An Act To Protect Taxpayers in the Privatization of State Services
Maine Legislature, Session 129, LD 1458
Committee: State and Local Government
Sponsors: BELLOWS, MARTIN, CLAXTON, DESCHAMBAULT, MIRAMANT, HANDY, SYLVESTER
Amends: 5 MRSA §18, 5 MRSA §18-A

Legislative Document
No. 1458
S.P. 443
In Senate, April 2, 2019
An Act To Protect Taxpayers in the Privatization of State Services
Reference to the Committee on State and Local Government suggested and ordered printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator BELLOWS of Kennebec.
Cosponsored by Representative MARTIN of Sinclair and
Senators: CLAXTON of Androscoggin, DESCHAMBAULT of York, MIRAMANT of Knox, 
Representatives: HANDY of Lewiston, SYLVESTER of Portland.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §18, sub-§1, ¶D, as enacted by PL 1979, c. 734, §2, is amended 
to read:
D.  "Proceeding" means a proceeding, application, request, ruling, determination, 
award, contract, claim, controversy, charge, accusation, arrest or other matter relating 
to governmental action or inaction, but does not include an employee bid or contract 
to provide agency services under section 482, subsections 6 and 7.
Sec. 2.  5 MRSA §18-A, sub-§4, as enacted by PL 2001, c. 203, §2, is amended to 
read:
4.  Exemptions.  This section does not apply:
A.  To purchases by the Governor under authority of Title 1, section 814;
B.  To contracts made with a corporation that has issued shares to the public for the 
general benefit of that corporation; or
C.  If an exemption is approved by the Director of the Bureau of General Services 
within the Department of Administrative and Financial Services or the director's 
designee based upon one of the following and if the director gives notice of the 
granting of this exemption to all parties bidding on the contract in question with a 
statement of the reason for the exemption and if an opportunity is provided for any 
party to appeal the granting of the exemption:
(1)  When the private entity or party that proposes to contract with the State and 
that employs the executive employee, based upon all relevant facts, is the only 
reasonably available source to provide the service or product to the State, as 
determined by the director; or
(2)  When the director determines that the amount of compensation to be paid to 
the private entity or party providing the service or product to the State is de 
minimis.; or
D.  To a contract by employees to provide agency services under section 482, 
subsection 7.
Sec. 3.  5 MRSA c. 21 is enacted to read:
CHAPTER 21
PRIVATIZATION OF AGENCY SERVICES
§481.  Definitions
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings.
1.  Agency.  ''Agency'' means a state agency as defined in section 1552, subsection 6.
2.  Business day.  "Business day'' means any calendar day excluding Saturdays, 
Sundays and legal holidays.
3.  Contractor.  "Contractor" means a nongovernmental person who has entered into 
a privatization contract with the State.
4.  Dependent.  ''Dependent'' means the spouse or child of an employee if the spouse 
or child would qualify for dependent status under the United States Internal Revenue 
Code of 1986 or for whom a support order has been or could be granted under Title 19-A, 
section 1653, subsection 2.
5.  Employee organization.  "Employee organization" means an organization that 
has as its primary purpose the representation of employees in their employment relations 
with an employer under Title 26, chapter 9-B.
6.  Privatization contract.  ''Privatization contract'' means an agreement or 
combination or series of agreements by which a nongovernmental person agrees with an 
agency to provide services that are of at least $500,000 in value as of October 1, 2019 and 
annually increased by the amount of increase in the Consumer Price Index calculated by 
the United States Department of Labor, Bureau of Labor Statistics for the most recent 12-
month period for which data are available and that are substantially similar to and in lieu 
of services provided, in whole or in part, by regular employees of the agency. 
"Privatization contract" does not include:
A.  Any subsequent agreement to a privatization contract, including any agreement 
resulting from a rebidding of previously privatized service, or any agreement 
renewing or extending a privatization contract;
B.  A contract for information technology services if an employee organization agrees 
to the terms of the contract in writing; or
C.  An agreement solely to provide legal, management consulting, planning, 
engineering or design services.
§482.  Privatization contracts
1.  Privatization contracts.  Notwithstanding the provisions of chapters 155 and 156, 
an agency entering into a privatization contract shall, in consultation with the 
Commissioner of Administrative and Financial Services, follow the requirements of this 
section.
