PA 07-202—sSB 707

Public Safety and Security Committee

Government Administration and Elections Committee

Labor and Public Employees Committee

Appropriations Committee

AN ACT CONCERNING THE PAY SCALE OF THE STATE POLICE, THE PREQUALIFICATION PROGRAM ADMINISTERED BY THE DEPARTMENT OF ADMINISTRATIVE SERVICES AND CERTAIN REVISIONS TO THE FREEDOM OF INFORMATION ACT

SUMMARY: This act makes numerous substantive and technical changes in the laws regarding the prequalification of contractors and substantial subcontractors who work on state administrative services and state and municipal building construction contracts that are at least partially state-funded, including increasing, from two to five years, the maximum amount of time a contractor may be disqualified from bidding on a Department of Administrative Services (DAS) contract. It makes a public agency potentially ineligible for state funds if it accepts a contractor's bid without (1) proof that he or she is prequalified and (2) a statement of his or her qualifications.

It exempts state building construction contracts valued above $500,000 from the requirement that state and municipal agencies complete an evaluation of the contractor.

It requires all state public works projects, other than those administered by the Department of Transportation (DOT), to be awarded on the basis of competitive bidding to the lowest responsible prequalified contractor. The law already requires state building construction contracts, other than statutorily specified non-bid (fast-track) projects, to be awarded in this way.

The act requires surety contracts for public building construction contracts with the state or a municipality estimated to cost more than $500,000 to contain certain language.

The act broadens security-related exemptions under the Freedom of Information Act (FOIA). It narrows the Department of Public Works (DPW) commissioner's role in determining whether certain records should be exempt because disclosure could result in a safety risk.

It requires the Freedom of Information Commission to (1) take evidence and receive testimony from parties during preliminary hearings and (2) specify its findings of fact and conclusions of law in any decision it issues after a final hearing. It removes a requirement for the commission to make printed reports of its decisions and opinions available to the public for not less than $28.

Lastly, the act requires the administrative services commissioner, within available appropriations, to (1) study the pay scale for sworn state police officers to identify any pay inequities and (2) report her findings and recommendations to the Public Safety and Security Committee by February 1, 2008.

EFFECTIVE DATE: Upon passage, except that (1) changes to prequalification that by law are not effective until October 1, 2007 and (2) security-related FOIA provisions are effective on October 1, 2007.

PREQUALIFICATION

By law contractors and, beginning October 1, 2007, substantial subcontractors, must prequalify with DAS before they perform work on a state building construction project valued at over $500,000. The requirement applies to substantial subcontractors whose work on the project is estimated to cost more than $500,000. The DAS commissioner gives contractors and substantial subcontractors a certificate, generally valid for one year, when they prequalify.

Prequalification Applicants

The act requires anyone who performs work on a state building construction project to prequalify, whether or not they actually bid on the contract. The requirement does not apply to DOT construction projects. DOT highway and bridge projects are already exempt. By law, DOT administers its own prequalification program.

The act requires the DAS commissioner to give people applying for, rather than those awarded, prequalification (1) notice of the ban against making or soliciting campaign contributions on behalf of political committees, party committees, or exploratory or candidate committees established by candidates for legislative or statewide offices and (2) the penalties for violations.

Prequalification Applications

The act eliminates a requirement for the commissioner to establish a schedule of application fees for subcontractors. By law, contractors and substantial subcontractors pay an application fee based on their aggregate work capacity rating. The fees range from $600 to $2,500.

The law requires the DAS commissioner to review the evaluations of each applicant's performance on public and private projects for at least the immediately preceding five years. Beginning October 1, 2007, the look-back period would have been reduced to the immediately preceding three years. The act removes the mandatory look-back period and instead allows the commissioner to review evaluations from any period.

The act allows the DAS commissioner to deny a person's prequalification if she finds that he or she included a materially false statement in his or her application, update statement, or update bid statement. It also allows her to revoke prequalification for a false statement in an update bid statement. She can already revoke a person's prequalification in the other two situations. She must send notice of any revocation to UConn's president. She must establish an update bid statement that bidders may use when submitting a bid.

Prequalification Renewal, Suspension, and Termination

The act prohibits the DAS commissioner from renewing a prequalification certificate for the same reasons that she cannot issue a new one. This means she cannot renew a certificate if the contractor or substantial subcontractor is disqualified because of labor law violations or because a principal or key employee was convicted or pled guilty or nolo contendere (no contest) during the past five years to an act or omission that could have caused his or her disqualification.

The act allows the commissioner to suspend, for up to three months, a contractor's, but not a subcontractor's, prequalification certificate during the revocation hearing process if she finds probable cause to believe the contractor engaged in conduct that significantly undermines his or her skill, ability, or integrity. She must send notice of the suspension by certified mail, return receipt requested, and include the reasons for it and its duration. The contractor may file a written response to the notice within 30 days after receipt, which the commissioner must review within the same 30 days.

