Bill Text: MI HB4374 | 2021-2022 | 101st Legislature | Introduced
Bill Title: State financing and management: purchasing; expanded business opportunities for geographically disadvantaged business enterprises; codify. Amends secs. 241 & 261 of 1984 PA 431 (MCL 18.1241 & 18.1261).
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2021-03-02 - Bill Electronically Reproduced 02/25/2021 [HB4374 Detail]
Download: Michigan-2021-HB4374-Introduced.html
HOUSE BILL NO. 4374
February 25, 2021, Introduced by Reps. Tate,
Tyrone Carter, Steenland, Neeley, Cavanagh and O'Neal and referred to the
Committee on Commerce and Tourism.
A bill to amend 1984 PA 431, entitled
"The management and budget act,"
by amending sections 241 and 261 (MCL 18.1241 and 18.1261), section 241 as amended by 2012 PA 430 and section 261 as amended by 2020 PA 174.
the people of the state of michigan enact:
Sec. 241. (1) Except for the contracts permitted in section 240, a contract shall not be awarded for the construction, repair, remodeling, or demolition of a facility unless the contract is let pursuant to a bidding procedure that is approved by the board. The department shall issue directives prescribing procedures to be used to implement this section. The procedures shall require a competitive solicitation in the award of any contract for construction, repair, remodeling, or demolition of a facility.
(2) The department may award or approve the award, if the board approves, of construction contracts to construct a project for which the director is the agent and may expend, for the purposes and in the manner set forth, the amounts appropriated. The director is not the agent for a community college or institution of higher education, but may act in that capacity upon the specific request of a community college or institution of higher education.
(3) In awarding a contract under this section, the department shall give a preference of up to 10% of the amount of the contract to a qualified disabled veteran, as defined in section 261. If the qualified disabled veteran otherwise meets the requirements of the contract solicitation and with the preference is the lowest bidder, the department shall enter into a construction contract with the qualified disabled veteran under this act. If 2 or more qualified disabled veterans are the lowest bidders on a contract, all other things being equal, the qualified disabled veteran with the lowest bid shall be awarded the contract under this act.
(4) Subject to subsection subsections (3) and (5), for projects funded in whole or part with state funds, the construction contract award shall be made to the responsive and responsible best value bidder. As used in this subsection, "responsive and responsible best value bidder" means a bidder who meets all the following:
(a) A bidder who complies with all bid specifications and requirements.
(b) A bidder who has been determined by the department to be responsible by the following criteria:
(i) The bidder's financial resources.
(ii) The bidder's technical capabilities.
(iii) The bidder's professional experience.
(iv) The bidder's past performance.
(v) The bidder's insurance and bonding capacity.
(vi) The bidder's business integrity.
(c) A bidder who has been selected by the department through a selection process that evaluates the bid on both price and qualitative components to determine what is the best value for this state. Qualitative components may include, but are not limited to, all of the following:
(i) Technical design.
(ii) Technical approach.
(iii) Quality of proposed personnel.
(iv) Management plans.
(5) In awarding a
contract under this section, if consistent with federal statutes and all other
things being equal, the department and all state agencies in which the
department has delegated procurement authority under this act, shall give
preference to a geographically disadvantaged business enterprise in the same
manner as provided in section 261. A "geographically disadvantaged
business enterprise" means that term as defined in section 261.
Sec. 261. (1) The
department shall provide for the purchase of, the contracting for, and the
providing of supplies, materials, services, insurance, utilities, third party
financing, equipment, printing, and all other items as needed by state agencies
for which the legislature has not otherwise expressly provided. If consistent
with federal statutes, in all purchases made by the department, all other
things being equal, preference shall be given to products manufactured or
services offered by Michigan-based firms or by facilities with respect to which
the operator is designated as a clean corporate citizen under part 14 of the
natural resources and environmental protection act, 1994 PA 451, MCL 324.1401
to 324.1429, to geographically disadvantaged business
enterprises, or to biobased products whose content is sourced in
this state. The department shall solicit competitive bids from the private
sector whenever practicable to efficiently and effectively meet the state's
needs. The department shall first determine that competitive solicitation of
bids in the private sector is not appropriate before using any other
procurement method for an acquisition.
