Session of 2000
HOUSE BILL No. 2602
By Representatives Swenson and Barnes
1-5
9 AN ACT
concerning employment; ensuring that employees of govern-
10 ment contractors are
paid a living wage; amending K.S.A. 75-37,103
11 and K.S.A. 1999 Supp.
75-3739 and repealing the existing section.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 New Section
1. (a) Any employer which enters into or seeks to enter
15 into a contract to provide goods or
services, with a value in excess of
16 $5,000 per year, to the state or any
municipality, as defined in K.S.A. 10-
17 1101, and amendments thereto, shall first
provide:
18 (1) Proof to the
purchasing government that all of the employer's
19 employees earn a wage of not less than
$9.37 per hour or an equivalent
20 salary based rate of compensation based on
a 40-hour work week. The
21 amount of such wages shall be adjusted
annually by a percentage equal
22 to the percentage change in the consumer
price index. The secretary of
23 human resources shall certify the amount of
such wages annually on July
24 1 of each year;
25 (2) proof of the
existence of a group health care insurance plan pro-
26 viding to its employees benefits not less
than those available under the
27 state uninsurable health insurance plan,
pursuant to K.S.A. 40-2118, and
28 amendments thereto, and to which its
employees contribute not more
29 than 30% of total premium costs; and
30 (3) proof of an
annual leave policy providing not less than 12 days of
31 compensated leave and 10 days of
uncompensated leave.
32 (b) All employees
of municipalities, as defined in K.S.A. 10-1101, and
33 amendments thereto, in the state shall earn
wages and benefits not less
34 than the wages specified in subsection
(a).
35 (c) Any employer
receiving economic development incentives from
36 the state or any municipality, as defined
in K.S.A. 10-1101, and amend-
37 ments thereto, including, but not limited
to, participation in programs
38 administered all or in part by the
department of commerce and housing;
39 participation in a redevelopment project
pursuant to K.S.A. 12-1701 et
40 seq., and amendments thereto;
receipt of an economic development tax
41 exemption or the proceeds from industrial
revenue bonds, shall pay wages
42 and benefits not less than the amount
specified in subsection (a).
43 New Sec.
2. (a) The attorney general or any county or district
attor-
2
1 ney may bring an action:
2 (1) To
obtain a declaratory judgment that an employer has violated,
3 is violating or is otherwise likely
to violate section 1 and amendments
4 thereto;
5 (2) to
recover damages on behalf of employees by reason of violations
6 of this act; and
7 (3) to
recover reasonable expenses and investigation fees.
8 (b) In lieu
of instigating or continuing an action or proceeding, the
9 attorney general may accept a consent
judgment with respect to any vi-
10 olation of section 1 and amendments
thereto. Such a consent judgment
11 shall provide for the discontinuance by the
employer of pursuing contracts
12 from the state of Kansas or any
municipality; from the further receipt of
13 economic development benefits as described
in subsection (c) of section
14 1 and amendments thereto; and it may
include a stipulation for the pay-
15 ment by such employer of reasonable
expenses and investigation fees
16 incurred by the attorney general. The
consent judgment also may include
17 a stipulation for restitution to be made by
such employer to employees
18 of wages or benefits owed to employees as a
result of a violation of section
19 1 and amendments thereto and also may
include a stipulation for specific
20 performance. Any consent judgment entered
into pursuant to this section
21 shall not be deemed to admit the violation,
unless it does so by its terms.
22 Before any consent judgment entered into
pursuant to this section shall
23 be effective, it must be approved by the
district court and an entry made
24 thereof in the manner required for making
an entry of judgment. Once
25 such approval is received, any breach of
the conditions of such consent
26 judgment shall be treated as a violation of
a court order, and shall be
27 subject to all the penalties provided by
law therefor.
28 (c) In any action
brought by the attorney general or the county or
29 district attorney, the court, without
requiring bond of the attorney general
30 or the county or district attorney,
may:
31 (1) Make such
orders or judgments as may be necessary to prevent
32 the receipt of contracts or economic
development benefits declared to
33 be a violation of this act;
34 (2) make such
orders or judgments as may be necessary to compen-
35 sate any employee for damages
sustained;
36 (3) issue a
temporary restraining order or enjoin any supplier from
37 engaging in business in this state;
38 (4) award
reasonable expenses and investigation fees, civil penalties
39 and costs; and
40 (5) grant other
appropriate relief.
