Chapter 2 The Process Of Construction Contract Procurement For

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					                                                                                                                                      Issued April 2003




               Pennsylvania State System of Higher Education
                       Facilities Manual - Volume 30
               Engineering / Architectural Instructions Manual


                                    Chapter 2
                                   The Process
                                        Of
                        Construction Contract Procurement
                                        For
                                Facilities Projects

                                     CHAPTER 2 TABLE OF CONTENTS

CHAPTER 2.1 - REQUIREMENTS FOR PROCUREMENT OF CONSTRUCTION
A. LEGISLATION
B. REFERENCES
C. THRESHOLD AMOUNTS...................................................................................................................... (See Article 2.1-1)
Article 2.1-1           Annually Adjusted Thresholds
Article 2.1-2           Procurement Decision Document
Article 2.1-3           Prevailing Wage Rates – Residential Rates For Student Housing

CHAPTER 2.2 - CONSTRUCTION CONTRACT FORMS
A. STANDARD CONTRACT FORMS ...................................................................................................... (See Article 2.2-1)
B. SELECTION OF CONTRACT FORM
Article 2.2-1 Current List of Construction Contract Forms

CHAPTER 2.3 – THE BID PACKAGE
A. OVERVIEW
B. DEFINITIONS
C. CONTENTS OF BID PACKAGE .......................................................................................................... (See Article 2.3-1)
D. PREPARATION
E. BID FORM – ONE BOUND IN BID PACKAGE & SECOND SEPARATE COPY
Article 2.3-1 Bid Package & Contract Documents



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CHAPTER 2.4 – DESIGN PHASE
A. OVERVIEW
B. PROFESSIONAL PROCUREMENT AND ADMINISTRATION
C. SEPARATE PRIMES
D. BID FORMATS AND BID COMPONENTS ....................................................................................... (See Article 2.4-1)
E. MBE/WBE PROGRAM & POLICY...................................................................................................... (See Article 2.4-2)
F. PROPRIETARY & NON-PROPRIETARY SPECIFICATIONS
G. FINISHES .................................................................................................................................................... (See Article 2.4-3)
H. LIQUIDATED DAMAGES
Article 2.4-1   Defined Bid Formats With Bid Components
Article 2.4-2   MBE/WBE Proactive Effort Policy & Provisions

CHAPTER 2.5 – BID PHASE
A.    OVERVIEW
B.    ADVERTISEMENT .................................................................................................................................. (See Article 2.5-1)
C.    PRE-BID CONFERENCE........................................................................................................................ (See Article 2.5-2)
D.    ADDENDA .................................................................................................................................................. (See Article 2.5-3)
E.    RECEIPT OF BIDS
F.    OPENING AND READING OF BIDS
G.    EVALUATION OF BIDS......................................................................................................................... (See Article 2.5-4)
H.    AWARD....................................................................................................................................................... (See Article 2.5-5)
I.    BID PROTEST
Article 2.5-1              Bidding / Builders Exchanges
Article 2.5-2              Pre-Bid Conference – Agenda
Article 2.5-3              Addenda - Example
Article 2.5-4              Forms for Evaluations of Bids
                           Checklist - Determination of Contractor Responsibility
                           Checklist - Determination of Contractor Responsiveness
                           Sample Letter - Request for Bidder’s Information
                           Checklist – Professional’s Responsibilities for Bid Evaluations
Article 2.5-5              Award of Project – Sample Letter

CHAPTER 2.6 – CONTRACT AWARD PHASE
A. OVERVIEW
B. LOWEST RESPONSIBLE AND RESPONSIVE BIDDER
C. TIMELY AWARD OF CONSTRUCTION CONTRACT
D. CONTRACT PREPARATION
E. CONTRACT TRANSMITTAL TO LEGAL
F. WORK ORDERS FOR QUALIFICATION CONTRACTS
Articles    None

CHAPTER 2.7 – CONSTRUCTION PHASE
A. OVERVIEW
Articles                   None




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Engineering / Architectural Instructions for Facilities Projects                       Chapter 2
Chapter 2 - The Process Of Construction Contract Procurement                   Table of Contents
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            Pennsylvania State System of Higher Education
                    Facilities Manual - Volume 30
            Engineering / Architectural Instructions Manual

                                  Chapter 2.1
                               Requirements For
                          Procurement of Construction
                             For Facilities Projects

CHAPTER 2.1                 TABLE OF CONTENTS
A. LEGISLATION
    Act 188 of 1982              State System Of Higher Education                Commonwealth of Pennsylvania
    Act 57 of 1998               Commonwealth Procurement Code                   Commonwealth of Pennsylvania
    Act 142 of 2002              Amendments to Procurement Code                  Commonwealth of Pennsylvania
    Act of 1913                  Separate Primes Legislation                     Commonwealth of Pennsylvania
    Act 442                      Pennsylvania Prevailing Wage                    Commonwealth of Pennsylvania
    Act of Mar. 3, 1978          Steel Products Procurement Act                  Commonwealth of Pennsylvania
    Act of Nov. 28, 1986         Reciprocal Limitations Act                      Commonwealth of Pennsylvania
    Act of July 23, 1968         Trade Practice                                  Commonwealth of Pennsylvania
    Act of 1967                  Public Works Contractors’ Bond Law              Commonwealth of Pennsylvania
    Act of 1990                  Americans With Disabilities Act                 Federal
B. REFERENCES
    System’s Legal Manual     Manual For Preparing & Processing Contracts For Goods & Services
C. THRESHOLD AMOUNTS ...........................................................................(See Article 2.1-1)
   1. Annual Adjustments to Threshold Amounts
   2. Publication of Annually Adjusted Thresholds
   3. No-Bid or Competitive Bid Threshold                 $10,000 Threshold Amounts                       (Adjusted Annually)
   4. Bonding Thresholds                                  Various Threshold Amounts                       (Adjusted Annually)
   5. Separate Prime Procurements Threshold               $25,000 Threshold Amount                          (Fixed Threshold)
   6. Prevailing Wages Threshold                          $25,000 Threshold Amount                          (Fixed Threshold)
                                  ........................................................................(See Article 2.1-3)
   7. Procurement Decision Document.................................................................(See Article 2.1-2)


CHAPTER 2.1                 LIST OF ARTICLES
Article 2.1-1      Annually Adjusted Thresholds
Article 2.1-2      Procurement Decision Document
Article 2.1-3      Prevailing Wage Rates – Residential Rates For Student Housing
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Chapter 2.1 - Requirements For Procurement of Construction
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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                            Chapter 2.1
                         Requirements For
                    Procurement of Construction
                       For Facilities Projects


A.     LEGISLATION

       1. ACT 188 OF 1982 – Enabling Legislation for the PA State System
          Act 188 provides certain definitions and mandates that the System must follow
          regarding contract procurement of construction and services. Some of those are as
          follows:
          a. SECTION 20-2001-A: Definition of Maintenance
              Maintenance means those activities, materials, labor, and contracts that:
              (i) are necessary to replace, restore, refurbish, or enhance real property
              (ii) do not alter the architectural or engineering characteristics of the structure,
              (iii) do not affect the structural integrity of any existing facility or utility system.
                    as follows:
                       painting                                   roadways
                       landscaping                                parking facilities
                       caulking & insulation                      downspout & gutters
                       roof repair & replacement                  masonry repointing & repair
                       window repair & replacement
                       sidewalk & curbing reconstruction & replacement
                       track & athletic court resurfacing & reconstruction
                       asbestos abatement (in accordance with state & federal statutes & regulations)
                       non- load bearing interior wall replacement, reconstruction, & construction
              NOTE: This definition of Maintenance is from Act 188 of 1982. A definition for other
              purposes appears in Act 442 - PA Prevailing Wage legislation (See Section C of this
              Chapter). The Construction Support Office can provide other information and examples
              of maintenance to assist Universities in determining when projects are maintenance.
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          b. SECTION 20-2003-A.1: Project Contracts
              •   Contract Execution & Administration. The Pennsylvania State System of
                  Higher Education is hereby authorized to execute and administer contracts for
                  construction, repair, renovation, and maintenance projects, including all
                  aspects of project management, design, construction, and legal and
                  administrative services related to and necessary for the completion of projects.
              •   Capital Projects Not Authorized.           This authorization does not include
                  capital projects that are funded by Commonwealth general obligation bonds,
                  capital appropriations or pursuant to "The Fiscal Code," unless delegated by
                  the Department of General Services to the System.
              •   Merit Selections of Architects & Engineers. The System is authorized to
                  review the work, experience, and qualifications of architects and engineers
                  seeking contracts from the System. On the basis of merit and at the System’s
                  discretion, the System will select and appoint architects and engineers for the
                  design, contract administration, and inspection of authorized projects.
              •   Advertisement & Public Bid. All authorized contracts that exceed $10,000,
                  other than contracts for the retention of architects and engineers, must be
                  advertised in the manner provided by law and competitively bid and awarded
                  to the lowest responsible bidder.
              •   Other Legislation. Act 188 does not amend, repeal, or otherwise modify the
                  provisions of
                  - The Separations Act
                    Commonly known as the “Separate Primes Legislation”
                    The Act of May 1, 1913 (P.L. 155, No. 104), entitled "An act regulating the
                    letting of certain contracts for the erection, construction, and alteration of
                    public buildings".
                  - Pennsylvania Prevailing Wage Act
                    The Act of Aug. 15, 1961 (P.L. 987, No. 442).



       2. ACT 57 OF 1998 - Commonwealth Procurement Code
          As a government entity, the Pennsylvania State System of Higher Education is
          required to follow numerous statutes, regulations, policies, and procedures for the
          procurement of construction and services. One piece of primary legislation critical to
          the System’s procurement practices is Act 57 of 1998, the Commonwealth
          Procurement Code. Act 57, a relatively recent act, was instrumental in simplifying
                                                                                      o
          the process and requirements for contracting. Professionals are encouraged t review
          and have access to Act 57.
          Act 57 is available on the System’s web site at:
                                 http://members.aol.com/StatutesP3/62C.html
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       3. OTHER LEGISLATION
          In addition to Act 188 and Act 57, as amended, the following list includes other
          legislation that the System must comply with during the design and execution of
          construction projects:
              •   Act of 1913            Separate Primes Legislation          Commonwealth of PA
              •   Act 442                Pennsylvania Prevailing Wage         Commonwealth of PA
              •   Act of Mar. 3, 1978    Steel Products Procurement Act       Commonwealth of PA
              •   Act of Nov. 28, 1986   Reciprocal Limitations Act           Commonwealth of PA
              •   Act of July 23, 1968   Trade Practice                       Commonwealth of PA
              •   Act of 1967            Public Works Contractors’ Bond Law   Commonwealth of PA
              •   Act of 1990            Americans With Disabilities Act      Federal
          This list is provided to inform the user of this manual that the Construction Support
          Office may have electronic versions of legislation that can be used to reference and
          investigate certain requirements and conditions.
          This list is not provided to give the user of this manual a complete list of all mandates
          that the System must follow and does not relieve the user of this manual from
          becoming familiar with all necessary statutes, regulations, policies, and procedures.




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B.     REFERENCES

       1. OFFICE OF CHIEF COUNSEL
          Manual For Preparing & Processing Contracts For Goods & Services
          The System’s Office of Chief Counsel has prepared a manual to assist in
          Commonwealth contracting – Manual For Preparing And Processing Contracts For
          Goods And Services. This manual was prepared as a result of the implementation of
          Act 57 of 1998, promulgated on November 11, 1998, and has been updated.
          The purpose of this manual is to provide a user-friendly guide to Commonwealth
          contracting for the Office of the Chancellor and the System Universities. Further
          assistance can be found on the Legal Office home page at:
                               http://www.sshechan.edu/LegalWeb/legal.html
          From the home page, you can access the manual and other information through the
          following sites:
                              http://www.sshechan.edu/LegalWeb/procure.htm
                            http://www.sshechan.edu/LegalWeb/procure.htm#gen
                               http://www.sshechan.edu/LegalWeb/manual.pdf
          Information provided here should not be used as a substitute for legal advice.    The
          user should contact appropriate legal counsel for legal advice.




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                        Manual For Preparing & Processing
                           Contracts For Goods & Services


          The Chief Counsel’s Manual includes discussion of the following:
                  •   Legal Review Of Contracts
                  •   Common Types Of Contracts
                  •   Prohibited Contracts
                  •   Methods Of Source Selection
                  •   SPCs & Blueback Contracts:           Required Provisions & Attachments
                  •   SPCs, SBCS, & Blueback Contracts: Contract Preparation
                  •   SPCs & Bluebacks:                    Modification After Execution
                  •   Prohibited Contract Clauses
                  •   Amending Existing Contracts
                  •   Bonds
                  •   Record Keeping
                  •   Debarment
                  •   Legal & Contractual Remedies
                  •   Small & Disadvantaged Businesses
                  •   Ethics & Anti-Bid Rigging Activities
                  •   Disposal Of Surplus Property
                  •   Bid Protest Procedure Flowchart
                  •   Contract Remedies Flowchart
                  •   Glossary Of Terms
                  •   Board Of Governor’s Policy 1990-07-A
                  •   Board Of Governor’s Policy 1998-04
                  •   Memorandums Of Chief Legal Counsel

          The Chief Counsel’s Manual includes forms for the following:
                  •   SPC - Service Purchase Contract, Renewal, & Amendment
                  •   SBC - Service Bid Contract & Preparation
                  •   Blueback Contract - Forms, Renewal, & Amendment
                  •   Renewal By Letter
                  •   RFP - Request For Proposal
                  •   Interagency Memorandum Of Understanding
                  •   Emergency Contract Certification
                  •   Sole Source Contract Certification
                  •   Transmittal Form
                  •   Checklist For Drafting Contracts
                  •   Novation Form

                          The user of the E/A Instructions Manual
            shall verify certain instructions with the provisions contained in the
   Chief Counsel’s Manual For Preparing & Processing Contracts For Goods & Services.
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C.     THRESHOLD AMOUNTS
       The Pennsylvania State System of Higher Education is required by statute to follow
       certain guidelines depending upon thresholds, either adjusted annually or fixed, for
       contract amounts. Those guidelines and thresholds are discussed in this section.
       In the application of the thresholds, the user of this manual shall verify the
       instructions of this manual with the provisions of the manual produced by:
                                    Office Of Chief Counsel
             Manual For Preparing And Processing Contracts For Goods And Services
                              (discussed in previous paragraphs).

       1. ANNUAL ADJUSTMENTS TO THRESHOLD AMOUNTS
          Act 57 of 1998 provides for annual adjustments to certain thresholds to reflect the
          annual percentage change in the Composite Construction Cost Index (CCCI) of the
          United States Department of Commerce occurring in the one-year period ending
          December 31 of each year. See Article 2-1, Annually Adjusted Thresholds.


       2. PUBLICATION OF ANNUALLY ADJUSTED THRESHOLDS
          DGS Publication.        The annual adjustments to thresholds to reflect the annual
          percentage change in the Composite Construction Cost Index (CCCI) are computed
          and publish by Department of General Services. Historically, the updated thresholds
          for any year have not been published till mid-April. The Construction Support Office
          obtains the updated thresholds from the Department through the website.
          The current thresholds are provided in Article 2.1-1, Act 57 Threshold Amounts.
          The thresholds that are effective on January 1 for the current year have been
          posted on the Commonwealth’s website at the following address:

            http://www.dgs.state.pa.us/dgs/CWP/view.asp?A=353&QUESTION_ID=113753

             If the above address is changed, the site may be located by doing a search of the DGS
                                       website for the word “thresholds”

                  The above site may be found by going to the Commonwealth’s web address
                                   http://www.state.pa.us/PAPower/

                    and doing a word search (PA Power Search) for “Act 57 Thresholds”.
          The Construction Support Office informs the System’s Office of Chief Counsel
          as to the availability of the updated thresholds. The Chief Counsel then prepares a
          memo for transmission to the Universities, informing them of the updated thresholds.




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       3. “NO-BID” OR “COMPETIVE BID” PROCUREMENT THRESHOLD
          $10,000 Original Threshold Amount ..........(Adjusted Annually – See Article 2.1-1)
          a. NO-BID PROCUREMENT
              •   Act 57 in Section 514 discusses requirements for small procurements and
                  specifies the following:
                  The head of the Purchasing Agency may authorize, in writing,
                  procurements without formal bid procedures, if the following apply:
                    - If the procurement is not the subject of a Statewide Requirements Contract
                      between the Purchasing Agency and a Contractor,
                    - If the amount for a supply or service does not exceed the amount
                      established by the Purchasing Agency for small, no-bid procurements.
                  The department may authorize the no-bid procurement of construction
                  projects that do not exceed a total construction cost of $10,000 (adjusted
                  annually by the CCCI)
                    - Projects may not be artificially divided so as to constitute a small
                      procurement that is under the threshold.
                    - Total Construction Costs means the cost of all separate prime contracts
                      that constitute the project. Projects may not be artificially divided into
                      separate contracts so as to constitute a small procurement that is under the
                      threshold.
                  Note: A University’s business policies may have more stringent No-Bid
                           Requirements that must be followed.
              •   The Office Of Chief Counsel’s Manual For Preparing And Processing
                  Contracts For Goods And Services provides the following instructions in
                  Section IV, Methods of Source Selection, E. Small Procurements:
                   “Although no formal bidding is required, universities must contemplate prudent
                    business practices and should solicit at least three telephone bids, when possible ,
                    with at least one such potential contractor being a woman-based or minority-based
                    entity.”
                   “It should be the university’s practice that, despite no obligation for formal bidding,
                    certain cases for economic benefit may dictate that formal bidding is utilized.
                    Regardless, the selected contractor should not only be the lowest responsive bidder,
                    but a responsible one as well.”
                   “The selected contractors should have their bid confirmed in writing in a subsequent
                    SPC containing the specifics of the procurement completed, as noted in this section
                    of the manual.”
          b. COMPETITIVE BID PROCUREMENT
              •   Projects that exceed the $10,000 Original Threshold Amount must be formally
                  advertised and competitively bid, and awarded to the lowest, responsive, and
                  responsible bidder.
                    - Projects may not be artificially divided so as to constitute a small
                      procurement that is under the threshold.
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       4. BONDING THRESHOLDS
          BID, PERFORMANCE, PAYMENT, & MAINTENANCE
          Various Original Threshold Amounts .......(Adjusted Annually – See Article 2.1-1)
                     See Article 2.1-2 for tabulation of when bonds are required
          • Bid Guarantee. A Bid Guarantee is discretionary for any project.
          • Performance Bond       (Original Threshold Amounts shown)
               Thresholds for Contract          Bond Use Is
                                                                         Amount of Bond
                       Amounts            Discretionary or Required
                  Less Than $25,000             Discretionary
                 $25,000 to $100,000               Required         50% Of Contract Cost (min.)
                   Over $100,000                   Required           100% Of Contract Cost
          • Payment Bond            (Original Threshold Amount shown)
               Thresholds for Contract          Bond Use Is
                                                                          Amount of Bond
                      Amounts             Discretionary or Required
                   Over $100,000                   Required            100% Of Contract Cost
          • Maintenance Bond. A Maintenance Bond is discretionary for any project.
            For the above, Discretionary means “at the discretion of the System”.
            Required bond forms are included in Bid Package & Standard Forms of Agreement.
            Refer to act of December 20, 1967 (P.L.869, No.385), known as the
                      Public Works Contractors' Bond Law of 1967.
          • Sole Source Procurements. The Chief Counsel recommends that consideration be
            given to requiring bonds for Sole Source Contracts because no other firm may be
            able to provide the service or construction.

