Bill Text: CA SB733 | 2013-2014 | Regular Session | Introduced
Bill Title: State contracts: disabled veteran business enterprise statewide participation goals: business utilization plan value.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2013-08-05 - Set, first hearing. Hearing canceled at the request of author. [SB733 Detail]
Download: California-2013-SB733-Introduced.html
BILL NUMBER: SB 733 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Block
FEBRUARY 22, 2013
An act to add Section 999.4 to the Military and Veterans Code, and
to repeal Section 10115.15 of the Public Contract Code, relating to
state contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 733, as introduced, Block. State contracts: disabled veteran
business enterprise statewide participation goals: business
utilization plan value.
Existing law establishes a 3% statewide participation goal for
disabled veteran business enterprises for certain types of state
contracts. Existing law requires an awarding department to award the
contract to the lowest responsible bidder meeting specified statewide
participation goals for disabled veteran business enterprises, and
allows an awarding department to accept submission of a disabled
veteran business enterprise utilization plan meeting certain
requirements to meet this goal, as specified.
This bill would delete the provisions allowing the awarding
department to accept submission of a disabled veteran business
enterprise utilization plan. The bill would instead specify that the
statewide participation goal for disabled veteran business
enterprises may be met by the business utilization plan value of a
business utilization plan partner, as defined, established by
payments between the partner and a disabled veteran business
enterprise, as specified. The bill would require the Department of
General Services to certify persons meeting certain requirements as a
business utilization plan partner, as defined, and would require a
business utilization plan partner and a disabled veteran business
enterprise to report information relating to the business utilization
plan value, as provided.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 999.4 is added to the Military and Veterans
Code, to read:
999.4. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Business utilization plan partner" or "partner" means a
person that bids for or intends to bid for the award of a contract by
a state agency, department, officer, or other state governmental
entity, including school districts when they are expending state
funds for construction, professional services (except those subject
to Chapter 6 (commencing with Section 16850) of Part 3 of Division 4
of Title 2 of the Government Code), materials, supplies, equipment,
alteration, repair, or improvement, that has paid money to a disabled
veteran business enterprise in the previous fiscal year, and that
has been certified as a business utilization plan partner by the
department pursuant to paragraph (1) of subdivision (c).
(2) "Business utilization plan value" means the amount established
by the department pursuant to paragraph (2) of subdivision (d) that
has been paid by a business utilization plan partner to a disabled
veteran business enterprise in the previous fiscal year for
construction, professional services (except those subject to Chapter
6 (commencing with Section 16850) of Part 3 of Division 4 of Title 2
of the Government Code), materials, supplies, equipment, alteration,
repair, or improvement, even if those contract expenditures were not
part of a contract awarded by a state agency, department, officer, or
other state governmental entity.
(3) "Department" means the Department of General Services.
(b) The statewide participation goal for disabled veteran business
enterprises set forth in Section 999.2 and in subdivision (d) of
Section 10115 of the Public Contract Code may be met using the
business utilization plan value of a business utilization plan
partner established for the previous fiscal year, except that the
business utilization plan value in excess of 3 percent of the amount
of the contract or contracts awarded to the partner by the state
agency, department, officer, or other state governmental entity,
including school districts when they are expending state funds for
construction, professional services (except those subject to Chapter
6 (commencing with Section 16850) of Part 3 of Division 4 of Title 2
of the Government Code), materials, supplies, equipment, alteration,
repair, or improvement shall not be used to meet the statewide
participation goal for disabled veterans.
(c) (1) The Department of General Services shall certify as a
business utilization plan partner a person or firm that has submitted
documentation from the person or firm and from a disabled veteran
business enterprise demonstrating that the person or firm is a
business utilization plan partner, including documentation confirming
the amount paid to the disabled veteran business enterprise by the
partner in the previous fiscal year.
(2) The department shall establish a partner's business
utilization plan value using copies of invoices submitted to the
department by the partner and the disabled veteran business
enterprise to substantiate the business utilization plan value.
