BILL ANALYSIS
AB 930
Page 1
ASSEMBLY THIRD READING
AB 930 (Saldana)
As Amended April 14, 2009
Majority vote
BUSINESS & PROFESSIONS 10-0
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|Ayes:|Hayashi, Emmerson, | | |
| |Conway, Hernandez, Nava, | | |
| |Niello, | | |
| |John A. Perez, Price, | | |
| |Ruskin, Smyth | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Provides that the State Administrative Manual (SAM)
and the State Contracting Manual (SCM) maintained by the
Department of General Services (DGS) are exempt from the
Administrative Procedures Act (APA) for periods prior to January
1, 1999.
EXISTING LAW provides that commencing on January 1, 1999, the
SAM and SCM are exempt from the APA.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal.
COMMENTS : According to the author's office, "The APA was
enacted on January 1, 1999. However, it did not indicate that
any regulations acted upon by the DGS (on) the SAM and the SCM,
with respect to procurement, prior to that date held the full
force and effect of the law. There was no indication that the
APA was retroactive. This bill would simply ensure that any
actions taken by DGS prior to that date had the full force and
effect of the law stated in the APA."
The California Constitution and the statutes enacted by the
Legislature create the various state agencies, to implement duly
enacted laws. These powers often include the making of rules
and regulations in order to carry out their duties.
Administrative agencies adopt, amend, and repeal regulations
under the authority granted to them by either constitutional
provisions or statutes. Unless the Legislature has created an
exemption, agencies must follow the procedures in the APA when
AB 930
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adopting, amending, or repealing regulations. If a state agency
issues, enforces, or attempts to enforce a rule without
following the APA, the rule is called an "underground
regulation." State agencies are prohibited from enforcing
underground regulations.
According to the California State Auditor (SA) Report 2008-701,
state law typically requires provisions that are regulations,
such as many of those in the SAM and SCM, to be approved under
the APA. However, SB 1645 (Mountjoy), Chapter 731, Statutes of
1998, exempted the SAM and SCM from the APA, in response to an
appellate court opinion finding that a provision of the SAM was
invalid because it was an underground regulation.
A SA report of California Highway Patrol (CHP) contract
purchases concluded that the CHP did not sufficiently explain in
its justification why the price offered under the contract was
fair and reasonable, even though the SCM requires a
justification. The SA report states that if certain provisions
in the SAM and SCM pertaining to competitive bidding are
regulations having the force and effect of law, an argument
could be made that failure to comply with those provisions would
result in a contract becoming void. The SA's legal counsel
opined that since SB 1645 was enacted, no court has definitively
found that the provisions of the SAM and SCM relating to
competitive bidding are regulations having the force and effect
of law. The SA recommended in its report that clarification in
statute that SAM and SCM provisions have the force and effect of
law.
Analysis Prepared by : Joanna Gin / B. & P. / (916) 319-3301
FN: 0000561