PA 17-130—sSB 948
Higher Education and Employment Advancement Committee
AN ACT AUTHORIZING GUIDELINES FOR PROGRAMS TO REDUCE STUDENT COSTS AND EXEMPTING CONSTITUENT UNIT QUALIFIED, REVENUE AND NONMONETARY CONTRACTS FROM CERTAIN STATUTORY REQUIREMENTS
SUMMARY: This act limits the applicability of certain state contracting requirements for UConn and the Board of Regents for Higher Education (BOR). Generally, it allows UConn and BOR to enter into certain goods and services contracts without (1) obtaining specified certifications from bidders and contractors or (2) complying with competitive bidding or negotiation requirements. In the latter case, UConn and BOR must first adopt policies for entering into or amending the goods and services contracts covered by the act.
The act also allows the Office of Higher Education, UConn, the Connecticut State University System, the regional community-technical college system, and Charter Oak State College to each establish guidelines encouraging the state's public higher education institutions to implement programs that reduce students' textbook and educational resource costs (§ 1).
Lastly, it makes technical and conforming changes.
EFFECTIVE DATE: July 1, 2017, except the provision on guidelines for reducing textbook and educational resource costs is effective January 1, 2018.
§ 2 — DEFINITIONS
Table 1 lists definitions relevant to the act's provisions.
Table 1: Related Definitions
A contract that is entered into under the state law governing goods and services purchases by public higher education institutions for any of the following:
(1) equipment, supplies, or contractual services;
(2) a personal service agreement; or
(3) a personal property lease
A contract in which a constituent unit of higher education or higher education institution receives monetary consideration from the other entity
A contract where neither the constituent unit (or higher education institution) nor the other entity provides monetary consideration
State and certain other institutional funds
Any (1) funds appropriated or bonds authorized by the legislature; (2) revenue generated from tuition; (3) funds collected from student fees, housing fees, or dining services; (4) revenue generated from athletic sponsorship deals or ticket sales; or (5) revenue collected from the clinical operations of the UConn Health Center and John Dempsey Hospital
§§ 2 & 5-11 — CONTRACTING CERTIFICATIONS
Covered Contracts (§ 2)
The act allows UConn and BOR to enter into certain goods and services contracts (“covered contracts”) without obtaining specified certifications from bidders and contractors. Covered contracts are qualified contracts meeting certain criteria, as well as revenue and nonmonetary contracts that are not qualified contracts.
With respect to qualified contracts, the exemption applies to those entered into or amended on or after July 1, 2017, that (1) do not involve the expenditure of state and certain other institutional funds; (2) are for purchasing equipment, supplies, or services or leasing personal property (a) to be used outside the U.S. and (b) where the other party to the contract is located outside the U.S.; or (3) are a collaboration with another entity.
In the last case, the collaboration must involve at least two of the following: philanthropic support, sponsored research, research collaboration, employment opportunities for students, or some other substantial value to the constituent unit or state.
Covered Certifications (§§ 2 & 5-11)
The certifications covered by the act concern (1) gifts, (2) consulting agreements, (3) state ethics laws, and (4) nondiscrimination and affirmative action requirements. Each of these certifications is described in further detail below.
Gifts (§§ 2 & 6). By law, any principal or key personnel of a person, firm, or corporation that submits bids or proposals for a state public works or goods and services contract, or a lease or licensing arrangement, with a total value of more than $500,000 in a calendar or fiscal year must certify that (1) no gifts were given in connection with the contract; (2) there were no attempts to circumvent the gift prohibition; and (3) the bids or proposals are being submitted without fraud or collusion. The certifications must be made under penalty of false statement, and failure to make them disqualifies the bidder or proposer from the contract.
The act eliminates these certification requirements for the covered contracts described above. However, an existing executive order subjects all state contracts with a value of $50,000 or more to these requirements (see BACKGROUND). It is unclear how the act and the executive order interact with respect to the requirements.
In addition, for covered contracts, the act appears to eliminate a requirement that the awarding agency official or employee responsible for executing the contract certify that the selection process was devoid of collusion, gift giving (received or promised), compensation, fraud, or inappropriate influence.
Consulting Agreements (§§ 2 & 10). The act exempts covered contracts from certain affidavit requirements in existing law concerning consulting agreements. Under these requirements, any principal or key personnel of a person, firm, or corporation that submits bids or proposals for a goods and services contract with a total value of $50,000 or more in a calendar or fiscal year must attest in an affidavit, under penalty of false statement, whether a consulting agreement has been entered into in connection with the contract. The affidavit must include specified information about any such agreement, including its basic terms, as well as the consultant's name and status as a former state employee or public official. Failure to submit the affidavit disqualifies the bidder or proposer from the contract.
