House Bill 4695

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    Florida House of Representatives - 1998                HB 4695

        By Representative Roberts-Burke






  1                      A bill to be entitled

  2         An act relating to property and services

  3         procurement; creating s. 287.086, F.S.;

  4         providing price preferences for businesses in

  5         historically underutilized business zones;

  6         providing requirements; providing criteria;

  7         providing an exception; creating s. 287.0941,

  8         F.S.; prohibiting specified activities in

  9         procuring property and services; providing

10         penalties; amending s. 287.0943, F.S.; revising

11         certain certification criteria for certain

12         minority business enterprises; amending s.

13         287.09431, F.S.; authorizing the Department of

14         Labor and Employment Security to negotiate the

15         terms of the statewide and interlocal agreement

16         on certification of business concerns for

17         minority business enterprises for certain

18         purposes; amending s. 287.09451, F.S.;

19         providing additional powers of the Minority

20         Business Advocacy and Assistance Office;

21         revising procedural requirements for relative

22         property and services expenditure percentages

23         for specified minorities for specified

24         contracts; requiring the office to develop

25         procedures to establish dollar goals by

26         procurement category for certain agencies;

27         providing an effective date.

28

29  Be It Enacted by the Legislature of the State of Florida:

30

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  1         Section 1.  Section 287.086, Florida Statutes, is

  2  created to read:

  3         287.086  Preference to historically underutilized

  4  business zone businesses.--

  5         (1)  Whenever two or more bids or proposals, which are

  6  equal with respect to price, quality, service, and minority

  7  business participation, are received by a state agency for the

  8  procurement of goods or services pursuant to an invitation to

  9  bid or a request for proposals, a bid received from a

10  certified zone business shall be awarded a 10 percent price

11  preference for an invitation to bid or shall be awarded 10

12  points to the points awarded pursuant to a request for

13  proposals. In order to be a certified zone business, such

14  business shall:

15         (a)  Certify that at least 10 percent of the employees

16  of the business are full-time residents of a zone in this

17  state; or

18         (b)  Certify that its principal place of business has

19  been located in a zone in this state for the past 2 years.

20         (2)  Each agency is encouraged to spend 0.5 percent of

21  moneys actually expended with private vendors with zone

22  businesses.

23         (3)  For the purposes of this section, a "zone" means a

24  historically underutilized business zone which is defined as a

25  geographical area which has been designated as an enterprise

26  zone pursuant to chapter 290.

27         (4)  Spending with zone businesses owned and operated

28  by a woman or a minority person shall be counted towards the

29  goals specified in s. 287.09451.

30         (5)  The provisions of this section shall not apply to

31  federally funded transportation projects.

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  1         Section 2.  Section 287.0941, Florida Statutes, is

  2  created to read:

  3         287.0941  Discrimination in procurement of personal

  4  property and services; penalties.--

  5         (1)  It is unlawful for any agency employee, because of

  6  race, color, religion, sex, national origin, age, handicap, or

  7  marital status, to:

  8         (a)  Discriminate against a person in the terms,

  9  conditions, or privileges of participation in contracting and

10  procurement activities.

11         (b)  Cause to be made any untrue or intentionally

12  misleading statements or advertisements regarding availability

13  of contacting and procurement activities.

14         (c)  Aid, abet, incite, compel, or coerce any person to

15  engage in any of the practices prohibited by the provisions of

16  this act, or to obstruct or prevent any person from complying

17  with the provisions of this section.

18         (2)  Violation of any provision of subsection (1)

19  shall, pursuant to applicable procedures of law, constitute

20  grounds for and may be punished by:

21         1.  Dismissal from employment;

22         2.  Suspension from employment for not more than 90

23  days without pay;

24         3.  Demotion; or

25         4.  Reduction in salary level.