(2) The department shall make all discretionary decisions
concerning the solicitation, award, amendment, cancellation, and appeal of
state contracts.
(3) The department shall utilize competitive solicitation for
all purchases authorized under this act unless 1 or more of the following
apply:
(a) Procurement of goods or services is necessary for the
imminent protection of public health or safety or to mitigate an imminent
threat to public health or safety, as determined by the director or his or her
designated representative.
(b) Procurement of goods or services is for emergency repair
or construction caused by unforeseen circumstances when the repair or
construction is necessary to protect life or property.
(c) Procurement of goods or services is in response to a
declared state of emergency or state of disaster under the emergency management
act, 1976 PA 390, MCL 30.401 to 30.421.
(d) Procurement of goods or services is in response to a
declared state of emergency under 1945 PA 302, MCL 10.31 to 10.33.
(e) Procurement of goods or services is in response to a
declared state of energy emergency under 1982 PA 191, MCL 10.81 to 10.89.
(f) Procurement of goods or services is within a state
agency's purchasing authority delegated under subsection (4), and the state
agency has established policies or procedures approved by the department to
ensure that goods or services are purchased by the state agency at fair and
reasonable prices.
(4) The department may delegate its procurement authority to
other state agencies within dollar limitations and for designated types of
procurements. The department may withdraw delegated authority upon a finding
that a state agency did not comply with departmental procurement directives. If
a state agency has the department's procurement authority delegated to it under
this subsection and if it chooses to exercise an option under an existing
procurement contract to continue that procurement contract, before exercising
that option, the state agency shall first obtain written approval from the
department that exercising the option is in the best interest of this state.
(5) The department may enter into lease purchases or
installment purchases for periods not exceeding the anticipated useful life of
the items purchased unless otherwise prohibited by law.
(6) The department shall issue directives for the
procurement, receipt, inspection, and storage of supplies, materials, and
equipment, and for printing and services needed by state agencies. The
department shall provide standard specifications and standards of performance
applicable to purchases.
(7) The department may enter into a cooperative purchasing
agreement with 1 or more other states or public entities for the purchase of
goods, including, but not limited to, recycled goods, and services necessary
for state programs.
(8) In awarding a contract under this section, the department
shall give a preference of up to 10% of the amount of the contract to a
qualified disabled veteran. If the qualified disabled veteran otherwise meets
the requirements of the contract solicitation and with the preference is the
lowest bidder, the department shall enter into a procurement contract with the
qualified disabled veteran under this act. If 2 or more qualified disabled
veterans are the lowest bidders on a contract, all other things being equal,
the qualified disabled veteran with the lowest bid shall be awarded the
contract under this act.
(9) It is the goal of the department to award each year not
less than 5% of its total expenditures for construction, goods, and services to
qualified disabled veterans. The department may count toward its 5% yearly goal
described in this subsection that portion of all procurement contracts in which
the business entity that received the procurement contract subcontracts with a
qualified disabled veteran. Each year, the department shall report to each
house of the legislature on all of the following for the immediately preceding
12-month period:
(a) The number of qualified disabled veterans who submitted a
bid for a state procurement contract.
(b) The number of qualified disabled veterans who entered
into procurement contracts with this state and the total value of those
procurement contracts.
(c) Whether the department achieved the goal described in
this subsection.
(d) The recommendations described in subsection (10).
(10) Each year, the department shall review the progress of
all state agencies in meeting the 5% goal with input from statewide veterans
service organizations and from the business community, including businesses
owned by qualified disabled veterans, and shall make recommendations to each
house of the legislature regarding continuation, increases, or decreases in the
percentage goal. The recommendations shall be based upon
on the number of businesses that
are owned by qualified disabled veterans and on the continued need to encourage
and promote businesses owned by qualified disabled veterans.
(11) To assist the department in reaching the goal described
in subsection (9), the governor shall recommend to the legislature changes in
programs to assist businesses owned by qualified disabled veterans.
(12) Beginning October 1, 2017, the department and all state
agencies may not enter into a contract with a person to acquire or dispose of
supplies, services, or information technology unless the contract includes a
representation that the person is not currently engaged in, and an agreement
that the person will not engage in, the boycott of a person based in or doing
business with a strategic partner.
