Bill Text: GA HB1241 | 2011-2012 | Regular Session | Introduced
Bill Title: Economic Development, Department of; Division of Minority and Women's Business Development; create
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2012-03-14 - House Second Readers [HB1241 Detail]
Download: Georgia-2011-HB1241-Introduced.html
12 LC
21 1742ER
House
Bill 1241
By:
Representatives Bruce of the
64th,
Fludd of the
66th,
Marin of the
96th,
Williams of the
89th,
and Frazier of the
123rd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 7 of Title 50 of the Official Code of Georgia Annotated, relating
to the Department of Economic Development, so as to define certain terms; to
create the Division of Minority and Women's Business Development; to provide for
appointment of a director; to provide for powers and duties of the director; to
create the position of minority and women owned business enterprise state-wide
advocate; to provide for appointment; to provide for duties; to provide for
provisions for state contracts; to provide for a state-wide disparity study; to
provide for contents; to provide for the structure of procurement contracts; to
provide for rules and regulations; to provide for the implementation of rules
and regulations; to provide for exceptions; to provide for related matters; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
7 of Title 50 of the Official Code of Georgia Annotated, relating to the
Department of Economic Development, is amended by adding a new article to read
as follows:
"ARTICLE
8
50-7-100.
As
used in this article, the term:
(1)
'Certified business' means a business verified as a minority owned business
enterprise or women owned business enterprise pursuant to Code Section
50-7-105.
(2)
'Contracting agency' means a state agency which is a party or a proposed party
to a state contract.
(3)
'Contractor' means an individual; a business enterprise, including a sole
proprietorship, partnership, corporation, nonprofit corporation, or any other
party to a state contract; or a bidder in conjunction with the award of a state
contract or a proposed party to a state contract.
(4)
'Director' means the director of the Division of Minority and Women's Business
Development in the Department of Economic Development.
(5)
'Diversity practices' means a contractor's practices and policies with respect
to:
(A)
Utilizing certified minority owned business enterprises and women owned business
enterprises in contracts awarded by a state agency or other public corporation,
as subcontractors and suppliers; and
(B)
Entering into partnerships, joint ventures, or other similar arrangements with
certified minority owned business enterprises and women owned business
enterprises as defined in this article or other applicable statute or regulation
governing an entity's utilization of minority owned business enterprises or
women owned business enterprises.
(6)
'Division' means the Division of Minority and Women's Business Development in
the Department of Economic Development.
(7)
'Minority and women owned business enterprise' means both minority owned
business enterprise and women owned business enterprise.
(8)
'Minority group member' means a United States citizen or permanent resident
alien who is and can demonstrate membership in one of the following
groups:
(A)
Black persons having origins in any of the Black African racial
groups;
(B)
Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, or Central or South
American of either Indian or Hispanic origin, regardless of race;
(C)
Native American or Alaskan native persons having origins in any of the original
peoples of North America; or
(D)
Asian and Pacific Islander persons having origins in any of the East Asian
countries, Southeast Asia, the Indian subcontinent, or the Pacific
Islands.
(9)
'Minority owned business enterprise' means a business enterprise, including a
sole proprietorship, partnership, or corporation that is:
(A)
At least 51 percent owned by one or more minority group members;
(B)
An enterprise in which such minority ownership is real, substantial, and
continuing;
(C)
An enterprise in which such minority ownership has and exercises the authority
to control independently the day-to-day business decisions of the
enterprise;
(D)
An enterprise authorized to do business in this state that is independently
owned and operated;
(E)
An enterprise owned by an individual or individuals, whose ownership, control,
and operation are relied upon for certification, with a personal net worth that
does not exceed $3.5 million, as adjusted annually on the first day of January
for inflation according to the consumer price index of the previous year;
and
(F)
An enterprise that is a small business.
(10)
'Personal net worth' means the aggregate adjusted net value of the assets of an
individual remaining after total liabilities are deducted. Personal net worth
includes the individual's share of assets held jointly with said individual's
spouse and does not include the individual's ownership interest in the certified
minority and women owned business enterprise, the individual's equity in his or
her primary residence, or up to $500,000.00 of the present cash value of any
qualified retirement savings plan or individual retirement account held by the
individual less any penalties for early withdrawal.
(11)
'Small business,' unless otherwise indicated, means a business which has a
significant business presence in this state, is independently owned and
operated, and is not dominant in its field and employs, based on its industry, a
certain number of persons as determined by the director, but not to exceed 300,
taking into consideration factors which include, but are not limited to, federal
small business administration standards pursuant to 13 C.F.R. Part 121. The
director may issue regulations on the construction of the terms in this
definition.
(12)
'State agency' means a state department, or division, board, commission, or
bureau of any state department, or a state authority.
