CHAPTER 16.5. GOVERNOR'S COMMISSION ON MINORITY AND WOMEN'S BUSINESS ENTERPRISES
IC 4-13-16.5
Chapter 16.5. Governor's Commission on Minority and Women'sBusiness Enterprises
IC 4-13-16.5-1
Definitions
Sec. 1. (a) The definitions in this section apply throughout thischapter.
(b) "Commission" refers to the governor's commission onminority and women's business enterprises established under section2 of this chapter.
(c) "Commissioner" refers to the deputy commissioner forminority and women's business enterprises of the department.
(d) "Contract" means any contract awarded by a state agency or,as set forth in section 2(f)(11) of this chapter, awarded by a recipientof state grant funds, for construction projects or the procurement ofgoods or services, including professional services. For purposes ofthis subsection, "goods or services" may not include the followingwhen determining the total value of contracts for state agencies:
(1) Utilities.
(2) Health care services (as defined in IC 27-8-11-1(c)).
(3) Rent paid for real property or payments constituting theprice of an interest in real property as a result of a real estatetransaction.
(e) "Contractor" means a person or entity that:
(1) contracts with a state agency; or
(2) as set forth in section 2(f)(11) of this chapter:
(A) is a recipient of state grant funds; and
(B) enters into a contract:
(i) with a person or entity other than a state agency; and
(ii) that is paid for in whole or in part with the state grantfunds.
(f) "Department" refers to the Indiana department ofadministration established by IC 4-13-1-2.
(g) "Minority business enterprise" or "minority business" meansan individual, partnership, corporation, limited liability company, orjoint venture of any kind that is owned and controlled by one (1) ormore persons who are:
(1) United States citizens; and
(2) members of a minority group or a qualified minoritynonprofit corporation.
(h) "Qualified minority or women's nonprofit corporation" meansa corporation that:
(1) is exempt from federal income taxation under Section501(c)(3) of the Internal Revenue Code;
(2) is headquartered in Indiana;
(3) has been in continuous existence for at least five (5) years;
(4) has a board of directors that has been in compliance with allother requirements of this chapter for at least five (5) years;
(5) is chartered for the benefit of the minority community or
women; and
(6) provides a service that will not impede competition amongminority business enterprises or women's business enterprisesat the time a nonprofit applies for certification as a minoritybusiness enterprise or a women's business enterprise.
(i) "Owned and controlled" means:
(1) if the business is a qualified minority nonprofit corporation,a majority of the board of directors are minority;
(2) if the business is a qualified women's nonprofit corporation,a majority of the members of the board of directors are women;or
(3) if the business is a business other than a qualified minorityor women's nonprofit corporation, having:
(A) ownership of at least fifty-one percent (51%) of theenterprise, including corporate stock of a corporation;
(B) control over the management and active in theday-to-day operations of the business; and
(C) an interest in the capital, assets, and profits and losses ofthe business proportionate to the percentage of ownership.
(j) "Minority group" means:
(1) Blacks;
(2) American Indians;
(3) Hispanics; and
(4) Asian Americans.
(k) "Separate body corporate and politic" refers to an entityestablished by the general assembly as a body corporate and politic.
(l) "State agency" refers to any authority, board, branch,commission, committee, department, division, or otherinstrumentality of the executive, including the administrative,department of state government.
As added by P.L.34-1983, SEC.1. Amended by P.L.18-1991, SEC.12;P.L.8-1993, SEC.21; P.L.195-2001, SEC.1; P.L.84-2004, SEC.1;P.L.2-2007, SEC.37; P.L.228-2007, SEC.1; P.L.3-2008, SEC.5;P.L.87-2008, SEC.1; P.L.1-2009, SEC.9; P.L.114-2010, SEC.2.
IC 4-13-16.5-1.1
References to federal statutes or regulations
Sec. 1.1. A reference to a federal statute or regulation in thischapter is a reference to the statute or regulation as in effect January1, 2001.
As added by P.L.195-2001, SEC.2.
IC 4-13-16.5-1.3
"Women's business enterprise" defined
Sec. 1.3. As used in this chapter, "women's business enterprise"means a business that is one (1) of the following:
(1) A sole proprietorship owned and controlled by a woman.
