PRINTER'S NO. 836
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
713
Session of
2015
INTRODUCED BY DAVIDSON, COHEN, THOMAS, DAVIS AND V. BROWN,
MARCH 4, 2015
REFERRED TO COMMITTEE ON STATE GOVERNMENT, MARCH 4, 2015
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, in general provisions, further providing for
application of part and for definitions; providing for public
access to procurement information; in procurement
organization, further providing for procurement
responsibility, for powers and duties and for Board of
Commissioners of Public Grounds and Buildings; in source
selection and contract formation, further providing for
methods of source selection, for competitive sealed bidding,
for competitive electronic auction bidding, for competitive
sealed proposals, for small procurements, for sole source
procurement, for emergency procurement, for multiple awards,
for competitive selection procedures for certain services,
for selection procedure for insurance and notary bonds, for
cost or pricing data and for record of certain actions; in
procurement of construction and design professional services,
further providing for procurement of design professional
services; in intergovernmental relations, further providing
for cooperative purchasing authorized; and making editorial
changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 102(a) and (c) of Title 62 of the
Pennsylvania Consolidated Statutes are amended to read:
§ 102. Application of part.
(a) Application to Commonwealth [procurement] agencies.--
This part applies to every expenditure of funds, other than the
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investment of funds, by Commonwealth agencies under any
contract, irrespective of their source, including Federal
assistance moneys except as specified in section 2108 (relating
to compliance with Federal requirements). This part does not
apply to contracts between Commonwealth agencies or between the
Commonwealth and its political subdivisions or other governments
except as provided in Chapter 19 (relating to intergovernmental
relations). Nothing in this part or in accompanying regulations
shall prevent any Commonwealth agency or political subdivision
from complying with the terms and conditions of any grant, gift,
bequest or cooperative agreement.
* * *
[(c) Application to General Assembly and unified judicial
system.--The General Assembly and its agencies and the unified
judicial system and its agencies may use the department as its
purchasing agency for the purchase of supplies under this part
and may use the department to dispose of surplus supplies under
Chapter 15 (relating to supply management).]
* * *
Section 2. The definitions of "Commonwealth agency,"
"contracting officer," "executive agency," "independent agency,"
"purchasing agency," "State-affiliated entity" and "supplies" in
section 103 of Title 62 are amended and the section is amended
by adding definitions to read:
§ 103. Definitions.
Subject to additional definitions contained in subsequent
provisions of this part which are applicable to specific
provisions of this part, the following words and phrases when
used in this part shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
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* * *
"Commonwealth agency." An executive agency, a legislative
agency, a judicial agency, an independent agency or a State-
affiliated entity.
"Competitive procurement." Procurement under sections 512
(relating to competitive sealed bidding), 512.1 (relating to
competitive electronic auction bidding), 513 (relating to
competitive sealed proposals), 517 (relating to competitive
procurement on a multiple award basis), 518 (relating to
competitive selection procedures for certain services), 519
(relating to selection procedure for insurance and notary bonds)
and 905 (relating to procurement of design professional
services).
* * *
"Contracting agency." A Commonwealth agency which seeks
procurement of a supply, service or construction.
"Contracting officer." A person authorized to enter into and
administer contracts and make written determinations with
respect to contracts for a contracting agency.
* * *
"Executive agency."
(1) Any of the following:
(i) The Governor and the departments, boards,
commissions, authorities and other officers and agencies
of the [Commonwealth] executive branch.
(ii) The State Treasurer and the Office of the State
Treasurer.
(iii) The Auditor General and the Office of the
Auditor General.
(iv) The Attorney General and the Office of Attorney
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General.
(2) The term does not include [any court or other
officer or agency of the unified judicial system, the General
Assembly and its officers and agencies or any] a judicial
agency, legislative agency, independent agency [or], State-
affiliated entity, State-related institution, political
subdivision or local, regional or metropolitan transportation
authority.
* * *
"Independent agency." Boards, commissions and other agencies
and officers of the Commonwealth which are not subject to the
policy supervision and control of the Governor. The term does
not include [any] an executive agency, a judicial agency,
legislative agency, State-affiliated entity, [any court or other
officer or agency of the unified judicial system, the General
Assembly and its officers and agencies, any] State-related
institution, political subdivision or [any] local, regional or
metropolitan transportation authority.
