UNAPPROVED DRAFT BILL -- Subject to Change Without Notice!
BILL NO.
INTRODUCED BY
(Primary Sponsor)
A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING FOR FULL DISCLOSURE IN THE STATE CONTRACTING PROCESS; PROVIDING FOR DISCLOSURE OF CERTAIN MATTERS IN CONTRACTS FOR PRIVATIZATION OF STATE PROGRAMS, FUNCTIONS, OR SERVICES; EXCLUDING DOCUMENTS CONTAINING INFORMATION OF PRIVATE SALARIES, TRADE SECRETS, OR MATTERS INVOLVING PRIVACY INTERESTS RECOGNIZABLE UNDER THE MONTANA CONSTITUTION; AMENDING SECTIONS 2-8-303, 18-1-118, 18-4-126, 18-4-303, AND 18-4-304, MCA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 2-8-303, MCA, is amended to read:
"2-8-303. Privatization plan -- contents. (1) An agency proposing to privatize a program shall prepare a privatization plan that includes the following:
(a) a description of the program to be privatized, including references to the legal authority under which the program was created;
(b) detailed budget information that includes a list of expenditures for the 2 most recent fiscal years and the sources of revenue for the program;
(c) a list of all personnel currently employed in the program and the estimated effect of the proposed privatization on their employment status;
(d) a listing of the assets of the program and their proposed disposition if the plan is implemented;
(e) an estimate of the cost savings or any additional costs resulting from privatizing the program, compared to the costs
of the existing, nonprivatized program. Additional costs must include the estimated cost to the state of inspection,
supervision, and monitoring of the proposed privatization and the costs incurred in the discontinuation of such a contract.
(f) the estimated current and future economic impacts of the implementation of the plan on other state programs, including public assistance programs, unemployment insurance programs, retirement programs, and agency personal services budgets used to pay out accrued vacation and sick leave benefits;
(g) the estimated increases or decreases in costs and quality of goods or services to the public if the plan is implemented;
(h) the estimated changes in individual wages and benefits resulting from the proposed privatization;
(i) a narrative explanation and justification for the proposed privatization.
(2) To implement the privatization plan, an agency may transfer funds between budget categories.
(3) A contract entered into to implement a privatization plan must include a provision authorizing the public to examine documents directly relating to the privatized program to the same extent that was available while the program was being performed by the state agency. However, the documents may not include information disclosing the salary of a private individual, a trade secret as defined by 30-14-402, or information in which a private individual or business entity has a privacy interest recognizable under Article II, section 10, of the Montana constitution. The contract must also require, except as otherwise provided by this section, that the private entity provide access to individuals and information concerning the privatized program to the same extent that access was available while the program was being performed by the state agency."
Section 2. Section 18-1-118, MCA, is amended to read:
"18-1-118. (Temporary) Access to records of contracting entities and foundations. (1) Money may not be spent by a state agency under a contract with a nonstate entity unless the contract contains a provision that allows the legislative auditor sufficient access to the records of the nonstate entity to determine whether the parties have complied with the terms of the contract. The access to records is necessary to carry out the functions provided for in Title 5, chapter 13. A state agency may terminate a contract, without incurring liability, for the refusal of a nonstate entity to allow access to records as required by this section.
(2) Public money or public property may not be transferred to a private foundation or organization established for the promotion, support, or encouragement of the university system unless the transfer:
(a) provides the legislative auditor sufficient access to the records of the private foundation or organization to allow compliance with Article VIII, section 12, and Article X, section 9(2)(d), of the Montana constitution; and
(b) provides the legislative auditor with annual financial reports that include audited financial statements.
(3) Notwithstanding the provisions of subsection (2), this section does not permit the legislative auditor to audit the financial records of private donors to entities described in subsection (2).
(4) A contract entered into to perform a function or service that was formerly performed by a state agency must include a provision authorizing the public to examine documents relating to the function or service to the same extent that was available while the function or service was being performed by the state agency. However, the documents may not include information disclosing the salary of a private individual, a trade secret as defined by 30-14-402, or information in which a private individual or business entity has a privacy interest recognizable under Article II, section 10, of the Montana constitution. The contract must also require, except as otherwise provided by this section, that the private entity provide access to individuals and information concerning the function or service to the same extent that access was available while the function or service was being performed by the state agency. (Terminates July 1, 2001--sec. 4, Ch. 377, L. 1997.)
18-1-118. (Effective July 1, 2001) Access to records of contracting entities. (1) Money may not be spent by a state agency under a contract with a nonstate entity unless the contract contains a provision that allows the legislative auditor sufficient access to the records of the nonstate entity to determine whether the parties have complied with the terms of the contract. The access to records is necessary to carry out the functions provided for in Title 5, chapter 13. A state agency may terminate a contract, without incurring liability, for the refusal of a nonstate entity to allow access to records as required by this section.
(2) A contract entered into to perform a function or service that was formerly performed by a state agency must include a provision authorizing the public to examine documents relating to the function or service to the same extent that was available while the function or service was being performed by the state agency. However, the documents may not include information disclosing the salary of a private individual, a trade secret as defined by 30-14-402, or information in which a private individual or business entity has a privacy interest recognizable under Article II, section 10, of the Montana constitution. The contract must also require, except as otherwise provided by this section, that the private entity provide access to individuals and information concerning the function or service to the same extent that access was available while the function or service was being performed by the state agency."
Section 3. Section 18-4-126, MCA, is amended to read:
"18-4-126. Public access to procurement information -- records -- retention. (1) Procurement information is a public writing and must be available to the public as provided in 2-6-102 and 18-4-304.
(2) All procurement records must be retained, managed, and disposed of in accordance with the state records management program, Title 2, chapter 6.
