BILL REQ. #: H-1587.1
State of Washington | 63rd Legislature | 2013 Regular Session |
READ FIRST TIME 02/22/13.
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, 39.19.060, 39.19.080, 39.19.090, 39.19.200, and 39.19.250; 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 either a direct contract with an agency or an
indirect contract as a subcontractor 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 39.19.060 and 1996 c 288 s 28 are each amended to read
as follows:
(1) 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)) 39.26, 43.19, and 47.28 RCW.
(2) 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 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.
(3) Of all state agencies and educational institutions, the office
must annually identify those: (a) In the lowest quintile of
utilization of minority and women-owned contractors as a percentage of
all contracts issued by the agency; (b) in the lowest quintile of the
dollar value awarded to minority and women-owned contractors as a
percentage of the dollar value of all contracts issued by the agency;
and (c) that are performing significantly below their established
goals, as determined by the office. The office must meet with each
identified agency to review its plan and identify available tools and
actions for increasing participation.
(4) 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. 3 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. 4 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 or the director's designee deems relevant or
material to the inquiry.
(d) Subpoenas issued under this section may be enforced under RCW
34.05.588.
(e) The investigation unit must annually:
(i) Conduct a site review of a minimum of three percent of persons,
firms, corporations, or businesses awarded a contract under this
chapter;
(ii) Submit a response for all complaints for investigation made by
an external agency to the agency submitting the complaint;
(iii) Develop and implement a process for prioritizing and
conducting thorough investigations of persons, firms, corporations, or
businesses identified by an external complaint and determined to be the
highest priority for the agency; and
(iv) Develop and implement a process for prioritizing and
conducting thorough investigations of persons, firms, corporations, or
businesses internally identified and determined to be the highest
priority for the agency.
(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. 5 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.
Sec. 6 RCW 39.19.250 and 2009 c 348 s 2 are each amended to read
as follows:
(1) For the purpose of annual reporting on progress required by
((section 1 of this act)) RCW 39.19.020, each state agency and
educational institution shall submit data to the office and the office
of minority and women's business enterprises on the participation by
qualified minority and women-owned and controlled businesses in the
agency's or institution's contracts and other related information
requested by the director. The director of the office of minority and
women's business enterprises shall determine the content and format of
the data and the reporting schedule, which must be at least annually.
(2) The office must develop and maintain a list of contact people
at each state agency and educational institution ((that is)) who are
able to present to hearings of the appropriate committees of the
legislature its progress in carrying out the purposes of chapter 39.19
RCW.
(3) The office must submit a report aggregating the data received
from each state agency and educational institution, and the information
identified and actions taken under RCW 39.19.060(3) and 39.19.090(4),
to the legislature and the governor.