§ 341. Definitions
As used in this chapter:
(1) “Agency” means any agency, board, department, commission, committee, or authority
of the Executive Branch of State government.
(2) “Personal services contract” means a contract for services that is categorized as
personal services in accordance with procedures developed by the Secretary of Administration
and is consistent with subdivisions 342(1), (2), and (3) of this title.
(3) “Privatization contract” means a contract for services valued at $25,000.00 or more
per year, which is the same or substantially similar to and in lieu of services previously
provided, in whole or in part, by permanent, classified State employees, and which
results in a reduction in force of at least one permanent, classified employee, or
the elimination of a vacant position of an employee covered by a collective bargaining
agreement.
(4) “Contract for services” means an agreement or combination or series of agreements
by which an entity or individual agrees with an agency to provide services as a contractor,
rather than as an employee. (Added 1999, No. 75 (Adj. Sess.), § 2; amended 2009, No. 54, § 107, eff. June 1, 2009; 2015, No. 78 (Adj. Sess.), § 2.)
§ 342. Contracting standards; contracts for services
Each contract for services valued at $25,000.00 or more per year shall require certification
by the Office of the Attorney General to the Secretary of Administration that such
contract for services is not contrary to the spirit and intent of the classification
plan and merit system and standards of this title. A contract for services is contrary
to the spirit and intent of the classification plan and merit system and standards
of this title, and shall not be certified by the Office of the Attorney General as
provided in this section, unless the provisions of subdivisions (1), (2), and (3)
of this section are met, or one or more of the exceptions described in subdivision
(4) of this section apply.
(1) The agency will not exercise supervision over the daily activities or methods and
means by which the contractor provides services other than supervision necessary to
ensure that the contractor meets performance expectations and standards; and
(2) The services provided are not the same as those provided by classified State employees
within the agency; and
(3) The contractor customarily engages in an independently established trade, occupation,
profession, or business; or
(4) Any of the following apply:
(A) The services are not available within the agency or are of such a highly specialized
or technical nature that the necessary knowledge, skills, or expertise is not available
within the agency.
(B) The services are incidental to a contract for purchase or lease of real or personal
property.
(C) There is a demonstrated need for an independent audit, review, or investigation; or
independent management of a facility is needed as a result of, or in response to,
an emergency such as licensure loss or criminal activity.
(D) The State is not able to provide equipment, materials, facilities, or support services
in the location where the services are to be performed in a cost-effective manner.
(E) The contract is for professional services, such as legal, engineering, or architectural
services, that are typically rendered on a case-by-case or project-by-project basis,
and the services are for a period limited to the duration of the project, normally
not to exceed two years or provided on an intermittent basis for the duration of the
contract.
(F) The need for services is urgent, temporary, or occasional, such that the time necessary
to hire and train employees would render obtaining the services from State employees
imprudent. Such contract shall be limited to 90 days’ duration, with any extension
subject to review and approval by the Secretary of Administration.
(G) Contracts for the type of services covered by the contract are specifically authorized
by law.
(H) Efforts to recruit State employees to perform work, authorized by law, have failed
in that no applicant meeting the minimum qualifications has applied for the job.
(I) The cost of obtaining the services by contract is lower than the cost of obtaining
the same services by utilizing State employees. When comparing costs, the provisions
of section 343 of this title shall apply. (Added 1999, No. 75 (Adj. Sess.), § 2; amended 2015, No. 78 (Adj. Sess.), § 3.)
§ 343. Privatization contracts; procedure
(a) An agency shall not enter into a privatization contract, unless all of the following
are satisfied:
(1) Thirty-five days prior to the beginning of any open bidding process, the agency provides
written notice to the collective bargaining representative of the intent to seek to
enter a privatization contract. During those 35 days, the collective bargaining representative
shall have the opportunity to discuss alternatives to contracting. Such alternatives
may include amendments to the contract if mutually agreed upon by the parties. Notices
regarding the bid opportunity may not be issued during the 35-day discussion period.
The continuation of discussions beyond the end of the 35-day period shall not delay
the issuance of notices.
(2) The proposed contract is projected to result in overall cost savings to the State
of at least 10 percent above the projected cost of having the services provided by
classified State employees.
(3) When comparing the cost of having a service provided by classified State employees
to the cost of having the service provided by a contractor:
(A) The expected costs of having services provided by classified State employees and obtaining
the service through a contractor should be compared over the life of the contract.
