HF 3099

1st Committee Engrossment - 86th Legislature (2009 - 2010)

Posted on 03/19/2013 07:29 p.m.

1.1A bill for an act 1.2relating to transportation; modifying or adding provisions concerning 1.3disadvantaged business enterprises; governing provisions related to Department 1.4of Transportation contracting for construction work and training; establishing 1.5collaborative group related to disadvantaged business enterprise program; 1.6amending legislative reporting; making technical changes; appropriating money; 1.7amending Minnesota Statutes 2008, section 174.03, subdivision 11; proposing 1.8coding for new law in Minnesota Statutes, chapters 161; 174. 1.9BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.10    Section 1. new text begin [161.363] DISADVANTAGED BUSINESS ENTERPRISE; BIDDING new text end 1.11 new text begin AND CONTRACTING. new text end 1.12     new text begin Subdivision 1. new text end new text begin Definitions. new text end new text begin (a) For purposes of this section and section 174.188, the new text end 1.13 new text begin following terms have the meanings given them. new text end 1.14 new text begin (b) "Disadvantaged business enterprise" has the meaning given in Code of Federal new text end 1.15 new text begin Regulations, title 49, section 26.5. new text end 1.16 new text begin (c) "Certified" refers to a disadvantaged business enterprise that is currently certified new text end 1.17 new text begin according to Code of Federal Regulations, title 49, sections 26.81 to 26.91. new text end 1.18 new text begin (d) "Federally assisted contract" means a contract with a prime contractor that new text end 1.19 new text begin is covered by the disadvantaged business enterprise program under Code of Federal new text end 1.20 new text begin Regulations, title 49, part 26. new text end 1.21     new text begin Subd. 2. new text end new text begin Bid solicitation. new text end new text begin (a) The commissioner shall include in every bid new text end 1.22 new text begin solicitation for a federally assisted contract: new text end 1.23 new text begin (1) the disadvantaged business enterprise contract goal as provided in subdivision 4; new text end 1.24 new text begin (2) a notice to bidders that the proposal must identify the percentage of disadvantaged new text end 1.25 new text begin business enterprises proposed to participate in the project; and new text end 2.1 new text begin (3) notice of the sanction that will be imposed against a contractor who does not new text end 2.2 new text begin meet the disadvantaged business enterprise participation goal. new text end 2.3 new text begin (b) A bidder shall include in the submitted bid, information necessary to establish the new text end 2.4 new text begin bidder's plan to achieve the participation goal under the contract or adequate good-faith new text end 2.5 new text begin efforts to meet the goal. A plan or demonstration of adequate good-faith efforts must new text end 2.6 new text begin include documentation of: new text end 2.7 new text begin (1) publication of requests for disadvantaged business enterprise participation new text end 2.8 new text begin in the project; new text end 2.9 new text begin (2) written notice of bid solicitation provided to certified disadvantaged business new text end 2.10 new text begin enterprises, along with follow-up contacts, if appropriate; new text end 2.11 new text begin (3) items of work available to disadvantaged business enterprise firms; new text end 2.12 new text begin (4) identity of rejected disadvantaged business enterprise firms, firms selected for new text end 2.13 new text begin the work, and the reasons for the rejections and the choice; new text end 2.14 new text begin (5) efforts made to assist interested disadvantaged business enterprises in obtaining new text end 2.15 new text begin bonding, credit, or insurance; new text end 2.16 new text begin (6) efforts made to assist disadvantaged business enterprises to obtain necessary new text end 2.17 new text begin equipment, supplies, and materials; new text end 2.18 new text begin (7) names of agencies contacted to assist in contracting, recruiting, and using new text end 2.19 new text begin disadvantaged business enterprise firms; and new text end 2.20 new text begin (8) any additional information supportive of obtaining the goals or demonstrating new text end 2.21 new text begin good-faith efforts. new text end 2.22     new text begin Subd. 3. new text end new text begin Award of contract. new text end new text begin The commissioner shall reject a bid for a federally new text end 2.23 new text begin assisted contract that does not, in conformance with subdivision 2, either (1) meet the new text end 2.24 new text begin participation goal under the contract, or (2) demonstrate adequate good-faith efforts on the new text end 2.25 new text begin part of the bidder. new text end 2.26     new text begin Subd. 4. new text end new text begin Contract requirements. new text end new text begin The commissioner shall establish a disadvantaged new text end 2.27 new text begin business enterprise participation goal in each federally assisted contract. The contract new text end 2.28 new text begin must identify the goal for disadvantaged business enterprise participation. new text end 2.29     new text begin Subd. 5. new text end new text begin Disadvantaged business enterprise capacity account; appropriation. new text end 2.30 new text begin (a) A disadvantaged business enterprise capacity account is established in the special new text end 2.31 new text begin revenue fund. The account consists of funds as provided under section 174.03, subdivision new text end 2.32 new text begin 11, paragraph (a), and any other money donated, allotted, transferred, or