Legislature(2011 - 2012)CAPITOL 106

03/13/2012 08:00 AM House STATE AFFAIRS


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 212 PROVISIONAL DRIVER'S LICENSE STICKER TELECONFERENCED
Moved CSHB 212(STA) Out of Committee
*+ HB 239 PROF. SERVICES IN STATE-FUNDED CONTRACTS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
        HB 239-PROF. SERVICES IN STATE-FUNDED CONTRACTS                                                                     
                                                                                                                                
9:16:45 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN announced  that the final order of  business was HOUSE                                                               
BILL  NO.   239,  "An   Act  relating   to  the   procurement  of                                                               
architectural,  engineering, or  land surveying  contracts funded                                                               
by money from the state."                                                                                                       
                                                                                                                                
9:17:00 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LINDSEY  HOLMES,  Alaska  State  Legislature,  as                                                               
sponsor,  presented HB  239.   She  said currently  the State  of                                                               
Alaska uses  a qualifications based selection  process when using                                                               
its  own  money  for  state   projects;  the  federal  government                                                               
similarly  requires  qualification  based criteria  when  federal                                                               
grants or  other money are involved.   Under HB 239,  the process                                                               
would be extended to state  grants being used [for architectural,                                                               
engineering, and land surveying] projects.                                                                                      
                                                                                                                                
REPRESENTATIVE HOLMES said when  consumers search for a physician                                                               
or  lawyer,  or   when  they  shop  for  a   vehicle,  the  first                                                               
consideration is not  price, it is experience and value.   In the                                                               
example of  buying a  car, she  said a  price is  negotiated only                                                               
after  a vehicle  with  the necessary  features  has been  found.                                                               
Representative Holmes  suggested the  same process  should happen                                                               
when  the state  bids; once  the state  chooses the  best company                                                               
based on qualifications,  it would then negotiate  for price with                                                               
that company.   If  that company  will not give  a price  that is                                                               
acceptable, then  the state would go  to the next company  on the                                                               
qualification-based list.                                                                                                       
                                                                                                                                
9:20:47 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN commented  that  the information  in  resumes can  be                                                               
selective, and choosing from them subjective.                                                                                   
                                                                                                                                
9:21:28 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN  asked  if  the ultimate  focus  of  the                                                               
proposed legislation is quality of work or cost savings.                                                                        
                                                                                                                                
REPRESENTATIVE HOLMES answered it is both.                                                                                      
                                                                                                                                
CHAIR LYNN suggested  that it is the responsibility  of the state                                                               
to  include its  expectation for  a  project in  its request  for                                                               
proposals (RFPs).                                                                                                               
                                                                                                                                
REPRESENTATIVE HOLMES said, "That depends."                                                                                     
                                                                                                                                
9:23:17 AM                                                                                                                    
                                                                                                                                
MIKE COUMBE,  Staff, Representative Lindsey Holmes,  Alaska State                                                               
Legislature,  on   behalf  of  Representative   Holmes,  sponsor,                                                               
offered a summary of HB 239, as follows:                                                                                        
                                                                                                                                
     It requires  that state funded contracts  be negotiated                                                                    
     with the  most qualified  and suitable  professional of                                                                    
     demonstrated competence, also  considering proximity to                                                                    
     the  project site.   If  those  negotiations fail,  the                                                                    
     state funded  contractor will  negotiate with  the next                                                                    
     qualified   professional,   in    order   of   ranking.                                                                    
     Proposals  may be  rejected  by  the state  contractor.                                                                    
     Situations of public necessity  are excluded from these                                                                    
     requirements.  Price can be  considered, as long as the                                                                    
     project evaluators  are registered professionals.   And                                                                    
     this  does not  apply to  contracts incorporating  both                                                                    
     design and construction work.                                                                                              
                                                                                                                                
