HB 1608 — 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
 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
18   alternative procurement process for highway and bridge design
 1   and construction projects for the Department of Transportation
 2   and the Pennsylvania Turnpike Commission.
 3   § 9802.   Definitions.
 4      The following words and phrases when used in this chapter
 5   shall have the meanings given to them in this section unless the
 6   context clearly indicates otherwise:
 7      "Agency."    The Department of Transportation of the
 8   Commonwealth or the Pennsylvania Turnpike Commission.
 9      "Alternative technical concept" or "ATC."      A proposed
10   variance from the contractual requirements or request for
11   proposal that is equal to or better than the requirements in the
12   request for proposal document.
13      "Commission."   The Pennsylvania Turnpike Commission.
14      "Commissioners."      The commissioners of the Pennsylvania
15   Turnpike Commission.
16      "Department."   The Department of Transportation of the
17   Commonwealth.
18      "Design build best value."      The source selection method other
19   than competitive sealed proposals in 62 Pa.C.S. § 513 (relating
20   to competitive sealed proposals), as described in section 9803
21   (relating to design build best value process), which may be used
22   by the agency acting as the purchasing agency, as an alternative
23   to competitive sealed bidding and competitive sealed proposals.
24      "Offeror."   An entity that submits a proposal in response to
25   a request for proposals or request for qualifications.
26      "Project."   The design and construction of a highway or
27   bridge, or both, by an agency.
28      "Request for proposals."      All documents, including those
29   either attached or incorporated by reference, used for
30   soliciting proposals.

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 1      "Request for qualifications."         All documents, including those
 2   either attached or incorporated by reference, used for
 3   soliciting statements of qualifications.
 4      "Responsible offeror."     An entity that has submitted a
 5   responsive statement of qualifications to a request for
 6   qualifications or responsive proposal to a request for proposals
 7   and that possesses the capability to fully perform the contract
 8   requirements in all respects and the integrity and reliability
 9   to assure good faith performance as determined by an agency.
10      "Responsive proposal."     A proposal which conforms in all
11   material respects to the requirements and criteria in the
12   request for proposals.
13      "Secretary."     The Secretary of Transportation of the
14   Commonwealth.
15      "Shortlisted offeror."     An offeror eligible to receive a
16   stipend because of the offeror's score, ranking or rating after
17   submittal of the statement of qualifications.
18      "Statement of qualifications."        An offeror's response to an
19   agency, after the agency issues a request for qualifications.
20   § 9803.    Design build best value process.
21      (a)    Value score.--An agency may use the design build best
22   value source selection method for projects in accordance with
23   this section.
24      (b)    Conditions for use.--Design build best value may be used
25   when the secretary, for the department, or the commission,
26   determines that a project would benefit from the design build
27   best value method of procurement due to one or more of the
28   following factors:
29             (1)   project complexity;
30             (2)   potential for innovation;

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 1            (3)   unique equipment or specialized systems;
 2            (4)   project risks;
 3            (5)   project schedule;
 4            (6)   other project considerations; and
 5            (7)   estimated project value.
 6      (c)   Projects procured.--The agency may advertise no more
 7   than 10 one-step design build best value procurements per
 8   calendar year and no more than 10 two-step design build best
 9   value procurements per calendar year.
10      (d)   Public notice of determination for use of design build
11   best value.--
12            (1)   Except as provided under paragraph (2), the notice
13      of determination under subsection (b) shall be posted by the
14      agency for a period of 30 days prior to the date the
15      procurement documents are posted on the agency's publicly
16      accessible Internet website or the Commonwealth's Internet
17      website maintained to advertise projects.
18            (2)   The secretary, for the department, or the
19      commission, as applicable, may elect a period of less than 30
20      days.
21      (e)   Request for proposals.--
22            (1)   After the determination under subsection (b) has
23      been issued, the agency shall solicit proposals through a
24      request for proposals.
25            (2)   In accordance with subsection (c), the agency may
26      conduct a one-step or two-step request for proposals, subject
27      to the following:
28                  (i)   If the agency conducts a one-step request for
29            proposals, the agency shall seek a technical and price
30            proposal in accordance with subsection (i).

