THE GOVERNOR
Title 4—ADMINISTRATION
[48 Pa.B. 4208]
[Saturday, July 21, 2018]
PART I. GOVERNOR'S OFFICE
[ 4 PA. CODE CH. 1 ]
[ EXECUTIVE ORDER NO. 2016-05 AMENDED ]
Contract Compliance June 18, 2018
Whereas, this Administration is committed to promoting the prosperity and economic growth of all businesses and citizens of the Commonwealth of Pennsylvania, regardless of race, gender, creed, color, sexual orientation, gender identity or expression, or participation or decision to refrain from participation in protected labor activities; and
Whereas, this Administration believes the contracting processes of Commonwealth agencies should be nondiscriminatory and that all businesses contracting with the Commonwealth as well as all grantees should use nondiscriminatory practices in subcontracting, hiring, promoting, and other labor matters; and
Whereas, this Administration believes that a single Commonwealth agency should be assigned the responsibility of developing and managing programs for Commonwealth agencies to ensure that discrimination by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or participation or decision to refrain from participation in protected labor activities does not exist with respect to the award, selection, or performance of any contracts or grants issued by Commonwealth agencies; and
Whereas, under Sections 301 and 3701 of the Commonwealth Procurement Code, the Department of General Services is generally responsible for the formulation of procurement policy.
Now, Therefore, I, Tom Wolf, Governor of the Commonwealth of Pennsylvania, by virtue of the authority vested in me by the Constitution and laws of the Commonwealth of Pennsylvania, do hereby designate the Department of General Services as the central agency to develop and manage Commonwealth agency programs to ensure that discrimination by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or participation or decision to refrain from participation in protected labor activities does not exist with respect to the award, selection, or performance of any contracts or grants issued by Commonwealth agencies.
Governor
Fiscal Note: GOV-2016-05 (Amended). No fiscal impact; (8) recommends adoption.
Annex A
TITLE 4. ADMINISTRATION
PART I. GOVERNOR'S OFFICE
CHAPTER 1. AGENCY OPERATION AND ORGANIZATION
Subchapter HHH. CONTRACT COMPLIANCE PROGRAM § 1.871. Establishment of contract compliance program.
Commonwealth agencies shall establish, implement and maintain contract compliance programs to ensure that Commonwealth contracts and grants are nondiscriminatory in three aspects:
(1) Nondiscrimination in the award of Commonwealth contracts and grants.
(2) Nondiscrimination by those who are awarded Commonwealth contracts and grants in the hiring and treatment of their employees and in the provision of services to their clients and service recipients.
(3) Nondiscrimination by those who are awarded Commonwealth contracts and grants in their award of subcontracts and supply contracts for performance under Commonwealth contracts.
§ 1.872. Definitions.
The following words and phrases when used in this subchapter have, unless otherwise defined by Commonwealth State law or the context clearly indicates otherwise, or both, the following meanings given:
Gender expression—The external manifestations of gender, expressed through a person's name, pronouns, clothing, haircut, behavior, voice and/or body characteristics.
Gender identity—A person's internal, deeply held sense of their gender, regardless of their biological sex and/or the sex they were assigned at birth.
Protected labor activities—Labor activities protected under the Public Employe Relations Act (43 P.S. §§ 1101.101—1101.2301), Pennsylvania Labor Relations Act (43 P.S. §§ 211.1—211.13) or National Labor Relations Act (29 U.S.C.A. §§ 151—169), as applicable and to the extent determined by entities charged with these acts' enforcement.
Sexual orientation—An individual's enduring physical, romantic and/or emotional attraction to members of the same or opposite sex, including lesbian, gay, bisexual and heterosexual (straight) orientations, or lack thereof, including asexual orientation.
§ 1.873. Responsibilities.
(a) The Department of General Services (Department) shall:
(1) Develop standards for a uniform Statewide contract compliance program that ensures nondiscrimination by Commonwealth contractors and grantees.
(2) Review agency contract compliance programs, plans, reports and procedures to ensure consistency with the Department contract compliance policies.
(3) Develop and implement monitoring and reporting systems to measure the effectiveness of agency contract compliance programs.
(4) Provide leadership and training to agencies and assist them in conducting contract compliance program audits such as periodic onsite reviews.
(5) Investigate and make reports relating to the administration of contracting programs and operations.
(6) Require contractors and grantees to agree, as a condition in their contracts or agreements with the Commonwealth, not to discriminate in the award of subcontracts or supply contracts or in hiring, promotion or other labor matters on the basis of race, gender, creed, color, sexual orientation, gender identity or expression, or participation or decision to refrain from participation in protected labor activities.
(7) Ensure that contractors and grantees receiving Commonwealth funds have, as a condition of payment or funding, a written sexual harassment policy and that employees of the contractor or grantee are aware of the policy.
(b) Agency heads under the Governor's jurisdiction shall:
(1) Ensure that the agency's commitment to the contract compliance program is clearly understood and appropriately furthered by all agency employees.
(2) Create contract compliance plans, coordinate the development of activities to implement agency plans, and develop audit and reporting systems to measure the effectiveness of the agency's contract compliance programs.
(3) Designate a responsible official to supervise the agency's contract compliance program.
(4) Designate a contract administrator to carry out all agency responsibilities regarding contract compliance as articulated in this subchapter.
(5) Upon request, furnish pertinent information or assistance to the Department.
(6) Recommend sanctions to the Secretary of General Services, as may be appropriate, for lack of compliance with Commonwealth contracting programs.
(c) For programs when an agency's receipt and use of Federal funds are subject to approval and oversight by a Federal funding agency, agency heads under the Governor's jurisdiction will comply with those contract compliance requirements imposed by that Federal agency as a condition of eligibility for the funds rather than program requirements established by the Department.
§ 1.874. Cooperation by Commonwealth agencies.
Agency heads and agencies, boards and commissions under the Governor's jurisdiction shall work cooperatively with the Department of General Services (Department) to fulfill the demands of this subchapter. Independent agencies, State-affiliated entities and State-related agencies are strongly encouraged to work with the Department to adopt, refine and implement similar procurement practices and procedures to support greater diversity, inclusion and fairness in the contracting process.
§ 1.875. General provisions.
Nothing in this subchapter shall be construed to impair or otherwise affect the authority granted by law to an executive department, agency or the head thereof. This subchapter is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the Commonwealth, its departments, agencies or entities, its officers, employees or agents, or any other person.
§ 1.876. Rescission.
Executive Order 2006-02, Contract Compliance, was rescinded April 6, 2016.
§ 1.877. Effective date.
This amended subchapter takes effect immediately.
[Pa.B. Doc. No. 18-1100. Filed for public inspection July 20, 2018, 9:00 a.m.]
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