PRINTER'S NO. 3031
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2256
Session of
2024
INTRODUCED BY SCOTT, GUENST, MADDEN, KINSEY, T. DAVIS, CEPEDA-
FREYTIZ, HOHENSTEIN, HILL-EVANS, DELLOSO, ROZZI, SANCHEZ,
KAZEEM, MAYES AND GREEN, MAY 1, 2024
REFERRED TO COMMITTEE ON STATE GOVERNMENT, MAY 1, 2024
AN ACT
Amending Titles 51 (Military Affairs), 62 (Procurement) and 74
(Transportation) of the Pennsylvania Consolidated Statutes,
in veteran-owned small businesses, further providing for
definitions, for regulations, for participation goal, for
duties of Department of General Services and for bonding and
progress payments, providing for request for full or partial
waiver and good faith efforts, further providing for reports
and providing for disparity study; in small and disadvantaged
businesses, further providing for policy and for definitions,
providing for Small and Midsize Diverse Business Program and
for nonapplicability, further providing for regulations and
for duties of department, providing for request for full or
partial waiver and good faith efforts, further providing for
bonding and progress payments and for report to General
Assembly and providing for aspirational target, for disparity
study and for program review and expiration; providing for
Program for Construction and Design Professional Services;
and making editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 9601, 9602 heading, (a) and (c), 9603,
9604, 9605, 9606 and 9607 of Title 51 of the Pennsylvania
Consolidated Statutes are amended to read:
§ 9601. Definitions.
Subject to section 9602 (relating to policy and regulations),
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the following words and phrases when used in this chapter shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Aspirational target." A target established by the Secretary
of General Services under section 9603 (relating to Statewide
participation goal and aspirational target).
"Commonwealth agency." As defined in 62 Pa.C.S. § 103
(relating to definitions).
"Contract-specific goal." A goal established by the
Department of General Services in collaboration with the
purchasing agency for use of veteran business enterprises on a
specific procurement.
"Disparity study." A study conducted to determine whether
there is a disparity between the availability and use of veteran
business enterprises in Commonwealth procurement.
"Executive agency." As defined in 62 Pa.C.S. § 103
[(relating to definitions)].
"Good faith efforts." The practices or activities instituted
by a bidder or offeror to promote and ensure participation by
veteran business enterprises in an agency procurement in order
to meet a contract-specific goal.
"Midsize business." As defined in 62 Pa.C.S. § 2102
(relating to definitions).
"Purchasing agency." As defined in 62 Pa.C.S. § 103
[(relating to definitions)].
"Service-disabled." Being in possession of:
(1) a disability rating letter issued by the United
States Department of Veterans Affairs; or
(2) a disability determination from the United States
Department of Defense.
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"Service-disabled veteran-owned midsize business." A midsize
business owned and controlled by:
(1) a service-disabled veteran or veterans; or
(2) if approved by the Department of General Services, a
surviving spouse or permanent caregiver of a service-disabled
veteran.
"Service-disabled veteran-owned small business." A small
business owned and controlled by:
(1) a service-disabled veteran or veterans; or
(2) if approved by the Department of General Services, a
surviving spouse or permanent caregiver of a service-disabled
veteran.
"Small business." As defined in 62 Pa.C.S. § 2102 [(relating
to definitions)].
"State-affiliated entity." As defined in 62 Pa.C.S. § 103
[(relating to definitions)].
"Utilization schedule." A document, submitted by a bidder or
offeror as part of a bid or proposal, in which a bidder or
offeror commits to a level of veteran business enterprise
participation for a contract. If required by the solicitation, a
utilization schedule may also require a bidder or offeror to
identify:
(1) The veteran business enterprises that will be
utilized.
(2) Associated responsibilities and scopes of work.
(3) The dollar value or percentages of the work to be
performed.
"Veteran." An individual who served in the United States
Armed Forces, including a reserve component or the National
Guard, and who was discharged or released from service under
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conditions other than dishonorable.
"Veteran business enterprise." Any of the following:
(1) A veteran-owned small business.
(2) A veteran-owned midsize business.
(3) A service-disabled veteran-owned small business.
(4) A service-disabled veteran-owned midsize business.
"Veteran-owned midsize business." A midsize business owned
and controlled by a veteran or veterans.
"Veteran-owned small business." A small business owned and
controlled by a veteran or veterans.
§ 9602. [Regulations] Policy and regulations.
(a) Promulgation.--The Department of General Services shall
establish policy [in accordance with this subchapter] for
executive agencies and those independent agencies [and may, in
consultation with the department,] for which the Department of
General Services acts as a purchasing agency. The Department of
General Services in its discretion may promulgate regulations
[establishing detailed definitions of the words and phrases
defined in section 9601 (relating to definitions) using, in
addition to the criteria set forth in section 9601, other
criteria as it deems appropriate, including the number of
employees and the dollar volume of business.] to carry out and
enforce the provisions of this subchapter.
