Legislature(2011 - 2012)HOUSE FINANCE 519
02/21/2012 12:00 PM House FISCAL POLICY
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| Rfp Process | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISCAL POLICY
February 21, 2012
12:05 p.m.
MEMBERS PRESENT
Representative Anna Fairclough, Chair
Representative Alan Austerman
Representative Bob Herron
Representative Lance Pruitt
Representative Tammie Wilson
Representative Scott Kawasaki
Representative Chris Tuck
Representative Craig Johnson (alternate)
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Bill Thomas
Representative Mike Chenault
COMMITTEE CALENDAR
RFP PROCESS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
LAURA PIERRE, Staff
Representative Anna Fairclough
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: explained the RFP process, specifically RFP
540, "Public Policy and Management Consultant."
TINA STRONG, Procurement Officer
Supply
Legislative Administrative Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Testified during discussion on the RFP
process.
DOUG GARDNER, Director
Office of the Director
Legislative Legal and Research Services
Juneau, Alaska
POSITION STATEMENT: Testified during discussion of the rules
for committee meetings.
ACTION NARRATIVE
12:05:36 PM
CHAIR ANNA FAIRCLOUGH called the House Special Committee on
Fiscal Policy meeting to order at 12:05 p.m. Representatives
Fairclough, Johnson, Tuck, T. Wilson, and Austerman were present
at the call to order. Representatives Pruitt, Herron, and
Kawasaki arrived as the meeting was in progress. Also in
attendance were Representatives Thomas and Chenault.
^RFP Process
RFP Process
CHAIR FAIRCLOUGH announced that the only order of business would
be a discussion about the RFP process.
12:05:51 PM
LAURA PIERRE, Staff, Representative Anna Fairclough, Alaska
State Legislature, reported that, in July 2011, the House
Special Committee on Fiscal Policy (HFPY) brought forward RFP
540, "Public Policy and Management Consultant," to allow the
public to better understand the gathering of state government
revenues and its distribution to local governments. She shared
that RFP 540 requested the bidding consultants to provide
current and historical information to the public, to include the
sources and dispersal of state revenue, to suggest a process for
the development of a local budget, and to recommend a procedure
to pursue appropriations from the legislature for funding the
budget. She listed the five requested topics: identify key
individuals and sources in both the legislature and executive
branch of state government for the development of a current and
historical perspective about state revenue; create a library of
policy-neutral documents that include current and historical
information on state revenue and spending; develop a web site
and publish this library on the site; prepare a presentation for
public meetings which summarized the process; and, prepare a
survey to gauge public understanding of state government.
12:07:34 PM
CHAIR FAIRCLOUGH confirmed that she had recently granted a free-
lance reporter an interview regarding allegations being raised
about the RFP process. She directed attention to the three
letters her office had received questioning the openness and
fairness of the process for RFP 540. She established that Joyce
Anderson [Ethics Committee Administrator, Select Committee on
Legislative Ethics] and the leadership of the Alaska House of
Representatives were copied on each letter, with her response.
She denied any contact with the intent of influence toward the
questions raised in the letters. She declared her acceptance,
as the Chair of HFPY, for "full responsibility for the
notification of meetings and the process that we followed." She
stated that she had sought guidance from the procurement
officers and legal counsel after receiving the first letter on
January 25, 2012. She declared that two distinct issues were
now necessary for discussion: (1) had there been a violation of
the open meeting statute and, (2) had there been a fair process
offering for RFP 540. She acknowledged that all discussion
would be "on the record" but that, in the event a question was
raised "that would create an unfair or a harmful event for the
awardee of this contract, we'll need to move into Executive
Session."
12:09:55 PM
MS. PIERRE, in response to Chair Fairclough, reported that HFPY
had conducted four meetings, the first [April 21, 2011] being an
organizational meeting to discuss the direction of the
committee. She observed that she had then contacted the
procurement staff for guidance in writing an RFP, and
Legislative Legal and Research Services for guidance with the
technicality and legality to the RFP process. She reported that
when she had asked about the necessity for public notice of the
committee meetings, the response had been that notice was not
necessary as these committee meetings were "confidential
meetings and specifically on an RFP."
12:11:32 PM
MS. PIERRE directed attention to the July 11, 2011 committee
meeting, featuring discussion for the language and direction of
the RFP.
12:11:45 PM
MS. PIERRE referred to the July 27, 2011 committee meeting,
which had included a representative from Legislative Legal and
Research Services, as well as the Procurement Officer. She
established that the language of RFP 540 had been "fine-tuned."
