PRINTER'S NO. 144
No. 139 Session of 1975
INTRODUCED BY BUTERA, WRIGHT, S. E. HAYES JR., LEHR,
D. S. HAYES, FISCHER, CESSAR, McCLATCHY, POLITE, SCIRICA,
VROON, KLINGAMAN, DORR AND FAWCETT, JANUARY 28, 1975
REFERRED TO COMMITTEE ON PROFESSIONAL LICENSURE,
JANUARY 28, 1975
AN ACT
1 Providing for the selection and award of contracts relating to
2 design, feasibility and landscaping which are awarded to
3 architects and engineers; establishing the Public Works
4 Professional Services Board, and providing for its powers and
5 duties; prescribing penalties; and making an appropriation.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Short Title.--This act shall be known and may be
9 cited as the "Public Works Professional Services Act."
10 Section 2. Statement of Policy.--It is necessary to the
11 public interest that a system for selection of architects,
12 engineers, landscape architects and surveyors for public works
13 projects be established through law. The General Assembly of
14 Pennsylvania is responding by enacting this act for the express
15 purpose of ensuring that professional service contracts be
16 awarded to firms in a fair and open manner which will encourage
17 professional competition among all who seek the benefit of
18 public works professional contracts within this Commonwealth.
1 Section 3. Definitions.--When used in this act the following
2 words and phrases shall have the meanings set forth in this
3 section:
4 "Agency." All departments, bureaus, boards, commissions,
5 authorities and tax supported institutions which are directly or
6 indirectly a part of the Commonwealth, its school districts,
7 public authorities and publicly owned utilities.
8 "Agency official." Any elected or appointed officeholder,
9 employee, consultant or any other person acting on behalf of an
10 agency for the purpose of engaging professional services.
11 "Board." The Public Works Professional Services Board.
12 "Compensation." The total amount paid by the agency for
13 professional services.
14 "Firm." Any individual, partnership, association,
15 corporation or other legal entity permitted by law to practice
16 the professions of architecture, landscape architecture,
17 engineering, or surveying within this Commonwealth.
18 "Professional services." Those services within the scope of
19 the practice of the professions of architecture, landscape
20 architecture, engineering, or surveying as defined under the
21 laws of this Commonwealth which are performed by a firm in
22 connection with its professional employment or practice.
23 "Substantial interest." A direct or indirect financial
24 interest exceeding $5,000 or 5% of the equity at fair market
25 value in a legal entity engaged in business for profit.
26 Section 4. Registration and Notice.--(a) Any firm desiring
27 to provide professional services to any agency for a public
28 works project must be registered and certified by the board as
29 being eligible to render professional services.
30 (b) To be certified as eligible to render professional
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1 services and to be included in the comprehensive register, a
2 firm must apply to the board on a form provided by the board.
3 The board shall certify and include on the comprehensive
4 register, all firms which meet the standards established by the
5 board for certification.
6 (c) Any agency desiring professional services for a public
7 works project must notify the board of the project in sufficient
8 time to be published in the bulletin as hereinafter provided.
9 Such notice shall be of such detail as to permit a firm to be
10 sufficiently informed of the scope of the professional services
11 desired.
12 Section 5. Public Works Professional Services Board.--(a)
13 There is hereby created a Public Works Professional Services
14 Board within the Treasury Department. The board shall consist of
15 three members appointed by the Governor with the advice and
16 consent of the Senate, one of whom shall be a professional
17 engineer licensed and registered under the laws of this
18 Commonwealth, one of whom shall be an architect certified and
19 registered under the laws of this Commonwealth, and one of whom
20 shall be a business person with a bachelor's degree in business
21 administration and at least 10 years experience in a responsible
22 executive position in business or finance who in addition is
23 neither an engineer nor an architect. The business executive
24 shall be the chairman of the board.
25 (b) The term of office for the first appointees shall be the
26 engineer for a period of 2 years, the architect for a period of
27 4 years and the business executive for a period of 6 years.
28 Thereafter all board members shall serve for 6 years. Board
29 members shall be eligible for reappointment. Any vacancy shall
30 be filled for the unexpired term of office and in the same
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1 manner as regular members are selected.
2 (c) Members of the board may be removed from office for
3 cause. Any member before removal, shall be entitled to
4 reasonable notice of the charges filed and a public hearing
5 prior to any dismissal.
