AN ACT Relating to nondiscrimination under state contracts; adding a new chapter to Title 39 RCW; adding new sections to chapter 43.131 RCW; prescribing penalties; providing an expiration date; and providing an effective date.

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

NEW SECTION. Sec. 1. By enacting chapter 49.60 RCW, the legislature found that practices of discrimination against any of the state's inhabitants because of race, creed, color, national origin, sex, marital status, age, or the presence of any sensory, mental, or physical handicap are a matter of state concern and that such discrimination threatens not only the rights and proper privileges of its inhabitants, but menaces the institutions and foundation of a free democratic state. As a trustee of public funds, the state has a continuing responsibility to expend those funds only on contractors and suppliers of goods and services that do not discriminate and to deposit state funds in financial institutions that do not practice discrimination.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Affirmative action" means a procedure by employers by which racial minorities, women, persons in the protected age category, persons with disabilities, Vietnam-era veterans, and disabled veterans are provided with increased employment opportunities. It does not mean any sort of quota system.

(2) "Commission" means the Washington state human rights commission.

(3) "Contract" includes any agreement with a state agency for the construction, alteration, or repair of any public building, public highway, or other public work and any agreement with a state agency for the purchase, lease, or furnishing of goods, real or personal property, or services, including utility services, investment services, transportation (including bills of lading), research, insurance, and consultants. "Contract" does not include agreements creating the relationship of employee with the contracting agency.

(4) "Contractor" or "state contractor" means an employer, as defined in RCW 49.60.040, who (a) has contracts totaling one hundred thousand dollars of state public works contracts in any fiscal year or (b) has state contracts for goods and services totaling more than ten thousand dollars, and who employs fifty or more employees. The term includes financial institutions which invest state moneys or serve as a depository for state funds regardless of amount.

(5) "State agency" means any officer or agency of the state of Washington, including educational institutions governed by boards appointed by the governor.

NEW SECTION. Sec. 3. Contractors whether in or out of the state of Washington submitting a bid for a state contract shall submit to the requesting agency for review and approval by the commission an affirmative action plan, consistent with the office of federal contract compliance programs' guidelines, designed to increase opportunities in all aspects of employment for racial minorities, women, persons in the protected age category, persons with disabilities, Vietnam-era veterans, and disabled veterans. All affirmative action plans shall affect opportunities for the categories listed above except as otherwise provided in this section. Any contractor who has an affirmative action plan or conciliation agreement approved by the office of federal contract compliance, or analogous agency, within the preceding thirteen months shall be considered by the commission to have an approved plan for state contract purposes.

Implementation of the review and approval processes shall encompass every contractor bidding as of a specific date, or be based on a random selection method adopted by the commission. No contractor may be placed at a disadvantage on a state contract or have awarding of the contract delayed because of a backlog in processing affirmative action plans or because of a complaint which has not been resolved under section 5, 7, or 8 of this act.

When there is participating state and federal funds on a singular contract, compliance with federal guidelines shall prevail. Contractors bidding for the first time shall submit an affirmative action plan with the bid. When a commission approved affirmative action plan is included within the specifications of a construction contract, contractors shall not be required to submit a separate plan.

NEW SECTION. Sec. 4. The commission shall have the following powers and duties:

(1) Investigate the employment practices of any state contractor to determine compliance with this chapter.

(2) Review and approve or disapprove affirmative action plans submitted by contractors currently doing business with the state.

(3) Develop, adopt, and implement rules governing the affirmative action plans, including the form and content of the plans, consistent with the guidelines established by the office of federal contract compliance programs, including procedures for developing affirmative action goals, timetables, standard contract clauses, and such other rules as may be necessary to effectuate the purpose of this chapter.

(4) In appropriate cases, notify state agencies, the United States equal employment opportunity commission, office of federal contract compliance programs, or other appropriate federal, state, or local agencies whenever it has reason to believe that any contractor is not in compliance with this chapter.

(5) Develop, adopt, and implement rules governing an optional annual affirmative action employment and supplier plan for goods and services contractors which satisfies both affirmative action and minority and women's business enterprises compliance goals.

(6) Issue declaratory rulings pursuant to RCW 34.04.080 on the application of this chapter and any implementing rules.

(7) Advise state agencies, contractors, and others on the policy of this chapter and practices under it.