(13)
'State contract' means:
(A)
A written agreement or purchase order instrument, providing for a total
expenditure in excess of $35,000.00, whereby a contracting agency is committed
to expend or does expend funds in return for labor; services including but not
limited to legal, financial, and other professional services; supplies;
equipment; materials; or any combination of the foregoing, to be performed for,
or rendered or furnished to, the contracting agency;
(B)
A written agreement in excess of $100,000.00 whereby a contracting agency is
committed to expend or does expend funds for the acquisition, construction,
demolition, replacement, major repair, or renovation of real property and
improvements thereon; and
(C)
A written agreement in excess of $100,000.00 whereby the owner of a state
assisted housing project is committed to expend or does expend funds for the
acquisition, construction, demolition, replacement, major repair, or renovation
of real property and improvements thereon for such project.
(14)
'State-wide advocate' means the person appointed by the commissioner to serve in
the capacity of the minority and women owned business enterprise state-wide
advocate.
(15)
'Subcontract' means an agreement providing for a total expenditure in excess of
$25,000.00 for the construction, demolition, replacement, major repair,
renovation, planning, or design of real property and improvements thereon
between a contractor and any individual or business enterprise, including a sole
proprietorship, partnership, corporation, or nonprofit corporation, in which a
portion of a contractor's obligation under a state contract is undertaken or
assumed, but shall not include any construction, demolition, replacement, major
repair, renovation, planning, or design of real property or improvements thereon
for the beneficial use of the contractor.
(16)
'Utilization plan' means a plan prepared by a contractor and submitted in
connection with a proposed state contract. The utilization plan shall identify
certified minority or women owned business enterprises, if known, that have
committed to perform work in connection with the proposed state contract as well
as any such enterprises, if known, which the contractor intends to use in
connection with the contractor's performance of the proposed state contract.
The plan shall specifically contain a list, including the name, address, and
telephone number, of each certified enterprise with which the contractor intends
to subcontract.
(17)
'Women owned business enterprise' means a business enterprise, including a sole
proprietorship, partnership, or corporation that is:
(A)
At least 51 percent owned by one or more United States citizens or permanent
resident aliens who are women;
(B)
An enterprise in which the ownership interest of such women is real,
substantial, and continuing;
(C)
An enterprise in which such women ownership has and exercises the authority to
control independently the day-to-day business decisions of the
enterprise;
(D)
An enterprise authorized to do business in this state that is independently
owned and operated;
(E)
An enterprise owned by an individual or individuals, whose ownership, control,
and operation are relied upon for certification, with a personal net worth that
does not exceed $3.5 million, as adjusted annually on the first day of January
for inflation according to the consumer price index of the previous year;
and
(F)
An enterprise that is a small business.
50-7-101.
(a)
There is created in the Department of Economic Development the Division of
Minority and Women's Business Development. The head of the division shall be
the director who shall be appointed by and hold office at the pleasure of the
commissioner. It shall be the duty of the director to assist the Governor in
the formulation and implementation of laws and policies relating to minority and
women owned business enterprises.
(b)
The director may appoint such deputies, assistants, and other employees as may
be needed for the performance of the duties prescribed in this article. The
director may request and shall receive from any department, division, board,
bureau, executive commission, or agency of the state such assistance as may be
necessary to carry out the provisions of this article.
(c)
The director shall have the following powers and duties:
(1)
To encourage and assist contracting agencies in their efforts to increase
participation by minority and women owned business enterprise on state contracts
and subcontracts so as to facilitate the award of a fair share of such contracts
to them;
(2)
To develop standardized forms and reporting documents necessary to implement
this article;
(3)
To conduct educational programs consistent with the purposes of this
article;
(4)
To review periodically the practices and procedures of each contracting agency
with respect to compliance with the provisions of this article, and to require
them to file periodic reports with the division of minority and women's business
development as to the level of minority and women owned business enterprises
participation in the awarding of agency contracts for goods and
services;
(5)
On January 1 of each year, report to the Governor and the chairpersons of the
Senate Finance Committee and the House Committee on Ways and Means the level of
minority and women owned business enterprises participating in each agency's
contracts for goods and services and on activities of the office and effort by
each contracting agency to promote employment of minority group members and
women, and to promote and increase participation by certified businesses with
respect to state contracts and subcontracts so as to facilitate the award of a
fair share of state contracts to such businesses. Such report may recommend new
activities and programs to effectuate the purposes of this article;
(6)
To prepare and update periodically a directory of certified minority and women
owned business enterprises which shall, wherever practicable, be divided into
categories of labor, services, supplies, equipment, materials, and recognized
construction trades and which shall indicate areas or locations of the state
where such enterprises are available to perform services;
(7)
To appoint independent hearing officers who by contract or terms of employment
shall preside over adjudicatory hearings pursuant to Code Section 50-7-106 for
the office and who are assigned no other work by the office;
(8)
To file a complaint where the director has knowledge that a contractor may have
violated the provisions of this article where such violation is unrelated,
separate, or distinct from the state contract as expressed by its terms;
and
(9)
To streamline the state certification process to accept federal and municipal
corporation certifications.
