MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-Second Session
February 25, 2003
The Committee on Government Affairswas called to order at 8:12 a.m., on Tuesday, February 25, 2003. Chairman Mark Manendo presided in Room 3143 of the Legislative Building, Carson City, Nevada, and via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Mark Manendo, Chairman
Mr. Wendell P. Williams, Vice Chairman
Mr. Kelvin Atkinson
Mr. Chad Christensen
Mr. Tom Collins
Mr. Pete Goicoechea
Mr. Tom Grady
Mr. Joe Hardy
Mr. Ron Knecht
Mrs. Ellen Koivisto
Mr. Bob McCleary
Ms. Peggy Pierce
Ms. Valerie Weber
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Mr. John Oceguera, Assembly District No. 16
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O'Grady, Committee Counsel
Pat Hughey, Committee Secretary
OTHERS PRESENT:
Ted Olivas, Assistant Director of Finance, Clark County
Stan Olsen, Government Liaison, Las Vegas Metropolitan Police Department
Dan Musgrove, Director, Intergovernmental Relations, Office of the County Manager, Clark County
Mary Henderson, Lobbyist/Government Consultant, Nevada League of Cities
Kimberly J. McDonald, MPA, Special Projects Analyst and Lobbyist, City of North Las Vegas
Kevin Chapman, Deputy Fire Chief, Clark County Fire Department
William C. (Bill) Moell, Administrator, Department of Administration, Division of Purchasing
Danny Thompson, Executive Secretary-Treasurer, Nevada State AFL-CIO
Jack Jeffrey, representing the Southern Nevada Building and Construction Trades Council
Richard “Skip” Daly, Business Manager, Laborers, Hod Carriers, Cement Workers and Miners Local Union 169
Chairman Manendo called the meeting to order at 8:12 a.m.
Chairman Manendo opened the hearing on Assembly Bill 147.
Assembly Bill 147: Revises provisions relating to purchasing by local governments. (BDR 27-799)
Assemblyman John Oceguera, Assembly District No. 16, thanked the Committee for the opportunity to introduce A.B. 147. Mr. Oceguera explained that A.B. 147 addressed concerns with competitive bidding statutes contained in Chapter 332 of the Nevada Revised Statutes (NRS). He said that the intent of the bill was to allow for the non-competitive purchase of personal safety equipment that would be used by police and fire personnel when responding to emergencies. He said that the definition of personal safety equipment included such items as firearms, boots, bulletproof vests, protective garments, gloves, and helmets, and excluded such things as police and fire vehicles or other operational supplies and equipment used by fire and police departments in the course of non-emergency duties. He said the bill also included a provision that required the cost of the equipment to be comparable to the cost similar equipment on the market. He said that this would help to ensure a fair price for the equipment. Mr. Oceguera said that, while he understood the need to be frugal with taxpayer dollars, there were some situations where local governments should avoid a “penny-wise, pound-foolish” bid. He said that NRS already exempted certain equipment that was purchased by local law enforcement agencies from competitive bid requirements. He said that in order to provide safeguards against potential misuse of that exemption, there would be a requirement that the local government body or its representative limit the exemption to equipment that would be used when responding to emergencies. He said that there were a number of manufacturers who sold personal safety equipment, but that those manufacturers offered products that varied widely in quality and comfort, and that this made the specification development process difficult for many jurisdictions. He said that it was sometimes difficult to decide what an acceptable level of product quality and detail would be in order for a department to get the correct equipment and that many hours were wasted trying to develop an appropriate specification for some items. Assemblyman Oceguera said that the resulting specifications sometime reflected only one manufacturer’s product, and that the product was sometimes found to be unacceptable. He said that police and fire management needed to have the ability to purchase the personal safety equipment that best fit their departments’ needs in terms of safety, quality, comfort, and standardization. Assemblyman Oceguera said he thought all of the Committee members would agree that when purchasing items such as bulletproof vests, body armor, or protective gear such as helmets, gloves, and turnouts, the lowest price should not be the determining factor. Mr. Oceguera said he thought the choice was clear and urged the Committee’s support of A.B. 147. He thanked Chairman Manendo for the opportunity to present the bill before the Committee.
