2010 Session - House of Representatives Journals

The Committee on Legislative Procedure respectfully reports that the Chief Clerk of the House has had under consideration the House Journal of the twenty-fourth day.

All errors, typographical or otherwise, are duly marked in the temporary journal for correction.

And we hereby move the adoption of the report.

Respectfully submitted,

Timothy A. Rave, Chair

Which motion prevailed.

The oath of office was administered by Speaker Rave to the following named pages:

Shaydel Engel, Bailey Hurlbert, Seth Lopour, Kelsey Luckhurst, Jayme Manke, Donald Nelson, Tyler Peterson, Megan Pushor, Eran Rea, Saraya Rollins, Tyler Stenberg, Nicolas Torberson, Nellie Two Elk, Kelsey Warner.

Which was subscribed to and placed on file in the office of the Secretary of State.

REPORTS OF STANDING COMMITTEES

MR. SPEAKER:

The Committee on Education respectfully reports that it has had under consideration HB 1181, which was reconsidered, and returns the same with the recommendation that said bill do pass.

Also MR. SPEAKER:

The Committee on Education respectfully reports that it has had under consideration SB 145 and returns the same with the recommendation that said bill be amended as follows:

145cb

On page 2, line 12, of the Senate Education Committee engrossed bill, delete "thirty-two" and insert "thirty".

On page 2, line 13, delete "sixty-four" and insert "sixty".

On page 2, line 14, delete "ninety-six" and insert "ninety".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Education respectfully reports that it has had under consideration HB 1168 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Ed McLaughlin, Chair

Also MR. SPEAKER:

The Committee on State Affairs respectfully reports that it has had under consideration HB 1277 which was tabled.

Also MR. SPEAKER:

The Committee on State Affairs respectfully reports that it has had under consideration HB 1278 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Bob Faehn, Chair

Also MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration SB 46 and 48 and returns the same with the recommendation that said bills do pass.

Also MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1240 and returns the same with the recommendation that said bill be amended as follows:

1240ma

On page 1 of the printed bill, delete lines 13 to 15, inclusive.

On page 2, delete lines 1 to 11, inclusive.

1240mta

On page 1 of the printed bill, delete line 2.

On page 1, line 3, delete "fund, to".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration SB 26 and returns the same with the recommendation that said bill be amended as follows:

26ua

On page 2, between lines 5 and 6 of the Senate Appropriations Committee engrossed bill, insert:

" Section 4. The Board of Regents shall file its plan to provide for the operation and the maintenance and repair expenses related to the project authorized in this Act with the special interim committee created in § 4-8A-2 no later than November 1, 2010.".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1255 which was tabled.

Respectfully submitted,
Larry Tidemann, Chair

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1272 and returns the same with the recommendation that said bill do pass.

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1085, which was removed from the table, and returns the same with the recommendation that said bill be amended as follows:

1085rc

On page 1 of the printed bill, delete lines 6 to 10, inclusive, and insert:

" No person who is required to register as a sex offender pursuant to chapter 22-24B may be the director, administrator, or executive officer of any youth participation program, group, or association unless the sex offender had no criminal record against a child under sixteen. A violation of this section is a Class 1 misdemeanor.".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1228 and returns the same with the recommendation that said bill be amended as follows:

1228ra

On page 1, line 4, of the printed bill, after "Section 1." Insert "That chapter 25-4 be amended by adding thereto a NEW SECTION to read as follows:".

On page 1, line 8, after "." insert "Nothing in this Act effects the confidentiality of records and files relating to reports of child abuse or neglect maintained by the Department of Social Services pursuant to chapter 26-8A.".

1228rb

On page 1, line 7 of the printed bill, before "neglect" insert "and".

And that as so amended said bill do pass and be placed on the consent calendar.

Also MR. SPEAKER:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1256 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Joni M. Cutler, Chair

Also MR. SPEAKER:

The Committee on Commerce respectfully reports that it has had under consideration HB 1138 and returns the same with the recommendation that said bill be amended as follows:

1138sb

On page 3, line 19, of the printed bill, delete "agency" and insert "or a private nonprofit entity".

On page 3, line 20, delete "agency" and insert "or a private nonprofit entity".

On page 3, line 24, before "property" insert "or a private nonprofit entity".

On page 4, line 11, after "public" insert "or a private nonprofit".

On page 4, between lines 17 and 18, insert:

(7) "Private nonprofit entity," any entity whose primary purpose is for a high technology activity focused on conducting and stimulating research, knowledge, and tech-based economic development;".

On page 4, line 18, delete "(7)" and insert "(8)".

On page 5, line 2, delete "No".

On page 5, delete lines 3 to 24, inclusive.

On page 6, delete lines 1 to 24, inclusive.

On page 7, delete lines 1 to 21, inclusive.

On page 9, line 15, delete "and the Legislature".

On page 9, line 16, after "public" insert "or private".

On page 9, delete lines 17 to 21, inclusive.

On page 14, line 8, after "public" insert "and private".

On page 14, line 11, after "public" insert "and private".

On page 14, line 16, after "public" insert "or private".

On page 14, line 20, after "public" insert "or private".

On page 14, line 22, after "public" insert "or private".

On page 15, line 3, after "public" insert "and private".

On page 15, line 13, after "public" insert "or private".

On page 15, line 16, after "public" insert "and private".

On page 15, line 20, after "public" insert "and private".

On page 16, line 4, delete "(9)" and insert "(10)".

On page 16, line 6, delete "(10)" and insert "(11)".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Commerce respectfully reports that it has had under consideration HB 1226 and returns the same with the recommendation that said bill be amended as follows:

1226sa

On page 1 of the printed bill, delete lines 5 to 8, inclusive, and insert:

" 35-4-79.1. No off-sale licensee licensed under subdivision 35-4-2(3),(5),(17),or (17A) may permit any person less than twenty-one years old to sell, serve, or dispense alcoholic beverages on the licensed premises unless such sales of alcoholic beverages constitutes less than fifty percent of the gross business transacted by that establishment. If alcoholic beverage sales constitute less than fifty percent of the gross business transacted by the establishment, the licensee may permit persons eighteen years old or older to sell, serve, or dispense alcoholic beverages.

Section 2. That § 35-4-79.3 be repealed.
35-4-79.3. No off-sale licensee licensed under subdivision 35-4-2(3) or (5) may permit any person less than twenty-one years old to sell, serve, or dispense alcoholic beverages on the licensed premises. ".

And that as so amended said bill do pass.

Also MR. SPEAKER:

The Committee on Commerce respectfully reports that it has had under consideration HB 1155, which was reconsidered, and returns the same with the recommendation that said bill be amended as follows:

1155tc

On the printed bill, delete everything after the enacting clause and insert:

" Section 1. For purposes of this Act, the term, anemometer, means an instrument for measuring and recording the speed of the wind. For purposes of this Act, the term, anemometer tower, means a structure, including all guy wires and accessory facilities, on which an anemometer is mounted for the purposes of documenting whether a site has wind resources sufficient for the operation of a wind turbine generator.

Section 2. Any anemometer tower that is fifty feet in height above the ground or higher, that is located outside the exterior boundaries of any municipality, and whose appearance is not otherwise mandated by state or federal law shall be marked, painted, flagged, or otherwise constructed to be recognizable in clear air during daylight hours. Any anemometer tower that was erected before the effective date of this Act shall be marked as required in this section within one year after the effective date of this Act. Any anemometer tower that is erected on or

after the effective date of this Act shall be marked as required in this section at the time it is erected. Marking required under this section includes marking the anemometer tower, guy wires, and accessory facilities as follows:

(1) The top one-third of the anemometer tower shall be painted in equal, alternating bands of aviation orange and white, beginning with orange at the top of the tower and ending with orange at the bottom of the marked portion of the tower;

(2) Two marker balls shall be attached to and evenly spaced on each of the outside guy wires;

(3) The area surrounding each point where a guy wire is anchored to the ground shall have a contrasting appearance with any surrounding vegetation. If the adjacent land is grazed, the area surrounding the anchor point shall be fenced. For purposes of this section, the term, area surrounding the anchor point, means an area not less than sixty-four square feet whose outer boundary is at least four feet from the anchor point; and

(4) One or more seven-foot safety sleeves shall be placed at each anchor point and shall extend from the anchor point along each guy wire attached to the anchor point.

A violation of this section is a Class 2 misdemeanor."

1155ttb

On page 1, line 1, of the printed bill, delete "registration" and insert "marking".

On page 1, line 2, delete "and to declare an emergency".

And that as so amended said bill do pass and be placed on the consent calendar.

Also MR. SPEAKER:

The Committee on Commerce respectfully reports that it has had under consideration HB 1156 and 1267 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Tim Rounds, Chair

Also MR. SPEAKER:

The Committee on Government Operations and Audit respectfully reports that it has had under consideration HB 1046 and returns the same with the recommendation that said bill be amended as follows:

1046op

On the House State Affairs Committee engrossed bill, delete everything after the enacting clause and insert:

" Section 1. That chapters 5-18, 5-19, 5-20, and 5-23 be repealed.

Section 2.Terms used in Act mean:

(1) "Acceptance," the formal resolution of a purchasing agency authorizing the execution of a design-build contract;

(2) "Biobased," any materials composed wholly or in a significant part of biological products including renewable agricultural materials or forestry materials;

(3) "Contract," any type of agreement, regardless of what the agreement may be called, for the procurement of supplies, services, or construction;

(4) "Construction," and "constructed," in addition to their ordinary meaning, repair, demolition, and alteration;

(5) "Construction management," any project delivery system based on an agreement whereby a construction manager provides leadership to the construction process through a series of services to the purchasing agency;

(6) "Construction manager," any person or entity that provides construction management services for a purchasing agency, and is either a construction manager-agent or construction manager-at-risk;

(7) "Construction manager-agent," any construction manager that provides construction management services to a purchasing agency in a fiduciary capacity;

(8) "Construction manager-at-risk," any construction manager that assumes the risk for construction, rehabilitation, alteration, or repair of a public improvement and that provides construction management services to the purchasing agency;

(9) "Design-build contract," any contract between a purchasing agency and a design-builder to furnish the architecture, engineering, and related services as required, and the labor, materials, and other construction services for a public improvement. A design-build contract may be conditioned upon future refinements in scope and price, and may permit the purchasing agency to make changes in the scope of the project without invalidating the design-build contract;

(10) "Design-build proposal," an offer to enter into a design-build contract;

(11) "Design-build request for proposals," any document or publication whereby a purchasing agency solicits proposals for a design-build contract;

(12) "Design-builder," any person that proposes to design and construct a public improvement covered by the procedures of this Act;

(13) "Environmentally preferable product," any cleaning or maintenance product having properties that minimize potential impacts to human health and the environment, any product designed to conserve energy and water, any biobased product, and any product containing recycled materials or recovered materials;

(14) "Internet," the international computer network of both federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork called the world wide web;

(15) "Invitation for bids," any document, whether attached or incorporated by reference, used for soliciting bids;

(16) "Officer," any elected official or administrative officer appointed to that position by the governing body;

(17) "Performance criteria," requirements for the public improvement, including as appropriate, capacity, durability, production standards, ingress and egress requirements, building code requirements, or other criteria for the intended use of the public improvement, expressed in performance-oriented specifications or drawings suitable to allow the design-builder to make a proposal;

(18) "Performance criteria developer," any person and the person's subcontractors retained by the purchasing agency to develop performance criteria;

(19) "Professional services," services arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual;

(20) "Proposal," any offer to enter into contract in response to a request for proposals;

(21) "Purchasing agency," any governmental body or officer authorized by law, administrative rule, or delegated authority, to enter into contracts;

(22) "Public improvement," the process of building, altering, repairing, improving, or demolishing any public infrastructure facility, including any structure, building, or other improvements of any kind to real property, the cost of which is payable from taxes or other funds under the control of the purchasing agency, and includes any local improvement for which a special assessment is to be levied;

(23) "Qualified agency," any public or private nonprofit corporation geographically located in the State of South Dakota that provides services for persons with disabilities and is certified by the Department of Human Services;

(24) "Request for proposals," any document, whether attached or incorporated by reference, utilized by a purchasing agency when soliciting proposals for contracts for the procurement of supplies, services, or construction;

(25) "Request for qualifications," the document or publication whereby a purchasing agency solicits interested design-builders to pre-qualify for a design-build contract;

(26) "Resident," any person, partnership, association, limited liability company, foreign limited liability company, corporation, or foreign corporation licensed to do business within this state that has maintained a substantial and bona fide place of business and has conducted business from within this state for at least one year prior to the date on which a contract was awarded. The members of the partnership or association shall have been bona fide residents of the state for one year or more immediately prior to bidding upon the contract. A foreign corporation licensed pursuant to §§ 47-1A-1501 to 47-1A-1532, inclusive, is not a resident as defined by this section if the state or country in which it is organized enforces or has a preference for resident bidders;

(27) "Sealed bid or proposal," a response to an invitation for bids or request for proposals submitted in a manner where the contents of the bid or proposal cannot be opened or viewed before the date and time of the formal opening without leaving evidence that the bid or proposal has been opened or viewed;

(28) "Services," furnishing of labor, time, or effort by a contractor not involving the delivery of a specific end product other than reports which are merely incidental to the required performance;

(29) "Supplies," any property, including equipment, materials, and printing;

(30) "Surety," a bond or undertaking executed by a surety company authorized to do business in the State of South Dakota and countersigned by an agent of the company resident in the State of South Dakota. However, nothing in this subdivision requires countersignature of a bid bond.