(d)
The director may provide assistance to, and facilitate access to, programs
serving certified businesses as well as applicants to ensure that such
businesses benefit, as needed, from technical, managerial, financial, and
general business assistance; training; marketing; organization and personnel
skill development; project management assistance; technology assistance; bond
and insurance education assistance; and other business development assistance.
In addition, the director may, either independently or in conjunction with other
state agencies:
(1)
Develop a clearinghouse of information on programs and services provided by
entities that may assist such businesses;
(2)
Review bonding and paperwork requirements imposed by contracting agencies that
may unnecessarily impede the ability of such businesses to compete;
and
(3)
Seek to maximize utilization by minority and women owned business enterprises of
available federal resources including but not limited to federal grants, loans,
loan guarantees, surety bonding guarantees, technical assistance, and programs
and services of the federal small business administration.
50-7-102.
(a)
There is established within the division an office of the minority and women
owned business enterprise state-wide advocate. The state-wide advocate shall be
appointed by the commissioner.
(b)
The advocate shall act as a liaison for minority and women owned business
enterprises to assist them in obtaining technical, managerial, financial, and
other business assistance for certified businesses and applicants. The advocate
shall investigate complaints brought by or on behalf of minority and women owned
business enterprises concerning certification delays and instances of violations
of law by state agencies. The state-wide advocate shall assist certified
businesses and applicants in the certification process. Other functions of the
state-wide advocate shall be directed by the commissioner. The advocate may
request and the director may appoint staff and employees of the Division of
Minority and Women's Business Development to support the administration of the
office of the state-wide advocate.
(c)
The state-wide advocate shall establish a toll-free number at the Department of
Economic Development to be used to answer questions concerning the minority and
women owned business enterprises certification process.
(d)
The state-wide advocate shall report to the director and commissioner by
November 15 of each year on all activities related to fulfilling the obligations
of the office of the state-wide advocate. The commissioner shall include the
unedited text of the state-wide advocate's report within the reports submitted
by the Department of Economic Development to the Governor and the chairpersons
of the Senate Finance Committee and the House Committee on Ways and
Means.
50-7-103.
(a)
As used in this code section, the term 'affirmative action' means recruitment,
employment, job assignment, promotion, upgradings, demotion, transfer, layoff,
or termination and rates of pay or other forms of compensation.
(b)
All state contracts and all documents soliciting bids or proposals for state
contracts shall contain or make reference to the following
provisions:
(1)
The contractor shall not discriminate against employees or applicants for
employment because of race, creed, color, national origin, sex, age, disability,
or marital status and will undertake or continue existing programs of
affirmative action to ensure that minority group members and women are afforded
equal employment opportunities without discrimination;
(2)
At the request of the contracting agency, the contractor shall request each
employment agency or labor union, or authorized representative of workers with
which it has a collective bargaining or other agreement or understanding, to
furnish a written statement that such employment agency, labor union, or
representative will not discriminate on the basis of race, creed, color,
national origin, sex, age, disability, or marital status and that such
employment agency, labor union, or representative will affirmatively cooperate
in the implementation of the contractor's obligations herein;
(3)
The contractor shall state, in all solicitations or advertisements for
employees, that, in the performance of the state contract, all qualified
applicants will be afforded equal employment opportunities without
discrimination because of race, creed, color, national origin, sex, age,
disability, or marital status;
(4)
The contractor shall include the provisions of paragraph (1) of this subsection
in every subcontract, except as provided in paragraph (6) of this subsection, in
such a manner that the provisions will be binding upon each subcontractor as to
work in connection with the state contract;
(5)
The provisions of this Code section shall not be binding upon contractors or
subcontractors in the performance of work or the provision of services or any
other activity that are unrelated, separate, or distinct from the state contract
as expressed by its terms;
(6)
In the implementation of this Code section, the contracting agency shall
consider compliance by a contractor or subcontractor with the requirements of
any federal law concerning equal employment opportunity which effectuates the
purpose of this Code section. The contracting agency shall determine whether
the imposition of the requirements of this Code section duplicate or conflict
with any such law, and, if such duplication or conflict exists, the contracting
agency shall waive the applicability of this Code section to the extent of such
duplication or conflict;
(7)
The director shall promulgate rules and regulations to ensure that contractors
and subcontractors undertake programs of affirmative action and equal employment
opportunity as required by this Code section. Such rules and regulations as
they pertain to any particular agency shall be developed after consultation with
contracting agencies. Such rules and regulations may require a contractor,
after notice in a bid solicitation, to submit an equal employment opportunity
program after bid opening and prior to the award of any contract, and may
require the contractor or subcontractor to submit compliance reports relating to
the contractor's or subcontractor's operation and implementation of any equal
employment opportunity program in effect as of the date the contract is
executed. The contracting agency may recommend to the director that the
director take appropriate action according to the procedures set forth in Code
Section 50-7-108 against the contractor for noncompliance with the requirements
of this Code section. The contracting agency shall be responsible for
monitoring compliance with this Code section; and
(8)
The requirements of this Code section shall not apply to any employment outside
this state or application for employment outside this state or solicitations or
advertisements therefor, or any existing programs of affirmative action
regarding employment outside this state and the effect of contract provisions
required by paragraph (1) of this Code section shall be so limited.
