SENATE AMENDED
PRIOR PRINTER'S NOS. 2269, 2301 PRINTER'S NO. 3745
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1833
Session of
2023
INTRODUCED BY NEILSON, STRUZZI, GIRAL, MADDEN, HILL-EVANS,
McNEILL, SANCHEZ, SMITH, PARKER, ZIMMERMAN, KHAN, KENYATTA
AND T. DAVIS, NOVEMBER 8, 2023
SENATOR LANGERHOLC, TRANSPORTATION, IN SENATE, AS AMENDED,
OCTOBER 9, 2024
AN ACT
1 Amending Title 74 (Transportation) of the Pennsylvania
2 Consolidated Statutes, in transportation infrastructure,
3 providing for design build best value.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 74 of the Pennsylvania Consolidated
7 Statutes is amended by adding a chapter to read:
8 CHAPTER 98
9 DESIGN BUILD BEST VALUE
10 Sec.
11 9801. Scope of chapter.
12 9802. Definitions.
13 9803. Design build best value process.
14 9804. Applicability of other laws.
15 9805. Limitation on powers and duties and existing contracts.
16 § 9801. Scope of chapter.
17 This chapter relates to design build best value as an
 1 alternative procurement process for highway and bridge design
2 and construction PROJECTS FOR THE DEPARTMENT OF TRANSPORTATION <--
3 AND THE PENNSYLVANIA TURNPIKE COMMISSION.
4 § 9802. Definitions.
5 The following words and phrases when used in this chapter
6 shall have the meanings given to them in this section unless the
7 context clearly indicates otherwise:
8 "Agency." The Department of Transportation of the
9 Commonwealth or the Pennsylvania Turnpike Commission.
10 "Alternative technical concept" or "ATC." A proposed
11 variance from the contractual requirements or request for
12 proposal that is equal to or better than the requirements in the
13 request for proposal document.
14 "COMMISSION." THE PENNSYLVANIA TURNPIKE COMMISSION. <--
15 "COMMISSIONERS." THE COMMISSIONERS OF THE PENNSYLVANIA
16 TURNPIKE COMMISSION.
17 "DEPARTMENT." THE DEPARTMENT OF TRANSPORTATION OF THE
18 COMMONWEALTH.
19 "Design build best value." The source selection method other
20 than competitive sealed proposals in 62 Pa.C.S. § 513 (relating
21 to competitive sealed proposals), as described in section 9803
22 (relating to design build best value process), which may be used
23 by the agency acting as the purchasing agency, as an alternative
24 to competitive sealed bidding PROPOSALS. <--
25 "Offeror." A person or entity that submits a proposal in <--
26 response to a request for proposals or request for
27 qualifications.
28 "PROJECT." THE DESIGN OR CONSTRUCTION, OR BOTH, OF A HIGHWAY <--
29 OR BRIDGE, OR BOTH, BY AN AGENCY.
30 "Request for proposals." All documents, including those
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 1 either attached or incorporated by reference, used for
2 soliciting proposals.
3 "Request for qualifications." All documents, including those
4 either attached or incorporated by reference, used for
5 soliciting statements of qualifications.
6 "Responsible offeror." An entity that has submitted a
7 responsive statement of qualifications to a request for
8 qualifications or responsive proposal to a request for proposals
9 and that possesses the capability to fully perform the contract
10 requirements in all respects and the integrity and reliability
11 to assure good faith performance AS DETERMINED BY AN AGENCY. <--
12 "Responsive proposal." A proposal which conforms in all
13 material respects to the requirements and criteria in the
14 request for proposals.
15 "SECRETARY." THE SECRETARY OF TRANSPORTATION OF THE <--
16 COMMONWEALTH.
17 "Statement of qualifications." An offeror's response to an
18 agency, after the agency issues a request for qualifications.
19 § 9803. Design build best value process.
20 (a) General rule.--Notwithstanding any other provision of
21 law, an agency may use the design build best value source
22 selection method for construction projects in accordance with <--
23 this section.
24 (b) Conditions for use.--Design build best value may be used
25 when a deputy secretary for the Department of Transportation or <--
26 a contracting officer for the Pennsylvania Turnpike Commission
27 determines in writing a construction THE SECRETARY, FOR THE <--
28 DEPARTMENT, OR A MAJORITY OF THE COMMISSIONERS, FOR THE
29 COMMISSION, DETERMINE THAT A project would benefit from the
30 design build best value method of procurement due to ONE OR MORE <--
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 1 OF the following factors:
2 (1) project complexity;
3 (2) potential for innovation;
4 (3) unique equipment or specialized systems;
5 (4) project risks;