Ted Olivas, Assistant Director of Finance, Clark County, stated that he was responsible for the purchasing operations for Clark County, which included the Fire Department and the Las Vegas Metropolitan Police Department (LVMPD). Mr. Olivas said that when he reviewed A.B. 147, it had brought to mind concerns that he had when trying to develop appropriate specifications for certain items while trying to meet the requirements of the district attorney’s office, along with balancing those requirements with the needs of the fire department. He said that Clark County personnel had spent many hours trying to develop specifications that would meet all of the requirements of the competitive bidding process. He said that this had been difficult to do because there were so many products on the market. As an example, Mr. Olivas said there had been a turnout bid that Clark County had done that had required 58 specifications totaling more than 20 pages. He said that specifications such as where pockets should be placed, the type of stitching to be used, and the types of linings needed had to be defined in order for departments to get exactly what they needed. He said an argument could be made for the sole source procurement process, but that this process could also be very difficult. He said that his office, as well as the district attorney’s office, had strict standards that needed to be met before the sole source procurement process could be used. He said there was a detailed analysis that needed to be done and that it was difficult to be completely sure that there was only one manufacturer who produced a certain product and that the particular product was the only one that would meet the entity’s specifications. He said he believed that police and fire personnel knew what products they needed in order to maintain the safety of their personnel and that A.B.147 would allow them the flexibility to be able to accomplish that. Mr. Olivas said:
As Assemblyman Oceguera also mentioned, this doesn’t preclude us from doing a bid or negotiating the price, and this isn’t something that will allow a blank check for police and fire departments. These are things that we can sit down and negotiate. If there are multiple providers of the product, we could still do a bid, but instead of having to do a 20-page specification, we could say that we want model XYZ from manufacturer ABC or something like that where we say exactly what we want.
Mr. Olivas said he believed that the passage of this bill would be in the best interests of the police and fire fighters who were on the front lines.
Assemblyman Goicoechea said that he was very supportive of A.B.147 but wanted to see it expanded. As an example, he said there might be a water district that used a certain type of pump because its personnel was trained in that pump’s use and because the district had spare parts for it, but that the water district would have to go to bid for a pump and would have to purchase a completely different model.
Assemblyman Knecht said he supported the general intent of the bill. He said he had heard Assemblyman Oceguera say that the bill applied to personal safety equipment as defined in Section 6 of A.B.147, and asked Assemblyman Oceguera for some assurance that it would not be possible to expand the definition to include things such as motorcycles, motorcycle fairings, or anything else that somebody might be able to somehow consider to be personal safety equipment.
Assemblyman Oceguera answered that this was why he had specifically spoken about the intent of the bill in his opening remarks, and that if there were any question as to what the intent was, the record would be available for review.
Mr. Olivas said he thought the definition had been written to allow flexibility because it would be difficult to define everything that could be considered personal safety equipment. He said that one of the key factors in the bill was that the governing body or its authorized representative would have to make such a determination, and that the approval process would go through several channels. He noted that the Clark County Fire Department could propose using this section of the law as a competitive bidding exception, but that the purchasing professionals of the jurisdiction would have the final authority to make sure that the request was within the definition.
Assemblyman Knecht said he understood the difficulty in trying to develop a barrier in the bill and that he understood Assemblyman Oceguera’s desire to see that the legislative intent was clearly in the record. Mr. Knecht said he was uneasy with the lack of a better-defined limit, but said that the bill was a good one. He said he thought the Committee would be able to accept it as well as the legislative intent.
Eileen O’Grady, Committee Counsel, stated that the definition of “personal safety equipment” was that it would be limited to safety equipment that was worn or otherwise carried.