otherwise new text end 2.33 new text begin provided to the account. new text end 2.34 new text begin (b) Money in the account is annually appropriated to the commissioner for purposes new text end 2.35 new text begin of building capacity among disadvantaged business enterprises, including but not limited new text end 2.36 new text begin to: new text end 3.1 new text begin (1) performing business development workshops as required under section 174.188, new text end 3.2 new text begin subdivision 1; new text end 3.3 new text begin (2) assisting new and startup disadvantaged business enterprises; and new text end 3.4 new text begin (3) assisting disadvantaged business enterprises in expansion and establishment as new text end 3.5 new text begin prime contractors. new text end 3.6 new text begin EFFECTIVE DATE. new text end new text begin This section is effective July 1, 2010, except that subdivisions new text end 3.7 new text begin 2 and 3 are effective for contracts awarded on or after August 1, 2011. new text end 3.8    Sec. 2. Minnesota Statutes 2008, section 174.03, subdivision 11, is amended to read: 3.9    Subd. 11. Disadvantaged business enterprise program; report. (a) The 3.10commissioner shall include in each new text begin federally assisted new text end contract that is funded at least in 3.11part by federal funds, a sanction for each contractor who does not meet the established 3.12project disadvantaged business enterprise new text begin participation new text end goal or demonstrate good faith 3.13effort to meet the goal. new text begin The commissioner shall monitor disadvantaged business enterprise new text end 3.14 new text begin compliance throughout the term of the contract in order to minimize the need for new text end 3.15 new text begin imposition of sanctions. Any funds collected from imposition of a sanction under this new text end 3.16 new text begin subdivision must be deposited in the disadvantaged business enterprise capacity account. new text end 3.17    (b) The commissioner of transportation shall report by February 1 of each 3.18odd-numbered year to the house of representatives and senate committees having 3.19jurisdiction over transportation policy and finance concerning the commissioner's 3.20disadvantaged business enterprise program. The report must, with respect to each of 3.21the two previous calendar years: 3.22    (1) state the department's annual overall goal, compared with the percentage attained; 3.23    (2) explain the methodology, applicable facts, and public participation used to 3.24establish the overall goal; 3.25    (3) describe good faith efforts to meet the goal, if the goal was not attained; 3.26    (4) describe actions to address overconcentration of disadvantaged business 3.27enterprises in certain types of work; 3.28    (5) state the number of contracts that included disadvantaged business enterprise 3.29goals, the number of contractors that met established disadvantaged business enterprise 3.30goals, and sanctions imposed for lack of good faith effort; and 3.31    (6) describe contracts with no disadvantaged business enterprise goals, and, of 3.32those, state number of contracts and amount of each contract with targeted groups under 3.33section . 3.34 new text begin EFFECTIVE DATE. new text end new text begin This section is effective July 1, 2010. new text end 4.1    Sec. 3. new text begin [174.188] DISADVANTAGED BUSINESS ENTERPRISE PROGRAM. new text end 4.2     new text begin Subdivision 1. new text end new text begin Training. new text end new text begin The commissioner shall hold business development new text end 4.3 new text begin workshops throughout the state to educate and build capacity for disadvantaged business new text end 4.4 new text begin enterprise owners and managers on the pursuit of Department of Transportation projects. new text end 4.5 new text begin The commissioner may not charge a fee for participation in the workshops. new text end 4.6     new text begin Subd. 2. new text end new text begin Legislative report. new text end new text begin Annually by February 1, the commissioner shall new text end 4.7 new text begin submit a report electronically to the legislative committees having jurisdiction over new text end 4.8 new text begin transportation policy and finance concerning the commissioner's disadvantaged business new text end 4.9 new text begin enterprise program. The report must, with respect to the previous calendar year: new text end 4.10 new text begin (1) identify disadvantaged business enterprise participation rates for transportation new text end 4.11 new text begin contracts, which must include: new text end 4.12 new text begin (i) the overall goal compared with the actual percentage attained; new text end 4.13 new text begin (ii) group-specific attainment percentages, for each group identified in clause (2) new text end 4.14 new text begin of the definition of "socially and economically disadvantaged individual" under Code of new text end 4.15 new text begin Federal Regulations, title 49, section 26.5; new text end 4.16 new text begin (iii) the percentage of federally assisted contracts in which the contractor met the new text end 4.17 new text begin participation goal; and new text end 4.18 new text begin (iv) the dollar amounts used in the calculations of goal and attainment percentages; new text end 4.19 new text begin (2) explain the methodology, applicable facts, and public participation used to new text end 4.20 new text begin establish the overall participation goal; new text end 4.21 new text begin (3) describe the department's primary strategies and techniques in attaining the new text end 4.22 new text begin participation goal, or the department's efforts to attain the participation goal if