State Codes and Statutes

State Codes and Statutes

Statutes > California > Pcc > 10115-10115.15

PUBLIC CONTRACT CODE
SECTION 10115-10115.15



10115.  (a) The Legislature finds and declares all of the following:
   (1) The essence of the American economic system of private
enterprise is free competition. Only through full and free
competition can free markets, reasonable and just prices, free entry
into business, and opportunities for the expression and growth of
personal initiative and individual judgment be assured. The
preservation and expansion of that competition is basic to the
economic well-being of this state and that well-being cannot be
realized unless the actual and potential capacity of minority, women,
and disabled veteran business enterprises is encouraged and
developed. Therefore, it is the declared policy of the state to aid
the interests of minority, women, and disabled veteran business
enterprises in order to preserve reasonable and just prices and a
free competitive enterprise, to ensure that a fair proportion of the
total number of contracts or subcontracts for commodities, supplies,
technology, property, and services are awarded to minority, women,
and disabled veteran business enterprises, and to maintain and
strengthen the overall economy of the state.
   (2) The opportunity for full participation in our free enterprise
system by minority, women, and disabled veteran business enterprises
is essential if this state is to attain social and economic equality
for those businesses and improve the functioning of the state
economy.
   (3) State agencies which have established short- and long-range
minority, women, and disabled veteran participation goals are
awarding 23 percent or more of their contracts to these business
enterprises.
   (4) It is in the state's interest to expeditiously improve the
economically disadvantaged position of minority, women, and disabled
veteran business enterprises.
   (5) The economic position of these businesses can be improved by
providing long-range substantial goals for procurement by state
agencies of commodities, professional services, and construction work
from minority, women, and disabled veteran businesses.
   (6) Procurement by state agencies of goods and services from these
businesses also benefits the state agencies and the citizens of the
state by encouraging the expansion of the number of vendors for
procurements, thereby encouraging competition among the vendors and
promoting economic efficiency in the process.
   (b) It is the purpose of this article to do all of the following:
   (1) Encourage greater economic opportunity for minority, women,
and disabled veteran business enterprises.
   (2) Promote competition among state agencies in order to enhance
long-term economic efficiency in the procurement of construction,
commodities, and professional services contracts.
   (3) Clarify and expand the program for the procurement by state
agencies of commodities, professional services, and construction work
from minority, women, and disabled veteran business enterprises.
   (c) Notwithstanding any other provision of law, contracts awarded
by any state agency, department, officer, or other state governmental
entity for construction, professional services (except those subject
to Chapter 6 (commencing with Section 16850) of Part 3 of Division 4
of Title 2 of the Government Code), materials, supplies, equipment,
alteration, repair, or improvement shall have statewide participation
goals of not less than 15 percent for minority business enterprises,
not less than 5 percent for women business enterprises and 3 percent
for disabled veteran business enterprises. These goals apply to the
overall dollar amount expended each year by the awarding department,
as defined by Section 10115.1, pursuant to this article.




10115.1.  As used in this article, the following definitions apply:
   (a) "Awarding department" means any state agency, department,
governmental entity, or other officer or entity empowered by law to
enter into contracts on behalf of the State of California.
   (b) "Contract" includes any agreement or joint development
agreement to provide labor, services, material, supplies, or
equipment in the performance of a contract, franchise, concession, or
lease granted, let, or awarded for and on behalf of the State of
California.
   (c) "Contractor" means any person or persons, regardless of race,
color, sex, ethnic origin or ancestry, or any firm, partnership,
corporation, or combination thereof, whether or not a minority or
women business enterprise, who submits a bid and enters into a
contract with a representative of a state agency, department,
governmental entity, or other officer empowered by law to enter into
contracts on behalf of the State of California.
   (d) "Minority," for purposes of this section, means a citizen or
lawful permanent resident of the United States who is an ethnic
person of color and who is: Black (a person having origins in any of
the Black racial groups of Africa); Hispanic (a person of Mexican,
Puerto Rican, Cuban, Central or South American, or other Spanish or
Portuguese culture or origin regardless of race); Native American (an
American Indian, Eskimo, Aleut, or Native Hawaiian); Pacific-Asian
(a person whose origins are from Japan, China, Taiwan, Korea,
Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, or the United
States Trust Territories of the Pacific including the Northern
Marianas); Asian-Indian (a person whose origins are from India,
Pakistan, or Bangladesh); or any other group of natural persons
identified as minorities in the respective project specifications of
an awarding department or participating local agency.
   (e) "Minority business enterprise" means a business concern that
meets all of the following criteria:
   (1) The business is an individual proprietorship, partnership,
corporation, or joint venture at least 51 percent owned by one or
more minorities or, in the case of any business whose stock is
publicly held, at least 51 percent of the stock is owned by one or
more minorities.
   (2) A business whose management and daily operations are
controlled by one or more minorities who own the business.
   (3) A business concern with its home office located in the United
States which is not a branch or subsidiary of a foreign corporation,
firm, or other business.
   (f) "Women business enterprise" means a business concern that
meets all of the following criteria:
   (1) The business is an individual proprietorship, partnership,
corporation, or joint venture at least 51 percent owned by one or
more women or, in the case of any business whose stock is publicly
held, at least 51 percent of the stock is owned by one or more women.
   (2) A business whose management and daily operations are
controlled by one or more women who own the business.
   (3) A business concern with its home office located in the United
States which is not a branch or subsidiary of a foreign corporation,
firm, or other business.
   (g) "Goal" means a numerically expressed objective that awarding
departments and contractors are required to make efforts to achieve.



