
§6967.Responsible Contractor Requirements.
(a)Purpose.
The General Assembly recognizes that there is a need to ensure that all work on public works contracts is performed by responsible, qualified firms that maintain the capacity, expertise, personnel and other qualifications and resources necessary to successfully perform such contracts in a timely, reliable and cost-effective manner.The failure to ensure the use of responsible, qualified contractors and subcontractors on such contracts can seriously undermine and jeopardize the State's investment in public works projects if such projects create or experience cost overruns, delayed schedules, defective or poor quality workmanship, hazardous or unsafe conditions or other serious performance problems.
The General Assembly also recognizes that it is beneficial to ensure that firms receiving public works contracts possess all applicable trade and contracting licenses, utilize fair business practices and have satisfactory record of business integrity, including compliance with laws and ordinances relating to the contracting industry and satisfaction of state and local tax obligations.For these reasons, the State has a compelling proprietary interest in ensuring that all firms that perform work on public works contracts meet effective, minimum responsibility and qualifications standards.
Therefore, the State shall require compliance with the provisions of this section by business entities seeking to provide services to the State or any State agency or any using agency as specified herein.The requirements of this act are intended to supplement, not replace, existing contractor qualification standards and procedures as outlined in this Code.However, in the event that any of the provisions of this act conflict with any law of the State, this act shall prevail.
(b)Qualified, Responsible Contractor Requirements.
(1) This Section shall apply to public works contracts.All contractors and subcontractors of any tier that perform work on such contracts valued at $50,000 or more shall meet the requirements of this act.
(2) All firms engaged in public works contracts shall be qualified, responsible contractors or subcontractors that have sufficient capabilities in all respects to successfully perform contracts on which they are engaged, including the necessary experience, equipment, technical skills and qualifications and organizational, financial and personnel resources.Qualified, responsible firms shall also have a satisfactory past performance record and a satisfactory record of law compliance, integrity and business ethics.
(c)Contractor Responsibility Certifications.
(1)As a condition of performing work on a public works contract subject to this act, a general contractor, construction manager or other lead or prime contractor which seeks award of a contract, shall submit a Contractor Responsibility Certification at the time it submits its bid or proposal for a contract.A firm that fails to submit this Certification or submits an incomplete Certification as required by this Section shall be disqualified and the bid or proposal of any such firm shall be determined non-responsive and not accepted by the State.
(2)The Contractor Responsibility Certification shall be completed on a form provided by the office and shall reference the project for which a bid or proposal is being submitted by name and contract or project number.
(3)In the Contractor Responsibility Certification the construction manager, general contractor or other lead or prime contractor that contracts directly with the State or using agency or State agency shall confirm the following facts regarding its past performance, work history and its current qualifications and performance capabilities:
a.The firm has not been nor currently is debarred by any federal, state or local government agency in the past three (3) years.
b.The firm has not defaulted on any project in the past three (3) years.
c.The firm has not had any type of business, contracting or trade license revoked or suspended in the past three (3) years.
d.The firm is not currently delinquent in its tax obligations to the State of Delaware or any political subdivision thereof.
e.The firm has not committed a serious or willful violation of federal or state safety laws as determined by a final decision of a court or government agency in the past three (3) years.
f.The firm has not been found in violation of any other law relating to its contracting business, including, but not limited to licensing laws, tax laws, prompt payment laws, wage and hour laws, prevailing wage laws, environmental laws or antitrust laws, by a final decision of a court or government agency authority in the past three (3) years.
g.The firm participates in a Class A Apprenticeship Program for each separate trade or classification in which it employs craft employees and shall continue to participate in such program or programs for the duration of the project.
i.A Class A Apprenticeship Program is an apprenticeship program which is currently approved by the U.S. Department of Labor or a state apprenticeship agency and has graduated apprentices to journeyperson status for each of the past three consecutive years.
