BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 309
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          Date of Hearing:   April 28, 2009

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                 Mary Hayashi, Chair
                     AB 309 (Price) - As Amended:  April 23, 2009
           
          SUBJECT  :   Public contracts:  small business participation. 

           SUMMARY  :   Requires a 25% small business participation goal for  
          state contracts and requires the Department of General Services  
          (DGS) to monitor progress in meeting this goal.  Specifically,  
           this bill :  

          1)Requires all state agencies, departments, boards, and  
            commissions to establish and report on their progress in  
            meeting or exceeding the 25% small business participation goal  
            established by Executive Order (EO) D-37-01 and EO S-02-06.

          2)Requires state entities that fail to meet the small business  
            participation goal to submit an annual implementation and  
            corrective action plan to DGS until the goal is met.

          3)Includes the University of California (UC), California State  
            University (CSU), and the California Community Colleges (CCC)  
            in the 25% small business participation goals when state money  
            is used. 

          4)Requires DGS to monitor the progress of meeting the 25% small  
            business participation goal.

          5)Requires that the Office of the Small Business Advocate (OSBA)  
            receive the same progress report information as state  
            entities.  Directs DGS and the OSBA to collaboratively work to  
            review each implementation and corrective plan and explore  
            ways to work with agencies that have not met their performance  
            goal.

          6)Requires, whenever possible, that state entities to use the  
            streamlined procurement process for contracting with small  
            businesses for goods and services in contract amounts under  
            $100,000 and for any construction contract exceeding $120,000.

          7)Requires DGS to actively promote small business certification  
            and help small businesses market their products, goods, and  
            services to the state.








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          8)Requires DGS to work with OSBA to help small businesses secure  
            financing.

           EXISTING LAW  :

          1)Requires DGS to administer the state Small Business  
            Procurement and Contract Act (Small Business Act), including   
            a small business certification process and a streamlined  
            procurement process for state contracts under $100,000 that is  
            exempt from advertising, bidding, and protest provisions in  
            the State Contract Act. 

          2)Declares that small businesses and microbusinesses receive a  
            fair portion of the total purchases and contracts or  
            subcontracts for state goods, services, information  
            technology, and construction.

          3)Establishes a 25% small business participation goal for all  
            contracts financed with the proceeds of the  
            infrastructure-related bond acts of 2006.

          4)Establishes bid preferences for certified small businesses and  
            microbusinesses for the award of state procurement contracts  
            of at least 5% of solicitations made either on the basis of  
            lowest responsible dollar bid or on the basis of highest  
            score, with a single bid preference limit of $50,000.   
            Non-small businesses that subcontract at least 25% of their  
            contracts with certified small businesses also qualify for the  
            small business bidders' preference. 

          5)Requires each state agency to consolidate its existing staff  
            functions that relate to contract opportunities for small  
            businesses into a single point of contract for small  
            businesses and designate a small business advocate as a  
            liaison to small business suppliers.

          6)Defines a small business as independently owned, not dominant  
            in its field of operation, domiciled in California, employing  
            100 or fewer employees, and earning $10 million or less in  
            average annual gross revenues for the previous three years.  

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   








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           Purpose of the bill  .  According to the author's office, "This  
          bill seeks to codify Executive Order S-02-06, which establishes  
          participatory goals for state certified small businesses. The  
          State consistently struggles to achieve the 25% small business  
          and 3% Disabled Veteran Business Enterprise (DVBE) goals.  As  
          the state continues to award contracts funded through the 2006  
          infrastructure bonds and prepare for projects to be funded from  
          the recently enacted American Recovery and Reinvestment Act, it  
          is important to ensure that contracting officials have the tools  
          they need to promote robust small business and DVBE  
          participation on those projects." 

           Background  .  The Small Business Act, administered through DGS,  
          was established 30 years ago to grant a small business  
          preference within the state's procurement process.  In 1989, a  
          DVBE component was added to state procurement practices.   
          Current law requires DGS to report the participation levels of  
          DVBEs and businesses that include the owner's race, ethnicity,  
          and gender information in statewide contracts.

          EO S-02-06 requires all state agencies, departments, boards and  
          commissions to achieve a goal of 25% small business  
          participation in state procurements and contracts reaffirms the  
          Administration's commitment to meet or exceed this goal through  
          the coordinated efforts of all levels of State government.   
          Since 2001, the Governor has issued several EOs specifying a 25%  
          participation goal for small businesses and a 3% DVBE  
          participation in state procurement contracts, including EO  
          D-37-01 (2001), EO S-02-06 (2006), EO D-43-01(2001), and EO  
          S-11-06 (2006).  Statutory advancements were also made to  
          strengthen the SBA including SB 115 (Florez), Chapter 451,  
          Statutes of 2005, which required DGS to establish a DVBE  
          incentive program for state contracts, and AB 761 (Coto),  
          Chapter 611, Statutes of 2007, which specifically codified the  
          25% small business participation goal for contracts related to  
          revenues expended from the 2006 infrastructure bonds.

