CSHB 250(FIN): "An Act relating to protests of state contract awards, to claims on state contracts, to the arbitration of certain state construction contract claims, and to hearings and appeals under the State Procurement Code; making conforming amendments in the State Procurement Code; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 250(FIN) 01 "An Act relating to protests of state contract awards, to claims on state contracts, to the 02 arbitration of certain state construction contract claims, and to hearings and appeals 03 under the State Procurement Code; making conforming amendments in the State 04 Procurement Code; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 36.30.005 is amended by adding a new subsection to read: 07 (d) Notwithstanding the provisions of AS 36.30.627, the University of Alaska 08 is not required to arbitrate construction contract claims unless the university 09 specifically agrees to the arbitration. 10 * Sec. 2. AS 36.30.620(b) is amended to read: 11 (b) If a claim [CONTROVERSY] asserted [BY A CONTRACTOR] 12 concerning a contract awarded under this chapter cannot be resolved by agreement, the 13 procurement officer shall, after receiving a written request by the contractor for a 14 decision, issue a written decision. The procurement officer shall make the decision
01 not [SHALL BE MADE NO] more than 90 days after receipt [BY THE 02 PROCUREMENT OFFICER] of all necessary information from the contractor. If 03 [FAILURE OF] the contractor fails to furnish necessary information requested by 04 [TO] the procurement officer, the procurement officer shall proceed to decide 05 [CONSTITUTES A WAIVER OF] the claim and may, in the procurement officer's 06 discretion, deny all or part of the claim because of the failure to furnish necessary 07 information. During an appeal under this chapter, the contractor may not rely 08 on or introduce information that the contractor has failed to furnish to the 09 procurement officer in support of the claim. Before issuing the decision, the 10 procurement officer shall review the facts relating to the claim [CONTROVERSY] 11 and obtain necessary assistance from legal, fiscal, and other advisors. 12 * Sec. 3. AS 36.30.620(c) is amended to read: 13 (c) Upon the written request of the procurement officer, the [THE] time 14 for issuing a decision under (b) of this section may be extended for up to 60 15 additional days [GOOD CAUSE] by the commissioner [OF ADMINISTRATION, 16 OR FOR A CONTROVERSY INVOLVING A CONSTRUCTION CONTRACT OR 17 PROCUREMENT FOR THE STATE EQUIPMENT FLEET, THE 18 COMMISSIONER OF TRANSPORTATION AND PUBLIC FACILITIES,] if the 19 claim [CONTROVERSY] concerns an amount in excess of $50,000. Upon the 20 written request of the procurement officer showing that good cause exists for a 21 second extension, the commissioner may extend the time for issuing a decision 22 under (b) of this section up to 90 additional days after the first extension. The 23 contractor shall be provided with an opportunity to oppose or otherwise respond 24 to the request for a second extension. If a second extension is granted, the 25 commissioner [THE PROCUREMENT OFFICER] shall notify the contractor and 26 the procurement officer in writing that the time for the issuance of a decision has 27 been extended and of the date by which a decision shall be issued. In this subsection, 28 "commissioner" means the commissioner of administration or, for a claim 29 involving a construction contract or procurement for the state equipment fleet, 30 the commissioner of transportation and public facilities. 31 * Sec. 4. AS 36.30.620(d) is amended to read:
01 (d) The procurement officer shall furnish a copy of the decision to the 02 contractor by certified mail or other method that provides evidence of receipt. The 03 decision must include [A] 04 (1) a description of the claim [CONTROVERSY]; 05 (2) a reference to the pertinent contract provisions; 06 (3) a statement of the agreed upon and disputed facts; 07 (4) findings of fact about the claim; 08 (5) a determination of any amount payable; 09 (6) a statement of reasons supporting the decision; and 10 (7) a [(5)] statement substantially as follows: 11 "This is the final decision of the procurement officer. This decision 12 may be appealed to the commissioner of (administration/transportation 13 and public facilities). If you appeal, you must file a written notice of 14 appeal with the commissioner within 14 days after you receive this 15 decision." 16 * Sec. 5. AS 36.30.620(e) is amended to read: 17 (e) If the procurement officer does not issue a written decision [IS NOT 18 MADE] by the date it is due, the contractor may proceed as if the procurement officer 19 had issued a decision adverse to the contractor. 20 * Sec. 6. AS 36.30 is amended by adding new sections to read: 21 Sec. 36.30.627. Construction contract claim appeals. (a) An appeal from a 22 decision of the procurement officer of a claim involving a construction contract shall 23 be resolved by 24 (1) binding and final arbitration under AS 09.43.010 - 09.43.180 25 (Uniform Arbitration Act) if the claim is 26 (A) less than $250,000 and the contractor requests arbitration 27 of the claim; or 28 (B) $250,000 or more and both the agency and the contractor 29 agree to arbitration of the claim; or 30 (2) a hearing under AS 36.30.630 if the claim is not handled by 31 arbitration under (1) of this subsection.