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 1                  (ii)   If the agency conducts a two-step request for
 2            proposals, the agency shall seek a statement of
 3            qualifications as step one in accordance with subsection
 4            (j) and a technical and price proposal as step two in
 5            accordance with subsection (k).
 6            (3)   The agency shall include a schedule in a request for
 7      proposal under this chapter that identifies the anticipated
 8      dates for the procurement, including an anticipated final
 9      selection of a best value offeror.
10      (f)   Public notice.--Public notice of the one-step or two-
11   step request for proposals shall be given in the same manner as
12   provided in 62 Pa.C.S. § 512(c) (relating to competitive sealed
13   bidding).
14      (g)   Submission and receipt of statements of qualifications
15   and proposals.--Offerors shall submit their statements of
16   qualifications and proposals to ensure that their statements of
17   qualifications and proposals are received prior to the times and
18   dates established for the submission of statements for
19   qualifications and proposals. Statements of qualifications and
20   proposals shall be submitted in the format required by the
21   request for qualifications and the request for proposals.
22   Statements of qualifications and proposals shall be opened so as
23   to avoid disclosure of their contents to competing offerors.
24      (h)   Preproposal conference.--The agency shall schedule a
25   preproposal conference after issuing the request for
26   qualifications in a two-step procurement or the request for
27   proposals in a one-step procurement, which conference may be
28   held virtually. The agency shall indicate the date, time and
29   location for a preproposal conference within the request for
30   qualifications in a two-step procurement or the request for

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 1   proposals in a one-step procurement.
 2      (i)   Request for technical and price proposals in a one-step
 3   procurement.--
 4            (1)   The agency shall issue a formal request for
 5      proposals publicly, which shall include separate proposals
 6      for a technical solution, to be known as the technical
 7      proposal, and the proposed price, to be known as the price
 8      proposal.
 9            (2)   After receipt of all technical proposals, the
10      evaluation committee under subsection (t) shall evaluate each
11      responsive proposal based on the criteria stated in the
12      request for proposals. The technical and price proposals
13      shall be evaluated and either scored or rated separately, as
14      applicable. Except for a responsiveness determination made by
15      a nonvoting member of the evaluation committee, a price
16      proposal may not be opened until all technical proposals are
17      scored or rated.
18            (3)   In scoring or rating a technical proposal and price
19      proposal, the evaluation committee shall consider the
20      relative importance of the evaluation factors fixed prior to
21      the opening of the technical and price proposals, which shall
22      be stated in the request for proposals.
23            (4)   Failure of an offeror to meet the requirements of a
24      request for proposal shall result in the proposal being
25      deemed nonresponsive.
26      (j)   Statement of qualifications and short-list process in a
27   two-step procurement.--
28            (1)   A statement of qualifications received by an agency
29      from a responsible offeror shall be scored or rated by an
30      evaluation committee based on the criteria stated in the

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 1      request for qualifications.
 2            (2)   After the statements of qualifications are scored or
 3      rated under paragraph (1), the evaluation committee shall
 4      develop a short list of the number of offerors established in
 5      the request for qualifications, which may identify the
 6      responsible offerors eligible to receive a stipend under
 7      subsection (o)(3).
 8            (3)   The agency shall post a list and rank of all
 9      responsible offerors on the agency's or Commonwealth's
10      publicly accessible Internet website or the agency's Internet
11      website maintained to advertise projects.
12            (4)   A responsible offeror that submitted a statement of
13      qualifications under the request for qualifications process,
14      but was not a shortlisted offeror by the agency, is
15      ineligible to receive a stipend after the request for
16      proposals process under subsection (o)(3) but may still
17      submit proposals in response to the request for proposals in
18      step two of the procurement under subsection (k).
19      (k)   Request for technical and price proposals in a two-step
20   procurement.--
21            (1)   Following the creation of a short list and to the
22      extent that an agency is satisfied with the number of
23      responsible offerors, the agency shall issue a formal request
24      for proposals to all responsible offerors who submitted a
25      responsive statement of qualifications, which shall seek
26      separate proposals for a technical solution, to be known as
27      the technical proposal, and the proposed price, to be known
28      as the price proposal.
29            (2)   After receipt of all technical proposals, the
30      evaluation committee shall evaluate each submission based on

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 1    the criteria stated in the request for proposals. The
 2    technical and price proposals shall be evaluated and scored
 3    or rated separately. Except for a responsiveness
 4    determination made by a nonvoting member of the evaluation
 5    committee, a price proposal may not be opened until all
 6    technical proposals are scored or rated.
 7          (3)   In scoring or rating a technical proposal and price
 8    proposal, the evaluation committee shall consider the
 9    relative importance of the evaluation factors fixed prior to
10    the opening of the technical and price proposals, which shall
11    be stated in the request for proposals.
12          (4)   If the statement of qualifications rating or score
13    will be included in the final rating or score for the design
14    build best value two-step procurement, the request for
15    proposal shall indicate that fact.
16    (l)   Alternative technical concepts.--
17          (1)   An alternative technical concept, proposed by an
18    offeror, if any, shall be submitted by the offeror to the
19    agency on or before the due date for ATC submission
20    established by the request for proposal.
21          (2)   The agency shall determine at its sole discretion
22    whether an ATC is acceptable or approved.
23          (3)   The agency may communicate individually with an
24    offeror regarding its proposed or submitted ATC.
25          (4)   Approval of an ATC will constitute a change in the
26    specific requirements of the contractual requirements or
27    request for proposal associated with the approved ATC for
28    that specific offeror. An offeror shall ensure that its
29    proposal complies with the request for proposal requirements
30    for the specific offeror, as modified by approval of the ATC.