          Notwithstanding the longstanding existence of the SBA, statutory  
          upgrades, and EOs, the state's success in obtaining small  
          business and DVBE participation goals in state procurement  
          contracts has been inconsistent.  Since small business  
          participation targets were established in 2001, DGS has achieved  
          the 25% participation goal only twice. 









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          In 2009, the federal government enacted a $787 billion American  
          Recovery and Reinvestment Act that includes over $3 billion in  
          funding for California infrastructure projects.  These massive  
          public works endeavors provide an opportunity for the state to  
          use these moneys to strengthen the core of California's economy  
          by expanding business opportunities for small contractors.  

          In 2006, California voters approved over $40 billion in general  
          obligation infrastructure development bonds.  The funding  
          provided by the bonds will be spent on improvements to roads,  
          highways, public transit, flood control, schools, and affordable  
          housing.  Project funding is expected to occur over the next 10  
          years, although the Governor and Legislature have placed a  
          priority on expediting project delivery.  

           Support  .  According to the sponsor, this bill "increases  
          contracting opportunities for certified California small  
          businesses.  AB 309 mandates that state agencies achieve a goal  
          of 25% small business participation in procurement and  
          contracts, and requires agencies that do not meet that threshold  
          to develop a corrective action plan for submission to the  
          Governor's Office of the Small Business Advocate.  

          "Under Governor Arnold Schwarzenegger's Executive Order S-02-06,  
          state agencies have been required to meet this 25% goal.  In  
          response, state agencies achieved a small and DVBE participation  
          rate of 28.3% in 2007.  Maintaining a strong small business  
          participation requirement promotes competition that helps  
          control costs and ensures state agencies receive a good deal on  
          state contracts.  AB 309 ensures that progress on small business  
          participation does not end with changes in administrations." 

           Related Legislation  .  AB 31 (Price) makes several key changes to  
          state procurement procedures, including increasing the maximum  
          contract threshold amount for awards to small business and DVBE,  
          from $100,000 to $250,000.  This bill also requires contractors  
          to include small business or DVBE participation in reporting  
          requirements.  This bill is pending in the Assembly  
          Appropriations Committee.

          AB 926 (Ruskin) requires state contracting opportunities to  
          state that using a "loss leader" is prohibited.  This bill is  
          pending in the Assembly Business and Professions Committee. 

          SB 356 (Wright) requires an agency to consult with affected  








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          persons and businesses when considering regulations if the  
          proposal is large or complex.  This bill is pending in the  
          Senate Business, Professions and Economic Development Committee.

          SB 642 (Denham) increases the maximum contract threshold amount  
          for awards to small business, including microbusiness and DVBEs  
          under the streamlined procurement process, from $100,000 to  
          $250,000.   This bill also requires contractors to include small  
          business or DVBE participation in reporting requirements.  This  
          bill is pending in the Senate Governmental Organization  
          Committee.

           Prior Legislation  .  AB 1942 (Ruskin) of 2008 would have  
          increased penalties for persons engaging in fraudulent  
          activities relating to the Small Business Act, including DVBEs.   
          The Governor vetoed a substantial number of bills that year with  
          the same message that, due to the delay in passing the 2008-09  
          State Budget, he would only sign bills that were "the highest  
          priority for California.  AB 1942 was vetoed for this reason. 

          AB 2773 (Price) of 2008 would have increased the maximum  
          contract threshold amount for awards to small business,  
          including microbusiness and DVBEs under the streamlined  
          procurement process, from $100,000 to $250,000.  Further, the  
          bill also would have required contractors to include small  
          business or DVBE participation in reporting requirements.  This  
          bill was held in the Senate Appropriations Committee.

          AB 761 (Coto), Chapter 611, Statutes of 2007, required each  
          state agency awarding contracts that are financed with proceeds  
          from the infrastructure bonds approved by voters in November  
          2006 to establish a 25% small business participation goal for  
          state infrastructure construction contracts and to provide  
          specified assistance to small businesses bidding on state  
          infrastructure bond-related contracts.  

          SB 115 (Florez), Chapter 451, Statutes of 2005, made various  
          changes to the DVBE Program, and required DGS to establish a  
          state agency-wide mandatory DVBE participation incentive.  This  
          bill required the DGS Small Business Advocate to provide  
          specified services to small businesses and certified DVBEs.   
          This bill also required DGS to adopt a streamlined reporting  
          procedure for state agencies to use in reporting their DVBE  
          participation to the Department of Veterans Affairs.  









                                                                  AB 309
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           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          National Federation of Independent Business California (NFIB  
          California) (sponsor) 

           Opposition 
           
          None on file. 
           
          Analysis Prepared by  :    Joanna Gin / B. & P. / (916) 319-3301