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A02937
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1833
Session of
2023
INTRODUCED BY NEILSON, STRUZZI, GIRAL, MADDEN, HILL-EVANS,
McNEILL, SANCHEZ, SMITH AND PARKER, NOVEMBER 8, 2023
REFERRED TO COMMITTEE ON TRANSPORTATION, NOVEMBER 8, 2023
AN ACT
Amending Title 74 (Transportation) of the Pennsylvania
Consolidated Statutes, in transportation infrastructure,
providing for design build best value.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 74 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 98
DESIGN BUILD BEST VALUE
Sec.
9801. Scope of chapter.
9802. Definitions.
9803. Design build best value process.
9804. Applicability of other laws.
9805. Limitation on powers and duties and existing contracts.
§ 9801. Scope of chapter.
This chapter relates to design build best value as an
alternative procurement process for highway and bridge design
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and construction.
§ 9802. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Agency." The Department of Transportation of the
Commonwealth or the Pennsylvania Turnpike Commission.
"Alternative technical concept" or "ATC." A proposed
variance from the contractual requirements or request for
proposal that is equal to or better than the requirements in the
request for proposal document.
"Design build best value." The source selection method other
than competitive sealed proposals in 62 Pa.C.S. § 513 (relating
to competitive sealed proposals), as described in section 9803
(relating to design build best value process), which may be used
by the agency acting as the purchasing agency, as an alternative
to competitive sealed bidding.
"Offeror." A person or entity that submits a proposal in
response to a request for proposals or request for
qualifications.
"Request for proposals." All documents, including those
either attached or incorporated by reference, used for
soliciting proposals.
"Request for qualifications." All documents, including those
either attached or incorporated by reference, used for
soliciting statements of qualifications.
"Responsible offeror." An entity that has submitted a
responsive statement of qualifications to a request for
qualifications or responsive proposal to a request for proposals
and that possesses the capability to fully perform the contract
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requirements in all respects and the integrity and reliability
to assure good faith performance.
"Responsive proposal." A proposal which conforms in all
material respects to the requirements and criteria in the
request for proposals.
"Statement of qualifications." An offeror's response to an
agency, after the agency issues a request for qualifications.
§ 9803. Design build best value process.
(a) General rule.--Notwithstanding any other provision of
law, an agency may use the design build best value source
selection method for construction projects in accordance with
this section.
(b) Conditions for use.--Design build best value may be used
when a deputy secretary for the Department of Transportation or
a contracting officer for the Pennsylvania Turnpike Commission
determines in writing a construction project would benefit from
the design build best value method of procurement due to the
following factors:
(1) project complexity;
(2) potential for innovation;
(3) unique equipment or specialized systems;
(4) project risks;
(5) project schedule;
(6) other project considerations; and
(7) estimated project value.
(c) Projects procured per calendar year.--
(1) An agency shall advertise no more than five one-step
design build best value procurements per calendar year.
(2) An agency shall advertise no more than 20 two-step
design build best value procurements per calendar year.
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(d) Public notice of determination for use of design build
best value.--The notice of determination under subsection (b)
shall be posted by the agency for a reasonable time prior to the
date the procurement documents are posted on a website regularly
accessed by industry partners in consulting and construction.
(e) Request for proposals.--
(1) After the determination under subsection (b) has
been issued, the agency shall solicit proposals through a
request for proposals.
(2) The agency may conduct a one-step or two-step
request for proposals, subject to the following:
(i) If the agency conducts a one-step request for
proposals, the agency shall seek a technical and price
proposal in accordance with subsection (i).
(ii) If the agency conducts a two-step request for
proposals, the agency shall seek a statement of
qualifications as step one in accordance with subsection
(j) and a technical and price proposal as step two in
accordance with subsection (k).
(3) The agency shall include a schedule in a request for
proposal under this chapter that identifies the anticipated
dates for the procurement, including an anticipated final
selection of a best value offeror.
(f) Public notice.--Public notice of the one-step or two-
step request for proposals shall be given in the same manner as
provided in 62 Pa.C.S. § 512(c) (relating to competitive sealed
bidding).
(g) Submission and receipt of proposals and statements of
qualifications.--Offerors shall submit their statements of
qualifications and proposals to ensure that their statements of
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qualifications and proposals are received prior to the times and
dates established for the submission of statements for
qualifications and proposals. Statements of qualifications and
proposals shall be submitted in the format required by the
request for qualifications and the request for proposals.
Statements of qualifications and proposals shall be opened so as
to avoid disclosure of their contents to competing offerors.
(h) Preproposal conference.--The agency shall schedule a
preproposal conference after issuing the request for
qualifications in a two-step procurement or the request for
proposals in a one-step procurement, which conference may be
held virtually. The agency shall indicate the date, time and
location for a preproposal conference within the request for
qualifications in a two-step procurement or the request for
proposals in a one-step procurement.
(i) Request for technical and price proposals in a one-step
procurement.--
(1) If the Department of Transportation seeks to use the
one-step procurement, the deputy secretary must first approve
use of the one-step procurement in writing prior to issuance
of the request for proposals. If the Pennsylvania Turnpike
Commission seeks to use the one-step procurement, the
contracting officer must first approve use of the one-step
procurement in writing prior to issuance of the request for
proposals.