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 1            (5)   Approval of an ATC in no way implies that the ATC or
 2      the proposal will receive a favorable review from the
 3      evaluation committee.
 4      (m)   Records of requests for alternative technical concepts
 5   and use of intellectual property.--
 6            (1)   Except as provided under paragraph (2), an ATC shall
 7      be confidential unless or until:
 8                  (i)     the ATC is deemed to take advantage of an error
 9            or omission or reveals an area or discrepancy where a
10            clarification may be warranted in the request for
11            proposal or contract documents, which may be subsequently
12            amended by the agency in its sole discretion;
13                  (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) or (o);
17                  (iii)     the effective date of the contract as a result
18            of the procurement or upon an executed agreement for
19            payment to an unsuccessful offeror in accordance with
20            subsection (n) or (o); or
21                  (iv)     another date as may be prescribed under
22            applicable law, at which time all confidentiality rights,
23            if any, shall be of no further force and effect except as
24            otherwise allowed under the applicable law.
25            (2)   An unsuccessful offeror's ATC is not a public record
26      subject to inspection and duplication under the act of
27      February 14, 2008 (P.L.6, No.3), known as the Right-to-Know
28      Law, unless the agency enters into an agreement with an
29      unsuccessful offeror for payment of the ATC.
30            (3)   Except to the extent not transferable by law, the

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 1      agency may use all or a portion of a submitted proposal and
 2      ATC, including the technologies, techniques, methods,
 3      processes and information contained in the proposal or ATC,
 4      with an agreement for payment of the ATC. Notice of
 5      nontransferability by law shall be given to the agency in
 6      response to the request for proposals or submittal of the
 7      ATC.
 8             (4)   Under no circumstances may the agency be responsible
 9      for or liable to an offeror or third party as a result of
10      disclosing an offeror's ATC materials.
11      (n)    Payment for alternative technical concept.--The agency
12   may reasonably compensate unsuccessful responsible offerors for
13   an ATC who are not receiving a stipend under subsection (o).
14      (o)    Stipends.--
15             (1)   The determination to offer a stipend and its amount
16      under this subsection shall be determined by the agency on a
17      project-by-project basis. The determination to offer a
18      stipend and its terms shall be stated in the request for
19      qualifications or request for proposals.
20             (2)   In a one-step procurement, as stated by the agency
21      in a request for proposal, the agency may compensate
22      unsuccessful responsible offerors for a portion of the costs
23      associated with preparation of a responsive proposal in
24      response to a request for proposals and for payment of an
25      ATC.
26             (3)   In a two-step procurement, the agency may compensate
27      unsuccessful responsible shortlisted offerors for a portion
28      of the costs associated with the preparation of a responsive
29      proposal in response to a request for proposals and for
30      payment of an ATC. If a stipend is provided to unsuccessful

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 1      shortlisted offerors, the agency may only provide payment if
 2      the unsuccessful shortlisted offeror's technical and price
 3      proposals are responsive and the offeror is a responsible
 4      offeror.
 5      (p)   Due dates for technical proposal and price proposal.--
 6            (1)   An agency may determine that a technical proposal is
 7      due on a date prior to the due date for a price proposal. All
 8      due dates shall be clearly stated by the agency in the
 9      request for proposals.
10            (2)   If an agency seeks submission of a technical
11      proposal prior to submission of the price proposal, a
12      nonvoting member from the agency may seek written
13      clarification from an offeror between the technical proposal
14      due date and price proposal due date, which includes asking
15      questions or seeking clarification regarding a technical
16      proposal.
17            (3)   After the technical proposal and price proposal due
18      dates, an agency may seek clarification with responsible
19      offerors. Responsible offerors shall be accorded fair and
20      equal treatment with respect to any opportunity to provide
21      clarification. In conducting a meeting for the purpose of
22      clarification, the agency may not disclose information
23      derived from proposals submitted by competing offerors.
24      (q)   Selection for negotiation.--The responsible offeror
25   whose proposal is determined in writing to be the most
26   advantageous to the agency shall be selected for contract
27   negotiations necessary to finalize a contract or to clarify any
28   remaining issue regarding scope, schedule or any other
29   information provided by the selected best value offeror without
30   impacting material price and evaluation factors.