       5. SEPARATE PRIME PROCUREMENTS THRESHOLD
          $25,000 Threshold Amount .................... (Fixed Threshold, Not Adjusted Annually)
          • Projects with Total Construction Costs equal to or exceeding $25,000
            are subject to the Act of May 1, 1913 (P.L.155, No.104), entitled "An act regulating
            the letting of certain contracts for the erection, construction, and alteration of
            public buildings”, known as the Separations Act. The threshold applies to the Total
            Project and not to individual contracts within a Total Project.
            Total Construction Costs means the cost of all separate prime contracts that
            constitute the project.       Projects may not be artificially divided into separate
            contracts so as to constitute a small procurement that is under the threshold.
          • Projects with Total Construction Costs less than $25,000 are not subject to the
            Separations Act and may be awarded in accordance with Section 511 of Act 57.
          • Individual Prime Contracts with Construction Costs exceeding $4,000 (fixed)
            are subject to the Separations Act.
          • Separate Primes, as defined in the Separations Act, include work for Plumbing,
            HVAC (Heating, Ventilation, and Air Conditioning), and Electrical Construction.
            General Construction is not covered by the Act and is not required to be a Separate
            Prime Contract.
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       6. PREVAILING WAGES THRESHOLD
          $25,000 Threshold Amount .................... (Fixed Threshold, Not Adjusted Annually)
          Prevailing Wages are required for construction, reconstruction, demolition, alteration,
          and/or repair work other than maintenance work, done under contract and paid for in
          whole or in part out of the funds of a public body where the estimated cost of the total
          project is in excess of twenty-five thousand dollars ($25,000). This does not include
          work performed under a rehabilitation or manpower-training program.
          The Prevailing Wage Act, Act No. 442 August 15, 1961 (P.L.987) as amended
          August 9, 1963, provides the following definition:
             "Maintenance work" means the repair of existing facilities when the size, type,
              or extent of such facilities is not thereby changed or increased.

                                          NOTE – MAINTENANCE
              This definition of "Maintenance work" is from Act No. 442 and is different from the
              definition of “Maintenance” in Act 188. These definitions are provided for different
              purposes. The definition in Act No. 442 applies to the Prevailing Wages Threshold.
              The Construction Support Office can provide other information concerning the definition
              and examples of “maintenance” to help the Universities determine when projects are
              “maintenance” for the purposes of Prevailing Wages.
              The final determination of when projects are “maintenance” for the purposes of
              Prevailing Wages rests with the Department of Labor and Industry. When there is any
              question, a determination should be requested from the Department of Labor and
              Industry before the project is advertised.
              Maintenance is also defined for other purposes in Act 188. See Sec A of this Chapter.

                          NOTE - MAINTENANCE PROJECTS OVER $100,000
                                             According to L&I,
               Prevailing Wage Rates are not required for maintenance projects over $100,000.

             NOTE - RESIDENTIAL WAGE RATES & COMMERCIAL WAGE RATES
                                    See Article 2.1-3 for discussion of
                      Prevailing Wage Rates – Residential Rates For Student Housing.

       7. PROCUREMENT DECISION DOCUMENT
          The Procurement Decision Document should be used by the University to determine
          and document the following:
              • Determination of the Contract Form
              • Determination of Bonds required for the project
              • Determination of the form of Public Notice
          The Procurement Decision Document
              • should explain reasons for the determinations and for apparent exceptions to
                 usual methods, including a risk analysis for exceptions.
              • should be reviewed and signed by the University’s Contract Officer,
                 indicating approval.
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                                     Article 2.1-1
                     Annually Adjusted Thresholds




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                                     Article 2.1-2


                  Procurement Decision Document




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Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.1
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                                     Article 2.1-3

                     Prevailing Wage Rate
             Residential Rates For Student Housing

     This Article 2.1-3 also includes related information in the following:
                                  Article 2.1-3a
                              THE LETTER FROM
                   Pennsylvania Department Of Labor & Industry
                         Labor Law Compliance Division
                     James A. Holzman, Deputy Chief Counsel
                                  July 11, 2002


                                Article 2.1-3b
                 MEMORANDUM NO. 130, MARCH 17, 1978
                          U.S. Department Of Labor
           Standard Of Comparison “Projects Of A Character Similar”
                     Under Davis-Bacon And Related Acts




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Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.1
Chapter 2 – The Process Of Contract Procurement For Facilities Projects            Article 2.1-3
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          Pennsylvania State System of Higher Education
                  Facilities Manual - Volume 30
          Engineering / Architectural Instructions Manual


                              Chapter 2.2
                      Construction Contract Forms


CHAPTER 2.2             TABLE OF CONTENTS
A. STANDARD CONTRACT FORMS............................................................ (See Article 2.2-1)
B. SELECTION OF CONTRACT FORM


CHAPTER 2 .2 LIST OF ARTICLES
Article 2.2-1   Current List of Construction Contract Forms




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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                             Chapter 2.2
                     Construction Contract Forms


A.     STANDARD CONTRACT FORMS
       The System has created various standard forms of Construction Contracts that are available to the
       Universities for the purposes of performing construction, maintenance, and repairs for facilities
       projects. The Construction Contract Forms, known as Standard Forms Of Agreements For
       Facilities Projects, are listed in Article 2-3 - Construction Contract List. These contract forms
       and the procedures to administer them are included and discussed in the Facilities Manual,
       Volume 50, Construction Contract Procurement & Administration For Facilities Projects.
       All contracts that utilize one of the below Contract Forms must be reviewed and approved by
       University Legal Counsel and the Office of the Attorney General. All contracts that exceed
       $500,000 for the contract’s term must be reviewed by the Office of General Counsel. Approval
       times should be considered in the execution process.

       TYPES OF CONTRACTS & CONTRACT FORMS (See next page for more info)
       There are 5 Contract Types by which the Standard Forms Of Agreements For Facilities
       Projects have been categorized as follows:
       1. Type One Construction Contracts                                                     Specific Projects
           1A.   71K100       Specific      Facilities Projects < $25,000(fix) (Construction/Maintenance/Repair)
           1B.   71K110       Specific      Facilities Projects > $25,000(fix) (Construction/Maintenance/Repair)
       2. Type Two Construction Contracts                           Open End Contracts With Unit Prices
           2A.   SSHE-120     Open End      Facilities Requirements Contracts (Prevailing Wage)
           2B.   SSHE-121     Open End      Facilities Requirements Contracts (Non-Prevailing Wage)
       3. Type Three Construction Contracts                                           Qualification Contracts
           3A.   71K150     Open End Qualified Separate Primes Contract for Facilities Projects
                 Includes Separate Primes of Electrical, Plumbing, HVAC, Mechanical, Fire Protection
                 Includes General Construction which is not a Separate Prime
                 Includes Disciplines, such as Elevators, Asphalt Paving, and others appropriate for Qualification
       4. Type Four Construction Contracts                                           Design Build Contracts
           4A.   SSHE (tba)     Specific Design / Build Projects
       5. Type Five Construction Statements                                         Qualification Statements
              5A. SSHE (tba)         Statement of Qualification
_____________________________________________________________________________________________
Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.2
Chapter 2 – The Process Of Contract Procurement For Facilities Projects             Page 3 of 7
Chapter 2.2 – Construction Contract Forms
                                                                                                Issued April 2003



                TYPES OF CONTRACTS & CONTRACT FORMS
                     The below provides brief descriptions explaining the use of the
             Contract Types and the Standard Forms Of Agreements For Facilities Projects

1. Type One Construction Contracts                                                        Specific Projects
   1A.    71K100      Specific   Facilities Projects < $25,000         (Construction/Maintenance/Repair)
   1B.    71K110      Specific   Facilities Projects > $25,000         (Construction/Maintenance/Repair)
   •     The 71K100 Contract Form is a Specific Contract for Facilities Projects used when
         Contract Amounts (Total Project Costs) are less than the $25,000 threshold (Fixed
         Threshold).
   •     The 71K110 Contract Form is a companion to the 71K100 Contract Form and is a
         Specific Contract for Facilities Projects used when Contract Amounts (Total Project
         Costs) are expected to be greater than the $25,000 threshold (Fixed Threshold).

2. Type Two Construction Contracts                                 Open End Unit Price Contracts
   2A.    SSHE-120    Open End     Facilities Requirements Contracts       (Prevailing Wage)
   2B.    SSHE-121    Open End     Facilities Requirements Contracts       (Non-Prevailing Wage)
   •     The SSHE-120 & SSHE-121 Contract Forms are Open End Facilities Requirements
         Contracts. A Requirements Contract is an Open End Contract that specifies only Unit
         Prices for Specific Items under which Individual Work Orders are issued.
   •     One Contractor at a University is selected based on a satisfactory response to an
         Invitation to Bid or to a Request for Proposal that solicits Unit Prices for specific types of
         work. Individual Work Orders are then issued to the Contractor for each project during
         the term of the Open End, Requirements Contract.
         The selection of more than one Contractor would provide differing Unit Prices, therefore,
         possibly negating the selection of a Contractor for an Individual Work Order based on the
         lowest price.
   •     Forms have been developed for each of a Prevailing Wage Project and Non-Prevailing
         Wage Project.

3. Type Three Construction Contracts                                           Qualification Contracts
   3A.    71K150     Open End      Qualified Separate Primes Contract for Facilities Projects
   •     The 71K150 Contract Form is a Qualification Contract. Contractors are determined b      y
         the System to be qualified to perform the work of a Separate Prime or Discipline based
         on submission of a satisfactory response (Qualification Application) to an Invitation To
         Qualify. The Qualified Contractors are provided the opportunity to respond to Invitations
         To Bid (or Requests For Proposal, as necessary). Projects are awarded to the lowest
         responsible and responsive bidder with the execution of an Individual Work Order.
   •     For contracts NOT expected to exceed $1,000,000 (71K150 only) for the Contract Term,
         71K150 Contract Form does not require the signature of the Office of General Counsel.
   •     For contracts expected to exceed $1,000,000 (71K150 only) for the Contract Term,
         71K150 Contract Form does require the signature of the Office of General Counsel.

_____________________________________________________________________________________________
Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.2
Chapter 2 – The Process Of Contract Procurement For Facilities Projects             Page 4 of 7
Chapter 2.2 – Construction Contract Forms
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4. Type Four Construction Contracts                                        Design Build Contracts
   4A.     SSHE (tba) Specific      Design / Build Projects                           NOT YET AVAILABLE
   The SSHE (no designation yet) Contract Form is for Design/Build Projects and is still in
   development. There are issues needing resolution relating to requirements for Prevailing
   Wages, Separate Primes, and Minority and Women Owned Business Enterprise participation.

5. Type Five Construction Statements                                      Qualification Statements
   5A.     SSHE (tba)    Statement of Qualification                               (See Example below)
   Qualification Statements are not Contract Forms, but are statements that declare a firm to be
   qualified in an area of expertise for which an Invitation To Qualify was issued.
   Qualification Statements are not contracts or commitments to provide qualifications or to
   purchase any services, but are a method to identify qualified entities that will most likely be
   able to provide creative proposals to meet requirements of a project.

   EXAMPLE: Qualified Private Developers for Student Housing Projects
   •     Qualification Statement. A Qualification Statement is used when a Private Developer is
         determined to be qualified to finance, design, construct, and operate student housing projects, on
         campus and/or off-campus. Qualification is determined based on the submission of a satisfactory
         response (Qualification Application) to an Invitation To Qualify. The Qualified Developer is
         then provided the opportunity to respond to Invitations To Bid (or Requests For Proposal, as
         necessary). The project is awarded to the best value proposal.
   •     Not A Contract Or Commitment. The Qualification Statement for a Private Developer is not a
         contract or commitment to provide a qualification or to purchase any services, but is a method to
         identify a Private Developer that will most likely be able to provide creative proposals to meet the
         diverse student housing needs at the System’s Universities.
   •     Contract arrangements are very complex. Arrangements utilize a public-private cooperative
         approach featuring so-called “off balance sheet financing”, a ground lease with the private
         developer, and tax exempt bond financing.
   •     Generally, the University has little or no privity of contract with the parties actually
         developing the project. However, there may be University involvement for an on-campus
         project.
   •     The System is not necessarily a party in the contracts for the Private Development Project.
         However, the Chancellor’s Office, through the Chief Counsel’s Office and the Facilities
         Division, is extremely interested in the selection of a Qualified Private Developer and the
         arrangement of contracts that result in the financing, design, construction, and operation of
         the project.
   •     For any Privately Developed Project, the Chancellor’s Office will be involved in certain
         aspects of project development and review.
   •     Detailed discussion of procedures involved in a Private Development Project are not within
         the scope of this manual and are handled separate from the instructions of this manual.
   •     CONSULT WITH THE FACILITIES DIVISION AND THE CHIEF COUNSEL’S
         OFFICE REGARDING ANY PRIVATE DEVELOPMENT PROJECT.

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Chapter 2 – The Process Of Contract Procurement For Facilities Projects             Page 5 of 7
Chapter 2.2 – Construction Contract Forms
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B.     SELECTION OF CONTRACT FORM

       1. PROFESSIONAL’S INVOLVEMENT
          The Design Professional may be asked to participate in the selection of the
          appropriate Contract Form for any given construction project.
          1A. 71K100       Specific   Facilities Projects < $25,000 (Fixed) (Constr./Maint./Repair)
                The Design Professional may occasionally develop designs to be constructed
                under Type One Contracts (Specific Facilities Projects) less than the $25,000
                threshold (Fixed Threshold).
          1B. 71K110       Specific   Facilities Projects > $25,000 (Fixed) (Constr./Maint./Repair)
                The Design Professional will most often design projects to be constructed under
                Type One Contracts (Specific Facilities Projects) that exceed the $25,000
                threshold (Fixed Threshold).
          2A. SSHE-120 Open End Facilities Requirements Projects              (Prevailing Wage)
          2B. SSHE-121 Open End Facilities Requirements Projects          (Non-Prevailing Wage)
                The Design Professional may occasionally develop designs to be constructed
                under Type Two Contracts (Open Ended Unit Price Contracts).
          3A. 71K150       Open End Qualified Separate Primes Contract for Facilities Projects
                The Design Professional may occasionally develop designs to be constructed
                under Type Three Contracts (Qualification Contracts). The implementation of
                this form occurred in 2001 with the Design Of Sprinkler Systems In Residence
                Halls for the 14 Universities. The use of this contract is expected to increase.
          4A. SSHE (tba) Specific     Design / Build Projects                   Not Yet Available
                The Design Professional is not usually involved in the selection of a Contact
                Forms for projects that are constructed using Type Four Contracts
                (Design/Build Methodology)
          5A    SSHE (tba) Open End Qualified Lease/Purchase Developers (3rd Party Developer)
                The Design Professional is not involved in the selection of Qualification
                Statements for the Private Development of Student Housing. These projects are
                strictly handled by the System.


       2. CONSIDERATIONS FOR SELECTION OF CONTRACT FORM
          The appropriate Contract Form for a construction project is selected while
          considering the following:
              • Threshold Amounts
              • Project Type and Complexity
              • Procurement Decision Document
              • Available Construction Contact Forms
              • Advertisement to Firms on Qualification Lists
                  (Work Orders issued under Qualification Contracts)
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Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.2
Chapter 2 – The Process Of Contract Procurement For Facilities Projects             Page 7 of 7
Chapter 2.2 – Construction Contract Forms
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                                     Article 2.2-1

                             Current List
                                  of
                     Construction Contract Forms




_____________________________________________________________________________________________
Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.2
Chapter 2 – The Process Of Contract Procure ment For Facilities Projects           Article 2.2-1
Chapter 2.3 – The Bid Package
                                                                                             Issued April 2003




          Pennsylvania State System of Higher Education
                  Facilities Manual - Volume 30
          Engineering / Architectural Instructions Manual


                                     Chapter 2.3
                                   “Bid Documents”
                                                    Or
                                      “Bid Package”

                             The terms “Bid Documents” and “Bid Package”
                              are used interchangeably in the E/A Manual




CHAPTER 2.3              TABLE OF CONTENTS
A. OVERVIEW
B. DEFINITIONS
C. CONTENTS OF BID PACKAGE ............................................................... (See Article 2.3-1)
D. PREPARATION
E. BID FORM – ONE BOUND IN BID PACKAGE & SECOND SEPARATE COPY


CHAPTER 2.3              LIST OF ARTICLES
Article 2.3-1   Bid Package & Contract Documents




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Chapter 2.3 – The Bid Package
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Chapter 2.3 – The Bid Package
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           Pennsylvania State System of Higher Education
                   Facilities Manual - Volume 30
           Engineering / Architectural Instructions Manual


                                  Chapter 2.3
                                “Bid Documents”
                                               Or
                                   “Bid Package”

                          The terms “Bid Documents” and “Bid Package”
                           are used interchangeably in the E/A Manual




A.     OVERVIEW
       This chapter briefly discusses preparation of the Bid Package and provides an outline of
       the Bid Package.
       Chapter 3 will detail the specific items included in the Bid Package.