9:27:06 AM                                                                                                                    
                                                                                                                                
MR.  COUMBE, in  response to  Representative Johansen,  clarified                                                               
that  the  bill  addresses  all  contracts  in  which  the  state                                                               
invests.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  JOHANSEN  said  if   the  intent  is  to  include                                                               
anything engineered in  the state, then that will raise  a lot of                                                               
questions.                                                                                                                      
                                                                                                                                
9:28:50 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES said she would research that issue.                                                                       
                                                                                                                                
9:29:01 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  expressed  concern about  including  land                                                               
surveying, because "it's done for  numerous things."  He directed                                                               
attention to a  sentence beginning on page 1, line  6, which read                                                               
as follows:                                                                                                                     
                                                                                                                                
     If   a  contracting   person  procures   architectural,                                                                    
     engineering, or  land surveying  services for  a state-                                                                    
     funded  contract, the  contracting  person shall,  when                                                                    
     selecting  the  contractor,  negotiate  with  the  most                                                                    
     qualified   and   suitable   professional   person   of                                                                    
     demonstrated competence to perform the services.                                                                           
                                                                                                                                
REPRESENTATIVE  SEATON  said that  sounds  like  the RFP  process                                                               
would not even be used.                                                                                                         
                                                                                                                                
REPRESENTATIVE  HOLMES deferred  to  Mark O'Brien  for an  answer                                                               
regarding RFPs.  She said licensing is still very important.                                                                    
                                                                                                                                
9:32:05 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON said it does  not sound like there would be                                                               
any real  cost constraint, as  long as negotiations are  made and                                                               
there is enough money from the state for the project.                                                                           
                                                                                                                                
REPRESENTATIVE HOLMES responded that  "this language" is the same                                                               
language as  that which applies  to fully  state-funded projects.                                                               
She deferred again to Mark O'Brien.                                                                                             
                                                                                                                                
9:33:41 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN  questioned whether  the system  is broken  and, thus,                                                               
needs to be fixed.                                                                                                              
                                                                                                                                
MS.  HOLMES  recommended  that  the  committee  hear  from  those                                                               
waiting to  testify.   In response to  a follow-up  question from                                                               
the chair, she  said she does not think  the proposed legislation                                                               
would either decrease or increase competition.                                                                                  
                                                                                                                                
9:34:57 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHANSEN  directed attention  to language  on page                                                               
2, lines 22-23, which read as follows:                                                                                          
                                                                                                                                
         (f) This section does not apply to a contract                                                                          
    that    incorporates   both    design   services    and                                                                     
     construction.                                                                                                              
                                                                                                                                
REPRESENTATIVE JOHANSEN asked why that language is in the bill.                                                                 
                                                                                                                                
REPRESENTATIVE HOLMES said she believes  the language aligns with                                                               
current state practice.                                                                                                         
                                                                                                                                
REPRESENTATIVE JOHANSEN indicated that  within DOT&PF, there is a                                                               
movement towards "design build and cost savings."                                                                               
                                                                                                                                
9:36:11 AM                                                                                                                    
                                                                                                                                
MR.  COUMBE, in  response  to Representative  Johansen, said  the                                                               
idea for  HB 239 originated  from the Alaska  Professional Design                                                               
Council (APDC).                                                                                                                 
                                                                                                                                
9:36:40 AM                                                                                                                    
                                                                                                                                
MARK O'BRIEN,  Chief Contracts Officer, Contracting  and Appeals,                                                               
Office  of  the  Commissioner,  Department  of  Transportation  &                                                               
Public  Facilities, offered  a review  of  the state's  selection                                                               
process.   He said since  the state procurement code  was enacted                                                               
in  1986, the  department  has been  using a  qualification-based                                                               
selection  process, which  has been  required for  every federal-                                                               
based contract since 1972.   Currently, grant recipients in state                                                               
and local  governments who receive  any federal aid  are required                                                               
to perform a qualification-based selection.   Some use price as a                                                               
factor  and some  do  not,  he said.    Mr.  O'Brien offered  his                                                               
understanding  that there  are 42  states that  currently have  a                                                               
qualification-based  selection   process.     Of  those   42,  21                                                               
currently require what is proposed in HB 239.                                                                                   
                                                                                                                                
