HB 250: "An Act relating to protests of state contract awards, to claims on state contracts, to the arbitration of certain state construction contract claims, and to hearings and appeals under the State Procurement Code; making conforming amendments in the State Procurement Code; and providing for an effective date."
00 HOUSE BILL NO. 250 01 "An Act relating to protests of state contract awards, to claims on state contracts, to the 02 arbitration of certain state construction contract claims, and to hearings and appeals 03 under the State Procurement Code; making conforming amendments in the State 04 Procurement Code; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 36.30.620(b) is amended to read: 07 (b) If a claim [CONTROVERSY] asserted [BY A CONTRACTOR] 08 concerning a contract awarded under this chapter cannot be resolved by agreement, the 09 procurement officer shall, after receiving a written request by the contractor for a 10 decision, issue a written decision. The procurement officer shall make the decision 11 not [SHALL BE MADE NO] more than 90 days after receipt [BY THE 12 PROCUREMENT OFFICER] of all necessary information from the contractor. If 13 [FAILURE OF] the contractor fails to furnish necessary information requested by 14 [TO] the procurement officer, the procurement officer shall proceed to decide
01 [CONSTITUTES A WAIVER OF] the claim and may, in the procurement officer's 02 discretion, deny all or part of the claim because of the failure to furnish necessary 03 information. During an appeal under this chapter, the contractor may not rely 04 on or introduce information that the contractor has failed to furnish to the 05 procurement officer in support of the claim. Before issuing the decision, the 06 procurement officer shall review the facts relating to the claim [CONTROVERSY] 07 and obtain necessary assistance from legal, fiscal, and other advisors. 08 * Sec. 2. AS 36.30.620(c) is amended to read: 09 (c) Upon the written request of the procurement officer, the [THE] time 10 for issuing a decision under (b) of this section may be extended for up to 60 11 additional days [GOOD CAUSE] by the commissioner [OF ADMINISTRATION, 12 OR FOR A CONTROVERSY INVOLVING A CONSTRUCTION CONTRACT OR 13 PROCUREMENT FOR THE STATE EQUIPMENT FLEET, THE 14 COMMISSIONER OF TRANSPORTATION AND PUBLIC FACILITIES,] if the 15 claim [CONTROVERSY] concerns an amount in excess of $50,000. Upon the 16 written request of the procurement officer showing that good cause exists for a 17 second extension, the commissioner may extend the time for issuing a decision 18 under (b) of this section up to 90 additional days after the first extension. The 19 contractor shall be provided with an opportunity to oppose or otherwise respond 20 to the request for a second extension. If a second extension is granted, the 21 commissioner [THE PROCUREMENT OFFICER] shall notify the contractor and 22 the procurement officer in writing that the time for the issuance of a decision has 23 been extended and of the date by which a decision shall be issued. In this subsection, 24 "commissioner" means the commissioner of administration or, for a claim 25 involving a construction contract or procurement for the state equipment fleet, 26 the commissioner of transportation and public facilities. 27 * Sec. 3. AS 36.30.620(d) is amended to read: 28 (d) The procurement officer shall furnish a copy of the decision to the 29 contractor by certified mail or other method that provides evidence of receipt. The 30 decision must include [A] 31 (1) a description of the claim [CONTROVERSY];