The act allows an awarding authority to terminate a contract with a contractor if the authority has substantial evidence that the contractor used fraud to get or keep his or her prequalification or included materially false information in his or her update bid statement. Just as with a false statement in an update statement (statement of qualifications to work on a particular project), the act requires the authority to give the DAS commissioner written notice of the false update bid statement not later than 30 days after discovering it. The act requires the commissioner to give UConn's president and the commissioners of public works and consumer protection written notice of the false update bid statement. It also requires her to give the president notice of any false update statement.

DAS Contracts

The act increases, from two to five years, the maximum amount of time a contractor may be disqualified from bidding on a DAS contract. By law, the DAS commissioner may disqualify a contractor for any behavior that indicates he or she would be an irresponsible state contractor.

SURETY BOND

Whenever the law requires a contractor to post a surety bond on a state or municipal building construction project that is, at least, partially state-funded and estimated to cost more than $500,000, the act requires the contract between the surety company and the contractor to include certain language. The contract must state:

In the event that the surety assumes the contract or obtains a bid or bids for completion of the contract, the surety shall ensure that the contractor chosen to complete the contract is prequalified pursuant to section 4a-100 of the Connecticut General Statutes in the requisite classification and has the aggregate work capacity rating and single project limit necessary to complete the contract.

FREEDOM OF INFORMATION COMMISSION

Disclosure of Sensitive Records

The law exempts certain records from disclosure under FOIA, except to law enforcement agencies, if there are reasonable grounds to believe disclosure may result in a safety risk. Under prior law, the DPW commissioner determined reasonable grounds for municipal, district, regional, or executive branch agency records, after consulting with the pertinent agency's chief executive officer.

The act narrows the DPW commissioner's role, requiring him to make the determination for executive branch state agency records after he consults with the chief executive officer of the state agency. It requires the Department of Emergency Management and Homeland Security (DEMHS) to make the determination for all other municipal, district, and regional agency records, after consulting with the agency's chief executive officer.

Under existing law, agencies must notify the DPW commissioner of FOIA requests, in a manner the commissioner prescribes. The act requires them to notify the DEMHS commissioner, also as he prescribes. People denied access to security-related records may file an appeal with the Freedom of Information Commission against the chief executive officer of the agency that issued the directive to withhold the records. Under prior law, appeals against executive branch agencies were brought against the DPW commissioner.

The act broadens security-related exemptions under FOIA. By law, emergency plans and emergency recovery and response plans are exempt from disclosure. The act specifies that these emergency preparedness, response, recovery, and mitigation plans include plans provided by anyone to a state or local emergency management agency or official. The act also exempts all logs and other documents that contain information on the movement or assignment of security personnel. Prior law limited the exemption to logs and other documents at government-owned or -leased facilities.

Hearings on Complaints Regarding Executive Sessions

By law, public agencies can hold meetings in executive or closed sessions for a variety of different reasons. However, they must state the reason in public and a majority of the agency members present and voting must agree with the decision. Members of the public can appeal an agency's decision on a variety of different grounds.

During the preliminary hearing to determine whether probable cause exists that the agency violated the law, the act requires the commission to take evidence and receive testimony from the parties. It requires the commission's final decision to include its findings of fact and conclusions of law.

BACKGROUND

Update Statement

The DAS commissioner issues an update statement for prequalification certificates, renewals, and upgrades. The statement has space for information on:

1. all of the projects the contractor has completed since his or her prequalification certificate was issued or renewed;

2. all projects the contractor has under contract at that time, including the percentage incomplete;

3. the names and qualifications of personnel who will supervise the contract;

4. any significant change in the contractor's financial position or corporate structure since the certificate was issued or renewed; and

5. any other relevant information.

Safety Risk

“Safety risk” includes the risk of harm to anyone or any government-owned or -leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, them. “Government-owned or -leased institution or facility” includes facilities owned or leased by a public service company, certified telecommunications provider, water company, or municipal utility that furnishes electric, gas, or water service. It does not include an institution or facility owned or leased by the federal government.

Records exempt from disclosure when there are reasonable grounds to believe disclosure may result in a safety risk include:

1. security manuals or reports;

2. engineering and architectural drawings of government-owned or -leased institutions or facilities;

3. operational specifications of security systems used at any government-owned or -leased institution or facility, except for a general description and quality and cost of the system;

4. training manuals prepared for government-owned or -leased institutions or facilities that describe security procedures, emergency plans, or security equipment; and

5. internal security audits of government-owned or -leased institutions or facilities.

OLR Tracking: SNE: sp: pf: ro