Senate Bill 1684

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    Florida Senate - 1999                                  SB 1684

    By Senators Meek, Dawson-White, Jones and Dyer





    36-649B-99                                              See HB

  1                      A bill to be entitled

  2         An act relating to property and services

  3         procurement; amending s. 240.205, F.S.;

  4         requiring that the Board of Regents comply with

  5         the minority business enterprise program;

  6         amending s. 240.227, F.S.; requiring that

  7         university presidents comply with the minority

  8         business enterprise program; amending s.

  9         287.012, F.S.; redefining the terms "agency"

10         and "office"; creating s. 287.085, F.S.;

11         providing for price preferences in historically

12         underutilized business zones; creating s.

13         287.086, F.S.; creating a small business

14         enterprise program with goals, incentives, and

15         size standards; amending s. 287.0943, F.S.;

16         revising certification criteria for certain

17         minority business enterprises; amending s.

18         287.09431, F.S.; providing for flexibility in

19         statewide reciprocal certification agreements;

20         amending s. 287.09451, F.S.; creating the

21         Commission on Small Business and Economic

22         Development composed of the Governor and

23         Cabinet; renaming the Minority Business

24         Advocacy and Assistance Office as the Small

25         Business and Economic Development Office;

26         revising procedural requirements for property

27         and services expenditure percentages for

28         specified minorities; requiring the office to

29         develop procedures to establish dollar goals by

30         procurement category for certain agencies;

31         providing an expiration date; providing for the

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         appointment of a Minority Business Ombudsman;

  2         creating a mentor and protege program; creating

  3         s. 287.09452, F.S.; establishing the Small and

  4         Minority Business Management and Technical

  5         Assistance Program; providing state purposes;

  6         providing for participation; providing program

  7         criteria and requirements; providing duties of

  8         the Small Business and Economic Development

  9         Office; authorizing the office to engage in

10         certain financial activities for program

11         purposes; requiring a report; creating s.

12         287.0946, F.S.; authorizing the Small Business

13         and Economic Development Office to establish a

14         linked-deposit program for minority and small

15         business enterprises; providing an expiration

16         date; amending s. 290.0075, F.S.; extending the

17         expiration date of the enterprise-zone

18         linked-deposit program; amending ss. 17.11,

19         255.102, 287.042, 287.057, 287.0947, 288.703,

20         F.S.; conforming provisions; providing an

21         effective date.

22

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

24

25         Section 1.  Subsection (6) of section 240.205, Florida

26  Statutes, 1998 Supplement, is amended to read:

27         240.205  Board of Regents incorporated.--The Board of

28  Regents is hereby created as a body corporate with all the

29  powers of a body corporate for all the purposes created by, or

30  that may exist under, the provisions of this chapter or laws

31  amendatory hereof and shall:

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         (6)  Acquire real and personal property and contract

  2  for the sale and disposal of same and approve and execute

  3  contracts for the acquisition of commodities, goods,

  4  equipment, contractual services, leases of real and personal

  5  property, and construction. The acquisition may include

  6  purchase by installment or lease-purchase. Such contracts may

  7  provide for payment of interest on the unpaid portion of the

  8  purchase price.  The board may also acquire the same

  9  commodities, goods, equipment, contractual services, leases,

10  and construction for use by a university when the contractual

11  obligation exceeds $1 million.  Title to all real property,

12  however acquired, shall be vested in the Board of Trustees of

13  the Internal Improvement Trust Fund and shall be transferred

14  and conveyed by it. Notwithstanding any other provisions of

15  this subsection, the Board of Regents shall comply with the

16  provisions of s. 287.055 for the procurement of professional

17  services as defined in that section and with s. 287.09451 and

18  other sections relating to the minority business enterprise

19  program therein.

20         Section 2.  Subsection (12) of section 240.227, Florida

21  Statutes, 1998 Supplement, is amended to read:

22         240.227  University presidents; powers and duties.--The

23  president is the chief administrative officer of the

24  university and is responsible for the operation and

25  administration of the university.  Each university president

26  shall:

27         (12)  Approve and execute contracts for the acquisition

28  of commodities, goods, equipment, services, leases of real and

29  personal property, and construction to be rendered to or by

30  the university, provided such contracts are made pursuant to

31  rules of the Board of Regents, are for the implementation of

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  approved programs of the university, and do not require

  2  expenditures in excess of $1 million. The acquisition may be

  3  made by installment or lease-purchase contract.  Such

  4  contracts may provide for the payment of interest on the

  5  unpaid portion of the purchase price. Notwithstanding any

  6  other provisions of this subsection, university presidents

  7  shall comply with the provisions of s. 287.055 for the

  8  procurement of professional services and with s. 287.09451 and

  9  other sections relating to the minority business enterprise

10  program, and may approve and execute all contracts for

11  planning, construction, and equipment for projects with

12  building programs and construction budgets approved by the

13  Board of Regents.

14         Section 3.  Subsections (1) and (19) of section

15  287.012, Florida Statutes, 1998 Supplement, are amended to

16  read:

17         287.012  Definitions.--The following definitions shall

18  apply in this part:

19         (1)  "Agency" means any of the various state officers,

20  departments, boards, commissions, divisions, bureaus, and

21  councils and any other unit of organization, however

22  designated, of the executive branch of state government.

23  "Agency" does not include the Board of Regents or the State

24  University System, except as it relates to compliance with the

25  state's minority business enterprise program in s. 287.09451

26  and other related sections, rules, policies, and procedures.

27         (19)  "Office" means the Small Minority Business and

28  Economic Development Advocacy and Assistance Office of the

29  Commission on Small Business and Economic Development

30  Department of Labor and Employment Security.

31

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         Section 4.  Section 287.085, Florida Statutes, is

  2  created to read:

  3         287.085  Historically underutilized business zones.--

  4         (1)  Whenever two or more bids or proposals that are

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

  6  business participation are received by a state agency or the

  7  State University System for the procurement of goods or

  8  services under a contract solicitation, a bid or proposal

  9  received from a certified zone business must be awarded a

10  10-percent price preference, a state-of-Florida vendor

11  preference, or weighted points amounting to 10 percent of the

12  overall points. In order to be a certified zone business, the

13  business must:

14         (a)  Certify that at least 35 percent of its employees

15  are full-time residents of a zone in this state; or

16         (b)  Certify that it is providing a commercially useful

17  function with the license to do business in the state.

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

19  moneys actually expended on private vendors and use purchasing

20  incentives with zone businesses.

21         (3)  For the purposes of this section, the term "zone"

22  means a historically underutilized business zone in a

23  geographical area that has been designated as an enterprise

24  zone under chapter 290 or an area targeted by the Governor.

25         (4)  Spending with zone businesses that are owned and

26  operated by a woman or a minority person shall be counted

27  towards the goals specified in s. 287.09451.

28         (5)  This section does not apply to related services or

29  contracts subject to chapter 339.

30         (6)  The Commission on Small Business and Economic

31  Development shall adopt rules, monitor and report progress,

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  and do all things necessary or convenient to guide all state

  2  agencies and the State University System toward making

  3  expenditures for commodities, contractual services,

  4  construction, and architectural and engineering services with

  5  historically-underutilized-business-zones businesses.

  6         Section 5.  Section 287.086, Florida Statutes, is

  7  created to read:

  8         287.086  Small business enterprise program.--

  9         (1)  An eligible small business enterprise is one that

10  is located in an area targeted by the Governor or domiciled in

11  the state and that is independently owned and operated and

12  does not exceed the small business size standard in the

13  relevant standard industry code, as outlined in 13 C.F.R.,

14  part 121. Any business that is certified as a small business

15  by any governmental entity is deemed reciprocally certified

16  for this program upon presentation of current certification

17  letters or certificates from a governmental entity or its

18  designee to the Small Business and Economic Development

19  Office. This office must verify with the certifying

20  governmental entity that the information is current and that

21  the business does not exceed the established size standards of

22  13 C.F.R., part 121. Upon verification, the firm may be

23  registered with the Small Business and Economic Development

24  Office.

25         (2)  Purchases of competitively bid commodities,

26  construction, contractual services, and professional services

27  may be reserved by state agencies and the State University

28  System for registered small business enterprises. Reserved

29  procurement must be by economically feasible contracts or

30  portions of contracts within the capability of small business

31  enterprises as described in subsection (1). In order to assure

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  necessary competition, at least three registered firms must be

  2  available in the area before the purchase may be reserved.

  3  State agencies and state universities may use a 10-percent

  4  price incentive or a state-of-Florida vendor incentive for

  5  small business enterprises.

