PRINTER'S NO. 1390
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1167
Session of
2017
INTRODUCED BY DAWKINS, BOYLE, SCHLOSSBERG, SOLOMON, V. BROWN,
CEPHAS, BULLOCK AND VAZQUEZ, APRIL 12, 2017
REFERRED TO COMMITTEE ON STATE GOVERNMENT, APRIL 12, 2017
AN ACT
Amending Title 62 (Procurement) of the Pennsylvania Consolidated
Statutes, in small and disadvantaged businesses, further
providing for definitions, for duties of department, for
bonding and progress payments, for report to General Assembly
and providing for nondiscriminatory procurement procedures;
and imposing penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definition of "disadvantaged business" in
section 2102 of Title 62 of the Pennsylvania Consolidated
Statutes is amended to read:
§ 2102. Definitions.
Subject to section 2103 (relating to 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:
["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.]
* * *
Section 2. Sections 2104, 2105 and 2107 of Title 62 are
amended to read:
§ 2104. Duties of department.
The department shall have the following duties:
(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 to do business with Commonwealth agencies.
(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.
(3) Compile, maintain and make available source lists of
small [and disadvantaged] businesses for the purpose of
encouraging procurement from small [and disadvantaged]
businesses.
(4) Include small [and disadvantaged] businesses on
solicitation mailing lists.
(5) Assure that small [and disadvantaged] businesses are
solicited on each procurement for which the businesses may be
suited.
(6) Develop special training programs to assist small
[and disadvantaged] businesses in learning how to do business
with Commonwealth agencies.
§ 2105. Bonding and progress payments.
(a) Bonding.--Notwithstanding other provisions of this part,
a purchasing agency may reduce the level or change the types of
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bonding normally required or accept alternative forms of
security to the extent reasonably necessary to encourage
procurement from small [and disadvantaged] 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.
§ 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 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. In preparing the
report, the department shall verify whether commitments made to
small [and disadvantaged] businesses in the course of awarding
these contracts have been maintained.
Section 3. Title 62 is amended by adding a chapter to read:
CHAPTER 24
NONDISCRIMINATORY PROCUREMENT PROCEDURES
Sec.
2401. Policy.
2402. Definitions.
2403. Procurement procedures.
2404. Establishment of goals and guidelines.
2405. Commonwealth agency duties.
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2406. Prohibitions.
2406.1. Women-owned businesses.
2407. Multiple certifications.
2408. Contractor duties.
2409. Department duties.
2410. Failure to meet participation goals.
2411. Waivers.
2412. Duties of bidders and offerors.
2413. Executed contracts.
2414. Reporting by minority business enterprises.
2415. Ineligibility due to net worth.
2416. Not-for-profit entities.
2417. Conflicts with Federal requirements.
2418. Regulations.
2419. Records and reports.
242 0. Directory.
2421. Reporting requirements.
2422. Fraudulent actions.
2423. False statements regarding certification.
2424. Fraud hotline.
2425. Applicability of chapter.
§ 2401. Policy.
The General Assembly finds and declares as follows:
(1) The Commonwealth wishes to provide all of its
residents with equal access to business formation and
business-growth opportunities.
(2) The elimination of discrimination against minority-
owned and women-owned businesses is of paramount importance
to the future welfare of this Commonwealth.
(3) Evidence demonstrates persistent discrimination
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against minority-owned and women-owned businesses and further
demonstrates the following:
(i) There are substantial and statistically
significant adverse disparities between the availability
and utilization of minorities and women in the private
sector in the same geographic markets and industry
categories in which the Commonwealth does business.
(ii) The Commonwealth would become a passive
participant in private sector racial and gender
discrimination if it ceased or curtailed its remedial
efforts.
(iii) There are substantial and statistically
significant adverse disparities for all racial and ethnic
groups and nonminority women combined in all major
contracting categories in procurement.
(iv) There are substantial and statistically
significant adverse disparities for all individual racial
and ethnic groups and for nonminority women in most major
industry categories in procurement.
(v) There is ample evidence that discrimination in
the private sector has depressed firm formation and firm
growth among minority and nonminority women
entrepreneurs.
(vi) There is powerful and persuasive qualitative
and anecdotal evidence of discrimination against minority
and nonminority women business owners in both the public
and private sectors.