26         Section 3.  Paragraph (e) of subsection (1) and

27  paragraph (a) of subsection (4) of section 287.0943, Florida

28  Statutes, are amended to read:

29         287.0943  Certification of minority business

30  enterprises.--

31         (1)

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  1         (e)  In assessing the status of ownership and control,

  2  certification criteria shall, at a minimum:

  3         1.  Link ownership by a minority person, as defined in

  4  s. 288.703(3), or as dictated by the legal obligations of a

  5  certifying organization, to day-to-day control and financial

  6  risk by the qualifying minority owner, and to licensure of a

  7  minority owner in any trade or profession that the minority

  8  business enterprise will offer to the state when certified;

  9  however, the minority licenseholder need not be the

10  controlling owner of the enterprise, but must hold an

11  ownership interest. Minority business enterprises presently

12  certified by the state will not be subject to the licensure

13  requirement until 5 years after the effective date of this

14  act.

15         2.  If present ownership was obtained by transfer,

16  require the minority person on whom eligibility is based to

17  have owned at least 51 percent of the applicant firm for a

18  minimum of 2 years, when any previous majority ownership

19  interest in the firm was by a nonminority who is or was a

20  relative, former employer, or current employer of the minority

21  person on whom eligibility is based. This requirement shall

22  not apply to minority persons who are otherwise eligible who

23  take a 51-percent-or-greater interest in a firm that requires

24  professional licensure to operate and who will be the

25  qualifying licenseholder for the firm when certified.

26         3.  Require that prospective certified minority

27  business enterprises be currently performing a useful business

28  function. A "useful business function" is defined as a

29  business function which results in the provision of materials,

30  supplies, equipment, or services to customers other than state

31  or local government. Acting as a conduit to transfer funds to

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  1  a nonminority business does not constitute a useful business

  2  function unless it is done so in a normal industry practice.

  3  As used in this section, the term "acting as a conduit" means,

  4  in part, not acting as a regular dealer by making sales of

  5  material, goods, or supplies from items bought, kept in stock,

  6  and regularly sold to the public in the usual course of

  7  business. Brokers, manufacturer's representatives, sales

  8  representatives, and nonstocking distributors are considered

  9  as conduits that do not perform a useful business function,

10  unless normal industry practice dictates. A business shall not

11  be considered to be a broker, manufacturer, representative,

12  sales representative, or nonstocking distributor if such

13  business maintains a current stock or inventory of at least 1

14  percent of the value of the gross sales of its previous fiscal

15  year, or 1 percent of the value of the gross sales of the

16  current year if the business is a new startup business.

17         (4)(a)  The secretary of the Department of Labor and

18  Employment Security shall execute the statewide and interlocal

19  agreement established under s. 287.09431 on behalf of the

20  state. The office shall certify minority business enterprises

21  in accordance with the agreement and, by affidavit, shall

22  recertify such minority business enterprises not less than

23  once every 2 years each year.

24         Section 4.  The introductory paragraph of section

25  287.09431, Florida Statutes, is amended to read:

26         287.09431  Statewide and interlocal agreement on

27  certification of business concerns for the status of minority

28  business enterprise.--The statewide and interlocal agreement

29  on certification of business concerns for the status of

30  minority business enterprise is hereby enacted in

31  substantially the following form and entered into with all

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  1  jurisdictions or organizations legally joining therein. The

  2  Secretary of Labor and Employment Security, or his or her

  3  designee, may negotiate the terms of such agreement to promote

  4  its execution by as many governing bodies as feasible. If,

  5  within 2 years from the date that the certification core

  6  criteria are approved by the Department of Labor and

  7  Employment Security, the agreement included herein is not

  8  executed by a majority of county and municipal governing

  9  bodies that administer a minority business assistance program

10  on the effective date of this act, then the Legislature shall

11  review this agreement. It is the intent of the Legislature

12  that if the agreement is not executed by a majority of the

13  requisite governing bodies, then a statewide uniform

14  certification process should be adopted, and that said

15  agreement should be repealed and replaced by a mandatory state

16  government certification process.