(2) A partnership or joint venture owned and controlled bywomen in which:
(A) at least fifty-one percent (51%) of the ownership is held
by women; and
(B) the management and daily business operations arecontrolled by at least one (1) of the women who owns thebusiness.
(3) A corporation or other entity:
(A) whose management and daily business operations arecontrolled by at least one (1) of the women who owns thebusiness; and
(B) that is at least fifty-one percent (51%) owned by women,or if stock is issued, at least fifty-one percent (51%) of thestock is owned by at least one (1) of the women.
(4) A qualified women's nonprofit corporation as defined insection 1(h) of this chapter.
As added by P.L.195-2001, SEC.3. Amended by P.L.228-2007,SEC.2; P.L.114-2010, SEC.3.
IC 4-13-16.5-2
Governor's commission on minority and women's businessenterprises
Sec. 2. (a) There is established a governor's commission onminority and women's business enterprises. The commission shallconsist of the following members:
(1) A governor's designee, who shall serve as chairman of thecommission.
(2) The commissioner of the Indiana department oftransportation, or the economic opportunity director of theIndiana department of transportation if the commissioner of theIndiana department of transportation so designates.
(3) The chairperson of the board of the Indiana economicdevelopment corporation or the chairperson's designee.
(4) The commissioner of the department.
(5) Nine (9) individuals with demonstrated capabilities inbusiness and industry, especially minority and women'sbusiness enterprises, appointed by the governor from thefollowing geographical areas of the state:
(A) Three (3) from the northern one-third (1/3) of the state.
(B) Three (3) from the central one-third (1/3) of the state.
(C) Three (3) from the southern one-third (1/3) of the state.
(6) Two (2) members of the house of representatives, no morethan one (1) from the same political party, appointed by thespeaker of the house of representatives to serve in a nonvotingadvisory capacity.
(7) Two (2) members of the senate, no more than one (1) fromthe same political party, appointed by the president pro temporeof the senate to serve in a nonvoting advisory capacity.
Not more than six (6) of the ten (10) members appointed ordesignated by the governor may be of the same political party.Appointed members of the commission shall serve four (4) yearterms. A vacancy occurs if a legislative member leaves office for anyreason. Any vacancy on the commission shall be filled in the same
manner as the original appointment.
(b) Each member of the commission who is not a state employeeis entitled to the following:
(1) The minimum salary per diem provided byIC 4-10-11-2.1(b).
(2) Reimbursement for traveling expenses and other expensesactually incurred in connection with the member's duties asprovided under IC 4-13-1-4 and in the state travel policies andprocedures established by the Indiana department ofadministration and approved by the budget agency.
(c) Each legislative member of the commission is entitled toreceive the same per diem, mileage, and travel allowancesestablished by the legislative council and paid to members of thegeneral assembly serving on interim study committees. Theallowances specified in this subsection shall be paid by thelegislative services agency from the amounts appropriated for thatpurpose.
(d) A member of the commission who is a state employee but whois not a member of the general assembly is not entitled to any of thefollowing:
(1) The minimum salary per diem provided byIC 4-10-11-2.1(b).
(2) Reimbursement for traveling expenses as provided underIC 4-13-1-4.
(3) Other expenses actually incurred in connection with themember's duties.
(e) The commission shall meet at least four (4) times each yearand at other times as the chairman considers necessary.
(f) The duties of the commission shall include but not be limitedto the following:
(1) Identify minority and women's business enterprises in thestate.
(2) Assess the needs of minority and women's businessenterprises.
(3) Initiate aggressive programs to assist minority and women'sbusiness enterprises in obtaining state contracts.
(4) Give special publicity to procurement, bidding, andqualifying procedures.
(5) Include minority and women's business enterprises onsolicitation mailing lists.
(6) Evaluate the competitive differences between qualifiedminority or women's nonprofit corporations and other thanqualified minority or women's nonprofit corporations that offersimilar services and make recommendation to the department onpolicy changes necessary to ensure fair competition amongminority and women's business enterprises.
(7) Define the duties, goals, and objectives of the deputycommissioner of the department as created under this chapter toassure compliance by all state agencies, separate bodiescorporate and politic, and state educational institutions with
state and federal legislation and policy concerning the awardingof contracts (including, notwithstanding section 1(d) of thischapter or any other law, contracts of state educationalinstitutions) to minority and women's business enterprises.
(8) Establish annual goals:
(A) for the use of minority and women's businessenterprises; and
(B) derived from a statistical analysis of utilization study ofstate contracts (including, notwithstanding section 1(d) ofthis chapter or any other law, contracts of state educationalinstitutions) that are required to be updated every five (5)years.
(9) Prepare a review of the commission and the various affecteddepartments of government to be submitted to the governor andthe legislative council on March 1 and October 1 of each year,evaluating progress made in the areas defined in this subsection.
(10) Ensure that the statistical analysis required under thissection:
(A) is based on goals for participation of minority businessenterprises established in Richmond v. Croson, 488 U.S. 469(1989);
(B) includes information on both contracts and subcontracts(including, notwithstanding section 1(d) of this chapter orany other law, contracts and subcontracts of stateeducational institutions); and
(C) uses data on the combined capacity of minority andwomen's businesses enterprises in Indiana and not justregional data.
(11) Establish annual goals for the use of minority and women'sbusiness enterprises for any contract that:
(A) will be paid for in whole or in part with state grantfunds; and
(B) involves the use of real property of a unit (as defined inIC 4-4-32.2-9).
(g) The department shall direct contractors to demonstrate a goodfaith effort to meet the annual participation goals established undersubsection (f)(11). The good faith effort shall be demonstrated bycontractors using the repository of certified firms created undersection 3 of this chapter or a similar repository maintained by a unit(as defined in IC 4-4-32.2-9).
(h) The department shall adopt rules of ethics under IC 4-22-2 forcommission members other than commission members appointedunder subsection (a)(6) or (a)(7).
(i) The department shall furnish administrative support and staffas is necessary for the effective operation of the commission.
(j) The commission shall advise the department on developing astatement, to be included in all applications for and agreementsgoverning grants made with state funds, stating the importance of theuse of minority and women's business enterprises in fulfilling thepurposes of the grant.As added by P.L.34-1983, SEC.1. Amended by P.L.18-1990, SEC.4;P.L.31-1993, SEC.1; P.L.195-2001, SEC.4; P.L.42-2002, SEC.1;P.L.41-2003, SEC.1; P.L.84-2004, SEC.2; P.L.4-2005, SEC.17;P.L.228-2007, SEC.3; P.L.87-2008, SEC.2; P.L.114-2010, SEC.4.
IC 4-13-16.5-3
Deputy commissioner for minority and women's businessenterprise development
Sec. 3. (a) There is created in the department a deputycommissioner for minority and women's business enterprisedevelopment. Upon consultation with the commission, thecommissioner of the department, with the approval of the governor,shall appoint an individual who possesses demonstrated capability inbusiness or industry, especially in minority or women's businessenterprises, to serve as deputy commissioner to work with thecommission in the implementation of this chapter.
(b) The deputy commissioner shall do the following:
(1) Identify and certify minority and women's businessenterprises for state projects.
(2) Establish a central certification file.
(3) Periodically update the certification status of each minorityor women's business enterprise.
(4) Monitor the progress in achieving the goals establishedunder section 2(f)(8) and 2(f)(11) of this chapter.
(5) Require all state agencies, separate bodies corporate andpolitic, and state educational institutions to report on plannedand actual participation of minority and women's businessenterprises in contracts awarded by state agencies. Thecommissioner may exclude from the reports uncertifiedminority and women's business enterprises.
(6) Determine and define opportunities for minority andwomen's business participation in contracts awarded by all stateagencies, separate bodies corporate and politic, and stateeducational institutions.
(7) Implement programs initiated by the commission undersection 2 of this chapter.
(8) Perform other duties as defined by the commission or by thecommissioner of the department.
As added by P.L.34-1983, SEC.1. Amended by P.L.31-1993, SEC.2;P.L.195-2001, SEC.5; P.L.84-2004, SEC.3; P.L.228-2007, SEC.4;P.L.114-2010, SEC.5.
