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SB-1178 California Disabled Veteran Business Enterprise Program.(2017-2018)

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Date Published: 04/02/2018 02:00 PM
SB1178:v98#DOCUMENT

Amended  IN  Senate  April 02, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1178


Introduced by Senator Newman

February 14, 2018


An act to amend Section 999 of, and to add Section 999.4 to, the Military and Veterans Code, relating to veterans.


LEGISLATIVE COUNSEL'S DIGEST


SB 1178, as amended, Newman. California Disabled Veteran Business Enterprise Program.
Under existing law, the administering agency for the California Disabled Veteran Business Enterprise Program is the Department of General Services, except in the case of contracts for professional bond services. Existing law requires the Director of General Services to adopt written policies and guidelines establishing a uniform process for state contracting to provide a disabled veteran business enterprise (DVBE) participation incentive to bidders, which all state agencies are required to use when awarding contracts.
This bill would prohibit a business that is not a small business or microbusiness from being a DVBE if it has 10 or more participation years, as defined, in the program. The bill would require the Department of General Services to promulgate regulations for the implementation of this requirement, including regulations that ensure that a successor business bidding with the same awarding department counts its predecessor’s participation years as its own if it is owned by one or more of the same disabled veterans or is owned by one or more of the same non-disabled veterans people or their immediate family members.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 999 of the Military and Veterans Code is amended to read:

