S-1608.1 _______________________________________________
SENATE BILL 5834
_______________________________________________
State of Washington 55th Legislature 1997 Regular Session
By Senators Fairley, Winsley, Kohl and McAuliffe
Read first time 02/14/97. Referred to Committee on Commerce & Labor.
AN ACT Relating to providing entrepreneurial opportunities for disabled persons; amending RCW 39.19.010, 39.19.020, 39.19.030, 39.19.060, 39.19.070, 39.19.080, 39.19.120, 39.19.150, 39.19.170, and 39.19.200; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 39.19.010 and 1987 c 328 s 1 are each amended to read as follows:
The
legislature finds that ((minority and women-owned)) businesses owned
by minorities, women, and disabled persons 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 owned and controlled by minorities, women, and disabled persons
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 owned
and controlled by minorities, women, and disabled persons 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. RCW 39.19.020 and 1996 c 69 s 4 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)))
"Broker" means a person that provides a bona fide service, such as
professional, technical, consultant, brokerage, or managerial services and
assistance in the procurement of essential personnel, facilities, equipment, materials,
or supplies required for performance of a contract.
(((3)))
(2) "Director" means the director of the office of minority ((and)),
women's, and disabled persons' business enterprises.
(3) "Disabled person" means a person that has a physical or mental impairment that substantially limits a major life activity.
(4) "Educational institutions" means the state universities, the regional universities, The Evergreen State College, and the community colleges.
(5)
"Goals" means annual overall agency goals, expressed as a percentage
of dollar volume, for participation by ((minority and women-owned and
controlled)) businesses owned and controlled by minorities, women, and
disabled persons 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.
(6) "Goods and/or services" includes professional services and all other goods and services.
(7)
"Office" means the office of minority ((and)), women's,
and disabled persons' business enterprises.
(8) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons.
(9) "Procurement" means the purchase, lease, or rental of any goods or services.
(10) "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.
(11) "State agency" includes the state of Washington and all agencies, departments, offices, divisions, boards, commissions, and correctional and other types of institutions.
Sec. 3. RCW 39.19.030 and 1996 c 69 s 5 are each amended to read as follows:
There
is hereby created the office of minority ((and)), women's, and
disabled persons' 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 ((shall)) may consult with ((the)) a
minority ((and)), women's, and disabled persons' business
enterprises ad hoc advisory committee, established under RCW 39.19.041,
to accomplish the purpose stated in this section.
The office shall:
(1)
Develop, plan, and implement programs to provide an opportunity for
participation by qualified ((minority and women-owned and controlled))
businesses owned and controlled by minorities, women, and disabled persons
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 owned and controlled by
minorities, women, and disabled persons 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 owned and controlled by
minorities, women, and disabled persons in all state agency and educational
institution contracts;
(4)
Establish annual overall goals for participation by qualified ((minority and
women-owned and controlled)) businesses owned and controlled by
minorities, women, and disabled persons 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, and
disabled persons' business enterprise certification list for all state
agencies and educational institutions. No business is entitled to
certification under this chapter unless it meets the definition of small
business concern as established by the office. All applications for
certification under this chapter shall be sworn under oath;
(6) Develop, implement, and operate a system of monitoring compliance with this chapter;
(7)
Adopt rules under chapter 34.05 RCW, the Administrative Procedure Act,
governing: (a) Establishment of agency goals; (b) development and maintenance
of a central minority ((and)), women's, and disabled persons'
business enterprise certification program, including a definition of
"small business concern" which shall be consistent with the small
business requirements defined under section 3 of the Small Business Act, 15
U.S.C. Sec. 632, and its implementing regulations as guidance; (c) procedures
for monitoring and enforcing compliance with goals, regulations, contract
provisions, and this chapter; (d) utilization of standard clauses by state
agencies and educational institutions, as specified in RCW 39.19.050; and (e)
determination of an agency's or educational institution's goal attainment
consistent with the limitations of RCW 39.19.075;
(8) Submit an annual report to the governor and the legislature outlining the progress in implementing this chapter;
(9) Investigate complaints of violations of this chapter with the assistance of the involved agency or educational institution; and
(10)
Cooperate and act jointly or by division of labor with the United States or other
states, and with political subdivisions of the state of Washington and their
respective minority, socially and economically disadvantaged ((and)),
women, and disabled persons business enterprise programs to carry out
the purposes of this chapter. However, the power which may be exercised by the
office under this subsection permits investigation and imposition of sanctions
only if the investigation relates to a possible violation of this
chapter ((39.19 RCW)), and not to violation of local ordinances, rules,
regulations, however denominated, adopted by political subdivisions of the
state.
Sec. 4. RCW 39.19.060 and 1996 c 288 s 28 are each amended to read as follows:
Each
state agency and educational institution shall comply with the annual goals
established for that agency or institution under this chapter for public works
and procuring goods or services. This chapter applies to all public works and
procurement by state agencies and educational institutions, including all
contracts and other procurement under chapters 28B.10, 39.04, 39.29, 43.19, and
47.28 RCW. Each state agency shall adopt a plan, developed in consultation
with the director ((and the advisory committee)), to insure that ((minority
and women-owned)) businesses owned by minorities, women, and disabled
persons are afforded the maximum practicable opportunity to directly and
meaningfully participate in the execution of public contracts for public works
and goods and services. The plan shall include specific measures the agency
will undertake to increase the participation of certified ((minority and
women-owned)) businesses owned by minorities, women, and disabled
persons. The office shall annually notify the governor, the state auditor,
and the joint legislative audit and review committee of all agencies and
educational institutions not in compliance with this chapter.
