Legislature(1995 - 1996)

03/28/1996 01:36 PM Senate TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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               SB 315 ALASKA RAILROAD PROCUREMENT                             
                                                                              
 Number 001                                                                    
                                                                               
 CHAIRMAN RIEGER called the Senate Transportation meeting to order             
 at 1:36 p.m. and noted that testimony would be taken until a quorum           
 arrived.  He introduced  SB 315  as the first order of business.              
                                                                               
 HENRY SPRINGER, Executive Director of the Associated General                  
 Contractors of Alaska, emphasized the association's platform of               
 open competitive bidding processes.  He said that there have been             
 attempts to erode that process in the past few years.  Mr. Springer           
 mentioned that he worked with the Department of Transportation                
 (DOT) in 1962 and is somewhat familiar with the construction or               
 changes within the right of way of the Alaska Railroad.  He did not           
 understand why that work could not be done under a competitive                
 bidding process.  The Alaska Railroad would continue to outline the           
 specifications and the operational demands.  Mr. Springer said that           
 it could be done as a specialty contract where the railroad does              
 the construction and integrates the construction with their                   
 maintenance and other operations or it can be done through DOT.               
 Regardless of how the work is done, Mr. Springer believed that the            
 work could be done as the rest of the state work is done, which is            
 in compliance with the State Procurement Code.  He offered to                 
 answer any questions.                                                         
                                                                               
 A quorum was established.                                                     
                                                                               
 Number 082                                                                    
                                                                               
 JOHN ENG, Cornerstone Construction, explained that Cornerstone                
 Construction is a general contractor that does commercial and                 
 industrial work as well as railroad maintenance and construction.             
 Mr. Eng believed that tax dollars should be awarded through a                 
 competitive bidding process.  He agreed with Mr. Springer that the            
 owner of the adjacent property whether it be the railroad or                  
 someone else, could establish some technical requirements that                
 would have to be followed for everyone's benefit.  Mr. Eng said               
 that he was promoting this legislation primarily for the economic             
 benefit to the state as well as a competitive bid operation and               
 business opportunity for Cornerstone Construction.                            
                                                                               
 BOB HATFIELD, President and CEO of the Alaska Railroad, said that             
 the railroad owns the right of way on which the work would be done            
 and the railroad should do the work it is capable of doing on its             
 own right of way.  As a standard condition to consent to a DOT                
 grade crossing project, the railroad asks that its employees do               
 that work which involves changing or moving track.  Mr. Hatfield              
 emphasized that the railroad asks that its employees do such work             
 due to the liability issues which the railroad accepts through its            
 normal operations.  Therefore, the railroad wants to know exactly             
 how work has been done.  Mr. Hatfield recognized that the work                
 could be accomplished by contractors, but the railroad's liability            
 creates the need to know exactly what is done.  Also the train and            
 construction operations have to be coordinated; the railroad can do           
 this more efficiently.  Mr. Hatfield pointed out that the railroad            
 is reimbursed for doing a project in accordance with the Federal              
 Highway Administration guidelines.  He explained that cost                    
 estimates are submitted to DOT who analyzes the estimates for                 
 reasonableness.  Once the project is complete, DOT routinely audits           
 the payments in order to ensure that the railroad does not receive            
 payment for work that was not done or not done in the manner                  
 specified.  He offered to answer any questions.                               
 Number 145                                                                    
                                                                               
 SENATOR LINCOLN inquired as to why the railroad could not specify             
 within the contract that the contractor would bear the                        
 responsibility.  With regards to the reimbursement by the federal             
 government, could the contractors or subcontractors submit cost               
 estimates and DOT could audit them just as the department audits              
 the railroad?  BOB HATFIELD agreed that the audits could be done              
 for the subcontractor.  Mr. Hatfield reiterated that the railroad             
 can not only do work comparable to that of a contractor, but also             
 can coordinate the work better.  This discussion only refers to               
 track and signal work.  Mr. Hatfield pointed out that the railroad            
 routinely contracts out other work in the right of way that does              
 not directly involve the track or the signal.                                 
                                                                               
