CONSTRUCTION CONTRACTS:
New Requirement for Contractors to Use E-Verification Program
The Pennsylvania Public Works Employment Verification Act was adopted in 2012, with an effective date of January 1, 2013. The Pennsylvania Department of General Services on December 29, 2012, promulgated regulations to implement the Act.
This new law requires insertion of new provisions in school district construction contracts executed after January 1, 2013. It applies to the same kind of projects that are subject to the Pennsylvania Prevailing Wage Act, namely: “The construction, reconstruction, demolition, alteration or repair work other than maintenance work done under contract and paid for in whole or in part out of the funds of a public body when the estimated cost of the total project is in excess of $25,000.”
To the extent the total project cost is in excess of $25,000, contracts and subcontracts, regardless of value, must comply.
Maintenance work, which is excluded, is defined as: “Annual inspection or routine upkeep of an existing facility which does not alter the use or size of the facility.”
All contracts to which the Act applies must include a statement of the new requirements. The primary new requirement is for contractors and subcontractors performing work to comply with federal employment eligibility rules, including verification through the U.S. Department of Homeland Security’s E-Verify program, which compares I-9 employment verification data to data from the Department of Homeland Security and Social Security Administration records, in order to confirm that employees are authorized to work in the United States.
All contractors must submit a “Public Works Employment Verification Form” to the school district at the same time when performance and payments bonds are submitted. Submission of this form must be a precondition of the contract being awarded and executed. The requirement applies to all employees hired by the contractor or subcontractor, regardless of whether the employee will be working onsite or offsite.
Subcontracts between the contractor and its subcontractors or between any subcontractor and its subcontractors are also required to contain notification of applicability of the Act, the requirement to provide a “Public Works Employment Verification Form,” and reference to the Department of General Services website.
All subcontractors must submit a “Public Works Employment Verification Form” to the contractor, who must submit the form to the school district prior to the subcontractor beginning either onsite or offsite work. “Subcontractor” includes any entity that performs work on the project other than the prime contractor and other than an individual. The term does not include an entity that is solely a material supplier for the project.
The “Public Work Employment Verification Form” is available on the Department of General Services website.
Bottom line: All school districts should ensure that the above requirements are included in any construction contract that is also covered by the Prevailing Wage Act – whether the contract specifications are prepared by the school district architect or directly by the school district.
We hope you find this issue of KKAL’s Education Law Watch helpful and informative. Please understand that the Law Watch is designed to provide information about current developments and required actions. It does not constitute legal advice, and school districts should consult a lawyer knowledgeable in this area of the law prior to taking specific actions on the issues addressed.
If you have any questions regarding any education law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717-392-1100, or email us at the following addresses:
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KEGEL KELIN ALMY & LORD LLP
Education Law Group
(717) 392-1100
Clarence C. Kegel, Jr. kegel@kkallaw.com
Howard L. Kelin kelin@kkallaw.com
Jeffrey D. Litts litts@kkallaw.com
Rhonda F. Lord lord@kkallaw.com
Amy G. Macinanti macinanti@kkallaw.com
Denise E. Elliott elliott@kkallaw.com
Jason T. Confair confair@kkallaw.com
Katherine L. Shantz shantz@kkallaw.com
Kegel Kelin Almy & Lord LLP is a regional law firm with offices in Lancaster, Pennsylvania. KKAL is solicitor and general counsel to 18 school districts and joint school systems – and bond counsel, finance counsel, or special joint counsel to many others in Central and Eastern Pennsylvania. In addition, KKAL frequently serves Pennsylvania school districts for unusual and challenging problems, projects, or litigation.
© 2013 Kegel Kelin Almy & Lord LLP. All Rights Reserved.
This publication is designed to provide general information on the topics presented. If legal or other professional advice is required, the services of a professional should be sought.