North Carolina § 143-48 - State policy; cooperation in promoting the use of small contractors, minority contractors, physically handicapped contractors, and women contractors; purpose; required annual reports.

§ 143-48. State policy; cooperation in promoting the use of small contractors, minority contractors, physically handicapped contractors, and women contractors; purpose; required annual reports.

Policy. - It is the policy of this State to encourage and promote the use of small contractors, minority contractors, physically handicapped contractors, and women contractors in State purchasing of goods and services. All State agencies, institutions and political subdivisions shall cooperate with the Department of Administration and all other State agencies, institutions and political subdivisions in efforts to encourage the use of small contractors, minority contractors, physically handicapped contractors, and women contractors in achieving the purpose of this Article, which is to provide for the effective and economical acquisition, management and disposition of goods and services by and through the Department of Administration. Reporting. - Every governmental entity required by statute to use the services of the Department of Administration in the purchase of goods and services, every local school administrative unit, and every private, nonprofit corporation other than an institution of higher education or a hospital that receives an appropriation of five hundred thousand dollars ($500,000) or more during a fiscal year from the General Assembly shall report to the department of Administration annually on what percentage of its contract purchases of goods and services, through term contracts and open-market contracts, were from minority-owned businesses, what percentage from female-owned businesses, what percentage from disabled-owned businesses, what percentage from disabled business enterprises and what percentage from nonprofit work centers for the blind and the severely disabled. The same governmental entities shall include in their reports what percentages of the contract bids for such purchases were from such businesses. The Department of Administration shall provide instructions to the reporting entities concerning the manner of reporting and the definitions of the businesses referred to in this act, provided that, for the purposes of this act: Except as provided in subdivision (1a) of this subsection, a business in one of the categories above means one: In which at least fifty-one percent (51%) of the business, or of the stock in the case of a corporation, is owned by one or more persons in the category; and Of which the management and daily business operations are controlled by one or more persons in the category who own it. A "disabled business enterprise" means a nonprofit entity whose main purpose is to provide ongoing habilitation, rehabilitation, independent living, and competitive employment for persons who are handicapped through supported employment sites or business operated to provide training and employment and competitive wages. A "nonprofit work center for the blind and the severely disabled" means an agency: Organized under the laws of the United States or this State, operated in the interest of the blind and the severely disabled, the net income of which agency does not inure in whole or in part to the benefit of any shareholder or other individual; In compliance with any applicable health and safety standard prescribed by the United States Secretary of Labor; and In the production of all commodities or provision of services, employs during the current fiscal year severely handicapped individuals for (i) a minimum of seventy-five percent (75%) of the hours of direct labor required for the production of commodities or provision of services, or (ii) in accordance with the percentage of direct labor required under the terms and conditions of Public Law 92-28 (41 U.S.C. § 46, et seq.) for the production of commodities or provision of services, whichever is less. A female or a disabled person is not a minority, unless the female or disabled person is also a member of one of the minority groups described in G.S. 143-128(2)a. through d. A disabled person means a person with a handicapping condition as defined in G.S. 168-1 or G.S. 168A-3. The Department of Administration shall compile information on small and medium-sized business participation in State contracts subject to this Article and report the information as provided in subsection (d) of this section. The report shall analyze (i) contract awards by business size category, (ii) historical trends in small and medium-sized business participation in these contracts, and (iii) to the extent feasible, participation by small and medium-sized businesses in the State procurement process as dealers, service companies, and other indirect forms of participation. The Department may require reports on contracting by business size in the same manner as reports are required under subsection (b) of this section. The Department of Administration shall collect and compile the data described in this section and report it annually to the General Assembly. Repealed by Session Laws 2007-392, s. 1, effective October 1, 2007. In seeking contracts with the State, a disabled business enterprise must provide assurances to the Secretary of Administration that the payments that would be received from the State under these contracts are directed to the training and employment of and payment of competitive wages to handicapped employees. History (1931, c. 261, s. 1; c. 396; 1957, c. 269, s. 3; 1971, c. 587, s. 1; 1975, c. 879, s. 46; 1983, c. 692, s. 2; 1989 (Reg. Sess., 1990), c. 1051, s. 1; 1993, c. 252, s. 1; 1995, c. 265, s. 2; 1999-20, s. 1; 1999-407, s. 1; 2003-147, s. 6; 2004-203, s. 72(b); 2005-270, s. 1; 2007-392, s. 1.) Local Modification. - (As to Chapter 143 , Article 3) Piedmont Triangle International Authority: 1998-55, s. 11; 2002-146, 2.8 (expires January 1, 2010). State Government Reorganization. - The Purchase and Contract Division remains in the Department of Administration under G.S. 143B-368 , enacted by Session Laws 1975, c. 879, which