An Act amending Title 74 (Transportation) of the Pennsylvania Consolidated Statutes, in transportation infrastructure, providing for design build best value.

PRINTER'S NO. 1923
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1608
Session of
2025
INTRODUCED BY NEILSON, STRUZZI, SANCHEZ, McNEILL, HILL-EVANS,
ARMANINI, HOHENSTEIN, McANDREW, DELLOSO, BELLMON, ZIMMERMAN,
GREEN, GILLEN AND MALAGARI, JUNE 13, 2025
REFERRED TO COMMITTEE ON TRANSPORTATION, JUNE 16, 2025
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 projects for the Department of Transportation
and the Pennsylvania Turnpike Commission.
§ 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.
"Commission." The Pennsylvania Turnpike Commission.
"Commissioners." The commissioners of the Pennsylvania
Turnpike Commission.
"Department." The Department of Transportation of the
Commonwealth.
"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 and competitive sealed proposals .
"Offeror." An entity that submits a proposal in response to
a request for proposals or request for qualifications.
"Project." The design and construction of a highway or
bridge, or both, by an agency.
"Request for proposals." All documents, including those
either attached or incorporated by reference, used for
soliciting proposals.
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"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
requirements in all respects and the integrity and reliability
to assure good faith performance as determined by an agency.
"Responsive proposal." A proposal which conforms in all
material respects to the requirements and criteria in the
request for proposals.
"Secretary." The Secretary of Transportation of the
Commonwealth.
"Shortlisted offeror." An offeror eligible to receive a
stipend because of the offeror's score, ranking or rating after
submittal of the statement of qualifications.
"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) Value score.--An agency may use the design build best
value source selection method for projects in accordance with
this section.
(b) Conditions for use.--Design build best value may be used
when the secretary, for the department, or the commission,
determines that a project would benefit from the design build
best value method of procurement due to one or more of the
following factors:
(1) project complexity;
(2) potential for innovation;
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(3) unique equipment or specialized systems;
(4) project risks;
(5) project schedule;
(6) other project considerations; and
(7) estimated project value.
(c) Projects procured.-- The agency may advertise no more
than 10 one-step design build best value procurements per
calendar year and no more than 10 two-step design build best
value procurements per calendar year.
(d) Public notice of determination for use of design build
best value.--
(1) Except as provided under paragraph (2), the notice
of determination under subsection (b) shall be posted by the
agency for a period of 30 days prior to the date the
procurement documents are posted on the agency's publicly
accessible Internet website or the Commonwealth's Internet
website maintained to advertise projects.
(2) The secretary, for the department, or the
commission, as applicable, may elect a period of less than 30
days.
(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) In accordance with subsection (c), 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).
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(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 statements of qualifications
and proposals.--Offerors shall submit their statements of
qualifications and proposals to ensure that their statements of
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.--T he 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
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proposals in a one-step procurement.
(i) Request for technical and price proposals in a one-step
procurement.--
(1) 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.
(2) After receipt of all technical proposals, the
evaluation committee under subsection (t) shall evaluate each
responsive proposal based on the criteria stated in the
request for proposals. The technical and price proposals
shall be evaluated and either scored or rated separately, as
applicable. 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
the opening of the technical and price proposals, which shall
be stated in the request for proposals.
(4) 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
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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 may identify the
responsible offerors eligible to receive a stipend under
subsection (o)(3).
(3) The agency shall post a list and rank of all
responsible offerors on the agency's or Commonwealth's
publicly accessible Internet website or the agency's Internet
website maintained to advertise projects.
(4) A responsible offeror that submitted a statement of
qualifications under the request for qualifications process,
but was not a shortlisted offeror by the agency, is
ineligible to receive a stipend after the request for
proposals process under subsection (o)(3) but may still
submit proposals in response to the request for proposals in
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 seek
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
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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
the opening of the technical and price proposals, which shall
be stated in the request for proposals.
(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.
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(5) Approval of an ATC in no way implies that the ATC or
the proposal will receive a favorable review from the
evaluation committee.
(m) Records of requests for alternative technical concepts
and use of intellectual property.--
(1) Except as provided under paragraph (2), an ATC shall
be confidential unless or until:
(i) the ATC is deemed to take advantage of an error
or omission or reveals an area or discrepancy where a
clarification may be warranted in the request for
proposal or contract documents, which may be subsequently
amended by the agency in its sole discretion;
(ii) cancellation of the procurement without
selection of an offeror and upon an executed agreement
for payment to an offeror in accordance with subsection
(n) or (o);
(iii) the effective date of the contract as a result
of the procurement or upon an executed agreement for
payment to an unsuccessful offeror in accordance with
subsection (n) or (o); or
(iv) another 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
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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 third party as a result of
disclosing an offeror's ATC materials.
