BILL NUMBER: AB 172 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 27, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Eng
(Principal coauthor: Assembly Member Gatto)
(Coauthors: Assembly Members Portantino and Solorio)
(Coauthor: Senator Leno)
JANUARY 20, 2011
An act to add Section 10111.5 to the Public Contract
Code, relating to public contracts. An act to add
Sections 11004.4, 11004.5, 11004.6, and 11004.7 to the Government
Code, relating to state agencies.
LEGISLATIVE COUNSEL'S DIGEST
AB 172, as amended, Eng. Public contracts:
State agencies: information: Internet Web site.
Existing law requires, subject to specific exemptions, public
records to be open to public inspection.
This bill would require the California Technology Agency to create
and maintain a Reporting Transparency in Government Internet Web
site, as prescribed. It would require, subject to specific
exemptions, state agencies to post specified audits to that Internet
Web site, and would require the Department of General Services, the
California Technology Agency, and other state agencies to post
specified summary data regarding contracts awarded by the state to
that Internet Web site. It would also require the office of the
Governor to post specified financial statements and reports to that
Internet Web site. The bill would exempt certain constitutional
officers from the requirement of posting the information to the
Reporting Transparency in Government Internet Web site, if that
officer posts the required information to his or her official
Internet Web site, as specified.
Existing law governing contracting between state agencies and
private contractors sets forth requirements for the procurement of
supplies, materials, equipment, and services by state agencies and
sets forth the various responsibilities of the Department of General
Services and other state agencies in overseeing and implementing
state contracting procedures and policies.
This bill would require a state agency, except as specified, to
provide a link to a centrally located and accessible state-run
Internet Web site that includes a list of the personal services and
consulting services contracts, as defined, entered into by the
agency. This bill would require the listings on the state's Internet
Web site to include specified information, and would require a
summary of a contract to be initially posted within 15 working days
of being signed by all parties, as specified. This bill would require
the Director of General Services to maintain the Internet Web site
and to establish the publishing of the contract listing information.
This bill would also authorize the department to use the services of
any state agency.
This bill would require contractors to electronically provide
specified information to assist state agencies in the reporting of
information for the listings of personal services contracts and
consulting services contracts. This bill would make contractors who
fail to provide this information ineligible for any future personal
services contracts or consulting services contracts and would cease
payment for any ongoing contracts until the information is provided.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all
of the following:
(a) Transparency is fundamental to promoting efficiency and
effectiveness in state government and strengthening the democratic
process by giving citizens enough information to reach their own
conclusions about how their tax dollars are being spent.
(b) Audits of state agencies and their operations can provide
objective and measurable performance reviews and identify and correct
inefficient or wasteful practices.
(c) Californians seeking information on state governmental
operations are often frustrated because a myriad of oversight
entities perform audits of state agencies, and the information can be
difficult to access due to the lack of an Internet Web-based,
central inventory of audits.
(d) Many internal audits that state agencies perform on their own
operations are finalized but never made public.
(e) Billions of dollars in state contracts are entered into each
year to purchase goods and services for the people of California, and
posting summary data regarding contracts on the Internet is an
effective way to help ensure that taxpayers are getting the best
value and that services are being provided in an efficient manner.
(f) The Legislature's continuing commitment to promoting
transparency in state government is especially critical while
California's economy continues to struggle.
SEC. 2. Section 11004.4 is added to the
Government Code , to read:
11004.4. (a) The California Technology Agency, or its successor,
shall create and maintain a Reporting Transparency in Government
Internet Web site for the purposes described in Sections 11004.5,
11004.6, and 11004.7.
(b) In addition to the information required pursuant to Sections
11004.5, 11004.6, and 11004.7, the Reporting Transparency in
Government Internet Web site shall also include instructions for the
public that describe how a person may obtain more detailed
information for a contract.
(c) (1) Neither the Lieutenant Governor, nor the Attorney General,
Secretary of State, Treasurer, or Controller is required, pursuant
to Sections 11004.5 and 11004.6, to post information to the Reporting
Transparency in Government Internet Web site, if that officer posts
the information required by those sections on his or her official
Internet Web site.
(2) If the officer, acting pursuant to paragraph (1), determines
that information in a contract is exempt from disclosure pursuant to
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1), then the officer shall post
the following information on his or her official Internet Web site:
(A) The contract number.
(B) The phrase "CPRA exemption claimed."
(C) Other identifying information sufficient to enable a person to
submit a request for the information pursuant to the California
Public Records Act, for purposes of testing the exemption claimed for
the information.
