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Chapter 2.5. Certification Of Minority And Women Business Enterprises of California Public Contract Code >> Division 2. >> Part 1. >> Chapter 2.5.
It is the intent of the Legislature that any awarding
department shall accept for purposes of public contract work any
state or local agency certification for minority, women, and
disadvantaged business enterprises if that certification meets the
certification criteria contained in Part 23 of Title 49 of the Code
of Federal Regulations. It is also the intent of the Legislature that
definitions for minority and women business enterprises, as
specified in subdivisions (e) and (f) of Section 10115.1, shall
constitute a clarification of, rather than a change in, existing law.
As used in this chapter, the following definitions apply:
(a) "Awarding department" means any state agency, department, governmental entity, including the California State University, or officer or entity empowered by law to enter into contracts on behalf of the State of California.
(b) "Department" means the Department of Transportation.
(c) "Minority," for purposes of this section, means a citizen or lawful permanent resident of the United States who is an ethnic person of color and who is: Black (a person having origins in any of the Black racial groups of Africa); Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin regardless of race); Native American (an American Indian, Eskimo, Aleut, or Native Hawaiian); Pacific-Asian (a person whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, or the United States Trust Territories of the Pacific or including the Northern Marianas); Asian-Indian (a person whose origins are from India, Pakistan, or Bangladesh); or any other group of natural persons identified as minorities in the respective project specifications of an awarding department or participating local agency.
(d) "Minority business enterprise" means a business concern that meets all of the following criteria:
(1) The business is at least 51 percent owned by one or more minorities or, in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more minorities.
(2) A business whose management and daily operations are controlled by one or more minorities who own the business.
(3) A business concern with its home office located in the United States which is not a branch or subsidiary of a foreign corporation, firm, or other business.
(e) "Women business enterprise" means a business concern that meets all of the following criteria:
(1) The business is at least 51 percent owned by one or more women or, in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more women.
(2) A business whose management and daily operations are controlled by one or more women who own the business.
(3) A business concern with its home office located in the United States which is not a branch or subsidiary of a foreign corporation, firm, or other business.
(f) A "disadvantaged business enterprise" means a business concern that is all of the following:
(1) A "disadvantaged business" as that term is used in Section 23.62 of Title 49 of the Code of Federal Regulations.
(2) An individual proprietorship, partnership, corporation, or joint venture.
(3) Organized for profit, with a place of business located in the United States and which makes a significant contribution to the United States economy through payment of taxes or use of American products, materials, or labor.
(g) "Participating state or local agency" means any state or local agency that elects to participate in the certification process pursuant to this chapter. For purposes of this subdivision, the following definitions apply:
(1) "State agency" means any department, division, board, bureau, commission, or agency of the executive branch of government.
(2) "Local agency" means a county or city, whether general law or chartered, city and county, school district, or other district.
(3) "District" means an agency of the state, formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries.
(a) "Awarding department" means any state agency, department, governmental entity, including the California State University, or officer or entity empowered by law to enter into contracts on behalf of the State of California.
(b) "Department" means the Department of Transportation.
(c) "Minority," for purposes of this section, means a citizen or lawful permanent resident of the United States who is an ethnic person of color and who is: Black (a person having origins in any of the Black racial groups of Africa); Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin regardless of race); Native American (an American Indian, Eskimo, Aleut, or Native Hawaiian); Pacific-Asian (a person whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, or the United States Trust Territories of the Pacific or including the Northern Marianas); Asian-Indian (a person whose origins are from India, Pakistan, or Bangladesh); or any other group of natural persons identified as minorities in the respective project specifications of an awarding department or participating local agency.
(d) "Minority business enterprise" means a business concern that meets all of the following criteria:
(1) The business is at least 51 percent owned by one or more minorities or, in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more minorities.
(2) A business whose management and daily operations are controlled by one or more minorities who own the business.