17         Section 5.  Paragraphs (a) through (o) of subsection

18  (4) of section 287.09451, Florida Statutes, are redesignated

19  as paragraphs (e) through (s), respectively, new paragraphs

20  (a), (b), (c), and (d) are added to said subsection, and

21  redesignated paragraphs (q), (r), and (s) are amended, to

22  read:

23         287.09451  Minority Business Advocacy and Assistance

24  Office; powers, duties, and functions.--

25         (4)  The Minority Business Advocacy and Assistance

26  Office shall have the following powers, duties, and functions:

27         (a)  To provide overall leadership and promote

28  coordination of economic and business development resources

29  for the benefit of minority business enterprises and of

30  distressed communities that are affected by such business.

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  1         (b)  To provide direction relating to economic and

  2  business development of minority business enterprises to

  3  regional and statewide planning entities to help promote the

  4  redevelopment of distressed areas, where necessary, and to

  5  foster strategic alliances among agencies so as to target

  6  resources and achieve specific objectives in the economic and

  7  business development of minority business enterprises.

  8         (c)  To develop a clear statement of the mission,

  9  desired outcomes and strategies for accomplishing such

10  outcomes, and performance measures to assess whether such

11  outcomes are being achieved for the state's minority business

12  enterprise programs. Such goals shall be to:

13         1.  Increase the size and profitability of minority

14  businesses served by the programs.

15         2.  Increase the economic self-sufficiency and

16  competitiveness of minority businesses, as measured by their

17  ability to independently obtain necessary financial capital

18  and surety bonding, and to successfully compete for larger

19  government contracts, in terms of gross contract amount,

20  outside of a served or sheltered market.

21         3.  Significantly reduce the disparities evidenced by a

22  statistical analysis relating to the availability and

23  disparity in use of minority businesses for state procurement.

24         (d)  To develop an analysis of the existing strategies

25  of the state's minority business enterprise programs to

26  determine whether such strategies are cost-effective or if

27  alternative strategies should be developed to more

28  cost-effectively achieve the desired outcomes.

29         (q)(m)  To certify minority business enterprises, as

30  defined in s. 288.703, and as specified in ss. 287.0943 and

31  287.09431, and shall recertify such minority businesses not

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  1  less than once a year. Minority business enterprises must be

  2  recertified biannually annually by affidavit.

  3         (r)(n)1.  To develop procedures to be used by an agency

  4  in identifying commodities, contractual services,

  5  architectural and engineering services, and construction

  6  contracts, except those architectural, engineering,

  7  construction, or other related services or contracts subject

  8  to the provisions of chapter 339, that could be provided by

  9  minority business enterprises. Of the total state spending

10  with any private or nonprofit entity that is contracting with

11  the state during the current fiscal year, except for the state

12  university construction program which shall be based upon

13  public education capital outlay projections for the subsequent

14  fiscal year and reported to the Legislature pursuant to s.

15  216.023, each agency is encouraged to spend 12 21 percent on

16  of the moneys actually expended for construction contracts, 16

17  25 percent on of the moneys actually expended for

18  architectural and engineering contracts, 3 24 percent on of

19  the moneys actually expended for commodities, and 5 50.5

20  percent on of the moneys actually expended for contractual

21  services during the previous fiscal year, except for the state

22  university construction program which shall be based upon

23  public education capital outlay projections for the subsequent

24  fiscal year, and reported to the Legislature pursuant to s.

25  216.023, for the purpose of entering into contracts with

26  certified minority business enterprises as defined in s.

27  288.703(2), or approved joint ventures for the purpose of

28  entering into contracts. However, in the event of budget

29  reductions pursuant to s. 216.221, the base amounts may be

30  adjusted to reflect such reductions. The overall spending goal

31  for each industry category shall be subdivided as follows:

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  1         a.  For construction contracts: 2.4 4 percent for black

  2  Americans, 2.5 6 percent for Hispanic-Americans, 0.4 percent

  3  for Asian-Americans, 0.3 percent for Native Americans, and 6.4

  4  11 percent for American women.