50-7-104.
(a)
The director is authorized and directed to commission a state-wide disparity
study regarding the participation of minority and women owned business
enterprises in state contracts to be delivered to the Governor and the
chairpersons of the Senate Finance Committee and the House Committee on Ways and
Means no later than February 15, 2016. The study shall be prepared by an entity
independent of the department and selected through a request for proposal
process. The purpose of such study is:
(1)
To determine whether there is a disparity between the number of qualified
minority and women owned businesses ready, willing, and able to perform state
contracts for commodities, services, and construction, and the number of such
contractors actually engaged to perform such contracts, and to determine what
changes, if any, should be made to state policies affecting minority and women
owned business enterprises; and
(2)
To determine whether there is a disparity between the number of qualified
minorities and women ready, willing, and able with respect to labor markets,
qualifications, and other relevant factors to participate in contractor
employment, management level bodies including boards of directors, and as senior
executive officers within contracting entities and the number of such group
members actually employed or affiliated with state contractors in the
aforementioned capacities, and to determine what changes, if any, should be made
to state policies affecting minority and women group populations with regard to
state contractors' employment and appointment practices relative to diverse
group members. Such study shall include, but not be limited to, an analysis of
the history of minority and women owned business enterprise programs and their
effectiveness as a means of securing and ensuring participation by minorities
and women, and a disparity analysis by market area and region of the state.
Such study shall distinguish between minority males, minority females, and
nonminority females in the statistical analysis.
(b)
The director shall transmit the disparity study to the Governor and the
chairpersons of the Senate Finance Committee and the House Committee on Ways and
Means not later than February 15, 2016, and to post the study on the website of
the Department of Economic Development.
50-7-105.
(a)
Each agency shall structure procurement procedures for contracts made directly
or indirectly to minority and women owned business enterprises, consistent with
the purposes of this article, to achieve the following results with regard to
total annual state-wide procurement:
(1)
Construction industry for certified minority owned business enterprises: 14.34
percent;
(2)
Construction industry for certified women owned business enterprises: 8.41
percent;
(3)
Construction related professional services industry for certified minority owned
business enterprises: 13.21 percent;
(4)
Construction related professional services industry for certified women owned
business enterprises: 11.32 percent;
(5)
Nonconstruction related services industry for certified minority owned business
enterprises: 19.60 percent;
(6)
Nonconstruction related services industry for certified women owned business
enterprises: 17.44 percent;
(7)
Commodities industry for certified minority owned business enterprises: 16.11
percent;
(8)
Commodities industry for certified women owned business enterprises: 10.93
percent;
(9)
Overall agency total dollar value of procurement for certified minority owned
business enterprises: 16.53 percent;
(10)
Overall agency total dollar value of procurement for certified women owned
business enterprises: 12.39 percent; and
(11)
Overall agency total dollar value of procurement for certified minority and
women owned business enterprises: 28.92 percent.
(b)
The director shall ensure that each state agency has been provided with a copy
of the 2016 study.
(c)
Each agency shall develop and adopt agency-specific goals based on the findings
of the 2016 study.
(d)
The director shall promulgate rules and regulations pursuant to the goals
established in subsection (a) of this Code section that provide measures and
procedures to ensure that certified minority and women owned businesses shall be
given the opportunity for maximum feasible participation in the performance of
state contracts and to assist in the agency's identification of those state
contracts for which minority and women owned certified businesses may best bid
to actively and affirmatively promote and assist their participation in the
performance of state contracts so as to facilitate the agency's achievement of
the maximum feasible portion of the goals for state contracts to such
businesses.
(e)
The director shall promulgate rules and regulations that will accomplish the
following:
(1)
Provide for the certification and decertification of minority and women owned
business enterprises for all agencies through a single process that meets
applicable requirements;
(2)
Require that each contract solicitation document accompanying each solicitation
set forth the expected degree of minority and women owned business enterprise
participation based, in part, on:
(A)
The potential subcontract opportunities available in the prime procurement
contract; and
(B)
The availability, as contained within the study, of certified minority and women
owned business enterprises to respond competitively to the potential subcontract
opportunities;
(3)
Require that each agency provide a current list of certified minority business
enterprises to each prospective contractor;
(4)
Allow a contractor that is a certified minority owned or women owned business
enterprise to use the work it performs to meet requirements for use of certified
minority owned or women owned business enterprises as
subcontractors;
(5)
Provide for joint ventures, which a bidder may count toward meeting its minority
and women owned business enterprise participation;
(6)
Consistent with subsection (i) of this Code section, provide for circumstances
under which an agency may waive obligations of the contractor relating to
minority and women owned business enterprise participation;
(7)
Require that an agency verify that minority and women owned business enterprises
listed in a successful bid are actually participating to the extent listed in
the project for which the bid was submitted;
(8)
Provide for the collection of statistical data by each agency concerning actual
minority and women owned business enterprise participation; and
(9)
Require each agency to consult the most current disparity study when calculating
agency-wide and contract specific participation goals pursuant to this
article.
