DEPARTMENT OF AGRICULTURE
Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures for Act 39 of 2016 Funding
[50 Pa.B. 3744]
[Saturday, July 25, 2020]
1. Introduction. The Pennsylvania Wine Marketing and Research Program Board annually, or more frequently as the availability of fund permits, solicits applications for grants to conduct promotion, marketing and research projects to increase the quality, profitability, production and sale of wines, enhance the wine industry and benefit wine producers of this Commonwealth. The Pennsylvania Wine Marketing and Research Program Board was established by the Department of Agriculture (Department) under 3 Pa.C.S. §§ 4501—4513 (relating to Agricultural Commodities Marketing Act) (ACMA). Its composition, funding and duties were subsequently expanded by section 488.1 of the Liquor Code (47 P.S. § 4-488.1). The Pennsylvania Wine Marketing and Research Program Board makes recommendations for the awarding of grants by the Liquor Control Board from funds provided through the Liquor Code (47 P.S. §§ 1-101—10-1001) for Liquor Control Board Act 39 of 2016 funding. This notice establishes the procedures by which grant applications will be solicited, reviewed and grants awarded. Priority is being given to projects that will help support the Pennsylvania Wine Industry's recovery as it navigates and emerges from the novel coronavirus (COVID-19) pandemic. Applicants with projects aligned to COVID-19 recovery, with an outcome that would benefit Pennsylvania's wine and beer industries, and where the scope is warranted are encouraged to submit proposals to both the Pennsylvania Wine Marketing and Research Program Board and the Pennsylvania Malt and Brewed Beverage Industry Promotion Board for joint funding. Projects submitted jointly to both boards will be reviewed and must be approved by each board independently.
2. Grant Solicitation. The Pennsylvania Wine Marketing and Research Program Board will be accepting grant applications for the purposes, in the form and according to the schedule set forth herein for not less than 30 days beginning on the date of publication of this notice in the Pennsylvania Bulletin. Additional publication and dissemination of this notice shall be made and may include direct dissemination to State universities and State-supported universities located in this Commonwealth, universities with colleges of agricultural science located in this Commonwealth and individuals or entities who have requested notification from the Department of Agriculture or the Pennsylvania Wine Marketing and Research Program Board of grant availability.
3. Process Overview. The Pennsylvania Wine Marketing and Research Program Board will employ the review process described as follows to select projects and funding levels to recommend to the Liquor Control Board for the making of a grant. In the event of a recommendation to the Liquor Control Board to make and fund a grant, the decision as to whether to award a grant will be made by the Liquor Control Board.
a. If the Liquor Control Board approves the grant recommendation, the terms and conditions of the grant will be governed by a grant agreement between the Liquor Control Board and the applicant, which shall be tendered to the applicant for execution by the Liquor Control Board, returnable to the Liquor Control Board in no more than 30 calendar days.
b. The Liquor Control Board grant agreement follows hereto as Addendum 1 and incorporated by reference. The terms are non-negotiable; therefore, applicants shall carefully review the Liquor Control Board grant agreement to ensure that proposed projects are compliant with agreement requirements. Applicants who submit proposals to both the Pennsylvania Wine Marketing and Research Program Board and the Pennsylvania Malt and Brewed Beverage Industry Promotion Board for joint funding will be required to enter into a separate agreement for funding from each board, with separate purchase orders for each funding source, and split invoices for reimbursement to reflect a 50/50 allocation of expenses to each funding source.
c. It is also recommended that applicants seek private counsel experienced in Pennsylvania liquor law to provide guidance as it pertains to the Liquor Code and the Liquor Control Board's regulations at 40 Pa. Code §§ 1.1—17.41 (relating to liquor) to ensure the legality and viability of grant projects and proposed activities.
4. Application. Applicants shall submit a Project Proposal and Grant Application, in the form set forth in paragraph 5 of this notice, to the Pennsylvania Wine Marketing and Research Program Board by 4 p.m. on Friday, August 21, 2020. Proposals should be sent electronically to RA-AGCommodities@pa.gov. Applications should be addressed and delivered to the Department of Agriculture, Bureau of Market Development, Attn: Agricultural Commodity Board Grant Program, 2301 North Cameron Street, Harrisburg, PA 17110-9408.
5. Format of the Project Proposal and Grant Application. The project proposal and grant application cannot exceed 10 pages total for project and budget narratives, plus one additional page for the budget table and shall be formatted as follows:
a. A cover page, titled Pennsylvania Wine Marketing and Research Program—Project Proposal and Grant Application, providing: the title of the proposed project; the full legal name and street address of the applicant; the name, address, telephone number and e-mail address of the applicant's principal contact person for matters relating to the application; and the total maximum grant amount sought for the proposed project or program.
b. Section 1, titled Statement of Purpose, explaining or presenting: the purpose for which the grant funds would be utilized and identifying methods for measuring and reporting outcomes; details of the proposed project, including a statement of expected impact of outcomes, staffing for the project, and objectives and methodologies; and whether, how and to what anticipated extent, the proposed marketing or research project increases the quality, profitability, production and sale of wines, enhances the wine industry and benefits wine producers of this Commonwealth.
c. Section 2, titled Statement of Need, addressing: the need for the grant funds sought; any other partners or partner organizations that will be involved with the project; and any other funding or noncash resources that will be committed to the project and the sources thereof.
d. Section 3, titled Budget, presenting a detailed budget for the proposed project or program, including any other matching funds and the value of any noncash resources that will be included in the project. In the case of a proposal submitted jointly to the Pennsylvania Wine Marketing and Research Program Board and the Pennsylvania Malt and Brewed Beverage Industry Promotion Board, the budget must reflect a 50/50 allocation of expenses to each program throughout. Each and every item of direct expense to be incurred in the project shall be separately set forth, including all purchases of consumable or nonconsumable goods or equipment, listing the disposition of all nonconsumable goods or equipment upon completion of the project; all travel by dates, purpose, destination, mode of transportation and rate; a full breakdown of other costs, if any, and the method used to calculate those costs. See also paragraph 11.