Assemblyman Williams said:
I just want to be clear on the same thing, Mr. Chairman. Also, it’s on page 4, subsection 3, lines 29, 30, 28, that language specifies safety equipment in responding to emergencies and, I may be a little bit too technical, but you could wear or carry something that could be purchased but those things are not usually carried when responding to an emergency. I would suspect the fire personnel or police personnel could wear something or carry something and not be responding to an emergency, but over on page 5, subsection 6, they still would be allowed to purchase those items. There’s one point about what types of items can be purchased, then on page 4, that language deals with when those things can be carried or worn, and according to the language on page 4, it can only be carried or worn when they’re responding to an emergency, and as we know, there are a lot of activities that members of the public safety do, a lot of places that they go and that they’re not responding to an emergency. So, do we need to specify items that are worn or carried for safety reasons and be real specific that these are things that only can be purchased when used in responding to an emergency, because there are things that they purchase that they use every day that aren’t emergency items.
Ms. O’Grady said:
Well, I agree. I think paragraph (a) of subsection 3 would further limit the definition of personal safety equipment, which it just says it’s safety equipment that can be worn or otherwise carried, but then in 3(a), it limits what can be bought to just the personal safety equipment that’s used in responding to emergencies in which the health, safety, or welfare of the personnel may be compromised.
Stan Olsen, Government Liaison, Las Vegas Metropolitan Police Department (LVMPD), said:
One of the things that might help clear this up, as a general rule, the Las Vegas Metropolitan Police Department, for example, issues ballistic vests to every single police officer already. Our interpretation of this in my discussions with Ted Olivas many weeks ago about this bill, is that to cover such things as, if you remember the big shoot-out in Los Angeles where the individuals had machine guns, etc., and the officers were outgunned. They didn’t have the appropriate ballistic armor to protect them. This type of thing, granted you could not make this purchase right then and there, but there are ballistic vests that are made for high‑powered rifles or ballistic vests that are made for absorbing shrapnel from explosives, and these are things that the cops are not carrying or wearing every day. Within the Metropolitan Police Department, we do have a very limited number of that type of equipment that is assigned to the SWAT team, but if it was a large-scale emergency, we may have to purchase more of this equipment. An example is eleven years ago, we had some wide‑scale unrest. The Metropolitan Police Department went into this unrest as a normal civil disturbance and took heavy gunfire immediately and it went on for nearly a week. There were upwards of four or five hundred rounds fired in the first confrontation. We immediately started trying to find ballistic helmets, which we did not have, and ballistic vests that we could issue to the people that would handle the rifle rounds that were being fired. What we did is, we didn’t purchase them; we talked to the military, we sent down a truck, got a truckload of the equipment on loan from the Marine Corps, and used that. This type of situation could cause an emergency purchase of specialized equipment that is personal safety, but as a rule of thumb, general, average, everyday body armor is either purchased by the agency or already worn. I think that might clear things up a little bit.
Assemblyman Williams said he agreed with Mr. Olsen, but that the language in A.B.147 did not clearly state this. He said that the language in the bill contradicted itself. He said he understood and agreed with the intent, but still thought the language needed to be clarified.
Assemblyman Hardy said he agreed with Assemblyman Williams. As an example, he said that the Boulder City Fire Department had a uniformed honor guard and if at some point they would have to purchase uniforms from a different source than where the original uniforms were ordered, the department could end up with different-looking uniforms. He said that this would not be an emergency, but it would be a cost incurred by the Fire Department and that the uniforms should look alike and, therefore, the department should be able to order additional uniforms from the same source. Mr. Hardy said he thought if subsection 3(a) were deleted from A.B. 147, it would be compatible with the intent. He said he thought Mr. Goicoechea had been looking at subsection 3.1(d) as referring to equipment for training and replacement parts that could include items that needed to be ordered from the same vendor in order to keep all emergency equipment compatible.
