09Mar2005… 0391h

13Apr2005… 1015h

06/09/05 1802s

06/09/05 1887s

06/09/05 1893s

29Jun2005… 2095cofc

29Jun2005… 2140eba

2005 SESSION

05-0584

09/10

HOUSE BILL 644-FN

COMMITTEE: Executive Departments and Administration

AMENDED ANALYSIS

This bill transfers responsibility for public works administration and state lease administration from the department of transportation and the department of health and human services, respectively, to the department of administrative services.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

09Mar2005… 0391h

13Apr2005… 1015h

06/09/05 1802s

06/09/05 1887s

06/09/05 1893s

29Jun2005… 2095cofc

29Jun2005… 2140eba

05-0584

09/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

Be it Enacted by the Senate and House of Representatives in General Court convened:

291:1 Transfer of the Bureau of Public Works From Department of Transportation to Department of Administrative Services.

I. As of July 1, 2005 there shall be established within the department of administrative services, division of plant and property management, a bureau of public works design and construction under the supervision of a classified public works project manager VII, who shall act as administrator of the bureau. The department of administrative services, division of plant and property management, bureau of public works design and construction, shall, through its officials, be responsible for all functions formerly performed by the department of transportation, its division of public works or its bureau of public works relating to the construction, reconstruction, alteration, or maintenance of any building, plant, fixture, or facility. The function of the construction, reconstruction, alteration, or maintenance of highways, bridges, or other items directly related to transportation, shall continue to be managed by, and shall be the responsibility of, the department of transportation.

II. As of July 1, 2005, all personnel in PAU 04-01-04-02 of the department of transportation, shall be transferred to the department of administrative services, division of plant and property management, bureau of public works design and construction, together with all of the books, papers, payroll, records, equipment, unexpended appropriations for personnel and public works functions herein transferred, or other available or budgeted funds in any account or subdivision of any account of the department of transportation related to public works projects transferred to the department of administrative services, whether funded through capital or operating budgets. With regard to personnel, this paragraph is intended to transfer the personnel of the department of transportation who perform the functions herein transferred to the department of administrative services, with the exception of the department of transportation’s director of public works (PAU 04-01-04-01), subject to paragraph III regarding funding for the director’s position.

III. As of July 1, 2005, all salaries, funds and unexpended appropriations for, or amounts budgeted for, the position of the director of public works, department of transportation (PAU 04-01-04-01) as of July 1, 2005 shall be transferred to the department of administrative services, division of plant and property management, bureau of public works design and construction and shall initially fund the position of public works project manager VII specified in paragraph I.

IV. Unless otherwise specifically provided, all existing rules, statutory responsibilities, regulations, and procedures in effect, in operation, or adopted in or by the department of transportation relating to public works are declared in effect and shall continue in effect until repealed, amended, revised, replaced, expired, or superceded in accordance with applicable law. To the extent that rules or procedures of the commissioner of transportation currently in effect relate to functions remaining in the department of transportation or relate to bidding for projects, those rules or procedures shall remain in effect and shall continue in effect until repealed, amended, revised, replaced, expired, or superceded by the commissioner of transportation. To the extent that rules or procedures of the commissioner of transportation currently in effect relate to functions transferred to the department of administrative services, those rules or procedures shall remain in effect until repealed, amended, revised, replaced expired, or superceded by rules, requirements, or procedures adopted by the commissioner of administrative services.

V. The commissioner of administrative services, the department of administrative services, the division of plant and property management, and the bureau of public works design and construction may utilize the current rules and procedures of the commissioner and department of transportation relating to public works, bidding for projects, or other matters transferred to the department of administrative services, or portions of those rules or procedures, with or without modification, as their own rules, requirements and procedures, until such a time as the commissioner of administrative services adopts rules, requirements, or procedures relative to public works, bidding for projects, or other matters transferred to the department of administrative services. If utilized by the department of administrative services, those rules and procedures shall, with or without modification, be binding upon individuals or entities dealing with the division of plant and property management, bureau of public works design and construction to the same degree as if adopted as rules by the commissioner of administrative services.

291:2 Reorganization of Divisions, Bureaus, Sections, and Functions Within the Department of Administrative Services.

I. As of July 1, 2005, the function of purchase and property within the division of plant and property management shall be designated as the bureau of purchase and property within the division of plant and property management. All sections formerly within the purchase and property function of the division of plant and property management shall, as of July 1, 2005, be redesignated as sections of the bureau of purchase and property. The position of the administrator of the purchase and property function of the division shall, as of July 1, 2005 be redesignated as the administrator of the bureau of purchase and property.

II. As of July 1, 2005, the bureau of court facilities shall be established as a bureau of the department of administrative services, division of plant and property management and shall be under the supervision of a classified administrator.

III. As of July 1, 2005, the personnel performing the court facilities function within the department of administrative services shall be personnel of the bureau of court facilities within the department of administrative services division of plant and property management and the books, papers, payroll, records, equipment, unexpended appropriations for personnel or for activities of the current court facilities function, as well as other available funds in any account or subdivision of any account related to that function, shall be transferred to the bureau of court facilities in the division of plant and property management.

IV. All rules, regulations, and procedures in effect, in operation, or adopted in or by the department of administrative services relative to plant and property management shall remain in effect and shall continue in effect until repealed, amended, revised, replaced, expired, or superceded by rules or procedures adopted by the commissioner of administrative services. To the extent that those rules refer to the function of purchase and property, they shall be deemed to apply to the bureau of purchase and property.

291:3 Central Lease Administration and Management; Transfer of Department of Health and Human Services Personnel and Functions to Department of Administrative Services.