41 (c) The attorney
general and any other official or agency in this state
42 having supervisory authority over an
employer shall consult and assist
43 each other in maintaining compliance with
this act. Within the scope of
3
1 their authority, they may jointly or
separately make investigations, pros-
2 ecute suits and take other official
action they consider appropriate.
3 (d) The
county attorney or district attorney may investigate, institute
4 and commence actions under this act
in the same manner as provided for
5 the attorney general. It shall be the
duty of the county attorney or district
6 attorney to lend to the attorney
general such assistance as the attorney
7 general may request in the
investigation, commencement and prosecution
8 of actions pursuant to this act, or
the county attorney or district attorney
9 may institute and prosecute actions
hereunder in the same manner as
10 provided for the attorney general.
11 (e) Whether an
employee seeks or is otherwise entitled to damages
12 or otherwise has an adequate remedy at law
or in equity, an employee
13 aggrieved by an alleged violation of this
act may bring an action to:
14 (1) Obtain a
declaratory judgment that an employer has violated sec-
15 tion 1 and amendments thereto; or
16 (2) enjoin or
obtain a restraining order against an employer who has
17 violated, is violating or is likely to
violate section 1 and amendments
18 thereto.
19 (f) An employee
who is aggrieved by a violation of this act may
20 recover:
21 (1) A civil
penalty of $5,000; or
22 (2) monetary
damages for wages and benefits owed, whichever is
23 greater.
24 (g) An action for
lost wages or benefits may be brought as a class
25 action, but an action seeking civil
penalties only may not be brought as a
26 class action.
27 (h) Such class
action may be instituted for:
28 (1) Violating any
of the provisions of section 1 and amendments
29 thereto; or
30 (2) with respect
to an employer who agreed to it, was prohibited
31 specifically by the terms of a consent
judgment which became final before
32 the complaints on which the action is
based.
33 (i) Except for
services performed by the office of the attorney general
34 or the office of a county or district
attorney, the court may award to the
35 prevailing party reasonable attorney fees,
including those on appeal, lim-
36 ited to the work reasonably performed
if:
37 (1) The employee
complaining of the alleged violation brought or
38 maintained an action the employee knew to
be groundless and the pre-
39 vailing party is the employer; or an
employer has violated this act and the
40 prevailing party is the employee; and
41 (2) an action
under this section has been terminated by a judgment
42 or settled.
43 (j) Except for
consent judgments, a final judgment in favor of the
4
1 attorney general under this section
is admissible as prima facie evidence
2 of the facts on which it is based in
later proceedings under this section
3 against the same employer or an
employer in privity.
4 (k) Notice
of an action commenced pursuant to subsection (b) or (c),
5 or an appeal of such action, shall be
given to the attorney general, but
6 failure to do so shall not provide a
defendant a defense in such action.
7 Sec.
3. K.S.A. 1999 Supp. 75-3739 is hereby amended to read as
8 follows: 75-3739. In the manner as
provided in this act and rules and
9 regulations established
thereunder:
10 (a) All contracts
for construction and repairs, and all purchases of and
11 contracts for supplies, materials,
equipment and contractual services to
12 be acquired for state agencies shall be
based on competitive bids, except
13 that competitive bids need not be required
in the following instances:
14 (1) For
contractual services, supplies, materials, or equipment when,
15 in the judgment of the director of
purchases, no competition exists;
16 (2) when, in the
judgment of the director of purchases, chemicals
17 and other material or equipment for use in
laboratories or experimental
18 studies by state agencies are best
purchased without competition, or
19 where rates are fixed by law or
ordinance;
20 (3) when, in the
judgment of the director of purchases, an agency
21 emergency requires immediate delivery of
supplies, materials or equip-
22 ment, or immediate performance of
services;
23 (4) when any
statute authorizes another procedure or provides an
24 exemption from the provisions of this
section;
25 (5) when
compatibility with existing contractual services, supplies,
26 materials or equipment is the overriding
consideration;
27 (6) when a used
item becomes available and is subject to immediate
28 sale; or
29 (7) when, in the
judgment of the director of purchases and the head
30 of the acquiring state agency, not seeking
competitive bids is in the best
31 interest of the state.
32 When the director of
purchases approves a purchase of or contract for
33 supplies, materials, equipment, or
contractual services in any instance
34 specified in this subsection, the director
may delegate authority to make
35 the purchase or enter the contract under
conditions and procedures pre-
36 scribed by the director.
