AS Title 36, Chapter 90: Miscellaneous Provisions

Article 1. State Marine Vessel Maintenance. Chapter 90. Miscellaneous Provisions. Sec. 36.90.001. [Renumbered as AS 36.90.010 .] Sec. 36.90.010. Public construction contract payments. [Repealed, § 3 ch 137 SLA 1990.] Sec. 36.90.049. Maintenance of state marine vessels. (a) A marine vessel owned by the state shall be maintained and repaired at a shipyard facility located in the state unless the commissioner of the department that operates the marine vessel determines in writing that there is no shipyard facility located in the state that is equipped or qualified to perform the particular maintenance or repair required, or, after taking into consideration the five percent preference under AS 36.30.321 (a) and the interport differential, that the proposed cost of the maintenance or repair work is unreasonable. A detailed list of the costs and factors considered in calculating the interport differential must be provided to each person who expresses an interest in submitting a bid to perform maintenance or repair work on a marine vessel owned by the state. (b) The competitive bid provisions of AS 36.30 do not apply to a contract for the maintenance or repair of a marine vessel owned by the state if the contract is awarded to a shipyard facility in the state. (c) The commissioner of the department that operates a marine vessel shall adopt regulations establishing the criteria that the department shall use to determine whether the cost of maintenance or repair work at a shipyard facility located in the state is reasonable under (a) of this section. The commissioner of the department that operates a marine vessel shall designate by regulation the designated base port for each vessel operated by the department; however, the designated base port for marine vessels of the Alaska marine highway system is Ketchikan for those vessels primarily serving that portion of the state east of the longitude of Icy Cape and is Seward for those vessels primarily serving the remainder of the state. A vessel's designated base port is the vessel's delivery and redelivery port. (d) The commissioner of the department that operates a marine vessel shall adopt regulations establishing the criteria that the commissioner shall use in calculating the interport differential under this section. The criteria for calculating the interport differential must include costs incurred from the time that the vessel leaves the vessel's designated base port to enter the shipyard facility until the time that the vessel returns to the designated base port from the shipyard facility. (e) In this section, (1) “commissioner of the department that operates the marine vessel” includes the president of the University of Alaska with regard to a vessel operated by the university; (2) “interport differential” includes all costs related to the performance of the maintenance or repair work of a marine vessel at a shipyard, including travel costs incurred moving the vessel from its designated base port to the shipyard, additional fuel consumption, cost of consumables including lubricants and other engine and deck stores, maintenance costs incurred during running time, cost of crew transfers including airfare between the designated base port and the shipyard, wages in travel status, crew room and board, and other interport costs identified by the commissioner of the department that operates the marine vessel. Sec. 36.90.050. Maintenance of state marine vessels. [Repealed, § 5 ch 94 SLA 1992.] Article 2. Professional Registration Requirements. Sec. 36.90.100. Contracts for architectural, engineering, land surveying, or landscape architectural services. The state or a municipality may not award a contract for architectural, engineering, land surveying, or landscape architectural services to (1) an individual who is not registered under AS 08.48 to perform the architectural, engineering, land surveying, or landscape architectural services required by the contract; (2) a partnership, except as provided by (3) of this section, that is not qualified under AS 08.48.251 to provide the architectural, engineering, land surveying, or landscape architectural services required by the contract; or (3) a corporation, limited liability company, or limited liability partnership that is not authorized under AS 08.48.241 to offer the architectural, engineering, land surveying, or landscape architectural services required by the contract. Article 3. Public Construction Contract Payment. Sec. 36.90.200. Payment deadline and interest. (a) The state or a political subdivision of the state shall pay the prime contractor for satisfactory performance on a public construction or public works contract within 30 calendar days of the date the state or political subdivision receives a payment request from the prime contractor that complies with the contract. If a political subdivision is going to use grant money for the contract, the subdivision shall pay the prime contractor for satisfactory performance within 21 calendar days of the date the subdivision receives a payment request that complies with the contract or within 21 calendar days of the date the subdivision actually receives the grant money, whichever is later. If the state is going to use federal money for the contract, the state shall pay the prime contractor for satisfactory performance within 21 calendar days of the date the state receives a payment request that complies with the contract or within 21 calendar days of the date the state actually receives the federal money, whichever is later. (b) If the prime contractor is not paid as required by (a) of this section, the state or political subdivision shall pay interest on the unpaid amount of the required payment from the 21st calendar day after the date required for payment under (a) of this section at an interest rate that is equal to the amount set out in AS 45.45.010 (a). (c) If part or all of a payment is going to be withheld for unsatisfactory performance or if the payment request made under (a) of this section does not comply with