I. As of July 1, 2005, the department of administrative services, division of plant and property management, bureau of planning and management, through its officials, shall be responsible for the central management of all space rented by state agencies, and for the processes by which space is rented by state agencies, except as is otherwise provided by law. This responsibility shall not include the power to enter into rental agreements on behalf of state agencies.

II. As of July 1, 2005, the department of administrative services, division of plant and property management, bureau of planning and management, through its officials, shall assume responsibility for the functions formerly performed by the department of health and human services relative to the process by which space is rented by that agency. This responsibility shall not include the power to enter into rental agreements on behalf of state agencies.

III. As of July 1, 2005, the department of administrative services, division of plant and property management, through its officials, shall be responsible for the care and maintenance, except for the interior maintenance and grounds of certain buildings pursuant to RSA 21-I:11, X, of all state-owned buildings located on the campus of the New Hampshire hospital as described in RSA 4:39-a.

IV. As of July 1, 2005, all personnel of the department of health and human services responsible for the management of rental space and the processes by which space is rented shall be transferred to the department of administrative services, division of plant and property management together with all of the books, papers, payroll, records, equipment, unexpended appropriations for personnel or for the management of space rented by the state or for the process of the rental of space by the state, or other available funds in any account or subdivision of any account of the department of health and human services related to the management of space rented by the state or to the process of the rental of space by the state.

V.(a) Except as provided in subparagraph (b), as of the date of execution of the memorandum of understanding under subparagraph (c), all personnel under the supervision of the department of health and human services whose function it is to care for and maintain state-owned buildings on the New Hampshire hospital campus as described in RSA 4:39-a shall be transferred to the department of administrative services, division of plant and property management, together with all of the books, papers, payroll, records, equipment, unexpended appropriations for personnel and all building and grounds maintenance functions relating to the New Hampshire hospital campus, or other available funds in any account or subdivision of any account of the department of health and human services related to building and property care and maintenance at the New Hampshire hospital campus.

(b) Personnel under the supervision of the department of health and human services who provide patient care functions and maintenance inside the following buildings and personnel responsible for maintenance of the grounds of the following buildings shall not be transferred to the department of administrative services:

(1) The acute psychiatric services building.

(2) The Anna Philbrook center.

(3) The Tobey School building.

(4) All transitional housing buildings, including the Howard recreation building.

(c) The commissioner of the department of administrative services shall enter into a memorandum of understanding with the commissioner of the department of health and human services for the purpose of delineating the functions to be assumed by the department of administrative services and the specific buildings, equipment, books, papers, records, payroll, funds, and personnel to be transferred to the department of administrative services. The memorandum of understanding shall include, but shall not be limited to, coordination of activities regarding buildings remaining under the control of the department of health and human services, delineation of areas of responsibility for each department regarding the campus of the New Hampshire hospital as described in RSA 4:39-a, and requirements for cost recording and allocation in order to maximize access to federal funds.

291:4 Review of Compensation of Director of Plant and Property Management. In view of the changes made by this act, the commissioner of the department of administrative services shall consult with the outside consulting group noted in RSA 21-I:13, XIII to obtain a recommendation as to adjustments to the compensation of the director of the division of plant and property management. The commissioner shall, upon review and evaluation, present his or her recommendations for any adjustments to the fiscal committee of the general court and, if approved by the fiscal committee, submit those recommendations to the governor and council for review in accordance with RSA 94:3-b.

291:5 New Subparagraphs; Department of Administrative Services; General Functions. Amend RSA 21-I:1, II by inserting after subparagraph (j) the following new subparagraphs:

(k) Developing and maintaining state owned and supported land and buildings, including public works design and construction relating to projects defined in RSA 21-I: 73, VII.

(l) Providing central management and administration of space rented by, or the processes relating to the rental of space by, state agencies, except as otherwise provided by law.

291:6 Department of Administrative Services; General Functions. Amend RSA 21-I:11, VI-XII to read as follows:

VI. Having custody of all state owned or rented real [and personal] property not specifically charged to some other department and all personal property not specifically charged to some other department.

VII. Maintaining a central inventory record of all state owned real property, physical plant and equipment, which record shall be made available to the comptroller to assist him in complying with accounting principles. In order to compile this record the director shall:

(a) Advise each state agency how to establish and maintain a perpetual inventory record system for real property, whether rented or owned, physical plant and equipment; and

(b) Require each state agency to report annually, in such form as prescribed by the director, an inventory of the real property, whether rented or owned, physical plant and equipment under its jurisdiction. The form of such report shall not be considered a rule subject to the provisions of RSA 541-A.

VIII. Recommend to the commissioner fair and equitable charges to be assessed according to rules adopted pursuant to RSA 21-I:14, [XIII] XI, against any recipients receiving any donated surpluses from the surplus distribution section which shall:

(a) Be sufficiently high to defray all administrative, warehousing, processing, distribution and transportation costs incurred by the surplus distribution section, and to allow the accumulation of a working capital reserve equal to the cost of 6 months’ operation of the surplus distribution section so that the operation of said section shall result in no expense to the state; and

(b) Be maintained by the treasurer as a separate, restricted fund.

IX. Provide the text of any rule adopted pursuant to RSA 21-I:14, [XIII] XI, to each recipient of donated commodities or surpluses distributed by the surplus distribution section.

X. Subject to the direction and supervision of the commissioner of administrative services, act as custodian of the state house, legislative office building, state house annex, state library, and, with the exception of interior maintenance of the acute psychiatric services building, the Anna Philbrook center, the Tobey School building, and all transitional housing buildings including the Howard recreation building, all state-owned buildings located on the campus of the New Hampshire hospital as described in RSA 4:39-a, as well as the grounds connected with each of the foregoing properties, and have charge of all matters relating to the care, maintenance and repair of said property.