Assemblyman Goicoechea said he did not want to stray too far away the intent of A.B. 147. He said he agreed that with items such as fire hydrants, if different vendors could provide the same type of fire hydrant, it would make the maintenance and safety of the fire hydrants easier to maintain.
Dan Musgrove, Director, Intergovernmental Relations, Office of the County Manager, Clark County, said he thought that the two sections of A.B. 147 being discussed were complimentary because in order for the provisions to be effective, there would be a two-stop process. He said the first process would be to make the determination that the item was personal safety equipment. He said the next process would be to make sure that the only time these provisions were used would be in an emergency situation, which would mean that everyday items could not be purchased. He said the items purchased would be for use in an emergency, a life-threatening situation, or a situation serious enough to require a specific kind of material, turnout, or similar item.
Assemblyman Collins said he thought the language was clear. He said that this bill would eliminate and streamline incidents such as when the city of North Las Vegas decided they did not want to use Harley-Davidsons anymore, so they started to require that the shifter be on the handlebars so that they could buy the Kawasakis they wanted. He said this bill would make situations safer and easier for police and firefighters and would enable them to do their jobs better.
Assemblyman Williams then said:
I’m going to try and be a little clearer this time. I know I get a little off base. Okay. On page 5, starting on line 7, when we define personal safety equipment, the definition is clear. It means safety equipment that is worn or otherwise carried on a regular basis by personnel of a fire department or law enforcement. It goes on and limits to, it lists some of those, but not limited to, which still kind of bothers me a little bit, because that opens up the door to others. But then on the other page, page 4, Section 3, subsection (a), that language goes into this equipment that we’re talking about purchasing under this bill, we’re talking safety equipment that’s defined on page 5, but this equipment as described on page 4 says that this equipment can only be purchased as equipment that’s used when responding to an emergency. This means that they can’t purchase safety—there is safety equipment that they can purchase when they’re not responding to an emergency. It’s still safety equipment, but the language on page 4 says this can be used when purchasing equipment for responding to an emergency, so those safety items that they don’t use when responding to an emergency wouldn’t fall under this bill. That’s the difference. The safety equipment that they purchase when they’re responding to an emergency, and there’s general safety equipment they purchase all the time just for safety reasons. So, if we want to just open it up for personal safety equipment, we have to deal with either deleting some of the language on page 4, or we have to clarify. And I’m sure there is some safety equipment that the fire department or the police department purchased that they use when they are not responding to an emergency. There has to be… I mean, this bill if it passes, let me put it that way, I can’t see it passing when none of our names are on it and we’re on the Committee, but if this bill passes in its present form, they could all be limited to purchasing only safety equipment that they use when they’re going to an emergency. I think when I brought this up before, our very well versed and outstanding legal counsel agreed with that.
Assemblyman Oceguera said he would have to disagree with Assemblyman Williams. He said that whatever the Committee were to choose to do with the bill would be fine, but that he believed the language was clear. He pointed out that if the rules of statutory construction were followed, section 4 would be read before section 5, and not the other way around.
Mary Henderson, Lobbyist/Government Consultant, Nevada League of Cities (NLC), said that NLC supported the bill. She also said that local governments would still be involved in the process in many ways, since a portion of Section 3 read, “If authorized by the governing body.” She said that local governments worked in support of safety personnel in the field and that she thought the provisions to protect them were in place in the bill. She pointed out that she thought another important portion of A.B.147 was the language in pages 1-3 that strengthened and clarified existing purchasing laws. She said she thought the language would help the local governments do a better job of acquiring equipment their employees needed. She said that the critical points of A.B. 147 were those that involved law enforcement and fire departments, but that there were also good additions to other sections of it. She said she wanted to assure Committee members that local governments would be very involved in the purchasing of public safety and law enforcement equipment.
Kimberly J. McDonald, MPA, Special Projects Analyst and Lobbyist, City of North Las Vegas, said that they strongly supported the bill and that they felt it would further define and give more flexibility to local governments to allow for more prudent purchasing practices.