* * *
"Judicial agency." The Supreme Court, Superior Court,
Commonwealth Court or any other court or other officer or agency
of the unified judicial system. The term does not include an
executive agency, a legislative agency, independent agency,
State-affiliated entity, State-related institution, political
subdivision or local, regional or metropolitan transportation
authority.
"Legislative agency."
(1) Any of the following:
(i) The Senate of Pennsylvania and a member thereof.
(ii) The Pennsylvania House of Representatives and a
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member thereof.
(iii) Another officer or agency of the General
Assembly.
(2) The term does not include an executive agency,
judicial agency, independent agency, State-affiliated entity,
State-related institution, political subdivision or any
local, regional or metropolitan transportation authority.
"Lobbying." As defined in 65 Pa.C.S. § 13A03 (relating to
definitions).
"Lobbying firm." As defined in 65 Pa.C.S. § 13A03 (relating
to definitions).
"Lobbyist." As defined in 65 Pa.C.S. § 13A03 (relating to
definitions).
* * *
"Purchasing agency." A Commonwealth agency authorized by
this part or by other law to enter into contracts for itself or
as the agent [of another Commonwealth] for a contracting agency.
When purchasing for itself, the agency is both the contracting
agency and the purchasing agency. When purchasing for another
[Commonwealth] contracting agency, the purchasing agency acts on
behalf of the [principal which needs the supplies, services and
construction] contracting agency and shall coordinate and
cooperate with [that] the contracting agency.
* * *
"State-affiliated entity." A Commonwealth authority or a
Commonwealth entity. The term includes the Pennsylvania Turnpike
Commission, the Pennsylvania Housing Finance Agency, the
Pennsylvania Municipal Retirement System, the Pennsylvania
Infrastructure Investment Authority, the State Public School
Building Authority, the Pennsylvania Higher Educational
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Facilities Authority and the State System of Higher Education.
The term does not include [any court or other officer or agency
of the unified judicial system, the General Assembly and its
officers and agencies, any] a judicial agency, legislative
agency, State-related institution, political subdivision or any
local, regional or metropolitan transportation authority.
* * *
"Supplies." Any property[, including, but not limited to,].
The term includes equipment, materials, printing, insurance and
leases of and installment purchases of tangible or intangible
personal property. The term does not include real property,
leases of real property or alcoholic beverages or liquor
purchased for resale by the Pennsylvania Liquor Control Board.
* * *
Section 3. Title 62 is amended by adding a section to read:
§ 106.1. Public access to procurement information.
(a) Access.--Information 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) Access for noncompetitive contracts.--Except as provided
under subsection (c), if a procurement is to be made under
section 513 (relating to competitive sealed proposals), 517
(relating to competitive procurement on a multiple award basis),
518 (relating to competitive selection procedures for certain
services), 519 (relating to selection procedure for insurance
and notary bonds) or 905 (relating to procurement of design
professional services), at least five business days prior to
execution by the contracting officer the purchasing agency shall
post the proposed contract on its Internet website.
(c) Exception.--All of the following are applicable to a
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procurement under section 516 (relating to emergency
procurement):
(1) Subsection (b) shall not apply.
(2) The signed contract shall be posted on the Internet
website of the purchasing agency within 10 days after the
execution of the contract by all parties to the contract.
Section 4. Section 301 of Title 62 is amended by adding
subsections to read:
§ 301. Procurement responsibility.
* * *
(e) Application to legislative agencies.--Legislative
agencies shall formulate their own procurement policy governing
the procurement, management, control and disposal of supplies,
services and construction and may act as their own purchasing
agency for the procurement of supplies, services and
construction, except that they shall use the procedures provided
under this part for the procurement. A legislative agency may
use the department as its purchasing agency for the purchase of
supplies, services and construction under this part and may use
the department to dispose of surplus supplies under Chapter 15
(relating to supply management).
(f) Application to judicial agencies.--Judicial agencies may
formulate their own procurement policy governing the
procurement, management, control and disposal of supplies,
services and construction and may act as their own purchasing
agency for the procurement of supplies, services and
construction, except that they shall use the procedures provided
under this part for the procurement. A judicial agency may use
the department as its purchasing agency for the purchase of
supplies, services and construction under this part and may use
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the department to dispose of surplus supplies under Chapter 15.
