Pennsylvania Act 1968-226 — EQUALIZING TRADE PRACTICES - PUBLIC WORKS PROCUREMENT

Act text

EQUALIZING TRADE PRACTICES - PUBLIC WORKS PROCUREMENT
                 Act of Jul. 23, 1968, P.L. 686, No. 226              Cl. 62
                                  AN ACT

     Equalizing trade practices in public works procurement;
        authorizing the purchase by the Commonwealth, its political
        subdivisions, and all public agencies, of aluminum and steel
        products produced in a foreign country, provided the foreign
        country does not prohibit or discriminate against the
        importation to, sale or use in the foreign country of
        supplies, material or equipment manufactured in this
        Commonwealth; establishing procedures for determining whether
        foreign countries discriminate against supplies, materials or
        equipment manufactured in this Commonwealth; and imposing
        penalties and providing for relief for violation of this act.

        Compiler's Note:  Section 2(a) of Act 53 of 1978 provided
            that the term "court" in Act 226 shall be deemed a
            reference to the Commonwealth Court of Pennsylvania.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  It is hereby determined by the General Assembly
     of Pennsylvania and declared as a matter of legislative findings
     that:
        (1)  It has long been the policy of the Commonwealth not to
     purchase any supplies, equipment, or materials manufactured in
     any foreign country which prohibits the specification for or use
     of supplies, equipment, or materials manufactured in
     Pennsylvania.
        (2)  Many world trading countries, directly or indirectly by
     statute, regulation, policy, procedure, or practice, grant or
     bestow a preference for supplies, equipment or materials
     manufactured in their country, thereby discriminating against
     the use of supplies, equipment or materials manufactured in the
     Commonwealth.
        The Pennsylvania General Assembly therefore declares it to be
     the policy of the Commonwealth that aluminum and steel products
     made in the United States should be purchased by all public
     agencies in preference to aluminum and steel products made in
     foreign countries which discriminate against supplies, equipment
     or materials manufactured in Pennsylvania.
        Section 2.  As used in this act:
        (1)  The word "discriminates" means any act, regulation, or
     policy of a foreign country which, directly or indirectly
        (i)  prevents the importation, sale or use of any supplies,
     materials or equipment manufactured in this Commonwealth;
        (ii)  grants or bestows a preference, discount or other
     competitive advantage to supplies, materials or equipment
     manufactured in the foreign country, the effect whereof is to
     place similar supplies, materials or equipment manufactured in
     this Commonwealth at a competitive disadvantage;
        (iii)  restricts the opportunities for persons having a
     business situs in this Commonwealth to bid on or compete for
     government contracts, including but not limited to a preference
     for residents of the foreign country;
        (iv)  solicits for, awards or negotiates public works
     contracts on a selective tender basis;
        (v)  imposes discriminatory duties, tariffs, or border taxes
     on the importation of supplies, materials, or equipment not
     produced in the foreign country, the effect whereof is to place
     supplies, materials, or equipment manufactured in this
     Commonwealth at a competitive disadvantage with like goods
     manufactured in any foreign country;
        (vi)  adopts or condones any other unfair method of
     competition in international trade, including but not limited
     to, the exportation of aluminum or steel products made in the
     foreign country through cartels or the subsidization of said
     products.
        (2)  The word "person" means natural persons, corporations,
     partnerships, business units, and associations existing under or
     authorized by the laws of either the United States, the laws of
     any of the territories, or the laws of any state.
        (3)  The words "public agency" mean:
        (i)  counties, cities, boroughs, townships, school districts,
     and any other governmental unit or district;
        (ii)  the General State Authority, the State Public School
     Building Authority, the State Highway and Bridge Authority, and
     any other authority now in existence or hereafter created or
     organized by the Commonwealth;
        (iii)  all municipal or school or other authorities now in
     existence or hereafter created or organized by any county, city,
     borough, township or school district or combination thereof; and
        (iv)  any and all other public bodies, authorities, officers,
     agencies or instrumentalities, whether exercising a governmental
     or proprietary function.
        (4)  The words "public works" mean any structure, building,
     highway, waterway, street, bridge, pier, transit car or system,
     airport or other betterment, work or improvement whether of a
     permanent or temporary nature and whether for governmental or
     proprietary use contracted for by any public agency or financed
     in whole or in part by any public agency.
        (5)  The words "aluminum or steel products made in a foreign
     country" mean aluminum or steel products rolled, formed, shaped,
     drawn, extruded, forged, cast, fabricated or otherwise similarly
     processed, or processed by a combination of two or more of such
     operations, from aluminum or steel not made in the United
     States.
