Current through Register Vol. 54, No. 44, November 2,
2024
The Department will enforce the act through
investigations, audits, sanctions and civil penalties in accordance with the
following guidelines.
(1)
Investigations of complaints. The Department will accept,
review and investigate timely and credible complaints filed on the Complaint
Form posted on the Department-s web site.
(i)
A complaint must contain sufficient information to enable the Department to
investigate the allegation. The Department reserves the right to reject
complaints that do not provide sufficient information.
(ii) The Department will also consider the
timeliness of the complaint in assessing its credibility. A complaint is
generally considered timely if it is filed prior to the date on which final
payment is issued on the public works contract.
(iii) Public bodies, public works contractors
and subcontractors shall cooperate with the Department during the investigation
of a complaint.
(2)
Audits. The Department will conduct complaint-based and random
audits of public works contractors and subcontractors performing a public works
contract for a public body in this Commonwealth. The Department reserves the
right to determine the time, place and nature of audits.
(i) Public bodies, public works contractors
and subcontractors shall cooperate with the Department during an
audit.
(ii) Upon an audit, the
Department may request, and the public works contractors and subcontractors
shall provide, the following:
(A)
Documentation of the date of hire of all employees.
(B) Documentation of compliance with the act
through the utilization of EVP.
(C)
Other information required by the Department to ensure compliance with the act
and utilization of EVP.
(3)
Sanctions.
(i) If the Department-s investigation
determines that a public works contractor or subcontractor failed to verify an
employee through the use of EVP in accordance with the act and this chapter,
the Department will issue sanctions as follows:
(A)
First violation. The
Department will issue a warning letter to the public works contractor or
subcontractor detailing the violation. This letter will be posted on the
Department-s E-Verify web site at
www.dgs.state.pa.us. A violation by a public
works contractor or subcontractor that occurs 10 years or more after a prior
violation will be deemed to be a first violation for purposes of
sanctions.
(B)
Second
violation. The Department will initiate debarment proceedings against
the public works contractor or subcontractor. Once final, these proceedings
will prevent a public works contractor or subcontractor from submitting a bid
or being awarded a contract or subcontract on a public works contract in this
Commonwealth for 60 calendar days from the date of debarment.
(C)
Third and subsequent
violations. The Department will initiate debarment proceedings against
the public works contractor or subcontractor. Once final, these proceedings
will prevent a public work contractor or a subcontractor from submitting a bid
or being awarded a contract or subcontract on a public works contract in this
Commonwealth for not less than 1 year and not more than 2 years from the date
of debarment.
(ii)
Willful violation. If the Department investigates and forms a
reasonable belief that there has been a willful violation of the act, the
Secretary will file a petition in Commonwealth Court seeking the Court to issue
a rule to show cause why a public works contractor or subcontractor did not
engage in a willful violation of the act. If the Court finds that there was a
willful violation, the Department will petition to have the public works
contractor or subcontractor debarred from public work contracts for 3 years
from the date of the Court-s determination.
(4)
Civil penalties. If the
Secretary or a designee makes a written determination that the violation is for
failing to provide the Form as required or making a false statement or
misrepresentation in the Form, the Department will assess a civil penalty of
not less than $2,500 and not more than $25,000 for each violation. The amount
of the penalty is at the Department-s discretion. The Department will consider
the duration and severity of the violation, and prior violations in imposing
civil penalties.
(5)
Notice
and appeal. Sanctions or civil penalties imposed by the Department,
other than those violations found to be willful, are subject to the notice,
appeal and other provisions of 2 Pa.C.S. (relating to administrative law and
procedure).
