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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY ORIE, PILEGGI, ROBBINS, BROWNE, ERICKSON, VOGEL, PICCOLA, ARGALL, YAW, FOLMER, RAFFERTY, SMUCKER, EICHELBERGER, FARNESE, TOMLINSON, KASUNIC, BAKER, ALLOWAY, WILLIAMS, WASHINGTON, BRUBAKER, PIPPY, VANCE, WAUGH, MENSCH, EARLL, WARD, WOZNIAK AND KITCHEN, FEBRUARY 14, 2011 |
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| REFERRED TO STATE GOVERNMENT, FEBRUARY 14, 2011 |
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| AN ACT |
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1 | Amending Title 62 (Procurement) of the Pennsylvania Consolidated |
2 | Statutes, in procurement organization, providing for review |
3 | of contracts; in source selection and contract formation, |
4 | further providing for sole source procurement; providing for |
5 | procurement of professional services; and, in ethics in |
6 | public contracting, providing for disclosure. |
7 | The General Assembly of the Commonwealth of Pennsylvania |
8 | hereby enacts as follows: |
9 | Section 1. Title 62 of the Pennsylvania Consolidated |
10 | Statutes is amended by adding a section to read: |
11 | § 313. Review of contracts. |
12 | (a) Delegation prohibited.-- |
13 | (1) Notwithstanding any other provision of law, the |
14 | Attorney General may not delegate his responsibility to |
15 | review each contract for form and legality under section 204 |
16 | of the act of October 15, 1980 (P.L.950, No.164), known as |
17 | the Commonwealth Attorneys Act, including contracts under |
18 | section 515.1 (relating to procurement of professional |
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1 | services). |
2 | (2) No contract shall be approved or deemed approved |
3 | absent review under this section. |
4 | (b) Review.--The Attorney General shall review each contract |
5 | for legality under the act of July 19, 1957 (P.L.1017, No.451), |
6 | known as the State Adverse Interest Act. |
7 | Section 2. Section 515 of Title 62 is amended to read: |
8 | § 515. Sole source procurement. |
9 | A contract may be awarded for a supply, service or |
10 | construction item without competition if the contracting officer |
11 | first determines in writing that the contract is in the best |
12 | interest of the Commonwealth and that one of the following |
13 | conditions exists: |
14 | (1) Only a single contractor is capable of providing the |
15 | supply, service or construction. |
16 | (2) A Federal or State statute or Federal regulation |
17 | exempts the supply, service or construction from the |
18 | competitive procedure. |
19 | (3) The total cost of the supply, service or |
20 | construction is less than the amount established by the |
21 | department for small, no-bid procurements under section 514 |
22 | (relating to small procurements). |
23 | (4) It is clearly not feasible to award the contract for |
24 | supplies or services on a competitive basis. |
25 | (5) The services are to be provided by attorneys or |
26 | litigation consultants selected by the Office of General |
27 | Counsel, the Office of Attorney General, the Department of |
28 | the Auditor General or the Treasury Department that are |
29 | directly related to pending litigation or other matters |
30 | before a court. |
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1 | (6) The services are to be provided by expert witnesses. |
2 | (7) The services involve the repair, modification or |
3 | calibration of equipment and they are to be performed by the |
4 | manufacturer of the equipment or by the manufacturer's |
5 | authorized dealer, provided the contracting officer |
6 | determines that bidding is not appropriate under the |
7 | circumstances. |
8 | [(8) The contract is for investment advisors or managers |
9 | selected by the Public School Employees' Retirement System, |
10 | the State Employees' Retirement System or a State-affiliated |
11 | entity. |
12 | (9) The contract is for financial or investment experts |
13 | to be used and selected by the Treasury Department or |
14 | financial or investment experts selected by the Secretary of |
15 | the Budget. |
16 | (10) The contract for supplies or services is in the |
17 | best interest of the Commonwealth.] |
18 | The written determination authorizing sole source procurement |
19 | shall be included in the contract file and shall be available |
20 | for public inspection. With the exception of small procurements |
21 | under section 514 and emergency procurements under section 516 |
22 | (relating to emergency procurement), if the sole source |
23 | procurement is for a supply, except for computer software |
24 | updates under $50,000, for which the department acts as |
25 | purchasing agency, it must be approved by the Board of |
26 | Commissioners of Public Grounds and Buildings prior to the award |
27 | of a contract. |
28 | Section 3. Title 62 is amended by adding sections to read: |
29 | § 515.1. Procurement of professional services. |
30 | (a) Procedures.-- |
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1 | (1) The department shall develop procedures to select |
2 | the most qualified bidder for professional service contracts |
3 | with a State agency within the executive branch. |
4 | (2) The Senate, the House of Representatives and the |
5 | Administrative Office of Pennsylvania Courts shall adopt |
6 | procedures to select the most qualified bidder for |