B.     DEFINITIONS
       Detailed definitions are provided in Chapter 16, Definitions.
       • Bid Package or Bid Documents. Includes the Bid Manual and the Drawings.
          - Project Manual.             The 8 1/2'” x 11” Bound Portion of the Bid Package.
          - Drawings.                   Design Professional’s Drawings.
       •   Contract Documents. Includes Contract Agreement, Bid Package, Addenda, Bid
           Proposal (Bid Form), Contract Bonds, and any modifications (Change Orders or as
           appropriate).




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Chapter 2 – The Process Of Contract Procurement For Facilities Projects             Page 3 of 5
Chapter 2.3 – The Bid Package
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C.     CONTENTS OF BID PACKAGE
       An outline of the contents of the Bid Package in provided in Article 2-4
       The Bid Package is divided into the following major 6 sections:
                Section 1      Bid Information & Instructions
                Section 2      Proposal Instructions & Bid Form
                Section 3      Contract Form
                Section 4      Contract Conditions
                Section 5      Technical Specifications
                Section 6      Contract Drawings
       The Bid Package is not necessarily labeled and divided with the above Sections 1 but    -6,
       the sections of the package are ordered as above.
       The new Bid Protest Procedures provided in Act 142 of 2002 will be incorporated into
       Rider D of the Agreement.
       Make sure the contract scope meets the University’s needs and is contractually correct.



D.     PREPARATION
       The Design Professional prepares or assembles the Bid Package.
       The package is developed based on the Scope of Work that has been developed for the
       project, agreed to by the System, and is contained in the Professional’s Agreement with
       the System – “Standard Form of Agreement for Professional Design Services”.
       As defined in the Agreement, both the Design Professional and the University have
       responsibility in the preparation of the Bid Package, whether separately prepared or
       jointly prepared.
       •   Design Professional’s Responsibility. The aspects of the Bid Package that are part of
           the Design Professional’s responsibility are described in the Professional’s
           Agreement.
       •   University’s Responsibility.     Certain aspects of the Bid Package are generally
           performed by the University, such as establishing the scope of the project, approving
           the construction schedule, and approving the design concept.
           • If the University does not sign the title page of the drawings, the University
               should provide a letter to the Design Professional that the Bid Package has been
               reviewed by the University.
           • The Design Professional should assure that the Bid Package is complete when
               issued and all necessary University approvals have been obtained.
           University’s “Options”. Certain aspects of the Bid Package, such as the Notice to
           Contractors, the Bid Form, and Request for Prevailing Wage Determination, may be
           “optionally” prepared by the University. Such “options” shall be reflected in the
           Professional’s Scope of Work.
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Chapter 2 – The Process Of Contract Procurement For Facilities Projects             Page 4 of 5
Chapter 2.3 – The Bid Package
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          Universities may differ in their “optional selections” in preparation of the Bid
          Package.
          When a University elects to prepare certain documents or perform certain tasks
          involved in preparation of the Bid Package, the University and the Design
          Professional should coordinate performance of that work, allowing sufficient time to
          incorporate final documents, whether prepared by the University or the Design
          Professional, into the Bid Package, making a complete Bid Package.
          Before the University elects to perform work related to preparation of the Bid
          Package, the University should evaluate the following:
             - Are University staff absolutely required to prepare elected documents?
             - Would the University’s staff be better utilized in performing other tasks and
                 having the Design Professional prepare optional items?
             - Does University staff have sufficient workload, such that optional items
                 should be prepared by the Design Professional?


E.     BID FORM – TWO COPIES REQUIRED
       ONE BID FORM BOUND IN BID MANUAL
       ONE BID FORM PROVIDED SEPARATELY
       Two copies of the Bid Form are provided to each requestor of the Bid Package as
       follows:
            1. One copy of the Bid Form is included in the Bid Manual, the 8-½” x 11”
                bound portion of Bid Package that is provided to each requestor.
            2. A second copy of the Bid Form, separately bound, is provided to each requestor
                of the Bid Package to be used for the Bidder’s proposal submission.




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Chapter 2 – The Process Of Contract Procurement For Facilities Projects             Page 5 of 5
Chapter 2.3 – The Bid Package
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                                     Article 2.3-1

                                    Bid Package




_____________________________________________________________________________________________
Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.3
Chapter 2 – The Process Of Contract Procurement For Facilities Projects            Article 2.3-1
Chapter 2.3 – The Bid Package
                                                                                                                 Issued April 2003




             Pennsylvania State System of Higher Education
                     Facilities Manual - Volume 30
             Engineering / Architectural Instructions Manual


                                             Chapter 2.4
                                           The Design Phase


CHAPTER 2.4                   TABLE OF CONTENTS
A. OVERVIEW
B. PROFESSIONAL PROCUREMENT AND ADMINISTRATION
C. SEPARATE PRIMES
D. BID FORMATS AND BID COMPONENTS .............................................. (See Article 2.4-1)
E. MBE/WBE PROGRAM & POLICY............................................................ (See Article 2.4-2)
F. PROPRIETARY & NON-PROPRIETARY SPECIFICATIONS
G. FINISHES ..................................................................................................... (See Article 2.4-3)
H. LIQUIDATED DAMAGES



CHAPTER 2.4                   LIST OF ARTICLES
Article 2.4-1       Defined Bid Formats With Bid Components
Article 2.4-2       MBE/WBE Proactive Effort Policy & Provisions
                    Proactive Solicitation & Encouraged Participation In System Facilities Projects
                    For Certified MBE/WBE Enterprises
Article 2.4-3       Finishes – Specifications for Acquisition




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Chapter 2 – The Process Of Construction Contract Procurement                       Page 1 of 35
Chapter 2.4 – The Design Phase
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Chapter 2 – The Process Of Construction Contract Procurement                       Page 2 of 35
Chapter 2.4 – The Design Phase
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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                                 Chapter 2.4
                               The Design Phase



A.     OVERVIEW
       This chapter briefly discusses certain aspects of the Design Phase of a project, including
       the following:
       1. There are certain aspects of the Design Professional’s Agreement that the University
          must keep in mind during the execution of the design, such as the Design
          Professional’s Scope of Work, the Design Schedule, and actions that may affect the
          Professional’s Fee.
       2. There are certain decisions that must be made regarding the selection of the Separate
          Prime Contracts, how finishes will be specified, and the need for any components that
          are Proprietary.
       3. The Design Professional and the University must decide on values to be assigned for
          reasonable participation by Certified MBE/WBE Firms.
       4. The University must determine and justify amounts to be assigned for Liquidated
          Damages.
       5. The Design Professional and the University must decide on the best Bid Format to be
          used for the Project.




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Chapter 2.4 – The Design Phase
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Chapter 2 – The Process Of Construction Contract Procurement                       Page 4 of 35
Chapter 2.4 – The Design Phase
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B.     PROFESSIONAL PROCUREMENT & ADMINISTRATION

       1. PROFESSIONAL CONTRACTS
          The design of a project is either performed by the University or by a Design
          Professional. If by the Design Professional, design is performed either under
                  • a Specific Contract for Professional Services              or
                  • an Open Ended Contract for Professional Services
          a. Specific Contract for Professional Services. Currently, for the design of a
             specific project, the University performs all the procedures for the procurement of
             a Design Professional, including advertisement, review of proposals, selection of
             the Design Professional, negotiations with the Design Professional, and execution
             of the contract
          b. Open Ended Contract for Professional Services. Design Professionals holding
             Open End Contracts are either procured by the Chancellor’s Office or the
             University.
              •   Centrally Held Open End Agreements. Currently, the Chancellor’s Office
                  provides a limited number and type of Professional Services under Open End
                  Agreements. These Agreements have been utilized by the Universities for
                  certain projects.      Individual Work Orders are written against these
                  Agreements by the Office of the Chancellor or by the University under the
                  supervision of the Construction Support Office.
              •   University Held Open End Agreements.              Predominantly, the Universities
                  individually procure their own Design Professionals under Open End
                  Agreements for various types of architectural and engineering services.
              •   Term of the Agreement. Currently, Open End Agreements consists of 2 initial
                  years, with 2 options for renewal of 2 years each, for a maximum of 6 years.
              •   Agreement Limits. Current limits placed on Open End Agreements for
                  Professional Services are as follows:
                     Compensation Limit             $475,000 Per Year
                     Individual Work Limit          $100,000 Per Project
                     Limits are exceeded as approved and amended by the Chancellor’s Office.
          The above contract forms and their limits are those that are currently used by the
          System. The System regularly reviews the procurement of Professionals in order to
          improve the efficiency of procurement by the Universities within Act 57
          requirements, whether specific procurement by an individual University, regional
          procurement by several Universities, or central procurement by the Chancellor’s
          Office. The System is expected to develop additional types of specific, regional, and
          central procurements.

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Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.4
Chapter 2 – The Process Of Construction Contract Procurement                       Page 5 of 35
Chapter 2.4 – The Design Phase
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       2. PROFESSIONAL’S SCOPE OF WORK
          The Scope of Work for design services is developed and contracted for as follows:
          • After a Design Professional has been appropriately selected, the University will
               issue a Request for Proposal that includes a Scope of Work. The U       niversity may
               note any exceptions to the EA Manual.
          • The Design Professional will develop a Fee Proposal for the Scope of Work
               developed by the University. The Fee Proposal may include clearly noted
               revisions to the Scope of Work that should first be discussed with the University.
               The Fee Proposal should not exceed the expectancies of the Scope of Work.
          • The University and the Design Professional will negotiate and determine the final
               Fee Proposal for a negotiated Scope of Work that is to be included in the Contract
               Agreement or Individual Work Order.
          During the process of the work, both the Design Professional and the University must
          be aware of and keep in mind the negotiated Scope of Work that was agreed upon and
          included in the Agreement.
          In discussing and requesting any services during the process of the work, the
          University should determine if the services are part of the negotiated Scope of Work
          or if services could be considered to be additional work.
          Any additional work approved by the University and performed by the Design
          Professional must be included in an appropriately executed Amendment to the
          Contract Agreement or Individual Work Order.

       3. PROFESSIONAL’S SCHEDULE
          a. Design Professional’s Adherence to Schedule
             The Design Professional is expected to adhere to the Time Schedule that was
             agreed to and included in the Professional’s Agreement with the University. The
             Agreement includes remedies for a Design Professional’s failure to adhere to the
             schedule, if the failure is the fault of the Design Professional. Those remedies, as
             stipulated in the Professional’s Agreement, may include:
             • amending the schedule and directing the Professional to expeditiously proceed
                 with the design of the Project, in which case the System may hold the
                 Professional responsible for any costs attributable to the delay
             • termination of the Agreement for default of the Professional, in accordance
                 with the provisions of the General Conditions of the Agreement.
             The Design Professional’s ability or inability to meet the Time Schedule should
             be reflected in the University’s written review of the Design Professional’s
             performance.
          b. University’s Performance Under The Agreement
             The University should be aware of aspects of the University’s work that may
             affect the Professional’s performance, such as, length of time required to review
             design submissions. If the University exceeds any prescribed time limits for
             review, there must be sufficient and documented justification, otherwise, the
             University could become part of the cause of delays in completion of the design.
_____________________________________________________________________________________________
Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.4
Chapter 2 – The Process Of Construction Contract Procurement                       Page 6 of 35
Chapter 2.4 – The Design Phase
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       4. PROFESSIONAL’S FEE & MULTIPLE BASE BIDS
          When using Multiple Base Bid Formats, whether Additive, Deductive, or Matrix forms,
          and when using Alternate Items, the basis for the Architect’s Fee must be considered with
          respect to providing a fair and reasonable fee for the preparation of all the necessary
          designs, whether they are selected for construction or not.
          In order to prepare Bid Documents that clearly represent the Project and the intent of
          all base Bids to the Bidders, the Design Professional may need to produce additional
          designs, specifications, and drawings to show all Base Bid variations.
          The Professional’s Design Fee negotiated for a Project should be based on the total
          design value to include all Base Bids, whether the Base Bid forms include Additives,
          Deductives, Matrices, or Alternates.
          The University should recognize that if a Project is awarded that is not the largest
          Scope Of Work that has been designed by the Design Professional and desired by the
          University, then the Design Professional’s Fee will be a larger percentage of
          construction than if the desired Project was obtained. See example below:
              Example: The Design Professional provides Deductive Base Bid Designs that
              result in the following bids and award:
                     Base Bid 1 = $600,000          Largest Scope of Work
                     Base Bid 2 = $550,000
                     Base Bid 3 = $500,000          Least Scope of Work        Awarded Project
              If the Design Professional’s Fee is $50,000, the fee should not be solely evaluated
              as a percentage of Base Bid 3 (10% of Awarded Project), but could be evaluated
              as percentage of the Base Bid 1 (8.3% of Awarded Project). In evaluating any
              fee, remember that the Design Professional was required to design multiple Base
              Bids (multiple Scopes of Work), not just the awarded Base Bid.




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C.     SEPARATE PRIMES

       1. GENERAL DISCUSSION OF SEPARATE PRIME CONTRACTS
          a. Definition
              Separate Prime Contract – This Discussion. For the purposes of discussion in this
              chapter, we want to deal in general terms as to the discussion of Separate Prime
              Contracts. Here, we are not dealing with the separation of trades, but the
              execution of individual contracts by Separate Prime Contractors. Separate Prime
              Contractors are Contractors with which the System enters into a Contract
              (Separate Prime Contract) to complete portions of the separately bid work.
              Separation of Trades – Not This Discussion. In the context of construction
              projects for the Pennsylvania State System of Higher Education, the term Separate
              Primes is used in relation to The Separations Act, commonly known as the
              “Separate Primes Legislation”. That Act of May 1, 1913 (P.L. 155, No. 104), is
              "An act regulating the letting of certain contracts for the erection, construction,
              and alteration of public buildings" and deals with the separation trades of
              including Plumbing Construction, HVAC Construction, and Electrical
              Construction. That act and its related thresholds for applicability are discussed in
              Chapter 2.1.


       2. MULTI - PRIME COORDINATION
          •   Typically, the General Contractor is identified as the “lead” contractor and is
              responsible to coordinate construction activities as specified in various sections of
              the specifications to assure efficient and orderly installation of each part of the
              work. This requirement is evident in the following Division I Specifications:
                      Section 01040      Project Coordination
                      Section 01200      Project Meetings
                      Section 01300      Submittals
                      Section 01315      CPM Scheduling
          •   The identified “lead” contractor is responsible for the coordination, production,
              maintenance, and distribution of overall construction schedule.




_____________________________________________________________________________________________
Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.4
Chapter 2 – The Process Of Construction Contract Procurement                       Page 9 of 35
Chapter 2.4 – The Design Phase
                                                                                  Issued April 2003



       3. QUALIFIED SEPARATE PRIMES
          The Pennsylvania State System of Higher Education does, to a certain extent, qualify
          Contractors for the performance of certain Separate Prime Work. Chapter 2.2
          discusses Type Three Construction Contracts (Qualification Contracts –
          Contract Form 71K150).
          When the Qualification Process is used to procure construction, a list of Pre-Qualified
          Firms is maintained by the Construction Support Office and used for advertisement of
          projects, as allowed by Act 57. The Qualified Firms have executed Qualification
          Contracts with the System. In response to an Invitation To Bid (or Requests For
          Proposal, as necessary), the Qualified Firms may submit Bid Proposals. The project
          is awarded to the lowest responsible and responsive Bidder with the execution of an
          Individual Work Order.
          There are no dollar limits for these Qualification Contracts, other than the need for
          the signature of the Office of General Counsel when the compensation is expected to
          exceed $1,000,000 for the term of the Qualification Contract.




