Legislature(1999 - 2000)

05/07/1999 05:08 PM House RLS

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
           HOUSE RULES STANDING COMMITTEE                                                                                       
                    May 7, 1999                                                                                                 
                     5:08 p.m.                                                                                                  
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative John Cowdery, Chairman                                                                                           
Representative Brian Porter                                                                                                     
Representative Joe Green                                                                                                        
Representative Gail Phillips                                                                                                    
Representative Pete Kott                                                                                                        
Representative Ethan Berkowitz                                                                                                  
Representative Reggie Joule                                                                                                     
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
CS FOR SENATE BILL NO. 141(L&C)                                                                                                 
"An Act relating to construction contracts and subcontractors;                                                                  
relating to design- build construction contracts; and providing for                                                             
an effective date."                                                                                                             
                                                                                                                                
     - MOVED HCS CSSB 141(RLS) OUT OF COMMITTEE                                                                                 
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: SB 141                                                                                                                    
SHORT TITLE: PROCUREMENT: CONTRACTS/SUBCONTRACTS                                                                                
SPONSOR(S): SENATOR(S) LEMAN BY REQUEST                                                                                         
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 4/12/99       879     (S)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/12/99       879     (S)  L&C                                                                                                 
 4/20/99               (S)  L&C AT  1:30 PM BELTZ 211                                                                           
 4/20/99               (S)  MOVED CS (L&C) OUT OF COMMITTEE                                                                     
 4/21/99       985     (S)  L&C RPT  CS  4DP          SAME TITLE                                                                
 4/21/99       985     (S)  DP: MACKIE, LEMAN, HOFFMAN, TIM KELLY                                                               
 4/21/99       985     (S)  ZERO FISCAL NOTE (DOT)                                                                              
 4/22/99               (S)  RLS AT 12:05 PM FAHRENKAMP 203                                                                      
 4/22/99               (S)  MINUTE(RLS)                                                                                         
 4/23/99      1064     (S)  RULES TO CALENDAR  AND 1 OR 4/23/99                                                                 
 4/23/99      1064     (S)  READ THE SECOND TIME                                                                                
 4/23/99      1064     (S)  L&C  CS ADOPTED UNAN CONSENT                                                                        
 4/23/99      1064     (S)  ADVANCED TO THIRD READING UNAN                                                                      
                       CONSENT                                                                                                  
 4/23/99      1065     (S)  READ THE THIRD TIME  CSSB 141(L&C)                                                                  
 4/23/99      1065     (S)  PASSED Y20 N-                                                                                       
 4/23/99      1065     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                                                                   
 4/23/99      1071     (S)  TRANSMITTED TO (H)                                                                                  
 4/27/99      1020     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 4/27/99      1020     (H)  L&C                                                                                                 
 4/28/99               (H)  L&C AT  3:15 PM CAPITOL 17                                                                          
 4/28/99               (H)  MOVED HCS CSSB 141(L&C) OUT OF                                                                      
                            COMMITTEE                                                                                           
 4/28/99               (H)  MINUTE(L&C)                                                                                         
 4/29/99      1071     (H)  L&C RPT  HCS(L&C) 2DP 2NR 1AM                                                                       
 4/29/99      1071     (H)  DP: ROKEBERG, HARRIS; NR: CISSNA,                                                                   
 4/29/99      1071     (H)  HALCRO; AM: MURKOWSKI                                                                               
 4/29/99      1071     (H)  SENATE ZERO FISCAL NOTE (DOT) 4/21/99                                                               
 4/30/99      1122     (H)  JUD REFERRAL ADDED                                                                                  
 5/04/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 5/04/99               (H)  HEARD AND HELD                                                                                      
 5/05/99               (H)  JUD AT  1:00 PM CAPITOL 120                                                                         
 5/05/99               (H)  MOVED HCS CSSB 141(JUD) OUT OF                                                                      
                            COMMITTEE                                                                                           
 5/07/99               (H)  RLS AT  5:00 PM CAPITOL 120                                                                         
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
SUSAN BURKE, Attorney                                                                                                           
Gross & Burke                                                                                                                   
424 North Franklin Street                                                                                                       
Juneau, Alaska 99801                                                                                                            
Telephone:  (907) 586-2777                                                                                                      
POSITION STATEMENT:  Discussed her opinion regarding                                                                            
                     HCS CSSB 141(JUD).                                                                                         
                                                                                                                                