IC 4-13-16.5-4
Determinations regarding goals; adoption of rules
Sec. 4. (a) Before January 1 of even-numbered years, thedepartment shall determine whether, during the most recentlycompleted two (2) year period ending the previous July 1, the goalsset under section 2(f)(8) of this chapter have been met.
(b) The department shall adopt rules under IC 4-22-2 to ensurethat the goals set under section 2(f)(8) of this chapter are met.
Expenditures with business enterprises that qualify as both aminority business enterprise and a women's business enterprise maybe counted toward the attainment of the goal for either:
(1) minority business enterprises; or
(2) women's business enterprises;
at the election made by the procurer of goods, services, or goods andservices, but not both.
As added by P.L.195-2001, SEC.6. Amended by P.L.41-2003, SEC.2;P.L.228-2007, SEC.5; P.L.3-2008, SEC.6.
IC 4-13-16.5-5
Rules
Sec. 5. The Indiana department of administration may adopt rulesunder IC 4-22-2 to implement this chapter.
As added by P.L.31-1993, SEC.3.
IC 4-13-16.5-6
Application of standards and certifications
Sec. 6. (a) Notwithstanding any other law, the standardsdeveloped under this chapter apply to the determination andcertification of a business as a minority business enterprise or awomen's business enterprise under any Indiana law.
(b) Notwithstanding any other law, a certification of a business asa minority business enterprise or a women's business enterprise underthis chapter satisfies any Indiana law providing for or requiring thecertification of a business as a minority business enterprise or awomen's business enterprise.
As added by P.L.84-2004, SEC.4.
IC 4-13-16.5-7
Confidentiality of applicant materials
Sec. 7. For purposes of IC 5-14-3, materials containing:
(1) personal financial information; or
(2) confidential business information;
submitted by an applicant for certification as a minority businessenterprise or a women's business enterprise are confidential.
As added by P.L.84-2004, SEC.5.
IC 4-13-16.5-8
Contractor notice to minority businesses and women's businessenterprises
Sec. 8. (a) This section applies to a contractor whose offerdesignated minority businesses or women's business enterprises tofurnish any supplies or perform any work under the contract awardedto the contractor.
(b) As used in this section, "contract" refers to any of thefollowing:
(1) A contract for the purchase of supplies by a state agency.
(2) A contract for the performance of services for a stateagency. (3) A public works contract (as defined in IC 4-13.6-1-14).
(4) A contract to perform professional services (as defined inIC 4-13.6-1-11) in connection with a public works contract.
(c) As used in this section, "contractor" refers to a person awardeda contract by a state agency.
(d) As used in this section, "offer" means a response to asolicitation. The term includes a bid, proposal, and quote.
(e) As used in this section, "solicitation" means the procedure bywhich a state agency invites persons to submit an offer to enter intoa contract with the state agency. The term includes an invitation forbids, a request for proposals, and a request for quotes.
(f) Before beginning work on a contract, a contractor shall do thefollowing:
(1) Notify in writing each minority business and women'sbusiness enterprise designated in the contractor's offer that thecontractor has been awarded the contract.
(2) Give copies of each notification to the state agency thatawarded the contract.
(g) If a contractor fails to comply with subsection (f), theawarding state agency may consider the failure a breach of contractand do any of the following:
(1) Cancel the contract.
(2) Collect from the contractor all funds paid to the contractorunder the contract.
(3) Exercise any of the state's rights set out in the contract.
(4) Use the failure as a basis for finding the contractor notresponsible when awarding other contracts.
As added by P.L.228-2007, SEC.6.
IC 4-13-16.5-9
Grievance procedures
Sec. 9. (a) The department shall adopt rules under IC 4-22-2 toestablish procedures to resolve grievances arising under this chapter.
(b) The rules may include informal procedures to resolvegrievances.
(c) The procedures established under the rules must provide forfinal resolution of grievances before either of the following:
(1) A panel of three (3) commission members. A panel formedunder this subdivision must consist of at least two (2)commission members described in section 2(a)(5) of thischapter.
(2) The commission. However, if the commission acts toresolve a grievance under this subdivision, members of thecommission described in section 2(a)(6) or 2(a)(7) of thischapter may not participate in the proceeding.
(d) Final resolution of grievances arising under this chapter aresubject to IC 4-21.5.
As added by P.L.228-2007, SEC.7.