Section 61: Powers and duties of supplier diversity office
Section 61. (a) SDO shall adopt regulations and policies for the establishment and management of the office's diverse business certification process, including regulations and policies governing the streamlining, approval, denial or revocation of any such certification and for cross-certification by other recognized certification organizations of diverse businesses.
SDO shall develop and manage a small business certification process consistent with section 22O.
The SDO may also provide other procurement-related business certification services for certification categories and programs managed by other agencies if it would result in greater efficiencies to the commonwealth and the businesses applying for certification.
(b) SDO shall maintain a directory of certified diverse and small businesses within the commonwealth, and shall, from time to time, notify such businesses of the programs and services available to them, whether from public or private sources, or from local, state or federal agencies. SDO may develop a platform for diverse and small businesses listed in the SDO directory to connect with prime contractors and private and public procurement organizations about available business opportunities.
(c) SDO may establish its own programs and policies and seek from any agency information and assistance necessary to carry out its functions and duties, including, but not limited to, mandating that each agency submit to SDO an annual agency spending plan, inclusive of planned procurements, and any requested data or periodic contractor reports; and all agencies shall supply such information or assistance. SDO shall promote upcoming procurement schedules and plans to diverse and small businesses.
Each secretariat and agency shall appoint a liaison to the SDO, which shall serve as their agency's supplier diversity officer. Each secretariat and agency supplier diversity officer shall directly report to an appropriate level of authority within their respective secretariat or agency and shall be responsible for carrying out the functions and duties of their respective secretariat or agency as provided in this section.
The SDO shall, in coordination with the operational services division, manage the supplier diversity program. The SDO, through the supplier diversity program, shall encourage the participation of diverse businesses in procurements and contracts for goods and services by establishing annual agency spending benchmarks for purchases from diverse businesses and by requiring businesses that bid on state contracts for goods and services above a certain threshold, as such threshold shall be determined by the operational services division, to submit supplier diversity program plans making measurable financial commitments to contract with one or more diverse businesses. The executive director shall consult with the assistant secretary for operational services of the operational services division by March 15 of each year on the SDO's annual determination of whether to make recommendations to the secretary to change agency spending benchmarks for the supplier diversity program in the next fiscal year. The SDO shall be responsible for issuing policies and procedures consistent with the supplier diversity program benchmarks and thresholds.
The executive director shall also make recommendations by March 15 of each year to the assistant secretary for operational services of the operational services division, based on demographic data for small and diverse businesses and the SDO's prior year annual report, for the small business purchasing program. The SDO shall be responsible for issuing policies and procedures consistent with the small business purchasing program benchmarks and thresholds.
(d) SDO shall receive assistance from agencies including, where consistent with existing law, commitments that such agencies contract and subcontract with diverse businesses. SDO shall assist diverse businesses in making use of any special programs which may be operated by the state or by various departments and agencies of the federal government.
[ Subsection (e) effective until May 30, 2023. For text effective May 30, 2023, see below.]
(e) SDO, through the secretary, shall coordinate its activities with those of other agencies, and shall assist diverse businesses in their dealings with federal agencies and with state agencies. SDO shall coordinate its certification and diverse and small business programming activities with the operational services division, division of capital asset management and maintenance, Massachusetts Department of Transportation and other agencies that manage diversity programs. SDO shall also provide assistance to all secretariats and agencies, in evaluating economic activities of the secretariat to determine how the secretariat may be of assistance in providing fair opportunities for diverse businesses. SDO may coordinate any economic activities with the executive office for housing and economic development and may coordinate activities and events with local chambers of commerce, municipal economic development offices and organizations that represent diverse businesses. SDO may also perform outreach to private businesses and public entities, including political subdivisions and municipalities of the commonwealth, to assist in their development and promotion of their own diversity programs.
[ Subsection (e) as amended by 2023, 7, Sec. 30 effective May 30, 2023. See 2023, 7, Sec. 298. For text effective until May 30, 2023, see above.]
