SECTIONS 10295-10299 - California Statutes

PUBLIC CONTRACT CODE

SECTION 10295-10299

10295. (a) All contracts entered into by any state agency for (1)
the acquisition of goods or elementary school textbooks, (2)
services, whether or not the services involve the furnishing or use
of goods or are performed by an independent contractor, (3) the
construction, alteration, improvement, repair, or maintenance of
property, real or personal, or (4) the performance of work or
services by the state agency for or in cooperation with any person,
or public body, are void unless and until approved by the department.
Every contract shall be transmitted with all papers, estimates, and
recommendations concerning it to the department and, if approved by
the department, shall be effective from the date of the approval.
(b) This section applies to any state agency that by general or
specific statute is expressly or impliedly authorized to enter into
transactions referred to in this section.
(c) This section does not apply to the following:
(1) Any transaction entered into by the Trustees of the California
State University, by the Board of Governors of the California
Community Colleges, or by a department under the State Contract Act
or the California State University Contract Law.
(2) Any contract of a type specifically mentioned and authorized
to be entered into by the Department of Transportation under Section
14035 or 14035.5 of the Government Code, Sections 99316 to 99319,
inclusive, of the Public Utilities Code, or the Streets and Highways
Code.
(3) Any contract entered into by the Department of Transportation
that is not funded by money derived by state tax sources but, rather,
is funded by money derived from federal or local tax sources.
(4) Any contract entered into by the Department of Personnel
Administration for state employee benefits, occupational health and
safety, training services, or combination thereof.
(5) Any contract let by the Legislature.
(6) Any contract entered into under the authority of Chapter 4
(commencing with Section 11770) of Part 3 of Division 2 of the
Insurance Code.

10295.1. (a) A state department or agency shall not contract for
the purchase of tangible personal property from a vendor, contractor,
or an affiliate of a vendor or contractor, unless that vendor,
contractor, and all of its affiliates that make sales for delivery
into California are holders of a California seller's permit issued
pursuant to Article 2 (commencing with Section 6066) of Chapter 2 of
Part 1 of Division 2 of the Revenue and Taxation Code, or are holders
of a certificate of registration issued pursuant to Section 6226 of
the Revenue and Taxation Code. A vendor or contractor that sells
tangible personal property to a state department or agency, and each
affiliate of that vendor or contractor that makes sales for delivery
into California, shall be regarded as a "retailer engaged in business
in this state," and shall be required to collect the California
sales or use tax on all its sales into the state in accordance with
Part 1 (commencing with Section 6001) of Division 2 of the Revenue
and Taxation Code.
(b) Beginning on and after January 1, 2004, each vendor,
contractor, or affiliate of a vendor or contractor that is offered a
contract to do business with a state department or state agency shall
submit to that state department or agency a copy, as applicable, of
that retailer's seller's permit or certificate of registration, and a
copy of each of the retailer's applicable affiliate's seller's
permit or certificate of registration, as described in subdivision
(a). This subdivision does not apply to a credit card purchase of
goods of two thousand five hundred dollars ($2,500) or less. The
total amount of exemption authorized herein shall not exceed seven
thousand five hundred dollars ($7,500) per year for each company from
which a state agency is purchasing goods by credit card. It shall be
the responsibility of each state agency to monitor the use of this
exemption and adhere to these restrictions on these purchases.
(c) A state department or state agency is exempted from the
provisions of subdivision (a) if the executive director of that state
department or agency, or his or her designee, makes a written
finding that the contract is necessary to meet a compelling state
interest.
(d) For the purposes of this section:
(1) "Affiliate of the vendor or contractor" means any person or
entity that is controlled by, or is under common control of, a vendor
or contractor through stock ownership or any other affiliation.
(2) "Compelling state interest" includes, but is not necessarily
limited to, the following:
(A) Ensuring the provision of essential services.
(B) Ensuring the public health, safety, and welfare.
(C) Responding to an emergency, as defined in Section 1102.
(3) "State department or agency" means every state office,
department, division, bureau, board, and commission, but does not
include the University of California, the California State
University, the Legislature, the courts, and any agency in the
judicial branch of government.