12:12:02 PM
MS. PIERRE reported on the October 26, 2011 meeting, during
which RFP 540 was evaluated, scored, and awarded to the winning
contractor. She reiterated that a letter received in January
2012 had alleged possible violations, and that the Ethics
Committee Administrator had been contacted.
12:12:46 PM
CHAIR FAIRCLOUGH asked if the HFPY committee members had any
questions about the time frame. She reminded that during the
initial HFPY meeting, she had asked committee members to provide
a definition for deficit spending. She called attention to the
July 11 meeting, at which time each committee member had been
given a fiscal policy binder containing the previous two years'
recommendations by the former fiscal policy working group, with
directions to its website. She listed some of the other
documents on that website.
12:14:21 PM
MS. PIERRE relayed that Representative Doogan had initially been
a HFPY committee member, but that health issues during the
interim had required he be replaced by Representative Kawasaki.
CHAIR FAIRCLOUGH asked if there were any questions about the
composition of the committee.
12:14:55 PM
REPRESENTATIVE TUCK, referencing the first committee meeting
[April 11, 2001], asked if it was allowable to publicly speak
about that meeting, as the committee had been in executive
session.
12:15:30 PM
CHAIR FAIRCLOUGH clarified that, as the first meeting was an
organizational meeting, anything from that meeting could be
discussed. She pointed out that none of the meetings had been
in executive session, but were, instead, confidential meetings.
12:15:59 PM
REPRESENTATIVE TUCK agreed that there had been deliberation
about the organization of the committee, as well as future
fiscal policy, which had included an acknowledgment that there
was not a preparedness to publicly handle any fiscal
emergencies. Referring to the discussion of ways to educate the
public on the revenues and expenditures of the State of Alaska,
he shared that these discussions had led to the conditions for
RFP 540. He reflected that other discussions that day included
the funding of Alaska's government, setting priorities for state
spending, priorities for education, public safety, and public
health and welfare as listed in the Alaska State Constitution,
and the history for the formation of HFPY.
12:17:05 PM
CHAIR FAIRCLOUGH expressed her agreement with Representative
Tuck. She referenced the two aforementioned issues, (1) had
there been a violation of the open meeting statute and (2) had
there been a fair process with the offering of RFP 540.
12:17:51 PM
TINA STRONG, Procurement Officer, Supply, Legislative
Administrative Services, Legislative Affairs Agency, described
the RFP process, referring to a handout entitled, "Request for
Proposals (RFP) Process." [Included in members' packets.] She
called attention to the check list for the RFP process and read
from the pre-RFP activities list: identify need, perform
initial study, estimate budget, secure approval for solicitation
of the project, and secure approval for funding not to exceed a
certain dollar amount. She stated that once all approvals were
received, the RFP activities would begin. This was all
confidential until an award had been made to prevent any unfair
advantage for any bidder. She listed the RFP Activities:
identify an RFP team to ascertain the project overview and the
project schedule, develop evaluation criteria, write the RFP
specifications, review the finished RFP, and approve the RFP to
be issued. She explained that, also during the RFP Activities,
a Proposal Evaluation Committee (PEC) would be selected, and the
RFP would be advertised. She specified that the RFP was issued
for a 21 day period, during which time the proposals were
submitted. At the end of this period, the proposals were
evaluated by the PEC, requests for clarifications were issued to
the offerors, the evaluation criteria was used by the PEC for a
rating, and an award was extended to the winning offeror. She
noted that an approval for necessary funding would be requested
at this time. She stated that a Notice of Intent to Award would
be issued, along with a 10 day protest period. If there were
not any protests, a contract would be drafted, a Notice to
Proceed would be issued, the contract would be executed, and
contract work would begin.
12:21:35 PM
REPRESENTATIVE T. WILSON asked if committee meetings for the RFP
process had to be publicly noticed.
12:21:47 PM
MS. STRONG, in response, explained that, as her expertise was in
the RFP procurement, most of her work was with a RFP drafting
team and that process was confidential.
12:22:18 PM
REPRESENTATIVE KAWASAKI asked when the process for RFP 540 had
begun.
12:22:37 PM
MS. STRONG, in response to Representative Kawasaki, said that
after the House Finance Committee had approved the project on
April 17, 2011, she was contacted by Ms. Pierre to discuss
initiation of the RFP process. She relayed that she had worked
with the offices of Representatives Austerman and Fairclough, as
well as Legislative Legal Counsel, to draft the RFP, and that it
was offered for 21 days beginning on September 14, 2011 and
closing on October 6. After closing, the committee had
evaluated the proposals for 28 days before making its selection,
and then followed this with the 10 day protest period. She
declared that the entire process had extended over an eight
month span.