(e) SDO, through the secretary, shall coordinate its activities with those of other agencies, and shall assist diverse businesses in their dealings with federal agencies and with state agencies. SDO shall coordinate its certification and diverse and small business programming activities with the operational services division, division of capital asset management and maintenance, Massachusetts Department of Transportation and other agencies that manage diversity programs. SDO shall also provide assistance to all secretariats and agencies, in evaluating economic activities of the secretariat to determine how the secretariat may be of assistance in providing fair opportunities for diverse businesses. SDO may coordinate any economic activities with the executive office for economic development and may coordinate activities and events with local chambers of commerce, municipal economic development offices and organizations that represent diverse businesses. SDO may also perform outreach to private businesses and public entities, including political subdivisions and municipalities of the commonwealth, to assist in their development and promotion of their own diversity programs.
(f) SDO may work with state authorities, as defined in section 1 of chapter 29, that perform lending functions, lending institutions, insurance companies and other private businesses in the commonwealth to encourage financing the funding and expansion of diverse businesses. SDO may provide assistance to diverse businesses in their efforts to obtain loan money and operating capital from private and public lenders.
(g) SDO may seek to increase the amount of financial assistance available to diverse businesses from private financial institutions; and may, from time to time, sponsor conferences, workshops or other informational programs.
(h) SDO shall seek to encourage voluntary assistance programs by which nondiverse business employees are loaned to diverse businesses or by which diverse business persons are taken into viable business ventures to acquire training and experience in managing business affairs.
(i) SDO may encourage state contract awarding authorities to seek to increase the incidence of joint ventures between nondiverse state contractors and diverse contractors, by specifically pointing out that such arrangements would constitute one method of partially meeting diversity requirements imposed upon both nondiverse state contractors and the state. SDO shall follow advertisements for construction work by public bodies in the commonwealth, shall notify minority and women and veteran general contractors and subcontractors of the bid opening dates for the approximate amount of the contract and subcontract work being bid, may assist them in securing bonds and in bidding for that construction work and shall initiate a program to help qualified minority persons and women to get started as small business firms in the construction field by helping to arrange joint ventures with qualified general contractors and subcontractors and by arranging for administrative and accounting assistance to help them carry out their subcontract and general contract obligations during the period of contract performance.
(j) SDO shall promulgate regulations to encourage and facilitate participation on public projects for service-disabled veteran-owned businesses and veteran-owned businesses interested in and capable of providing construction and design services on public construction and design projects.
(k) SDO shall, every 3 years and in consultation with the department of veterans' services, establish goals for participation of service-disabled veteran-owned businesses and veteran-owned businesses in all areas of state procurement contracting, including contracts for public construction, design services and commodities and service. In calculating such goals, the SDO shall base the determination on an understanding of the pool of service-disabled veteran-owned businesses and veteran-owned businesses available for participation.
(l) SDO shall submit by March 15 of each year an annual report to the governor, lieutenant governor, secretariats, and the general court on the prior year performance of all commonwealth supplier diversity and small business programs, including but not limited to the supplier diversity program, the MassDOT M/WBE program, the small business purchasing program and the affirmative marketing program, the SDO's certification efforts, the diverse businesses which it assists, the type of services which it renders and the difficulties it encounters. The report may include recommendations for legislative or executive action. All agencies shall cooperate with the SDO in the preparation of this report, including providing any requested data or contractor reports to be included in the final SDO report. Said report shall include data and information for construction and goods and services diversity programs, including, but not limited to, data provided by the division of capital asset management and maintenance and the Massachusetts Department of Transportation. All officials, agencies and political subdivisions of the commonwealth shall supply such data, information or assistance as requested by the SDO not later than December 15 of each year.
(m) The SDO shall establish and maintain a compliance unit for the purposes of ensuring certification, contract and program compliance. SDO shall, after notice and an opportunity to be heard, impose administrative penalties on an applicant for certification or recertification that knowingly provides false or misleading information on its application or in support of its application for certification or recertification as a diverse business, or on a person who fails to comply with any provision of any regulation or approval issued or adopted by the agency or of any law which the agency has the authority or responsibility to enforce.
The SDO shall also, after notice and an opportunity to be heard, impose administrative penalties on contractors for knowingly misreporting spending with or the identity of diverse business partners. For agency contracts that are determined by the SDO to be non-compliant with the applicable diversity program, the SDO shall make a recommendation to the agency to take corrective action against the contractor. The agency shall make the determination as to whether to suspend or terminate the contract or take other corrective actions in order to bring the contractor into compliance.
