S-1869               _______________________________________________

 

                                                   SENATE BILL NO. 4304

                        _______________________________________________

 

State of Washington                              49th Legislature                              1985 Regular Session

 

By Senator Bottiger

 

 

Read first time 2/8/85 and referred to Committee on Governmental Operations.

 

 


AN ACT Relating to minority and women-owned business enterprises; amending RCW 39.19.010, 39.19.020, 39.19.030, 39.19.070, and 39.19.080; and adding a new section to chapter 39.19 RCW.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

        Sec. 1.  Section 1, chapter 120, Laws of 1983 and RCW 39.19.010 are each amended to read as follows:

          The legislature finds that minority and women-owned  businesses are significantly under-represented and have been denied equitable competitive opportunities in contracting.  It is the intent of this chapter to mitigate societal discrimination and other factors in participating in public works and in providing goods and services and to delineate a policy that an increased level of participation by minority and women-owned and controlled businesses is desirable at all levels of state government.  The purpose and intent of this chapter are to provide the maximum practicable opportunity for increased participation by minority and women-owned and controlled businesses in participating in public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector.

 

        Sec. 2.  Section 2, chapter 120, Laws of 1983 and RCW 39.19.020 are each amended to read as follows:

          Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

          (1) "Advisory committee" means the advisory committee on minority and women's business enterprises.

          (2) "Director" means the director of the office of minority and women's business enterprises.

          (3) "Educational institutions" means the state universities, the regional universities, The Evergreen State College,  and the community colleges.

          (4) "Goals" means annual overall agency goals, expressed as a percentage of dollar volume, for participation by minority and women-owned and controlled businesses and shall not be construed as a minimum goal for any particular contract or for any particular geographical area.  It is the intent of this chapter that such overall agency goals shall be achievable and shall be met on a contract-by-contract or class-of-contract basis.

          (5) "Goods and/or services" includes professional services and all other goods and services.

          (6) "Impacted small business" means a corporation, partnership, or other legal entity formed for the purpose of making a profit, which is independently owned and operated from all other businesses and which has fifty or fewer employees.  The term shall not include a general contractor who employs or superintends additional subcontractors for a single contract or project where the total employment of such contractors and subcontractors exceeds fifty employees.  The term shall also not apply to any legal entity which does not provide a commercially useful function or provides a function not present in a lower bid on a contract.  Any entity failing to satisfy the requirements of this definition shall be treated as any other business under this chapter.

          For purposes of this definition, "subcontractor" means any business or similar legal entity providing goods or services to a contractor for profit, if such goods or services are procured or used in fulfillment of the contractor's obligation arising from a contract with a state agency, but shall not include businesses providing goods to a contractor whose contract with the state agency is for the provision of materials, equipment, or supplies.

          (7) "Office" means the office of minority and women's business enterprises.

          (((7))) (8) "Procurement" means the purchase, lease, or rental of any goods or services.

          (((8))) (9) "Public works" means all work, construction, highway and ferry construction, alteration, repair, or improvement other than ordinary maintenance, which a state agency or educational institution is authorized or required by law to undertake.

          (((9))) (10) "State agency" includes the state of Washington and all agencies, departments, offices, divisions, boards, commissions, and correctional and other types of institutions.

 

        Sec. 3.  Section 3, chapter 120, Laws of 1983 and RCW 39.19.030 are each amended to read as follows:

          There is hereby created the office of minority and women's business enterprises.  The governor shall appoint a director for the office, subject to confirmation by the senate.  The director may employ a deputy director and a confidential secretary, both of which shall be exempt under chapter 41.06 RCW, and such staff as are necessary to carry out the purposes of this chapter.

          The office, with the advice and counsel of the advisory committee on minority and women's business enterprises, shall:

          (1) Develop, plan, and implement programs to provide an opportunity for participation by qualified minority and women-owned and controlled businesses in public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector;

          (2) Develop a comprehensive plan insuring that qualified minority and women-owned and controlled businesses are provided an opportunity to participate in public contracts for public works and goods and services;

          (3) Identify barriers to equal participation by qualified minority and women-owned and controlled businesses in all state agency and educational institution contracts;

          (4) Establish annual overall goals for participation by qualified minority and women-owned and controlled businesses for each state agency and educational institution to be administered on a contract-by-contract basis or on a class-of-contracts basis;

