CORRECTIVE REPRINT

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY KRIEGER, MARSICO, CALTAGIRONE, MAHONEY, VULAKOVICH, GINGRICH, HUTCHINSON, EVANKOVICH, REICHLEY, DUNBAR, REESE, TALLMAN, PETRARCA, HARRIS, MANN, ELLIS, BAKER, PICKETT, REED, EVERETT, GROVE, COHEN, METCALFE, METZGAR, GRELL, CREIGHTON, PYLE, ROAE, CUTLER, MUSTIO, SCHRODER, MILLER, SONNEY AND MURT, MARCH 14, 2011

AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF REPRESENTATIVES, MAY 3, 2011   

AN ACT

Amending Title 62 (Procurement) of the Pennsylvania Consolidated

Statutes, further providing for sole source procurement and

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for competitive selection procedures for certain services.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 518 of Title 62 of the Pennsylvania

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Consolidated Statutes is amended to read:

Section 1.  Sections 515 and 518 of Title 62 of the

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Pennsylvania Consolidated Statutes are amended to read:

§ 515.  Sole source procurement.

(a)  Determination.--A contract may be awarded for a supply,

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

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.

The written determination authorizing sole source procurement

shall be included in the contract file. 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.

(b)  Legal services contract.--The following shall apply in

the case of legal services procured under subsection (a)(5), in

which the attorneys or litigation consultants will be

compensated on a contingent fee basis:

(1)  Compensation shall not exceed 20% of a portion of an

award or settlement.

(2)  By February 1 of each year, the head of any

purchasing agency that is party to a contract in which the

method of compensation is on a contingent fee basis shall

submit a report to the chairman and minority chairman of the

State Government Committee of the Senate and the chairman and

the minority chairman of the State Government Committee of

the House of Representatives. The report shall list for each

contingent fee contract the parties to the contract, the

nature of the contract, the date the contract was entered

into, the date of termination, if any, and the rate of

compensation.

(3)  In addition to the requirements of paragraphs (1)

and (2) each contract for legal services shall include the

following provisions:

(i)  Commonwealth attorneys designated by the head of

the purchasing agency shall retain control over the

course and conduct of any legal action, retain the

ability to have direct contact with any party to the

action and participate in any conference call, hearing,

trial or settlement conference.

(ii)  The purchasing agency shall maintain the

exclusive power to accept a settlement.

(iii)  Notwithstanding the provisions of

subparagraphs (i) and (ii), commonwealth attorneys shall

be subject to the Rules of Professional Conduct as set

forth by the Supreme Court in accordance with section

10(c) of Article V of the Constitution of Pennsylvania.

(c)  Definition.--As used in this section, the term

"commonwealth attorney" means an attorney employed by the

purchasing agency who is eligible to participate in the

retirement system established under 71 Pa.C.S. Pt. XXV (relating

to retirement for State employees and officers).

§ 518.  Competitive selection procedures for certain services.

(a)  Conditions for use.--The services of accountants,

clergy, physicians, lawyers, dentists and other professional

services which are not performed by other Commonwealth employees

shall be procured in accordance with this section except as

authorized under section 514 (relating to small procurements)[, 

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515 (relating to sole source procurement)] or 516 (relating to 

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emergency procurement).

(b)  Statement of qualifications.--Persons engaged in

providing the types of services specified in subsection (a) may

submit statements of qualifications and expressions of interest

in providing these services. The contracting officer may specify

a uniform format for statements of qualifications. Persons may

amend these statements at any time by filing a new statement.

(c)  Request for proposals.--[Adequate notice of] When the

need for the services specified in subsection (a) [shall be

given by] exists, the purchasing agency shall solicit the

services through a request for proposals. The request for

proposals shall describe the services required, list the type of

information required of each offeror [and], state the relative

importance of the particular information and disclose the method

of compensation.

