Chapter
121
2008 -- H 8435 SUBSTITUTE A
Enacted 07/01/08
A N A C T
RELATING TO STATE
AFFAIRS AND GOVERNMENT
Introduced By: Representatives Lima, Ehrhardt, Gablinske, Fox, and Pacheco
Date Introduced: June 21, 2008
It is
enacted by the General Assembly as follows:
SECTION
1. Chapter 42-148 of the General Laws entitled "Privatization of State
Services"
is hereby amended by adding thereto the following section:
42-148-9.
Severability. – If any provision of this chapter, or the application
of this
chapter
to any person or circumstances is held invalid by a court of competent
jurisdiction, the
remainder
of the chapter and the application of that provision to other persons or
circumstances
shall
not be affected.
SECTION
2. Sections 42-148-2, 42-148-3, 42-148-6 and 42-148-8 of the General Laws
in
Chapter 42-148 entitled "Privatization of State Services" are hereby
amended to read as
follows:
42-148-2.
Definitions. -- When used in this chapter:
(a) "In-house costs" means a detailed budget breakdown of the current
costs of providing
the
service or program proposed for privatization.
(b) "Statement of work and performance standards" means a clear
statement of the nature
and
extent of the work to be performed with measurable performance standards as set
forth in
section
42-148-3(b)(2) of this chapter.
(c) "In-house bid" shall mean the cost of the proposal proffered by
in-house state
programs
and employees and their representatives pursuant to section 42-148-3(b)(3) of
this
chapter.
(d) "Cost comparison" means an analysis of the comparative costs of
providing the
service
in-house or by privatization.
(e) "Conversion differential" means transition costs and costs
associated with starting up
or
closing down during conversion to purchase of service purchased
services or in the event of the
need to
bring services back in-house.
(f) "Transition costs" means the cost of contracting including
monitoring vendors for
accountability,
costs associated with unemployment compensation, payment of accrued leave
credits,
bumping, and retention factors for those with statutory status. Transitional
Transition
costs
shall not include department overhead or other costs that would continue even
if the
services
were privatized.
(g)
"Privatization or privatization contract" means an agreement or
combination or series
of
agreements by which a non-governmental person or entity agrees with an agency
to provide
services
expected to result in a fiscal year expenditure of at least one hundred fifty
thousand
dollars
($150,000) (as of July 1 of each year, the amount shall increase to reflect
increases in the
consumer
price index calculated by the United States Bureau of Labor Statistics for all
urban
consumers
nationally during the most recent twelve (12) month period for which data are
available
or more), which would contract services which are substantially similar to and
in
replacement
of work normally performed by an employee of an agency as of June 30, 2007.
"Privatization"
or "privatization contract" excludes:
(1)
Contracts resulting from an emergency procurement;
(2)
Contracts with a term of one hundred eighty (180) days or less on a
non-recurring
basis;
(3)
Contracts to provide highly specialized or technical services not normally
provided by
state
employees;
(4)
Any subsequent contract which: (a) renews or rebids a prior privatization
contract
which
existed before June 30, 2007; or (b) renews or rebids a privatization contract
that was
subject
to the provisions of this statute after its enactment; and
(5)
An agreement to provide legal services or management consulting services.
42-148-3.
Preclosure analysis. -- (a) Prior to the closure, consolidation or
privatization
of any
state facility, function or program, the director of administration or his or
her designee,
shall
conduct a thorough cost comparison analysis and evaluate quality performance
concerns
before
deciding to purchase services from private vendors rather than provide services
directly.
(b) The director of administration shall, at least sixty (60) days prior to
issuing requests
for
bids or proposals, notify the
bargaining representatives of state employees who will be
directly
impacted by a potential privatization in writing at least six (6) months in
advance of its
consideration
of privatizing a state service and
complete the following process:
(i) Document the current in-house costs of providing the services with a
detailed budget
breakdown.
The in-house cost shall include any department overhead and other costs that
would
continue
even if the service was contracted out.
(ii) Prepare a statement of work and performance standards which shall form the
basis
for the
requests for proposals and which shall include the following:
(A) A clear statement of work with measurable performance standards including
qualitative
as well as quantitative standards that bidders must meet or exceed;
(B) Requirements that contractors meet affirmative action, disability and other
nondiscriminatory
and service standards currently required of state agencies.
(C) A clear format that will enable comparison of competitive bids and in-house
bids.
The
format must require detailed budget breakdowns.
(c) Prior to the issuance of the RFP current public employees and program
recipients
must be
notified of the intent to solicit bid proposals and of the decision timeline. Additionally,
at
least
sixty (60) calendar days prior to the issuing of a request for proposals, the
cost analysis and
statement
of work shall be sent to the bargaining representatives of state employees who
will be
directly
impacted by a potential privatization.
(d) If the statement of work and performance standards differs from the
current in-house
program
procedures and requirements or if current state program employees and their
representatives
believe that they could perform the work more efficiently, an in-house state
work
group Prior to, or up until the time when a prospective
offeror is required to submit to the state a
proposal
for a privatization contract, directly impacted state employees and their
bargaining
representatives shall be afforded an opportunity to present a new
cost estimate, reflecting any
innovations
that they could incorporate into the work performance standards. This new cost
estimate
shall be deemed an in-house bid, which shall form the basis for the eventual
cost
comparison.
