Regular Session 2021-2022 House Bill 1887 P.N. 2143

PRINTER'S NO. 2143

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

1887

Session of

2021

INTRODUCED BY LEWIS DELROSSO, WHEATLEY, HILL-EVANS, ROTHMAN,

SHUSTERMAN, KINSEY, KAIL, MERSKI, BOBACK, MIZGORSKI AND

WEBSTER, SEPTEMBER 21, 2021

REFERRED TO COMMITTEE ON STATE GOVERNMENT, SEPTEMBER 21, 2021

AN ACT

Amending Titles 51 (Military Affairs) and 62 (Procurement) 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 a 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 heading of chapter, for policy and for

definitions, providing for Small and Diverse Business Program

and for nonapplicability, further providing for regulations

and for duties of department, providing for request for a

full or partial waiver and good-faith efforts, further

providing for bonding and progress payments and for report to

General Assembly, providing for aspirational target, for

disparity study and for program review and expiration; and

providing for Program for Construction and Design

Professional Services.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 9601 introductory paragraph of Title 51

of the Pennsylvania Consolidated Statutes is amended and the

section is amended by adding definitions to read:

§ 9601. Definitions.

Subject to section 9602 (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:

"Aspirational target." A target established by the Secretary

of General Services under section 9603 (relating to S tatewide

participation goal and aspirational target ).

"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.

* * *

"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.

* * *

"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 o f veteran business enterprise

participation for a contract. Identifies the dollar value or

percentages of the work to be performed.

* * *

"Veteran business enterprise." A veteran-owned small

business or service-disabled veteran-owned small business.

* * *

Section 2. Sections 9602(a) and (c), 9603, 9604, 9605, 9606

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and 9607 of Title 51 are amended to read:

§ 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.

* * *

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

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

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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.

(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-

20210HB1887PN2143 - 4 -

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.]

(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

20210HB1887PN2143 - 5 -

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

towards the aspirational target.

§ 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

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

20210HB1887PN2143 - 6 -

necessary to encourage procurement from [veteran-owned small

businesses and service-disabled veteran-owned small businesses]

veteran business enterprises.

§ 9606. [(Reserved).] Request for a full or partial waiver and

good-faith efforts.

Notwithstanding any provision of this subchapter to the

contrary, bidders or offerors may request a partial or full

waiver of a contract-specific goal for veteran business

enterprise participation. A bidder or offeror requesting a

partial or full waiver shall submit, in writing, a report

detailing efforts to meet the contract-specific goal as required

by the solicitation. 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-specific goal and to what extent the waiver

request should be granted. 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

20210HB1887PN2143 - 7 -

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.

(3) Initial reports under this subsection shall be

submitted to the standing committees by October 1, 2013.]

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. The report shall include statistical information

regarding veteran business enterprises, including business

classification, location and industry. In preparing the 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 3. Title 51 is amended by adding a section to read:

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§ 9609. Disparity study.

Beginning no later than June 30, 2022, 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 4. The heading of Chapter 21 and sections 2101 and

2102 of Title 62 are amended to read:

CHAPTER 21

SMALL AND [DISADVANTAGED] DIVERSE BUSINESSES

§ 2101. Policy.

The policy of this Commonwealth is to assist [small and

disadvantaged businesses] small businesses and small diverse

businesses in learning how to do business with Commonwealth

agencies. The department shall implement this policy in

accordance with [regulations promulgated by the department]

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:

["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

because of social disadvantages.]

"Agency liaison." An agency employee reporting directly to a

secretary, deputy secretary, agency head or equivalent

20210HB1887PN2143 - 9 -

responsible for assisting the department 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 on a specific procurement.

"Disparity study." A study conducted to determine whether

there is a disparity between the availability of small diverse

businesses and the Commonwealth's utilization of small diverse

businesses.

"Good-faith efforts." The practices or activities instituted

by a bidder or offeror to promote and ensure participation by

small diverse businesses in order to meet a contract-specific

goal.

"Program." The Small Diverse Business Program established

under section 2102.1 (relating to Small Diverse Business

Program).

"Small business." A business in the United States which is

independently owned[,] and is not dominant in its field of

operation [and employs 100 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

develop and maintain a competitive position in the economy

because of economic and social disadvantages.

"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

20210HB1887PN2143 - 10 -

participation for a contract, identifies the associated

responsibilities and scope of work and identifies t he dollar

value or percentages of the work to be performed.

Section 5. Title 62 is amended by adding sections to read:

§ 2102.1. Small Diverse Business Program.

The Small 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 6. Sections 2103 and 2104 of Title 62 are amended to

read:

§ 2103. [Regulations] Policy and regulations.

[The] In order 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:

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(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.] Formulating,

proposing and implementing policy and regulations for the

development, implementation and monitoring of the program and

t he process and criteria for certification, verification,

recertification and decertification of small businesses and

small dive rse businesses.

(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 and using impartiality

measures to facilitate the participation of all firms in

Commonwealth procurement activities, including, but not

limited to, the implementation of a program to reserve

procurements for award to small businesses only.

(3) [Compile, maintain and make available source lists

of small and disadvantaged businesses for the purpose of

encouraging procurement from small and disadvantaged

businesses.] Maintaining a directory of small businesses and

small diverse businesses.