Section 3. Unless otherwise authorized by law, the provisions of this Act, inclusive, apply to all contracts issued by any purchasing agency.

Section 4. Unless otherwise authorized by law, each contract for supplies, services, and construction shall be awarded by one of the following methods:

(1) Competitive sealed bids as provided in section 6 of this Act;

(2) Competitive sealed proposals as provided in sections 7 and 8 of this Act;

(3) Small purchases as provided in section 12 of this Act;

(4) Sole source procurement as provided in section 9 of this Act; or

(5) Emergency procurement as provided in section 10 of this Act.

Section 5. Contracts shall be awarded by the use of competitive sealed bids except as otherwise provided in this Act.

Section 6. The following procedures apply to the use of competitive sealed bids:

(1) Public notice of the invitation for bids shall be given pursuant to section 15 of this Act;

(2) The invitation for bids shall include a purchase description, and all contractual terms and conditions applicable to the procurement;

(3) A bid may be submitted either manually or electronically in a manner authorized by the purchasing agency;

(4) Each bid shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The amount of each bid, and such other relevant information as may be specified, together with the name of each bidder shall be recorded. Except as otherwise provided by law, the record and each bid shall be open to public inspection;

(5) Each bid shall be unconditionally accepted without alteration or correction, except as authorized in this section. Each bid shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be objectively measurable, such as discounts, transportation costs, and total or life cycle costs. The invitation for bids shall set forth the evaluation criteria to be used. No criteria may be used in bid evaluation that are not set forth in the invitation for bids;

(6) Any bid may be withdrawn by letter or by electronic communications or in person before the time specified in the advertisement therefor. The purchasing agency may allow modification of bids by mail, facsimile, or electronic notice received at the place designated in the invitation to bid not later than the time set for the opening of bids. A modification may not reveal the bid price but shall provide the addition or subtraction or the modification so that the final prices or terms will not be known to the purchasing agency until the sealed bid is opened. A modification may not be withdrawn after the time set for the opening of bids. Each modification shall be confirmed in writing by the successful bidder before award of the contract. No bid made may be changed or altered by telephone. After bid opening, no withdrawal of a bid or change in bid prices or other provisions of bids prejudicial to the interest of the purchasing agency or fair competition is permitted. The purchasing agency may waive technical irregularities in the bid or proposal of the low bidder or offeror which irregularities do not alter the price, quality, or quantity of the services, or items of tangible personal property bid or offered. Any decision to permit the correction or withdrawal of a bid, or to cancel an award or a contract based on a bid mistake, shall

be supported by a written determination made by the purchasing agency, and included in the bid file;

(7) The contract shall be awarded within thirty days of the bid opening by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids. The purchasing agency may reject any and all bids and readvertise for bids if none of the bids are satisfactory, or if the purchasing agency believes an agreement has been entered into by the bidders to prevent competition. If the low bidder is not responsible or the bid is not made in accordance with the requirements of this Act or the low bid is withdrawn as authorized by this section, the bid of the next lowest responsible and responsive bidder may be accepted;

(8) If it is considered impractical to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation;

(9) If, after advertising for bids, no firm bids are received, the purchasing agency may negotiate a contract for the purchase of the supplies, services, or public improvement projects at the most advantageous price, if the specifications of the original bid are met;

(10) If two or more competitive sealed bids submitted are identical in price and product quality, the bids are the low bid, and no resident bidder preference is applicable, the purchasing agency may:

(a) Award the bid by lottery to one of the identical low bidders; or

(b) Reject all the bids and resolicit bids for the required supplies, services, or public improvement.

Section 7. A contract may be entered into by competitive sealed proposals if the purchasing agency determines in writing that the use of competitive sealed bids is either not practicable or not advantageous.

Section 8. The procedures for issuing a contract through competitive sealed proposals are as follows:

(1) The proposals shall be solicited through a request for proposals. The request for proposals shall state the relative importance of price and other factors, if any;

(2) Public notice of the request for proposals shall be given pursuant to section 15 of this Act;

(3) A proposal may be submitted either manually or electronically in a manner authorized by the purchasing agency;

(4) Each proposal shall be opened so as to avoid disclosure of contents to competing offerors during the process of negotiation. A register of proposals shall be prepared documenting the name and address of each offeror and identifying each offeror awarded a contract. The register shall be open for public inspection after contract award;

(5) As provided in the request for proposals, a discussion may be conducted with any responsible offeror who submitted a proposal determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Each offeror shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of a proposal. A revision may be permitted after a submission and prior to an award for the purpose of obtaining the best and final offer. In conducting any discussion, there may be no disclosure of any information derived from any proposal submitted by a competing offeror;

(6) An award shall be made to the responsible offeror whose proposal conforms to the solicitation and is determined in writing to be the most advantageous to the purchasing agency taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria may be used in the evaluation. The contract file shall contain the basis on which the award is made. Written notice of the award of a contract to the successful offeror shall be promptly given to each offeror. The purchasing agency may reject any and all proposals and readvertise for proposals if none of the proposals are satisfactory, or if the purchasing agency believes any agreement has been entered into by the offerors to prevent competition; and

(7) This section does not apply to state professional service contracts issued pursuant to sections 110 to 119, inclusive, of this Act.

Section 9. A contract may be awarded for supplies or services without competition if the purchasing agency determines in writing that the supplies or services are of such a unique nature that the contractor selected is clearly and justifiably the only practicable source to provide the supplies or services. The determination that the contractor selected is justifiably the sole source shall be based on either the uniqueness of the supplies or services or the sole availability at the location required. In such cases, the purchasing agency shall conduct negotiations, including price, delivery, and quantity to obtain the most advantageous price and shall include the written verification of the sole source in the contract file. This section does not apply to construction services or construction equipment.

Section 10. A purchasing agency may make or authorize others to make an emergency procurement without advertising the procurement if rentals are not practicable and there exists a threat to public health, welfare, or safety or for other urgent and compelling reasons. Failure to abide by the bid provisions of this Act in a timely manner is not an emergency. An emergency procurement shall be made with such competition as is practicable under the circumstances. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file.

Section 11. The purchasing agency shall maintain a record listing each contract made under sole source procurement and emergency procurement for a minimum of five years. The record shall contain:

(1) Each contractor's name;

(2) The amount and type of each contract; and

(3) A listing of the supplies, services, and public improvements procured under each contract.

Section 12. Unless otherwise specified by statute, purchases of supplies and services under twenty-five thousand dollars shall be made as follows:

(1) State purchases of supplies over one thousand dollars and under twenty-five thousand dollars shall be processed by the Bureau of Administration and shall be made by first obtaining three quotes from different vendors. If three quotes cannot be obtained, a sole source justification shall accompany the purchase request and the Bureau of Administration may approve the purchase if in the best interest of the state, require additional quotes to be obtained, or require the purchase be advertised for bids;

(2) State purchases of supplies under one thousand dollars may be made in accordance with procedures established by the purchasing agency in the best interests of the state;

(3) State purchases of services under twenty-five thousand dollars may be made in accordance with procedures established by the purchasing agency in the best interests of the state; and

(4) For all other purchasing agencies, purchases under twenty-five thousand dollars may be made in accordance with procedures established by the purchasing agency.

No purchases may be artificially divided to constitute a small purchase under this section.

Section 13. An invitation for bids, a request for proposals, or other solicitation may be canceled, or any or all bids or proposals may be rejected in whole or in part as may be specified in the solicitation, if the purchasing agency determines it is in the best interests of the agency. The reasons for the cancellation or rejection shall be made part of the contract file.

Section 14. There is hereby created a centralized public bid exchange. The Bureau of Administration shall establish the exchange either within the bureau or within another public or private organization. The purpose of the exchange is to facilitate the publishing of official state and political subdivision bids to provide greater notice to bidders and to the state and its political subdivisions. The exchange shall maintain a list of all state bids and proposals and all bids and proposals provided by political subdivisions which participate in the exchange. The exchange shall set and charge each bidder, offeror, or political subdivision or both a fee for participation in the exchange to defray the cost of administering the exchange.

Section 15. If the purchasing agency intends to enter into a contract for any public improvement that involves the expenditure of fifty thousand dollars or more, or a contract for the purchase of supplies or services, other than professional services, that involves the expenditure of twenty-five thousand dollars or more, the purchasing agency shall advertise for bids or proposals. The advertisement shall appear as a legal notice in the appointed legal newspaper. The advertisement shall be printed at least twice, with the first publication at least ten days before opening of bids or the deadline for the submission of proposals. The first publication shall be in each official newspaper of the purchasing agency, and the second publication may be in any legal newspaper of the state chosen by the purchasing agency. If the purchasing agency has no official newspaper, the first publication shall be made in a legal newspaper with general circulation in the jurisdiction of the purchasing agency to be selected by the purchasing agency. The advertisement shall state the time and place where the bids will be opened or the deadline for the submission of proposals. In each notice, the purchasing agency shall reserve the right to reject any or all bids or proposals.

Section 16. After receiving notice of a contract award, the successful bidder or offeror shall enter into a contract with the purchasing agency within the time specified in the invitation for bids or request for proposals. If any bidder or offeror fails to enter into a contract within the time specified, the contract may be awarded to the next lowest responsive and responsible bidder or offeror for the same kind of work and material, unless all bids or proposals are rejected. The defaulting bidder or offeror shall be responsible for the difference in price.

Section 17. If any successful bidder or offeror fails to fulfill the conditions of an awarded contract, the purchasing agency may proceed to recover from the defaulting party whatever damages may have been sustained as a result of the default. The purchasing agency shall have all remedies provided in the contract and provided by law.

Section 18. No officer or employee who approves, awards, or administers a contract involving the expenditure of public funds or the sale or lease of property, may have an interest in a contract that is within the scope of the officer's or employee's official duties. This prohibition includes any officer or employee who, in his or her official capacity, recommends the approval or award of the contract or who supervises a person who approves, awards, or administers the contract. This prohibition does not include any officer who serves without compensation or who may be paid per diem pursuant to § 4-7-10.4. Any contract made in violation of this section is void. Any officer or employee who knowingly violates this section is guilty of a Class 2 misdemeanor.

Section 19. Any specification shall seek to promote overall economy for the purposes intended and encourage competition in satisfying the purchasing agency's needs, and may not be unduly restrictive. Brand name or equal specifications may be used if the purchasing agency determines in writing that:

(1) No other design or performance specification or qualified products list is available;

(2) Time does not permit the preparation of another form of purchase description, not including a brand name specification;

(3) The nature of the product or the nature of the purchasing agency's requirements makes use of a brand name or equal specification suitable for the procurement; or

(4) Use of a brand name or equal specification is in the purchasing agency's best interests.

Section 20. Brand name or equal specifications shall seek to designate three, or as many different brands as are practicable, as "or equal" references and shall further state that substantially equivalent products to those designated will be considered for award. Unless the purchasing agency determines in writing that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics which are required. If a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.

Section 21. Brand name specification may be used only if the purchasing agency makes a written determination that only the identified brand name item or items will satisfy the agency's needs. The agency shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of price competition is practicable. If only one source can supply the requirement, the procurement shall be made under the sole source procurement provisions of section 9 of this Act.

Section 22. Each contract shall be in writing and shall be signed on behalf of the purchasing agency by the authorized officials.

Section 23. The provisions of this Act do not apply to:

(1) Any highway construction contract entered into by the Department of Transportation;

(2) Any contract for the purchase of supplies from the United States or its agencies or any contract issued by the General Services Administration;

(3) Any purchase of supplies or services, other than professional services, by purchasing agencies from any active contract that has been awarded by any government entity by competitive sealed bids or competitive sealed proposals or from any contract that was competitively solicited and awarded within the previous twelve months;

(4) Any equipment repair contract;

(5) Any procurement of electric power, water, or natural gas; chemical and biological products; laboratory apparatus and appliances; published books, maps, periodicals and technical pamphlets; works of art for museum and public display; medical supplies; communications technologies, computer hardware and software, peripheral equipment, and related connectivity; tableware or perishable foods;

(6) Any supplies, services, and professional services required for externally funded research projects at institutions under the control of the Board of Regents;

(7) Any property or liability insurance or performance bonds, except that the actual procurement of any insurance or performance bonds by any department of the state government, state institution, and state agency shall be made under the supervision of the Bureau of Administration;

(8) Any supplies needed by the Department of Human Services or prison industries for the manufacturing of products;

(9) Any printing involving student activities, conducted by student organizations and paid for out of student fees, at institutions under the control of the Board of Regents. However, nothing in this subdivision exempts, from the requirements of this Act, purchases that involve printing for other activities at institutions under the control of the Board of Regents;

(10) Any purchase of surplus property from another purchasing agency;

(11) Any animals purchased;

(12) Any purchase by a school district of perishable food, raw materials used in construction or manufacture of products for resale, or for transportation of students;

(13) Any authority authorized by chapters 1-16A, 1-16B, 1-16E, 1-16G, 1-16H, 5-12, or 11-11;

(14) Any seeds, fertilizers, herbicides, pesticides, feeds, and supplies used in the operation of farms by institutions under the control of the Board of Regents;

(15) Any purchase of supplies for any utility owned or operated by a municipality if the purchase does not exceed the limits established in section 15 of this Act; or

(16) For political subdivisions, any contract for asbestos removal in emergency response actions and any contract for services provided by individuals or firms for consultants, audits, legal services, ambulance services, architectural services and engineering, insurance, real estate services, or auction services.