(4) As a result of ongoing discrimination and the
present-day effects of past discrimination, minority-owned
and women-owned businesses combined continue to be
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significantly underutilized relative to their availability to
perform work in the sectors in which the Commonwealth does
business.
(5) Minority prime contractors also are subject to
discrimination and confront especially daunting barriers in
attempting to compete with very large and long-established
nonminority companies.
(6) Despite the fact that the Commonwealth has employed,
and continues to employ, numerous and robust race-neutral
remedies, including aggressive outreach and advertising,
training and education, small business programs, efforts to
improve access to capital and other efforts, there is a
strong basis in evidence that discrimination persists even in
public sector procurement where these efforts have been
employed.
(7) This chapter ensures that race-neutral efforts will
be used to the maximum extent feasible and that race-
conscious measures will be used only where necessary to
eliminate discrimination that was not alleviated by race-
neutral efforts.
(8) This chapter continues and enhances efforts to
ensure that the Commonwealth limits the burden on nonminority
businesses as much as possible by ensuring that all goals are
developed using the best available data and that waivers are
available whenever contractors make good faith efforts.
(9) Commonwealth efforts to support the development of
competitively viable minority-owned and women-owned business
enterprises will assist in reducing discrimination and
creating jobs for all residents of this Commonwealth.
§ 2402. Definitions.
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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:
"African American." An individual having origins in any of
the black racial groups of Africa.
"American Indian/Native American." An individual having
origins in any of the original peoples of North America and who
is a documented member of a North American tribe or band or
otherwise has a special relationship with the United States or a
state through treaty, agreement or some other form of
recognition. The term includes an individual who claims to be an
American Indian/Native American and who is regarded as such by
the American Indian/Native American community of which the
individual claims to be a part, but does not include an
individual of Eskimo or Aleutian origin.
"Asian." An individual having origins in the Far East,
Southeast Asia or the Indian subcontinent and who is regarded as
such by the community of which the person claims to be a part.
"Certification." The determination that a legal entity is a
minority business enterprise for the purposes of this chapter.
"Certified minority business enterprise." A minority
business enterprise that holds a certification.
"Economically disadvantaged individual." A socially
disadvantaged individual whose ability to compete in the free
enterprise system has been impaired due to diminished capital
and credit opportunities as compared to others in the same or
similar line of business who are not socially disadvantaged.
"Hispanic." An individual of Mexican, Puerto Rican, Cuban,
Central or South American culture or origin or other Spanish
culture or origin, regardless of race, and who is regarded as
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such by the community of which the person claims to be a part.
"Minority business enterprise." Any legal entity, except a
joint venture, that is all of the following:
(1) Organized to engage in commercial transactions.
(2) At least 51% owned and controlled by one or more
individuals who are socially and economically disadvantaged.
(3) Managed by, and the daily business operations of
which are controlled by, one or more of the socially and
economically disadvantaged individuals who own it.
"Minority business enterprise participation schedule." A
schedule included in the submission of a bid or offer that
identifies the following:
(1) The certified minority business enterprises that a
bidder or offeror agrees to use in the performance of the
contract.
(2) The percentage of contract value attributed to each
certified minority business enterprise.
"Not-for-profit entity." A corporation that meets the
following criteria:
(1) Is incorporated in this Commonwealth or otherwise
qualified to do business in this Commonwealth.
(2) Has been determined by the Internal Revenue Service
to be exempt from taxation under section 501(c)(3), (4) or
(6) of the Internal Revenue Code of 1986 (Public Law 99-514,
26 U.S.C. § 501(c)(3), (4) or (6)).
(3) Is organized to promote the interests of individuals
who are physically or mentally disabled.
"Personal net worth." The net value of the assets of an
individual remaining after total liabilities are deducted. The
term includes the individual's share of assets held jointly or
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as community property with the individual's spouse. The term
does not include any of the following:
(1) The individual's ownership interest in the applicant
or a certified minority business enterprise.
(2) The individual's equity in the individual's primary
place of residence.
(3) Up to $500,000 of the cash value of any qualified
retirement savings plans or individual retirement accounts.
"Physically or mentally disabled." An impairment that
substantially limits one or more major life activities.
