74 PA Cons Stat § 9109 (2021)
2021 Pennsylvania Consolidated & Unconsolidated Statutes|Title 74 - TRANSPORTATION|Chapter 91 - Public-Private Transportation Partnerships|Section 9109 - Selection of development entities

§ 9109. Selection of development entities. (a) Conditions for use.--If a transportation project is approved under section 9104 (relating to duties of board), the public entity may enter into a contract for the transportation project by competitive sealed proposals.  (b) Request for proposals.--After receiving the determination required by subsection (a), a public entity shall solicit proposals through a request for proposals.  (c) Public notice.--A public entity shall give public notice of a request for proposals consistent with regulations adopted by the department. The notice shall be given a reasonable time prior to the date set for the close of receipt of the proposals. The method of public notice may include any of the following:  (1) Electronic publication which is accessible to the general public. (2) Advertisement as provided for in 45 Pa.C.S. § 306 (relating to use of trade publications). (3) Issuance of request for proposals to offerors on the mailing list of the public entity. (4) Publication in a newspaper of general circulation. (5) Where prequalification is a requirement of submitting a proposal, notification to all private entities who have been prequalified by the public entity.  (d) Copies of request for proposals.--Copies of a request for proposals shall be made available to any interested person upon request to the public entity. A public entity may establish procedures for the distribution of a request for proposals, including the imposition of a fee to reimburse the public entity for the costs of photocopying and mailing.  (e) Receipt of proposals.--Offerors shall submit their proposals to ensure that their proposals are received prior to the time and date established for receipt of the proposals. Proposals shall be submitted in the format required by the request for proposals. Proposals shall be opened so as to avoid disclosure of their contents to competing offerors.  (f) Evaluation.--A public entity shall evaluate each proposal to determine which proposal has the best value for and is in the best interest of the public entity. In making this determination, a public entity may consider any of the following:  (1) Cost. (2) Price. (3) Financial commitment. (4) Innovative financing. (5) Bonding. (6) Technical, scientific, technological or socioeconomic merit. (7) Financial strength and viability. (8) Design, operation and feasibility of the transportation project. (9) Public reputation, qualifications, industry experience and financial capacity of the private entity.  (10) The ability of the transportation project to improve economic growth, to improve public safety, to reduce congestion, to increase capacity or to rehabilitate, reconstruct or expand an existing transportation facility.  (11) The compatibility of the proposal with existing local and regional land use plans. (12) The commitment of local communities to approve land use plans in preparation for the transportation project.  (13) Other factors deemed appropriate by the public entity. (g) Weighted consideration.--The relative importance of each evaluation factor shall be fixed prior to opening the proposals.  (h) Participation in evaluation.--If the public entity is a Commonwealth agency, the department is required to invite its comptroller to participate in the evaluation as a nonvoting member of any evaluation committee. No individual who has been employed by an offeror within the last two years may participate in the evaluation of proposals.  (i) Discussion with responsible offerors and revision of proposals.--As provided in the request for proposals, discussions and negotiations may be conducted with responsible offerors for the purpose of clarification and of obtaining best and final offers. Responsible offers shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors.  (j) Selection for negotiation.--The responsible offeror whose proposal is determined in writing to be the best value for and in the best interests of the public entity, taking into consideration all evaluation factors, shall be selected for contract negotiation.  (k) Cancellation.--A request for proposals may be canceled at any time prior to the time a public-private transportation partnership agreement is executed by all parties when it is in the best interests of the public entity.  (l) Award.--Upon reaching an agreement with a responsible offeror, a public entity shall enter into a public-private transportation partnership agreement with the responsible offeror. The public-private transportation partnership agreement shall be consistent with the requirements of this chapter. If agreement cannot be reached with the best qualified responsible offeror, then negotiations will be formally terminated with the offeror. If proposals were submitted by one or more other responsible offerors, negotiations may be conducted with the other responsible offeror or responsible offerors in the order of their respective qualification ranking. The contract may be awarded to the responsible offeror then ranked as best qualified.  (m) Resolution of controversies involving the Commonwealth.--If a prospective offeror, offeror or development entity is aggrieved by a selection under this section and the public entity or proprietary public entity in the invitation or contract is a Commonwealth agency, the prospective offeror, offeror or development entity may file a protest or a claim, as appropriate, in accordance with 62 Pa.C.S. Ch. 17 (relating to legal and contractual remedies).  (n) Resolution of controversies not involving the Commonwealth.--If a development entity is aggrieved by a selection under this section and the proprietary public entity in the contract is an entity other than the Commonwealth, a development entity may file a claim with the court of common pleas where the proprietary public entity is located. The process for the filing and resolution of claims, including rights, contents, timing, evaluation, determination and remedies, which are established in 62 Pa.C.S. Ch. 17, shall apply insofar as they are practicable.    Cross References. Section 9109 is referred to in sections 9106, 9119, 9120 of this title.