GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
S 1
SENATE BILL 1213*
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Short Title: Amend State Purchases & Contracts Laws. |
(Public) |
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Sponsors: |
Senators Clodfelter; and Hartsell. |
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Referred to: |
Judiciary II. |
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May 19, 2010
A BILL TO BE ENTITLED
AN ACT increasing the authority of the secretary of administration to provide oversight of the review and award of contracts and to enhance the efficiency and effectiveness of the contracts process, requiring all state agencies and institutions exempt from article 3 of chapter 143 of the general statutes to comply with certain requirementS regarding the review and award of contracts, requiring the attorney general to review certain contracts, and prohibiting the use of cost plus percentage OF cost contracts, as recommended by the joint legislative program evaluation oversight committee.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 18C-150 reads as rewritten:
"§ 18C-150. Procurements.
The Commission shall be exempt from Article 3 of Chapter 143 of the General Statutes but may use the services of the Department of Administration in procuring goods and services for the Commission. However, the Commission shall submit proposed contracts authorized by this section to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commission under this section a standard clause which provides that the State Auditor and internal auditors of the Commission may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Commission shall not award a cost plus percentage of cost contract for any purpose."
SECTION 2. G.S. 53-320 reads as rewritten:
"§ 53-320. Examinations; periodic reports; cooperative agreements; assessment of fees.
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(d) The Commissioner may enter into agreements with any bank supervisory agency supervising (i) a State trust institution engaging in trust business outside this State or (ii) an out-of-state trust institution maintaining a trust office or representative trust office in this State to engage the services of the agency's examiners at a reasonable rate of compensation or to provide the services of the Commissioner's examiners to the agency at a reasonable rate of compensation. Article 3 of Chapter 143 of the General Statutes does not apply to agreements authorized by this subsection. However, the Commissioner shall submit proposed agreements or contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all agreements or contracts to be awarded by the Commissioner under this subsection a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the agreement or contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 3. G.S. 53-326 reads as rewritten:
"§ 53-326. Examinations; periodic reports; cooperative agreements; assessment of fees.
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(d) The Commissioner may enter into agreements with bank supervisory agencies supervising (i) a State trust institution engaging in trust business in a foreign country or (ii) a foreign trust institution maintaining a trust office or representative trust office in this State to engage the services of the bank supervisory agency's examiners at a reasonable rate of compensation or to provide the services of the Commissioner's examiners to the bank supervisory agency at a reasonable rate of compensation. Article 3 of Chapter 143 of the General Statutes does not apply to agreements authorized by this section. However, the Commissioner shall submit proposed agreements or contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all agreements or contracts to be awarded by the Commissioner under this subsection a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the agreement or contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 4. G.S. 53-391 reads as rewritten:
"§ 53-391. Employment of counsel, accountants, and other experts; compensation.
The Commissioner, for the purpose of exercising any power under the provisions of this Subpart, may (i) employ any liquidating agents, attorneys, accountants, consultants, and clerks necessary to properly conduct the business of or liquidate and distribute the assets of a State trust company; (ii) fix the compensation for the agents, attorneys, accountants, consultants, and clerks; and (iii) pay the compensation of those persons out of the assets of the State trust company. Provided, that all expenditures described in this section shall be approved by the resident or presiding judge in the county in which the action is pending. Payments made by the Commissioner pursuant to this section shall not be subject to the requirements of Article 3 of Chapter 143 of the General Statutes. As used in this Subpart, the term "Commissioner" includes the Commissioner's duly appointed agents. The Commissioner shall submit proposed agreements or contracts authorized by this section to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all agreements or contracts to be awarded by the Commissioner under this section a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the agreement or contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 5. G.S. 53-401 reads as rewritten:
"§ 53-401. Provisions for conservator; duties and powers.