9:39:44 AM                                                                                                                    
                                                                                                                                
MR. O'BRIEN said in a  low-price selection process, any potential                                                               
design savings may be offset  by higher construction or operating                                                               
costs from a less than  optimal design consideration.  He relayed                                                               
that a  life-cycle cost or  lifespan of a building  engineered is                                                               
typically about 40 years, and  negotiated design fees are usually                                                               
less than 1  percent of that, while the other  99 percent fall in                                                               
the category of maintenance and operation  costs.  He said it can                                                               
be short-sighted  to try to  save money  on the 1  percent, while                                                               
the  other 99  percent  is "expensed  out over  the  life of  the                                                               
building because additional design  considerations were not taken                                                               
into effect."  Mr. O'Brien  said when design decisions are driven                                                               
by low  price, the  emphasis of  the design  professional changes                                                               
from being  able to take  advantage of  the full range  of design                                                               
opportunities, which  may affect  the efficiency of  the building                                                               
over time, to having to focus solely on managing costs.                                                                         
                                                                                                                                
9:41:51 AM                                                                                                                    
                                                                                                                                
MR.  O'BRIEN,  in  response  to   a  request  for  clarification,                                                               
explained that the purpose of HB  239 is to change the process by                                                               
which   all   state   and   local   governments   acquire   their                                                               
architectural, land  surveying, and engineering services:   price                                                               
would  no  longer be  a  factor  in  the  selection of  the  most                                                               
qualified firm;  it becomes a factor  later on.  He  continued as                                                               
follows:                                                                                                                        
                                                                                                                                
     The state, when  we go out to ...  acquire an architect                                                                    
     or an engineer, we send  out a request for proposal, we                                                                    
     get  in  proposals  from  those  interested  firms,  we                                                                    
     evaluate  them ...  only  on  their qualifications,  we                                                                    
     take  the  highest  ranked  firm,  and  we  enter  into                                                                    
     negotiations  for the  actual  scope  of services  that                                                                    
     we're  trying  to acquire.    That's  the process;  and                                                                    
     that's  the  process that  this  bill  then imposes  on                                                                    
     local  jurisdictions  for  state  money  that's  handed                                                                    
     down.   So,  ... the  comments  that I  made about  low                                                                    
     price were  relative to the  process that may  be going                                                                    
     on out there  and why it may be  worthwhile to consider                                                                    
     a qualification-based requirement.                                                                                         
                                                                                                                                
9:45:01 AM                                                                                                                    
                                                                                                                                
MR. O'BRIEN, in response to  Chair Lynn, said cost containment is                                                               
a project management issue rather than a selection process.                                                                     
                                                                                                                                
9:46:34 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   SEATON  offered   his  understanding   that  the                                                               
proposed  legislation would  require  [a  contractor using  state                                                               
awarded  funds] to  negotiate with  the most  qualified entities,                                                               
but would not require RFPs.                                                                                                     
                                                                                                                                
9:48:14 AM                                                                                                                    
                                                                                                                                
MR. O'BRIEN said  AS 36.30.270 - statute  applying to architects,                                                               
engineers,  and  land surveyors  -  falls  under the  competitive                                                               
sealed proposal section of the  procurement code.  He said, "That                                                               
issue  is  addressed in  ...  procurement  code and  statute  and                                                               
regulation  for us,  pointing to  an  RFP process  in advance  of                                                               
that, and that is absent from this."   He noted that there is one                                                               
reference  to rejection  on  page  2, line  7,  which read,  "The                                                               
contracting  person  may  reject  all   or  part  of  a  proposal                                                               
submitted under this  section."  He said that  implies that there                                                               
is a proposal process.                                                                                                          
                                                                                                                                
