2. Background and Procedural History
In 1986, the California Legislature enacted Public Utilities (Pub. Util.) Code §§8281-8285 which made findings about the economic benefits of full and free participation by women-, minority-, and disabled veteran-owned business enterprises (WMDVBEs) in utility procurement, an area where these businesses had previously received a low proportion of procurement awards. Among other interests, the Legislature declared that by encouraging expansion of the number of potential suppliers, competition grows and economic efficiencies result to the benefit of ratepayers. The Legislature required electrical, gas, and telephone corporations with gross annual revenues exceeding $25 million (utilities) or reporting companies to submit annual plans for increasing WMDVBE participation in procurement and annual reports on implementation of the plans.3 In 2009, the Legislature added water corporations to the list of reporting companies, although most were already voluntarily submitting reports. That change brought the number of reporting companies to about 30.
Pursuant to §8284, the Commission adopted General Order (GO) 156 in 1988 to establish criteria for determining eligibility of WMDVBEs for procurement and to develop an outreach program to inform and recruit WMDVBE's to apply for procurement contracts. GO 156 has been modified through a number of subsequent Commission decisions to respond to the concerns of interested parties, market considerations, and other circumstances.
Rulemaking (R.) 09-07-027 was issued on July 30, 2009 to review the impact of GO 156 and its success in encouraging Commission-regulated utilities to seek the full and fair participation of WMDVBEs in their private procurement programs. The Order Instituting Rulemaking (OIR) included consideration of amendments and other actions or measures to help grow the number of qualified suppliers, encourage competition, and promote economic efficiencies.
As required by Rule 7.1(d),4 the OIR provided a preliminary scoping memo, including a preliminary category of proceeding as quasi-legislative and an assessment that issues could be resolved through workshops and comments without the need for hearings. The preliminary scope of this proceeding was initially as follows:
The general scope of this proceeding is to review the impact, success, target goals, and disparities within procurement areas of utility General Order 156 programs. The scope also includes consideration of the economic efficiencies of compliance, information sharing to improve performance, integration of new procurement areas such as "green" energy-related contracts, and examination of diversity and continuity in each utility's workforce.5
The OIR provided a series of questions to be addressed by the parties. The Commission sought input from energy, telecommunications, and water utility companies as well as diverse community organizations including those representing small business enterprises owned by women, minorities, and disabled veterans, and other groups interested in diversity in the utility supply chain and workforce. All those who filed Responses or Opening or Reply Comments have become parties to this rulemaking.
Pursuant to the OIR, responses and opening comments were to be filed by September 30, 2009 and reply comments were to be filed by October 30, 2009. There was a significant amount of public interest in this OIR and many groups that wanted to participate heard about the opportunity to comment near or after these deadlines. Therefore, assigned Administrative Law Judge (ALJ) Melanie Darling extended the deadlines for filing opening and reply comments. In addition, several parties filed comments after these extended deadlines accompanied by motions to become a party and to file comments after the deadlines. In order to maximize participation, all of these motions were granted and late-filed comments were accepted into the record through mid-December.
Responses and Opening Comments were filed by Pacific Gas and Electric Company (PG&E), Southern California Edison (SCE), San Diego Gas & Electric (SDG&E)/Southern California Gas (SoCalGas), Pacificorp, AT&T California (AT&T-CA) and certain of its regulated affiliates (jointly AT&T), Verizon California and MCI Communications (jointly Verizon), CTIA-The Wireless Association (CTIA), SureWest Telephone (SureWest), California Water Association (CWA), Park Water Company (PWC), African American Voice/Black Economic Council (BEC), American Indian Chamber of Commerce (AICC), California Hispanic Chambers of Commerce (CHCC), Coalition of Utility Employees (CUE), Disability Rights Advocates (DisabRA), Elite Service Disabled Veterans Business Enterprise Alliance (Elite SDVOB), Greenlining Institute (Greenlining), the Hon. Gwen Moore, and also both the energy and telecommunications industries filed Joint Industry Opening Comments (Joint Energy and Joint Telecom, respectively).
Reply Comments were filed by PG&E, SDG&E/SoCalGas (jointly "Sempra"), SCE, Sierra Pacific Power Company (SPPC)6, Sprint Nextel (Sprint), BEC, California Asian Pacific Chambers of Commerce (CAPCC), California Department of Veterans Affairs (CDVA), CHCC, DisabRA, Disabled Veterans Business Enterprise Alliance (DVBEA), Gray Greer Shelby Vaughn LLC (GGSV), Greenlining, and the Joint Telecom industry.
3 §8282(f) contains a legislative declaration to electrical, gas, water, and telephone corporations not meeting the reporting threshold to voluntarily adopt a plan for increasing WMDVBE procurement.
4 All references to "Rule" means the Commission's Rules of Practice and Procedure.
5 R.09-07-027 at 17-18.
6 On October 10, 2010, Decision (D.) 10-10-017 approved transfer of SPPC's California assets to California Pacific Electric Company, LLC (CalPeco ). The net effect is that CalPeco "stepped into the shoes" of SPPC.
