BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       SB 1176|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  SB 1176
          Author:   Galgiani (D) and Hueso (D), et al.
          Amended:  4/21/16  
          Vote:     21 

           SENATE GOVERNMENTAL ORG. COMMITTEE:  12-0, 4/12/16
           AYES:  Hall, Berryhill, Block, Gaines, Galgiani, Glazer,  
            Hernandez, Hill, Hueso, Lara, McGuire, Vidak
           NO VOTE RECORDED:  Runner

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 5/27/16
           AYES:  Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

           SUBJECT:   Small Business Procurement and Contract Act:   
                     business size


          SOURCE:    Author


          DIGEST:    This bill revises the definition of small business  
          and microbusiness for purposes of the Small Business Procurement  
          and Contract Act (Act) by increasing the dollar amount threshold  
          for a small business to $15 million and for a microbusiness to  
          $5 million and requires those dollar amounts to be adjusted to  
          reflect changes in the California Consumer Price Index (CPI)  
          biennially.  In addition, this bill revises the definition of  
          small business by specifying that, for the purposes of public  
          works contracts, a small business means a business with 200 or  
          fewer employees and average annual gross receipts of $25 million  
          or less over the previous three years. 

          ANALYSIS:








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          Existing law:
          
          1)Grants, through the Act, preference for small businesses and  
            microbusiness in the award of a contract for goods, services,  
            or information technology to the state and in the construction  
            of state facilities. 

          2)Permits a state agency and the California State University to  
            award specified types of contracts with a value of between  
            $5,000 and $250,000 to a certified small business, including a  
            microbusiness and a disabled veteran business enterprise,  
            without complying with certain competitive bidding  
            requirements, provided the agency obtains price quotations  
            from at least 2 small businesses, including microbusinesses,  
            or 2 disabled veteran business enterprises.

          3)Establishes the Office of Small Business and Disabled Veteran  
            Business Enterprise Services and prescribes duties for the  
            office, which include maintaining a bidders list of small  
            businesses and disabled veteran businesses and identifying  
            which small businesses also qualify as microbusinesses.

          4)Prescribes penalties for small businesses or microbusinesses  
            that provide incorrect information or withhold information  
            that leads to its incorrect classification as such an entity  
            and is awarded a contract because of the classification.   
            Penalties include the repayment of the amount of the bid  
            preference, in addition to a penalty up to 10% of the contract  
            amount, reimbursement of the costs of investigating the fraud,  
            prohibiting the business to participate in state contracts for  
            between 3-10 years, and, if the fraud is found to be willful  
            and knowing, the business is subject to a civil penalty of  
            between $10,000-$30,000 for the first offense, and  
            $30,000-$50,000 for subsequent offenses. 

          5)Defines a "small business" to mean an independently owned and  
            operated business that is not dominant in its field of  
            operation, the principal office of which is located in  
            California, the officers of which are domiciled in California,  
            and which, together with affiliates, has 100 or fewer  
            employees, and average annual gross receipts of $10 million or  
            less over the previous three years, or is a manufacturer, as  
            defined, and has 100 or fewer employees.







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          6)Defines a "microbusiness" as a small business which, together  
            with affiliates, has average annual gross receipts of $2.5  
            million or less over the previous three years, or is a  
            manufacturer, as defined, with 25 or fewer employees. 

          7)Defines a "disabled veteran business enterprise " (DVBE) to  
            mean an enterprise that is at least 51% owned by one or more  
            disabled veterans and the daily business operations are  
            managed and controlled by one or more disabled veterans.  For  
            certification purposes a "disabled veteran" is a veteran of  
            the U.S. military, naval, or air service who resides in  
            California and has a service-connected disability of at least  
            10% or more. 

          8)Requires the Director of General Services (DGS) to conduct a  
            biennial review of the average annual gross receipt levels and  
            authorizes the Director to adjust the average annual gross  
            receipts threshold to reflect changes in the California CPI  
            index for all items. 

          9)Requires a contractor requesting a small business or  
            microbusiness preference to do so under penalty of perjury. 

          This bill:

          1)Revises the definition of "small business" and "microbusiness"  
            for purposes of the Act by increasing the dollar amount  
            threshold for a small business to $15 million and for a  
            microbusiness to $5 million and requires those dollar amounts  
            to be adjusted to reflect changes in the CPI.

