HOUSE BILL REPORT

E2SHB 1851

As Passed House:

February 12, 2018

Title: An act relating to protecting taxpayers by providing for accountability and transparency in government contracting.

Brief Description: Concerning accountability and transparency in government contracting.

Sponsors: House Committee on State Govt, Elections & IT (originally sponsored by Representatives Dolan, Harris, Hudgins, MacEwen, Kilduff, Haler, Robinson, Bergquist, Fitzgibbon, Doglio, Pollet, Ormsby and Stanford).

Brief History:

Committee Activity:

State Government, Elections & Information Technology: 2/14/17, 2/17/17 [DP], 1/10/18, 1/30/18 [DP2S];

Transportations: 2/22/17, 2/23/17 [DPS];

Appropriations: 2/3/18, 2/6/18 [DP2S(SEIT)].

Floor Activity:

Passed House: 3/8/17, 69-28.

Floor Activity:

Passed House: 2/13/18, 52-45.

Majority Report: The second substitute bill be substituted therefor and the second substitute bill do pass. Signed by 5 members: Representatives Hudgins, Chair; Dolan, Vice Chair; Appleton, Gregerson and Pellicciotti.

Minority Report: Do not pass. Signed by 3 members: Representatives McDonald, Ranking Minority Member; Kraft, Assistant Ranking Minority Member; Irwin.

Minority Report: Without recommendation. Signed by 1 member: Representative Johnson.

Staff: Desiree Omli (786-7105).

Majority Report: The second substitute bill by Committee on State Government, Elections & Information Technology be substituted therefor and the second substitute bill do pass. Signed by 22 members: Representatives Ormsby, Chair; Robinson, Vice Chair; MacEwen, Assistant Ranking Minority Member; Bergquist, Caldier, Cody, Fitzgibbon, Haler, Hansen, Harris, Hudgins, Jinkins, Kagi, Lytton, Pettigrew, Pollet, Sawyer, Senn, Springer, Stanford, Sullivan and Tharinger.

Minority Report: Do not pass. Signed by 11 members: Representatives Chandler, Ranking Minority Member; Stokesbary, Assistant Ranking Minority Member; Buys, Condotta, Graves, Manweller, Schmick, Taylor, Vick, Volz and Wilcox.

Staff: Meghan Morris (786-7119).

Background:

Contracting Out.

State agencies and institutions of higher education may purchase services, including services traditionally and historically provided by state employees in classified service, if the following criteria are met:

• the request for proposal contains measurable performance standards;

• the contract contains a provision to require the contracted entity to consider employment of state employees who may be displaced by the contract;

• a contract monitoring process is established to measure contract performance and to cancel contracts not meeting standards;

• there is a determination that contracts would lead to savings or efficiencies; and

• classified service employees are allowed to provide alternative solutions to purchasing the services by contract, and, in the event those solutions are not approved, form employee business units and bid for the contract.

Implementation of competitive contracting must include notice to the employees whose positions or work would be displaced by contracting out, training opportunities for business units, and procedures established by the Department of Enterprise Services (DES) to ensure that bids are submitted and evaluated fairly and objectively.

Certain entities and contracts are exempt from these criteria, such as contracts for services expressly mandated by the Legislature, printing services, and certain contracts by the DES and Consolidated Technology Services Agency.

Employees in classified services include state employees not specifically exempt from the state civil service statute. Another personnel system, the Washington Management Services (WMS), is established separately for civil service managers in state government. The WMS differs from general civil service in several ways. For example, it focuses on individual accountability for program results, provides flexibility in setting and changing salaries, and provides for flexible hiring procedures.

Contract Management Policies and Procedures.

The DES must adopt policies and procedures for effective and efficient management of contracts by state agencies. These include procedures for selecting potential contractors based on their qualifications, performance measures, model contract terms to ensure contract performance and compliance with state and federal standards, executing contracts using electronic signatures, and procedures and criteria for terminating contracts. Agencies must provide, on an annual basis, a list of contracts that the agency has entered into or renewed. The DES must maintain a list of all contracts entered into by agencies.

Agencies are encouraged to enter into performance-based contracts that identify expected deliverables and performance measures or outcomes. Payment for goods and services under performance-based contracts should be contingent on the customer achieving performance outcomes.

To provide the maximum practicable opportunity for increased participation by minority- and women-owned and controlled businesses in public works and agency procurement, goals are established in statute for each state agency. If necessary to meet these goals, contracts may be awarded to the next lowest responsible bidder, or all bids may be rejected and new bids obtained, if the lowest responsible bidder does not meet the goals established for a particular contract.

Summary of Engrossed Second Substitute Bill:

Contracting Out–Generally.

Any department, agency, or institution of higher education may purchase services customarily and historically provided by employees in classified service or employees in the WMS if the department, agency, or institution of higher education meet additional requirements. First, an agency, department, or institution of higher education must complete a comprehensive impact assessment. The assessment must include an estimate of the cost of performance to contract out and the cost of performance of the service by employees, a statement of performance objectives, and potential adverse impacts on the public from outsourcing the contract.