          (5) Develop and maintain a central minority and women's business enterprise certification list for all state agencies and educational institutions.  Certification, temporary certification, or rejection for cause, shall be processed by the office within one calendar month of application.  Size of business or length of time in business shall not be considered a prerequisite for the certification list;

          (6) Develop, implement, and operate a system of monitoring compliance with this chapter;

          (7) Adopt rules under chapter 34.04 or 28B.19 RCW, as appropriate, governing:  (a) Establishment of agency goals; (b) development and maintenance of a central minority and women's business enterprise certification program; (c) procedures for monitoring and enforcing compliance with goals, regulations, contract provisions, and this chapter; and (d) utilization of standard clauses by state agencies and educational institutions, as specified in RCW 39.19.050; and

          (8) Submit an annual report to the governor and the legislature outlining the progress and economic impact on the public and private sectors of implementing this chapter.  The annual report shall contain a section for input critical of the office.  The section shall be compiled by the department of commerce and economic development, or its successor entity, which may receive or include input from any department, association, agency, or business impacted by this chapter.

 

        Sec. 4.  Section 7, chapter 120, Laws of 1983 and RCW 39.19.070 are each amended to read as follows:

          (1) It is the intent of this chapter that the goals established under this chapter for participation by minority and women-owned and controlled businesses be achievable.  If necessary to accomplish this intent, ((contracts shall be awarded to the next lowest   bidder, or all bids may be rejected and new bids obtained, if the lowest bidder does not meet the goals established for a particular contract under this chapter.  The dollar value of the total contract used for the calculation of the specific contract goal may be increased or decreased to reflect executed change orders)) where the lowest bid on a particular contract does not meet the established goals, the contract may be awarded to the next lowest responsive bidder.  Where no bid on a particular contract meets the established goals, the contract shall be awarded to the lowest otherwise responsive bidder who does not meet the goals.  No contract is to be rebid for the sole reason that no bid met the established goals.  An apparent low-bidder must be in compliance with the contract provisions required under this chapter as a condition precedent to the granting of a notice of award by any state agency or educational institution.      (2) The preference in bidding created by this section is meant to breakdown discriminatory entry barriers and not perpetuate artificial businesses.  Therefore, for purposes of determining whether a bid meets the established goals, any bids by a minority or women-owned and controlled business which has been certified for more than three years shall be considered nonresponsive except where such bid is included as a subcontractor's bid or supplier's bid within a larger bid by any other contractor or business.  Any minority or women-owned and controlled business which restructures or reorganizes in order to escape the time limit shall not be certified.  For purposes of determining whether a contract awarded to an impacted small business satisfies agency annual goals, such an award is nonresponsive.

          (3) For purposes of determining whether a bid meets the established goals, any complete bid by an impacted small business shall be considered responsive except where that bid is included within a larger bid for a single contract.

          (4) Businesses bidding for commercial product contracts shall be considered responsive for the respective goal if the business has an annual federal or office approved disadvantaged business plan in compliance with Public Law 95-507, or a comparable women's business plan.  As part of its goal establishing authority, the office may come up with similar annual plans to mitigate the adverse impacts of this chapter on businesses involved with other types of contracts.

 

          NEW SECTION.  Sec. 5.  A new section is added to chapter 39.19 RCW to read as follows:

          Certification by the office shall hereby be honored and effective in all minority or women's business enterprise programs within the boundaries of the state, including programs or ordinances which attempt to assist or restrict any business based on minority or women ownership or control or similar criteria in the procurement of authorized public contracts.  No definition of minority, ownership, control, or similar restriction by any other state, county, city, town, or other municipal governmental entity may exclude from such a program any enterprise certified under the rules adopted by the office.

 

        Sec. 6.  Section 8, chapter 120, Laws of 1983 and RCW 39.19.080 are each amended to read as follows:

          If a person, firm, corporation, business, union, or other organization prevents or interferes with a contractor's or subcontractor's compliance with this chapter, or any rule  adopted under this chapter, or submits false or fraudulent information to the state concerning compliance with this chapter or any such rule, or violates this chapter or any rule adopted under this chapter, the person or entity shall be subject to a fine not to exceed one thousand  dollars, in addition to any other penalty or sanction prescribed by law.

          After an administrative hearing and findings of fact by the state agency or educational institution and after the exhaustion of administrative remedies, any adverse decision under this section may be appealed to Thurston county superior court or to any superior court in any county where the alleged violation occurred.

          All applications for certification under this chapter shall be sworn under oath.

 

          NEW SECTION.  Sec. 7.     If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.