BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
                              Senator Isadore Hall, III
                                        Chair
                                2015 - 2016  Regular 

          Bill No:           AB 1218          Hearing Date:    7/14/2015
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          |Author:    |Weber                                                |
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          |Version:   |7/7/2015    Amended                                  |
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          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Arthur Terzakis                                      |
          |           |                                                     |
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          SUBJECT: Public contracts: disabled veteran business enterprise


          DIGEST:    This bill makes substantive modifications to  
          contracting performance goals and program participation  
          reporting requirements pertaining to the Disabled Veteran  
          Business Enterprise (DVBE) Program administered by the  
          Department of General Services (DGS).
            

          ANALYSIS:
          
          Existing law:
          
          1)Grants DGS the authority to govern state procurement  
            activities, including acquisition of materials, supplies, and  
            services. 

          2)Stipulates that contracts awarded by state entities for  
            professional bond services, construction, and acquisition of  
            materials, supplies, and services are required to have annual  
            statewide participation goals of not less than 3% for DVBEs. 

          3)Provides that the 3% participation goal applies to the overall  
            dollar amount expended each year by the awarding department,  
            as defined.   
           
          4)Defines a DVBE as a business entity that is at least 51% owned  
            or controlled by one or more disabled veterans, as specified.







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          5)Requires DGS to make available a report on contracting  
            activity containing specified information, including a  
            statistical summary detailing each awarding department's goal  
            achievement under the DVBE program and a statewide total of  
            those goals.

          This bill:

          1)Specifies that, in order to meet the 3% annual goal, an  
            awarding department shall consider whether greater DVBE  
            participation in excess of 3% should actually be required on  
            contracts entered into for goods and services and for  
            professional bond services.

          2)Modifies the existing DVBE incentive program by establishing a  
            greater participation incentive to the following:

             a)   A prime contractor who owns a DVBE and who has not  
               previously entered into any contracts with the state as a  
               prime contractor, rather than to a prime contractor who  
               commits to entering into subcontracts with DVBEs;

             b)   A DVBE that employs a workforce that is more than 50%  
               veterans;

             c)   A DVBE that has not previously entered into any  
               contracts with the state.

          3)Requires the California Department of Veterans Affairs  
            (CalVet) to maintain additional information relative to its  
            promotional efforts of the DVBE program, as specified.  Also,  
            specifies that in order to track the effectiveness of the  
            efforts to promote the DVBE program, CalVet must, at a  
            minimum, include an annual comparison of the list of  
            businesses participating in promotional efforts and those that  
            become a prime contractor or subcontractor under the program  
            so that the success of the promotional activities can be  
            measured.

          4) Provides that a contractor that is not a DVBE yet  
            subcontracts with DVBEs shall, when submitting its  
            certification of expenditures to the awarding department,  
            comply with either of the following: (a) provide on the  
            certification of expenditures to the awarding department, the  








          AB 1218 (Weber)                                    Page 3 of ?
          
          
            signature of any DVBE that performed work for the contractor  
            acknowledging the authenticity of the expenditures or (b)  
            provide the certification of expenditures to any DVBE that  
            performed work for the contractor and proof of any amount of  
            expenditures to that subcontractor.

          5)Requires awarding departments to maintain records of the  
            information provided by the prime contractor, including but  
            not limited to, the name of the prime contractor and  
            subcontractor and the amount awarded to and the amount paid  
            to, each prime and subcontractor.  Also, requires awarding  
            departments to establish review procedures to ensure the  
            accuracy and completeness of the award amounts and the paid  
            amounts reported. 

          6)Makes other minor conforming changes and requires DGS to  
            establish guidelines for reporting multiyear contracts.  

          Background

          Historical Note:  In 1989, SB 1517 - Dills (Chapter 1207)  
          established a 3% participation goal for disabled veteran  
          business enterprises (DVBEs), applicable to all contracts  
          including those for professional bond services, to assist and  
          encourage DVBE participation in state contracting opportunities.  
           In 1990, SB 2398 - Dills (Chapter 516) extended the DVBE  
          participation program to contracts of the University of  
          California, the Department of Corrections and specified public  
          utilities.  In 1993, SCR 18 - Dills, encouraged local entities  
          to enact ordinances and implement policies promoting the  
          participation of DVBEs in construction and procurement  
          contracts.  Also, SJR 13 - Dills of 1993, requested that  
          Congress establish and maintain DVBE programs.
            
          In 2001, Congress expressed support for service disabled and  
          prisoner of war veterans by enacting a 3% participation goal for  
          DVBEs that is modeled after California law.  

          To be eligible to become a certified DVBE, a business must be at  
          least 51% owned by a disabled veteran, have its daily operations  
          managed and controlled by a disabled veteran, and be located in  
          the United States.

          The Problem:  In February 2014, the State Auditor released a  
          report on the DVBE program entitled, "Disabled Veteran Business  








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          Enterprise Program: Meaningful Performance Standards and Better  
          Guidance by the California Departments of General Services and  
          Veterans Affairs Would Strengthen the Program."  The Auditor  
          found that:

                 The State's current method of measuring the success of  
               the DVBE program may distort an assessment of whether the  
               program is meeting the legislative intent.


                 The data in the State Contract and Procurement  
               Registration System indicates that only a relatively small  
               subset of DVBE firms enjoy the major part of the State's  
               business - during fiscal year 2012-13, 83 percent of the  
               DVBE contract award amounts went to only 30 DVBE firms.


                 All five of the awarding departments we visited lacked  
               adequate supporting documentation for their reported fiscal  
               year 2012-13 DVBE contracting activity.