RICK JOHNSON, Member                                                                                                            
City Council                                                                                                                    
City of Delta Junction                                                                                                          
PO Box 229                                                                                                                      
Delta Junction, Alaska 99737                                                                                                    
Telephone:  (907) 895-4656                                                                                                      
POSITION STATEMENT:  Discussed the situation in Delta Junction.                                                                 
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-6, SIDE A                                                                                                               
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN JOHN COWDERY called the House Rules Standing Committee                                                                 
meeting to order at 5:08 p.m.  Members present at the call to order                                                             
were Representatives Cowdery, Porter, Green, Phillips, Kott  and                                                                
Berkowitz.  Representative Joule arrived at 5:14 p.m.                                                                           
                                                                                                                                
SB 141-PROCUREMENT: CONTRACTS/SUBCONTRACTS                                                                                      
                                                                                                                                
CHAIRMAN COWDERY announced that only order of business before the                                                               
committee would be CS FOR SENATE BILL NO. 141(L&C), "An Act                                                                     
relating to construction contracts and subcontractors; relating to                                                              
design-build construction contracts; and providing for an effective                                                             
date."                                                                                                                          
                                                                                                                                
Number 0080                                                                                                                     
                                                                                                                                
REPRESENTATIVE PORTER moved to adopt HCS CSSB 141, Version                                                                      
LS0827\S, Bannister, 5/7/99, as the working document before the                                                                 
committee.                                                                                                                      
                                                                                                                                
REPRESENTATIVE BERKOWITZ objected.  He commented that he would like                                                             
to see the work done by the other committees prior to this meeting                                                              
before adopting a committee substitute (CS).                                                                                    
                                                                                                                                
CHAIRMAN COWDERY noted that there has been over seven hours of work                                                             
on this legislation prior to this hearing.  There have been some                                                                
legal questions.  He pointed out that there are three memos in the                                                              
committee packet.  One memo is from Legislative Legal Services, one                                                             
from the Attorney General's Office, and the third memo is from a                                                                
private attorney.  He noted that there have been two different                                                                  
opinions on the title issue from the legislative attorneys,                                                                     
therefore outside counsel, Gross & Burke, was sought.  Chairman                                                                 
Cowdery asked if Representative Berkowitz maintained his objection.                                                             
                                                                                                                                
Number 0223                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ said that he maintained his objection.  It                                                             
is conceivable with an amendment, Section 6 may fall within the                                                                 
single title rule.                                                                                                              
                                                                                                                                
REPRESENTATIVE PORTER noted that there are members from the                                                                     
previous committee of referral which would be available for                                                                     
information during debate.                                                                                                      
                                                                                                                                
CHAIRMAN COWDERY announced that it was his intention not to take                                                                
testimony, but questions can be answered.  In response to                                                                       
Representative Berkowitz, Chairman Cowdery asked if there was                                                                   
anyone present from Legislative Legal Services.  No one came forth.                                                             
Chairman Cowdery asked if there was anyone present from the                                                                     
Attorney General's Office.  There was a representative who                                                                      
indicated that she was present to listen only and noted that the                                                                
committee has the opinion from the Attorney General's Office.                                                                   
Chairman Cowdery noted that Susan Burke was present for questions.                                                              
                                                                                                                                
CHAIRMAN COWDERY requested a roll call on the motion to adopt the                                                               
proposed HCS CSSB 141, Version S.                                                                                               
                                                                                                                                
Upon a roll call vote, Representatives Porter, Phillips, Kott, and                                                              
Cowdery voted in favor of the adoption of the proposed HCS CSSB
141.  Representatives Green and Berkowitz voted against the                                                                     
adoption of the proposed HCS CSSB 141.  Representative Joule was                                                                
not present.  Therefore,  the proposed HCS CSSB 141, Version S was                                                              
adopted with a vote of 4-2.                                                                                                     
                                                                                                                                