* * *
(c) Antifraud provisions.--The Department of General
Services shall establish policy and promulgate regulations
establishing antifraud provisions to deter and penalize
businesses that [are not owned by those who are service-disabled
or by veterans but who falsely claim that they are] falsely
claim the businesses are owned by service-disabled individuals
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or veterans in order to receive any action authorized by this
subchapter.
* * *
§ 9603. [Participation goal.] Statewide participation goal and
aspirational target.
A Statewide annual goal of not less than 3% participation by
[veteran-owned small businesses, including service-disabled
veteran-owned small businesses,] veteran business enterprises is
established. [ The participation goal shall apply to the total
value of all contracts available to small businesses in each
fiscal year.] The Secretary of General Services may set a
Statewide aspirational target for veteran business enterprise
participation which may be reviewed and adjusted every five
years upon completion of a disparity study and which may not be
less than the Statewide annual goal.
§ 9604. Duties of Department of General Services.
The Department of General Services[, with the assistance of
the department,] shall have the following duties:
(1) If feasible, provide appropriate staff, who shall be
responsible to the Department of General Services and who
shall [serve within designated Commonwealth agencies to
assist veteran-owned small businesses and service-disabled
veteran-owned small businesses] assist veteran business
enterprises in this Commonwealth in learning how to do
business with Commonwealth agencies.
(2) Give special publicity to procurement procedures and
issue special publications designed to assist [veteran-owned
small businesses and service-disabled veteran-owned small
businesses] veteran business enterprises in learning how to
do business with Commonwealth agencies.
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(2.1) Verify the current certification of businesses
claiming to be certified as veteran business enterprises.
(3) [Compile, maintain and make available source lists
of veteran-owned small businesses and service-disabled
veteran-owned small businesses] Develop and maintain a
directory of veteran business enterprises for the purpose of
encouraging procurement from [veteran-owned small businesses]
veteran business enterprises.
(4) Include [veteran-owned small businesses and service-
disabled veteran-owned small businesses] veteran business
enterprises on solicitation mailing lists.
(5) Assure that [veteran-owned small businesses and
service-disabled veteran-owned small businesses are
solicited] purchasing agencies solicit veteran business
enterprises on procurements for which the businesses may be
suited.
(6) Develop [special] training programs to assist
[veteran-owned small businesses and service-disabled veteran-
owned small businesses] veteran business enterprises in
learning how to do business with Commonwealth agencies.
[(7) Assure that participation by veteran-owned small
businesses and service-disabled veteran-owned small
businesses is, if appropriate, factored into the evaluation
of proposals for supplies, services or construction when a
purchasing agency uses the competitive sealed proposals
method under 62 Pa.C.S. § 513 (relating to competitive sealed
proposals).
(8) Verify the current certification of businesses
claiming to be certified as veteran-owned small businesses
and service-disabled veteran-owned small businesses.]
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(9) Establish contract-specific goals for utilization of
veteran business enterprises, in collaboration with the
purchasing agency, based upon relevant factors, including the
availability of veteran business enterprises to provide the
supplies, materials and equipment or services required by the
scope of work of the procurement.
(10) In collaboration with the purchasing agency, review
utilization schedules, consider requests for waivers of
contract-specific goals based upon a showing of good faith
efforts and evaluate the extent to which contract-specific
goals were achieved.
(11) Monitor contracts to evaluate compliance with
contract-specific goals and commitments.
(12) Cooperate with and provide assistance to
Commonwealth agencies to facilitate participation by veteran
business enterprises in procurements.
(13) Receive, review and act upon complaints and
suggestions concerning the utilization of veteran business
enterprises, with the assistance of the purchasing agency, as
appropriate.
(14) Monitor and evaluate the Commonwealth's use of
veteran business enterprises and the Commonwealth's progress
toward the aspirational target.
(15) Require that applications for veteran business
enterprises verification under this chapter shall be sworn
under oath.
§ 9605. Bonding and progress payments.
(a) Bonding.--Notwithstanding 62 Pa.C.S. Pt. I (relating to
Commonwealth Procurement Code) or any other law or regulation:
(1) Except as provided in paragraph (2), a purchasing
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agency may reduce the [level] amount or change the types of
bonding normally required or accept alternative forms of
security to the extent reasonably necessary to encourage
procurement from [veteran-owned small businesses and service-
disabled veteran-owned small businesses] veteran business
enterprises.