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D.     BID FORMATS AND BID COMPONENTS

       1. TYPES OF BID FORMATS & BID COMPONENTS
          There are currently two types of Bid Formats (the One Price Bid Format and the
          Multiple Base Bid Format). These Bid Formats are composed of one or more Bid
          Components (Lump Sum Amount, Unit Price Amounts, Total Bid Amount, Alternate
          Price Amounts).
          The Multiple Bid Format can take one of three forms (Deductive Base Bid Format,
          Additive Base Bid Format, or Matrix Base Bid Format).

          a. Types of Bid Formats. There are two basic types of Bid Formats:
                One Price Bid Format
                Multiple Base Bid Format                 (Commonly called Base Bid Format)
          b. Forms of Multiple Base Bid Formats. There are several forms of the Multiple
             Base Bid Format:
                Deductive Base Bid Format         (Preferred Multiple Base Bid Format)
                Additive Base Bid Format
                Matrix Base Bid Format
          c. Bid Components for Bid Formats. Each Bid Format may consist of one or
             more of the following Bid Components:
                Lump Sum Amount
                Unit Price Amounts
                Total Bid Amount         (Includes Lump Sum Amount and Unit Price Amounts)
                Alternate Price Amounts        (Adds or Deducts if utilized during Construction)

       2. AWARD OF PROJECTS
          The creation of a clear Bid Format allowing for the clear and easily decisive award of
          a project is critical.
          a. One Total Bid Amount. In preparing any Bid Format with more than one Bid
             Component, the Design Professional and the University must assure that there is
             only one Total Bid Amount by which the Project will be awarded to the lowest
             responsible and responsive Bidder.
          b. Additional Criteria for Award. If there are additional criteria by which the
             Bidders are to be evaluated, such as certified qualifications (licenses) or certified
             experience (whether by the firm and/or by employees of the firm), that criteria
             should be stated or referenced in the Notice To Contractors.
          c. Competition. Awards must never be made based on “selection of a Contractor”
             for any part of the project. All awards must be based on competition in
             conjunction with meeting any additional criteria.
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       3. APPLICATION OF BID FORMATS & BID COMPONENTS
          In the selection and preparation of a Bid Format, the University needs to consider all
          of the following and their relationships:
          • Scope of Work that is desired for construction
          • Scope of Work that is attainable
          • Allocation that is available for the project
          • Estimated Cost of Project, including any additive or deductive components
          • Adaptability of Project for use of Additive or Deductive Base Bid Format
          • Presence of certain undefined conditions that are conducive to Unit Price Items
          • Presence of certain variable conditions that are conducive to Alternate Price Items
          • Factors affecting Allocation Announcement
          • Possibility of Obtaining Additional Funds
          • The impact that Additive/Deductive Base Bids and Alternates could have on the
               design fees.
          For each type of Bid Format (One Price Bid Format and Multiple Base Bid Format),
          there are various versions that can be used as listed in the following:
          One Price Bid Format                                               See Article 2-5
          a.   One Price Bid Format                                                      Format A
          b.   One Price Bid Format with Unit Price Items                                Format B
          c.   One Price Bid Format with Alternate Price Items                           Format C
          d.   One Price Bid Format with Unit Price and Alternate Price Items            Format D



          Multiple Base Bid Format                                           See Article 2-5
          a. Deductive Multiple Base Bid Format                                          Format A
          b. Additive Multiple Base Bid Format                                           Format B
          c. Matrix Multiple Base Bid Format                                             Format C
          •    The preferred Multiple Base Bid Format HAS BEEN the Deductive Base Bid
               Format. This format starts with a Base Bid No. 1 that includes the full Scope of
               Work that the University wants to c   onstruct for the Allocation. Deducts are then
               provided in successive Base Bids, deducting items by priority, resulting in the
               minimum project that the University wants to receive.
               This manual includes the Additive and Matrix Forms to not prohibit the
               University from using such forms when they are necessary and responsibly used.
               There is opinion that the Additive Form may provide the University with better
               value. Therefore, the University should consider the use of such form.
          •    There may be cases where the University may need to use Unit Price Items and/or
               Alternate Price Items with the Multiple Base Bid Format. The complexity of the
               format should always be a consideration. A format with too many options is not
               recommended. A format should be logical, easy to follow, and easy to edit.
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       4. SELECTION OF BID FORMAT
          The System currently has no strict criteria for the use of a One Price Bid Format or a
          Multiple Base Bid Format. Within the concepts discussed below, the selection of a
          suitable Bid Format is left to the judgment of the University. Also, the University
          should be mindful of the provisions of the Design Professional’s Agreement with the
          System regarding Redesign Requirements Upon Receipt of Bids (see next page). The
          following concepts should be adhered to:

          a. Selection of Base Bid Format - One Price or Multiple Base Bid Format
              One Price Bid Format. Certain projects, by their nature, are limited to the use of
              the One Price Bid Format. The project may be such that there are no components
              of sufficient size that could be deducted or added to the project in order to use the
              Additive or Deductive Base Bid Format.
              Multiple Base Bid Format. The Multiple Base Bid Format, whether additive,
              deductive, or matrix, is used to assure that some level of the project will be
              awarded within the Allocation.
              Additive and Deductive Base Bid Formats are generally used regardless of the
              Preliminary Construction Estimate and the Allocation. However, if the Allocation
              is exceeded to a maximum of 10%, a Deductive Base Bid Format should be used.

          b. Allocation and Scope of Work (Preliminary Design Phase)
              Preliminary Construction Estimate vs. Allocation. Generally, for a well-defined
              design, the Design Professional’s Preliminary Construction Estimate is expected
              to be within 5% to 10% of the Allocation.
              •   For a project that is well defined and can be reasonably estimated, if the
                  Preliminary Construction Estimate exceeds the Allocation by more than 10%,
                  the University will not use the Deductive Base Bid Format in the HOPE
                  of attaining the entire scope of work for Base Bid Number 1.
              •   A project may have components that are less than well defined and cannot be
                  reasonably estimated, whether due to components that are less definable or
                  uncertain market conditions in the construction industry. In that case, if the
                  Preliminary Construction Estimate exceeds the Allocation by 10% to 15%, the
                  University may use judgment and use the Deductive Base Bid Format.

          c. Allocation and Scope of Work (Final Design Phase & Bid Phase)
              Final Construction Estimate vs. Allocation. The Final Construction Estimate
              should not exceed the Allocation for Base Bid No. 1, whether for a One Price Bid
              Format, Deductive Base Bid Format, or Additive Base Bid Format. However, the
              University may use judgment when the Final Construction Estimate exceeds the
              Allocation by as much as 10%. This judgment should be exercised with great
              care, considering the size of the project (the dollar amount of the excess), market
              conditions, and the ability of the University to obtain additional funds.
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          d. Redesign Requirements Upon Receipt of Bids
              Refer to the Standard Form of Agreement for Professional Services, Article 2 for
              requirements as to when the Professional is or not paid for redesign when the
              allocation is exceeded.
                                           UNDER CONSTRUCTION
                  (Further discussion will be provided here in a future revision to this EA manual.




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          e. Announcement of Allocation At The Bid Opening
             For certain Multiple Base Bid Formats, the announcement of the Allocation at the
             Bid Opening, prior to actually opening the bids, is a control to help avoid the
             appearance of bid shopping.
             The possibility of giving the appearance of bid shopping exists when the
             Allocation is not announced at the Bid Opening. The System strives to award all
             projects in accordance with governing regulations. However, in cases where the
             University has followed all mandated regulations, there should be the option to
             add funds to a project when the University’s interests are jeopardized.
             If the Allocation is announced at the Bid Opening, then the Base Bid that most
             closely fits the Allocation should be awarded, unless the University’s interests are
             jeopardized. Otherwise, the project may need to be rebid with the same or a
             revised scope of work.
             If the Allocation is not announced at the Bid Opening and additional funds are
             added to the Allocation to obtain a larger scope of work, the University could be
             viewed as bid shopping if the project is awarded to a Contractor other than the
             one that would have been awarded the project that fits the Announced Allocation.
             The following chart provides criteria regarding the Allocation Announcement and
             obtaining additional fund for the various Base Bid Formats.


                                     BID FORMATS
                                 Allocation Announcement
                                             &
                       Obtaining Additional Funds After Bid Opening
                                            ALLOCATION                      Obtaining
               BID FORMAT                  ANNOUNCEMENT               ADDITIONAL FUNDS
                                             At Bid Opening             After Bid Opening
                                                                          Additional Funds
                                               Announcement               Can Be Obtained
        ONE PRICE BID FORMAT                   Not Required               Without Rebidding

        MULTIPLE BASE BID FORMAT
                                                                          Additional Funds
           Deductive Base Bid Format           Announcement               Can Be Obtained
             (Preferred Format)                Not Required               Without Rebidding
                                                                          Additional Funds
            Additive Base Bid Format           Announcement
                                                                         Cannot Be Obtained
             (Not Used By DGS)                  Required                  Without Rebidding
                                                                          Additional Funds
                                               Announcement
            Matrix Base Bid Format                                       Cannot Be Obtained
                                                Required                  Without Rebidding

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       5. MISCELLANEOUS CONSIDERATIONS
          When using Multiple Base Bid Formats consideration must be given to the following:
                  a. Use of Multiple Base Bid Formats
                  b.   Sufficient Design For Each Base Bid In The Multiple Base Bid Formats
                  c.   Number of Base Bids
                  d.   Delta Between Base Bids
                  e.   Architect’s Fee
                  f.   Separate Prime Contracts
                  g.   MBE/WBE REAA
                  h.   Avoid Bid Shopping and the Appearance Of Bid Shopping (Selecting a
                       Contractor)
                  i.   Clearly identify the Award Amount

          a. Use of Multiple Base Bid Formats
              The Multiple Base Bid Format must be used with extreme care, allowing the
              Bidders to bid on construction and related components that are significant and
              reasonable in size and have the ability to be separated from the basic project. A
              poorly designed Multiple Base Bid Format could confuse the Bidders and result in
              a Bid Protest, thereby, delaying the project.
              There may be cases where the University may need to use Unit Price Items and/or
              Alternate Price Items with the Multiple Base Bid Format.          However, the
              complexity of the format should always be a consideration. A format that has too
              many options is not recommended. A format should be logical, easy to follow,
              and easy to edit.

          b. Sufficient Design For Each Base Bid In The Multiple Base Bid Formats
              In order for Bidders to successfully bid on the various Base Bids for a project, the
              Design Professional must adequately represent each Base Bid in the Bid
              Documents, whether by specification and/or drawings.            This may require
              alternative drawings for each Base Bid.

          c. Number of Base Bids
              When using Additive/Deductive Base Bids, the number of Base Bids selected is
              based on several factors:
              •   The University wants to construct the maximum amount of a project that the
                  Allocation can purchase.
              •   The University must prioritize components that can be added to or deleted
                  from a project to arrive at an amount of construction that the Allocation can
                  purchase.

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          d. Delta Between Base Bids
              When using Additive/Deductive Base Bids, consider the estimated difference
              between consecutive Additive/Deductive Base Bids. The estimated difference
              between Base Bids should be sufficient to realize a significant difference between
              bids.
              This assessment is somewhat subjective based on the size of the project, the
              Allocation, the number of possible Base Bids, and the value of each
              addition/deduction.
              A Construction Estimate must be provided for each Base Bid.
          e. Architect’s Fee                                (Also see Section B of this Chapter)
              When using Multiple Base Bid Formats, whether Additive, Deductive, or Matrix
              forms, and when using Alternate Items, the basis for the Architect’s Fee must be
              considered with respect to providing a fair and reasonable fee for the preparation of
              all the necessary designs, whether they are selected for construction or not.
          f. Separate Prime Contracts
              When using Additive/Deductive/Matrix Base Bids for a project that has multiple
              Separate Prime Contracts, all contracts must show the same relative Base Bid
              Numbers, whether there is a change or not in the Base Bids for all Separate Prime
              Contracts.
              Example: When there is no change between Base Bid No. 1 and Base Bid No. 2
              for any given Prime Contract, Base Bid No. 2 is stated as follows:
                     Base Bid No. 2
                     All work as indicated in Base Bid No. 1.
          g. MBE/WBE Reasonable Effort Award Amount (REAA)
              When using Deductive Base Bids, consider the relationship between the Base Bid
              Estimates and the REAA (Reasonable Effort Award Amount). As the cost of the
              project is reduced through successive Base Bids, the REAA should not become
              excessive in relation to the estimated cost of the Base Bids. This situation would
              most likely occur on small projects rather than large projects.
              The REAA may be specified in two ways:
                  1) A Fixed Dollar REAA for all Base Bids, being a separate amount for each
                     Separate Prime Contract.
                  2) Fixed Dollar REAA for Base Bid No. 1, being a separate amount for each
                     Separate Prime Contract. The Fixed Dollar REAA is determined to be an
                     Approximate Percentage REAA (an amount not published in the Bid
                     Documents). For consecutive Base Bids, the Approximate Percentage
                     REAA is used to determine the Dollar REAA for consecutive Base Bids.


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          h. Avoid Bid Shopping & Appearance of Bid Shopping (Selecting a Contractor)
              In the utilization of any Base Bid Format, the University must avoid Bid
              Shopping and even the appearance of Bid Shopping. Bid Shopping is illegal.
              For Additive and Matrix Base Bid Formats, controls that help a University avoid
              Bid Shopping are as follows:
                  (i) Allocation Announcement. When required, the Allocation is announced
                      before the actual opening of bids at the Bid Opening.
                  (ii) After bids are opened and if the Allocation is exceeded, the University
                       cannot obtain additional funds for a project, unless the project is rebid.
              These controls are required for the Additive Base Bid Format and the Matrix Base
              Bid Format.
              The use of the Deductive Base Bid Format is permitted with some flexibility,
              therefore, the above controls are not required. However, if a Contractor submits a
              bid that is within the Allocation (Example – Contractor One submits the lowest
              bid that is within the Allocation for Base Bid Number 3), the University must not
              obtain additional funds for the project so as to select another Contractor that has
              the lowest bid on Base Bid Number 1 (Example – Contractor Number Two has a
              lower bid than Contractor Number One for Base Bid Number 1, but the low bid is
              higher than the Allocation).
          i. Clearly Identify The Award Amount
              The Base Bid Format must clearly define the basis for award - the amount that
              will be used to award the Contract to the lowest responsible and responsive
              bidder. Therefore, indicate if the Unit Price Items and Alternate Price Items are
              included in the Award Amount.




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E.     MBE/WBE PROGRAM & POLICY
       MBE or Minority Business Enterprise
       WBE or Women's Business Enterprise
       Also refer to Chapter 3 of this EA Manual for additional discussion of MBE/WBE
       information, criteria, and provisions.


       1. DEFINITIONS
          The following definitions are according to the Department of General Services, the
          Bureau of Contract Administration and Business Development (BCABD).
          •   MBE or Minority Business Enterprise - A small business (for-profit business
              concern)] that is one of the following:
              (i)   A sole proprietorship, owned and controlled by a minority.
              (ii) A partnership or joint venture controlled by minorities in which at least 51%
                   of the beneficial ownership interest is held by minorities.
              (iii) A corporation or other business entity controlled by minorities in which as
                    least 51% of the voting interest and 51% of the beneficial ownership interest
                    are held by minorities.
          •   WBE or Women's Business Enterprise - A small business that is one of the
              following:
              (i) A sole proprietorship, owned and controlled by a woman.
              (ii) A partnership or joint venture controlled by women in which at least 51% of
                   the beneficial ownership is held by women.
              (iii)A corporation or other entity controlled by women in which at least 51% of
                   the voting interest and 51% of the beneficial ownership interest are held by
                   women.
          •   Certified MBE/WBE Enterprise. A business enterprise that has a current and
              written designation from a duly constituted public body, attesting that the business
              enterprise has submitted evidence satisfying the minimum criteria established by
              that body, for recognition of ownership by an individual or group of individuals
              recognized as a minority due to race or gender.
              If a business enterprise is not certified by the Commonwealth of Pennsylvania, a
              certification from another duly constituted public body is acceptable. That other
              public body may be a municipality, township, county, or authority that has a
              certification program that substantially conforms to the program of the BCABD.




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       2. THE SYSTEM’S MBE/WBE POLICIES AND PROCEDURES
          a. Purpose
             The Pennsylvania State System of Higher Education (System) provides provisions
             in construction contracts for the purposes of
             (i) providing for the proactive solicitation of Certified MBE/WBE Enterprises and
             (ii) encouraging the participation of Certified MBE/WBE Enterprises in
                  construction projects undertaken by the System.
             Chapter 3 of this EA Manual contains the following provisions that are to be
             included a Bid Manual:
                                            MBE/WBE PARTICIPATION
                                Proactive Solicitation & Encouraged Participation
                                          In System Facilities Projects For
                                           Certified MBE/WBE Enterprises
          b. MBE/WBE Provisions
             The following applies to the System’s MBE/WBE policies, provisions, and
             procedures:
             • are applicable to all construction contracts administered by the System for
                  maintenance, repair, alteration, or improvements to existing facilities and the
                  construction of new facilities.
             • are unique to Pennsylvania State System of Higher Education
             • are based on the System’s elective policies and procedures for the proactive
                  solicitation to and encouragement of Certified MBE/WBE Enterprises for
                  reasonable participation in the System’s facilities construction projects.
             • provide a competitive process whereby Certified MBE/WBE Enterprises can
                  compete for portions of the project.
             • do not guarantee awards to Certified MBE/WBE Enterprises, since responsible
                  Non-Minority Firms can be solicited for the same work and can be awarded
                  the work if their quotes or bids are lower and responsive.
          c. Proactive And Reasonable Effort
             The System expects that Non-Minority Bidders of the System’s facilities projects
             will “proactively make a reasonable effort” in solicitations and awards to Certified
             MBE/WBE Enterprises for reasonable portions of facilities projects.
             • “Proactively Make A Reasonable Effort”. The System expects Bidders to
                  perform proactive solicitations of Certified MBE/WBE Enterprises without
                  discrimination against any individual or business due to race or gender. This
                  solicitation is to be aggressive effort by the Bidder to obtain written quotes for
                  subcontracts and/or material purchases from Certified MBE/WBE Enterprises.
                  Quotes received by the Bidder are to be submitted with the Bid so as to equal or
                  exceed a Reasonable Effort Award Amount established for the contract.
             • Reasonable Effort Award Amount (REAA). The REAA is reasonable portion
                  of a facilities project, that is, an amount of the work for which bids or quotes
                  can “reasonably be expected to be obtained” from Certified MBE/WBE
                  Enterprises based on the scope of work of the project and current demographics
                  concerning available qualified MBE/WBE subcontractors, suppliers, and
                  vendors. The System has the exclusive and sole right to establish this amount
                  for any and all contracts that are bid.
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          d. The System’s Evaluation of A Bidder’s Reasonable Effort
              •   In order to assist the Bidder in providing documentation that will show that
                  the Bidder has fulfilled the requirements of the Bid Documents regarding
                  MBE/WBE participation, the Bidder is required to complete and provide the
                  following form contained in the Bid Documents, along with supporting
                  documentation:
                                                    Exhibit A
                                         Solicitation Information Sheet
                                                       For
                                     MBE/WBE Subcontractors And Suppliers
              •   The System has developed policies and procedures to determine if a Non-
                  Minority Bidder has “    proactively made a reasonable effort” to solicit and award
                  reasonable portions of a facilities project to Certified MBE/WBE Enterprises.
                  The Bidder’s failure to document and prove such performance with the Bid
                  Proposal is cause for a bid to be rejected.
                  In this review process, the System reviews the following:
                  (1)  The Non-Minority Firm’s Written Solicitations to Certified MBE/WBE Firms,
                       including the scope of work solicited and amount of time allotted for response
                       to solicitation.
                  (2) Written Quotes received by the Non-Minority Firm from Certified MBE/WBE
                       Firms.
                  (3) Amounts Committed by the Non-Minority Firm to the Certified MBE/WBE
                       Firms and Non-Minority Firms, including Letters of Commitment.
                  (4) The Non-Minority Firm’s Documentation that supports Solicitations and
                       Awards.
                  (5) The Non-Minority Firm’s Explanatory Information when the requirements of the
                       Bid Documents have not been met, including when the REAA cannot be equaled
                       or exceeded.
                  (6) Certification of the MBE/WBE Firms
                  (7) The list of the Certified MBE/WBE Firms that were solicited for each specific
                       scope of work.
                  (8) Descriptions of the scope of work or materials for which solicitations were NOT
                       made and the reasons why.
                  (9) Reasons why written commitments were not made to Certified MBE/WBE
                       Firms that submitted the lowest written quotes.
                  (10) Reasons, if known, why written quotes were not received from solicited firms.
                  (11) Reasons why solicited and unsolicited written quotes were not accepted.
                  (12) Other review considered necessary.


          e. Certified MBE/WBE Firms As Prime Contractors
              •   Certified MBE/WBE Enterprises are encouraged to submit bid proposals for
                  facilities projects directly to the System for the work of Prime Contractors.
              •   Certified MBE/WBE Enterprises that bid as Prime Contractors automatically
                  meet the requirements of these provisions and are not required to “make
                  proactive and reasonable effort” in order to award work to other Certified
                  MBE/WBE Enterprises.
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       3. DETERMINATION OF THE REAA

          a. Set-Asides Are Illegal
              The REAA must not be a Set-Aside. A Set-Aside, as used in awarding work to
              MBE/WBE Firms, is a fixed amount, whether a percentage or a dollar value, that
              is reserved for MBE/WBE Firms. With a Set-Aside, there is no option for the
              Prime Contractor to obtain competitive prices from Non-MBE/WBE Firms for the
              work that has been reserved for MBE/WBE Firms.