12:24:17 PM
CHAIR FAIRCLOUGH opened discussion to the committee. She
declared that Doug Gardner, Director of Legislative Legal and
Research Services, had been present during conversations after
receipt of the first letter regarding violations, and had
expressed his agreement that the process had been followed and
that RFPs were confidential. She relayed that Mr. Gardner had
declared there to be ambiguity in [Legislative] Uniform [Rule]
23, and had suggested that she review this rule regarding the
open meetings act. She stated that after reviewing the rule,
she had contacted the house leadership sharing her belief that
an ambiguity existed for scheduling subcommittee meetings during
the interim. She explained that she had then sent a letter to
the Chair of the House Rules Standing Committee [Representative
Johnson] outlining her finding for this ambiguity and her
subsequent actions.
12:25:39 PM
REPRESENTATIVE TUCK, clarifying that the House Special Committee
on Fiscal Policy was not a subcommittee, opined that, as there
were different [Legislative Uniform] Rules for a special
committee and a subcommittee, this had caused the confusion. He
proposed that a clarification for HFPY as a special committee
would resolve this.
12:26:37 PM
CHAIR FAIRCLOUGH returned attention to the letters that she had
received. She stated that the first letter had been received on
January 25, 2012, and was followed by two more letters. She
stipulated that it was the third letter which had instigated
this meeting. She offered her belief that, as the Select
Committee on Legislative Ethics had been notified of questions
regarding RFP 540, the process had become confidential and she
should not contact the other committee members. She detailed
that should there be any violation of the RFP process or the
[Legislative Uniform Rules], the Select Committee on Legislative
Ethics would review the project, interview each person involved,
and determine if there was a violation. She confirmed that, as
the reporter who had contacted her was in possession of a
document labeled confidential, this had precipitated her
agreement to an interview with the reporter, and her subsequent
contact with Ms. Anderson, Ethics Committee Administrator. She
shared that she had asked if she would be in violation if she
disclosed any formal documents that she currently possessed, and
that Ms. Anderson had responded that, as no formal complaint had
been filed, there was not any violation. She declared the
process for RFP 540 to be complete, intact, and valid, with no
unfair practice, and no outside development. She confirmed that
she had nothing to hide regarding the process, and she accepted
responsibility for any violation.
12:28:53 PM
REPRESENTATIVE KAWASAKI asked if a representative from
Legislative Legal and Research Services was available to answer
questions. He asked for an opinion, pertaining to the
allegation of a violation for the scheduling of open meetings,
whether there was "exposure ... from a person who is not awarded
that particular RFP, under these circumstances."
12:30:14 PM
CHAIR FAIRCLOUGH cited that any legal advice would necessitate a
motion to move to Executive Session in order to protect the
process for RFPs. She declared her desire "to stay in the open
and on the record on this issue."
12:30:25 PM
DOUG GARDNER, Director, Office of the Director, Legislative
Legal and Research Services, offered a hypothetical, general
response to allow this discussion to be conducted outside of
Executive Session. He declared that "the open meeting statute,
per se, doesn't apply to the legislature anymore, there were
changes made..." He offered his belief that these changes had
occurred in 2004-5 with a change to the statute applicable to
open meetings for the executive branch with relationship to the
legislature. He declared this to be an important point, as it
was assumed that the Select Committee on Legislative Ethics
would provide guidance for "what types of notice would be
required." He opined that this did not happen, and
subsequently, changes were made to AS 24.60.037, and this "left
somewhat of a vacuum as far as what notice is required during
the interim." He affirmed that the requirement for the
timelines of notification was waived occasionally during the
session. He referred to Legislative Uniform Rules 23(e)(3),
"Committee Meetings," which declared that the session rules as
outlined in Legislative Uniform Rules 23(a)-(d) did not apply
during the interim. He offered his belief that his office had
advised, since 2006, that "notice should be reasonable under the
circumstances." He paraphrased AS 24.60.037(a): "meetings of a
legislative body need to be open to the public in accordance
with the open meetings guidelines established in this section."
He pointed out that, as this section referenced the Legislative
Uniform Rules, it created an ambiguity. He confirmed that a
legislator was not required to participate in a meeting which
was in violation of these guidelines, and could feel an ethical
obligation to not participate. He offered his belief that a
person could read Legislative Uniform Rule 23(e), and, depending
on their experience and awareness of the issue, decide that it
was not necessary to provide notice of an interim meeting. He
concluded that there was an ambiguity between the duty to
provide notice to a meeting during the interim, and the duty of
an individual legislator to attend a meeting of a legislative
body which was not noticed. He offered a definition for open
notice during the interim to be "some reasonable notice under
the circumstances in the interim."