(2) For contracts under $25,000, [veteran-owned small
businesses and service-disabled veteran-owned small
businesses] veteran business enterprises shall be exempt from
any bonding requirements.
(b) Progress payments.--A purchasing agency may make special
provisions for progress payments as it deems reasonably
necessary to encourage procurement from [veteran-owned small
businesses and service-disabled veteran-owned small businesses]
veteran business enterprises.
§ 9606. [(Reserved).] Request for full or partial waiver and
good faith efforts.
Notwithstanding any provision of this subchapter, bidders or
offerors may request a partial or full waiver of a contract-
specific goal for veteran business enterprise participation. The
following apply:
(1) A bidder or offeror requesting a partial or full
waiver shall submit, in writing, a report detailing good
faith efforts to meet the contract-specific goal as required
by the solicitation.
(2) In reviewing a bidder's or offeror's written request
for a partial or full waiver of a contract-specific goal, the
purchasing agency, based on the recommendation of the
Department of General Services, shall determine if a bidder
or offeror has made good faith efforts to meet the contract-
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specific goal and to what extent the waiver request should be
granted.
(3) In determining if a bidder or offeror has made good
faith efforts, the purchasing agency and the Department of
General Services may consider levels of participation by
veteran business enterprises by other bidders or offerors.
§ 9607. Reports.
[(a) Report to Department of General Services.--By August
15, 2013, and each August 15 thereafter, each executive agency
and independent agency shall submit an annual report for the
period of July 1 to June 30 to the Department of General
Services on actual utilization of veteran-owned small businesses
and service-disabled veteran-owned small businesses as
contractors, subcontractors, suppliers and professional service
providers.
(b) Report to standing committees.--
(1) The Department of General Services and each State-
affiliated entity shall annually, before October 1, report in
writing to the Veterans Affairs and Emergency Preparedness
Committee of the Senate and the Veterans Affairs and
Emergency Preparedness Committee of the House of
Representatives the actual utilization, Statewide and by each
purchasing agency, of veteran-owned small businesses and
service-disabled veteran-owned small businesses during the
preceding fiscal year.
(2) The report shall include a list of all veteran-owned
small businesses and service-disabled veteran-owned small
businesses that participated as contractors, subcontractors,
suppliers and professional service providers during the
preceding fiscal year.
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(3) Initial reports under this subsection shall be
submitted to the standing committees by October 1, 2013.]
(c) Annual report.--
(1) The Department of General Services shall annually
report in writing to the Veterans Affairs and Emergency
Preparedness Committee of the Senate and the Veterans Affairs
and Emergency Preparedness Committee of the House of
Representatives concerning the awarding of contracts to
veteran business enterprises.
(2) Each annual report shall include statistical
information regarding veteran business enterprises, including
business classification, location and industry.
(3) In preparing an annual report, the Department of
General Services shall verify if commitments made to veteran
business enterprises in the course of awarding the contracts
have been maintained or achieved.
Section 2. Title 51 is amended by adding a section to read:
§ 9609. Disparity study.
Beginning no later than June 30, 2024, and every five years
thereafter, the Department of General Services may complete a
Statewide disparity study on the availability and use of veteran
business enterprises, the results of which may be used to set an
aspirational target under section 9603 (relating to Statewide
participation goal and aspirational target ).
Section 3. Chapter 21 heading and sections 2101 and 2102 of
Title 62 are amended to read:
CHAPTER 21
SMALL AND [DISADVANTAGED] MIDSIZE DIVERSE BUSINESSES
§ 2101. Policy.
The policy of this Commonwealth is [to assist small and
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disadvantaged businesses in learning how to do business with
Commonwealth agencies. The department shall implement this
policy in accordance with regulations promulgated by the
department.] to provide equitable opportunities in its
procurements to small businesses, midsize businesses, small
diverse businesses and midsize diverse businesses, both as prime
contractors and subcontractors, and to assist small businesses,
midsize businesses, small diverse businesses and midsize diverse
businesses in learning how to do business with Commonwealth
agencies. The department shall implement this policy in
accordance with department regulations and policy.
§ 2102. Definitions.
Subject to section 2103 (relating to policy and regulations),
the following words and phrases when used in this chapter shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Agency liaison." An agency employee reporting directly to a
secretary, agency head or equivalent responsible for assisting
the agency on issues related to the program.
"Aspirational target." A target established by the Secretary
of General Services under section 2109 (relating to aspirational
target).
"Contract-specific goal." A goal established by the
department in collaboration with the purchasing agency for use
of small diverse businesses and midsize diverse businesses on a
specific procurement.
["Disadvantaged business." A small business which is owned
or controlled by a majority of persons, not limited to members
of minority groups, who have been deprived of the opportunity to
develop and maintain a competitive position in the economy
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because of social disadvantages.]