01 (b) In this section, a claim includes all issues, causes of action, and 02 controversies arising from a construction contract for which a contractor or the 03 contracting agency asserts compensation is due. 04 Sec. 36.30.629. Subpoenas and discovery. In appeals under AS 36.30.627, 05 the arbitrator or hearing officer may 06 (1) issue subpoenas, including subpoenas duces tecum, to compel the 07 attendance of witnesses and the production of documents; 08 (2) allow the taking of depositions for discovery or to perpetuate 09 testimony; and 10 (3) refer a subpoena or subpoena duces tecum to the superior court for 11 enforcement and the imposition of appropriate sanctions. 12 * Sec. 7. AS 36.30.630 is amended to read: 13 Sec. 36.30.630. Hearing on a contract claim [CONTROVERSY]. (a) 14 Except as provided in (b) of this section, a hearing shall be conducted according to 15 AS 36.30.670 and regulations adopted by the commissioner of administration on a 16 contract claim [CONTROVERSY] appealed to the commissioner of administration or 17 the commissioner of transportation and public facilities or referred to either 18 commissioner under AS 36.30.620(f). 19 (b) Except as provided in AS 36.30.627(a)(1), within [WITHIN] 15 days 20 after receipt of an appeal on a contract claim [CONTROVERSY] the commissioner of 21 administration or the commissioner of transportation and public facilities, as 22 appropriate, may adopt the decision of the procurement officer as the final decision 23 without a hearing. 24 * Sec. 8. AS 36.30 is amended by adding a new section to read: 25 Sec. 36.30.631. Attorney fees, costs, and offers of judgment. (a) An 26 arbitrator in the arbitration of a construction contract claim under AS 36.30.627(a)(1) 27 and a hearing officer for the hearing of a construction contract claim conducted under 28 AS 36.30.627(a)(2) shall award the prevailing party attorney fees and costs incurred in 29 the arbitration or hearing. The award shall be made as provided by Rules 68, 79, and 30 82 of the Alaska Rules of Civil Procedure. 31 (b) Either party to an arbitration of a construction contract claim conducted
01 under AS 36.30.627 or a hearing of a construction contract claim conducted under 02 AS 36.30.630(a) may serve on the adverse party an offer to allow a final decision to be 03 entered in complete satisfaction of the claim. The offer shall be made, accepted, or 04 rejected as provided for an offer of judgment under Rule 68 of the Alaska Rules of 05 Civil Procedure. Acceptance or rejection of the offer has the same consequences as 06 acceptance or rejection of an offer of judgment made in a civil action under Rule 68 of 07 the Alaska Rules of Civil Procedure. 08 * Sec. 9. AS 36.30.632 is amended to read: 09 Sec. 36.30.632. Delegation. The commissioner of administration and the 10 commissioner of transportation and public facilities may delegate responsibilities 11 under AS 36.30.590 - 36.30.630 [AS 36.30.590 AND 36.30.630] to the head of the 12 contracting agency. 13 * Sec. 10. AS 36.30.680 is amended to read: 14 Sec. 36.30.680. Final decision by the commissioner. A decision by the 15 commissioner of administration or the commissioner of transportation and public 16 facilities after a hearing under this chapter is final. A decision shall be sent within 20 17 days after the hearing to all parties by personal service or certified mail, except that a 18 decision by the commissioner of transportation and public facilities involving 19 procurement of construction shall be sent to all parties by personal service or 20 certified mail within 45  days after receipt by the commissioner of 21 transportation and public facilities of the hearing officer's decision [TO ALL 22 PARTIES BY PERSONAL SERVICE OR CERTIFIED MAIL]. 23 * Sec. 11. AS 36.30.687(d) is amended to read: 24 (d) A person who in a matter relating to a procurement or a contract 25 [CONTROVERSY OR] claim under this chapter makes a misrepresentation to the 26 state through a trick, scheme, or device is guilty of a class C felony. 27 * Sec. 12. AS 36.30.695 is amended to read: 28 Sec. 36.30.695. Other rules of procedure. the commissioner may adopt by 29 regulation additional rules of procedure providing for the expeditious arbitration, 30 hearing, and other administrative review of all contract claims [OR 31 CONTROVERSIES], both before the contracting agency and through an appeal heard
