Responsive Bidders in Public Procurement

In the California Public Contract Code, Division 2, Part 1, Chapter 2, there are provisions related to responsive bidders.

Section 2000 authorizes any local agency to require that a contract be awarded to the lowest responsible bidder who also meets goals and requirements established by the local agency relating to participation in the contract by minority business enterprises and women business enterprises, and makes a good faith effort to comply with the goals and requirements established by the local agency relating to participation in the contract by minority or women business enterprises.

In addition, the bidder must attend any presolicitation or prebid meetings that were scheduled by the local agency; identify and select specific items of the project for which the contract will be awarded to be performed by minority or women business enterprises; advertise not less than 10 calendar days before the date the bids are opened; provide written notice of his or her interest in bidding on the contract to the number of minority or women business enterprises required to be notified; follow-up initial solicitations of interest by contacting the enterprises to determine with certainty whether the enterprises were interested in performing specific items of the project; provide interested minority and women business enterprises with information about the plans, specifications, and requirements for the selected subcontracting or material supply work; request assistance from minority and women community organizations; negotiate in good faith with the minority or women business enterprises; advise and make efforts to assist interested minority and women business enterprises.

In addition, the performance by a bidder of all of the criteria specified creates a rebuttable presumption that a bidder has made a good faith effort to comply with the goals and requirements relating to participation by minority and women business enterprises established. The following terms are defined: “local agency,” “district,” “minority or women business enterprise,” and “minority person.”

However, this section does not apply to any contracts funded by the federal government, the San Francisco Bay Area Rapid Transit District, the Los Angeles County Transportation Commission, or any other local agency that has authority to facilitate the participation of minority or women business enterprises substantially similar to the authority granted.

Section 2001 provides that, for any local agency that requires that contracts be awarded to the lowest responsible bidder meeting, or making a good faith effort to meet, participation goals for minority, women, or disabled veteran business enterprises must provide in the general conditions under which bids will be received, that any person making a bid or offer to perform a contract is required, in his or her bid or offer, to set forth specified information.

The Subletting and Subcontracting Fair Practices Act applies to the information required relating to subcontractors certified as minority, women, or disabled veteran business enterprises. Also, the terms “contract,” “subcontractor,” and “prime contractor” are defined.

Section 2002 authorizes local agencies to facilitate contract awards to small businesses by providing for a small business preference; establishing a subcontracting participation goal for small businesses on contracts; requiring bidders to make good faith efforts to meet a subcontracting participation goal for small business contracts; and, setting additional guidelines for local preference purposes.

A definition of “small business” is provided. Every local agency that offers a preference is required, prior to offering a preference, to adopt a procurement policy that includes, at a minimum, six specified provisions.

In addition, every entity used to qualify a bid for a preference pursuant to this section must perform a “commercially useful function,” which is defined.

Section 2010 provides that a person that submits a bid or proposal to, or otherwise proposes to enter into or renew a contract with, a state agency with respect to any contract in the amount of $100,000 or more is required to certify, under penalty of perjury, at the time the bid or proposal is submitted or the contract is renewed, that they are in compliance with the Unruh Civil Rights Act, California Fair Employment and Housing Act, and other specified policies.