 SENATOR LINCOLN noted that Mr. Eng's letter said that he was                  
 looking at railroad crossings and overpasses when asking how track            
 and signal work would be involved in overpasses.  BOB HATFIELD                
 explained that often a track must be relocated when there is work             
 done on an overpass.                                                          
                                                                               
 SENATOR LINCOLN asked if Mr. Hatfield believed there to be a cost             
 savings to Alaska by keeping the contract solely with the railroad.           
 BOB HATFIELD believed there to be a cost savings.  The railroad has           
 the equipment, people, and the expertise to do this work on demand.           
 Mr. Hatfield noted that the railroad seems to have the same                   
 situation with highway construction as the utility companies do.              
                                                                               
 SENATOR LINCOLN asked how much the savings would be in one fiscal             
 year.  BOB HATFIELD did not know.  There are many factors involved            
 in such an estimate.                                                          
                                                                               
 Number 203                                                                    
                                                                               
 SENATOR GREEN asked if this same dilemma applied to any other                 
 governmental entity besides the railroad.  Senator Green believed             
 that a conflict had been created in this public-private entity                
 which separates the railroad from a normal utility.                           
                                                                               
 SAM KITO III, Department of Transportation & Public Facilities, did           
 not believe there was another private entity to which this would              
 apply.  Typically, the department does force account work with                
 villages through Public Health Services or the Department of                  
 Environmental Conservation.                                                   
                                                                               
 SENATOR TAYLOR said that the substance of SB 315 is to allow the              
 railroad to defer to DOT.  He asked if the railroad would have to             
 defer to DOT.                                                                 
                                                                               
 CHAIRMAN RIEGER explained that SB 315 would require that the                  
 railroad use the same processes that DOT would have used had DOT              
 done the work themselves.  In response to Senator Taylor, Chairman            
 Rieger said that the railroad is not doing that.                              
                                                                               
 BOB HATFIELD interjected that the railroad is behaving in the same            
 manner in which DOT would.  DOT can choose to do the work itself of           
 the work can be contracted out.                                               
                                                                               
 SENATOR TAYLOR asked if the railroad was using competitive sealed             
 bidding.  BOB HATFIELD said that the railroad was being asked to do           
 the work and the railroad is.  SENATOR TAYLOR said that if the work           
 is being done in-house, competitively sealed proposals would not be           
 required; this law would not effect that, would it?  BOB HATFIELD             
 said that it seems that any work DOT may undertake on the                     
 railroad's property which involved track work would have to be put            
 out to bid, even routine work.                                                
                                                                               
 SENATOR TAYLOR asked if the routine work was being done by DOT, not           
 the railroad and its employees.                                               
                                                                               
 Number 256                                                                    
                                                                               
 BOB HATFIELD explained that DOT may be relocating a road or                   
 building a highway overpass which would require taking apart tracks           
 or moving tracks.  That work is done by the railroad at the request           
 of DOT.  SB 315 would require that work done by the railroad for              
 the railroad to be competitively bid upon.                                    
                                                                               
 HENRY SPRINGER pointed out that under the State Procurement Code,             
 any money appropriated to DOT under the Capital Program (CIP) or              
 any projects must have a competitive bidding process.  The                    
 department can choose how to proceed with operating and maintenance           
 funds that are general fund appropriations.  Mr. Springer clarified           
 that he was asking that the railroad, in cases of capital money               
 coming through DOT to the railroad, have a competitive bid process.           
                                                                               
 SENATOR LINCOLN understood from previous testimony that this                  
 legislation would cost the state more money.  She noted that there            
 is no fiscal note.  Senator Lincoln inquired as to the position of            
 DOT regarding SB 315 and if SB 315 will cost more money.                      
                                                                               
 CHAIRMAN RIEGER pointed out that there are fiscal notes from the              
 Alaska Railroad and DOT.  SENATOR LINCOLN said those fiscal notes             
 are zero.                                                                     
                                                                               
 SAM KITO III said that DOT does not believe there to be a fiscal              
 impact with SB 315.  The department cannot project what the fiscal            
 impact may be for the Alaska Railroad Corporation if the method of            
 operation is changed.  Mr. Kito said that DOT supports the Alaska             
 Railroad Corporation's position on SB 315.                                    
                                                                               