(f)
Solely for the purpose of providing the opportunity for meaningful participation
by certified businesses in the performance of state contracts as provided in
this Code section, state contracts shall include leases of real property by a
state agency to a lessee where: the terms of such leases provide for the
construction, demolition, replacement, major repair, or renovation of real
property and improvements thereon by such lessee; and the cost of such
construction, demolition, replacement, major repair, or renovation of real
property and improvements thereon shall exceed the sum of $100,000.00. Reports
to the director pursuant to Code Section 50-7-106 shall include activities with
respect to all such state contracts. Contracting agencies shall include or
require to be included with respect to state contracts for the acquisition,
construction, demolition, replacement, major repair, or renovation of real
property and improvements thereon, such provisions as may be necessary to
effectuate the provisions of this Code section in every bid specification and
state contract, including, but not limited to:
(1)
Provisions requiring contractors to make a good faith effort to solicit active
participation by enterprises identified in the directory of certified businesses
provided to the contracting agency by the office;
(2)
Requiring the parties to agree, as a condition of entering into such contract,
to be bound by the provisions of section three hundred sixteen of this article;
and
(3)
Requiring the contractor to include the provisions set forth in paragraphs (1)
and (2) of this subsection in every subcontract in a manner that the provisions
will be binding upon each subcontractor as to work in connection with such
contract; provided, however, that no such provisions shall be binding upon
contractors or subcontractors in the performance of work or the provision of
services that are unrelated, separate or distinct from the state contract as
expressed by its terms, and nothing in this Code section shall authorize the
director or any contracting agency to impose any requirement on a contractor or
subcontractor except with respect to a state contract.
(g)
In the implementation of this Code section, the contracting agency
shall:
(1)
Consult the findings contained within the disparity study evidencing relevant
industry specific availability of certified businesses;
(2)
Implement a program that will enable the agency to evaluate each contract to
determine the appropriateness of the goal pursuant to subsection (a) of this
Code section;
(3)
Consider where practicable, the severability of construction projects, and other
bundled contracts; and
(4)
Consider compliance with the requirements of any federal law concerning
opportunities for minority and women owned business enterprises which
effectuates the purpose of this Code section. The contracting agency shall
determine whether the imposition of the requirements of any such law duplicate
or conflict with the provisions of this Code section, and, if such duplication
or conflict exists, the contracting agency shall waive the applicability of this
Code section to the extent of such duplication or conflict.
(h)(1)
Contracting agencies shall administer the rules and regulations promulgated by
the director in a good faith effort to meet the maximum feasible portion of the
agency's goals adopted pursuant to this article and the regulations of the
director. Such rules and regulations shall require a contractor to submit a
utilization plan after bids are opened and when bids are required, but prior to
the award of a state contract; shall require the contracting agency to review
the utilization plan submitted by the contractor and to post the utilization
plan and any waivers of compliance issued pursuant to subsection (f) of this
Code section on the website of the contracting agency within a reasonable period
of time as established by the director; shall require the contracting agency to
notify the contractor in writing within a period of time specified by the
director as to any deficiencies contained in the contractor's utilization plan;
shall require remedy thereof within a period of time specified by the director;
shall require the contractor to submit periodic compliance reports relating to
the operation and implementation of any utilization plan; shall not allow any
automatic waivers but shall allow a contractor to apply for a partial or total
waiver of the minority and women owned business enterprise participation
requirements pursuant to subsections (f) and (g) of this Code section; shall
allow a contractor to file a complaint with the director pursuant to subsection
(h) of this Code section in the event a contracting agency has failed or refused
to issue a waiver of the minority and women owned business enterprise
participation requirements or has denied such request for a waiver; and shall
allow a contracting agency to file a complaint with the director pursuant to
subsection (i) of this Code section in the event a contractor is failing or has
failed to comply with the minority and women owned business enterprise
participation requirements set forth in the state contract where no waiver has
been granted.
(2)
The rules and regulations promulgated pursuant to this paragraph regarding a
utilization plan shall provide that where enterprises have been identified
within a utilization plan, a contractor shall attempt, in good faith, to utilize
such enterprise at least to the extent indicated. A contracting agency may
require a contractor to indicate, within a utilization plan, what measures and
procedures he or she intends to take to comply with the provisions of this
article, but may not require, as a condition of award of, or compliance with, a
contract that a contractor utilize a particular enterprise in performance of the
contract.