2.  Written statement of services; sealed bids; contract terms.  An agency shall 
prepare a specific written statement of the services proposed to be the subject of a 
privatization contract, including the specific quantity and standard of quality of the 
subject services. The agency shall solicit competitive sealed bids for the privatization 
contracts based upon this statement. The day designated by the agency upon which it will 
accept these sealed bids must be the same for all parties. The statement of services is a 
public record and must be filed in the agency and with the Commissioner of 
Administrative and Financial Services and transmitted to the Attorney General for review 
pursuant to section 483. The term of a privatization contract may not exceed 5 years. A 
privatization contract may not be amended for the purpose or effect of avoiding a 
requirement of this section.
3.  Wage rate and benefits for employees in bids for privatization and 
privatization contracts.  For each position for which a bidder under subsection 2 will 
employ a person pursuant to the privatization contract and for which the duties are 
substantially similar to the duties performed by a regular agency employee or employees, 
the statement required by subsection 2 must include a statement of the minimum wage 
rate to be paid for the position. The minimum wage rate must be the lowest classification 
under chapter 372 under which the comparable regular agency employee is paid or the 
average private sector wage rate for the position as determined by the Commissioner of 
Administrative and Financial Services from data collected by the Department of 
Administrative and Financial Services, Bureau of Human Resources and Bureau of 
General Services. A bid for a privatization contract and a privatization contract must 
establish the wage rate for each position subject to a minimum wage rate under this 
subsection at no less than the minimum wage rate for that position. A bid for a 
privatization contract and a privatization contract must include provisions for the 
contractor to pay not less than a percentage, comparable to the percentage paid by the 
State for state employees, of the costs of health insurance plans with coverage 
comparable to the coverage provided by the State for state employees for every employee 
employed for not less than 20 hours per week pursuant to the contract and for a dependent 
of the employee. A contractor shall submit quarterly payroll records to the agency, listing 
the name, address, social security number, hours worked and hourly wage paid for each 
employee in the previous quarter. The Attorney General may bring a civil action for 
equitable relief in the Superior Court to enforce this subsection or to prevent or remedy 
the dismissal, demotion or other action prejudicing any employee as a result of a report of 
a violation of this subsection.
4.  Offers of employment to terminated state employees.  A privatization contract 
must contain a provision requiring the contractor to offer available employee positions 
pursuant to the contract to qualified regular employees of the agency whose state 
employment is terminated because of the privatization contract and who satisfy the hiring 
criteria of the contractor. A privatization contract must contain provisions requiring the 
contractor to comply with a policy of, and to take affirmative steps to provide, 
nondiscrimination and equal opportunity for any person protected by chapter 337.
5.  Estimate of subject services.  An agency seeking to enter into a privatization 
contract shall prepare a comprehensive written estimate of the costs of regular agency 
employees providing the subject services in the most cost-efficient manner. The estimate 
must include all direct and indirect costs of regular agency employees providing the 
subject services, including, but not limited to, pension, insurance and other employee 
benefit costs. For the purpose of reducing this estimate, an employee organization 
representing employees of the agency may at any time before the final day for the agency 
to receive sealed bids pursuant to subsection 2 propose an amendment to any relevant 
collective bargaining agreement to which the employee organization is a party, but such 
an amendment may take effect only if the effect of the amendment is to reduce the 
estimate below the contract cost pursuant to subsection 7. An estimate under this 
subsection remains confidential until after the final day for the agency to receive sealed 
bids for the privatization contract pursuant to subsection 2, at which time the estimate 
becomes a public record and must be filed in the agency and with the Commissioner of 
Administrative and Financial Services and transmitted to the Attorney General for review 
pursuant to section 483.
6.  Employee bids.  Employees of an agency seeking a privatization contract under 
subsection 1 and who are represented by an employee organization may organize and 
submit a bid to provide the subject services under this section.  After consulting any 
relevant employee organizations, an agency seeking to enter into a privatization contract 
shall provide adequate resources for the purpose of encouraging and assisting agency 
employees to organize and submit a bid to provide the subject services. In determining 
what resources are adequate for this purpose, the agency shall refer to an existing 
collective bargaining agreement of a similar employee organization whose members 
perform the subject services that provides similar resources in the same or other agencies, 
except that, if no such collective bargaining agreement exists, the agency shall refer to 
any existing comparable collective bargaining agreement providing similar resources and 
shall provide such resources at the minimum level of assistance provided in the similar 
agreement. The agency shall consider an employee bid under this subsection on the same 
basis as all other bids received under subsection 2. An employee bid under this subsection 
is not a public record under Title 1, chapter 13, subchapter 1 before the designation of the 
winning bidder under subsection 7.  An employee bid under this subsection may be made 
as a joint venture with other persons.
