CSSB 129(FIN): "An Act relating to state procurement; and providing for an effective date."
00CS FOR SENATE BILL NO. 129(FIN) 01 "An Act relating to state procurement; and providing for an effective date." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. AS 36.30.010(a) is amended to read: 04 (a) The commissioner shall appoint to the partially exempt service the chief 05 procurement officer of the state. The chief procurement officer must have at least five 06 years of prior experience in public procurement, including large scale procurement of 07 supplies, services, or professional services, and must be a person with demonstrated 08 executive and organizational ability. The chief procurement officer may be removed 09 by the commissioner only for cause. The term of office of the chief procurement 10 officer is six [FOUR] years. 11 * Sec. 2. AS 36.30.010 is amended by adding new subsections to read: 12 (c) While a person performs the duties of the chief procurement officer under 13 this chapter, the person may not be employed in or appointed to another position with 14 the state.
01 (d) The annual salary of the chief procurement officer is range 23 of the salary 02 schedule established in AS 39.27.011. 03 * Sec. 3. AS 36.30.080(c) is amended to read: 04 (c) If the department, legislative branch, or judicial branch intends to enter into 05 or renew a lease of real property [OR LEASE-PURCHASE AGREEMENT, EXCEPT 06 AN AGREEMENT RELATED TO A REFINANCING,] with an annual rent to the 07 department, legislative branch, or judicial branch that is anticipated to exceed 08 $1,000,000, or with total lease payments that exceed $10,000,000 for the full term of 09 the lease, the department, legislative branch, or judicial branch shall provide notice to 10 the legislature. If the department, legislative branch, or judicial branch intends 11 to enter into or renew a lease-purchase or lease-financing agreement for real 12 property, the department, legislative branch, or judicial branch shall provide 13 notice to the legislature. The notice must include the anticipated annual lease 14 obligation amount, the anticipated total construction, acquisition, or other costs of the 15 project, and the total lease payments for the full term of the lease, if the agreement 16 is a lease-purchase or lease-financing agreement, or if the agreement is a lease 17 other than a lease-purchase or lease-financing agreement and [, IF] the total lease 18 payments for the full term of the lease exceed $10,000,000 [, THE TOTAL LEASE 19 PAYMENTS FOR THE FULL TERM OF THE LEASE]. The department may not 20 enter into or renew an agreement requiring notice under this subsection unless the 21 project has been approved by the legislature by law. An appropriation for the project 22 does not constitute approval of the project for purposes of this subsection. The 23 department may not enter into an agreement under this subsection if the optional 24 renewal period allowed under the agreement exceeds two years. In this subsection, 25 "term" includes defined renewal options. 26 * Sec. 4. AS 36.30.300(a) is amended to read: 27 (a) A contract may be awarded for supplies, services, professional services, or 28 construction without competitive sealed bidding, competitive sealed proposals, or other 29 competition in accordance with regulations adopted by the commissioner. A contract 30 may be awarded under this section only when the chief procurement officer or, for 31 construction contracts or procurements for the state equipment fleet, the commissioner
01 of transportation and public facilities determines in writing that there is only one 02 source for the required procurement or construction. A sole source procurement may 03 not be awarded if a reasonable alternative source exists. The written determination 04 must include findings of fact that support by clear and convincing evidence the 05 determination that only one source exists. Except for procurements of supplies, 06 services, professional services, or construction that do not exceed the amount for 07 small procurements under AS 36.30.320(a) or (b), as applicable [AS 36.30.320(a)], 08 the authority to make the determination required by this subsection may not be 09 delegated. 10 * Sec. 5. AS 36.30.305(a) is amended to read: 11 (a) A contract for supplies, services, professional services, or a construction 12 contract under $100,000, may be awarded without competitive sealed bidding or 13 competitive sealed proposals, in accordance with regulations adopted by the 14 commissioner. A contract may be awarded under this section only when the chief 15 procurement officer [COMMISSIONER], or, for construction contracts under 16 $100,000 or procurements for the state equipment fleet, the commissioner of 17 transportation and public facilities, determines in writing that a situation exists that 18 makes competitive sealed bidding or competitive sealed proposals impractical or 19 contrary to the public interest. Procurements under this section shall be made with 20 competition that is practicable under the circumstance. Except for procurements of 21 supplies, services, professional services, or construction that do not exceed the amount 22 for small procurements under AS 36.30.320(a) or (b), as applicable 23 [AS 36.30.320(a)], the authority to make a determination required by this section may 24 not be delegated. 25 * Sec. 6. AS 36.30.310 is amended to read: 26 Sec. 36.30.310. EMERGENCY PROCUREMENTS. Procurements may be 27 made under emergency conditions as defined in regulations adopted by the 28 commissioner when there exists a threat to public health, welfare, or safety, when a 29 situation exists that makes a procurement through competitive sealed bidding or 30 competitive sealed proposals impracticable or contrary to the public interest, or to 31 protect public or private property. An emergency procurement need not be made