(3) If an officer listed in paragraph (1) chooses, pursuant to
this subdivision, to post the required information to his or her
official Internet Web site, then the Secretary of California
Technology shall provide a clearly labeled link to that Internet Web
site on the Reporting Transparency in Government Internet Web site.
SEC. 3. Section 11004.5 is added to the
Government Code , to read:
11004.5. (a) On or before February 15, 2012, a state agency shall
post to the Reporting Transparency in Government Internet Web site
every audit of its operations finalized from January 1, 2009, to
December 31, 2011, inclusive.
(b) Within 15 calendar days of finalization, a state agency shall
post to the Reporting Transparency in Government Internet Web site
every audit of its operations finalized from January 1, 2012, and
forward.
(c) For purposes of this section, "audit" shall mean any review or
evaluation performed by a state agency on itself, or on the state
agency by another entity, including, but not limited to, the Bureau
of State Audits, the Controller, the Department of Finance, a federal
agency with oversight responsibility of the operations of the state
agency, or any nongovernmental organization that monitors or oversees
the state agency and that has received public funds.
(d) The Department of General Services and the California
Technology Agency shall assist a state agency in complying with the
requirements of this section.
(e) This section shall not require the posting of information
contained in an audit, including, but not limited to, the identity of
any undisclosed expert consultant, that is confidential pursuant to
a court order, the attorney-client privilege, or the attorney work
product exception; or information that, if posted, would jeopardize
peace officer safety, criminal intelligence information, ongoing
investigatory activities, or any security procedure; or any
information the disclosure of which is prohibited by law. Nothing in
this section shall be construed to limit the rights of the public to
access information pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title
1), or Section 3 of Article I of the California Constitution. Any
information withheld from posting shall be replaced with the phrase,
"CPRA exemption claimed."
SEC. 4. Section 11004.6 is added to the
Government Code , to read:
11004.6. (a) On or before February 15, 2012, the Department of
General Services and the California Technology Agency shall post
summary data regarding any contract awarded by the state on or after
March 31, 2010, valued at five thousand dollars ($5,000) or more to
the Reporting Transparency in Government Internet Web site. For
purposes of this section, summary data regarding a contract shall
include, but not be limited to, all of the following:
(1) The department name.
(2) The contract or order number.
(3) The total price.
(4) The contract start and termination dates.
(5) The supplier name.
(6) Any special instructions.
(7) The supplier classification codes.
(8) The acquisition type.
(9) The acquisition method.
(10) The item total.
(11) The quantity.
(12) The description.
(13) The classification codes.
(b) Within 15 calendar days of signing by all parties to the
contract, a state agency shall post to the Reporting Transparency in
Government Internet Web site summary data regarding any contract it
awarded from January 1, 2012, and forward that is valued at five
thousand dollars ($5,000) or more.
(c) The Department of General Services and the California
Technology Agency shall assist a state agency in complying with the
requirements of this section.
(d) This section shall not require the posting of information in a
contract, including, but not limited to, the identity of any
undisclosed expert consultant, that is confidential pursuant to a
court order, the attorney-client privilege, or the attorney work
product exception; or information that, if posted, would jeopardize
peace officer safety, criminal intelligence information, ongoing
investigatory activities, or any security procedure; or any
information the disclosure of which is prohibited by law. Nothing in
this section shall be construed to limit the rights of the public to
access information pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title
1), or Section 3 of Article I of the California Constitution. Any
information withheld from posting shall be replaced with the phrase,
"CPRA exemption claimed."
SEC. 5. Section 11004.7 is added to the
Government Code , to read:
11004.7. The office of the Governor shall post every statement of
economic interest and travel and expense report of its senior staff
and deputies, agency secretaries and undersecretaries, and department
directors to the Reporting Transparency in Government Internet Web
site.
SECTION 1. Section 10111.5 is added to the
Public Contract Code, to read:
10111.5. (a) (1) Each state agency shall provide a link to a
centrally located and accessible state-run Internet Web site that
includes a listing of the personal services contracts and consulting
services contracts that it entered into during the fiscal year.
(2) The Director of General Services shall maintain the Internet
Web site described in paragraph (1) and shall establish the
publishing of the contract listing information specified in
subdivision (c). In implementing this section, the Director of
General Services may use the services of any state agency, as that
term is defined in Section 11000 of the Government Code.
(3) It is the intent of the Legislature that the contract listing
information be made available to the public in an electronic format
that is searchable and easy to use in order to promote and support
government transparency.
