UNAPPROVED DRAFT BILL -- Subject to Change Without Notice!
BILL NO.
INTRODUCED BY
(Primary Sponsor)
A BILL FOR AN ACT ENTITLED: "AN ACT ADDRESSING THE OUTSOURCING OF JOBS BY STATE GOVERNMENT; PROVIDING AN OVERALL STATE ECONOMIC POLICY FOR PROCUREMENT OF PUBLIC GOODS AND SERVICES; REQUIRING CERTAIN INFORMATION IN CONTRACTS, INCLUDING THE LOCATION OF THE HEADQUARTERS FOR CONTRACTORS, SUBCONTRACTORS, AND SUPPLIERS; REVISING RECIPROCITY CONDITIONS FOR PUBLIC CONTRACTING; EXEMPTING CERTAIN CONTRACTS FROM PREFERENCE; TRANSFERRING FROM THE DEPARTMENT OF LABOR AND INDUSTRY TO THE DEPARTMENT OF ADMINISTRATION THE TASK OF DETERMINING CONTRACTOR RESIDENCY; AMENDING SECTIONS 7-5-2309, 18-1-101, 18-1-102, 18-1-106, AND 18-7-107, MCA; AND PROVIDING AN EFFECTIVE DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Policy. (1) The public policy of the state includes recognizing:
(a) cost economies in the procurement of public goods and services as provided in 18-4-122; and
(b) the importance of developing the state's economy to provide for the social and economic prosperity of the state's citizens.
(2) Consideration of both subsections (1)(a) and (1)(b) is important to the state. The legislature intends that the department, when weighing the award of public contracts on the basis of quality as well as a bidder's or responder's ability to fulfill specifications of bids and requests for proposal, include in the department's consideration an evaluation of which contractor will have a positive impact on the Montana economy, including employment and small businesses, in a manner that best represents the criteria in subsections (1)(a) and (1)(b).
(3) This policy is not intended to require a cost-benefit analysis unless otherwise required by statute.
NEW SECTION. Section 2. Location information from contractors. (1) A request for proposals or a sole source contract must require a bidder to include the headquarters location of the bidder and the headquarters locations of any subcontractors or suppliers.
(2) (a) A bidder, subcontractor, or supplier that has a place of business or source of supply for the contract from more than one country, including the United States as one of the countries, shall list "multinational" in lieu of the headquarters location.
(b) If the conditions of subsection (2)(a) apply to a bidder, subcontractor, or supplier headquartered in Montana, the bidder, subcontractor, or supplier shall include the Montana headquarter's location along with the term "multinational".
Section 3. Section 7-5-2309, MCA, is amended to read:
"7-5-2309. Optional bidding preference for county resident. (1) If there are no out-of-state bidders for a contract subject to competitive bid under this part, the contract may be awarded to the lowest and best responsible bidder that is a county resident and that makes a bid that is no more than $500 or 3% higher, whichever is less, than the bid of the lowest responsible bidder that is not a county resident.
(2) If there is one or more out-of-state bidders for a contract for construction, repair, or maintenance of a building, road, or bridge that is in excess of $50,000 and that is subject to competitive bid under this part, the state resident bid preference provided in 18-1-102(1)(a) applies.
(3) For the purposes of this section, "county resident" means a person, corporation, business, or other entity whose principal business location is within the county."
Section 4. Section 18-1-101, MCA, is amended to read:
"18-1-101. Definitions. (1) Unless the context requires otherwise, in this title, "department" means the department of administration provided for in Title 2, chapter 15, part 10.
(2) Unless the context requires otherwise, in this part, the following definitions apply:
(a) "Goods" means supplies, equipment, materials, commodities, and specially manufactured products.
(b) "Information services" means the development, installation, or maintenance of software, hardware, or associated services and infrastructure used to store or transmit information in any form, including voice, video, and electronic data.
(b)(c) "Nonresident bidder" means a bidder whose residence is not in who is not a resident of this state as determined under 18-1-103.
(c)(d) (i) "Public agency" means a department, commission, council, board, bureau, committee, institution, agency, government corporation, or other entity, instrumentality, or official of the legislative, executive, or judicial branch of this state and its political subdivisions, including the board of regents and the Montana university system.
(ii) Public agency does not include a political subdivision for purposes of 18-1-102(1)(b).
