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Bill No. 04077200.doc
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BILL NO. 040772
Introduced September 23, 2004
Councilmembers Nutter, Goode, Kenney and DiCicco
Referred to the
Committee on Law and Government
AN ORDINANCE
Amending Title 17 of The Philadelphia Code, entitled Contracts and Procurement,
by adding provisions regulating the process by which the City awards
professional services contracts and other non-competitively bid contracts, and
prohibiting persons from entering into such contracts or from receiving City
financial assistance if they or certain related parties have made certain
contributions to elected City officers or candidates for City offices, all under
certain terms and condition.
THE COUNCIL OF THE CITY OF PHILADELPHIA HEREBY ORDAINS:
SECTION 1. Title 17 of The Philadelphia Code is hereby amended to read as
follows:
TITLE 17. CONTRACTS AND PROCUREMENT
* * *
CHAPTER 17-1200. NON-COMPETITIVELY BID CONTRACTS; FINANCIAL ASSISTANCE
§17-1201. Definitions.
(1) Applicant. A Person who has filed an application to be awarded a
Non-Competitively Bid City Contract.
(2) Business. A Person other than an individual.
(3) Charter. The Philadelphia Home Rule Charter.
(4) City Agency. Any office, department, board, commission or other agency of
the City of Philadelphia.
(5) City-Related Agency. All authorities and quasi-public corporations which
either: receive appropriations from the City, have entered into continuing
contractual or cooperative relationships with the City, or operate under legal
authority granted to them by City ordinance.
(6) Consultant. Any Person used by an Applicant or Contractor to assist in
obtaining a Non-Competitively Bid Contract through direct or indirect
communication by such Person with any City Agency or any City officer or
employee, if the communication is undertaken by such Person in exchange for, or
with the understanding of receiving, payment from the Applicant or Contractor or
any other Person; provided, however, that Consultant shall not include a
full-time employee of the Applicant or Contractor.
(7) Contractor. A Person who has entered into a Non-Competitively Bid Contract
with a City Agency.
(8) Contribution. As defined in the Pennsylvania Election Code, 25 P.S. §3241.
(9) Financial Assistance. Any grant, loan, tax incentive, bond financing subsidy
for land purchase or otherwise, or other form of assistance that is realized by
or provided to a Person in the amount of fifty thousand dollars ($50,000) or
more through the authority or approval of the City or a City-related Agency,
including, but not limited to, Tax Increment Financing (TIF) aid, industrial
development bonds, use of the power of eminent domain, Community Development
Block Grant (CDBG) aid or loans, airport revenue bonds, and Enterprise Zone or
similar economic development zone designations (such as Keystone Opportunity
Zones, Keystone Opportunity Expansion Zones, Keystone Opportunity Improvement
Zones, and Economic Development District Zones), but not including any
assistance to which a Person is entitled under a law enacted before the Person
applied for or requested such assistance.
(10) Immediate Family. As defined in §20-601, or a Life Partner, as defined in
§9-1102.
(11) Incumbent. An individual who holds an elective City office.
(12) Non-Competitively Bid City Contract. A contract to which the City or a City
Agency is a party that is not subject to the lowest competitive bidding
requirements of Section 8-200 of the Charter, including, but not limited to, a
Professional Services Contract, and any renewal of such a contract.
(13) Person. An individual, corporation, limited liability company, partnership,
association, joint venture, or any other legal entity.
(14) Political Committee. Any committee, club, association, political party or
other group of Persons which receives contributions or makes expenditures for
the purpose of, but not limited to, influencing a municipal election.
(15) Professional Services Contract. A contract to which the City or a City
Agency is a party that is not subject to the lowest competitive bidding
requirements of Section 8-200 of the Charter because it involves the rendition
of professional services, and any renewal of such a contract.
§17-1202. Open and Public Process Required For Non-Competitively Bid Contracts.
(1) A Non-Competitively Bid Contract shall be awarded in compliance with the
following:
(a) A City Agency that seeks to enter into a Non-Competitively Bid Contract
shall publicly advertise the availability of such contracting opportunity, and
shall award such contract only to a party that completes an application form
supplied by such City Agency, which application form shall contain all
disclosure forms required by subsection (1)(b) and shall include a summary of
the provisions and requirements of this Chapter. The required advertisements
shall be published in the same manner that sealed bids are advertised under
Section 8-200(2)(a) of the Charter, and shall set forth:
(i) The City Agency seeking to enter into the contract;
(ii) The nature of the goods or services being sought;
(iii) The requirement that no party may be awarded the contract unless it files
an application form provided by the City Agency, and the manner and time by
which such application forms must be filed;
(iv) The requirements of subsection (1)(b) that the Applicant disclose the names
of subcontractors the Applicant intends to use on the contract, the names of
Consultants used to assist in securing the contract, certain contributions made
by the Applicant and such Consultants, and the continuing disclosure
requirements of subsection (1)(e) concerning such contributions made during the
term of the contract; and
(v) The criteria by which the selection will be made.
