DIGEST The digest printed below was prepared by House Legislative Services. It constitutes no part of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)] Havard HB No. 240 Abstract: Establishes the Privatization Review Act to provide certain requirements for specified privatization contracts and for legislative oversight and approval of such privatization contracts. Proposed law defines for its purposes (1) "appropriate standing committees of the legislature" as the standing committees of the legislature to which an agency is required to submit a report pursuant to present law (Administrative Procedure Act–APA); (2) "agency" as an office, department, division, board, commission, officer, system, or other organizational unit of the executive branch of state government; (3) "nongovernmental entity" as a legal entity other than an agency; (4) "nongovernmental person" as an individual other than an employee of an agency; and (5) "privatization contract" as an agreement or combination or series of agreements by which a nongovernmental person or entity agrees with an agency to provide services valued at $5 million or more per year and which are substantially similar to and in lieu of services previously provided in whole or in part by state employees of an agency and specifies that an agreement solely to provide engineering or design services shall not be considered a privatization contract. Proposed law creates and provides for the Privatization Review Act by prohibiting an agency from entering into a privatization contract, unless the agency (or agency head) complies with each of the following: (1)(a) Prepare a specific statement of services proposed to be privatized, including the quantity and standard of quality of such services; (b) solicit competitive bids or proposals based upon the statement; (c) include in the statement for each position in which a nongovernmental person or entity will employ any person pursuant to the privatization contract and for which the duties are substantially similar to the duties performed by a state employee or employees, a statement of the minimum wage rate to be paid for said position; and (d) transmit the statement to the legislative auditor and appropriate legislative standing committees. (2)Require every privatization contract to contain provisions requiring the contractor to offer available employee positions pursuant to the contract to qualified classified state employees of the agency at which state employment is terminated because of the privatization contract and who satisfy the hiring criteria of the contractor. (3)Prepare a comprehensive written estimate of the costs of state employees providing the subject services in the most cost-efficient manner, including all direct and indirect costs of state employees providing the subject services, including but not limited to retirement, insurance, and other employee benefit costs. Provides that such estimate remains confidential until after the final day for the agency to receive bids or proposals for the privatization contract at which time the estimate shall become a public record, shall be filed in the agency and in the division of administration, and shall be transmitted to the legislative auditor and the appropriate standing committees of the legislature. (4)After solicitation of the competitive bids or proposals, publicly designate the nongovernmental person or entity to which it proposes to award the contract and prepare a comprehensive written analysis of the contract cost based upon the designated bid, specifically including the costs of transition from public to private operation, of additional unemployment and retirement benefits, if any, of additional retirement costs, if any, and of monitoring and otherwise administering contract performance and if the designated nongovernmental person or entity proposes to perform any or all of the contract outside the boundaries of the state or if the designated nongovernmental person or entity is domiciled outside the boundaries of the state, include in the analysis the amount of income tax revenue, if any, which will be lost to the state by the corresponding elimination of state employees and any additional loss of revenue to the state due to the domicile of the nongovernmental person or entity, as determined by the Dept. of Revenue to the extent practicable. (5) Certify to the legislative auditor and appropriate legislative standing committees that (a) he has complied with all provisions of proposed law and of all other applicable laws; (b) the quality of the services to be provided by the contractor is likely to satisfy the quality requirements of the statement and to equal or exceed the quality of services which could be provided by state employees; (c) the contract cost will be less than the estimated cost, taking into account all comparable types of cost and analysis of lost tax income, if any; (d) the designated contractor and its supervisory employees, while in the employ of the contractor, have no adjudicated record of substantial or repeated noncompliance with any relevant federal or state regulatory provision, including but not limited to provisions concerning occupational safety and health, nondiscrimination, environmental protection, and Code of Governmental Ethics and other conflicts of interest provisions and have no record of substantial or repeated failure to meet performance measures or goals in any prior or current contract with the state; and (e) the proposed privatization contract is in the public interest in that it meets the applicable quality and fiscal standards set forth in proposed law. Proposed law provides for legislative review as follows: (1)Requires a copy of the proposed privatization contract to accompany the certificate transmitted to the legislative auditor and appropriate standing committees of the legislature. (2)Requires the agency head to further send each legislator a copy of the proposed privatization contract and the certificate via e-mail on the same day he transmits those documents to the legislative auditor and appropriate standing committees of the legislature. (3)Requires the legislative auditor to review each contract and certificate no later than 30 days after receipt and to submit his findings to the appropriate legislative standing committees and to each legislator via e-mail. Requires the findings to be in writing and to include findings regarding the agency's compliance with the requirements of proposed law and to include the legislative auditor's independent review of all relevant facts regarding any of the agency's and division of administration's findings. Requires each agency to cooperate and assist the legislative auditor in his review and notwithstanding any law or privilege to the contrary, to provide all documents and other records to the legislative auditor that he deems necessary to complete his review. (4)Requires the appropriate legislative standing committees to review the proposed certificate and contract and comment as necessary on any such contract within a reasonable time not to exceed 45 days after receipt of the findings of the legislative auditor. Prohibits the agency from entering into the contract if either standing committee disapproves the contract. Provides that if either standing committee does not disapprove of a contract within the 45-day time period or if both committees approve the contract, the agency may enter into the contract. Proposed law further provides that (1) no amendment to a privatization contract shall be valid if it has the purpose or effect of avoiding any requirement of proposed law and (2) no agency shall transfer or grant to another person or entity the authority to negotiate any privatization agreement in any manner to subvert the provisions of proposed law or the Public Records Law. Proposed law specifies that any contract entered into by the state or any of its agencies in violation of proposed law shall be void ab initio. Proposed law provides that after each complete year of a privatization contract, the agency shall report to the appropriate legislative standing committees (1) the number of privatization contractor employees and consultants, reflected as full-time equivalent positions, and the amount of compensation received by each privatization contractor employee and consultant during the previous year, and their hourly wage rates for the current and previous fiscal year; (2) an analysis of the performance on the privatization contract, specifically including performance measures; and (3) all complaints received and the agency's and contractor's response to each complaint. Proposed law specifies that notwithstanding any other provision to the contrary and except as otherwise specifically provided by proposed law, all records related to a privatization contract shall be available for examination, inspection, reproduction, and copying in the same manner as provided by the Public Records Law regardless of the agency, official, person, or legal entity in possession of the record. (Amends R.S. 44:4.1(B)(34); Adds R.S. 49:351-357)