(d)(e) "Resident bidder" means a bidder whose residence is in this state as determined under 18-1-103.
(e)(f) "Written" means that whenever written or in-writing determinations or documents are required, the public agency responsible for the procurement may specify an appropriate visual medium, such as by computer transmission or by facsimile machine transmission, in the specifications, contract, or rules of the public agency."
Section 5. Section 18-1-102, MCA, is amended to read:
"18-1-102. State contracts to lowest bidder -- reciprocity -- conditions. (1) In order to provide for an orderly administration of the business of the state of Montana in awarding public contracts for the purchase of goods or information services and for construction, repair, and public works of all kinds, a public agency shall award:
(a) a public contract for construction, repair, or public works to the lowest responsible bidder without regard to residency. However, a resident bidder must be allowed a preference on a contract against the bid of a nonresident bidder from any state or country that enforces a preference for resident bidders. The preference given to resident bidders of this state must be equal to the preference given in the other state or country. unless a preference applies as provided in subsection (2);
(b) a public contract for the purchase of goods and information services to the lowest responsible bidder without regard to residency. However, a resident must be allowed a preference on a contract against the bid of a nonresident if the state or country of the nonresident enforces a preference for residents. The preference must be equal to the preference given in the other state or country unless a preference applies as provided in subsection (2).
(2) The preferences in this section apply whenever the state or country of a nonresident bidder enforces a preference for resident workers or employees. The preference provided in Montana must be applied:
(a) whether the law requires advertisement for bids or does not require advertisement for bids; and
(b) to contracts involving funds obtained from the federal government unless expressly prohibited by the laws of the United States or regulations adopted pursuant to federal laws; and
(c) using the following criteria:
(i) a resident bidder must be given a preference equal to the preference given in the other state or country; and
(ii) if a resident bidder subcontracts with a contractor who is not a resident under 18-1-103 and who is from a state or a country either of which enforce a preference for resident workers or employees, the subcontracting resident bidder may receive a preference only if no other resident bidder submits a bid.
(3) An invitation to bid for a public contract, with or without advertisement, must contain language that indicates preference reciprocity pursuant to this section.
(4) (a) A bid for a public contract must contain information that allows the state to determine the criteria listed in subsection (2), including residency and reciprocity conditions.
(b) A public agency may invalidate a bid that does not contain this information.
(c) A bidder shall include subcontractor information insofar as the information is available.
(5) A public agency may award a public contract under this section without regard to the preferences in subsection (2) if the contract pertains to a state-related event scheduled to take place outside the United States."
Section 6. Section 18-1-106, MCA, is amended to read:
"18-1-106. Department of labor and industry to determine residency of selected contractors -- applications for redetermination -- determination as prima facie evidence. (1) The department of labor and industry shall determine whether or not certain contractors are residents of the state of Montana within the meaning of 18-1-102 and 18-1-103. Any public agency charged by law with the responsibility for the execution of any contract subject to the provisions of 18-1-102 may request that a determination of resident or nonresident status be made by the department of labor and industry. All requests must specify the name and address of the licensed public contractor for whom a determination of resident or nonresident status is required pursuant to 18-1-103.
(2) If a determination is made that a public contractor is not a resident but the public contractor later qualifies as a resident, the contractor may apply to the department of labor and industry for a redetermination of residency. If, upon redetermination, the public contractor is found to qualify as a resident, the contractor must be furnished a letter by the department of labor and industry attesting to resident status.
(3)(2) The determination of by the department of labor and industry that of a preference status for a bidder on a public contractor is or is not a resident contract within the meaning of a resident bidder pursuant to 18-1-102 and or 18-1-103 is prima facie evidence of that fact."
Section 7. Section 18-7-107, MCA, is amended to read:
"18-7-107. State printing, binding, and stationery work. All printing, binding, and stationery work for the state of Montana is subject to the preference in 18-1-102(1)(b). Federal exemptions as specified in 18-1-102(2)(b) apply."
NEW SECTION. Section 8. Codification instruction. [Sections 1 and 2] are intended to be codified as an integral part of Title 18, chapter 1, part 1, and the provisions of Title 18, chapter 1, part 1, apply to [sections 1 and 2].
NEW SECTION. Section 9. Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act].
NEW SECTION. Section 10. Effective date. [This act] is effective July 1, 2005.
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Latest Version of LC 261 (LC0261.01)
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