i. Personnel—Includes employed personnel. Those employed elsewhere should be listed as subcontractors or consultants in the Contractual cost category. Provide detail of all personnel by name devoted to the project, their professional qualifications, the amount of time calculated by hours and the tasks to be performed by each of the named personnel.
ii. Fringe Benefits—Provide the rate of fringe benefits for each project participant's salary. Identify the total for all funded fringe benefits.
iii. Travel—Calculate the costs for travel by considering destinations, number of trips, days traveling, transportation costs, estimated lodging and meal costs, and estimated mileage rate.
iv. Supplies—This could be anything from office supplies and software to education or field supplies.
v. Contractual—If contractual work will be involved with carrying out the work of the project, identify the total contractual expenses. When determining the total cost for this category, include the fees for the professional services, travel costs, lodging expenses, indirect costs as provided in paragraph 11, and any other related contractual expenses.
vi. Other—This category includes fees for conferences or meetings, facility and equipment rental costs, lodging and meal expenses, communication costs, speaker fees, publication costs and data collection.
e. Section 5, titled Industry Support, describing the extent of any support, participation and funding from the Commonwealth's wine industry, including any written confirmation of that support, participation or funding.
f. Due to limitations of Commonwealth equipment and considering that all Liquor Control Board grant communications will be conducted electronically, applicants should not use color in any tables, graphs, charts or other material elements of the proposals. Black and white or gray-scale should be used in such elements to ensure ongoing document integrity.
6. Scoring of Applications. The Pennsylvania Wine Marketing and Research Program Board will evaluate each complete and timely-filed project proposal and grant application it receives, which shall include a 100-point scale assessing:
a. Up to 20 points for the project needs statement.
b. Up to 20 points for the expected impact of project outcomes.
c. Up to 20 points for the promotion, marketing or research methodology.
d. Up to 20 points for overall project evaluation.
e. Up to 20 points for support and participation from industry.
If any joint funding proposals are received per paragraph 1, the Pennsylvania Wine Marketing and Research Program Board and the Pennsylvania Malt and Brewed Beverage Industry Promotion Board will each independently evaluate and score based on each board's criteria. For a recommendation for funding a joint proposal to be made to the Liquor Control Board, each board must independently approve the proposal for recommendation and then agree to joint funding with the other.
7. Evaluation, Recommendations and Awards. The Pennsylvania Wine Marketing and Research Program Board reserves the right to request modifications or clarifications, or both, of project proposals and grant applications, including but not limited to additional detail of purpose, reduced or modified budgets, and the like. Upon completion of evaluations, the Pennsylvania Wine Marketing and Research Program Board will prepare a record identifying each complete and timely filed project proposal and grant application received, and the numerical score assigned to each.
In the event of one or more recommendations to the Liquor Control Board to make and fund a grant, the Pennsylvania Wine Marketing and Research Program Board will transmit to the Liquor Control Board the complete and final project proposal and grant application along with the score assigned by the Pennsylvania Wine Marketing and Research Program Board and any other information deemed relevant by the Pennsylvania Wine Marketing and Research Program Board or requested by the Liquor Control Board. Request will be made by the Pennsylvania Wine Marketing and Research Program Board that the Liquor Control Board respond to all recommendations for grant approval within 30 days. The Liquor Control Board's three-member board will vote on these recommendations at a public meeting, and the Liquor Control Board will directly contact those applicants whose proposals/applications are approved. The Liquor Control Board is responsible for notifying applicants whose projects were recommended by the Pennsylvania Wine Marketing and Research Program Board for Liquor Control Board funding, but which the Liquor Control Board determined not to fund.
8. Term of Grants. Grant Agreements will become effective on the date of the last required Commonwealth approval (Effective Date). While the Liquor Control Board cannot guarantee how quickly each grant agreement will be finalized, it is anticipated that fully executed grant agreements will facilitate projects beginning in fall 2020.
a. No reimbursements will be made by the Liquor Control Board for any grant activity commencing prior to the Effective Date.
b. Research projects will have a term of 18 months. All other projects will have a term of 12 months.
c. Grant terms may be extended for up to 90 days, if mutually agreed upon by the Liquor Control Board and the grantee based on circumstances requiring additional time to complete the project, but in no case will research grants exceed 21 months nor all other projects exceed 15 months. Grant applicants are encouraged to plan projects and proposals accordingly.
d. A Notice to Proceed, Purchase Orders fully executed agreements, and invoicing instructions will be provided by Liquor Control Board by means of e-mail.
e. Any jointly funded projects per paragraph 1 will require two separate grant agreements and two separate purchase orders with the Liquor Control Board, with funding split equally between Wine Marketing and Research funds and Malt and Brewed Beverage Industry Promotion funds. Grantees will be required to submit separate invoices for each funding stream, attributing half of each expenditure to each purchase order.
f. Final invoices shall be submitted to the Liquor Control Board within 60 days of contract end date as set forth in the Grant Agreement.
g. See Addendum 1 Grant Agreement for more details about the Liquor Control Board's grant administration practices.
9. Progress Reports. Progress reports are to be delivered by e-mail to RA-AGCommodities@pa.gov no later than October 1, and April 1, every year for the duration of the project, or as requested by the Pennsylvania Wine Marketing and Research Program Board. Final reports should be submitted to RA-AGCommodities@pa.gov within 90 days of contract end date.