                 The California Department of General Services (General  
               Services) has not provided clear guidance as to what level  
               of support and documentation is sufficient to support their  
               reported DVBE performance data nor how to report DVBE  
               participation on multiyear contracts.


                 General Services currently lacks the ability to obtain a  
               complete and accurate copy of the State's procurement data  
               - as currently maintained in the eProcurement data system.


                 The California Department of Veterans Affairs'  
               management confirmed that it has not taken an active role  
               in coordinating with awarding departments to promote DVBE  
               contracting opportunities.
          The Auditor offered the following recommendations to the  
          Legislature:

          To provide a more meaningful measure of how well disabled  
          veteran-owned businesses benefit financially from the DVBE  
          program, the Legislature should amend the DVBE reporting  
          requirements in the Public Contract Code to require that all  








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          awarding departments report DVBE participation annually based on  
          amounts paid, and maintain accounting records and certifications  
          from DVBE subcontractors, as applicable, that support the DVBE  
          participation data reported.

          If the Legislature chooses not to amend the DVBE reporting  
          requirements in the Public Contract Code - to require awarding  
          departments to report DVBE participation based on amounts paid,  
          not amounts awarded - the Legislature should amend the Public  
          Contract Code to do the following: (1) Require awarding  
          departments to maintain detailed support for their DVBE activity  
          and to establish review procedures to ensure the accuracy and  
          completeness of the amounts reported and (2) Include  
          instructions to awarding departments on how they should report  
          multiyear contracts, either at the time of the award or by an  
          equal distribution of the award over the life of the contract.

          For the DVBE program to financially benefit a broad base of  
          disabled veteran-owned businesses, the Legislature should enact  
          legislation aimed at increasing the number of those DVBEs that  
          contract with the State, including increasing the amount of the  
          DVBE incentive that awarding departments can apply when  
          considering bids on state contracts.  Such an incentive could  
          include additional preference points for certain bids when the  
          bidder is a DVBE firm that the department has not previously  
          used or when the firm is bidding as a prime contractor.

          Purpose of AB 1218.  According to the author's office, this bill  
          incorporates several of the Auditors recommendations referenced  
          above.  Specifically, "this bill makes a number of changes to  
          improve access to the program and to improve program  
          accountability including, preferences for both new DVBEs, those  
          seeking to become prime contractors and those with a workforce  
          comprised of more than 50% veterans; more accuracy in measuring  
          performance toward 3% goals; and outcome-based measurements of  
          DVBE recruitment efforts." 

          Prior/Related Legislation
          
            SB 159 (Nielson, 2015) clarifies that an awarding department's  
          DVBE program participation goal achievement is to be measured by  
          the overall dollar amount expended each year by the awarding  
          department.  (Pending in Assembly policy committee)

          SB 839 (Correa, 2013), among other things, would have  








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          established new requirements for the methodology state  
          departments use to track DVBE participation in their contracts  
          and to report the data to DGS.  (Held in Senate Appropriations  
          Committee)

          SB 719 (Correa, 2013) would have required awarding departments  
          that used the Financial Information System for California  
          (FI$Cal) to report statewide participation goals for the DVBE  
          program in the amount expended to DVBEs.  (Held in Assembly  
          Appropriations Committee)

          SB 382 (Roth, 2013) would have required the Department of  
          Veterans Affairs to create a California Veterans Leadership  
          Program to connect returning veterans of military operations in  
          Iraq and Afghanistan with employment, housing, and mental health  
          resources.  (Held in Senate Veterans Affairs Committee)

          SB 297 (Roth, 2013) would have increased the annual statewide  
          participation goal for DVBEs, applicable to certain state  
          contracts, from 3% to 5%.  (Held in Assembly policy committee at  
          author's request)  

          SB 276 (Roth, 2013) would have modified the Small Business  
          Procurement and Contract Act by increasing the upper limit (from  
          $250,000 to $500,000) of the value of certain contracts that a  
          state agency may award to a certified small business, including  
          microbusiness, or to a DVBE without complying with specified  
          competitive bidding requirements.  (Died in Senate  
          Appropriations Committee)
          
          SB 817 (Veterans Affairs Committee, 2011) would have allowed a  
          vendor with state contracts to meet DVBE goals with dollars from  
          other than state contracts.  Also, would have modified the  
          requirement for a DVBE business utilization plan so that the  
          plan's required listing of products and services includes both  
          direct and indirect costs.  (Held in Senate Appropriations  
          Committee)
          
          SB 115 (Florez, Chapter 451, Statutes of 2005) created a DVBE  
          incentive program for state contracts.

          SB 1008 (Machado, Chapter 632, Statutes of 2003), among other  
          things, strengthened the sanctions that can be levied against  
          businesses that fraudulently misrepresent their eligibility for  
          DVBE certification.  








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          AB 669 (Cohn, Chapter 623, Statutes of 2003), among other  
          things, required DVBEs and small businesses, as defined, to  
          perform commercially useful functions, as defined, in relation  
          to any contract those businesses are awarded under certain  
          provisions of law.  Also, imposed certain civil penalties for  
          fraudulent misrepresentations regarding DVBE and small business  
          state contracts. 

          SB 1033 (Knight, 2002) would have established an additional 3%  
          bid preference for a small business that is also certified as a  
          DVBE.  (Held in Assembly Appropriations Committee)

          FISCAL EFFECT:                 Appropriation:  No    Fiscal  
          Com.:             Yes          Local:          No


            SUPPORT:  

          American Federation of State, County and Municipal Employees,  
          AFL-CIO
          American Legion-Department of California
          American Veterans-Department of California
          Military Officers Association of America, California Council
          Disabled Veterans Business Alliance
          State Council on Developmental Disabilities
          Vietnam Veterans of America-California State Council

          OPPOSITION:

          None received