H-2128              _______________________________________________

 

                                           SUBSTITUTE HOUSE BILL NO. 317

                        _______________________________________________

 

State of Washington                              49th Legislature                              1985 Regular Session

 

By House Committee on State Government (originally sponsored by Representatives Niemi, Belcher, Hankins, B. Williams and Isaacson)

 

 

Read first time 3/1/85 and passed to Committee on Rules.

 

 


AN ACT Relating to personal service contracts; amending RCW 39.29.006, 39.29.010, 39.29.020, 39.29.030, and 39.29.040; and adding new sections to chapter 39.29 RCW.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

        Sec. 1.  Section 2, chapter 61, Laws of 1979 ex. sess. as amended by section 1, chapter 263, Laws of 1981 and RCW 39.29.006 are each amended to read as follows:

          As used in this chapter:

          (1) "Personal service contract" means an agreement, or any amendment or renewal thereto, with an independent contractor for the rendering of personal services to the state.

          (2) "Personal service" means performing a specific study, project, or task which requires professional or technical expertise ((but)).  The term does not ((mean)) include personal services performed for the purpose of providing routine, continuing and necessary services, including, but not limited to, routine maintenance, operation of the physical plant, security, data entry, key punch services, and graphic design.

          (3) "Agency" means any state officer or activity of the executive and judicial branches of state government, including state agencies, departments, offices, divisions, boards, commissions, and educational, correctional, and other types of institutions.

          (4) "Emergency" means a set of unforeseen circumstances that are beyond the control of the agency and that either (a) present a real, immediate, and extreme threat to the proper performance of essential functions, or (b) may immediately result in excessive loss or damage to property, bodily injury, or loss of life.

 

          NEW SECTION.  Sec. 2.  A new section is added to chapter 39.29 RCW to read as follows:

          (1) The director of financial management shall adopt such guidelines as the director deems appropriate for agencies to use when entering into personal service contracts and monitoring and evaluating contract performance.

          (2) In addition to guidelines adopted under subsection (1) of this section, the director shall adopt guidelines establishing a competitive process to govern the selection of personal service contractors.  Except as provided otherwise under this section, each agency is required to use that competitive process.

          (3) The competitive process guidelines adopted under subsection (2) of this section are not binding with respect to any of the following contracts but may be adhered to at the option of the contracting agency:

          (a) A contract, including any amendments to the contract, between the agency and any single contractor where the contract costs less than ten thousand dollars for any twelve-month period;

          (b) A contract which the agency head finds is necessary in order to deal with an emergency;

          (c) A contract for services which the agency head finds are only available from a single contractor; and

          (d) A contract exempted from filing under RCW 39.29.040 (5) or (6).

          (4) Whenever an agency enters into a contract with a personal service contractor without using the competitive process established pursuant to subsection (2) of this section, the agency shall prepare a statement explaining why the process was not used and the reasons for selecting that contractor. If the process was not used because the agency determined that an emergency existed, then the agency shall include in the statement the reasons why it believed the circumstances constituted an emergency.

          (5) An agency may not award a number of contracts, instead of a single contract, where the agency's purpose in resorting to the multiple contracts is to avoid the competitive process guidelines.

          (6) This section shall not apply to personal service contractors selected under chapter 39.80 RCW, or RCW 28B.07.120, 28B.07.130, 43.180.090, or 43.180.100.

 

          NEW SECTION.  Sec. 3.  A new section is added to chapter 39.29 RCW to read as follows:

          Each agency shall maintain a contract file for each personal service contract entered into by the agency.  The contract file shall contain the following:

          (1) A statement setting forth the agency's need and justification for the contract;

          (2) A copy of the contract;

          (3) A copy of the proposal submitted by the contractor to whom the contract was awarded;

          (4) A copy of the statement prepared under section 2(4) of this act;

          (5) A copy of each notice or advertisement soliciting proposals from prospective contractors;

          (6) A list of prospective contractors to whom the agency provided notice of its needs for contractual services and whom the agency invited to submit proposals; and

          (7) Correspondence with the contractor, invoices, and information relating to the agency's administration of the contract and evaluation of the contractor's performance.

 

        Sec. 4.  Section 1, chapter 191, Laws of 1974 ex. sess. as last amended by section 3, chapter 61, Laws of 1979 ex. sess. and RCW 39.29.010 are each amended to read as follows:

          (1) All personal service contracts, including renewals and amendments of existing contracts, entered into by any ((state officer or activity of the executive and judicial branches of state government, including state agencies, departments, offices, divisions, boards, commissions, and educational, correctional and other types of institutions)) agency, shall be filed with the office of financial management and the legislative budget committee at least ten days prior to the date any work commences under such contracts regardless of the source of funds.  The director of financial management may exempt on a limited basis specific classes of personal service contracts involving activities of the executive and judicial branches after preparation of documented justification and consultation with the legislative budget committee:  PROVIDED, That approval of the exemption is granted prior to commencement of the contract work.

          In ((special)) emergency cases ((when work commencement is clearly a major and overriding factor and immediate contract action is mandatory, filing may be delayed)) the director of financial management, after consultation with the legislative auditor, may waive the ten-day filing period required by this subsection for personal service contracts involving the executive and judicial branches ((by the director of financial management after consultation with the legislative auditor:  PROVIDED, That such filing shall be made prior to commencement of the contract work with documented justification for the filing delay)) of state government.  However, in such cases the contract and the statement required under section 2(4) of this 1985 act shall be filed before the commencement of the contract work.