  5         b.  For architectural and engineering contracts: 1.6

  6  percent for black Americans, 4.5 9 percent for

  7  Hispanic-Americans, 1 percent for Asian-Americans, 0.1 percent

  8  for Native Americans, and 8.8 15 percent for American women.

  9         c.  For commodities: 0.5 2 percent for black Americans,

10  0.5 4 percent for Hispanic-Americans, 0.2 0.5 percent for

11  Asian-Americans, 0.2 0.5 percent for Native Americans, and 1.6

12  17 percent for American women.

13         d.  For contractual services: 0.4 6 percent for black

14  Americans, 0.3 7 percent for Hispanic-Americans, 2.3 1 percent

15  for Asian-Americans, 0.2 0.5 percent for Native Americans, and

16  1.8 36 percent for American women.

17         2.  To develop procedures to establish dollar goals by

18  procurement category for each agency that range in value from

19  no less than 98 percent of the overall spending goal and no

20  more than 105 percent above the overall spending goal as

21  applied to each agency's total spending with any private or

22  nonprofit entity that is contracting or doing business with

23  the state during the current fiscal year, except for the state

24  university construction program which shall be based upon

25  public education capital outlay projections for the subsequent

26  fiscal year and reported to the Legislature pursuant to s.

27  216.023.

28         3.2.  For the purposes of commodities contracts for the

29  purchase of equipment to be used in the construction and

30  maintenance of state transportation facilities involving the

31  Department of Transportation, "minority business enterprise"

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  1  has the same meaning as provided in s. 288.703. "Minority

  2  person" has the same meaning as in s. 288.703(3). In order to

  3  ensure that the goals established under this paragraph for

  4  contracting with certified minority business enterprises are

  5  met, the division, with the assistance of the Minority

  6  Business Advocacy and Assistance Office, shall make

  7  recommendations to the Legislature on revisions to the goals,

  8  based on an updated statistical analysis, at least once every

  9  5 years. Such recommendations shall be based on statistical

10  data indicating the availability of and disparity in the use

11  of minority businesses contracting with the state. The results

12  of the first updated disparity study must be presented to the

13  Legislature no later than December 1, 1996.

14         4.3.  In determining the base amounts for assessing

15  compliance with this paragraph, the Minority Business Advocacy

16  and Assistance Office may develop, by rule, guidelines for all

17  agencies to use in establishing such base amounts. These rules

18  must include, but are not limited to, guidelines for

19  calculation of base amounts, a deadline for the agencies to

20  submit base amounts, a deadline for approval of the base

21  amounts by the Minority Business Advocacy and Assistance

22  Office, and procedures for adjusting the base amounts as a

23  result of budget reductions made pursuant to s. 216.221.

24         5.4.  To determine guidelines for the use of price

25  preferences, weighted preference formulas, individual project

26  goals, or other preferences, as appropriate to the particular

27  industry or trade, to increase the participation of minority

28  businesses in state contracting. These guidelines shall

29  include consideration of:

30         a.  Size and complexity of the project.

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  1         b.  The concentration of transactions with minority

  2  business enterprises for the commodity or contractual services

  3  in question in prior agency contracting.

  4         c.  The specificity and definition of work allocated to

  5  participating minority business enterprises.

  6         d.  The capacity of participating minority business

  7  enterprises to complete the tasks identified in the project.

  8         e.  The available pool of minority business enterprises

  9  as prime contractors, either alone or as partners in an

10  approved joint venture that serves as the prime contractor.