The director shall provide technical and informational assistance to the
in-house
state
work group in its preparation of an in-house bid.
(e) Prior to or at any time before or after the normal procurement process,
the The
director
may elect to accept the in-house bid or proceed with the normal procurement
process to
prepare
a request for proposal ("RFP")
which must:
(i) Incorporate the statement of work and performance standards, and
(ii) Require bidders to meet the same statement of work performance standards
as would
be
expected by an required of the
final in-house cost estimate; and
(iii) Include bid forms requiring a sufficiently detailed breakdown of cost
categories to
allow
accurate and meaningful comparisons., if applicable.
(f) The in-house bid developed pursuant to subsection (d) of this section shall
be kept
confidential
from bidders.
42-148-6.
Appeal. -- (a) Before any award is final, the affected parties,
which shall
include
program recipients, state employees and their representatives shall have a
right to appeal
the
award decision of the director of the department of administration.
(b) The parties shall have sixty (60) days from the date of the award to file
an appeal. No
contracts
shall be awarded or services contracted to vendors if an appeal is pending.
(c) All documentation supporting the cost and quality comparison shall be made
available
to the affected parties upon request after the final decision has been made.
(d) All appeals of the final decision of an award shall be filed in superior
court in
Providence
County.
Before
any award is final, state employees or their bargaining representatives shall
have a
right
to protest the award decision within thirty (30) days to the director of
administration. The
director
of administration shall have no more than fifteen (15) days to render a
decision. Any
state
employees or their bargaining representative that files a protest shall have
thirty (30) days
from
the director's decision to file an appeal to the superior court, Providence
County. The
superior
court shall determine within thirty (30) days of filing whether to stay the
award or allow
the
procurement to proceed. Until such time as the superior court makes this
determination, no
final
award by the state may be made.
42-148-8.
Applicability. – (a) The process set forth in this chapter shall
apply to
privatization
contracts as defined in subsection 42-148-2(g).
(b)
Notwithstanding any general law or special law to the contrary, no award shall
be
made or
privatization contract entered into by the state of Rhode Island unless and
until the
processes
and procedures outlined in sections 42-148-3, 42-148-4 and 42-148-5 have been
fully
complied
with in their entirety. All of the aforementioned sections shall apply to all
pending
awards
and pending privatization contracts.
SECTION
3. Section 37-2.3-3 of the General Laws in Chapter 37-2.3 entitled
"Government
Oversight and Fiscal Accountability Review Act" is hereby amended to read
as
follows:
37-2.3-3.
Definitions. -- As used in this chapter, the following terms shall have
the
following
meanings:
(1) "Agency" includes any executive office, department, division,
board, commission, or
other
office or officer in the executive branch of the government.
(2) "Private contractor employee" includes a worker directly employed
by a private
contractor,
as defined in this section, as well as an employee of a subcontractor or an
independent
contractor
that provides supplies or services to a private contractor.
(3) "Services" includes, with respect to a private contractor, all
aspects of the provision
of
services provided by a private contractor pursuant to a privatization contract,
or any services
provided
by a subcontractor of a private contractor.
(4) "Person" includes an individual, institution, federal, state, or
local governmental
entity,
or any other public or private entity.
(5) "Privatization contract" is an agreement or combination or
series of agreements by
which
a nongovernmental person or entity agrees with an agency to provide services,
valued at
one
hundred thousand dollars ($100,000) or more, which are substantially similar to
and in lieu
of,
services heretofore provided, in whole or in part, by regular employees of an
agency.
"Privatization
or privatization contract" means an agreement or combination or series of
agreements
by which a non-governmental person or entity agrees with an agency to provide
services
expected to result in a fiscal year expenditure of at least one hundred fifty
thousand
dollars
($150,000) (as of July 1 each year, the amount shall increase to reflect
increases in the
consumer
price index calculated by the United States Bureau of Labor Statistics for all
urban
consumers
nationally during the most recent twelve (12) month period for which data are
available
or more), which would contract services which are substantially similar to and
in
replacement
of work normally performed by an employee of an agency as of June 30, 2007.
"Privatization"
or "privatization contract" excludes:
(1)
Contracts resulting from an emergency procurement;
(2)
Contracts with a term of one hundred eighty (180) days or less on a
non-recurring
basis;
(3)
Contracts to provide highly specialized or technical services not normally
provided by
state
employees;
(4)
Any subsequent contract which: (a) renews or rebids a prior privatization
contract
which
existed before June 30, 2007; or (b) renews or rebids a privatization contract
that was
subject
to the provisions of this statute after its enactment; and
(5)
An agreement to provide legal services or management consulting services.
(6) "Privatization contractor" is any contractor, consultant,
subcontractor, independent
contractor
or private business owner that contracts with a state agency to perform
services in
accordance
with the definition of a "privatization contract." which are substantially similar to and
in
lieu of services heretofore provided, in whole or in part, by employees of an
agency.
SECTION
4. This act shall take effect on January 1, 2009.
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LC03258/SUB A
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