10. Grant Agreement. The Liquor Control Board will provide applicants with a grant agreement for Grantee's execution and return within 30 calendar days. The Liquor Control Board will obtain the required signature on the grant agreements, including any other required Commonwealth entities, and return a copy to the applicant. Unless otherwise stated in the executed grant agreement, no grant agreement is effective, and work should not begin until all required signatures have been applied to the grant agreement. Among the terms of the grant agreement shall be a requirement that the grant recipient provide the Pennsylvania Wine Marketing and Research Program Board full and complete access to all records relating to the performance of the project and submit information as the Pennsylvania Wine Marketing and Research Program Board may require.
11. Cost-Reimbursement Grant and Indirect Costs Cap. Grants made hereunder do not require the applicant secure or devote a matching sum to the project. Payment of grant funds will occur on a reimbursement basis only. Grant awards may include an allowance for indirect costs of up to 10%. In the case of graduate student participation, reasonable stipends will be allowed, and tuition will not be allowed.
RUSSELL C. REDDING,
LIQUOR CONTROL BOARD GRANT AGREEMENT
GRANT AGREEMENT PURSUANT TO
47 P.S. § 4-488.1
This Grant Agreement is entered into by and between the Pennsylvania Liquor Control Board, 312 Northwest Office Building, Harrisburg PA 17124 (hereinafter referred to as ''PLCB'' or ''Grantor''), and ______ , (hereinafter referred to as ''Grantee'') (collectively, ''the Parties'').
1. Pursuant to sections 488(k) and 448.1 of the Pennsylvania Liquor Code, 47 P.S. §§ 4-488(k) and 4-488.1, the PLCB shall allocate the amount of $1,000,000 annually to be used to award grants to entities for the purpose of increasing the production of Pennsylvania-made wines and enhancing the Pennsylvania wine industry through promotion, marketing and research-based programs and projects.
2. The Pennsylvania Wine Marketing and Research Program Board (''Wine Board'') was established by the Pennsylvania Department of Agriculture under the authority of the Pennsylvania Agricultural Commodities Marketing Act at 3 Pa.C.S. §§ 4501—4513. Its composition, funding and duties were subsequently expanded in the Pennsylvania Liquor Code; specifically, at 47 P.S. § 4-488.1.
The Wine Board is statutorily charged with establishing procedures by which an entity may submit an application for grant funding pursuant to 47 P.S. § 4-488(k) and § 4-488.1; reviewing all such grant applications; and making recommendations to the PLCB for the awarding of the grants.
The Wine Board is further statutorily charged with requiring grant recipients to provide full and complete access to all records relating to the performance of the grant; conducting a thorough annual evaluation of each program for which a grant is made; and submitting an annual report to the General Assembly detailing all actions of the Wine Board and the grants awarded pursuant to section 488(k) and 488.1 of the Liquor Code.
3. The PLCB has made the aforementioned allocation; the Wine Board has established the requisite procedures and process; the Grantee has applied for a grant pursuant thereto; the Wine Board has recommended to the PLCB to make a grant to the Grantee as detailed in Appendix G, attached and incorporated by reference; and the PLCB has approved the award of the grant (''the Grant'').
In consideration of the foregoing recitals, which are incorporated herein, and the mutual promises contained in this Grant Agreement, the Parties, intending to be legally bound, agree as follows:
a. This Grant is for funding the Project Proposal and Grant Application (''the Project'') summarily described as follows and in more detail in the documents attached hereto and incorporated herein as Attachment G.
b. No increases to the funding amount or changes to the approved scope of work will be permitted under any circumstance; however, minor revisions to the Project timeline, methodology and/or budget(s) contained in Attachment G may be approved by the PLCB at its sole discretion upon review of Grantee's written request and justification for same. Grantee shall submit such requests via email to the PLCB's resource account at RA-LBAct39Grants@pa.gov (''the Resource Account''), and the PLCB will respond to the request via the same Resource Account within ten calendar days of its receipt of the request. In no event may such minor revisions have retroactive effect.
2. OPERATIONAL REQUIREMENTS
a. All communications between the Grantee and the PLCB, including but not limited to questions, notifications, requests, and invoice submissions, shall be conducted via email to and from the PLCB's aforementioned Resource Account. Grantee expressly accepts this method of electronic communication and is responsible to timely provide notice to the PLCB via the Resource Account if there are any changes or additions to the Grantee's contact information. The PLCB will utilize best efforts to respond to all inquiries from Grantee within five business days of receipt of an email, except as otherwise provided herein.
b. In order to be issued an approved Purchase Order and to receive Grant funds, if the Grantee does not have a valid PLCB Oracle Supplier Registration Number (which is different than other Commonwealth supplier/vendor numbers), Grantee is required to register with the PLCB's Supplier Unit using the following linked form which includes instructions: https://www.lcb.pa.gov/JoinOurTeam/Documents/001698.pdf.
3. EFFECTIVE DATE AND TERM
a. This Grant Agreement shall become effective on September 1, 2020 or on the date of the last required Commonwealth signature, whichever is later. The Grant Activity Period, defined as the period of performance for which the Grantee can be reimbursed for activity performed in accordance with the Grant, shall be twelve months from the Effective Date for marketing, educational and/or promotions-related projects and eighteen months from the Effective Date for research projects.
b. No later than sixty days prior to the expiration of the Grant Activity Period, Grantee may electronically submit a request to the PLCB via the Resource Account to extend the Grant Activity Period in order to complete the Project without increasing the Grant funding. At its sole discretion and by issuance of a written notice to extend by the PLCB, the PLCB may extend the Grant Activity Period for no more than ninety days. This written notice of an approved extension will be emailed to the Grantee via the Resource Account within ten calendar days of the PLCB's receipt of a compliant request. No additional extensions will be approved, although Grantee is not precluded from applying for a subsequent grant.
