1. (a) DVBE statewide participation goals established in Military and Veterans Code sections 999.2, subdivision (a) and 999.5 and Public Contract Code section 10115, subdivision (c), apply to the aggregate amount annually spent by contract by the awarding departments.

2. (b) For each specific solicitation leading to a contract award, the highest ranking executive or designee of an awarding department shall establish an appropriate DVBE participation goal either less than or in excess of the statutory goal of three percent (3%). Determination factors of the appropriate level of DVBE participation, as either a prime contractor or subcontractor, include but are not limited to the following:

   1. (1) The elements of work reasonably support the specified level of DVBE participation.
   2. (2) A search of the OSDS certification database indicates sufficient DVBEs to perform the solicited work.
   3. (3) DVBE contractors, subcontractors, or suppliers have performed elements of the work on similar contracts.
   4. (4) Bidders historically have achieved or have not achieved the specified level of participation.

3. (c) The awarding department's highest ranking executive or designee may exempt a solicitation from DVBE participation. Determination factors for such exemption include, but are not limited to the following:

   1. (1) Few or no DVBE subcontracting opportunities.
   2. (2) Subcontracting the work is not normal for the industry.
   3. (3) Work is so specialized that few or no DVBEs can perform it.
   4. (4) Procurement pursuant to Government Code section 14838.5, subdivision (a) or 14838.7, subdivision (a).
4. (d) To qualify as a responsive bidder for contracts requiring DVBE participation, a bidder shall document at or prior to the time of bid opening a commitment to fulfill the participation goal, in addition to meeting all other requirements.

5. (e) The commitment to achieve the participation goal is satisfied when the awarding department determines that the bidder is either:

   1. (1) A DVBE who performs a Commercially Useful Function (CUF), as section 1896.71 requires, and meets or exceeds the participation goal stated in the solicitation; or
   2. (2) A non-DVBE who uses one or more DVBEs to perform a CUF and who meets or exceeds the participation goal stated in the solicitation.

6. (f) The awarding department shall find that a DVBE joint bid has met the participation goal providing the joint bidders satisfy all of the following conditions:

   1. (1) At least one partner is a DVBE; and
   2. (2) At least one DVBE partner is responsible for a clearly defined portion of the work. The work shall be identified as a task, as a percentage, and as a dollar amount of the overall bid.

7. (g) The bidder's authorized representative shall include the following:

   1. (1) The name of each DVBE proposed for use in the contract;
   2. (2) The dollar amount and percentage each DVBE shall perform in comparison to the total contract dollar amount; and
   3. (3) A description of the tasks each DVBE will perform.
8. (h) Contracts between the state and other government agencies including public colleges as well as agreements executed for subvention aid or local assistance, or to provide assistance to local governments and aid to the public directly or through an intermediary, such as a non-profit corporation, are exempt from DVBE participation requirements.
9. (i) Contracts with auxiliary organizations or foundations of public colleges and universities are not subject to DVBE participation requirements when the agency directly contracts for work utilizing the organization's staff or students.

Note: Authority cited: Sections 14600 and 14839, Government Code; and Section 999.5, Military and Veterans Code. Reference: Sections 14615, 14838.5 and 14838.7, Government Code; Sections 999, 999.1, 999.2, 999.5, 999.55 and 999.7, Military and Veterans Code; and Sections 10115, 10115.2, 10115.9 and 10230, Public Contract Code.

History

1. New section “Definitions” filed 4-22-91; operative 5-22-91 (Register 91, No. 20).

2. New section “DVBE Certification” filed 11-4-93 as an emergency; operative 11-4-93 (Register 93, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-7-94 or emergency language will be repealed by operation of law on the following day.

3. Change without regulatory effect renumbering former section 1896.70 “Definitions” to section 1896.100 filed 1-27-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 4).

4. Editorial correction restoring inadvertently deleted section “DVBE Certification” (Register 94, No. 5).

5. New section “DVBE Certification” refiled 2-23-94 as an emergency; operative 2-23-94 (Register 94, No. 8). A Certificate of Compliance must be transmitted to OAL by 6-23-94 or emergency language will be repealed by operation of law on the following day.

6. Editorial correction deleting section heading, Note and History for former section 1896.70 “Definitions” and amending History notes (Register 94, No. 14).

7. Certificate of Compliance as to 2-23-94 order transmitted to OAL 6-23-94 with repealer of subchapter and article headings and amendment of subsections (b)-(b)(1) filed 8-5-94 (Register 94, No. 31).

8. Editorial correction amending subsection (b)(1) (Register 94, No. 39).

9. New article 2 heading and repealer and new section heading, section and Note filed 2-14-2013; operative 4-1-2013 (Register 2013, No. 7).

10. Amendment of section and Note filed 11-29-2018; operative 1-1-2019 (Register 2018, No. 48).

11. Amendment of subsections (a)-(b), (c), (c)(4) and (e)(1) and amendment of Note filed 6-29-2023; operative 6-29-2023 pursuant to Government Code section 11343.4(b)(3) (Register 2023, No. 26).