01 (2) a reference to the pertinent contract provisions; 02 (3) a statement of the agreed upon and disputed facts; 03 (4) findings of fact about the claim; 04 (5) a determination of any amount payable; 05 (6) a statement of reasons supporting the decision; and 06 (7) a [(5)] statement substantially as follows: 07 "This is the final decision of the procurement officer. This decision 08 may be appealed to the commissioner of (administration/transportation 09 and public facilities). If you appeal, you must file a written notice of 10 appeal with the commissioner within 14 days after you receive this 11 decision." 12 * Sec. 4. AS 36.30.620(e) is amended to read: 13 (e) If the procurement officer does not issue a written decision [IS NOT 14 MADE] by the date it is due, the contractor may proceed as if the procurement officer 15 had issued a decision adverse to the contractor. 16 * Sec. 5. AS 36.30 is amended by adding new sections to read: 17 Sec. 36.30.627. Construction contract claim appeals. (a) An appeal from a 18 decision of the procurement officer of a claim involving a construction contract shall 19 be resolved by 20 (1) binding and final arbitration under AS 09.43.010 - 09.43.180 21 (Uniform Arbitration Act) if both the agency and the contractor agree to arbitration of 22 the claim; or 23 (2) a hearing under AS 36.30.630 if the agency and the contractor do 24 not agree to arbitration of the claim. 25 (b) In this section, a claim includes all issues, causes of action, and 26 controversies arising from a construction contract for which a contractor or the 27 contracting agency asserts compensation is due. 28 Sec. 36.30.629. Subpoenas and discovery. In hearings and arbitrations under 29 this chapter, the commissioner of administration and the commissioner of 30 transportation and public facilities may 31 (1) issue subpoenas, including subpoenas duces tecum, to compel the
01 attendance of witnesses and the production of documents; 02 (2) allow the taking of depositions for discovery or to perpetuate 03 testimony; and 04 (3) refer a subpoena or subpoena duces tecum to the superior court for 05 enforcement and the imposition of appropriate sanctions. 06 * Sec. 6. AS 36.30.630 is amended to read: 07 Sec. 36.30.630. Hearing on a contract claim [CONTROVERSY]. (a) 08 Except as provided in (b) of this section, a hearing shall be conducted according to 09 AS 36.30.670 and regulations adopted by the commissioner of administration on a 10 contract claim [CONTROVERSY] appealed to the commissioner of administration or 11 the commissioner of transportation and public facilities or referred to either 12 commissioner under AS 36.30.620(f). 13 (b) Except as provided in AS 36.30.627(a)(1), within [WITHIN] 15 days 14 after receipt of an appeal on a contract claim [CONTROVERSY] the commissioner of 15 administration or the commissioner of transportation and public facilities, as 16 appropriate, may adopt the decision of the procurement officer as the final decision 17 without a hearing. 18 * Sec. 7. AS 36.30 is amended by adding a new section to read: 19 Sec. 36.30.631. Attorney fees, costs, and offers of judgment. (a) An 20 arbitrator in the arbitration of a construction contract claim under AS 36.30.627(a)(1) 21 and a hearing officer for the hearing of a construction contract claim conducted under 22 AS 36.30.627(a)(2) shall award the prevailing party attorney fees and costs incurred in 23 the arbitration or hearing. The award shall be made as provided by Rules 68, 79, and 24 82 of the Alaska Rules of Civil Procedure. 25 (b) Either party to an arbitration of a construction contract claim conducted 26 under AS 36.30.627 or a hearing of a construction contract claim conducted under 27 AS 36.30.630(a) may serve on the adverse party an offer to allow a final decision to be 28 entered in complete satisfaction of the claim. The offer shall be made, accepted, or 29 rejected as provided for an offer of judgment under Rule 68 of the Alaska Rules of 30 Civil Procedure. Acceptance or rejection of the offer has the same consequences as 31 acceptance or rejection of an offer of judgment made in a civil action under Rule 68 of
01 the Alaska Rules of Civil Procedure. 02 * Sec. 8. AS 36.30.632 is amended to read: 03 Sec. 36.30.632. Delegation. The commissioner of administration and the 04 commissioner of transportation and public facilities may delegate responsibilities 05 under AS 36.30.590 - 36.30.630 [AS 36.30.590 AND 36.30.630] to the head of the 06 contracting agency. 