One-time costs associated with having services provided by a contractor rather than
classified State employees, such as the expected cost of leave pay-outs for separating
employees, unemployment compensation, and the cost of meeting the State’s obligation,
if any, to continue health insurance benefits, shall be spread over the expected life
of the contract.
(B) The basic cost of services by a contractor includes:
(i) the bid price or maximum acceptable bid identified by the contracting authority; and
(ii) any additional costs to be incurred by the agency for inspection, facilities, reimbursable
expenses, supervision, training, and materials, but only to the extent that these
costs exceed the costs the agency could expect to incur for inspection, facilities,
reimbursable expenses, and materials if the services were provided by classified State
employees.
(C) The basic cost for services provided by a classified State employee includes:
(i) wages, benefits, and training;
(ii) the cost of supervision and facilities, but only to the extent that these costs exceed
the costs the agency could expect to incur for supervision or facilities if the services
were provided by a contractor; and
(iii) the estimated cost of obtaining goods when the comparison is with the cost of a contract
that includes both goods and services.
(D) Possible reductions in the cost of obtaining services from classified State employees
that require concessions shall not be considered unless proposed in writing by the
certified collective bargaining agent and mutually agreed to by the State and collective
bargaining agent.
(b)(1) A privatization contract shall contain specific performance measures regarding quantity,
quality, and results and guarantees regarding the services performed.
(2) The agency shall provide information in the State’s Workforce Report on the contractor’s
compliance with the specific performance measures set out in the contract.
(3) The agency may not renew the contract if the contractor fails to comply with the specific
performance measures set out in the contract as required by subdivision (1) of this
subsection.
(c)(1) Before an agency may renew a privatization contract for the first time, the Auditor
of Accounts shall review the privatization contract analyzing whether it is achieving:
(A) the 10 percent cost-savings requirement set forth in subdivision (a)(2) of this section;
(B) the performance measures incorporated into the contract as required under subdivision
(b)(1) of this section.
(2) If the Auditor of Accounts finds that a privatization contract has not achieved the
cost savings required under subdivision (a)(2) of this section or complied with performance
measures required under subdivision (b)(1) of this section, the Auditor of Accounts
shall file a report with the agency and the House and Senate Committees on Government
Operations, and the agency shall review whether to renew the privatization contract
or perform the work with State employees. (Added 1999, No. 75 (Adj. Sess.), § 2; amended 2017, No. 174 (Adj. Sess.), § 1, eff. May 25, 2018.)
§ 344. Contract administration
(a) The Secretary of Administration shall maintain a database with information about contracts
for services, including approved privatization contracts and approved personal services
contracts. The Secretary shall also maintain a database with information about privatization
contracts that are rejected because they fail to qualify under subdivision 343(2) of this title. Contracts maintained in the database shall be public record to the extent provided
under 1 V.S.A. chapter 5 and shall be located at the agency of origin, including information about names of
contractors, summaries of work to be performed, costs, and duration.
(b) The information on contracts maintained in the database shall be reported to the General
Assembly in the annual workforce report required under subdivision 309(a)(19) of this title. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this
subsection. (Added 1999, No. 75 (Adj. Sess.), § 2; amended 2013, No. 142 (Adj. Sess.), § 7; 2015, No. 78 (Adj. Sess.), § 4.)
§ 345. Equal pay in government contracts; certification
(a) Notwithstanding any other provision of law, an agency may not enter into a contract
for goods with a contractor who does not provide written certification of compliance
with the equal pay provisions of 21 V.S.A. § 495(a)(7).
(b) A contractor subject to this section shall maintain and make available its books and
records at reasonable times and upon notice to the contracting agency and the Attorney
General so that either may determine whether the contractor is in compliance with
this section. (Added 2013, No. 31, § 3.)
§ 346. State contracting; intellectual property, software design, and information technology
(a) The Secretary of Administration shall include in Administrative Bulletin 3.5 a policy
direction applicable to State procurement contracts that include services for the
development of software applications, computer coding, or other intellectual property,
which would allow the State of Vermont to grant permission to the contractor to use
or own the intellectual property created under the contract for the contractor’s commercial
purposes.
(b) The Secretary may recommend contract provisions that authorize the State to negotiate
with a contractor to secure license terms and license fees, royalty rights, or other
payment mechanism for the contractor’s commercial use of intellectual property developed
under a State contract.