37 The director of
purchases shall prepare a detailed report at least once
38 in each calendar quarter of all contracts
over $5,000 entered into without
39 competitive bids under subsection (a)(1),
(2), (3), (5), (6) or (7). The
40 director shall submit the report to the
legislative coordinating council, the
41 chairperson of the committee on ways and
means of the senate, the chair-
42 person of the committee on appropriations
of the house of representatives
43 and the chairperson of the Kansas
performance review board.
5
1 (b)
(1) If the amount of the purchase is estimated to exceed
$50,000,
2 sealed bids shall be solicited by
notice published once in the Kansas reg-
3 ister not less than 10 days before
the date stated in the notice for the
4 opening of the bids. The director of
purchases may waive this publication
5 of notice requirement when the
director determines that a more timely
6 procurement is in the best interest
of the state. The director of purchases
7 also may designate a trade journal
for the publication. The director of
8 purchases also shall solicit such
bids by sending notices by mail to pro-
9 spective bidders and by posting the
notice on a public bulletin board for
10 at least 10 business days before the date
stated in the notice for the
11 opening of the bids unless otherwise
provided by law. All bids shall be
12 sealed when received and shall be opened in
public at the hour stated in
13 the notice.
14 (2) The director
of purchases shall prepare a detailed report at least
15 once in each calendar quarter of all
instances in which the director waived
16 publication of the notice of bid
solicitations in the Kansas register as
17 provided in this subsection. The director
shall submit the report to the
18 legislative coordinating council, the
chairperson of the committee on ways
19 and means of the senate, the chairperson of
the committee on appropri-
20 ations of the house of representatives and
the chairperson of the Kansas
21 performance review board.
22 (c) All purchases
estimated to exceed approximately $25,000 but not
23 more than $50,000, shall be made after
receipt of sealed bids following
24 at least three days' notice posted on a
public bulletin board.
25 (d) All purchases
estimated to be more than $5,000, but less than
26 $25,000, may be made after the receipt of
three or more bid solicitations
27 by telephone, telephone facsimile or sealed
bid, following at least three
28 days' notice posted on a public bulletin
board. Such bids shall be recorded
29 as provided in subsection (e) of K.S.A.
75-3740 and amendments thereto.
30 Any purchase that is estimated to be less
than $5,000 may be purchased
31 under conditions and procedures prescribed
by the director of purchases.
32 Purchases made in compliance with such
conditions and procedures shall
33 be exempt from other provisions of this
section.
34 (e) With the
approval of the secretary of administration, the director
35 of purchases may delegate authority to any
state agency to make pur-
36 chases of less than $25,000 under certain
prescribed conditions and pro-
37 cedures. The director of purchases shall
prepare a report at least once in
38 each calendar quarter of all current and
existing delegations of authority
39 to state agencies as provided in this
subsection. The director shall submit
40 the report to the legislative coordinating
council, the chairperson of the
41 committee on ways and means of the senate,
the chairperson of the com-
42 mittee on appropriations of the house of
representatives and the chair-
43 person of the Kansas performance review
board.
6
1 (f) Subject
to the provisions of subsection (e), contracts and purchases
2 shall be based on specifications
approved by the director of purchases.
3 When deemed applicable and feasible
by the director of purchases, such
4 specifications shall include either
energy efficiency standards or appro-
5 priate life cycle cost formulas, or
both, for all supplies, materials, equip-
6 ment and contractual services to be
purchased by the state. The director
7 of purchases may reject a contract or
purchase on the basis that a product
8 is manufactured or assembled outside
the United States. No such speci-
9 fications shall be fixed in a manner
to effectively exclude any responsible
10 bidder offering comparable supplies,
materials, equipment or contractual
11 services.
12
(g) Notwithstanding anything herein to the contrary, all
contracts
13 with independent construction concerns for
the construction, improve-
14 ment, reconstruction and maintenance of the
state highway system and
15 the acquisition of rights-of-way for state
highway purposes shall be ad-
16 vertised and let as now or hereafter
provided by law.
17 (h) The director
of purchases may authorize state agencies to contract
18 for services and materials with other state
agencies, or with federal agen-
19 cies, political subdivisions of Kansas,
agencies of other states or subdivi-
20 sions thereof, or private nonprofit
educational institutions, without com-
21 petitive bids.