(3)
Without limiting other grounds for the disqualification of bids or proposals on
the basis of nonresponsibility, a contracting agency may disqualify the bid or
proposal of a contractor as being nonresponsible for failure to remedy notified
deficiencies contained in the contractor's utilization plan within a period of
time specified in regulations promulgated by the director after receiving
notification of such deficiencies from the contracting agency. Where failure to
remedy any notified deficiency in the utilization plan is a ground for
disqualification, that issue and all other grounds for disqualification shall be
stated in writing by the contracting agency. Where the contracting agency
states that a failure to remedy any notified deficiency in the utilization plan
is a ground for disqualification, the contractor shall be entitled to an
administrative hearing, on a record, involving all grounds stated by the
contracting agency. Such hearing shall be conducted by the appropriate
authority of the contracting agency to review the determination of
disqualification.
(i)
Where it appears that a contractor cannot, after a good faith effort, comply
with the minority and women owned business enterprise participation requirements
set forth in a particular state contract, a contractor may file a written
application with the contracting agency requesting a partial or total waiver of
such requirements setting forth the reasons for such contractor's inability to
meet any or all of the participation requirements together with an explanation
of the efforts undertaken by the contractor to obtain the required minority and
women owned business enterprise participation. In implementing the provisions
of this Code section, the contracting agency shall consider the number and types
of minority and women owned business enterprises located in the region in which
the state contract is to be performed, the total dollar value of the state
contract, the scope of work to be performed and the project size and term. If,
based on such considerations, the contracting agency determines there is not a
reasonable availability of contractors on the list of certified business to
furnish services for the project, it shall issue a waiver of compliance to the
contractor. In making such determination, the contracting agency shall first
consider the availability of other business enterprises located in the region
and shall thereafter consider the financial ability of minority and women owned
businesses located outside the region in which the contract is to be performed
to perform the state contract.
(j)
For purposes of determining a contractor's good faith effort to comply with the
requirements of this Code section or to be entitled to a waiver therefrom the
contracting agency shall consider:
(1)
Whether the contractor has advertised in general circulation media, trade
association publications, and minority-focus and women-focus media and, in such
event:
(A)
Whether or not certified minority or women owned businesses which have been
solicited by the contractor exhibited interest in submitting proposals for a
particular project by attending a pre-bid conference; and
(B)
Whether certified businesses which have been solicited by the contractor have
responded in a timely fashion to the contractor's solicitations for timely
competitive bid quotations prior to the contracting agency's bid
date;
(2)
Whether there has been written notification to appropriate certified businesses
that appear in the directory of certified businesses prepared pursuant to
paragraph (6) of subsection (c) of Code Section 50-7-101; and
(3)
Whether the contractor can reasonably structure the amount of work to be
performed under subcontracts in order to increase the likelihood of
participation by certified businesses.
(k)
In the event that a contracting agency fails or refuses to issue a waiver to a
contractor as requested within 20 days after having made application therefor
pursuant to subsection (f) of this Code section or if the contracting
agency denies such application, in whole or in part, the contractor may file a
complaint with the director pursuant to Code section 5-7-101 setting forth the
facts and circumstances giving rise to the contractor's complaint together with
a demand for relief. The contractor shall serve a copy of such complaint upon
the contracting agency by personal service or by certified mail, return receipt
requested. The contracting agency shall be afforded an opportunity to respond
to such complaint in writing.
(l)
If, after the review of a contractor's minority and women owned business
utilization plan or review of a periodic compliance report and after such
contractor has been afforded an opportunity to respond to a notice of deficiency
issued by the contracting agency in connection therewith, it appears that a
contractor is failing or refusing to comply with the minority and women owned
business participation requirements as set forth in the state contract and where
no waiver from such requirements has been granted, the contracting agency may
file a written complaint with the director pursuant to Code Section 50-7-110
setting forth the facts and circumstances giving rise to the contracting
agency's complaint together with a demand for relief. The contracting agency
shall serve a copy of such complaint upon the contractor by personal service or
by certified mail, return receipt requested. The contractor shall be afforded
an opportunity to respond to such complaint in writing.
50-7-106.
The
director shall promulgate rules and regulations setting forth measures and
procedures to require all contracting agencies, where practicable, feasible, and
appropriate, to assess the diversity practices of contractors submitting bids or
proposals in connection with the award of a state contract. Such rules and
regulations shall take into account the nature of the labor, services, supplies,
equipment, or materials being procured by the state agency; the method of
procurement required to be used by a state agency to award the contract and
minority and women owned business utilization plans required to be submitted
pursuant to Code Sections 50-7-103 and 50-7-104; and such other factors as the
director deems appropriate or necessary to promote the award of state contracts
to contractors having sound diversity practices. Such assessment shall not in
any way permit the automatic rejection of a bid or procurement contract proposal
based on lack of adherence to diversity practices. Each bid or proposal shall
be analyzed on an individual per-bid or per-proposal basis with the contractor's
diversity practices considered as only a part of a wider consideration of
several factors when deciding to award or decline to award a bid or
proposal.
