Commonwealth Procurement Code

The Commonwealth Procurement Code establishes methods of procurement for state agencies in Pennsylvania that purchase or hire goods or services. The law contains a "Qualifications Based Selection" procedure for design professionals. - (editor's note)

Act 57 of 1998

Chapter 901. Definitions.

"Design professional services." Those professional services within the scope of the practice of architecture, geology, engineering, landscape architecture or land surveying, including studies, investigations, surveying, mapping, tests, evaluations, consultations, comprehensive planning, program management, conceptual design, plans and specifications, value engineering, maintenance manuals and other related services associated with research, planning, development, design, construction, alteration or repair of real property. The term includes services provided under the supervision of a professional engineer to develop engineering software which will aid design professionals in performing their work. The term does not include those services which are not exclusively within the scope of architecture, geology, engineering or landscape architecture, but which are related to capital improvements such as, but not limited to, environmental hygienics, construction management as described in section 322 relating to specific construction powers, duties and procedures), exhibit design, fine arts or lesser arts and crafts, even though an architect, geologist, engineer or landscape architect may provide such services.

Chapter 905. Procurement of design professional services.

(a) Applicability. – Design professional services shall be procured as provided in this section except as authorized by section 514 (relating to small procurements), 515 (relating to sole source procurement) and 516 (relating to emergency procurement).

(b) Policy. – It is the policy of this Commonwealth to publicly announce all requirements for design professional services on the basis of demonstrated competence and qualification for the types of services required. There shall be a committee to review the qualifications, experience and work of design professionals seeking contracts with purchasing agencies.

(c) Selection committees for Department of Transportation, Department of Environmental Protection, Department of Conservation and Natural Resources and State-affiliated entities. – Where they are authorized by law to act as purchasing agency for design professional services, the Department of Transportation, the Department of Environmental Protection, the Department of Conservation and Natural Resources and State-affiliated entities shall each establish as many selection committees as the department deems appropriate and a procedure for the selection of committee members.

(d) Selection committee for all other Commonwealth agencies. – Except as provided for in subsection (c), all purchasing agencies shall use the selection committee appointed by the Governor which shall be composed of five members, none of whom shall be employees of the Commonwealth or hold any elective office or office in any political party. The members shall be architects, engineers or other persons knowledgeable in construction. The members shall serve for terms of two years and shall not be removed except for cause…

(e) Procedure for selection committees. – The committees shall use the procedure set forth in this subsection:

(1) The Committee shall give public notice of projects requiring design services and publicly recommend to the purchasing agency three qualified design professionals for each project.

(2) If desired, the committee may conduct discussions with three or more professionals regarding anticipated design concepts and proposed methods of approach to the assignment. The committee shall select, based upon criteria established by the head of the purchasing agency, no less than three design professionals deemed to be the most highly qualified to provide the services required. In exercising its responsibility, the committee shall consider the following factors:

(i) An equitable distribution of contracts to design professionals.

(ii) Particular capability to perform the design or construction services for the contract being considered.

(iii) Geographic proximity of the design professional to the proposed facility.

(iv) The design professional selected has the necessary available personnel to perform the services required by the project.

(v) Any other relevant circumstances peculiar to the proposed contract.

(f) Design professionals. – Except as provided for in subsection (g), the head of the purchasing agency shall select design professionals as follows:

(1) Where the amount of the base construction allocation is less than $20,000,000 the head of the purchasing agency shall choose one of the three firms approved by the selection committee. The fee to be paid to the appointed design professional may be established by the section committee or may be negotiated at the discretion of the head of the purchasing agency. The $20,000,000 threshold shall be adjusted by the department to reflect the annual percentage change in the Composite Construction Cost Index of the United States Department of Commerce occurring in the one-year period ending December 31 each year.

(2) Where the amount of the base construction allocation is more than $20,000,000, as annually adjusted, the head of the purchasing agency shall choose one of the three firms approved by the selection committee to begin contract negotiations. The fee to be paid to the design professional and the terms of the contract between the design professional and the department shall be negotiated by the head of the purchasing agency. In negotiating the contract and fee, the head of the purchasing agency shall take into account the estimated value, scope, complexity and professional nature of the services to be rendered. In the event the head of the purchasing agency is unable to negotiate a satisfactory contract or fee with the appointed design professional, negotiations with that design professional shall be terminated and the head of the purchasing agency shall commence negotiations with one of the other firms chosen by the selection committee. In the event the head of the purchasing agency is unable to negotiate a satisfactory contract or fee with the second firm, the head of the purchasing agency shall terminate negotiations with the second design professional and commence negotiations with the third firm. In the event the head of the purchasing agency be unable to negotiate a satisfactory contract with any of the selected firms, the committee shall select additional qualified firms and the head of the purchasing agency shall continue negotiations in accordance with this section until an agreement is reached

(g) Selection method for Department of Transportation, Department of Environmental Protection, Department of Conservation and Natural Resources and State-affiliated entities. – In the event the Department of Transportation, the Department of Environmental Protection, the Department of Conservation and Natural Resources or a State-affiliated entity otherwise authorized by law to use its own selection committee requires the services of a design professional, the head of the purchasing agency or a State-affiliated entity shall choose one of the three firms approved by the selection committee. The head of the purchasing agency or a State-affiliated shall negotiate with the firm determined to be the highest qualified firm for design professional services at a fee with is determined to be fair and reasonable to the Commonwealth. In making this decision, the head of the purchasing agency shall take into account the estimated value, scope, complexity and professional nature of the services to be rendered. Should the head of the purchasing agency be unable to negotiate a satisfactory contract with the firm considered to be the most qualified at a fee he determines to be fair and reasonable to the Commonwealth, negotiations with that firm shall be formally terminated. The head of the purchasing agency shall then undertake negotiations with the firm he determines to be the second highest qualified firm. Failing accord with the second most qualified firm, the head of the purchasing agency shall formally terminate negotiations and then undertake negotiations with the third highest qualified firm. Should the head of the purchasing agency be unable to negotiate a satisfactory contract with any of the selected firms, the committee shall select additional qualified firms and the head of the purchasing agency shall continue negotiations in accordance with this section until an agreement is reached.