4. REIMBURSEMENT. The PLCB agrees to contribute the amount of _________________ for the purpose of completing the Project in accordance with the terms of this Grant Agreement. Payments hereunder may be made electronically through the Pennsylvania Electronic Payment Program, details of which are set forth and incorporated herein as Attachment A hereto. Under no circumstances will the PLCB reimburse the Grantee for any expenses incurred before the Effective Date or after the expiration date of the Grant.
5. CONTRIBUTION. The Grantee agrees to contribute and/or secure any additional necessary funds required to complete the Project, if any, in accordance with the terms of Attachment G.
6. PERMITTED EXPENDITURE.
a. Funds provided by the PLCB shall be used for only those expenses outlined in this Grant Agreement, including its Attachments. The Grantee shall not purchase equipment of any type or kind under the terms of this Grant Agreement unless mandated by the nature of the work and explicitly approved by the PLCB in this Grant Agreement.
b. The Grantee expressly warrants that it shall request reimbursement of expenses solely allowable by the Grant Agreement. Should the PLCB determine that the Grantee is not using Grant funds exclusively in conformance with the Grant Agreement, the PLCB shall have the absolute right, in addition to any other rights provided herein or by law, to terminate this Grant Agreement and to demand the repayment/return of Grant funds. Failure of Grantee to repay/return such funds within ten business days of the PLCB's written demand, sent electronically via the Resource Account, will result in referral of the matter to the Office of the Attorney General for investigation and possible prosecution.
7. INVOICING, RECORDS, REPORTS.
a. All payments of Grant funds hereunder shall be made on a reimbursement basis only, which payments may be made for agreed milestones throughout the Project to the extent set forth in the approved Attachment G. Invoices for expenses incurred shall be in accordance with Paragraph 6.
b. Grantee must electronically submit detailed invoices to the Resource Account. These invoices must be submitted within thirty days of the end of each quarter during the Grant Activity Period for work performed and expenses paid during that quarter. If there was no work performed or expenses paid during a given quarter of the Grant Activity Period, Grantee must communicate that fact via email to the Resource Account within thirty days of the end of that quarter. The PLCB shall reject any invoices received more than sixty days following the end of the Grant Activity Period and Grantee shall have no claim against the PLCB or the Commonwealth for same.
c. Within ten calendar days of a request sent to the Grantee by the PLCB via the Resource Account, Grantee shall supply supporting documentation to substantiate invoices submitted and funds expended. This documentation shall be submitted via the Resource Account.
d. Grantee is required to file timely progress reports to the Wine Board, including but not limited to a final report. The PLCB reserves the right to withhold payment otherwise due under the terms of this Grant Agreement for Grantee's failure to submit reports to the Wine Board, until the Wine Board advises the PLCB that such reports have been submitted. The Grantee is responsible for ensuring that its required reports are timely submitted directly to the Wine Board and acknowledges that the PLCB has no involvement in the Wine Board's statutory reporting requirements.
e. Records of all expenditures shall be maintained for a period of two years after expiration of the term of this Grant Agreement and shall be subject to audit by the PLCB and legally authorized officials of the Commonwealth of Pennsylvania. The Grantee shall provide the PLCB and the Commonwealth full and complete access to all records relating to the performance of any and all work hereunder and shall submit truthful and accurate information about the work performed hereunder if, and as, requested by the PLCB and/or the Commonwealth.
8. HOLD HARMLESS. The Grantee shall indemnify, hold harmless and defend the PLCB and the Commonwealth of Pennsylvania and their officers, employees and agents from and against any and all suits and judgements for damages for personal injury, death or damage to real or tangible personal property arising out of or in conjunction with the performance by the Grantee under this Grant Agreement and caused by the Grantee's negligence or intentional wrongful acts. This paragraph does not apply when the Grantee is a Commonwealth Agency, including but not limited to state-affiliated entities or state-related institutions.
9. ADDITIONAL COMPLIANCE REQUIREMENTS
a. The following additional compliance requirements are attached and incorporated into this Grant Agreement and made a part hereof. The Grantee shall comply with, and be bound by, the provisions set forth in these attachments:
i. Attachment A—Pennsylvania Electronic Payment Program
ii. Attachment B—Nondiscrimination/Sexual Harassment Clause, with respect to which the Grantee is the ''Contractor.''
iii. Attachment C—Contractor Integrity Provisions, with respect to which the Grantee is the ''Contractor.''
iv. Attachment D—The Americans With Disabilities Act provisions, with respect to which the Grantee is the ''Contractor.''
v. Attachment E—Right-to-Know Provisions, with respect to which the Grantee is the ''Contractor.''
vi. Attachment F—Contractor Responsibility Provisions, with respect to which the Grantee is the ''Contractor.''
b. The Grantee agrees that in the performance of its obligations under this Grant Agreement it will comply with all applicable, federal, state and local laws and regulations. The Grantee expressly warrants that, as it relates to the performance of the Project that is the subject of this Grant Agreement, it shall at all times comply with the Pennsylvania Liquor Code, 47 P.S. § 1-101 et seq., and the PLCB's Regulations, 40 Pa. Code § 1.1 et seq.
c. Any forbearance by the PLCB in exercising any right or remedy hereunder or as otherwise afforded by applicable law shall not be a waiver of or preclude the exercise of any such right or remedy at any appropriate time.
d. The Grantee shall, in the performance of this Grant Agreement, act in an independent capacity and not as an officer, employee or agent of the PLCB or of the Commonwealth of Pennsylvania.