Number 0417                                                                                                                     
                                                                                                                                
SUSAN BURKE, Attorney, Gross & Burke, informed the committee that                                                               
she was asked to review the bill, its title, and whether certain                                                                
provisions could be included under the existing title.  She noted                                                               
that the committee has her opinion.  Ms. Burke expressed concern                                                                
with two provisions of the CS adopted by the House Judiciary                                                                    
Committee, the design-build procurement section and the price per                                                               
bed day section.  Ms. Burke concluded that the price per day                                                                    
section which was part of the House Judiciary Committee CS was not                                                              
sufficiently related to the subject in the title of the bill.                                                                   
However, the design-build provision was acceptable.  She pointed                                                                
out that the Attorney General's Office issued an opinion this                                                                   
afternoon in agreement with that conclusion.                                                                                    
                                                                                                                                
REPRESENTATIVE BERKOWITZ asked if the clause, "the agreement to                                                                 
lease subsequent to a design-build construction contract" inserted                                                              
in that paragraph would effect Ms. Burke's opinion.                                                                             
                                                                                                                                
MS. BURKE said that it could help a bit, but it would depend upon                                                               
the purpose.  She believed the underlying purpose of that kind of                                                               
section is to establish a ceiling on at least the first year's                                                                  
price provision in the agreement.  The reference to the                                                                         
design-build contract would be ancillary.  Ms. Burke stated that                                                                
the reference to the design-build in the other provision is an                                                                  
integral part of the whole purpose underlying that provision.  "In                                                              
other words, if the municipality adopts this kind of a procurement,                                                             
that is a design-build construction type of procurement, then it                                                                
would comply with the other requirement, the procurement                                                                        
requirements under the other legislation."  Therefore, Ms. Burke                                                                
felt even with the insertion of Representative Berkowitz's language                                                             
there would still be problems.                                                                                                  
                                                                                                                                
REPRESENTATIVE BERKOWITZ asked if that clause was inserted in the                                                               
subsequent section, would it make any difference.                                                                               
                                                                                                                                
MS. BURKE explained that the difficulty is that the price mechanism                                                             
is not a term of the design-build construction contract, but rather                                                             
a term of the lease agreement between the state and the City of                                                                 
Delta Junction.  She clarified that she was not taking any position                                                             
on the merits of either provision, but rather if the provisions can                                                             
logically fit within the existing title.                                                                                        
                                                                                                                                
CHAIRMAN COWDERY surmised then that Ms. Burke believed that the                                                                 
title fits.                                                                                                                     
                                                                                                                                
MS. BURKE clarified, "The one, but not the other and I'm not sure                                                               
that the amendments that Representative Berkowitz mentioned would                                                               
go terribly far to cure what I think is the problem with the price                                                              
provision."                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ said that he imagined that much of Ms.                                                                 
Burke's opinion was conditioned on the definition of a design-build                                                             
construction contract.  He asked if the definition of design-build                                                              
contract would be binding.                                                                                                      
                                                                                                                                
MS. BURKE stated that she did not believe the definition was                                                                    
critical here.  She indicated that the definition does not relate                                                               
to the title problem.                                                                                                           
                                                                                                                                
REPRESENTATIVE BERKOWITZ asked what the result would be if the                                                                  
definition were expanded.                                                                                                       
                                                                                                                                
MS. BURKE commented then that she understood Representative                                                                     
Berkowitz to be pulling in the price section in with the other                                                                  
section.  She said that it might help a bit, but hesitated to                                                                   
recommend that approach without reviewing the entire bill to                                                                    
determine if other problems would be created.                                                                                   
                                                                                                                                
Number 0860                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ indicated that those sort of problems                                                                  
could possibly be cured with a disjunctive.                                                                                     
                                                                                                                                