6 (d) Board members shall not engage in any other occupation
7 for which a salary or any other form of compensation is paid. No
8 board member shall retain any interest in any firm which
9 provides professional services to the Commonwealth except that a
10 board member may retain such interest if the firm is
11 disqualified from providing professional services to the
12 Commonwealth during such member's term of office and the total
13 value of such compensation or interest is disclosed prior to
14 such appointment. This section is not intended to prohibit any
15 member from receiving any form of delayed compensation, profit
16 sharing, pension benefit, or the like, from any firm to the
17 extent such interest became vested prior to the member's
18 appointment to the board. Board members shall receive a salary
19 of $45,000 annually.
20 Section 6. Powers and Duties of Board.--(a) The board shall
21 have the following powers and duties in addition to others set
22 forth in this act.
23 (b) The board shall designate, in accordance with the
24 procedures set forth herein, in section 7 and the rules and
25 regulations adopted pursuant to this act, which firm shall be
26 awarded the professional service contract for each public works
27 project of every agency. For a public works project of any local
28 authority and publicly owned utility for which professional
29 services are required, the professional service contract shall
30 be awarded in accordance with existing law. For a public works
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1 project of any local authority or publicly owned utility for
2 which State funds are directly or indirectly expended, no such
3 contract shall be awarded unless and until the local agency
4 responsible for awarding the contract, shall select a firm from
5 the comprehensive register maintained by the board, and submit
6 such firm to the board for approval. The board shall notify the
7 local agency of approval or disapproval of the firm within 30
8 days from receipt of notice of selection, in accord with the
9 criteria established herein in the procedures for designation of
10 a firm for a State agency.
11 (c) The board shall establish and maintain a comprehensive
12 register of all firms which are eligible, in accord with the law
13 and the rules and regulations of the board, to perform
14 professional services for all agencies. The register shall be
15 available for public inspection during the board's working days.
16 (d) (1) The board shall establish and cause to be published
17 a monthly bulletin which shall contain a complete listing of all
18 nonlocal public works projects which require professional
19 services but for which no firm has been designated. The first
20 such listing of a requirement for professional services shall be
21 published in the bulletin not later than 6 months before the
22 date on which commencement of the professional services is
23 required. The bulletin shall be available to all firms on a paid
24 subscription basis, at a rate to be set by the board. The board
25 shall also cause to be published, in the bulletin a list of all
26 contracts awarded, and to which firms, since the publication of
27 the last previous bulletin.
28 (2) Every agency shall notify the board of each public works
29 project for which professional services are required. Such
30 notification shall be made in sufficient time that the first
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1 publication of the notice will be in conformity with paragraph
2 (1). The notification shall include a general description of the
3 project, the date when the services are to commence, and be in
4 sufficient detail to reasonably notify a firm of the
5 requirements of the project.
6 (e) The board shall approve generally accepted accounting
7 principles to account for compensation paid and moneys expended.
8 Firms shall adopt such procedures prior to being eligible for
9 inclusion on the comprehensive register. The Auditor General
10 may, or shall at the direction of the board, perform an annual
11 audit of any firm on the comprehensive register which has
12 received compensation from any agency, or is presently engaged
13 with an agency in a professional services contract for a public
14 works project. The audit shall be limited to those records
15 pertaining to Commonwealth public works contracts, or local
16 public works contracts for which Commonwealth funds are
17 expended.
18 (f) The board shall make an annual report to the General
19 Assembly by January 31 of each year. The report shall include,
20 but not be limited to, the following:
21 (1) The total value of all professional service contracts
22 the board has designated or approved during the preceding year.
23 (2) The aggregate and individual total contract price for
24 all professional service contracts designated or approved for
25 every firm during the preceding year.
26 (3) The aggregate and individual total contract price for
27 all professional service contracts entered into by each agency
28 during the preceding year.
29 (g) The board shall maintain comprehensive records of all
30 business conducted by the board. All meetings of the board shall
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1 be recorded. The board shall maintain separate files for each
2 firm on the comprehensive register, and such file shall contain
3 all records of any business transaction between the board and
4 the firm. All records required to be kept by this section shall
5 be open for public inspection, and copies of any record may be
6 obtained by any member of the public upon payment of the cost of
7 reproduction.