Section 24. The state auditor may stop the letting or the execution of any contract with the state, or with any state officer, commission, board, institution, or agency by serving a written notice of the order on the officer, commission, or board involved, the secretary of state, the attorney general, and on the contractor, if any, stating the grounds on which the state auditor has determined that the contract is illegal, unauthorized, or improper.

Section 25. From any order or decision of the state auditor stopping execution of any contract obligation of the state, any person aggrieved or interested may appeal to the State Board of Finance at any time within twenty days after the stop order was filed with either the attorney general, the secretary of state, the state treasurer, or the department involved by serving notice

of appeal on the state auditor and the Governor. The notice shall state the decision being appealed and shall ask for a hearing on the appeal. Upon receiving the notice, the Governor shall call a meeting of the State Board of Finance. The board shall consider the appeal, make a decision, enter the decision in the journal, and give notice to the appellant and the department involved. Any order of the Board of Finance as expressed in the board's decision is binding upon the state department, institution, agency, or office involved and shall be carried out accordingly.

Section 26. Except for canned meat food products that are not available from a domestic source, no purchasing agency may purchase any meat food products that are the products of any foreign country or that are imported from outside the boundaries of the United States.

Section 27. Any milk processor licensed pursuant to § 39-6-7, bidding any milk or milk product under a competitive bid contract, shall receive the bid contract if the processor's bid is equal to, or within five percent or less, of any other bidder who is not a licensed processor.

Section 28. In awarding a contract, if all things are equal, including the price and quality of the supplies or services, a purchasing agency shall give preference:

(1) To a qualified agency if the other equal low bid or proposal was submitted by a business that was not a qualified agency;

(2) To a resident business if the other equal low bid or proposal was submitted by a nonresident business;

(3) To a resident manufacturer if the other equal low bid or proposal was submitted by a resident business that is not a manufacturer;

(4) To a resident business whose principal place of business is located in the State of South Dakota, if the other equal low bid or proposal was submitted by a resident business whose principal place of business is not located in the State of South Dakota; or

(5) To a nonresident business providing or utilizing supplies or services found in South Dakota, if the other equal low bid or proposal was submitted by a nonresident business not providing or utilizing supplies or services found in South Dakota.

In computing price, the cost of transportation, if any, including delivery, shall be considered.

Section 29. A resident bidder shall be allowed a preference on a contract against the bid of any bidder from any other state or foreign province that enforces or has a preference for resident bidders. The amount of the preference given to the resident bidder shall be equal to the preference in the other state or foreign province.

Section 30. The Bureau of Administration shall maintain a current list of all states that have a resident bidder preference law and the amount or percent of preference taken by each state. The bureau shall make the list available upon request to any purchasing agency.

Section 31. A qualified agency may submit a list of supplies, custodial services, and maintenance services, provided by the agency, to the Bureau of Administration. The bureau shall make the information available to purchasing agencies of the State of South Dakota on a website maintained by the bureau.

Section 32. No provision of this Act may be so construed as to prohibit any person with a disability from negotiating a contract for service or supplies or in any other manner doing business with any purchasing agency.

Section 33. A purchasing agency may give preference to the purchase of supplies manufactured from recycled or biobased materials if the bids are within five percent of the lowest bid offering nonrecycled or nonbiobased materials.

Section 34. Prior to the award of a contract, the purchasing agency may require of each bidder or offeror such information as shall allow the agency to determine whether a bidder or offeror is entitled to a preference or subject to having a preference enforced against it under this Act.

Section 35. In addition to the provisions of this Act, any procurement utilizing federal funds is subject to any federal statutes and regulations governing the use and payment of such funds.

Section 36. Any bidder or offeror who fails to comply with the provisions of this Act, or who provides any false information in the submission of any bid or offer is subject to having the bid or offer disallowed by the purchasing agency soliciting the bid or offer. Any contract entered into in violation of this Act is null and void.

Section 37. The Bureau of Administration shall serve as the central procurement agency of the State of South Dakota. Except for the legislative and judicial branches and as otherwise specifically provided in this Act, the Bureau of Administration shall procure, or authorize the procurement of all supplies and public improvements for state government. No claim for any such procurement may be paid unless authorization has been issued by the bureau. All state agencies and institutions are responsible for the procurement of services for their respective governmental unit. The governing body of all other purchasing agencies, including the legislative and judicial branches of state government, is responsible for procuring or authorizing the procurement of supplies, services, and public improvements for their respective governmental unit.

Section 38. In the procurement of supplies or services, a purchasing agency may require a bond or an approved security to be submitted with any bid or proposal as a guarantee that the bidder will enter into a contract with the purchasing agency. No offeror or bidder may be required to leave the bond or security posted for a longer period than thirty days if the bid or proposal is not accepted. The bond or approved security of the successful offeror or bidder shall be returned upon the signing of the contract.

Section 39. For any public improvement contract, a performance and payment bond is required pursuant to chapter 5-21. For any other contract, a purchasing agency may require a bond or an approved security to be provided by the successful offeror or bidder as a guarantee

of faithful performance of the contract. In any case, the bond or approved security of the successful offeror or bidder shall be returned upon satisfactory completion of the contract.

Section 40. If a contract is for the construction of a public improvement, the required advertisement shall state where the plans and specifications may be examined. The plans and specifications for the construction of any public improvement shall be and remain on file in the office of the purchasing agency at all times from the beginning of the publication of the advertisement for bids until the completion of the public improvement. The purchasing agency shall, upon request, furnish at least one copy of the plans and specifications, without charge, to each contractor resident in South Dakota who intends, in good faith, to bid upon the public improvement. The copy shall be available at the date of the first publication of the advertisement for bids. The purchasing agency may require the return of the copy at the time of the opening of the bids.

Section 41. If the invitation for bids is for the construction of a public improvement, each bid shall contain a certified check or a cashier's check, for five percent of the amount of the bid. Such check shall be certified or issued by either a state or a national bank and payable to the purchasing agency or to an officer of the purchasing agency letting the contract and inviting bids. In lieu of a check, a bid may contain a bid bond for ten percent of the amount of the bid. Such bond to be issued by a surety authorized to do business in this state payable to the purchasing agency, as a guaranty that the bidder will enter into a contract with the purchasing agency, its board or officers thereof, in accordance with the terms of the letting and bid in case the bidder be awarded the contract.

Section 42. Notwithstanding the provisions of section 41 of this Act, the requirement of a bid bond, certified or cashier's check, cash, or other security may be waived by the purchasing agency if the bid submitted does not exceed fifty thousand dollars.

Section 43. No purchasing agency may, directly or indirectly, require or direct a bidder on any public improvement contract that is about to be or has been competitively bid to obtain from a particular insurer or insurance producer any surety bond or contract of insurance required in the bid or contract or required by any law, ordinance, or rule. However, the surety insurer shall be an authorized insurer under Title 58. Nothing in this section prevents any purchasing agency from exercising the right to approve or reject a surety bond or contract of insurance as to its form or sufficiency.

Section 44. If the lowest responsive and responsible bid for a public improvement project exceeds the final estimated project cost, the Bureau of Administration, acting on behalf of the state, or any other purchasing agency may negotiate with that low bidder for the construction of a public improvement at the most advantageous price.

Section 45. Prior to execution of a public improvement contract, a successful bidder shall certify:

(1) That no more than twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors; or

(2) That more then twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors because resident contractors are not available and at competitive prices.

The bidder shall also provide any information requested by the purchasing agency to verify the certification.

Section 46. If a purchasing agency is to supply tangible personal property to be used in performance of the contract and the personal property is taxable to the contractor under § 10-46-5, the specifications or notice to bidders shall state the purchase price or fair market value of the tangible personal property, whichever is the greater. The stated amount shall be the basis for determining the contractor's liability for tax.

Section 47. Any funds forfeited by a bidder or surety shall accrue to the funds provided for construction of the public improvement.

Section 48. No bidder on a public improvement contract may be required, either in the invitation for bids or otherwise, to leave a certified check or cashier's check, or bid bond, posted for a longer period than thirty days if the bid is not accepted. The check or bid bond of the successful bidder shall be returned upon the execution of the contract and surety hereafter provided for. The checks or bid bonds of all unsuccessful bidders shall be, by the purchasing agency, immediately returned to the respective makers thereof and not more than thirty days shall elapse between the opening of the bids and either the acceptance of the bid of the lowest responsible bidder or the rejection of all of the bids presented.

Section 49. If a contract is based upon plans and specifications prepared by an architect or engineer, the contract's terms and conditions shall comply with the provisions provided in the "General Conditions of the Contract for Construction," Fourteenth Edition, by the American Institute of Architects in effect on January 1, 2010, the "ConsensusDOCS 200 Standard Agreement and General Conditions Between Owner and Contractor," by ConsensusDOCS LLC in effect January 1, 2010, or the "Standard General Conditions of the Construction Contract," 1990 Edition, by the Engineer's Joint Contract Documents Committee, in effect January 1, 2010, except when in conflict with the laws of this state. However, the purchasing agency may modify or delete, on a contract by contract basis, any portion of the "General Conditions of the Contract for Construction," "ConsensusDOCS 200 Standard Agreement and General Conditions Between Owner and Contractor," or the "Standard General Conditions of the Construction Contract."

Section 50. The contract may permit progress payments, but an amount necessary to complete the improvement shall be retained from the final payment until the contract is executed in full and the public improvement completed to the satisfaction and acceptance of the purchasing agency. However, if the contractor has furnished the purchasing agency all required records and reports and a final inspection has been made, the purchasing agency shall pay to the contractor interest as set by the governing body at a rate of not less than the category E rate of interest as established by § 54-3-16 on the amounts retained and on the final payment due the contractor beginning thirty days after the work under the contract has been completed, as evidenced either by the completion date established by the architect's or engineer's letter of acceptance or by the use and occupancy of the public improvement. The interest shall continue until the date when payment is tendered to the contractor unless delay in payment has been the

result of federal participation in the contract in which event interest may not begin until thirty days after payment by the federal authority involved. If a portion of a progress payment is retained, other than the final payment, the purchasing agency shall pay to the contractor interest as set by the purchasing agency at a rate of not less than the category E rate of interest as established by § 54-3-16 on the amount retained beginning thirty days after the contractor has furnished the purchasing agency with all required records and reports and a progress inspection.

Section 51. The purchasing agency may include in any contract for a public improvement provisions for a bond or the deposit of securities in lieu of sums retained from payments due a contractor for work performed pursuant to the terms of the contract. The contract document shall state the types of bond or securities to be accepted and the procedural requirements for the deposits.

Section 52. If a purchasing agency elects to use and occupy the public improvement before acceptance, the purchasing agency shall pay all amounts due under the contract except double the amount that the architect or engineer estimates to be necessary to complete the improvement in accordance with the plans and specifications or one percent of the contract price, or in any event not less than three hundred dollars. No interest may commence until thirty days after the work has been fully completed.

Section 53. The purchasing agency may appoint a competent superintendent who may be the architect or engineer furnishing the plans and specifications for the public improvement. The superintendent shall report to the purchasing agency or board every thirty days as to the progress and character of the work done by the contractor. Upon the reports of the superintendent, the purchasing agency shall make payments promptly to the contractor during the process of construction to the extent provided by the contract based on the value of the work done and materials furnished. The payments shall be divided into such installments as the board and the contractor may agree upon at the time of entering into the contract, and which shall be included in and be a part of the terms of the contract. No payment, however, constitutes an acceptance, in whole or in part, by the purchasing agency prior to making of the final payment and acceptance in full completion of the contract. Final payment of any sums due to the contractor shall be made within thirty days after the completion and acceptance of the public improvement by the purchasing agency.

Section 54. No person, firm, or corporation may act as architect or engineer and also contractor on any public improvement project if the amount to be expended exceeds one hundred thousand dollars. Any public improvement of an emergency nature which affects the public health and safety of the state and are funded through the use of an emergency appropriation or special appropriation, and any full-service firm which specialize in the design, fabrication, and installation of cultural and educational exhibits are exempt from this section.

Section 55. Each purchasing agency, on entering into a contract for a public improvement, shall provide in the contract that the contractor is required to pay the Department of Labor of South Dakota all contributions and interest due under the provisions of chapter 61-5, on wages paid to individuals employed in performance of the contract.

Section 56. No purchasing agency may award any contract for the construction of any public improvement unless the purchasing agency has verified with the Department of Revenue and

Regulation that the contractor has a contractor's excise tax license pursuant to chapter 10-46A or 10-46B.

Section 57. Before final payment may be made on any contract for public improvement, the purchasing agency awarding the contract shall require the contractor to furnish a certificate from the Department of Labor that all contributions and interest due to the Department of Labor in the performance of the contract have been paid.