Assemblyman Hardy said, as he had heard it, the legislative intent of A.B. 147 would be to address equipment purchases that related to such things as emergency response and fire safety, and that there would be an open door for other types of equipment and supplies that would be purchased by local governments. He said that this was how he had read the bill and that it would apply to more than just personal safety equipment.
Ms. McDonald said that this was her interpretation also and that those she represented definitely agreed with the flexibility of the bill.
Assemblyman Knecht said that based on some of the questions and answers he had heard, he wanted to ask if the concerns he had heard might be alleviated by the addition of disclosure documentation requirements. Mr. Knecht then asked Mr. Olivas if he was aware of any documentation requirements that would satisfy the concerns of members of the Assembly Committee on Government Affairs.
Mr. Olivas pointed out that page 4, subsection 3(b), line 33, of A.B. 147 would require entities to go through a market comparison process in order to validate the pricing of the product they wished to order, and that this, along with line 26 on the same page of the bill, which contained the phrase “by the governing body or its authorized representative,” could be considered the necessary documentation. He said that the governing body or its authorized representative would review the request and determine whether the request met the definition and whether there was a similar product on the market for a comparable price. He stated it was his opinion that these factors would be what would keep the process honest and could also be considered the necessary documentation.
Assemblyman Knecht asked Assemblyman Oceguera if it would be the legislative intent that such documentation be retained in order to maintain a record showing that correct procedures had been followed and that a purchase would meet the intent of the bill.
Assemblyman Oceguera said he had not given that any thought, but with the answer he had just heard, he said he did not have a problem with putting that on the record as the intent.
Kevin Chapman, Deputy Fire Chief, Clark County Fire Department, stated that they were in support of A.B. 147. He thanked Assemblyman Oceguera for bringing the bill forward. He said he thought he could speak for the rest of the public safety community when he said they would like to make sure that they could purchase the best possible equipment for their employees who worked on the front lines.
Chairman Manendo asked if there was anyone else in Las Vegas who wished to testify on the bill. There were none. Chairman Manendo then asked if there was anyone who wished to speak in opposition to the bill in Carson City or Las Vegas. There were none.
Chairman Manendo closed the hearing on A.B. 147 and stated it would be brought back to Committee. Chairman Manendo then asked Assemblyman Williams if he wished to work on language for the bill. Mr. Williams said he would.
Chairman Manendo opened the hearing on Assembly Bill 116.
Assembly Bill 116: Revises provisions relating to state purchasing. (BDR 27‑485)
William C. (Bill) Moell, Administrator, Department of Administration, Division of Purchasing, provided a written copy of his testimony (Exhibit C). Mr. Moell stated that A.B. 116 was a housekeeping bill that covered a variety of areas in Chapter 333 of the Nevada Revised Statues (NRS). He then proceeded to review the eight areas of amendment as follows:
Chairman Manendo asked if there was anyone else who wished to speak on A.B.116. Danny Thompson, Executive Secretary-Treasurer, Nevada State AFL‑CIO, said that they were concerned that A.B. 116 was more than a housekeeping bill. He stated that when referring to services, they were concerned about two issues. One issue was prevailing wage and the other was indefinite quantity contracts. He said that the Nevada State AFL-CIO was opposed to indefinite quantity contracts. He also said that there would be a bill coming before the Assembly Committee on Government Affairs that had been requested by the Clark County School District concerning the enforcement of prevailing wage laws under certain kinds of scenarios. He said, because of that, his organization would oppose A.B. 116 unless those items were clarified.
Jack Jeffrey, representing the Southern Nevada Building and Construction Trades Council, said that he agreed with Mr. Thompson.
Assemblyman Collins asked Mr. Thompson if what he had said was that they could have rolling bids if they stayed under the requirement for prevailing wage.