9:50:41 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER  said it  is obvious  that Mr.  O'Brien has                                                               
faith in the  quality selection process.  He  ventured, "It seems                                                               
like ... you  could preclude in that process  the contractor that                                                               
may, in fact, be  the one that can give you  the best product for                                                               
the best price."  He pointed  to the word "proximity" [on page 2,                                                               
line 1],  and noted  that the language  does not  specify whether                                                               
near  or  far  is  better.   He  expressed  concern  that  "using                                                               
criteria like  that could ...  prevent you from  cost containment                                                               
in step two."                                                                                                                   
                                                                                                                                
9:52:10 AM                                                                                                                    
                                                                                                                                
MR.  O'BRIEN  said a  professional's  experience  and ability  to                                                               
provide  a  desired  design  is  not  necessarily  tied  to  that                                                               
professional's hourly  price.   He explained that  a firm  with a                                                               
higher hourly rate may have done  so many iterations of a project                                                               
that it is  more time efficient in carrying out  the project than                                                               
a  firm with  a  lower hourly  rate  that has  not  had the  same                                                               
experience.  He continued:                                                                                                      
                                                                                                                                
     Does price  tell you  how much you're  going to  get in                                                                    
     terms  of  value  from  that contractor?    And  for  a                                                                    
     professional, I would  argue no.  It's  the same reason                                                                    
     you  wouldn't select  a doctor  by price,  you wouldn't                                                                    
     select an attorney  by price.  There  are factors other                                                                    
     than that  that are  more important  in terms  of their                                                                    
     qualifications  and their  ability to  perform for  you                                                                    
     the product that you're looking for.                                                                                       
                                                                                                                                
9:54:00 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN  offered   his  understanding  that  Mr.                                                               
O'Brien said this process already  takes place when federal money                                                               
is  being used.   He  asked, "We're  just talking  about strictly                                                               
state  money and  some other  source, and  not federal  money, is                                                               
that correct?"                                                                                                                  
                                                                                                                                
MR. O'BRIEN answered that is correct.                                                                                           
                                                                                                                                
REPRESENTATIVE JOHANSEN asked, "Would it  be fair to say that ...                                                               
most  every  project  we  do  has  some  sort  of  federal  money                                                               
involved, and that all of  those are already under this umbrella,                                                               
[vis-à-vis] this language?"                                                                                                     
                                                                                                                                
MR. O'BRIEN said that is correct.                                                                                               
                                                                                                                                
REPRESENTATIVE JOHANSEN gave  an example of a  $10 million dollar                                                               
library  project taking  place  in Ketchikan,  using  a local  $5                                                               
million municipal bond and a  state appropriation for $5 million,                                                               
and asked if, under  HB 239, "we would be able  to do the project                                                               
under these statutes."                                                                                                          
                                                                                                                                
MR. O'BRIEN  replied that if  HB 239  passes and that  project is                                                               
partially state funded,  then he believes the answer is  yes.  He                                                               
said  he would  have to  read the  law to  recollect whether  the                                                               
distinction is partially or fully state funded.                                                                                 
                                                                                                                                
9:55:59 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN  questioned whether  municipalities  and                                                               
local  entities  have the  expertise,  time,  and energy  to  "go                                                               
through this process."                                                                                                          
                                                                                                                                
MR.  O'BRIEN  responded,  "If  they're  currently  receiving  any                                                               
federal aid  funds - directly  or passed  through to the  state -                                                               
they're already doing it."                                                                                                      
                                                                                                                                