  6         (3)  Payment and performance bonds may be waived on

  7  state projects for small business enterprises under s.

  8  255.05(1)(a). The state agency shall comply with the following

  9  procedures to determine whether to waive bond requirements for

10  a project:

11         (a)  Identify those projects that are eligible;

12         (b)  Determine, by careful review of the technical

13  documents, the nature, scope, and complexity of the project;

14  and

15         (c)  Review the list to ensure that at least three

16  small business enterprises are registered to perform the work.

17         (4)  When a firm registered with the Small Business and

18  Economic Development Office is awarded a state project as a

19  prime contractor, state agencies, or state universities may

20  permit the issuance of joint checks. The use of this procedure

21  shall not be construed to create a contractual relationship

22  between the state and the supply or material house or other

23  outside vendors of the small business enterprise. It is

24  intended solely for the benefit and assistance of the small

25  business enterprise.

26         (5)  The small business enterprise must be registered

27  with the Commission on Small Business and Economic

28  Development.

29         (6)  The Commission on Small Business Development shall

30  adopt rules, monitor, and do all things necessary or

31  convenient to guide all state agencies and state universities

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  toward making expenditures for commodities, contractual

  2  services, construction, and architecture and engineering

  3  services to small business enterprises.

  4         Section 6.  Paragraphs (b) and (e) of subsection (1)

  5  and paragraph (a) of subsection (4) of section 287.0943,

  6  Florida Statutes, 1998 Supplement, are amended to read:

  7         287.0943  Certification of minority business

  8  enterprises.--

  9         (1)

10         (b)  The task force shall be regionally balanced and

11  comprised of officials representing the department, counties,

12  municipalities, school boards, special districts, and other

13  political subdivisions of the state who administer programs to

14  assist minority businesses in procurement or development in

15  government-sponsored programs. The following organizations may

16  appoint two members each of the task force who fit the

17  description above:

18         1.  The Florida League of Cities, Inc.

19         2.  The Florida Association of Counties.

20         3.  The Florida School Boards Association, Inc.

21         4.  The Association of Special Districts.

22         5.  The Florida Association of Minority Business

23  Enterprise Officials.

24         6.  The Florida Association of Government Purchasing

25  Officials.

26

27  In addition, the Small Minority Business and Economic

28  Development Advocacy and Assistance Office shall appoint seven

29  members consisting of three representatives of minority

30  business enterprises, two officials of the office, and two

31  at-large members to ensure regional, gender, racial, and

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  ethnic balance among the groups specified in s. 288.703(3).

  2  The chairperson of the Legislative Committee on

  3  Intergovernmental Relations or a designee shall be a member of

  4  the task force, ex officio. A quorum shall consist of

  5  one-third of the current members, and the task force may take

  6  action by majority vote. Any vacancy may only be filled by the

  7  organization or agency originally authorized to appoint the

  8  position.

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

10  certification criteria shall, at a minimum:

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

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

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

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

15  minority owner in any trade or profession that the minority

16  business enterprise will offer to the state when certified;

17  however, the minority licenseholder need not be the

18  controlling owner of the enterprise, but must hold an

19  ownership interest. Minority business enterprises presently

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

21  requirement until 5 years after the effective date of this

22  act.

23         2.  If present ownership was obtained by transfer,

24  require the minority person on whom eligibility is based to

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

26  minimum of 2 years, when any previous majority ownership

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

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

29  person on whom eligibility is based. This requirement shall

30  not apply to minority persons who are otherwise eligible who

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

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  professional licensure to operate and who will be the

  2  qualifying licenseholder for the firm when certified.  A

  3  transfer made within a related immediate family group from a

  4  nonminority person to a minority person in order to establish

  5  ownership by a minority person shall be deemed to have been

  6  made solely for purposes of satisfying certification criteria

  7  and shall render such ownership invalid for purposes of

  8  qualifying for such certification if the combined total net

  9  asset value of all members of such family group exceeds $1

10  million. For purposes of this subparagraph, the term "related

11  immediate family group" means one or more children under 16

12  years of age and a parent of such children or the spouse of

13  such parent residing in the same house or living unit.

14         3.  Require that prospective certified minority

15  business enterprises be currently performing a useful business

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

17  business function which results in the provision of materials,

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

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

20  a nonminority business does not constitute a useful business

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

22  supplier that has a distributorship agreement, other forms of

23  industry agreements, or lines of credit and that demonstrates

24  a means of procuring and transporting goods, including catalog

25  sales and drop shipments, is considered to be providing a

26  useful business function. As used in this section, the term

27  "acting as a conduit" means, in part, not acting as a regular

28  dealer by making sales of material, goods, or supplies from

29  items bought, kept in stock, and regularly sold to the public

30  in the usual course of business. Brokers, manufacturer's

31  representatives, sales representatives, and nonstocking

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  distributors are considered as conduits that do not perform a

  2  useful business function, unless normal industry practice

  3  dictates.

  4         (4)(a)  The executive administrator secretary of the

  5  Small Business and Economic Development Office Department of

  6  Labor and Employment Security shall monitor and implement

  7  execute the statewide reciprocal certification and interlocal

  8  agreement established under s. 287.09431 on behalf of the

  9  state. The office shall certify minority business enterprises

10  in accordance with statewide reciprocal certification the

11  agreement and, by affidavit, shall recertify such minority

12  business enterprises not less than once every 2 years each

13  year.

14         Section 7.  Section 287.09431, Florida Statutes, is

15  amended to read:

16         (Substantial rewording of section.  See

17         s. 287.09431, F.S., for present text.)

18         287.09431  Statewide reciprocal certification of

19  business concerns for the status of minority business

20  enterprise.--The statewide reciprocal certification of

21  business concerns for the status of minority business

22  enterprise is hereby enacted and entered into with all

23  jurisdictions or organizations legally joining therein. The

24  executive administrator of the Small Business and Economic

25  Development Office may enter into flexible agreements with all

26  jurisdictions for the purpose of effectuating this section.

27  Therefore, additional eligibility criteria may be permissible

28  in order for local government jurisdictions and private

29  organizations to comply with local and federal laws,

30  especially those laws that are enacted to counter the findings

31  of disparity studies. The executive administrator of the Small

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  Business and Economic Development Office may negotiate the

  2  terms of agreement with the local government jurisdictions and

  3  private organizations to include as many participating

  4  entities as feasible, whether or not they have minority

  5  business programs.

  6         Section 8.  Section 287.09451, Florida Statutes, 1998

  7  Supplement, is amended to read:

  8         287.09451  Commission on Small Business and Economic

  9  Development Minority Business Advocacy and Assistance Office;

10  powers, duties, and functions.--

11         (1)  The Legislature finds that there is evidence that

12  minority business enterprises face extraordinary obstacles and

13  barriers in this state which impact their ability to compete

14  for contracts. The purpose and intent of the Legislature is to

15  provide these businesses with technical, managerial,

16  contracting, and financial assistance in order to make their

17  search for government contracts consistently fruitful. The

18  Legislature further finds that there is evidence of a

19  systematic pattern of past and continuing racial

20  discrimination against minority business enterprises and a

21  disparity in the availability and use of minority business

22  enterprises in the state procurement system. It is determined

23  to be a compelling state interest to rectify that

24  discrimination and disparity. Based upon statistical data

25  profiling discrimination, the Legislature has enacted this

26  race-conscious and gender-conscious remedial program to ensure

27  minority participation in the economic life of the state, in

28  state contracts for the purchase of commodities, contractual

29  services, architectural and engineering services, and in

30  construction contracts. The purpose and intent of this section

31  is to increase participation by minority business enterprises

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  in the state procurement system. This purpose will be

  2  accomplished by encouraging the use of minority business

  3  enterprises and the entry of new and diversified minority

  4  business enterprises into the marketplace.

  5         (2)  There is created the Commission on Small Business

  6  and Economic Development, the membership of which shall be the

  7  Governor, two persons appointed by the President of the

  8  Senate, and two persons appointed by the Speaker of the House

  9  of Representatives. The commission is assigned to the Office

10  of Tourism, Trade, and Economic Development for administrative

11  purposes and fiscal accountability. The Governor is the

12  chairperson of the commission, and may call a meeting of the

13  commission when the need arises. All actions taken by the

14  commission may be taken by approval of a simple majority.

15         (3)  An executive administrator to the commission shall

16  be appointed and may be removed by the Governor.

17         (4)  The executive administrator is responsible for all

18  administrative functions of the commission, including

19  budgeting, personnel, purchasing, and such additional matters

20  as are delegated by the commission.