01 de novo. 02 * Sec. 13. AS 36.30.695 is amended by adding new subsections to read: 03 (b) Except as provided by (c) of this section, an arbitrator shall issue a final 04 decision, and a hearing officer shall issue a recommended decision, within the 05 following time limits after the date the record on the claim is closed: 06 (1) 30 calendar days for a claim of less than $100,000; 07 (2) 45 calendar days for a claim of $100,000 or more but less than 08 $1,000,000; or 09 (3) 60 calendar days for a claim of $1,000,000 or more. 10 (c) The commissioner of administration or the commissioner of transportation 11 and public facilities may, for good cause shown, grant an arbitrator or a hearing officer 12 additional time to issue a decision. 13 (d) If an arbitrator or hearing officer fails to issue a decision within the time 14 allowed for a decision under (b) or (c) of this section, the arbitrator or hearing officer 15 is disqualified from acting as an arbitrator or hearing officer in another proceeding 16 under this chapter for one year after the decision is issued. 17 (e) The venue for an arbitration or hearing under this chapter is the judicial 18 district where the office of the contracting agency is located, unless the agency and the 19 contractor agree on another location. 20 (f) If a party fails to appear at a proceeding under this chapter, the arbitrator or 21 hearing officer may proceed in the party's absence. 22 (g) Subject to appropriation, any money awarded by an arbitrator's decision 23 shall be paid within 45 days after the date that the arbitrator's decision is final. Subject 24 to appropriation, any money awarded by a hearing officer's recommended decision 25 that is approved by the commissioner of transportation and public facilities shall be 26 paid within 45 days after the date that the commissioner's decision is delivered to the 27 contractor and the agency, unless the commissioner's decision is appealed under 28 AS 36.30.685. 29 * Sec. 14. AS 36.30.870 is amended by adding a new subsection to read: 30 (c) The commissioner of administration shall adopt regulations establishing 31 the procedures for arbitration under AS 36.30.627(a), including establishing the
01 qualifications for arbitrators and the method for appointing neutral arbitrators to 02 conduct arbitrations 03 * Sec. 15. AS 36.30.990 is amended by adding a new paragraph to read: 04 (24) "hearing" does not include a hearing in an arbitration. 05 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 APPLICABILITY. Sections 1 - 16 and 18 of this Act apply to a contract if the 08 contract is entered into on or after the effective date of secs. 1 - 16 and 18 of this Act. 09 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to 10 read: 11 TRANSITION: REGULATIONS. The commissioner of administration may 12 immediately proceed to adopt regulations necessary to implement this Act. The regulations 13 take effect under AS 44.62 (Administrative Procedure Act), but not before the effective date 14 of the other sections of this Act. 15 * Sec. 18. The uncodified law of the State of Alaska is amended by adding a new section to 16 read: 17 REVISOR'S INSTRUCTIONS. (a) The revisor of statutes shall substitute "claim" for 18 "controversy" in 19 (1) AS 36.30.620(f); 20 (2) AS 36.30.623; 21 (3) AS 36.30.625(a); 22 (4) AS 36.30.625(c); 23 (5) AS 36.30.687(a); and 24 (6) AS 36.30.750(b). 25 (b) The revisor of statutes shall substitute "claims" for "controversies" in 26 (1) AS 36.30.750(a); and 27 (2) AS 36.30.750(b). 28 * Sec. 19. Section 17 of this Act takes effect immediately under AS 01.10.070(c).