APPROVED CHAPTER
JUNE 22, 2021 332
BY GOVERNOR PUBLIC LAW
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-ONE
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S.P. 289 - L.D. 875
An Act To Protect Taxpayers in the Privatization of Services and To
Establish the State Procurement Review Committee
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 organization bid
or contract to provide agency services under section 1816-B.
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
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 D. To a contract by an employee organization to provide agency services under section
1816-B.
Sec. 3. 5 MRSA §1816-B is enacted to read:
§1816-B. Privatization of agency services
1. Definitions. As used in this section, unless the context otherwise indicates, the
following terms have the following meanings.
A. "Agency" means a state agency as defined in section 1552, subsection 6, but does
not include the quasi-independent state entities listed in section 12021, subsection 6.
B. "Agency cost estimate" means the cost to the agency seeking to privatize services
to provide the services in the most cost-efficient manner. "Agency cost estimate" is the
total of all direct and indirect costs to provide the services, including but not limited to
wages and pension, insurance and other employee benefit costs of agency employees.
C. "Agency employee" means an employee of the agency seeking to privatize services.
D. "Business day" means any calendar day, excluding Saturdays, Sundays and legal
holidays listed in Title 4, section 1051.
E. "Commissioner" means the Commissioner of Administrative and Financial
Services.
F. "Contract cost" means the total cost to the agency to privatize services. The total
cost is the sum of the cost of the proposed bid designated pursuant to subsection 7, the
costs of transition from public to private operation, the costs of any additional
unemployment and retirement benefits and the costs of monitoring and otherwise
administering contract performance.
G. "Contractor" means a nongovernmental person that has entered into a privatization
contract with the State.
H. ''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 1652,
subsection 2.
I. "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.
J. ''Privatization contract'' means an agreement or a combination or series of
agreements by which a nongovernmental person agrees with an agency to provide
services that are substantially similar to and in lieu of services provided, in whole or in
part, by agency employees and that has an agency cost estimate of at least $500,000 as
of October 1, 2021 and annually increased by the amount of increase in the Consumer
Price Index compiled by the United States Department of Labor, Bureau of Labor
Statistics for the most recent 12-month period for which data are available.
"Privatization contract" does not include:
(1) Any subsequent agreement to a privatization contract, including an agreement
resulting from a rebidding of previously privatized service, or an agreement
renewing or extending a privatization contract;
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 (2) A contract for information technology services provided to an agency if an
employee organization representing the agency employees agrees to the terms of
the contract in writing; or
(3) An agreement solely to provide legal, management consulting, planning,
engineering or design services.
2. Privatization of services. Notwithstanding any provision of this chapter or chapter
156 to the contrary, an agency seeking to enter into a privatization contract shall, in
consultation with the commissioner, comply with the requirements of this section.
A. Prior to issuing a request for proposals under subsection 5 for the privatization of
services, an agency seeking to enter into a privatization contract shall prepare a written
statement that includes:
(1) A summary of the services proposed to be the subject of the privatization
contract, including the specific quantity and standard of quality of the services;
(2) The minimum wage rate for each position for which a contractor may employ
a person pursuant to the privatization contract and for which the duties are
substantially similar to the duties performed by an agency employee. The
minimum wage rate must be the lowest classification under chapter 372 under
which the comparable agency employee is paid or the average private sector wage
rate for the position as determined by the commissioner from data collected by the
Department of Administrative and Financial Services, Bureau of Human
Resources and Bureau of General Services, whichever is lower; and
(3) The percentage paid by the State for the costs of health insurance plan coverage
for the agency employees who are employed for not less than 20 hours per week
and the percentage paid by the State for such costs for any dependent of such an
employee.
B. A written statement created by an agency under paragraph A is a public record and
must be filed, prior to issuance of a request for proposals, with the commissioner, the
Attorney General and employee organizations that represent agency employees.
C. Prior to issuing a request for proposals under subsection 5 for the privatization of
services, an agency seeking to enter into a privatization contract shall determine the
agency cost estimate. The agency cost estimate is confidential and not a public record
until the day after the final day for the agency to receive sealed bids for the privatization
contract pursuant to subsection 5, at which time the agency cost estimate becomes a
public record and must be filed with the commissioner and the Attorney General.
3. Employee organization request for review; final agency action. An employee
organization representing agency employees may file a written request for review with the
commissioner regarding the contents of the written statement required in subsection 2,
paragraph A within 10 business days of the date the statement was filed. The commissioner
shall issue a written decision on the request for review within 15 business days of receiving
the request for review. The commissioner's decision under this subsection constitutes final
agency action for the purposes of judicial review under chapter 375, subchapter 7.
4. Collective bargaining agreement amendment. An employee organization
representing agency employees may at any time before the final day for the agency to
receive sealed bids pursuant to subsection 5 propose an amendment to any relevant
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collective bargaining agreement to which the employee organization is a party, but such a
proposed amendment may take effect only if the effect of the proposed amendment is to
reduce the agency cost estimate below the contract cost. A proposed amendment under this
subsection is confidential and not a public record until the day after the final day for the
agency to receive sealed bids for the privatization contract pursuant to subsection 5, at
which time the proposed amendment becomes a public record and must be filed with the
agency, the commissioner and the Attorney General.
5. Request for proposals. An agency seeking to enter into a privatization contract
shall solicit competitive sealed bids for the privatization contract through the request for
proposals process. The day designated by the agency upon which it will accept sealed bids
must be the same for all parties.