7 | professional service contracts for their respective agency. |
8 | (3) The procedures shall ensure that the availability of |
9 | a contract for professional services is advertised to |
10 | potential bidders in a timely and efficient manner. |
11 | Procedures shall include applications and disclosure forms to |
12 | be used to submit a proposal for review to receive the award |
13 | of a professional services contract. |
14 | (b) Advertisement.--An advertisement for proposals under |
15 | this section shall set forth the following: |
16 | (1) The State agency seeking to enter into the contract. |
17 | (2) The services that are the subject of the contract |
18 | and specifications relating to the services. |
19 | (3) Procedures and requirements to be followed. |
20 | (4) The factors that will be used in scoring. |
21 | (c) Qualified evaluation committee.--Prior to the receipt of |
22 | an application for a professional services contract, the State |
23 | agency shall establish a qualified evaluation committee |
24 | comprised of Commonwealth employees to score the proposals |
25 | submitted. The committee may include individuals with expertise |
26 | from other State agencies within the executive branch. |
27 | (d) Conflict of interest regulations.--The department, the |
28 | Senate, the House of Representatives and the Administrative |
29 | Office of Pennsylvania Courts shall each promulgate regulations |
30 | relating to potential conflicts of interest in the review of |
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1 | proposals or negotiation of contracts under this section. The |
2 | regulations shall include restrictions on the participation by a |
3 | former employee of a contractor in the review of a proposal or |
4 | negotiation of a contract with that contractor. |
5 | (e) Public information.--Following the award of a contract |
6 | under this section, all applications and disclosure forms shall |
7 | be public except for proprietary information or other |
8 | information protected by law. |
9 | (f) Increase.--A professional services contract shall not be |
10 | amended to increase the cost by more than 10% or $10,000, |
11 | whichever is greater, unless the increase and a justification |
12 | statement is posted on the State agency's Internet website at |
13 | least ten days prior to the amendment of the contract. |
14 | (g) Award of contract to most qualified bidder.-- |
15 | (1) A contract under this section shall be awarded on |
16 | the basis of multiple factors which shall be scored by the |
17 | qualified evaluation committee. The State agency shall review |
18 | the scoring system and ensure that the scoring system will |
19 | not improperly steer a contract to a particular firm. |
20 | (2) Factors used by an agency in the scoring process |
21 | shall include the following: |
22 | (i) The background, qualifications and skills of the |
23 | firm and its staff. |
24 | (ii) The firm's degree of expertise concerning the |
25 | subject of the proposed contract. |
26 | (iii) The experience of the firm. |
27 | (iv) The rate or price to be charged. |
28 | (v) The experience of the contractor with government |
29 | agencies, including agencies in other jurisdictions. |
30 | (vi) The firm's proposed approach to the issues |
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1 | raised in the advertisement and all specifications and |
2 | requirements. |
3 | (vii) The firm's ability to meet the requirements of |
4 | the project at issue to include experience and |
5 | qualifications on projects of similar size and |
6 | complexity. |
7 | (viii) References. |
8 | (ix) Interviews with firm members. |
9 | (x) A review of the applicant's criminal history |
10 | record. |
11 | (xi) Geographic location of the firm's offices. |
12 | (h) Notice and summary.-- |
13 | (1) The relevant factors that resulted in the award of |
14 | the contract shall be summarized in a written statement to be |
15 | included in the award of the contract. |
16 | (2) Within ten days of the award of the contract, the |
17 | application, a summary of the basis for the award and all |
18 | required disclosures shall be transmitted to all unsuccessful |
19 | applicants and shall be posted on the State agency's Internet |
20 | website for at least ten days prior to the execution of the |
21 | contract. |
22 | (i) Negotiations.--A State agency may engage in negotiations |
23 | with one or more applicants relating to terms and price of a |
24 | contract prior to the final award of the contract. |
25 | (j) Registry.-- |
26 | (1) A State agency shall maintain a registry of |
27 | qualified individuals or firms to provide professional |
28 | services for contracts that do not exceed $25,000 in value if |
29 | similar professional services are expected to be required on |
30 | numerous occasions over a period of time. |
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1 | (2) The State agency shall develop and publish the |
2 | minimum educational experience and related qualifications |
3 | which must be met in order to be considered a qualified |
4 | bidder under this subsection. |
5 | (k) Void.--A contract for professional services that is not |
6 | applied for, reviewed and executed in accordance with this |
7 | section shall be void. |
8 | (l) Definitions.--For purposes of this section, the |
9 | following words and phrases shall have the meanings given to |