(2) The agency shall issue a formal request for
proposals publicly, which shall include separate proposals
for a technical solution, to be known as the technical
proposal, and the proposed price, to be known as the price
proposal.
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(3) After receipt of all technical proposals, the
evaluation committee shall evaluate each responsive proposal
based on the criteria stated in the request for proposals.
The technical and price proposals shall be evaluated and
scored or rated separately. Except for a responsiveness
determination made by a nonvoting member of the evaluation
committee, a price proposal may not be opened until all
technical proposals are scored or rated.
(4) In scoring or rating a technical proposal and price
proposal, the evaluation committee shall consider the
relative importance of the evaluation factors fixed prior to
the opening of the technical and price proposals, which shall
be stated in the request for proposals. The Department of
Transportation shall invite its comptroller to participate in
the evaluation as a nonvoting member of any evaluation
committee.
(5) Failure of an offeror to meet the requirements of a
request for proposal shall result in the proposal being
deemed nonresponsive.
(j) Statement of qualifications and short-list process in a
two-step procurement.--
(1) A statement of qualifications received by an agency
from a responsible offeror shall be scored or rated by an
evaluation committee based on the criteria stated in the
request for qualifications.
(2) After the statements of qualifications are scored or
rated under paragraph (1), the evaluation committee shall
develop a short list of the number of offerors established in
the request for qualifications, which shall identify the
responsible offerors eligible to receive a stipend under
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subsection (n)(2).
(3) The agency shall publicly post a list and rank of
all responsible offerors.
(4) A responsible offeror that submitted a statement of
qualifications under the request for qualifications process,
but was not shortlisted by the agency, is ineligible to
receive a stipend after the request for proposals process but
may still submit proposals in response to the request for
proposals step two of the procurement under subsection (k).
(k) Request for technical and price proposals in a two-step
procurement.--
(1) Following the creation of a short list and to the
extent that an agency is satisfied with the number of
responsible offerors, the agency shall issue a formal request
for proposals to all responsible offerors who submitted a
responsive statement of qualifications, which shall include
separate proposals for a technical solution, to be known as
the technical proposal, and the proposed price, to be known
as the price proposal.
(2) After receipt of all technical proposals, the
evaluation committee shall evaluate each submission based on
the criteria stated in the request for proposals. The
technical and price proposals shall be evaluated and scored
or rated separately. Except for a responsiveness
determination made by a nonvoting member of the evaluation
committee, a price proposal may not be opened until all
technical proposals are scored or rated.
(3) In scoring or rating a technical proposal and price
proposal, the evaluation committee shall consider the
relative importance of the evaluation factors fixed prior to
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the opening of the technical and price proposals, which shall
be stated in the request for proposals. The Department of
Transportation shall invite its comptroller to participate in
the evaluation as a nonvoting member of any evaluation
committee.
(4) If the statement of qualifications rating or score
will be included in the final rating or score for the design
build best value two-step procurement, the request for
proposal shall indicate that fact.
(l) Alternative technical concepts.--
(1) An alternative technical concept, proposed by an
offeror, if any, shall be submitted by the offeror to the
agency on or before the due date for ATC submission
established by the request for proposal.
(2) The agency shall determine at its sole discretion
whether an ATC is acceptable or approved.
(3) The agency may communicate individually with an
offeror regarding its proposed or submitted ATC.
(4) Approval of an ATC will constitute a change in the
specific requirements of the contractual requirements or
request for proposal associated with the approved ATC for
that specific offeror. An offeror shall ensure that its
proposal complies with the request for proposal requirements
for the specific offeror, as modified by approval of the ATC.
(5) Approval of an ATC in no way implies that the ATC or
the proposal will receive a favorable review from the
procurement review evaluation committee.
(m) Records of requests for alternative technical concepts
and use of intellectual property.--
(1) An ATC shall be confidential unless or until:
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(i) the submittal does not qualify as an ATC;
(ii) the ATC is deemed to take advantage of an error
or omission in the request for proposal or contract
documents, which may be subsequently amended by the
purchasing agency in its sole discretion;
(iii) cancellation of the procurement without
selection of an offeror;
(iv) the effective date of the contract as a result
of the procurement; or
(v) such other date as may be prescribed under
applicable law, at which time all confidentiality rights,
if any, shall be of no further force and effect except as
otherwise allowed under the applicable law.
(2) An unsuccessful offeror's ATC is not a public record
subject to inspection and duplication under the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-Know
Law, unless the agency enters into an agreement with an
unsuccessful offeror for payment of the ATC.
(3) Except to the extent not transferable by law, the
agency may use all or a portion of a submitted proposal and
ATC, including the technologies, techniques, methods,
processes and information contained in the proposal or ATC,
with an agreement for payment of the ATC. Notice of
nontransferability by law shall be given to the agency in
response to the request for proposals or submittal of the
ATC.
(4) Under no circumstances may the agency be responsible
for or liable to an offeror or other party as a result of
disclosing an offeror's ATC materials.