XI. Requiring, prior to an agency’s submission of a request for proposal for state data processing equipment, software, or services exceeding $250 in total cost, that the agency obtain approval of the proposal by the chief information officer to ensure that the procurement is consistent with the state information technology plan.

XII. Requiring agencies to submit the approval from the chief information officer in support of requests for purchases of information technology equipment or software in excess of $250.

XIII. Hearing and deciding disputes arising from the activities of the bureau of public works design and construction prior to the appeal of disputes to the commissioner under RSA 21-I:86.

XIV. Coordinating with the department the activities of the division relative to the capital budget overview process and communicating with the legislature regarding that process as it relates to public works.

XV. Coordinating with the department long range capital planning relative to public works design and construction to meet the needs of the state.

XVI. Supervising the activities of the bureaus and functions within the division.

291:7 Internal Organization; Division of Plant and Property Management. Amend RSA 21-I:12 to read as follows:

21-I:12 Internal Organization; Division of Plant and Property Management. The division of plant and property management shall include the following internal organizational units:

I. A [function] bureau of purchase and property under the supervision of a classified administrator of purchase and property who shall be responsible for the following functions, in accordance with applicable laws:

(a) Inspecting and testing deliveries for compliance with purchase orders.

(b) Maintaining and operating such central storage facilities as may be practical.

(c) Charging property and equipment to the using departments, as he or she shall deem advisable, and expressly specifying the responsibilities for maintenance of the same.

(d) Transferring unused supplies and equipment from one department or agency to another where needed and determining the value thereof; where such unused supplies and equipment cannot be so transferred, providing for disposal to the public by competitive bid whenever the estimated value of any unit or total of units is $100 or more, otherwise in such manner as appears to be in the best interest of the state.

(e) There shall be within the [function] bureau of purchase and property a surplus distribution section, which shall continue to operate for such period of time as surpluses or donated commodities of any kind are made available for distribution to the state by any department, division, or agency of the United States government or by any other source. The surplus distribution section shall be under the supervision of a classified supervisor of surplus distribution, who shall be responsible for the following functions, in accordance with applicable laws:

(1) Requesting, transporting, receiving, warehousing, allocating, enforcing compliance and delivering, where deemed expedient, any surpluses or commodities made available to the state by the federal government or by any other source.

(2) Assuring that all contracts, agreements, leases or other documents entered into by the commissioner in order to operate the program of distribution of federal commodities and surpluses comply with the regulations and directives of the federal government.

(3) In his or her discretion, receiving, allocating and distributing food supplies and other school food services supplies in cooperation with the New Hampshire School Food Service Association Co-operative, Inc., and such activities shall in no way constitute a restriction of trade.

(4) In his or her discretion, participating and cooperating in informational projects relating to distributions made by the agency.

II. A bureau of planning and management under the supervision of a classified administrator of planning and management who shall be responsible for the following functions, in accordance with applicable laws:

(a) Recommending assignment of office and office related space, including rented space, or space under consideration for rental, to the director, who shall report such recommendations to the commissioner.

(b) Preparing and maintaining an inventory of all physical space and real property used by the state, including rented space and the cost thereof. This inventory shall be made available to the comptroller in order to assist him to comply with accounting principles.

(c) Planning for any additional office space needs of the state in consultation with the [department of transportation] bureau of public works design and construction.

(d) Planning for any major renovation to state office buildings in consultation with the [department of transportation] bureau of public works design and construction.

(e) Centrally managing all space rented by, or all proposed rentals of space by, state agencies, and providing central administration and management of the processes by which space is rented by state agencies, except as is otherwise provided by law. Unless otherwise allowed by law, agencies seeking to rent space shall do so only in consultation with the bureau of planning and management. The central management and administration provided by the bureau shall include assisting agencies in their selection of property, in the formulation of rental documents, in the preparation of notices, in agencies’ solicitation of bids or proposals and selection of lessors, in space planning, in office layout, and in such other matters as are necessary for effective central planning and management relative to rented space but shall not include the power to enter into rental agreements on behalf of an agency.

III. A bureau of general services under the supervision of a classified administrator of general services who shall be responsible for the following functions, in accordance with applicable laws:

(a) Providing support services, including but not limited to, mailing, messenger, and [telephone service] telecommunications services to state government.

(b) Providing for the general maintenance of state-owned buildings and grounds, except as otherwise provided by law.

IV.(a) A bureau of graphic services under the supervision of a classified administrator of graphic services who shall be responsible for the following functions:

(1) Supervising all state printing and its procurement.

(2) Ensuring that all legislative printing within the capability of the bureau of graphic services shall, at all times, have priority over other work of the bureau.

(3) Providing the capability to levy cost charges on the use of each state photocopier.

(4) Using the prison printshop to the extent it can efficiently do so to function as a vocational rehabilitation facility under the direct supervision of prison authority, provided the prison printshop shall be entitled to bid on any appropriate state printing job.

(5) Managing a service operation which shall provide graphic services to all state agencies.

(b) With reference to the bureau of graphic services and the rulemaking authority of the commissioner in this area, “graphic services” shall mean any method of producing written or pictorial representations and shall include, but not be limited to, all forms of photography, photocopy, duplicating and printing.

(c) The following exceptions to the authority of the administrator of graphic services shall apply:

(1) He or she shall exercise no management or other authority over the forensic science laboratory established in RSA 106-B:2-a.

(2) He or she shall exercise no management or other authority over the printing, duplication, photocopying, photographic or other graphic services equipment or personnel of the university system of New Hampshire, the department of transportation, the department of employment security, and the general court.