(b) Mandatory Disclosures.
(i) An Applicant must disclose, by completing and signing disclosure forms
attached to the application:
(.1) The names, business addresses and phone numbers of all Consultants used by
the Applicant within the year prior to the date the application must be filed,
and the amount paid or to be paid to each such Consultant for such services, or
certify that no Consultants were so used;
(.2) All contributions of money or in-kind assistance made by the Applicant or
by a Consultant during the four years prior to the date the application must be
filed to any candidate for nomination or election to any public office in the
Commonwealth of Pennsylvania or to an individual who holds such office, or to
any political committee or state party in the Commonwealth of Pennsylvania, or
to any group, committee or association organized in support of any such
candidate, office holder, political committee or state party, and the date and
amount of each such contribution, or certify that no such contributions have
been made. The attribution rules of §17-1205 shall apply to determine what
contributions must be disclosed as contributions of the Applicant or of a
Consultant under this subsection (1)(b);
(.3) The names, business addresses and phone numbers of all subcontractors the
Applicant intends to use on the contract, and the amount or percentage to be
paid to each such subcontractor.
(ii) The City Agency awarding the contract shall forward a copy of all
disclosure forms it receives to the Department of Records.
(iii) No Non-Competitively Bid City Contract shall be awarded unless all
required disclosure forms are completed, signed and attached to the application
for such contract and on file with the Department of Records.
(c) After the City Agency has selected the Applicant with which it intends to
contract, the City Agency shall publish a notice setting forth the names of all
Applicants, the Applicant to which the contract will be awarded, and the basis
for the award, including a statement as to whether the Applicant to be awarded
the contract was the lowest bidder and if not, why the applications of all lower
bidders were rejected. Such notice shall be published in the same manner as the
advertisements published under subsection (1)(a), and shall be published at
least one week before the contract is executed. No later than the date of
publication, the City Agency shall file a copy of the notice with the President
and Chief Clerk of Council.
(d) If Council approval of a Non-Competitively Bid Contract is required under
Section 2-309 or other provision of the Charter, then such contract must be
specifically approved by ordinance. An ordinance approving a Non-Competitively
Bid Contract shall include as exhibits:
(i) A copy of the advertisement required by subsection (1)(a);
(ii) A copy of the application form submitted by the Applicant to whom the
contract is proposed to be awarded, together with a copy of all disclosure forms
required to be submitted by such Applicant under subsection (1)(b); and
(iii) A copy of the notice required by subsection (1)(c).
(e) Every Non-Competitively Bid Contract shall include the following provisions:
(i) The Contractor shall covenant that during the term of the contract,
contributions will not be made that would render the Contractor ineligible to
apply for or enter into a Non-Competitively Bid Contract under the provisions of
§17-1204(1). Breach of such covenant shall render the contract voidable at the
Citys option, and shall make the Contractor liable for liquidated damages to the
City in the amount of 10% of the total value of the payments to be made to the
Contractor under the contract.
(ii) The Contractor shall, during the term of such contract and for one year
thereafter, disclose any contribution of money or in-kind assistance the
Contractor or any Consultant has made to a candidate for nomination or election
to any elective City office or to an Incumbent or to any group, committee or
association organized in support of any such candidate or Incumbent, and the
amount of such contribution. Such disclosure shall be made on a form provided by
such City Agency, and the form shall be signed and filed with such agency within
five business days of the contribution. The City Agency receiving the disclosure
form shall forward copies to the President and Chief Clerk of Council, and to
the Department of Records. The attribution rules of §17-1205 shall apply to
determine what contributions must be disclosed under this provision as
contributions of the Contractor or of a Consultant.
(f) Every Non-Competitively Bid Contract shall include a representation and
covenant by the Contractor that the Contractors disclosures required by
subsection (1)(b) contain no material misstatements or omissions. Breach of such
representation and covenant shall render the contract voidable at the Citys
option, and shall subject the Contractor to liquidated damages to the City in
the amount of 10% of the total value of the payments to be made to the
Contractor under the contract.
(g) Every Non-Competitively Bid Contract shall be approved in writing by the
Finance Director, the City Solicitor, and the Mayor prior to execution.
(2) Failure to Disclose Consultant Contributions.