The SDO shall provide assistance to agencies in achieving diversity program goals and benchmarks. The SDO may refer an agency that fails to meet applicable program spending goals or benchmarks or to provide data, information or assistance as requested by the SDO on or before December 15 of each year to the operational services division, the division of capital asset management and maintenance or the appropriate oversight agency for consideration of whether to suspend or limit the procurement authority delegated to such agency or take other appropriate corrective actions.
(n) The executive director shall consult with the commissioner of capital asset management and maintenance on the establishment of the affirmative marketing program. The affirmative marketing program shall be established for the purpose of ensuring the fair participation of minority-owned and women-owned businesses on capital facility projects and state assisted building projects. The commissioner of capital asset management and maintenance, in consultation with the executive director, shall establish participation goals for minority-owned and women-owned business on capital facility projects and state assisted building projects. Participation goals for minority-owned business and women-owned business shall be based upon the broadest and most inclusive pool of available minority-owned businesses and women-owned businesses interested in and capable of performing construction work and design services on such capital facility projects and state assisted building projects. The executive director and the commissioner of capital asset management and maintenance shall meet on a quarterly basis to determine the status of implementation of the affirmative marketing program and what further steps both agencies deem necessary to achieve the purposes of section 6 of chapter 7C and this subsection. For purposes of this section, the terms "capital facility project'', "state assisted building project'', "minority-owned business'' and "women-owned business'' shall have the same meanings as found in section 6 of chapter 7C.
(o) In connection with the affirmative marketing program, SDO shall regularly review and, where necessary, modify its certification process to ensure that it operates effectively, and shall report annually to the secretary regarding these matters.
(p) SDO shall be responsible for the overall management, monitoring, and enforcement of the affirmative marketing program as it relates to minority-owned businesses and women-owned businesses participation on state assisted building projects. The executive director may appoint a program director to assist in program development, coordination of program operations and compliance with program goals and objectives. The program director shall also have responsibility for monitoring compliance regarding minority-owned businesses and women owned businesses participation on state assisted building projects, addressing program violations and coordinating enforcement activities.
(q) The executive director shall develop written procedures by which participation goals, for an individual state assisted building project, may be adjusted for minority-owned businesses, women-owned businesses or both; but, the adjustment shall be based upon the actual availability of minority-owned businesses and women-owned businesses, the geographic location of the project, the scope of work of the capital facility project or other relevant factors.
(r) The executive director shall develop a written waiver procedure by which, at any time before the award of a contract, it may be determined that compliance with the participation goals is not feasible and by which the participation goals on a state assisted building project may be reduced or waived. Waiver shall be granted only upon a showing that good faith efforts have been made to comply with the participation goals.
(s) The executive director and the commissioner of capital asset management and maintenance shall by March 15 of each year submit to the joint committee on state administration and regulatory oversight, the house and senate committees on ways and means, the clerks of the house and senate, a report on the performance of the affirmative marketing program for the preceding year. The report shall, at a minimum, show the name and address of each such minority-owned business and women-owned business, its designation as a minority-owned or women-owned business, the contract or subcontract price, a description of the work performed on the contract by class of work, and project type, and shall show separately the total number of contracts awarded to minority-owned and women-owned businesses as a percentage of the total number of contracts awarded and as a percentage of the total contract price.
(t) The executive director shall adopt regulations necessary to implement this section.
(u) The SDO shall, every 2 years and in consultation with the Massachusetts Office on Disability, establish goals for participation of individuals with disabilities in all areas of state procurement contracting. Participation goals may be met by contracting or subcontracting with businesses that are owned by persons with disabilities or that hire, or identify and recruit with the intent to hire, qualified applicants with disabilities. SDO shall provide assistance to the secretariats in determining opportunities for contracting with businesses that hire persons with disabilities to meet the participation goal set forth in this subsection, including contractors and subcontractors providing goods and services under multi-year contracts or grants funded by agencies within the executive offices.
SDO shall include in the annual report set forth subsection (l) an update concerning the progress made toward meeting the participation goals set forth in this subsection.