10295.2. (a) No vehicle acquisition request, vehicle purchase
order, or new contract shall be approved by the Department of General
Services for the purchase of new vehicles that would result in the
expenditure of funds unless a certification is received in writing
and signed by the secretary or director of an agency or a department,
respectively, or his or her designees, that has requested the
acquisition of the new vehicles, verifying that the purchase is vital
and mission critical for the agency or department.
(b) The certification shall include the date, title, and the
signature of the person authorizing the purchase.

10295.3. (a) (1) Notwithstanding any other provision of law, no
state agency may enter into any contract for the acquisition of goods
or services in the amount of one hundred thousand dollars ($100,000)
or more with a contractor who, in the provision of benefits,
discriminates between employees with spouses and employees with
domestic partners, or discriminates between the domestic partners and
spouses of those employees.
(2) For purposes of this section, "contract" includes contracts
with a cumulative amount of one hundred thousand dollars ($100,000)
or more per contractor in each fiscal year.
(3) For purposes of this section, "domestic partner" means one of
two persons who has filed a declaration of domestic partnership with
the Secretary of State pursuant to Division 2.5 (commencing with
Section 297) of the Family Code.
(4) (A) Subject to subparagraph (B), this section does not apply
to any contracts executed or amended prior to January 1, 2007, or to
bid packages advertised and made available to the public, or any
competitive or sealed bids received by the state, prior to January 1,
2007, unless and until those contracts or property contracts are
amended after December 31, 2006, and would otherwise be subject to
this section.
(B) If a duration of a contract executed or amended prior to
January 1, 2007, is for more than one year going beyond January 1,
2008, this section shall apply to the contract on January 1, 2008.
(5) The requirements of this section shall apply only to those
portions of a contractor's operations that occur under any of the
following conditions:
(A) Within the state.
(B) On real property outside the state if the property is owned by
the state or if the state has a right to occupy the property, and if
the contractor's presence at that location is connected to a
contract with the state.
(C) Elsewhere in the United States where work related to a state
contract is being performed.
(b) Contractors shall treat as confidential to the maximum extent
allowed by law or by the requirement of the contractor's insurance
provider, any request by an employee or applicant for employment for
domestic partner or spousal benefits or any documentation of
eligibility for domestic partner or spousal benefits submitted by an
employee or applicant for employment.
(c) After taking all reasonable measures to find a contractor that
complies with this section as determined by the state agency, the
requirements of this section may be waived under any of the following
circumstances:
(1) Whenever there is only one prospective contractor willing to
enter into a specific contract with the state agency.
(2) If the contract is necessary to respond to an emergency, as
determined by the state agency, that endangers the public health,
welfare, or safety, or the contract is necessary for the provision of
essential services, and no entity that complies with the
requirements of this section capable of responding to the emergency
is immediately available.
(3) Where the requirements of this section violate, or are
inconsistent with, the terms or conditions of a grant, subvention, or
agreement, provided that a good faith attempt has been made by the
agency to change the terms or conditions of any grant, subvention, or
agreement to authorize application of this section.
(4) Where the contractor is providing wholesale or bulk water,
power, or natural gas, the conveyance or transmission of the same, or
ancillary services, as required for assuring reliable services in
accordance with good utility practice, provided that the purchase of
the same may not practically be accomplished through the standard
competitive bidding procedures, and further provided that this
exemption does not apply to contractors providing direct retail
services to end users.
(d) (1) If there is a difference in the cost to provide a certain
benefit to a domestic partner or spouse, the contractor is not deemed
to be in violation of this section so long as it permits the
employee to pay any excess costs.
(2) The contractor is not deemed to discriminate in the provision
of benefits if the contractor, in providing the benefits, pays the
actual costs incurred in obtaining the benefit.
(3) In the event a contractor is unable to provide a certain
benefit, despite taking reasonable measures to do so, the contractor
may not be deemed to discriminate in the provision of benefits.
(4) For any contracts executed or amended on or after July 1,
2004, and prior to January 1, 2007, and to bid packages advertised
and made available to the public, or any competitive or sealed bids
received by the state, on or after July 1, 2004, and prior to January
1, 2007, unless and until those contracts or bid packages are
amended after June 30, 2004, but prior to January 1, 2007, and would
otherwise be subject to this section, a contractor may require an
employee to pay the costs of providing additional benefits that are
offered to comply with this section if an employee elects to have the
additional benefits. This paragraph shall not be construed to permit
a contractor to require an employee to cover the costs of providing
any benefits, which have otherwise been provided to all employees
regardless of marital or domestic partner status.
(e) A contractor is not deemed to be in violation of this section
if the contractor does any of the following:
(1) Offers the same benefits to employees with domestic partners
and employees with spouses and offers the same benefits to domestic
partners and spouses of employees.
(2) Elects to provide the same benefits to individuals that are
provided to employees' spouses and employees' domestic partners.
(3) Elects to provide benefits on a basis unrelated to an employee'
s marital status or domestic partnership status, including, but not
limited to, allowing each employee to designate a legally domiciled
member of the employee's household as being eligible for benefits.
(4) Elects not to provide benefits to employees based on their
marital status or domestic partnership status, or elects not to
provide benefits to employees' spouses and to employees' domestic
partners.
(f) (1) Every contract subject to this chapter shall contain a
statement by which the contractor certifies that the contractor is in
compliance with this section.
(2) The department or other contracting agency shall enforce this
section pursuant to its existing enforcement powers.
(3) (A) If a contractor falsely certifies that it is in compliance
with this section, the contract with that contractor shall be
subject to Article 9 (commencing with Section 10420), unless, within
a time period specified by the department or other contracting
agency, the contractor provides to the department or agency proof
that it has complied, or is in the process of complying, with this
section.
(B) The application of the remedies or penalties contained in
Article 9 (commencing with Section 10420) to a contract subject to
this chapter shall not preclude the application of any existing
remedies otherwise available to the department or other contracting
agency under its existing enforcement powers.
(g) Nothing in this section is intended to regulate the
contracting practices of any local jurisdiction.
(h) This section shall be construed so as not to conflict with
applicable federal laws, rules, or regulations. In the event that a
court or agency of competent jurisdiction holds that federal law,
rule, or regulation invalidates any clause, sentence, paragraph, or
section of this code or the application thereof to any person or
circumstances, it is the intent of the state that the court or agency
sever that clause, sentence, paragraph, or section so that the
remainder of this section shall remain in effect.

