NY State Senate Bill 2009-S7494

Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 15, 2010	referred to corporations, authorities and commissions

2009-S7494 (ACTIVE) - Details

Current Committee:: Senate Corporations, Authorities And Commissions
Law Section:: Public Authorities Law
Laws Affected:: Amd §§1676 & 1678, Pub Auth L

2009-S7494 (ACTIVE) - Summary

Relates to requirements for soliciting and awarding alternative delivery contracts by public authorities.

2009-S7494 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7494

 TITLE OF BILL :

An act to amend the public authorities law, in relation to the
requirements for soliciting and awarding alternate delivery contracts
and providing for the repeal of certain provisions upon expiration
thereof


 PURPOSE OF THE BILL :

The purpose of this bill is to enable the Dormitory Authority of the
State of New York ("DASNY") to make procurements in a more efficient
and cost-effective manner by (1) authorizing the award of alternative
delivery system contracts for projects having a cost in excess of
$10,000,000 and for which DASNY requires a project labor agreement
("PLA"); and (2) authorizing prequalification of bidders for DASNY
contracts that are required to be awarded pursuant to sealed
competitive bids.

 SUMMARY OF PROVISIONS :

Section 1 of the bill would add a new subdivision 46 to Public
Authorities Law.  ("PAL") § 1676 to define "alternative delivery
system contract" as a contract awarded pursuant to an open, objective

and competitive method of procurement in which an entity or
combination of entities is selected to provide construction services
to DASNY in accordance with new PAL § 1678(25).

Section 2 of the bill would add a new subdivision 25 to PAL § 1678 to
authorize DASNY to solicit and award alternative delivery system
contracts to a single entity or entities for projects that are
otherwise subject to competitive bidding statutes, for projects in
excess of $10,000,000. Consistent with DASNY's policy governing the
use PLAs, new PAL § 1678(25) would permit alternative delivery system
contracts so long as they include a provision requiring the contractor
to enter into a PLA that complies with the requirements of Labor Law §
222. New PAL § 1678(25) would require any alternative delivery system
contract to be awarded pursuant to a two-step open, competitive and
objective process that would require DASNY to set forth its rationale
for using this method of procurement before starting the process and
the procurement to comply with guidelines adopted by DASNY's board.
New PAL § 1678(25) would also require DASNY to include in its Annual
Procurement Report a description of each alternative delivery system
contract that it awarded, as well as the specific benefits associated
with each such award. Finally, new PAL § 1678(25), authorizing DASNY
to utilize alternative delivery system contracts would sunset on July
30, 2013.

Section 3 of the bill would add a new subdivision 26 to PAL § 1678 to
authorize DASNY to pre-qualify contractors for procurements in which
DASNY is required by law to award contracts to the lowest responsible
bidder, based on specific criteria including:
(1) the experience and past performance of the prospective bidder; (2)
the prospective bidder's ability to undertake the work; (3) the
financial capability, responsibility and reliability of the
prospective bidder; and (4) the prospective bidder's record of
compliance with Executive Law Article 15-A. Under new PAL § 1678(26),
DASNY would be required publish advertisements in the State
Procurement Opportunities Newsletter requesting prospective bidders to
submit their qualifications. DASNY would be required to make such
publications at least quarterly, and with respect to projects in
excess of $5,000,000, on a project specific basis. DASNY would be
required to review and update its list of pre-qualified bidders not
less than annually.
Section 4 of the bill would make it effective immediately; provided
that sections 1 and 2 of the bill, authorizing DASNY to award
alternative delivery system contracts, would expire on July 30, 2013.

 EXISTING LAW :

Under current law, DASNY is not permitted to award alternative
delivery system contracts for most of its construction projects and
programs, where DASNY must comply with competitive bidding
requirements, and DASNY is not authorized to pre-qualify contractors
on contracts subject to competitive bidding.

 LEGISLATIVE HISTORY :

S.7455-A (relative to alternative delivery system contracts) passed
the Senate in2008.

