HB 205: "An Act relating to state and public entity procurement, including the State Procurement Code, procurement preferences, and contract awards; relating to the meaning of 'Alaska bidder'; and providing for an effective date."
00 HOUSE BILL NO. 205 01 "An Act relating to state and public entity procurement, including the State 02 Procurement Code, procurement preferences, and contract awards; relating to the 03 meaning of 'Alaska bidder'; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 24.55.275 is amended to read: 06 Sec. 24.55.275. Contract procedures. The ombudsman shall adopt by 07 regulation procedures consistent with AS 36.30 to be followed by the office of the 08 ombudsman in contracting for services. However, the procedure for requests for 09 proposals does not apply to contracts for investigations under AS 24.55.100, and the 10 office of the ombudsman shall comply with the five percent preference for bidders 11 under AS 36.30.321(a) [AS 36.30.170(b)]. 12 * Sec. 2. AS 36.15.050(a) is amended to read: 13 (a) When agricultural products are purchased by the state or by a school 14 district that receives state money, a seven percent preference shall be applied to the
01 price of the products harvested in the state [ONLY AGRICULTURAL 02 PRODUCTS HARVESTED IN THE STATE SHALL BE PURCHASED 03 WHENEVER PRICED NO MORE THAN SEVEN PERCENT ABOVE PRODUCTS 04 HARVESTED OUTSIDE THE STATE, AVAILABLE, AND OF LIKE QUALITY 05 COMPARED WITH AGRICULTURAL PRODUCTS HARVESTED OUTSIDE 06 THE STATE]. 07 * Sec. 3. AS 36.15.050(b) is amended to read: 08 (b) When fisheries products are purchased by the state or by a school district 09 that receives state money, a seven percent preference shall be applied to the price 10 of the products harvested or processed within the jurisdiction of the state [ONLY 11 FISHERIES PRODUCTS HARVESTED OR PROCESSED WITHIN THE 12 JURISDICTION OF THE STATE SHALL BE PURCHASED WHENEVER PRICED 13 NO MORE THAN SEVEN PERCENT ABOVE PRODUCTS HARVESTED OR 14 PROCESSED OUTSIDE THE JURISDICTION OF THE STATE, AVAILABLE, 15 AND OF LIKE QUALITY COMPARED WITH FISHERIES PRODUCTS 16 HARVESTED OR PROCESSED OUTSIDE THE JURISDICTION OF THE 17 STATE]. 18 * Sec. 4. AS 36.15.050 is amended by adding a new subsection to read: 19 (h) A bidder receiving a preference under this section may not receive a 20 preference under AS 36.30.322. 21 * Sec. 5. AS 36.30.015(e) is amended to read: 22 (e) The board of directors of the Alaska Railroad Corporation and the board of 23 directors of the Alaska Aerospace Corporation shall adopt procedures to govern the 24 procurement of supplies, services, professional services, and construction. The 25 procedures must be substantially equivalent to the procedures prescribed in this 26 chapter and in regulations adopted under this chapter. Notwithstanding the other 27 provisions of this subsection, the Alaska Railroad Corporation and the Alaska 28 Aerospace Corporation shall comply with the five percent preference for bidders 29 under AS 36.30.321(a) [AS 36.30.170(b)], and, when the Department of 30 Transportation and Public Facilities authorizes the Alaska Railroad Corporation to 31 perform construction work instead of the Department of Transportation and Public
01 Facilities, the Alaska Railroad Corporation shall use competitive sealed bidding or 02 competitive sealed proposals under AS 36.30.100 - 36.30.270 to procure the supplies, 03 services, professional services, and construction services necessary for the work and, 04 to ensure the state obtains the lowest cost for the project, may submit a bid or proposal 05 for the work. 06 * Sec. 6. AS 36.30.015(f) is amended to read: 07 (f) The board of directors of the Alaska Housing Finance Corporation, 08 notwithstanding AS 18.56.088, and the board of directors of the Knik Arm Bridge and 09 Toll Authority under AS 19.75.111, shall adopt regulations under AS 44.62 10 (Administrative Procedure Act) and the board of trustees of the Alaska Retirement 11 Management Board shall adopt regulations under AS 37.10.240 to govern the 12 