              Set-Asides have been determined to be illegal by the courts and must not be used.


          b. Opportunity for Competition
             Certified MBE/WBE Firms are given the opportunity to compete for identified
             work along with Non-Minority Firms. This is the defining factor that makes the
             REAA not a Set-Aside – the opportunity for competition.

          c. Determination of the REAA
             The System has the exclusive and sole right to establish the REAA for any and all
             contracts that are bid.
             The Reasonable Effort Award Amount (REAA) is a reasonable portion of a
             facilities project, that is, an amount of the work for which bids or quotes can
             “reasonably be expected to be obtained” from Certified MBE/WBE Enterprises
             based on
                  • the scope of work of the project and
                  • current demographics concerning available qualified MBE/WBE
                       subcontractors, suppliers, and vendors.
             The Design Professional’s Role. In determining a suitable REAA for each Separate
             Prime Contract for a Project, the Design Professional must do the following:
                  • Assess the project and determine a reasonable value of one or more scopes
                       of work that could be bid to MBE/WBE Firms for each contract.
                  • Be sufficiently informed as to the demographics of available and qualified
                       MBE/WBE subcontractors, suppliers, and vendors.

          d. Limits
             The System has not specified any minimum or maximum amounts that must be
             specified for an REAA, whether by percent of contract or dollar value. The key
             aspects are:
                 • reasonable portion of a facilities project that can “reasonably be expected
                     to be obtained” and
                 • the scope of work of the project that fits the current demographics of
                     available and qualified MBE/WBE subcontractors, suppliers, and vendors.




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          e. Deductive and Additive Base Bids
              When using Deductive Base Bids, consider the relationship between the Base Bid
              Estimates and the REAA. As the cost of the project is reduced through successive
              Base Bids, the REAA should not become excessive in relation to the estimated
              cost of the Base Bids. This situation would most likely occur on small projects
              rather than large projects.
              The REAA may be specified in two ways:
                  1) A Fixed Dollar REAA for all Base Bids, being a separate amount for each
                     Separate Prime Contract.
                  2) A Fixed Dollar REAA for Base Bid No. 1, being a separate amount for
                     each Separate Prime Contract.      The Fixed Dollar REAA may be
                     determined to be an Approximate Percentage REAA that is a percentage
                     of the Estimated Contract Cost.      For consecutive Base Bids, the
                     Approximate Percentage REAA is used to determine the Dollar REAA for
                     consecutive Base Bids. The Approximate Percentage REAA is an amount
                     not published in the Bid Documents. Only the Dollar REAA is specified
                     for each Separate Prime Contract.




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F.     PROPRIETARY & NON-PROPRIETARY SPECIFICATIONS

       Before entering into a discussion of Proprietary and Non-Proprietary Specifications, a
       distinction must be made between Sole Source Procurement and Proprietary
       Specifications.
       The instructions of this Chapter pertain to Proprietary Specifications and Non-Proprietary
       Specifications, and do not pertain to Sole Source Procurements.
       Since there can be confusion regarding the understanding of the definitions of Sole
       Source Procurement and Proprietary Specifications, both terms will be defined below.


       1. DEFINITIONS

          a. Sole Source Procurement
             The following is based on Legal’s Contract Manual, Section II - Common Types
             of Contracts, Paragraph J.
             One Available Provider. A Sole Source Contract implies there is only one
             available provider as follows:
             (1) There is only one person or company that can provide the contractual services
                  needed.
             (2) Any attempt to obtain bids would only result in one person or company being
                  available to meet the need.
             Award Without Competition (Advertisement Not Necessary). A Contract may be
             awarded for a supply, service, or construction item, without the necessity of
             competition, when the Contracting Officer determines in writing that one of the
             following statutory conditions exists:
             (1) Only a single Contractor is capable of providing the supply, service, or
                  construction.
             (2) A federal or state statute or federal regulation exempts the supply, service, or
                  construction from the competitive procedure.
             (3) The total cost of the supply, service, or construction is less than the amount
                  established by the State System for small, no-bid procurements as dictated by
                  the policy on small procurements.
             (4) It is clearly not feasible to award the Contract for supplies or services on a
                  competitive basis.
             (5) The services involve (i) the repair, modification, or calibration of equipment
                  and (ii) they are to be performed by the manufacturer of the equipment or by
                  the manufacturer’s authorized dealer, provided the Contracting Officer
                  determines that bidding is not appropriate under the circumstances.
             (6) The Contract for supplies or services is in the best interest of the
                  Commonwealth.
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              Approval.      Before entering into a Sole Source Contract, a statement of
              justification must be sent in advance to University Legal Counsel certifying that
              the contract is appropriate as a Sole Source. University Legal Counsel will
              review the statement and either approve or disapprove the certification. If
              approved, the certification will be returned to the university. A copy of the
              signed certification must be included with the contract when it is submitted
              for final legal review and approval. A sample Sole Source Certification is
              contained an Appendix of Legal’s Contracts Manual


          b. Proprietary Specifications
              The Glossary of Terms in Legal’s Contracts Manual provides the following
              definition for Proprietary Specifications:
                  A description of the physical or functional characteristics or the nature of a
                  supply, service, or construction item, including a description of any
                  requirement for inspecting, testing, or preparing a supply, service, or
                  construction item for delivery which is specific to a contractor either as a
                  result of a patent or copyright.
              Approval to use Proprietary Specifications is at the discretion of the University’s
              Contracting Office. Generally, approval is not required from the Office of the
              Chancellor.


          c. Advertisement And Bidding Are Key Criteria
              In determining whether an item is a Sole Source Procurement (requiring pre-
              approval) or a Proprietary Specification, the issues of advertisement and bidding
              is are key criteria.
              An item is a Sole Source Procurement requiring certification when
              (i) the procurement is not advertised or otherwise bid in a way that satisfies the
                   usual source selection requirements of the Commonwealth Procurement Code
                   and System policies, and
              (ii) only one vendor is contacted and capable of providing the supply, service, or
                   construction.
              This situation can occur when the System determines that there is only one vendor
              that can provide a supply, service, or construction. The System then procures that
              item, either directly or through the services of a Contractor, without the need to
              advertise and bid the item.
              An item is a Proprietary Specification, though only provided by one vendor
              when the item is within a Bid Package (a project larger) and can be procured by a
              Contractor from only single provider (subcontractor or supplier to the Contractor).
              This case is not considered to be a Sole Source Procurement for which pre-
              approval is required. The entire project that contains the apparent sole sourced
              item is advertised and bid. The procurement is to be performed by a Contractor.
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       2. SPECIFYING NON-PROPRIETARY PRODUCTS
          For construction projects, there are several ways in which the System requires the
          listing of non-proprietary products and materials in Bid Documents:
          Method 1:      List A Minimum of 2 Manufacturers
          Method 2:      List Certain Manufacturers And Corresponding Models
          Method 3:      List Required Salient Features And/Or Performance Criteria
          Method 4:      List Required Industry Standards for a Product Or Material


          Method 1: List a Minimum of 2 Manufacturers
                       Specify two (2) manufacturers. Model numbers are not required.
                       If model numbers are indicated, they must be indicated for all listed
                       manufacturers.
                       Required to provide description of product or performance criteria.
                       Recommended to list any salient features or industry standards
                        - that are considered necessary to meet the design intent, and
                        - to establish the minimum acceptable level of product or material
                          definition in the event a substitution is proposed.
                       Every technical specification and drawing that lists specific materials or
                       products shall list a minimum of two (2) different manufacturers, that, in
                       the opinion of the Design Professional, will provide materials or
                       products that will meet the expectations and requirements of the project.
                       The Design Professional must know which products (manufacturer and
                       model numbers) from the listed manufacturers are equivalent,
                       acceptable, available, and meet the requirements of the project. The
                       Design Professional cannot shift that responsibility to the Contractor, for
                       example, by either of the following:
                        - specifying only one manufacturer with a model number and listing
                          other approved alternate manufacturers without model numbers.
                        - simply stating “or approved equal”.
                       The Contractor must meet the technical requirements of a product, but
                       may not be required to know the design nuances of the project.
                       Although a product may be technically equivalent, it may not be
                       acceptable.
                       An item may be identified on the basis of design if applicable.




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          Method 2: List Certain Manufacturers And Corresponding Models
                    The University may require that certain manufacturers are suitable for
                    inventory control (ordering similar replacement parts) or other reasons.
                    The following is an example:
                      1. York Model XYZ
                      2. Carrier Model ABC
                      3. Trane Model 123
                      4. No Substitutions
                       An item may be identified on the basis of design if applicable.

          Method 3: List Required Salient Features And/Or Performance Criteria
                    Specify the product or material by
                     - listing the required salient features and/or performance criteria.
                    Do not list any manufacturers or their corresponding model numbers.
                    Salient Items:         List specific characteristics (such as size) without
                                           being proprietary.
                    Criteria:              Industry Standards             ASTM,
                                           Federal Standards              OSHA, and/or
                                           Federal Specifications         FS-XXX-1111

          Method 4: List Required Industry Standards for a Product Or Material
                    The only requirement is for the product or material to meet
                     - Industry Standards         AWI, NWWDA, ACI, ASTM, NFPA, AISC
                     - Federal Standards          OSHA, or
                     - Federal Specification      FS-XXX-1111.
                    No requirement for listing any description of product or performance
                    criteria in Part 2.
                    Do not list any manufacturers or their accompanying model numbers.




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       3. SPECIFYING PROPRIETARY PRODUCTS
          Proprietary Products Are Not Sole Source Procurements Requiring Pre -Approval
          a. General
              Compatible Equipment.          The University has the right to require that new
              equipment shall be compatible with the existing equipment, and that all warranties
              on existing equipment and systems shall be maintained and shall not be altered or
              negated by new equipment or systems. Therefore, there may be good and
              sufficient reasons for the University to want to use one particular manufacturer.
              Approval Procedures. When the University needs to perform a Proprietary
              Procurement, the following procedure should be followed:
              1) Evaluation of Other Vendors. The University should evaluate the equipment
                 of other vendors and generate a memorandum setting forth which vendors
                 were looked at and why their equipment is not suitable for interconnection
                 with existing equipment, or why a particular manufacturer is the only suitable
                 product.
              2) Sole Source Fact Sheets. The University should utilize the Sole Source Fact
                 Sheets (Sole Source justification).
              3) Review By University’s Contracting Officer. Standard procedure for any
                 procurement of construction by the University is to complete the Procurement
                 Decision Document. This document is discussed and provided as an Article
                 in this Chapter 2. Under Source Selection is indicated whether there are any
                 Sole Source Procurements and Proprietary Specification Use. This form is
                 completed and submitted to the University’s Contacting Officer for review
                 and approval.


          b. The Design Professional’s Role In Procuring Proprietary Products
             • Evaluation of Other Vendors.           The University may request the Design
                Professional to perform the evaluation of the equipment of other vendors and
                generate a memorandum setting forth which vendors were looked at and why
                their equipment is not suitable for interconnection with existing equipment, or
                why a particular manufacturer is the only suitable product.
              •   Selection Of Materials And Products. The Design Professional must provide
                  the design for materials and products that will meet the expectations and
                  requirements of the project. The Design Professional must know which
                  products (manufacturer and model numbers) are acceptable and available.
                  The Design Professional cannot shift that responsibility to the Contractor, for
                  example, by either of the following:
                     - specifying only one manufacturer with a model number and listing other
                        approved alternate manufacturers without model numbers.
                     - simply stating “or approved equal”.


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              •   Specification Regarding Proprietary Specifications .         For any technical
                  specification that is approved as proprietary, the Design Professional shall add
                  the following words in the text of the specification.
                     For this [---specification or product---], the Contracting Officer has
                     approved the [---product, system, or manufacture---] as a proprietary
                     source in the best interests of the University, and therefore,
                     no substitutions will be permitted. The provisions of Section 01631 –
                     Product Substitutions does not apply to the proprietary product.
                  This provision does not preclude review of the Sole Source and/or Proprietary
                  Item by the Office of the Chancellor or the Office of Chief Counsel if required by
                  System policies.




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       4. ALTERNATE PROCUREMENT PROCESS
          Request For Proposal Process
          Use of the Request For Proposal (RFP) Process does not specify a sole source
          designation and may be the best method to ensure that the University achieves the
          desired equipment compatibility at a reasonable cost.
          The RFP process allows the University to evaluate the proposals on a technical basis
          and a price basis. The technical and price evaluations are weighted by the University
          based on the worth of maintaining equipment compatibility. The RFP Process allows
          various treatments of the technical and price evaluations so as to accommodate the
          Universities needs. Examples are as follows:
              •   If appropriate to express the importance of compatibility, the technical portion
                  of the analysis can be weighted more than the price portion.
              •   Criteria for the technical evaluation portion of the proposal analysis can have
                  components that give greater merit to compatible systems and less merit to
                  non-compatible systems.
              •   To promote competition, the RFP can allow for alternate proposals to provide
                  for a complete replacement system.
              •   Another way to integrate the value of compatibility in the price evaluation is
                  to allow an analysis of the cost to the University over the life of the equipment
                  for the differential operating costs of having to operate and maintain two
                  separate systems instead of one compatible system.




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G.     FINISHES

       The selection and specification of finishes on any given project can be a very intricate
       and detailed process. Finishes are often selected and coordinated into Finish Packages
       during the design process through presentations to user groups and other organizations on
       any given campus.
       On projects with extensive Finish Packages and/or high profile areas requiring approval
       of the finishes before the bid process, the following option is offered:
       •   Preparation and Approval of Two Finish Packages. The Design Professional, as part
           of the design process, prepares and presents complete Finish Packages to the
           University for approval. A minimum of two complete packages will need to be
           approved for incorporation into the specifications in order to comply with non-
           proprietary requirements while maintaining the desired finishes, colors, etc. selected
           by the University.
       •   Preparation of Specifications. The specifications can then be written to identify
           Finish Packages. The specifications must stipulate that the Contractor shall provide a
           complete package as identified and cannot mix materials from one package with
           another. Each package will have its own unique set of materials, manufactures, etc.
           as required. Therefore, materials from one package cannot match manufacturers
           and/or models from another package.



             More instructions will be provided in a subsequent Chapter of this AE Manual.




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H.     LIQUIDATED DAMAGES

       1. DEFINITION
          •   Liquidated Damages may be defined as follows:
              - An appropriate amount, agreed to during the Design Phase by the University
                 and identified in the Bid Documents, reduced to writing in the Contract, for
                 damages that would result from delay caused by the Contractor and harmful to
                 the University. Liquidated Damages are used to compensate the University for
                 incurred damages that result from the Contractor not completing all or portions
                 of the work as identified in the Contract.
              - A reasonably forecasted rate of just compensation for harm caused by late
                 delivery or untimely performance of the contract.
          •   Liquidated Damages should be defined based upon a reasonable estimate,
              prepared during the Design Phase, of the probable losses or expenses to the
              University. The reasonable estimate should be made as close to completion of the
              Bid Documents as reasonable.
          •   Liquidated Damages should not be punitive and are not negative performance
              incentives. Liquidated Damages should not be specified as a penalty, as a means
              of keeping the Contractor on time without being related to any estimate of
              probable loss.
          •   The amount of Liquidated Damages is usually set at a Daily Rate, starting from a
              defined date. The defined date may be extended by execution of a Change Order
              to the Contract.
          •   The Daily Rate should include expected expenses associated with delayed
              completion such as:
              - the estimated daily cost of the University’s inspection and superintendence.
              - the estimated daily cost for delayed use of food services.
              - the estimated daily cost for delayed use of student rooms in Residence Halls,
                 such as rental costs for other space provided for students.
              - the estimated daily cost for delayed u of office space, such as rental costs for
                                                          se
                 other space provided for offices.
              - Other real expenses, such as Professional fees.
          •   There may be more than one rate for Liquidated Damages if the University
              expects that probable damage to the University to change with time (i.e. a
              graduated rate).
                  Example: A rate of $200 per calendar day may apply to the first 10 days, then a
                  rate of $500 per calendar day may apply from the 11th day.
          •   The total of Liquidated Damages may be limited by a maximum amount and/or a
              maximum period for assessing Liquidated Damages if the limits reflect the
              maximum probable damage to the University.