 Number 300                                                                    
                                                                               
 CHAIRMAN RIEGER asked if the Alaska Railroad were a private                   
 corporation and there were no special statutes governing the                  
 railroad, would DOT be able to transfer the ability to do the work            
 on the railroad's right of way to that private railroad.  If the              
 department could transfer that ability to a private railroad, would           
 it be subject to State Procurement Code laws?                                 
                                                                               
 SAM KITO III believed that if the Alaska Railroad Corporation were            
 an independent or private entity, DOT would have no say in how the            
 project was constructed.  With regards to the private entity                  
 receiving funds from the department,  Mr. Kito did not know if that           
 would be possible.                                                            
                                                                               
 CHAIRMAN RIEGER asked if that was done in any other instance or               
 does the department always own the right of way included in a                 
 project.  Perhaps, utilities would be an example.  SAM KITO III               
 informed the chairman that DOT does have lease agreements for                 
 utilities within the road right of way where a utility will have an           
 easement within the road right of way to place its utility.  With             
 a DOT project or highway project, the department will own the right           
 of way or have a significant interest.  With some airports, the               
 department leases the land from a corporation or is proposing to              
 lease the land from a corporation.                                            
                                                                               
 CHAIRMAN RIEGER asked if the department did the work in such                  
 situations.  SAM KITO III replied yes, the department does the work           
 directly; it is a public project.  The department would have a                
 lease for the property and the department would have significant              
 interest in the property in order to operate a public project.                
                                                                               
 Number 330                                                                    
                                                                               
 CHAIRMAN RIEGER asked if money would be transferred to Alyeska                
 where the road crosses the pipeline right of way or would the                 
 department do the work.  SAM KITO III said that he was unfamiliar             
 with the statutes and the regulations.  Statute specifically                  
 addresses utility relocation in state right of way.                           
                                                                               
 CHAIRMAN RIEGER said that he was still unclear as to what would               
 transpire if the railroad was private.                                        
                                                                               
 SENATOR TAYLOR acknowledged that there may be some specialty or               
 advantage to doing the work in-house.  He asked if this work should           
 be open to competitive bidding when the railroad is ultimately                
 liable for the trains running over that work.                                 
                                                                               
 SENATOR LINCOLN wanted to know if there would be a significant                
 difference in the cost of going through a competitive bidding                 
 process.  She pointed out that more employment would be created, if           
 there was not a significant difference in the cost.  With regards             
 to the liability, Senator Lincoln suggested that the construction             
 of buildings, highways and bridges is no different than building              
 railroad ties.  The liability could be written into the contract.             
 Is there going to be an additional cost to Alaska and if so, how              
 much?  Would this carry forward if the railroad was sold?                     
                                                                               
 BOB HATFIELD indicated that he would be speculating at this point             
 with regards to the savings or expense of SB 315.  However, Mr.               
 Hatfield assumed that there would be no savings from the labor cost           
 component.  Furthermore, the railroad has parts and materials that            
 are bought in bulk which presumes a better price than a contractor            
 would be able to obtain.  Even if a contractor did the work, the              
 railroad would require that a flagman and track inspector be in               
 place monitoring the work.  Therefore, three more employees would             
 be present than would if the railroad were doing the project.                 
                                                                               
 SENATOR LINCOLN asked if anyone would have to be laid off if the              
 bidding process were utilized.  BOB HATFIELD said that it could be            
 possible.  With the Bird Creek to Girdwood Project, employees would           
 have been laid off.                                                           
                                                                               
 Number 399                                                                    
                                                                               
 RICK LEGGETT, General Road Manager, that the Bird to Gird Project             
 had about 30 track people on that project and two separate crews.             
 If that project had been allowed to go through the bidding process,           
 those railroad employees would have been laid off.                            
                                                                               
 SENATOR GREEN asked if the railroad determines the size of its                
 staffing based on the assumption that those employees will do those           
 projects in-house.                                                            
                                                                               
 JOHN ENG posed the following question:  would the work be better on           
 a competitive bid basis or a cost plus force account basis?                   
                                                                               