"Race-neutral measure." A method that is or can be used to
assist all small businesses.
"Socially and economically disadvantaged individual."
(1) A citizen or lawfully admitted permanent resident of
the United States who is:
(i) In any of the following minority groups:
(A) African American.
(B) American Indian/Native American.
(C) Asian.
(D) Hispanic.
(ii) Physically or mentally disabled and who is
regarded generally by the community as having such a
disability and whose disability has substantially limited
the individual's ability to engage in competitive
business.
(iii) A woman, regardless of race or ethnicity.
(iv) Otherwise found by the department to be a
socially and economically disadvantaged individual. There
is a rebuttable presumption that an individual who is a
member of a minority group under subparagraph (i), (ii)
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or (iii) is socially and economically disadvantaged.
(2) An individual whose personal net worth exceeds
$1,500,000, as adjusted annually for inflation according to
the Consumer Price Index, may not be found to be economically
disadvantaged.
"Socially disadvantaged individual." An individual who has
been subjected to racial or ethnic prejudice or cultural bias
within American society because of membership in a group and
without regard to individual qualities. Social disadvantage must
stem from circumstances beyond the control of the individual.
§ 2403. Procurement procedures.
Except for leases of real property, each Commonwealth agency
shall structure procurement procedures, consistent with the
purposes of this chapter, to attempt to achieve an overall
percentage goal of the Commonwealth agency's total dollar value
of contract s being made directly or indirectly to certified
minority business enterprises. The following contracts may not
be counted as part of a Commonwealth agency's total dollar value
of contract s:
(1) A contract awarded in accordance with section 520
(relating to supplies manufactured and services performed by
persons with disabilities).
(2) A contract awarded to a not-for-profit entity in
accordance with requirements mandated by Federal or State
law.
§ 2404. Establishment of goals and guidelines.
(a) Overall goal.--The overall percentage goal shall be
established on a biennial basis by the department, in
consultation with the Secretary of Transportation and the
Attorney General.
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(b) Establishment of goals and guidelines.--In consultation
with the Secretary of Transportation and the Attorney General,
the department shall do the following:
(1) Establish guidelines on a biennial basis for each
Commonwealth agency to consider while determining whether to
set subgoals for the minority groups listed in the definition
of "socially and economically disadvantaged individual" under
section 2402 (relating to definitions).
(2) Establish goals and subgoal guidelines that, to the
maximum extent feasible, approximate the level of minority
business enterprise participation that would be expected in
the absence of discrimination.
(3) Establish guidelines for each Commonwealth agency to
consider when determining the appropriate minority business
enterprise participation percentage goal for a contract in
accordance with section 2405 (relating to Commonwealth agency
duties).
(c) Delay in establishing goals and guidelines.--During any
year in which there is a delay in establishing the overall goal,
the previous year's goal shall apply. During any year in which
there is a delay in establishing the subgoal guidelines, the
previous year's subgoal guidelines shall apply.
(d) Public participation.--In establishing overall goals and
subgoal guidelines, the department shall provide for public
participation by consulting with minority, women's and general
contractor groups, community organizations and other officials
or organizations that could be expected to have information
concerning:
(1) The availability of minority-owned and women-owned
businesses.
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(2) The effects of discrimination on opportunities for
minority-owned and women-owned businesses.
(3) The operation of the d epartment's Bureau of
Diversity, Inclusion and Small Business Opportunities.
(e) Factors.--In establishing overall goals, the factors to
be considered shall include:
(1) The relative availability of minority-owned and
women-owned businesses to participate in procurement as
demonstrated by the State's most recent disparity study.
(2) Past participation of minority business enterprises
in procurement, except for procurement related to leases of
real property.
(3) Other factors that contribute to constitutional goal
setting.
§ 2405. Commonwealth agency duties.
(a) General rule.--Each Commonwealth agency shall:
(1) Consider the practical severability of all contracts
and, unless otherwise prohibited by law, may not bundle
contracts.
(2) Implement a program that will enable the
Commonwealth agency to evaluate each contract to determine
the appropriate minority business enterprise participation
goals, if any, for the contract based on the following:
(i) The potential subcontract opportunities
available in the prime contract.