(c.1)  Method of compensation.--If the head of the

contracting purchasing agency determines in writing that it is

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in the best interests of the Commonwealth for the services to be

provided on a contingent fee basis, the head of the purchasing

agency shall disclose in the request for proposals required by

subsection (c) that the method of compensation for the

procurement shall be on a contingent fee basis.

(c.2)  Evaluation.--The relative importance of the evaluation

factors shall be fixed prior to opening the proposals.

(d)  Discussions.--The contracting officer may conduct

discussions with any responsible offeror to determine the

offeror's qualifications for further consideration. Discussions

shall not disclose any information derived from proposals

submitted by other offerors.

(e)  [Award.--Award shall be made to the] Selection for

negotiation.--The responsible offeror determined in writing by

the contracting officer to be best qualified based on the

evaluation factors set forth in the request for proposals[.

Fair] shall be selected for contract negotiations.

(f)  Fee for services compensation.--If the offeror is to be

compensated on a fee for services basis, fair and reasonable

compensation shall be determined through negotiation. The rate

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of compensation shall not exceed the rate charged to other

governmental entities. If compensation cannot be agreed upon

with the best qualified responsible offeror, then negotiations

will be formally terminated with the offeror. If proposals were

submitted by one or more other responsible offerors,

negotiations may be conducted with the other responsible offeror

or responsible offerors in the order of their respective

qualification ranking. [The contract may be awarded to the

responsible offeror then ranked as best qualified if the amount

of compensation is determined to be fair and reasonable.]

(g)  Contingent fee compensation.--If the offeror is to be

compensated on a contingent fee basis, fair and reasonable

compensation shall be determined through negotiation.

Compensation shall not exceed 20% of a portion of an award or

settlement, or $25,000,000, whichever is less. If compensation

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cannot be agreed upon with the best qualified responsible

offeror, then negotiations will be formally terminated with the

offeror. If proposals were submitted by one or more other

responsible offerors, negotiations may be conducted with the

other responsible offeror or responsible offerors in the order

of their respective qualification ranking. By February 1 of each

year, if a Commonwealth agency the head of any purchasing agency

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that is party to contract in which the method of compensation is

on a contingent fee basis, the head of that Commonwealth agency

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shall submit a report to the President Pro tempore of the Senate

and the Speaker shall submit a report to the chairman and

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minority chairman of the State Government Committee of the

Senate and the chairman and minority chairman of the State

Government Committee of the House of Representatives. The report

shall list for each contingent fee contract the parties to the

contract, the nature of the contract, the date the contract was

entered into, the date of termination, if any, and the rate of

compensation.

(h)  Contracts.--If an agreement was reached during

negotiations, a contract may be entered into between the

purchasing agency and the offeror. All contracts procuring

services under this section shall be in writing and posted in

accordance with Chapter 17 of the act of February 14, 2008

(P.L.6, No.3) known as the Right-to-Know Law.

(i)  Legal services contracts.--If the procurement is for

legal services, in addition to the requirements of subsection

(h), each contract for legal services shall do the following 

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include the following provisions:

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(1)  Commonwealth attorneys designated by the head of the

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purchasing agency shall retain control over the course and

conduct of any legal action, retain the ability to have

direct contact with any party to the action and participate

in any conference call, hearing, trial or settlement

conference.

(2)  The contracting agency maintains purchasing agency

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shall maintain the exclusive power to accept a settlement.

(3)  Notwithstanding the provisions of paragraphs (1) and

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(2), commonwealth attorneys shall be subject to the Rules of

Professional Conduct as set forth by the Supreme Court in

accordance with section 10(c) of Article V of the

Constitution of Pennsylvania.

(j)  Definition.--As used in this section, the term

"commonwealth attorney" means an attorney employed by the

contracting agency who is eligible to participate in the

retirement system established by 71 Pa.C.S. Pt. XXV (relating to

retirement for State employees and officers).

Section 2.  The amendment of 62 Pa.C.S. §§ 515 and 518 shall

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apply to contracts solicited or entered into on or after the

effective date of this section.

Section 2 3.  This act shall take effect in 60 days.

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