Section 58. Any amendment or change order to an existing contract for construction, reconstruction, or remodeling of a public improvement does not need to be bid if:

(1) The contract contains unit prices for the same type or class of work;

(2) The change or extra work is necessitated by circumstances related to soils, utilities, or unknown conditions directly affecting the performance of the work that were not reasonably foreseeable at the time the underlying contract was let and the change or extra work is necessary to the completion of the public improvement; or

(3) The sum of the proposed amendment or change order plus the sum of all other prior unbid amendments or change orders, exclusive of change orders issued under subdivisions (1) and (2) of this section, does not exceed the following:

(a) For contracts not more than five hundred thousand dollars, the greater of twenty-five thousand dollars or fifteen percent of the base contract;

(b) For contracts exceeding five hundred thousand dollars but not more than two million five hundred thousand dollars, the greater of seventy-five thousand dollars or ten percent of the base contract; and

(c) For contracts exceeding two million five hundred thousand dollars, the greater of two hundred fifty thousand dollars or five percent of the base contract.

Section 59. A purchasing agency may enter into design-build contracts for public improvements, if the following conditions are met:

(1) The purchasing agency shall, prior to issuing any design-build request for proposals, establish and publish procedures for the solicitation and award of design-build contracts. The Bureau of Administration shall establish the procedures for the state. The procedures shall include the following:

(a) The procedure to select or designate a performance criteria developer utilizing a qualification based process and the procedure to prepare performance criteria;

(b) The procedures for the preparation and contents of a design-build request for proposals;

(d) The procedures for preparing and submitting proposals;

(e) The procedures for evaluating proposals;

(f) The procedures for negotiations between the purchasing agency and those submitting proposals prior to the acceptance of a proposal. The procedures shall contain safeguards to preserve confidential information and proprietary information supplied by those submitting proposals, consistent with section 73 of this Act;

(g) The procedures for awarding and executing design-build contracts;

(h) The procedures for awarding design-build contracts in the event of public emergencies as defined in section 10 of this Act; and

(i) The procedures for acting on formal protests relating to the solicitation or award of design-build contracts;

(2) The purchasing agency shall, for each public improvement under this section, make a determination that it is in the best interest of the public to enter into a design-build contract to complete the public improvement. The determination to utilize design-build and the basis for the determination shall be recorded in the project file or the minutes of the meeting of the governing board of the purchasing agency. In making this determination, design-build projects shall meet one or more of the following criteria:

(a) The purchasing agency requires a project design and construction time line that is faster than the traditional design/bid/build process would allow;

(b) The complexity of the project requires close coordination of design and construction expertise or an extreme amount of coordination;

(d) The project can be defined at an early stage and the purchasing agency is able to specify all requirements; and

(3) The purchasing agency shall follow the procedures of other laws governing public improvement construction contracts to the extent such laws are compatible with the use of design-build contracts.

Section 60. No design-builder may do business in this state unless authorized as either an architect, engineer, or general contractor.

Section 61. A design-builder may sublet responsibility for professional design services to any person licensed and registered to provide professional design services in this state. Nothing in this section limits or eliminates the responsibility or liability of any person registered pursuant to chapter 36-18A, on a design-build project to the purchasing agency or other third parties under existing law.

Section 62. A design-builder may sublet responsibility for construction or other services to persons registered, licensed, or otherwise qualified to provide those services in this state.

Section 63. A design-builder may contract with the purchasing agency to provide professional services or construction services for which the design-builder is not licensed, registered, or qualified to perform, as long as the design-builder sublets all such services required under the design-build contract to a licensed, registered, or otherwise qualified person.

Section 64. Any request for proposals shall contain performance criteria developed by a performance criteria developer and approved by the purchasing agency. For projects not exempted under chapter 36-18A from using a registered design professional, the performance criteria developer shall be a design professional registered under chapter 36-18A. For projects exempt under chapter 36-18A from using a registered design professional, the performance criteria developer shall be hired on the basis of qualifications related to projects of similar scope.

Section 65. The performance criteria developer may not submit a proposal to enter into the design-build contract and the design-builder may not delegate or contract services under the design-build contract to the performance criteria developer.

Section 66. The performance criteria developer shall be either an employee of the purchasing agency or shall be engaged in accordance with statutorial procedures for contracting with professional services. With the approval of the purchasing agency, the developer may delegate or contract for the development of specific aspects of the design criteria to other consultants. The performance criteria developer may be retained at the purchasing agency's option through to the completion of the design-build contract.

Section 67. The purchasing agency, in consultation with the performance criteria developer, shall determine the scope and level of detail required for the performance criteria. The performance criteria shall be detailed enough to permit a person to submit a proposal in accordance with the design-build request for proposals, given the nature of the public project and the level of design to be provided in the proposal.

Section 68. After a minimum of three design-builders have been pre-qualified in accordance with section 70 of this Act, a design-build request for proposals shall be mailed to each pre-qualified design-builder. The minimum number of pre-qualified design-builders is not required for any improvement project that is complex in nature, requires close coordination of design and construction expertise, and does not require significant structural changes, additions, reconstruction, or new construction. The design-build request for proposals shall be prepared for each design-build contract containing the following elements:

(1) The identity of the purchasing agency which will award the design-build contract and the identity of the performance criteria developer;

(2) The procedures to be followed for submitting proposals, the criteria for evaluation of a proposal and its relative weight, and the procedures for making awards;

(3) The proposed terms and conditions for the design-build contract;

(4) The performance criteria, which shall include the following:

(a) The owners preliminary program of space needs and special requirements;

(b) Performance standards for materials and equipment; and

(5) A description of the drawings, specifications, or other submittals to be submitted with the proposal, with guidance as to the form and level of completeness of the drawings, specifications, or submittals that is acceptable;

(6) A schedule for planned commencement and completion of the design-build contract;

(7) Budget limits for the design-build contract;

(8) Affirmative action, disadvantaged business, or set-aside goals or requirements for the design-build contract, if any;

(9) Requirements for performance and payment bonds, and insurance. These requirements shall meet the requirements of § 5-21-1;

(10) The compensation, if any, to be given to design-builders submitting proposals who are not awarded the project;

(11) Whether project financing is in place;

(12) A schedule for payments to the design-builder;

(13) Site identification and geotechnical information if the site is owner-provided;

(14) Location of existing utilities and their capacity if the site is owner-provided; and

(15) Warranty and guarantee requirements.

Section 69. No design-build request for proposals may include detailed designs or detailed drawings prepared by the criteria developer. The request may, however, include drawings of existing conditions and any preliminary conceptual sketches necessary to illustrate the information required by subdivision (4) of section 68 of this Act. Each conceptual drawing shall contain the minimum information necessary to convey the requirements. No design-build request for proposals may include detailed construction specifications. Any design and construction standards in the request for proposals shall be performance standards only.

Section 70. A purchasing agency shall pre-qualify design-builders for design-build contracts by advertising its request for qualifications in accordance with section 15 of this Act. A request for qualifications shall contain the following elements:

(1) The identity of the purchasing agency;

(2) A description of the proposed public improvement;

(3) Budget limits for the proposed public improvement;

(4) The requirements the design-builder will be required to have; and

(5) The criteria and their relative weight for prequalification.

Section 71. Any proposal, submitted pursuant to this section, shall be accompanied by a deposit or bond meeting the requirements of section 41 of this Act. The deposit or security may be forfeited if the proposal is accepted but the design-builder fails to execute the design-build contract.

Section 72. Any proposal shall be sealed and may not be opened until expiration of the time established for making proposals as set forth in the design-build request for proposals. To the extent required by the request for proposals, any proposal shall identify each person to whom the design-builder proposes to sublet obligations under the design-build contract. At a minimum, any proposal shall identify each person to whom the design-builder proposes to sublet any design obligations or general construction obligations. Any person so identified may not be replaced without the approval of the purchasing agency. Any proposal shall establish a cost of the design-build contract that may not be exceeded if the proposal is accepted without change. The maximum cost in the proposal may be converted to fixed prices by negotiated agreement between the purchasing agency and the selected design-builder.

Section 73. Until a proposal is accepted, the drawings, specifications, and other information in the proposal remain the property of the person making the proposal. The purchasing agency shall make reasonable efforts to maintain the secrecy and confidentiality of any proposal and all information contained in any proposal and may not disclose any proposal or the information contained in a proposal to the design-builder's competitors. The purchasing agency may not disclose, except as may be permitted pursuant to chapter 1-27, confidential and proprietary information contained in any proposal to the public until such time as the purchasing agency takes final action to accept a proposal.

Section 74. Once received, any proposal shall be submitted to the performance criteria developer for review. Clarifications may be required to ensure conformance of any proposal with the performance criteria. In seeking clarifications, the performance criteria developer may not reveal any aspect of any design-builder's proposal to any other design-builder. No proposal may be considered until the performance criteria developer issues a written opinion that the proposal is consistent with the performance criteria. Once the performance criteria developer has issued such an opinion, the proposal shall be submitted to the governing body of the purchasing agency for review and evaluation. No proposal or design-build contract may be

accepted unless the purchasing agency determines there was adequate competition for such contract.

Section 75. After obtaining and evaluating proposals according to the criteria and procedures set forth in the design-build request for proposals, a purchasing agency may accept the proposal it considers most advantageous to the purchasing agency. Acceptance of a proposal shall be by written notice to the design-builder which submitted the accepted proposal. At the same time notice of acceptance is delivered, the purchasing agency shall also inform, in writing, the other design-builders that their proposals were not accepted. Unless all proposals are rejected, a detailed breakdown of the evaluation criteria scores for each proposal received shall be made available to the public after signature execution of the design-build contract. The contract for development of performance criteria shall terminate if a contract is awarded to the design-builder.

Section 76. The purchasing agency may reject any and all design-build proposals. The purchasing agency may solicit new proposals using the same or different performance criteria, budget constraints, or qualifications.

Section 77. Any design-build proposal may be withdrawn by the proposer for any reason at any time prior to acceptance.

Section 78. Any purchasing agency may engage a construction manager if planning, designing, or constructing a public improvement, or if improving, altering, or repairing a public improvement. However, no purchasing agency is required to engage a construction manager.

Section 79. Construction management services provided in the planning and design phases of a public improvement project may include:

(1) Services provided in the planning and design phases of a public improvement project including the following:

(a) Consulting with, advising, assisting, and making recommendations to the public corporation and architect or engineer on all aspects of planning for project construction;

(b) Reviewing all plans and specifications as they are being developed and making recommendations with respect to construction feasibility, availability of material and labor, time requirements for procurement and construction, and projected costs;

(c) Making, reviewing, and refining budget estimates based on the public corporation's program and other available information;

(d) Making recommendations to the public corporation and the architect or engineer regarding the division of work in the plans and specifications to facilitate bidding and awarding of contracts;

(e) Soliciting the interest of capable contractors and assisting the public corporation in taking bids on the project;

(f) Analyzing the bids received and awarding contracts; and

(g) Preparing and monitoring a progress schedule during the design phase of the project and preparation of a proposed construction schedule; and

(2) Services provided in the construction phase of the public improvement project including the following:

(a) Maintaining competent supervisory staff to coordinate and provide general direction of the work and progress of the contractors on the project;

(b) Observing the work as it is being performed for general conformance with working drawings and specifications;

(c) Establishing procedures for coordinating among the public corporation, architect or engineer, contractors, and construction manager with respect to all aspects of the project and implementing labor policy in conformance with the requirements of the public corporation's policy and making recommendations;

(d) Reviewing and processing all applications for payment by involved contractors and material suppliers in accordance with the terms of the contract;

(e) Making recommendations for and processing requests for changes in the work and maintaining records of change orders;

(f) Scheduling and conducting job meetings to ensure orderly progress of the work;

(g) Developing and monitoring a project progress schedule, coordinating and expediting the work of all contractors, and providing periodic status reports to the owner and the architect and engineer; and

(h) Establishing and maintaining a cost control system and conducting meetings to review costs.

Section 80. No construction manager-agent may contract directly with any contractor or supplier for the project.

Section 81. The construction manager-at-risk shall directly contract with subcontractors and suppliers for the project.

Section 82. Unless the construction manager-agent is an employee of the purchasing agency and provides the construction management services pursuant to such employment, no purchasing agency may engage the services of a construction manager except as follows:

(1) The purchasing agency shall first make the following determinations:

(a) That it is in the public interest to utilize the services of a construction manager; and

(b) That the construction management services would not unreasonably duplicate and would be in addition to the normal scope of separate architect or engineer contracts;

(2) Notwithstanding any other provisions of this chapter, no construction manager may contract to perform actual construction on the project, except as follows:

(a) The construction manager may perform general conditions of the construction contract as required by the owner;

(b) The construction manager is a construction manager-at-risk and was solicited through a qualification-based request for proposals method of procurement as provided in section 83 of this Act and the construction manager-at-risk, for any actual construction contracted by the construction manager-at-risk to be performed on the project, provides payment and performance bonds and competitively bids the work as required by any statute governing bidding and bonding for public improvement projects;

(d) Pursuant to a contract negotiated pursuant to subdivision (9) of section 6 of this Act; and

(3) No person, firm, or corporation may act as a construction manager-agent and also as a contractor on any public improvement, except as follows:

(a) Pursuant to a contract awarded on an emergency basis, pursuant to section 10 of this Act; or

(b) Pursuant to a contract negotiated pursuant to subdivision (9) of section 6 of this Act.