(b) Contract listings shall be organized and reported in one of
the following manners:
(1) Using the maximum level of specificity available through the
United Nations Standard Products and Services Code (UNSPSC).
(2) Covering the following broad category names:
(A) Architectural, engineering, and environmental services and
consulting services.
(B) Information technology personal services and consulting
services.
(C) All other contracts that include personal services and
consulting services.
(c) The contract listings shall include, but are not limited to,
the following information:
(1) The name and license, registration, certification, or
identification number of each contractor, as well as whether the
contractor is a for profit, nonprofit, small business, microbusiness,
disabled veteran, or nonprofit veteran's service agency.
(2) The statutory basis for the authorization of each contract,
including, if relevant, any applicable condition permitting personal
services contracts provided by Section 19130 of the Government Code.
(3) The duration of each contract.
(4) The number of amendments to each contract and the number of
renewals of each contract, where applicable.
(5) Reason why low bid was not accepted, if applicable.
(6) Reason for noncompetitive bidding, if applicable.
(7) (A) The total amount of the contract allocation over the
duration of the contract, including all known amendments to the
contract, the total amount paid by the state agency during the most
recently completed fiscal year, and the number, cost, bill rate, and
staffing levels associated with each type of contract employee
retained during the most recently completed fiscal year. In a time
and material contract, staffing levels shall also be described or
accounted for in personnel years or full-time equivalent terms. In
deliverables based contracts, average staffing levels and bill rates
shall be listed on the Internet Web site described in subdivision
(a), as follows:
(i) 90 days after the completion of the contract.
(ii) For a contract of a term of more than one year, 90 days
after June 30 of each year until completion of the contract.
(B) To facilitate state agency reporting of information for the
listings, contractors shall electronically provide to the state
agencies all of the staffing and cost information specified in
subparagraph (A) in a useful and usable manner, which shall be
reportable 60 days after the completion of the contract, and, for a
contract of a term of more than one year , 60 days after June 30 of
each year until completion of the contract. State agencies shall make
this information available to the Director of General Services in a
manner prescribed by the director.
(C) Failure to provide the staffing and cost information required
by subparagraph (B) in a useful and usable manner shall be deemed a
material breach of contract. A contractor who fails to provide the
information shall be ineligible for any future personal services
contracts and consulting services contracts and payments for any
ongoing contracts shall cease until the required information is
provided.
(D) This paragraph shall become operative on January 1, 2013.
(d) (1) On and after July 1, 2013, and before January 1, 2014, a
summary of a contract shall be initially posted within 30 business
days of the contract being signed by all parties. On and after
January 1, 2014, the summary of a contract shall be initially posted
within 15 business days of the contract being signed by all parties.
The contract summary shall be updated as necessary to include any
information required by this section that is not available at the
time of posting.
(2) Notwithstanding paragraph (1), a summary of a contract entered
into by a special fund agency, as determined by the Department of
General Services in consultation with the Department of Finance,
shall be posted on and after July 1, 2012.
(3) This subdivision shall only apply to contracts solicited after
January 1, 2012.
(e) (1) This section shall not require the posting of information
in a contract, including the identity of any undisclosed expert
consultant, that is confidential pursuant to a court order, the
attorney client privilege, or the attorney work product exception or
information, that, if posted, would jeopardize peace officer safety,
criminal intelligence information, ongoing investigatory activities
or any security procedure, or any information the disclosure of which
is prohibited by law.
(2) Nothing in this subdivision shall be construed to limit the
rights of the public to access information pursuant to the California
Public Records Act (Ch. 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code, or Section 3 of Article
I of the California Constitution.
(f) Any inquiries about a specific contract shall be handled by
the contracting state agency. Each contract posted on the Internet
Web site shall include the contact information of the contracting
state agency, or a link to that information.
(g) State agencies that are not required to report to the State
Contract and Procurement Registration System (SCPRS) shall be exempt
from the requirements of this section.
(h) For purposes of this section, the following definitions apply:
(1) "Consulting services contracts" has the same meaning as
defined in Section 10335.5.
(2) "Deliverables" means any contract, requisition, or purchasing
order for products or services that must be completed and delivered
as final products under the terms of an agreement or contract.
"Deliverables" do not include public works contracts that does not
specify actual cost of direct labor at specified hourly rates or
actual cost of materials.
(3) "Personal services contracts" means any contract, requisition,
or purchase order under which labor or personal services is a
separately identifiable element.
(4) "Time and material contract" means a contract under which the
contractor agrees to furnish and install materials or fixtures, or
both, and which sets forth separately a charge for the materials or
fixtures and a charge for their installation or fabrication.
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