50-7-107.
(a)
The director shall promulgate rules and regulations providing for the
establishment of a state-wide certification program including rules and
regulations governing the approval, denial, or revocation of any such
certification.
(b)
For the purposes of this article, the office shall be responsible for verifying
businesses as being owned, operated, and controlled by minority group members or
women and for certifying such verified businesses. The director shall prepare a
directory of certified businesses for use by contracting agencies and
contractors in carrying out the provisions of this article. The director shall
periodically update the directory.
(c)(1)
The director shall work with all municipal corporations that have a municipal
minority and women owned business enterprise program to develop standards to
accept state certification to meet the municipal corporation minority and women
owned business enterprise certification standards.
(2)
The director shall establish a procedure enabling the division to accept federal
certification verification for minority and women owned business enterprise
applicants, provided said standards comport with those required by the state
minority and women owned business program, in lieu of requiring the applicant to
complete the state certification process. The director shall promulgate rules
and regulations to set forth criteria for the acceptance of federal
certification.
(d)
Following application for certification pursuant to this Code section, the
director shall provide the applicant with written notice of the status of the
application, including notice of any outstanding deficiencies, within 30 days.
Within 60 days of submission of a final completed application, the director
shall provide the applicant with written notice of a determination by the office
approving or denying such certification and, in the event of a denial, a
statement setting forth the reasons for such denial. Upon a determination
denying or revoking certification, the business enterprise for which
certification has been so denied or revoked shall, upon written request made
within 30 days from receipt of notice of such determination, be entitled to a
hearing before an independent hearing officer designated for such purpose by the
director. In the event that a request for a hearing is not made within such 30
day period, such determination shall be deemed to be final. The independent
hearing officer shall conduct a hearing and, upon the conclusion of such
hearing, issue a written recommendation to the director to affirm, reverse, or
modify such determination of the director. Such written recommendation shall be
issued to the parties. The director, within 30 days, by order, must accept,
reject, or modify such recommendation of the hearing officer and set forth in
writing the reasons therefor. The director shall serve a copy of such order and
reasons therefor upon the business enterprise by personal service or by
certified mail return receipt requested.
(e)
All certifications shall be valid for a period of three years.
50-7-108.
(a)
Each contracting agency shall be responsible for monitoring state contracts
under its jurisdiction, and recommending matters to the office respecting
noncompliance with the provisions of this article so that the office may take
such action as is appropriate to insure compliance with the provisions of this
article, the rules and regulations of the director issued hereunder and the
contractual provisions required pursuant to this article. All contracting
agencies shall comply with the rules and regulations of the office and are
directed to cooperate with the office and to furnish to the office such
information and assistance as may be required in the performance of its
functions under this article.
(b)
Each contracting agency shall provide to prospective bidders a current copy of
the directory of certified businesses and a copy of the
regulations.
(c)
Each contracting agency shall report to the director with respect to activities
undertaken to promote employment of minority group members and women and promote
and increase participation by certified businesses with respect to state
contracts and subcontracts. Such reports shall be submitted periodically, but
not less frequently than annually, as required by the director, and shall
include such information as is necessary for the director to determine whether
the contracting agency and contractor have complied with the purposes of this
article, including, without limitation, a summary of all waivers of the
requirements of subsections (f) and (g) of Code Section 50-7-104 allowed by the
contracting agency during the period covered by the report, including a
description of the basis of the waiver request and the rationale for granting
any such waiver. Each agency shall also include in such annual report whether
or not it has been required to prepare a remedial plan and, if so, the plan and
the extent to which the agency has complied with each element of the
plan.
(d)
The division shall issue an annual report which:
(1)
Summarizes the report submitted by each contracting agency pursuant to
subsection (c) of this Code section;
(2)
Contains such comparative or other information as the director deems
appropriate, including but not limited to goals compared to actual participation
of minority and women owned business enterprises in state contracting, to
evaluate the effectiveness of the activities undertaken by each such contracting
agency to promote increased participation by certified minority or women owned
businesses with respect to state contracts and subcontracts;
(3)
Contains a summary of all waivers of the requirements of subsections (f) and (g)
of Code Section 50-7-104 allowed by each contracting agency during the period
covered by the report, including a description of the basis of the waiver
request and the contracting agency's rationale for granting any such
waiver;
(4)
Describes any efforts to create a database or other information storage and
retrieval system containing information relevant to contracting with minority
and women owned business enterprises; and
(5)
Contains a summary of:
(A)
All determinations of violations of this article by a contractor or a
contracting agency made during the period covered by the annual report pursuant
to Code Section 50-7-109; and
(B)
The penalties or sanctions, if any, assessed in connection with such
determinations and the rationale for such penalties or sanctions. Copies of the
annual report shall be provided to the commissioner, the Governor, the President
of the Senate, the Speaker of the House of Representatives, the minority leader
of the Senate, and the minority leader of the House of Representatives and shall
also be made widely available to the public.