        (6) ((6) repealed Apr. 28, 1978, P.L.202, No.53)
        (7)  The word "importer" means any person registered in the
     Commonwealth and doing business in the Commonwealth who engages
     in the receiving, storing, distributing, or other processing of
     aluminum or steel products made in a foreign country; or who
     engages in the solicitation or acceptance of orders or contracts
     for the furnishing of or supplying of aluminum or steel products
     made in a foreign country.
        Section 3.  It shall be unlawful for any public agency to
     specify, purchase, or permit to be furnished or used, in any
     public works, aluminum or steel products made in a foreign
     country which has been determined as discriminating by the
     Court. It shall be unlawful for any importer to sell or offer
     for sale to any person for use in any public works, aluminum or
     steel products made in a foreign country which has been
     determined as discriminating by the Court.
        (3 repealed in part Apr. 28, 1978, P.L.202, No.53)
        Section 4.  If all considerations in or affecting a bid or a
     bidder are equal, each public agency shall give preference to
     aluminum and steel products made in the United States.
        Section 5.  Every public agency shall include in all its
     invitations for bids, schedules, forms of proposal, or purchase
     orders issued for public works after the effective date of this
     act a listing of the foreign countries which have been found by
     the Court to discriminate.
        (5 repealed in part Apr. 28, 1978, P.L.202, No.53)
        Section 6.  (a)  Any public agency, importer, or taxpayer of
     this Commonwealth may file a petition with the Court
     specifically setting forth alleged discrimination, as herein
     defined, by a foreign country and praying for a determination
     thereof. A copy of the petition to the Court and notice of the
     time of hearing set by the court shall be served by registered
     mail, return receipt requested, on the consular officer, if any,
     of the said country having an office in Pennsylvania, and upon a
     person in charge of the embassy of the foreign country in
     Washington, D. C. ((a) repealed in part Apr. 28, 1978, P.L.202,
     No.53)
        (b)  Upon presentation of a petition filed pursuant to
     subsection (a) of section 6, the court shall make an order
     fixing a time for hearing, which hearing shall be fixed on a day
     not later than forty-five days after the filing of the petition.
     The representative of the foreign country and any other
     interested person may appear and present testimony at such
     hearing.
        Section 7.  In any hearing pursuant to this act, the court
     shall consider the statutes, regulations, policies, procedures
     and practices of the foreign country specified in the petition.
        Section 8.  If after a hearing the court determines that the
     foreign country discriminates, it shall direct the Prothonotary
     of the Court to enter the foreign country's name in a docket
     maintained in his office to be entitled foreign registry docket.
        (8 repealed in part Apr. 28, 1978, P.L.202, No.53)
        Section 9.  Any foreign country determined to be practicing
     discrimination may petition the Court to have its name stricken
     from the foreign registry docket. The court shall grant the
     prayer of the said petition if, after hearing, it determines
     that said foreign country has discontinued and not engaged in
     discrimination, as herein defined, for a period of at least
     three hundred sixty-five days prior to the filing of the
     petition. Notice of the filing of said petition shall be served
     upon the original petitioner and all other parties to the
     original petition.
        (9 repealed in part Apr. 28, 1978, P.L.202, No.53)
        Section 10.  It shall be unlawful for any person, in the
     performance of his public works contract, subcontract or
     purchase order to furnish aluminum or steel products made in a
     foreign country, which country is listed on the foreign registry
     docket, and such person shall not be eligible, nor shall any
     organization, corporation, partnership, business unit,
     association, or joint venture in which said person has a
     substantial interest be eligible, to bid on or be awarded any
     contract or subcontract, or be issued a purchase order, for
     public works for a period of three years. Notwithstanding the
     preceding sentence a person shall not be held to have violated
     this act if he has not received notification of the listing as
     provided in section 5, or solely because his subcontractor or
     supplier of materials violates this act, provided said person
     had no knowledge of said violation.
        Section 11.  This act is intended as remedial legislation
     designed to promote the general welfare and stimulate the
     economy of the Commonwealth and its people and each and every
     provision hereof is intended to receive a liberal construction
     such as will best effectuate the purpose and no provision is
     intended to receive a strict or limited construction.
        Section 12.  If any provision of this act or the application
     thereof to any person or circumstance is held invalid, the
     invalidity does not affect other provisions or applications of
     the act which can be given effect without the invalid provision
     or application, and to this end the provisions of this act are
     severable.
        Section 13.  This act shall take effect August 1, 1968, but
     shall not apply to any contract awarded pursuant to an
     invitation for bids issued on or before said date.