21         (5)  The executive administrator shall employ, within

22  budgetary limitations, such staff as are necessary to perform

23  adequately the functions of the commission.

24         (6)  The executive administrator shall develop a budget

25  in accordance with chapter 216 and submit it to the Executive

26  Office of the Governor.

27         (7)  The commission shall:

28         (a)  Provide overall leadership and promote

29  coordination of economic and business development resources

30  for the benefit of minority business enterprises and of

31  distressed communities that are affected by the business.

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         (b)  Develop a comprehensive strategic plan that will

  2  provide the maximum practical opportunity for economic growth

  3  of black-owned businesses and other minority businesses in

  4  this state.

  5         (c)  Provide direction relating to economic and

  6  business development of minority business enterprises to

  7  regional and statewide planning entities and county,

  8  municipal, and special district minority business enterprise

  9  programs to help promote the redevelopment of distressed areas

10  and minority business enterprises and minority and small

11  business enterprise programs, where necessary, and to foster

12  strategic alliances among these entities so as to target

13  resources and achieve specific objectives in the economic and

14  business development of minority business enterprises.

15         (d)  Develop a clear statement of the mission, desired

16  outcomes and strategies for accomplishing the outcomes, and

17  performance measures to assess whether the outcomes are being

18  achieved for the state's small and minority business

19  enterprise programs. The goals are to:

20         1.  Increase the size and profitability of minority

21  businesses served by the programs.

22         2.  Increase the economic self-sufficiency and

23  competitiveness of minority businesses, as measured by their

24  ability to independently obtain necessary financial capital

25  and surety bonding, and to successfully compete for larger

26  government contracts, in terms of gross contract amount,

27  outside a served or sheltered market.

28         3.  Significantly reduce the disparities evidenced by a

29  statistical analysis of the availability and use of minority

30  businesses for state procurement.

31

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         (e)  Develop an analysis of the existing strategies of

  2  the state's minority business enterprise programs to determine

  3  whether the strategies are cost-effective or whether

  4  alternative strategies should be developed to more

  5  cost-effectively achieve the desired outcomes.

  6         (f)  Submit the information required to be developed to

  7  the Governor, the President of the Senate, and the Speaker of

  8  the House of Representatives by February 1 of each year. of a

  9  systematic  pattern of past and continuing racial

10  discrimination against minority business enterprises and a

11  disparity in the availability and use of minority business

12  enterprises in the state procurement system. It is determined

13  to be a compelling state interest to rectify such

14  discrimination and disparity. Based upon statistical data

15  profiling this discrimination, the Legislature has enacted

16  race-conscious and gender-conscious remedial programs to

17  ensure minority participation in the economic life of the

18  state, in state contracts for the purchase of commodities and

19  services, and in construction contracts. The purpose and

20  intent of this section is to increase participation by

21  minority business enterprises accomplished by encouraging the

22  use of minority business enterprises and the entry of new and

23  diversified minority business enterprises into the

24  marketplace.

25         (2)  The Minority Business Advocacy and Assistance

26  Office is established within the Department of Labor and

27  Employment Security to assist minority business enterprises in

28  becoming suppliers of commodities, services, and construction

29  to state government.

30

31

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         (3)  The secretary shall appoint an executive director

  2  for the Minority Business Advocacy and Assistance Office, who

  3  shall serve at the pleasure of the secretary.

  4         (8)(4)  The Small Minority and Economic Development

  5  Business Advocacy and Assistance Office is established within

  6  the commission to assist small and minority businesses in

  7  becoming suppliers of commodities, services, and construction

  8  to state governments. The Small Business and Economic

  9  Development Office shall have the following powers, duties,

10  and functions:

11         (a)  To adopt rules to determine what constitutes a

12  "good faith effort" for purposes of state agency compliance

13  with the minority business enterprise procurement goals set

14  forth in s. 287.042. Factors which shall be considered by the

15  Small Minority Business and Economic Development Enterprise

16  Assistance Office in determining good faith effort shall

17  include, but not be limited to:

18         1.  Whether the agency scheduled presolicitation or

19  prebid meetings for the purpose of informing minority business

20  enterprises of contracting and subcontracting opportunities.

21         2.  Whether the contractor advertised in general

22  circulation, trade association, or minority-focus media

23  concerning the subcontracting opportunities.

24         3.  Whether the agency effectively used services and

25  resources of available minority community organizations;

26  minority contractors' groups; local, state, and federal

27  minority business assistance offices; and other organizations

28  that provide assistance in the recruitment and placement of

29  minority business enterprises or minority persons.

30         4.  Whether the agency provided written notice to a

31  reasonable number of minority business enterprises that their

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  interest in contracting with the agency was being solicited in

  2  sufficient time to allow the minority business enterprises to

  3  participate effectively.

  4         (b)  To adopt rules to determine what constitutes a

  5  "good faith effort" for purposes of contractor compliance with

  6  contractual requirements relating to the use of services or

  7  commodities of a minority business enterprise under s.

  8  287.094(2). Factors which shall be considered by the Small

  9  Minority Business and Economic Development Advocacy and

10  Assistance Office in determining whether a contractor has made

11  good faith efforts shall include, but not be limited to:

12         1.  Whether the contractor attended any presolicitation

13  or prebid meetings that were scheduled by the agency to inform

14  minority business enterprises of contracting and

15  subcontracting opportunities.

16         2.  Whether the contractor advertised in general

17  circulation, trade association, or minority-focus media

18  concerning the subcontracting opportunities.

19         3.  Whether the contractor provided written notice to a

20  reasonable number of specific minority business enterprises

21  that their interest in the contract was being solicited in

22  sufficient time to allow the minority business enterprises to

23  participate effectively.

24         4.  Whether the contractor followed up initial

25  solicitations of interest by contacting minority business

26  enterprises or minority persons to determine with certainty

27  whether the minority business enterprises or minority persons

28  were interested.

29         5.  Whether the contractor selected portions of the

30  work to be performed by minority business enterprises in order

31  to increase the likelihood of meeting the minority business

                                  17

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  enterprise procurement goals, including, where appropriate,

  2  breaking down contracts into economically feasible units to

  3  facilitate minority business enterprise participation.

  4         6.  Whether the contractor provided interested minority

  5  business enterprises or minority persons with adequate

  6  information about the plans, specifications, and requirements

  7  of the contract or the availability of jobs.

  8         7.  Whether the contractor negotiated in good faith

  9  with interested minority business enterprises or minority

10  persons, not rejecting minority business enterprises or

11  minority persons as unqualified without sound reasons based on

12  a thorough investigation of their capabilities.

13         8.  Whether the contractor effectively used the

14  services of available minority community organizations;

15  minority contractors' groups; local, state, and federal

16  minority business assistance offices; and other organizations

17  that provide assistance in the recruitment and placement of

18  minority business enterprises or minority persons.

19         (c)  To adopt rules and do all things necessary or

20  convenient to guide all state agencies toward making

21  expenditures for commodities, contractual services,

22  construction, and architectural and engineering services with

23  certified minority business enterprises in accordance with the

24  minority business enterprise procurement goals set forth in s.

25  287.042.

26         (d)  To monitor the degree to which agencies procure

27  services, commodities, and construction from minority business

28  enterprises in conjunction with the Department of Banking and

29  Finance as specified in s. 17.11.

30

31

                                  18

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         (e)  To receive and disseminate information relative to

  2  procurement opportunities, availability of minority business

  3  enterprises, and technical assistance.

  4         (f)  To advise agencies on methods and techniques for

  5  achieving procurement objectives.

  6         (g)  To provide a central minority business enterprise

  7  certification process which includes independent verification

  8  of status as a minority business enterprise.

  9         (h)  To develop procedures to investigate complaints

10  against minority business enterprises or contractors alleged

11  to violate any provision related to this section or s.

12  287.0943, that may include visits to worksites or business

13  premises, and to refer all information on businesses suspected

14  of misrepresenting minority status to the Commission on Small

15  Business and Economic Development Department of Labor and

16  Employment Security for investigation. When an investigation

17  is completed and there is reason to believe that a violation

18  has occurred, the commission Department of Labor and

19  Employment Security shall refer the matter to the office of

20  the Attorney General, Department of Legal Affairs, for

21  prosecution.

22         (i)  To maintain a directory of all minority business

23  enterprises which have been certified and provide this

24  information to any agency or business requesting it.

25         (j)  To encourage all firms which do more than $1

26  million in business with the state within a 12-month period to

27  develop, implement, and submit to this office a minority

28  business development plan.