Section 5. Sections 311, 326, 511, 512(a), 512.1(a), 513(a),
(b) and (g), 514, 515, 516, 517, 518(a), (c) and (e), 519(a) and
(c), 534(a)(1), 564 introductory paragraph, 905(a) and 1902 of
Title 62 are amended to read:
§ 311. Powers and duties.
Except as otherwise provided in this part, the department may
promulgate regulations governing the procurement, management,
control and disposal of any and all supplies, services and
construction to be procured by [Commonwealth] executive agencies
and independent agencies. The department shall consider and
decide matters of policy within the provisions of this part
relating to executive agencies and independent agencies. The
department may audit and monitor the implementation of its
regulations and the requirements of this part.
§ 326. Board of Commissioners of Public Grounds and Buildings.
No lease of real estate for use by an executive agency or
independent agency [and no sole source procurement of supplies,
except for computer software updates under $50,000, for an
executive or independent agency] for which the department acts
as the purchasing agency shall be valid or effective unless,
upon review, it is approved by the Board of Commissioners of
Public Grounds and Buildings. [Where the board is reviewing a
proposed sole source lease or procurement being submitted
pursuant to section 515 (relating to sole source procurement),
approval of the lease or procurement shall require the unanimous
vote of the board. Where the board is reviewing a] A proposed
[non-sole source lease, the] lease shall be approved when one
member of the board votes to approve the lease. All votes shall
take place at a public meeting.
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§ 511. Methods of source selection.
Unless otherwise authorized by law, all Commonwealth agency
contracts shall be awarded by competitive sealed bidding under
section 512 (relating to competitive sealed bidding) except as
provided in:
Section 512.1 (relating to competitive electronic auction
bidding).
Section 513 (relating to competitive sealed proposals).
Section 514 (relating to small procurements).
[Section 515 (relating to sole source procurement).]
Section 516 (relating to emergency procurement).
Section 517 (relating to [multiple awards] competitive
procurement on a multiple award basis).
Section 518 (relating to competitive selection procedures
for certain services).
Section 519 (relating to selection procedure for
insurance and notary bonds).
Section 520 (relating to supplies manufactured and
services performed by persons with disabilities).
Section 905 (relating to procurement of design
professional services).
§ 512. Competitive sealed bidding.
(a) Conditions for use.--Contracts for supplies, services
and construction shall be awarded by competitive sealed bidding
except as otherwise provided [in section 511 (relating to
methods of source selection)] under this chapter.
* * *
§ 512.1. Competitive electronic auction bidding.
(a) Conditions for use.--If the contracting officer of the
purchasing agency determines in writing that use of competitive
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[electronic auction] sealed bidding is not in the best interests
of the Commonwealth[,] and that the use of competitive
electronic auction bidding is more advantageous to the
Commonwealth, the purchasing agency may enter into a contract
for supplies or services, but not construction, [may be entered
into] by competitive electronic auction bidding.
* * *
§ 513. Competitive sealed proposals.
[(a) Conditions for use.--When the contracting officer
determines in writing that the use of competitive sealed bidding
is either not practicable or advantageous to the Commonwealth, a
contract may be entered into by competitive sealed proposals.
(b) Request for proposals.--Proposals shall be solicited
through a request for proposals.]
(a) Conditions for use.--If the head of a contracting agency
determines in writing that the use of competitive sealed bidding
is not in the best interests of the Commonwealth and that the
use of competitive sealed proposals is more advantageous to the
Commonwealth, the purchasing agency may enter into a contract
for supplies, services and construction by competitive sealed
proposals.
(b) Request for proposals.--
(1) After making the determination required under
subsection (a), proposals shall be solicited through a
request for proposals.
(2) A request for proposals shall require each offeror
to include a statement which contains the following
information:
(i) Whether the offeror or any of the offeror's
directors, officers or owners has made a campaign
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contribution to a State or local official within the one
year immediately preceding the date of the offeror's
proposal.
(ii) The name of each State or local official named
under subparagraph (i) and the official's position.
(iii) The aggregate amount of campaign contributions
made under subparagraph (i).
(3) The statement required under paragraph (2) shall be
posted on the purchasing agency's Internet website
simultaneously with the posting of a proposed contract under
section 106.1(b) (relating to public access to procurement
information) or a signed contract under section 106.1(c)(2).