(d) (1) When a partner is awarded a contract with a state agency,
department, officer, or other state governmental entity for which the
business utilization plan value will be used to meet the statewide
participation goal for disabled veteran business enterprises as
authorized by this section, the business utilization plan value being
used shall be reported to the department by both the partner and the
disabled veteran business enterprise, and shall be subtracted by the
department from the business utilization plan value remaining that
may be utilized by the partner to qualify as meeting the goals of
this article for purposes of Section 999.2 and of Section 10115.2 of
the Public Contract Code. Until a report is made pursuant to this
paragraph, no further business utilization plan value of the partner
may be used pursuant to this section.
(2) When the full business utilization plan value of a partner
that is eligible for use pursuant to this section has been used
pursuant to this section, a conotification letter signed by both the
partner and the disabled veteran business enterprise shall be
submitted to the department confirming that the full business
utilization plan value has been used.
(e) (1) The department shall suspend any person who willfully
violates the reporting requirements of this section from bidding on,
or participating as either a contractor, subcontractor, or supplier
in, any state contract or project for a period of two years, and, if
certified as a disabled veteran business enterprise, the department
shall revoke the business' certification for a period of two years.
The department shall prohibit any business or person who willfully
violates the reporting requirements of this section from bidding on,
or participating as either a contractor, subcontractor, or supplier
in, any state contract or project, and, if certified as a disabled
veteran business enterprise, the department shall permanently revoke
the business' certification.
(2) No awarding department shall enter into any contract with any
person suspended under this subdivision during the period of the
person's suspension or with any person prohibited from contracting
under this subdivision. No awarding department shall award a contract
to any contractor utilizing the services of any person as a
subcontractor suspended under this subdivision for the period of the
person's suspension or utilizing the services of any person or
contractor prohibited from contracting under this subdivision.
(3) The awarding department shall check a central listing provided
by the department to verify that the person or contractor to whom
the contract is being awarded, or any person being utilized as a
subcontractor or supplier by that person or contractor, is not under
suspension for violating this section or is not prohibited from
contracting under this section.
(4) This subdivision does not apply to any contract necessary for
the protection of the public health, safety, or welfare.
(f) Section 999.9 shall not be applicable to violations of this
section.
SEC. 2. Section 10115.15 of the Public Contract Code is repealed.
10115.15. (a) Notwithstanding Section 10115.2, when awarding
contracts for materials, supplies, or equipment, including electronic
data processing goods and services, an awarding department shall
accept the submission by a bidder of a minority, women, and disabled
veteran business enterprise utilization plan that has been approved
prior to the solicitation due date by the Department of General
Services. A business utilization plan shall be considered approved by
the Department of General Services as of the date submitted to the
department so long as the plan meets the minimum criteria established
in paragraphs (1) to (12), inclusive, and shall be valid for a
period of one year, unless the department has audited the utilization
plan, as authorized under subdivision (b), and disapproves it for
reasons specified under subdivision (c). The decision of whether to
establish a minority, women, and disabled veteran business enterprise
utilization plan shall be at the option of the vendor. If a bidder
cites an approved utilization plan in response to the minority,
women, and disabled veteran business enterprise participation
requirements of a solicitation that calls for 15 percent
minority-owned, 5 percent women-owned, and 3 percent disabled
veteran-owned business participation, then that utilization plan
shall be considered responsive to the participation goals of the
solicitation document. If a solicitation specifies higher
participation goals than those in the bidder's utilization plan, the
bidder shall meet the goals in the solicitation. At a minimum, the
utilization plan shall include the following information:
(1) A statement of the vendor's minority, women, and disabled
veteran business enterprise utilization plan, including the primary
objectives of the utilization plan.
(2) An explanation showing sufficient business reasons why the
vendor did not meet minority, women, and disabled veteran business
enterprise participation goals set forth in the vendor's minority,
women, and disabled veteran business utilization plan submitted to,
and approved by, the Department of General Services in the previous
year, if applicable. Further, if the vendor did not meet the
minority, women, and disabled veteran business participation goals in
the previous year, the vendor shall also identify remedial steps it
will take to meet the goals in the current utilization plan.
(3) A statement of the vendor's minority, women, and disabled
veteran business utilization goals for the succeeding year. At a
minimum, these utilization goals shall be equal to the statewide
participation goals set forth in subdivision (c) of Section 10115.