ii.To permit development of recently registered programs, the graduation requirement of this Section shall not apply to apprenticeship training programs registered within the past three years.If a firm participates in an apprenticeship program that is not required to meet the graduation requirements of this provision it shall, in addition to submitting proof the program is currently registered with federal or state government, provide evidence that the program is actively engaged in bona fide apprenticeship training activity.
iii.The firm shall provide proof of compliance with these apprenticeship requirements with the Contractor Responsibility Certification.
iv.If the firm is acting as a construction manager and not directly hiring craft labor employees, it shall not be required to meet the apprenticeship requirements of this Section.
h.The firm shall provide workers compensation insurance and unemployment insurance for all craft employees that it employs for the duration of the referenced project.Proof of compliance with this requirement shall be submitted with the Contractor Responsibility Certification.
i.The firm will seek to have twenty percent of the total craft labor work hours on the referenced project performed by women and minority employees.
j.The firm possesses all applicable licenses, as required by State law.Proof of compliance with this requirement shall be submitted with the Contractor Responsibility Certification.
k.The firm has all other technical qualifications and resources, including equipment, personnel and financial resources and to perform the referenced contract or will obtain same through the use of qualified, responsible subcontractors.
l.In the event the firm receives a Letter of Intent to Award Contract, it will submit subcontractor Responsibility Certifications for subcontractors identified pursuant to this Section.
i.The State or using agency or State agency may require any other additional information it deems necessary to evaluate the submitting firm's qualifications, resources and performance capabilities.The State or using agency or State agency may require that such information be included in a separate Qualifications Statement or as an attachment to the Contractor Responsibility Certification.
ii.If the submitting firm is, or was in the past five years, related to any other company or business entity that provided or provides contractual services in the construction, maintenance, service or repair industries, whether as a parent company, subsidiary or in any other business relation, it shall attach a separate statement to its Contractor Responsibility Certification that explains in detail the nature of any such relationship.
iii.Contractor Responsibility Certifications shall be executed by a person who has sufficient knowledge to address all matters in the certification and shall include an attestation stating, under the penalty of perjury, that all information submitted is true, complete and accurate.
(d)Letter of Intent to Award Contract.
(1)After it has received bids or proposals, the State or using agency or State agency shall issue a Letter of Intent to Award Contract to the firm offering the lowest responsive bid or, as the case may be, the firm otherwise selected pursuant tothis Code.
(2)The Letter of Intent shall be issued immediately or as soon as practicable after bids or proposals are submitted and shall expressly stipulate that the contract award of the prospective contract will be conditioned on the issuance of a written Contractor Responsibility Determination by the office, which shall constitute an administrative approval by the State.
(e)Subcontractor Lists, Subcontractor Responsibility Certifications.
(1)Within 7 days from the date of the Letter of Intent to Award Contract, a prospective awardee shall submit to the office executed copies of Subcontractor Responsibility Certifications for all subcontractors listed and identified pursuant to this Section.
(2)Subcontractor Responsibility Certifications shall be executed by such subcontractors and contain the same information and representations required in Contractor Responsibility Certifications pursuant to this Section.
(3)No subcontractors, at any tier, shall perform work on a public works contract, unless it has properly executed and submitted a Subcontractor Responsibility Certification in accordance with the requirements of this Section.
(4)A Subcontractor Responsibility Certification shall be executed by a person who has sufficient knowledge to address all matters in the certification and shall include an attestation stating, under the penalty of perjury, that all information submitted is true, complete and accurate.
(f)Contractor Responsibility Review and Determination.
(1)After a Letter of Intent to Award Contract has been issued, the office shall undertake an agency review process for a period no more than 30 days to determine whether the prospective awardee has the resources and capabilities to successfully perform the contract and otherwise qualifies as a responsible contractor in accordance with the requirements of this Section and other applicable laws and regulations.
(2)As part of this agency review, the office shall ensure that the Contractor Responsibility Certification, Subcontractor List and Subcontractor Responsibility Certifications, as required by this Section, have been submitted and properly executed.