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 1      (r)    Incorporation of an unsuccessful offeror's ATC.--Upon an
 2   executed agreement for payment to an unsuccessful offeror in
 3   accordance with subsection (n) or (o), the agency may utilize an
 4   unsuccessful offeror's ATC. If the agency chooses to incorporate
 5   the ATC into the contract executed as a result of the subject
 6   procurement, the agency and contractor shall execute a change
 7   order.
 8      (s)    Proposal validity period.--The request for proposal
 9   shall state the validity period for the proposal, unless
10   extended by the mutual consent of the agency and offerors.
11      (t)    Evaluation committee.--
12             (1)   Notwithstanding any other provisions of this
13      chapter, an evaluation committee under this chapter shall
14      consist of at least five employees as determined by the
15      agency. An individual who has been employed by an offeror
16      within the preceding five years may not participate in the
17      evaluation of any proposals submitted by that offeror.
18             (2)   The department shall invite the comptroller of the
19      department to participate in the evaluation as a nonvoting
20      member of any evaluation committee.
21             (3)   Nothing in this subsection shall be construed to
22      prohibit an employee of the department to participate on an
23      evaluation committee for the commission or an employee of the
24      commission to participate on an evaluation committee for the
25      department.
26   § 9804.    Applicability of other laws.
27      (a)    Construction.--Except as provided under subsection (b),
28   laws related to the design, construction, operation or financing
29   of a project in effect on the date the agreement is fully
30   executed shall apply to the agreement between the agency and

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 1   contractor. The provisions shall also include:
 2            (1)    The act of May 1, 1913 (P.L.155, No.104), referred
 3      to as the Separations Act.
 4            (2)    The act of August 15, 1961 (P.L.987, No.442), known
 5      as the Pennsylvania Prevailing Wage Act.
 6      (b)   Application.--Only the following provisions of 62
 7   Pa.C.S. (relating to procurement) shall apply to this chapter:
 8            (1)    Section 102 (relating to application of part).
 9            (2)    Section 107 (relating to reciprocal limitations).
10            (3)    Section 301 (relating to procurement
11      responsibility).
12            (4)    Section 521 (relating to cancellation of invitations
13      for bids or requests for proposals).
14            (5)    Section 531 (relating to debarment or suspension).
15            (6)    Section 541 (relating to approval of accounting
16      system).
17            (7)    Section 542 (relating to multiterm contracts).
18            (8)    Section 551 (relating to right to inspect plant).
19            (9)    Section 552 (relating to right to audit records).
20            (10)    Section 562 (relating to anticompetitive
21      practices).
22            (11)    Section 563 (relating to retention of procurement
23      records).
24            (12)    Section 902 (relating to bid or proposal security).
25            (13)    Section 903 (relating to contract performance
26      security and payment bonds).
27            (14)    Section 904 (relating to copies of bonds).
28            (15)    Chapter 17 (relating to legal and contractual
29      remedies).
30            (16)    Chapter 23 (relating to ethics in public

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 1    contracting).
 2        (17)    Chapter 35 (relating to Iran-free procurement).
 3        (18)    Chapter 36 (relating to prohibited contracts).
 4        (19)    Section 3701 (relating to contract provisions
 5    prohibiting discrimination).
 6        (20)    Section 3921 (relating to retainage).
 7        (21)    Section 3922 (relating to payment of retainage to
 8    subcontractors).
 9        (22)    Section 3931 (relating to performance by contractor
10    or subcontractor).
11        (23)    Section 3932 (relating to government agency's
12    progress payment obligations).
13        (24)    Section 3933 (relating to contractors' and
14    subcontractors' payment obligations).
15        (25)    Section 3934 (relating to withholding of payment
16    for good faith claims).
17        (26)    Section 3935 (relating to penalty and attorney
18    fees).
19        (27)    Section 3936 (relating to contracts involving
20    Federal aid).
21        (28)    Section 3937 (relating to certain provisions
22    unenforceable).
23        (29)    Section 3938 (relating to applicability).
24        (30)    Section 3939 (relating to claims by innocent
25    parties).
26        (31)    Section 3941 (relating to substantial/final payment
27    under contract).
28        (32)    Section 3942 (relating to arbitration).
29        (33)    Section 4506 (relating to liability for increased
30    costs).

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 1             (34)   Section 4507 (relating to noncollusion affidavits).
 2   § 9805.    Limitation on powers and duties and existing contracts.
 3      (a)    Restriction.--The powers and duties of an agency under
 4   this chapter may not be exercised beginning eight years after
 5   the effective date of this section.
 6      (b)    Exception.--Notwithstanding subsection (a), all
 7   contracts procured by use of this chapter, which are fully
 8   executed prior to eight years after the effective date of this
 9   section, shall remain in full force and effect, unless
10   terminated in accordance with the terms of the contract.
11      Section 2.     This act shall take effect immediately.




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