 STATEMENT IN SUPPORT :

In hard economic times like the present, it is particularly important
that DASNY has the ability to deliver construction projects for its
clients at the lowest possible cost.  This bill would provide DASNY
with a tool to achieve this objective, by authorizing alternative
delivery system contracts for projects in excess of $10,000,000.

Traditional competitive bidding frequently is not the most
cost-effective method of procurement for certain types of construction
projects. For this reason, alternative delivery system procurement, in
which a single contract is executed with a single entity to provide
construction services, has become an effective method of project
delivery, particularly in the private sector.  DASNY has used
alternative delivery system procurement where competitive bidding is
not required by law, and now seeks authority to employ such
procurement in appropriate instances for all its construction clients.
Alternative delivery systems, such as construction-manager-at-risk,
can produce significant cost and time savings in the construction of
public entities' buildings.

Alternative delivery system procurement would be an important tool for
DASNY because it would improve contracting efficiencies. Alternative
delivery systems permit the single prime contractor to have input in
the design phase and to assume responsibility for coordination of the
schedule, proper structuring of bid packages and phasing of the work.
The single prime contractor is responsible for defaulted
subcontractors and must, in the event of such default, complete the
work on time and for the negotiated cost of the project.

This legislation contains safeguards to ensure the integrity of
alternative delivery system procurements. It requires DASNY to
document and justify: (i) the use of the alternative delivery system
procurement in any given situation; and (ii) the evaluation process
for both the selection of entities on its short list and the award of
the alternative delivery system contract. In addition, DASNY would be
permitted to utilize this alternative method of procurement only if
the procurement complied with guidelines approved by DASNY's board.
Finally, DASNY would be required to publicly disclose any use of this
method as part of the DASNY's Annual Procurement Report.

This bill would also authorize DASNY to pre-qualify bidders for
contracts that must be awarded to the lowest responsible bidder after
public advertisement, in order to provide DASNY with a method of
selecting qualified, responsible contractors that is more efficient
than the current post-bid review process. Pre-qualification would
reduce the time required to select contractors after their bids are
received and reviewed, thereby allowing construction projects to
commence sooner. And the use of pre-qualification would eliminate
costly, time-consuming litigation brought by disgruntled contractors
who were deemed to be not responsible after a bid. Pre-qualification
would reassure bidders that the quality of their bids alone would be
relevant to the award of the contract.

 BUDGET IMPLICATIONS :

This bill would reduce the cost of public construction projects and
generate substantial savings for New York State taxpayers.

 EFFECTIVE DATE :
This bill would take effect immediately, provided, however; that
sections 1 and 2 of the bill would expire on July 30, 2013.

2009-S7494 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7494

                            I N  S E N A T E

                             April 15, 2010
                               ___________

Introduced  by Sen. PERKINS -- (at request of the Dormitory Authority of
  the State of New York) -- read twice and  ordered  printed,  and  when
  printed  to be committed to the Committee on Corporations, Authorities
  and Commissions

