Legislative Updates & ARRA Conference Highlights

Legislative Update & ARRA CAGP Spring Conference Eileen Youens UNC-CH School of Government

Agenda • New and Amended Purchasing Statutes • New Local Acts • Key Bills That Didn’t Pass • American Recovery & Reinvestment Act

GESC requirements • Local governments must report terms of the GESC to the State Energy Office as well as the LGC. • During investment grade audit (performed after government accepts proposal), provider must also perform a life cycle cost analysis of each energy conservation measure in the final proposal. • G.S.143-64.17B and G.S. 143-64.17G (amended by Session Law 2009-375)

Community college purchasing • Community colleges are no longer required to purchase off of state term contracts (for items that cost less than the benchmark established in G.S. 143-53.1). • G.S. 115D‑58.14 (amended by Session Law 2009-132)

Donation of surplus property • Local governments now have the authority to donate surplus personal property to charter schools (as well as to other local governments and “sister cities”). • G.S. 160A-280, amended by Session Law 2009-141.

Conflicts of Interest • The dollar limit on goods and services that are exempt from the conflicts of interest statute under the “small jurisdiction” exception increased from $25,000/yr to $40,000/yr (and from $12,500/yr to $20,000/yr for medically-related goods and services) • Applies to municipalities with a population of 15,000 or less, and to counties and school districts with no municipalities with a population of more than 15,000

Conflicts of Interest • Note that contracts that must be competitively bid (purchases and construction/repair contracts costing $30,000 or more) are still excluded from this exception (these contracts are still prohibited) • G.S. 14-234, amended by Session Law 2009-226.

Community college construction • For construction projects costing $1 million or less, the State Board of Community Colleges may • Enter into contracts without approval from the Department of Administration • Delegate authority to award contracts to individual community colleges • G.S. 115D-9 (added by Session Law 2009-229)

Mental health purchasing • Group purchases by developmental centers, neuromedical treatment centers, and alcohol and drug abuse treatment centers made through a “competitive bidding group purchasing program” do not have to go through the Division of Purchase and Contract. • G.S. 143-56 (amended by Session Law 2009-184)

Building Codes and Cisterns • State, county, and local building codes cannot prohibit the use of cisterns to provide water for flushing toilets and for outdoor irrigation. • G.S. 143-138(b), amended by Session Law 2009-243.

Building Codes and Cisterns • “Cistern” means a watertight storage tank that • has smooth interior surfaces and enclosed lids; • is made from nonreactive materials (e.g. reinforced concrete, galvanized steel, or plastic); and • is designed to collect rainfall from a catchment area.

Codes of Ethics • Local governing boards are required to adopt a code of ethics by January 1, 2011. • Elected board members are also required to receive 2 hours of ethics training by January 1, 2011, and each time they are re-elected. • New Part 3A of Chapter 160A (enacted by Session Law 2009-403)

False Claims Act • Creates civil liability for: • presenting a false claim for payment to the State or to a State contractor; • making or using a false statement to make such a claim; and • keeping property that belongs to the State. • Potential liability = 3X the damage to the State

False Claims Act • The Attorney General or a private person may bring a civil lawsuit based on this Act. • “Whistleblower” protection. • Only applies to false claims against State funds or property, not against local government funds or property. • New Article 52 of Chapter 1 (enacted by Senate Law 2009-554)

False Claims Act Bottom line: If you have reason to believe that a contractor or sub is requesting payment for work not done or equipment/materials not used, this could be considered a false claim—and if you pay it, you are participating in that claim.

Seals Not Public Records • The seal of an architect, engineer, or surveyor on building inspection documents that have been submitted for project approval to a city or county is not a public record. • New G.S. 132-1.2(5) (amended by Session Law 2009-346)

Plumbing Contractors and Wells • A licensed plumbing contractor who • installs pumps or pumping equipment; or • installs, breaks, or reinstalls a well seal; or • disinfects a well

Plumbing Contractors and Wells • does not need to be a certified well contractor, as long as the contractor • maintains documentation of continuing education course taken within the past 2 years; and • remains on-site while the work is being performed. • G.S. 87‑98.4(b)(11) (amended by S.L. 2009-418)

Local Acts • Session law 2009-168: • The City of Asheville may limit future uses of property it sells (Winston-Salem and McDowell County already have this authority) • Session law 2009-149 • The City of Raleigh may purchase without bidding items that will be used for energy conservation pilot projects • Raleigh and Winston-Salem may enter into leases for renewable energy facilities without treating the lease as a sale, and without publishing notice

Local Acts • Session law 2009-250 • Mecklenburg County may use its own forces for nonutility construction or repair work for park and greenway projects as long as the total cost of the project does not exceed $300,000. • Session Law 2009-370 • Currituck County may construct a facility for public recreation, senior activities and other public uses without bidding.

Local Acts • Session law 2009-76 • The City of Asheville and Buncombe County may use their own forces for certain projects in the Buncombe County jail annex as long as the total cost of the project does not exceed $250,000. • The Town of Dallas may use its own forces for a police department renovation as long as the total cost of the project does not exceed $250,000.

Local Acts • Session law 2009-162 • Authorizes Mecklenburg County to enter into reimbursement agreements with private property owners for the design and construction of certain parks without complying with the requirements of Article 8, Chapter 143 for construction contracts • County may reimburse by exchanging real property with the private owner

Local Acts • Session law 2009-162 • However, the private property owner must comply with the public bidding and public advertising requirements • Also added this requirement to earlier authorization for City of Charlotte to enter into similar agreements for certain municipal infrastructure construction/design

Local Acts • Session law 2009-430 • Authorizes Cabarrus County to use the “repetitive design” approach for school facilities without being subject to most public bidding and construction requirements • Must still comply with the HUB requirements • County and Board of Education must agree that the process used will be more efficient and effective than competitive bidding

Local Acts • Session law 2009-161 • Authorizes Edgecombe County and Edgecombe County Schools to provide affordable rental housing for public school teachers without regard to the disposal of property requirements in Article 12 of Chapter 160A.

Local Acts • Session laws 2009-41, 2009-165, and 2009-252 • Authorizes the Durham City Council to delegate to the City Manager broad authority to contract on behalf on the City.

Key Bills That Didn’t Pass • HB 1035 – to increase P&P bond limit for UNC to $500,000 • HB 912 – to require participation goals/reporting for military veteran contractors • HB 324, HB 338, HB 344, SB 32, SB 290 – to require the use of E-Verify on public construction projects • SB 370 – Holly Springs design-build authority • SB 416 – to give contract authority to the Greensboro City Manager

ARRA • SOG Website • Recent OMB Updates • Jobs created/retained • Penalties • Help for local governments? • Questions

Buy American The Board of County Commissioners, the Director of Purchasing, and all County Employees involved in making purchasing decisions for Mecklenburg County shall, in the purchase of or in contracting for goods, supplies, materials or equipment, give preference as far as may be practicable to such products manufactured or produced in the United States of America. Provided, however, that in giving such preference no sacrifice or loss in price or quality shall be permitted: and provided further, that no preference shall be given to products manufactured or produced in the United States if giving such preference would violate any trade treaty to which the United States is a signatory.

Contact • Phone: 919-962-0942 • Email: eyouens@sog.unc.edu

Legislative Updates & ARRA Conference Highlights