[4 PA. CODE CH. 7] [EXECUTIVE ORDER 2004-4] [34 Pa.B. 3238] Anti-Sweatshop Procurement Policy March 18, 2004
Whereas, the Commonwealth, as a major purchaser of goods and services, must be cognizant of fair labor conditions in its actions as a market participant; and
Whereas, the Commonwealth Procurement Code instructs the Department of General Services and the Office of the Budget to participate in the management and maintenance of a contractor responsibility program as directed by the Governor; (62 Pa.C.S. Sections 321(6) and 327(b)); and
Whereas, the Commonwealth has a compelling interest in assuring that the apparel it procures from vendors is manufactured and laundered in compliance with applicable laws relating to workplace conditions and by workers who receive fair wages for their work; and
Whereas, legitimate providers of apparel and apparel laundering services are placed at a competitive disadvantage when forced to bid for state procurement contracts against businesses that utilize sweatshop conditions; and
Whereas, the public interest requires that the Commonwealth use its stature and leadership as a market participant to promote fair treatment of the workforce and the elimination of sweatshop conditions.
Now, Therefore, I, Edward G. Rendell, Governor of the Commonwealth of Pennsylvania, by virtue of the authority vested in me by the Constitution of the Commonwealth of Pennsylvania and other laws, do hereby order as follows:
GovernorFiscal Note: GOV 04-6. No fiscal impact; (8) recommends adoption.
Annex A TITLE 4. ADMINISTRATION PART I. GOVERNOR'S OFFICE CHAPTER 7. MISCELLANEOUS PROVISIONS Subchapter XX. ANTI-SWEATSHOP PROCUREMENT POLICY Sec.
7.811. Scope. 7.812. Contractor certification. 7.813. Contents of bids and proposals. 7.814. Responsibility determination. 7.815. Notice of changes during contract term. 7.816. Remedies and sanctions. 7.817. Applicable law. 7.818. Waiver. 7.819. Definitions. 7.820. Effective date. § 7.811. Scope.
This subchapter applies to all apparel procured by or for Commonwealth agencies and all laundering services provided through contract to Commonwealth agencies. This subchapter does not apply to apparel manufactured by, or laundered by, inmates of any Pennsylvania Department of Corrections correctional institution and provided to Commonwealth agencies for their use.
§ 7.812. Contractor certification.
(a) A Commonwealth agency may not enter into a contract for the procurement of apparel or apparel laundering services until the contractor certifies and agrees that every employee engaged in the manufacture of the apparel, or the laundering of apparel, shall be or has been:
(1) Compensated by his employer at an hourly rate at least equivalent to the poverty threshold.
(2) Provided with working conditions that meet or exceed the International Labor Organization (ILO) Conventions' standards governing forced labor, child labor, payment of wages, hours of work, occupational health, occupational safety and nondiscrimination and that are in compliance with applicable Federal, State and local laws of the locality of manufacture, except when the conditions are preempted by Federal or State law.
(b) In the alternative, the contractor can certify that a collective bargaining agreement is in effect, and will remain in effect, during the manufacture of the apparel between the operator of the manufacturing facility and the employees engaged in the manufacture of the apparel and that the employees are represented by a responsible organization that is not influenced or controlled by management.
§ 7.813. Contents of bids and proposals.
(a) A Commonwealth agency shall require that each bid or proposal submitted for a contract for the procurement of apparel or apparel laundering services includes the following:
(1) A list of each proposed facility to be utilized in the manufacture of the apparel or the laundering of the apparel, including any subcontractors, with the business name, address, contact person and telephone number for each facility.
(2) The certification required by § 7.812 (relating to contractor certification).
(b) The information provided by bidders and offerors in response to the requirements of this section will be made available to the public (excluding other offerors and their representatives and agents) when requested, but subject to nondisclosure requirements.
§ 7.814. Responsibility determination.
A Commonwealth agency may not enter into a contract for the procurement of apparel or apparel laundering services until the agency determines that the apparel will not be manufactured in a facility that utilizes sweatshop conditions. In making the determination, the Commonwealth agency may do one or more of the following:
(1) Consider the contractor certifications required by § 7.812 (relating to contractor certification).