          (2) Standing and other committees of the legislature and officers or employees of the legislative branch shall file personal service contracts with the legislative budget committee and the office of financial management ((in accordance with the ten day time limitation set forth in this section.  Requests by legislative committees or personnel for either exemptions or delays in filing individual personal service contracts shall be forwarded to the legislative budget committee for review and maintenance of a central control file for use in preparation of summary reports on personal service contracts as directed by the legislature.  Filing of personal service contracts delayed for emergency purposes shall be made not more than five days after commencement of the contract work involved)) at least ten days before the date any work commences under such contracts, regardless of the source of funds.  In emergency cases, the ten-day filing period required by this subsection shall not apply.  However, in such cases the contract shall be filed before the commencement of the contract work.

 

        Sec. 5.  Section 2, chapter 191, Laws of 1974 ex. sess. and RCW 39.29.020 are each amended to read as follows:

          No ((state officer or activity of state government)) agency subject to this chapter shall expend any funds for personal service contracts without first complying with the provisions of ((RCW 39.29.010)) this chapter.  Except in cases where ((filing delay has been)) the ten-day filing period has been waived as authorized under RCW 39.29.010, no contract shall become effective until ten days following the date of filing pursuant to this chapter, or the effective date of the contract whichever is later.  ((The state officer or employee executing the personal service contracts shall be responsible for compliance with the filing requirements of this chapter.  Failure to comply with the filing requirements of this chapter shall subject the state officer or employee to a civil penalty in the amount of three hundred dollars.))

 

          NEW SECTION.  Sec. 6.  A new section is added to chapter 39.29 RCW to read as follows:

          (1) No later than July 30 of each year, every agency which enters into personal services contracts shall submit a report listing all personal services contracts which were entered into or which were amended during the immediately preceding fiscal year.

          (2) Each report required under this section shall include (a) a designation showing which contracts were entered into under a competitive process as required by this chapter, (b) a designation showing which contracts and amendments to contracts were filed under RCW 39.29.010 and 39.29.020, and (c) the total cost of each contract.

          (3) The reports required under this section shall be submitted to the office of the governor, the office of financial management, and the legislative budget committee.

 

          NEW SECTION.  Sec. 7.  A new section is added to chapter 39.29 RCW to read as follows:

          (1) Except as provided to the contrary under subsection (2) of this section, the agency head of each agency is directly responsible for the agency's compliance with the provisions of this chapter and the guidelines adopted by the director of financial management to implement this chapter.

          (2) Each agency head may designate one or more individuals within the agency who, in respect to a particular contract or class of contracts and in lieu of the agency head, shall be directly responsible for the agency's compliance with this chapter and with the policies adopted by the director  of financial management.

          (3) An officer or employee of an agency is subject to a civil penalty of three hundred dollars for each contract for which the officer or employee is directly responsible under this section and which fails to comply with any provision of this chapter or the guidelines adopted by the director of financial management.  The attorney general is responsible for collecting penalties owed under this section.

 

        Sec. 8.  Section 3, chapter 191, Laws of 1974 ex. sess. as amended by section 1, chapter 225, Laws of 1981 and RCW 39.29.030 are each amended to read as follows:

          ((This chapter shall not apply to)) The following entities are exempt from the filing requirements set forth in RCW 39.29.010 and 39.29.020:   The Washington state apple advertising commission, the Washington state fruit commission, the Washington tree fruit research commission, the Washington state beef commission, the Washington state dairy products commission, or any agricultural commodity commission created under the provisions of chapters  15.65 and 15.66 RCW and exempted from the budget and accounting system by chapter 43.88 RCW except for special provisions concerning budget submissions and audits.

 

        Sec. 9.  Section 4, chapter 61, Laws of 1979 ex. sess. and RCW 39.29.040 are each amended to read as follows:

          ((This chapter does not apply to)) The following contracts are exempt from the filing requirements set forth in RCW 39.29.010 and 39.29.020:

          (1) Contracts specifying a fee of less than two thousand five hundred dollars if the total of such contracts from that agency with the contractor within a twelve-month period does not exceed two thousand five hundred dollars;

          (2) ((Contracts awarded through competitive bids if the bidding follows a formal, documented bid procedure and if the request for bids is advertised through the media normally used by the particular service being sought:  PROVIDED, That for management purposes, the office of financial management may require the filing of certain contracts exempted under this subsection;

          (3))) Contracts where the contracting agency recognizes that an employee-employer relationship exists;

          (((4))) (3) Contracts awarded to companies that furnish a service where the tariff is established by the utilities and transportation commission or other public entity;

          (((5))) (4) Intergovernmental agreements awarded to any public corporation, whether federal, state, or local and any department, division, or subdivision thereof; ((and

          (6))) (5) Contracts awarded for services to be performed for a standard fee, when the standard fee is established by the contracting agency or any other public corporation and a like contract is available to all qualified applicants; and

          (6) Contracts awarded through the competitive process established under section 2 of this 1985 act.

 

          NEW SECTION.  Sec. 10.  A new section is added to chapter 39.29 RCW to read as follows:

          RCW 39.29.010 and 39.29.020 shall apply to agency contracts for services entered into under chapter 39.80 RCW.