6 (5) project schedule; AND <--
7 (6) other project considerations; and <--
8 (7) (6) estimated project value. <--
9 (c) Projects procured per calendar year.-- <--
10 (1) An agency shall THE COMMISSION MAY advertise no more <--
11 than five one-step design build best value procurements per
12 calendar year AND NO MORE THAN 20 TWO-STEP DESIGN BUILD BEST <--
13 VALUE PROCUREMENTS PER CALENDAR YEAR.
14 (2) An agency shall THE DEPARTMENT MAY advertise no more <--
15 than 20 FIVE two-step design build best value procurements <--
16 per calendar year. <--
17 (3) THE DEPARTMENT MAY ONLY ADVERTISE A ONE-STEP DESIGN <--
18 BUILD BEST VALUE PROCUREMENT TO DELIVER A PROJECT IN
19 ACCORDANCE WITH 62 PA.C.S. § 516 (RELATING TO EMERGENCY
20 PROCUREMENT).
21 (d) Public notice of determination for use of design build
22 best value.--The notice of determination under subsection (b) <--
23 shall be posted by the agency for a reasonable time prior to the
24 date the procurement documents are posted on a website regularly
25 accessed by industry partners in consulting and construction.
26 (1) EXCEPT AS PROVIDED UNDER PARAGRAPH (2), THE NOTICE <--
27 OF DETERMINATION UNDER SUBSECTION (B) SHALL BE POSTED BY THE
28 AGENCY FOR A PERIOD OF 30 DAYS PRIOR TO THE DATE THE
29 PROCUREMENT DOCUMENTS ARE POSTED ON THE AGENCY'S PUBLICLY
30 ACCESSIBLE INTERNET WEBSITE AND THE AGENCY'S WEBSITE
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 1 MAINTAINED TO ADVERTISE PROJECTS.
2 (2) THE SECRETARY, FOR THE DEPARTMENT, OR A MAJORITY OF
3 THE COMMISSIONERS, FOR THE COMMISSION, AS APPLICABLE, MAY
4 ELECT A PERIOD OF LESS THAN 30 DAYS FOR A PROJECT THAT IS AN
5 EMERGENCY PROCUREMENT.
6 (e) Request for proposals.--
7 (1) After the determination under subsection (b) has
8 been issued, the agency shall solicit proposals through a
9 request for proposals.
10 (2) The IN ACCORDANCE WITH SUBSECTION (C), THE agency <--
11 may conduct a one-step or two-step request for proposals,
12 subject to the following:
13 (i) If the agency conducts a one-step request for
14 proposals, the agency shall seek a technical and price
15 proposal in accordance with subsection (i).
16 (ii) If the agency conducts a two-step request for
17 proposals, the agency shall seek a statement of
18 qualifications as step one in accordance with subsection
19 (j) and a technical and price proposal as step two in
20 accordance with subsection (k).
21 (3) The agency shall include a schedule in a request for
22 proposal under this chapter that identifies the anticipated
23 dates for the procurement, including an anticipated final
24 selection of a best value offeror.
25 (f) Public notice.--Public notice of the one-step or two-
26 step request for proposals shall be given in the same manner as
27 provided in 62 Pa.C.S. § 512(c) (relating to competitive sealed
28 bidding).
29 (g) Submission and receipt of proposals and statements of
30 qualifications.--Offerors shall submit their statements of
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 1 qualifications and proposals to ensure that their statements of
2 qualifications and proposals are received prior to the times and
3 dates established for the submission of statements for
4 qualifications and proposals. Statements of qualifications and
5 proposals shall be submitted in the format required by the
6 request for qualifications and the request for proposals.
7 Statements of qualifications and proposals shall be opened so as
8 to avoid disclosure of their contents to competing offerors.
9 (h) Preproposal conference.--The IN ACCORDANCE WITH <--
10 SUBSECTION (C), THE agency shall schedule a preproposal
11 conference after issuing the request for qualifications in a
12 two-step procurement or the request for proposals in a one-step
13 procurement, which conference may be held virtually. The agency
14 shall indicate the date, time and location for a preproposal
15 conference within the request for qualifications in a two-step
16 procurement or the request for proposals in a one-step
17 procurement.
18 (i) Request for technical and price proposals in a one-step
19 procurement.--
20 (1) If the Department of Transportation seeks to use the <--
21 one-step procurement, the deputy secretary must first approve
22 use of the one-step procurement in writing prior to issuance
23 of the request for proposals. If the Pennsylvania Turnpike
24 Commission seeks to use the one-step procurement, the
25 contracting officer must first approve use of the one-step
26 procurement in writing prior to issuance of the request for
27 proposals.
28 (2) The (1) IN ACCORDANCE WITH SUBSECTION (C), THE <--
29 agency shall issue a formal request for proposals publicly,
30 which shall include separate proposals for a technical
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 1 solution, to be known as the technical proposal, and the
2 proposed price, to be known as the price proposal.
3 (3) (2) After receipt of all technical proposals, the <--
4 evaluation committee UNDER SUBSECTION (S) shall evaluate each <--
5 responsive proposal based on the criteria stated in the
6 request for proposals. The technical and price proposals
7 shall be evaluated and scored or rated separately. Except for
8 a responsiveness determination made by a nonvoting member of
9 the evaluation committee, a price proposal may not be opened
10 until all technical proposals are scored or rated.