AN ACT to amend the public authorities law, in relation to the  require-
  ments  for  soliciting  and  awarding alternate delivery contracts and
  providing for the repeal of certain provisions upon expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  1676 of the public authorities law is amended by
adding a new subdivision 46 to read as follows:
  46. "ALTERNATIVE DELIVERY  SYSTEM  CONTRACT"  SHALL  MEAN  A  CONTRACT
AWARDED  PURSUANT  TO  AN  OPEN,  OBJECTIVE  AND  COMPETITIVE  METHOD OF
PROCUREMENT IN WHICH AN ENTITY OR COMBINATION OF ENTITIES IS SELECTED TO
PROVIDE CONSTRUCTION SERVICES TO THE AUTHORITY IN  ACCORDANCE  WITH  THE
PROVISIONS  OF SUBDIVISION TWENTY-FIVE OF SECTION SIXTEEN HUNDRED SEVEN-
TY-EIGHT OF THIS TITLE.
  S 2. Section 1678 of the public authorities law is amended by adding a
new subdivision 25 to read as follows:
  25. (A) TO SOLICIT AND AWARD AN ALTERNATIVE DELIVERY SYSTEM  CONTRACT,
NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW THAT REQUIRES THE AUTHORITY
TO AWARD CONTRACTS TO THE LOWEST RESPONSIBLE  BIDDER  AFTER  ADVERTISING
FOR  SEALED BIDS OR THAT REQUIRES THE PREPARATION OF SEPARATE SPECIFICA-
TIONS, FOR ANY PROJECT HAVING A COST IN EXCESS OF TEN  MILLION  DOLLARS.
PRIOR  TO  USING  THE ALTERNATIVE DELIVERY SYSTEM METHOD OF PROCUREMENT,
THE AUTHORITY SHALL MAKE A WRITTEN DETERMINATION IDENTIFYING THE SPECIF-
IC BENEFITS, SUCH AS SCHEDULE, FINANCIAL,  PROJECT  FEASIBILITY  OR  THE
FACILITATION  OF COMBINED USE FACILITIES INTENDED FOR PUBLIC AND PRIVATE
PURPOSES, EXPECTED TO BE GAINED  FROM  AN  ALTERNATIVE  DELIVERY  SYSTEM
METHOD OF PROCUREMENT.
  (B)  AN  ALTERNATE  DELIVERY  SYSTEM CONTRACT SHALL BE AWARDED ONLY IN
ACCORDANCE WITH GUIDELINES ADOPTED BY  THE  AUTHORITY.  SUCH  GUIDELINES
SHALL AT A MINIMUM REQUIRE THE AUTHORITY TO:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15704-07-0