(ii) The availability of certified minority business
enterprises to respond competitively to the potential
subcontract opportunities.
(iii) The contract goal guidelines established under
section 2404(b)(3) (relating to establishment of goals
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and guidelines).
(iv) The subgoal guidelines established under
section 2404(b)(1).
(v) Other factors that contribute to constitutional
goal setting.
(3) Set forth in invitations to bid and requests for
proposals the expected degree of minority business enterprise
participation based, in part, on the factors under this
subsection. A bid or proposal with an expected degree of
minority business enterprise participation must identify the
specific commitment of certified minority business
enterprises at the time of submission.
(4) Provide a current list of certified minority
business enterprises to each prospective contractor.
(5) Verify and maintain data concerning payments
received by minority business enterprises, including a
requirement that, upon completion of a project, the
Commonwealth agency shall compare the total dollar value
actually received by minority business enterprises with the
amount of contract dollars initially awarded along with an
explanation of any discrepancies.
(6) Monitor and collect data with respect to prime
contractor compliance with contract goals. A Commonwealth
agency shall verify that minority business enterprises listed
in a successful bid are actually participating to the extent
listed in the project for which the bid was submitted.
(7) Institute corrective action when prime contractors
do not make good faith efforts to comply with contract goals.
(8) Cooperate with the department to designate certain
procurements as being excluded from the requirements of this
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chapter.
(b) Facilitation of participation.--Each Commonwealth agency
shall meet the maximum feasible portion of the Commonwealth's
overall goal established under section 2404(a) by using race-
neutral measures to facilitate minority business enterprise
participation in the procurement process.
§ 2406. Prohibitions.
Commonwealth agencies may not use quotas or any project goal-
setting process that:
(1) Solely relies on the Commonwealth's overall
numerical goal or any other jurisdiction's overall numerical
goal.
(2) Fails to incorporate the analysis outlined in
section 2405(a)(2) (relating to Commonwealth agency duties).
§ 2406.1. Women-owned businesses.
A woman who is also a member of an ethnic or racial minority
group may be certified in that category in addition to the
gender category.
§ 2407. Multiple certifications.
For purposes of achieving the goals in this chapter, a
certified minority business enterprise may participate in a
contract and be counted as a woman-owned business or as a
business owned by a member of an ethnic or racial group, but not
both, if the business has been certified in both categories.
§ 2408. Contractor duties.
If a Commonwealth agency establishes minority business
enterprise participation goals for a contract, a contractor,
including a contractor that is a certified minority business
enterprise, shall:
(1) Identify specific work categories appropriate for
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subcontracting.
(2) At least 10 days before bid opening, solicit
minority business enterprises through written notice that:
(i) Describes the categories of work under paragraph
(1).
(ii) Provides information regarding the type of work
being solicited and specific instructions on how to
submit a bid.
(3) Attempt to make personal contact with the minority
business enterprises in paragraph (2).
(4) Offer to provide reasonable assistance to minority
business enterprises to fulfill bonding requirements or to
obtain a waiver of those requirements.
(5) In order to publicize contracting opportunities to
minority business enterprises, attend prebid or preproposal
meetings or other meetings scheduled by the Commonwealth
agency.
(6) Upon acceptance of a bid or proposal, provide the
Commonwealth agency with a list of minority businesses with
whom the contractor negotiated, including price quotes from
minority and nonminority firms.
§ 2409. Department duties.
The department shall:
(1) In consultation with the Secretary of Transportation
and the Attorney General, establish procedures governing how
the participation of minority business enterprise prime
contractors is counted toward contract goals.
(2) Publish biennially in the Pennsylvania Bulletin
notice of the Commonwealth's overall goal established under
section 2404(a) (relating to establishment of goals and
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guidelines).
(3) Provide for certifying and decertifying minority
business enterprises for all Commonwealth agencies through a
single process that meets applicable Federal requirements.
(4) Promote and facilitate the submission of some or all
of the certification applications through an electronic
process.
(5) Promote and facilitate certification of minority
business enterprises that have received certification from
the Small Business Administration or a county that uses a
certification process substantially similar to the process
under paragraph (1).
(6) Complete its review of an application for
certification and notify the applicant of the department's
decision within 90 days of receipt of an application that
includes all of the information necessary for the department
to make a decision.
