(1) (a) The executive director shall commission a state disparity study regarding the participation of historically underutilized businesses in state contracts entered into by all principal departments of the executive branch of state government as specified in section 24-1-110, including any division, office, agency, or other unit created within a principal department and including institutions of higher education and the Colorado commission on higher education; except that the study shall not include those entities that have elected to be exempt from the code pursuant to section 24-101-105 (1)(b). The study shall include state contracts entered into during the 2014-15, 2015-16, 2016-17, and 2017-18 state fiscal years.
(b) (I) The study must be conducted, and a final report prepared, by an entity independent of the department that is selected in response to a request for proposal issued in accordance with this code.
(II) The entities subject to the study pursuant to subsection (1)(a) of this section shall cooperate fully with the independent contractor engaged to conduct the study.
(c) The study and final report setting forth the study's methodologies, findings, and recommendations must be provided by December 1, 2020, to:
The members of the general assembly; and
The executive director, who shall transmit a copy of the disparity study final reportproduced pursuant to this section to the director of the minority business office created in section 24-49.5-102, which shall post the report on that office's official website.
(d) The executive director or the executive director's designee shall include the findings and recommendations from the final report required by subsection (1)(c) of this section in its report to the applicable house and senate committees of reference required by the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act", part 2 of article 7 of title 2.
(2) (a) The purposes of the disparity study undertaken pursuant to this section are:
(I) To determine whether there is a disparity between the number of qualified historically underutilized businesses that are ready, willing, and able to perform state contracts for goods and services, and the number of such contractors actually engaged to perform such contracts, which information must be ascertained by evaluating the prime contracts and subcontracts awarded in the following industries:
Construction, including new construction, remodeling, renovation, maintenance, demolition and repair of any public structure or building, pipeline construction, and other public improvements;
Architecture and engineering, including construction management, landscape architecture, planning, surveying, mapping services, and design, build, and construction services;
Professional services, including legal services, accounting, information technologyservices, medical services, technical services, research planning, and consulting services;
Brokerage and investment, including banking, asset management, state retirement,and pension services; and
Goods and services that may be provided or performed without professional licensure or special education or training, including, but not limited to, goods and services relating to materials, supplies, equipment, maintenance, personnel, pharmaceuticals, and food;
To determine whether, of the total amount spent on state contracts in a fiscal year,there is a disparity between the percentage of spending attributable to contracts awarded to qualified historically underutilized businesses and the percentage of state contracts that were awarded to historically underutilized businesses in that fiscal year; and
To determine what changes, if any, should be made to state policies affecting historically underutilized businesses.
(b) The disparity study must specifically include the following analyses, both for the historically underutilized businesses as a group and for each subgroup, as set forth in section 24103-1002 (3)(a)(II):
A prime contractor utilization analysis that presents the distribution of prime contracts by industry;
A subcontractor utilization analysis that presents the distribution of subcontracts bythe industries described in subsection (2)(a)(I) of this section;
A market area analysis that presents the legal basis for the geographical market areadetermination and defines the state's market area;
A prime contractor and subcontractor availability analysis that presents the distribution of available businesses in the state's market area;
A prime contractor disparity analysis that presents prime contractor utilization compared to prime contractor availability by industry and determines whether the comparison is statistically significant;
A subcontractor disparity analysis that presents subcontractor utilization comparedto subcontractor availability by industry and determines whether the comparison is statistically significant;
A qualitative analysis that presents the business community's experiences and perceptions of barriers encountered in contracting or attempting to contract with the state; and
Recommendations regarding best management practices and ways to enhance Colorado's contracting and procurement activities with historically underutilized businesses.
(c) (I) Any conclusion that discrimination-related disparity exists between the availability and utilization of historically underutilized businesses must be supported by statistical evidence and may be supplemented or supported by anecdotal evidence.
(II) If the analysis supports a finding that such disparity exists, the report must include recommendations to address the disparity, including any statutory changes likely to cure, mitigate, or redress such disparity. Any proposed remedial measures must be tailored to address documented statistical disparities in procurement policies.
(3) The general assembly may annually appropriate to the department of personnel such amount as it deems appropriate for the purposes specified in this part 10. Any unexpended and unencumbered money from an appropriation made for the purposes of this part 10 remains available for expenditure by the department for the purposes of this part 10 in the next fiscal year without further appropriation.
Source: L. 2019: Entire part added, (SB 19-135), ch. 379, p. 3415, § 1, effective July 1.