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PRINTER'S NO. 133
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
176
Session of
2019
INTRODUCED BY BROWNE, FOLMER, K. WARD, KILLION, PHILLIPS-HILL
AND YUDICHAK, FEBRUARY 1, 2019
REFERRED TO STATE GOVERNMENT, FEBRUARY 1, 2019
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, in source selection and contract formation, further
providing for sole source procurement and for competitive
selection procedures for certain services.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 515 of Title 62 of the Pennsylvania
Consolidated Statutes is amended by adding subsections to read:
§ 515. Sole source procurement.
* * *
(d) Legal services contract.--The following shall apply in
the case of legal services procured under subsection (a)(5),
where 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
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submit a report to the chairperson and minority chairperson
of the State Government Committee of the Senate and the
chairperson and the minority chairperson 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.
(e) 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).
Section 2. Section 518 of Title 62 is amended to read:
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§ 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).
(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 purchasing
agency determines in writing that it is 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
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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. 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 . If compensation cannot be agreed upon with the best
qualified responsible offeror, negotiations will be formally
terminated with the offeror. If proposals were submitted by one
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or more other responsible offerors, negotiations may be
conducted with the other responsible offeror or responsible
offerors in the order of respective qualification ranking. By
February 1 of each year, the head of any purchasing agency that
is party to contract in which the method of compensation is on a
contingent fee basis shall submit a report to the chairperson
and minority chairperson of the State Government Committee of
the Senate and the chairperson and minority chairperson 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 include the
following provisions :
(1) 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.
(2) The purchasing agency shall maintain the exclusive
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power to accept a settlement.
(3) Notwithstanding the provisions of paragraphs (1) and
(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 3. The amendment or addition of 62 Pa.C.S. §§ 515(d)
and (e) and 518 shall apply to contracts solicited or entered
into on or after the effective date of this section.
Section 4. This act shall take effect in 60 days.
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