Bill Text: PA HB2143 | 2009-2010 | Regular Session | Amended

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Bill Title: In small and disadvantaged businesses, providing for oversight and responsibility; and making an appropriation.

Spectrum: Moderate Partisan Bill (Democrat 14-2)

Status: (Introduced - Dead) 2010-09-14 - Re-committed to APPROPRIATIONS [HB2143 Detail]

Download: Pennsylvania-2009-HB2143-Amended.html

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PRIOR PRINTER'S NO. 3085 PRINTER'S NO. 4024
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 2143 Session of2010
INTRODUCED BY PARKER, WHEATLEY, BUXTON, JOSEPHS, THOMAS, BEYER, BELFANTI, HENNESSEY, HORNAMAN, McCALL, PAYTON, ROEBUCK, SIPTROTH, STURLA, WATERS AND YOUNGBLOOD, JANUARY 19, 2010
AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 29, 2010
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, in small and disadvantaged businesses, providing
for agency oversight and responsibility; and making an <--
appropriation.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 62 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
§ 2109. Agency oversight and responsibility. <--
Each Commonwealth agency shall identify best practices to
significantly increase contracting opportunities for
disadvantaged businesses. A Commonwealth agency awarding
contracts or grant funding shall develop and implement uniform
templates, best practices and procedures to increase oversight,
transparency and accountability in overseeing, administering,
monitoring and enforcing requirements to ensure increased and
sustained contracting opportunities for disadvantaged businesses
and shall include the following:
(1) Aspirational targets. Commonwealth agencies shall
establish an overall aspirational target of 25% of
procurement and construction moneys to be dedicated to
disadvantaged businesses in State contracts and grants,
including, but not limited to, procurement of goods and
services, construction, professional services, consulting,
insurance, investment brokers and managers, bond work, real
estate transactions and energy savings contracts. This
paragraph shall also apply to sole source contracts.
Contracts with optional renewal clauses that lacked initial
disadvantaged business requirements at award time shall be
subject to disadvantaged business review and inclusion
requirements prior to the renewal of the contract. An agency
shall monitor, track, enforce and report on the award of any
contract or grant quarterly and annually on its utilization
and spend with disadvantaged businesses to the Appropriations
Committee of the Senate and the Appropriations Committee of
the House of Representatives.
(2) Best practices. The department shall:
(i) Ensure that disadvantaged business participation
is included as part of agencies' strategic priorities
through identification of measurable goals and
objectives.
(ii) Develop a best practices manual for uniform
implementation of policies, practices, programs and
participation goals for disadvantaged businesses.
(iii) Establish a comprehensive quarterly and annual
reporting process, which includes award amount and actual
spending, for contractors, subcontractors and suppliers.
(iv) Designate single point of contact to implement,
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monitor and report work force utilization and agency
contractor participation.
(v) Create a coordinated cross-agency, integrated
small business support services system to provide
training, consulting information management, business
management and technical assistance to disadvantaged
businesses to acquire the proficiency to compete on an
equal basis with majority contractors, vendors and
consultants.
(vi) Identify uniform monitoring, enforcement,
tracking and reporting and guideline practices.
(vii) Expand ability to quantify and measure the
effectiveness of agency programs.
(viii) Review the department's e-marketplace system
for potential expansion to all Commonwealth agencies.
(ix) Continue to connect disadvantaged businesses to
other entities, such as the Small Business Development
Centers, Minority Business Enterprise Centers and
Professional Technical Assistance Centers for financial
and technical assistance.
(3) Monitoring and enforcement. The following apply:
(i) Pursuant to its authority under State contract
compliance laws, policies and requirements, the
department and other Commonwealth agencies shall
institute and implement all necessary monitoring and
enforcement of provisions of this section as to the
Commonwealth's disadvantaged business program and shall
implement and follow all contract compliance
requirements, policies, guidelines and regulations and
applicable laws pertaining to minority-owned, women-
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owned, small and disadvantaged businesses.
(ii) Each Commonwealth agency shall provide
mandatory quarterly and annual reports on utilization of
disadvantaged businesses on contracts. An evaluation of
