Bill Text: PA SB102 | 2009-2010 | Regular Session | Introduced

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Bill Title: Providing for review of contracts; further providing for sole source procurement; and providing for procurement of professional services and for disclosure.

Spectrum: Moderate Partisan Bill (Republican 20-3)

Status: (Introduced - Dead) 2009-03-04 - Referred to STATE GOVERNMENT [SB102 Detail]

Download: Pennsylvania-2009-SB102-Introduced.html

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PRINTER'S NO. 570
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 102 Session of2009
INTRODUCED BY ORIE, PILEGGI, RAFFERTY, FOLMER, ROBBINS, VANCE, EARLL, WAUGH, FERLO, BAKER, ALLOWAY, EICHELBERGER, ERICKSON, TOMLINSON, WARD, BROWNE, SMUCKER, YAW, BRUBAKER, VOGEL AND FARNESE, MARCH 4, 2009
REFERRED TO STATE GOVERNMENT, MARCH 4, 2009
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, providing for review of contracts; further
providing for sole source procurement; and providing for
procurement of professional services and 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.--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). 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
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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.--The department shall develop procedures to
select the most qualified bidder for professional service
contracts with a State agency within the executive branch. The
Senate, the House of Representatives and the Administrative
Office of Pennsylvania Courts shall adopt procedures to select
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the most qualified bidder for professional service contracts for
their respective agency. 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
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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.--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. Factors used by an agency in the
scoring process shall include the following:
(1) The background, qualifications and skills of the
firm and its staff.
(2) The firm's degree of expertise concerning the
subject of the proposed contract.
(3) The experience of the firm.
(4) The rate or price to be charged.
(5) The experience of the contractor with government
agencies, including agencies in other jurisdictions.
(6) The firm’s proposed approach to the issues raised in
the advertisement and all specifications and requirements.
(7) 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.
(8) References.
(9) Interviews with firm members.
(10) A review of the applicant’s criminal history
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record.
(11) Geographic location of the firm’s offices.
(h) Notice and summary.--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. 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 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.--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. The 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 was 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:
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(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
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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.--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. An intentional violation
shall result in the contract being void. All other violations
shall make the contract voidable. 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.
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(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.
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