(3) A business concern with its home office located in the United States which is not a branch or subsidiary of a foreign corporation, firm, or other business.
(e) "Women business enterprise" means a business concern that meets all of the following criteria:
(1) The business is at least 51 percent owned by one or more women or, in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more women.
(2) A business whose management and daily operations are controlled by one or more women who own the business.
(3) A business concern with its home office located in the United States which is not a branch or subsidiary of a foreign corporation, firm, or other business.
(f) A "disadvantaged business enterprise" means a business concern that is all of the following:
(1) A "disadvantaged business" as that term is used in Section 23.62 of Title 49 of the Code of Federal Regulations.
(2) An individual proprietorship, partnership, corporation, or joint venture.
(3) Organized for profit, with a place of business located in the United States and which makes a significant contribution to the United States economy through payment of taxes or use of American products, materials, or labor.
(g) "Participating state or local agency" means any state or local agency that elects to participate in the certification process pursuant to this chapter. For purposes of this subdivision, the following definitions apply:
(1) "State agency" means any department, division, board, bureau, commission, or agency of the executive branch of government.
(2) "Local agency" means a county or city, whether general law or chartered, city and county, school district, or other district.
(3) "District" means an agency of the state, formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries.
(a) All awarding departments and local agencies shall accept
a certification by any participating state agency whose certification
criteria complies with Part 23 of Title 49 of the Code of Federal
Regulations. All awarding departments shall, and local agencies may,
accept a certification by any participating local agency whose
certification criteria complies with Part 23. Those participating
state or local agency certifications shall be deemed sufficient to
qualify minority, women, and disadvantaged business enterprises for
purposes of contracts that are fully or partially funded by the
federal government, contracts fully or partially funded by all state
agencies, and contracts fully or partially funded by all local
agencies, as defined in Part 3 (commencing with Section 20100).
(b) All awarding departments and local agencies shall accept the certification of a minority, women, or disadvantaged business enterprise made by a participating state agency as valid status of that enterprise, with respect to the identities of the persons certified as having ownership and control of the business enterprise, when awarding contracts to minority, women, and disadvantaged business enterprises. All awarding departments shall, and local agencies may, accept this certification when made by a participating local agency. No awarding department shall require a business enterprise, which has complied with the certification criteria of a participating state or local agency, to comply with any other certification process for certifying minority, women, and disadvantaged business enterprises. However, a participating local agency may impose additional conditions for certification of a business enterprise concerning its status as a minority, women, or disadvantaged business enterprise relating to ethnicity, business size, and business location for participation in local programs.
(b) All awarding departments and local agencies shall accept the certification of a minority, women, or disadvantaged business enterprise made by a participating state agency as valid status of that enterprise, with respect to the identities of the persons certified as having ownership and control of the business enterprise, when awarding contracts to minority, women, and disadvantaged business enterprises. All awarding departments shall, and local agencies may, accept this certification when made by a participating local agency. No awarding department shall require a business enterprise, which has complied with the certification criteria of a participating state or local agency, to comply with any other certification process for certifying minority, women, and disadvantaged business enterprises. However, a participating local agency may impose additional conditions for certification of a business enterprise concerning its status as a minority, women, or disadvantaged business enterprise relating to ethnicity, business size, and business location for participation in local programs.
(a) A participating state or local agency shall certify a
business enterprise as a minority or women business enterprise if
that business enterprise meets the definition of a minority or women
business enterprise specified in subdivisions (d) and (e) of Section
2051 in accordance with the eligibility standards set forth in
Section 23.53 of Title 49 of the Code of Federal Regulations.
(b) A participating state or local agency shall certify a business enterprise as a disadvantaged business enterprise if that business enterprise meets the definition of a disadvantaged business enterprise specified in subdivision (f) of Section 2051, in accordance with the "Guidance for Making Determinations of Social and Economic Disadvantage" set forth in Appendix C to Subpart D of Part 23 of Title 49 of the Code of Federal Regulations.