Section 83. Each qualification based request for proposals required by subsection (b) of subdivision (2) of section 82 of this Act to enter into a construction manager-at-risk services contract where the construction manager-at-risk intends to actually perform construction on the project, shall meet the following criteria:

(1) The purchasing agency shall, prior to issuing any request for proposals to enter in a construction management services contract, establish and publish procedures for the solicitation and award of such contracts, which procedures shall include the following:

(a) The procedures and standards to be used to qualify construction managers;

(b) The procedures for preparing and submitting proposals;

(d) The procedures for negotiations between the purchasing agency and those submitting proposals prior to the acceptance of a proposal. The procedures shall contain safeguards to preserve the confidential information and proprietary information supplied by those submitting proposals; and

(e) The procedures for awarding construction management services contracts;

(2) A request for proposals to enter into a construction management services contract shall contain the following elements:

(a) The identity of the purchasing agency;

(b) A description of the proposed public improvement;

(d) The procedures to be followed for submitting proposals, the criteria for evaluation of a proposal and its relative weight, and procedures for making awards;

(e) The proposed terms and conditions for the construction management services contract, including a description of the scope of services to be provided;

(3) Notice of any request for proposals shall be advertised in accordance with the provisions of section 15 of this Act;

(4) After obtaining and evaluating proposals, a purchasing agency may accept the proposal it considers the most advantageous to the purchasing agency. Acceptance of a proposal shall be by written notice to the construction manager submitting the accepted proposal, and by simultaneously notifying in writing the other construction managers that their proposals were not accepted; and

(5) The purchasing agency shall reserve the right to reject any or all proposals submitted.

Section 84. Each contract for a public improvement shall have a licensed design professional actively involved in the project from the start of design through final completion as required by chapter 36-18A.

Section 85. No contract for the transportation of students may exceed five years. Specific provisions of the contract may be renegotiated during the term of the contract if guidelines for

making changes are in the contract. Any change made during the term of the contract shall be reported in the school board minutes.

Section 86. No contract for the services of a local school food service management company may exceed one year. An original contract for the services of a school food service management company may be renewed annually no more than four times consecutively following the original contract. Both bid and contract shall specify that the contract may be renewed, but the local school is not required to renew the contract. Specific provisions of the original contract may be renegotiated prior to renewal if guidelines for making changes are in the original contract. The school board shall record in its minutes any changes made during the term of a food service management contract or renewal.

Section 87. The governing board of a unit of local government shall be exempted from the provisions of this Act if it is able to purchase supplies at a substantial savings at a public sale or auction. Any performance bond required by § 5-21-1 may be waived on items purchased for less than ten thousand dollars at a public sale or auction. The governing board shall contact and attempt to obtain competitive quotations from at least three suppliers of identical or similar supplies. The board may authorize an agent to attend a sale or auction and expend an amount not in excess of eighty percent of the average of the quotations received. A record of the names of the suppliers, the quotations received, and the procurement procedures used in purchasing shall be documented, noted in the minutes, and retained on file by the governing board.

Section 88. If a municipality requires a developer to install water and sanitary sewer trunk lines or mains, sewer collection systems, or streets at the expense of the developer and the municipality requires the size of the trunk line or main, sewer collection systems, or streets to be larger than the developer's requirements, the price difference paid by the municipality and as determined by a licensed engineer's estimate is exempt from the provisions of this Act.

Section 89. Nothing in this Act or chapter 5-21 may be so construed as to prevent counties or townships from constructing or maintaining the county highway system and any secondary highways by means of drags, road planers, tractors, and other approved mechanical devices owned by said counties or townships. Nothing in this Act and chapter 5-21 may be construed to prevent the construction of dams in connection with water conservation projects if the cost of materials used does not exceed the total cost of twenty-five hundred dollars.

Section 90. The bid requirements of this Act do not apply to the purchase of fuel by units of local government. The governing board of a unit of local government may, instead of advertising for bids, negotiate a contract for the purchase of fuel at the most advantageous price. The governing board shall contact and attempt to obtain competitive quotations from at least three suppliers. A record of the names of the suppliers, the quotations received and the procurement procedures used in purchasing shall be documented, noted in the minutes, and retained on file by the governing body. The contract may include a procedure for adjusting prices to meet changing market conditions not within the control of the vendor.

Section 91. For any contracts entered into pursuant to § 9-32-11 or for any supply contract, any local government may include a procedure for adjusting prices to meet changing market conditions not within the control of the vendor. The adjustments may not result in increases in

the profit of the vendor, and shall be supported by written justification filed with the purchasing agent of the unit of local government.

Section 92. Notwithstanding the provisions of this Act, any purchasing agency of a local governmental unit may purchase, without advertising for bids, from a willing vendor, any supplies contained in the state contract list established pursuant to section 99 of this Act, or from any willing vendor at a price at or below that shown in the state contract. The governing body of the purchasing agency shall note in its minutes what supplies were purchased from the state contract and shall further note the identity and address of the vendor and the price paid. If an item is purchased at a price lower than that found on the state contract, the purchasing agency shall note that fact in its minutes and show the identity and address of the vendor and the price paid.

Section 93. The procurement of motor vehicles by the state shall only be from authorized dealers licensed by the State of South Dakota.

Section 94. The Bureau of Administration shall classify all supplies purchased for the use of every agency of state government. The bureau shall group items of the same class so that contracts may be grouped for like commodities or classes of commodities.

Section 95. State agencies shall submit estimates of projected purchases within established commodity classifications as required by the Bureau of Administration. The bureau may change or modify the agency estimates in any manner determined to be in the best interest of the state.

Section 96. The Bureau of Administration may pool the combined estimated needs of several agencies for identical supplies or services under one contract.

Section 97. For any state contract, any electronic sealed bid or proposal may only be submitted through an electronic procurement system authorized for use by the Bureau of Administration.

Section 98. The Bureau of Administration may obtain expert advice and assistance from any officer or employee of any state agency for recommendations or assistance in the preparation of specifications and in the examination of bids or proposals or testing of samples submitted with bids or proposals.

Section 99. The Bureau of Administration shall establish a state contract list that contains a listing of the supplies or services which are in contracts executed by the bureau. The list shall also contain the name and address of the vendor supplying the supplies or services and the price of the item. The bureau shall make the contract list available to other purchasing agencies in a manner determined by the bureau to be the most efficient.

Section 100. The Bureau of Administration may establish a state bidders list in order to facilitate the notification of official state invitations for bids or requests for proposals. Bidders may request placement on the state bidders list and notification of any lettings issued under this chapter. The bureau may establish by rules, promulgated pursuant to chapter 1-26, a fee for placement on the list to defray the cost of administration. Any fees charged shall be deposited in the internal service fund created in section 101 of this Act.

Section 101. There is hereby created in the state treasury a procurement management internal service fund. The commissioner of administration shall apportion all expenses incurred in the administration of the procurement management system to all state departments, agencies, and institutions utilizing such system. Payments received therefrom shall be deposited into the procurement management internal service fund.

Section 102. If, after all bids or proposals are examined, the Bureau of Administration is satisfied that it can procure any or all of the supplies or services covered by the bids or proposals more advantageously elsewhere than from those submitting bids or proposals, it may reject any or all bids or proposals and procure any or all of the required supplies or services at the most advantageous price.

Section 103. The attorney general shall draw all state contracts for supplies let under the provisions of this Act. Each contract shall be signed by the commissioner of administration or a designee, on the part of the state, and by the party to whom the contract has been awarded. Each contract and any required bond shall be filed in the Bureau of Administration.

Section 104. If a contract price for goods entered into by the state becomes unreasonable in view of changing market conditions, the Bureau of Administration may cancel the contract or adjust the contract price to meet the changing market conditions if it is necessary to obtain necessary supplies at the required time. Any contract price adjustment shall be justified in writing by the contractor to the Bureau of Administration and a copy of the adjustment and the written justification for the adjustment by the contractor and the bureau shall be filed with the auditor general. No contract price adjustment may allow for increased management costs or for an increase in the dollar amount of profit for the contractor having the contract. No contract price adjustment resulting in an increase may be made for or during the first ninety days of an annual contract.

Section 105. The Bureau of Administration, after notice to the business involved, may suspend or debar a business for cause from consideration of any state contracts. The suspension may not exceed three months and the debarment may not exceed three years. Any action to debar or suspend shall be conducted by the Bureau of Administration pursuant to chapter 1-26.

Section 106. Each state contract for printing shall provide for a specific amount of penalty for failure on the part of the contractor to deliver the public printing in accordance with the plans and specifications within the time to be designated in the contract. The penalty shall be a fixed sum for each day so delayed. The penalty shall be applied by the Bureau of Administration according to the contract. The amount of the penalty shall be deducted in the voucher for payment for the work done under the contract. The state auditor may draw no warrant for any amount deducted by the bureau in any voucher certified for payment by the bureau. However, no contractor may be held accountable for any delay occasioned by holding proof sheets.

Section 107. No printing office within state government, whether the office is within the Bureau of Administration or within an institution of higher education, may accept printing contracts or jobs from private individuals or organizations.

Section 108. The Bureau of Administration shall establish by rules, promulgated pursuant to chapter 1-26, the criteria by which any publication, brochure, pamphlet, or flyer with a total cost exceeding one hundred dollars, paid for and distributed by a state agency shall bear an inscription listing the publisher, the number of copies published, and the approximate cost of publication per copy.

Section 109. The Bureau of Administration shall purchase, if the price is reasonably competitive and the quality is acceptable, soybean-based inks in lieu of conventional inks for use in any state government operations. The bureau may require the use of soybean-based inks by any private vendor under contract to a state agency in carrying out the terms of the contract if the price of the inks is reasonably competitive and the quality is acceptable.

Section 110. Any purchasing agency may enter into agreements with purchasing agents in this or any other state or the United States government under which any of the parties may agree to participate in, administer, sponsor, or conduct purchasing transactions under a joint agreement or contract for the purchase of supplies or contractual services. A purchasing agency may cooperate with purchasing agencies and other interested parties in any other state or the United States government to develop uniform purchasing specifications on a regional or national level to facilitate cooperative interstate purchasing transactions.

Section 111. No agency of the state may award or renew a contract for professional services exceeding fifty thousand dollars without complying with the procedures set forth in this section to section 116 of this Act, inclusive. Any agency seeking such professional services shall issue a request for proposals. The agency shall publish any request for proposals issued pursuant to this section on the electronic procurement system maintained by the Bureau of Administration. The request for proposals shall include the procedures for the solicitation and award of the contract.

Section 112. The request for proposals shall state the relative importance of evaluation criteria to be used in the ranking of prospective contractors. The agency shall include the following evaluation criteria in any request for proposals:

(1) Specialized expertise, capabilities, and technical competence as demonstrated by the proposed approach and methodology to meet the project requirements;

(2) Resources available to perform the work, including any specialized services, within the specified time limits for the project;

(3) Record of past performance, including price and cost data from previous projects, quality of work, ability to meet schedules, cost control, and contract administration;

(4) Availability to the project locale;

(5) Familiarity with the project locale;

(6) Proposed project management techniques; and

(7) Ability and proven history in handling special project constraints.

Section 113. The agency and the highest ranked contractor shall mutually discuss and refine the scope of services for the project and shall negotiate terms, including compensation and performance schedule. The compensation level paid shall be reasonable and fair to the agency, as determined by the agency. If the agency and the highest ranked contractor are unable for any reason to negotiate a contract at a compensation level that is reasonable and fair to the agency, the agency shall, by notification either orally or in writing, terminate negotiations with the contractor. The agency may then negotiate with the next highest ranked contractor. The negotiation process may continue through successive contractors, according to agency ranking, until an agreement is reached or the agency terminates the contracting process.

Section 114. A register of proposals shall be prepared and maintained by any state agency issuing a request for proposals for a professional service contract. The register shall contain the names of any person whose qualifications were considered and the name of the person that was awarded the contract. Any professional service contract and the documentation that was the basis for the contract is public except for proprietary information which shall remain confidential. The qualifications and any other documentation of any person not issued a contract shall remain confidential.

Section 115. The provisions of sections 111 to 114, inclusive, of this Act do not apply to contracts issued for:

(1) Services of such a unique nature that the contractor selected is clearly and justifiably the only practicable source to provide the service. Determination that the contractor selected is justifiably the sole source is based on either the uniqueness of the service or sole availability at the location required;

(2) Emergency services necessary to meet an urgent or unexpected requirement or if health and public safety or the conservation of public resources is at risk;

(3) Services subject to federal law, regulation, or policy or state statute, under which a state agency is required to use a different selection process or to contract with an identified contractor or type of contractor;

(4) Services for professional legal services;

(5) Services of expert witnesses, hearing officers, or administrative law judges retained by state agencies for administrative or court proceedings;

(6) Services involving state or federal financial assistance passed through by a state agency to a political subdivision;

(7) Medical services and home and community-based services;

(8) Services to be performed for a state agency by another state or local government agency or contracts made by a state agency with a local government agency for the direct provision of services to the public; or

(9) Services to be provided by entertainers for the state fair and other events.