Whenever the Commissioner deems it necessary in order to conserve the assets of a State trust company for the benefit of clients or creditors, the Commissioner may appoint a conservator for the State trust company and require of the conservator a bond with any surety the Commissioner deems necessary and proper in an amount deemed sufficient by the Commissioner. The conservator, under the direction of the Commissioner, shall take possession of the fiduciary records and other books, records, and assets of every description of the State trust company placed under conservatorship and take actions necessary to conserve those assets pending further disposition of its business as provided by law. Except as provided in G.S. 53-405, the conservator shall have all rights, powers, and privileges, subject to the approval of the Commissioner, now possessed by or given to the Commissioner under the provisions of Subpart B and Subpart D of this Part. All expenses of the conservator shall be paid out of the assets of the State trust company under conservatorship and shall be a lien thereon which shall be prior to any other lien provided by law. The compensation of the conservator shall be determined by the Commissioner and shall be based on the time and experience of the conservator and the complexity of the conservatorship. Compensation of the conservator shall not be subject to the requirements of Article 3 of Chapter 143 of the General Statutes. However, the Commissioner shall submit proposed agreements or contracts authorized by this section to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all agreements or contracts to be awarded by the Commissioner under this section a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the conservator during the term of the agreement or contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 6. G.S. 58-2-69 reads as rewritten:
"§ 58-2-69. Notification of criminal convictions and changes of address; service of notice; contracts for online services, administrative services, or regulatory data systems.
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(g) The Commissioner may contract with the NAIC or other persons for the provision of online services to licensees, for the provision of administrative services to licensees, or for the provision of regulatory data systems to the Commissioner. The NAIC or other person with whom the Commissioner contracts may charge licensees a reasonable fee for the costs associated with the licensees' use of online services and administrative services. The fee shall be agreed to by the Commissioner and the other contracting party and shall be stated in the contract. Contracts for the provision of online services, contracts for the provision of administrative services, and contracts for the provision of regulatory data systems shall not be subject to Article 3, 3C, or 8 of Chapter 143 of the General Statutes or to Article 3D of Chapter 147 of the General Statutes. However, the Commissioner shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commissioner under this subsection a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the agreement or contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 7. G.S. 58-33-30 reads as rewritten:
"§ 58-33-30. License requirements.
The Commissioner shall not issue or continue any license of an agent, broker, limited representative, adjuster, or motor vehicle damage appraiser except as follows:
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(e) Examination.
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(4) The answers of the applicant to the examination shall be provided by the applicant under the Commissioner's supervision. The Commissioner shall give examinations at such times and places within this State as the Commissioner considers necessary reasonably to serve the convenience of both the Commissioner and applicants: Provided that the Commissioner may contract directly with persons for the processing of examination application forms and for the administration and grading of the examinations required by this section; the Commissioner may charge a reasonable fee in addition to the registration fee charged under G.S. 58-33-125, to offset the cost of the examination contract authorized by this subsection; and such contracts shall not be subject to Article 3 of Chapter 143 of the General Statutes. However, the Commissioner shall submit proposed contracts authorized by this subdivision to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commissioner under this subdivision a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost contract for any purpose.
(5) The Commissioner shall collect in advance the examination and registration fees provided in G.S. 58-33-125 and in subsection (4) of this section. The Commissioner shall make or cause to be made available to all applicants, for a reasonable fee to offset the costs of production, materials that he considers necessary for the applicants' proper preparation for examinations. The Commissioner may contract directly with publishers and other suppliers for the production of the preparatory materials, and contracts so let by the Commissioner shall not be subject to Article 3 of Chapter 143 of the General Statutes. However, the Commissioner shall submit proposed contracts authorized by this subdivision to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commissioner under this subdivision a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost contract for any purpose.
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SECTION 8. G.S. 58-33-125 reads as rewritten:
"§ 58-33-125. Fees.
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(e) A resident licensee may obtain a duplicate photo-bearing license at times and places within this State that the Commissioner considers necessary and reasonable to serve the convenience of both the Commissioner and the licensee. The Commissioner may contract directly with persons for processing of duplicate photo-bearing licenses, and the contract shall not be subject to Article 3 of Chapter 143 of the General Statutes. The Commissioner may charge a reasonable fee for duplicating a photo-bearing license in an amount that offsets the costs to the Department of duplicating the license, including costs associated with any contract entered into pursuant to this subsection. However, the Commissioner shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commissioner under this subsection a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 9. G.S. 58-33-130 reads as rewritten:
"§ 58-33-130. Continuing education program for licensees.
(a) The Commissioner may adopt rules to provide for a program of continuing education requirements for the purpose of enhancing the professional competence and professional responsibility of adjusters and motor vehicle damage appraisers. The rules may include criteria for:
(1) The content of continuing education courses;
(2) Accreditation of continuing education sponsors and programs;
(3) Accreditation of videotape or other audiovisual programs;
(4) Computation of credit;
(5) Special cases and exemptions;
(6) General compliance procedures; and
(7) Sanctions for noncompliance.