          2)Revises the definition of "small business" by specifying that,  
            for the purposes of public works contracts, a small business  
            means a business with 200 or fewer employees and average  
            annual gross receipts of $25 million or less over the previous  
            three years.

          3)Defines "public works contracts" to mean contracts awarded  
            through competitive bids or otherwise for the erection,  
            construction, alteration, repair, or improvement of any kind  
            upon real property.

          4)Allows DGS and other state agencies to count contractors that  







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            would be considered a small business or microbusiness under  
            the changes made by this bill for the year in which this  
            subdivision takes effect if the directors are unable to meet  
            the small business participation goals under existing laws. 

          5)Allows more contractors to qualify as a small business or  
            microbusiness, thus expanding the group of contractors  
            authorized to request a preference filed under penalty of  
            perjury. 

          6)Makes various findings and declarations pertaining to the  
            importance of small businesses in the State of California.  

          Background

          Purpose of the bill.  According to the author, "the proposed  
          adjustment takes into consideration inflation, the benefits of  
          increased competition as more small businesses become eligible  
          for state contracting preferences and the recognition that the  
          state, with $29.5 billion in unissued general obligation bonds  
          for infrastructure projects, is currently inconsistently meeting  
          its 25% small business participation goal.  And, with the state  
          engaging in massive, costly and lengthy construction projects,  
          the current revenue limits may disqualify many relatively small  
          businesses after they receive their first substantial  
          subcontracts."

          Current Thresholds. Current law defines a small business as,  
          among other things, an independently owned and operated business  
          with average annual gross receipts of $10 million or less over  
          the previous three years.  It defines a microbusiness as, among  
          other things, a small business with average annual gross  
          receipts of $2.5 million or less over the previous three years.   


          However because current  law allows the Director of DGS to  
          adjust the average annual gross receipts threshold to reflect  
          changes in the CPI the current threshold for a small business is  
          $14 million and $3.5 million for microbusinesses.   As of  
          December 2015, there were 26,404 businesses in California which  
          DGS had certified as small businesses for purposes of the Act.   
          It is unclear how many more businesses would qualify as small  
          businesses with a $25 million threshold for public works  
          contracts.  However, it should be expected that businesses which  







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          currently qualify as small businesses would face competition  
          from businesses that would now qualify under the provisions of  
          this bill. 

          Participation Goals.  On March 29, 2006, Executive Order S-02-06  
          by Governor Schwarzenegger established a minimum participation  
          goal of 25% for small businesses/microbusinesses and directed  
          DGS to monitor the progress of all agencies, departments, boards  
          and commissions towards meeting the 25% small business  
          participation goal.  It should be noted that there is currently  
          no microbusiness participation goal; rather the 25%  
          participation goal for small businesses is a combination of  
          small businesses and microbusinesses.  Also, though DGS  
          implements various strategies to aid departments' achievement of  
          their participation goals, there is no statutory penalty for not  
          meeting the goal. 

          Every year, DGS releases a Consolidated Annual Report (CAR) on  
          contracting dollars that state departments award to small  
          businesses.  There are 154 mandatory reporting departments,  
          those that are under DGS' statutory purchasing authority, that  
          are required to report and another 31 state departments that  
          report voluntarily, departments that are not under DGSs  
          statutory purchasing authority.  

          According to the 2014-15 CAR, mandatory reporting departments  
          exceeded the statewide goal; reporting 25.61% participation by  
          small businesses/ microbusinesses.  It should be noted that the  
          report does not give a detailed breakdown of small  
          businesses/microbusinesses, but rather the 25.61% is a  
          combination of both small businesses/microbusinesses for  
          mandatory reporting departments.  Over the last five years, the  
          average for all mandatory state departments has been 24.78% with  
          a high of 28.35% in fiscal year 2013-14 and a low of 22.12% in  
          fiscal year 2010-2011.

          Small Business Procurement and Contract Act.  The Act was  
          implemented in 1973 to establish a small business preference  
          within the state's procurement process.  The goal is to increase  
          the number of contracts between the state and small businesses.   
          The Act states that it is the policy of the State of California  
          to aid the interests of small businesses in order to preserve  
          free competitive enterprise and to ensure that a fair portion of  
          the total purchases and contracts of the state be placed with  







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          these enterprises.