8 (h) The board shall adopt such rules and regulations as it
9 deems necessary and proper for implementation of this act.
10 Section 7. Procedures for Designation or Approval of a
11 Firm.--(a) In order for a firm to be considered by the board for
12 a specific professional service contract, the firm must be
13 included on the comprehensive register of firms eligible to
14 perform public services.
15 (b) Once a project has been announced in the monthly
16 bulletin, any eligible firm may apply to the board to be
17 considered for the project. Such application must be submitted
18 to the board at least 60 but not later than 30 days before the
19 date on which the professional services are to commence.
20 (c) The board may evaluate applications in public or private
21 meetings, and shall consider among other factors, the ability of
22 the firm's professional personnel, the past performance of the
23 firm, the willingness to meet project times and budget
24 requirements, recent, current and projected workloads, and
25 financial ability of the firm.
26 (d) The board shall select no less than three firms in order
27 of its preference, deemed to be highly qualified to perform the
28 required services, after considering such factors as the ability
29 of professional personnel, past performance, willingness to meet
30 project time and budget requirements, location, recent and
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1 current and projected workloads of the firms, financial
2 stability, and the volume of work previously awarded to the firm
3 by the agency, with the objective of effecting an equitable
4 distribution of contracts among qualified firms in a manner that
5 does not violate the principle of selection of qualified firms.
6 (e) The public shall not be excluded from any proceedings
7 under this act.
8 (f) The agency shall attempt to negotiate a contract with
9 the most qualified firm by reference to the order of preference
10 developed by the board for professional services at compensation
11 which the agency determines is fair and reasonable. The agency,
12 in making its determination, shall take into account the
13 estimated value of the services to be performed, the scope,
14 complexity and professional nature thereof.
15 (g) Should the agency be unable to negotiate a satisfactory
16 contract with the firm considered to be the most qualified, at a
17 price the agency determines to be fair and reasonable,
18 negotiations with that firm shall be formally terminated. The
19 agency shall then undertake negotiations with the second most
20 qualified firm, and if there is again failure to negotiate a
21 satisfactory contract, negotiations shall be terminated with
22 this firm and the agency shall undertake negotiations with the
23 third most qualified firm.
24 (h) Should the agency be unable to negotiate a satisfactory
25 contract with any of the selected firms in the order of
26 preference developed by the board, the board shall select three
27 additional firms in order of their competence and qualification
28 and submit these to the agency for further negotiations in
29 accordance with this section until an agreement is reached.
30 (i) All final designations or approvals shall be made at a
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1 public meeting of the board. In making such designation or
2 approval, the board shall make public its reason for designating
3 or approving a particular firm.
4 Section 8. Cost of Operation.--The board shall assess costs
5 of operation against each agency it serves on a cost per project
6 basis. Any deficiency in revenue from the prior sources shall be
7 appropriated to the board from the General Fund.
8 Section 9. Employees.--The board may employ such personnel
9 as it deems necessary for the efficient operation of the board.
10 All such personnel, with the exception of legal counsel, shall
11 be employed through the State civil service system. The board
12 may employ legal counsel, which counsel shall be selected by the
13 board with the approval of the Attorney General.
14 Section 10. Exemptions.--(a) The provisions of this act
15 governing the procedures for designating or approving a firm
16 shall not apply to:
17 (1) Contracts for which the total construction cost as
18 proposed by the agency is not in excess of $200,000: Provided,
19 That the contract is not for the purpose of conducting studies
20 which in the opinion of the board, are preliminary or
21 feasibility studies, in which case the act applies: And provided
22 further, That if the total construction cost of a project is
23 increased to in excess of $200,000 after a professional services
24 contract has been entered into, whether by a change order or
25 other such procedure which is intended to adjust a contract
26 price due to changing conditions or due to other factors, such
27 information together with the professional services contract
28 shall be submitted to the board for review and final approval.
29 (2) Those contracts for professional services for public
30 works projects necessitated by public emergency upon
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1 certification by the board chairman that a public emergency
2 exists.
3 (b) When the provisions of this act do not apply because of
4 paragraph (1) or (2), contracts for professional services shall
5 be negotiated directly between the firm and the agency, and
6 shall be awarded at the sole discretion of the official in
7 charge of the agency. Such exercise of discretion is subject to
8 review by the board for either misuse or abuse.
