BILL ANALYSIS                                                                                                                                                                                                    






                      SENATE COMMITTEE ON VETERANS AFFAIRS
                             JEFF DENHAM, CHAIRMAN
                                             


          Bill No:        AB 1918
          Author:         Davis
          Version:        As amended April 5, 2010
          Hearing Date:   June 22, 2010
          Fiscal:         Yes




                                 SUBJECT OF BILL  
          
          Public Utilities and procurement for Disabled Veterans'  
          Business Enterprises (DVBE).  
           
                                   PROPOSED LAW  
           
              1.   Extend DVBE requirements to telecommunication  
               providers.


                           EXISTING LAW AND BACKGROUND  
          
             1.   Since 1989 California has encouraged a goal of  
               awarding a 3% set aside to DVBE on state contracts.

             2.   In the early 2000s, rampant fraud was exposed in  
               the program, and the state legislature has attempted  
               to close fraud loopholes ever since.

             3.   Among other forms of fraud were "pass through"  
               companies that did not manufacture or compete in the  
               market place.  They only added their mark- up to the  
               state's price for commodities.

               AB 669 of 2003 (Cohn) codified the requirement for a  
               DVBE to perform a "commercially useful function"  
               (CUF).  E.g.- State Department "X" needs 100 widgets.   
               Corporation "A" sells them for $10 a piece.   
               Corporation "A"  sold 100 widgets to "DVBE widget  
               salesman", who in turn sells the widgets to the state  
               for $1025.  State department "X" then claimed $1025  









               worth of business with a DVBE instead of $25.

             4.   Another form of fraud that had been detected was  
               the use of limited liability corporations (LLC) to  
               hide the fact that disabled veterans were no longer  
               owners of companies in spite of the fact that the  
               state was awarding contracts to those companies as  
               part of the DVBE program.

               SB 1008 of 2003 (Machado) eliminated LLC for DVBEs  
               unless the company was 100% owned by disabled  
               veterans.

             5.   Fraud also came in the disguise of "equipment  
               brokering."  SB 1008 of 2003 (Machado) also eliminated  
               counting brokered equipment costs towards satisfying  
               the DVBE goal.

             6.   AB 1942 of 2008 (Ruskin) increased the penalty for  
               violating the CUF clause and allowed the Department of  
               General Services (DGS) to recover fraud losses.  The  
               bill made to the governor's desk but was a vetoed  
               casualty of the governor's budget ultimatum that year.

             7.   SB 548 of 2009 (Huff), which was signed into law,  
               required proof after completion of the contract that  
               DVBEs listed on contracts were actually paid.

             8.   After those fraud loopholes were closed the most  
               often used fraud was the exploitation of a "Good Faith  
               Effort" (GFE) in which companies would pretend to  
               contact a DVBE, or contact a DVBE for work in fields  
               other than the work DVBE did, and then report to the  
               state that the contractor in question had in good  
               faith attempted to hire a DVBE.  At the time a GFE  
               could substitute for actual participation in the  
               program.

              ABx4 21 of the 2009 Budget Act eliminated the GFE.
          
                                         
                                    COMMENT  
          
             1.   This bill recodifies outdated provisions of the  

                                      Page 2









               DVBE program that have the potential to reintroduce  
               fraudulent DVBEs back into the California marketplace.

             2.   This committee's concern should be obvious.  Since  
               the DVBE program was wracked with fraud in the early  
               2000s, the Legislature in general, and the Senate in  
               particular, have worked to close loopholes and end  
               fraud within the DVBE program.  

             3.   If this bill passes in its present form, then it  
               will set the precedent for undoing all the reforms  
               that this Legislature, this house, and this committee  
               have worked on since 2003 by recodifying the elements  
               of the Public Utilities Code that allow the Public  
               Utilities Commission (PUC) to certify what is a DVBE  
               without any regard to state law or the legitimacy of  
               those DVBEs.



























                                      Page 3










            STRONGLY SUGGESTED AMENDMENTS- 

             4.   Section 8283 of the Public Utilities Code must be  
               amended to bring DVBE definitions in line with those  
               used by DGS.  This section also needs to clarify that  
               the PUC can only use those DVBEs that are certified  
               and in good standing with DGS. 

             5.   Section 8284 must also be amended to bring DVBE  
               definitions in line with those used by DGS.  Like  
               section 8283 this section also needs to clarify that  
               the PUC can only use those DVBEs that are certified  
               and in good standing with DGS.

             6.   Likewise section 8285 of the Public Utilities Code  
               needs to be amended to implement the already existing  
               penalties for violation of the DVBE program.  There is  
               no more a reason for the PUC to be able to set its own  
               penalties apart from DGS then there is to allow it to  
               arbitrarily determine what constitutes a DVBE.

             7.   AB 2758 (Bradford) is a companion bill (scheduled  
               for hearing on June 29 in the Senate Energy,  
               Utilities, and Communications Committee) to this one  
               and needs chaptering language and/or double jointing  
               language.  If this bill is not signed but AB 2758 is,  
               then that bill will recodify the same fraud loopholes  
               and undo the work of this house and committee in the  
               same manner as AB 1918 if this bill leaves this  
               committee unamended.  


                                  PRIOR ACTIONS

           Assembly Jobs                 4-2
          Assembly Appropriations       11-5
          Assembly Floor                45-26
          Senate Energy                 7-2

          SB 548 (Huff)                 9/2/2009
          Denham                        Aye
          Correa                        Aye
          Cedillo                       Aye

                                      Page 4









          Negrete-McLeod                Aye
          Wyland                        Aye


          ABx4 21 (Evans)               7/23/2009
          Denham                        Aye
          Correa                        Aye
          Cedillo                       No vote recorded
          Negrete-McLeod                Aye
          Wyland                        Aye


          AB 1942 (Ruskin)              8/11/2008
          Denham                        Aye
          Correa                        Aye
          Cedillo                       Aye
          Negrete-McLeod                Aye
          Wyland                        Aye

          SB 1008 of 2003 (Machado)     
          Senator Denham                Aye   9/10/2003
          Senator Cedillo               Aye   9/10/2003 
          Assemblywoman Negrete-McLeod            Aye   9/8/2003
          Assemblyman Wyland       Aye   9/8/2003

          AB 669 of 2003 (Cohn)
          Senator Denham                Aye   9/2/2003
          Senator Cedillo               Aye   9/2/2003
          Assemblywoman Negrete-McLeod Aye   5/15/2003
          Assemblyman Wyland       Aye   5/15/2003


                                     SUPPORT  
          
          None received


                                      OPPOSE  
          
          Elite SDVOB Network, Northern CA Chapter
          Compliance News and Paving Net




                                      Page 5





















































                                      Page 6