procurement of supplies, services, professional services, and construction for the 13 respective public corporation and board. The regulations must reflect competitive 14 bidding principles and provide vendors reasonable and equitable opportunities to 15 participate in the procurement process and must include procurement methods to meet 16 emergency and extraordinary circumstances. Notwithstanding the other provisions of 17 this subsection, the Alaska Housing Finance Corporation, the Knik Arm Bridge and 18 Toll Authority, and the Alaska Retirement Management Board shall comply with the 19 five percent preference for bidders under AS 36.30.321(a) [AS 36.30.170(b)]. 20 * Sec. 7. AS 36.30.015(h) is amended to read: 21 (h) The board of directors of the Alaska Seafood Marketing Institute shall 22 adopt procedures to govern the procurement of supplies, services, and professional 23 services. The procedures must be similar to the procedures prescribed in this chapter 24 and in regulations adopted under this chapter, except that the Alaska Seafood 25 Marketing Institute shall comply with the five percent preference for bidders under 26 AS 36.30.321(a) [AS 36.30.170(b)]. 27 * Sec. 8. AS 36.30.020 is amended to read: 28 Sec. 36.30.020. Legislature. The legislative council shall adopt and publish 29 procedures to govern the procurement of supplies, services, professional services, and 30 construction by the legislative branch. The procedures must be based on the 31 competitive principles consistent with this chapter and must be adapted to the special
01 needs of the legislative branch as determined by the legislative council. The 02 procedures must contain provisions for prohibiting procurement from a person that has 03 headquarters in a country listed in Tier 3 of the most recent Trafficking in Persons 04 Report published by the United States Secretary of State under 22 U.S.C. 05 7107(b)(1)(C). The procedures may contain provisions for restricting procurement 06 from a person that conducts business in but does not have headquarters in a country 07 listed in Tier 3 of the most recent Trafficking in Persons Report published by the 08 United States Secretary of State under 22 U.S.C. 7107(b)(1)(C). The procedures must 09 be consistent with the provisions of AS 36.30.080(c) - (e) and 36.30.085. 10 Notwithstanding the other provisions of this section, the legislative agencies subject to 11 the legislative council's regulations shall comply with the five percent preference for 12 bidders under AS 36.30.321(a) [AS 36.30.170(b)]. 13 * Sec. 9. AS 36.30.030 is amended to read: 14 Sec. 36.30.030. Court system. The administrative director of courts shall 15 adopt and publish procedures to govern the procurement of supplies, services, 16 professional services, and construction by the judicial branch. The procedures must be 17 based on the competitive principles consistent with this chapter and must be adapted to 18 the special needs of the judicial branch as determined by the administrative director of 19 courts. The procedures must contain provisions for prohibiting procurement from a 20 person that has headquarters in a country listed in Tier 3 of the most recent Trafficking 21 in Persons Report published by the United States Secretary of State under 22 U.S.C. 22 7107(b)(1)(C). The procedures may contain provisions for restricting procurement 23 from a person that conducts business in but does not have headquarters in a country 24 listed in Tier 3 of the most recent Trafficking in Persons Report published by the 25 United States Secretary of State under 22 U.S.C. 7107(b)(1)(C). The procedures must 26 be consistent with the provisions of AS 36.30.080(c) - (e) and 36.30.085. 27 Notwithstanding the other provisions of this section, the judicial branch shall comply 28 with the five percent preference for bidders under AS 36.30.321(a) 29 [AS 36.30.170(b)]. 30 * Sec. 10. AS 36.30.170 is repealed and reenacted to read: 31 Sec. 36.30.170. Contract award after bids. After applying any preferences
