THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

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

REFERRED TO STATE GOVERNMENT, FEBRUARY 14, 2011  

AN ACT

Amending Title 62 (Procurement) of the Pennsylvania Consolidated

Statutes, in procurement organization, providing for review

of contracts; in source selection and contract formation,

further providing for sole source procurement; providing for

procurement of professional services; and, in ethics in

public contracting, providing for disclosure.

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:

§ 313.  Review of contracts.

(a)  Delegation prohibited.--

(1)  Notwithstanding any other provision of law, the

Attorney General may not delegate his responsibility to

review each contract for form and legality under section 204

of the act of October 15, 1980 (P.L.950, No.164), known as

the Commonwealth Attorneys Act, including contracts under

section 515.1 (relating to procurement of professional

services).

(2)  No contract shall be approved or deemed approved

absent review under this section.

(b)  Review.--The Attorney General shall review each contract

for legality under the act of July 19, 1957 (P.L.1017, No.451),

known as the State Adverse Interest Act.

Section 2.  Section 515 of Title 62 is amended to read:

§ 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 the contract is in the best

interest of the Commonwealth and 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 that are

directly related to pending litigation or other matters

before a court.

(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 and shall be available

for public inspection. 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.

Section 3.  Title 62 is amended by adding sections to read:

§ 515.1.  Procurement of professional services.

(a)  Procedures.--

(1)  The department shall develop procedures to select

the most qualified bidder for professional service contracts

with a State agency within the executive branch.

(2)  The Senate, the House of Representatives and the

Administrative Office of Pennsylvania Courts shall adopt

procedures to select the most qualified bidder for

professional service contracts for their respective agency.

(3)  The procedures shall ensure that the availability of

a contract for professional services is advertised to

potential bidders in a timely and efficient manner.

Procedures shall include applications and disclosure forms to

be used to submit a proposal for review to receive the award

of a professional services contract.

(b)  Advertisement.--An advertisement for proposals under

this section shall set forth the following:

(1)  The State agency seeking to enter into the contract.

(2)  The services that are the subject of the contract

and specifications relating to the services.

(3)  Procedures and requirements to be followed.

(4)  The factors that will be used in scoring.

(c)  Qualified evaluation committee.--Prior to the receipt of

an application for a professional services contract, the State

agency shall establish a qualified evaluation committee

comprised of Commonwealth employees to score the proposals

submitted. The committee may include individuals with expertise

from other State agencies within the executive branch.

(d)  Conflict of interest regulations.--The department, the

Senate, the House of Representatives and the Administrative

Office of Pennsylvania Courts shall each promulgate regulations

relating to potential conflicts of interest in the review of

proposals or negotiation of contracts under this section. The

regulations shall include restrictions on the participation by a

former employee of a contractor in the review of a proposal or

negotiation of a contract with that contractor.

(e)  Public information.--Following the award of a contract

under this section, all applications and disclosure forms shall

be public except for proprietary information or other

information protected by law.

(f)  Increase.--A professional services contract shall not be

amended to increase the cost by more than 10% or $10,000,

whichever is greater, unless the increase and a justification

statement is posted on the State agency's Internet website at

least ten days prior to the amendment of the contract.

(g)  Award of contract to most qualified bidder.--

(1)  A contract under this section shall be awarded on

the basis of multiple factors which shall be scored by the

qualified evaluation committee. The State agency shall review

the scoring system and ensure that the scoring system will

not improperly steer a contract to a particular firm.

(2)  Factors used by an agency in the scoring process

shall include the following:

(i)  The background, qualifications and skills of the

firm and its staff.

(ii)  The firm's degree of expertise concerning the

subject of the proposed contract.

(iii)  The experience of the firm.

(iv)  The rate or price to be charged.

(v)  The experience of the contractor with government

agencies, including agencies in other jurisdictions.

(vi)  The firm's proposed approach to the issues

raised in the advertisement and all specifications and

requirements.

(vii)  The firm's ability to meet the requirements of

the project at issue to include experience and

qualifications on projects of similar size and

complexity.

(viii)  References.

(ix)  Interviews with firm members.

(x)  A review of the applicant's criminal history

record.

(xi)  Geographic location of the firm's offices.

(h)  Notice and summary.--

(1)  The relevant factors that resulted in the award of

the contract shall be summarized in a written statement to be

included in the award of the contract.

(2)  Within ten days of the award of the contract, the

application, a summary of the basis for the award and all

required disclosures shall be transmitted to all unsuccessful

applicants and shall be posted on the State agency's Internet

website for at least ten days prior to the execution of the

contract.