V. A bureau of court facilities under the supervision of a classified administrator who shall be responsible for the following functions, in accordance with applicable laws:

(a) Providing suitable court facilities for the conduct of all court sessions held within each judicial district and county, subject to the availability of appropriated funds, in accordance with RSA 490-B.

(b) Providing for the general maintenance of state-owned court buildings and grounds, except as otherwise provided by law.

VI. A bureau of public works design and construction under the supervision of a classified public works project manager VII who shall act as administrator of the bureau and who shall be responsible for the following functions, in accordance with applicable law:

(a) Supervising and overseeing the activities of the bureau of public works design and construction.

(b) Public works engineering, including planning and design for all public works projects as described in RSA 21-I:78, VII.

(c) Field supervision of all public works construction.

(d) Supervision and coordination of all state-owned land and buildings not otherwise assigned, including, but not limited to, performing those functions specified in RSA 21-I:84, I.

(e) Except as otherwise provided by law, developing state-owned and supported land and buildings, and preparing a long range capital improvements plan, which shall be communicated to the director of the division of plant and property management.

(f) The supervision and operation of all public works of the state not otherwise provided for or assigned by law.

291:8 New Paragraphs; Commissioner of Administrative Services; Rulemaking Authority. Amend RSA 21-I:14 by inserting after paragraph XV the following new paragraphs:

XVI. Public works services, including bidding for major projects as described in RSA 21-I:78, as authorized by RSA 21-I:80; RSA 21-I:81 and RSA 21-I:82, bidder qualifications, agency requests for public works services, charges and fees, selection of persons or entities to perform public works projects, public works construction and design, dispute resolution, and such other requirements or procedures relating to public works as are necessary for the bureau of public works design and construction to properly perform its duties and functions in accordance with applicable law.

XVII. The central management of space rented by state agencies, the rental of space by state agencies and the processes to be utilized by agencies in the rental of space, including those matters described in RSA 21-I: 12, II(e).

291:9 New Subdivision; Public Works Design and Construction. Amend RSA by inserting after RSA 21-I:77 the following new subdivision:

Public Works Design and Construction

21-I:78 Definitions. In this subdivision:

I. “Commissioner” means the commissioner of administrative services.

II. “Construction management” means a method of contracting where the state engages the services of a contractor to work with an architect or engineer. The contractor assumes risk for construction and is required to provide design phase consultation, including the evaluation of costs, schedules, implication of alternative designs, systems, and materials.

III. “Contract construction” means all construction performed in whole or in part by an independent contractor.

IV. “Cost-plus contract” means a contract under which the payment for the work is the actual cost, plus either a fixed fee or a percentage of the cost as profit.

V. “Department” means the department of administrative services.

VI. “Design build” means a method of contracting where the state engages the professional services of a single entity designer/builder who is responsible for the provision of the design and construction of a project. The designer/builder can be either a single firm or a team of architect, engineer, and builder. The designer/builder contracts directly with all subcontractors and is responsible for the delivery of the completed project.

VII. “Force account basis” means use of a work force directly on the state payroll, rather than an independent contractor.

VIII. “Registered architect or professional engineer” means a person licensed in the state as an architect or engineer.

IX. “Project” means any construction, reconstruction, alteration, or maintenance in any building, plant, fixture, or facility. The term shall include those projects relating to buildings, plants, fixture, or facilities formerly administered through the department of transportation, division of public works. The term shall not include construction, reconstruction, alteration, or maintenance of highways, bridges, or other items directly related to transportation, which matters shall be managed by the department of transportation.

X. “Using agency or institution” means any executive department, commission, independent establishment, public corporation which is an instrumentality of a state board, bureau, division, institution, service, office, officer, authority, administration, or other establishment in the executive branch of the government, which will have the control of the property after the work is completed.

21–I:79 Projects Under $25,000. State projects, as defined in RSA 21-I:78, VII, for which the estimated cost is equal to or does not exceed $25,000 may be done on a force account basis as defined in RSA 21-I:78, V, or by contracts awarded through competitive bidding administered by the using agency with the approval of governor and council.

21-I:80 Major Projects.

I. Each state project whose estimated cost is more than $25,000 shall be built under contracts awarded to the lowest qualified bidder who meets all project specifications through competitive bidding. The following are excluded from this competitive bidding requirement:

(a) Projects executed under RSA 481 with approval of the governor and council.

(b) Projects for the department of fish and game and the department of resources and economic development whose estimated total cost is not more than $250,000. Such projects may be done on a force account basis, by contracts awarded through competitive bidding, by short term rental of construction equipment, or by any combination of these methods. These departments are authorized to rent construction equipment for periods not exceeding 6 months at rates the departments deem competitive through the use of quotes or bids.

(c) In an emergency, projects may be done on a force account basis upon the recommendation of the commissioner, with the approval of the governor and council.

(d) Notwithstanding any other provision of law, the commissioner is authorized to use the design build and construction management methods of contracting for any buildings that are part of capital projects. The capital budget overview committee shall approve preliminary plans prior to construction.

II. Any state project whose estimated cost is more than $500,000 shall be designed by a registered architect or professional engineer unless, upon recommendation of the commissioner, the governor and council shall find that it is in the best interests of the state to provide for in-house design. He or she shall prepare plans and specifications which meet the requirements of all applicable codes and shall provide on-site observation and inspection services. Each registered architect or professional engineer shall carry professional liability insurance in an amount satisfactory to the commissioner consistent with industry standards.

III. After written application to the fiscal committee, the requirements of paragraph II may be waived upon approval of the fiscal committee and the governor and council.

IV. State capital budget projects shall not be awarded through cost-plus contracts.

V. Any repair project authorized in the capital budget which requires consultant services shall be put into effect within 90 days after the adoption of the capital budget.