Section 116. Notwithstanding any other provisions of law, an agency that is required to issue a decision in a contested case proceeding in one year or less may increase its statutory deadline for issuing the agency decision by sixty days if the agency seeks to enter into a professional services contract covered by sections 111 to 114, inclusive, of this Act.

Section 117. The Bureau of Administration shall publish notice of its intent to purchase property or liability insurance or performance bonds. Publication of a notice containing a description of the coverage sought as a display advertisement in at least three newspapers of general circulation in different parts of the state at least sixty days prior to the purchase, along with publication in the South Dakota Register, shall be considered compliance with the notice requirements of this section.

The notice provisions of this section do not apply to expenditures of less than five thousand dollars.

Section 118. The code counsel shall transfer §§ 5-23-38, 5-23-39, and 5-23-40 to chapter 1-40 and shall make the necessary changes to the internal references contained in those sections.

Section 119. The Bureau of Administration shall keep suitable records in which shall be recorded all requisitions for public printing, stationery, and supplies, all advertisements, bids, certified checks, bonds, contracts, orders, vouchers, and all acts and proceedings taken under the provisions of this Act. All requisitions, advertisements, bids, certified checks, bonds, specifications, schedules of specifications, contracts, reports, and any other papers or documents executed under the provisions of this Act shall constitute the files in the bureau, except as otherwise provided for in this Act.

Section 120. The Bureau of Administration, any other designated state purchasing agent, and any agency making purchases shall, to the extent practicable, make purchasing selections to maximize the purchase of environmentally preferable products. The Bureau of Administration shall promulgate rules, pursuant to chapter 1-26, to establish specifications, requirements, and certification standards for the purchase for use by state government agencies of environmentally preferable products. The certification standards established by the bureau shall be based on standards established by the United States Environmental Protection Agency's Design for the Environment program, the TerraChoice EcoLogo program, the United States Department of Agriculture's Biopreferred program, the Green Seal program, or any other certification program or comparable data, including life cycle assessment data, approved by the bureau. No rule may prohibit the use of disinfectants, disinfecting cleaners, sanitizers, or any other antimicrobial product regulated by the federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Sec. 136 et seq.), as amended to January 1, 2010, if the use is necessary to protect public health and if the use is in accordance with responsible cleaning procedure requirements."

And that as so amended said bill do pass.

Respectfully submitted,
Deb Peters, Chair

MOTIONS AND RESOLUTIONS

Yesterday, Rep. Bolin announced his intention to reconsider the vote by which HB 1223 lost.

No member moved to reconsider the vote by which HB 1223 lost.

Yesterday, Rep. Cronin announced his intention to reconsider the vote by which HB 1107 lost.

Rep. Cronin moved that the House do now reconsider the vote by which HB 1107 lost.

The question being on Rep. Cronin's motion to reconsider the vote by which HB 1107 lost.

And the roll being called:

Yeas 59, Nays 11, Excused 0, Absent 0

Yeas:
Blake; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Faehn; Fargen; Frerichs; Gibson; Gosch; Greenfield; Hoffman; Hunt; Iron Cloud III; Jensen; Juhnke; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lust; Moser; Noem; Novstrup (David); Nygaard; Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Wink; Wismer; Speaker Rave

Nays:
Bolin; Engels; Feickert; Feinstein; Hamiel; Hunhoff (Bernie); Killer; Lucas; McLaughlin; Olson (Betty); Verchio

So the motion having received an affirmative vote of a majority of the members-elect, the Speaker declared the motion carried and HB 1107 was up for reconsideration and final passage.

Rep. Faehn moved that HB 1107 be placed on the bottom of today's calendar.

Which motion prevailed.

Yesterday, Rep. Faehn announced his intention to reconsider the vote by which HB 1083 lost.

Rep. Faehn moved that the House do now reconsider the vote by which HB 1083 lost.

The question being on Rep. Faehn's motion to reconsider the vote by which HB 1083 lost.

And the roll being called:

Yeas 68, Nays 2, Excused 0, Absent 0

Yeas:
Bolin; Boomgarden; Brunner; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Hunt; Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Blake; Burg

So the motion having received an affirmative vote of a majority of the members-elect, the Speaker declared the motion carried and HB 1083 was up for reconsideration and final passage.

Rep. Faehn moved that HB 1083 be placed on the bottom of today's calendar.

Which motion prevailed.

HCR 1010 Introduced by: Representatives Cronin, Gibson, Rausch, Rounds, and Verchio and Senators Brown, Gillespie, Gray, Hanson (Gary), Haverly, and Howie

A CONCURRENT RESOLUTION, Requesting the appointment of a special task force to study the highway needs and the financing of the highway needs for the state and its political subdivisions.

WHEREAS, the Legislature requests the Governor to establish a Transportation Infrastructure Task Force and to appoint its membership; and

WHEREAS, the task force members shall include the executive director of the South Dakota Petroleum and Propane Marketers Association; a representative from the wholesale fuel business - either petroleum or propane; a representative from the bulk fuel business - either petroleum or propane; a representative from a retail convenience store; the executive director of the South Dakota Association of Cooperatives; the executive director of the South Dakota Auto Dealers Association/South Dakota Truckers Association; a South Dakota based automobile dealer; a South Dakota based trucking firm representative; a representative of the ethanol producers who is based in South Dakota; two citizens from the state of South Dakota who live in the state at least ten months of the year; and a representative of the Governor's Office; and

WHEREAS, the Transportation Infrastructure Task Force shall study the many different funding sources, present and future, that should be enacted to fund the needs of both state and local roads in the state of South Dakota; and

WHEREAS, the Governor shall make the initial appointments by May 1, 2010. If any vacancy occurs on the task force, the vacancy shall be filled in the same manner as the original appointment was made; and

WHEREAS, all task force members shall be volunteers and there will be no compensation for serving on this task force, the members shall elect a chair and vice chair, and the members shall provide the necessary support to coordinate the meetings:

NOW, THEREFORE, BE IT RESOLVED, by the House of Representatives of the Eighty-fifth Legislature of the State of South Dakota, the Senate concurring therein, that the Governor should appoint a special task force to study the highway needs and the financing of highway needs in the state; and

BE IT FURTHER RESOLVED, that the task force shall report to the Governor's office and the Legislature its findings and recommendations by November 15, 2010. The Governor shall submit legislation, if any required, to implement the recommendations of the task force.

Was read the first time and the Speaker waived the committee referral.

Rep. Cutler moved that the Committee on Commerce be instructed to deliver HB 1156 to the floor of the House, pursuant to Joint Rule 7-7.

Which motion was supported and the committee was so instructed.

Rep. Feinstein moved that the Committee on Appropriations be instructed to deliver HB 1255 to the floor of the House, pursuant to Joint Rule 7-7.

Which motion was supported and the committee was so instructed.

CONSIDERATION OF REPORTS OF COMMITTEES

Rep. Faehn moved that the reports of the Standing Committees on

Education on HB 1224 as found on pages 480 to 482 of the House Journal; also

State Affairs on HB 1192 as found on pages 483 and 484 of the House Journal; also

State Affairs on HB 1263 as found on pages 484 to 487 of the House Journal; also

Judiciary on HB 1254 as found on pages 487 and 488 of the House Journal be adopted.

Which motion prevailed.

SECOND READING OF CONSENT CALENDAR ITEMS

HB 1165: FOR AN ACT ENTITLED, An Act to revise the procedure for reissuing certain alcoholic beverage licenses.

Was read the second time.

Rep. Brunner requested that HB 1165 be removed from the Consent Calendar.

Which request was granted.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HJR 1004: A JOINT RESOLUTION, Proposing and submitting to the electors at the next general election amendments to Article XIII of the Constitution, relating to the trust fund created from the proceeds of the state cement enterprise sales.

Was read the second time.

Rep. Faehn moved the previous question.

Which motion prevailed.

The question being "Shall HJR 1004 pass?"

And the roll being called:

Yeas 56, Nays 14, Excused 0, Absent 0

Yeas:
Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Faehn; Feickert; Frerichs; Gosch; Greenfield; Hamiel; Hoffman; Hunt; Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lederman; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Sly; Solum; Steele; Street; Tidemann; Turbiville; Van Gerpen; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Blake; Elliott; Engels; Fargen; Feinstein; Gibson; Hunhoff (Bernie); Lange; Lucas; Schrempp; Solberg; Sorenson; Thompson; Vanderlinde

So the resolution having received an affirmative vote of a majority of the members-elect, the Speaker declared the resolution passed and the title was agreed to.

HB 1248: FOR AN ACT ENTITLED, An Act to revise the definition of fall enrollment in the state aid to education formula and to eliminate the one-time payments for school districts with increasing enrollments.

Was read the second time.

The question being "Shall HB 1248 pass?"

And the roll being called:

Yeas 68, Nays 2, Excused 0, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Faehn; Fargen; Feickert; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Hunt; Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Engels; Feinstein

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

There being no objection, the House proceeded to Order of Business No. 14.

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

Rep. Faehn moved that SB 68 be placed to precede SB 23 on today's calendar.

Which motion prevailed.

Speaker Pro tempore Rausch now presiding.

SB 68: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to standards for new construction.

Was read the second time.

The question being "Shall SB 68 pass as amended?"

And the roll being called:

Yeas 52, Nays 18, Excused 0, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Dennert; Elliott; Faehn; Fargen; Feickert; Feinstein; Frerichs; Greenfield; Hamiel; Hoffman; Hunt; Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Krebs; Lederman; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Romkema; Rounds; Russell; Schlekeway; Sly; Solum; Sorenson; Steele; Street; Tidemann; Turbiville; Van Gerpen; Vanneman; Verchio; Wismer; Speaker Rave

Nays:
Deadrick; Engels; Gibson; Gosch; Hunhoff (Bernie); Kopp; Lange; Lucas; Lust; McLaughlin; Moser; Putnam; Rausch; Schrempp; Solberg; Thompson; Vanderlinde; Wink

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

There being no objection, the House reverted to Order of Business No. 13.

SECOND READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1216: FOR AN ACT ENTITLED, An Act to prohibit local units of government from requiring fire sprinklers in single family dwellings.

Was read the second time.

Rep. Rounds moved that HB 1216 be laid on the table.

The question being on Rep. Rounds' motion that HB 1216 be laid on the table.

And the roll being called:

Yeas 70, Nays 0, Excused 0, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Hunt; Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

So the motion having received an affirmative vote of a majority of the members-elect, the Speaker declared the motion carried and HB 1216 was tabled.

HB 1136: FOR AN ACT ENTITLED, An Act to limit asbestos-related liabilities for certain successor corporations.

Was read the second time.

1136ra

Rep. Hunt moved that HB 1136 be amended as follows:

On page 5 of the printed bill, delete lines 21 to 24, inclusive.

On page 6, delete lines 1 to 4, inclusive.

Which motion prevailed.

Rep. Faehn moved the previous question.

Which motion prevailed.

The question being "Shall HB 1136 pass as amended?"

And the roll being called:

Yeas 37, Nays 31, Excused 2, Absent 0

Yeas:
Bolin; Boomgarden; Brunner; Cronin; Cutler; Dennert; Fargen; Frerichs; Gosch; Greenfield; Hamiel; Hoffman; Hunt; Jensen; Juhnke; Kirkeby; Kopp; Krebs; Lederman; Lust; Noem; Novstrup (David); Olson (Betty); Olson (Ryan); Peters; Putnam; Rausch; Rounds; Russell; Schlekeway; Schrempp; Solum; Steele; Tidemann; Van Gerpen; Vanneman; Speaker Rave

Nays:
Blake; Burg; Carson; Conzet; Deadrick; Elliott; Engels; Faehn; Feickert; Feinstein; Hunhoff (Bernie); Iron Cloud III; Killer; Kirschman; Lange; Lucas; McLaughlin; Moser; Nygaard; Pitts; Romkema; Sly; Solberg; Sorenson; Street; Thompson; Turbiville; Vanderlinde; Verchio; Wink; Wismer

Excused:
Curd; Gibson

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

Speaker Rave now presiding.

HB 1161: FOR AN ACT ENTITLED, An Act to provide that an out-of-country foreign judgment need not be recognized if the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless a court in this state first determines that the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press as would be provided in this state.

Was read the second time.

The question being "Shall HB 1161 pass?"

And the roll being called:

Yeas 59, Nays 11, Excused 0, Absent 0

Yeas:
Blake; Bolin; Brunner; Burg; Carson; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Hunt; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; McLaughlin; Moser; Noem; Nygaard; Olson (Betty); Olson (Ryan); Putnam; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Thompson; Tidemann; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Speaker Rave

Nays:
Boomgarden; Conzet; Iron Cloud III; Lust; Novstrup (David); Peters; Pitts; Rausch; Street; Turbiville; Wismer

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

Rep. Faehn moved that the House do now recess until 4:05 p.m., which motion prevailed and at 3:55 p.m., the House recessed.

RECESS

The House reconvened at 4:05 p.m., the Speaker presiding.

HB 1164: FOR AN ACT ENTITLED, An Act to revise no contact provisions in cases of stalking and domestic abuse.

Was read the second time.

The question being "Shall HB 1164 pass?"

And the roll being called:

Yeas 68, Nays 2, Excused 0, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Hunt; Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Kopp; Nygaard

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

HB 1177: FOR AN ACT ENTITLED, An Act to prohibit the granting of subsequent suspended impositions of sentence to the same defendant.