MS. BURKE said that she did not believe so.  If one or the other                                                                
applies, then that is the definition.                                                                                           
                                                                                                                                
REPRESENTATIVE BERKOWITZ inquired as to the effect if one section                                                               
was left as it is and the "or" included agreements to lease.                                                                    
                                                                                                                                
MS. BURKE replied then that the agreements to lease would always be                                                             
design-build construction contracts.                                                                                            
                                                                                                                                
REPRESENTATIVE PORTER asked if there was anyone else to testify.                                                                
                                                                                                                                
CHAIRMAN COWDERY reiterated that this hearing was not taking                                                                    
testimony, but only answering any questions.                                                                                    
                                                                                                                                
REPRESENTATIVE PORTER commented that the discussion would get                                                                   
moving if a motion to report the proposed CS out of committee was                                                               
made.                                                                                                                           
                                                                                                                                
REPRESENTATIVE BERKOWITZ informed the committee that prior to that                                                              
motion he may have a conceptual amendment.  He noted that he has                                                                
not sat through the prior testimony.  He understood that today the                                                              
Mayor of Delta Junction expressed new reservations regarding the                                                                
prison.  Representative Berkowitz believed that Delta Junction was                                                              
concerned about the possibility of a lawsuit based on procurement                                                               
issues related to the prison.  Would that be accurate?                                                                          
                                                                                                                                
CHAIRMAN COWDERY understood that the City of Delta Junction was                                                                 
about 60-40 in favor of this with the outlying areas having a split                                                             
of 50-50.  Therefore, overall the majority of the people were in                                                                
favor of this.  He requested that a Delta Junction council member                                                               
come forward to speak on the situation in Delta Junction.                                                                       
                                                                                                                                
Number 1039                                                                                                                     
                                                                                                                                
RICK JOHNSON, Member, City Council, City of Delta Junction, agreed                                                              
with Chairman Cowdery's assessment of the vote.  Mr. Johnson also                                                               
agreed with Chairman Cowdery that currently there is a very vocal                                                               
minority in Delta Junction.                                                                                                     
                                                                                                                                
CHAIRMAN COWDERY asked if the city council approved this.                                                                       
                                                                                                                                
MR. JOHNSON replied yes, the city council adopted Resolution 9904                                                               
which authorized the city to go to a sole source.  In further                                                                   
response to Chairman Cowdery, Mr. Johnson said that the resolution                                                              
was signed by the mayor.                                                                                                        
                                                                                                                                
CHAIRMAN COWDERY understood the city council to be made of elected                                                              
members who then elect a mayor.                                                                                                 
                                                                                                                                
MR. JOHNSON replied yes.                                                                                                        
                                                                                                                                
REPRESENTATIVE BERKOWITZ asked if the decision to go to the sole                                                                
source contract was partially based on a concern that Delta                                                                     
Junction might be sued if it did not.                                                                                           
                                                                                                                                
MR. JOHNSON commented that it would be hard not to take that into                                                               
consideration.  Any threat of a lawsuit must be considered.  Mr.                                                                
Johnson stressed that the primary reason for going with the sole                                                                
source contract was more of a time line issue.  The city council                                                                
adopted Resolution 99013 which authorized the city to release a                                                                 
RFP.  In fact, the city hired a nationally renowned RFP writer for                                                              
private prisons, Richard Crane(ph).  He commented that Mr. Barton                                                               
laid out the time line from design of the proposal through to                                                                   
actual design and construction and matched it with the Base                                                                     
Realignment and Closure Commission (BRAC) time line.  The BRAC time                                                             
line says that July 2001, the lights will be turned off.  When the                                                              
competitive process was compared to the BRAC time line it would not                                                             
work.  Mr. Johnson said that the only way to make the remodeling                                                                
process was to go with the sole source contract which barely makes                                                              
it to the deadline July 2001.                                                                                                   
                                                                                                                                
REPRESENTATIVE BERKOWITZ stated that the problem with that decision                                                             
is that it brings the decision before the committee today.   The                                                                
decision to go to sole source was clearly not the understanding of                                                              
the legislature when it passed HB 53 last year.  He reiterated his                                                              
question regarding the threat of a lawsuit being a part of the                                                                  
decision to go to the sole source contract.                                                                                     
                                                                                                                                