11         6.5.  To determine guidelines for use of joint ventures

12  to meet minority business enterprises spending goals. For

13  purposes of this section, "joint venture" means any

14  association of two or more business concerns to carry out a

15  single business enterprise for profit, for which purpose they

16  combine their property, capital, efforts, skills, and

17  knowledge. The guidelines shall allow transactions with joint

18  ventures to be eligible for credit against the minority

19  business enterprise goals of an agency when the contracting

20  joint venture demonstrates that at least one partner to the

21  joint venture is a certified minority business enterprise as

22  defined in s. 288.703, and that such partner is responsible

23  for a clearly defined portion of the work to be performed, and

24  shares in the ownership, control, management,

25  responsibilities, risks, and profits of the joint venture.

26  Such demonstration shall be by verifiable documents and sworn

27  statements and may be reviewed by the Minority Business

28  Advocacy and Assistance Office at or before the time a

29  contract bid is submitted. An agency may count toward its

30  minority business enterprise goals a portion of the total

31  dollar amount of a contract equal to the percentage of the

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  1  ownership and control held by the qualifying certified

  2  minority business partners in the contracting joint venture,

  3  so long as the joint venture meets the guidelines adopted by

  4  the office.

  5         (s)(o)1.  To establish a system to record and measure

  6  the use of certified minority business enterprises in state

  7  contracting. This system shall maintain information and

  8  statistics on certified minority business enterprise

  9  participation, awards, dollar volume of expenditures and

10  agency goals, and other appropriate types of information to

11  analyze progress in the access of certified minority business

12  enterprises to state contracts and to monitor agency

13  compliance with this section. Such reporting must include, but

14  is not limited to, the identification of all subcontracts in

15  state contracting, including state negotiated agreement price

16  schedule contracts and state term contracts, by dollar amount

17  and by number of subcontracts and the identification of the

18  utilization of certified minority business enterprises as

19  prime contractors and subcontractors by dollar amounts of

20  contracts and subcontracts, number of contracts and

21  subcontracts, minority status, industry, and any conditions or

22  circumstances that significantly affected the performance of

23  subcontractors. Agencies shall report their compliance with

24  the requirements of this reporting system at least annually

25  and at the request of the office. All agencies shall cooperate

26  with the office in establishing this reporting system. Except

27  in construction contracting, all agencies shall review

28  contracts costing in excess of CATEGORY FOUR as defined in s.

29  287.017 to determine if such contracts could be divided into

30  smaller contracts to be separately bid and awarded, and shall,

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  1  when economical, offer such smaller contracts to encourage

  2  minority participation.

  3         2.  To report agency compliance with the provisions of

  4  subparagraph 1. for the preceding fiscal year to the Governor

  5  and Cabinet, the President of the Senate, the Speaker of the

  6  House of Representatives, and the secretary of the Department

  7  of Labor and Employment Security on or before February 1 of

  8  each year. The report must contain, at a minimum, the

  9  following:

10         a.  Total expenditures of each agency by industry.

11         b.  The dollar amount and percentage of contracts

12  awarded to certified minority business enterprises by each

13  state agency.

14         c.  The dollar amount and percentage of contracts

15  awarded indirectly to certified minority business enterprises

16  as subcontractors by each state agency.

17         d.  The total dollar amount and percentage of contracts

18  awarded to certified minority business enterprises, whether

19  directly or indirectly, as subcontractors.

20         e.  A statement and assessment of good faith efforts

21  taken by each state agency.

22         f.  A status report of agency compliance with

23  subsection (6), as determined by the Minority Business

24  Enterprise Office.

25         Section 6.  This act shall take effect upon becoming a

26  law.

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Provides price preferences for businesses in historically
  4    underutilized business zones. Prohibits discriminatory
      activities and misleading statements or advertising in
  5    procuring property and services and provides penalties.
      Authorizes the Department of Labor and Employment
  6    Security to negotiate the terms of the statewide and
      interlocal agreement on certification of business
  7    concerns for minority business enterprises. Provides
      additional powers of the Minority Business Advocacy and
  8    Assistance Office, revises relative property and services
      expenditure percentages for specified minorities for
  9    property or service procurement contracts, and requires
      the office to develop procedures to establish dollar
10    goals by procurement category for agencies. See bill for
      details.
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