Was read the second time.

The question being "Shall HB 1177 pass?"

And the roll being called:

Yeas 64, Nays 6, Excused 0, Absent 0

Yeas:
Blake; Bolin; Brunner; Burg; Carson; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Feickert; Feinstein; Gibson; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Hunt; Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Boomgarden; Conzet; Fargen; Frerichs; Gosch; Nygaard

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

HB 1187: FOR AN ACT ENTITLED, An Act to prohibit the killing, injury, or interference with a law enforcement support animal and to establish certain penalties.

Was read the second time.

Rep. Faehn moved the previous question.

Which motion prevailed.

The question being "Shall HB 1187 pass?"

And the roll being called:

Yeas 52, Nays 17, Excused 1, Absent 0

Yeas:
Blake; Bolin; Burg; Carson; Conzet; Curd; Cutler; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Hamiel; Hoffman; Hunhoff (Bernie); Iron Cloud III; Killer; Kirkeby; Kirschman; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Novstrup (David); Olson (Ryan); Peters; Putnam; Romkema; Rounds; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Verchio; Wink; Wismer; Speaker Rave

Nays:
Boomgarden; Brunner; Cronin; Deadrick; Gosch; Greenfield; Jensen; Juhnke; Kopp; Noem; Nygaard; Olson (Betty); Pitts; Rausch; Russell; Steele; Vanneman

Excused:
Hunt

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

HB 1150: FOR AN ACT ENTITLED, An Act to revise the calculation of the small school adjustment in the state aid to education formula for certain students who participate in open enrollment.

Was read the second time.

Rep. Lust moved the previous question.

Which motion prevailed.

The question being "Shall HB 1150 pass as amended?"

And the roll being called:

Yeas 40, Nays 29, Excused 1, Absent 0

Yeas:
Bolin; Boomgarden; Brunner; Conzet; Cronin; Curd; Cutler; Deadrick; Faehn; Gibson; Gosch; Greenfield; Hoffman; Jensen; Juhnke; Kirkeby; Krebs; Lederman; Lucas; Lust; McLaughlin; Moser; Novstrup (David); Olson (Betty); Olson (Ryan); Peters; Pitts; Rausch; Romkema; Rounds; Russell; Schlekeway; Sly; Solum; Steele; Tidemann; Turbiville; Verchio; Wink; Speaker Rave

Nays:
Blake; Burg; Carson; Dennert; Elliott; Engels; Fargen; Feickert; Feinstein; Frerichs; Hamiel; Hunhoff (Bernie); Iron Cloud III; Killer; Kirschman; Kopp; Lange; Noem; Nygaard; Putnam; Schrempp; Solberg; Sorenson; Street; Thompson; Van Gerpen; Vanderlinde; Vanneman; Wismer

Excused:
Hunt

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

Speaker Pro tempore Rausch now presiding.

HB 1222: FOR AN ACT ENTITLED, An Act to exempt persons selling certain foods at farmers' markets from licensure requirements and to establish other requirements for the sale of those foods.

Was read the second time.

The question being "Shall HB 1222 pass as amended?"

And the roll being called:

Yeas 69, Nays 0, Excused 1, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Excused:
Hunt

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

HB 1270: FOR AN ACT ENTITLED, An Act to revise the conditions pursuant to which the state may enter into tax collection agreements with Indian tribes.

Was read the second time.

Rep. Faehn moved the previous question.

Which motion prevailed.

The question being "Shall HB 1270 pass?"

And the roll being called:

Yeas 58, Nays 11, Excused 1, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Burg; Carson; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Fargen; Feickert; Feinstein; Frerichs; Gibson; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Iron Cloud III; Juhnke; Killer; Kirkeby; Kirschman; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Pitts; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Brunner; Conzet; Faehn; Gosch; Jensen; Kopp; Olson (Betty); Olson (Ryan); Peters; Putnam; Tidemann

Excused:
Hunt

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

HB 1113: FOR AN ACT ENTITLED, An Act to specify certain animal species for animal damage control.

Was read the second time.

1113td

Rep. Brunner moved that HB 1113 be amended as follows:

On page 1 of the printed bill, delete lines 6 to 8, inclusive, and insert "in the control and disposition of ~~coyotes, feral dogs, fox, and other wild animals in this state that are injurious to livestock, poultry, game, land, and the public health~~ predators and furbearing animals as defined in§ 41-1-1.".

On page 1, delete lines 12 to 14, inclusive, and insert "1-26 necessary rules to control ~~foxes, coyotes, feral dogs, prairie dogs, and other wild animals. The expense thereof~~ predators and furbearing animals as defined in § 41-1-1.The expenses shall be paid out of the Department of Game, Fish and Parks fund or the state animal damage control fund.".

On page 1, after line 14, insert:

" Section 3. That chapter 40-36 be amended by adding thereto a NEW SECTION to read as follows:

The Department of Game, Fish and Parks shall cooperate and enter into cooperative agreements with the United States Fish and Wildlife Service or any other agency in the control

and disposition of wild animals not defined as predators or furbearing animals as defined in § 4-1-1.

Section 4. That chapter 40-36 be amended by adding thereto a NEW SECTION to read as follows:

The Department of Game, Fish and Parks may direct or employ personnel and conduct programs and the Game, Fish and Parks Commission may adopt pursuant to chapter 1-26 necessary rules to control wild animals not defined as predators or furbearing animals as defined in§ 41-1-1. The expenses shall be paid out of the Department of Game, Fish and Parks fund.".

Which motion prevailed.

The question being "Shall HB 1113 pass as amended?"

And the roll being called:

Yeas 21, Nays 48, Excused 1, Absent 0

Yeas:
Brunner; Curd; Deadrick; Elliott; Fargen; Feickert; Frerichs; Gosch; Greenfield; Kirschman; Kopp; Krebs; Lederman; Olson (Betty); Russell; Schrempp; Solum; Sorenson; Steele; Van Gerpen; Wink

Nays:
Blake; Bolin; Boomgarden; Burg; Carson; Conzet; Cronin; Cutler; Dennert; Engels; Faehn; Feinstein; Gibson; Hamiel; Hoffman; Hunhoff (Bernie); Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Lange; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Schlekeway; Sly; Solberg; Street; Thompson; Tidemann; Turbiville; Vanderlinde; Vanneman; Verchio; Wismer; Speaker Rave

Excused:
Hunt

So the bill not having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill lost.

HB 1041: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the application and administration of the cigarette tax and to repeal certain requirements concerning cigarette stamps.

Was read the second time.

1041fg

Rep. Noem moved that HB 1041 be amended as follows:

On the House Taxation Committee engrossed bill, delete everything after the enacting clause and insert:

" Section 1. That chapter 10-50 be amended by adding thereto a NEW SECTION to read as follows:

The tax imposed by §10-50-3 shall be paid at the time the distributor or wholesaler brings or causes to be brought into this state cigarettes for sale; makes, manufactures, or fabricates cigarettes in this state for sale in this state; or ships or transports cigarettes to any dealer in this state to be sold by the dealer.

Section 2. That chapter 10-50 be amended by adding thereto a NEW SECTION to read as follows:

A licensed distributor or licensed wholesaler may only sell cigarettes to a dealer. A dealer may only purchase cigarettes from a wholesaler or distributor licensed pursuant to this chapter. A violation of this section is a Class 2 misdemeanor.

Section 3. That chapter 10-50 be amended by adding thereto a NEW SECTION to read as follows:

On or before the fifteenth day of each calendar month, each person required to pay the tax imposed by § 10-50-3 shall report, on forms prescribed by the secretary, the amount and type of cigarettes manufactured or brought into this state during the month preceding the month in which the report is made, and the source of the cigarettes. The person shall remit the tax due on the cigarettes with the filing of the form. Any person who fails to timely file the form and pay the tax in this section may be subject to penalty and interest as prescribed in § 10-59-6. Any person seeking to recover overpayment of the tax imposed in § 10-50-3, may do so in the manner prescribed in §§ 10-59-19, 10-59-20, 10-59-21, 10-59-22, 10-59-23, and 10-59-24. The secretary may secure the payment of any unpaid tax in the same manner as prescribed in chapter 10-59. If any taxpayer destroys cigarettes upon which the tax imposed by § 10-50-3 has been paid because of unfitness for sale, a credit or refund in the amount of the tax paid on those products shall be granted as prescribed in this section for the overpayment of tax.

Section 4. That § 10-50-4 be repealed.

10-50-4. The payment of the tax imposed by § 10-50-3 shall be evidenced by the affixing of stamps to the packages containing the cigarettes as provided by this chapter. However, for cigarettes offered by manufacturers for gratis distribution as samples, the stamps are not required to be affixed to sample packages if the manufacturer of the cigarette reports and pays the tax directly to the state tax authority.

Section 5. That § 10-50-5 be repealed.

10-50-5. No stamps evidencing payment of the tax prescribed in § 10-50-3 shall be in a denomination of less than one cent and whenever the tax at the rate therein prescribed shall be a specified amount plus a fractional part of one cent, the package or carton shall be stamped for the next full cent, provided, that whenever the tax at the rate therein prescribed shall amount to twelve cents the package or carton shall be stamped for the exact amount of twelve cents.

Section 6. That § 10-50-6 be amended to read as follows:

10-50-6. Any cigarette on which a tax has been paid~~, the payment being evidenced by the affixing of the stamp,~~ is not subject to a further tax under this chapter. However, any person, who possesses two thousand or more cigarettes ~~that do not bear a tax stamp indicating~~ that the South Dakota cigarette tax has not been paid, shall pay the tax imposed pursuant to § 10-50-3 plus a penalty equal to ten percent of the total tax due.

Section 7. That § 10-50-18 be repealed.

10-50-18. The secretary of revenue and regulation shall secure stamps, of the design and denomination as the secretary prescribes, suitable to be affixed to packages of cigarettes as evidence of the payment of the tax imposed by this chapter. The secretary shall sell the stamps to licensed distributors at a discount of two percent of their face value and to no other person.

Section 8. That § 10-50-19 be repealed.

10-50-19. The secretary of revenue and regulation may, in his discretion, permit a licensed distributor to pay for such stamps within thirty days after the date of purchase, provided a bond satisfactory to the secretary of revenue and regulation in an amount not less than the sale price of such stamps shall have been filed with the secretary conditioned upon payment for such stamps or upon a satisfactory depository agreement between the secretary of revenue and regulation and such licensed distributor, provided for a deposit of money or security in a depository to be named, such agreement conditioned upon payment for such stamps.

Section 9. That § 10-50-20 be repealed.

10-50-20. No distributor shall sell or transfer any stamps issued under the provisions of this chapter. The secretary of revenue and regulation shall redeem any unused, uncanceled stamps presented by any licensed distributor at a price equal to ninety-five percent of their face value.

Section 10. That § 10-50-20.1 be amended to read as follows:

10-50-20.1. ~~Whenever~~ If a distributor destroys cigarettes accidentally or intentionally because of staleness or other unfitness for sale which ~~have been stamped as provided in~~ tax has been paid pursuant to this chapter, a credit or refund shall be given to the distributor ~~at a price equal to ninety-five percent of the face value of the stamps~~ upon proof of loss presented to the department within one year after the destruction of the ~~stamped~~ cigarettes if loss is established to the satisfaction of the Department of Revenue and Regulation.

Section 11. That § 10-50-21 be amended to read as follows:

10-50-21. Any person who forges a counterfeit of any stamp prescribed by the secretary of revenue and regulation under the provisions of this chapter, or who uses a counterfeited stamp, or who knowingly possesses a counterfeited stamp, or who uses more than once any stamp required by this chapter, for the purpose of evading evades the tax ~~thereby~~ imposed, by this chapter is guilty of a Class 4 felony.

Section 12. That § 10-50-25 be repealed.

10-50-25. If the secretary of revenue and regulation finds that the collection of the tax imposed by this chapter would be facilitated thereby, the secretary may authorize any person, resident or located outside this state, engaged in the business of selling and shipping cigarettes into this state and purchasing at least seventy-five percent of the cigarettes from the manufacturers thereof, and who is a resident of any state authorizing by law the licensing of nonresidents, including residents of this state, to distribute cigarettes therein, upon complying with the requirements of the secretary of revenue and regulation, to affix or cause to be affixed the stamps required by this chapter on behalf of the purchasers of the cigarettes, who would otherwise be taxable therefor. The secretary of revenue and regulation may sell the stamps to such person as hereinbefore provided.

Section 13. That § 10-50-26 be repealed.

10-50-26. The secretary of revenue and regulation shall require bond of such nonresident person, satisfactory to the secretary of revenue and regulation, in an amount not to exceed ten thousand dollars, which said bond shall be filed with the secretary of revenue and regulation conditioned upon the payment of the tax in compliance with such other requirements as the secretary of revenue and regulation may specify. Such bond shall be issued by a surety company licensed to do business in this state, and shall be in full force and effect for a period of one year and a day after the expiration of the bond, and until or unless a certificate be issued by the secretary of revenue and regulation to the effect that all taxes due to the state under this chapter have been paid. In the discretion of the secretary of revenue and regulation, a depository agreement may be accepted by the secretary of revenue and regulation in lieu of such surety bond, which said depository agreement shall be upon the same conditions as the bond above referred to, and shall be in full force and effect for one year and a day and until or unless a certificate be issued by the secretary of revenue and regulation to the effect that all taxes due to the state under this chapter have been paid.