01 that apply under AS 36.15.050 and AS 36.30.321 - 36.30.338, a procurement officer 02 shall award a contract based on the solicited bids with reasonable promptness by 03 written notice to the lowest responsible and responsive bidder whose bid conforms in 04 all material respects to the requirements and criteria set out in the invitation to bid. 05 * Sec. 11. AS 36.30 is amended by adding a new section to article 5 to read: 06 Sec. 36.30.321. Alaska bidder and related preferences. (a) If the bidder or 07 offeror is an Alaska bidder, a five percent preference shall be applied to the price in 08 the bid or proposal. 09 (b) Except as otherwise provided in (d), (e), or (g) of this section, if a bidder 10 or offeror qualifies as an Alaska bidder and is offering services through an 11 employment program, a 15 percent preference shall be applied to the price in the bid 12 or proposal. 13 (c) If a bidder or offeror qualifies as an Alaska bidder and is an Alaska 14 domestic insurer, and if the procurement is for an insurance-related contract, a five 15 percent preference shall be applied to the price in the bid or proposal. 16 (d) A 10 percent preference shall be applied to a price in a bid or proposal if 17 the bidder or offeror qualifies as an Alaska bidder and is a 18 (1) sole proprietorship owned by a person with a disability; 19 (2) partnership under AS 32.06 or AS 32.11 if each of the partners is a 20 person with a disability; 21 (3) limited liability company organized under AS 10.50 if each of the 22 members is a person with a disability; 23 (4) corporation that is wholly owned by individuals, and each of the 24 individuals is a person with a disability; or 25 (5) joint venture that is composed of ventures that qualify under (1) - 26 (4) of this subsection. 27 (e) The division of vocational rehabilitation in the Department of Labor and 28 Workforce Development shall add to its current list of qualified employment programs 29 a list of individuals who qualify as persons with a disability under (d) of this section. 30 To qualify for a preference under (d) of this section, a person must be on the list at the 31 time the bid or proposal is opened.
01 (f) If a bidder or offeror qualifies as an Alaska bidder and is a qualifying 02 entity, a five percent preference shall be applied to the price in the bid or proposal. 03 The preference may not exceed $5,000. In this subsection, 04 (1) "Alaska veteran" means an individual who is both a resident of the 05 state and a veteran; 06 (2) "qualifying entity" means a 07 (A) sole proprietorship owned by an Alaska veteran; 08 (B) partnership under AS 32.06 or AS 32.11 if a majority of the 09 partners are Alaska veterans; 10 (C) limited liability company organized under AS 10.50 if a 11 majority of the members are Alaska veterans; or 12 (D) corporation that is wholly owned by individuals, and a 13 majority of the individuals are Alaska veterans; 14 (3) "veteran" means an individual who 15 (A) served in the 16 (i) armed forces of the United States, including a 17 reserve unit of the United States armed forces; or 18 (ii) Alaska Territorial Guard, the Alaska Army National 19 Guard, the Alaska Air National Guard, or the Alaska Naval Militia; and 20 (B) was separated from service under a condition that was not 21 dishonorable. 22 (g) A bidder or offeror may not receive a preference under both (b) and (d) of 23 this section for the same contract. 24 (h) Except as provided by (j) of this section, this section applies to all 25 insurance contracts involving state money. In this subsection, "state money" has the 26 meaning given in AS 36.30.990, but also includes state grants and reimbursements to 27 municipalities, school districts, and other entities. 28 (i) To qualify for a preference under (b), (d), or (f) of this section, a bidder or 29 offeror must add value by actually performing, controlling, managing, and supervising 30 the services provided, or the bidder or offeror must have sold supplies of the general 31 nature solicited to other state agencies, other governments, or the general public.