10295.5. (a) Notwithstanding any other provision of law, no state
agency shall acquire or utilize sand, gravel, aggregates, or other
minerals produced from a surface mining operation subject to the
Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing
with Section 2710) of Division 2 of the Public Resources Code),
unless the operation is identified in the list published pursuant to
subdivision (b) of Section 2717 of the Public Resources Code as
having either of the following:
(1) An approved reclamation plan and financial assurances covering
the affected surface mining operation.
(2) An appeal pending before the State Mining and Geology Board
pursuant to subdivision (e) of Section 2770 of the Public Resources
Code with respect to the reclamation plan or financial assurances.
(b) Notwithstanding any other provision of law, no state agency
shall contract with a person who is not a surface mining operator,
but who is supplying or utilizing sand, gravel, aggregates, or other
minerals, to perform work for, or supply materials to, a state
agency, unless the operation is identified in the list published
pursuant to subdivision (b) of Section 2717 of the Public Resources
Code as having either of the following:
(1) An approved reclamation plan and financial assurances covering
the affected surface mining operation.
(2) An appeal pending before the State Mining and Geology Board
pursuant to subdivision (e) of Section 2770 of the Public Resources
Code with respect to the reclamation plan or financial assurances.
(c) For purposes of this section, "minerals" means any naturally
occurring chemical element or compound, or groups of elements and
compounds, formed from inorganic processes and organic substances,
including, but not limited to, coal, peat, and bituminous rock, but
excluding geothermal resources, natural gas, and petroleum.
(d) The requirements of this section shall apply to mining
operations on federal lands or Indian lands that are subject to the
Surface Mining and Reclamation Act of 1975 (Chapter 9 (commencing
with Section 2710) of Division 2 of the Public Resources Code)
pursuant to a memorandum of understanding between the Department of
Conservation and the federal agency having jurisdiction over the
lands.