"Disparity study." A study conducted to determine whether
there is a disparity between the availability and use of small
diverse businesses and midsize diverse businesses in
Commonwealth procurement.
"Good faith efforts." The practices or activities instituted
by a bidder or offeror to promote and ensure participation by
small diverse businesses and midsize diverse businesses in an
agency procurement in order to meet a contract-specific goal.
"Midsize business." A business in the United States which is
independently owned and is not dominant in its field of
operation and employs 750 or fewer employees.
"Midsize diverse business." A midsize business owned or
controlled by a majority of persons, not limited to members of
minority groups, that have been deprived of the opportunity to
develop and maintain a competitive position in the economy
because of economic and social disadvantages.
"Program." The Small and Midsize Diverse Business Program
established under section 2102.1 (relating to Small and Midsize
Diverse Business Program).
"Race-neutral and gender-neutral measures." Methodologies
that are or can be used to assist businesses, notwithstanding
the social, economic, racial or gender composition of the
individuals that own or control the business.
"Small business." A business in the United States which is
independently owned[,] and is not dominant in its field of
operation and employs [100] 500 or fewer employees.
"Small diverse business." A small business owned or
controlled by a majority of persons, not limited to members of
minority groups, that have been deprived of the opportunity to
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develop and maintain a competitive position in the economy
because of economic and social disadvantages.
"Social disadvantages." An individual is believed to have
experienced social disadvantages if the individual is a member
of a socially disadvantaged group whose members historically
have been subjected to racial or ethnic discrimination within
the United States because of their identity as members of the
group, without regard to their individual qualities. The
following apply:
(1) If the individual identifies as Black, Hispanic,
Native American or Asian American, or any combination
thereof, the individual shall be presumed to be socially
disadvantaged.
(2) If the individual does not identify as Black,
Hispanic, Native American or Asian American, or any
combination thereof, the individual must establish that the
individual is a socially disadvantaged individual by a
preponderance of the evidence.
"Utilization schedule." A document, submitted by a bidder or
offeror as part of a bid or proposal, in which a bidder or
offeror commits to a level of small diverse business or midsize
diverse business participation for a contract. If required by
the solicitation, a utilization schedule may also require a
bidder or offeror to identify:
(1) The small diverse businesses or midsize diverse
businesses that will be utilized.
(2) Associated responsibilities and scopes of work.
(3) The dollar value or percentages of the work to be
performed.
Section 4. Title 62 is amended by adding sections to read:
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§ 2102.1. Small and Midsize Diverse Business Program.
The Small and Midsize Diverse Business Program is established
in the department.
§ 2102.2. Nonapplicability.
Beginning on and after the effective date of this section,
this chapter shall not apply to procurements for construction
and design professional services.
Section 5. Sections 2103 and 2104 of Title 62 are amended to
read:
§ 2103. [Regulations] Policy and regulations.
[The] To implement the program, the department shall
establish policy for executive and those independent agencies
for which the department acts as purchasing agency and may
promulgate regulations [establishing detailed definitions of the
words and phrases defined in section 2102 (relating to
definitions) using, in addition to the criteria set forth in
section 2102, other criteria as it deems appropriate, including
the number of employees and the dollar volume of business.
State-affiliated entities shall implement the policy for their
procurement programs.] to carry out and enforce the provisions
of this chapter. State-affiliated entities shall implement the
policy for their procurement.
§ 2104. Duties of department.
[The department shall have the following duties] The
department shall administer the program. The department's duties
shall include:
(1) [Where feasible, provide appropriate staff who shall
be responsible to the department and who shall serve within
designated Commonwealth agencies to assist small and
disadvantaged businesses in this Commonwealth in learning how
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to do business with Commonwealth agencies.] Formulating,
proposing and implementing policy and regulations for the
development, implementation and monitoring of the program,
including the process or procedures to govern the following:
(i) The process and criteria for certification,
verification, recertification and decertification of
small businesses, midsize businesses, small diverse
businesses and midsize diverse businesses.
(ii) The setting of contract-specific goals.
(iii) Changes to solicitation and contract language,
requirements and forms.
(iv) Monitoring and tracking contract commitments
and utilization of small diverse businesses and midsize
diverse businesses.
(v) Mentor-protégé programs.
(vi) Program-related education, training, networking
and outreach.
(vii) Any other processes or procedures the
department deems necessary to implement the program.
(2) [Give special publicity to procurement procedures
and issue special publications designed to assist small and
disadvantaged businesses in learning how to do business with
Commonwealth agencies.] Developing, using and assisting
purchasing agencies in using race-neutral and gender-neutral
measures to facilitate the participation of all firms in
Commonwealth procurement activities, including the
implementation of a program to reserve procurements for award
to self-certified small businesses and midsize businesses
only.