(a) It shall not be a violation of subsection (1)(b)(i)(.2) if an Applicant
fails to disclose a contribution made by a Consultant because the Applicant was
unable to obtain such information from the Consultant, provided the Applicant
demonstrates that it used reasonable efforts to attempt to obtain such
information, including, at a minimum:
(i) Entering into a written agreement with the Consultant for such Consultants
services, before the filing of the application for the contract, and before the
Consultant communicated with a City Agency, official or employee on behalf of
the Applicant;
(ii) Including in such agreement a provision requiring the Consultant to provide
the Applicant in a timely manner with all information required to be disclosed
under the provisions of this Chapter, and providing, in effect, that the
agreement will be terminated by the Applicant if the Consultant fails to provide
all required information on a timely basis and that no further payments,
including payments owed for services performed prior to the date of termination,
will be made to the Consultant by or on behalf of the Applicant as of the date
of such termination;
(iii) Communicating regularly with the Consultant concerning the Consultants
obligations to provide timely information to permit the Applicant to comply with
all provisions of this Chapter; and
(iv) Invoking the termination provisions of the written agreement in a full and
timely manner.
(b) The contract provision required by subsection (1)(e)(ii) shall include
provisions excusing the failure to disclose a Consultants contributions during
the term of the contract under the same terms and conditions set forth in
subsection (2)(a).
(3) Nothing in this Chapter shall be construed to require the award of a
Non-Competitively Bid Contract to the lowest responsible bidder, nor shall this
Chapter be construed in any other way to limit the discretion of a City Agency
in awarding or not awarding a Non-Competitively Bid Contract if the procedures
required by this Chapter have been followed.
§17-1203. Public Information; Reporting.
(1) After a Non-Competitively Bid Contract has been executed, all applications
for such contract shall become public information, except that the City Agency
awarding such contract may redact propriety information or other information
protected by law prior to making such applications available for public
inspection, provided that the information required to be disclosed by
§17-1202(1)(b) shall never be redacted.
(2) On the first working day of each month, the Mayor shall file a written
report with the President and Chief Clerk of Council, with a copy to the
Department of Records, setting forth for each Non-Competitively Bid Contract
under which goods were provided or services were rendered to the City during the
previous month, and for each contract for which reporting is required by
§17-1206(1)(d):
(a) The parties to the contract and the subject matter of the contract;
(b) The term of the contract and the length of the term remaining;
(c) The total amount of the contract and the total of all payments that have
been made under such contract to date; and
(d) A copy of any contribution disclosure forms filed in compliance with the
requirement of §17-1202(1)(e)(ii) since the date of the last report.
(3) Any document that must be filed with the Department of Records under this
Chapter shall be kept on file and available for public inspection during regular
office hours.
§17-1204. Eligibility for Non-Competitively Bid City Contracts and Financial
Assistance.
(1) Determining Eligibility.
(a) If an individual makes contributions in excess of $1,000 in the aggregate
during a calendar year to a candidate for nomination or election to any elective
City office or to an Incumbent, then, during the term of office to which such
candidate is elected or during the Incumbents term of office, the individual
shall not be eligible to apply for or to enter into any Non-Competitively Bid
City Contract in excess of $10,000, nor shall said individual be eligible to be
a sub-contractor of any such contract, nor shall the individual be eligible to
receive Financial Assistance.
(b) If a Business makes a contribution in excess of $5,000 in the aggregate
during a calendar year to a candidate for nomination or election to any elective
City office or to an Incumbent, then, during the term of office to which any
such candidate is elected or during the Incumbents term of office, the Business
shall not be eligible to apply for or to enter into any Non-Competitively Bid
City Contract in excess of $10,000, nor shall said Business be eligible to be a
sub-contractor of any such contract, nor shall the Business be eligible to
receive Financial Assistance.
(2) The attribution rules of §17-1205 shall apply to determine the amount of
contributions made by an individual or Business for purposes of subsection (1).
(3) Disclosure by Applicants for Financial Assistance.
(a) A Person seeking Financial Assistance shall file with the City Agency
providing such assistance all disclosure forms that Applicants seeking
Non-Competitively Bid City Contracts must file under §17-1202(1)(b).
(b) The City Agency providing the Financial Assistance shall forward a copy of
all disclosure forms it receives to the Department of Records.
(c) No Financial Assistance shall be provided unless all required disclosure
forms are completed, signed and filed with the City Agency providing such
assistance and are on file with the Department of Records.
(d) If Council approval of the Financial Assistance is required by law, the
ordinance approving such Financial Assistance must include as exhibits copies of
all disclosure forms required by this subsection (3).
§17-1205. Attribution Rules. The following attribution rules shall apply
throughout this Chapter to determine what contributions shall be considered to
be contributions of an Applicant, Consultant, Contractor, or Person seeking
Financial Assistance:
(1) Contributions made by a member of an individuals Immediate Family shall be
considered to be contributions made by the individual.