07 * Sec. 9. AS 36.30.680 is amended to read: 08 Sec. 36.30.680. Final decision by the commissioner. A decision by the 09 commissioner of administration or the commissioner of transportation and public 10 facilities after a hearing under this chapter is final. A decision shall be sent within 20 11 days after the hearing to all parties by personal service or certified mail, except that a 12 decision by the commissioner of transportation and public facilities involving 13 procurement of construction shall be sent to all parties by personal service or 14 certified mail within 45 [90] days after receipt by the commissioner of 15 transportation and public facilities of the hearing officer's decision [TO ALL 16 PARTIES BY PERSONAL SERVICE OR CERTIFIED MAIL]. 17 * Sec. 10. AS 36.30.687(d) is amended to read: 18 (d) A person who in a matter relating to a procurement or a contract 19 [CONTROVERSY OR] claim under this chapter makes a misrepresentation to the 20 state through a trick, scheme, or device is guilty of a class C felony. 21 * Sec. 11. AS 36.30.695 is amended to read: 22 Sec. 36.30.695. Other rules of procedure. the commissioner may adopt by 23 regulation additional rules of procedure providing for the expeditious arbitration, 24 hearing, and other administrative review of all contract claims [OR 25 CONTROVERSIES], both before the contracting agency and through an appeal heard 26 de novo. 27 * Sec. 12. AS 36.30.695 is amended by adding new subsections to read: 28 (b) Except as provided by (c) of this section, an arbitrator shall issue a final 29 decision, and a hearing officer shall issue a recommended decision, within 30 (1) 30 calendar days for a claim of less than $100,000; 31 (2) 45 calendar days for a claim of $100,000 or more but less than
01 $1,000,000; or 02 (3) 60 calendar days for a claim of $1,000,000 or more. 03 (c) The commissioner of administration or the commissioner of transportation 04 and public facilities may, for good cause shown, grant an arbitrator or a hearing officer 05 additional time to issue a decision. 06 (d) The venue for an arbitration or hearing under this chapter is the judicial 07 district where the office of the contracting agency is located, unless the agency and the 08 contractor agree on another location. 09 (e) If a party fails to appear at a proceeding under this chapter, the arbitrator or 10 hearing officer may proceed in the party's absence. 11 (f) Subject to appropriation, any money awarded by an arbitrator's decision 12 shall be paid within 45 days after the date that the arbitrator's decision is final. Subject 13 to appropriation, any money awarded by a hearing officer's recommended decision 14 that is approved by the commissioner of transportation and public facilities shall be 15 paid within 45 days after the date that the commissioner's decision is delivered to the 16 contractor and the agency, unless the commissioner's decision is appealed under 17 AS 36.30.685. 18 * Sec. 13. AS 36.30.870 is amended by adding a new subsection to read: 19 (c) The commissioner of administration shall adopt regulations establishing 20 the procedures for arbitration under AS 36.30.627(a), including establishing the 21 qualifications for arbitrators and the method for appointing neutral arbitrators to 22 conduct arbitrations 23 * Sec. 14. AS 36.30.990 is amended by adding a new paragraph to read: 24 (24) "hearing" does not include a hearing in an arbitration. 25 * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 APPLICABILITY. This Act applies to a contract if the contract is entered into on or 28 after the effective date of this Act. 29 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 TRANSITION: REGULATIONS. The commissioner of administration may
01 immediately proceed to adopt regulations necessary to implement this Act. The regulations 02 take effect under AS 44.62 (Administrative Procedure Act), but not before the effective date 03 of the other sections of this Act. 04 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 REVISOR'S INSTRUCTIONS. (a) The revisor of statutes shall substitute "claim" for 07 "controversy" in 08 (1) AS 36.30.620(f); 09 (2) AS 36.30.623; 10 (3) AS 36.30.625(a); 11 (4) AS 36.30.625(c); 12 (5) AS 36.30.687(a); and 13 (6) AS 36.30.750(b). 14 (b) The revisor of statutes shall substitute "claims" for "controversies" in 15 (1) AS 36.30.750(a); and 16 (2) AS 36.30.750(b). 17 * Sec. 18. Section 16 of this Act takes effect immediately under AS 01.10.070(c).