(4) [Include small and disadvantaged businesses on

solicitation mailing lists.] Providing information and

assistance to small businesses and small diverse businesses

relating to the program, including special training programs

to assist small businesses and small diverse businesses in

learning how to do business with Commonwealth agencies and

serving as a liaison to community, contractors, professionals

20210HB1887PN2143 - 12 -

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.] Cooperating with and providing information and

assistance to Commonwealth agencies to facilitate

participation by small businesses and small 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

procurements which require the setting of contract-specific

goals.

(7) Ensuring that small diverse businesses are solicited

on procurements for which the businesses may be suited.

(8) Establishing contract-specific goals, in

collaboration with the purchasing agency, based upon relevant

factors, including, but not limited to, the availability of

small 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.

(12) Coordinating with agency liaisons on agency issues

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related to the program.

(13) Evaluating the effectiveness and utility of the

program.

(14) Monitoring the program and the Commonwealth's

progress towards the aspirational target.

(15) Establishing business assistance offices throughout

this Commonwealth to assist and carry out the provisions of

the program.

Section 7. Title 62 is amended by adding a section to read:

§ 2104.1. Request for a full or partial waiver and good-faith

efforts.

Notwithstanding any provision of this chapter to the

contrary, bidders or offerors may request a partial or full

waiver of a contract-specific goal for small diverse business

participation. A bidder or offeror requesting a partial or full

waiver shall submit, in writing, a report detailing the bidder's

or offeror's efforts to meet the contract-specific goal as

required by the solicitation. 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. 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 by

other bidders or offerors.

Section 8. Sections 2105 and 2107 of Title 62 are amended to

read:

§ 2105. Bonding and progress payments.

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(a) Bonding.--Notwithstanding [other provisions of this

part] any provisions of law to the contrary, 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 and small 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 and small 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 and small 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

small businesses and small 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 in the course of

awarding these contracts have been maintained or achieved.

Section 9. Title 62 is amended by adding sections to read:

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§ 2109. Aspirational target.

The Secretary of General Services shall set an aspirational

target for small diverse business participation by the

Commonwealth, which shall be reviewed and adjusted every five

years upon completion of a disparity study.

§ 2110. Disparity study.

Beginning no later than June 30, 2022, 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, the results of which shall be used to set an

aspirational target under section 2109 (relating to aspirational

target).

§ 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 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 in its marketplace and the

permissible scope of any narrowly tailored remedies to redress

discrimination against small 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. 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

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study shows no statistically significant disparity in the

utilization of small diverse businesses.

Section 10. 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

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

20210HB1887PN2143 - 17 -

of small 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 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 in agency procurements for construction

and design professional services in order to meet a contract-

specific goal.

"Program." The Program for Construction and Design

Professional Services established under section 21A02 (relating

to Program for Construction and Design Professional Services).

"Small business." A business in the United States which is

independently owned and is not dominant in its field of

operation.

"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.

"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

participation for a contract , identifies the associated

responsibilities and scope of work and identifies t he 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

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is established in the department.

§ 21A03. Applicability.

This chapter shall apply to procurements for construction and

design professional services.

§ 21A04. Policy and regulations.

In order 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.

(2) Developing, using and assisting purchasing agencies

impartiality measures to facilitate the participation of

firms in Commonwealth procurement activities, including the

implementation of a program to reserve procurements for award

to small businesses only.

(3) Providing information and assistance to small

businesses and small diverse businesses relating to the

program, including special training programs to assist small

businesses and small 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

20210HB1887PN2143 - 19 -

professional services procurements which require the setting

of contract-specific goals.

(5) Ensuring that small 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 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.

(10) Evaluating the effectiveness and utility of the

program.

(11) Monitoring the program and the Commonwealth's

progress towards the aspirational target.

§ 21A06. Request for full or partial waiver and good-faith

efforts.

Notwithstanding any provision of law to the contrary, bidders

or offerors may request a partial or full waiver of a contract-

specific goal for small diverse business participation. A bidder

or offeror requesting a partial or full waiver shall submit, in

writing, a report detailing the bidder's or offeror's efforts to

meet the contract-specific goal as required by the solicitation.

20210HB1887PN2143 - 20 -

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. 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 by other bidders or

offerors.

§ 21A07. Bonding and progress payments.

(a) Bonding.--Notwithstanding other provisions of law to the

contrary, 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 and small 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 and

small 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 and small diverse businesses

during the preceding fiscal year. The report shall include

statistical data from the program, including business

classification, location and industry. In preparing the report,

the department shall verify if the commitments made in the

awarding of contracts were maintained or achieved.

§ 21A09. Aspirational target.

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The Secretary of General Services shall set an aspirational

target for small 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.

Beginning no later than June 30, 2022, 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 in Commonwealth construction and design

professional services. The results of the study shall be used to

set an aspirational target under section 21A09 (relating to

aspirational target).

§ 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

conducted under section 21A10 (relating to disparity study), the

department shall review 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 in its marketplace, and the

permissible scope of any narrowly tailored remedies to redress

discrimination against small diverse businesses so that the

Commonwealth will not function as a passive participant in a

discriminatory marketplace.

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(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. 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.

Section 11. This act shall take effect in 60 days.

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