11 (4) (3) In scoring or rating a technical proposal and <--
12 price proposal, the evaluation committee shall consider the
13 relative importance of the evaluation factors fixed prior to
14 the opening of the technical and price proposals, which shall
15 be stated in the request for proposals. The Department of <--
16 Transportation shall invite its comptroller to participate in
17 the evaluation as a nonvoting member of any evaluation
18 committee.
19 (5) (4) Failure of an offeror to meet the requirements <--
20 of a request for proposal shall result in the proposal being
21 deemed nonresponsive.
22 (j) Statement of qualifications and short-list process in a
23 two-step procurement.--
24 (1) A statement of qualifications received by an agency
25 from a responsible offeror shall be scored or rated by an
26 evaluation committee based on the criteria stated in the
27 request for qualifications.
28 (2) After the statements of qualifications are scored or
29 rated under paragraph (1), the evaluation committee shall
30 develop a short list of the number of offerors established in
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 1 the request for qualifications, which shall MAY identify the <--
2 responsible offerors eligible to receive a stipend under
3 subsection (n)(2).
4 (3) The agency shall publicly post a list and rank of <--
5 all responsible offerors. ON THE AGENCY'S PUBLICLY ACCESSIBLE <--
6 INTERNET WEBSITE AND THE AGENCY'S WEBSITE MAINTAINED TO
7 ADVERTISE PROJECTS.
8 (4) A responsible offeror that submitted a statement of
9 qualifications under the request for qualifications process,
10 but was not shortlisted by the agency, is ineligible to
11 receive a stipend after the request for proposals process but
12 may still submit proposals in response to the request for
13 proposals IN step two of the procurement under subsection <--
14 (k).
15 (k) Request for technical and price proposals in a two-step
16 procurement.--
17 (1) Following the creation of a short list and to the
18 extent that an agency is satisfied with the number of
19 responsible offerors, the agency shall issue a formal request
20 for proposals to all responsible offerors who submitted a
21 responsive statement of qualifications, which shall include
22 separate proposals for a technical solution, to be known as
23 the technical proposal, and the proposed price, to be known
24 as the price proposal.
25 (2) After receipt of all technical proposals, the
26 evaluation committee shall evaluate each submission based on
27 the criteria stated in the request for proposals. The
28 technical and price proposals shall be evaluated and scored
29 or rated separately. Except for a responsiveness
30 determination made by a nonvoting member of the evaluation
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 1 committee, a price proposal may not be opened until all
2 technical proposals are scored or rated.
3 (3) In scoring or rating a technical proposal and price
4 proposal, the evaluation committee shall consider the
5 relative importance of the evaluation factors fixed prior to
6 the opening of the technical and price proposals, which shall
7 be stated in the request for proposals. The Department of <--
8 Transportation shall invite its comptroller to participate in
9 the evaluation as a nonvoting member of any evaluation
10 committee.
11 (4) If the statement of qualifications rating or score
12 will be included in the final rating or score for the design
13 build best value two-step procurement, the request for
14 proposal shall indicate that fact.
15 (l) Alternative technical concepts.--
16 (1) An alternative technical concept, proposed by THE <--
17 AGENCY OR an offeror, if any, shall be submitted by the
18 offeror to the agency on or before the due date for ATC
19 submission established by the request for proposal.
20 (2) The agency shall determine at its sole discretion
21 whether an ATC is acceptable or approved.
22 (3) The agency may communicate individually with an
23 offeror regarding its proposed or submitted ATC.
24 (4) Approval of an ATC will constitute a change in the
25 specific requirements of the contractual requirements or
26 request for proposal associated with the approved ATC for
27 that specific offeror. An offeror shall ensure that its
28 proposal complies with the request for proposal requirements
29 for the specific offeror, as modified by approval of the ATC.
30 (5) Approval of an ATC in no way implies that the ATC or
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 1 the proposal will receive a favorable review from the
2 evaluation committee.
3 (m) Records of requests for alternative technical concepts
4 and use of intellectual property.--
5 (1) An EXCEPT AS PROVIDED UNDER PARAGRAPH (2), AN ATC <--
6 shall be confidential unless or until:
7 (i) the submittal does not qualify as an ATC; <--
8 (ii) (I) the ATC is deemed to take advantage of an <--
9 error or omission OR REVEALS AN AREA OR DISCREPANCY WHERE <--
10 A CLARIFICATION MAY BE WARRANTED in the request for
11 proposal or contract documents, which may be subsequently
12 amended by the purchasing agency in its sole discretion;
13 (iii) (II) cancellation of the procurement without <--
14 selection of an offeror AND UPON AN EXECUTED AGREEMENT <--
15 FOR PAYMENT TO AN OFFEROR IN ACCORDANCE WITH SUBSECTION
16 (N)(2) AND (3);
17 (iv) (III) the effective date of the contract as a <--
18 result of the procurement OR UPON AN EXECUTED AGREEMENT <--
19 FOR PAYMENT TO AN UNSUCCESSFUL OFFEROR IN ACCORDANCE WITH
20 SUBSECTION (N)(2) AND (3); or
21 (v) (IV) such other date as may be prescribed under <--
22 applicable law, at which time all confidentiality rights,
23 if any, shall be of no further