Regular Session 2021-2022 House Bill 2159 P.N. 3046

PRIOR PRINTER'S NOS. 2506, 2667

PRINTER'S NO. 3046

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2159

Session of

2021

INTRODUCED BY ORTITAY AND SCHLEGEL CULVER, DECEMBER 13, 2021

AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,

APRIL 26, 2022

AN ACT

Amending Titles 35 (Health and Safety) and 62 (Procurement) of

the Pennsylvania Consolidated Statutes, in Commonwealth

services, further providing for laws suspended during

emergency assignments; in general provisions, further

providing for public access to procurement records; and, in

source selection and contract formation, further providing

for emergency procurement.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 7308(a) of Title 35 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 7308. Laws suspended during emergency assignments.

(a) Commonwealth agencies.--In the case of a declaration of

a state of emergency by the Governor, Commonwealth agencies may

implement their emergency assignments without regard to

procedures required by other laws (except mandatory

constitutional requirements and the requirements under 62

Pa.C.S. (relating to procurement)) pertaining to the performance

of public work, entering into contracts, incurring of

obligations, employment of temporary workers, rental of

equipment, purchase of supplies and materials and expenditures

of public funds.

* * *

Section 2. Sections 106.1(b)(6), (7) and (8) and 516 of

Title 62 are amended to read:

§ 106.1. Public access to procurement records.

* * *

(b) Public posting and availability of procurement

information.--The purchasing agency shall post the following

procurement documents on the department's or, in the case of an

independent agency, its own publicly accessible Internet website

or otherwise make available in the manner indicated below:

* * *

(6) The written determinations required by section [516]

516(f) (relating to emergency procurement) shall be posted in

advance, if feasible, but no later than seven calendar days

after authorization by the department or independent

purchasing agency.

(7) A contract resulting from a procurement under this

part or, in the case of section 516(e), an invoice THAT IS

NOT REQUIRED TO BE FILED WITH THE TREASURY DEPARTMENT UNDER

SECTION 1701(A) OF THE RIGHT-TO-KNOW LAW , shall be posted as

soon as practicable upon its full execution by the

Commonwealth.

(8) Requests under section 515 or 516 to extend a

contract for which no further options, renewals or extensions

are available in the contract shall be posted for seven

calendar days for public comment prior to approval of the

request by the department or independent purchasing agency.

Upon approval of a request by the department or an

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independent purchasing agency, the signed and written

determination required under section 515(b) or [516] 516(f)

shall be posted.

* * *

§ 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 quotes 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

procurement file. No written contract may be required. The

supplier of the supply, service or construction may be paid

based on the emergency approval and approved invoice.]

(a) Authorization.--The head of a purchasing agency may make

an emergency procurement for supply, service or construction

under this section.

(b) Requests by Commonwealth agencies. --For an emergency

procurement in which the department acts as the agent for a

Commonwealth agency, the Secretary of General Services may only

make an emergency procurement upon the written request of the

head of the Commonwealth agency . OR A SINGLE DEPUTY OF THE HEAD

OF THE COMMONWEALTH AGENCY DESIGNATED IN WRITING TO ACT ON

BEHALF OF THE HEAD OF THE COMMONWEALTH AGENCY.

make an emergency procurement when all of the following occur:

(1) There exists a threat to public health, welfare or

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safety.

(2) There exist circumstances outside the control of the

purchasing agency.

(3) The circumstances under paragraph (2)

(1) THE FOLLOWING:

(I) THERE EXISTS A THREAT TO THE SAFETY, HEALTH OR

WELFARE OF THIS COMMONWEALTH; OR

(II) THERE EXIST CIRCUMSTANCES OUTSIDE THE CONTROL

OF THE PURCHASING AGENCY THAT THREATEN SUBSTANTIAL HARM

TO THE OPERATIONS OF THE COMMONWEALTH.

(2) THE THREAT OR CIRCUMSTANCES UNDER PARAGRAPH (1)

create an urgency of need which does not permit the delay

involved in using an alternate and otherwise applicable

competitive method.

(d) Quotes.--The head of a purchasing agency shall solicit

no fewer than two quotes for an emergency procurement, unless

the head of the purchasing agency determines, in writing, that

the circumstances of the emergency specified under subsection

impractical.

(e) Invoices.--The head of a purchasing agency may authorize

the payment of the consideration for the supply, service or

construction for an emergency procurement based on an approved

invoice if the head of the purchasing agency determines, in

writing, that the circumstances of the emergency under

subsection (c) make the use of a contract impractical.

(f) Written determinations.--In making an emergency

procurement, the head of a purchasing agency shall make the

following written determinations and shall include the written

determinations in the procurement file:

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(1) The basis for the emergency under subsection (c) . A

declaration of disaster emergency under 35 Pa.C.S. § 7301(c)

(relating to general authority of Governor) may not serve as

the written determination of the basis for the emergency.

(2) IF THE EMERGENCY PROCUREMENT RELATES TO A DISASTER

EMERGENCY SUBJECT TO A DECLARATION OF DISASTER EMERGENCY

UNDER 35 PA.C.S. § 7301(C) (RELATING TO GENERAL AUTHORITY OF

GOVERNOR) IN EFFECT AT THE TIME THE HEAD OF THE PURCHASING

AGENCY MAKES THE WRITTEN DETERMINATIONS UNDER THIS

SUBSECTION, WHICH DECLARATION OF DISASTER EMERGENCY IS

APPLICABLE AND HOW THE DISASTER EMERGENCY REQUIRES THE USE OF

THE EMERGENCY PROCUREMENT.

(2) (3) How the emergency identified under paragraph (1)

creates an urgency of need which does not permit the delay

involved in using an alternate and otherwise applicable

competitive method.

(3) (4) The basis for the selection of the contractor.

(4) (5) If applicable, a written determination under

subsection (d) .

(5) (6) If applicable, a written determination under

subsection (e) .

(G) DESIGNEE.--THE HEAD OF A PURCHASING AGENCY MAY DESIGNATE

IN WRITING A SINGLE DEPUTY TO ACT ON BEHALF OF THE HEAD OF THE

PURCHASING AGENCY UNDER THIS SECTION.

Section 3. This act shall take effect in 60 days.

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