The Commissioner may contract directly with persons for the administration of the program provided for by this section, and those contracts shall not be subject to Article 3 of Chapter 143 of the General Statutes. However, the Commissioner shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commissioner under this subsection a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose. The Commissioner may charge a reasonable fee to course providers to offset the cost of the program, including costs associated with contracts authorized by this subsection. The fee authorized by this subsection shall be in addition to the fees specified in G.S. 58-33-133. As used in this section and in G.S. 58-33-132, "administrator" means any person with whom the Commissioner has contracted under this subsection.
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SECTION 10. G.S. 58-71-40 reads as rewritten:
"§ 58-71-40. Bail bondsmen and runners to be qualified and licensed; license applications generally.
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(d) When a license is issued under this section, the Commissioner shall issue a picture identification card, of design, size, and content approved by the Commissioner, to the licensee. Each licensee must carry this card at all times when working in the scope of the licensee's employment. A licensee whose license terminates or is terminated shall surrender the identification card to the Commissioner within 10 working days after the termination. The Commissioner may contract directly with persons for the processing and issuance of picture identification cards required by this section and may charge a reasonable fee in addition to the license fee charged under G.S. 58-71-55 in an amount that offsets the cost of the service, including the costs associated with the contract authorized by this subsection. Contracts entered into pursuant to this subsection shall not be subject to Article 3 of Chapter 143 of the General Statutes. However, the Commissioner shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commissioner under this subsection a standard clause which provides that the State Auditor and internal auditors of the Commissioner may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Commissioner shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 11. G.S. 63A-24 reads as rewritten:
"§ 63A-24. General laws apply to Authority; exceptions.
Except as provided in this section, the general laws that apply to State agencies apply to the Authority. The following general laws, to the extent provided below, do not apply to the Authority:
(1) Article 3 of Chapter 143 of the General Statutes does not apply to contracts for services listed in 49 U.S.C. § 2210(a)(16) or contracts for special user projects. That Article also does not apply to other contracts for projects, but, with respect to these other contracts, the powers and duties established in that Article shall be exercised by the Authority and the Secretary of Administration, and other State officers, employees, or agencies shall have no duties or responsibilities concerning the contracts. However, the Authority shall submit proposed contracts authorized by this subdivision to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Commissioner under this subdivision a standard clause which provides that the State Auditor and internal auditors of the Authority may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Authority shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 12. G.S. 84-23 reads as rewritten:
"§ 84-23. Powers of Council.
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(d) The Council may acquire, hold, rent, encumber, alienate, lease, and otherwise deal with real or personal property in the same manner as any private person or corporation, subject only to the approval of the Governor and the Council of State as to the acquisition, rental, encumbering, leasing and sale of real property. The Council may borrow money upon its bonds, notes, debentures, or other evidences of indebtedness sold through public or private sale pursuant to a loan agreement or a trust agreement or indenture with a trustee, with such borrowing either unsecured or secured by a mortgage on the Council's interest in real or personal property, and engage and contract with attorneys, underwriters, financial advisors, and other parties as necessary for such borrowing, with such borrowing and security subject to the approval of the Governor and the Council of State. The Council may utilize the services of the Purchase and Contract Division of the Department of Administration to procure personal property, in accordance with the provisions of Article 3 of Chapter 143 of the General Statutes. However, the Council shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Council under this subsection a standard clause which provides that the State Auditor and internal auditors of the Council may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Council shall not award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 13. G.S. 89E-5 reads as rewritten:
"§ 89E-5. Functions and duties of the Licensing Board.
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(e) The Board may authorize expenditures deemed necessary to carry out the provisions of this Chapter and all expenses shall be paid upon the warrant of the Board treasurer. The Board treasurer shall deposit funds received by the Board in one or more funds in banks or other financial institutions carrying deposit insurance and authorized to do business in North Carolina. Interest earned on such funds may remain in the funds account and may be expended as authorized by the Board to carry out the provisions of this Chapter. In no event may expenditures exceed the revenues of the Board during any fiscal year. The Board is authorized and empowered to utilize the services of the Purchase and Contract Division of the Department of Administration for the procurement of personal property, in accordance with Article 3 of Chapter 143 of the General Statutes. The Board shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Board under this subsection a standard clause which provides that the State Auditor and internal auditors of the Council may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Board shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 14. G.S. 89F-5 reads as rewritten:
"§ 89F-5. Powers and duties of the Board.
