BILL REQ. #:  H-0760.2 

Read first time 02/05/13.   Referred to Committee on Technology & Economic Development.

     AN ACT Relating to increasing the regulatory oversight and accountability of the office of minority and women's business enterprises; amending RCW 39.19.020, 39.19.080, 39.19.090, and 39.19.200; and prescribing penalties.

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

Sec. 1   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) "Contractor" means an individual or entity granted state certification and awarded a contract with an agency to perform a service or provide goods.
     (4) "Debar" means to prohibit a contractor, individual, or other entity from submitting a bid, having a bid considered, or entering into a state contract during a specified period of time as set forth in a debarment order.
     (5) "Director" means the director of the office of minority and women's business enterprises.
     (((4))) (6) "Educational institutions" means the state universities, the regional universities, The Evergreen State College, and the community colleges.
     (((5))) (7) "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.
     (((6))) (8) "Goods and/or services" includes professional services and all other goods and services.
     (((7))) (9) "Office" means the office of minority and women's business enterprises.
     (((8))) (10) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons.
     (((9))) (11) "Procurement" means the purchase, lease, or rental of any goods or services.
     (((10))) (12) "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))) (13) "State agency" includes the state of Washington and all agencies, departments, offices, divisions, boards, commissions, and correctional and other types of institutions.

Sec. 2   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))) (1) Prevent or interfere with a contractor's or subcontractor's compliance with this chapter, or any rule adopted under this chapter;
     (((b))) (2) Submit false or fraudulent information to the state concerning compliance with this chapter or any such rule;
     (((c))) (3) 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 business enterprise for the purpose of this chapter;
     (((d))) (4) 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 business enterprise;
     (((e))) (5) 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 business enterprise;
     (((f))) (6) 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))) (7) Knowingly make false statements that any entity is or is not certified as a minority or women's 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. 3   RCW 39.19.090 and 1987 c 328 s 6 are each amended to read as follows:
     (1)(a) If a person, firm, corporation, or business does not comply with any provision of this chapter other than RCW 39.19.080, or does not comply with a contract requirement established under this chapter, the state may ((withhold)) impose one or more of the following penalties: Withholding payment, ((debar)) decertifying the contractor, debarring the contractor, ((suspend, or terminate)) suspending or terminating the contract ((and subject)), or subjecting the contractor to civil penalties of up to ten percent of the amount of the contract or up to five thousand dollars for each violation. ((The office shall adopt, by rule, criteria for the imposition of penalties under this section. Wilful))
     (b) If a person, firm, corporation, or business commits any of the activities prohibited in RCW 39.19.080, the state must impose one or more of the following penalties: Withholding payment, decertifying the contractor, debarring the contractor for a period between one and three years, terminating the contract, or subjecting the contractor to civil penalties of between two and ten percent of the amount of the contract or between one and five thousand dollars for each violation.
     (c) In addition to any other penalties imposed, willful repeated violations, exceeding a single violation, ((may)) must disqualify the contractor from further participation in state contracts for a period of ((up to)) three years. A willful violation includes a conscious or deliberate false statement, misrepresentation, omission, or concealment of a material fact, with the specific intent of obtaining, continuing, or increasing benefits under this chapter.
     (2) 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.
     (3) The office shall follow administrative procedures under chapter 34.05 RCW in determining a violation and imposing penalties under this chapter. The office shall adopt, by rule, criteria for the imposition of penalties under this section. The rule may incorporate the debarment process authorized for the department of enterprise services in RCW 39.26.200.
     (4)(a) An investigation unit is established within the office for the purpose of detecting and investigating fraud and violations of this chapter. The office must employ qualified personnel for the unit.
     (b) The director and the investigation unit are authorized to receive criminal history record information that includes nonconviction data for any purpose associated with the investigation of fraud or for violations of this chapter. Dissemination or use of nonconviction data for purposes other than that authorized in this section is prohibited.
     (c) For the purpose of any investigation or proceeding under this chapter, the director or the director's designee may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the director deems relevant or material to the inquiry.
     (d) Subpoenas issued under this section may be enforced under RCW 34.05.588.
     (5) The procedures and sanctions in this section are not exclusive; nothing in this section prevents the state agency or educational institution administering the contracts from pursuing such procedures or sanctions as are otherwise provided by statute, rule, or contract provision.

Sec. 4   RCW 39.19.200 and 1993 c 195 s 1 are each amended to read as follows:
     The minority and women's 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 and civil penalties imposed under RCW 39.19.090 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.