(2) The following shall be considered a contribution by a Business:
(a) A contribution made by any parent, subsidiary, or otherwise affiliated
entity of a Business (affiliate);
(b) A contribution made by any Person for which they are reimbursed by such
Business or affiliate;
(c) A contribution from an officer, director, controlling shareholder or partner
of such Business or affiliate;
(d) A contribution by a political action committee controlled by the Business or
affiliate, or controlled by an officer, director, controlling shareholder or
partner of such Business or affiliate.
(3) A contribution in excess of $1,000 in the aggregate during a calendar year
to any political committee which, during the calendar year in which the
contribution is made, itself makes contributions or gives financial support in
excess of fifty percent of the committees total receipts for that calendar year
to a particular candidate for nomination or election to any elective City office
or to a particular Incumbent, shall be considered a contribution to such
candidate or Incumbent.
(4) Any other contribution made not directly to a candidate for nomination or
election to any elective City office or Incumbent, but with the purpose and
intent that the entity to whom the contribution is made will, directly or
indirectly, make such contribution available to such candidate or Incumbent,
shall be considered a contribution to such candidate or Incumbent.
§17-1206. Exception for Sole Source Contracts.
(1) The provisions of this Chapter shall not apply to contracts for the purchase
of unique articles or articles which for any other reason cannot be obtained in
the open market, provided:
(a) The Procurement Commissioner certifies in writing that the contract is for
the purchase of a unique article or an article which for any other reason cannot
be obtained in the open market, and sets forth in such certification the basis
for that conclusion;
(b) The contract is approved in writing by the Finance Director, the City
Solicitor, and the Mayor;
(c) The disclosures provisions of §17-1202(1)(b) shall apply to all such
contracts; and
(d) A list of all such contracts is included as part of the monthly report
required under §17-1203(2).
(2) The exception provided by this Section shall not apply to any Professional
Services Contract.
§17-1207. Penalties; Remedies.
(1) A contract made in violation of §17-1204 shall be voidable at the Citys
option.
(2) If an Applicant makes material misstatements or omissions in the disclosures
required by §17-1202(1)(b), or if a Contractor makes material misstatements or
omissions in the disclosures required by §17-1202(1)(e)(ii), such Applicant or
Contractor shall be prohibited from entering into any Non-Competitively Bid City
Contract for a period of three years, and shall be subject to a fine of three
hundred dollars ($300). If a Person seeking Financial Assistance makes material
misstatements or omissions in the disclosures required by §17-1204(3)(a), such
Person shall be subject to a fine of three hundred dollars ($300).
(3) The Finance Director shall provide a process by which a final written
determination may be made as to whether an Applicant or Contractor has made a
material misstatement or omission and is therefore debarred under subsection
(2), which process shall include written notice to the Applicant or Contractor
and an opportunity for the Applicant or Contractor to be heard prior to any
final determination. A copy of every such written notice and final written
determination shall be filed with the Department of Records. Upon receiving a
final written determination, the Department of Records shall publish, in the
same manner that advertisements are published under §17-1202(1)(a), a summary of
such written determination, including the name of the applicant, the contract
for which the applicant had applied, the findings as to material misstatement or
omission set forth in the final determination, and the penalties to which the
Applicant or Contractor is subject.
§17-1208. City-related Agencies.
(1) Any contract, lease, grant or other agreement (City agreement) entered into
by the City with any City-related Agency shall contain a provision requiring
that the City-related Agency abide by the provisions of this Chapter in awarding
any contracts or providing any Financial Assistance in connection with its City
agreement, as though such contracts and the provision of Financial Assistance
were directly subject to the provisions of this Chapter.
SECTION 2. Effective Date; Applicability.
(a) This ordinance shall take effect upon the effective date of the amendment to
Section 8-200 of the Philadelphia Home Rule Charter proposed by Resolution No.
040818.
(b) The provisions of §17-1204 of The Philadelphia Code added by Section 1 of
this ordinance prohibiting the award of non-competitively bid contracts and the
provision of financial assistance to persons who made certain contributions to
candidates and incumbents, shall apply only with respect to contributions made
on and after January 1, 2005. However, contributions made prior to January 1,
2005 shall be subject to the disclosure requirements of §§17-1202(1)(b),
17-1202(1)(e)(ii) and 17-1204(3)(a) of The Philadelphia Code added by Section 1
of this ordinance.
(c) The provisions of §17-1203(2) of The Philadelphia Code added by Section 1 of
this ordinance, requiring the filing of a monthly report concerning certain
contracts, shall apply to contracts in existence at the time this ordinance
takes effect.
_________________________________
Explanation:
[Brackets] indicate matter deleted.
Italics indicate new matter added.