10. STATE TAX LIABILITY. The Grantee agrees that the Commonwealth of Pennsylvania may set-off the amount of any state tax liability or other debt of the Grantee or its subsidiaries, that is owed to the Commonwealth and not being contested on appeal, against any payments due the Grantee under this Grant Agreement.
11. TERMINATION AND ASSIGMENT. If through any cause, the Grantee shall fail to fulfill in a timely and proper manner its obligations under this Grant Agreement, or in the event of violation of any of the covenants contained in this Grant Agreement, the PLCB thereupon has the right to terminate this Grant Agreement by giving thirty days written notice to the Grantee specifying the effective date of termination. If this Grant Agreement is so terminated, the Grantee shall be reimbursed for all expenses properly incurred under the terms of this Grant Agreement prior to receipt of notice, so long as Grantee properly submits valid invoices with supporting documentation within sixty days of the notice of termination. Failure by Grantee to timely submit final invoicing shall be considered a forfeiture of any claims to Grant funding. The Grantee shall not assign any interest to this Contract, nor shall any interest be transferred by novation or assignment without prior written consent of PLCB.
12. SEVERABILITY. The terms and provisions of this Grant Agreement are severable. In the event of the unenforceability or invalidity of any one or more of the terms, covenants, conditions or provisions of this Grant Agreement under federal, state or other applicable laws, such unenforceability or invalidity shall not render any other term, covenant, condition or provision hereof unenforceable or invalid.
13. ENTIRE AGREEMENT. This Grant Agreement constitutes the entire agreement between the parties. No amendment or modification hereof shall have any force or effect unless it is in writing and signed by all parties.
14. CONTINGENCY. The PLCB's obligation to make payments shall be subject to the availability and appropriation of funds.
15. APPLICABLE LAW. This Grant Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania (without regard to any conflict of laws provisions) and the decisions of the Pennsylvania courts. The Grantee consents to the jurisdiction of any court of the Commonwealth of Pennsylvania and any federal courts in Pennsylvania, waiving any claim or defense that such forum is not convenient or proper. The Grantee agrees that any such court shall have in personam jurisdiction over it, and consents to service of process in any manner authorized by Pennsylvania law.
[signatures on following page]
IN WITNESS WHEREOF, the Parties hereto, with the intention of being legally bound hereby and each signatory having the requisite legal authority to bind its respective entity, have caused this Grant Agreement to be duly executed. If the signature below is submitted electronically or digitally, the signatory hereby expressly acknowledges and avers that he or she is the named individual and that he or she intends to sign this Grant Agreement document electronically or digitally.
PENNSYLVANIA LIQUOR CONTROL BOARD
Charles Mooney, Executive Director
APPROVED AS TO FORM AND LEGALITY:
Rodrigo J. Diaz, PLCB CHIEF COUNSEL
OFFICE OF THE ATTORNEY GENERAL DATE
PENNSYLVANIA ELECTRONIC PAYMENT
a. The commonwealth may make contract payments through ACH, upon your election. If you so elect, within 10 days of the Grant award, the recipient must submit or must have already submitted its ACH and electronic addenda information, if desired, to the commonwealth's Payable Service Center, Vendor Data Management Unit at 717-214-0140 (FAX) or by mail to the Office of Comptroller Operations, Bureau of Payable Services, Payable Service Center, Vendor Data Management Unit, 555 Walnut Street—9th Floor, Harrisburg, PA 17101. Electronic PEPP enrollment form is available at www.vendorregistration.state.pa.us/cvmu/paper/Forms/ACH-EFTenrollmentform.pdf
b. The recipient must submit a unique invoice number with each invoice submitted. The unique invoice number will be listed on the Commonwealth of Pennsylvania's ACH remittance advice to enable the recipient to properly apply the state agency's payment to the respective invoice or program.
c. It is the responsibility of the recipient to ensure that the ACH information contained in the commonwealth's central vendor master file is accurate and complete. Failure to maintain accurate and complete information may result in delays in payments.
The Grantee agrees:
1. In the hiring of any employee(s) for the manufacture of supplies, performance of work, or any other activity required under the Grant Agreement or any subgrant agreement, contract, or subcontract, the Grantee, a subgrantee, a contractor, a subcontractor, or any person acting on behalf of the Grantee shall not discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the Pennsylvania Human Relations Act (PHRA) and applicable federal laws, against any citizen of this Commonwealth who is qualified and available to perform the work to which the employment relates.
2. The Grantee, any subgrantee, contractor or any subcontractor or any person on their behalf shall not in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, against or intimidate any of its employees.
3. Neither the Grantee nor any subgrantee nor any contractor nor any subcontractor nor any person on their behalf shall in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, in the provision of services under the Grant agreement, subgrant agreement, contract or subcontract.
4. Neither the Grantee nor any subgrantee nor any contractor nor any subcontractor nor any person on their behalf shall in any manner discriminate against employees by reason of participation in or decision to refrain from participating in labor activities protected under the Public Employee Relations Act, Pennsylvania Labor Relations Act or National Labor Relations Act, as applicable and to the extent determined by entities charged with such Acts' enforcement, and shall comply with any provision of law establishing organizations as employees' exclusive representatives.
5. The Grantee, any subgrantee, contractor or any subcontractor shall establish and maintain a written nondiscrimination and sexual harassment policy and shall inform their employees in writing of the policy. The policy must contain a provision that sexual harassment will not be tolerated and employees who practice it will be disciplined. Posting this Nondiscrimination/Sexual Harassment Clause conspicuously in easily-accessible and well-lighted places customarily frequented by employees and at or near where the Grant services are performed shall satisfy this requirement for employees with an established work site.
6. The Grantee, any subgrantee, contractor or any subcontractor shall not discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, against any subgrantee, contractor, subcontractor or supplier who is qualified to perform the work to which the Grant relates.