(c) The participating state or local agency may include a site visit as part of its certification process. However, if a participating state or local agency certifies an applicant without conducting a site visit, any other participating state or local agency may conduct a site visit to verify ownership and control of the minority, women, or disadvantaged business enterprise. For purposes of conducting a site visit, certification documentation retained by the participating state or local agency shall be provided, upon request, to any other participating state or local agency. The applicant shall be subject to only one site visit per year, unless ownership and control changes have occurred in the business within the 12-month period following a site visit. Nothing in this chapter shall prohibit a participating state or local agency from conducting a site visit for purposes of preparing a response to an appeal from a notice of intent to decertify pursuant to Section 2055.
(d) A participating state or local agency shall complete the certification process, including verification of information submitted by the applicant and the performance of a site visit, if applicable, within 60 working days after receipt of a completed application, and shall submit the appropriate information to the Department of Transportation for insertion into the computerized data bank created pursuant to Section 2056.
(e) The grant of certification of a business enterprise by a participating state or local agency shall be valid for two years. A business enterprise that has been denied certification by a participating state or local agency may reapply for certification after six months have elapsed since the date of the denial of certification.
(f) A participating state or local agency shall provide adequate security methods to prevent contamination and unauthorized access to the information gathered during the verification process.
(b) A participating state or local agency shall certify a business enterprise as a disadvantaged business enterprise if that business enterprise meets the definition of a disadvantaged business enterprise specified in subdivision (f) of Section 2051, in accordance with the "Guidance for Making Determinations of Social and Economic Disadvantage" set forth in Appendix C to Subpart D of Part 23 of Title 49 of the Code of Federal Regulations.
(c) The participating state or local agency may include a site visit as part of its certification process. However, if a participating state or local agency certifies an applicant without conducting a site visit, any other participating state or local agency may conduct a site visit to verify ownership and control of the minority, women, or disadvantaged business enterprise. For purposes of conducting a site visit, certification documentation retained by the participating state or local agency shall be provided, upon request, to any other participating state or local agency. The applicant shall be subject to only one site visit per year, unless ownership and control changes have occurred in the business within the 12-month period following a site visit. Nothing in this chapter shall prohibit a participating state or local agency from conducting a site visit for purposes of preparing a response to an appeal from a notice of intent to decertify pursuant to Section 2055.
(d) A participating state or local agency shall complete the certification process, including verification of information submitted by the applicant and the performance of a site visit, if applicable, within 60 working days after receipt of a completed application, and shall submit the appropriate information to the Department of Transportation for insertion into the computerized data bank created pursuant to Section 2056.
(e) The grant of certification of a business enterprise by a participating state or local agency shall be valid for two years. A business enterprise that has been denied certification by a participating state or local agency may reapply for certification after six months have elapsed since the date of the denial of certification.
(f) A participating state or local agency shall provide adequate security methods to prevent contamination and unauthorized access to the information gathered during the verification process.
(a) The department shall develop and make available to all
awarding departments and local agencies a directory of all state and
local agencies participating in the standardized certification
process pursuant to this chapter. An awarding department may count,
for purposes of meeting statewide participation goals, those business
enterprises that have been certified by a participating state or
local agency.
(b) The certification shall be under penalty of perjury. The certification application form shall include, but not be limited to, the following information:
(1) Name of firm and address.
(2) Name of person to contact.
(3) Business telephone.
(4) Type of ownership.
(5) Controlling interest (ethnicity and citizenship).
(6) Documentation or evidence of minority ethnicity.
(7) Name of owners, general partners, and officers of firm and their percent of ownership in the firm. If a corporation, total outstanding stock and a percentage breakdown of ownership.
(8) Management control of firm in the following areas:
(A) Financial decisions.
(B) Estimating.
(C) Marketing and sales.
(D) Hiring and dismissal of management.
(E) Purchasing of major equipment and supplies.