* * *
(g) Selection for negotiation.--The responsible offeror
whose proposal is determined in writing to be the most
advantageous to the [purchasing] contracting agency, taking into
consideration price and all evaluation factors, shall be
selected for contract negotiation.
§ 514. Small procurements.
If the procurement is not the subject of a Statewide
requirements contract between the purchasing agency and a
contractor, the head of the purchasing agency may authorize in
writing procurements without [formal bid procedures, not
exceeding the amount established by the purchasing agency] the
use of competitive procurement procedures for small
procurements. The head of the purchasing agency may authorize a
small procurement [of the supply or service] on a no-bid basis
for [procurements which do] a supply or service which does not
exceed [the amount established by the head of the purchasing
agency for small, no-bid procurements.] a total cost of $5,000.
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The amount of $5,000 shall be adjusted annually by the
department to reflect the annual percentage change in the
Consumer Price Index of the United States Department of Commerce
occurring in the one-year period ending December 31 of each
year. The head of the purchasing agency may authorize a small
procurement on a no-bid basis for [construction projects that
do] a construction project which does not exceed a total
construction cost of $10,000. The amount of $10,000 shall be
adjusted annually by the department to reflect the annual
percentage change in the Composite Construction Cost Index of
the United States Department of Commerce occurring in the one-
year period ending December 31 of each year. Procurement
requirements shall not be artificially divided so as to
constitute a small procurement under this section. Small
procurements shall be made in accordance with the requirements
of the written authorization and this section. Records of all
small procurements shall be transmitted to the purchasing
agency.
[§ 515. Sole source procurement.
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
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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
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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 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.]
(a) Condition of use.--If the head of a contracting agency
determines in writing that the use of competitive sealed bidding
is not in the best interests of the Commonwealth and that the
supply, service or construction is necessary to prevent an
immediate threat of personal injury or physical damage to
property, the purchasing agency may, after receiving approval by
the Board of Commissioners of Public Grounds and Buildings,
enter into a contract for the supply, service or construction
without the use of competitive procurement.
(b) Documentation.--The determination required under
subsection (a) shall be placed in the contract file and shall be
made available for public inspection in accordance with section
106.1 (relating to public access to procurement information).
(c) Exception.--For the purposes of this section, a
procurement which is necessary to respond to a disaster
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emergency declared under 35 Pa.C.S. § 7301 (relating to general
authority of Governor) shall be deemed to meet the standard set
forth in subsection (a).
(d) Procurement of supplies.--For procurement of supplies,
at least two bids shall be solicited, if practicable.
§ 517. [Multiple awards] Competitive procurement on a multiple
award basis.
(a) Conditions for use.--[Contracts may be entered into on a
multiple award basis when the head of the purchasing agency
determines that one or more of the following criteria is
applicable:] If the head of the contracting agency determines in
writing that one or more of the conditions listed under
subsection (a.1) exists and that the use of multiple contracts
is more advantageous to the Commonwealth, the purchasing agency
may enter into a contract on a multiple award basis.
(a.1) Conditions.--In order for a procurement to be made
under this section, the head of a contracting agency must
determine that one of the following conditions exists:
(1) It is administratively or economically impractical
to develop or modify specifications for a myriad of related
supplies because of rapid technological changes.
(2) The subjective nature in the use of certain supplies
and the fact that recognizing this need creates a more
efficient use of the item.
(3) It is administratively or economically impractical
to develop or modify specifications because of the
heterogeneous nature of the product lines.
(4) There is a need for compatibility with existing
systems.
(5) The agency should select the contractor to furnish
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the supply, service or construction based upon best value or
return on investment.
(b) Solicitation process.--[Invitations to bid or requests
for proposals shall be issued for the supplies, services or
construction to be purchased.] Invitations to bid shall be
issued as provided under section 512(b) (relating to competitive
sealed bidding) for supplies, services or construction to be
purchased or requests for proposals shall be issued as provided
under section 513(b) (relating to competitive sealed proposals)
for supplies, services or construction to be purchased.
Invitations for bids or requests for proposals shall describe
the method for selection of the successful bidders or offerors.
(c) Public notice.--Public notice of the invitation for bids
or request for proposals shall be given in the same manner as
provided in section 512(c) [(relating to competitive sealed
bidding)].
