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