(e)
Each agency shall include in its annual report to the Governor and the
chairpersons of the Senate Finance Committee and the House Committee on Ways and
Means its annual goals for contracts with minority owned and women owned
business enterprises, the number of actual contracts issued to minority owned
and women owned business enterprises; and a summary of all waivers of the
requirements of subsections (f) and (g) of Code Section 50-7-105 allowed by the
reporting agency during the preceding year, including a description of the basis
of the waiver request and the rationale for granting such waiver. Each agency
shall also include in such annual report whether or not it has been required to
prepare a remedial plan, and, if so, the plan and the extent to which the agency
has complied with each element of the plan.
(f)
Each contracting agency that substantially fails to meet the goals supported by
the disparity study, as defined by regulation of the director, shall be required
to submit to the director a remedial action plan to remedy such
failure.
(g)
If it is determined by the director that any agency has failed to act in good
faith to implement the remedial action plan, pursuant to subsection (f) of this
Code section within one year, the director shall provide written notice of such
a finding, which shall be publicly available, and direct implementation of
remedial actions to:
(1)
Assure that sufficient and effective solicitation efforts to women and minority
owned business enterprises are being made by said agency;
(2)
Divide contract requirements, when economically feasible, into quantities that
will expand the participation of women and minority owned business
enterprises;
(3)
Eliminate extended experience or capitalization requirements, when
programmatically and economically feasible, that will expand participation by
women and minority owned business enterprises;
(4)
Identify specific proposed contracts as particularly attractive or appropriate
for participation by women and minority owned business enterprises with such
identification to result from and be coupled with the efforts of paragraphs (1),
(2), and (3) of this subsection; and
(5)
Upon a finding by the director that an agency has failed to take affirmative
measures to implement the remedial plan and to follow any of the remedial
actions set forth by the director, and in the absence of any objective progress
towards the agency's goals, require some or all of the agency's procurement, for
a specified period of time, be placed under the direction and control of another
agency or agencies.
50-7-109.
Upon
receipt by the director of a complaint by a contracting agency that a contractor
has violated the provisions of a state contract which have been included to
comply with the provisions of this article or of a contractor that a contracting
agency has violated such provisions or has failed or refused to issue a waiver
where one has been applied for pursuant to subsection (f) of Code Section
50-7-104 or has denied such application, the director shall attempt to resolve
the matter giving rise to such complaint. If efforts to resolve such matter to
the satisfaction of all parties are unsuccessful, the director shall refer the
matter, within 30 days of the receipt of the complaint, to the division's
hearing officers. Upon conclusion of the administrative hearing, the hearing
officer shall submit to the director his or her decision regarding the alleged
violation of the contract and recommendations regarding the imposition of
sanctions, fines, or penalties. The director, within ten days of receipt of the
decision, shall file a determination of such matter and shall cause a copy of
such determination along with a copy of this article to be served upon the
contractor by personal service or by certified mail return receipt requested.
The penalties imposed for any violation which is premised upon either a
fraudulent or intentional misrepresentation by the contractor or the
contractor's willful and intentional disregard of the minority and women owned
participation requirement included in the contract may include a determination
that the contractor shall be ineligible to submit a bid to any contracting
agency or be awarded any such contract for a period not to exceed one year
following the final determination; provided, however, that if a contractor has
previously been determined to be ineligible to submit a bid pursuant to this
section, the penalties imposed for any subsequent violation, if such violation
occurs within five years of the first violation, may include a determination
that the contractor shall be ineligible to submit a bid to any contracting
agency or be awarded any such contract for a period not to exceed five years
following the final determination. The division of minority and women's
business development shall maintain a website listing all contractors that have
been deemed ineligible to submit a bid pursuant to this Code section and the
date after which each contractor shall once again become eligible to submit
bids.
50-7-110.
Every
contracting agency shall include a provision in its state contracts expressly
providing that any contractor who willfully and intentionally fails to comply
with the minority and women owned participation requirements of this article as
set forth in such state contract shall be liable to the contracting agency for
liquidated or other appropriate damages and shall provide for other appropriate
remedies on account of such breach. A contracting agency that elects to proceed
against a contractor for breach of contract as provided in this Code section
shall be precluded from seeking enforcement pursuant to Code Section 50-7-109;
provided, however, that the contracting agency shall include a summary of all
enforcement actions undertaken pursuant to this Code section in its annual
report submitted pursuant to subsection (c) of Code Section
50-7-107."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.