21-I:81 Competitive Bidding. No project subject to the competitive bidding requirements of RSA 21-I:80 shall be awarded to any independent contractor except:

I. If the commissioner decides that the bid of the lowest bidder should be accepted, he or she shall prepare a contract of acceptance of the lowest bid within 60 days from the opening of bids. He or she shall execute the contract in the name of the state. After the contract is executed by the lowest bidder, the form of it approved by the attorney general, and the availability of funds approved by the commissioner of administrative services, he or she shall transmit the contract to the governor and council. Upon approval by the governor and council, it shall become a valid contract of the state.

II. The state reserves the right to reject any and all bids or to negotiate with the lowest qualified bidder who meets all project specifications.

III. If the commissioner decides that for just cause shown the lowest bid submitted should be rejected, he or she shall promptly transmit to the governor and council the recommendation for rejection including reasons. The governor and council shall review the recommendation and any other facts available to them, and make such determination as in their judgment shall be for the best interest of the state. They shall require a public hearing upon request of any bidder or on their own motion to fully establish such facts. Their determination shall be entered upon the records of the secretary of state.

IV. If not more than one bid is received on any state project advertised for contract construction, the commissioner may negotiate a contract for such construction upon terms which he or she may deem most advantageous to the state, subject to the approval of the governor and council. For projects built with federal aid, if any provision of this section is inconsistent with the requirements of applicable federal law and regulations, the latter shall control.

21-I:82 Client Relationship. Without limiting the provisions of RSA 21-I:80 and RSA 21-I:81, and to enable the department to maintain a client relationship with the using agencies or institutions in the construction of capital budget items, the department is authorized to:

I. Determine requirements, prepare estimates, advertise, receive bids and award contracts subject to the approval of the governor and council. The department is also authorized to execute all contracts for projects in the name of the state and for the using agency or institution, with the advice and assistance of the attorney general; and after the concurrence of the governor and council, the commissioner of administrative services and the using agency or institution, subject to other statutory limitations.

II. Cause to be undertaken and completed, all construction exceeding $25,000 for any individual project, except as otherwise authorized by the governor and council.

III. Exercise general supervision, control and direction over all matters pertaining to design, construction, maintenance standards, and preservation of all state buildings, and related facilities.

IV. Except as otherwise authorized by the governor and council, cooperate with the department of environmental services by letting for contract, and supervising, all projects on state-owned dams and reservoirs, and performing inspections requested by the department of environmental services. However, operation of facilities under the control of the department of environmental services shall not be delegated to the department of administrative services.

21-I:83 Compliance With Contracts.

I.(a) The performance of contracts for all state projects costing over $25,000 shall be inspected to assure compliance with the plans and specifications. The department shall require inspection service by one of the following methods:

(1) By a registered architect or professional engineer or representative;

(2) By qualified personnel of the state agency, institution or department concerned; or

(3) By personnel of the division of plant and property management bureau of public works design and construction, or the bureau’s designated agent or agents.

(b) Prior to the execution of a contract for a state project, the department shall notify the state agency, institution, or department concerned which method of inspection shall be followed.

II. The department or its agent shall periodically give to the using agency or institution signed statements that the contract is being executed according to specifications, including a final statement that the project has been completed in accordance with the specifications.

III. Manifests for such payments shall be made and signed by the using agency, department, or institution. Manifests for final payment shall certify that inspections have been carried out, that the project has been completed in accordance with the specifications and the contract, and that it has been accepted. Such manifest shall be certified by the department that the progress reports furnished by the department are correct and that inspections have been made and the provisions of the plans and specifications have been carried out.

21-I:84 General Powers and Duties. The department of administrative services is further authorized to:

I. Exercise such general supervision over standards of operation and maintenance of state-owned buildings, except state armories and military reservations, and fixed plant equipment as was formerly the function of the executive officers of the using agencies or institutions or the department of transportation, division of public works, and except as otherwise provided by law.

II. Coordinate long range capital planning to meet the needs of the state, as may be requested by the governor and council and subject to their approval.

III. Operate all public works, not otherwise assigned.

IV. Assist any using agency or institution of the state in the acquisition of lands for a public use, when requested.

V. Employ such technical consultants and other assistants as may be necessary, wherever required in the best interests of the state and consistent with the policy declared in section RSA 21-I:80.

VI. Engage in projects as defined in RSA 21-I:78, VII.

21-I:85 Planning and Design Costs. The division of plant and property management and the bureau of public works design and construction shall not perform any design and planning work for any non-general fund state agency unless the bureau is reimbursed for such work by the agency.

21-I:86 Public Works Appeals. Appeals by persons aggrieved by decisions of the individual functioning as the administrator of the bureau of public works design and construction relative to public works design and construction shall be to the director of the division of plant and property management or his or her designee. Appeals by persons aggrieved by decisions of the director of the division of plant and property management or his or her designee relative to public works design and construction shall be to the commissioner or his or her designee. Appeals by persons aggrieved by decisions of the commissioner or his or her designee relative to public works design and construction shall be to the transportation appeals board established by RSA 21-L:14.

291:10 Department of Transportation; Establishment; General Functions. Amend RSA 21-L:2, II to read as follows:

II. The department of transportation, through its officials, shall be responsible for the following general functions:

(a) Planning, developing, and maintaining a state transportation network which will provide for safe and convenient movement of people and goods throughout the state by means of a system of highways, railroads, air service, mass transit, and other practicable modes of transportation, in order to support state growth and economic development and promote the general welfare of the citizens of the state.

[(b) Except as otherwise provided by law, developing and maintaining state owned and supported land and buildings, and cooperating with the department of administrative services in preparing a long range state capital improvements plan.

