SF 2585

1st Engrossment - 86th Legislature (2009 - 2010) Posted on 03/11/2010 02:01pm

A bill for an act
relating to transportation; requiring commissioner of transportation to establish
contract goals for targeted group business participation; directing commissioner
of transportation to require bids for federally assisted contracts to include
information on inclusion of disadvantaged business enterprises; requiring
commissioner of transportation to provide training for disadvantaged business
enterprises; imposing reporting requirements; requiring application for waiver;
establishing collaborative to recommend improvements to disadvantaged
business enterprise program; amending Minnesota Statutes 2009 Supplement,
section 161.321, by adding a subdivision; proposing coding for new law in
Minnesota Statutes, chapters 161; 174; repealing Minnesota Statutes 2008,
section 174.03, subdivision 11.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2009 Supplement, section 161.321, is amended by
adding a subdivision to read:

new text begin Subd. 2a. new text end

new text begin Targeted group business goal. new text end

new text begin The commissioner shall establish a
contract goal for targeted group business participation in each contract with a prime
contractor that involves highway construction, improvement, or maintenance, and is
not covered by the disadvantaged business enterprise program under Code of Federal
Regulations, title 49. The contract goal must be stated in the bid solicitation. The contract
must identify the contract goal for targeted group business participation and must state
sanctions that may be imposed on the contractor who does not either meet the goal or
demonstrate good-faith efforts to meet the goal.
new text end

Sec. 2.

new text begin [161.363] DISADVANTAGED BUSINESS ENTERPRISE PROGRAM.
new text end

new text begin Subdivision 1. new text end

new text begin Bids for federally assisted contracts. new text end

new text begin (a) The commissioner shall
include in every bid solicitation for a federally assisted contract:
new text end

new text begin (1) the disadvantaged business enterprise contract goal;
new text end

new text begin (2) a notice to bidders that the proposal must include the percentage of disadvantaged
business enterprises participating in the project and a waiver request if the percentage is
less than the contract goal; and
new text end

new text begin (3) notice of the sanction that will be imposed against a contractor who does not
meet the disadvantaged business enterprise contract goal.
new text end

new text begin (b) A bidder who submits a request for a waiver from the contract goal shall include
information necessary to establish the bidder's adequate good-faith efforts to meet the
contract goal. A showing of adequate good-faith efforts must include documentation of:
new text end

new text begin (1) publication of requests for disadvantaged business enterprise participation
in the project;
new text end

new text begin (2) written notice of bid solicitation provided to certified disadvantaged business
enterprises, along with follow-up contacts, if appropriate;
new text end

new text begin (3) items of work available to disadvantaged business enterprise firms;
new text end

new text begin (4) identity of rejected disadvantaged business enterprise firms, firms selected for
the work, and the reasons for the rejections and the choice;
new text end

new text begin (5) efforts made to assist interested disadvantaged business enterprises in obtaining
bonding, credit, or insurance;
new text end

new text begin (6) efforts made to assist disadvantaged business enterprises to obtain necessary
equipment, supplies, and materials;
new text end

new text begin (7) names of agencies contacted to assist in contracting, recruiting, and using
disadvantaged business enterprise firms; and
new text end

new text begin (8) any additional information supportive of a demonstration of good-faith efforts.
new text end

new text begin The request for a waiver must state the proposed percentage of disadvantaged business
enterprise participation.
new text end

new text begin (c) The commissioner shall reject a bid that does not either meet the contract goal or
include a waiver application that documents adequate good-faith efforts on the part of the
bidder in conformance with paragraph (b).
new text end

new text begin Subd. 2. new text end

new text begin Reduction of contract goal. new text end

new text begin The commissioner may not award a contract
that contains a waiver application unless the commissioner:
new text end

new text begin (1) evaluates the waiver application, makes a finding of good-faith efforts, and
grants the waiver; and
new text end

new text begin (2) reduces the contract goal upon the grant of a waiver to a bidder who documents
adequate good-faith efforts to meet the goal.
new text end

new text begin Subd. 3. new text end

new text begin Definitions. new text end

new text begin For purposes of this section and sections 174.186 to 174.188:
new text end

new text begin (a) "Disadvantaged business enterprise" has the meaning given in Code of Federal
Regulations, title 49, section 26.5.
new text end

new text begin (b) "Certified" refers to a disadvantaged business enterprise that is currently certified
according to Code of Federal Regulations, title 49, sections 26.81 to 26.91.
new text end

DISADVANTAGED BUSINESS ENTERPRISES

Sec. 3.

new text begin [174.186] DISADVANTAGED BUSINESS ENTERPRISE SANCTIONS.
new text end

new text begin The commissioner shall include in each contract that is funded at least in part by
federal funds, a sanction for each contractor who does not meet the established project
disadvantaged business enterprise goal or demonstrate good-faith efforts to meet the goal.
The commissioner shall monitor disadvantaged business enterprise compliance throughout
the term of the contract in order to minimize the need for imposition of sanctions.
new text end

Sec. 4.