S. 7494                             2

  (1)  GENERATE  A LIST OF QUALIFIED ENTITIES BASED UPON THE AUTHORITY'S
REVIEW OF RESPONSES TO A PUBLICLY ADVERTISED REQUEST FOR QUALIFICATIONS.
ANY REQUEST FOR QUALIFICATIONS SHALL INCLUDE A  GENERAL  DESCRIPTION  OF
THE  PROJECT  AND  THE  SELECTION  CRITERIA TO BE USED IN GENERATING THE
LIST.  THE  SELECTION  CRITERIA  SHALL  INCLUDE,  BUT NOT BE LIMITED TO:
QUALIFICATIONS AND EXPERIENCE; PROJECT APPROACH; ORGANIZATION; RECORD OF
PERFORMANCE; FINANCIAL CAPACITY; DEMONSTRATED  ABILITY  TO  COMPLY  WITH
APPLICABLE  REQUIREMENTS;  STATUS AS A MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISE CERTIFIED UNDER ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW OR ITS
RECORD OF UTILIZATION OF SUCH CERTIFIED ENTERPRISES  IN  OTHER  PROJECTS
COMPLETED  BY  THE  ENTITY; RECORD OF UTILIZATION OF SMALL AND OTHER NEW
YORK STATE BUSINESS ENTERPRISES IN OTHER PROJECTS COMPLETED BY THE ENTI-
TY; AND SUCH OTHER CRITERIA AS THE AUTHORITY DEEMS APPROPRIATE.
  (2) EVALUATE AND RATE, IN WRITING,  ALL  ENTITIES  RESPONDING  TO  THE
REQUEST FOR QUALIFICATIONS AND DOCUMENT THE EVALUATION PROCESS AND BASED
UPON  SUCH RATINGS, PREPARE A LIST OF AT LEAST THREE ENTITIES THAT SHALL
RECEIVE A REQUEST FOR PROPOSALS. IF ANY SUCH ENTITY ON THE LIST CONSISTS
OF A TEAM OF SEPARATE ENTITIES, THE TEAM RESPONDING TO THE  REQUEST  FOR
PROPOSALS  MUST REMAIN UNCHANGED FROM THE TEAM ON THE LIST UNLESS OTHER-
WISE APPROVED BY THE AUTHORITY.
  (3) ISSUE A REQUEST FOR PROPOSALS TO THE LIST OF ENTITIES  ESTABLISHED
PURSUANT  TO  SUBPARAGRAPH  TWO  OF  THIS  PARAGRAPH.  THE  REQUEST  FOR
PROPOSALS SHALL SET FORTH THE PROJECT'S SCOPE OF WORK AND OTHER REQUIRE-
MENTS AS DETERMINED BY THE AUTHORITY AND SHALL SPECIFY THE CRITERIA  THE
CORPORATION  WILL  USE  TO  EVALUATE  THE  PROPOSALS. THE CRITERIA SHALL
INCLUDE: (I) THE COST, UNLESS THE REQUEST FOR  PROPOSALS  SPECIFIES  THE
PROJECT  COST;  (II)  THE  QUALITY OF THE PROPOSAL'S SOLUTION; (III) THE
QUALIFICATIONS AND EXPERIENCE OF THE ENTITY OR ENTITIES; (IV) THE EXTENT
TO WHICH THE PROPOSAL COMMITS TO ACHIEVE ACTIVE PARTICIPATION  BY  SMALL
AND  OTHER  NEW  YORK  STATE  BUSINESS  ENTERPRISES  AND BY MINORITY AND
WOMEN-OWNED BUSINESS ENTERPRISES CERTIFIED UNDER  ARTICLE  FIFTEEN-A  OF
THE EXECUTIVE LAW (WHICH COMMITMENT MAY INCLUDE JOINT VENTURES, PARTNER-
ING,  MENTORING OR OTHER SIMILAR TYPES OF ARRANGEMENTS); (V) THE EXPERI-
ENCE AND PAST PERFORMANCE OF  THE  ENTITY  OR  ENTITIES  SUBMITTING  THE
PROPOSALS;  AND  (VI)  OTHER  FACTORS DEEMED PERTINENT BY THE AUTHORITY,
SUCH AS THE PROPOSAL FOR PROJECT IMPLEMENTATION, THE ENTITY'S ABILITY TO
COMPLETE THE WORK IN A TIMELY AND SATISFACTORY MANNER AND THE LIFE-CYCLE
COSTING OF THE COMPLETED PROJECT. FOR ANY  DESIGN  BUILD  CONTRACT,  THE
RESPONSE  TO  THE  REQUEST  FOR  QUALIFICATIONS SHALL ALSO SET FORTH THE
LEGAL RELATIONSHIP BETWEEN THE PROVIDER OF CONSTRUCTION SERVICES AND THE
PROVIDER OF DESIGN SERVICES AND DEMONSTRATE HOW  THE  PROPOSAL  COMPLIES
WITH THE REQUIREMENTS OF PARAGRAPH (E) OF THIS SUBDIVISION.
  (4)  SELECT AND ADEQUATELY DOCUMENT ITS RATIONALE FOR SELECTION OF THE
SUCCESSFUL ALTERNATIVE  DELIVERY  SYSTEM  CONTRACTOR  THAT  SUBMITS  THE
PROPOSAL WHICH, IN CONSIDERATION OF THE CRITERIA DEEMED PERTINENT TO THE
PROJECT  AS  SET FORTH IN THE REQUEST FOR PROPOSALS (TAKING INTO ACCOUNT
THE WEIGHTING FACTORS ESTABLISHED BY THE AUTHORITY FOR  EACH  CRITERIA),
IS  THE  BEST  VALUE  TO THE AUTHORITY. THE WEIGHTING FACTOR ASSIGNED TO
EACH CRITERION SHALL BE ESTABLISHED BY THE AUTHORITY PRIOR TO THE  ISSU-
ANCE  OF THE REQUEST FOR PROPOSALS BY THE AUTHORITY. THE AUTHORITY SHALL
RESERVE THE RIGHT TO NEGOTIATE WITH THE SELECTED ENTITY ANY TERMS OF THE
CONTRACT PRIOR TO CONTRACT EXECUTION.
  (C) THE AUTHORITY SHALL, IN THE ANNUAL REPORT ON PROCUREMENT CONTRACTS
REQUIRED BY SECTION TWENTY-EIGHT HUNDRED SEVENTY-NINE OF  THIS  CHAPTER,
INCLUDE  A  SEPARATE  DESCRIPTION  OF  EACH  ALTERNATIVE DELIVERY SYSTEM
CONTRACT THAT WAS  AWARDED  PURSUANT  TO  THIS  SUBDIVISION  DURING  THE

