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HOUSE AMENDED
PRIOR PRINTER'S NOS. 206, 1369
PRINTER'S NO. 1524
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
316
Session of
2015
INTRODUCED BY FOLMER, VOGEL, VULAKOVICH, TEPLITZ, TARTAGLIONE,
WARD, FONTANA, SCHWANK, WHITE, AUMENT, GORDNER, HUTCHINSON,
GREENLEAF, YUDICHAK, COSTA, BAKER, SCARNATI, STEFANO,
BOSCOLA, BARTOLOTTA, EICHELBERGER, DINNIMAN, VANCE, PILEGGI,
ALLOWAY, FARNESE, BROWNE, RAFFERTY AND MENSCH,
JANUARY 23, 2015
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
JANUARY 27, 2016
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, in general provisions, providing for public access
to procurement records; and, in source selection and contract
formation, further providing for sole source procurement and
for emergency procurement AND PROVIDING FOR LEGAL SERVICES
CONTRACTS.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 62 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
§ 106.1. Public access to procurement records.
(a) General rule.--Records concerning a procurement shall be
made public, consistent with the act of February 14, 2008
(P.L.6, No.3), known as the Right-to-Know Law.
(b) Public posting and availability of procurement
information.--The purchasing agency shall post the following
procurement documents on the department's, or, in the case of an
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independent agency, its own publicly accessible Internet website
or otherwise make available in the manner indicated below:
(1) Public notice of an invitation for bids or request
for proposals may be given in accordance with section 512(c)
(1) (relating to competitive sealed bidding) or 513(b)
(relating to competitive sealed proposals) by posting the
invitation for bids or request for proposals, including, if
applicable, the written determination required by section
513(a), on the date issued and until the closing date for
receipt of bids or proposals.
(2) Bid tabulations recording the name of each bidder
and bid amount in accordance with section 512(d) shall be
posted as soon as practicable after bid opening, unless the
purchasing agency elects to cancel the invitation for bids.
(3) Notices of award pursuant to an invitation for bids
shall be posted as soon as practicable after the purchasing
agency elects to make an award in accordance with section
512(g).
(4) The written determination required by section 513(g)
shall be posted upon receipt of the final negotiated contract
signed by the selected offeror. Subject to proper redaction
under the Right-to-Know Law, responsive proposals received by
the purchasing agency and, until fully executed, the final
negotiated contract are not required to be posted but shall
be made available to the public upon request.
(5) Requests to award a contract pursuant to section
515(a)(1), (2), (4) and (10) (relating to sole source
procurement) shall be posted for seven calendar days for
public comment prior to approval of the request by the
department or independent purchasing agency. Upon approval of
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a request by the department or independent purchasing agency,
the signed and written determination required under section
515(b) shall be posted.
(6) The written determinations required by section 516
(relating to emergency procurement) shall be posted in
advance, if feasible, but no later than seven calendar days
after authorization by the department or independent
purchasing agency.
(7) A contract resulting from a procurement under this
part shall be posted as soon as practicable upon its full
execution by the Commonwealth.
(8) Requests under section 515 or 516 to extend a
contract for which no further options, renewals or extensions
are available in the contract shall be posted for seven
calendar days for public comment prior to approval of the
request by the department or independent purchasing agency.
Upon approval of a request by the department or an
independent purchasing agency, the signed and written
determination required under section 515(b) or 516 shall be
posted.
(c) Access and retention.--Procurement documents specified
under subsection (b) must be accessible on the Internet website
for a minimum of 30 days from posting and further retained in
accordance with section 563 (relating to retention of
procurement records) and applicable agency record retention
policies.
Section 2. Sections 515 and 516 of Title 62 are amended to
read:
§ 515. Sole source procurement.
(a) General rule.--A contract may be awarded for a supply,
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service or construction item without competition if the
contracting officer first determines in writing that one of the
following conditions exists:
(1) Only a single contractor is capable of providing the
supply, service or construction.
(2) A Federal or State statute or Federal regulation
exempts the supply, service or construction from the
competitive procedure.
(3) The total cost of the supply, service or
construction is less than the amount established by the
department for small, no-bid procurements under section 514
(relating to small procurements).