the goal new text end 4.23 new text begin was not attained; new text end 4.24 new text begin (4) describe the department's actions to address underconcentration and new text end 4.25 new text begin overconcentration of disadvantaged business enterprises in certain types of work; new text end 4.26 new text begin (5) describe the department's use of group-specific goals, or the department's new text end 4.27 new text begin attempts to gain federal approval to impose group-specific goals; new text end 4.28 new text begin (6) detail the department's efforts to increase the number of bids received from new text end 4.29 new text begin certified disadvantaged business enterprises; new text end 4.30 new text begin (7) describe the department's efforts to monitor contracts and work with prime new text end 4.31 new text begin contractors to improve the rate of compliance with disadvantaged business enterprise new text end 4.32 new text begin contract goals; new text end 4.33 new text begin (8) describe the sanctions included in contracts for failure to meet disadvantaged new text end 4.34 new text begin business enterprise goals or to demonstrate good-faith efforts, and identify contractors new text end 4.35 new text begin who were sanctioned; and new text end 5.1 new text begin (9) describe the department's efforts to increase capacity among disadvantaged new text end 5.2 new text begin business enterprises and to increase the overall goal for the next year, including use of new text end 5.3 new text begin funds from the disadvantaged business enterprise capacity account. new text end 5.4 new text begin EFFECTIVE DATE. new text end new text begin This section is effective the day following final enactment. new text end 5.5    Sec. 4. new text begin DISADVANTAGED BUSINESS ENTERPRISE COLLABORATIVE. new text end 5.6     new text begin Subdivision 1. new text end new text begin Definitions. new text end new text begin For purposes of this section, the following terms have new text end 5.7 new text begin the meanings given: new text end 5.8 new text begin (1) "executive committee" means the executive committee of the collaborative new text end 5.9 new text begin established in this section; new text end 5.10 new text begin (2) "commissioner" means the commissioner of transportation; and new text end 5.11 new text begin (3) "the collaborative" means the DBE and Workforce Development Group new text end 5.12 new text begin established by the commissioner of transportation and transportation stakeholders, as new text end 5.13 new text begin constituted by the commissioner as of January 1, 2010. new text end 5.14     new text begin Subd. 2. new text end new text begin Purpose. new text end new text begin The collaborative shall review and evaluate the commissioner's new text end 5.15 new text begin implementation of the disadvantaged business enterprise program under Code of Federal new text end 5.16 new text begin Regulations, title 49, and the executive committee shall recommend changes, including new text end 5.17 new text begin legislation, to improve the effectiveness of the program. new text end 5.18     new text begin Subd. 3. new text end new text begin Executive committee; membership. new text end new text begin (a) An executive committee of the new text end 5.19 new text begin collaborative is established. The executive committee consists of the following members: new text end 5.20 new text begin (1) the commissioner of transportation, or a designee, who serves as a nonvoting new text end 5.21 new text begin member; new text end 5.22 new text begin (2) two representatives from among prime contractors; new text end 5.23 new text begin (3) two representatives from among women-owned disadvantaged business new text end 5.24 new text begin enterprises; new text end 5.25 new text begin (4) two representatives from among minority group-owned disadvantaged business new text end 5.26 new text begin enterprises; new text end 5.27 new text begin (5) two representatives from among those in the collaborative with an interest new text end 5.28 new text begin primarily concerning employee training and workforce development; and new text end 5.29 new text begin (6) one representative from among community stakeholders who are not part of a new text end 5.30 new text begin group specified in clauses (2) through (5). new text end 5.31 new text begin (b) The collaborative shall select the representatives to the executive committee new text end 5.32 new text begin by August 1, 2010. Each of the representatives from among the groups specified new text end 5.33 new text begin under clauses (2) through (6) must be selected only from among those members of the new text end 5.34 new text begin collaborative who are eligible to serve as a representative for that group. Each member of new text end 5.35 new text begin the collaborative may select or vote for representatives only for one of the groups specified new text end 6.1 new text begin under clauses (2) through (6). The commissioner shall establish a decision-making new text end 6.2 new text begin procedure for selection of the representatives under this paragraph. new text end 6.3 new text begin (c) The commissioner of transportation or the commissioner's designee shall convene new text end 6.4 new text begin the first meeting of the executive committee by September 1, 2010. At the initial meeting new text end 6.5 new text begin the council must elect a chair or cochairs from its membership or designate a facilitator. new text end 6.6 new text begin The commissioner or commissioner's designee may not serve as the chair or as a cochair. new text end 6.7     new text begin Subd. 4. new text end new text begin Executive committee; duties. new text end new text begin (a) The executive