A. The request for proposals for a privatization contract and the privatization contract
must require the contractor to:
(1) Pay a rate no less than the minimum wage rate established pursuant to
subsection 2, paragraph A, subparagraph (2) for each position subject to a
minimum wage rate;
(2) Provide, to an employee employed for not less than 20 hours per week and to
any dependent of the employee, health insurance plan coverage that is comparable
to the health insurance plan coverage provided to agency employees;
(3) Pay not less than the percentage established pursuant to subsection 2, paragraph
A, subparagraph (3) toward the cost of health insurance plan coverage for an
employee employed for not less than 20 hours per week and for any dependent of
such an employee;
(4) Submit quarterly payroll records to the agency, listing the name, address, social
security number, hours worked and hourly wage rate paid for each employee in the
previous quarter. Employee names, addresses and social security numbers are
confidential;
(5) Offer available employee positions under the privatization contract to qualified
agency employees who are displaced or terminated because of the privatization
contract and who satisfy the nondiscriminatory hiring criteria of the contractor
under subparagraph (6); and
(6) Comply with a policy of nondiscrimination and take affirmative steps to
provide equal opportunity for any person protected by the Maine Human Rights
Act.
B. The Attorney General may bring a civil action for equitable relief in Superior Court
to enforce paragraph A or to prevent or remedy the dismissal, demotion or other action
prejudicing any employee as a result of a report of a violation of paragraph A.
C. The term of a privatization contract, including renewals provided for in a
privatization contract, may not exceed 5 years unless a longer term is approved by the
commissioner.
D. A privatization contract may not be amended for the purpose or effect of avoiding
a requirement of this section.
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 6. Employee organization bids. Agency employees who are represented by an
employee organization may organize and request that the employee organization submit a
bid on their behalf to provide the services to be privatized.
A. An employee organization, after consulting with any agency employees seeking to
bid on 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 services to be privatized. For purposes of this paragraph, "adequate resources"
means no less than the minimum level of assistance provided for in:
(1) The terms of the existing collective bargaining agreement covering the agency
employees seeking to submit a bid;
(2) The terms of the expired collective bargaining agreement covering the agency
employees seeking to submit a bid during the period of collective bargaining
negotiations for a new agreement; or
(3) The terms of a comparable collective bargaining agreement covering
individuals who provide similar services if the existing or expired collective
bargaining agreement does not provide for a minimum level of assistance.
B. An employee organization bid under this subsection may be made as a joint venture
with other persons.
C. An employee organization bid under this subsection is confidential and not a public
record until the day after the agency designates the proposed winning bidder under
subsection 7.
7. Review of bids; designation of winning bidder. After soliciting and receiving the
submitted bids, an agency shall:
A. Publicly designate the bidder to which the agency proposes to award a privatization
contract;
B. Determine the contract cost of the designated bid and file a cost analysis with the
commissioner and the Attorney General. If the proposed bidder under paragraph A
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 caused by the corresponding elimination of agency employees, as determined by
the State Tax Assessor; and
C. Determine whether the contract cost under paragraph B is less than the agency cost
estimate prepared pursuant to subsection 2, paragraph C. If the contract cost is equal
to or more than the agency cost estimate, the agency may not enter into a privatization
contract.
If a bid is received from an employee organization, the commissioner, or the
commissioner's designee, may include staff from the Department of Administrative and
Financial Services, Bureau of Human Resources in the bid review process authorized by
section 1825-D.
8. Negotiation of privatization contract. If the contract cost calculated pursuant to
subsection 7, paragraph B is less than the agency cost estimate, the agency may begin
negotiating the terms of the privatization contract except that, if an employee organization
bid is awarded the privatization contract pursuant to subsection 7, the Department of
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Administrative and Financial Services, Bureau of Human Resources shall negotiate the
terms of the privatization contract with the employee organization. If the contract cost is
equal to or more than the agency cost estimate, the agency may not enter into a privatization
contract. The privatization contract must be filed with the commissioner and the Attorney
General prior to execution.
9. Attorney General authority. The authority of the Attorney General over the
privatization of services is governed by this subsection.
A. At any time during the process of privatizing any services pursuant to this section,
the Attorney General may:
(1) Intervene in the process;
(2) Require by summons the attendance and testimony under oath of state
employees and the production of documents for the purpose of investigating
whether the provisions set forth in this chapter and chapter 156 are met. All
documents produced and testimony given to the Attorney General pursuant to this
subparagraph are confidential. The Attorney General may seek an order from the
Superior Court compelling compliance with a summons issued under this
subparagraph; and
(3) Bring an action in Superior Court in the name of the State against an agency
when the Attorney General has reason to believe that a requirement of this section
has not been met, the agency has acted unlawfully or beyond the scope of its
authority, the actions or inactions of the agency are not supported by the record
required by this section or the privatization of services is not in the public interest.
B. After the filing of a court action under this subsection, further action by an agency
under this section must be stayed unless the court orders otherwise. During the period
of the stay, any time period specified for agency action under this chapter or chapter
156 is tolled until the court action is dismissed by the Attorney General or the Superior
Court orders an agency to take further action. Relief from the stay may be granted only
upon a showing of compelling justification.
C. Except as provided in this paragraph, at least 10 business days prior to
commencement of an action under this subsection, the Attorney General shall notify
the agency and the commissioner of the proposed action and shall provide the
commissioner and the agency an opportunity to confer with the Attorney General in
person or by counsel or other representative as to the proposed action. The Attorney
General may proceed without notice upon a showing by affidavit of immediate
irreparable harm to the citizens of the State