HOUSE BILL NO.440 (2020) - State discrimination, public

HOUSE BILL NO.440 (2020) - State discrimination, public
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LEGISLATURE OF THE STATE OF IDAHO

Sixty-fifth Legislature

Second Regular Session - 2020

Moved by

Harris

Seconded by Vick

IN THE SENATE

SENATE AMENDMENT TO H.B. NO. 440

AMENDMENT TO SECTION 1

On page 1 of the printed bill, in line 11, following "EDUCATION" delete

"--"; in line 12, delete "PUBLIC CONTRACTING"; in line 14, following "em-

ployment" delete "," and insert: "or"; in line 15, delete ", or public con-

tracting"; in line 20, delete ", public education, or public contracting"

and insert: "or public education"; following line 31, insert:

"(7) Nothing in this section shall be interpreted as prohibiting ac-

tion that must be taken to establish or maintain eligibility for any federal

program where ineligibility would result in a loss of federal funds to the

state.";

and in line 32, delete "7" and insert: "8".

AMENDMENT TO THE BILL

On page 1, following line 35, insert:

"SECTION 2. That Chapter 28, Title 67, Idaho Code, be, and the same is

hereby amended by the addition thereto of a NEW SECTION, to be known and des-

ignated as Section 67-2802A, Idaho Code, and to read as follows:

67-2802A. DISCRIMINATION IN PROCUREMENT PROHIBITED. Political subdi-

visions of the state of Idaho in their procurements governed by this chapter

shall not discriminate against, or grant preferential treatment to, any in-

dividual or group on the basis of race, sex, color, ethnicity, or national

origin unless permitted by an exception described in section 67-5909A, Idaho

Code.

SECTION 3. That Section 67-2809, Idaho Code, be, and the same is hereby

amended to read as follows:

67-2809. LEGISLATIVE INTENT -- PUBLIC WORKS -- AGREEMENTS -- SAVINGS

-- SEVERABILITY. (1) It is the intent of the legislature to provide for the

efficient and cost-effective 

procurement of goods and services by political

subdivisions as market participants.

(2) Notwithstanding any other provision found in chapter 10, title 44,

Idaho Code, chapter 28, title 67, Idaho Code, and chapter 57, title 67, Idaho

Code, the following shall apply:

(a) This act shall be known as the "Open Access to Work Act."

(b) For purposes of this section, the following terms have the follow-

ing meanings:

(i) "Political subdivision" means the state of Idaho, or any

county, city, school district, sewer district, fire district

2

or any other taxing subdivision or district of any public or

quasi-public corporation of the state, or any agency thereof,

or with any other public board, body, commission, department or

agency, or officer or representative thereof;

(ii) "Public works" shall have the same meaning as that provided

for "public works construction" in section 54-1901, Idaho Code.

(c) (i) Except as provided in subsection (2)(c)(ii) of this section

or as required by federal or state law, the state or any politi-

cal subdivision that contracts for the construction, alteration,

equipping, furnishing, maintenance, repair or improvement of

public works shall not require that a contractor, subcontractor,

material supplier or carrier engaged in the construction, alter-

ation, equipping, furnishing, maintenance, repair or improvement

of public works pay its employees:

1. A predetermined amount of wages or wage rate; or

2. A type, amount or rate of employee benefits.

(ii) Subsection (2)(c)(i) of this section shall not apply when

federal law requires the payment of prevailing or minimum wages to

persons working on projects funded in whole or in part by federal

funds.

(d) The state or any political subdivision that contracts for the con-

struction, alteration, equipping, furnishing, maintenance, repair or

improvement of public works or obligates funds pursuant to such a con-

tract shall ensure that neither the awarding governmental entity nor

any construction manager acting on the governmental entity's behalf

shall:

(i) In its bid documents, specifications, project agreements or

other controlling documents for a public works construction con-

tract, require or prohibit bidders, offerors, contractors, sub-

contractors or material suppliers to enter into or adhere to pre-

hire agreements, project labor agreements, collective bargaining

agreements or any other agreement with one (1) or more labor orga-

nizations on the same or other related construction projects; or

(ii) Discriminate against, or treat differently, bidders, offer-

ors, contractors, subcontractors or material suppliers for becom-

ing or refusing to become or remain signatories or otherwise to ad-

here to agreements with one (1) or more labor organizations on the

same or other related construction projects; or

(iii) Discriminate against, or grant preferential treatment to,

any individual or group on the basis of race, sex, color, ethnic-

ity, or national origin unless permitted by an exception described

in section 67-5909A, Idaho Code.

Nothing in subsection (2)(d) of this section shall prohibit bidders,

offerors, contractors, subcontractors or material suppliers from vol-

untarily entering into agreements described in subparagraph (i) of this

paragraph.

(e) Any interested party, which shall include a bidder, offeror, con-

tractor, subcontractor or taxpayer, shall have standing to challenge

any bid award, specification, project agreement, controlling document,

grant or cooperative agreement that violates the provisions of this

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section, and such interested party shall be awarded costs and attor-

ney's fees in the event that such challenge prevails.

(f) The provisions of this section apply to any contract executed after

the effective date of this act.

(3) This act does not prohibit or interfere with the rights of employ-

ers or other parties to enter into agreements or engage in any other activity

protected by the national labor relations act, 29 U.S.C. section 151, et seq.

(4) The provisions of this act are hereby declared to be severable and

if any provision of this act or the application of such provision to any

person or circumstance is declared invalid for any reason, such declaration

shall not affect the validity of the remaining portions of this act.

SECTION 4. That Section 67-9210, Idaho Code, be, and the same is hereby

amended to read as follows:

67-9210. AWARD OF CONTRACT. (1) The administrator shall award con-

tracts to, and place orders for property with, the lowest responsible

bidder. Qualifications for responsibility shall be prescribed by rule.

(2) Where both the bids and quality of property offered are the same,

preference shall be given to property of local and domestic production and

manufacture or from bidders having a significant Idaho economic presence as

defined in section 67-2349, Idaho Code. In connection with the award of any

contract for the placement of any order for state printing, binding, engrav-

ing or stationery work, the provisions of sections 60-101 and 60-103, Idaho

Code, shall apply to the extent that the same may be inconsistent with any re-

quirements contained in this section.

(3) In awarding contracts, the administrator shall not discriminate

against, or grant preferential treatment to, any individual or group on the

basis of race, sex, color, ethnicity, or national origin unless permitted by

an exception described in section 67-5909A, Idaho Code.".

CORRECTION TO TITLE

On page 1, in line 2, delete "THE COMMISSION ON HUMAN RIGHTS" and insert:

"DISCRIMINATION IN PUBLIC EMPLOYMENT, PUBLIC EDUCATION, AND PUBLIC CON-

TRACTS"; in line 6, following "REMEDIES," insert: "TO PROVIDE THAT CERTAIN

ACTIONS SHALL NOT BE PROHIBITED,"; also in line 6, following "SEVERABILITY"

insert: "; AMENDING CHAPTER 28, TITLE 67, IDAHO CODE, BY THE ADDITION OF A

NEW SECTION 67-2802A, IDAHO CODE, TO PROHIBIT DISCRIMINATION IN PROCURE-

MENT; AMENDING SECTION 67-2809, IDAHO CODE, TO PROHIBIT DISCRIMINATION IN

PROCUREMENT; AND AMENDING SECTION 67-9210, IDAHO CODE, TO PROHIBIT DISCRIM-

INATION IN 

PROCUREMENT".