Section 449.3. Advertising, bidding and bond requirements

(a) General rule. Advertising, bidding, and a performance bond are required by statute on purchases and contracts in excess of $10,000, with certain exceptions indicated in subsection (b). See: sections 1.1 and 1.2 of the act of March 7, 1901 (P. L. 20, No. 14) (53 P. S. § § 23308.1 and 23308.2); sections 1901—1918 of the act of June 23, 1931 (P. L. 932, No. 317) (53 P. S. § § 36901—36918); sections 1401—1411 of the act of February 1, 1966 (P. L. (1965) 1656, No. 581) (53 P. S. § § 46401—46411); the act of May 27, 1953 (P. L. 244, No. 34) (53 P. S. § § 53201—53209); sections 1801—1811 of the act of June 24, 1931 (P. L. 1206, No. 331) (53 P. S. § § 56801—56811); sections 801—808 of the act of May 1, 1933 (P. L. 103, No. 69) (53 P. S. § § 65801—65809); and the Public Works Contractors’ Bond Law of 1967 (8 P. S. § § 191—202).

(b) Evasion prohibited. While it is lawful to make a purchase or contract for up to $10,000 without advertising and bidding, it is unlawful to enter into several less-than $10,000 contracts with the same person or with several persons merely for the purpose of evading advertising and bidding requirements.

(c) Bonds. Bonds shall include the following:

(1) Bid bond. A bid bond guarantees that the bidder will execute the contract in the event he is declared the winning bidder.

(2) Performance bond. A performance bond guarantees that work, materials and equipment will be provided at the time specified in the contract. A performance bond does not guarantee the quality of the work, materials and equipment.

(3) Payment bond. A payment bond guarantees that the contractor or supplier will pay his workers, subcontractors and suppliers.

(d) Emergency exception to advertising and bidding requirements. Whenever municipal officials determine that an emergency condition exists rendering it essential to undertake immediate repair or maintenance work to protect the health, safety or welfare of the people, the emergency work may be contracted for by the municipality without the necessity of advertising for competitive bids for the project.

(1) An emergency which will warrant dispensing with advertising for competitive bids must be immediate, unforeseen and existing. A condition which may or may not arise in the future or a condition which should reasonably have been foreseen in time to advertise for bids will not warrant dispensing with normal advertising and bidding requirements.

(2) The determination of the emergency and the actions of the municipal officials in contracting for emergency work shall be fully documented for Department review.

(e) Exception to advertising, bidding and bonding requirements for home rule charter municipalities. In the case of any municipality which has adopted a home rule charter, the Department will recognize charter provisions which are contrary to the advertising, bidding and bonding requirements in this chapter or in the various municipal codes.

(f) Brand names. In advertising for equipment to be rented or purchased, or for materials to be purchased or delivered in place, it is unlawful to require or specify any particular make or brand thereof, thereby excluding other makes or brands. A particular brand name or its equivalent may be specified if equal consideration is given to all brands which are reasonably similar to the specified brand. The specifications shall be reasonable and not merely imposed to exclude some brands of equipment or material in favor of other brands.

The provisions of this § 449.3 amended through August 20, 1982, effective August 21, 1982, 12 Pa.B. 2802; amended May 16, 2003, effective May 17, 2003, 33 Pa.B. 2378. Immediately preceding text appears at serial pages (240958) to (240959).

Notation

Authority

The provisions of this § 449.3 issued under The Administrative Code of 1929 (71 P. S. § § 511.3, 512 and 513); and act of June 1, 1956 (P. L. (1955) 1944, No. 655) (72 P. S. § § 2615.1—2615.10); amended under the Vehicle Code, 75 Pa.C.S. § § 6103 and 9511; and the act of June 1, 1956 (P. L. (1955) 1944, No. 655) (72 P. S. § § 2615.1—2615.10).