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(d) The Board may employ the necessary personnel for the performance of its functions and shall fix their compensation within the limits of funds available to the Board. The Board may procure personal property in accordance with the provisions of Article 3 of Chapter 143 of the General Statutes. The Board shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all contracts to be awarded by the Board under this subsection a standard clause which provides that the State Auditor and internal auditors of the Council may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Board shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 15. G.S. 108A-55 reads as rewritten:
"§ 108A-55. Payments.
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(b) Payments shall be made only to intermediate care facilities, hospitals and nursing homes licensed and approved under the laws of the State of North Carolina or under the laws of another state, or to pharmacies, physicians, dentists, optometrists or other providers of health-related services authorized by the Department. Payments may also be made to such fiscal intermediaries and to the capitation or prepaid health service contractors as may be authorized by the Department. Arrangements under which payments are made to capitation or prepaid health services contracts are not subject to the provisions of Chapter 58 of the General Statutes or of Article 3 of Chapter 143 of the General Statutes. However, the Department shall submit proposed agreements or contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all agreements or contracts to be awarded by the Department under this subsection a standard clause which provides that the State Auditor and internal auditors of the Council may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Department shall not award a cost plus percentage of cost agreement or contract for any purpose.
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SECTION 16. Article 1 of Chapter 114 of the General Statutes is amended by adding the following new section to read as follows:
"§ 114-8.3. Attorney General to review certain contracts.
(a) The Attorney General or the Attorney General's designee shall review all proposed statewide term contracts for supplies, materials, printing, equipment, and contractual services and all proposed agency term contractual services contracts that exceed one million dollars ($1,000,000) to ensure that the proposed contracts are in proper legal form, contain all clauses required by law, provide for sufficient monitoring, provide for sufficient performance penalties, and accomplish the intended purposes of the proposed contract.
(b) The Attorney General or the Attorney General's designee shall review all proposed contracts to be awarded by a department, agency, or institution of the State to ensure that the proposed contracts are in proper legal form, contain all clauses required by law, provide for sufficient monitoring, and provide for sufficient performance penalties. For purposes of this subsection, the term "Attorney General's designee" shall include any attorney approved by the Attorney General to review contracts as provided in this subsection. The Attorney General shall require that any attorney designated under this subsection shall comply with any rules established by the Attorney General regarding the review of contracts."
SECTION 17. G.S. 115D-67.4 reads as rewritten:
"§ 115D-67.4. Fees collected by the Center; purchases using Center funds.
Notwithstanding any other provision of law, all fees collected by the Applied Textile Technology Center for services to the textile industry, except for regular curriculum and continuing education tuition receipts, shall be retained by the Center and used for the operations of the Center. Purchases made by the Center using these funds are not subject to the provisions of Article 3 of Chapter 143 of the General Statutes. However, the Center shall submit proposed agreements or contracts to provide services authorized by this section to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all agreements or contracts to be awarded by the Center under this section a standard clause which provides that the State Auditor and internal auditors of the Council may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Department shall not award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 18. G.S. 135-43 reads as rewritten:
"§ 135-43. Confidentiality of information and medical records; provider contracts.
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(b) Notwithstanding the provisions of this Article, the Executive Administrator and Board of Trustees of the State Health Plan for Teachers and State Employees may contract with providers of institutional and professional medical care and services to establish preferred provider networks.
The terms of a contract between the Plan and its third party administrator or between the Plan and its pharmacy benefit manager are a public record except that the terms in those contracts that contain trade secrets or proprietary or competitive information are not a public record under Chapter 132 of the General Statutes, and any such proprietary or competitive information and trade secrets contained in the contract shall be redacted by the Plan prior to making it available to the public. This subsection shall not be construed to prevent or restrict the release of any information made not a public record under this subsection to the State Auditor, the Attorney General, the Director of the State Budget, the Plan's Executive Administrator, and the Committee on Employee Hospital and Medical Benefits solely and exclusively for their use in the furtherance of their duties and responsibilities, and to the Department of Health and Human Services solely for the purpose of implementing the transition of NC Health Choice from the Plan to the Department of Health and Human Services. The design, adoption, and implementation of the preferred provider contracts, networks, and optional alternative comprehensive health benefit plans, and programs available under the optional alternative plans, as authorized under G.S. 135-45 are not subject to the requirements of Article 3 of Chapter 143 of the General Statutes. However, the Executive Administrator and Board of Trustees shall submit proposed contracts authorized by this section to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all proposed contracts to be awarded by the Executive Administrator and Board of Trustees under this section a standard clause which provides that the State Auditor and internal auditors of the Plan may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Executive Administrator and Board of Trustees shall not award a cost plus percentage of cost agreement or contract for any purpose. The Executive Administrator and Board of Trustees shall make reports as requested to the President of the Senate, the President Pro Tempore of the Senate, the Speaker of the House of Representatives, and the Committee on Employee Hospital and Medical Benefits.
