BILL ANALYSIS
Bill No: AB
930
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Roderick D. Wright, Chair
2009-2010 Regular Session
Staff Analysis
AB 930 Author: Saldana
As Amended: April 14, 2009
Hearing Date: July 8, 2009
Consultant: Chris Lindstrom
SUBJECT
Department of General Services: Administrative Procedures
Act.
DESCRIPTION
AB 930 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.
BACKGROUND
Purpose of the bill. 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 in
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."
AB 930 (Saldana) continued
Page 2
Background. 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 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 Bureau of State Audits (BSA) Reports
(2007-111 and 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.
BSA Report 2007-111 of California Highway Patrol's (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 BSA 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 BSA'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 BSA recommended in its report that
clarification in statute that SAM and SCM provisions have
the force and effect of law.
PRIOR/RELATED LEGISLATION
SB 1645 (Mountjoy), Chapter 731, Statutes of 1998 . Exempts
the SAM and SCM from the APA, as of January 1, 1999.
AB 930 (Saldana) continued
Page 3
SUPPORT : None on file as of July 6, 2009.
OPPOSE : None on file as of July 6, 2009.
FISCAL COMMITTEE : No.
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