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       2. CALCULATION & ASSESSMENT OF LIQUIDATED DAMAGES
          •   Liquidated Damages should be considered for all construction contracts.
              Generally, any delay to a project will result in additional costs to the University.
              There may be no additional costs for the University other than administrative
              costs.
          •   Liquidated Damages must be calculated to estimate the actual financial impact
              that the University will incur if the contract is not completed on time.
                   Roof replacement projects may or may not be extremely critical to time and may
                   deserve a low Liquidated Damage Rate.
                   A project dealing with food service or a residence hall may demand an extremely
                   high Liquidated Damage Rate.
          •   If Liquidated Damages are specified, the per diem calculation should begin after
              completion dates that have been changed/extended through executed Change
              Orders.
          •   If Liquidated Damages are specified and the project will extend beyond the
              contract completion date, retainage should be adjusted upward to cover
              Liquidated Damages.
          •   If Liquidated Damages are to be assessed, a Change Order must be executed to
              adjust the contract amount for the Liquidated Damages. If the Contractor does
              not sign the Change Order, the University may issue a Unilateral Change Order
              and reduce the value of the Contract.
          •   When Liquidated Damages are specified, the Contract Documents must clearly
              define the date after which the damages are to be assessed and the method of
              calculation.
          •   Liquidated Damages may be assessed for the Contractor’s failure to execute the
              required Contract Bond within the time specified. This will result in payment to
              the System of the Contractor’s proposal guaranty in the amount equal to the
              difference between the Contractor’s proposal and the next lowest responsive
              proposal, or the proposal guaranty amount, whichever is less. The System shall
              have the right to award the contract to the Contractor providing the next lowest
              responsive and responsible proposal.
          •   Liquidated Damages may be assigned to construction phases.




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       3. EXAMPLES OF LIQUIDATED DAMAGE CLAUSES
          a. Use of Two Rates For A Project
              •   Liquidated Damages for Delayed Use of Residence Hall Rooms.
                  Refer to Chapter 3, Notice To Contractors
                  This rate should be based on a realistic estimate of what it will cost to house
                  students in other facilities until the project is ready for occupation.
              •   Liquidated Damages for Delayed Use of Project.
                  Refer to Chapter 3, Notice To Contractors
                                                n
                  This rate should be based on a estimate of what it will cost the University for
                  expenses other than housing students, because the project is not available,
                  such as administrative costs, costs for Professional Services, and other
                  identifiable costs.
              •   Liquidated Damages By Construction Phase
                  Refer to Chapter 3, Notice To Contractors




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                                     Article 2.4-1


                             Defined Bid Formats
                                           With
                                 Bid Components




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Chapter 2 – The Process Of Contract Procurement For Facilities Projects            Article 2.4-1
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                                     Article 2.4-2


                           MBE/WBE
               Proactive Effort Policy & Provisions

         Proactive Solicitation & Encouraged Participation
                    In System Facilities Projects
                                 For
                  Certified MBE/WBE Enterprises




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Engineering / Architectural Instructions for Facilities Projects                    Chapter 2.4
Chapter 2 – The Process Of Contract Procurement For Facilities Projects            Article 2.4-2
Chapter 2.4 – The Design Phase
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             Pennsylvania State System of Higher Education
                     Facilities Manual - Volume 30
             Engineering / Architectural Instructions Manual


                                                Chapter 2.5
                                               The Bid Phase


CHAPTER 2.5                   TABLE OF CONTENTS
A. OVERVIEW
B. ADVERTISEMENT ..................................................................................... (See Article 2.5-1)
C. PRE-BID CONFERENCE............................................................................ (See Article 2.5-2)
D. ADDENDA ................................................................................................... (See Article 2.5-3)
E. RECEIPT OF BIDS
F. OPENING AND READING OF BIDS
G. EVALUATION OF BIDS ............................................................................ (See Article 2.5-4)
H. AWARD........................................................................................................ (See Article 2.5-5)
I. BID PROTEST


CHAPTER 2.5                   LIST OF ARTICLES
Article 2.5-1       Bidding / Builders Exchanges
Article 2.5-2       Pre-Bid Conference – Agenda
Article 2.5-3       Addenda - Example
Article 2.5-4       Forms for Evaluations of Bids
                    Checklist - Determination of Contractor Responsibility
                    Checklist - Determination of Contractor Responsiveness
                    Sample Letter - Request for Bidder’s Information
                    Checklist – Professional’s Responsibilities for Bid Evaluations
Article 2.5-5       Award of Project – Sample Letter

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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                                   Chapter 2.5
                                  The Bid Phase



A.     OVERVIEW


       1. SYSTEM’S RESPONSIBILITY & PROFESSIONAL’S INVOLVEMENT
          Whether the System performs all aspects of the Contract Procurement Process (the
          Bidding Phase) or delegates parts of the process to the Design Professional, the System
          has the primary responsibility for the process.
          •   The System may elect to perform all aspects of the process with assistance from the
              Design Professional.
          •   The System may elect, by specification in the Design Professional’s proposal and the
              subsequent Agreement, to delegate specific services to the Design Professional with
              oversight and final decisions by the System.
          The extent of the Professional’s involvement shall be based on the University’s
          manpower needs and abilities to accomplish the process.




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       2. THE SYSTEM’S OVERSIGHT
          a. Advertisement Of Bid Opportunity.          Whether performed by the System or the
             Design Professional, the System shall maintain sufficient control of the content of the
             advertisement, locations of the advertisement, determination of the due date,
             determination of the time and location of the bid opening, and information on
             inquiries.
          b. Receipt & Safeguarding Of Bids. The System shall receive all bids at an
             appropriate and specific office specified in the Notice To Contractors (NTC). The
             System shall safeguard all received bids, maintaining confidentiality, until the Bid
             Opening. The receipt and safeguarding should never be delegated to the Design
             Professional. (See Chapter 3 for the NTC and handling of sealed envelopes.)
          c. Public Bid Opening & Recording. Whether conducted by the System or the Design
             Professional pursuant to contract terms, the System shall maintain sufficient oversight
             and control of the Bid Opening and Recording of Bids to assure compliance with all
             requirements for the process.
          d. Evaluation of Bids. After the bid opening, the System shall conduct and coordinate
             the evaluation of the bids received to determine if the lowest bidders were responsible
             and responsive to the requirements specified in the Bid Package.               Whether
             evaluations are performed solely by the System or with the Design Professional’s
             involvement, all evaluations and the roles of participants should be carefully
             documented.
          e. Acceptance and Rejection of Bids. The System has the sole responsibility to accept
              or reject the bids, determine the lowest responsible and responsive bidder, and
              determine if the project should be awarded or rejected. The System shall carefully
              review all evaluations and recommendations in the determination. The System’s
              Contracting Staff shall discuss appropriate issues with upper management (such as
              Vice Presidents for Administration & Finance), Legal Counsel, and the Chancellor’s
              Office (Facilities Division/Construction Support Office), when necessary.
          f. Bids Higher Than Cost Allocation. If the bids exceed the cost allocation by 5% or
              more, the following should be considered:
              • Rebidding.
              • Determine possible reasons for bids higher than expected.
              • Determine if Bidders misunderstood areas of the Bid Package.
              • Determine if the project should be redesigned with a reduced scope and/or an
                alternate selection of materials, resulting in a project that would be within the cost
                allocation.
              • The Design Professional will respond in accordance with the Design Professional’s
                Agreement with the System.
          g. Award.
              For projects advertised as firm, fixed price, low bid contracts, the System has the
              responsibility to award to the lowest responsible and responsive bidder.
              For projects advertised as Requests for Proposals, the System has the responsibility to
              evaluate proposals in accordance with the advertised selection criteria and select for
              contract negotiation the Proposer with a “best value proposal”, one that is in the best
              interests of the System in accordance with the advertised criteria.
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B.     THE BID PROCESS

       1. THE SYSTEM & AGENTS
          The Bid Process is accomplished by the System with assistance from the Design
          Professional to the extent specified in the Design Professional’s Agreement.
          Throughout the Bid Phase, the System and all parties contracted with the System
          must be aware of their contracted duties, responding expeditiously and appropriately
          in accordance with their agreements and assigned responsibilities.


       2. BID PHASE COMPONENTS
          The Bid Phase consists of the following components:
          a. Advertisement. The Bidding Phase is initiated with the development of the
             Notice To Contractors and the advertisement of the project. Advertisement is
             discussed in the next section of this chapter.
          b. Distribution of Bid Packages. Copies of Bid Packages are provided to Bidding
             Services without their request or a fee, and to interested contractors, after
             contractor request and payment of a fee,
              Distribution of the Bid Package cannot be made until the time specified in the
              Notice To Contractors.
              Drawings and specifications issued with the Bid Package shall be labeled “Issued
              For Bid” and marked with the date of when the Bid Package is initially available.
              In some instances, the University will reproduce and distribute bid packages. In
              this case, the Professional shall supply one reproducible set of signed and sealed
              drawings and specifications to the System representative at the project location.
              A list of requestors must be maintained for use in sending Addenda.
                                                      r
          c. Purchase of Bid Packages. When purchased f om the Design Professional, the
             following applies:
              - Prospective Bidder’s may purchase Bid Packages from the Design Professional
                for a non-refundable fee (Bid Document Fee).
              - The Bid Document Fee, a fair and reasonable price, shall be determined by the
                Design Professional and reviewed/approved by the System.
              - The Bid Document Fee need not be determined for inclusion in the Design
                Professional’s proposal developed and included in the Design Services
                Agreement.
              - The Prospective Bidders shall request the Bid Documents from and submit fees
                to the Design Professional for Bid Documents produced and distributed by the
                Design Professional.

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              - The University may elect one of the following procedures for the
                reimbursement of the Design Professional’s costs for providing Bid Packages to
                prospective Bidders:
                  - Option No. 1 – Not Included In Fee Proposal.
                   The Design Professional does not need to provide in the Fee Proposal any
                   reimbursable expenses for the preparation and distribution of the Bid
                   Packages that are paid for by prospective Bidders.
                   The Design Professional makes a direct sale to the prospective Bidder for the
                   fair and reasonable price that was determined by the Design Professional and
                   reviewed/approved by the System.
                   The Design Professional may put a reimbursable expense in the Fee Proposal
                   for Bid Documents that are distributed to Bidders Services.
                  - Option No. 2– Included In Fee Proposal.
                   The Design Professional provides a reimbursable expense in the Fee Proposal
                   for the preparation and distribution of the Bid Packages that are paid for by
                   prospective Bidders.
                   The Bid Document Fee should approximate the cost of reproduction and
                   distribution of the bid documents. The System is then responsible for
                   reimbursing the Design Professional the following as reimbursable expenses:
                     i.   the difference between (1) the Bid Document Fee, and (2) the actual cost
                          of reproducing and distributing the bid documents
                     ii. the cost for bid document sets provided to Bidding Services, to the
                         System, and to each Separate Prime Contractor awarded a contract
                         (a maximum of 5 copies to each prime).
              Timely Requests for Bid Documents. The Design Professional shall estimate the
              number of Bid Packages to be distributed and have sufficient Bid Packages
              available for immediate distribution upon request. If requests are not made within
              a reasonable time, then the Design Professional is not responsible to immediately
              distribute the requested documents, but will do so as soon as possible after the
              request.
          d. Pre-Bid Conference. A Pre-Bid Conference is conducted to discuss the project,
             highlight the bid documents, receive questions from Bidders and conduct a site
             walk.
              •    Attendance at the Pre-Bid Conference is not mandatory.
              •    Summary Pre-Bid Conference minutes shall be issued by Addendum to all
                   requestors of Bid Documents. Refer to Article for example.




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          e. Addenda to the Bid Set are issued as necessary to all requestors of Bid
             Documents.
          f. Bids are received by the System, publicly opened, and tabulated.
          g. Bids are then reviewed to determine the lowest responsible and responsive
             bidder as defined by bid criteria and legal authority.
          h. Award. If there are no Bid Protests, a Construction Contract is awarded:
              •   For projects advertised as firm, fixed p    rice, low bid contracts, the System has
                  the responsibility to award to the lowest responsible and responsive bidder.
              •   For projects advertised as Requests for Proposals, the System has the
                  responsibility to evaluate proposals in accordance with the advertised
                  selection criteria and to award to the Proposer with a “best value proposal”,
                  one that is in the best interests of the System in accordance with the advertised
                  criteria.
              •   Awards are subject to the System’s standard terms and contracts.
          i. Bid Protest. If there is a Bid Protest, the System will handle the process in
             accordance with current policy and procedures.

                   Based on amendments to the Commonwealth Procurement
                   Code in Act 142 of 2002, new policies and procedures have
                   been developed for the handling of Bid Protests. These new
                   policies and procedures will be incorporated into the
                   EA Manual and the Bid Manual expeditiously. Refer to
                   Chapter 3 of this EA Manual




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C.     ADVERTISEMENT

       1. ACT 57 REQUIREMENTS FOR ADVERTISEMENT
          The advertising (public notice) requirements of Act 57, The Commonwealth
          Procurement Code, are specified as follows:
              § 512. Competitive sealed bidding.
                  (a) Conditions for use.--
                      Contracts shall be awarded by competitive sealed bidding except as otherwise
                      provided in section 511 (relating to methods of source selection).
                  (b) Invitation for bids. --
                      An invitation for bids shall be issued and shall include a procurement description
                      and all contractual terms, whenever practical, and conditions applicable to the
                      procurement.
                  (c) Public notice.--
                      Adequate public notice of the invitation for bids shall be given a reasonable time
                      prior to the date set for the opening of bids.
                      The purchasing agency shall establish written policies and may promulgate
                      regulations regarding methods of public notice.
                      The method of public notice may include any of the following:
                      (1) Electronic publication which is accessible to the general public.
                      (2) Advertisement as provided for in 45 Pa.C.S. § 306 (relating to use of trade
                          publications).
                      (3) Issuance of invitations for bids to bidders on the solicitation mailing list of the
                          purchasing agency.
                      (4) Publication in a newspaper of general circulation.
                      (5) Where prequalification is a requirement of submitting a bid, notification to all
                          contractors who have been prequalified by the purchasing agency.
                          Copies of invitations to bid shall be made available to any interested person
                          upon request to the purchasing agency.
                          Purchasing agencies may establish procedures for the distribution of
                          invitations to bid including the imposition of a fee to reimburse the agency for
                          the costs of photocopying and mailing.
          The Commonwealth Procurement Code requires adequate public notice of an
          Invitation For Bid by utilization of at least one of the above methods.


       2. DESIGN PROFESSIONAL’S INVOLVEMENT
          The Design Professional and the System agree on the information that is to be
          included in advertisements and the Notice To Contractors.
          The Design Professional or the University prepares the Notice to Contractors that is
          to be included in the Bid Package.
          The System or the Design Professional (when specified by the Design Services
          Agreement) prepares the advertisement, the contents of which are coordinated with
          the Notice To Contractors, for submittal to the following:
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       3. PENNSYLVANIA BULLETIN
           The System also utilizes the PA Bulletin for the advertisement of projects.
           The Pennsylvania Bulletin is administered by the following office:
                             Department of General Services
                             Vendor Services Section
                             415 North Office Building
                             Harrisburg, PA 17125
                             Phone: 717-787-2199 or 717-787-4705
           The “Request To Advertise” in the PA Bulletin is submitted in one of 2 ways:
           •   Request To Advertise – Form STD-179 (Hard Copy). A hard copy of the request
               may be submitted to the Vendor Services Section on Commonwealth Form STD-
               179 – Request To Advertise In The State Contracts Information Section Of The PA
               Bulletin (Commodity, Services, And Construction Contracts)
           •   Request To Advertise – Form STD-179 (On-Line). The request may be submitted
               on-line at the following DGS web address:
                   http://www.dgs.state.pa.us/indexie.htm       click on    Forms at top
                   http://www.dgs.state.pa.us/forms.htm         click on    Online STD-179,
                                                                            "Request to Advertise"
                   http://btb.state.pa.us/dgs/std179/std179.htm             Request To Advertise
           •   Viewing Advertisements (On-Line). Advertisements in the PA Bulletin can be
               viewed through the following web address:
                   http://www.dgs.state.pa.us/comod/main.asp                Bid Opportunities


       4. BIDDER’S SERVICES
           Along with the Public Notice as required by Act 57, the Design Professional shall
           send copies of the Bid Package without charge to the Bidding/Builders Exchanges
           and other locations that the Design Professional and the System believe will result in
           the submission of competitive bids. A list of Bidding/Builders Exchanges is provided
           in Article 2-5.
           Costs for reproducing and distributing copies of Bid Documents to Bidding/Builders
           Exchanges are typically reimbursable expenses in accordance with the terms of the
           Design Professional’s Agreement.




