Amended
IN
Senate
June 24, 2021 |
Amended
IN
Assembly
May 24, 2021 |
Amended
IN
Assembly
March 25, 2021 |
Introduced by Assembly Member Chau |
December 07, 2020 |
Existing law states the intent of the Legislature that those policies and procedures developed by the Department of Technology and the Department of General Services provide for, among other things, the expeditious and value-effective acquisition of information technology goods and services to satisfy state requirements. Existing law provides that, for these purposes, “value-effective acquisition” may be defined to include, among other things, the operational cost that the state would incur if the bid or proposal is accepted, the quality of the product or service, or its technical competency, and innovative use of current technologies and quality results.
Existing law requires contract awards for all large-scale systems integration projects to be based on the proposal that provides the most value-effective solution to the state’s requirements, as determined by the evaluation criteria contained in the solicitation document. Existing law requires evaluation criteria for the acquisition of information technology goods and services, including systems integration, to provide for the selection of a contractor on an objective basis not limited to cost alone. Existing law requires specified processes and procedures for the solicitation for acquisitions, the evaluation of proposals, the selection of contractors, and the consideration of protests by participating bidders.
The bill would require contract awards for goods or services that include the use, licensing, or development of an automated decision system for a high-risk application, as defined, to be based on the proposal that provides the most value-effective solution to the state’s requirements, as determined by the evaluation criteria contained in the solicitation document, and to be determined based on comprehensive assessment of objective criteria not limited to cost alone. The bill would require awarding of contracts subject to the bill’s provisions to be conducted pursuant to the requirements referenced above for awarding contracts for large-scale integration projects based on the proposal that provides the most value-effective solution to the state’s requirements. Under the bill, to be considered responsive to a solicitation for these contracts, a bid response would be required to include an automated decision system impact assessment that makes
certain disclosures, including, among others, certain tests of the system to help assess risks posed to the privacy or security of personal information and risks that may result in inaccurate, unfair, biased, or discriminatory decisions impacting natural persons.
The bill would authorize a local agency, for a contract for a good or service that includes the use, licensing, or development of an automated decision system for a high-risk application, to require a bid response submitted by a prospective contractor to include an automated decisions system impact assessment in order to be considered responsive to the solicitation. The bill would also authorize
the local agency to base the contract award on the proposal that provides the most value-effective solution to the agency’s requirements pursuant to the above-described provisions of the bill.
(a)For purposes of this section, “value-effective” has the same meaning as that term is defined in Chapter 3.3 (commencing with Section 12114) of Part 2.
(b)Notwithstanding any other provision of law requiring a local agency to award contracts to the lowest responsible bidder, a local agency may, for a contract for a good or service that includes the use, licensing, or development of an automated decision system for a high-risk application, do both of the following:
(1)Require a bid response submitted by a prospective contractor to include an automated decision system impact assessment in order to be considered
responsive to the solicitation.
(2)Base the contract award on the proposal that provides the most value-effective solution to the agency’s requirements, pursuant to Chapter 3.3 (commencing with Section 12114) of Part 2.
(d)“Value-effective” includes, but is not limited to, the following:
(1)The quality and effectiveness of steps taken by the prospective contractor to prevent disparate impacts on the basis of characteristics identified in the Unruh Civil Rights Act (Section 51 of the Civil Code).
(2)The extent and quality of the internal policy adopted by the prospective contractor for how bias in the automated decision system, is identified and mitigated to prevent disparate impacts on
the basis of characteristics identified in the Unruh Civil Rights Act (Section 51 of the Civil Code), and how it will respond to claims or evidence of bias that may arise within the terms of the contract.
(a)Contract awards for goods or services that include the use, licensing, or development of an automated decision system for a high-risk application shall be based on the proposal that provides the most value-effective solution to the state’s requirements, as determined by the evaluation criteria contained in the solicitation document, and shall be determined based on comprehensive assessment of objective criteria not limited to cost alone.
(b)Awarding of contracts subject to this chapter, including, but not limited to, solicitation for acquisitions, evaluation of proposals, and selection of contractors, shall be conducted pursuant to the requirements specified in Section 12102.2 for awarding contracts based on the proposal that provides the most value-effective solution to the state’s requirements.
(c)A bid response submitted by a prospective contractor for a good or service that includes the use, licensing, or development of an automated decision system for a high-risk application shall not be considered responsive to the solicitation document unless the bid response includes an automated decision system impact assessment that makes the following disclosures to the contracting agency:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(A)
(B)
(C)
(8)
(9)
(a)The name, vendor, and version of the automated decision system.
(b)The type or types of data that will be used as inputs for the automated decision system, how that data will be generated, collected, and processed, and the type or types of data the system is likely to generate in the course of its proposed use.
(c)A description of the purpose of the automated decision system, including what decision or decisions it will be used to make or support, and a detailed determination of whether, and how, the system serves reasonable objectives and furthers a legitimate interest.
(d)A clear use and data management policy that includes protocols
for the following:
(1)How and when the automated decision system will be deployed or used and by whom, including, but not limited to, the relevant technical expertise of the user or users, the factors that will be used to determine where, when, and how the technology will be deployed, whether the technology will be operated continuously or used only under specific circumstances, if the system will be operated or used by another entity on behalf of the agency, and, if so, an explicit description of the conditions of that entity’s access and applicable protocols.
(2)Any additional rules and processes that will govern the use of the automated decision system.
(3)How automated decision system data will be securely stored and
accessed, whether the agency intends to share access to the automated decision system or the data from that automated decision system with any other entity, and, if so, the purpose for sharing that access or data, the specific entities with whom that access or data will be shared, and the manner in which that access or data will be shared, including, but not limited to, specific protocols to ensure compliance with any applicable privacy and security laws.
(4)How the agency will ensure that all personnel who operate the automated decision system or access its data are knowledgeable about, and able to ensure compliance with, the use and data management policy prior to the use of the automated decision system and throughout its contracted use.
(e)A description of how the agency
will ensure that all personnel responsible for the adoption and operation of the automated decision system understand the system’s decisional criteria, the respective weights of those criteria, and the factors that may affect or underlie specific results the system produces.
(f)A description of any public or community engagement that has been carried out, and any intended future public or community engagement, pertaining to the use of the automated decision system.
(g)A description of any potential disparate impacts on the basis of characteristics identified in the Unruh Civil Rights Act (Section 51 of the Civil Code) from the proposed use of the automated decision system, and a detailed mitigation plan for identifying and minimizing the potential for any disparate impacts
throughout the contracted use of the system, including, but not limited to, any procedures to regularly audit its performance.
(h)A description of the fiscal impact of the use, licensing, and deployment of the automated decision system, including, but not limited to, initial acquisition costs, ongoing operating costs such as maintenance, personnel, legal compliance, auditing, data retention, and security costs, and any cost savings that would be achieved through the use of the automated decision system, as well as a comparison with the costs of alternative solutions for achieving the agency’s purposes.
(i)
(j)