(3)The office may further conduct any other inquiry to independently verify that the prospective awardee and its listed subcontractors have the technical qualifications and performance capabilities necessary to successfully perform the contract and that the firms have a sufficient record of law compliance and business integrity to justify the award of a public contract.In conducting such inquiries, the office may seek information from firms which have submitted responsibility certifications, prior customers of such firms, or from any other relevant source.
(4)The Contractor Responsibility Determination shall be issued at least 30 days after the date of the Letter of Intent to Award Contract.This Responsibility Determination may be revoked or revised in any manner at any time in the event the office obtains relevant information warranting any such revocation or revisions.
(5)If at the conclusion of its internal review, the office determines that all responsibility certification have been properly competed and executed and if it concludes that the qualifications, background and responsibility of the prospective awardee and identified subcontractors are satisfactory, it shall issue a written Contractor Responsibility Determination verifying that the prospective awardee is a qualified, responsible contractor and a Notice of Contract Award.
(g)Subcontractor Responsibility Review Requirements.
(1)In the event that the office determines that a prospective subcontractor does not meet the qualification standards included in the Subcontractor Responsibility Certification or does not otherwise qualify as a responsible firm, it shall inform the general contractor, construction manager or other lead or prime contractor.Under these circumstances, the office may, if a subcontractor non-responsibility determination is made pre-contract award, take whatever action it deems necessary to protect the State's interests, including:
a.disqualifying the general contractor, construction manager or other lead or prime contractor;
b.requiring the general contractor, construction manager or other lead or to self-perform the work in question if the firm has the required experience, licenses and other qualifications to perform the work in question; or
c.permit the firm to substitute a responsible, qualified subcontractor in accordance with the time limits and Subcontractor Responsibility Certification requirements of this Section.
(2)In the event that a subcontractor is disqualified under this Section, the general contractor, construction manager or other lead or prime contractor shall not be permitted to make any type of contractual claim against the State, or using agency or State agency on the basis of a subcontractor disqualification.
(h)Public Review Process.
(1)The Contractor Responsibility Certification for a firm identified in a Letter of Intent to Award Contract, Subcontractor Lists and Subcontractor Responsibility Certifications shall be made immediately available to the public for inspection by the office through a publicly accessible website or through other comparable means.
(2) A public works contract subject to this Section shall not be executed until all requirements of this act have been fulfilled and until Contractor Responsibility Certifications have been made available for public inspection for at least 21 days and subcontractor lists and Subcontractor Responsibility Certifications have been made available for public inspection for at least 14 days.
(3)During the Public Review Period, any person or organization may protest a contractor or subcontractor for failing to meet applicable requirements of this act or for any other legitimate ground by submitting a letter with supporting evidence to the State, or using agency or State agency.
(4)If the office determines that a Contractor or Subcontractor Responsibility Certification contains false or misleading material information that was provided knowingly or with reckless disregard for the truth, or omits material information that was omitted knowingly or with reckless disregard of the truth, the firm for which the certification was submitted shall be prohibited from performing work for the State for a period of three years and shall be further subject to any other penalties and sanctions, including contract termination, available to the State under law.A contract terminated under these circumstances shall further entitle the State to withhold payment of any monies due to the firm as damages.
(5)Any contractor or subcontractor that is found not to qualify as a responsible contractor for purposes of this act shall be afforded notice and opportunity to be heard prior to any final decision.
Section 2.If any provision of this act shall be held to be invalid or unenforceable by a court of competent jurisdiction, any such holding shall not invalidate any other provisions of this act and all remaining provisions shall remain in full force and effect.
Section 3.This act shall become effective July 1, 2013, but the office shall take such anticipatory administrative action in advance as shall be necessary for the implementation of this act.
Section 4.The requirements of this act shall not apply to contracts executed prior to the effective date of this act, except that the exercise of an option on a contract covered by this act shall be deemed to create a new contract for purposes of this act.
SYNOPSIS
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