10115.2.  In awarding contracts to the lowest responsible bidder,
the awarding department shall consider the efforts of a bidder to
meet minority business enterprise, women business enterprise, and
disabled veteran business enterprise goals set forth in this article.
The awarding department shall award the contract to the lowest
responsible bidder meeting these goals.



10115.3.  (a) The awarding department shall establish a method of
monitoring adherence to the goals specified in this article.
   (b) The awarding department shall adopt rules and regulations for
the purpose of implementing this article. Emergency regulations
consistent with this section may be adopted.



10115.4.  In implementing this article, the awarding department
shall utilize existing resources such as the Office of Small and
Minority Business, the Minority Business Development Agency, and the
Small Business Administration.


10115.6.  Notwithstanding any other provision of this article, the
failure of an awarding department to meet the goals established under
this article shall not affect the validity or enforceability of any
contract or any bonds, notes, or other obligations issued by the
awarding department to provide for the payment of any contract
subject to this article.



10115.7.  (a) Nothing in this article shall be construed to
authorize any awarding department to discriminate in the awarding of
any contract on the basis of ancestry or any characteristic listed or
defined in Section 11135 of the Government Code.
   (b) Nothing in this article shall be construed to authorize any
contractor to discriminate in the solicitation or acceptance of bids
for subcontracting, or for materials or equipment, on the basis of
ancestry or any characteristic listed or defined in Section 11135 of
the Government Code.


10115.8.  If any provision of this article or the application
thereof to any person or circumstances is held invalid, that
invalidity shall not affect other provisions or applications of the
article which can be given effect without the invalid provision or
application, and to this end the provisions of this article are
severable.



10115.9.  A limited liability company may be certified as a disabled
veteran business enterprise pursuant to this article if the limited
liability company is wholly owned by one or more disabled veterans.



10115.10.  (a) It shall be unlawful for a person or firm to:
   (1) Knowingly and with intent to defraud, fraudulently obtain,
retain, attempt to obtain or retain, or aid another in fraudulently
obtaining or retaining or attempting to obtain or retain, acceptance
or certification as a minority, women, or disabled veteran business
enterprise, for the purposes of this article.
   (2) Willfully and knowingly make a false statement with the intent
to defraud, whether by affidavit, report, or other representation,
to a state official or employee for the purpose of influencing the
acceptance or certification or denial of acceptance or certification
of any entity as a minority, women, or disabled veteran business
enterprise.
   (3) Willfully and knowingly obstruct, impede, or attempt to
obstruct or impede, any state official or employee who is
investigating the qualifications of a business entity which has
requested acceptance or certification as a minority, women, or
disabled veteran business enterprise.
   (4) Knowingly and with intent to defraud, fraudulently obtain,
attempt to obtain, or aid another person or firm in fraudulently
obtaining or attempting to obtain, public moneys to which the person
is not entitled under this article.
   (5) Establish, or cooperate in the establishment of, or exercise
control over, a firm found to have violated any of paragraphs (1) to
(4), inclusive. Any person or firm who violates this paragraph is
guilty of a misdemeanor and shall be liable for a civil penalty not
to exceed fifty thousand dollars ($50,000) for the first violation,
and a civil penalty not to exceed two hundred thousand dollars
($200,000) for each additional, or subsequent violation.
   (6) This section shall not apply to minority and women business
enterprise programs conducted by public utility companies pursuant to
the California Public Utilities Commission's General Order 156.
   (b) Any person who violates paragraphs (1) to (4), inclusive, of
subdivision (a) is guilty of a misdemeanor and shall be liable for a
civil penalty not to exceed five thousand dollars ($5,000) for the
first violation, and a civil penalty not to exceed twenty thousand
dollars ($20,000) for each additional or subsequent violation.
   (c) Any person or firm that violates subdivision (a) shall, in
addition to the penalties provided for in subdivision (b), be
suspended from bidding on, or participating as either a contractor,
subcontractor, or supplier in, any state contract or project for a
period of not less than 30 days nor more than one year. However, for
an additional or subsequent violation the period of suspension shall
be extended for a period of up to three years. Any person or firm
that fails to satisfy the penalties imposed pursuant to subdivisions
(b) and (c) shall be prohibited from further contracting with the
state until the penalties are satisfied.
   (d) The awarding department shall report all alleged violations of
this section to the Office of Small and Minority Business. The
office shall subsequently report all alleged violations to the
Attorney General who shall determine whether to bring a civil action
against any person or firm for violation of this section.
   (e) The office shall monitor the status of all reported violations
and shall maintain and make available to all state departments a
central listing of all firms and persons who have been determined to
have committed violations resulting in suspension.
   (f) No awarding department shall enter into any contract with any
person or firm suspended for violating this section during the period
of the person's or firm's suspension. No awarding department shall
award a contract to any contractor utilizing the services of any
person or firm as a subcontractor suspended for violating this
section during the period of the person's or firm's suspension.
   (g) The awarding department shall check the central listing
provided by the office to verify that the person, firm, or contractor
to whom the contract is being awarded, or any person or firm being
utilized as a subcontractor by that person, firm, or contractor, is
not under suspension for violating this section.