(9) Documentation of identity of owner or management official who is, or has been, within the last three years, an owner, manager, or employee of another firm that has an ownership interest or a present business relationship with the firm. Present business relationships include shared space, employees, equipment, or financing. Explanation of these relationships.
(10) Bonding capabilities.
(11) Questions regarding whether the firm has been denied certification, or any of the individuals listed in paragraph (7) have been involved with a firm that has been denied certification, as a minority, women, or disadvantaged business enterprise by a participating state or local agency.
(12) Type of business (for example, service, goods, construction).
(13) Provision for the attachment of a copy of an active business and contractor's license, or any other pertinent license or permit.
(14) Location area of state to be considered for work.
(15) Other documentation required to verify ownership and control of a certification applicant in accordance with Sections 23.51 and 23.53 of Title 49 of the Code of Federal Regulations, and with Publication No. FHWA-CR-90-003, dated April 1990, entitled "Disadvantaged Business Enterprise Program Administration Participant' s Manual" published by the Federal Highway Administration in the United States Department of Transportation.
(16) Affidavit that all information is true and correct, including statement under penalty of perjury.
(c) A participating state or local agency granting or denying the certification shall compile and maintain documentation supporting each of the criteria set forth in subdivision (b) for a minimum of two years. The documentation shall include, but not be limited to, one copy of the issued certification with the name of the person or persons responsible for reviewing and authorizing the certification and the date on which each review and authorization occurred.
(d) The minority, women, or disadvantaged business enterprises seeking certification shall designate on the application form the information that they consider proprietary. Any information so designated shall be confidential. However, if notice is given by a participating state or local agency of its intention to decertify a business enterprise certified pursuant to this chapter, the participating state or local agency that granted the original certification shall provide access to all of its certification documentation to a participating state or local agency seeking to decertify the business enterprise, if the participating state or local agency seeking to decertify the business enterprise agrees to honor the confidentiality of the information designated as proprietary.
(b) The certification shall be under penalty of perjury. The certification application form shall include, but not be limited to, the following information:
(1) Name of firm and address.
(2) Name of person to contact.
(3) Business telephone.
(4) Type of ownership.
(5) Controlling interest (ethnicity and citizenship).
(6) Documentation or evidence of minority ethnicity.
(7) Name of owners, general partners, and officers of firm and their percent of ownership in the firm. If a corporation, total outstanding stock and a percentage breakdown of ownership.
(8) Management control of firm in the following areas:
(A) Financial decisions.
(B) Estimating.
(C) Marketing and sales.
(D) Hiring and dismissal of management.
(E) Purchasing of major equipment and supplies.
(9) Documentation of identity of owner or management official who is, or has been, within the last three years, an owner, manager, or employee of another firm that has an ownership interest or a present business relationship with the firm. Present business relationships include shared space, employees, equipment, or financing. Explanation of these relationships.
(10) Bonding capabilities.
(11) Questions regarding whether the firm has been denied certification, or any of the individuals listed in paragraph (7) have been involved with a firm that has been denied certification, as a minority, women, or disadvantaged business enterprise by a participating state or local agency.
(12) Type of business (for example, service, goods, construction).
(13) Provision for the attachment of a copy of an active business and contractor's license, or any other pertinent license or permit.
(14) Location area of state to be considered for work.
(15) Other documentation required to verify ownership and control of a certification applicant in accordance with Sections 23.51 and 23.53 of Title 49 of the Code of Federal Regulations, and with Publication No. FHWA-CR-90-003, dated April 1990, entitled "Disadvantaged Business Enterprise Program Administration Participant' s Manual" published by the Federal Highway Administration in the United States Department of Transportation.
(16) Affidavit that all information is true and correct, including statement under penalty of perjury.
(c) A participating state or local agency granting or denying the certification shall compile and maintain documentation supporting each of the criteria set forth in subdivision (b) for a minimum of two years. The documentation shall include, but not be limited to, one copy of the issued certification with the name of the person or persons responsible for reviewing and authorizing the certification and the date on which each review and authorization occurred.