The act exempts covered contracts from these requirements.
State Ethics Laws (§§ 5 & 11). By law, contractors and bidders for large state construction or procurement contracts (i.e., those costing more than $500,000) must affirm that (1) they received a state ethics laws summary from the contracting state or quasi-public agency and (2) their key personnel have read and understand the summary and agree to comply with the ethics laws. Similarly, large state construction or procurement contractors must obtain these affirmations from their subcontractors and consultants and provide them to the state contracting agency. Failure to submit the affirmation disqualifies the contractors, bidders, subcontractors, and consultants from the contract.
For covered contracts that are subject to the ethics requirements, the act establishes an alternative affirmation. Specifically, rather than obtaining the above affirmations, UConn and BOR may instead require that the contract contain the following language:
Any person who is a party to the contract, and any key employees, subcontractors and consultants working under the contract, shall comply with the provisions of the state code of ethics set forth in sections 1-84, 1-86e and 1-101nn of the general statutes.
Nondiscrimination and Affirmative Action (§§ 7-9). By law, all contractors with state contracts must file a representation or documentation with the awarding agency indicating that they comply with state nondiscrimination laws. Additionally, each state contract must contain specified language that the contractor agrees to, among other things, (1) not discriminate against various protected classes; (2) take affirmative action and state that it is an “affirmative action-equal opportunity employer”; (3) provide labor unions and vendors with a notice of the contractor's nondiscrimination-related commitments; (4) comply with nondiscrimination- and affirmative action-related laws; and (5) provide the Commission on Human Rights and Opportunities with requested access to, among other things, records and accounts concerning the contractor's employment practices and procedures.
The act allows UConn and BOR, rather than obtaining the representation and documentation and inserting the specified language, to instead require that a covered contract contain the following affirmation:
Each party agrees, as required by sections 4a-60 and 4a-60a of the Connecticut General Statutes, not to discriminate against any person on the basis of race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, sexual orientation, intellectual disability, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by such party that such disability prevents performance of the work involved. Each party agrees to comply with all applicable federal and state of Connecticut nondiscrimination and affirmative action laws, including, but not limited to, sections 4a-60 and 4a-60a of the Connecticut General Statutes.
§§ 3-4 — COMPETITIVE BIDDING
The law establishes several requirements that UConn and BOR must follow when purchasing goods and services. Generally, these purchases must be based on competitive bids or competitive negotiation. Purchases of $50,000 or less generally must be made in the open market but must be based, when possible, on at least three competitive quotations.
The act, subject to the requirements below, exempts from competitive bidding and negotiation requirements the covered contracts described above, other than revenue or nonmonetary contracts. To exempt the contracts, the UConn Board of Trustees and BOR must comply with policies that the respective boards adopt for entering into or amending them.
Before adopting these policies, the Board of Trustees and BOR must provide interested persons a reasonable opportunity to present their views. The act allows a person whose legal rights or privileges are interfered with or impaired by the policies to seek a declaratory judgment in Superior Court on the policies' validity or application. Each board must post its policy on the board's website.
State Contracting Standards Board
By law, UConn and BOR are generally not subject to the State Contracting Standards Board's (SCSBʼs) authority, except for the state law on privatizing services, which, among other things, requires state contracting agencies to develop a cost-benefit analysis and a business case before privatizing a state service. However, the law requires SCSB to adopt regulations, by January 1, 2011, to apply specified SCSB-related statutes to UConn and BOR (CGS § 4e-47).
The act specifies that the policies UConn and BOR adopt (1) do not exempt them from any SCSB statutes that apply to them (i.e., the privatization law) and (2) supersede the regulations described above. (To date, the board has not adopted these regulations.)
The act requires UConn and BOR to report to the Government Administration and Elections and Higher Education and Employment Advancement committees annually, beginning by January 1, 2018. At a minimum, the report must describe (1) any policies they adopt, (2) any revisions or amendments in the previous fiscal year to previously adopted policies, and (3) each contract entered into under the policies in the previous fiscal year.
In May 2015, Governor Malloy issued Executive Order 49. Among other things, the order subjects state contracts with a value of $50,000 or more in a calendar or fiscal year to the gift certification requirements that existing law (CGS § 4-252) establishes for contracts with a value of $500,000 or more (see Gifts (§§ 2 & 6) above).