10115.11.  (a) Notwithstanding any other provision of this article,
statewide participation goals for contracts let by the Department of
Corrections shall be exclusive of inmate day labor contracts.
   (b) The goals established in this article shall also apply to the
overall dollar amount expended each year on contracts let by the
California Department of Corrections for the purposes of services,
maintenance, and supplies excluding contracts for services for inmate
medical needs.



10115.12.  (a) Any awarding department taking bids in connection
with the award of any contract shall provide in the general
conditions under which bids will be received, that any person making
a bid or offer to perform a contract shall, in his or her bid or
offer, set forth the following information:
   (1) The name and the location of the place of business of each
subcontractor certified as a minority, women, or disabled veteran
business enterprise who will perform work or labor or render service
to the prime contractor in connection with the performance of the
contract and who will be used by the prime contractor to fulfill
minority, women, and disabled veteran business enterprise
participation goals.
   (2) The portion of work that will be done by each subcontractor
under paragraph (1). Except in cases of emergency where a contract is
necessary for the immediate preservation of the public health,
welfare, or safety, or protection of state property, the prime
contractor shall list only one subcontractor for each portion of work
as is defined by the prime contractor in his or her bid or offer.
   (b) The Subletting and Subcontracting Fair Practices Act (Chapter
4 (commencing with Section 4100) of Part 1 shall apply to the
information required by subdivision (a) relating to subcontractors
certified as minority, women, or disabled veteran business
enterprises.
   (c) For purposes of this section, "subcontractor" and "prime
contractor" shall have the same meaning as those terms are defined in
Section 4113.
   (d) As used in this section, "contract" does not include a
contract negotiated pursuant to Chapter 10 (commencing with Section
4525) of Division 5 of Title 1 of the Government Code.



10115.13.  Notwithstanding any other provision of law, contracts
awarded by any state agency, department, officer, or other state
governmental entity for the purchase of general public advertisements
shall have statewide participation goals of not less than 15 percent
for minority business enterprises, not less than five percent for
women business enterprises, and three percent for disabled veteran
business enterprises. These goals apply to the overall dollar amount
expended each year by the awarding state agency, department, offices,
or other state governmental entity.