Section 14. That § 10-50-27 be repealed.

10-50-27. Such nonresident person shall agree to submit his books, accounts, and records to examination during reasonable business hours by the secretary of revenue and regulation or his duly authorized agent.

Section 15. That § 10-50-28 be repealed.

~~10-50-28. Each such nonresident person, other than a foreign corporation which has complied with the provisions of the statutes of this state relative to foreign corporations, shall,~~

in writing, appoint the secretary of state and his successors in office to be his attorney, such appointment to be made, acknowledged, and filed in the manner prescribed in the statutes relative to foreign corporations. Service upon said attorney shall be sufficient service upon any such nonresident person, whether a foreign corporation which has complied with the provisions of the statutes relating to foreign corporations or not, and may be made by leaving a true copy of the process with the secretary of state or at his office. When legal process against any such nonresident person shall be served upon the secretary of state he shall notify such nonresident person in the manner specified in the statutes relating to service of process upon foreign corporations licensed to do business in this state, and shall collect the fee as therein specified.

Section 16. That § 10-50-29 be repealed.

10-50-29. Any person complying with the provisions of §§ 10-50-25 to 10-50-28, inclusive, shall thereupon become a licensed distributor within the meaning of this chapter and shall be subject to all provisions of this chapter applicable to licensed distributors.

Section 17. That § 10-50-30 be repealed.

10-50-30. Each distributor shall affix or cause to be affixed, in the manner as the secretary of revenue and regulation may specify in rules promulgated pursuant to chapter 1-26, to each individual package of cigarettes, to cartons containing more than one individual package of three, four, or five cigarettes sold or distributed by such distributor, stamps of the proper denomination, as required by this chapter. The stamps shall be affixed by a distributor before the cigarettes are transferred out of the distributor's premises, or in lieu thereof the amount of the tax due shall be entered on the invoice and stamps sufficient in denominations and amount shall accompany the invoice on every delivery of cigarettes.

Section 18. That § 10-50-31 be repealed.

10-50-31. Each dealer upon opening any shipping package containing any unstamped taxable articles for purposes of sale or delivery to consumers, shall immediately affix the tax stamps required by this chapter.

Section 19. That § 10-50-32 be amended to read as follows:

10-50-32. No person, other than a licensed distributor, may sell, offer for sale, display for sale, or possess with intent to sell, advertise for sale, ship or cause to be shipped, or possess with intent to deliver to another person, any cigarettes which ~~do not bear stamps evidencing the~~ payment of the tax imposed by this chapter has not been paid.

A violation of this section is a Class 2 misdemeanor. Any subsequent violation is a Class 6 felony.

Section 20. That § 10-50-33 be repealed.

10-50-33. The display or possession, except in original unopened shipping package, container, or case, of cigarettes by any dealers unless fully stamped as required by this chapter shall constitute prima facie evidence of possession with intent to sell the same.

Section 21. That § 10-50-34 be amended to read as follows:

10-50-34. The secretary of revenue and regulation and inspectors of the Department of Revenue and Regulation ~~are charged with the duty of enforcing~~ shall enforce the provisions of this chapter, ~~and are given~~ have the power of peace officers and ~~authorized and empowered to~~ may arrest any violator of the provisions of this chapter, ~~to enter complaint~~ and may enter complaints before any court of competent jurisdiction ~~and to seize without formal warrant and use as evidence any forged, counterfeited, spurious, or altered license or stamp found in possession of any person in violation of this chapter~~.

Section 22. That § 10-50-35 be amended to read as follows:

10-50-35. Any cigarettes found at any place in this state without ~~stamps affixed thereto~~ the tax being paid as required by this chapter unless the cigarettes are in the possession of a licensed distributor or wholesaler in the original unopened shipping package or unless ~~they~~ the cigarettes are in a course of transit from without this state and consigned to a licensed distributor or a licensed wholesaler, are declared to be contraband goods and may be seized by the secretary, the secretary's agents, or employees, or by any law enforcement of this state if directed by the secretary to do so, without a warrant.

Section 23. That § 10-50-36 be amended to read as follows:

10-50-36. Any cigarettes seized under the provisions of this chapter shall be confiscated and forfeited to the state~~, and the~~. The secretary shall sell ~~such~~ the confiscated ~~property~~ cigarettes to a licensed dealer or distributor to the best advantage to the state. The proceeds from ~~such~~ the sale shall be ~~forthwith~~ remitted to the secretary of revenue and regulation as part of the income for the enforcement of this chapter. Such sale by the state ~~shall~~ does not relieve the purchaser from paying the tax ~~and stamping the articles so sold to him,~~ as provided in this chapter ~~otherwise provided~~.

Section 24. That § 10-50-37 be repealed.

10-50-37. Nothing in § 10-50-35 or 10-50-36 shall be construed to require the secretary of revenue and regulation to confiscate unstamped cigarettes when he shall have reason to believe that the owner thereof is not willfully or intentionally evading the tax imposed by this chapter.

Section 25. That § 10-50-39 be amended to read as follows:

10-50-39. On or before the fifteenth day of each month each distributor shall render to the secretary of revenue and regulation a verified report of all sales and deliveries on forms prescribed by the secretary, showing the quantity of cigarettes sold or delivered in this state during the preceding calendar month~~, the amount of stamps purchased and used during such period of time and the amount of stamps on hand at the end of the reporting period~~ and such other information as the secretary ~~shall require~~ requires.

Section 26. That § 10-50-58 be repealed.

~~10-50-58. There is established in the state treasury a special revenue fund to be known as the cigarette stamp purchasing fund.~~

Section 27. That § 10-50-59 be repealed.

10-50-59. In addition to the taxes and fees imposed by this chapter, the secretary of revenue and regulation may recover the cost of any stamps or other indicia that are required to be affixed to packages of cigarettes from those licensees affixing said stamps or indicia. The amount so recovered shall be deposited into the cigarette stamp purchasing fund and all money in the fund is continuously appropriated to the Department of Revenue and Regulation to be used to purchase stamps or other indicia.

Section 28. That § 10-50-60 be amended to read as follows:

10-50-60. The secretary of revenue and regulation may promulgate rules pursuant to chapter 1-26 concerning:

(1) Credit for damaged or unfit cigarette packages;

(2) ~~Refund for unused stamps and other indicia;~~

(3) The definition of cigarette wholesaler;

(4) Licensing, including bonding and filing license applications;

(5) The filing of returns and payment of tax;

(6) Determining the application of the tax and exemptions;

(7) Taxpayer record-keeping requirements; and

(8) Determining auditing methods.

Section 29. That § 10-50-80 be amended to read as follows:

10-50-80. No later than twenty days after the end of each calendar quarter, and more frequently if so directed by the secretary, each distributor and wholesaler shall submit information concerning each nonparticipating manufacturer as the secretary requires to facilitate compliance with §§ 10-50-72 to 10-50-92, inclusive, including, a list by brand family of the total number of cigarettes or, in the case of roll-your-own, the equivalent stick count, for which the distributor or wholesaler ~~affixed cigarette tax stamps to a cigarette package, or otherwise~~ paid the cigarette tax due during the previous calendar quarter. The distributor or wholesaler shall maintain and make available to the secretary all invoices and documentation of sales of all nonparticipating manufacturer cigarettes and any other information relied upon in reporting to the secretary for a period of six years. The secretary may, in addition to any other provision of law, impose and collect a monetary penalty in an amount not to exceed five hundred dollars

per day, for the failure of a distributor or wholesaler to timely or accurately comply with this section. Any monetary penalty collected pursuant to this section shall be deposited in the state general fund.

Section 30. That § 10-50-82 be amended to read as follows:

10-50-82. No distributor or wholesaler or other person may:

(1) Affix a South Dakota cigarette tax stamp to a package or other container of cigarettes, or pay South Dakota cigarette tax on cigarettes of a tobacco product manufacturer or brand family not included in the directory; or

~~(2) Sell~~ sell or distribute, or acquire, hold, own, possess, transport, import, or cause to be imported, cigarettes of a tobacco product manufacturer or brand family not included in the directory that the distributor, wholesaler, or other person knows or should know are intended for distribution or sale in this state.

The secretary may, in addition to any other provision of law, impose and collect a monetary penalty in an amount not to exceed the greater of five hundred percent of the retail value of the cigarettes or five thousand dollars for each violation of this section by a distributor or wholesaler. Any monetary penalty collected pursuant to this section shall be deposited in the state general fund. "

Which motion prevailed.

The question being "Shall HB 1041 pass as amended?"

And the roll being called:

Yeas 67, Nays 1, Excused 2, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Street; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Iron Cloud III

Excused:
Hunt; Nygaard

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

HB 1167: FOR AN ACT ENTITLED, An Act to revise the term of service of a grand jury.

Was read the second time.

The question being "Shall HB 1167 pass?"

And the roll being called:

Yeas 48, Nays 21, Excused 1, Absent 0

Yeas:
Blake; Bolin; Brunner; Burg; Conzet; Cronin; Curd; Dennert; Elliott; Engels; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Iron Cloud III; Jensen; Killer; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; McLaughlin; Nygaard; Olson (Betty); Olson (Ryan); Romkema; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Thompson; Van Gerpen; Vanderlinde; Verchio; Wink; Speaker Rave

Nays:
Boomgarden; Carson; Cutler; Deadrick; Faehn; Juhnke; Kirkeby; Lust; Moser; Noem; Novstrup (David); Peters; Pitts; Putnam; Rausch; Rounds; Street; Tidemann; Turbiville; Vanneman; Wismer

Excused:
Hunt

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

HB 1227: FOR AN ACT ENTITLED, An Act to permit townships to provide certain health, life, and disability income insurance benefits.

Was read the second time.

1227sa

Rep. Rounds moved that HB 1227 be amended as follows:

On page 1, line 10, of the House Local Government Committee engrossed bill, after "." insert "However, no township supervisor or officer is eligible to be covered by any group health insurance plan, group life insurance plan, or group disability insurance plan.".

Which motion prevailed.

The question being "Shall HB 1227 pass as amended?"

And the roll being called:

Yeas 62, Nays 6, Excused 2, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Burg; Carson; Conzet; Cronin; Curd; Cutler; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Iron Cloud III; Jensen; Killer; Kirkeby; Kirschman; Kopp; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Street; Thompson; Tidemann; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Brunner; Deadrick; Juhnke; Krebs; Steele; Turbiville

Excused:
Hunt; Sorenson

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

Speaker Rave now presiding.

HB 1249: FOR AN ACT ENTITLED, An Act to provide for the disposition of certain property sold at auction but not claimed.

Was read the second time.

The question being "Shall HB 1249 pass as amended?"

And the roll being called:

Yeas 68, Nays 1, Excused 1, Absent 0

Yeas:
Blake; Bolin; Boomgarden; Brunner; Burg; Carson; Conzet; Cronin; Curd; Cutler; Deadrick; Dennert; Elliott; Engels; Faehn; Fargen; Feickert; Feinstein; Frerichs; Gibson; Gosch; Greenfield; Hamiel; Hoffman; Hunhoff (Bernie); Iron Cloud III; Jensen; Juhnke; Killer; Kirkeby; Kirschman; Kopp; Krebs; Lange; Lederman; Lucas; Lust; McLaughlin; Moser; Noem; Novstrup (David); Nygaard; Olson (Betty); Olson (Ryan); Peters; Pitts; Putnam; Rausch; Romkema; Rounds; Russell; Schlekeway; Schrempp; Sly; Solberg; Solum; Sorenson; Steele; Thompson; Tidemann; Turbiville; Van Gerpen; Vanderlinde; Vanneman; Verchio; Wink; Wismer; Speaker Rave

Nays:
Street

Excused:
Hunt

So the bill having received an affirmative vote of a majority of the members-elect, the Speaker declared the bill passed and the title was agreed to.

Rep. Faehn moved that the balance of the calendar including HB 1246, 1057, 1135, 1201, 1018, 1107, and 1083 and SB 23, 13, 24, 157, and 16 be deferred to Tuesday, February 23^rd, the 26^th legislative day.

Which motion prevailed.

There being no objection, the House reverted to Order of Business No. 5.

REPORTS OF STANDING COMMITTEES

MR. SPEAKER:

The Committee on Appropriations respectfully reports that it has had under consideration HB 1255, which was removed from the table, and returns the same with the recommendation that said bill do NOT pass.

Respectfully submitted,
Larry Tidemann, Chair

Also MR. SPEAKER:

The Committee on Commerce respectfully reports that it has had under consideration HB 1156, which was reconsidered, and returns the same with the recommendation that said bill do NOT pass.

Respectfully submitted,
Tim Rounds, Chair

MOTIONS AND RESOLUTIONS

Rep. Faehn moved that when we adjourn today, we adjourn to convene at 10:30 a.m. on Tuesday, February 23^rd, the 26^th legislative day.

Which motion prevailed.

Rep. Turbiville moved that the House do now adjourn, which motion prevailed and at 5:47 p.m. the House adjourned.

Karen Gerdes, Chief Clerk