§ 66.9. Enforcement.
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).
Source The provisions of this § 66.9 amended July 21, 2023, effective July 22, 2023, 53 Pa.B. 3833. Immediately preceding text appears at serial pages (364608) to (364610).
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