9:56:47 AM                                                                                                                    
                                                                                                                                
KATHIE WASSERMAN, Legislative  Director, Alaska Municipal League,                                                               
said  AML   members  discussed  HB   239  at   AML's  legislative                                                               
conference  last month  and  no  one could  figure  out what  the                                                               
problem  was that  necessitated  the proposed  legislation.   She                                                               
said  she has  never  heard  that the  procurement  rules are  an                                                               
issue.   She said  a few  years ago,  when she  was the  mayor of                                                               
Pelican,  Alaska,  the  state  turned over  its  harbors  to  the                                                               
municipalities, and the  amount of money she  received to restore                                                               
Pelican's harbor was  very small.  She said that  "it's all about                                                               
money," and to not be able  to make decisions based on cost would                                                               
"tie  up everything."   She  mentioned the  proximity requirement                                                               
under HB  239, and  she said  although she  agrees with  the bill                                                               
sponsor that she  would not necessarily choose a  doctor based on                                                               
cost,  she  said proximity  would  not  enter into  her  decision                                                               
either; she would  fly to Seattle to  see a doctor if  she had to                                                               
do so.  Conversely, she said  she would consider cost when buying                                                               
a vehicle.   She said  as former  mayor she has  received federal                                                               
money  many  times,  but  has  never  gone  through  the  process                                                               
described by "the gentleman from  DOT."  She expressed doubt that                                                               
what works for DOT will also  work for small communities that are                                                               
doing all they can with few resources.                                                                                          
                                                                                                                                
9:59:40 AM                                                                                                                    
                                                                                                                                
MS. WASSERMAN,  in response to Representative  Johansen, said she                                                               
does  not  remember  ever  going   through  an  RFP  process  any                                                               
differently  with  federal  money  than with  state  money.    In                                                               
response to Representative Seaton,  she offered her understanding                                                               
that  most   municipalities  have   a  set  amount   under  their                                                               
ordinances under which they do  not require RFPs, but that amount                                                               
is  usually  very  small.    She  reemphasized  the  relationship                                                               
between a low  budget and consideration of cost.   In response to                                                               
a follow-up  question, she stated  her belief that  AML's problem                                                               
with HB 239 is that it does not believe there is a need for it.                                                                 
                                                                                                                                
10:02:07 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE JOHANSEN  encouraged Ms.  Wasserman to  speak with                                                               
the other  municipalities about  considerations of  larger versus                                                               
smaller communities.                                                                                                            
                                                                                                                                
10:03:45 AM                                                                                                                   
                                                                                                                                
CHAIR LYNN noted that there  were several people left to testify,                                                               
with no time left.                                                                                                              
                                                                                                                                
10:04:14 AM                                                                                                                   
                                                                                                                                
CHAIR LYNN announced that HB 239 was held over.                                                                                 

Document Name Date/Time Subjects
01 HB0212A.PDF HSTA 3/13/2012 8:00:00 AM
HB 212
02 HB 212 Sponsor Statement.pdf HSTA 3/13/2012 8:00:00 AM
HB 212
03 HB 212 PowerPoint.PDF HSTA 3/13/2012 8:00:00 AM
HB 212
04 HB 212 Supporting Document - NCSL Research 4-1-11.PDF HSTA 3/13/2012 8:00:00 AM
HB 212
05 HB212-DOA-DMV-3-8-12.pdf HSTA 3/13/2012 8:00:00 AM
HTRA 3/27/2012 1:00:00 PM
HB 212
01 HB0239A.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
02 HB239 Sponsor Statement.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
03 HB239 Current Statutes for State Professional Contracts.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
04 HB239 Supporting Document - American Institute of Architects Position Statement.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
05 HB239 Supporting Document - Case Studies in Bidding - American Consulting Engineers Council.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
06 HB239 Supporting Document - Maryland & Florida Comparison Study - American Institute of Architects.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
07 Letter of Support USKH.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
08 RurAL CAP Comments - HB 239 - contracting requirements.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
09 Letter of Support Schoenthal.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
10 HB239-DOT-AS-3-12-12.pdf HSTA 3/13/2012 8:00:00 AM
HB 239
11 Letter Opposing - Brooks Chandler, Attorney.PDF HSTA 3/13/2012 8:00:00 AM
HB 239
06 HB 212 Supporting Document - Luiken PowerPoint 03132012.pdf HSTA 3/13/2012 8:00:00 AM
HB 212