10115.15.  (a) Notwithstanding Section 10115.2, when awarding
contracts for materials, supplies, or equipment, including electronic
data processing goods and services, an awarding department shall
accept the submission by a bidder of a minority, women, and disabled
veteran business enterprise utilization plan that has been approved
prior to the solicitation due date by the Department of General
Services. A business utilization plan shall be considered approved by
the Department of General Services as of the date submitted to the
department so long as the plan meets the minimum criteria established
in paragraphs (1) to (12), inclusive, and shall be valid for a
period of one year, unless the department has audited the utilization
plan, as authorized under subdivision (b), and disapproves it for
reasons specified under subdivision (c). The decision of whether to
establish a minority, women, and disabled veteran business enterprise
utilization plan shall be at the option of the vendor. If a bidder
cites an approved utilization plan in response to the minority,
women, and disabled veteran business enterprise participation
requirements of a solicitation that calls for 15 percent
minority-owned, 5 percent women-owned, and 3 percent disabled
veteran-owned business participation, then that utilization plan
shall be considered responsive to the participation goals of the
solicitation document. If a solicitation specifies higher
participation goals than those in the bidder's utilization plan, the
bidder shall meet the goals in the solicitation. At a minimum, the
utilization plan shall include the following information:
   (1) A statement of the vendor's minority, women, and disabled
veteran business enterprise utilization plan, including the primary
objectives of the utilization plan.
   (2) An explanation showing sufficient business reasons why the
vendor did not meet minority, women, and disabled veteran business
enterprise participation goals set forth in the vendor's minority,
women, and disabled veteran business utilization plan submitted to,
and approved by, the Department of General Services in the previous
year, if applicable. Further, if the vendor did not meet the
minority, women, and disabled veteran business participation goals in
the previous year, the vendor shall also identify remedial steps it
will take to meet the goals in the current utilization plan.
   (3) A statement of the vendor's minority, women, and disabled
veteran business utilization goals for the succeeding year. At a
minimum, these utilization goals shall be equal to the statewide
participation goals set forth in subdivision (c) of Section 10115.
   (4) Estimated total dollars to be subcontracted by the vendor for
sales within the United States for the succeeding year.
   (5) Estimated total dollars to be subcontracted by the vendor for
sales within the State of California for the succeeding year.
   (6) Total dollars expressed as a percentage of the amount
estimated pursuant to paragraph (4), intended to be subcontracted
with each of the following:
   (A) Minority business enterprises.
   (B) Women business enterprises.
   (7) Total dollars, expressed as a percentage of the amount
estimated pursuant to paragraph (5), intended to be subcontracted
with disabled veteran-owned business enterprises.
   (8) A representative listing of the products and services that the
vendor anticipates subcontracting, including an identification of
the types of subcontracting planned for minority, women, and disabled
veteran business enterprises.
   (9) The name of the individual employed by the vendor who will
administer the vendor's utilization plan, including a description of
the duties of the individual.
   (10) A description of the efforts that the vendor will undertake
to ensure that minority, women, and disabled veteran business
enterprises will have an equitable opportunity to compete for
contracts.
   (11) A listing of the records and reports that the vendor will
maintain to demonstrate the practices and procedures that have been
adopted to comply with the requirements and goals of the utilization
plan.
   (12) Affirmation that the vendor met the statewide minority,
women, and disabled veteran business enterprise utilization goals for
the previous year, if applicable.
   (b) The Department of General Services shall conduct random audits
of the submitted utilization plans to determine compliance with this
article, and shall retain on file all submitted utilization plans
for auditing purposes. During any audit of a submitted utilization
plan, the Department of General Services may ask a vendor to submit a
list of all the minority, women, and disabled veteran business
enterprises included as subcontractors in the vendor's plan for the
previous year. This information shall remain confidential. Nothing in
this section shall be construed to require the Department of General
Services to audit all of the minority, women, and disabled veteran
business enterprise utilization plans submitted by individual
vendors. The Department of General Services may establish appropriate
fees to cover the actual costs of conducting random audits and
retaining on file all submitted plans.
   (c) (1) At any time, the Department of General Services may
disapprove a vendor's minority, women, and disabled veteran business
enterprise utilization plan for any of the following reasons:
   (A) The utilization plan fails to evidence a vendor's intention to
comply fully with the statewide minority, women, and disabled
veteran business enterprise goals for the succeeding year, as
indicated by failure of the utilization plan to contain the
information specified in subdivision (a).
   (B) The utilization plan fails to evidence sufficient business
reasons for failure to achieve the minority, women, and disabled
veteran business enterprise goals set forth in a utilization plan
submitted in the previous year, if applicable.
   (C) The utilization plan fails to evidence sufficient remedial
steps the vendor will take if the vendor did not meet the minority,
women, and disabled veteran business participation goals in the
previous year, if applicable.
   (2) If a vendor's utilization plan is disapproved, the vendor may
not submit a new utilization plan to the department for a period of
one year from the date of disapproval. Prior to disapproval of a
vendor's utilization plan, the vendor shall be entitled to a public
hearing and to five days' notice of the time and place thereof. The
notice shall state the reasons for the hearing.
   (3) A vendor that submits a minority, women, and disabled veteran
business utilization plan that is approved by the Department of
General Services, and that is subsequently awarded a contract to
which the vendor would not otherwise have been entitled, and who
fails to evidence intention to fully comply with the minority, women,
and disabled veteran business enterprise goals in the utilization
plan, or fails to evidence sufficient business reasons for failing to
achieve the minority, women, and disabled veteran business
enterprise goals set forth in the utilization plan, shall:
   (A) Pay to the state any difference between the contract amount
and what the state's cost would have been if the contract had been
properly awarded.
   (B) In addition to the amount specified in subparagraph (A), be
assessed a penalty in an amount of not more than 10 percent of the
amount of the contract involved.
   (C) Be ineligible to transact any business with the state for a
period of not less than three months and not more than 24 months.
   Prior to imposition of any sanction under this chapter, the
contractor or vendor shall be entitled to a public hearing and to
five days' notice of the time and place thereof. The notice shall
state the reasons for the hearing.