(c)] (b) Performing any regulation of transportation activities required by law which is not within the jurisdiction of another state agency.

291:11 Department of Transportation; Division of Administration. Amend RSA 21-L:6 to read as follows:

21-L:6 Division of Administration. There is established within the department the division of administration, under the supervision of an unclassified director of administration, who shall, in accordance with applicable laws, be responsible for the following functions:

I. Accounting, purchasing, and budget control.

II. Personnel management including the health and safety of employees.

III. [Property,] Contracts[,]and grants management.

[IV. Data processing.

V.] IV. Assistance to the commissioner with short and long range department level planning activities.

[VI.] V. Control of department inventory.

[VII.] VI. Department printing.

[VIII. Issuing of all permits, registrations, and licenses for which the department is responsible.]

VII. Development of practices, policies, and procedures that facilitate continuous improvement in the quality of department services.

291:12 Department of Transportation; Division of Project Development. Amend RSA 21-L:9, I to read as follows:

I. Transportation engineering, including planning and design for state highway, rail, and other forms of transportation, as required to coordinate the state’s transportation system.

291:13 New Paragraph; Department of Transportation; Division of Operations. Amend RSA 21-L:10 by inserting after paragraph II the following new paragraph:

III. Issuing of all permits, registrations, and licenses for which the department is responsible with the exception of those issued by the division of aeronautics, rail, and transit.

291:14 Department of Transportation; Required Rulemaking. Amend RSA 21-L:12, I to read as follows:

I. Bidding for [major capital] transportation projects that do not relate to public works projects handled by the department of administrative services, as authorized by RSA 228:4, I; and 228:4-a[; and 228:5].

291:15 Department of Transportation; Powers and Duties. Amend RSA 21-L:15, I to read as follows:

I. The board shall hear and decide appeals from decisions of the commissioner relative to contract interpretation or other decisions affecting persons not employed by the department, municipalities, or private property, except condemnations of property for public purposes, and the assessment of damages therefor. Decisions of division directors shall be appealed to the commissioner. Decisions of the commissioner may be appealed to the appeals board, except decisions relative to aeronautical matters, which may be appealed to the aviation users advisory board established under RSA 21-L:8, and decisions relative to common carriers by rail, which may be appealed to the railroad appeals board established under RSA 21-L:16. The board shall also hear appeals from the department of administrative services relating to such matters involving public works design and construction as have been delegated to the department of administrative services or as were administered prior to July 1, 2005 by the division of public works, department of transportation.

291:16 Definition; Project. Amend RSA 228:1 to read as follows:

228:1 Definitions. In this chapter:

I. “Commissioner” means the commissioner of transportation[; ].

II. “Contract construction” means all construction performed in whole or in part by an independent contractor[;].

III. “Cost-plus contract” means one under which the payment for the work is the actual cost, plus either a fixed fee or a percentage of the cost as profit[;].

IV. “Department” means the department of transportation[;].

V. “Force account basis” means use of a work force directly on the state payroll, rather than an independent contractor[;].

VI. “Registered architect or professional engineer” means a person licensed in the state as an architect or engineer[;].

VII. “Project” means any construction, reconstruction, alteration, or maintenance [in any building, plant, fixture, or facility; and] of any highway, bridge, or other item directly related to transportation. The term shall not include construction, reconstruction, alteration, or maintenance of buildings, plants, fixtures, or facilities formerly administered through the department of transportation, division of public works, or matters managed by the department of administrative services, division of public works design and construction.

[VIII. “Using agency or institution” means any executive department, commission, independent establishment, public corporation which is an instrumentality of a state board, bureau, division, institution, service, office, officer, authority, administration or other establishment in the executive branch of the government, which will have the control of the property after the work is completed.]

291:17 Major Transportation Projects. Amend RSA 228:4 to read as follows:

228:4 [Major Capital] State Transportation Projects.

I. Each state [capital budget] transportation project [whose estimated cost is more than $25,000] shall be built under contracts awarded to the lowest responsible bidder through competitive bidding. The following are excluded from this competitive bidding requirement:

(a) Normal highway and bridge maintenance and improvements[, unless they involve federal funds]. This includes state aided town road and bridge projects.

(b) Projects executed under RSA 481 with approval of the governor and council.

[(c) Projects for the department of fish and game and the department of resources and economic development whose estimated total cost is not more than $250,000. Such projects may be done on a force account basis, by contracts awarded through competitive bidding, by short term rental of construction equipment, or by any combination of these methods. These departments are authorized to rent construction equipment for periods not exceeding 6 months at rates the departments deem competitive through the use of quotes or bids.

(d) [Repealed.]

(e) In an emergency, projects may be done on a force account basis upon the recommendation of the commissioner, with the approval of the governor and council.

(f) Projects may be built through lease purchase arrangements based on a request for proposal provided that selection and award is based on an objective standard and that there are measurable criteria for evaluation. Capital budget projects may be built under the design build concept based on a request for proposal provided that selection and award is based on an objective standard and that there are measurable criteria for evaluation only if such projects are expressly designated as design build and authorized as such by the capital budget while the general court is in session or by the fiscal committee when the general court is out of session. The commissioner shall report the results of any capital budget project using the design build concept to the capital budget overview committee within 90 days after the completion of the project.

(g)] (c) Statewide transportation improvement program projects with a cost not to exceed $5,000,000 may be developed and constructed utilizing the design build concept based on a request for proposal, provided that selection is based on an objective standard and measurable criteria for evaluation of the proposals. The commissioner shall report the results of any statewide transportation improvement program project using the design build concept to the capital budget overview committee within 90 days after the completion of the project.