(c) If the Secretary authorizes a contractor to own intellectual property developed under
a State contract, the Secretary may recommend language to ensure the State retains
a perpetual, irrevocable, royalty-free, and fully paid right to continue to use the
intellectual property including escrow for perpetual use at least annually. (Added 2013, No. 199 (Adj. Sess.), § 18; amended 2019, No. 49, § 2, eff. June 10, 2019.)
§ 347. Contractor contribution restrictions
The Secretary of Administration shall include in the terms and conditions of sole
source contracts a self-certification of compliance with the contractor contribution
restrictions set forth in 17 V.S.A. § 2950. (Added 2017, No. 79, § 4a, eff. Dec. 16, 2018.)
§ 348. Internet service providers; net neutrality compliance
(a) The Secretary of Administration shall develop a process by which an internet service
provider may certify that it is in compliance with the consumer protection and net
neutrality standards established in subsection (b) of this section.
(b) A certificate of net neutrality compliance shall be granted to an internet service
provider that demonstrates and the Secretary finds that the internet service provider,
insofar as the provider is engaged in the provision of broadband internet access service:
(1) Does not engage in any of the following practices in Vermont:
(A) Blocking lawful content, applications, services, or nonharmful devices, subject to
reasonable network management.
(B) Impairing or degrading lawful internet traffic on the basis of internet content, application,
or service or the use of a nonharmful device, subject to reasonable network management.
(C) Engaging in paid prioritization, unless this prohibition is waived pursuant to subsection
(c) of this section.
(D) Unreasonably interfering with or unreasonably disadvantaging either a customer’s ability
to select, access, and use broadband internet access service or lawful internet content,
applications, services, or devices of the customer’s choice or an edge provider’s
ability to make lawful content, applications, services, or devices available to a
customer. Reasonable network management shall not be considered a violation of this
prohibition.
(E) Engaging in deceptive or misleading marketing practices that misrepresent the treatment
of internet traffic or content to its customers.
(2) Publicly discloses to consumers accurate information regarding the network management
practices, performance, and commercial terms of its broadband internet access services
sufficient for consumers to make informed choices regarding use of such services and
for content, application, service, and device providers to develop, market, and maintain
internet offerings.
(c) The Secretary may waive the ban on paid prioritization under subdivision (b)(1)(C)
of this section only if the internet service provider demonstrates and the Secretary
finds that the practice would provide some significant public interest benefit and
would not harm the open nature of the internet in Vermont.
(d) As used in this section:
(1) “Broadband internet access service” means a mass-market retail service by wire or
radio in Vermont that provides the capability to transmit data to and receive data
from all or substantially all internet endpoints, including any capabilities that
are incidental to and enable the operation of the communications service, but excluding
dial-up internet access service. The term also encompasses any service in Vermont
that the Secretary finds to be providing a functional equivalent of the service described
in this subdivision, or that is used to evade the protections established in this
chapter.
(2) “Edge provider” means any person in Vermont that provides any content, application,
or service over the internet and any person in Vermont that provides a device used
for accessing any content, application, or service over the internet.
(3) “Internet service provider” or “provider” means a business that provides broadband
internet access service to any person in Vermont.
(4) “Paid prioritization” means the management of an internet service provider’s network
to favor directly or indirectly some traffic over other traffic, including through
the use of techniques such as traffic shaping, prioritization, resource reservation,
or other forms of preferential traffic management, either in exchange for consideration,
monetary or otherwise, from a third party or to benefit an affiliated entity, or both.
(5) “Reasonable network management” means a practice that has a primarily technical network
management justification but does not include other business practices and that is
primarily used for and tailored to achieving a legitimate network management purpose,
taking into account the particular network architecture and technology of the broadband
internet access service.
(e) The terms and definitions of this section shall be interpreted broadly and any exceptions
interpreted narrowly, using relevant Federal Communications Commission orders, advisory
opinions, rulings, and regulations as persuasive guidance. (Added 2017, No. 169 (Adj. Sess.), § 2.)
§ 349. State contracting; internet service
The Secretary of Administration shall include in Administrative Bulletin 3.5 a requirement
that State procurement contracts for broadband internet access service, as defined
in subdivision 348(d)(1) of this title, include terms and conditions requiring that the internet service provider certify
that it is in compliance with the consumer protection and net neutrality standards
established in section 348 of this title. (Added 2017, No. 169 (Adj. Sess.), § 3.)