the requirements of the contract, within eight working days after receipt of the payment request the state or political subdivision shall notify the prime contractor in writing stating specifically why part or all of the payment is being withheld and what remedial actions may be taken by the prime contractor to receive the full payment. (d) If the notification by the state or political subdivision required by (c) of this section does not comply with (c) of this section, the state or political subdivision shall pay interest on the withheld amount from the eighth working day after receipt of the initial payment request until the state or political subdivision provides notice that does comply with (c) of this section. (e) If part or all of a payment is withheld under (c) of this section, the state or political subdivision shall pay the withheld amount within 21 calendar days after the prime contractor satisfactorily completes the remedial actions identified in the notice. If a political subdivision is going to use grant money for the contract, the subdivision shall pay the prime contractor within 21 calendar days after the prime contractor satisfactorily completes the remedial actions identified in the notice or within 21 calendar days after the political subdivision actually receives the grant money, whichever is later. If the state is going to use federal money for the contract, the state shall pay the prime contractor within 21 calendar days after the prime contractor satisfactorily completes the remedial actions identified in the notice, or within 21 calendar days after the subdivision actually receives the money, whichever is later. If the withheld amount is not paid within the 21 calendar days, the state or political subdivision shall pay interest on the withheld amount from the 21st calendar day at an interest rate that is equal to the amount set out in AS 45.45.010 (a). (f) The obligation to pay interest under this section does not apply to retainage. (g) This section does not apply to public construction or public works contracts made by a political subdivision that has a population under 800. Sec. 36.90.210. Required contractual terms. (a) The prime contractor and a subcontractor on a public construction or public works contract must include in a subcontract between the prime contractor and subcontractor for the public construction or public works a clause that requires the prime contractor to pay (1) the subcontractor for satisfactory performance under the subcontract within eight working days after receiving payment from which the subcontractor is to be paid; (2) the subcontractor all retainage due under the subcontract within eight working days after final payment is received from the state or political subdivision or after the notice period under AS 36.25.020 (b) expires, whichever is later; (3) the subcontractor interest on an amount that is not paid in accordance with (1) of this subsection for the period beginning on the day after the required payment date and ending on the day on which payment of the amount due is made; the interest shall be computed at an interest rate that is equal to the amount set out in AS 45.45.010 (a); (4) interest on retainage withheld from the subcontractor at an interest rate that is equal to the amount set out in AS 45.45.010 (a). (b) A subcontractor on a public construction or public works contract must include in each subcontract under which a person agrees to provide the subcontractor with services, other than as an employee, or supplies to be used in the public construction or public works project a clause that requires the subcontractor to pay (1) the person for satisfactory performance under the subcontract within eight working days after receiving payment from which the person is to be paid; (2) the person all retainage due under the subcontract with the person within eight working days after the subcontractor receives its share of the state-held retainage from the prime contractor or another subcontractor; (3) the person interest on an amount that is not paid in accordance with (1) of this subsection for the period beginning on the day after the required payment date and ending on the day on which payment of the amount due is made; the interest shall be computed at an interest rate that is equal to the amount set out in AS 45.45.010 (a); (4) interest on retainage withheld from the person at an interest rate that is equal to the amount set out in AS 45.45.010 (a). Sec. 36.90.220. Optional contractual terms. Notwithstanding AS 36.90.210 and 36.90.230, the prime contractor or a subcontractor may negotiate and include in a public construction or public works subcontract a provision that permits (1) the prime contractor or a subcontractor to determine that part or all of a subcontractor's request for payment may be withheld for unsatisfactory performance under the subcontract; and (2) the prime contractor or a subcontractor to withhold payment for unsatisfactory performance without incurring an obligation to pay interest for late payment, if a notice complying with AS 36.90.240 has been previously furnished to the subcontractor and a copy of the notice is furnished to the contracting officer of the state or political subdivision. Sec. 36.90.230. Withholding payment for unsatisfactory performance. (a) If the prime contractor on a public construction or public works contract, after making a request for payment to the state or political subdivision but before paying a subcontractor for the subcontractor's performance covered by the payment request, discovers that part or all of the payment otherwise due to the subcontractor is subject to withholding from the subcontractor under the subcontract for unsatisfactory performance, the prime contractor may withhold the amount as allowed under the subcontract. If the prime contractor withholds an amount under this subsection, the prime contractor shall (1) give the subcontractor a notice complying with AS 36.90.240 as soon as practicable after determing the cause for the withholding but before the due date for the subcontractor