(4) Estimated total dollars to be subcontracted by the vendor for
sales within the United States for the succeeding year.
(5) Estimated total dollars to be subcontracted by the vendor for
sales within the State of California for the succeeding year.
(6) Total dollars expressed as a percentage of the amount
estimated pursuant to paragraph (4), intended to be subcontracted
with each of the following:
(A) Minority business enterprises.
(B) Women business enterprises.
(7) Total dollars, expressed as a percentage of the amount
estimated pursuant to paragraph (5), intended to be subcontracted
with disabled veteran-owned business enterprises.
(8) A representative listing of the products and services that the
vendor anticipates subcontracting, including an identification of
the types of subcontracting planned for minority, women, and disabled
veteran business enterprises.
(9) The name of the individual employed by the vendor who will
administer the vendor's utilization plan, including a description of
the duties of the individual.
(10) A description of the efforts that the vendor will undertake
to ensure that minority, women, and disabled veteran business
enterprises will have an equitable opportunity to compete for
contracts.
(11) A listing of the records and reports that the vendor will
maintain to demonstrate the practices and procedures that have been
adopted to comply with the requirements and goals of the utilization
plan.
(12) Affirmation that the vendor met the statewide minority,
women, and disabled veteran business enterprise utilization goals for
the previous year, if applicable.
(b) The Department of General Services shall conduct random audits
of the submitted utilization plans to determine compliance with this
article, and shall retain on file all submitted utilization plans
for auditing purposes. During any audit of a submitted utilization
plan, the Department of General Services may ask a vendor to submit a
list of all the minority, women, and disabled veteran business
enterprises included as subcontractors in the vendor's plan for the
previous year. This information shall remain confidential. Nothing in
this section shall be construed to require the Department of General
Services to audit all of the minority, women, and disabled veteran
business enterprise utilization plans submitted by individual
vendors. The Department of General Services may establish appropriate
fees to cover the actual costs of conducting random audits and
retaining on file all submitted plans.
(c) (1) At any time, the Department of General Services may
disapprove a vendor's minority, women, and disabled veteran business
enterprise utilization plan for any of the following reasons:
(A) The utilization plan fails to evidence a vendor's intention to
comply fully with the statewide minority, women, and disabled
veteran business enterprise goals for the succeeding year, as
indicated by failure of the utilization plan to contain the
information specified in subdivision (a).
(B) The utilization plan fails to evidence sufficient business
reasons for failure to achieve the minority, women, and disabled
veteran business enterprise goals set forth in a utilization plan
submitted in the previous year, if applicable.
(C) The utilization plan fails to evidence sufficient remedial
steps the vendor will take if the vendor did not meet the minority,
women, and disabled veteran business participation goals in the
previous year, if applicable.
(2) If a vendor's utilization plan is disapproved, the vendor may
not submit a new utilization plan to the department for a period of
one year from the date of disapproval. Prior to disapproval of a
vendor's utilization plan, the vendor shall be entitled to a public
hearing and to five days' notice of the time and place thereof. The
notice shall state the reasons for the hearing.
(3) A vendor that submits a minority, women, and disabled veteran
business utilization plan that is approved by the Department of
General Services, and that is subsequently awarded a contract to
which the vendor would not otherwise have been entitled, and who
fails to evidence intention to fully comply with the minority, women,
and disabled veteran business enterprise goals in the utilization
plan, or fails to evidence sufficient business reasons for failing to
achieve the minority, women, and disabled veteran business
enterprise goals set forth in the utilization plan, shall:
(A) Pay to the state any difference between the contract amount
and what the state's cost would have been if the contract had been
properly awarded.
(B) In addition to the amount specified in subparagraph (A), be
assessed a penalty in an amount of not more than 10 percent of the
amount of the contract involved.
(C) Be ineligible to transact any business with the state for a
period of not less than three months and not more than 24 months.
Prior to imposition of any sanction under this chapter, the
contractor or vendor shall be entitled to a public hearing and to
five days' notice of the time and place thereof. The notice shall
state the reasons for the hearing.