(3) [Compile, maintain and make available source lists
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of small and disadvantaged businesses for the purpose of
encouraging procurement from small and disadvantaged
businesses.] Developing and maintaining a directory of small
businesses, midsize businesses, small diverse businesses and
midsize diverse businesses.
(4) [Include small and disadvantaged businesses on
solicitation mailing lists.] Providing information and
assistance to small businesses, midsize businesses, small
diverse businesses and midsize diverse businesses relating to
the program, including special training programs to assist
small businesses, midsize businesses, small diverse
businesses and midsize diverse businesses in learning how to
do business with Commonwealth agencies and serving as liaison
to community, contractors, professionals and supplier groups,
associations and organizations.
(5) [Assure that small and disadvantaged businesses are
solicited on each procurement for which the businesses may be
suited.] Collaborating with and providing information and
assistance to Commonwealth agencies to facilitate
participation by small businesses, midsize businesses, small
diverse businesses and midsize diverse businesses in
procurements.
(6) [Develop special training programs to assist small
and disadvantaged businesses in learning how to do business
with Commonwealth agencies.] Establishing thresholds for
procu rements which require the setting of contract-specific
goals.
(7) Ensuring that small diverse businesses and midsize
diverse businesses are solicited on procurements for which
the businesses may be suited.
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(8) Establishing contract-specific goals, in
collaboration with the purchasing agency, based upon relevant
factors, including the availability of small diverse
businesses and midsize diverse businesses to provide the
supplies, materials and equipment or services required by the
scope of work of the procurement.
(9) In collaboration with the purchasing agency,
reviewing utilization schedules, considering requests for
waivers of contract-specific goals based upon a showing of
good faith efforts and evaluating the extent to which
contract-specific goals were achieved.
(10) Monitoring contracts to evaluate compliance with
contract-specific goals and commitments.
(11) Receiving, reviewing and acting upon complaints and
suggestions concerning the program, with the assistance of
the purchasing agency, as appropriate.
(12) Coordinating with agency liaisons on agency issues
related to the program.
(13) Evaluating the effectiveness and utility of the
program.
(14) Monitoring the program and the Commonwealth's
progress toward the aspirational target.
(15) Establishing business assistance offices throughout
this Commonwealth to assist small businesses and midsize
businesses to carry out the provisions of the program.
(16) Requiring that all applications for small business,
midsize business, small diverse business and midsize diverse
business verification under this chapter shall be sworn under
oath.
(17) Identifying barriers to equitable participation by
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small diverse businesses and midsize diverse businesses in
Commonwealth procurement.
(18) Designating staff to assist small businesses,
midsize businesses, small diverse businesses and midsize
diverse businesses in learning how to participate in
Commonwealth procurement in accordance with this chapter.
(19) Developing the conditions under which a contract-
specific goal may be waived, either partially or fully, upon
request of a bidder or offeror in accordance with section
2105 (relating to bonding and progress payments).
Section 6. Title 62 is amended by adding a section to read:
§ 2104.1. Request for full or partial waiver and good faith
efforts.
Notwithstanding any provision of this chapter, bidders or
offerors may request a partial or full waiver of a contract-
specific goal for small diverse business or midsize diverse
business participation. The following apply:
(1) A bidder or offeror requesting a partial or full
waiver shall submit, in writing, a report detailing the
bidder's or offeror's good faith efforts to meet the
contract-specific goal as required by the solicitation.
(2) In reviewing a bidder's or offeror's written request
for a partial or full waiver of a contract-specific goal, the
purchasing agency, based on the recommendation of the
department, shall determine if a bidder or offeror has made
good faith efforts to meet the contract-specific goal and to
what extent the waiver request should be granted.
(3) In determining if a bidder or offeror has made good
faith efforts, the purchasing agency and the department may
consider levels of participation by small diverse businesses
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and midsize diverse businesses by other bidders or offerors.
Section 7. Sections 2105 and 2107 of Title 62 are amended to
read:
§ 2105. Bonding and progress payments.
(a) Bonding.--Notwithstanding [other provisions of this
part] any provisions of law, a purchasing agency may reduce the
[level] amount or change the types of bonding normally required
or accept alternative forms of security to the extent reasonably
necessary to encourage procurement from [small and disadvantaged
businesses] small businesses, midsize businesses, small diverse
businesses and midsize diverse businesses.
(b) Progress payments.--A purchasing agency may make special
provisions for progress payments as it deems reasonably
necessary to encourage procurement from [small and disadvantaged
businesses] small businesses, midsize businesses, small diverse
businesses and midsize diverse businesses.