NEW SECTION. Sec. 5. Following the procedures in RCW 49.60.230 and 49.60.240 to the extent applicable, the commission shall receive or initiate complaints of discrimination or noncompliance with this chapter, investigate the complaints, make findings as to whether or not there is reasonable cause to believe that a person is not in compliance, and attempt to achieve compliance by conference, conciliation, and persuasion. If an agreement is reached for compliance, it shall be reduced to writing and issued as an order of the commission.

NEW SECTION. Sec. 6. If no agreement can be reached for compliance, then the commission may take one or more of the following actions:

(1) Acceptance of a corrective action plan which shall include a contractor's written and signed commitment outlining actions taken or proposed, with time limits and goals, to correct, compensate for, and remedy each violation of equal opportunity requirements as specified in a list of deficiencies;

(2) Recommend that the contracting state agency enforce sanctions clauses of the contract; or

(3) File an action in superior court and petition the court to enforce the sanctions clauses of the contract.

NEW SECTION. Sec. 7. If a person, firm, corporation, or business does not comply with any provision or provides any fraudulent information concerning compliance with any provision of a contract required under sections 3 through 6 of this act, the state may withhold payment on, debar, suspend, or terminate the contract and subject the contractor to civil penalties of ten percent of the amount of the contract or five thousand dollars, whichever is less. Wilful repeated violations, exceeding a single violation, may disqualify the contractor from further participation in state contracts for a period of one year.

After an administrative hearing by the state agency or educational institution pursuant to chapter 34.04 or 28B.16 RCW, as the case may be, and after the exhaustion of administrative remedies, any adverse decision under this section may be appealed to any superior court in any county where the alleged violation occurred. The prevailing party in any hearing or court action is entitled to attorneys' fees and court costs.

NEW SECTION. Sec. 8. If necessary to effectuate the purposes of this chapter, contracts shall be awarded to other than the lowest bidder if the lowest bidder fails or refuses to adopt or implement an affirmative action plan approved by the commission. Under no circumstances may the contract be awarded to other than the lowest bidder for the sole reason that the lowest bidder has not achieved a specified numerical or percentage goal or timetable.

NEW SECTION. Sec. 9. Enforcement of the provisions of this chapter shall rest solely with the state when contracts involve the expenditure of state funds for public works or goods and services. All complaints arising out of a particular contract must be filed with either the commission or the appropriate municipal corporation as defined in RCW 39.50.010. A person may file a complaint with only one enforcement agency.

NEW SECTION. Sec. 10. All local governmental entities having affirmative action review or compliance programs shall honor, or treat as effective, commission approval of any affirmative action plan, except in cases where federal law prevails. As otherwise permitted by law, a local entity may continue to investigate and enforce compliance with an approved plan when public expenditures on a contract are limited to local entity funds.

NEW SECTION. Sec. 11. The commission, in consultation with the office of minority and women's business enterprises, shall examine methods to reduce any duplication of functions between the office of minority and women's business enterprises and the commission and shall make a report of its findings to the legislature.

NEW SECTION. Sec. 12. A new section is added to chapter 43.131 RCW to read as follows:

The affirmative action related powers and duties of the state human rights commission authorized under sections 1 through 11 of this act shall be terminated on June 30, 1993, as provided in section 13 of this act.

NEW SECTION. Sec. 13. A new section is added to chapter 43.131 RCW to read as follows:

The following acts or parts of acts, as now or hereafter amended, are each repealed, effective June 30, 1994:

(1) Section 1 of this act and RCW 39.--.---;

(2) Section 2 of this act and RCW 39.--.---;

(3) Section 3 of this act and RCW 39.--.---;

(4) Section 4 of this act and RCW 39.--.---;

(5) Section 5 of this act and RCW 39.--.---;

(6) Section 6 of this act and RCW 39.--.---;

(7) Section 7 of this act and RCW 39.--.---;

(8) Section 8 of this act and RCW 39.--.---;

(9) Section 9 of this act and RCW 39.--.---;

(10) Section 10 of this act and RCW 39.--.---; and

(11) Section 11 of this act and RCW 39.--.---.

NEW SECTION. Sec. 14. The sum of three hundred fifty thousand dollars, or so much thereof as may be necessary, is appropriated from the general fund to the state human rights commission for the biennium ending June 30, 1989, to carry out the purposes of this act.

NEW SECTION. Sec. 15. Sections 1 through 11 of this act shall constitute a new chapter in Title 39 RCW.

NEW SECTION. Sec. 16. This act shall take effect December 31, 1987, and shall apply to contracts advertised for bids on or after that date.