BILL ANALYSIS Ó
AB 2844
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CONCURRENCE IN SENATE AMENDMENTS
AB
2844 (Bloom)
As Amended August 19, 2016
Majority vote
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|ASSEMBLY: |64-0 |(June 2, 2016) |SENATE: |34-1 |(August 24, |
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Original Committee Reference: A. & A.R.
SUMMARY: Requires a person who submits a bid or proposal to
enter into, or renew, a contract of $100,000 or more with a
state agency to certify the following, under penalty of perjury:
1)They are in compliance with the California Fair Employment and
Housing Act (FEHA) and the Unruh Civil Rights Act (Unruh Act)
and,
2)Any policy that they have against any sovereign nation or
peoples recognized by the government of the United States,
including, but not limited to, the nation and people of
Israel, is not used to discriminate in violation of the FEHA
or the Unruh Act.
The Senate amendments:
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1)Delete provisions requiring the Attorney General (AG) to
develop, maintain, and post on its Internet Web site a list of
companies that have engaged in discriminatory business
practices in furtherance of a boycott of another country and
report to the Legislature on the constitutionality of
prohibiting a company on the list from contracting with public
entities.
2)Make a number of findings and declarations relating to
California's robust nondiscrimination laws and California's
influence in the marketplace as a market participant.
3)Express legislative intent to ensure that taxpayer funds are
not used to do business with or otherwise support any state or
private entity that engages in discriminatory actions against
individuals under the pretext of exercising First Amendment
rights.
4)Require specified contractors to self-certify, under penalty
of perjury, that they are in compliance with the FEHA and the
Unruh Act; and that any policy that they have adopted against
any sovereign nation or peoples recognized by the United
States (U.S.) government is not used to discriminate in
violation of the FEHA or the Unruh Act.
5)Clarify that any policy adopted by a person or actions taken
thereunder that are reasonably necessary to comply with
federal or state sanctions laws affecting sovereign nations or
their nationals shall not be construed as unlawful
discrimination in violation of this bill.
EXISTING LAW protects individuals against discrimination under
numerous statutes, covering a variety of contexts. FEHA,
established in Government Code Section 12920, and the Unruh Act,
specified in Civil Code Section 51, prohibit discrimination in
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employment, housing, public accommodation, and services provided
by business establishments on the basis of specified personal
characteristics, such as sex, race, color, religion, ancestry,
national origin, age, disability, medical condition, genetic
information, marital status, or sexual orientation.
Additionally, Government Code Section 11135 specifically
prohibits discrimination on the basis of many of these same
protected characteristics in the conduct, operation, or
administration of any program or activity that is by the state
or by any state agency, funded directly by the state, or
receives any financial assistance from the state.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)Department of General Services (DGS): Unquantifiable but
potentially major future increase in ongoing operating costs
due to higher contract costs (General Fund) resulting from the
exclusion of otherwise qualified bidders that may no longer
submit bids under the required certification. The DGS
administers over 9,000 contracts with a value of $100,000 or
more with a combined value of $27.9 billion. In the absence
of any exceptions for situations involving a sole source or
for cases in which all otherwise qualified bidders are
excluded, the costs to obtain alternative goods and/or
services may increase costs to the state. Additionally, to
the extent exercising an option to extend a contract, which
oftentimes provides for advantageous rates or prices, is
deemed a renewal under the provisions of this bill could
likewise result in additional administrative workload and
higher costs to the state for goods and services. While the
magnitude of the impact cannot be quantified, for context,
even a 0.5% increase to overall contract costs would result in
increased costs to the state of about $140 million.
2)Perjury violations: Unknown; potential increase in local
enforcement and incarceration costs (Local Funds) to the
extent felony arrests and convictions for the offense of
perjury are pursued under the provisions of this measure.
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3)Other state agencies: In addition to the DGS, numerous other
state agencies that enter into contracts of over $100,000
would be impacted by an unquantifiable but potentially
significant amount due to the contract certification
requirement established in this bill.
4)Department of Fair Employment and Housing (DFEH): Potential
workload increase to receive and respond to complaints, and
potentially conduct investigations. The actual workload
impact of this measure is largely unknown and would be
dependent on the volume and nature of complaints received and
subsequently investigated. Although this bill does not
directly specify DFEH to field complaints or investigate
potential violations, the receipt of violations of the Unruh
Act and FEHA do fall under the purview of DFEH.
COMMENTS: Senate amendments delete an earlier Assembly-approved
version of this bill that would have required the Attorney
General to maintain a list of companies that engage in
discriminatory business practices in furtherance of a boycott
and provide a related constitutional assessment. Instead, the
Senate amendments limit this bill to contractor
self-certification. Specifically, the amendments require a
contractor seeking to enter into, or renew, a state contract
with a value of $100,000 or more to certify under penalty of
perjury that they are complying with the state's existing
anti-discrimination laws. The amendments further require the
contractor to certify that any policy that they have adopted
against a sovereign nation or peoples recognized by the U.S.
government is not used to discriminate in violation of the
state's anti-discrimination laws.
Analysis Prepared by: Cassie Royce / A. &
A.R. / (916) 319-3600 FN:
0004801
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