(4) It is clearly not feasible to award the contract for
supplies or services on a competitive basis.
(5) The services are to be provided by attorneys or
litigation consultants selected by the Office of General
Counsel, the Office of Attorney General, the Department of
the Auditor General or the Treasury Department.
(6) The services are to be provided by expert witnesses.
(7) The services involve the repair, modification or
calibration of equipment and they are to be performed by the
manufacturer of the equipment or by the manufacturer's
authorized dealer, provided the contracting officer
determines that bidding is not appropriate under the
circumstances.
(8) The contract is for investment advisors or managers
selected by the Public School Employees' Retirement System,
the State Employees' Retirement System or a State-affiliated
entity.
(9) The contract is for financial or investment experts
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to be used and selected by the Treasury Department or
financial or investment experts selected by the Secretary of
the Budget.
(10) The contract for supplies or services is in the
best interest of the Commonwealth.
(b) Written determination.-- The written determination
authorizing sole source procurement shall be included in the
contract file. For procurements over $250,000 made under
subsection (a)(10) , the determination shall be signed by the
head of the purchasing agency.
(c) Approval required by board of commissioners of public
grounds and buildings. -- With the exception of small procurements
under section 514 and emergency procurements under section 516
(relating to emergency procurement), if the sole source
procurement is for a supply, except for computer software
updates under $50,000, for which the department acts as
purchasing agency, it must be approved by the Board of
Commissioners of Public Grounds and Buildings prior to the award
of a contract.
§ 516. Emergency procurement.
The head of a purchasing agency may make or authorize others
to make an emergency procurement when there exists a threat to
public health, welfare or safety or circumstances outside the
control of the agency create an urgency of need which does not
permit the delay involved in using more formal competitive
methods. Whenever practical, in the case of a procurement of a
supply, at least [two [bids] THREE quotes shall be solicited. A
written determination of the basis for the emergency and for the
selection of the particular contractor shall be included in the
[contract file.] procurement file. No written contract may be
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required. The supplier of the supply, service or construction
may be paid based on the emergency approval and approved
invoice.
SECTION 3. TITLE 62 IS AMENDED BY ADDING A SECTION TO READ:
§ 544. LEGAL SERVICES CONTRACTS.
(A) GENERAL RULE.--A PURCHASING AGENCY SHALL DETERMINE THE
PAYMENT METHOD TO BE USED PURSUANT TO A LEGAL SERVICES CONTRACT
ENTERED INTO UNDER SECTION 512.1 (RELATING TO COMPETITIVE
ELECTRONIC AUCTION BIDDING), 515 (RELATING TO SOLE SOURCE
PROCUREMENT) OR 518 (RELATING TO COMPETITIVE SELECTION
PROCEDURES FOR CERTAIN SERVICES).
(B) CONTRACT.--THE METHOD OF COMPENSATION DETERMINED UNDER
SUBSECTION (A) SHALL BE PART OF THE CONTRACT FOR LEGAL SERVICES.
(C) CONTINGENT FEE CONTRACTS.--THE FOLLOWING SHALL APPLY:
(1) IN ORDER TO ENTER INTO A LEGAL SERVICES CONTRACT
PAID ON A CONTINGENT FEE BASIS, THE PURCHASING AGENCY SHALL
MAKE A WRITTEN DETERMINATION THAT PAYMENT ON A CONTINGENT FEE
BASIS IS ALL OF THE FOLLOWING:
(I) FEASIBLE AND EFFICIENT.
(II) IN THE BEST INTEREST OF THE COMMONWEALTH.
(2) CONTINGENT FEE CONTRACTS UNDER THIS SUBSECTION SHALL
COMPLY WITH ALL OF THE FOLLOWING:
(I) COMPENSATION SHALL NOT EXCEED $50,000,000 IN
TOTAL OR 25% IN THE AGGREGATE OF AN AWARD OR SETTLEMENT
IN FAVOR OF THE COMMONWEALTH, WHICHEVER IS LESS.