          Upon meeting eligibility requirements, certified small  
          businesses and micro- businesses are entitled to a 5% bid  
          preference on applicable state solicitations.  Certified small  
          businesses and microbusinesses are eligible for the State's  
          Small Business Participation Program.  The program sets a goal  
          for the use of small businesses in at least 25% of the State's  
          overall annual contract dollars.  

          In addition, under the Prompt Payment Act (PPA), the State must  
          pay a certified small business or microbusiness higher interest  
          penalties for late payment of an undisputed invoice.  The PPA  
          also permits state agencies to use a streamline process, known  
          as the small business/DVBE Option, by contracting directly with  
          California certified small businesses/microbusinesses for goods,  
          services, information technology and Public Works Projects.  The  
          solicitation must be valued at more than $5,000 and the State  
          agency must obtain price quotes from at least two California  
          certified small businesses/microbusinesses.

          Related/Prior Legislation
          
          SB 1219 (Hancock, 2016) includes "employment social enterprise,"  
          which are businesses that provide jobs for individuals who have  
          experienced significant barriers to employment, within the Act  
          for the purpose of allowing them to participate in state  
          contracting bid preferences provided to certified small business  
          enterprises.  (Pending on the Senate Floor)

          AB 1218 (Weber, 2015) makes significant adjustments to  
          contracting performance goals and program participation  
          reporting associated with the DVBE Program.  (Held on the Senate  
          Suspense File)

          AB 1568 (Grove, 2014) would have required state agencies that  
          opt to acquire goods, services, or information technology  
          through a specified small business /DVBE contracting option to  
          solicit at least three quotes, and obtain at least two quotes  
          before awarding the contracts.  (Held on the Senate Suspense  
          File)

          SB 297 (Roth, 2014) would have increased the annual statewide  
          participation goal for DVBE state contracts from 3% to 5%.   







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          (Held in Assembly Jobs, Economic Development and the Economy  
          Committee) 

          AB 218 (Dickinson, Chapter 699, Statutes of 2013) prohibited a  
          state or local agency from asking employment applicants to  
          disclose information regarding their conviction history until  
          the agency has determined an applicant meets the position's  
          minimum employment qualifications. 

          AB 177 (Ruskin, Chapter 342, Statutes of 2010) increased and  
          conformed penalties for persons who falsely engage in activities  
          relating to the Act. 

          AB 31 (Price, Chapter 212, Statutes of 2009) increased the  
          maximum contract threshold amount for awards to small  
          businesses, including microbusinesses, and DVBEs under the  
          state's streamlined procurement process, from $100,000 to  
          $250,000, as specified. 


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


          According to the Senate Appropriations Committee, DGS would  
          incur unknown, likely major, costs to implement the provisions  
          of this bill.  These include one-time FI$Cal programming costs  
          associated with  modifying the IT system's small business  
          certification system; one-time workload associated with updating  
          regulations, the State Contracting Manual, and various training  
          materials and templates; and ongoing workload associated with  
          processing additional certification applications from the newly  
          eligible firms.










          SUPPORT:   (Verified5/27/16)







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          California Hispanic Chamber of Commerce
          Coalition of Small and Disabled Veteran Businesses
          Greater Los Angeles African American Chamber of Commerce
          Los Angeles County Business Federation
          Los Angeles Latino Chamber of Commerce


          OPPOSITION:   (Verified5/27/16)


          None received

          ARGUMENTS IN SUPPORT:  According to the Los Angeles County  
          Business Federation, "California State Departments already have  
          trouble meeting their small business goals due to the lack of  
          small business firms available for large infrastructure  
          projects.  With billions more in infrastructure projects in  
          development, it will take more than 500-600 qualified small  
          businesses to be certified under the current standards to be  
          able to complete for planned mega-projects.  The departments  
          responsible for these projects will not be able to meet their  
          small business goals with the current pool of small businesses."


          Prepared by:Felipe Lopez / G.O. / (916) 651-1530
          5/28/16 17:11:57


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