22 (i) The director
of purchases may participate in, sponsor, conduct, or
23 administer a cooperative purchasing
agreement or consortium for pur-
24 chases of supplies, materials, equipment,
and contractual services with
25 federal agencies or agencies of other
states or local units of government.
26 Cooperative purchasing agreements entered
into under this subsection
27 shall not be subject to K.S.A. 75-3739
through 75-3740a, and amend-
28 ments thereto. Nothing in this
subsection shall allow federal grant moneys
29 to be handled differently from any
other moneys of the state unless the
30 requirements of the applicable
federal grant specifically require such fed-
31 eral moneys to be handled
differently.
32 (j) The director
of purchases may delegate authority to any state
33 agency to make purchases under certain
prescribed conditions and pro-
34 cedures when the acquisition is funded, in
whole or in part, from a grant.
35 Purchases made in compliance with such
conditions and procedures shall
36 be exempt from other provisions of this
section. As used in this subsection
37 the term "grant" means a disbursement made
from federal or private
38 funds, or a combination of these sources,
to a state agency. Nothing in
39 this subsection shall allow federal
grant moneys to be handled differently
40 from any other moneys of the state
unless the requirements of the appli-
41 cable federal grant specifically require
such federal moneys to be handled
42 differently.
43 (k) The director
of purchases shall prepare a detailed report at least
7
1 once each calendar quarter of all
contracts for services, supplies, materials
2 or equipment entered into pursuant to
subsection (h), (i) or (j) and submit
3 it to the legislative coordinating
council, the chairperson of the committee
4 on ways and means of the senate, the
chairperson of the committee on
5 appropriations of the house of
representatives and the chairperson of the
6 Kansas performance review board.
7 (l) Except
as otherwise specifically provided by law, no state agency
8 shall enter into any lease of real
property without the prior approval of
9 the secretary of administration. A
state agency shall submit to the sec-
10 retary of administration such information
relating to any proposed lease
11 of real property as the secretary may
require. The secretary of adminis-
12 tration shall either approve, modify and
approve or reject any such pro-
13 posed lease.
14 (m) The director
of purchases shall require all bidders on state con-
15 tracts to disclose all substantial
interests held by the bidder in the state.
16 (n) No
contract shall be awarded under this section to any bidder
17 with employees earning less than the
wages and benefits specified in sec-
18 tion 1 and amendments thereto.
19 Sec.
4. K.S.A. 75-37,103 is hereby amended to read as follows:
75-
20 37,103. (a) After reasonable notice to the
person involved and reasonable
21 opportunity for that person to be heard,
the secretary of administration,
22 after consultation with the contracting
agency and the attorney general,
23 shall have authority to debar a person for
cause from consideration for
24 award of contracts. The debarment shall not
be for a period exceeding
25 three years. The secretary, after
consultation with the contracting agency
26 and the attorney general, shall have
authority to suspend a person from
27 consideration for award of contracts if
there is probable cause to believe
28 that the person has engaged in any activity
which might lead to debar-
29 ment. The suspension shall not be for a
period exceeding three months
30 unless an indictment has been issued for an
offense which would be a
31 cause for debarment under subsection (b),
in which case the suspension
32 shall, at the request of the attorney
general, remain in effect until after
33 the trial of the suspended person.
34 (b) The causes
for debarment include the following:
35 (1) Conviction of
a criminal offense as an incident to obtaining or
36 attempting to obtain a public or private
contract or subcontract or in the
37 performance of such contract or
subcontract;
38 (2) conviction
under state or federal statutes of embezzlement, theft,
39 forgery, bribery, falsification or
destruction of records, receiving stolen
40 property or any other offense indicating a
lack of business integrity or
41 business honesty which currently, seriously
and directly affects respon-
42 sibility as a state contractor;
43 (3) conviction
under state or federal antitrust statutes;
8
1 (4) failure
without good cause to perform in accordance with the
2 terms of the contract;
or
3
(5) failure without good cause to comply with the wage and
benefit
4 provisions of section 1 and
amendments thereto; or
5
(5) (6) any other cause the secretary
determines to be so serious and
6 compelling as to affect
responsibility as a state contractor, including de-
7 barment by another governmental
entity for any cause pursuant to rules
8 and regulations.
9 Sec. 5. K.S.A. 75-37,103
and K.S.A. 1999 Supp. 75-3739 is hereby
10 repealed.
11 Sec. 6. This act shall
take effect and be in force from and after its
12 publication in the statute book.