(2) Request further information and documentation from the contractor or the manufacturing or laundering facility.
(3) Seek and receive information from workers, labor unions, manufacturers, consumer groups, international organizations and groups, and other parties.
§ 7.815. Notice of changes during contract term.
A Commonwealth agency shall contractually require that each vendor awarded a contract to furnish apparel or apparel laundering services shall provide written notice to the purchasing Commonwealth agency of any changes during the term of the contract to the information provided in compliance with § 7.813 (relating to contents of bids and proposals).
§ 7.816. Remedies and sanctions.
(a) The Department of General Services shall pursue appropriate remedies and sanctions against a bidder, contractor, manufacturer or other party for any of the following:
(1) Failure to comply with the requirements of the bid or the contract.
(2) False certifications.
(3) Any retaliation or attempt to retaliate against employees who report alleged violations of this subchapter or noncompliance with a contract.
(4) Any other violation of this subchapter.
(b) Remedies may include rejection of a bid or proposal, termination of an award or contract, and collection of damages. Sanctions may include suspension or debarment, or both, from the privilege of contracting with any Commonwealth agency and possible criminal prosecution. A bidder may escape sanctions if, prior to submission of its bid, it obtains signed certifications from its subcontractors, meeting the requirements under § 7.812 (relating to contractor certification). This will not limit the Commonwealth agency's ability to terminate the award or the contract, upon 30 days notice of violation of this subchapter, after giving the vendor a reasonable right to cure.
§ 7.817. Applicable law.
Unless otherwise specified, applicable laws for purposes of this subchapter shall be determined as follows:
(1) Employers in this Commonwealth shall be in compliance with applicable Pennsylvania law and Federal law.
(2) Employers based in other states in the United States shall be in compliance with applicable laws of their states and Federal law.
(3) For employers whose locations for manufacture or assembly are outside the United States, those employers shall be in compliance with applicable laws of countries where the facilities are located.
§ 7.818. Waiver.
Specific requirements of this subchapter may be waived by the head of any Commonwealth agency when it is determined, in writing, that there is no vendor able to meet those specific requirements.
§ 7.819. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Apparel--Products manufactured, woven, cut, sewn or otherwise similarly processed by mechanical or human effort from fabrics, leather or cloth made for use as clothing, shoes or other attire.
Commonwealth agency--An executive or independent agency as defined by 62 Pa.C.S. § 103 (relating to definitions).
Employer--The operator of a facility at which individuals are employed in the manufacture or laundering, or both, of apparel.
Poverty threshold--The poverty threshold for a family of three, as published by the United States Department of Health and Human Resources, plus an additional 20% in wages if health benefits are not provided, and reduced by any mandatory deductions in employee pay for housing, transportation, meals or required job equipment. For non-United States facilities, the Commonwealth purchasing agency may adjust the United States Department of Health and Human Resources' poverty threshold to reflect the country's level of economic development by using a factor such as purchasing power parity or relative standard of living.
Procure--To buy, purchase, rent, lease or otherwise acquire through an employee uniform allowance or voucher program.
Sweatshop conditions--Work conditions, as determined by the purchasing Commonwealth agency, where the following apply:
(i) Employees are compensated by their employer at an hourly rate below the poverty threshold.
(ii) Employees are not provided with working conditions that meet or exceed the International Labor Organization (ILO) Conventions' standards governing forced labor, child labor, payment of wages, hours of work, occupational health, occupational safety, and nondiscrimination and that are in compliance with applicable Federal, State and local laws of the locality of manufacture, except when the conditions are preempted by Federal or State law.
Working conditions--Conditions in the workplace such as hours of employment, cause for termination of employment, child labor, discrimination, environmental health and safety, freedom of association and assembly and applicable building and fire codes.
§ 7.820. Effective date.
This subchapter is effective for all invitations for bids and requests for proposals issued after March 18, 2004, and for all contracts awarded 30 days or more after March 18, 2004.
[Pa.B. Doc. No. 04-1114. Filed for public inspection June 25, 2004, 9:00 a.m.]