Number 1256                                                                                                                     
                                                                                                                                
MR. JOHNSON discussed the process leading up to Delta Junction's                                                                
decision to go to a sole source.  In February 1995, the BRAC                                                                    
Commission announced Fort Greely to be realigned from 1997-2001.                                                                
In May 1995, the governor recognized a broad-based community                                                                    
coalition to be the local reuse authority (LRA).  For two years,                                                                
the reuse authority sought a tenant without receiving any solid                                                                 
proposals.  In the fall of 1997, the LRA received a proposal from                                                               
Allvest to use the facility as a private prison.  In January 1998,                                                              
the community had an election regarding whether the community                                                                   
should use the Allvest proposal which resulted in 62 percent voting                                                             
in favor of the Allvest proposal.  In the spring of 1998, Allvest                                                               
and the Community Coalition entered into an agreement.  Mr. Johnson                                                             
stressed that at that time, there were no other interested bidders.                                                             
He noted that there was interest from a company, CCA, who he                                                                    
understood to be interested in a design-build contract.  Mr.                                                                    
Johnson pointed out that it was known that the design-build would                                                               
not have been in Delta Junction, but in another part of the state.                                                              
                                                                                                                                
                                                                                                                                
MR. JOHNSON continued with the passage of HB 53 in the spring of                                                                
1998.  In September 1998, the city was designated as the                                                                        
Implementing Local Reuse Authority(ILRA).  He explained that for                                                                
the BRAC process, the assets of the post are to be given to the                                                                 
state government.  The governor identified that he wanted a local                                                               
government to receive those.  The LRA was merely a community                                                                    
coalition.  Therefore, the city was designated as the ILRA which is                                                             
how the city entered into the picture.  In October 1998, there was                                                              
a city council election in which the three incumbents lost there                                                                
seats and three new members were elected as was Mr. Johnson, the                                                                
mayor, and another member.  He informed the committee, "I was for                                                               
it, the mayor was against it, and the other person was for it, but                                                              
had concerns."  Mr. Johnson said that it was his consensus that the                                                             
community wanted people of business to review this and make a good                                                              
decision for the community.                                                                                                     
                                                                                                                                
Number 1483                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ reiterated his question regarding why                                                                  
there were concerns of a possible lawsuit.                                                                                      
                                                                                                                                
CHAIRMAN COWDERY interjected that he did not know if there could                                                                
ever be an answer as to why people sue.                                                                                         
                                                                                                                                
REPRESENTATIVE BERKOWITZ pointed out that Mr. Johnson testified                                                                 
that there was concern regarding a possible lawsuit.                                                                            
Representative Berkowitz clarified that he was interested in what                                                               
the concern was and what the possible lawsuit might be.                                                                         
                                                                                                                                
MR. JOHNSON informed the committee that in January 1999, another                                                                
election was held in which the community supported the reuse of                                                                 
Fort Greely as a prison facility.  In February, Richard Crane(ph)                                                               
was hired.  In March, a vote was taken to go with the RFP (Request                                                              
for Proposal) process.  Mr. Johnson emphasized that the threat of                                                               
a lawsuit had no bearing on the city council's decision to go with                                                              
a sole source process.  The city Resolution 99013 authorized the                                                                
city to RFP.  The nationally renowned expert concluded that the                                                                 
city did not have time to do so.  Only then was it decided to go                                                                
with the sole source process.  With that decision, they followed                                                                
the portion of HB 53 which said "a procurement process similar to".                                                             
Mr. Johnson noted that it was an extremely technical process and                                                                
council had to relied upon.  The council was extremely comfortable                                                              
that there was a basis for that sole source.                                                                                    
                                                                                                                                
Number 1600                                                                                                                     
                                                                                                                                
REPRESENTATIVE BERKOWITZ inquired as to why we are here then.                                                                   
                                                                                                                                