(3) Written determinations required by this chapter must be retained in the appropriate official contract file of the department or the purchasing agency administering the procurement in accordance with the state records management program.
(4) A contract entered into to perform a function or service that was formerly performed by a state agency must include a provision authorizing the public to examine documents relating to the function or service to the same extent that was available while the function or service was being performed by the state agency. However, the documents may not include information disclosing the salary of a private individual, a trade secret as defined by 30-14-402, or information in which a private individual or business entity has a privacy interest recognizable under Article II, section 10, of the Montana constitution. The contract must also require, except as otherwise provided by this section, that the private entity provide access to individuals and information concerning the function or service to the same extent that access was available while the function or service was being performed by the state agency."
Section 4. Section 18-4-303, MCA, is amended to read:
"18-4-303. Competitive sealed bidding. (1) An invitation for bids must be issued and must include a purchase description and conditions applicable to the procurement.
(2) Adequate public notice of the invitation for bids must be given a reasonable time before the date set forth in the invitation for the opening of bids, in accordance with rules adopted by the department. Notice may include publication in a newspaper of general circulation at a reasonable time before the bid opening.
(3) Bids must be opened reviewed publicly at the time and place designated in the invitation for bids. Each bidder has the
right to be present, either in person or by agent, when the bids are opened reviewed and has the right to examine and inspect
all bids. The amount of each bid and other relevant information as may be specified by rule, together with the name of each
bidder, must be recorded. The record must be open to public inspection. After Before, during, and after the time of award,
all bids and bid documents must be open to public inspection in accordance with the provisions of 2-6-102 and are subject to
the requirements of subsection (4).
(4) Bids must be available for public inspection when the bids are opened if:
(a) the invitation for bids is issued by a state agency to contract with the private sector to provide services currently
conducted by state employees; and
(b) acceptance of bids would result in the displacement of five or more state employees, except to the extent that they
contain trade secrets, as defined by 30-14-402, or information in which a private individual or business entity has a privacy
interest recognizable under Article II, section 10, of the Montana constitution.
(5)(4) Bids must be unconditionally accepted without alteration or correction, except as authorized in this chapter. Bids
must be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine
acceptability, such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those
criteria that will affect the bid price and be considered in evaluation for award must be objectively measurable, such as
discounts, transportation costs, and total or life-cycle costs. The invitation for bids must set forth the evaluation criteria to be
used. Only criteria set forth in the invitation for bids may be used in bid evaluation.
(6)(5) Correction or withdrawal of inadvertently erroneous bids, before or after award, or cancellation of awards or
contracts based on bid mistakes may be permitted in accordance with rules adopted by the department. After bid opening,
changes in bid prices or other provisions of bids prejudicial to the interest of the state or fair competition may not be
permitted. Except as otherwise provided by rule, all decisions to permit the correction or withdrawal of bids or to cancel
awards or contracts based on bid mistakes must be supported by a written determination made by the department.
(7)(6) The contract must be awarded with reasonable promptness by written notice to the lowest responsible and
responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, including the preferences
established by Title 18, chapter 1, part 1. If all bids exceed available funds as certified by the appropriate fiscal officer and the
low responsible and responsive bid does not exceed the funds by more than 5%, the director or the head of a purchasing
agency may, in situations in which time or economic considerations preclude resolicitation of a reduced scope, negotiate an
adjustment of the bid price, including changes in the bid requirements, with the low responsible and responsive bidder in
order to bring the bid within the amount of available funds.
(8)(7) When it is considered impractical to initially prepare a purchase description to support an award based on price, an
invitation for bids may be issued requesting the submission of unpriced offers, to be followed by an invitation for bids limited
to those bidders whose offers have been qualified under the criteria set forth in the first solicitation."
Section 5. Section 18-4-304, MCA, is amended to read:
"18-4-304. Competitive sealed proposals. (1) The department may procure supplies and services through competitive sealed proposals.
(2) Proposals must be solicited through a request for proposals.
(3) Adequate public notice of the request for proposals must be given in the same manner as provided in 18-4-303(2).
(4) Proposals must be opened, discussed, and otherwise used so as to avoid disclosure of contents a trade secret, as
defined in 30-14-402, or information in which a private individual or business entity has a privacy interest recognizable under
Article II, section 10, of the Montana constitution to competing offerors before, during, and after the process of negotiation
of the contract. A register of proposals must be prepared in accordance with rules adopted by the department and must be
open for public inspection and inspection by competing offerors before, during, and after the time that the contract award is
awarded. After Before, during, and after the time that the contract is executed, except as otherwise provided by this section,
proposal documents may be inspected by the public and competing offerors, and meetings of governmental bodies held to
review proposals and award a contract may be attended by the public and competing offerors, subject to the limitations of
Article II, section 10, of the Montana constitution and the Uniform Trade Secrets Act, Title 30, chapter 14, part 4.
(5) The request for proposals must state the evaluation factors and their relative importance. The award must be made to the responsible and responsive offeror whose proposal best meets the evaluation criteria. Other factors or criteria may not be used in the evaluation. The contract file must demonstrate the basis on which the award is made.
(6) The department may discuss a proposal with an offeror for the purpose of clarification or revision of the proposal. In conducting discussions, there may not be disclosure of any information derived from proposals submitted by competing offerors."
NEW SECTION. Section 6. Effective date. [This act] is effective July 1, 1999.
NEW SECTION. Section 7. Applicability. [This act] applies to contracts entered into or renewed on or after July 1, 1999.
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Latest Version of LC 434 (LC0434.01)
Processed for the Web on January 21, 1999 (1:49PM)
New language in a bill appears underlined, deleted material appears stricken.
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Status of this Bill
| 1999 Session | Leg. Branch HomePrepared by Montana Legislative Services
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