Additionally, the department, agency, or institution of higher education must prepare and submit a written record to the Office of Financial Management and the DES, of its decision to contract out for a service customarily and historically provided by employees in classified service or in the WMS. The record must include the comprehensive assessment, an itemization of performance standards, an explanation of why alternatives submitted by the employees were not accepted, an explanation of the determinations of cost savings or efficiency improvements, and an explanation of considerations made pertaining to consequences and potential mitigation of improper or failed performance by the contractor. The DES must post the record on its website and the record must be retained by the agency, department, or institution of higher education for the statutory retention schedule.

Moreover, the department, agency, or institution of higher education is required to file a report with the DES every five years that documents performances by contractors, itemizes certain contract extensions and change orders made by contractors that result in a change in cost, and reports remedial actions taken to enforce compliance and the cost of enforcement.

In addition, contract agreements must contain certain additional terms, including: a cancellation clause; periodic review of performance of the contract; requirement that the contractor compensate the agency, department, or institution of higher education for hours spent by an employee in achieving full performance of a contract; and updated information regarding the contractor and all subcontractors including a list of individuals performing services under the contract and basic financial information that is not exempt from disclosure.

Certain contracts and entities are exempt from these requirements including:

• contracts for fire suppression awarded by the Department of Natural Resources;

• contracts with an estimated cost of performance of $20,000 or less; and

• contracts awarded for the purposes of or by the Department of Transportation.

The exemption for the DES is removed.

The Joint Legislative Audit and Review Committee must, during the 2022 calendar year, review and report on the new contracting out process and provisions.

Contract Management Policies and Procedures.

The uniform policies and procedures for management of contracts are modified to include: precontract procedures to ensure compliance with minority- and women-owned business participation; model terms to facilitate recovery of the costs of employee staff time expended to achieve substantial compliance; and procedures and criteria for terminating contracts that are not achieving performance standards. Agencies must monitor performance-based contracts to ensure that all aspects are being properly performed and that performance standards are being achieved.

Appropriation: None.

Fiscal Note: Available.

Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.

Staff Summary of Public Testimony (State Government, Elections & Information Technology):

(In support) This bill is about good management and simplifies the process from last year's engrossed bill. Agencies are trying to address situations where contractors do the work but leave before the work is complete, leaving agencies to finish the work, which requires the use of agency resources. Public employees are the biggest watchdog of public money, so the state should be monitoring contracts to ensure that it is getting what it agreed to buy. The state should also evaluate the performance of contracts.

(Opposed) Smaller private-sector vendors will be impacted by this policy because the exemption for small contracts is taken out of the proposed version. This bill presents a barrier to contracting out and sets up an "us-versus-them" scenario. There are many considerations for contracting out besides costs, and this may cause the number of government contracts in the private sector to drop. The biggest concerns would be in the information technology sector. Additionally, when the state contracts with a private vendor, some of that money goes back to the government but the evaluation requirements do not account for that. The bill also lacks guidance on what to do with the required assessment.

Staff Summary of Public Testimony (Appropriations):

(In support) This bill puts more transparency and accountability measures in place when an agency decides to contract out for certain services. It works to ensure proper contract monitoring, enforcement, good business practices, and provides a consistent approach to analyzing agency decisions. The bill does not mandate a decision about when to contract out, but rather asks agencies to document the decision making process, including factors aside from cost, and to include information on the outcomes of the contracts for services that are contracted out. This year's bill is easier to implement. This bill should save money in the long run to ensure that when contracting out, the private contracts are of good value. The fiscal note does not account for the savings that would be achieved by the bill because there is no information about how many contracts exist. This bill would enable the Department of Enterprise Services (DES) to track how contracts are implemented and whether they are saving money. A few years ago, the Department of Natural Resources contracted out for accounting services, but half of the work had to be redone by public employees, which was not a good use of taxpayer money. If provisions of this bill lead to catching even a couple of these contracts per year, it would more than pay for itself.

(Opposed) This bill expands the prior legislation to any service contract that may have been provided by a state employee. This is an unnecessary requirement and alleges a systemic problem that does not exist. The contracts in the construction and design industry perform well all the time. This bill presents an unnecessary burden. The state has to go through many hoops in order to contract out, including completing a report that goes to DES. There is no iterative process to learn from problems. The private industry and state agencies currently work collaboratively, but the bill would present an "us against you" proposition. The bill ignores the importance of looking at qualifications on the front end and instead looks at problems on the back end.

Persons Testifying (State Government, Elections & Information Technology): (In support) Representative Dolan, prime sponsor; Alia Griffing, Washington Federation of State Employees; and Seamus Petrie, Washington Public Employees Association.

(Opposed) Jerry VanderWood, Associated General Contractors of Washington; and Van Collins, American Council of Engineering Companies of Washington.

Persons Testifying (Appropriations): (In support) Jessie Turner, Washington Federation of State Employees; and Seamus Petrie, Washington Public Employees Association.

(Opposed) Van Collins, Washington Construction Industry Council and American Council of Engineering Companies of Washington.

Persons Signed In To Testify But Not Testifying (State Government, Elections & Information Technology): None.

Persons Signed In To Testify But Not Testifying (Appropriations): None.