(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:
(I) The members of the general assembly; and
(II) The executive director, who shall transmit a copy of the disparity study
final report produced 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:
(A) Construction, including new construction, remodeling, renovation,
maintenance, demolition and repair of any public structure or building, pipeline
construction, and other public improvements;
(B) Architecture and engineering, including construction management,
landscape architecture, planning, surveying, mapping services, and design, build,
and construction services;
(C) Professional services, including legal services, accounting, information
technology services, medical services, technical services, research planning, and
consulting services;
(D) Brokerage and investment, including banking, asset management, state
retirement, and pension services; and
(E) 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;
(II) 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
(III) 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 24-103-1002 (3)(a)(II):
(I) A prime contractor utilization analysis that presents the distribution of
prime contracts by industry;
(II) A subcontractor utilization analysis that presents the distribution of
subcontracts by the industries described in subsection (2)(a)(I) of this section;
(III) A market area analysis that presents the legal basis for the geographical
market area determination and defines the state's market area;
(IV) A prime contractor and subcontractor availability analysis that presents
the distribution of available businesses in the state's market area;
(V) 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;
(VI) A subcontractor disparity analysis that presents subcontractor
utilization compared to subcontractor availability by industry and determines
whether the comparison is statistically significant;
(VII) 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
(VIII) 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.