(i)  Negotiations.--A State agency may engage in negotiations

with one or more applicants relating to terms and price of a

contract prior to the final award of the contract.

(j)  Registry.--

(1)  A State agency shall maintain a registry of

qualified individuals or firms to provide professional

services for contracts that do not exceed $25,000 in value if

similar professional services are expected to be required on

numerous occasions over a period of time.

(2)  The State agency shall develop and publish the

minimum educational experience and related qualifications

which must be met in order to be considered a qualified

bidder under this subsection.

(k)  Void.--A contract for professional services that is not

applied for, reviewed and executed in accordance with this

section shall be void.

(l)  Definitions.--For purposes of this section, the

following words and phrases shall have the meanings given to

them in this subsection unless the context clearly indicates

otherwise:

"Professional service."  A service involving professional or

expert advice, opinion or examination to include:

(1)  Management consulting services designed to improve

the effectiveness of management, management strategies,

processes or operations.

(2)  All legal services except those directly related to

pending litigation.

(3)  Services provided by financial or investment

managers, experts or advisors.

(4)  Services of experts to provide advice, information

or recommendations relating to a policy or practice being

implemented or being reviewed by an agency for potential

adoption or enactment.

"State agency."  A Commonwealth agency, the General Assembly

and the judiciary. The term shall not include the judiciary if

the courts have adopted a rule to provide for a similar review

of proposed contracts with a judicial agency.

§ 2304.  Disclosure.

(a)  Contractors.--A person and any affiliated entity that

has one or more contracts with one or more Commonwealth

agencies, the General Assembly or the judiciary with an annual

total of $25,000 or more in the aggregate shall disclose all

contributions to any political committee or candidate for

Statewide office or for the General Assembly, or to a political

action committee that makes contributions to a candidate for

Statewide office or for the General Assembly, made within the

last five years by an officer, director, owner of 5% or more or

executive-level employee of the person or affiliated entity.

(b)  Bidders.--The provisions of subsection (a) shall apply

to a person and any affiliated entity that has submitted a bid,

responded to a request for proposal or otherwise solicited a

contract with a Commonwealth agency, the General Assembly or the

judiciary.

(c)  Professional and sole source contracts.--This section

shall include all contracts under this title.

(d)  Forms.--Disclosure shall be made on a form prepared by

the department, the Senate, the House of Representatives or the

Administrative Office of Pennsylvania Courts and shall be

attached to the contract. The form shall be posted with the

contract on the Internet website maintained by the Treasury

Department if the contract is required to be posted under the

act of February 14, 2008 (P.L.6, No.3), known as the Right-to-

Know Law.

(e)  Update of information.--During the term of the contract,

an updated form shall be filed annually to reflect additional

contributions to a political committee or candidate for

Statewide office or for the General Assembly or political

committee that makes contributions to a political candidate for

Statewide office or a member of the General Assembly.

(f)  Penalties.--

(1)  A person who knowingly makes a material misstatement

or omission in a disclosure form under this section shall be

subject to a civil penalty of up to $10,000 per violation and

shall be prohibited from entering into a contract for a

period of up to three years.

(2)  (i)  An intentional violation shall result in the

contract being void.

(ii)  All other violations shall make the contract

voidable.

(3)  If a contractor or person who has submitted a bid

violates this section three or more times within a 36-month

period, all contracts between any Commonwealth agency, the

General Assembly or the judiciary and the contractor shall be

void and the contractor or person who has submitted a bid

shall be debarred for a period of three years from the date

of the last violation.

(g)  Definitions.--For purposes of this section, the

following words and phrases shall have the meanings given to

them in this subsection unless the context clearly indicates

otherwise:

"Affiliated entity."  Any of the following:

(1)  A subsidiary or holding company of a business

entity.

(2)  An organization recognized by the Internal Revenue

Service as a tax-exempt organization under section 501(c) of

the Internal Revenue Code of 1986 (Public Law 99-514, 26

U.S.C. § 501(c)) established by a business entity.

(3)  A person or the person's spouse or minor child with:

(i)  Financial interest of more than 5% of a business

entity or its subsidiary, holding company or organization

under paragraph (2).

(ii)  A distributive share of 5% or more of a

business entity or its subsidiary, holding company or

organization under paragraph (2).

"Executive-level employee."  An employee of a person or its

affiliated entity required to disclose contributions under

subsection (a) who can affect or influence the person's or

affiliated entity's actions, policies or decisions relating to

contracts and procurement.

Section 4.  This act shall take effect in 60 days.