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SECTION 19. G.S. 136-28.1 reads as rewritten:
"§ 136-28.1. Letting of contracts to bidders after advertisement; exceptions.
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(h) The Department of Transportation may enter into contracts for applied research and experimental work without soliciting bids or proposals; provided, however, that if the research or work is for the purpose of testing equipment, materials, or supplies, the provisions of Article 3 of Chapter 143 of the General Statutes shall apply. However, the Department of Transportation shall submit proposed contracts authorized by this section to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all proposed contracts to be awarded by the Department of Transportation under this subsection a standard clause which provides that the State Auditor and internal auditors of the Department of Transportation may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Department of Transportation shall not award a cost plus percentage of cost agreement or contract for any purpose. The Department of Transportation is encouraged to solicit proposals when contracts are entered into with private firms when it is in the public interest to do so.
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SECTION 20. G.S. 136-89.194 reads as rewritten:
"§ 136-89.194. Laws applicable to the Authority; exceptions.
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(g) Contract Exemptions. - The following provisions concerning the purchase of goods and services by a State agency do not apply to the Turnpike Authority:
(1) Article 3 of Chapter 143 of the General Statutes. The Authority may use the services of the Department of Administration in procuring goods and services that are not specific to establishing and operating a toll revenue system. However, the Authority shall submit proposed contracts authorized by this subdivision to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all proposed contracts to be awarded by the Authority under this subdivision a standard clause which provides that the State Auditor and internal auditors of the Authority may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Authority shall not award a cost plus percentage of cost agreement or contract for any purpose.
(2) Article 3D of Chapter 147 of the General Statutes. The Authority may use the services of the Office of Information Technology Services in procuring goods and services that are not specific to establishing and operating a toll revenue system. All contract information for contracts for information technology are subject to disclosure in accordance with G.S. 147-33.95.
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SECTION 21. G.S. 143-49 reads as rewritten:
"§ 143-49. Powers and duties of Secretary.
The Secretary of Administration shall have power and authority, and it shall be his duty, subject to the provisions of this Article:
(1) To canvass sources of supply, including sources of supply of materials and supplies with recycled content, and to purchase or to contract for the purchase, lease and lease-purchase of all supplies, materials, equipment and other tangible personal property required by the State government, or any of its departments, institutions or agencies under competitive bidding or otherwise as hereinafter provided. Prior to the awarding of any statewide term or agency term contract for supplies, materials, equipment, or other tangible personal property exceeding a cost of one hundred thousand dollars ($100,000), the Secretary shall request and the Attorney General shall assign a representative of the office of the Attorney General to assist in the award of the contract. It shall be the duty of the representative of the office of the Attorney General to assist and advise in obtaining the most favorable contract for the State or agency, to evaluate all proposals available from prospective contractors for that purpose, to interpret proposed contract terms, and to advise the Secretary or the Secretary's representatives of the liabilities of the State or agency and the validity of the contract to be awarded. All contracts and drafts of contracts shall be prepared by the office of the Attorney General and copies thereof shall be retained by the office of the Attorney General for a period of three years following the termination of the contracts.
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(3) To purchase or to contract for, by sealed, competitive bidding or other suitable means, all contractual services and needs of the State government, or any of its departments, institutions, or agencies; or to authorize any department, institution or agency to purchase or contract for such services.
When the awardPrior to the
awarding of any contract for contractual services exceeding a cost of one
hundred thousand dollars ($100,000) requires negotiation with prospective
contractors,($100,000), the Secretary shall request and the Attorney
General shall assign a representative of the office of the Attorney General to
assist in negotiation for the award of the contract. It shall be the
duty of such representative to assist and advise in obtaining the most favorable
contract for the State, to evaluate all proposals available from prospective
contractors for that purpose, to interpret proposed contract terms and to
advise the Secretary or his representatives of the liabilities of the State and
validity of the contract to be awarded. All contracts and drafts of such
contracts shall be prepared by the office of the Attorney General and copies
thereof shall be retained by such office for a period of three years following
the termination of such contracts. The term "contractual services" as
used in this subsection shall mean work performed by an independent contractor
requiring specialized knowledge, experience, expertise or similar capabilities
wherein the service rendered does not consist primarily of acquisition by this
State of equipment or materials and the rental of equipment, materials and
supplies. The term "negotiation" as used herein shall not be deemed
to refer to contracts entered into or to be entered into as a result of a
competitive bidding process.