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D.     PRE-BID CONFERENCE
       1. Schedule. The System and the Design Professional will determine the date of the
          Pre-Bid Conference. The conference date will be announced in the advertisement,
          allowing a sufficient number of days after the advertisement for the Bidders to review
          the Bid Package and formulate responsible questions concerning the project. The
          conference is typically scheduled within 7 to 12 calendar days from the start of a
          30 calendar day bid period.
       2. Attendees. The System and the Design Professional shall attend the Pre-Bid
          Conference. The meeting may be conducted by either the System or the Design
          Professional. The System should always maintain sufficient oversight and control to
          assure proper execution of the Conference. List attendees in minutes of meeting.
       3. Questions From Bidders. The advertisement for the Pre-Bid Meeting should specify
          the submittal of written questions from prospective Bidders for acceptance either at a
          specified date prior to the conference and/or acceptance at the conference.
       4. Responses To Questions. All questions shall be answered as concisely as possible.
          All responses should be in accordance with the requirements of the specifications
          contained in the Bid Package. Responses should not offer additional information or
          meander away from the original question. If further investigation is necessary, a
          response will be provided in writing. NO RESPONSES WILL BE FINAL UNTIL
          ISSUED IN WRITING IN ADDENDUM.
          The answers to all questions must be distributed to all Bidders by Addendum. If a
          question identifies the need to change the Bid Documents, the Bid Documents shall
          be changed in the body of an Addendum, not in the meeting minutes or responses to
          questions.
       5. Minutes. The minutes of the Pre-Bid Conference shall be prepared by the Design
          Professional and reviewed by the System. The System’s review comments shall be
          incorporated as necessary and appropriate prior to distribution of the minutes. The
          Design Professional will distribute the minutes as part of an addendum to the Bid
          Package. All written questions received will be repeated in the minutes and answered
          in the minutes.
       6. SUGGESTED DOs & DON’Ts OF PRE-BID MEETINGS (Not All Inclusive)
          Do discuss a general scope of work, ...............................as specified in the Bid Package.
          Do discuss any unusual conditions, ................................as specified in the Bid Package.
          Do discuss procedures (MBE/WBE & otherwise), .........as specified in the Bid Package.
          Do discuss schedule and liquidated damages, ................as specified in the Bid Package.
          Do discuss unusual or new contractual conditions, ........as specified in the Bid Package.
          Do discuss required bid submittal information, ..............as specified in the Bid Package.
          Do refer to and repeat specific clauses and specifications to answer questions.
          Do allow time for attendees to develop additional questions
          (in other words, a brief period of silence does not mean the conference is over)
          Don’t add words to what is specified in the Bid Package, ............. unless by Addendum.
          Don’t offer additional information, ................................................ unless by Addendum.
          Don’t provide the estimate for the project, ..................................other than Cost Range.
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E.     ADDENDA

       1. SYSTEM APPROVAL
           Addenda shall be coordinated with and approved by the System before issuance.
           The Design Professional shall coordinate with the applicable System representative at
           the project location to obtain approval, which may include actual signature of
           acceptance, prior to issuance to Bidders.
           The Design Professional shall coordinate the actual approval process desired by the
           University prior to the Bid Phase of the project.


       2. PREPARATION TIME FOR BIDDING ADJUSTMENTS
           Addenda must be issued so as to provide the Bidders at least seven (7) calendar
           days preparation time before bid opening.
           No preparation time is required if the addenda contents are administrative in nature
           and do not require additional estimating adjustments by the Bidders.
           No Addenda should be issued to be received less than two (2) calendar days before
           the scheduled bid opening date with out extending the Bid Opening Date.


       3. CONTENTS OF ADDENDA
           A sample Addendum is provided in Article 2-5.3




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F.     RECEIPT OF BIDS

       •   The Bid Documents shall clearly specify the date, time, and location where Bids are
           to be received.
           The Contractor is responsible to assure that the Bid Proposal arrives at the office
           specified in the Notice To Contractors. The System is not responsible for hand
           deliveries unless brought to the specific office specified in the Notice To Contractors.
       •   Bid Proposals shall be submitted in sealed envelopes.         (See Chapter 3, Notice To
           Contractors)
       •   If a Bid Proposal is submitted within a sealed express mail envelope or other mailing
           package, the contained Bid Proposal shall be sealed. The outside of express mail
           envelops or other mailing packages shall indicate that a Bid is enclosed for the named
           project.
       •   The Bidder shall identify the Bid Proposal on the outside of envelope, generally in the
           lower left hand corner with the following information, but as specified in the Bid
           Package:
              Project Name
              Contract Number
              Bid Opening Date
              Bid Opening Time
       •   Bid Proposals shall be received by the System at the time and place specified in the
           Notice To Contractors.
       •   Bid Proposals shall be stamped by the System with the date and time of receipt.
       •   All received Bids should be secured in a secure place prior to the Bid Opening.




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G.     OPENING AND READING OF BIDS AT BID OPENING

       1. WHAT BID PROPOSALS ARE ELIGIBLE TO BE READ?
          For a Bid Proposal to be read at the Bid Opening, it must conform to the following:
           •   The Bid Proposal must be received before the deadline.
           •   The Bid Proposal must be received at the specified location.
           •   The Bid Proposal must be labeled and identifiable.
          • The Bid Proposal must be sealed.
          A Bid Proposal not conforming to ANY ONE OR MORE of the above is
          INELIGIBLE and WILL NOT BE READ.
       2. WHEN IS THE PROJECT ALLOCATION ANNOUNCED?
           •The Project Allocation must be announced when using the Additive Multiple
            Base Bid Format and Matrix Multiple Base Bid Format.
          • The Project Allocation is not announced when using the One Price Bid Format
            or the Deductive Multiple Base Bid Format.
       3. WHAT IS READ FROM EACH ELIGIBLE BID?
          • The only item necessary to be read to the attendees of the Bid Opening is the
            Lump Sum Price (amount to determine award) for a specified Base Bid.
           •For the One Price Bid Format, only the Lump Sum Price is read. If utilized, Unit
            Prices and Alternate Prices need not be read.
          • For a Multiple Base Bid Format, only the Lump Sum Price for each Base Bid is
            read.
       4. WHAT ITEMS OF AN ELIGIBLE BID ARE CHECKED?
           •The entire Bid Proposal is subject to review at the Bid Opening. However, the
            only necessary item to be checked at the Bid Opening is the presence of a
            readable award price. The University may elect to verify the acknowledgement of
            addenda.
          • Following the Bid Opening, the University and/or the Design Professional will
            verify all the information contained in the Bid Proposal that is identified as the
            apparent low bid.
       5. WHAT IS ANNOUNCED AT THE BID OPENING?
          • In addition to the reading of the appropriate items for each Bid Proposal, the
            Apparent Low Bidder is announced.
       6. WHAT SHOULD NOT BE ANNOUNCED AT THE BID OPENING?
          • The System need not announce any perceived problems in the Bid Proposal,
            except those observed in the Lump Sum Price for a specified Base Bid.
           •   The System need not announce an award.

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H.     EVALUATION OF BIDS

       1. RESPONSIBILITIES
           a. The System
               The System should lead the evaluation of the bids, but may delegate certain
               responsibilities to the Design Professional.
               The System will make the final determination concerning the lowest responsible
               and responsive bidder.
           b. The Design Professional
               The Design Professional may assist in the evaluation of bids. The extent of the
               Design Professional’s evaluation services must be clearly stated in the Design
               Professional’s Proposal and subsequent Agreement with the System, whether the
               Standard Form of Agreement or an Individual Work Order for Open End
               Contracts.
               When requested, the Design Professional shall provide written results of the
               evaluations and make recommendations to the System concerning those
               evaluations.


       2. BID TABULATION
           The University should prepare a Bid Tabulation of all bids received.
           The Bid Tabulation should be a clear tabular presentation that shows
              • All the Separate Prime Contracts for the project
              • All the Bidders that submitted Bid Proposals
              • All the Base Bids
              • The Lump Sum Price for each Base Bid
              • Date and time of Bid Opening
              • Names of witnesses
           The apparent low bidder for each Base Bid should be easily identifiable.
           The Project Allocation should be provided on the Bid Tabulation when The Project
           Allocation must be announced when using the Additive Multiple Base Bid Format
           and Matrix Multiple Base Bid Format.
           The Project Allocation should not be provided on the Bid Tabulation when The
           Project Allocation is not announced when using the One Price Bid Format or the
           Deductive Multiple Base Bid Format.




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       3. EVALUATIONS OF APPARENT LOW BIDDERS
           In order to determine if the Apparent Low Bidder is the lowest responsible and
           responsive bidder, the Bid Proposal should be evaluated with respect to the following:
           a. Is The Contractor Responsible? .................................................See Article 2.5-4
               Is the Contractor capable of performing and completing the Project in accordance
               with the Contract? In order to answer this, the following are evaluated:
               1) Financial Information. Has the Contractor provided information relative to
                  his financial resources, and met the requirements listed in Instructions to
                  Bidders, Rider C, with regard to current assets over current liability in relation
                  to the bid price?
               2) Qualification Information. Has the Contractor provided information relative
                  to required qualifications and met the qualifications required to complete the
                  work?
               3) References.       Has the Contractor provided references on successfully
                  completed contracts. Were these references contacted with the result that the
                  referenced work experience was applicable to our project requirements, and
                  that the work was performed to the satisfaction of the Owner?
               4) Schedule Commitment. Has the Contractor stated that the firm is able to
                  comply with the project schedule, taking into consideration all existing
                  business commitments and projects in progress?
               5) Ability To Perform. Has the Contractor stated that the firm has the ability,
                  the necessary organization, and work experience to perform the scope of
                  work?
               6) Bonding Ability. Has the Surety's agent verified that the Contractor has
                  sufficient bonding capacity and will be issued Contract Performance and
                  Payment Bonds?
               7) Past Performance. Has the Contractor performed responsibly on past
                  projects?    Inadequate past performance should be supportable with
                  documented evidence and discussed with University Counsel.
           b. Is The Contractor Responsive?...................................................See Article 2.5-4
               Has the Contractor correctly submitted all information requested in the Bid Form?
               1) Proposal Form. Is all requested information correctly provided?
               2) Contract Compliance, Non-Discrimination, and Business Certification -
                  Are all requested notarizations, seals, and signatures provided?
               3) MBE/WBE. Is “Exhibit A” filled out properly? Is additional evaluation
                  necessary?
               4) Bid Guaranty. Is Bid Bond completed as requested? (System form, bond
                  percentage, name & address, bond date, signature, seal and power of
                  attorney.) Is a check used as Bid Guaranty and is the amount correct?
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           c. Other Evaluations
              1. Evaluation of Bid Amounts received with respect to the Professional’s
                 Estimate.
              2. If the Contractor’s Bid does not reflect the Project’s value or the estimate,
                 verify the Contractor’s understanding of the scope of work and question the
                 Contractor regarding errors in the Bid.
              3. Review of technical and qualification documents that are required to be
                 submitted with the Bid.
              4. Other appropriate reviews.


       4. EVALUATIONS OF MBE/WBE COMPLIANCE
                                  “UNDER CONSTRUCTION”

                 CURRENTLY DEVELOPING NEW LANGUAGE AND EXHIBIT A




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I.     POSTING OF BIDS

       After the Bid Opening, the University should make the results of the Bid Opening
       available to Contractors and others as follows:
       •   Posting of the Bid Tabulation on a web site.
       •   The Bid Proposals can be placed in a binder, and at the request of an interested
           individual, an appointment is made by the individual to view the Bid Proposals at an
           appropriate University office.
       •   Other means as appropriate.
       •   For other requested information, contact the on-campus Right-To-Know Officer (an
           officer has been appointed for each University). Contact University Legal Counsel
           before releasing information.
       The Design Professional should not responsible for the distribution of bid results.




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J.     AWARD
       After a thorough evaluation of the Bid Proposal that is determined to be the lowest
       responsible and responsive bid, the project may be awarded. If there are no Bid Protests,
       a Construction Contract is awarded to the lowest responsible and responsive bidder.


       1. TIME FOR AWARD
           The award requirements of Act 57, The Commonwealth Procurement Code, are
           specified as follows:
              § 3911. Time for awarding contract.
                  (a) General rule.-- In the case of a contract to be entered into by a government
                      agency through competitive sealed bidding, the contract shall be awarded to the
                      lowest responsible and responsive bidder within 60 days of the bid opening, or all
                      bids shall be rejected except as otherwise provided in this section.
                  (b) Delay.-- If the award is delayed by the required approval of another government
                      agency, the sale of bonds or the award of a grant, the contract shall be awarded
                      to the lowest responsible and responsive bidder within 120 days of the bid
                      opening, or all bids shall be rejected.
                  (c) Extensions. -- Extensions of the date for the award may be made by the mutual
                      written consent of the government agency and the lowest responsible and
                      responsive bidder.
                  (d) List of bidders. -- All government agencies shall be required to provide a list of
                      the bidders and their bid amount on each contract within ten working days of the
                      bid opening to interested parties for a fee to be determined by the government
                      agency to cover the cost of developing such list. This requirement shall not apply
                      to the contracting bodies of any political subdivision or local authority which has
                      the authority to enter into a contract.


       2. DELAY OF AWARD DUE TO BID PROTEST
           If there is a Bid Protest, the award will be delayed. Refer to Chapter 3 for the Bid
           Protest Procedures.


       3. TIME FOR AWARD
           For each awarded Construction Contract, the Design Professional shall furnish, at no
           charge, additional copies of the drawings, specifications, and supplemental detail
           drawings, in accordance with the General Conditions of the Construction Contract.
           Typically (5) five sets of “Issued for Construction” plans and specifications are to
           be delivered to each Prime Contractor unless indicated otherwise.


K.     BID PROTEST
       Bid Protest. If there is a Bid Protest, the System will handle the process in accordance
       with current policy and procedures. Refer to Chapter 3 for the Bid Protest Procedures.

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                                     Article 2.5-1

                     Bidding / Builders Exchanges




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                                     Article 2.5-2

                      Pre-Bid Conference - Agenda




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                                     Article 2.5-3

                              Addenda - Example




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                                     Article 2.5-4

                FORMS FOR BID EVALUATIONS

               Bid Evaluation Checklists
      Determination Of Contractor Responsibility
      Determination Of Contractor Responsiveness
    Professional’s Responsibility for Bid Evaluations

                 Request For Bidder’s Information
                       Sample Letter Requesting
       Contractor’s Qualification Statement & Financial Statement




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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                            Chapter 2.6
                      The Contract Award Phase


CHAPTER 2.6          TABLE OF CONTENTS
A. OVERVIEW
B. LOWEST RESPONSIBLE AND RESPONSIVE BIDDER
C. TIMELY AWARD OF CONSTRUCTION CONTRACT
D. CONTRACT PREPARATION
E. CONTRACT TRANSMITTAL TO LEGAL
F. WORK ORDERS FOR QUALIFICATION CONTRACTS


CHAPTER 2.6          LIST OF ARTICLES
None




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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                            Chapter 2.6
                      The Contract Award Phase


A.     OVERVIEW

       1. COMPETITIVE SEALED BID
          This chapter provides information concerning the requirements for preparation of a
          Construction Contract that has been acquired by Competitive Sealed Bid. The most
          often used Construction Contract is the 71-K-110 - Standard Form Of Agreement For
          Facilities Projects. This is the model used in discussions of this chapter.

       2. ALL OTHER METHODS OF CONSTRUCTION CONTRACTING
          Contracts shall be awarded to the bidder or offeror that best satisfies the requirements
          specified in the Invitation For Bid and the Contract.
          While there is no specified time for award and execution of other contract types
          permitted by Act 57, the Contracting Officer should strive to award and execute
          Construction Contracts within in the time frames specified in this chapter.

       3. CHIEF COUNSEL’S CONTRACT MANUAL
          For more detailed information, refer to the manual prepared by the Chief Counsel’s
          Office for the Pennsylvania State System of Higher Education - Manual For
          Preparing And Processing Contracts For Goods And Services. If there are any
          discrepancies between this EA Manual and the Chief Counsel’s manual, the Chief
          Counsel’s Manual controls.

       4. SPECIAL CIRCUMSTANCES
          For circumstances that may not be covered in this EA Manual or in the Chief
          Counsel’s Manual, the preparer of the contract should contact the University’s Legal
          Counsel, and copy the Construction Support Office on those discussions.
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B.     LOWEST RESPONSIBLE AND RESPONSIVE BIDDER

       1. VERIFY DETERMINATION - Lowest Responsible & Responsive Bidder
          Prior to preparation of the Construction Contract, the University should review the
          evaluations that led to the determination of the lowest responsible and responsive
          bidder to ascertain that all aspects of the Bid Evaluation have been adequately
          performed. Some items to review are as follows:
              •   Determination of Contractor Responsibility
              •   Determination of Contractor Responsiveness
              •   Request for Bidder’s Information
              •   Professional’s Responsibilities for Bid Evaluations
              •   Determination of PA Certified Firm (Bureau of Corporations web site)
              •   Determination of PA Certified Surety (Commonwealth published Surety List)
              •   Review and checking of submitted information.


       2. BID TABULATION
          The Contracting Officer should prepare a Bid Tabulation and have it available to
          interested parties within 14 days of the Bid Opening.


       3. BID GUARANTEES
          If Bid Guarantees were required with the submittal of Bid Proposals, the Contracting
          Officer will, within 30 days of the bid opening, return the guarantees with the Notice
          of Award to all but the lowest bidder and next lowest bidder under consideration for
          award.


       4. REQUEST BONDS
          During the award process and if bonds are required, the University must initiate the
          Contractor’s submittal of bonds so that executed bonds can be attached to the
          Contract for execution.


       5. NOTICE OF AWARD
          After identification of the lowest responsible and responsive bidder, the other bidders
          should be notified that a contract is pending with the lowest responsible and
          responsive bidder.
          All bidders shall be informed that all bids remain available for acceptance for the
          period of time stated in the Invitation To Bid or as subsequently extended by mutual
          agreement.
          If the lowest responsible and responsive bidder does not accept the Contract, the
          Contract may be awarded to the next lowest responsible and responsible bidder.

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       6. EXECUTION OF CONTRACT BY UNIVERSITY
          (***UNDER CONSTRUCTION - SEE CONTRACT MA NUAL FOR TEXT***)


       7. APPROVAL OF CONTRACT AGREEMENT BY UNIVERSITY COUNSEL
          AND DEPUTY ATTORNEY GENERAL
          (***UNDER CONSTRUCTION - SEE CONTRACT MANUAL FOR TEXT***)


       8. NOTICE TO PROCEED (NTP)
          After receipt of a fully executed contract, including the required bonds, the
          Contracting Officer will issue a NTP to the Contractor.
          The NTP should include, but is not limited to, the following:
          •   Date of the Pre-Construction Conference, as soon as possible after the issuance of
              the Notice To Proceed, preferably within 10 days of the NTP.
          •   Date the Contractor is to start work, preferably within 10 days of the NTP.
          •   Dates of completion and a statement of the liquidated damages.
          •   A Letter Of Intent may be issued by the System to the Contractor in accordance
              with Act 142 of 2002, §906.
                  Act 142 Of 2002 - §906. Letters Of Intent.
                  Before a contract for construction is effective, the head or a deputy of the
                  purchasing agency may issue binding letters of intent to contract.
                  A bidder or offeror receiving a letter of intent may rely on the letter to prepare to
                  start work to the extent authorized by the letter and incur costs in preparation for
                  performance of the contract.
                  No work on the construction site shall be commenced and no payment shall be
                  made to the bidder or offeror until the contract is fully executed.
                  If the contract is not fully executed, the bidder or offeror shall be entitled to
                  reimbursement for its actual expenses reasonably incurred pursuant to the letter
                  prior to notification from the purchasing agency not to proceed.
                  Reimbursement shall not include any loss of anticipated profit, loss of use of
                  money or administrative or overhead costs.