Sec. 5. RCW 39.19.070 and 1994 c 15 s 1 are each amended to read as follows:
It
is the intent of this chapter that the goals established under this chapter for
participation by ((minority and women-owned and controlled)) businesses owned
and controlled by minorities, women, and disabled persons be achievable.
If necessary to accomplish this intent, contracts may be awarded to the next
lowest responsible bidder in turn, or all bids may be rejected and new bids
obtained, if the lowest responsible 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. 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.
Sec. 6. RCW 39.19.080 and 1987 c 328 s 5 are each amended to read as follows:
(1) A person, firm, corporation, business, union, or other organization shall not:
(a) Prevent or interfere with a contractor's or subcontractor's compliance with this chapter, or any rule adopted under this chapter;
(b) Submit false or fraudulent information to the state concerning compliance with this chapter or any such rule;
(c)
Fraudulently obtain, retain, attempt to obtain or retain, or aid another in
fraudulently obtaining or retaining or attempting to obtain or retain
certification as a minority ((or)), women's, or disabled
persons' business enterprise for the purpose of this chapter;
(d)
Knowingly make a false statement, whether by affidavit, verified statement,
report, or other representation, to a state official or employee for the
purpose of influencing the certification or denial of certification of any
entity as a minority ((or)), women's, or disabled persons'
business enterprise;
(e)
Knowingly obstruct, impede, or attempt to obstruct or impede any state official
or employee who is investigating the qualification of a business entity that
has requested certification as a minority ((or)), women's, or
disabled persons' business enterprise;
(f) Fraudulently obtain, attempt to obtain, or aid another person in fraudulently obtaining or attempting to obtain public moneys to which the person is not entitled under this chapter; or
(g)
Knowingly make false statements that any entity is or is not certified as a
minority ((or)), women's, or disabled persons' business
enterprise for purposes of obtaining a contract governed by this chapter.
(2) Any person or entity violating this chapter or any rule adopted under this chapter shall be subject to the penalties in RCW 39.19.090. Nothing in this section prevents the state agency or educational institution from pursuing such procedures or sanctions as are otherwise provided by statute, rule, or contract provision.
Sec. 7. RCW 39.19.120 and 1987 c 328 s 7 are each amended to read as follows:
The
office shall be the sole authority to perform certification of ((minority
business enterprises, socially and economically disadvantaged business
enterprises, and women's)) business enterprises owned and controlled by
minorities, socially and economically disadvantaged, women, or disabled persons
throughout the state of Washington. Certification by the state office will
allow these firms to participate in programs for these enterprises administered
by the state of Washington, any city, town, county, special purpose district,
public corporation created by the state, municipal corporation, or
quasi-municipal corporation within the state of Washington.
This state-wide certification process will prevent duplication of effort, achieve efficiency, and permit local jurisdictions to further develop, implement, and/or enhance comprehensive systems of monitoring and compliance for contracts issued by their agencies.
Sec. 8. RCW 39.19.150 and 1987 c 328 s 10 are each amended to read as follows:
(1)
Any city, county, town, special purpose district, public corporation created by
the state, municipal corporation, or quasi-municipal corporation having reason
to believe that a particular minority ((and)), women's, or
disabled persons' business enterprise should not have been certified under
RCW 39.19.140 may petition the office for reconsideration. The basis for the
petition may be one or more of the following:
(a) The office's rules or regulations were improperly applied; or
(b)
Material facts relating to the minority ((and)), women's, or
disabled persons' business enterprise's certification application to the
office are untrue.
(2)
The petitioner shall carry the burden of persuasion. The affected minority ((or)),
women's, or disabled persons' business enterprise shall receive notice
of the petition and an opportunity to respond.
(3) After reviewing the information presented in support of and in opposition to the petition, the office shall issue a written decision, granting or denying the petition. If the office grants the petition, it may revoke, suspend, or refuse to renew the certification or impose sanctions under this chapter as appropriate.
(4) The office's decision on a petition is administratively final and the rights of appeal set out in the office regulations shall apply. A certification shall remain in effect while a petition is pending.
Sec. 9. RCW 39.19.170 and 1993 c 512 s 10 are each amended to read as follows:
(1)
State agencies shall not require a performance bond for any public works
project that does not exceed twenty-five thousand dollars awarded to a
prequalified and certified ((minority or woman-owned)) business owned
and controlled by minorities, women, and disabled persons that has been
prequalified as provided under subsection (2) of this section.
(2) A limited prequalification questionnaire shall be required assuring:
(a) That the bidder has adequate financial resources or the ability to secure such resources;
(b) That the bidder can meet the performance schedule;
(c) That the bidder is experienced in the type of work to be performed; and
(d) That all equipment to be used is adequate and functioning and that all equipment operators are qualified to operate such equipment.
Sec. 10. RCW 39.19.200 and 1993 c 195 s 1 are each amended to read as follows:
The
minority ((and)), women's, and disabled persons' business
enterprises account is created in the custody of the state treasurer. All
receipts from RCW 39.19.210, 39.19.220, and 39.19.230 shall be deposited in the
account. Expenditures from the account may be used only for the purposes
defraying all or part of the costs of the office in administering this
chapter. Only the director or the director's designee may authorize
expenditures from the account. Moneys in the account may be spent only after
appropriation.
NEW SECTION. Sec. 11. 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.
NEW SECTION. Sec. 12. If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. The rules under this act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the state.
NEW SECTION. Sec. 13. Contracts entered into before September 1, 1997, are not subject to this act.
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