§ 47-802 — Department of Correctional Services; Department of Administrative Services; powers and duties; contractor; duties

(1) The Department of Correctional Services is authorized to provide for incarceration, supervision, and residential treatment at facilities other than those operated by the Department of Correctional Services. Services offered for persons under the custody or supervision of the department are to include, but not be limited to, housing, treatment, medical and mental health services, work programs, education, and community corrections. Such services shall meet practices prescribed and established by the department for implementing such programs, including, but not limited to, practices concerning internal and perimeter security, discipline of inmates, educational and vocational training programs, employment of inmates, and proper food, clothing, housing, and medical care. Such services, if provided by private prison contractors, shall be contracted for as required by the Private Prison Contracting Act. All inmates incarcerated in a correctional institution operated under this subsection shall be treated in a reasonable and humane manner to the same extent as inmates incarcerated in a correctional institution operated by the department.
(2) The department is authorized to contract for the operation of correctional institutions of the department by private prison contractors. Such operation shall meet practices prescribed by the department, including, but not limited to, practices concerning internal and perimeter security, discipline of inmates, classification, educational and vocational training programs, and proper food, clothing, housing, transportation, and medical care. All inmates incarcerated in a correctional institution operated under this subsection shall be treated in a reasonable and humane manner to the same extent as inmates incarcerated in a correctional institution operated by the department. Contract requirements shall include, but not be limited to, the following:
(a) Drug testing of inmates as determined by the department;
(b) Compliance with all rules and regulations of the department;
(c) A requirement that the contractor report all crimes connected with the facility to the department, to local law enforcement agencies having jurisdiction of the facility, and, for a crime committed at a state institution, to the Nebraska State Patrol;
(d) A requirement that the facility be staffed at all times with a staffing pattern approved by the department and that failure to fill vacancies, as defined by the department, shall result in penalties as determined by the department;
(e) A requirement that all employees of the private prison contractor meet training requirements as determined by the department;
(f) Requirements relating to exercise of force and use of firearms as follows:
(i) Employees of a private prison contractor shall be allowed to use force and to exercise their powers and authority only (A) while on the grounds of an institution operated in whole or in part by their employer, (B) while transporting inmates, and (C) while pursuing escapees from an institution;
(ii) An employee of a private prison contractor shall be allowed to carry firearms if the private prison contractor and the employee meet all federal, state, and local requirements regarding the possession and carrying of firearms. Such employee shall only be allowed to use a firearm (A) to prevent an inmate's escape from a facility or from custody while being transported to or from a facility and (B) to prevent an act by an inmate which would cause death or serious bodily harm. For purposes of this subdivision, to prevent escape from a facility means to prevent an inmate from crossing the secure perimeter of a facility; and
(iii) Duly authorized persons who meet all the training and licensing requirements of the state where they are employed and who enter Nebraska for the purpose of transporting inmates of other states shall be authorized to use force while transporting and apprehending such inmates and shall be authorized to use deadly force under the circumstances as set forth in subdivision (ii) of this subdivision.
Subdivision (2)(f) of this section does not confer peace officer status on the private prison contractor or its employees or persons from other states and does not authorize the use of firearms, except in accordance with such subdivision;
(g) A provision that any offense which would be a crime if committed within a state or local correctional facility shall be a crime if committed in a facility operated by a private prison contractor; and
(h) A statement that the contract does not authorize, allow, or imply a delegation of authority or responsibility to any private prison contractor to perform any of the following:
(i) Calculating inmate release and parole eligibility dates;
(ii) Granting, denying, or revoking sentence credits;
(iii) Approving inmates for furloughs, work release, or parole; or
(iv) Approving the type of work inmates may perform or the wages or sentence credits which may be given the inmates engaging in such work.
(3) The department is authorized, only upon the condition that there is a need for more bed spaces when existing facilities are operating at maximum capacity of one hundred twenty-five percent, to seek approval for the construction of one or more correctional institutions of the department by private prison contractors.
(4) A comprehensive file for all private prison contractors interested in and capable of operating one or more correctional institutions of the department or providing for the housing, care, and control of inmates in a correctional facility owned and operated by the contractor shall be maintained by the department. The file shall include:
(a) A completed application form received from the private prison contractor;
(b) A resume of the private prison contractor's staff and capability;
(c) A completed performance evaluation form from past projects on which the contractor has provided private prison services;
(d) A list of past contracts with the state;
(e) A list of contracts to provide similar services to other states or to the United States; and
(f) The mailing address of each private prison contractor.
Any person or firm wishing to be a private prison contractor may request at any time to be included in the comprehensive file and shall be provided necessary forms within twenty days of the request, and the department shall add such contractor to the list within twenty days of receipt of a properly completed application. The department may solicit evaluation of work done by private prison contractors from members of the private sector, which evaluation shall be part of the comprehensive file.
(5) If the department intends to contract with a private prison contractor, subject to the requirements of subsection (3) of this section, all persons and firms included in the comprehensive file established pursuant to subsection (4) of this section shall be notified by mail of such intent. Such notification shall contain the following information:
(a) A description and the scope of the project;
(b) Estimated time schedule for the project;
(c) The final date for submitting to the Director of Correctional Services notice of interest in contracting; and
(d) Other pertinent data as determined by the department.
A private prison contractor desiring consideration shall meet the requirements of this section and, to be considered, shall submit a letter expressing interest in the project to the department within thirty days after the postmark date of the letter of notification mailed by the department. The contractor shall file an updated application form if requested by the department.