[II. Any state capital budget project whose estimated cost is more than $500,000 shall be designed by a registered architect or professional engineer unless, upon recommendation of the commissioner, the governor and council shall find that it is in the best interests of the state to provide for in-house design. He shall prepare plans and specifications which meet the requirements of all applicable codes and shall provide on-site observation and inspection services. Each registered architect or professional engineer shall carry professional liability insurance in an amount satisfactory to the commissioner consistent with industry standards.

II-a. After written application to the fiscal committee, the requirements of RSA 228:4, II may be waived upon approval of the fiscal committee and the governor and council.

III.] II. State [capital budget] transportation projects shall not be awarded through cost-plus contracts.

[IV. Any repair project authorized in the capital budget which requires consultant services shall be put into effect within 90 days after the general court passes the capital budget.

V. Notwithstanding any other provision of law, the commissioner is authorized to use the design build and construction management methods of contracting for any buildings that are part of capital projects. The capital budget overview committee shall approve preliminary plans prior to construction.]

291:18 Competitive Bidding. Amend RSA 228:4-a to read as follows:

228:4-a Competitive Bidding. No project subject to the competitive bidding requirements of RSA 228:4 shall be awarded to any independent contractor except:

I. If the commissioner decides that the bid of the lowest bidder should be accepted, he or she shall prepare a contract of acceptance of the lowest bid within 60 days from the opening of bids. He or she shall execute the contract in the name of the state. After the contract is executed by the lowest bidder, the form of it approved by the attorney general, and the availability of funds approved by the commissioner of administrative services, he or she shall transmit the contract to the governor and council. Upon approval by the governor and council, it shall become a valid contract of the state.

II. The state reserves the right to reject any and all bids or to negotiate with the lowest responsible bidder.

III. If the commissioner decides that for just cause shown the lowest bid submitted should be rejected, he or she shall promptly transmit to the governor and council [his] the recommendation for rejection including [his] reasons. The governor and council shall review the recommendation and any other facts available to them, and make such determination as in their judgment shall be for the best interest of the state. They shall require a public hearing upon request of any bidder or on their own motion to fully establish such facts. Their determination shall be entered upon the records of the secretary of state.

IV. If not more than one bid is received on any state project advertised for contract construction, the commissioner may negotiate a contract for such construction upon terms which he or she may deem most advantageous to the state, subject to the approval of the governor and council. For projects built with federal aid, if any provision of this section is inconsistent with the requirements of applicable federal law and regulations, the latter shall control.

291:19 Compliance With Contracts. Amend RSA 228:5-a to read as follows:

228:5-a Compliance With Contracts.

[I.] The performance of contracts for all state transportation projects [costing over $25,000] shall be inspected to assure compliance with the plans and specifications. The department shall require inspection service by one of the following methods: (a) by the registered architect or professional engineer or his representative, (b) by qualified personnel of [the state agency, institution or department concerned] a professional construction inspection company, or (c) by personnel of the department of transportation. [Prior to the execution of a contract for a state project, the department shall notify the state agency, institution or department concerned which method of inspection shall be followed.

II. The department or its agent shall periodically give to the using agency or institution signed statements that the contract is being executed according to specifications including a final statement that the project has been completed in accordance with the specifications.

III. Manifests for such payments shall be made and signed by the using agency, department, or institution. Manifests for final payment shall certify that inspections have been carried out, that the project has been completed in accordance with the specifications and contract, and that it has been accepted. Such manifest shall be certified by the department that the progress reports furnished by the department are correct and that inspections have been made and the provisions of the plans and specifications have been carried out.]

291:20 General Powers and Duties. Amend RSA 228:6 to read as follows:

228:6 General Powers and Duties. The department is further authorized to:

[I. Exercise general supervision over standards of operation and maintenance of state-owned buildings, (except state armories and military reservations) and fixed (plant) equipment, in the same manner as it has been exercised heretofore by the executive officers of the using agencies or institutions, and except as otherwise provided by law;

II. [Repealed.]

III.] I. Cooperate with the department of administrative services in long range capital planning to meet the needs of the state, as may be requested by the governor and council and subject to their approval[;].

[IV. Operate all public works, not otherwise assigned;

V.] II. Assist any using agency or institution of the state in the acquisition of lands for a public use, when requested[;].

[VI.] III. Employ such technical consultants and other assistants as may be necessary, wherever required in the best interests of the state and consistent with the policy declared in section RSA 228:4[;].

[VII.] IV. Upon request of the director of plant and property management, inspect and test, and advise the acceptance or rejection of, all materials and supplies purchased by the division of plant and property management[;].

[VIII.] V. Accept, subject to the approval of the governor and council, donations of money, labor and materials to be expended or used upon class I, class II or class III highways at such points or places designated by the donor, provided that in the commissioner’s opinion the project is practicable and in the public interest.

291:21 Liens for Labor and Materials. Amend RSA 447:17 to read as follows:

447:17 Notice. To obtain the benefit of the bond, any person, firm or corporation having any claim for labor performed, materials, machinery, tools, or equipment furnished as aforesaid shall, within 90 days after the completion and acceptance of the project by the contracting party, file in the office of the secretary of state, if the state is a contracting party, or with the department of transportation, if the state is a party to said contract by or through said department, or with the department of administrative services, if the state is a party to said contract by or through said department, or in the office of the clerk of the superior court for the county within which the contract shall be principally performed, if any political subdivision of the state is a contracting party, a statement of the claim, a copy of which shall forthwith be sent by mail by the office where it is filed to the principal and surety.

291:22 New Hampshire Hospital. Amend RSA 4:39-a to read as follows:

4:39-a New Hampshire Hospital Real Estate.