12:35:30 PM
REPRESENTATIVE KAWASAKI asked which prevailed if there was a
conflict between Legislative Uniform Rule 23(e) and AS
24.60.037(a).
MR. GARDNER replied that AS 24.60.037(e) declared that the
Legislative Uniform Rules would prevail in any conflict. He
offered his belief that there would be a benefit to clarify the
requirements for notice to a meeting during the interim. He
shared that Legislative Legal and Research Services had offered
the guideline of "reasonable under the circumstances."
12:36:54 PM
REPRESENTATIVE TUCK, directing attention to Legislative Uniform
Rules 23(a)-(d), stated that this referred to "how to notice,
that's not what gets noticed." He asked for direction as to
what should be noticed.
MR. GARDNER, in response, directed attention to AS 24.60.037(b),
and paraphrased: "that a meeting occurs when a majority of the
members of the legislative body are present and action,
including voting, is or could be taken or if a primary purpose
of the meeting is discussion of legislation or state policy."
He assessed that this statute dictated that Legislative Uniform
Rule 23 takes effect for any meeting open to the public and
other members of the legislature.
12:38:01 PM
REPRESENTATIVE TUCK, stating that Legislative Uniform Rules
23(a)-(d) expressly demonstrated how a meeting would be noticed
and that 23(e) determines special conditions for how to notice,
asked to clarify that 23(e) did not eliminate the necessity to
notice.
MR. GARDNER agreed that Legislative Uniform Rules 23(a)-(d) were
a mechanism, and that 23(e) stated that the mechanism was not
applicable during the interim. He conveyed that 23(e) did not
provide any more clarity for notice during interim.
12:39:33 PM
REPRESENTATIVE TUCK questioned whether 23(e) eliminated the
responsibility for any committee to notify the public during the
interim.
MR. GARDNER, in response, confirmed that 23(e) stated that
23(a)-(d) did not apply during the interim, but that 23(e) did
not eliminate a notice requirement during the interim because of
the requirements in AS 24.60.037(b).
REPRESENTATIVE TUCK asked to clarify that notification was
required during interim, although 23(a)-(d) were not obligatory.
MR. GARDNER declared that this was now an interpretation for
what was reasonable notice under the circumstances.
12:40:33 PM
CHAIR FAIRCLOUGH declared this to be "a perfect demonstration of
the ambiguity that remains." She asked if there were any
further questions regarding the process or the fairness for RFP
540.
12:40:58 PM
REPRESENTATIVE TUCK expressed a concern for his perception of
HFPY as a subcommittee of the House Finance Committee.
CHAIR FAIRCLOUGH pointed out that HFPY had been established as a
special committee, and then became a RFP team. She determined
that this allowed other members of the public to be present.
She said: "if I wouldn't have included all of you, I wouldn't
be here today. I was trying to be inclusive so that everyone
here, around the table, would have skin in the game to want to
see a fiscal policy conversation go forward, but because that
happened, there was a majority ... of the special committee of
the House Fiscal Policy that created the problem and the
ambiguity in Rule 23." She asked Mr. Gardner for any
clarification.
12:42:05 PM
MR. GARDNER, in response, stated that the rules were clear:
when you have more than a majority of a committee,
that you're in that situation. I also would point out
however, the rules do cover subcommittees, and if this
body had, this committee had created a subcommittee,
it still would have had to have been reasonable notice
under the circumstances. Nevertheless, you're
correct, the rule makes it clear that when the
majority of a committee meets, that the notice
requirement, the open meeting requirement is there.
12:42:39 PM
REPRESENTATIVE TUCK declared that his questions were intended to
"help us all in knowing how to move forward." He confirmed his
desire to ensure that the public perception was also correct.
He admitted that two of the aforementioned letters had initiated
his concern about the need to publicly notice a meeting, even if
this was for an executive session. He questioned the difference
between a confidential meeting and an executive session. He
pointed out that other legislative members could be included in
an executive session. He opined that although the committee
would have had the same results, he had concerns for the public
perception of the HFPY meetings. He established that these
answers to the committee questions would now allow the committee
to move forward.
12:44:25 PM
REPRESENTATIVE T. WILSON, in reference to the fairness of the
RFP, stated that the process was clear and the committee had
specifically discussed its role in grading the RFP. She
observed that the committee had acted as a team during the RFP
process, and she expressed her agreement with Representative
Tuck that the results would have been the same.
12:45:40 PM
CHAIR FAIRCLOUGH asked if there were any other comments.
12:45:48 PM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fiscal Policy meeting was adjourned at
12:45 p.m.
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