29         (k)  To communicate on a monthly basis with the

30  Commission on Small Business and Economic Development Small

31  and Minority Business Advisory Council to keep the commission

                                  19

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  council informed on issues relating to minority enterprise

  2  procurement.

  3         (l)  To serve as an advocate for minority business

  4  enterprises, and coordinate with the small and minority

  5  business ombudsman, as defined in s. 288.703, which duties

  6  shall include:

  7         1.  Ensuring that agencies supported by state funding

  8  effectively target the delivery of services and resources, as

  9  related to minority business enterprises.

10         2.  Establishing standards within each industry with

11  which the state government contracts on how agencies and

12  contractors may provide the maximum practicable opportunity

13  for minority business enterprises.

14         3.  Assisting agencies and contractors by providing

15  outreach to minority businesses, by specifying and monitoring

16  technical and managerial competence for minority business

17  enterprises, and by consulting in planning of agency

18  procurement to determine how best to provide opportunities for

19  minority business enterprises.

20         4.  Integrating technical and managerial assistance for

21  minority business enterprises with government contracting

22  opportunities.

23         (m)  To make and execute contracts and other

24  instruments necessary for the exercise of its powers and

25  functions, and provide and pay for advisory services and

26  technical assistance that may be necessary to carry out the

27  purposes of this section.

28         (n)  To request or accept any grant, including a grant

29  that requires a state match, any payment, gift of funds, or

30  property made by the state, by the United States or any

31  department or agency thereof, or by any individual firm,

                                  20

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  political subdivision, corporation, municipality, county, or

  2  organization for any purpose outlined in chapter 287. All such

  3  funds must be deposited into the budget entity of the office,

  4  and may be expended above the amount appropriated by the

  5  Legislature and in accordance with the terms and conditions of

  6  any such grant, payment, or gift, or in the pursuit of the

  7  administration of the office or in support of the programs and

  8  promotional activities recommended to the commission. If the

  9  Small Business and Economic Development Office is awarded a

10  grant or private contribution that requires a match, the

11  office shall receive a matching appropriation equal to 80

12  percent of the grant or private contribution.

13         (o)  To adopt rules necessary to ensure agency and

14  contractor compliance with this section and the Florida Small

15  and Minority Business Assistance Act of 1985.

16         (p)(m)  To certify minority business enterprises, as

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

18  287.09431, and shall recertify such minority businesses not

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

20  recertified biannually annually by affidavit.

21         (q)(n)1.  To develop procedures to be used by an agency

22  in identifying commodities, contractual services,

23  architectural and engineering services, and construction

24  contracts, except those architectural, engineering,

25  construction, or other related services or contracts subject

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

27  minority business enterprises. Minority business enterprise

28  goals must be based upon the total state spending with any

29  private or nonprofit entity that is contracting with the state

30  during the current fiscal year; except for the state

31  university construction program, which must be based upon

                                  21

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  public education capital outlay projections for the subsequent

  2  fiscal year and reported to the Legislature under s. 216.023.

  3  Each agency is encouraged to spend 12-21 21 percent on of the

  4  moneys actually expended for construction contracts, 17-25 25

  5  percent on of the moneys actually expended for architectural

  6  and engineering contracts, 5-24 24 percent on of the moneys

  7  actually expended for commodities, and 5-25 50.5 percent on of

  8  the moneys actually expended for contractual services during

  9  the previous fiscal year, except for the state university

10  construction program which shall be based upon public

11  education capital outlay projections for the subsequent fiscal

12  year, and reported to the Legislature pursuant to s. 216.023,

13  for the purpose of entering into contracts with certified

14  minority business enterprises as defined in s. 288.703(2), or

15  approved joint ventures or mentor programs for the purpose of

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

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

18  adjusted to reflect such reductions. The overall spending goal

19  for each industry category shall be subdivided as follows:

20         a.  For construction contracts: 2.4-4.3 4 percent for

21  black Americans, 2.5-6 6 percent for Hispanic-Americans, 0.4

22  percent for Asian-Americans, 0.3 for Native Americans, and

23  6.4-11 11 percent for American women.

24         b.  For architectural and engineering contracts: 2.6

25  percent for black Americans, 4.5-9 9 percent for

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

27  for Native Americans, and 8.8-15 15 percent for American

28  women.

29         c.  For commodities: 1.5-4 2 percent for black

30  Americans, 1.5-4 4 percent for Hispanic-Americans, 0.2-0.5 0.5

31

                                  22

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  percent for Asian-Americans, 0.2-0.5 0.5 percent for Native

  2  Americans, and 1.6-15 17 percent for American women.

  3         d.  For contractual services: 0.4-7 6 percent for black

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

  5  percent for Asian-Americans, 0.2-0.5 0.5 percent for Native

  6  Americans, and 1.8-8.2 36 percent for American women.

  7         2.  To develop procedures to evaluate the performance

  8  of state agency heads and purchasing personnel in meeting or

  9  exceeding the established percentage goals. Additionally, to

10  develop procedures to establish dollar goals, by procurement

11  category, for each agency which range in value from no less

12  than 98 percent of the overall spending goal and no more than

13  105 percent above the overall spending goal as applied to each

14  agency's total spending with any private or nonprofit entity

15  that is contracting or doing business with the state during

16  the current fiscal year; except for the state university

17  construction program, which must be based upon public

18  education capital outlay projections for the subsequent fiscal

19  year and reported to the Legislature under s. 216.023.

20         3.2.  For the purposes of commodities contracts for the

21  purchase of equipment to be used in the construction and

22  maintenance of state transportation facilities involving the

23  Department of Transportation, "minority business enterprise"

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

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

26  ensure that the goals established under this paragraph for

27  contracting with certified minority business enterprises are

28  met, the department, with the assistance of the Small Minority

29  Business and Economic Development Advocacy and Assistance

30  Office, shall make recommendations to the Legislature on

31  revisions to the goals, based on an updated statistical

                                  23

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  analysis, at least once every 5 years. Such recommendations

  2  shall be based on statistical data indicating the availability

  3  of and disparity in the use of minority businesses contracting

  4  with the state. The results of the second first updated

  5  disparity study must be presented to the Legislature no later

  6  than December 1, 2002, to determine the effectiveness in

  7  achieving stated goals and to revise or modify program

  8  components for the full achievement of the goals. In those

  9  specific areas, including procurement category, ethnic group,

10  geographic region, or agency, when the Legislature determines

11  that there is no disparity in the participation of minority

12  business enterprises based on the disparity analysis, the

13  minority business program must be discontinued, in those areas

14  only, within 1 year after the Legislature's determination. The

15  Governor shall designate a Minority Business Ombudsman to

16  monitor progress, receive complaints, and report progress to

17  the commission, by November 1 of each year, in those areas in

18  which the minority business enterprise programs are phased out

19  or repealed to determine whether disparities or discrimination

20  is a recurring problem. The minority business enterprise

21  program may be reestablished in phased-out programs, when

22  disparities in minority business utilization reoccurs. This

23  section expires July 1, 2006; however, the Minority Business

24  Ombudsman shall continue to monitor, receive complaints, make

25  recommendations, and report findings to the Governor. 1996

26         4.3.  In determining the base amounts for assessing

27  compliance with this paragraph, the Small Minority Business

28  and Economic Development Advocacy and Assistance Office may

29  develop, by rule, guidelines for all agencies to use in

30  establishing such base amounts. These rules must include, but

31  are not limited to, guidelines for calculation of base

                                  24

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  amounts, a deadline for the agencies to submit base amounts, a

  2  deadline for approval of the base amounts by the Small

  3  Minority Business and Economic Development Advocacy and

  4  Assistance Office, and procedures for adjusting the base

  5  amounts as a result of budget reductions made pursuant to s.

  6  216.221.

  7         5.4.  To determine guidelines for the use of price

  8  preferences, weighted preference formulas, individual project

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

10  industry or trade, to increase the participation of minority

11  businesses in state contracting. These guidelines shall

12  include consideration of:

13         a.  Size and complexity of the project.

14         b.  The concentration of transactions with minority

15  business enterprises for the commodity or contractual services

16  in question in prior agency contracting.

17         c.  The specificity and definition of work allocated to

18  participating minority business enterprises.

19         d.  The capacity of participating minority business

20  enterprises to complete the tasks identified in the project.

21         e.  The available pool of minority business enterprises

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

23  approved joint venture that serves as the prime contractor.

24         f.  The geographical location of certified minority

25  business enterprises where location is a relevant factor.