(I) COMPENSATION SHALL NOT EXCEED THE LESSER OF THE
FOLLOWING:
(A) FIFTY MILLION DOLLARS, WHICH SHALL BE
ADJUSTED ANNUALLY FOR INFLATION BEGINNING JANUARY 1,
2018, AND EACH JANUARY 1 THEREAFTER, TO REFLECT THE
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PERCENTAGE CHANGE IN THE CONSUMER PRICE INDEX FOR ALL
URBAN CONSUMERS FOR THE PENNSYLVANIA, NEW JERSEY,
DELAWARE AND MARYLAND AREA FOR THE MOST RECENT 12-
MONTH PERIOD FOR WHICH FIGURES HAVE BEEN OFFICIALLY
REPORTED BY THE UNITED STATES DEPARTMENT OF LABOR,
BUREAU OF LABOR STATISTICS; OR
(B) TWENTY-FIVE PERCENT IN THE AGGREGATE OF AN
AWARD OR SETTLEMENT IN FAVOR OF THE COMMONWEALTH.
(II) A CONTINGENT FEE SHALL NOT BE BASED ON A
PENALTY OR CIVIL FINE AWARDED OR AN AMOUNT ATTRIBUTABLE
TO A PENALTY OR CIVIL FINE.
(III) THE FOLLOWING PROVISIONS SHALL BE INCLUDED IN
THE CONTRACT:
(A) COMMONWEALTH ATTORNEYS DESIGNATED BY THE
HEAD OF THE PURCHASING AGENCY OR, IN THE CASE OF A
LEGAL SERVICES CONTRACT ENTERED INTO BY AN EXECUTIVE
AGENCY AS DEFINED IN SECTION 102 OF THE ACT OF
OCTOBER 15, 1980 (P.L.950, NO.164), KNOWN AS THE
COMMONWEALTH ATTORNEYS ACT, DESIGNATED BY THE GENERAL
COUNSEL, SHALL RETAIN FINAL AUTHORITY OVER THE COURSE
AND CONDUCT OF THE LEGAL ACTION, INCLUDING AUTHORITY
TO:
(I) REVIEW AND APPROVE ALL COURT FILINGS,
INCLUDING BRIEFS, PLEADINGS, MOTIONS AND OTHER
MATERIALS.
(II) VETO ANY DECISION OF OUTSIDE COUNSEL.
(III) RETAIN THE ABILITY TO HAVE DIRECT
CONTACT WITH ANY PARTY TO THE ACTION.
(IV) PARTICIPATE IN ANY CONFERENCE CALL,
HEARING, TRIAL OR COMMONWEALTH SETTLEMENT.
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(B) THE COMMONWEALTH SHALL MAINTAIN THE
EXCLUSIVE AUTHORITY TO ACCEPT A SETTLEMENT.
(C) A DETAILED DESCRIPTION OF THE EXPECTATIONS
FOR BOTH THE CONTRACTOR AND THE COMMONWEALTH.
(3) THIS SUBSECTION SHALL NOT APPLY TO CONTRACTS IN
WHICH THE GROSS AMOUNT OF THE AWARD OR SETTLEMENT IS LESS
THAN $100,000.
(D) APPLICABILITY.--THIS SECTION SHALL NOT APPLY TO LEGAL
SERVICES CONTRACTS ENTERED INTO BY THE PUBLIC SCHOOL EMPLOYEES'
RETIREMENT SYSTEM OR THE STATE EMPLOYEES' RETIREMENT SYSTEM.
(D) (E) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING
WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
SUBSECTION UNLESS THE CONTEXT CLEARLY INDICATES OTHERWISE:
"COMMONWEALTH ATTORNEY." AN ATTORNEY AT LAW EMPLOYED BY THE
PURCHASING AGENCY WHO IS ELIGIBLE TO PARTICIPATE IN THE
RETIREMENT SYSTEM UNDER 71 PA.C.S. PT. XXV (RELATING TO
RETIREMENT FOR STATE EMPLOYEES AND OFFICERS).
"OUTSIDE COUNSEL." A PRIVATE ATTORNEY AT LAW, LAW FIRM,
PARTNERSHIP, ASSOCIATION OR PROFESSIONAL CORPORATION.
Section 3 4. This act shall take effect in 60 days.
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