(n) Payment for alternative technical concept.--The agency
may reasonably compensate unsuccessful responsible offerors for
an ATC who are not receiving a stipend under subsection (o).
(o) Stipends.--
(1) The determination to offer a stipend and its amount
under this subsection 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 responsible shortlisted 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
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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.
(p) 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, a
nonvoting member from the agency may seek written
clarification from an offeror between the technical proposal
due date and price proposal due date, which includes asking
questions or seeking clarification regarding a technical
proposal.
(3) After the technical proposal and price proposal due
dates, an agency may seek clarification with responsible
offerors. Responsible offerors shall be accorded fair and
equal treatment with respect to any opportunity to provide
clarification . In conducting a meeting for the purpose of
clarification , the agency may not disclose information
derived from proposals submitted by competing offerors.
(q) 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.
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(r) Incorporation of an unsuccessful offeror's ATC.-- Upon an
executed agreement for payment to an unsuccessful offeror in
accordance with subsection (n) or (o), the agency may utilize an
unsuccessful offeror's ATC. If the agency chooses to incorporate
the ATC into the contract executed as a result of the subject
procurement, the agency and contractor shall execute a change
order.
(s) Proposal validity period.--The request for proposal
shall state the validity period for the proposal, unless
extended by the mutual consent of the agency and offerors .
(t) Evaluation committee.--
(1) Notwithstanding any other provisions of this
chapter, an evaluation committee under this chapter shall
consist of at least five employees as determined by the
agency. An individual who has been employed by an offeror
within the preceding five years may not participate in the
evaluation of any proposals submitted by that offeror.
(2) The department shall invite the comptroller of the
department to participate in the evaluation as a nonvoting
member of any evaluation committee.
(3) Nothing in this subsection shall be construed to
prohibit an employee of the department to participate on an
evaluation committee for the commission or an employee of the
commission to participate on an evaluation committee for the
department.
§ 9804. Applicability of other laws.
(a) Construction.--Except as provided under subsection (b),
l aws related to the design , 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
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contractor. The provisions shall also 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) Application.--Only the following provisions of 62
Pa.C.S. (relating to procurement) shall apply to this chapter:
(1) Section 102 (relating to application of part).
(2) Section 107 (relating to reciprocal limitations).
(3) Section 301 (relating to procurement
responsibility).
(4) Section 521 (relating to cancellation of invitations
for bids or requests for proposals).
(5) Section 531 (relating to debarment or suspension).
(6) Section 541 (relating to approval of accounting
system).
(7) Section 542 (relating to multiterm contracts).
(8) Section 551 (relating to right to inspect plant).
(9) Section 552 (relating to right to audit records).
(10) Section 562 (relating to anticompetitive
practices).
(11) Section 563 (relating to retention of procurement
records).
(12) Section 902 (relating to bid or proposal security).
(13) Section 903 (relating to contract performance
security and payment bonds).
(14) Section 904 (relating to copies of bonds).
(15) Chapter 17 (relating to legal and contractual
remedies).
(16) Chapter 23 (relating to ethics in public
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contracting).
(17) Chapter 35 (relating to Iran-free procurement).
(18) Chapter 36 (relating to prohibited contracts).
(19) Section 3701 (relating to contract provisions
prohibiting discrimination).
(20) Section 3921 (relating to retainage).
(21) Section 3922 (relating to payment of retainage to
subcontractors).
( 22) Section 3931 (relating to performance by contractor
or subcontractor).
(23) Section 3932 (relating to government agency's
progress payment obligations).
(24) Section 3933 (relating to contractors' and
subcontractors' payment obligations).
(25) Section 3934 (relating to withholding of payment
for good faith claims).
(26) Section 3935 (relating to penalty and attorney
fees).
(27) Section 3936 (relating to contracts involving
Federal aid).
(28) Section 3937 (relating to certain provisions
unenforceable).
(29) Section 3938 (relating to applicability).
(30) Section 3939 (relating to claims by innocent
parties).
(31) Section 3941 (relating to substantial/final payment
under contract).
(32) Section 3942 (relating to arbitration).
(33) Section 4506 (relating to liability for increased
costs).
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(34) Section 4507 (relating to noncollusion affidavits).
§ 9805. Limitation on powers and duties and existing contracts.
(a) Restriction.--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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