7. The Grantee and each subgrantee, contractor and subcontractor represents that it is presently in compliance with and will maintain compliance with all applicable federal, state, and local laws and regulations relating to nondiscrimination and sexual harassment. The Grantee and each subgrantee, contractor and subcontractor further represents that it has filed a Standard Form 100 Employer Information Report (''EEO-1'') with the U.S. Equal Employment Opportunity Commission (''EEOC'') and shall file an annual EEO-1 report with the EEOC as required for employers' subject to Title VII of the Civil Rights Act of 1964, as amended, that have 100 or more employees and employers that have federal government contracts or first-tier subcontracts and have 50 or more employees. The Grantee, any subgrantee, any contractor or any subcontractor shall, upon request and within the time periods requested by the Commonwealth, furnish all necessary employment documents and records, including EEO-1 reports, and permit access to their books, records, and accounts by the granting agency and the Bureau of Diversity, Inclusion and Small Business Opportunities for the purpose of ascertaining compliance with the provisions of this Nondiscrimination/Sexual Harassment Clause.
8. The Grantee, any subgrantee, contractor or any subcontractor shall include the provisions of this Nondiscrimination/Sexual Harassment Clause in every subgrant agreement, contract or subcontract so that those provisions applicable to subgrantees, contractors or subcontractors will be binding upon each subgrantee, contractor or subcontractor.
9. The Granter's and each subgrantee's, contractor's and subcontractor's obligations pursuant to these provisions are ongoing from and after the effective date of the Grant agreement through the termination date thereof. Accordingly, the Grantee and each subgrantee, contractor and subcontractor shall have an obligation to inform the Commonwealth if, at any time during the term of the Grant agreement, it becomes aware of any actions or occurrences that would result in violation of these provisions.
10. The Commonwealth may cancel or terminate the Grant agreement and all money due or to become due under the Grant agreement may be forfeited for a violation of the terms and conditions of this Nondiscrimination/Sexual Harassment Clause. In addition, the granting agency may proceed with debarment or suspension and may place the Grantee, subgrantee, contractor, or subcontractor in the Contractor Responsibility File.
CONTRACTOR INTEGRITY PROVISIONS
It is essential that those who seek to contract with the Commonwealth of Pennsylvania (''Commonwealth'') observe high standards of honesty and integrity. They must conduct themselves in a manner that fosters public confidence in the integrity of the Commonwealth contracting and procurement process.
1. DEFINITIONS. For purposes of these Contractor Integrity Provisions, the following terms shall have the meanings found in this Section:
a. ''Affiliate'' means two or more entities where (a) a parent entity owns more than fifty percent of the voting stock of each of the entities; or (b) a common shareholder or group of shareholders owns more than fifty percent of the voting stock of each of the entities; or (c) the entities have a common proprietor or general partner.
b. ''Consent'' means written permission signed by a duly authorized officer or employee of the Commonwealth, provided that where the material facts have been disclosed, in writing, by prequalification, bid, proposal, or contractual terms, the Commonwealth shall be deemed to have consented by virtue of the execution of this contract.
c. ''Contractor'' means the individual or entity, that has entered into this contract with the Commonwealth.
d. ''Contractor Related Parties'' means any affiliates of the Contractor and the Contractor's executive officers, Pennsylvania officers and directors, or owners of 5 percent or more interest in the Contractor.
e. ''Financial Interest'' means either:
(1) Ownership of more than a five percent interest in any business; or
(2) Holding a position as an officer, director, trustee, partner, employee, or holding any position of management.
f. ''Gratuity'' means tendering, giving, or providing anything of more than nominal monetary value including, but not limited to, cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. The exceptions set forth in the Governor's Code of Conduct, Executive Order 1980-18, the 4 Pa. Code § 7.153(b), shall apply.
g. ''Non-bid Basis'' means a contract awarded or executed by the Commonwealth with Contractor without seeking bids or proposals from any other potential bidder or offeror.
2. In furtherance of this policy, Contractor agrees to the following:
a. Contractor shall maintain the highest standards of honesty and integrity during the performance of this contract and shall take no action in violation of state or federal laws or regulations or any other applicable laws or regulations, or other requirements applicable to Contractor or that govern contracting or procurement with the Commonwealth.
b. Contractor shall establish and implement a written business integrity policy, which includes, at a minimum, the requirements of these provisions as they relate to the Contractor activity with the Commonwealth and Commonwealth employees and which is made known to all Contractor employees. Posting these Contractor Integrity Provisions conspicuously in easily-accessible and well-lighted places customarily frequented by employees and at or near where the contract services are performed shall satisfy this requirement.
c. Contractor, its affiliates, agents, employees and anyone in privity with Contractor shall not accept, agree to give, offer, confer, or agree to confer or promise to confer, directly or indirectly, any gratuity or pecuniary benefit to any person, or to influence or attempt to influence any person in violation of any federal or state law, regulation, executive order of the Governor of Pennsylvania, statement of policy, management directive or any other published standard of the Commonwealth in connection with performance of work under this contract, except as provided in this contract.
d. Contractor shall not have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material under this contract, unless the financial interest is disclosed to the Commonwealth in writing and the Commonwealth consents to Contractor's financial interest prior to Commonwealth execution of the contract. Contractor shall disclose the financial interest to the Commonwealth at the time of bid or proposal submission, or if no bids or proposals are solicited, no later than Contractor's submission of the contract signed by Contractor.
e. Contractor certifies to the best of its knowledge and belief that within the last five (5) years Contractor or Contractor Related Parties have not:
(1) been indicted or convicted of a crime involving moral turpitude or business honesty or integrity in any jurisdiction;
(2) been suspended, debarred or otherwise disqualified from entering into any contract with any governmental agency;
(3) had any business license or professional license suspended or revoked;
(4) had any sanction or finding of fact imposed as a result of a judicial or administrative proceeding related to fraud, extortion, bribery, bid rigging, embezzlement, misrepresentation or anti-trust; and
(5) been, and is not currently, the subject of a criminal investigation by any federal, state or local prosecuting or investigative agency and/or civil anti-trust investigation by any federal, state or local prosecuting or investigative agency.