10296. (a) Every contract entered into by any state agency for any
purpose specified in subdivisions (a) to (d), inclusive, of Section
10295 shall contain a statement by which the contractor swears under
penalty of perjury that no more than one final, unappealable finding
of contempt of court by a federal court has been issued against the
contractor within the immediately preceding two-year period because
of the contractor's failure to comply with an order of a federal
court which orders the contractor to comply with an order of the
National Labor Relations Board. For purposes of this section, a
finding of contempt does not include any finding that has been
vacated, dismissed, or otherwise removed by the court because the
contractor has complied with the order which was the basis for the
finding. The state may rescind any contract in which the contractor
falsely swears to the truth of the statement required by this
section.
(b) (1) This section does not apply to a credit card purchase of
goods of two thousand five hundred dollars ($2,500) or less.
(2) The total amount of exemption authorized herein shall not
exceed seven thousand five hundred dollars ($7,500) per year for each
company from which a state agency is purchasing goods by credit
card. It shall be the responsibility of each state agency to monitor
the use of this exemption and adhere to these restrictions on these
purchases.

10297. The provisions of Section 10295 shall apply both to
contracts awarded through competitive bidding and those not subject
to competitive bidding. The department shall deny its approval of a
contract awarded through competitive bidding if it finds that the
contract does not meet the specifications or other conditions of the
bidding process, or if any applicable statutes or regulations
regarding competitive bidding have been violated. With regard to any
contract not awarded through competitive bidding, the department
shall ascertain whether the contract is subject to competitive
bidding requirements, and if it finds that is the case, the
department shall deny its approval.
In making its determination on any contract, the department shall
consider all other relevant factors, such as clarity of language and
legality, and shall utilize its legal staff as necessary to
facilitate the approval process.

10298. (a) The director may consolidate the needs of multiple state
agencies for goods, information technology, and services, and,
pursuant to the procedures established in Chapter 3 (commencing with
Section 12100), establish contracts, master agreements, multiple
award schedules, cooperative agreements, including agreements with
entities outside the state, and other types of agreements that
leverage the state's buying power, for acquisitions authorized under
Chapter 2 (commencing with Section 10290), Chapter 3 (commencing with
Section 12100), and Chapter 3.6 (commencing with Section 12125).
State and local agencies may contract with suppliers awarded those
contracts without further competitive bidding.
(b) The director may make the services of the department
available, upon the terms and conditions agreed to, to any city,
county, city and county, district, or other local governmental body
or corporation empowered to expend public funds for the acquisition
of goods, information technology, or services for assisting the
agency in acquisitions conducted pursuant to Chapter 2 (commencing
with Section 10290), Chapter 3 (commencing with Section 12100), and
Chapter 3.6 (commencing with Section 12125). The state shall not
incur financial responsibility in connection with contracting for
local agencies under this section.

10299. (a) Notwithstanding any other provision of law, the director
may consolidate the needs of multiple state agencies for information
technology, goods and services, and, pursuant to the procedures
established in Chapter 3 (commencing with Section 12100), establish
contracts, master agreements, multiple award schedules, cooperative
agreements, including agreements with entities outside the state, and
other types of agreements that leverage the state's buying power,
for acquisitions authorized under Chapter 2 (commencing with Section
10290), Chapter 3 (commencing with Section 12100), and Chapter 3.6
(commencing with Section 12125). State agencies and local agencies
may contract with suppliers awarded the contracts without further
competitive bidding.
(b) The director may make the services of the department
available, upon the terms and conditions agreed upon, to any school
district empowered to expend public funds. These school districts
may, without further competitive bidding, utilize contracts, master
agreements, multiple award schedules, cooperative agreements, or
other types of agreements established by the department for use by
school districts for the acquisition of information technology,
goods, and services. The state shall incur no financial
responsibility in connection with the contracting of local agencies
under this section.

10299. (a) Notwithstanding any other provision of law, the director
may consolidate the needs of multiple state agencies for information
technology goods and services, and, pursuant to the procedures
established in Chapter 3 (commencing with Section 12100), establish
contracts, master agreements, multiple award schedules, cooperative
agreements, including agreements with entities outside the state, and
other types of agreements that leverage the state's buying power,
for acquisitions authorized under Chapter 2 (commencing with Section
10290), Chapter 3 (commencing with Section 12100), and Chapter 3.6
(commencing with Section 12125). State agencies and local agencies
may contract with suppliers awarded the contracts without further
competitive bidding.
(b) The director may make the services of the department
available, upon the terms and conditions agreed upon, to any school
district empowered to expend public funds. These school districts
may, without further competitive bidding, utilize contracts, master
agreements, multiple award schedules, cooperative agreements, or
other types of agreements established by the department for use by
school districts for the acquisition of information technology,
goods, and services. The state shall incur no financial
responsibility in connection with the contracting of local agencies
under this section.