(6) The department shall define the scope of a proposed project, determine the various project components, phases, and timetables, and prepare detailed project descriptions to guide prospective contractors. Before the department awards a contract to a private prison contractor, the plans shall be approved by the Director of Correctional Services.
(7) The department shall review the files of the private prison contractors desiring consideration for the project. The review shall consider the requirements of the project, replies to inquiries to former clients of the private prison contractor, and the following factors to be determined from the comprehensive file:
(a) Specialized experience in the type of work contemplated;
(b) Capacity of the private prison contractor to accomplish the work in the required time; and
(c) Past performance, from the performance evaluation form.
(8) A full report of the evaluation procedures and recommendations of the department shall be prepared by the department and submitted to the director for his or her independent review of the entire process.
(9)(a) The department shall select the private prison contractor whose qualifications and project proposal most substantially meet the criteria of the project description.
(b) The department shall execute the contract with the selected contractor, which contract shall include a fair and reasonable fee.
(c) The negotiated scope and fee shall be reported to the director for his or her approval of the award of the contract.
(10) The Department of Administrative Services shall assist the Department of Correctional Services in implementing the contracting procedures provided for in this section. The Department of Administrative Services may have a representative at any meeting involving negotiations of a contract between the Department of Correctional Services and a private prison contractor. Before submission of the proposed contract to the Governor, and prior to the date as of which the proposed contract is executed by the Department of Correctional Services, the Attorney General and the Director of Administrative Services shall review the proposed final version of the contract. The Attorney General and the Director of Administrative Services shall, within fifteen days after receipt of the proposed final version of the contract, either disapprove the contract or approve and execute the contract. If either the Attorney General or the Director of Administrative Services has objections to the proposed contract, the objections shall be communicated in writing to the Department of Correctional Services. The Department of Correctional Services shall take appropriate action regarding the objections and shall resubmit the proposed contract for additional review. The Attorney General and the Department of Administrative Services shall have an additional fifteen-day period to approve and execute the proposed contract. Failure of either the Attorney General or the Director of Administrative Services to act within the fifteen-day period shall constitute approval of the respective official to the proposed final version of the contract. The contract shall contain a separate signature block or line for signatures by the Attorney General and the Director of Administrative Services. The contract shall contain a statement to be executed by the Attorney General and the Director of Administrative Services that each one of them has reviewed the proposed contract for compliance with this section and all other applicable provisions of law and that the contract conforms to those requirements. Neither the private prison contractor nor the Director of Correctional Services shall execute the contract until the document has been executed by the Attorney General and the Director of Administrative Services as required by this subsection unless the approval of the Attorney General or the Director of Administrative Services is the result of failure to take action within the fifteen-day period prescribed by this subsection.
(11) The Director of Administrative Services may lease real property and improvements on such property to a private prison contractor in conjunction with a contract for private management of a state correctional institution located or to be built on the property. The lease may be entered into for a two-year term renewable at the sole option of the State of Nebraska.
(12) A contract awarded to a private prison contractor pursuant to this section shall be entered into for a period specified in each contract, subject to availability of funds annually appropriated by the Legislature for that purpose. No contract awarded pursuant to this section shall provide for the encumbrance of funds beyond the amount available for a fiscal year.
(13) No contract authorized pursuant to this section shall be awarded until the private prison contractor demonstrates to the satisfaction of the Department of Correctional Services:
(a) That the contractor possesses the necessary qualifications and experience to provide the services specified in the contract;
(b) That the contractor can provide the necessary qualified personnel to implement the terms of the contract;
(c) That the financial condition of the contractor is such that the terms of the contract can be fulfilled; and
(d) That the contractor has the ability to comply with applicable court orders and corrections practices.
(14) No contract authorized pursuant to this section shall be awarded until the private prison contractor demonstrates to the satisfaction of the Department of Correctional Services that the contractor can obtain insurance or provide self-insurance to compensate the state for any property damage or expenses incurred due to the operation of prison facilities and can indemnify the state against possible lawsuits arising from the operation of prison facilities by the private prison contractor.
(15) A private prison contractor shall not be bound by state laws or other legislative enactments governing the appointment, duties, salaries, or benefits of wardens, superintendents, or other correctional employees, except that any personnel authorized to carry and use firearms shall comply with the certification standards required by law and be authorized to use firearms only to prevent a felony, to prevent escape from custody, or to prevent an act which would cause death or serious bodily injury to the personnel or to another person.
(16) Any offense which would be a crime if committed within a state correctional institution also shall be a crime if committed in an institution or facility operated by a private prison contractor.
(17) The Director of Correctional Services or his or her designee shall monitor and evaluate the performance of the private prison contractor. Monitoring and evaluation to be considered comprehensive shall include, but not be limited to:
(a) The request for proposal process, bid process, and construction and contract phases;
(b) Compliance with the contract, including the provision of essential services;
(c) Compliance with performance criteria, including American Correctional Association accreditation standards, and penalties for noncompliance;
(d) Unlimited and unrestricted access to all parts of the facility with or without notice and all reports and records of the facility except the contractor's financial records;
(e) Authority to enforce compliance, including authorization to impose a fine on the contractor for the contractor's failure to perform its contractual duties or authority to cancel the contract if appropriate; and
(f) Reports by the contractor on compliance or performance measures, including, but not limited to, significant incidents as determined by the Department of Correctional Services.

Legislative History

Source: Laws 2001, LB 85, § 2.