[I.] The area in the city of Concord bounded by Pleasant, Fruit, Clinton, and South Spring streets, excluding any privately owned land and buildings, and known as the main campus of the New Hampshire hospital shall remain in its entirety the property of the state of New Hampshire, except such land as determined necessary for use by the city of Concord for approved municipal services may be conveyed in accordance with RSA 10:4 unless RSA 227-C:6 applies. If RSA 227-C:6 applies, such land shall be conveyed in accordance with RSA 227-C:9. The commissioner of administrative services, with the approval of the long range capital planning and utilization committee, shall designate the use of and be responsible for maintaining, with the exception of the interior maintenance and maintenance of grounds of certain properties pursuant to RSA 21-I:11, X, and leasing any buildings on the main campus of the New Hampshire hospital in accordance with the following priorities: (1) department of health and human services and its lessees, (2) state departments, and (3) other government or nonprofit organizations performing a state-related function.

[II. If any of the buildings of New Hampshire hospital which are under the jurisdiction of the department of health and human services are released to the department of administrative services after the effective date of this section, they shall not be occupied until they have been properly renovated for their new purposes, and such renovations have been approved by the commissioner of administrative services and the priority requirement established under paragraph I has been satisfied. The commissioner of administrative services may make an exception to this paragraph not to exceed a period of 2 years from the release date for occupancy of any such building. The commissioner shall adopt rules under RSA 541-A relative to the procedure to be followed for such exceptions.]

291:23 Reference Deleted. Amend RSA 4:40, I to read as follows:

I. Except as provided in [RSA 4:39-a], RSA 4:39-c, and RSA 204-D, upon recommendation of the head of any state department having jurisdiction over the same and with the approval of the council on resources and development, all requests for the disposal or leasing of state-owned properties shall be reviewed and approved by the long range capital planning and utilization committee prior to submission to the governor and council for approval. Upon determination that the property is no longer needed by the state, the governor and council shall first offer it to the town, city, or county in which the property is located. If the town, city, or county refuses the offer, the governor and council may sell, convey, transfer, or lease the real property.

291:24 Reference Deleted. Amend RSA 10:4 to read as follows:

10:4 Acquisition and Disposal of Real Estate for Institutions. [Except as provided in RSA 4:39-a,] Upon request of the commissioner of the department of health and human services, the governor and council may buy, sell, or exchange institutional lands for any of the institutions named in RSA 10:1 over which the requester has jurisdiction and, at the request of any of the above or that of the trustees of the university system of New Hampshire, may institute proceedings for the taking of land for institutional purposes by eminent domain; and the procedure for that purpose shall be the same and the value of the land shall be determined as in cases of land taken for highways upon petition to the superior court. On the payment of the value as finally determined, the title to the land so taken shall vest in the state.

291:25 State Mental Health Facilities Other Than New Hampshire Hospital; Rules. Amend RSA 135-C:4 to read as follows:

135-C:4 State Facilities Other Than New Hampshire Hospital; Rules.

I. The commissioner shall have charge of the property and concerns of any facility owned by the state which provides, or which may be established to provide, care and treatment to persons who have mental illness or developmental disabilities, including those subject to the exception set forth in paragraph I-a, with regard to the care and maintenance of the grounds and buildings located at the facility in Concord, known as New Hampshire hospital. Such facilities include, but are not limited to, facilities established at Glencliff known as Glencliff home for the elderly[,] and Laconia, known as Laconia developmental services[, and Concord, known as New Hampshire hospital].

I-a. The commissioner shall have charge of the interior maintenance and grounds of the acute psychiatric services building, the Anna Philbrook center, the Tobey School building, and all transitional buildings including the Howard recreation building, located on the campus of the New Hampshire hospital as described in RSA 4:39-a.

II. The commissioner may enter into contracts relative to services to clients, management, and operation of the facilities as he or she deems appropriate, other than contracts regarding the care and maintenance of the grounds and buildings, or portions thereof, at the facility in Concord known as the New Hampshire hospital which have been assigned to the care of the department of administrative services, and may receive, appropriate, control, convey, hold in trust, or invest any funds or real or personal property given or devised to or owned by any facility in any manner as he or she deems expedient. [He] The commissioner may determine the name of, the services to be provided at, and the clients, whether under RSA 135-C or RSA 171-A, to be served by any facility.

III. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to eligibility criteria and procedures for admission to state facilities.

291:26 References Corrected. RSA 4:40, I is repealed and reenacted to read as follows:

I. Except as provided in RSA 4:39-c, RSA 228:31-b, and RSA 204-D, upon recommendation of the head of any state department having jurisdiction over the same and with the approval of the council on resources and development, all requests for the disposal or leasing of state-owned properties shall be reviewed and approved by the long range capital planning and utilization committee prior to submission to the governor and council for approval. Upon determination that the property is no longer needed by the state, the governor and council shall first offer it to the town, city, or county in which the property is located. If the town, city, or county refuses the offer, the governor and council may sell, convey, transfer, or lease the real property.

291:27 Repeal. The following are repealed:

I. RSA 21-L:11, relative to the division of public works.

II. RSA 228:1, VIII, relative to the definition of “using agency or institution.”

III. RSA 228:3-a, relative to capital projects under $25,000.

IV. RSA 228:5, relative to client relationship.

V. RSA 228:46-a, relative to planning and design costs.

291:28 Effective Date.

I. Section 26 of this act shall take effect August 30, 2005, at 12:01 a.m.

II. The remainder of this act shall take effect upon its passage.

(Approved: July 25, 2005)

(Effective Date: I. Section 26 shall take effect August 30, 2005 at 12:01 a.m.

• HB644 at GenCourtMobile

Bill Text Revisions

HB644 Revision: 9066 Date: Jan. 21, 2010, midnight

Docket

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