01 (j) This section does not apply to solicitations or contracts for lease space 02 under AS 36.30.080, to procurements under AS 36.30.305 - 36.30.310 or, except as 03 provided otherwise by regulation under AS 36.30.320, to small procurements under 04 AS 36.30.320. 05 (k) In this section, "person with a disability" means an individual who 06 (1) has been determined to be permanently disabled by the 07 (A) United States Social Security Administration under 42 08 U.S.C. 423 or 1381 - 1383f (Social Security Act); 09 (B) the teachers' retirement system under AS 14.25, the judicial 10 retirement system under AS 22.25, the public employees' retirement system 11 under AS 39.35, or the elected public officers' retirement system under former 12 AS 39.37; 13 (C) Federal Civil Service Retirement System under 5 U.S.C. 14 2107, 3323, and 8331 - 8351; 15 (D) federal employees' retirement system under 5 U.S.C. 8401 16 - 8480; or 17 (E) division of vocational rehabilitation in the Department of 18 Labor and Workforce Development using disability standards under 42 U.S.C. 19 1381 - 1383f (Social Security Act) for eligibility for certain state disability 20 program purposes; 21 (2) is receiving permanent total disability under AS 23.30 (Alaska 22 Workers' Compensation Act); 23 (3) has been discharged from military service under honorable 24 conditions and is certified by the United States Department of Veterans Affairs as 25 having incurred a 50 percent or greater disability during military service; or 26 (4) has served in the Alaska Territorial Guard and incurred a 50 27 percent or greater disability while serving in the Alaska Territorial Guard. 28 * Sec. 12. AS 36.30.322(a) is amended to read: 29 (a) Only timber, lumber, and manufactured lumber products originating in this 30 state from Alaska forests may be procured by an agency or used in construction 31 projects of an agency unless the manufacturers and suppliers who have notified the
01 commissioner of commerce, community, and economic development of their 02 willingness to manufacture or supply Alaska forest products 03 (1) have been given reasonable notice of the forest product needs of 04 the procurement or project; and 05 (2) are not the low bidder after all applicable preferences have 06 been applied to the price of the qualifying forest product under AS 36.30.336 07 [ARE UNABLE TO SUPPLY THE PRODUCTS AT A COST THAT IS WITHIN 08 SEVEN PERCENT OF THE PRICE OFFERED BY A MANUFACTURER OR 09 SUPPLIER OF NON-ALASKA FOREST PRODUCTS]. 10 * Sec. 13. AS 36.30.336 is repealed and reenacted to read: 11 Sec. 36.30.336. Application of preferences. (a) Except as provided in 12 AS 36.15.050(h) and AS 36.30.321(g), the preferences provided in AS 36.15.050 and 13 AS 36.30.321 - 36.30.338 are cumulative. A bidder who would otherwise qualify for 14 preferences under AS 36.30.321 may not be given a preference over another bidder 15 who qualifies for the same preferences. 16 (b) Notwithstanding the other provisions of this chapter, AS 36.30.321 - 17 36.30.338 apply to all procurements subject to this chapter, except as provided in 18 AS 36.15.050(h) and AS 36.30.322(b). 19 * Sec. 14. AS 36.30.990 is amended by adding a new paragraph to read: 20 (25) "Alaska bidder" means a person who 21 (A) holds a current Alaska business license; 22 (B) submits a bid or proposal for goods, services, or 23 construction under the name appearing on the person's current Alaska business 24 license; 25 (C) has maintained a place of business in the state staffed by 26 the bidder or offeror or an employee of the bidder or offeror for a period of six 27 months immediately preceding the date of the bid or proposal; 28 (D) is incorporated or qualified to do business under the laws 29 of the state, is a sole proprietorship and the proprietor is a resident of the state, 30 is a limited liability company organized under AS 10.50 and all members are 31 residents of the state, or is a partnership under former AS 32.05, AS 32.06, or
01 AS 32.11 and all partners are residents of the state; and 02 (E) if a joint venture, is composed entirely of ventures that 03 qualify under (A) - (D) of this subsection. 04 * Sec. 15. AS 36.90.049(a) is amended to read: 05 (a) A marine vessel owned by the state shall be maintained and repaired at a 06 shipyard facility located in the state unless the commissioner of the department that 07 operates the marine vessel determines in writing that there is no shipyard facility 08 located in the state that is equipped or qualified to perform the particular maintenance 09 or repair required, or, after taking into consideration the five percent Alaska bidder 10 preference for bidders under AS 36.30.321(a) [SET OUT IN AS 36.30.170] and the 11 interport differential, that the proposed cost of the maintenance or repair work is 12 unreasonable. A detailed list of the costs and factors considered in calculating the 13 interport differential must be provided to each person who expresses an interest in 14 submitting a bid to perform maintenance or repair work on a marine vessel owned by 15 the state. 