committee shall formally new text end 6.8 new text begin adopt and submit recommendations as provided in subdivision 7. new text end 6.9 new text begin (b) The executive committee shall establish policies and procedures for the new text end 6.10 new text begin collaborative, and shall establish (1) quorum requirements and (2) a formal majority-based new text end 6.11 new text begin decision-making procedure for the committee that does not require full consensus. new text end 6.12 new text begin (c) The executive committee shall establish a publicly accessible meeting schedule new text end 6.13 new text begin and convene monthly meetings of the collaborative. new text end 6.14     new text begin Subd. 5. new text end new text begin Administrative provisions. new text end new text begin (a) The commissioner may obtain or retain the new text end 6.15 new text begin services of a facilitator for purposes of the collaborative. new text end 6.16 new text begin (b) The commissioner shall provide staff and administrative support for the new text end 6.17 new text begin collaborative. new text end 6.18 new text begin (c) The representatives of the Department of Transportation with responsibility for new text end 6.19 new text begin civil rights and contracting shall participate in collaborative meetings and deliberations, new text end 6.20 new text begin but no employee of the department may vote on collaborative decisions. new text end 6.21 new text begin (d) Voting members of the collaborative do not receive compensation or new text end 6.22 new text begin reimbursement of expenses. new text end 6.23     new text begin Subd. 6. new text end new text begin Expiration. new text end new text begin The collaborative expires December 31, 2012. new text end 6.24     new text begin Subd. 7. new text end new text begin Recommendations; legislative report. new text end new text begin (a) The executive committee, new text end 6.25 new text begin in consultation with the collaborative, shall develop findings and adopt formal new text end 6.26 new text begin recommendations to the department, and to the legislature as provided in paragraph (b), new text end 6.27 new text begin regarding full and effective implementation of the disadvantaged business enterprise new text end 6.28 new text begin program. The recommendations, including any necessary draft legislation, may include, new text end 6.29 new text begin but are not limited to, strategies, polices, and actions focused on: new text end 6.30 new text begin (1) requiring bid proposals to include information on disadvantaged business new text end 6.31 new text begin enterprise participation; new text end 6.32 new text begin (2) defining and implementing appropriate sanctions for contractors who fail to meet new text end 6.33 new text begin disadvantaged business enterprise contract goals; new text end 6.34 new text begin (3) identifying strategies and techniques to build disadvantaged business enterprise new text end 6.35 new text begin capacity, including through training and development workshops; new text end 7.1 new text begin (4) strengthening the content and frequency of department reporting requirements new text end 7.2 new text begin relating to the disadvantaged business enterprise program; and new text end 7.3 new text begin (5) requiring the department to submit a waiver application to allow group-specific new text end 7.4 new text begin goals. new text end 7.5 new text begin (b) By January 3, 2011, the executive committee shall submit a report on its findings new text end 7.6 new text begin and legislative recommendations to members of the house of representatives and senate new text end 7.7 new text begin committees with jurisdiction over transportation policy and finance. new text end 7.8 new text begin EFFECTIVE DATE. new text end new text begin This section is effective the day following final enactment. new text end 7.9    Sec. 5. new text begin WAIVER OF DISADVANTAGED BUSINESS ENTERPRISE new text end 7.10 new text begin PROVISIONS. new text end 7.11 new text begin The executive committee, as provided in section 4, may request the commissioner new text end 7.12 new text begin of transportation to submit a waiver request as described in this section. Upon receipt new text end 7.13 new text begin of a resolution from the executive committee, the commissioner of transportation shall new text end 7.14 new text begin submit a request to the federal Department of Transportation for a waiver of the provisions new text end 7.15 new text begin of the disadvantaged business enterprise rules that prohibit the state Department of new text end 7.16 new text begin Transportation from establishing group-specific goals for underutilized disadvantaged new text end 7.17 new text begin business enterprise groups within the overall disadvantaged business enterprise goal. In new text end 7.18 new text begin requesting the waiver, the commissioner shall prepare and submit updated information new text end 7.19 new text begin concerning disparities in this state between available enterprises and utilized enterprises. new text end 7.20 new text begin EFFECTIVE DATE. new text end new text begin This section is effective the day following final enactment. new text end 7.21    Sec. 6. new text begin REVISOR'S INSTRUCTION. new text end 7.22 new text begin (a) The revisor of statutes shall recodify Minnesota Statutes, section 174.03, new text end 7.23 new text begin subdivision 11, paragraph (a), as Minnesota Statutes, section 161.363, subdivision 4, new text end 7.24 new text begin paragraph (b). new text end 7.25 new text begin (b) The revisor of statutes shall make any cross reference changes made necessary new text end 7.26 new text begin by this recodification. new text end