payment; (2) give the contracting officer of the state or political subdivision a copy of the notice furnished to the subcontractor under (1) of this subsection; (3) pay the subcontractor within eight working days after correction of the identified subcontractor performance deficiency. (b) If the prime contractor does not comply with the notice and payment requirements of (a) of this section, the contractor shall pay the subcontractor interest on the withheld amount from the eighth working day at an interest rate that is equal to the amount set out in AS 45.45.010 (a). Sec. 36.90.240. Form of certain notices. A notice under AS 36.90.220 (2) or 36.90.230(a)(1) must be in writing and must state the amount being withheld, the specific causes for the withholding under the terms of the subcontract, and the remedial actions to be taken by the subcontractor to receive payment of the amount withheld. Sec. 36.90.250. Retainage. (a) The state or a political subdivision of the state shall pay to the prime contractor interest on retainage, including warranty retainage, on a contract for public construction or public works at an interest rate that is equal to the amount set out in AS 45.45.010 (a). Interest on retainage accrues from the date of approval of a pay request until the date of payment to the contractor. (b) A political subdivision that has a population of 500 or less is exempt from the payment of interest under (a) of this section. Sec. 36.90.260. Miscellaneous provisions. (a) In AS 36.90.210 — 36.90.290, (1) a payment is considered to be made when mailed or personally delivered to the party being paid; (2) a payment is considered to be received when it is endorsed for payment, if it is a check; (3) an invoice is considered to be received when it is date-stamped or otherwise marked as delivered; if the invoice is not date-stamped or otherwise marked as delivered, the date of the invoice is considered to be the date when the invoice is received. (b) A political subdivision that receives a state grant for a public construction or public works project may use money from the state grant to pay the interest under AS 36.90.200 — 36.90.290. Sec. 36.90.265. Applicability to political subdivisions. AS 36.90.200 — 36.90.290 apply to a public construction or public works contract of a political subdivision if the political subdivision has entered into a written contract with the state for the state to provide funds for the public construction or public work. Sec. 36.90.270. Waiver of provisions prohibited. A contract provision that waives a provision required by AS 36.90.200 — 36.90.290 is void. Sec. 36.90.290. Definitions. In AS 36.90.200 — 36.90.290, (1) “prime contractor” means a person required to be registered as a contractor under AS 08.18 who has a contract with the state or a political subdivision of the state to provide materials or services, other than as an employee, for a public construction or public works project; (2) “subcontractor” means a person at any level, other than a prime contractor, who provides materials or services, other than as an employee, to be used in a public construction or public works project; (3) “working day” does not include a Saturday, Sunday, or state holiday. Article 4. Required Contract Provision. Sec. 36.90.300. Indemnification, defense, and hold harmless provision in certain construction-related contracts. (a) A public agency shall include in a construction-related professional services contract entered into by the public agency a provision under which the consultant agrees to indemnify, defend, and hold harmless the public agency from claims or liability for the negligent acts, errors, or omissions of the consultant. The provision must include an apportionment of the indemnification, defense, and hold harmless obligation on a comparative fault basis. (b) A provision that reads substantially as follows satisfies the requirement of (a) of this section: The consultant shall indemnify, defend, and hold harmless the contracting agency from and against any claim of, or liability for, negligent acts, errors, and omissions of the consultant under this agreement. The consultant is not required to indemnify, defend, or hold harmless the contracting agency for a claim of, or liability for, the independent negligent acts, errors, and omissions of the contracting agency. If there is a claim of, or liability for, a joint negligent act, error, or omission of the consultant and the contracting agency, the indemnification, defense, and hold harmless obligation of this provision shall be apportioned on a comparative fault basis. In this provision, “consultant” and “contracting agency” include the employees, agents, and contractors who are directly responsible, respectively, to each. In this provision, “independent negligent acts, errors, and omissions” means negligence other than in the contracting agency's selection, administration, monitoring, or controlling of the consultant, or in approving or accepting the consultant's work. (c) In this section, (1) “construction” means the process of building, altering, repairing, maintaining, improving, demolishing, planning, and designing a public highway, a structure, a building, a utility, infrastructure, or another public improvement to real property, but does not mean the routine operation of a public improvement; (2) “consultant” means a person who contracts with a public agency to provide professional services; (3) “professional services” has the meaning given in AS 36.30.990 ; (4) “public agency” means a department, institution, board, commission, division, authority, public corporation, committee, school district, political subdivision, or other administrative unit of a municipality, of a political subdivision, or of the executive or legislative branch of state government, including the University of Alaska, the Alaska Aerospace Corporation, the Alaska Housing Finance Corporation, the Alaska Industrial Development and Export Authority, the Alaska Energy Authority, the Alaska Railroad Corporation, and a regional educational attendance area.