 BOB HATFIELD pointed out that the railroad's estimates are reviewed           
 for reasonableness before the work is done and are further audited            
 after the work is completed in order to ensure that the railroad              
 did not do anything out of line.                                              
                                                                               
 JOHN ENG said that SB 315 does not prevent the railroad from also             
 bidding on the work.  With a competitive bid process, the railroad            
 would be able to demonstrate if there would or would not be savings           
 if the railroad did the work.                                                 
                                                                               
 SENATOR TAYLOR does not like the current procurement code.  It is             
 burdensome.  If the railroad has used private contractors in the              
 past and this is a policy shift, Senator Taylor did not object to             
 the legislation.                                                              
                                                                               
 CHAIRMAN RIEGER pointed out that the additional language in SB 315            
 refers to "when procuring" and that there would be a competitive              
 process "when procuring".  Chairman Rieger clarified that the                 
 complaint was in regards to the force account.  Does the railroad             
 interpret SB 315 as preventing any in-house work?  BOB HATFIELD               
 replied yes.  The railroad believes that SB 315 would require the             
 railroad to competitively bid a project no matter how small or                
 large.  Mr. Hatfield mentioned the administrative burden which                
 would be created for the railroad.                                            
                                                                               
 CHAIRMAN RIEGER asked if Mr. Eng interpreted the bill in that                 
 manner.  JOHN ENG said no.  Mr. Eng understood the bill to mean               
 that public bidding would only be required when the project is                
 funded by tax payers' dollars.                                                
                                                                               
 BOB HATFIELD agreed with Mr. Eng, but some of DOT's projects paid             
 for by tax payers are relatively insignificant with regards to                
 cost.                                                                         
                                                                               
 HENRY SPRINGER pointed out that is done under AS 36.30.100 -                  
 36.30.270 which does not preclude the work being done in-house or             
 by force account; the statute lays out a mechanism.  It basically             
 says that, under the procurement code, anything over $100,000 would           
 be required to go through a competitive bidding process.  If there            
 are extenuating circumstances, then the competitive bidding process           
 does not have to be used; it is not a blanket requirement.                    
                                                                               
 CHAIRMAN RIEGER asked if there were other questions from the                  
 committee.  Hearing none, Chairman Rieger asked for the pleasure of           
 the committee.                                                                
                                                                               
 Number 465                                                                    
                                                                               
 SENATOR TAYLOR moved that SB 315 be moved out of committee with               
 individual recommendations.                                                   
                                                                               
 CHAIRMAN RIEGER noted that SB 315 has a referral to Senate Finance.           
                                                                               
 SENATOR LINCOLN objected for discussion purposes.  She had no                 
 objection to moving the bill to Senate Finance, but the bill could            
 be waived from that committee because of the zero fiscal notes.               
 Senator Lincoln said that she would not object to moving the bill             
 out of committee if she was assured that it would be heard in                 
 Senate Finance.                                                               
                                                                               
 SENATOR TAYLOR shared Senator Lincoln's concerns regarding the                
 fiscal impacts of SB 315.  He hoped the bill would not be waived              
 from Senate Finance.                                                          
                                                                               
 SAM KITO III explained that AS 36.30.100 - 36.30.270 does not have            
 any guidelines for what would constitute a project that should be             
 eligible for competitive sealed bid or competitive sealed proposal.           
 Those portions of the procurement code only address the procedures            
 by which a competitive sealed bid or a competitive sealed proposal            
 would be implemented.                                                         
                                                                               
 CHAIRMAN RIEGER said that he would like to move this bill, but he             
 would also like to review those statutes.                                     
                                                                               
 SENATOR TAYLOR withdrew his motion.                                           
                                                                               
 CHAIRMAN RIEGER believed that often public projects are                       
 appropriated in part, with the expectation that work would get out            
 to the private sector.  Chairman Rieger said that he was                      
 sympathetic to that.  He wanted to have a workable procedure in               
 place to ensure that happens.  If there is a question regarding the           
 restrictions with the procurement reference, then it would be                 
 appropriate to hold the bill.  Chairman Rieger asked if anyone else           
 would like to testify on SB 315.  He informed everyone that staff             
 would research those statutes, obtain a legal opinion, and share it           
 with committee members.                                                       

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