(n) Stipends.--
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(1) The determination to offer a stipend and its amount
shall be determined by the agency on a project-by-project
basis. The determination to offer a stipend and its terms
shall be stated in the request for qualifications or request
for proposals.
(2) In a one-step procurement, as stated by the agency
in a request for proposal, the agency may compensate
unsuccessful responsible offerors for a portion of the costs
associated with preparation of a responsive proposal in
response to a request for proposals and for payment of an
ATC.
(3) In a two-step procurement, the agency may compensate
unsuccessful shortlisted responsible offerors for a portion
of the costs associated with the preparation of a responsive
proposal in response to a request for proposals and for
payment of an ATC. If a stipend is provided to unsuccessful
shortlisted offerors, the agency may only provide payment if
the unsuccessful shortlisted offeror's technical and price
proposals are responsive and the offeror is a responsible
offeror.
(o) Due dates for technical proposal and price proposal.--
(1) An agency may determine that a technical proposal is
due on a date prior to the due date for a price proposal. All
due dates shall be clearly stated by the agency in the
request for proposals.
(2) If an agency seeks submission of a technical
proposal prior to submission of the price proposal, the
agency and offeror may not communicate with each other
between the technical proposal due date and price proposal
due date, which includes the prohibition to ask questions or
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seek clarifications regarding a technical proposal.
(3) After the technical proposal and price proposal due
dates, an agency may have discussions with responsible
offerors for the purpose of clarification. Responsible
offerors shall be accorded fair and equal treatment with
respect to any opportunity for discussion. In conducting
discussions, the Department of Transportation agency may not
disclose information derived from proposals submitted by
competing offerors.
(p) Selection for negotiation.--The responsible offeror
whose proposal is determined in writing to be the most
advantageous to the agency shall be selected for contract
negotiations necessary to finalize a contract or to clarify any
remaining issue regarding scope, schedule or any other
information provided by the selected best value offeror without
impacting material price and evaluation factors.
(q) Incorporation of an unsuccessful offeror's ATC.--The
agency may incorporate an unsuccessful offeror's ATC into the
agreement as a result of the procurement and, if the agency
chooses to do so, a change order must be executed.
(r) Proposal validity period.--The request for proposal
shall state the validity period for the proposal, unless
extended by the parties' mutual consent.
(s) Evaluation committee.--Notwithstanding any other
provisions of this chapter, an evaluation committee under this
chapter shall consist of at least five individuals as determined
by the agency. An individual who has been employed by an offeror
within the preceding two years may not participate in the
evaluation of any proposals submitted by that offeror.
§ 9804. Applicability of other laws.
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(a) General rule.--Except as provided under subsection (b),
laws related to the development, construction, operation or
financing of a project in effect on the date the agreement is
fully executed shall apply to the agreement between the agency
and contractor. The provisions shall include:
(1) The act of May 1, 1913 (P.L.155, No.104), referred
to as the Separations Act.
(2) The act of August 15, 1961 (P.L.987, No.442), known
as the Pennsylvania Prevailing Wage Act.
(b) Procurement Code.-- The Only the following provisions of
62 Pa.C.S. (relating to procurement) shall apply to this
chapter:
(1) Section 107 (relating to reciprocal
limitations).
(2) Section 521 (relating to cancellation of
invitations for bids or requests for proposals).
(3) Section 531 (relating to debarment or
suspension).
(4) Section 541 (relating to approval of accounting
system).
(5) Section 551 (relating to right to inspect
plant).
(6) Section 552 (relating to right to audit
records).
(7) Section 562 (relating to anticompetitive
practices).
(8) Section 563 (relating to retention of
procurement records).
(9) Section 902 (relating to bid or proposal
security).
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(10) Section 903 (relating to contract performance
security and payment bonds).
(11) Chapter 17 (relating to legal and contractual
remedies).
(12) Chapter 23 (relating to ethics in public
contracting).
(13) Section 3921 (relating to retainage).
(14) Section 3922 (relating to payment of retainage
to subcontractors).
(15) Section 3931 (relating to performance by
contractor or subcontractor).
(16) Section 3932 (relating to government agency's
progress payment obligations).
(17) Section 3933 (relating to contractors' and
subcontractors' payment obligations).
(18) Section 3934 (relating to withholding of
payment for good faith claims).
(19) Section 3935 (relating to penalty and attorney
fees).
(20) Section 3936 (relating to contracts involving
Federal aid).
(21) Section 3937 (relating to certain provisions
unenforceable).
(22) Section 3938 (relating to applicability).
(23) Section 3939 (relating to c laims by innocent
parties ).
(24) Section 3941 (relating to substantial/final
payment under contract).
(25) Section 3942 (relating to arbitration).
§ 9805. Limitation on powers and duties and existing contracts.
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(a) General rule.--The powers and duties of an agency under
this chapter may not be exercised beginning eight years after
the effective date of this section.
(b) Exception.--Notwithstanding subsection (a), all
contracts procured by use of this chapter, which are fully
executed prior to eight years after the effective date of this
section, shall remain in full force and effect, unless
terminated in accordance with the terms of the contract.
Section 2. This act shall take effect immediately.
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