PRINTER'S NO. 2990
No. 2205 Session of 2001
INTRODUCED BY SEMMEL, MAHER, THOMAS, CAPPELLI, CLARK, CREIGHTON,
GEIST, GEORGE, HERSHEY, LEH, ROHRER, SATHER, SCHULER,
SOLOBAY, E. Z. TAYLOR, TIGUE, TRELLO AND YOUNGBLOOD,
DECEMBER 4, 2001
REFERRED TO COMMITTEE ON INTERGOVERNMENTAL AFFAIRS,
DECEMBER 4, 2001
AN ACT
1 Providing a procedure for government agencies relating to the
2 provision of electronic services that compete with the
3 private sector.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Electronic
8 Government Services Act.
9 Section 2. Declaration of policy.
10 The General Assembly finds and declares as follows:
11 (1) The growth of private enterprise is essential to the
12 health, welfare and prosperity of this Commonwealth.
13 (2) Government competes with the private sector when it
14 provides goods and services to the public.
15 (3) This act is intended to protect economic
16 opportunities for private industry against unfair competition
17 by government agencies and to enhance the efficient provision
1 of public goods and services.
2 Section 3. Definitions.
3 The following words and phrases when used in this act shall
4 have the meanings given to them in this section unless the
5 context clearly indicates otherwise:
6 "Commercial activity." Performing services or providing
7 goods that can normally be obtained from private enterprise.
8 "Direct costs." All costs, whether capital costs, operating
9 costs or otherwise, which would be eliminated if the service or
10 function to which they relate were discontinued.
11 "Electronic commerce services." Services which are the same,
12 similar to or overlapping those information technology-based
13 services provided by the private sector to the general public.
14 The term includes a transaction completed over a computer
15 network, such as the buying of goods and services on the
16 Internet.
17 "Full cost accounting." In accordance with applicable
18 generally accepted accounting principles, accounting for all
19 direct and indirect costs, including capital costs, which are
20 incurred in the ownership, management or operation of an
21 electronic service.
22 "Government agency." The State; any unit of State
23 government; and any municipality, municipal authority or
24 political subdivision. The term includes an entity which is not
25 majority owned as private property and established under the
26 Constitution, statute, ordinance or any other order or action by
27 the entity or its officers.
28 "Indirect costs accounting." All costs, whether capital
29 costs, operating costs or otherwise, which are not direct costs.
30 Indirect costs which support multiple services or functions
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1 shall be allocated among those services and functions in
2 proportion to the relative burden each service or function
3 places on the cost category and by any reasonable method
4 consistent with applicable generally accepted accounting
5 principles.
6 "Private enterprise." Any individual, firm, partnership,
7 joint venture, corporation, association or other legal entity
8 engaging in the manufacturing, processing, sale, offering for
9 sale, rental, leasing, delivery, dispensing, distributing or
10 advertising of goods or services for profit.
11 "Private sector." Two or more competing privately owned
12 companies.
13 Section 4. Government activity prohibitions and exceptions.
14 If the private sector provides electronic commerce services
15 to the public, no government agency may start or carry on any
16 activity to provide or offer such services or expand similar
17 services at government expense or provision. Nothing in this act
18 shall be construed to prohibit a government agency from
19 providing electronic commerce services to the public in the
20 absence of the private sector provision of such services.
21 Section 5. Requirements and justification for duplicative or
22 competing services.
23 (a) General rule.--A government agency may provide
24 duplicative or competing electronic commerce services to the
25 general public only if the head of the government agency
26 provides public notice and the opportunity of the public to
27 comment on the agency's proposed services.
28 (b) Contents of notices.--The notice shall include the
29 agency's proposed findings of fact and conclusions of law
30 describing the reasons why it believes it is necessary and in
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1 the public interest to provide duplicative or competing
2 electronic commerce services. The agency shall specify:
3 (1) The initial and total life cycle costs of the
4 proposed government services, which include technology,
5 infrastructure, services, contracts and direct and indirect
6 personnel costs.
7 (2) The individual per-taxpayer cost of the services on
8 an annualized basis and the cost of the services per user on
9 an annualized basis.
10 (3) A description of the agency's reasons for believing
11 that the cost benefits of providing the services require the
12 expenditure of public funds.
13 (4) Identification of unmet needs in the consumer
14 marketplace which the government service offer would fulfill.
15 (5) A description of how the proposed government service
16 offers would differ from those provided by the private
17 sector.
18 (6) An economic impact analysis demonstrating that the
19 offering of proposed electronic commerce services by the
20 government agency will not be anticompetitive in its effect
21 on the existing industry and will not adversely impact or
22 distort the private sector marketplace for the same or
23 similar electronic commerce services.
24 (c) Publication of factual and legal conclusions.--
25 Subsequent to receiving the comments of the public, if the head
26 of the government agency wishes to proceed with duplicative or
27 competing services, the head of the government agency shall
28 prepare written factual and legal conclusions enumerating all of
29 the factors described in subsection (b); and the conclusion
30 shall be published as a notice in the Pennsylvania Bulletin.
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1 (d) Standing to challenge.--
2 (1) A provider of electronic commerce services that
3 resides within or does business in this Commonwealth shall
4 have standing to judicially challenge the factual and legal
5 sufficiency of the findings.
6 (2) A provider of electronic commerce services that
7 resides within or does business in this Commonwealth has
8 standing to judicially challenge the provision of electronic
9 commerce services by the government agency not made in
10 conformance with this act.
11 Section 6. Construction.
12 Nothing contained in this act may be construed to prohibit a
13 government agency from offering electronic government services
14 to the general public prior to the effective date of this act.
15 Section 7. Annual reports.
16 If a government agency elects to provide electronic services
17 in a political subdivision where a private enterprise delivers
18 the same electronic service, the agency shall prepare and
19 publish, as a notice in the Pennsylvania Bulletin, 30 days prior
20 to providing the electronic services, an annual report on its
21 electronic services. The report shall be substantially in
22 accordance with full cost accounting and shall include
23 disclosure of the amount, source and cost of working capital
24 utilized for its electronic services.
25 Section 20. Effective date.
26 This act shall take effect in 60 days.
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