new text begin [174.187] DISADVANTAGED BUSINESS ENTERPRISE TRAINING.
new text end

new text begin The commissioner shall hold business development workshops in various
metropolitan area locations to educate disadvantaged business enterprise owners and
managers concerning estimating and bidding for Department of Transportation projects.
The commissioner may not charge a fee for participation in the workshops.
new text end

Sec. 5.

new text begin [174.188] DISADVANTAGED BUSINESS ENTERPRISE REPORT.
new text end

new text begin The commissioner shall report annually by February 1 to the legislative committees
having jurisdiction over transportation policy and finance concerning the commissioner's
disadvantaged business enterprise program. The report must, with respect to the previous
calendar year:
new text end

new text begin (1) identify the overall goal for transportation contracts compared with the actual
percentage attained;
new text end

new text begin (2) explain the methodology, applicable facts, and public participation used to
establish the overall goal;
new text end

new text begin (3) describe the department's good-faith efforts to attain the goal, if the goal was not
attained;
new text end

new text begin (4) describe the department's actions to address overconcentration of disadvantaged
business enterprises in certain types of work;
new text end

new text begin (5) describe the department's use of group-specific goals, or the department's
attempts to gain federal approval to impose group-specific goals;
new text end

new text begin (6) detail the department's efforts to increase the number of bids received from
certified disadvantaged business enterprises;
new text end

new text begin (7) describe the department's efforts to monitor contracts and work with prime
contractors to improve the rate of compliance with disadvantaged business enterprise
contract goals;
new text end

new text begin (8) state the percentage of federally assisted contracts that include disadvantaged
business enterprise project goals, and the percentage of those contracts in which the
contractor met the goal;
new text end

new text begin (9) describe the sanctions included in contracts for failure to meet disadvantaged
business enterprise goals or to demonstrate good-faith efforts, and identify contractors
who were sanctioned; and
new text end

new text begin (10) describe the department's efforts to increase the overall goal for the next year.
new text end

Sec. 6. new text begin WAIVER OF DISADVANTAGED BUSINESS ENTERPRISE
PROVISIONS.
new text end

new text begin The commissioner of transportation shall submit a request to the federal Department
of Transportation for a waiver of the provisions of the disadvantaged business enterprise
rules that prohibit the state Department of Transportation from establishing group-specific
goals for underutilized disadvantaged business enterprise groups within the overall
disadvantaged business enterprise goal. In requesting the waiver, the commissioner shall
prepare and submit updated information concerning disparities in this state between
available enterprises and utilized enterprises.
new text end

Sec. 7. new text begin DISADVANTAGED BUSINESS ENTERPRISE COLLABORATIVE.
new text end

new text begin Subdivision 1. new text end

new text begin Establishment; purpose. new text end

new text begin (a) The commissioner of transportation
shall convene monthly meetings of the disadvantaged business enterprise program
collaborative, as constituted by the commissioner as of January 1, 2010.
new text end

new text begin (b) The collaborative shall review and evaluate the commissioner's implementation
of the disadvantaged business enterprise program, under Code of Federal Regulations,
title 49, and to recommend changes, including legislation, to improve the effectiveness of
the program in this state.
new text end

new text begin (c) The commissioner shall provide staff and administrative support for the
collaborative and shall establish policies and procedures for the collaborative including
quorum requirements and majority decision making.
new text end

new text begin (d) The representatives of the Department of Transportation with responsibility for
civil rights and contracting shall participate in collaborative meetings and deliberations,
but no employee of the department may vote on collaborative decisions.
new text end

new text begin (e) Voting members of the collaborative do not receive compensation or
reimbursement of expenses.
new text end

new text begin Subd. 2. new text end

new text begin Powers and duties; report. new text end

new text begin (a) The collaborative shall develop
recommendations to the department and to the legislature as provided in paragraph (b)
designed to implement fully the federal Disadvantaged Business Enterprise program in
this state and to improve the effectiveness of the program. These recommendations,
including any necessary draft legislation, may include, but are not limited to, strategies,
polices, and actions focused on:
new text end

new text begin (1) requiring bid proposals to include information on disadvantaged business
enterprise participation;
new text end

new text begin (2) requiring bidding contractors to submit a waiver application if disadvantaged
business enterprise participation is less than the established contract goal;
new text end

new text begin (3) defining and implementing appropriate sanctions for contractors who fail to meet
disadvantaged business enterprise contract goals;
new text end

new text begin (4) sponsoring disadvantaged business enterprise training and development
workshops;
new text end

new text begin (5) strengthening the content and frequency of department reporting requirements
relating to the disadvantaged business enterprise program; and
new text end

new text begin (6) requiring the department to submit a waiver application to allow group-specific
goals.
new text end

new text begin (b) The collaborative shall report its findings and legislative recommendations to the
chairs and ranking minority members of the legislative committees and divisions with
jurisdiction over transportation policy and finance by January 3, 2011.
new text end

new text begin (c) The collaborative expires December 31, 2012.
new text end

Sec. 8. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, section 174.03, subdivision 11, new text end new text begin is repealed.
new text end

Sec. 9. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 and 2 are effective for contracts awarded on and after August 1, 2011.
Sections 3 to 6 and 8 are effective March 1, 2011. Section 7 is effective the day following
final enactment.
new text end