10 | them in this subsection unless the context clearly indicates |
11 | otherwise: |
12 | "Professional service." A service involving professional or |
13 | expert advice, opinion or examination to include: |
14 | (1) Management consulting services designed to improve |
15 | the effectiveness of management, management strategies, |
16 | processes or operations. |
17 | (2) All legal services except those directly related to |
18 | pending litigation. |
19 | (3) Services provided by financial or investment |
20 | managers, experts or advisors. |
21 | (4) Services of experts to provide advice, information |
22 | or recommendations relating to a policy or practice being |
23 | implemented or being reviewed by an agency for potential |
24 | adoption or enactment. |
25 | "State agency." A Commonwealth agency, the General Assembly |
26 | and the judiciary. The term shall not include the judiciary if |
27 | the courts have adopted a rule to provide for a similar review |
28 | of proposed contracts with a judicial agency. |
29 | § 2304. Disclosure. |
30 | (a) Contractors.--A person and any affiliated entity that |
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1 | has one or more contracts with one or more Commonwealth |
2 | agencies, the General Assembly or the judiciary with an annual |
3 | total of $25,000 or more in the aggregate shall disclose all |
4 | contributions to any political committee or candidate for |
5 | Statewide office or for the General Assembly, or to a political |
6 | action committee that makes contributions to a candidate for |
7 | Statewide office or for the General Assembly, made within the |
8 | last five years by an officer, director, owner of 5% or more or |
9 | executive-level employee of the person or affiliated entity. |
10 | (b) Bidders.--The provisions of subsection (a) shall apply |
11 | to a person and any affiliated entity that has submitted a bid, |
12 | responded to a request for proposal or otherwise solicited a |
13 | contract with a Commonwealth agency, the General Assembly or the |
14 | judiciary. |
15 | (c) Professional and sole source contracts.--This section |
16 | shall include all contracts under this title. |
17 | (d) Forms.--Disclosure shall be made on a form prepared by |
18 | the department, the Senate, the House of Representatives or the |
19 | Administrative Office of Pennsylvania Courts and shall be |
20 | attached to the contract. The form shall be posted with the |
21 | contract on the Internet website maintained by the Treasury |
22 | Department if the contract is required to be posted under the |
23 | act of February 14, 2008 (P.L.6, No.3), known as the Right-to- |
24 | Know Law. |
25 | (e) Update of information.--During the term of the contract, |
26 | an updated form shall be filed annually to reflect additional |
27 | contributions to a political committee or candidate for |
28 | Statewide office or for the General Assembly or political |
29 | committee that makes contributions to a political candidate for |
30 | Statewide office or a member of the General Assembly. |
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1 | (f) Penalties.-- |
2 | (1) A person who knowingly makes a material misstatement |
3 | or omission in a disclosure form under this section shall be |
4 | subject to a civil penalty of up to $10,000 per violation and |
5 | shall be prohibited from entering into a contract for a |
6 | period of up to three years. |
7 | (2) (i) An intentional violation shall result in the |
8 | contract being void. |
9 | (ii) All other violations shall make the contract |
10 | voidable. |
11 | (3) If a contractor or person who has submitted a bid |
12 | violates this section three or more times within a 36-month |
13 | period, all contracts between any Commonwealth agency, the |
14 | General Assembly or the judiciary and the contractor shall be |
15 | void and the contractor or person who has submitted a bid |
16 | shall be debarred for a period of three years from the date |
17 | of the last violation. |
18 | (g) Definitions.--For purposes of this section, the |
19 | following words and phrases shall have the meanings given to |
20 | them in this subsection unless the context clearly indicates |
21 | otherwise: |
22 | "Affiliated entity." Any of the following: |
23 | (1) A subsidiary or holding company of a business |
24 | entity. |
25 | (2) An organization recognized by the Internal Revenue |
26 | Service as a tax-exempt organization under section 501(c) of |
27 | the Internal Revenue Code of 1986 (Public Law 99-514, 26 |
28 | U.S.C. § 501(c)) established by a business entity. |
29 | (3) A person or the person's spouse or minor child with: |
30 | (i) Financial interest of more than 5% of a business |
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1 | entity or its subsidiary, holding company or organization |
2 | under paragraph (2). |
3 | (ii) A distributive share of 5% or more of a |
4 | business entity or its subsidiary, holding company or |
5 | organization under paragraph (2). |
6 | "Executive-level employee." An employee of a person or its |
7 | affiliated entity required to disclose contributions under |
8 | subsection (a) who can affect or influence the person's or |
9 | affiliated entity's actions, policies or decisions relating to |
10 | contracts and procurement. |
11 | Section 4. This act shall take effect in 60 days. |
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