                    Letter of Intent to be further developed as procedures are developed.




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C.     TIMELY AWARD OF CONSTRUCTION CONTRACT

       1. TIMELINESS FOR CONTRACT EXECUTION
          The following time limits must be monitored in awarding Construction Contracts:
          a. Bid Tabulation should be prepared within 14 Days of Bid Opening.
          b. Bid Guarantees of all but the 2 lowest Bidders under consideration should be
             returned within 30 Days of Bid Opening.
          c. Notice of Award should be prepared within 30 Days of Bid Opening.
          d. Contract Award should occur within 60 Days of Bid Opening.
             If the Contract is not awarded within the first 60 days, the University may request
             that the Contractor provide written acceptance for a 60-day extension, agreeing to
             hold the Bid Price for the extended term, totaling 120 days.
          e. Contract Award should occur within 120 Days of Prevailing Wage Date.
          f. Notice To Proceed should occur provided it is within 60 Days of Award Date.
              - A maximum of 120 days from the Bid Opening without an extension.
               - A maximum of 180 days from the Bid Opening with a 60-day extension.
              The NTP shall be in accordance with any binding Letter of Intent


          The University may tabulate and track the above requirements as follows :
                                  Event                                         Date
          a. Bid Opening Date ......................................................................._______________
          b. Bid Tabulation Prepared..........................................................._______________
             Prepare Within              14 Days of Bid Opening ...................._______________
          c. Bid Guarantees Returned.........................................................._______________
             Return Within         30 Days of Bid Opening ...................._______________
          d. Prevailing Wage Predetermination Date ................................._______________
          e. Award Letter Date ....................................................................._______________
             Award Within               60 Days of Bid Opening ...................._______________
              Award may be extended 60 Days by mutual agreement ............_______________
              Award Within          120 Days of Predetermination Date ....._______________
          f. Notice To Proceed Date ............................................................._______________
             NTP to be within        60 Days of Award Date......................_______________




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       2. CONTRACT AWARD
          a. Award Period – 60 Days. The System may, solely at its own discretion, award a
             Contract to the Contractor providing the responsive best value proposal within
             60 days from the date proposals were due, and shall have the right to waive technical
             defects if in the best interest of the System.
          b. Extended Award Period – 60 Days. A time extension of 60 days for the award may
             be given with written consent of the Contractor.
          c. Contract Award Date. The Contract Award Date is the date on which the
             Award Letter is mailed to the Contractor, and should coincide with the date of the
             Award Letter.
          d. Prevailing Wage Viability Period – 120 Days. The Contract Award Date must
             occur within 120 days after the Determination Date of the Prevailing Minimum
             Wage Predetermination. If not awarded within 120 days, the Contract Specialist
             must act as follows:
                 • Request an updated Prevailing Minimum Wage Determination.
                 • Provide the qualified low bidder with the new Wage Determination.
                 • Request written confirmation from the qualified low bidder that the Bid
                      Proposal remains the same.
                 • Incorporate the new Prevailing Wages into the Contract.
             If the Bidder requests an increase in the Bid Proposal Price, the University would
             reject all bids, and rebid the project with a new Prevailing Minimum Wage
             Determination.




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D.     CONTRACT PREPARATION
       REFER TO LEGAL’S CONTRACT MANUAL FOR VERIFICATION


       1. CONTENTS OF THE AGREEMENT
          The Contents of the Contract, listing each section of the Contract, are listed in the
          initial Agreement pages.
          Page Numbering. Each section of the Contract, the Agreement pages and each
          Rider, must be consecutively numbered, and the total of pages for each section must
          be shown in the initial Agreement pages.
          The contents of this Agreement are as follows (Example):
              Agreement Page(s) & Signature Page                     consisting of   4     pages.
              Table of Contents                                      consisting of   4     pages.
              Rider A   Scope of Work to be Performed                consisting of   4     pages.
              Rider B   General Conditions                           consisting of   34    pages.
              Rider C   Instructions for Proposal Submission         consisting of   4     pages.
              Rider D   Additional Contract Commitments/Information consisting of 10       pages.
              Rider E   Warranties                                   consisting of   2     pages.
              Rider F   Form of Contract Bonds                       consisting of   6     pages.
              Rider G   Contractor Integrity Provision               consisting of   2     pages.
              Attachment 1 - Prevailing Minimum Wage Determination consisting of     1     page.




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       2. AGREEMENT PAGE(S)
           a. Agreement Number. Each agreement must have it own unique number.
              In the case of Facilities Requirements Contracts, any renewal year must have a
              different number than the preceding one.
                  For instance, the original agreement may be #100, and a renewal could be
                  100-1, or 100.A, or any numbering system the University may choose.
           b. Agreement Date and Contract Bond Date.
                The date on the bond must be the SAME OR LATER than the date the contract is
                made.
                The date of the Power of Attorney certification must be the SAME OR LATER
                than the date the agent signs the bonds.
              For practical purposes, the following dates should all be the same:
                      Date of the contract
                      Date of the bonds
                      Date that bonds are certified (in the Power Of Attorney)
           c. Contractor’s Name on Contract. Use the correct name of the Contractor's
              business on the Contract. This must be precisely correct.
                When the Contractor returns the Contact Bond, check that the name is exactly the
                same as on the Contract.
                Businesses that are individually owned (and not incorporated) should identify
                both the name of the owner and the trading name or business name on the
                agreement. For example:          John Doe T/A John’s Concrete
                                                 John Doe D/B/A John’s Concrete.
           d.   Contractor’s Address. The Contractor’s address must include a street address.
                PO Box is not sufficient.
           e.   Contractor’s Type Of Business. Identify the Contractor’s type of business
                organization right after their business name, whether individual, partnership, or
                corporation.
           f.   Federal Identification Number. Provide the Contractor’s Federal I.D. number.
           g.   Agreement Amount and the Bid Amount. Be sure the Agreement Amount
                matches the Bid Amount recorded in the Bid Proposal under the appropriate Base
                Bid.
           h.   Base Bid Number. If there was more than one Base Bid, provide the Base Bid
                Number in the second paragraph after the words “for the sum of $______”.
           i.   Separate Prime Identification. List the type of separate prime work in the third
                paragraph "Work under this agreement shall be entitled Plumbing.”




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       3. SIGNATURE PAGE
          a. Contractor – Corporation Signatures
               •   Two Signatures. When the Contractor is a corporation, 2 signatures are
                   required on the Signature Page:
                            one signature must be the President/or Vice President
                            one signature must be the Secretary/or Treasurer
                   The Assistant Treasurer or Assistant Secretary are acceptable signatures.
                   The office they hold must also be identified.
                   The same two signatures that appear on the Contract Bond must also appear
                   on the Agreement.
               •   Other Authorized Signatures. If the signature of the officers cannot be
                   obtained, the Contractor must submit a certified copy of a Resolution Of The
                   Corporation's Board Of Directors stating that the individual who signed the
                   contract is authorized to bind the Corporation to contracts.
                   The resolution or certification must be dated prior to and not later than the
                   date of the Agreement.
               •   If Only One Officer. Should there only be one officer of the corporation, the
                   Contractor must provide the Contract Specialist with a copy of the
                   incorporation papers or a copy of the Board Of Directors Meeting Minutes
                   appointing one person to all offices.
                   This information does not have to be forwarded with the agreement but must
                   be retained in University’s files and available to Legal Counsel upon request.
           b. Contractor - Individual or Partnership Signature
              If Contractor is an Individual or Partnership, the Individual or a Partner must sign.
           c. University Signature
               The contract must be signed by the President of the University or the President’s
               designee before legal review.
               The Contracting Authority by anyone other than the President must be delegated
               in writing and filed with the Office of the Chancellor.
           d. Office of the Chancellor Signature
              In the past, the Construction Support Office (CSO) reviewed and signed all contracts.
              This no longer occurs. CSO may review certain contracts for certain Universities.
           e. University Legal Counsel Signature
              The contract is reviewed and signed by the University’s Legal Counsel.
           f. Office of Attorney General - Deputy Attorney General Signature
              All contracts are signed by the Deputy Attorney General.



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           g. Office of General Counsel Signature
              Contracts expected to exceed $500,000 during any term, or as specified in an
              Approved Contract Form, are signed by the Office of General Counsel. If the
              contract form does not include a signature line for the Office of General Counsel, one
              should be added by the University
           h. General Notes
              • The Attorney General’s signature is required for the Contract Form 71-K-110.
              • All signatures must be dated.
              • Names must be typed below the signature lines.
              • The titles of signers must be indicated.
              • If the Contractor is an individual or partnership, one signature is required.
              • If the Contractor is a corporation, two signatures are required.
                     One being the President or Vice President.
                     The second being the Secretary or Treasurer
              • The Contractor’s signatory authority of other signatures can be delegated
                provided there is a certified Board Resolution presented with this contract.
           i. Effective Date
              The Effective Date will be stamped on the contract by the Office of University
              Legal Counsel when it is approved and returned from the Office of Attorney
              General. The Effective Date being the date of the letter from the Attorney
              General.

       4. TABLE OF CONTENTS
           After the Signature Page, provide a Table of Contents for the Agreement, Riders, and
           attachments.




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       5. RIDER A - Scope Of Work To Be Performed
           Rider A is intended to be prepared individually for each contract and tailored
           specifically to the scope of work to be performed.
           Rider A provides the University with an opportunity to address any issues that are
           contained in the Bid Documents but are of such important significant to be emphasized
           again.
           a. Project information. Include the following information:
               University Project Name and Number
               The Separate Prime Work that the agreement references (General Construction,
               Plumbing, Electrical, HVAC, etc.)
               Base Bid Number if there is more than one base bid
               List all other contracts (name and project number)
                   General Construction                 Contract No. xxx.1
                   HVAC Construction                    Contract No. xxx.2
                   Plumbing Construction                Contract No. xxx.3
                   Electrical Construction              Contract No. xxx.4
           b. Scope of Work. The following statement shall be included:
                   "The Contractor's scope of work included in this agreement, including any and
                   all design work done by or for the Contractor, shall include the following and
                   all work necessarily implied by the following: [ ---the University shall provide a
                   general description of the scope of work of the specific agreement---]".
           c. Contract Documents. The following statement shall be included:
                   "The Contract Documents shall be located at [--- specify a University location,
                   such as the Director of Facilities Management Office, the Purchasing
                   Department, etc.---] and will be available for viewing for the duration of the
                   Project."
           d. Project Manual. This Rider shall contain the Project Manual’s Table of Contents.
               The following statement shall be included:
                   "The Table of Contents is attached to and is part of Rider A".
               In this manner, the Specifications and Drawings for the project do not have to be
               forwarded to the Legal Staff nor the Attorney General's office.
           e. Liquidated Damages. The University may restate provisions for Liquidated
              Damages provided in the Bid Documents.
           f. Special Terms And Conditions. The University may restate any special terms
              and conditions that should be emphasized, such as construction phases or
              scheduling constraints.
           g. MBE/WBE Participation. The University may restate the commitments that the
              Contractor made to MBE/WBE firms.
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       6. RIDER B - General Conditions
           This is a standard rider the language of which has been approved by Legal Counsel
           and should not be changed.

       7. RIDER C - Instructions For Proposal Submission
           This is a standard rider the language of which has been approved by Legal Counsel
           and should not be changed.
           In the development of Chapter 3 of this EA Manual, this is being considered for
           deletion in conjunction with an alternate “Instruction To Bidders”.

       8. RIDER D - Additional Contract Commitments/Information
           The following shall be incorporated into the contract by reference:
              Notice to Contractors            [---identified and dated---]
              Addendum Number                  [---identified and dated---]
              Contractor Bid Proposal          [---identified and dated---]
              Bidding Documents                [---identified and dated---]
           Except for the Project Manual and Drawings, anything referenced or incorporated
           must be provided to the Attorney General as part of the contract approval process.

       9. RIDER E - Warranties
           This is a standard rider the language of which has been approved by Legal Counsel
           and should not be changed.

       10. RIDER F - Form Of Contract Bonds
           a. System’s Bond Form. The System’s Contract Bond forms must be used.
              Provide 2 original Contract Bonds.
           b. Attorney-in-Fact. The date of the Attorney-in-Fact must be the same date as the
              date that appears on Page 1 of the Contract Bond.
               Provide 2 original Attorney-in-Fact forms. Facsimiles (or copies) are acceptable
               as long as the Surety’s seal is embossed on the copy.
           c. Corporation. In the case of a corporation, the Contractor's corporate seal must
              be on the Contract Bonds, and the corporate seal must be consistent with the
              corporate name; otherwise, the contract will be rejected.
           d. Individual or Partnership. An individually owned business (not incorporated)
              should identify both the name of the owner and the trading name or business
              name on the Contract Bond. For example:  John Doe T/A John’s Concrete
                                                       John Doe D/B/A John’s Concrete.
               The street address of the Contractor must be recorded on page 1 of the Contract
               Bond, without exception. P. O. Box addresses are not acceptable.
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           e. Seals. The Surety Corporate Seals must be on the Contract Bonds.
           f. Approved Surety. The Surety must be either listed on the Commonwealth of
              Pennsylvania Insurance Department Surety List, or have been accepted by the
              Insurance Department.
              The Surety’s street address must be as stated on the current DGS Surety List,
              whether the home office, branch office, or mailing address. Addresses of
              insurance agents are not acceptable.
       11. RIDER G - Contractor Integrity Provision
           This is a standard rider the language of which has been approved by Legal Counsel
           and should not be changed.


       12. ATTACHMENT 1 - Prevailing Minimum Wage Determination
           This is a page prepared by the University that identifies the Prevailing Minimum
           Wage Determination. An example is as follows:
                      BUTLER COUNTY
                      Determination Date       05/22/2001
                      Serial Number            01-3154
                      Project Name             IFB-SSHE-13-01.4 Electrical At Rhoads Hall
                      Awarding Agency          Slippery Rock University Of Pennsylvania
                      Award Date               06/06/2001
                      County Code              10
                      http://www.li.state.pa.us/PWAGE/01-3154.pdf




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E.     CONTRACT TRANSMITTAL TO LEGAL

       The submittal to Legal Counsel shall be as follows:
       1. Legal’s Standard Transmittal Form.        The Transmittal Form developed and
          provided by Legal Counsel must be used. (See Chief Counsel’s Manual For
          Preparing And Processing Contracts For Goods And Services, Appendix R)
       2. Bid Tabulation – 1 copy. One copy of the Bid Tabulation must be attached to the
          Transmittal Form.
       3. Contract – 2 copies. Two copies of the Contract must be attached to the Transmittal
          Form.
       4. Awards to Other Than Low Bidder. Provide a note on the Transmittal Form or in
          an attached letter explaining reasons for an award not made to the low bidder.


                                    Chief Counsel’s Contract Manual
       For more detailed information, refer to the refer to the manual prepared by the Chief Counsel’s
       Office for the Pennsylvania State System of Higher Education –
               Manual For Preparing And Processing Contracts For Goods And Services.
       If there are any discrepancies between this EA Manual and the Chief Counsel’s manual, the Chief
       Counsel’s Manual controls.




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F.     WORK ORDERS FOR CONSTRUCTION CONTRACTS

       1. Preparation of Individual Work Orders. In similar fashion to the preparation of a
          Construction Contract, the University must be attentive to the proper preparation of a
          Work Order that is issued under a Qualification Contract between the System and the
          Qualified Provider.
       2. Instructions Manual for Contract Form 71-K-150. The development of Individual
          Work Orders under Qualification Contracts will not be addressed in the AE Manual
          since it is discussed in a separate manual that has been prepared for the current form
          of Qualification Contract that is utilized by the System – Instructions Manual for
          Contract Form 71-K-150, A Qualification Contract To Acquire Qualified Separate
          Prime Firms. One hard copy of this manual was issued to each University in
          September 2001.




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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                             Chapter 2.7
                        The Construction Phase



CHAPTER 2.7          TABLE OF CONTENTS
A. OVERVIEW


CHAPTER 2.7          LIST OF ARTICLES
None




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         Pennsylvania State System of Higher Education
                 Facilities Manual - Volume 30
         Engineering / Architectural Instructions Manual


                              Chapter 2.7
                         The Construction Phase


A.     OVERVIEW
       1. REFERENCES
          The administration of a project during the Construction Phase is not the topic of this
          AE Manual other than to lead the user to other policies and procedures that have been
          developed by the System and are related to administration during construction.
          The following references are provided:
          •   Commonwealth Act 57 Of 1998                  Commonwealth Procurement Code
          •   Commonwealth Act 142 Of 2002                 Commonwealth Procurement Code
                                                                (Amendments To Act 57)
          •   Commonwealth Act 188 Of 1982                 Establishment And Authorization        Of
              The System
          •   Chapter 30:      The System’s Manual For        Engineering      And      Architectural
              Instructions For Facilities Projects
          •   Chapter 40:      The System’s Manual For        Procurement And Administration Of
              Professional Services For Facilities Projects
          •   Chapter 50:      The System’s Manual For        Administration Of Projects During
              Construction For Facilities Projects
          •   The System’s Policies And Procedures For Disputes
          •   Commonwealth Act Of 1913                      Separate Primes Legislation
          •   Commonwealth Act                              Pennsylvania Prevailing Wage
          •   Commonwealth Act                              Steel Products Procurement Act
          •   Commonwealth Act                              Reciprocal Limitations Act
          •   Commonwealth Act                              Trade Practice
          •   Commonwealth Act Of 1967                      Public Works Contractors’ Bond Law
          •   Federal Act Of 1990                           Americans With Disabilities Act
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