repealed former G.S. 143A-82. Certification as E-Procurement Compliant. - Session Laws 2003-147, s. 10(a) through (e), contains provisions encouraging local school administrative units to use the NC E-procurement Service for their purchasing requirements. DOA Allocate or Lease Office Space for Bipartisan State Board of Elections and Ethics Enforcement. - Session Laws 2017-57, s. 31.4(a), (b), provides: "(a) Not later than August 1, 2017, the Department of Administration shall allocate office space in a State-owned or leased facility or enter into a lease for office space in a non-State-owned facility to be used by the Bipartisan State Board of Elections and Ethics Enforcement (hereinafter "State Board"). The square footage of the office space required by this section shall be not less than the total square footage of the facilities occupied on the date this act becomes law by the State agencies that were consolidated in S.L. 2017-6 to establish the State Board (being the State Board of Elections, State Ethics Commission, and Secretary of State personnel identified in Section 20 of S.L. 2017-6). Not later than September 1, 2017, the State Board shall house all personnel from the State agencies described in this section in the same office facility. If the establishment of the State Board as provided in S.L. 2017-6 is temporarily or permanently enjoined by a court of law, the State agencies and personnel described in this section may remain housed in the office facility acquired as provided by this section. The Department of Administration shall make reasonable efforts to mitigate any losses caused by vacancies in facilities that result from the relocation of personnel as provided for in this section. "(b) In determining how to allocate or lease office space as required by subsection (a) of this section, the Department of Administration shall consider the requirements of the State Board, the availability of property already owned by the State or by any State agency which might meet the requirements of the State Board, and the availability of other property which might meet the requirements of the State Board. Neither the provisions of Article 3 of Chapter 143 of the General Statutes, nor Part I of Article 36 of Chapter 143 of the General Statutes, nor Article 6 of Subchapter II of Chapter 146 of the General Statutes, nor any other contrary provision of law shall apply to a lease authorized by this section." Editor's Note. - Session Laws 2003-284, s. 8.7, provides: "Notwithstanding any other provision of law, all fees collected by the Hosiery Technology Center of Catawba Valley Community College for the testing of hosiery products shall be retained by the Center and used for the operations of the Center. Purchases made by the Center using these funds are not subject to the provisions of Article 3 of Chapter 143 of the General Statutes." For similar provision, see Session Laws 2002-126, s. 8.10. Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003.'" Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium." Session Laws 2003-284, s. 49.5 is a severability clause. Session Laws 2003-435, 1st Ex. Sess., s. 1.2(c), effective December 16, 2003, provides: "Site development funded by money appropriated under this section is not subject to Article 8 of Chapter 143 of the General Statutes (public contracts) or Article 3 of Chapter 143 of the General Statutes (purchases and contracts), except where public funds are expended the provisions of G.S. 143-48 and G.S. 143-128.2 shall apply. Actions involving expenditures of public moneys or use of public lands for projects and programs involved in site development funded by money appropriated under this section are exempt from the requirements of Article 1 of Chapter 113A of the General Statutes. This exemption does not apply to an ordinance adopted under G.S. 113A-8 ." Session Laws 2008-201, s. 1, provides: "The North Carolina Department of Administration, Division of Purchase and Contract, is directed to make the following changes to its Request for Proposal criteria for a statewide tire retread contract: "(1) Require that the bids remain closed until a designated and advertised bid-opening day in which the bids are opened, announced, and recorded in public. The bids shall then be shown and made available to the public. "(2) Require that the cost of the tire retread include spot repairs and that there no longer be a separate charge for a spot repair. "(3) Include in the contract that all casings receive a state-of-the-art inspection with the use of shearography, ultrasound, electrostatic discharge, high pressure testing, or other industry standard testing methodology. "(4) Include a threshold for the number of times a casing may be retreaded. "(5) Include a threshold for the age of a casing that may be retreaded. "(6) Include the number of nail hole repairs that are permissible for a casing to be retreaded. "(7) Provide assurance that a particular fleet will receive its own casings back after retread completed. "(8) Set minimum tread depths per category or application of the retread tire. "(9) Consider a multiaward contract structure that includes several vendors; the Office of Purchase and Contract will take into account geographic location, proximity of vendor to customer, and the needs of the users when creating a multiaward contract. "(10) Provide for any method of tire retreading to be bid separately." Session Laws 2009-451, s. 9.14(b), provides: "With respect to the demonstration wind turbines and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. If Senate Bill 1068, 2009 Regular Session, becomes law, the provisions of Part 12 of Article 21 of Chapter 143 of the General Statutes as enacted by that act shall not apply to the facilities authorized by this section. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application." Senate Bill 1068, 2009 Regular Session, did not become law. Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'." Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium." Session Laws 2009-451, s. 28.5, is a severability clause. Session Laws 2010-31, s. 8.8(b), provides: "Notwithstanding any other provision of law, all fees collected by the Manufacturing Solutions Center of Catawba Valley Community College for the testing of products shall be retained by the Center and used for the operations of the Center. Purchases made by the Center using these funds are not subject to the provisions of Article 3 of Chapter 143 of the General Statutes." Session Laws 2010-31, s. 9.10(a) and (b), provides: "(a) The General Assembly finds that strengthening research and development efforts on renewable energy sources is critical to North Carolina's environment and economy, and that recent events resulting from the British Petroleum oil spill amplify the need for North Carolina's innovators and scientists to enhance their efforts to develop sustainable energy sources and technologies that do not threaten the health and well-being of the State's waters, sensitive lands, and residents. In order to provide opportunities for research into tidal, wave, and other ocean-based sources of alternative energy, the University of North Carolina Coastal Studies Institute shall form a consortium with the Colleges of Engineering at North Carolina State University, North Carolina Agricultural and Technical State University, and the University of North Carolina at Charlotte to study the capture of energy from ocean waves. The Coastal Studies Institute shall be designated the lead agency in coordinating these efforts. Funding appropriated by this act shall be used by university scientists to conceptualize, design, construct, operate, and market new and innovative technologies designed to harness and maximize the energy of the ocean in order to provide substantial power generation for the State. Funding may be used to leverage federal or private research funding for this purpose, but may not be used to purchase and utilize technology that has already been developed by others unless that technology is a critical component to North Carolina's research efforts. Wave energy technologies developed and used for this research may be attached to or staged from an existing State-owned structure located in the ocean waters of the State, and data generated by these technologies shall be available at this structure for public education and awareness. It is the intent of the General Assembly that North Carolina become the focal point for marine-based ocean research collaborations involving the nation's public and private universities. "(b) With respect to the demonstration wave energy facility and necessary support facilities authorized by subsection (a) of this section, the facilities authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except that the State Property Office shall expedite and grant all easements and use agreements required for construction of the facilities without payment of any fee, royalty, or other cost. Notwithstanding any other provision of law, construction of the facilities authorized by this section shall be exempt from the following statutes and rules implementing those statutes: G.S. 143-48 through 143-64, 143-128, 143-129, 143-132, 113A-1 through 113A-10, 113A-50 through 113A-66, and 113A-116 through 113A-128. With respect to any other environmental permits required for construction of the facilities, the Department of Environment and Natural Resources is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application." Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'." Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year." Session Laws 2010-31, s. 32.6, is a severability clause. Session Laws 2010-147, ss. 8.1 and 8.2, provide: "8.1. The General Assembly makes the following findings: "(1) A multiple award schedule contract is one that allows multiple vendors to be awarded a State contract for goods or services by providing their total catalogue for lines of equipment and attachments to eligible purchasers, including State agencies, departments, institutions, public school districts, political subdivisions, and higher education facilities. "(2) A multiple award schedule contract allows multiple vendors to compete and be awarded a contract based upon the value of their products or services. "(3) A properly administered multiple award schedule contract allows the State to evaluate vendors based on a variety of factors, including discounts, total life cycle costs, service, warranty, distribution channel, and past vendor performance. "(4) Under appropriate circumstances, multiple award schedule contracts result in competitive pricing, transparency, administrative savings, expedited procurement, and flexibility for State purchasers. "8.2. The North Carolina Department of Administration is strongly encouraged to consider the use of multiple award schedule contracts when issuing requests for proposals for State term contracts." Session Laws 2015-241, s. 14.5(b), provides: "The General Assembly finds that there is a need for timely initiation of projects authorized by this section during the biennium to expedite mitigation of impaired waters of the State. Therefore, any contract, contract extension, lease, purchase, or other agreement entered into under this section shall not be subject to the requirements of Article 3, 3D, or 8 of Chapter 143 of the General Statutes in order to expedite deployment. Session Laws 2015-241, s. 14.5(a), (c), and (d) provided for funding to continue the Jordan Lake Nutrient Mitigation Demonstration Project established in Session Laws 2013-360, s. 14.3A; for an effective date delay for modification of existing or proposed rules related to basinwide nutrient management and mitigation of water quality of impaired water bodes; and for a study [due no later than April 1, 2016] of in situ strategies beyond traditional watershed controls that have the potential to mitigate water quality impairments resulting from water quality variables that impair or have the potential to impair water bodies of the State." However, Session Laws 2015-241, s. 14.5(a) and (c) were repealed by Session Laws 2016-94, s. 14.13(b) and further provided that: "the Department shall terminate the demonstration project authorized by that section. Any funds allocated under subsection (a) of Section 14.5 of S.L. 2015-241 that are unspent and unencumbered on the effective date of this act shall revert to the Clean Water Management Trust Fund." Session Laws 2016-94, s. 14.13(j) provides: "Subsection (b) of this section becomes effective on the earlier of July 1, 2016, or the date of termination of a contract related to in situ water quality remediation strategies that was previously extended pursuant to Section 14.5 of S.L. 2015-241." Session Laws 2015-241, s. 1.1, provides: "This act shall be known as `The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium." Session Laws 2015-241, s. 33.6, is a severability clause. Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'" Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Session Laws 2017-113, s. 3, provides: "The facility authorized under this act shall be constructed in accordance with the provisions of general law applicable to the construction of State facilities, except as otherwise provided in this section. Notwithstanding any other provision of law, construction of the facilities authorized by this act shall be exempt from the following statutes and rules implementing those statutes: Articles 3 and 8 of Chapter 143 , Articles 1 and 4 of Chapter 113A . Notwithstanding G.S. 146-11 and Article 16 of Chapter 146 of the General Statutes, the approval of the Council of State shall not be required for the granting of easements for the facility authorized under this act. With respect to any other environmental permits required for construction of the facility, the Department of Environmental Quality is directed to expedite permitting of the project to the extent allowed by law and shall waive any application fees that would be otherwise applicable to applications for permits required for the facilities and, where possible under applicable law, issue all permits within 40 days of receipt of a complete application." Session Laws 2020-17, s. 7(b), provides: "Notwithstanding Article 3 of Chapter 143 of the General Statutes, the State Board of Elections is not required to comply with initial purchase and contract requirements for establishing or securing the Internet Web site for online requests for absentee ballots as required by subsection (a) of this section. This exemption expires December 31, 2020." Session Laws 2021-4, s. 3(a), (b), provides: "(a) Within federal funds available, the Department of Public Instruction shall contract with Duke University for the ABC Science Collaborative of the School of Medicine at Duke University (ABC Collaborative) to provide data collation, analysis, and interpretation of COVID-19-related metrics of student, teacher, and staff safety for local school administrative units providing in-person instruction under Plan A for middle and high school students. The contract shall allocate five hundred thousand dollars ($500,000) to Duke University for these services. The contract shall require the ABC Collaborative to engage in close monitoring of infection data through assessing within-school transmission rates based on contact tracing and confirmatory testing with partner local school administrative units to evaluate the fidelity and adherence to mitigation strategies which enable in-person instruction, as provided in the StrongSchoolsNC Public Health Toolkit (K-12). The contract shall require the ABC Collaborative to request only de-identified, aggregate data from partnering units. The contract shall require the ABC Collaborative to report on its findings to the Joint Legislative Education Oversight Committee, the Senate Education/Higher Education Committee, the House Education K-12 Committee, the Department of Public Instruction, the State Board of Education, the Department of Health and Human Services, and the Office of the Governor as follows: "(1) Interim analysis. - An interim analysis of aggregate data for all partnering units shall be submitted no later than the last calendar day of March, April, and May of 2021. '(2) Final analysis. - A final analysis of both aggregate and individual partnering local school administrative unit data shall be submitted no later than June 30, 2021. "(b) The Department of Public Instruction shall execute the contract with Duke University required by this act no later than the fifteenth day after this act becomes law, and shall disburse the funds allocated by the contract to Duke University within five days of execution of the contract. The contract the Department of Public Instruction enters into shall terminate no later than September 15, 2021. The contract required by this act shall not be subject to Article 3 or Article 8 of Chapter 143 of the General Statutes, or any other provision of law relating to initial purchase and contract requirements in completing the contract." Effect of Amendments. - Session Laws 2005-270, s. 1, effective August 12, 2005, added subsection (d1). Session Laws 2007-392, s. 1, effective October 1, 2007, deleted subsection (d1), relating to the adoption of rules and regulations for certification of a business under this section as a historically underutilized business, regarding the creation and maintenance of a database of the businesses certified as historically underutilized businesses. Legal Periodicals. - For comment, "Employment and Diversity-Based Visas: Why Birthright Citizenship Is Not All That Is Wrong with America's Immigration System," see 39 Campbell L. Rev. 413 (2017). Opinions of Attorney General Contracts with Experts, Consultants, or Other Professional Advisors to Review Conversion Plans Are Exempt from Articles 3 and 3C of Chapter 143 . - The Commissioner of Insurance has statutory authority to contract with experts, consultants, or other professional advisors to review conversion plans without adhering to the requirements set forth in Articles 3 and 3C of Chapter 143 , G.S. 143-48 et seq. and G.S. 143-64.20 et seq.; the only statutory requirement that must be met by the Commissioner is that the costs for the personal professional service contracts must not exceed an amount that is reasonable and appropriate for the review of the plan. See opinion of Attorney General to Peter A. Kolbe, General Counsel, North Carolina Department of Insurance, 2001 N.C. AG LEXIS 28 (8/24/01).