26         6.5.  To establish programs, adopt rules, establish

27  guidelines, and develop annual plans, where applicable, to be

28  followed by the participants of the mentor program and

29  determine guidelines for use of joint ventures to meet

30  minority business enterprises spending goals. For purposes of

31  this section, "joint venture" means any association of two or

                                  25

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  more business concerns to carry out a single business

  2  enterprise for profit, for which purpose they combine their

  3  property, capital, efforts, skills, or and knowledge. The

  4  guidelines shall allow transactions with joint ventures to be

  5  eligible for credit against the minority business enterprise

  6  goals of an agency when the contracting joint venture

  7  demonstrates that at least one partner to the joint venture is

  8  a certified minority business enterprise as defined in s.

  9  288.703, and that such partner is responsible for a clearly

10  defined portion of the work to be performed, and can

11  demonstrate a plan to enhance the certified minority business

12  enterprises' profitability, management skills, financial

13  standing, and marketplace position shares in the ownership,

14  control, management, responsibilities, risks, and profits of

15  the joint venture. Such demonstration shall be by verifiable

16  documents and sworn statements and may be reviewed by the

17  Small Minority Business and Economic Development Advocacy and

18  Assistance Office at or before the time a contract bid is

19  submitted. An agency may count toward its minority business

20  enterprise goals a portion of the total dollar amount of a

21  contract equal to the percentage of the ownership and control

22  held by the qualifying certified minority business partners in

23  the business relationship contracting joint venture, so long

24  as it the joint venture meets the guidelines adopted by the

25  office.

26         (r)  Mentor programs may be established for businesses

27  to qualify to bid on state projects.

28         1.  A mentor must possess all applicable state and

29  local licenses related to conducting the mentor's business. A

30  mentor shall provide to a certified minority business

31  enterprise any financial, technical, ethical, management, and

                                  26

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  practical training and guidance relating to the conduct of the

  2  mentor's business, which shall be outlined as written goals

  3  and submitted for review to the Small Business and Economic

  4  Development Office.

  5         2.  Mentor requirements apply only to businesses that

  6  apply for the mentor program, compete for state contracts, and

  7  want certified minority business enterprise participation

  8  credit on a state contract. The protege of the mentor

  9  relationship, must be a certified minority business

10  enterprise.

11         3.  Mentors who mentor certified minority business

12  enterprises or small business enterprise located in an area

13  targeted by the Governor's Front Porch Florida Initiative may

14  receive credit for meeting minority business enterprise

15  contracting goals.

16         4.  A protege under the program shall participate by

17  being available to benefit from information and expertise

18  offered by the mentor. To qualify as a protege, a business

19  must be a certified minority business enterprise.

20         5.  The mentor shall submit the written mentor plan to

21  the Small Business and Economic Development Office, for

22  approval, if the mentor desires to submit the mentor-protege

23  relationship for minority business enterprise participation

24  credit.

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

26  the use of certified minority business enterprises in state

27  contracting. This system shall maintain information and

28  statistics on certified minority business enterprise

29  participation, awards, dollar volume of expenditures and

30  agency goals, and other appropriate types of information to

31  analyze progress in the access of certified minority business

                                  27

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  enterprises to state contracts and to monitor agency

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

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

  4  state contracting, including state negotiated agreement price

  5  schedule contracts and state term contracts, by dollar amount

  6  and by number of subcontracts and the identification of the

  7  utilization of certified minority business enterprises as

  8  prime contractors and subcontractors by dollar amounts of

  9  contracts and subcontracts, number of contracts and

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

11  circumstances that significantly affected the performance of

12  subcontractors. Agencies shall report their compliance with

13  the requirements of this reporting system at least annually

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

15  with the office in establishing this reporting system. Except

16  in construction contracting, all agencies shall review

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

18  287.017 to determine if such contracts could be divided into

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

20  when economical, offer such smaller contracts to encourage

21  minority participation.

22         2.  To report agency compliance with the provisions of

23  subparagraph 1. for the preceding fiscal year to the

24  commission Governor and Cabinet, the President of the Senate,

25  the Speaker of the House of Representatives, and the secretary

26  of the Department of Labor and Employment Security on or

27  before February 1 of each year. The report must contain, at a

28  minimum, the following:

29         a.  Total expenditures of each agency by industry.

30

31

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         b.  The dollar amount and percentage of contracts

  2  awarded to certified minority business enterprises by each

  3  state agency.

  4         c.  The dollar amount and percentage of contracts

  5  awarded indirectly to certified minority business enterprises

  6  as subcontractors by each state agency.

  7         d.  The total dollar amount and percentage of contracts

  8  awarded to certified minority business enterprises, whether

  9  directly or indirectly, as subcontractors.

10         e.  A statement and assessment of good faith efforts

11  taken by each state agency.

12         f.  A status report of agency compliance with

13  subsection (6), as determined by the Small Minority Business

14  and Economic Development Enterprise Office.

15         (9)(5)(a)  Each agency shall, at the time the

16  specifications or designs are developed or contract sizing is

17  determined for any proposed procurement costing in excess of

18  CATEGORY FOUR, as defined in s. 287.017, forward a notice to

19  the Small Minority Business and Economic Development Advocacy

20  and Assistance Office of the proposed procurement and any

21  determination on the designs of specifications of the proposed

22  procurement that impose requirements on prospective vendors,

23  no later than 30 days prior to the issuance of a solicitation,

24  except that this provision shall not apply to emergency

25  acquisitions. The 30-day notice period shall not toll the time

26  for any other procedural requirements.

27         (b)  If the Small Minority Business and Economic

28  Development Advocacy and Assistance Office determines that the

29  proposed procurement will not likely allow opportunities for

30  minority business enterprises, the office may, within 20 days

31  after it receives the information specified in paragraph (a),

                                  29

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  propose the implementation of minority business enterprise

  2  utilization provisions or submit alternative procurement

  3  methods that would significantly increase minority business

  4  enterprise contracting opportunities.

  5         (c)  Whenever the agency and the Small Minority

  6  Business and Economic Development Advocacy and Assistance

  7  Office disagree, the matter shall be submitted for

  8  determination to the head of the agency or the senior-level

  9  official designated pursuant to this section as liaison for

10  minority business enterprise issues.

11         (d)  Should the proposed procurement proceed to

12  competitive bidding, the office is hereby granted standing to

13  protest, pursuant to this section, in a timely manner, any

14  contract award in competitive bidding for contractual services

15  and construction contracts that fail to include minority

16  business enterprise participation, if any responding bidder

17  has demonstrated the ability to achieve any level of

18  participation, or, any contract award for commodities where, a

19  reasonable and economical opportunity to reserve a contract,

20  statewide or district level, for minority participation was

21  not executed or, an agency failed to adopt an applicable

22  preference for minority participation. The bond requirement

23  shall be waived for the office purposes of this subsection.

24         (e)  An agency may presume that a bidder offering no

25  minority participation has not made a good faith effort when

26  other bidders offer minority participation of firms listed as

27  relevant to the agency's purchasing needs in the pertinent

28  locality or statewide to complete the project.

29         (f)  Paragraph (a) will not apply when the Small

30  Minority Business and Economic Development Advocacy and

31  Assistance Office determines that an agency has established a

                                  30

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  work plan to allow advance consultation and planning with

  2  minority business enterprises and where such plan clearly

  3  demonstrates:

  4         1.  A high level of advance planning by the agency with

  5  minority business enterprises.

  6         2.  A high level of accessibility, knowledge, and

  7  experience by minority business enterprises in the agency's

  8  contract decisionmaking process.

  9         3.  A high quality of agency monitoring and enforcement

10  of internal implementation of minority business utilization

11  provisions.

12         4.  A high quality of agency monitoring and enforcement

13  of contractor utilization of minority business enterprises,

14  especially tracking subcontractor data, and ensuring the

15  integrity of subcontractor reporting.

16         5.  A high quality of agency outreach, agency

17  networking of major vendors with minority vendors, and

18  innovation in techniques to improve utilization of minority

19  business enterprises.

20         6.  Substantial commitment, sensitivity, and proactive

21  attitude by the agency head and among the agency minority

22  business staff.

23         (6)  Each state agency shall coordinate its minority

24  business enterprise procurement activities with the Small

25  Minority Business and Economic Development Advocacy and

26  Assistance Office. At a minimum, each agency shall:

27         (a)  Adopt a minority business enterprise utilization

28  plan for review and approval by the Small Minority Business

29  and Economic Development Advocacy and Assistance Office which

30  should require meaningful and useful methods to attain the

31  legislative intent in assisting minority business enterprises.

