Section 1603-Q.3. Design build best value process.
(a) Value score.--The commission 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 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;
(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 commission 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 commission for a period of 30 days prior to the date the procurement documents are posted on the commission's publicly accessible Internet website.
(2) The commission may elect a period of less than 30 days.
(e) Request for proposals.--
(1) After the determination under subsection (b) has been issued, the commission shall solicit proposals through a request for proposals.
(2) In accordance with subsection (c), the commission may conduct a one-step or two-step request for proposals, subject to the following:
(i) If the commission conducts a one-step request for proposals, the commission shall seek a technical and price proposal in accordance with subsection (i).
(ii) If the commission conducts a two-step request for proposals, the commission 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 commission shall include a schedule in a request for proposals under this article 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 of 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 commission 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 commission 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) The commission 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 proposals 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 the commission 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 may identify the responsible offerors eligible to receive a stipend under subsection (o).
(3) The commission shall post a list and rank of all responsible offerors on the commission's publicly accessible Internet website.
(4) A responsible offeror that submitted a statement of qualifications under the request for qualifications process, but was not a shortlisted offeror by the commission, is ineligible to receive a stipend after the request for proposals process 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 the commission is satisfied with the number of responsible offerors, the commission 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 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 proposals 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 commission on or before the due date for ATC submission established by the request for proposal.
(2) The commission shall determine at its sole discretion whether an ATC is acceptable or approved.
(3) The commission 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 proposals associated with the approved ATC for that specific offeror. An offeror shall ensure that its proposal complies with the request for proposals 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 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 proposals or contract documents, which may be subsequently amended by the commission 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 commission enters into an agreement with an unsuccessful offeror for payment of the ATC.
(3) Except to the extent not transferable by law, the commission 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 commission in response to the request for proposals or submittal of the ATC.
(4) Under no circumstances may the commission 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 commission may reasonably compensate any offeror for an ATC.
(o) Stipends.--
(1) A stipend shall be limited to a two-step procurement. The determination to offer a stipend and its amount under this subsection shall be determined by the commission on a project-by-project basis. The determination to offer a stipend in a two-step procurement and its terms shall be stated in the request for qualifications or request for proposals.
(2) In a two-step procurement, the commission 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 shortlisted offerors, the commission may only provide payment if the unsuccessful shortlisted offeror's technical and price proposals are responsive and the offeror is a responsible offeror.
(3) The commission may not provide or award a stipend to an unsuccessful responsible shortlisted offeror more than one time. This paragraph shall not apply to an ATC.
(p) Due dates for technical proposal and price proposal.--
(1) The commission 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 commission in the request for proposals.
(2) If the commission seeks submission of a technical proposal prior to submission of the price proposal, a nonvoting member from the commission 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, the commission 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 commission 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 commission 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.
(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 commission may utilize an unsuccessful offeror's ATC. If the commission chooses to incorporate the ATC into the contract executed as a result of the subject procurement, the commission and contractor shall execute a change order.
(s) Proposal validity period.--The request for proposals shall state the validity period for the proposal, unless extended by the mutual consent of the commission and offerors.
(t) Evaluation committee.--
(1) Notwithstanding any other provisions of this article, an evaluation committee under this article shall consist of at least five employees as determined by the commission. 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) Nothing in this subsection shall be construed to prohibit an employee of the Department of Transportation from participating on an evaluation committee for the commission.
(1603-Q.3 added July 12, 2026, P.L.265, No.21)