7.  Designation of winning bidder.  After soliciting and receiving all bids under 
subsection 2, an agency publicly shall designate the bidder to which it proposes to award 
the privatization contract. The agency shall 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 any additional unemployment and 
retirement benefits and of monitoring and otherwise administering contract performance. 
If the designated bidder proposes to perform any or all of the contract outside the 
boundaries of the State, the contract cost must be increased by the amount of any lost 
income tax revenue to the State by the corresponding elimination of agency employees, 
as determined by the State Tax Assessor.
8.  Certification to Attorney General.  For a privatization contract of a designated 
bidder under subsection 7, the head of the agency and the Commissioner of 
Administrative and Financial Services shall each certify in writing to the Attorney 
General that:
A.  The contract complies with all provisions of this section and of all other 
applicable laws;
B.  The quality of the services to be provided by the designated bidder is likely to 
satisfy the quality requirements of the statement prepared pursuant to subsection 2 
and to equal or exceed the quality of services that could be provided by regular 
agency employees pursuant to subsection 5;
C.  The contract cost pursuant to subsection 7 will be less than the estimated cost 
pursuant to subsection 5;
D.  The designated bidder and its supervisory employees while in the employ of the 
designated bidder have no adjudicated record of substantial or repeated willful 
noncompliance with any relevant federal or state regulatory statute, including, but not 
limited to, statutes concerning labor relations, occupational safety and health, 
nondiscrimination and affirmative action, environmental protection and conflicts of 
interest; and
E.  The proposed privatization contract is in the public interest and meets all 
applicable quality and fiscal standards.
A copy of the proposed privatization contract must accompany the certification 
transmitted to the Attorney General under this subsection.
9.  Rules.  The Department of Administrative and Financial Services may adopt rules 
to carry out the provisions of this chapter and to ensure that the competitive bidding 
process under this section is consistent with the provisions of competitive bids under 
section 1825-B.  Rules adopted pursuant to this subsection are routine technical rules as 
defined in chapter 375, subchapter 2-A.
§483.  Review by Attorney General
1.  Review by Attorney General.  A privatization contract submitted to the Attorney 
General becomes valid 30 business days after receipt of the certification for the contract 
required by section 482, subsection 8 unless the Attorney General notifies the agency of 
an objection to the contract within 30 business days of receipt of the certification. An 
objection by the Attorney General under this subsection must be in writing and state 
specifically the Attorney General's finding that the agency has failed to comply with one 
or more of the requirements of section 482, including that, based on independent review 
of all the relevant facts, the Attorney General finds incorrect any of the information in the 
certification required by section 482, subsection 8. The Attorney General may extend the 
time for objections for an additional period of 30 business days beyond the original 30 
business days by written notice to the agency stating the reason for the extension.
2.  Summonses by Attorney General.  For the purpose of reviewing an agency's 
compliance and certification pursuant to section 482, the Attorney General or the 
Attorney General's designee may require by summons the attendance and testimony 
under oath of witnesses and the production of books, papers and other records relating to 
the review. All provisions of law relative to summonses in Title 14, chapter 203 apply to 
a summons under this subsection.
3.  Forms; rules.  The Attorney General may prescribe forms and adopt rules to carry 
out the provisions of this chapter.  Rules adopted pursuant to this subsection are routine 
technical rules as defined in chapter 375, subchapter 2-A.
4.  Finality of Attorney General objection.  An objection of the Attorney General 
pursuant to subsection 1 is final and binding, unless the Attorney General in writing 
withdraws the objection.  If the Attorney General objects to a contract under subsection 1, 
the privatization process under section 482 is terminated unless the agency submits a 
revised certified contract to the Attorney General within 30 days of the date of the 
objection. The Attorney General shall review a revised certified contract in the same 
manner as a certified contract under subsection 1.
SUMMARY
This bill creates a process by which a state agency can enter a privatization contract 
with a nongovernmental entity to perform basic agency services for up to 5 years if a 
number of criteria are met, including:
1.  Wages and benefits for employees of the contractor are comparable to state 
employees performing the same services;
2.  The contractor endeavors to hire agency employees terminated due to the 
privatization;
3.  The agency provides an estimate of its costs in providing the subject services in 
the most efficient manner;
4.  The agency provides support and resources to allow agency employees to submit a 
competing bid to provide the privatized services;
5.  The agency considers as a contract cost any income tax revenue lost to the State as 
a result of services to be performed out of state under the contract; and
6.  The Attorney General performs a review to determine that all of the requirements 
of the bidding process and privatization contract have been met.