                                  31

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1         (b)  Designate a senior-level employee in the agency as

  2  a minority enterprise assistance officer, responsible for

  3  overseeing the agency's minority business utilization

  4  activities, and who is not also charged with purchasing

  5  responsibility. A senior-level agency employee and agency

  6  purchasing officials shall be accountable to the agency head

  7  for the agency's minority business utilization performance.

  8  The Small Minority Business and Economic Development Advocacy

  9  and Assistance Office shall advise each agency on compliance

10  performance.

11         (c)  If an agency deviates significantly from its

12  utilization plan in 2 consecutive or 3 out of 5 total fiscal

13  years, the Small Minority Business and Economic Development

14  Advocacy and Assistance Office may review any and all

15  solicitations and contract awards of the agency as deemed

16  necessary until such time as the agency meets its utilization

17  plan.

18         Section 9.  Section 287.09452, Florida Statutes, is

19  created to read:

20         287.09452  Small and Minority Business Management and

21  Technical Assistance Program.--

22         (1)  It is the policy of the state to meaningfully

23  assist small business enterprises and certified minority

24  business enterprises by developing skills through a program of

25  construction and business-management training, as well as by

26  providing contracting opportunities, partnering for

27  mentor-proteges, joint ventures, and financial assistance in

28  the form of bond guarantees to primarily remedy the effects of

29  past economic disparity and historical discrimination.

30         (2)  Participation in the program is limited to those

31  businesses that are certified by the Small Business and

                                  32

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  Economic Development Office as a minority business enterprise

  2  or small business enterprise. The programs are to consist of

  3  classroom instruction and on-the-job instruction. To the

  4  extent feasible, the registration fee may be set to cover the

  5  cost of instruction and overhead. No salary may be paid to any

  6  participant.

  7         (a)  This program may be conducted by contract or

  8  otherwise.

  9         (b)  Classroom instruction shall consist of, but is not

10  limited to, project planning methods for identifying

11  personnel, equipment, and financial resource needs;

12  bookkeeping; marketing; bidding and bonding requirements;

13  state and federal tax requirements; and strategies for

14  obtaining loans, bonding, and joint venture and mentoring

15  agreements and alliances.

16         (c)  On-the-job instruction shall consist of, but is

17  not limited to, setting up the job site, cash flow method,

18  accounting, project scheduling, quantity takeoffs, estimating,

19  reading plans and specifications, procedures concerning

20  billing and payments, quality assessment and control methods,

21  and bid and proposal preparation methods.

22         (d)  The Small Business and Economic Development Office

23  shall develop, under contract with the State University

24  System, the community college system, a school district on

25  behalf of its vocational-technical center, or a private

26  consulting firm, a curriculum for instruction in the courses

27  that will lead to a certification of proficiency in business

28  management for certified minority businesses and small

29  businesses.

30         (e)  The Small Business and Economic Development Office

31  may expend funds on a bond guarantee program for certified

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    Florida Senate - 1999                                  SB 1684
    36-649B-99                                              See HB




  1  minority business enterprises and small business enterprises

  2  that have demonstrated satisfactory project performance as

  3  prescribed by the guidelines. The state will guarantee up to

  4  90 percent of any bond amount that is $250,000 or less and 80

  5  percent of any bond amount that is greater than $250,000, if

  6  the bond is provided by an approved surety.

  7         (3)  The Small Business and Economic Development Office

  8  may accept financial contributions into the Small and Minority

  9  Business Trust Fund, if created by law, and enter into

10  memorandums of understanding with local governmental entities

11  and political subdivisions within the state, for the purpose

12  of allowing minority business enterprises and small business

13  enterprises that are certified with these entities to

14  participate in the construction and business management

15  training, financial assistance, and bonding assistance

16  program, as provided for in this section.

17         (4)  Annually, the Small Business and Economic

18  Development Office shall report the progress of this program

19  to the Commission on Small Business and Economic Development.

20  The report must include, as a minimum, the number of users of

21  the bond guarantee plan, along with the number of defaults and

22  dollar loss to the state; the number of students participating

23  in the management and technical assistance program, listed by

24  location; the number of program participants, categorized by

25  ethnicity; the number of program participants that received

26  state contracts; and the cost of the program, categorized by

27  cost of administration, the cost of instruction on-the-job and

28  in classrooms, and the cost of supplies.

29         Section 10.  Section 287.0946, Florida Statutes, is

30  created to read:

31

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  1         287.0946  Small business and minority business

  2  enterprise linked-deposit program.--

  3         (1)  The Commission on Small Business and Economic

  4  Development may create a small and minority business

  5  enterprise linked-deposit program to encourage financial

  6  institutions to increase the volume of loans made to small

  7  business enterprises and minority business enterprises to

  8  encourage the development of small and minority businesses.

  9         (2)  As used in this section, the term:

10         (a)  "Commission" means the Commission on Small

11  Business and Economic Development.

12         (b)  "Eligible borrower" means a minority business

13  enterprise that is certified by the statewide reciprocal

14  certification process or a small business enterprise certified

15  by the Small Business and Economic Development Office under

16  ss. 287.0942 and 287.088.

17         (c)  "Treasurer" means the Insurance Commissioner and

18  Treasurer.

19         (3)  Notwithstanding the provisions of s. 18.10, the

20  Treasurer shall designate, for the duration of the small and

21  minority business enterprise linked-deposit program, $15

22  million of the state's short-term treasury deposits for

23  deposit in participating financial institutions, except that

24  the Treasurer may not deposit more than $2 million in any one

25  financial institution participating in the small and minority

26  business linked-deposit program.

27         (4)  Participating financial institutions must be

28  qualified public depositories under chapter 280 and must be

29  selected via the bid process employed by the Treasurer in the

30  competitive selection program for certificates of deposit. A

31  bid less than 200 basis points below the prevailing rate for

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  1  United States Treasury securities with a maturity matching the

  2  maturity of the deposit may not be accepted. At any one time,

  3  not more than $15 million dollars may be placed in the small

  4  and minority business enterprise linked-deposit program under

  5  this section.

  6         (5)  Participating financial institutions must provide

  7  a 100 percent match of any state treasury funds that are

  8  deposited within the financial institution as a result of

  9  participating in the small and minority business enterprise

10  linked-deposit program. The participating financial

11  institution's share of matching funds shall be used to provide

12  loans to eligible borrowers for working capital, contracts,

13  purchases of supplies or equipment, and the lease of the

14  capital assets, including land, buildings or equipment. The

15  maximum amount of a loan provided under the minority business

16  linked-deposit program is $250,000.

17         (6)  At the recommendation of the Small Business and

18  Economic Development Office, the commission shall order the

19  removal and competitive rebidding of all program deposits at a

20  participating financial institution if a review of the

21  participating financial institution's record under the program

22  demonstrates no improvements relative to the financial

23  institution's preparticipation levels of lending to small and

24  minority business enterprises.

25         (7)  The commission shall order the removal and

26  competitive rebidding of all program deposits at a

27  participating institution, if the participating financial

28  institution ceases to be a qualified public depository under

29  chapter 280.

30         (8)  The Small Business and Economic Development

31  Office, with assistance from the Department of Banking and

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  1  Finance, shall compile funding data and provide an annual

  2  report to the commission, on March 1 of each year, which

  3  contains:

  4         (a)  The name of the participating financial

  5  institutions and the number and amount of loans made to small

  6  and minority businesses under the small and minority business

  7  enterprise linked-deposit program during the previous calendar

  8  year.

  9         (b)  The average interest rate for small and minority

10  business loans made by each participating financial

11  institution under the program during the previous calendar

12  year.

13         (c)  The number of completed small and minority

14  business loan applications that were denied or disapproved

15  during the previous calendar year by each financial

16  institution participating under the program.

17         (d)  Recommendations for continuation, expansion,

18  improvement, or expiration of the minority business

19  linked-deposit program in its annual report to the

20  Legislature.

21         (9)  This section expires June 30, 2006, and on that

22  date the designated short-term treasury deposits shall be

23  returned to the Treasurer.

24         Section 11.  Subsections (6) and (7) of section

25  290.0075, Florida Statutes, are amended to read:

26         290.0075  Enterprise zone linked deposit program.--

27         (6)  The Department of Banking and Finance shall

28  provide an annual report to the Governor, the Speaker of the

29  House of Representatives, the President of the Senate, and the

30  Office of Tourism, Trade, and Economic Development prior to

31  March February 1 of each year which contains:

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    Florida Senate - 1999                                  SB 1684
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  1         (a)  The number and amount of loans made to small

  2  businesses under this program during the previous calendar

  3  year.

  4         (b)  The average interest rate for small business loans

  5  made by each selected financial institution under this program

  6  during the previous calendar year.