(7) Provide a one-time extension of the notification
requirement under paragraph (6). The department shall provide
the applicant with a written notice and explanation for the
extension. The extension shall be for no more than 60 days.
(8) Ensure the uniformity of requests for bids on
subcontracts.
(9) Establish a schedule for receipt of requests for
bids on subcontracts and of submission of bids on
subcontracts.
(10) To the extent practicable, ensure that a fiscal
disadvantage to the Commonwealth does not result from an
inadequate response by minority business enterprises to a
request for bids.
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(11) Provide for the counting and reporting of certified
minority business enterprises as prime contractors.
(12) Ensure that all contracts containing minority
business enterprise participation goals contain a liquidated
damages provision that applies in the event that the
contractor fails to comply in good faith with the provisions
of this chapter or the pertinent terms of the applicable
contract.
(13) Establish standards to require a minority business
enterprise to perform a commercially useful function on a
contract.
(14) Provide for how a bidder may calculate the minority
business enterprise portion of a joint venture toward meeting
its minority business enterprise participation goal.
(15) Consistent with section 2411 (relating to waivers),
identify circumstances under which a Commonwealth agency may
waive obligations of the contractor relating to minority
business enterprise participation.
(16) Establish a graduation program based on the
financial viability of the minority business enterprise,
using annual gross receipts or other economic indicators as
may be determined by the department.
(17) Develop and implement any other procedures that the
department considers necessary or appropriate to encourage
participation by minority business enterprises and to protect
the integrity of the procurement process.
§ 2410. Failure to meet participation goals.
If a contractor, including a certified minority business
enterprise, does not achieve all or a part of the minority
business enterprise participation goals on a contract, the
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Commonwealth agency shall make a finding of whether the
contractor has demonstrated that the contractor took all
necessary and reasonable steps to achieve the goals, including
compliance with section 2408 (relating to contractor duties).
§ 2411. Waivers.
(a) General rule.--A waiver of any part of the minority
business enterprise goals for a contract shall be granted if a
contractor provides a reasonable demonstration of good-faith
efforts to achieve the goals.
(b) Contract renegotiation.--If the Commonwealth agency
determines that a waiver should be granted in accordance with
subsection (a), the Commonwealth agency may not require the
contractor to renegotiate any subcontract in order to achieve a
different result.
(c) Waiver by agency head.--The head of a Commonwealth
agency may waive any of the requirements of this subsection
relating to the establishment, use and waiver of contract goals
for a sole source or emergency procurement in which the public
interest cannot reasonably accommodate use of those
requirements.
(d) Documentation.--The following apply:
(1) Except for waivers granted in accordance with
subsection (c), when a waiver determination is made, the
Commonwealth agency shall issue the determination in writing.
(2) The head of the Commonwealth agency shall:
(i) Keep one copy of the waiver determination and
the reasons for the determination.
(ii) Forward one copy of the waiver determination to
the department.
(e) Report required.--On or before July 31 of each year,
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each Commonwealth agency shall furnish to the department an
annual report of waivers requested and waivers granted under
this section. The report shall contain the following information
on those contracts where the Commonwealth agency considered a
contractor's request for waiver of all or a portion of the
minority business enterprise goals:
(1) The contract titles, numbers and dates.
(2) The number of waiver requests received.
(3) The number of waiver requests granted.
(4) Any other information specifically requested by the
department.
§ 2412. Duties of bidders and offerors.
(a) Documentation.--A bidder or offeror must complete a
document setting forth the percentage of the total dollar amount
of the contract that the bidder or offeror agrees will be
performed by certified minority business enterprises.
Documentation submitted by the bidder or offeror in connection
with its minority business enterprise participation commitment
must be attached to and made a part of the contract.
(b) Change of circumstance.--After submission of a bid or
proposal and before the execution of a contract with an expected
degree of minority business enterprise participation, the
following shall apply:
(1) If the bidder or offeror determines that a minority
business enterprise identified in the minority business
enterprise participation schedule has become or will become
unavailable or ineligible to perform the work required under
the contract, the bidder or offeror shall notify the
Commonwealth agency within 72 hours of making the
determination.