Mr. Thompson answered that it was unclear to him how that would work in A.B. 116 and that it was also unclear in the other bill. He said there had been a very bad experience in the Clark County School District where contractors on a job had forced employees to pay kickbacks in order to keep their jobs. He said that those employees had been undocumented workers who did not speak English. He also said that the employees had been brought before the school board and that one of them testified that he had been forced to pay his supervisor $100 a week in order to keep his job. Mr. Thompson said another employee had testified in Spanish that he had been paid less than the prevailing wage, though Mr. Thompson could not recall exactly what the pay had been. Mr. Thompson said the Nevada State AFL-CIO’s concern was that, when talking about services and these types of contracts, enforcing the law could be very difficult. He said it was already very difficult to enforce the law if someone was intent on cheating, but felt that indefinite quantity contracts would expand the problems.
Mr. Moell pointed out that Nevada State Purchasing had nothing to do with public works projects, that they buy goods and services for the state of Nevada, and that they had no affiliation with the Clark County School District. Mr. Moell also said that, more importantly, when Nevada State Purchasing referred to not specifying quantities, they were referring to the purchasing of items where the state did not guarantee that it would purchase a specific quantity. He said that when the state had unspecified quantity contracts with a variety of office supply providers, it gave the state and its customers the flexibility to buy whatever quantities they needed. He said that the types of services purchased by Nevada State Purchasing were for things such as windshield replacement and court reporting. He said he understood the concerns, but thought that the concerns were not appropriate to NRS Chapter 333.
Assemblyman Grady said he agreed with Mr. Thompson’s comments and asked if an amendment could be prepared that would define “services.” He said he thought everyone understood what “supplies” were, but thought the term “services” was too broad.
Mr. Moell said he believed “services” had been defined at the beginning of A.B. 116, but that he would review the bill to be sure.
Richard “Skip” Daly, Business Manager, Laborers, Hod Carriers, Cement Workers and Miners Local Union 169, said that they had the same concerns as Mr. Thompson and Mr. Jeffrey and that they also shared Mr. Grady’s concern regarding the definition of “service.” He said that if the word “service” were added to A.B. 116, an example of his union’s concern would be that when contracting for painting work, painting could be considered a service, a supply, and/or a material, and that this would be where those various areas could be infringed upon. He said it had been his experience that there had been an increasing tendency by government bodies trying to define “services” as maintenance in order to evade prevailing wage issues, or doing construction work and calling it maintenance.
Assemblywoman Weber recommended that if the proposed definitions for “recycled paper products” on page 6, Section 9, of A.B. 116, were to be adopted by the Assembly Committee on Government Affairs, then the Committee should also amend page 2, Section 4, of A.B. 147 as well, since the same definitions were used in that bill.
Mr. Moell said the revised definition of “recycled paper products” would make it easier for local entities to utilize recycled paper. He also said that Nevada State Purchasing would be happy to specify “non-construction services” in A.B 116. He said that the Public Works Board and the Division of Buildings and Grounds were the entities that dealt with things such as construction, building maintenance, and minor repairs, and that Nevada State Purchasing would be happy to make that distinction in A.B. 116.
Mr. Manendo asked if anyone else wished to testify in favor of or in opposition to A.B. 116. There were none. Chairman Manendo closed the hearing on A.B. 116. Chairman Manendo asked Assemblyman Grady and Assemblywoman Pierce to work with the interested parties to see if a resolution to the issues could be found and to come back to the Committee with some new language.
Chairman Manendo then asked that when Committee hearing attendees signed in at a hearing, that they be sure to indicate what piece of legislation they wished to speak on and whether they planned to testify in favor of or in opposition to it. He said that this information helped the Chairman to allocate time accordingly and would help to make sure that everyone who wished to speak got the chance to do so.
There being no further business, Chairman Manendo adjourned the meeting at 9:05 a.m.
RESPECTFULLY SUBMITTED:
Pat Hughey
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: