BILL NUMBER: SB 117 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 30, 2011
INTRODUCED BY Senator Kehoe
JANUARY 20, 2011
An act to amend Section 10295.3 of the Public Contract Code,
relating to public contracts.
LEGISLATIVE COUNSEL'S DIGEST
SB 117, as amended, Kehoe. Public contracts: prohibitions:
discrimination based on gender or sexual orientation.
Existing law prohibits a state agency from entering into a
contract for the acquisition of goods or services in the amount of
$100,000 or more with a contractor who, in the provision of benefits,
discriminates between employees with spouses and employees with
domestic partners, or discriminates between the domestic partners and
spouses of those employees.
This bill would also prohibit a state agency from entering into a
contract in the amount of $100,000 or more with a contractor who
discriminates based on the gender or sexual orientation of
the spouses or domestic partners of employees between
employees with spouses or domestic partners of a different sex and
employees with spouses or domestic partners of the same sex, or
discriminates between same-sex and different-sex domestic
partners of employees or between same-sex and different-sex spouses
of employees .
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 10295.3 of the Public Contract Code is amended
to read:
10295.3. (a) (1) Notwithstanding any other provision of law, no
state agency may enter into any contract for the acquisition of goods
or services in the amount of one hundred thousand dollars ($100,000)
or more with a contractor who, in the provision of benefits,
discriminates between employees with spouses and employees with
domestic partners, or discriminates between the domestic
partners and spouses of those employees, or discriminates based on
the gender or sexual orientation of the spouses or domestic partners.
between employees with spouses or domestic partners
of a different sex and employees with spouses or domestic
partners of the same sex, or discriminates between same-sex and
different-sex domestic partners of employees or between same-sex and
different-sex spouses of employees.
(2) For purposes of this section, "contract" includes contracts
with a cumulative amount of one hundred thousand dollars ($100,000)
or more per contractor in each fiscal year.
(3) For purposes of this section, "domestic partner" means one of
two persons who has filed a declaration of domestic partnership with
the Secretary of State pursuant to Division 2.5 (commencing with
Section 297) of the Family Code.
(4) (A) Subject to subparagraph (B), this section does not apply
to any contracts executed or amended prior to January 1, 2007, or to
bid packages advertised and made available to the public, or any
competitive or sealed bids received by the state, prior to January 1,
2007, unless and until those contracts or property contracts are
amended after December 31, 2006, and would otherwise be subject to
this section.
(B) If a duration of a contract executed or amended prior to
January 1, 2007, is for more than one year going beyond January 1,
2008, this section shall apply to the contract on January 1, 2008.
(5) The requirements of this section shall apply only to those
portions of a contractor's operations that occur under any of the
following conditions:
(A) Within the state.
(B) On real property outside the state if the property is owned by
the state or if the state has a right to occupy the property, and if
the contractor's presence at that location is connected to a
contract with the state.
(C) Elsewhere in the United States where work related to a state
contract is being performed.
(b) Contractors shall treat as confidential to the maximum extent
allowed by law or by the requirement of the contractor's insurance
provider, any request by an employee or applicant for employment for
domestic partner or spousal benefits or any documentation of
eligibility for domestic partner or spousal benefits submitted by an
employee or applicant for employment.
(c) After taking all reasonable measures to find a contractor that
complies with this section , as determined by the state
agency, the requirements of this section may be waived under any of
the following circumstances:
(1) Whenever there is only one prospective contractor willing to
enter into a specific contract with the state agency.
(2) If the contract is necessary to respond to an emergency, as
determined by the state agency, that endangers the public health,
welfare, or safety, or the contract is necessary for the provision of
essential services, and no entity that complies with the
requirements of this section capable of responding to the emergency
is immediately available.
(3) Where the requirements of this section violate, or are
inconsistent with, the terms or conditions of a grant, subvention, or
agreement, provided that a good faith attempt has been made by the
agency to change the terms or conditions of any grant, subvention, or
agreement to authorize application of this section.
(4) Where the contractor is providing wholesale or bulk water,
power, or natural gas, the conveyance or transmission of the same, or
ancillary services, as required for assuring reliable services in
accordance with good utility practice, provided that the purchase of
the same may not practically be accomplished through the standard
competitive bidding procedures, and further provided that this
exemption does not apply to contractors providing direct retail
services to end users.
(d) (1) If there is a difference in the cost to provide a certain
benefit to a domestic partner or spouse, the contractor is not deemed
to be in violation of this section so long as it
the contractor permits the employee to pay any
excess costs.
(2) The contractor is not deemed to discriminate in the provision
of benefits if the contractor, in providing the benefits, pays the
actual costs incurred in obtaining the benefit.
(3) In the event a contractor is unable to provide a certain
benefit, despite taking reasonable measures to do so, the contractor
may not be deemed to discriminate in the provision of benefits.
(4) For any contracts executed or amended on or after July 1,
2004, and prior to January 1, 2007, and to bid packages advertised
and made available to the public, or any competitive or sealed bids
received by the state, on or after July 1, 2004, and prior to January
1, 2007, unless and until those contracts or bid packages are
amended after June 30, 2004, but prior to January 1, 2007, and would
otherwise be subject to this section, a contractor may require an
employee to pay the costs of providing additional benefits that are
offered to comply with this section if an employee elects to have the
additional benefits. This paragraph shall not be construed to permit
a contractor to require an employee to cover the costs of providing
any benefits, which have otherwise been provided to all employees
regardless of marital or domestic partner status.
(e) A contractor is not deemed to be in violation of this section
if the contractor does any of the following:
(1) Offers the same benefits to employees with domestic partners
and employees with spouses and offers the same benefits to domestic
partners and spouses of employees.
(2) Elects to provide the same benefits to individuals that are
provided to employees' spouses and employees' domestic partners.
(3) Elects to provide benefits on a basis unrelated to an employee'
s marital status or domestic partnership status, including, but not
limited to, allowing each employee to designate a legally domiciled
member of the employee's household as being eligible for benefits.
(4) Elects not to provide benefits to employees based on their
marital status or domestic partnership status, or elects not to
provide benefits to employees' spouses and to employees' domestic
partners.
(f) (1) Every contract subject to this chapter shall contain a
statement by which the contractor certifies that the contractor is in
compliance with this section.
(2) The department or other contracting agency shall enforce this
section pursuant to its existing enforcement powers.
(3) (A) If a contractor falsely certifies that it is in compliance
with this section, the contract with that contractor shall be
subject to Article 9 (commencing with Section 10420), unless, within
a time period specified by the department or other contracting
agency, the contractor provides to the department or agency proof
that it has complied, or is in the process of complying, with this
section.
(B) The application of the remedies or penalties contained in
Article 9 (commencing with Section 10420) to a contract subject to
this chapter shall not preclude the application of any existing
remedies otherwise available to the department or other contracting
agency under its existing enforcement powers.
(g) Nothing in this section is intended to regulate the
contracting practices of any local jurisdiction.
(h) This section shall be construed so as not to conflict with
applicable federal laws, rules, or regulations. In the event that a
court or agency of competent jurisdiction holds that federal law,
rule, or regulation invalidates any clause, sentence, paragraph, or
section of this code or the application thereof to any person or
circumstances, it is the intent of the state that the court or agency
sever that clause, sentence, paragraph, or section so that the
remainder of this section shall remain in effect.