  7         (c)  The number of completed small business loan

  8  applications that were denied or disapproved during the

  9  previous calendar year by each selected financial institution

10  under this program.

11         (d)  Recommendations concerning the continuation,

12  expansion, improvement, or termination of this program.

13         (7)  This section expires July 1, 2006 shall stand

14  repealed on June 30, 2000, and on that date upon such repeal,

15  the designated short-term treasury deposits shall be returned

16  to the Treasurer.

17         Section 12.  Subsection (2) of section 17.11, Florida

18  Statutes, is amended to read:

19         17.11  To report disbursements made.--

20         (2)  The Comptroller shall also cause to have reported

21  from the state automated management accounting subsystem no

22  less than quarterly the disbursements which agencies made to

23  small businesses, as defined in the Florida Small and Minority

24  Business Assistance Act of 1985; to certified minority

25  business enterprises in the aggregate; and to certified

26  minority business enterprises broken down into categories of

27  minority persons, as well as gender and nationality subgroups.

28  This information shall be made available to the agencies, the

29  Small Minority Business and Economic Development Advocacy and

30  Assistance Office, the Governor, the President of the Senate,

31  and the Speaker of the House of Representatives. Each agency

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    36-649B-99                                              See HB




  1  shall be responsible for the accuracy of information entered

  2  into the state automated management accounting subsystem for

  3  use in this reporting.

  4         Section 13.  Subsections (1) and (2) of section

  5  255.102, Florida Statutes, 1998 Supplement, are amended to

  6  read:

  7         255.102  Contractor utilization of minority business

  8  enterprises.--

  9         (1)  Agencies shall consider the use of price

10  preferences, weighted preference formulas, or other

11  preferences for construction contracts, as determined

12  appropriate by the Small Minority Business and Economic

13  Development Advocacy and Assistance Office in collaboration

14  with the Department of Management Services to increase

15  minority participation.

16         (2)  The Small Minority Business and Economic

17  Development Advocacy and Assistance Office, in collaboration

18  with the Department of Management Services and the State

19  University System, shall adopt rules to determine what is a

20  "good faith effort" for purposes of contractor compliance with

21  minority participation goals established for competitively

22  awarded building and construction projects. Pro forma efforts

23  shall not be considered good faith. Factors which shall be

24  considered by the state agency in determining whether a

25  contractor has made good faith efforts shall include, but not

26  be limited to:

27         (a)  Whether the contractor attended any

28  presolicitation or prebid meetings that were scheduled by the

29  agency to inform minority business enterprises of contracting

30  and subcontracting opportunities.

31

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  1         (b)  Whether the contractor advertised in general

  2  circulation, trade association, or minority-focus media

  3  concerning the subcontracting opportunities.

  4         (c)  Whether the contractor provided written notice to

  5  all relevant subcontractors listed on the minority vendor list

  6  for that locality and statewide as provided by the agency as

  7  of the date of issuance of the invitation to bid, that their

  8  interest in the contract was being solicited in sufficient

  9  time to allow the minority business enterprises to participate

10  effectively.

11         (d)  Whether the contractor followed up initial

12  solicitations of interest by contacting minority business

13  enterprises, the Small Minority Business and Economic

14  Development Advocacy and Assistance Office, or minority

15  persons who responded and provided detailed information about

16  prebid meetings, access to plans, specifications, contractor's

17  project manager, subcontractor bonding, if any, payment

18  schedule, bid addenda, and other assistance provided by the

19  contractor to enhance minority business enterprise

20  participation.

21         (e)  Whether the contractor selected portions of the

22  work to be performed by minority business enterprises in order

23  to increase the likelihood of meeting the minority business

24  enterprise procurement goals, including, where appropriate,

25  breaking down contracts into economically feasible units to

26  facilitate minority business enterprise participation under

27  reasonable and economical conditions of performance.

28         (f)  Whether the contractor provided the Small Minority

29  Business and Economic Development Advocacy and Assistance

30  Office as well as interested minority business enterprises or

31  minority persons with adequate information about the plans,

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    36-649B-99                                              See HB




  1  specifications, and requirements of the contract or the

  2  availability of jobs at a time no later than when such

  3  information was provided to other subcontractors.

  4         (g)  Whether the contractor negotiated in good faith

  5  with interested minority business enterprises or minority

  6  persons, not rejecting minority business enterprises or

  7  minority persons as unqualified without sound reasons based on

  8  a thorough investigation of their capabilities or imposing

  9  implausible conditions of performance on the contract.

10         (h)  Whether the contractor diligently seeks to replace

11  a minority business enterprise subcontractor that is unable to

12  perform successfully with another minority business

13  enterprise.

14         (i)  Whether the contractor effectively used the

15  services of available minority community organizations;

16  minority contractors' groups; local, state, and federal

17  minority business assistance offices; and other organizations

18  that provide assistance in the recruitment and placement of

19  minority business enterprises or minority persons.

20         Section 14.  Paragraphs (a) and (c) of subsection (2)

21  and paragraphs (b) and (c) of subsection (4) of section

22  287.042, Florida Statutes, 1998 Supplement, are amended to

23  read:

24         287.042  Powers, duties, and functions.--The department

25  shall have the following powers, duties, and functions:

26         (2)(a)  To plan and coordinate purchases in volume and

27  to negotiate and execute purchasing agreements and contracts

28  for commodities and contractual services under which state

29  agencies shall make purchases pursuant to s. 287.056, and

30  under which a federal, county, municipality, institutions

31  qualified pursuant to s. 240.605, private nonprofit community

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  1  transportation coordinator designated pursuant to chapter 427,

  2  while conducting business related solely to the Commission for

  3  the Transportation Disadvantaged, or other local public agency

  4  may make purchases. The department may restrict purchases from

  5  some term contracts to state agencies only for those term

  6  contracts where the inclusion of other governmental entities

  7  will have an adverse effect on competition or to those federal

  8  facilities located in this state. In such planning or

  9  purchasing the Small Minority Business and Economic

10  Development Advocacy and Assistance Office may monitor to

11  ensure that opportunities are afforded for contracting with

12  minority business enterprises. The department, for state term

13  contracts, and all agencies, for multiyear contractual

14  services or term contracts, shall explore reasonable and

15  economical means to utilize certified minority business

16  enterprises. Purchases by any county, municipality, private

17  nonprofit community transportation coordinator designated

18  pursuant to chapter 427, while conducting business related

19  solely to the Commission for the Transportation Disadvantaged,

20  or other local public agency under the provisions in the state

21  purchasing contracts, and purchases, from the corporation

22  operating the correctional work programs, of products or

23  services that are subject to paragraph (1)(f), are exempt from

24  the competitive sealed bid requirements otherwise applying to

25  their purchases.

26         (c)  Any person who files an action protesting a

27  decision or intended decision pertaining to contracts

28  administered by the department or a state agency pursuant to

29  s. 120.57(3)(b) shall post with the department or the state

30  agency at the time of filing the formal written protest a bond

31  payable to the department or state agency in an amount equal

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  1  to 1 percent of the department's or the state agency's

  2  estimate of the total volume of the contract or $5,000,

  3  whichever is less, which bond shall be conditioned upon the

  4  payment of all costs which may be adjudged against him or her

  5  in the administrative hearing in which the action is brought

  6  and in any subsequent appellate court proceeding. For protests

  7  of decisions or intended decisions of the department

  8  pertaining to agencies' requests for approval of exceptional

  9  purchases, the bond shall be in an amount equal to 1 percent

10  of the requesting agency's estimate of the contract amount for

11  the exceptional purchase requested or $5,000, whichever is

12  less. In lieu of a bond, the department or state agency may,

13  in either case, accept a cashier's check or money order in the

14  amount of the bond. If, after completion of the administrative

15  hearing process and any appellate court proceedings, the

16  agency prevails, it shall recover all costs and charges which

17  shall be included in the final order or judgment, excluding

18  attorney's fees. This section shall not apply to protests

19  filed by the Small Minority Business and Economic Development

20  Advocacy and Assistance Office. Upon payment of such costs and

21  charges by the person protesting the award, the bond,

22  cashier's check, or money order shall be returned to him or

23  her. If the person protesting the award prevails, he or she

24  shall recover from the agency all costs and charges which

25  shall be included in the final order of judgment, excluding

26  attorney's fees.