If Contractor cannot so certify to the above, then it must submit along with its bid, proposal or contract a written explanation of why such certification cannot be made and the Commonwealth will determine whether a contract may be entered into with the Contractor. The Contractor's obligation pursuant to this certification is ongoing from and after the effective date of the contract through the termination date thereof. Accordingly, the Contractor shall have an obligation to immediately notify the Commonwealth in writing if at any time during the term of the contract if becomes aware of any event which would cause the Contractor's certification or explanation to change. Contractor acknowledges that the Commonwealth may, in its sole discretion, terminate the contract for cause if it learns that any of the certifications made herein are currently false due to intervening factual circumstances or were false or should have been known to be false when entering into the contract.
f. Contractor shall comply with the requirements of the Lobbying Disclosure Act (65 Pa.C.S. § 13A01 et seq.) regardless of the method of award. If this contract was awarded on a Non-bid Basis, Contractor must also comply with the requirements of the Section 1641 of the Pennsylvania Election Code (25 P.S. § 3260a).
g. When Contractor has reason to believe that any breach of ethical standards as set forth in law, the Governor's Code of Conduct, or these Contractor Integrity Provisions has occurred or may occur, including but not limited to contact by a Commonwealth officer or employee which, if acted upon, would violate such ethical standards, Contractor shall immediately notify the Commonwealth contracting officer or the Office of the State Inspector General in writing.
h. Contractor, by submission of its bid or proposal and/or execution of this contract and by the submission of any bills, invoices or requests for payment pursuant to the contract, certifies and represents that it has not violated any of these Contractor Integrity Provisions in connection with the submission of the bid or proposal, during any contract negotiations or during the term of the contract, to include any extensions thereof. Contractor shall immediately notify the Commonwealth in writing of any actions for occurrences that would result in a violation of these Contractor Integrity Provisions. Contractor agrees to reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of the State Inspector General for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the Commonwealth that results in the suspension or debarment of the Contractor. Contractor shall not be responsible for investigative costs for investigations that do not result in the Contractor's suspension or debarment.
i. Contractor shall cooperate with the Office of the State Inspector General in its investigation of any alleged Commonwealth agency or employee breach of ethical standards and any alleged Contractor non-compliance with these Contractor Integrity Provisions. Contractor agrees to make identified Contractor employees available for interviews at reasonable times and places. Contractor, upon the inquiry or request of an Inspector General, shall provide, or if appropriate, make promptly available for inspection or copying, any information of any type or form deemed relevant by the Office of the State Inspector General to Contractor's integrity and compliance with these provisions. Such information may include, but shall not be limited to, Contractor's business or financial records, documents or files of any type or form that refer to or concern this contract. Contractor shall incorporate this paragraph in any agreement, contract or subcontract it enters into in the course of the performance of this contract/agreement solely for the purpose of obtaining subcontractor compliance with this provision. The incorporation of this provision in a subcontract shall not create privity of contract between the Commonwealth and any such subcontractor, and no third party beneficiaries shall be created thereby.
j. For violation of any of these Contractor Integrity Provisions, the Commonwealth may terminate this and any other contract with Contractor, claim liquidated damages in an amount equal to the value of anything received in breach of these Provisions, claim damages for all additional costs and expenses incurred in obtaining another contractor to complete performance under this contract, and debar and suspend Contractor from doing business with the Commonwealth. These rights and remedies are cumulative, and the use or non-use of any one shall not preclude the use of all or any other. These rights and remedies are in addition to those the Commonwealth may have under law, statute, regulation, or otherwise.
AMERICANS WITH DISABILITIES ACT
a. Pursuant to federal regulations promulgated under the authority of The Americans with Disabilities Act, 28 C. F. R. § 35.101 et seq., the contractor understands and agrees that it shall not cause any person with a disability to be excluded from participation in this Contract or from activities provided for under this Contract on the basis of the disability. As a condition of accepting this contract, the Contractor agrees to comply with the ''General Prohibitions Against Discrimination,'' 28 C. F. R. § 35.130, and all other regulations promulgated under Title II of The Americans with Disabilities Act which are applicable to the benefits, services, programs, and activities provided by the Commonwealth of Pennsylvania through contracts with outside contractors.
b. The Contractor shall be responsible for and agrees to indemnify and hold harmless the Commonwealth of Pennsylvania from all losses, damages, expenses, claims, demands, suits, and actions brought by any party against the Commonwealth of Pennsylvania as a result of the Contractor's failure to comply with the provisions of subparagraph (a) above.