(d) Receipt of bids or proposals.--Bids shall be opened in
the same manner as provided in section 512(d). Proposals shall
be received and evaluated in the same manner as provided in
section 513(d) and (e) [(relating to competitive sealed
proposals)].
(e) Award.--[The invitation for bids or request for
proposals shall describe the method for selection of the
successful bidders or offerors. There are three options:] The
purchasing agency shall make contract awards consistent with the
following:
(1) Awards shall be made to the lowest responsible
bidder or offeror for each designated manufacturer.
(2) Awards shall be made to the two or three lowest
responsible bidders or offerors for each designated
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manufacturer.
(3) Awards shall be made to all responsible bidders or
offerors.
(f) Selection.--A Commonwealth agency may select a
contractor from the bidders or offerors awarded contracts under
subsection (e) to furnish the supply, service or construction
based upon best value or return on investment.
§ 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)[,
515 (relating to sole source procurement)] or 516 (relating to
emergency procurement).
* * *
(c) Request for proposals.--Adequate notice of the need for
the services specified in subsection (a) shall be given by the
purchasing agency 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. Additionally,
each request for a proposal shall require the offeror to
include the same statement required under section 513(b)
(relating to competitive sealed proposals).
* * *
(e) Award.--Award shall be made to 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 and reasonable compensation shall be
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determined through negotiation, except that no contract may
provide for compensation which exceeds the rate charged other
governmental entities for the same or substantially similar
services. 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.
§ 519. Selection procedure for insurance and notary bonds.
(a) Conditions for use.--Insurance and notary bonds shall be
procured by the department in accordance with this section
except as authorized under section [515 (relating to sole source
procurement) or] 516 (relating to emergency procurement).
* * *
(c) Request for proposals.--Adequate notice of the need for
insurance or notary bond coverage shall be given by the
purchasing agency through a request for proposals. The request
for proposals shall describe the type of insurance or bond
coverage required and list the type of information and data
required of each offeror and shall include the same statement
required under section 513(b) (relating to competitive sealed
proposals).
* * *
§ 534. Cost or pricing data.
(a) Submission by contractor.--A contractor shall, except as
provided in subsection (c), submit cost or pricing data and
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shall certify that, to the best of its knowledge and belief, the
cost or pricing data submitted was accurate, complete and
current as of a mutually determined specified date prior to the
date of:
(1) the award of any contract under section 513
(relating to competitive sealed proposals) [or 515 (relating
to sole source procurement)] where, under either section, the
total contract price is expected to exceed an amount
established by the head of the purchasing agency; or
* * *
§ 564. Record of certain actions.
The purchasing agency shall maintain a record listing all
contracts made under sections 514 (relating to small
procurements)[, 515 (relating to sole source procurement)] and
516 (relating to emergency procurement) for a minimum of three
years from the date of final payment under the contract. The
record shall contain:
* * *
§ 905. Procurement of design professional services.
(a) Applicability.--Design professional services shall be
procured as provided in this section except as authorized by
sections 514 (relating to small procurements)[, 515 (relating to
sole source procurement)] and 516 (relating to emergency
procurement).
* * *
§ 1902. Cooperative purchasing authorized.
A public procurement unit may either participate in, sponsor,
conduct or administer a cooperative purchasing agreement for the
procurement of any supplies, services or construction with one
or more public procurement units or external procurement
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activities in accordance with an agreement entered into between
the participants. The Department of General Services is
authorized to enter into cooperative purchasing contracts solely
for the use of local public procurement units or State-
affiliated entities. The department shall enter into cooperative
purchasing contracts for the use of local public procurement
units or State-affiliated entities if the number of contractors
under a previously existing contract for the same supply or
service is reduced to a single contractor or reduced by more
than 50% of the number existing on September 30, 2003, and shall
award such contracts pursuant to section 517 (relating to
[multiple awards] competitive procurement on a multiple award
basis) using an invitation for bids. Nothing in this section
shall prohibit a local public procurement unit or State-
affiliated entity from participating in or procuring from other
cooperative purchasing agreements awarded by the department.
Cooperative purchasing may include, but is not limited to, joint
or multiparty contracts between public procurement units and
open-ended purchasing agency contracts which are made available
to local public procurement units.
Section 6. This act shall take effect in 60 days.
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