the prime contractor's performance on contracts shall
include a review of good faith efforts in the oversight,
timely payment as provided under Ch. 39, Subch. D
(relating to prompt payment schedules) and continued
commitment to disadvantaged subcontractors. Sanctions for
failure to demonstrate good faith efforts in the
oversight, timely payment and commitment to disadvantaged
subcontractors shall include withholding of payments to
the prime contractor and suspension or debarment from
doing work for the Commonwealth for no less than 12
months and up to 36 months. The department and any other
Commonwealth agency may also institute any appropriate
and necessary administrative, legal, judicial and other
proceedings after inquiry, review or investigation, if it
finds that any person, contractor or grantee has failed
to comply with or has violated any requirement or action
set forth in this section.
Section 2. The sum of $1,000,000, or as much thereof as may
be necessary, is hereby appropriated to the Department of
General Services for the fiscal year July 1, 2009, to June 30,
2010, to obtain a customized software program for monitoring,
tracking and reporting on disadvantaged business participation
levels, including, but not limited to, percentages, dollar
amount, ethnicity, gender and geographical representation under
62 Pa.C.S. § 2109(3).
Section 3. This act shall take effect immediately.
20100HB2143PN4024 - 4 -
§ 2109. Oversight and responsibility. <--
(a) Identification of best practices.--
(1) The department shall identify and adopt best
practices for use by Commonwealth agencies to determine the
most effective means for promoting, increasing and sustaining
procurement opportunities for disadvantaged businesses.
(2) The department and each Commonwealth agency awarding
contracts in accordance with the applicable provisions of
this title, including construction, public works, designed
professional services and professional services contracts,
shall adopt the best practices identified by the department
in accordance with paragraph (1) in order to increase
oversight, transparency and accountability in contracting and
subcontracting and promote, increase and sustain procurement
opportunities for disadvantaged businesses. The best
practices shall include, but not be limited to, the
following:
(i) Uniform templates, including templates for
procurement planning, submitting proposals and bids,
contracting and contract management, including standard
forms, reports and other knowledge-based tools.
(ii) (A) Verifiable goals for participation by
disadvantaged businesses of not less than 25% of the
total dollar value of State contracts entered into by
each Commonwealth agency during the calendar year,
including construction, public works, designed
professional services, professional services
contracts and sole source contracts. In the case of
construction contracts, the participation goal shall
apply to a local agency or other public or private
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entity that receives a Commonwealth appropriation or
grant funds for the performance of a construction or
reconstruction project, including a construction or
reconstruction project performed by a private entity
on a facility to be leased or purchased by the
Commonwealth. Existing contracts with an optional
renewal clause that did not include the disadvantaged
business participation goal established under this
subparagraph shall be subject to the participation
goal and other disadvantaged business review and
inclusion requirements prior to renewal of the
contract by the department or a Commonwealth agency.
(B) The department or a Commonwealth agency may
attain participation goals by, where appropriate,
directly designating prime contracts for
disadvantaged businesses or by requiring that a
portion of a prime contract, which is not directly
designated for disadvantaged businesses, be
subcontracted to disadvantaged businesses.
(C) The department and each Commonwealth agency
shall make a good faith effort to attain the goals
established in this paragraph.
(b) Duties of department.--The department shall:
(1) Ensure that disadvantaged business participation is
a component of its and each Commonwealth agency's strategic
procurement priorities through the identification of
measurable goals and objectives.
(2) Develop a best practices manual for use by
Commonwealth agencies. The manual shall provide procedures
for the uniform implementation of procurement policies, best
20100HB2143PN4024 - 6 -
practices and participation goals for disadvantaged
businesses.
(3) Establish and require a comprehensive quarterly and
annual reporting process for Commonwealth agencies. Such
reports shall include data on contract award amounts and
actual spending for contractors, subcontractors, vendors,
suppliers and professional services contractors, including
consultant services.
(4) Designate a single point of contact to implement,
monitor and report work force utilization and contractor
