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PA Bulletin, Doc. No. 04-2136

RULES AND REGULATIONS

DEPARTMENT OF GENERAL SERVICES

[4 PA. CODE CH. 63]

General Conditions of Contract

[34 Pa.B. 6403]

   The Department of General Services (Department), acting under sections 506, 2401.1 and 2408 of The Administrative Code of 1929 (71 P. S. §§ 186, 631.1 and 638) and section 201 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §  1201), deletes Chapter 63 (relating to general conditions of the contract).

Purpose

   Since the general contract conditions are established by regulation, they do not allow for flexibility. These provisions must be customized by the Department for individual projects as required. The Department has substantially modified these general conditions of contract in the years since 1975 without amending the regulations. Since the regulatory contract terms are not the Department's current General Conditions of Contract, Chapter 63 is being deleted.

   Notice of proposed rulemaking was published at 32 Pa.B. 5277 (October 26, 2002). Publication was followed by a 30-day public comment period during which the Department did not receive any comments. The Senate State Government Committee and the House State Government Committee had no comments. The Independent Regulatory Review Commission (IRRC) submitted one comment to the proposed rulemaking on March 10, 2003.

Summary of Comment to Proposed Rulemaking and Response

   IRRC recommended that the Department review other chapters of 4 Pa. Code (relating to administration) to identify and delete any references to Chapter 63 that are being deleted and thus will be obsolete, such as the cross reference in § 68.61 (relating to nondiscrimination clause; compliance prequalification).

   The Department concurs with that recommendation and has determined that § 68.61 is the only cross reference in 4 Pa. Code that will become obsolete as a result of rescinding Chapter 63. However, this cross reference is not the only aspect of § 68.61 that is obsolete. The entire section has been superseded by the subsequent enactment of 62 Pa.C.S. § 3701 (relating to contract provisions prohibiting discrimination), and many of the other provisions in Chapter 68 (relating to contract compliance) are also obsolete and no longer used. Chapter 68 contains provisions concerning contractor compliance with affirmative action and nondiscrimination obligations. The Department plans to develop and propose a comprehensive rulemaking to update Chapter 68 including the obsolete cross reference in § 68.61. Therefore, the Department is issuing this final-form rulemaking to delete Chapter 63 without any changes to previously published proposed rulemaking. With this final-form rulemaking, the Department is immediately rescinding Chapter 63. The Department will then deal with § 68.61 in a broader proposed rulemaking to update Chapter 68.

Fiscal Impact

   This final-form rulemaking relieves the Department of the administrative time and expense the Department would incur if it was required to proceed with the regulatory process each time that it wanted to revise its contract terms. The estimated cost is $18,000 a year if the regulations were not rescinded and the Department decides to change its contract terms twice a year and is required to pursue the regulatory process.

Paperwork Requirements

   This final-form rulemaking will not impose new or different paperwork requirements.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 6, 2001, the Department submitted a copy of this proposed rulemaking, published at 32 Pa.B. 5277, to IRRC and the Chairpersons of the House State Government Committee and the Senate State Government Committee. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department. A copy of this material is available to the public upon request.

   In preparing the final-form rulemaking, the Department has considered the comment that it received from the IRRC and has responded as stated in this preamble. No other comments were received.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 4, 2004, and approved the final-form rulemaking.

Effective Date

   This final-form rulemaking is effective as of this publication in the Pennsylvania Bulletin.

Additional Information

   Individuals who need information about the final-form rulemaking should contact Mary Benefield Seiverling, Senior Counsel, Department of General Services, Office of Chief Counsel, 603 North Office Building, Harrisburg, PA 17125.

Findings

   The Department finds that:

   (1)  Public notice of intention to promulgate administrative regulations amended by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  The final-form rulemaking adopted by this order is necessary and appropriate for the performance of the Department's duties under The Administrative Code of 1929.

Order

   The Department, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 4 Pa. Code Chapter 63, are amended by deleting §§ 63.1--63.3, 63.11, 63.12, 63.21--63.23, 63.31--63.50, 63.61--63.64, 63.71--63.74, 63.81--63.84, 63.91--63.93, 63.101--63.107, 63.111--63.113, 63.121, 63.122, 63.131--63.134, 63.141--63.143, 63.151--63.153, 63.161--63.163, 63.171--63.197, 63.201 and 63.211 to read as set forth in Annex A.

   (b)  The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.

   (c)  The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect upon publication in the Pennsylvania Bulletin.

DONALD T. CUNNINGHAM, Jr.,   
Secretary

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 34 Pa.B. 6292 (November 20, 2004).)

   Fiscal Note: Fiscal Note 8-3 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 4. ADMINISTRATION

PART III. DEPARTMENT OF GENERAL SERVICES

Subpart C. CONSTRUCTION AND PROCUREMENT

ARTICLE II. CONSTRUCTION

CHAPTER 63. (Reserved)

§§ 63.1--63.3. (Reserved).

§ 63.11. (Reserved).

§ 63.12. (Reserved).

§§ 63.21--63.23. (Reserved).

§§ 63.31--63.50. (Reserved).

§§ 63.61--63.64. (Reserved).

§§ 63.71--63.74. (Reserved).

§§ 63.81--63.84. (Reserved).

§§ 63.91--63.93. (Reserved).

§§ 63.101--63.107. (Reserved).

§§ 63.111--63.113. (Reserved).

§ 63.121. (Reserved).

§ 63.122. (Reserved).

§§ 63.131--63.134. (Reserved).

§§ 63.141--63.143. (Reserved).

§§ 63.151--63.153. (Reserved).

§§ 63.161--63.163. (Reserved).

§§ 63.171--63.197. (Reserved).

§ 63.201. (Reserved).

§ 63.211. (Reserved).

[Pa.B. Doc. No. 04-2136. Filed for public inspection December 3, 2004, 9:00 a.m.]


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