16 * Sec. 16. AS 38.35.017(a) is amended to read: 17 (a) Consistent with and in furtherance of the statements of general state policy 18 guiding resource development set out in art. VIII, sec. 1, Constitution of the State of 19 Alaska, that the resources of the state be developed "by making them available for 20 maximum use consistent with the public interest" and in art. VIII, sec. 2, Constitution 21 of the State of Alaska, directing that provision shall be made by the legislature for "the 22 utilization, development, and conservation of all natural resources belonging to the 23 State . . . for the maximum benefit of its people," and consistent with and in 24 furtherance of the general legislative declaration of policy for this chapter set out in 25 AS 38.35.010, it is the policy of this state that the overall strategy for development, 26 use, and control of a pipeline or pipelines to develop the state's substantial North Slope 27 natural gas resources be directed 28 (1) to enhance the standard of living of state residents by 29 (A) ensuring that, in conjunction with out-of-state market 30 driven commercial demand for North Slope natural gas, state residents and 31 businesses will have access, directly or indirectly, to that portion of the gas that
01 will meet the reasonably foreseeable in-state demands for it, including 02 substitution of the North Slope natural gas for depleting gas reserves in 03 Southcentral Alaska in order to maintain a vital domestic and industrial energy 04 source, and ensuring that the pipeline or pipelines for the transportation of 05 North Slope natural gas will be designed and located to be responsive to these 06 requirements; 07 (B) making the maximum contribution to the development of 08 job opportunities in this state by 09 (i) providing direct short-term construction and long- 10 term operation- and maintenance-related employment on the pipeline or 11 pipelines, to the end that the resources be developed with qualified 12 contractors and firms in this state for work to be performed, including 13 the fabrication and installation of required facilities, and that state 14 residents be employed, consistent with law; for purposes of this sub- 15 subparagraph, a person is considered a resident if the person is 16 physically present in the state with the intent to remain in the state 17 indefinitely and has a home in the state, and a contractor or firm is 18 considered as qualified if the contractor or firm qualifies as an Alaska 19 bidder; in this sub-subparagraph, "Alaska bidder" has the meaning 20 given in AS 36.30.990 [UNDER AS 36.30.170(b)]; and 21 (ii) providing necessary support services; and 22 (C) adding significant long-term property value to the tax base 23 of the state and local governments, thereby providing the means to support 24 public education, public health, transportation, and other essential state and 25 local government projects and services; 26 (2) to ensure that the design, location, and construction of a pipeline or 27 pipelines for delivery of North Slope natural gas to North American markets through 28 connection to the North American natural gas pipeline network enhance opportunities 29 for implementing gas deliveries using alternative technologies and the construction of 30 other pipelines to deliver North Slope natural gas to foreign and domestic markets; and 31 (3) to ensure construction of the pipeline or pipelines consistent with
01 careful protection of the state's natural environment, with minimum environmental 02 degradation, to the greatest extent possible, and with protection of fish, wildlife, and 03 biotic resources for the use of persons who depend upon them by using available 04 transportation infrastructure to initiate and complete project construction and 05 maintenance and by avoiding duplication of facilities. 06 * Sec. 17. AS 36.30.175, 36.30.250(b), and 36.30.335 are repealed. 07 * Sec. 18. The uncodified law of the State of Alaska is amended by adding a new section to 08 read: 09 TRANSITION: PENDING SOLICITATIONS FOR PROCUREMENTS AND 10 CONTRACTS. (a) This Act does not apply to 11 (1) solicitations for procurement and the resulting contracts, if the solicitations 12 are pending on the effective date of this Act and if the invitation to bid or other solicitation 13 was issued before the effective date of this Act; and 14 (2) procurement contracts entered into before the effective date of this Act, 15 including extensions or amendments of those contracts. 16 (b) Notwithstanding (a) of this section, this Act applies to procurements or contracts 17 described in (a)(1) of this section if all parties to the procurement or contract agree in writing 18 that the applicable provisions of this Act apply to the solicitation or contract. 19 * Sec. 19. This Act takes effect immediately under AS 01.10.070(c).