S. 7494                             3

PRECEDING  FISCAL YEAR, TOGETHER WITH A SUMMARY OF THE SPECIFIC BENEFITS
THAT THE AUTHORITY EXPECTED TO BE ACHIEVED THROUGH THE USE OF THE ALTER-
NATIVE DELIVERY SYSTEM METHOD OF PROCUREMENT AND FOR PROJECTS THAT  HAVE
BEEN COMPLETED, A SUMMARY INDICATING THE EXTENT TO WHICH THE ANTICIPATED
BENEFITS WERE ACHIEVED.
  (D)  THE AUTHORITY SHALL NOT ENTER INTO AN ALTERNATIVE DELIVERY SYSTEM
CONTRACT PURSUANT TO THIS SUBDIVISION UNLESS THE  AUTHORITY,  CONSISTENT
WITH  THE  AUTHORITY'S  POLICY GOVERNING THE USE OF PROJECT LABOR AGREE-
MENTS, DETERMINES TO REQUIRE THE SELECTED ENTITY TO ENTER INTO A PROJECT
LABOR AGREEMENT THAT COMPLIES  WITH  THE  REQUIREMENTS  OF  SECTION  TWO
HUNDRED TWENTY-TWO OF THE LABOR LAW.  THE PROVISIONS OF THIS SUBDIVISION
SHALL  NOT  BE  CONSTRUED TO SUPERSEDE SECTION TWO HUNDRED TWENTY OF THE
LABOR LAW REQUIRING THE PAYMENT OF PREVAILING WAGES FOR PUBLIC WORKS.
  (E) ANY ALTERNATIVE DELIVERY SYSTEM CONTRACT ENTERED INTO PURSUANT  TO
THIS  SUBDIVISION SHALL INCLUDE A CLAUSE REQUIRING THAT ANY PROFESSIONAL
SERVICES REGULATED BY  ARTICLES  ONE  HUNDRED  FORTY-FIVE,  ONE  HUNDRED
FORTY-SEVEN  AND  ONE  HUNDRED  FORTY-EIGHT  OF  THE  EDUCATION  LAW  BE
PERFORMED BY A PROFESSIONAL LICENSED IN ACCORDANCE WITH SUCH ARTICLES.
  S 3. Section 1678 of the public authorities law is amended by adding a
new subdivision 26 to read as follows:
  26. (A)  TO  ESTABLISH  GUIDELINES  GOVERNING  THE  QUALIFICATIONS  OF
BIDDERS  FOR  THOSE  CONTRACTS  FOR  THE  CONSTRUCTION,  RECONSTRUCTION,
IMPROVEMENT, REHABILITATION, MAINTENANCE, REPAIR, FURNISHING,  EQUIPPING
OF  OR  OTHERWISE PROVIDING FOR FACILITIES REQUIRED BY LAW TO BE AWARDED
BY THE AUTHORITY TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING  FOR
SEALED  BIDS. PURSUANT TO SUCH GUIDELINES, THE BIDDING MAY BE RESTRICTED
TO THOSE WHO HAVE QUALIFIED PRIOR TO THE RECEIPT OF  BIDS  ACCORDING  TO
STANDARDS  FIXED  BY  THE  AUTHORITY IN ACCORDANCE WITH PARAGRAPH (B) OF
THIS SUBDIVISION.
  (B) IN DETERMINING WHETHER A PROSPECTIVE BIDDER QUALIFIES  FOR  INCLU-
SION  ON  A  LIST OF PRE-QUALIFIED BIDDERS, THE AUTHORITY SHALL CONSIDER
(I) THE EXPERIENCE AND PAST PERFORMANCE OF THE PROSPECTIVE BIDDER;  (II)
THE  PROSPECTIVE  BIDDER'S  ABILITY  TO  UNDERTAKE  THE  WORK; (III) THE
PROSPECTIVE  BIDDER'S  FINANCIAL  AND  ORGANIZATIONAL  CAPACITY,   LEGAL
AUTHORITY  TO  DO  BUSINESS  IN  NEW  YORK STATE, INTEGRITY AND PREVIOUS
PERFORMANCE; AND (IV) THE PROSPECTIVE BIDDER'S RECORD OF COMPLIANCE WITH
ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW. THE AUTHORITY MAY ALSO  CONSIDER
