§303. Diverse business participation.

(a) General rule.--In administering contracts for construction and professional services relating to transportation projects which are funded pursuant to the provisions of this title or 75 Pa.C.S. (relating to vehicles), the contracting entities shall:

(1) Be responsible for ensuring that all competitive contract opportunities subject to this section which are issued by the contracting entities seek to maximize participation by diverse businesses.

(1.1) Include in solicitations for bids and requests for proposals on all competitive contracting opportunities subject to this section notice to the bidder or offeror that:

(i) The bidder or offeror shall document and submit to the applicable contracting entity all good faith efforts to solicit subcontractors that are diverse businesses during the bidding or proposal process.

(ii) The bidder or offeror shall provide within seven days of being declared the low bidder or successful offeror the name and business address of each subcontractor that is a diverse business that will provide the contractor with construction or professional services in connection with the performance of the contract.

(2) Include in the solicitations for bids and requests for proposals under paragraph (1.1) language encouraging bidders and offerors to utilize and give consideration to contractors offering to utilize diverse businesses in the selection and award of contracts.

(3) Ensure that the contracting entities' commitment to participation by diverse businesses is clearly understood and appropriately implemented and enforced by all the contracting entities.

(4) Designate a responsible official to supervise the contracting entities' diverse business program and ensure compliance within the contracting entities.

(5) (Reserved).

(6) Impose sanctions, as may be appropriate under 62 Pa.C.S. § 531 (relating to debarment or suspension), against businesses that fail to comply with this section or the policies of the Commonwealth related to diverse businesses. This paragraph shall not apply to a local transportation organization.

(7) Ensure that each contract entered into with a contractor under this section includes provisions prohibiting discrimination in accordance with 62 Pa.C.S. § 3701 (relating to contract provisions prohibiting discrimination).

(a.1) Additional duties of department.--The department, with the assistance of a diverse business enterprise supportive services center, shall have the following duties:

(1) Conduct the necessary and appropriate outreach, including using the database available on the Internet website of the Department of General Services and the Federal Government's system of award management database, for purposes of identifying diverse businesses in general construction or professional services capable of performing contracts subject to this section.

(2) By October 1, 2014, and each October 1 thereafter, submit a report to the chairman and minority chairman of the Transportation Committee of the Senate and the chairman and minority chairman of the Transportation Committee of the House of Representatives summarizing the participation level of diverse businesses in all competitive contract opportunities issued by contracting entities. The commission and local transportation organizations shall cooperate with the department to complete the report. The report shall include:

(i) The percentage of participation by diverse businesses.

(ii) The total value of all contracts executed which include participation by diverse businesses pursuant to this section in the prior year.

(iii) The number of businesses penalized for violating this section.

(3) Transmit the report under paragraph (2) to the Pennsylvania Minority Business Development Authority, established under the act of July 22, 1974 (P.L.598, No.206), known as the Pennsylvania Minority Business Development Authority Act. The authority shall review the report to assess the effectiveness in advancing this section and to make any recommendations for changes in this section deemed necessary or desirable to the secretary and the chairman and minority chairman of the Transportation Committee of the Senate and the chairman and minority chairman of the Transportation Committee of the House of Representatives.

(a.2) Replacement of diverse business.--If, at any time during the evaluation of a bid or proposal or the construction of a project or the performance of a professional service pursuant to a bid, proposal or contract subject to this section, it becomes necessary to replace a subcontractor that is a diverse business, the bidder, offeror or contractor, as appropriate, shall immediately notify the contracting entity of the need to replace the diverse business. The notice shall include the reasons for the replacement.

(a.3) Applicability.--The following shall apply to a contractor and contract subject to subsection (a):

(1) The provisions of 62 Pa.C.S. § 2108 (relating to compliance with Federal requirements).

(2) Prompt payment policies between a contractor and subcontractor adopted by the Department of General Services pursuant to 62 Pa.C.S. Pt. II (relating to general procurement provisions).

(a.4) Construction.--Nothing in this section shall be construed to supersede, nullify or otherwise affect 51 Pa.C.S. § 9603 (relating to participation goal). In the case of an inconsistency between this section and 51 Pa.C.S. Ch. 96 (relating to veteran-owned small businesses), the provisions of 51 Pa.C.S. Ch. 96 shall prevail.

(b) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Commission." As defined in section 8102 (relating to definitions).

"Contract." As defined in 62 Pa.C.S. § 103 (relating to definitions).

"Contracting entities." The following:

(1) The department.

(2) The commission.

(3) A local transportation organization.

"Disadvantaged business." A business that is owned or controlled by a majority of persons, not limited to members of minority groups, who are subject to racial or ethnic prejudice or cultural bias.

"Diverse business." A disadvantaged business, minority-owned or women-owned business or service-disabled veteran-owned or veteran-owned small business that has been certified by a third-party certifying organization.

"Local transportation organization." Any of the following:

(1) A political subdivision or a public transportation authority, port authority or redevelopment authority organized under the laws of this Commonwealth or pursuant to an interstate compact or otherwise empowered to render, contract for the rendering of or assist in the rendering of transportation service in a limited area in this Commonwealth, even though it may also render or assist in rendering transportation service in adjacent states.

(2) A nonprofit association that directly or indirectly provides public transportation service.

(3) A nonprofit association of public transportation providers operating within this Commonwealth.

"Minority-owned business." A business owned and controlled by a majority of individuals who are African Americans, Hispanic Americans, Native Americans, Asian Americans, Alaskans or Pacific Islanders.

"Professional services." An industry of infrequent, technical or unique functions performed by independent contractors or consultants whose occupation is the rendering of the services. The term includes:

(1) Design professional services as defined in 62 Pa.C.S. § 901 (relating to definitions).

(2) Legal services.

(3) Advertising or public relations services.

(4) Accounting, auditing or actuarial services.

(5) Security consultant services.

(6) Computer and information technology services.

(7) Insurance underwriting services.

"Service-disabled veteran-owned small business." As defined in 51 Pa.C.S. § 9601 (relating to definitions).

"Third-party certifying organization." An organization that certifies a small business, minority-owned business, women-owned business or veteran-owned small business as a diverse business. The term includes:

(1) The National Minority Supplier Development Council.

(2) The Women's Business Development Enterprise National Council.

(3) The Small Business Administration.

(4) The Department of Veterans Affairs.

(5) The Pennsylvania Unified Certification Program.

"Veteran-owned small business." As defined in 51 Pa.C.S. § 9601 (relating to definitions).

"Women-owned business." A business owned and controlled by a majority of individuals who are women.

(July 18, 2007, P.L.169, No.44, eff. imd.; Nov. 25, 2013, P.L.974, No.89, eff. 60 days)

Notation

2013 Amendment.  Section 43(1) of Act 89 provided that section 303 shall apply to competitive contract opportunities issued on or after July 1, 2014. See the preamble to Act 89 in the appendix to this title for special provisions relating to legislative findings and declarations.