999.
 (a) This article shall be known as, and may be cited as, the California Disabled Veteran Business Enterprise Program. The California Disabled Veteran Business Enterprise Program is established to address the special needs of disabled veterans seeking rehabilitation and training through entrepreneurship and to recognize the sacrifices of Californians disabled during military service. It is the intent of the Legislature that every state procurement authority honor California’s disabled veterans by taking all practical actions necessary to meet or exceed the disabled veteran business enterprise participation goal of a minimum of 3 percent of total contract value.
(b) As used in this article, the following definitions apply:
(1) “Administering agency” means the Treasurer, in the case of contracts for professional bond services, and the Department of General Services’ Office of Small Business and Disabled Veteran Business Enterprise Services, in the case of contracts governed by Section 999.2.
(2) “Awarding department” means a state agency, department, governmental entity, or other officer or entity empowered by law to issue bonds or enter into contracts on behalf of the state.
(3) “Bonds” means bonds, notes, warrants, certificates of participation, and other evidences of indebtedness issued by, or on behalf of, the state.
(4) “Contract” includes any agreement or joint agreement to provide professional bond services to the State of California or an awarding department. “Contract” also includes any agreement or joint development agreement to provide labor, services, materials, supplies, or equipment in the performance of a contract, franchise, concession, or lease granted, let, or awarded for, and on behalf of, the state.
(5) (A) “Contractor” means a person or persons, regardless of race, color, creed, national origin, ancestry, sex, marital status, disability, religious or political affiliation, age, or any sole proprietorship, firm, partnership, joint venture, corporation, or combination thereof that submits a bid and enters into a contract with a representative of a state agency, department, governmental entity, or other officer empowered by law to enter into contracts on behalf of the state. “Contractor” includes a provider of professional bond services who enters into a contract with an awarding department.
(B) “Disabled veteran business enterprise contractor, subcontractor, or supplier” means a person or entity that has been certified by the administering agency pursuant to this article and that performs a commercially useful function, as defined in clause (i), in providing services or goods that contribute to the fulfillment of the contract requirements:
(i) A person or an entity is deemed to perform a “commercially useful function” if a person or entity does all of the following:
(I) Is responsible for the execution of a distinct element of the work of the contract.
(II) Carries out the obligation by actually performing, managing, or supervising the work involved.
(III) Performs work that is normal for its business services and functions.
(IV) Is responsible, with respect to products, inventories, materials, and supplies required for the contract, for negotiating price, determining quality and quantity, ordering, installing, if applicable, and making payment.
(V) Is not further subcontracting a portion of the work that is greater than that expected to be subcontracted by normal industry practices.
(ii) A contractor, subcontractor, or supplier will not be considered to perform a commercially useful function if the contractor’s, subcontractor’s, or supplier’s role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of a disabled veteran business enterprise participation.
(6) “Disabled veteran” means a veteran of the military, naval, or air service of the United States, including, but not limited to, the Philippine Commonwealth Army, the Regular Scouts, “Old Scouts,” and the Special Philippine Scouts, “New Scouts,” who has at least a 10-percent service-connected disability and who is domiciled in the state.
(7) (A) “Disabled veteran business enterprise” means a business certified by the administering agency as meeting all of the following requirements:
(i) It is a sole proprietorship at least 51 percent owned by one or more disabled veterans or, in the case of a publicly owned business, at least 51 percent of its stock is unconditionally owned by one or more disabled veterans; a subsidiary that is wholly owned by a parent corporation, but only if at least 51 percent of the voting stock of the parent corporation is unconditionally owned by one or more disabled veterans; or a joint venture in which at least 51 percent of the joint venture’s management, control, and earnings are held by one or more disabled veterans.
(ii) The management and control of the daily business operations are by one or more disabled veterans. The disabled veterans who exercise management and control are not required to be the same disabled veterans as the owners of the business.
(iii) It is a sole proprietorship, corporation, or partnership with its home office located in the United States, which is not a branch or subsidiary of a foreign corporation, foreign firm, or other foreign-based business.
(iv) The business meets one of the following requirements:
(I) The business is a small business or microbusiness.
(II) The business has fewer than 10 participation years in a contract as a disabled veteran business enterprise.
(B) Notwithstanding subparagraph (A), after the death or the certification of a permanent medical disability of a disabled veteran who is a majority owner of a business that qualified as a disabled veteran business enterprise prior to that death or certification of a permanent medical disability, that business shall be deemed to be a disabled veteran business enterprise for a period not to exceed three years after the date of that death or certification of a permanent medical disability, if the business is inherited or controlled by the spouse or child of the majority owner, or by both of those persons. A business is a disabled veteran business enterprise pursuant to this subparagraph under either of the following circumstances:
(i) For the duration of any contract entered into prior to the death or certification of permanent medical disability for the sole purpose of fulfilling the requirements of that contract.
(ii) After the date of the majority owner’s death or certification of permanent medical disability established by this subparagraph for the sole purpose of providing sufficient time to make orderly and equitable arrangements for the disposition of the business, except that the business shall not enter into any new contract as a disabled veteran business enterprise for purposes of the program if the contract would not be completed within the three-year period.
(8) “Foreign corporation,” “foreign firm,” or “foreign-based business” means a business entity that is incorporated or has its principal headquarters located outside the United States of America.
(9) “Goal” means a numerically expressed objective that awarding departments and contractors are required to make efforts to achieve.
(10) “Management and control” means effective and demonstrable management of the business entity.
(11) “Microbusiness” and “small business” have the same meaning as defined in Section 14837 of the Government Code. means a business certified as a microbusiness pursuant to Chapter 6.5 (commencing with Section 14835) of Part 5.5 of Division 3 of Title 2 of the Government Code.
(12) (A) “Participation year” means a calendar year year, on or after January 1, 2019, in which the business was not a small business or microbusiness and was fulfilling a contract for an awarding department pursuant to this article for greater than six months of that calendar year.
(B) The Department of General Services shall promulgate regulations to ensure that a successor business bidding with the same awarding department counts its predecessor’s participation years as its own if it is owned by one or more of the same disabled veterans or is owned by one or more of the same non-disabled veterans people or their immediate family members.
(13) “Small business” means a business certified as a small business pursuant to Chapter 6.5 (commencing with Section 14835) of Part 5.5 of Division 3 of Title 2 of the Government Code.

(13)

(14) “Professional bond services” include services as financial advisers, bond counsel, underwriters in negotiated transactions, underwriter’s counsel, financial printers, feasibility consultants, and other professional services related to the issuance and sale of bonds.

SEC. 2.

 Section 999.4 is added to the Military and Veterans Code, to read:

999.4.
 The Department of General Services shall promulgate regulations to:
(a) Notify in advance businesses which are not small businesses or microbusinesses which are nearing 10 participation years as a contractor, pursuant to clause (iv) of paragraph (7) of subdivision (b) of Section 999.
(b) Assist businesses which are not small businesses or microbusinesses in transitioning out of the Disabled Veteran Business Enterprise Program after they have 10 participation years in the program.
(c) Ensure that departments awarding contracts to disabled veteran business enterprises prioritize those that are microbusinesses and small businesses over those that are not microbusinesses or small businesses.