9 Section 11. Prohibitions.--(a) No firm shall employ, retain,
10 or otherwise engage any individual, partnership, association,
11 corporation, or other entity to solicit or secure any
12 professional service contract for any public works project for
13 which State funds are directly or indirectly expended except
14 that a bona fide employee of a firm who is employed solely by
15 said firm may so solicit or secure such contract.
16 (b) No firm shall pay, or offer or agree to pay, any
17 individual, partnership, association, corporation, or other
18 entity any fee, compensation, percentage, gift or any other
19 thing of value contingent upon or resulting from the designation
20 or approval of a firm by the board.
21 (c) No firm, or any officer, employee, or shareholder in any
22 firm shall hold any substantial interest in any manufacturer or
23 supplier of any goods used in any public works project for which
24 said firm holds a professional service contract, nor shall any
25 firm hold any interest whatever in any other contractor or
26 subcontractor who is engaged in the public works project for
27 which said firm holds a professional service contract except
28 that the prohibitions provided herein shall not extend to the
29 holding of mutual funds.
30 (d) No agency official, whether or not such agency official
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1 is to be paid, has been offered or has been paid any fee,
2 compensation, percentage, gift or any other thing of value from
3 any firm, individual, partnership, association, corporation or
4 other entity which is contingent upon or results from the award
5 of any professional service contract, shall offer to solicit or
6 secure or solicit or secure any professional service contract
7 for any public works project for which State funds are, directly
8 or indirectly, expended.
9 (e) Each professional services contract entered into between
10 any agency and any firm shall contain the following clause:
11 "(Name of firm) warrants that the firm has not violated any
12 provisions of subsection (a), (b) or (c) of section 11 of the
13 'Public Works Professional Services Act.'"
14 Section 12. Penalties.--(a) Any firm which violates any of
15 the provisions of subsections (a), (b) and (c) of section 11
16 shall be subject to all of the following penalties:
17 (1) A violation shall constitute a misdemeanor of the third
18 degree.
19 (2) The contracting agency may terminate the contract
20 without further liability to the Commonwealth or the agency and
21 in addition the firm shall return to the agency any and all
22 compensation paid, including any amount paid to any
23 subcontractor by the firm for which amount the firm shall be
24 entitled to no recovery against the subcontractor.
25 (3) The firm shall be banned for a period of 5 years from
26 the date of conviction in a court of competent jurisdiction from
27 entering a contract for professional services and from engaging
28 in any other business whatever involving public works projects
29 for any public agency. The board shall inform the Federal
30 Government and all other states of the ban imposed on the firm.
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1 (b) Any agency official who shall violate any provision of
2 subsection (d) of section 11 shall be guilty of a misdemeanor of
3 the third degree.
4 Section 13. Appeals.--The decisions of the board shall be
5 appealable to the Commonwealth Court within 30 days of the
6 decision and the appeal shall be only for an abuse of discretion
7 by the board.
8 Section 14. Restrictions on Size of Agency Staff.--Agencies
9 covered by this act shall not maintain publicly employed
10 architectural and engineering staffs beyond adequate levels
11 necessary to insure continuing effective administration and
12 control of public works projects which are under the direction
13 of such agencies. This provision shall not preclude planning or
14 design work performed by the staff where such work is necessary
15 in the judgment of the agency in order to provide administration
16 and program control. It is the sense of this provision that
17 agencies will serve the greatest public interest economically
18 and professionally by relying on free enterprise to the maximum
19 extent in obtaining professional services.
20 Section 15. Federal Provisions; Applicability.--If any
21 provision of this act is inconsistent with any Federal law,
22 rule, or regulation which provision would disqualify any agency
23 from being eligible for Federal funds for a specific project,
24 such provision is hereby suspended in so far as necessary to
25 comply with Federal requirements for the specific project.
26 Section 16. Validity of Existing Contracts.--Nothing herein
27 shall affect the validity of any contract in existence at the
28 effective date of this act.
29 Section 17. Appropriation.--The sum of $500,000 or as much
30 as may be necessary is hereby specifically appropriated to the
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1 Public Works Professional Services Board to implement the
2 provisions of this act.
3 Section 18. Repealer.--All acts and parts of acts
4 inconsistent with this act are repealed to the extent of the
5 inconsistency.
6 Section 19. Effective Date.--This act shall take effect in
7 90 days.
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