MR. JOHNSON understood that when it was time to write the IGA, the                                                              
Attorney General was uncomfortable.                                                                                             
                                                                                                                                
REPRESENTATIVE BERKOWITZ commented, "You said it had to be                                                                      
something similar to the procurement process and I would imagine                                                                
it'd be similar unless there were some given exceptions.  I was                                                                 
wondering if any of those exceptions came to bear in this case."                                                                
                                                                                                                                
MR. JOHNSON deferred to counsel.                                                                                                
                                                                                                                                
Number 1629                                                                                                                     
                                                                                                                                
REPRESENTATIVE PHILLIPS stressed that the committee is present to                                                               
address a bill that has questions regarding the title and a section                                                             
of the bill.  The task of the Rules Committee is to review that                                                                 
question and make a determination.  The committee is not debating                                                               
the issue.                                                                                                                      
                                                                                                                                
REPRESENTATIVE PHILLIPS clarified, in response to Representative                                                                
Berkowitz, that Section 6 of the House Judiciary Committee CS which                                                             
dealt with the price per day is removed in the proposed CS before                                                               
the committee.                                                                                                                  
                                                                                                                                
REPRESENTATIVE BERKOWITZ understood that the prior section was                                                                  
inserted in order to balance that last section.  Therefore, the                                                                 
removal of the price section would lose the balance achieved in the                                                             
House Judiciary Committee CS.                                                                                                   
                                                                                                                                
Number 1707                                                                                                                     
                                                                                                                                
REPRESENTATIVE PORTER moved to report HCS CSSB 141, Version LS                                                                  
0827\S, Bannister, 5/7/99, from committee with a letter of intent                                                               
as included in the committee packet.                                                                                            
                                                                                                                                
REPRESENTATIVE BERKOWITZ objected.                                                                                              
                                                                                                                                
REPRESENTATIVE PORTER pointed out that the concern regarding the                                                                
removal of the section by the House Rules Committee proposed CS is                                                              
addressed by the letter of intent.  The letter of intent indicates                                                              
that the $70 cap be established.  There is also a letter from the                                                               
Commissioner Pugh, Department of Corrections, saying that if that                                                               
is the intent that would be done.                                                                                               
                                                                                                                                
REPRESENTATIVE KOTT agreed with Representative Porter's comments.                                                               
He stated, "When we in Judiciary inserted the $70 per day issue we                                                              
dealt with, somewhat, the RFP process and competitive bidding                                                                   
recognizing that there was a provision in the procurement code that                                                             
allowed for a single source.  Then the next concern was well, if it                                                             
went out to single source, let's make sure it is contained or                                                                   
restrained within the dollar amount that was discussed with the                                                                 
previous legislature, primarily in the Finance Committee.  They                                                                 
used $70 as the main number for the per diem, per prisoner, per day                                                             
and that was the reason why we stuck it in there.  And when we                                                                  
stuck that provision in there, we recognized that perhaps, there                                                                
was a constitutional problem with the title and those issues                                                                    
dealing with the single subject."  Representative Kott believed                                                                 
that with the impartial opinion received by the Gross & Burke firm                                                              
and the letter from Commissioner Pugh the intent of the legislature                                                             
when HB 53 was passed will be maintained.                                                                                       
                                                                                                                                
Number 1821                                                                                                                     
                                                                                                                                
REPRESENTATIVE PHILLIPS clarified that the letter of intent to                                                                  
which Representative Porter spoke is the House Rules Committee                                                                  
letter of intent.                                                                                                               
                                                                                                                                
REPRESENTATIVE BERKOWITZ withdrew his objection.                                                                                
                                                                                                                                
CHAIRMAN COWDERY asked if there were any other objections.  There                                                               
being no objections, HCS CSSB 141(RLS), Version LS 0827\S,                                                                      
Bannister, 5/7/99, passed out of committee.                                                                                     
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
There being no further business before the committee, the House                                                                 
Rules Standing Committee meeting was adjourned at 5:45 p.m.                                                                     
                                                                                                                                
                                                                                                                                

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