SB2912 - Relating to the state historically underutilized business program; creating a criminal offense.

      By: Miles S.B. No. 2912               A BILL TO BE ENTITLED   AN ACT   relating to the state historically underutilized business program;   creating a criminal offense.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 2161.001, Government Code, is amended by   adding Subdivision (5) and (6) to read as follows:                 (5)     "Commercially useful function" means   responsibility for the execution of a distinct element of the work   of a contract and performance, management, and supervision of the   work involved, including:                       (A)     negotiation of the terms of a contract or   subcontract;                       (B)     assumption of financial risk commensurate   with a contract or subcontract;                       (C)     acquisition of appropriate lines of credit or   loans; or                       (D)     fulfillment of the responsibilities of a   joint venture partner under a joint venture agreement.                 (6)     "Disadvantaged business enterprise" means a   historically underutilized business as defined in Section 2161,   Government Code.          SECTION 2.  Section 2161.0015, Government Code, is amended   to read as follows:          Sec. 2161.0015.  DETERMINING SIZE STANDARDS FOR   HISTORICALLY UNDERUTILIZED BUSINESSES. To [ The comptroller may   establish size standards that a business may not exceed if it is to ]   be considered a historically underutilized business under this   chapter :                 (1)     the business owner may not have an individual   personal net worth of more than $1.32 million; and                 (2)  the business must:                       (A)     meet the Small Business Administration's   size standards for a small business for purposes of federal   government procurement under 13 C.F.R. Section 121.401, et seq.;   and                       (B)     have an annual gross income of not more than   $23.98 million . [ In determining the size standards, the comptroller   shall determine the size at which a business should be considered   sufficiently large that the business probably does not   significantly suffer from the effects of past discriminatory   practices. ]          SECTION 3.  Section 2161.002(c), Government Code, is amended   to read as follows:          (c)  In adopting rules to administer this chapter, the   comptroller shall adopt rules that are based on the results of the   "Texas Department of Transportation Disparity Study 2019" prepared   by Colette Holt & Associates [ "State of Texas Disparity Study, A   Report to the Texas Legislature as Mandated by H.B. 2626, 73rd   Legislature, December 1994" (prepared by National Economic   Research Associates, Inc.) ]. The comptroller shall revise the   rules in response to the findings of any updates of the study that   are prepared on behalf of the state.          SECTION 4.  Section 2161.004(c), Government Code, is amended   to read as follows:          (c)  Section 2161.003 and Subsections (a) and (b) of this   section [ do not ] apply to a project or contract subject to Section   201.702, Transportation Code.          SECTION 5.  Section 2161.061, Government Code, is amended by   amending Subsections (a) and (e) and adding Subsections (a-1),   (a-2), and (a-3) to read as follows:          (a)  The comptroller shall certify and recertify   historically underutilized businesses.           (a-1)     A certification or recertification under this section   expires on the first anniversary of the date the certification or   recertification was issued.           (a-2)     The comptroller may not initially certify a business   as a disadvantaged business enterprise unless each owner of the   business completes at least 32 hours of training provided by the   comptroller or a local government or nonprofit organization   approved by the comptroller to provide the training. The training   must include information regarding:                 (1)     the requirements of this chapter and rules adopted   under this chapter; and                 (2)     the programs available under 49 C.F.R. Part 26 and   the requirements for participation in those programs.           (a-3)     The comptroller may not recertify a business as a   disadvantaged business enterprise unless each owner of the business   completes at least eight hours of continuing training provided by   the comptroller or a local government or nonprofit organization   approved by the comptroller to provide the continuing training.          (e)  A local government or a nonprofit organization that   certifies historically underutilized businesses under Subsection   (c) or that conducts a certification program described by and   approved under Subsection (b) shall make available to the public an   online searchable database containing information about   historically underutilized businesses, minority business   enterprises, women's business enterprises, and disadvantaged   business enterprises certified by the local government or nonprofit   organization, including:                (1)  the name of the business;                (2)  the contact person or owner of the business;                (3)  the address and telephone number of the business;                (4)  the type or category of business, including   relevant capabilities of the business and the North American   Industry Classification System codes for the business; [ and ]                (5)  the expiration date of the business's   certification ; and                 (6)     the date of completion of training required under   this section .          SECTION 6.  Sections 2161.062(b), (d), and (e), Government   Code, are amended to read as follows:          (b)  The comptroller shall offer historically underutilized   businesses assistance , [ and ] training , and continuing training   regarding state procurement procedures.          (d)  The comptroller shall send each historically   underutilized business [ businesses ] an orientation package on   certification or recertification. The package shall include:                (1)  a certificate issued in the historically   underutilized business's name;                (2)  a description of the significance and value of   certification;                (3)  a list of state purchasing personnel;                (4)  information regarding electronic commerce   opportunities;                (5)  information regarding the Texas Marketplace   website; [ and ]                (6)  additional information about the state   procurement process ; and                 (7)     the business's current training and continuing   training status .          (e)  A state agency with a biennial budget that exceeds $10   million shall designate a staff member to serve as the historically   underutilized businesses coordinator for the agency during the   fiscal year. The procurement director may serve as the coordinator.   In agencies that employ a historically underutilized businesses   coordinator, the position of coordinator, within the agency's   structure, must be at least equal to the position of procurement   director. In addition to any other responsibilities, the   coordinator shall:                (1)  coordinate training programs for the recruitment ,   training, and retention of historically underutilized businesses;                (2)  report required information to the comptroller   annually ; and                (3)  match historically underutilized businesses with   key staff within the agency.          SECTION 7.  Section 2161.063(a), Government Code, is amended   to read as follows:          (a)  The comptroller shall encourage state agencies to use   historically underutilized businesses by:                (1)  working with state agencies to establish a   statewide policy for increasing the use of historically   underutilized businesses;                (2)  assisting state agencies in seeking historically   underutilized businesses capable of supplying required goods or   services;                (3)  assisting state agencies in identifying and   advising historically underutilized businesses on the types of   goods and services the agencies need; [ and ]                (4)  assisting state agencies in increasing the amount   of business placed with historically underutilized businesses ; and                 (5)     assisting state agencies in identifying   disadvantaged business enterprise that can perform commercially   useful functions for agencies .          SECTION 8.  Section 2161.064, Government Code, is amended by   adding Subsection (f) to read as follows:           (f)     The comptroller shall verify that each disadvantaged   business enterprise listed in the directory is in full compliance   with the training requirements under Section 2161.061.          SECTION 9.  Section 2161.065, Government Code, is amended by   amending Subsection (a) and adding Subsection (c) to read as   follows:          (a)  The comptroller shall design and oversee the   implementation by state agencies of a mentor-protege program to   foster long-term relationships between prime contractors and   historically underutilized businesses and to increase the ability   of historically underutilized businesses to contract with the state   or to receive subcontracts under a state contract. Each state   agency with a biennial appropriation that exceeds $10 million shall   implement and require participation in the program designed by the   comptroller.           (c)     The mentor-protege program under this section must be   consistent with the program established under 49 C.F.R. Section   26.35.          SECTION 10.  Section 2161.066(d), Government Code, is   amended to read as follows:          (d)  Each state agency that has a historically underutilized   businesses coordinator shall:                (1)  design its own program and model the program to the   extent appropriate on the program developed by the comptroller   under this section; [ and [Text truncated for display. Full text available on LegiScan.]