(d) The minority, women, or disadvantaged business enterprises seeking certification shall designate on the application form the information that they consider proprietary. Any information so designated shall be confidential. However, if notice is given by a participating state or local agency of its intention to decertify a business enterprise certified pursuant to this chapter, the participating state or local agency that granted the original certification shall provide access to all of its certification documentation to a participating state or local agency seeking to decertify the business enterprise, if the participating state or local agency seeking to decertify the business enterprise agrees to honor the confidentiality of the information designated as proprietary.
A participating state or local agency may challenge the
certification of a business enterprise made by another participating
state or local agency as follows:
(a) The participating state or local agency seeking to challenge the certification determination made by another participating state or local agency shall give written notice to the certifying agency of its intention to challenge the certification determination. The certifying agency shall reexamine its certification determination and submit written notice to the challenging agency and the business enterprise of its findings after reexamination within 30 days from the date of receipt of the notice.
(b) If the challenging agency is not satisfied with the finding of the certifying agency after reexamination, the challenging agency shall submit written notice to the business enterprise, with a copy to the certifying agency, of its intention to decertify the business enterprise.
(c) A business enterprise that has received notice of decertification by an agency may appeal that decertification decision in accordance with the procedures of the agency that made the decertification decision.
(a) The participating state or local agency seeking to challenge the certification determination made by another participating state or local agency shall give written notice to the certifying agency of its intention to challenge the certification determination. The certifying agency shall reexamine its certification determination and submit written notice to the challenging agency and the business enterprise of its findings after reexamination within 30 days from the date of receipt of the notice.
(b) If the challenging agency is not satisfied with the finding of the certifying agency after reexamination, the challenging agency shall submit written notice to the business enterprise, with a copy to the certifying agency, of its intention to decertify the business enterprise.
(c) A business enterprise that has received notice of decertification by an agency may appeal that decertification decision in accordance with the procedures of the agency that made the decertification decision.
(a) The department shall establish and administer a
computerized databank containing a list of certified minority, women,
and disadvantaged business enterprises. On or before July 1, 1993,
the data shall be made accessible to all awarding departments, local
agencies, and the public for use in contracting for goods,
construction, and services with those business enterprises.
(b) The databank shall include, but not be limited to, the following information:
(1) Name, address, and telephone number.
(2) Ethnicity.
(3) Gender.
(4) Name of the participating state or local agency that conducted a site visit, and date of site visit, if applicable.
(5) Type of ownership.
(6) Product or service categories.
(7) Geographical area.
(8) Name of the participating state or local agency that performed the certification.
(9) Any additional local requirements met by the enterprise, if applicable.
(10) A record of actions by a participating state or local agency resulting in certification denial or decertification.
(c) Information from the databank shall be made available to local public agencies and the public by the date specified in subdivision (a).
(d) The database developed to implement this section shall enable the department to monitor changes to this information and to issue any reports as may be required.
(b) The databank shall include, but not be limited to, the following information:
(1) Name, address, and telephone number.
(2) Ethnicity.
(3) Gender.
(4) Name of the participating state or local agency that conducted a site visit, and date of site visit, if applicable.
(5) Type of ownership.
(6) Product or service categories.
(7) Geographical area.
(8) Name of the participating state or local agency that performed the certification.
(9) Any additional local requirements met by the enterprise, if applicable.
(10) A record of actions by a participating state or local agency resulting in certification denial or decertification.
(c) Information from the databank shall be made available to local public agencies and the public by the date specified in subdivision (a).
(d) The database developed to implement this section shall enable the department to monitor changes to this information and to issue any reports as may be required.
This chapter shall not apply to any professional services
contract subject to Chapter 6 (commencing with Section 16850) of Part
3 of Division 4 of Title 2 of the Government Code.