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(9) To include a standard clause in all contracts awarded by the State and departments, agencies, and institutions of the State, providing that the State Auditor and internal auditors of the affected department, agency, or institution may audit the records of the contactor during the term of the contract to verify accounts and data affecting fees or performance.
(10) To monitor and enforce the terms and conditions of statewide term contracts. The Secretary of Administration shall not delegate the power and authority granted under this subdivision to any other department, agency, or institution of the State.
(11) To develop rules, regulations, and procedures specifying the manner in which departments, agencies, and institutions of the State shall monitor and enforce agency term and non-term contracts.
(12) To consult with the Attorney General or the Attorney General's designee in developing rules, regulations, and procedures providing for the orderly and efficient submission of proposed statewide term, agency term, and non-term contracts to the Attorney General for review as provided in G.S. 114-8.3 and G.S. 143-52.2.
(13) To implement a quality management system equivalent to the International Organization for Standardization (ISO) 9001:2008 to ensure that citizen and agency customer requirements are met. By September 1 of 2012, and more frequently as requested, the Secretary shall report to the Joint Legislative Commission on Governmental Operations, the Program Evaluation Division, and the Fiscal Research Division concerning the progress of the Department's effort to comply with the provisions of this subdivision.
(14) To work in conjunction with the Office of State Personnel to create a Contracting Specialist career path to provide for the designation of one or more employees within each department, agency, or institution of the State to serve as the Contracting Specialist for the department, agency, or institution. Employees on the Contracting Specialist career path shall receive training and guidance as to the provisions of this Article.
(15) To work in conjunction with the Office of State Personnel, the Division of Purchase & Contract, and the University of North Carolina School of Government to develop a rigorous contract management training and certification program for State employees. The program shall be administered by the Office of State Personnel.
(16) To work in conjunction with the University of North Carolina School of Government to study and recommend improvements to State procurement laws, including the feasibility of adopting the provisions of the American Bar Association Model Procurement Code."
SECTION 22. G.S. 143-52 is amended to read as follows:
"§ 143-52.
Competitive bidding procedure; consolidation of estimates by Secretary; bids;
awarding of contracts.contracts; cost plus percentage of cost
contracts strictly prohibited.
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(c) Neither the Department of Administration nor any department, agency, or institution of the State may award a cost plus percentage of cost contract for any purpose."
SECTION 23. Article 3 of Chapter 143 of the General Statutes is amended by adding a new section to read as follows:
"§ 143-52.2. Certain contracts subject to review by Attorney General.
(a) The Secretary of Administration and every department, agency, and institution of the State shall submit to the Attorney General or the Attorney General's designee for review all proposed statewide term contracts for supplies, materials, printing, equipment, and contractual services and all proposed agency term contractual services contracts that exceed one million dollars ($1,000,000) to ensure that the proposed contracts are in proper legal form, contain all clauses required by law, provide for sufficient monitoring, provide for sufficient performance penalties, and accomplish the intended purposes of the proposed contract.
(b) The Secretary of Administration and every department, agency, and institution of the State shall submit to the Attorney General or the Attorney General's designee for review all proposed contracts to be awarded by a department, agency, or institution of the State to ensure that the proposed contracts are in proper legal form, contain all clauses required by law, provide for sufficient monitoring, and provide for sufficient performance penalties. For purposes of this subsection, the term "Attorney General's designee" shall include any attorney approved by the Attorney General to review contracts as provided in this subsection. The Attorney General shall require that any attorney designated under this subsection shall comply with any rules established by the Attorney General regarding the review of contracts."
SECTION 24. G.S. 143-134 reads as rewritten:
"§
143-134. Applicable to Department of Transportation and Department of
Correction; exceptions. exceptions; all contracts subject to review
by Attorney General and State Auditor.
(a) This Article shall apply to the Department of Transportation and the Department of Correction except in the construction of roads, bridges and their approaches; provided however, that whenever the Director of the Budget determines that the repair or construction of a building by the Department of Transportation or by the Department of Correction can be done more economically through use of employees of the Department of Transportation and/or prison inmates than by letting such repair or building construction to contract, the provisions of this Article shall not apply to such repair or construction.