§ 2107. Report to General Assembly.
The department shall annually[, before October 1,] report in
writing to the General Assembly concerning the awarding of
contracts [to small and disadvantaged businesses] and
subcontracts to small businesses, midsize businesses, small
diverse businesses and midsize diverse businesses during the
preceding fiscal year. The report shall include [a list of all
small and disadvantaged businesses that participated as
contractors, subcontractors or suppliers during the preceding
fiscal year for contracts if the number of contractors under a
previously existing contract for the same supply or service is
reduced to a single contractor or reduced by more than 50% of
the number existing on September 30, 2003.] statistical
information regarding the program and information regarding
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small businesses, midsize businesses, small diverse businesses
and midsize diverse businesses, including business
classification, location and industry. In preparing the report,
the department shall verify whether commitments made to small
[and disadvantaged] diverse businesses and midsize diverse
businesses in the course of awarding these contracts have been
maintained or achieved.
Section 8. Title 62 is amended by adding sections to read:
§ 2109. Aspirational target.
The Secretary of General Services shall set an aspirational
target for small diverse business and midsize diverse business
participation by the Commonwealth, which shall be reviewed and
adjusted every five years upon completion of a disparity study.
§ 2110. Disparity study.
(a) Requirement.--Beginning no later than June 30, 2024, and
at least once every five years thereafter, the department shall
complete a Statewide disparity study on the availability and use
of small diverse businesses and midsize diverse businesses, the
results of which shall be used to set an aspirational target
under section 2109 (relating to aspirational target).
(b) Notice and publication.--The Secretary of General
Services shall transmit notice, to the Legislative Reference
Bureau for publication in the next available issue of the
Pennsylvania Bulletin, regarding whether or not the disparity
study shows a statistically significant disparity.
§ 2111. Program review and expiration.
(a) Review.--Upon completion of the disparity study
conducted under section 2110 (relating to disparity study), the
department shall review the results and recommendations of the
disparity study and the operation of and evidentiary basis for
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the program to determine whether the Commonwealth has a
continuing compelling interest in remedying discrimination
against small diverse businesses and midsize diverse businesses
in its marketplace and the permissible scope of any narrowly
tailored remedies to redress discrimination against small
diverse businesses and midsize diverse businesses so that the
Commonwealth will not function as a passive participant in a
discriminatory marketplace.
(b) Expiration.--This chapter shall expire January 1, 2028,
unless the disparity study completed under section 2110 shows a
statistically significant disparity in the utilization of small
diverse businesses and midsize diverse businesses. If the
disparity study shows a statistically significant disparity, the
program shall renew for an additional five years with the review
and expiration under this section each occurring every five
years thereafter until the disparity study shows no
statistically significant disparity in the utilization of small
diverse businesses and midsize diverse businesses.
Section 9. Title 62 is amended by adding a chapter to read:
CHAPTER 21A
PROGRAM FOR CONSTRUCTION AND
DESIGN PROFESSIONAL SERVICES
Sec.
21A01. Definitions.
21A02. Program for Construction and Design Professional
Services.
21A03. Applicability.
21A04. Policy and regulations.
21A05. Duties of department.
21A06. Request for full or partial waiver and good faith
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efforts.
21A07. Bonding and progress payments.
21A08. Report to General Assembly.
21A09. Aspirational target.
21A10. Disparity study.
21A11. Compliance with Federal requirements.
21A12. Review and expiration.
§ 21A01. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Aspirational target." A target established by the Secretary
of General Services under section 21A09 (relating to
aspirational target).
"Contract-specific goal." A goal established by the
department in collaboration with the purchasing agency for use
of small diverse businesses and midsize diverse businesses on a
specific procurement.
"Disparity study." A study conducted to determine whether
there is a disparity between the availability and use of small
diverse businesses and midsize diverse businesses in
Commonwealth procurement for construction and design
professional services.
"Good faith efforts." The practices or activities instituted
by a bidder or offeror to promote and ensure participation by
small diverse businesses and midsize diverse businesses in
agency procurements for construction and design professional
services in order to meet a contract-specific goal.
"Midsize business." A business in the United States which is
independently owned and is not dominant in its field of
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operation and employs 750 or fewer employees.
"Midsize diverse business." A midsize business owned or
controlled by a majority of persons, not limited to members of
minority groups, who have been deprived of the opportunity to
develop and maintain a competitive position in the economy
because of economic and social disadvantages.
"Program." The Program for Construction and Design
Professional Services established under section 21A02 (relating
to Program for Construction and Design Professional Services).
"Race-neutral and gender-neutral measures." Methodologies
that are or can be used to assist businesses, notwithstanding
the social, economic, racial or gender composition of
individuals that own or control the business.
