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PRINTER'S NO. 1116
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
900
Session of
2021
INTRODUCED BY HUGHES, BARTOLOTTA, COMITTA, FONTANA, BREWSTER,
MUTH, ROBINSON, YUDICHAK, CAPPELLETTI, COSTA, J. WARD,
AUMENT, SCHWANK AND STREET, SEPTEMBER 28, 2021
REFERRED TO VETERANS AFFAIRS AND EMERGENCY PREPAREDNESS,
SEPTEMBER 28, 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, 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 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 full
or partial waiver and good-faith efforts, further providing
for bonding and progress payments and 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),
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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 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. 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
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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
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.
* * *
(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
or veterans in order to receive any action authorized by this
subchapter.
* * *
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§ 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.
(2.1) Verify the current certification of businesses
claiming to be certified as veteran business enterprises.
(3) [Compile, maintain and make available source lists
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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.]
(9) Establish contract-specific goals for utilization of
veteran business enterprises, in collaboration with the
purchasing agency, based upon relevant factors, including the
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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
towards 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
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
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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 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
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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.
(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
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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:
§ 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 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 and small diverse businesses,
both as prime contractors and subcontractors, and to assist
small businesses and small diverse businesses in learning how to
do business with Commonwealth agencies. The department shall
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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:
["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, 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 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.
"Good-faith efforts." The practices or activities instituted
by a bidder or offeror to promote and ensure participation by
small diverse businesses in an agency procurement in order to
meet a contract-specific goal.
"Program." The Small Diverse Business Program established
under section 2102.1 (relating to Small Diverse Business
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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.
"Race- 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.
"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. If required by the solicitation, a
utilization schedule may also require a bidder or offeror to
identify:
(1) The small 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 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
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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:
(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,
including the process or procedures to govern the following:
(i) The process and criteria for certification,
verification, recertification and decertification of
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small businesses and small dive rse 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.
(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- 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 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.] Developing and 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
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learning how to do business with Commonwealth agencies and
serving as a 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 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 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, with the assistance of
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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 towards the aspirational target.
(15) Establishing business assistance offices throughout
this Commonwealth to assist and carry out the provisions of
the program.
(16) Requiring that all applications for small
businesses and small diverse businesses verification under
this chapter shall be sworn under oath.
(17) Identifying barriers to equitable participation by
small diverse businesses in Commonwealth procurement.
(18) Designating staff to assist small businesses and
small diverse businesses in learning how to participate in
Commonwealth procurement in accordance with this act.
(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.
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
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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.
(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
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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:
§ 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). The Secretary of General Services shall transmit
notification to the Legislative Reference Bureau for publication
in the Pennsylvania Bulletin whether or not the disparity study
shows a statistically significant disparity.
§ 2111. Program review and expiration.
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(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
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
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.
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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
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
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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.
"Race- 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.
"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. If required by the solicitation, a
utilization schedule may also require a bidder or offeror to
identify:
(1) The small diverse 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.
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§ 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, which shall include processes or
procedures to govern the following:
(i) The process and criteria for certification,
verification, recertification and decertification of
small businesses and small 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.
(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- and gender-neutral measures to facilitate the
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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
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, with the assistance of
the purchasing agency, as appropriate.
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(10) Evaluating the effectiveness and utility of the
program.
(11) Monitoring the program and the Commonwealth's
progress towards the aspirational target.
(12) Identifying barriers to equitable participation by
small diverse businesses in Commonwealth procurements for
construction and design and professional services.
(13) Designating staff to assist small businesses and
small diverse businesses in learning how to participate in
Commonwealth procurement in accordance with this act.
(14) Developing and maintaining a directory of small
businesses and small diverse businesses.
(15) Requiring that all applications for small business
certification and small 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 and small 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 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
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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.
§ 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,
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the department shall verify if the commitments made in the
awarding of contracts were maintained or achieved.
§ 21A09. Aspirational target.
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). The Secretary of General Services shall
transmit notification to the Legislative Reference Bureau for
publication in the Pennsylvania Bulletin whether or not the
disparity study shows a statistically significant disparity in
the utilization of small 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
conducted under section 21A10 (relating to disparity study), the
department shall review the results and recommendations of the
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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 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 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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