(b) Notwithstanding the provisions of subsection (a) of this section, the Department of Transportation and the Department of Correction shall submit proposed contracts authorized by this section or any other provision of general law to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3 and G.S. 143-52-2 and shall include in all contracts to be awarded by the Department of Transportation or the Department of Correction a standard clause which provides that the State Auditor and internal auditors of the Department of Transportation or the Department of Correction may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. Neither the Department of Transportation nor the Department of Correction shall award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 25. G.S. 143-151.16 reads as rewritten:
"§ 143-151.16. Certification fees; renewal of certificates; examination fees.
…
(d) The Board may contract with persons for the development and administration of the examinations required by G.S. 143-151.13(a), for course development related to the examinations, for review of a particular applicant's examination, and for other related services. The person with whom the Board contracts may charge applicants a reasonable fee for the costs associated with the development and administration of the examinations, for course development related to the examinations, for review of the applicant's examinations, and for other related services. The fee shall be agreed to by the Board and the other contracting party. The amount of the fee under this subsection shall not exceed one hundred seventy-five dollars ($175.00). Contracts for the development and administration of the examinations, for course development related to the examinations, and for review of examinations shall not be subject to Article 3, 3C, or 8 of Chapter 143 of the General Statutes or to Article 3D of Chapter 147 of the General Statutes. However, the Board shall submit proposed contracts authorized by this subsection to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all proposed contracts to be awarded by the Board under this subsection a standard clause which provides that the State Auditor and internal auditors of the Board may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Board shall not award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 26. G.S. 143B-131.2 reads as rewritten:
"§ 143B-131.2. Roanoke Island Commission - Purpose, powers, and duties.
…
(b) The Commission shall have the following powers and duties:
…
(15) To procure supplies, services, and property as appropriate and to enter into contracts, leases, or other legal agreements to carry out the purposes of this Part and duties of the Commission. The provisions of G.S. 143-129 and Article 3 of Chapter 143 of the General Statutes do not apply to purchases by the Roanoke Island Commission of equipment, supplies, and services. However, the Commission shall submit proposed contracts authorized by this subdivision to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all proposed contracts to be awarded by the Commission under this subdivision a standard clause which provides that the State Auditor and internal auditors of the Commission may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Commission shall not award a cost plus percentage of cost agreement or contract for any purpose."
SECTION 27. G.S. 147-64.6 reads as rewritten:
"§ 147-64.6. Duties and responsibilities.
…
(c) The Auditor shall be responsible for the following acts and activities:
…
(18) The Auditor shall, after consultation and in coordination with the State Chief Information Officer, assess, confirm, and report on the security practices of information technology systems. If an agency has adopted standards pursuant to G.S. 147-33.111(a), the audit shall be in accordance with those standards. The Auditor's assessment of information security practices shall include an assessment of network vulnerability. The Auditor may conduct network penetration or any similar procedure as the Auditor may deem necessary. The Auditor may enter into a contract with a State agency under G.S. 147-33.111(c) for an assessment of network vulnerability, including network penetration or any similar procedure. Any contract with the Auditor for the assessment and testing shall be on a cost-reimbursement basis. The Auditor may investigate reported information technology security breaches, cyber attacks, and cyber fraud in State government. The Auditor shall issue public reports on the general results of the reviews undertaken pursuant to this subdivision but may provide agencies with detailed reports of the security issues identified pursuant to this subdivision which shall not be disclosed as provided in G.S. 132-6.1(c). The Auditor shall provide the State Chief Information Officer with detailed reports of the security issues identified pursuant to this subdivision. For the purposes of this subdivision only, the Auditor is exempt from the provisions of Article 3 of Chapter 143 of the General Statutes in retaining contractors. However, the Auditor shall submit proposed contracts authorized by this subdivision to the Attorney General or the Attorney General's designee for review as provided in G.S. 114-8.3, and shall include in all proposed contracts to be awarded by the Auditor under this subdivision a standard clause which provides that the Auditor may audit the records of the contractor during the term of the contract to verify accounts and data affecting fees and performance. The Auditor shall not award a cost plus percentage of cost agreement or contract for any purpose.
…."
SECTION 28. This act becomes effective October 1, 2010, and applies to all contracts proposed or awarded on or after that date.