(13) The following records are exempt from disclosure under
the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, as provided
in this subsection:
(a) A bid, quote, or proposal submitted in connection with
the authority granted under this section, and records created in the
preparation for and evaluation of the bid, quote, or proposal until the time of
final notification of award of the contract.
(b) Records containing a trade secret as defined under
section 2 of the uniform trade secrets act, 1998 PA 448, MCL 445.1902, or
financial or proprietary information submitted in connection with the authority
granted under this section.
(14) The department shall develop policies and procedures
that require all procurement contracts entered into by the department or a
state agency, including departments that have delegated procurement authority
under this act, to include performance-related liquidated damages or
performance targets with incentives in all procurement contracts. The
department shall also develop policies and procedures that require the
department or state agency to enforce these provisions. Departments or state
agencies acting under delegated authority shall inform the department of
relevant performance issues. Exceptions to the inclusion or enforcement of
performance-related contract provisions may only be granted by the department
as provided in a written or electronic record by the department.
(15)
It is the goal of the department to award each year not less than 5% of all
state agency total expenditures for construction, goods, and services to
geographically disadvantaged business enterprises. The department may count
toward its 5% yearly goal described in this subsection that portion of all
procurement contracts in which the business entity that received the
procurement contract subcontracts with a geographically disadvantaged business
enterprise. Each year, the department shall report to each house of the
legislature on all of the following for the immediately preceding 12-month
period:
(a)
The number of geographically disadvantaged business enterprises that submitted
a bid for a state procurement contract.
(b)
The number of geographically disadvantaged business enterprises that entered
into procurement contracts with this state, a description of the contracted
goods or services, and the total value of those procurement contracts.
(c)
Whether the department achieved the goal described in this subsection.
(d)
The recommendations described in subsection (16).
(16)
Each year, the department shall review the progress of all state agencies in
meeting the 5% goal with input from geographically disadvantaged business
enterprises and from the business community, and shall make recommendations to
each house of the legislature regarding continuation, increases, or decreases
in the percentage goal.
(17)
To assist the department in reaching the goal described in subsection (16), the
governor shall recommend to the legislature changes in programs to assist
geographically disadvantaged business enterprises.
(18)
(15) As used in this section:
(a) "Biobased product" means a product granted the
United States Department of Agriculture certified biobased product label.
(b) "Boycott" means refusal to have dealings with,
divest from, or otherwise engage with a person. Boycott does not include 1 or
more of the following:
(i) A decision based on
bona fide business or economic reasons.
(ii) A boycott against a public entity of a foreign state when
the boycott is applied in a nondiscriminatory manner.
(iii) Conduct necessary to comply with applicable law in the
person's home jurisdiction.
(c) "Financial or
proprietary information" means information that has not been publicly
disseminated or which is unavailable from other sources, the release of which
might cause the submitter of the information competitive harm.
(d) "Geographically disadvantaged business
enterprise" means a person that satisfies 1 or more of the following:
(i) Is certified as a
HUBZone small business concern by the United States Small Business
Administration.
(ii) Has a principal
place of business located within a qualified opportunity zone within this
state.
(iii) More than half of
its employees have a principal residence located within a qualified opportunity
zone within this state.
(e) "HUBZone small business concern" means that
term as defined under 13 CFR 126.103.
(f) (d) "Person"
means any of the following:
(i) An individual, corporation, company, limited liability
company, business association, partnership, society, trust, or any other
nongovernmental entity, organization, or group.
(ii) Any governmental entity or agency of a government.
(iii) Any successor, subunit, parent company, or subsidiary of,
or company under common ownership or control with, any entity described in
subparagraph (i) or (ii).
(g) (e) "Qualified
disabled veteran" means a business entity that is 51% or more owned by 1
or more veterans with a service-connected disability.
(h) "Qualified opportunity zone" means that term as
defined in 26 USC 1400Z-1.
(i) (f) "Service-connected
disability" means a disability incurred or aggravated in the line of duty
in the active military, naval, or air service as described in 38 USC 101(16).
(j) (g) "Strategic
partner" means a strategic partner described in 22 USC 8601 to 8606.
(k) (h) "Veteran"
means an individual who meets both of the following:
(i) Is a veteran as defined in section 1 of 1965 PA 190, MCL
35.61.
(ii) Was released from his or her service with an honorable or
general discharge.