01 through competitive sealed bidding or competitive sealed proposals but shall be made 02 with competition that is practicable under the circumstances. A written determination 03 by the chief procurement officer of the basis for the emergency and for the selection 04 of the particular contractor shall be included in the contract file. The written 05 determination must include findings of fact that support the determination. Except 06 when there is insufficient time for the chief procurement officer to make the 07 written determination required by this section, the chief procurement officer may 08 not delegate the authority to make the determination. 09 * Sec. 7. AS 36.30 is amended by adding a new section to read: 10 Sec. 36.30.315. DETERMINATIONS BY CHIEF PROCUREMENT 11 OFFICER; CRIMINAL PENALTY. (a) In a determination made by the chief 12 procurement officer under AS 36.30.300 - 36.30.310, the chief procurement officer 13 shall independently examine the material facts of the procurement and independently 14 determine whether the procurement is eligible for the procurement method requested. 15 (b) If the chief procurement officer knowingly makes a false statement in a 16 determination made by the chief procurement officer under AS 36.30.300 - 36.30.310, 17 the chief procurement officer is guilty of a class A misdemeanor. 18 * Sec. 8. AS 36.30.370 is amended to read: 19 Sec. 36.30.370. TYPES OF CONTRACTS. Any [SUBJECT TO 20 LIMITATIONS OF THIS SECTION, ANY] type of contract that will promote the best 21 interests of the state may be used, except that the use of a 22 cost-plus-a-percentage-of-cost contract is prohibited. [A COST-REIMBURSEMENT 23 CONTRACT MAY BE USED ONLY WHEN A DETERMINATION IS MADE IN 24 WRITING BY THE PROCUREMENT OFFICER THAT A 25 COST-REIMBURSEMENT CONTRACT IS LIKELY TO BE LESS COSTLY TO 26 THE STATE THAN ANY OTHER TYPE OR THAT IT IS IMPRACTICABLE TO 27 OBTAIN THE SUPPLIES, SERVICES, PROFESSIONAL SERVICES, OR 28 CONSTRUCTION REQUIRED EXCEPT UNDER A COST-REIMBURSEMENT 29 CONTRACT.] 30 * Sec. 9. AS 36.30.610(c) is amended to read: 31 (c) The commissioner of administration or the commissioner of transportation
01 and public facilities, as appropriate, shall, within 15 days from the date the 02 appellant's comments on the protest report are due under AS 36.30.605(c) and (d) 03 [AFTER RECEIPT OF AN APPEAL], notify the appellant of the acceptance or 04 rejection of the appeal and, if rejected, the reasons for the rejection. 05 * Sec. 10. AS 36.30.850(b) is amended by adding new paragraphs to read: 06 (30) contracts that are to be performed in an area outside of the country 07 and that require a knowledge of the customs, procedures, rules, or laws of the area; 08 (31) contracts that are between the Department of Law and attorneys 09 who are not employed by the state and that are for the review or prosecution of 10 possible violations of the criminal law of the state in situations where the attorney 11 general concludes that an actual or potential conflict of interest makes it inappropriate 12 for the Department of Law to review or prosecute the possible violations. 13 * Sec. 11. AS 36.30.150(b) is repealed. 14 * Sec. 12. LEASE EXTENSIONS AUTHORIZED. (a) Notwithstanding AS 36.30, the 15 Department of Administration, the University of Alaska, the legislature, and the court system 16 may extend for up to a maximum extension of five years a real property lease that is entered 17 into under AS 36.30, including procedures and regulations adopted under AS 36.30.005(c) and 18 36.30.020 - 36.30.030, and that is in existence on the effective date of this section if a 19 minimum cost savings of 20 (1) 10 percent can be achieved on the rent due under the lease; or 21 (2) five percent can be achieved on the rent due under the lease and the lessor 22 agrees to make modifications of the leased real property to bring the real property into 23 compliance with the requirements of 42 U.S.C. 12101 - 12213 (Americans with Disabilities 24 Act of 1990). 25 (b) The cost savings under (a) of this section shall be calculated on the remaining term 26 of the lease and any renewals, including extensions allowed under (a) of this section. 27 (c) The Department of Administration, the University of Alaska, the Alaska Court 28 System, and the Legislative Affairs Agency shall submit a quarterly report to the Legislative 29 Budget and Audit Committee detailing the leases extended and the cost savings achieved 30 under (a) - (b) of this section. The first report is due July 1, 1994, and must cover the period 31 from the effective date of this section through March 31, 1994. The subsequent reports shall
01 be made October 1, 1994, January 2, 1995, and April 1, 1995. 02 * Sec. 13. TRANSITIONAL PROVISIONS. (a) With respect to the person holding the 03 position of chief procurement officer on the effective date of this section, the six-year term 04 of the chief procurement officer under AS 36.30.010(a), as amended by sec. 1 of this Act, 05 shall include the time the person holds the position before the effective date of this section. 06 (b) AS 36.30.010(c) and (d), added by sec. 2 of this Act, apply to the chief 07 procurement officer on and after the effective date of this section. 08 (c) AS 36.30.300(a), 36.30.305(a), 36.30.310, 36.30.370, amended by secs. 4 - 6 and 09 8 of this Act, and 36.30.850(b)(30) and (31), added by sec. 10 of this Act, apply to a 10 procurement that begins on or after the effective date of this section. 11 (d) AS 36.30.315, enacted by sec. 7 of this Act, applies to a determination made on 12 or after the effective date of this section. 13 (e) AS 36.30.610(c), amended by sec. 9 of this Act, applies to a protest report filed 14 under AS 36.30.605 on or after the effective date of this section. 15 * Sec. 14. (a) Subsections 12(a) and (b) of this Act are repealed December 31, 1994. 16 (b) Subsection 12(c) of this Act is repealed April 1, 1995. 17 * Sec. 15. If sec. 12 of this Act takes effect after May 1, 1993, sec. 12 of this Act is 18 retroactive to May 1, 1993. 19 * Sec. 16. Sections 12 and 15 of this Act take effect immediately under AS 01.10.070(c).