RIGHT TO KNOW LAW—GRANT PROVISIONS—8-K-1580
a. Grantee or Subgrantee understands that this Grant Agreement and records related to or arising out of the Grant Agreement are subject to requests made pursuant to the Pennsylvania Right-to-Know Law, 65 P.S. §§ 67.101-3104, (''RTKL''). For the purpose of these provisions, the term ''the Commonwealth'' shall refer to the granting Commonwealth agency.
b. If the Commonwealth needs the Grantee's or Subgrantee's assistance in any matter arising out of the RTKL related to this Grant Agreement, it shall notify the Grantee of Subgrantee using the legal contact information provided in the Grant Agreement. The Grantee or Subgrantee, at any time, may designate a different contact for such purpose upon reasonable prior written notice to the Commonwealth.
c. Upon written notification from the Commonwealth that it requires Grantee's or Subgrantee's assistance in responding to a request under the RTKL for information related to this Grant Agreement that may be in Grantee's or Subgrantee's possession, constituting, or alleged to constitute, a public record in accordance with the RTKL (''Requested Information''), Grantee or Subgrantee shall:
1. Provide the commonwealth, within ten (10) calendar days after receipt of written notification, access to, and copies of, any document or information in Grantee's or Subgrantee's possession arising out of this Grant Agreement that the Commonwealth reasonably believes is Requested Information and may be a public record under the RTKL; and
2. Provide such other assistance as the Commonwealth may reasonably request, in order to comply with the RTKL with respect to this Grant Agreement.
d. If Grantee or Subgrantee considers the Requested Information to include a request for a Trade Secret or Confidential Proprietary Information, as those terms are defined by the RTKL, or other information that Grantee or Subgrantee considers exempt from production under the RTKL, Grantee or Subgrantee must notify the Commonwealth and provide, within seven (7) calendar days of receiving the written notification, a written statement signed by a representative of Grantee or Subgrantee explaining why the requested material is exempt from public disclosure under the RTKL.
e. The Commonwealth will rely upon the written statement from Grantee or Subgrantee in denying a RTKL request for the Requested Information unless the Commonwealth determines that the Requested Information is clearly not protected from disclosure under the RTKL. Should the commonwealth determine that the Requested Information is clearly not exempt from disclosure, Grantee or Subgrantee shall provide the Requested Information within five (5) business days of receipt of written notice of the Commonwealth's determination.
f. If Grantee or Subgrantee fails to provide the Requested Information within the time period required by these provisions, Grantee or Subgrantee shall indemnify and hold the Commonwealth harmless for any damages, penalties, costs, detriment or harm that the Commonwealth may incur as a result of Grantee's or Subgrantee's failure, including any statutory damages assessed against the Commonwealth.
g. The Commonwealth will reimburse Grantee or Subgrantee for any costs associated with complying with these provisions only to the extent allowed under the fee schedule established by the Office of Open Records or as otherwise provided by the RTKL if the fee schedule is inapplicable.
h. Grantee or Subgrantee may file a legal challenge to any Commonwealth decision to release a record to the public with the Office of Open Records, or in the Pennsylvania Courts, however, Grantee or Subgrantee shall indemnify the Commonwealth for any legal expenses incurred by the Commonwealth as a result of such a challenge and shall hold the Commonwealth harmless for any damages, penalties, costs, detriment or harm that the Commonwealth may incur as a result of Grantee's or Subgrantee's failure, including any statutory damages assessed against the Commonwealth, regardless of the outcome of such legal challenge. As between the parties, Grantee or Subgrantee agrees to waive all rights or remedies that may be available to it as a result of the Commonwealth's disclosure of Requested Information pursuant to the RTKL.
i. The Grantee's or Subgrantee's duties relating to the RTKL are continuing duties that survive the expiration of this Grant Agreement and shall continue as long as the Grantee or Subgrantee has Requested Information in its possession.
Contractor Responsibility Provisions
For the purpose of these provisions, the term contractor is defined as any person, including, but not limited to, a bidder, offeror, loan recipient, Grantee or lessor, who has furnished or performed or seeks to furnish or perform, goods, supplies, services, leased space, construction or other activity, under a contract, grant, lease, purchase order or reimbursement agreement with the Commonwealth of Pennsylvania (Commonwealth). The term contractor includes a permittee, licensee, or any agency, political subdivision, instrumentality, public authority, or other public entity in the Commonwealth.
1. The Contractor certifies, in writing, for itself and its subcontractors required to be disclosed or approved by the Commonwealth, that as of the date of its execution of this Bid/Contract, that neither the Contractor, nor any such subcontractors, are under suspension or debarment by the Commonwealth or any governmental entity, instrumentality, or authority and, if the Contractor cannot so certify, then it agrees to submit, along with its Bid/Contract, a written explanation of why such certification cannot be made.
2. The Contractor also certifies, in writing, that as of the date of its execution of this Bid/Contract it has no tax liabilities or other Commonwealth obligations, or has filed a timely administrative or judicial appeal if such liabilities or obligations exist, or is subject to a duly approved deferred payment plan if such liabilities exist.
3. The Contractor's obligations pursuant to these provisions are ongoing from and after the effective date of the Contract through the termination date thereof. Accordingly, the Contractor shall have an obligation to inform the Commonwealth if, at any time during the term of the Contract, it becomes delinquent in the payment of taxes, or other Commonwealth obligations, or if it or, to the best knowledge of the Contractor, any of its subcontractors are suspended or debarred by the Commonwealth, the federal government, or any other state or governmental entity. Such notification shall be made within 15 days of the date of suspension or debarment.
4. The failure of the Contractor to notify the Commonwealth of its suspension or debarment by the Commonwealth, any other state, or the federal government shall constitute an event of default of the Contract with the Commonwealth.
5. The Contractor agrees to reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of State Inspector General for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the Commonwealth that results in the suspension or debarment of the contractor. Such costs shall include, but shall not be limited to, salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for investigative costs for investigations that do not result in the Contractor's suspension or debarment.
6. The Contractor may obtain a current list of suspended and debarred Commonwealth contractors by either searching the Internet at http://www.dgs.state.pa.us/ or contacting the:
Department of General Services
Office of Chief Counsel
603 North Office Building
Harrisburg, PA 17125
Telephone No: (717) 783-6472
FAX No: (717) 787-9138
[Pa.B. Doc. No. 20-994. Filed for public inspection July 24, 2020, 9:00 a.m.]
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