SUCH OTHER FACTORS AS IT DEEMS APPROPRIATE.
  (C)  THE  AUTHORITY  SHALL  PUBLISH  QUARTERLY  IN  THE NEW YORK STATE
PROCUREMENT  OPPORTUNITIES  NEWSLETTER,  AN   ADVERTISEMENT   REQUESTING
PROSPECTIVE  BIDDERS  TO  SUBMIT QUALIFICATION STATEMENTS. THE AUTHORITY
SHALL REVIEW AND UPDATE, NOT LESS THAN ANNUALLY, LISTS OF  PRE-QUALIFIED
BIDDERS. THE AUTHORITY MAY DELETE FROM THE LIST OF PRE-QUALIFIED BIDDERS
ANY  BIDDER  WHO  HAS FAILED TO PERFORM ADEQUATELY OR SATISFACTORILY FOR
THE AUTHORITY OR ANY OTHER STATE AGENCY OR  PUBLIC  CORPORATION  OR  WHO
OTHERWISE  FAILS TO MEET ANY OF THE CRITERIA ENUMERATED IN PARAGRAPH (B)
OF THIS SUBDIVISION. THE  AUTHORITY SHALL PROVIDE WRITTEN NOTICE TO  ANY
BIDDER  PROPOSED TO BE DELETED FROM THE LIST OF PRE-QUALIFIED BIDDERS OF
THE REASONS FOR THE PROPOSED DELETION AND UPON THE  WRITTEN  REQUEST  OF
ANY  SUCH BIDDER, THE AUTHORITY SHALL PROVIDE SAID BIDDER WITH AN OPPOR-
TUNITY TO EXPLAIN WHY THE DELETION SHOULD NOT OCCUR.
  (D)  LISTS  OF  PRE-QUALIFIED  BIDDERS  MAY  BE   ESTABLISHED   ON   A
PROJECT-SPECIFIC  BASIS;  PROVIDED,  HOWEVER,  FOR PROJECTS IN EXCESS OF
FIVE MILLION DOLLARS, THE AUTHORITY SHALL FIRST PUBLISH IN THE NEW  YORK
STATE  PROCUREMENT  OPPORTUNITIES NEWSLETTER AN ADVERTISEMENT REQUESTING
PROSPECTIVE BIDDERS TO SUBMIT QUALIFICATION STATEMENTS IF THEY HAVE  NOT

S. 7494                             4

PREVIOUSLY  SUBMITTED  THEIR QUALIFICATIONS PURSUANT TO PARAGRAPH (C) OF
THIS SUBDIVISION AND PROVIDED FURTHER THAT ANY SUCH LIST SHALL  HAVE  NO
LESS THAN THREE BIDDERS.
  S  4.  This  act shall take effect immediately; provided however, that
sections one and two of this act shall expire July 30,  2013  when  upon
such  date  the  provisions  of  such sections shall be deemed repealed;
provided further, that the expiration of such sections of this act shall
not impair or otherwise affect the validity of any alternative  delivery
system  contract  executed  by the dormitory authority and other parties
thereto prior to such expiration date.

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Senate Bill S7494

Sponsored By

Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

2009-S7494 (ACTIVE) - Details

2009-S7494 (ACTIVE) - Summary

2009-S7494 (ACTIVE) - Sponsor Memo

2009-S7494 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S7494

Share this bill

Sponsored By

Bill Perkins

Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

2009-S7494 (ACTIVE) - Details

2009-S7494 (ACTIVE) - Summary

2009-S7494 (ACTIVE) - Sponsor Memo

2009-S7494 (ACTIVE) - Bill Text download pdf

Comments