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(2) If a minority business enterprise identified in the
minority business enterprise participation schedule submitted
with a bid or offer has become or will become unavailable or
ineligible to perform the work required under the contract,
the bidder or offeror may submit a written request with the
Commonwealth agency to amend the minority business enterprise
participation schedule.
(3) The request to amend the minority business
enterprise participation schedule shall indicate the bidder's
or offeror's efforts to substitute another certified minority
business enterprise to perform the work that the unavailable
or ineligible minority business enterprise would have
performed.
(4) A minority business enterprise participation
schedule may not be amended unless:
(i) The bidder or offeror provides a satisfactory
explanation of the reason for inclusion of the
unavailable or ineligible firm on the minority business
enterprise participation schedule.
(ii) The amendment is approved by the Commonwealth
agency's contracting officer.
§ 2413. Executed contracts.
After execution of a contract with an expected degree of
minority business enterprise participation, the following shall
apply:
(1) The minority business enterprise participation
schedule, including any amendment, shall be attached to and
made a part of the executed contract.
(2) A contractor may not terminate or otherwise cancel
the contract of a certified minority business enterprise
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subcontractor listed in the minority business enterprise
participation schedule without showing good cause and
obtaining the written approval of the head of the
Commonwealth agency.
(3) The Commonwealth agency shall send a copy of the
written approval obtained under paragraph (2) to the
Governor's Office of Administration.
(4) A minority business enterprise participation
schedule may not be amended after the date of contract
execution unless the request is approved by the head of the
Commonwealth agency and the contract is amended.
§ 2414. Reporting by minority business enterprises.
A minority business enterprise shall submit a monthly report
to the Commonwealth agency acknowledging all payments received
in the preceding 30 days under a contract governed by this
chapter.
§ 2415. Ineligibility due to net worth.
If, during the performance of a contract, a certified
minority business enterprise contractor or subcontractor becomes
ineligible to participate because one or more of its owners has
a personal net worth that exceeds the amount specified in
paragraph (2) of the definition of "socially and economically
disadvantaged individual" under section 2402 (relating to
definitions):
(1) That ineligibility alone may not cause the
termination of the certified minority business enterprise's
contractual relationship for the remainder of the term of the
contract.
(2) The certified minority business enterprise's
participation under the contract shall continue to be counted
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toward the contract goals.
§ 2416. Not-for-profit entities.
(a) General rule.--Except as provided in subsection (b), a
not-for-profit entity participating as a minority business
enterprise on a contract awarded by a Commonwealth agency before
the effective date of this section may continue to participate
in the contract until the contract expires or otherwise
terminates, including all options, renewals and other
extensions.
(b) Calculating participation.--The not-for-profit entity's
participation may not be counted toward achieving the minority
business enterprise participation goals.
(c) Substitution prohibited.--The Commonwealth agency may
not require that a certified minority business enterprise be
substituted for the not-for-profit entity in order to meet the
minority business enterprise goals for the contract .
§ 2417. Conflicts with Federal requirements.
The provisions of this chapter are inapplicable to the extent
that any Commonwealth agency determines the provisions to be in
conflict with any applicable Federal program requirement. The
determination under this section shall be included with the
report required under section 2421 (relating to reporting
requirements).
§ 2418. Regulations.
(a) General rule.--The department shall promulgate
regulations to carry out the requirements of this chapter. The
regulations shall establish procedures to be followed by
Commonwealth agencies, prospective contractors and successful
bidders or offerors to maximize notice to, and the opportunity
to participate in the procurement process by, a broad range of
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minority business enterprises.
(b) Pending certification as minority business enterprise.--
The regulations adopted under this section shall specify that a
Commonwealth agency may not allow a business to participate as
if it were a certified minority business enterprise if the
business's certification is pending.
§ 2419. Records and reports.
(a) Waivers.--The department shall keep a record of
information regarding any waivers requested in accordance with
section 2411 (relating to waivers) and annually submit a copy of
the record to the General Assembly.
(b) Certifications.--The department shall keep a record of
the aggregate number and the identity of minority business
enterprises that receive certification under the process
established by the department and annually submit a copy of the
record to the General Assembly.
§ 2420. Directory.
(a) General rule.--The department shall develop and maintain
a directory of all certified minority business enterprises. The
directory shall be accessible to the public through the
department's publicly accessible Internet website.