27         (4)  To establish a system of coordinated, uniform

28  procurement policies, procedures, and practices to be used by

29  agencies in acquiring commodities and contractual services,

30  which shall include, but not be limited to:

31

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  1         (b)  Development of procedures for the releasing of

  2  requests for proposals and invitations to bid, which

  3  procedures shall include, but not be limited to, publication

  4  in the Florida Administrative Weekly or on the Florida

  5  Communities Network of notice for requests for proposals at

  6  least 28 days before the date set for submittal of proposals

  7  and publication of notice for invitations to bid at least 10

  8  calendar days before the date set for submission of bids. An

  9  agency may waive the requirement for notice in the Florida

10  Administrative Weekly or on the Florida Communities Network.

11  Notice of the request for proposals shall be mailed to

12  prospective offerors at least 28 calendar days prior to the

13  date for submittal of proposals. Notice of the invitation to

14  bid shall be mailed to prospective bidders at least 10

15  calendar days prior to the date set for submittal of bids. The

16  Small Minority Business and Economic Development Advocacy and

17  Assistance Office may consult with agencies regarding the

18  development of bid distribution procedures to ensure that

19  maximum distribution is afforded to certified minority

20  business enterprises as defined in s. 288.703.

21         (c)  Development of procedures for the receipt and

22  opening of bids or proposals by an agency. Such procedures

23  shall provide the Small Minority Business and Economic

24  Development Advocacy and Assistance Office an opportunity to

25  monitor and ensure that the contract award is consistent with

26  the original request for proposal or invitation to bid, in

27  accordance with s. 287.0945(6), and subject to the review of

28  bid responses within standard timelines.

29         Section 15.  Subsection (5) and paragraph (a) of

30  subsection (6) of section 287.057, Florida Statutes, 1998

31  Supplement, are amended to read:

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  1         287.057  Procurement of commodities or contractual

  2  services.--

  3         (5)  Upon issuance of any invitation to bid or request

  4  for proposals, an agency shall forward to the department one

  5  copy of each invitation to bid or request for proposals for

  6  all commodity and contractual services purchases in excess of

  7  the threshold amount provided in s. 287.017 for CATEGORY TWO.

  8  An agency shall also, upon request, furnish a copy of all

  9  competitive sealed bid or competitive sealed proposal

10  tabulations. The Small Minority Business and Economic

11  Development Advocacy and Assistance Office may also request

12  from the agencies any information submitted to the department

13  pursuant to this subsection.

14         (6)(a)  In order to strive to meet the minority

15  business enterprise procurement goals set forth in s.

16  287.0945, an agency may reserve any contract for competitive

17  sealed bidding only among certified minority business

18  enterprises. Agencies shall review all their contracts each

19  fiscal year and shall determine which contracts may be

20  reserved for bidding only among certified minority business

21  enterprises. This reservation may only be used when it is

22  determined, by reasonable and objective means, before the

23  invitation to bid that there are capable, qualified certified

24  minority business enterprises available to bid on a contract

25  to provide for effective competition. The Small Minority

26  Business and Economic Development Advocacy and Assistance

27  Office shall consult with any agency in reaching such

28  determination when deemed appropriate.

29         Section 16.  Subsections (1), (5), and (6) of section

30  287.0947, Florida Statutes, are amended to read:

31

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  1         287.0947  Florida Council on Small and Minority

  2  Business Development; creation; membership; duties.--

  3         (1)  On or after October 1, 1996, the Commission on

  4  Small Business and Economic Development secretary of the

  5  Department of Labor and Employment Security may create the

  6  Florida Advisory Council on Small and Minority Business

  7  Development with the purpose of advising and assisting the

  8  executive administrator secretary in carrying out the

  9  executive administrator's secretary's duties with respect to

10  minority businesses and economic and business development. It

11  is the intent of the Legislature that the membership of such

12  council include practitioners, laypersons, financiers, and

13  others with business development experience who can provide

14  invaluable insight and expertise for this state in the

15  diversification of its markets and networking of business

16  opportunities. The council shall initially consist of 19

17  persons, each of whom is or has been actively engaged in small

18  and minority business development, either in private industry,

19  in governmental service, or as a scholar of recognized

20  achievement in the study of such matters. Initially, the

21  council shall consist of members representing all regions of

22  the state and shall include at least one member from each

23  group identified within the definition of "minority person" in

24  s. 288.703(3), considering also gender and nationality

25  subgroups, and shall consist of the following:

26         (a)  Four members consisting of representatives of

27  local and federal small and minority business assistance

28  programs or community development programs.

29         (b)  Eight members composed of representatives of the

30  minority private business sector, including certified minority

31  business enterprises and minority supplier development

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  1  councils, among whom at least two shall be women and at least

  2  four shall be minority persons.

  3         (c)  Two representatives of local government, one of

  4  whom shall be a representative of a large local government,

  5  and one of whom shall be a representative of a small local

  6  government.

  7         (d)  Two representatives from the banking and insurance

  8  industry.

  9         (e)  Two members from the private business sector,

10  representing the construction and commodities industries.

11         (f)  The chairperson of the Florida Black Business

12  Investment Board or the chairperson's designee.

13         (g)  The chairperson of Enterprise Florida, Inc., or

14  the chairperson's designee.

15         (h)  The Secretary of the Department of Community

16  Affairs or the secretary's designee.

17

18  A candidate for appointment may be considered if eligible to

19  be certified as an owner of a minority business enterprise, or

20  if otherwise qualified under the criteria above. Vacancies may

21  be filled by appointment of the executive administrator

22  secretary, in the manner of the original appointment.

23         (5)  The powers and duties of the council include, but

24  are not limited to: researching and reviewing the role of

25  small and minority businesses in the state's economy;

26  reviewing issues and emerging topics relating to small and

27  minority business economic development; studying the ability

28  of financial markets and institutions to meet small business

29  credit needs and determining the impact of government demands

30  on credit for small businesses; assessing the implementation

31  of s. 187.201(22), requiring a state economic development

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  1  comprehensive plan, as it relates to small and minority

  2  businesses; assessing the reasonableness and effectiveness of

  3  efforts by any state agency or by all state agencies

  4  collectively to assist minority business enterprises; and

  5  advising the Governor, the executive administrator secretary,

  6  and the Legislature on matters relating to small and minority

  7  business development which are of importance to the

  8  international strategic planning and activities of this state.

  9         (6)  On or before January 1 of each year, the council

10  shall present an annual report to the executive administrator

11  secretary that sets forth in appropriate detail the business

12  transacted by the council during the year and any

13  recommendations to the executive administrator secretary,

14  including those to improve business opportunities for small

15  and minority business enterprises.

16         Section 17.  Subsections (5), (6), and (8) of section

17  288.703, Florida Statutes, 1998 Supplement, are amended to

18  read:

19         288.703  Definitions.--As used in this act, the

20  following words and terms shall have the following meanings

21  unless the content shall indicate another meaning or intent:

22         (5)  "Commission" "Department" means the Commission on

23  Small Business and Economic Development Department of Labor

24  and Employment Security.

25         (6)  "Ombudsman" means an office or individual whose

26  responsibilities include coordinating with the Small Minority

27  Business and Economic Development Advocacy and Assistance

28  Office for the interests of and providing assistance to small

29  and minority business enterprises in dealing with governmental

30  agencies and in developing proposals for changes in state

31  agency rules.

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  1         (8)  "Executive administrator" "Secretary" means the

  2  executive administrator of the Commission on Small Business

  3  and Economic Development secretary of the Department of Labor

  4  and Employment Security.

  5         Section 18.  This act shall take effect July 1, 1999.

  6

  7            *****************************************

  8                       LEGISLATIVE SUMMARY

  9    In sections relating to property and services
      procurement:
10         (1)  Requires the Board of Regents and the university
    presidents to comply with the minority business enterprise
11  program.
           (2)  Provides for price preferences in historically
12  underutilized business zones.
           (3)  Creates a small business enterprise program with
13  incentives, goals, and size standards.
           (4)  Prohibits government employees from discriminating
14  in contracting and procurement activities.
           (5)  Revises certification criteria.
15         (6)  Provides for flexibility in statewide reciprocal
    certification agreements.
16         (7)  Creates the Commission on Small Business and
    Economic Development.
17         (8)  Renames the Minority Business Advocacy and
    Assistance Office as the Small Business and Economic
18  Development Office.
           (9)  Revises requirements for expenditure percentages
19  for specified minorities.
           (10)  Provides for the appointment of a Minority
20  Business Ombudsman.
           (11)  Creates a mentor and protege program.
21         (12)  Establishes a management and technical assistance
    program for small and minority business enterprises.
22         (13)  Authorizes a linked-deposit program for minority
    and small business enterprises.
23         (14)  Extends the expiration date of the
    enterprise-zone linked-deposit program.
24

25

26

27

28

29

30

31

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