"Small business." A business in the United States which is
independently owned and is not dominant in its field of
operation and employs 500 or fewer employees.
"Small diverse business." A small business owned or
controlled by a majority of persons, not limited to members of
minority groups, who have been deprived of the opportunity to
develop and maintain a competitive position in the economy
because of economic and social disadvantages.
"Social disadvantages." As defined in section 2102 (relating
to definitions).
"Utilization schedule." A document, submitted by a bidder or
offeror as part of a bid or proposal, in which a bidder or
offeror commits to a level of small diverse business or midsize
diverse business participation for a contract. If required by
the solicitation, a utilization schedule may also require a
bidder or offeror to identify:
(1) The small diverse businesses and midsize diverse
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businesses that will be utilized.
(2) Associated responsibilities and scope of work.
(3) The dollar value or percentages of the work to be
performed.
§ 21A02. Program for Construction and Design Professional
Services.
The Program for Construction and Design Professional Services
is established in the department.
§ 21A03. Applicability.
This chapter shall apply to procurements for construction and
design professional services.
§ 21A04. Policy and regulations.
To implement the program, the department shall establish
policy for executive and independent agencies for which the
department acts as a purchasing agency and may promulgate
regulations to carry out and enforce the provisions of this
chapter. State-affiliated entities shall implement the policy
for their procurement programs.
§ 21A05. Duties of department.
The department shall administer the program. The department's
duties shall include:
(1) Formulating, proposing and implementing policy and
regulations for the development, implementation and
monitoring of the program, which shall include processes or
procedures to govern the following:
(i) The process and criteria for certification,
verification, recertification and decertification of
small businesses, midsize businesses, small diverse
businesses and midsize diverse businesses.
(ii) The setting of contract-specific goals.
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(iii) Changes to solicitation and contract language,
requirements and forms.
(iv) Monitoring and tracking contract commitments
and utilization of small diverse businesses and midsize
diverse businesses.
(v) Mentor-protégé programs.
(vi) Program-related education, training, networking
and outreach.
(vii) Any other processes or procedures the
department deems necessary to implement the program for
construction and design professional services.
(2) Developing, using and assisting purchasing agencies
in using race-neutral and gender-neutral measures to
facilitate the participation of firms in Commonwealth
procurement activities, including the implementation of a
program to reserve procurements for award to small diverse
businesses and midsize diverse businesses only.
(3) Providing information and assistance to small
businesses, midsize businesses, small diverse businesses and
midsize diverse businesses relating to the program, including
special training programs to assist small businesses, midsize
businesses, small diverse businesses and midsize diverse
businesses in learning how to do business with Commonwealth
agencies and serving as a liaison to community, contractors,
professionals and supplier groups, associations and
organizations.
(4) Establishing thresholds for construction and design
professional services procurements which require the setting
of contract-specific goals.
(5) Ensuring that small diverse businesses and midsize
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diverse businesses are solicited on procurements for which
the businesses may be suited.
(6) Establishing contract-specific goals, in
collaboration with the purchasing agency, based upon relevant
factors, including the availability of small diverse
businesses and midsize diverse businesses to provide the
supplies, materials and equipment or services required by the
scope of work of the procurement.
(7) In collaboration with the purchasing agency,
reviewing utilization schedules, considering requests for
waivers of contract-specific goals based upon a showing of
good faith efforts and evaluating the extent to which
contract-specific goals were achieved.
(8) Monitoring contracts to evaluate compliance with
contract-specific goals and commitments.
(9) Receiving, reviewing and acting upon complaints and
suggestions concerning the program, with the assistance of
the purchasing agency, as appropriate.
(10) Evaluating the effectiveness and utility of the
program.
(11) Monitoring the program and the Commonwealth's
progress toward the aspirational target.
(12) Identifying barriers to equitable participation by
small diverse businesses and midsize diverse businesses in
Commonwealth procurements for construction and design and
professional services.
(13) Designating staff to assist small businesses,
midsize businesses, small diverse businesses and midsize
diverse businesses in learning how to participate in
Commonwealth procurement in accordance with this chapter.
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(14) Developing and maintaining a directory of small
businesses, midsize businesses, small diverse businesses and
midsize diverse businesses.
(15) Requiring that all applications for small business
and midsize business certification and small diverse business
and midsize diverse business verification under this chapter
shall be sworn under oath.
(16) Collaborating with and providing information and
assistance to Commonwealth agencies to facilitate
participation by small businesses, midsize businesses, small
diverse businesses and midsize diverse businesses in
construction and design professional services procurements.
(17) Developing the conditions under which a contract-
specific goal may be waived, either partially or fully, upon
request of a bidder or offeror in accordance with section
21A06 (relating to request for full or partial waiver and
good faith efforts).