(b) Directory information.--For each minority business
enterprise included in the directory, the department shall
include the following information:
(1) All contract information available to the department
for the minority business enterprise.
(2) The certification number and minority status of the
minority business enterprise.
(3) Contact information for up to three professional
references for the minority business enterprise.
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(4) Any other information the department considers
necessary or appropriate to encourage participation in the
procurement process by minority business enterprises.
(c) Maintenance of directory.--The department shall:
(1) Update the directory at least monthly.
(2) Identify as recently certified in the directory each
minority business enterprise that has obtained certification
during the calendar year.
(3) Include in the directory a list of all minority
business enterprises that have become ineligible to
participate for any of the following reasons:
(i) One or more of its owners has a personal net
worth that exceeds the amount specified in paragraph (2)
of the definition of "socially and economically
disadvantaged individual" under section 2402 (relating to
definitions).
(ii) The minority business enterprise no longer
meets the standards developed under section 2414
(relating to reporting by minority business enterprises).
§ 2421. Reporting requirements.
(a) Report required.--Within 90 days after the end of the
fiscal year, each Commonwealth agency shall report to the
department the following information for the preceding fiscal
year:
(1) The total number and value of contract s between the
Commonwealth agency and certified minority business
enterprises, by specific category of minority business
enterprise, including whether the minority business
enterprise participated as a prime contractor or as a
subcontractor.
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(2) The percentage that those contract s represent, by
specific category of minority business enterprise, of the
total number and value of contract s.
(3) The total number and the names of certified minority
business enterprises that participated as prime contractors
or as subcontractors on contract s awarded by a Commonwealth
agency.
(4) For each minority business included in the report, a
list of all contract s awarded by a Commonwealth agency to the
minority business enterprise, including a description of the
contract.
(5) As to contract s for architectural services and
engineering services included in the report, procurements for
the following, identified by separate category of minority
business enterprise:
(i) Architectural services.
(ii) Engineering services.
(b) Form.--A report under this section shall be in a form
prescribed by the department.
(c) Summary report.--On or before December 31 of each year,
the department shall submit to the Governor and the General
Assembly a report summarizing the information received by the
department under subsection (a).
§ 2422. Fraudulent actions.
(a) Prohibited actions.--A person may not:
(1) Fraudulently obtain or hold certification.
(2) Willfully obstruct or impede a State official or
employee investigating the qualifications of a business
entity that has requested certification.
(3) Fraudulently obtain public money to which the person
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is not entitled under this chapter.
(4) In any minority business enterprise matter
administered under this chapter:
(i) Willfully falsify, conceal or cover up a
material fact by any scheme or device.
(ii) Make a false or fraudulent statement or
representation.
(iii) Use a false writing or document that the
person knows to contain a false or fraudulent statement
or entry.
(b) Actions of contractors.--Except as otherwise provided by
law, a contractor may not identify a certified minority business
enterprise in a bid or proposal and:
(1) Fail to request, receive or otherwise obtain
authorization from the certified minority business enterprise
to identify the certified minority business enterprise in its
bid or proposal.
(2) Fail to notify the certified minority business
enterprise before execution of the contract of its inclusion
of the bid or proposal.
(3) Fail to use the certified minority business
enterprise in the performance of the contract.
(4) Pay the certified minority business enterprise
solely for the use of its name in the bid or proposal.
(c) Grading.--A person who violates this section commits a
felony of the third degree and shall, upon conviction, be
sentenced to pay a fine of not more than $20,000 or to
imprisonment for not more than five years, or both.
§ 2423. False statements regarding certification.
(a) Offense.--A person may not make a false statement about
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whether an entity has certification.
(b) Grading.--A person who violates this section commits a
misdemeanor of the third degree and shall, upon conviction, be
sentenced to pay a fine of not more than $2,500 or to
imprisonment of not more than one year, or both.
§ 2424. Fraud hotline.
The department shall make available a fraud hotline for
reporting violations of this chapter.
§ 2425. Applicability of chapter.
The provisions of this chapter and any regulations
promulgated under this chapter shall apply on and after July 1,
2018.
Section 4. This act shall take effect in 60 days.
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