participation in disadvantaged business programs.
(5) Create a coordinated cross-agency, integrated
disadvantaged business support system. The support system
shall be designed to provide training in the areas of
information management, business management, technical
assistance and other such developmental assistance to
disadvantaged businesses.
(6) Identify and adopt uniform monitoring, enforcement,
tracking and reporting procedures, guidelines or policy
statements.
(7) Expand its ability to quantify and measure the
effectiveness of Commonwealth procurement programs.
(8) Use the department's e-marketplace system to provide
public notice of contracting, subcontracting and grant
opportunities.
(9) Continue to connect disadvantaged businesses to
other entities, such as the Small Business Development
Centers, Minority Business Enterprise Centers and
Professional Technical Assistance Centers for developmental
assistance.
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(10) Identify and adopt guidelines that will ensure
accountability and transparency in the procurement process.
The guidelines shall include, but not limited to,
documentation requirements to be used throughout the
procurement process, reporting and disclosure requirements,
treatment of confidential information and procedures for
reporting and resolving complaints.
(11) Identify and adopt best practices to ensure that
the procurement process is properly structured and managed to
ensure probity and provide fairness and equal treatment for
all contractors, including disadvantaged businesses.
(12) Adopt, implement and adhere to all contract
compliance requirements, policy statements, guidelines,
regulations and applicable laws pertaining to procurement by
disadvantaged businesses.
(c) Monitoring, enforcement and sanctions.--The following
shall apply:
(1) The department shall administer this section and
shall adopt and implement best practice guidelines to monitor
and enforce the provisions of this section as they relate to
the Commonwealth's disadvantaged business program.
(2) Each Commonwealth agency shall provide mandatory
quarterly and annual reports on the utilization of
disadvantaged businesses on procurement contracts and
subcontracts. An evaluation of a prime contractor's
performance on contracts shall include a review of good faith
efforts in the oversight of disadvantaged business
procurement, timely payment, as provided under Subchapter D
of Chapter 39 (relating to prompt payment schedules), and
continued commitment to the utilization of disadvantaged
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subcontractors.
(3) Sanctions for failure to demonstrate good faith
efforts in the oversight, timely payment and commitment to
disadvantaged businesses and subcontractors shall include
withholding of payments to the prime contractor and
suspension or debarment from participation in Commonwealth
procurement for no less than 12 months or more than 36
months. The department and any other Commonwealth agency may
also institute any appropriate and necessary administrative,
legal, judicial or other proceedings after inquiry, review or
investigation if it finds that any person, contractor or
grantee has failed to comply with or has violated any
requirement or action set forth in this title or regulations
promulgated under this title.
(d) Construction.--Nothing in this section shall be
construed to authorize the department or a Commonwealth agency
to discriminate in the awarding of any contract or subcontract
or to authorize a contractor or any other person or entity to
discriminate in the solicitation or acceptance of bids or offers
for contracting or subcontracting in any procurement authorized
under this title.
Section 2. The sum of $1,000,000, or as much thereof as may
be necessary, is hereby appropriated to the Department of
General Services for the fiscal year July 1, 2010, to June 30,
2011, to obtain a customized software program for monitoring,
tracking and reporting on small and disadvantaged business
participation in Commonwealth procurement, including, but not
limited to, percentages, dollar amount, ethnicity, gender and
geographical representation under 62 Pa.C.S. § 2109(c).
Section 3. It is the intent of the General Assembly that the
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addition of 62 Pa.C.S. § 2109 shall be enacted and enforced in
its entirety. Should any portion or provision of the addition of
62 Pa.C.S. § 2109 be declared unconstitutional, the remaining
provisions of 62 Pa.C.S. § 2109 shall remain in effect and be
enforceable.
Section 4. The provisions of this act are severable. If any
provision of this act or its application to any person or
circumstance is held invalid, the invalidity shall not affect
other provisions or applications of this act which can be given
effect without the invalid provision or application.
Section 5. This act shall take effect immediately.
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