§ 21A06. Request for full or partial waiver and good faith
efforts.
Notwithstanding any provision of law, bidders or offerors may
request a partial or full waiver of a contract-specific goal for
small diverse business or midsize diverse business
participation. The following apply:
(1) A bidder or offeror requesting a partial or full
waiver shall submit, in writing, a report detailing the
bidder's or offeror's good faith efforts to meet the
contract-specific goal as required by the solicitation.
(2) In reviewing a bidder's or offeror's written request
for a partial or full waiver of a contract-specific goal, the
purchasing agency, based on the recommendation of the
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department, shall determine if a bidder or offeror has made
good faith efforts to meet the contract-specific goal and to
what extent the waiver request should be granted.
(3) In determining if a bidder or offeror has made good
faith efforts, the purchasing agency and the department may
consider levels of participation by small diverse businesses
and midsize diverse businesses by other bidders or offerors.
§ 21A07. Bonding and progress payments.
(a) Bonding.--Notwithstanding other provisions of law, a
purchasing agency may reduce the level or change the types of
bonding normally required or accept alternative forms of
security to the extent reasonably necessary to encourage
procurement from small businesses, midsize businesses, small
diverse businesses and midsize diverse businesses.
(b) Progress payments.--A purchasing agency may make special
provisions for progress payments as it deems reasonably
necessary to encourage procurement from small businesses,
midsize businesses, small diverse businesses and midsize diverse
businesses.
§ 21A08. Report to General Assembly.
The department shall annually report in writing to the
General Assembly regarding the awarding of contracts and
subcontracts to small businesses, midsize businesses, small
diverse businesses and midsize diverse businesses during the
preceding fiscal year. The following apply:
(1) The report shall include statistical data from the
program, including business classification, location and
industry.
(2) In preparing the report, the department shall verify
if the commitments made in the awarding of contracts were
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maintained or achieved.
§ 21A09. Aspirational target.
The Secretary of General Services shall set an aspirational
target for small diverse business and midsize diverse business
participation by the Commonwealth on procurements subject to
this chapter, which shall be reviewed and adjusted every five
years upon completion of a disparity study.
§ 21A10. Disparity study.
(a) Requirement.--Beginning no later than June 30, 2024, and
at least once every five years thereafter, the department shall
complete a Statewide disparity study on the availability and use
of small diverse businesses and midsize diverse businesses in
Commonwealth construction and design professional services, the
results of which shall be used to set an aspirational target
under section 21A09 (relating to aspirational target).
(b) Notice and publication.--The Secretary of General
Services shall transmit notice, to the Legislative Reference
Bureau for publication in the next available issue of the
Pennsylvania Bulletin, regarding whether or not the disparity
study shows a statistically significant disparity in the
utilization of small diverse businesses and midsize diverse
businesses.
§ 21A11. Compliance with Federal requirements.
If a procurement involves the expenditure of Federal
assistance or contract money, the purchasing agency shall comply
with Federal law and authorized regulations which are
mandatorily applicable and which are not presently reflected in
this part.
§ 21A12. Review and expiration.
(a) Review.--Upon completion of the disparity study
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conducted under section 21A10 (relating to disparity study), the
department shall review the results and recommendations of the
disparity study and the operation of and evidentiary basis for
the program in order to determine whether the Commonwealth has a
continuing compelling interest in remedying discrimination
against small diverse businesses and midsize diverse businesses
in its marketplace, and the permissible scope of any narrowly
tailored remedies to redress discrimination against small
diverse businesses and midsize diverse businesses so that the
Commonwealth will not function as a passive participant in a
discriminatory marketplace.
(b) Expiration.--This chapter shall expire January 1, 2028,
unless the disparity study completed under section 21A10 shows a
statistically significant disparity in the utilization of small
diverse businesses and midsize diverse businesses. If the
disparity study shows a statistically significant disparity, the
program shall renew for an additional five years with the review
and expiration under this section each occurring every five
years thereafter until the disparity study shows no
statistically significant disparity in the utilization of small
diverse businesses and midsize diverse businesses.
Section 10. Section 303(a.4) of Title 74 is amended to read:
§ 303. Diverse business participation.
* * *
(a.4) Construction.--Nothing in this section shall be
construed to supersede, nullify or otherwise affect 51 Pa.C.S. §
9603 (relating to [participation goal] Statewide participation
goal and aspirational target). In the case of an inconsistency
between this section and 51 Pa.C.S. Ch. 96 (relating to veteran-
owned small businesses), the provisions of 51 Pa.C.S. Ch. 96
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shall prevail.
* * *
Section 11. This act shall take effect in 60 days.
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