2-92-417 Bid incentives – MBE/WBE requirements.

   Unless otherwise prohibited by any federal, state or local law, any contract awarded based upon an allocation of a bid incentive authorized pursuant to this Article III shall be subject to the MBE and WBE participation provisions set forth in Articles IV and VI of this chapter. For purposes of this section "MBE" and "WBE" have the meanings ascribed to those terms in Section 2-92-420.

(Added Coun. J. 6-25-14, p. 83495, § 1)

2-92-418 Fuel purchasing.

   The Chief Procurement Officer, or his designee, is authorized to enter into contracts with vendors for a specific quantity of fuel to be delivered to the City on a specific date or dates at a "not-to-exceed" price. The fuel delivery date may not be more than three years after the date on which the contract is entered.

(Added Coun. J. 11-26-19, p. 11390, Art. VIII, § 2)

Editor’s note – Coun. J. 11-8-12, p. 38867, § 4, repealed a former § 2-92-418, which pertained to fees relating to the submission of bids and proposals. Coun. J. 6-28-17, p. 51157, § 2, repealed a subsequent § 2-92-418, which pertained to contracts and bid incentive for eligible joint ventures and veteran-owned small local businesses.

2-92-419 Alternative construction delivery system contracts.

   (a)   Definitions. For purposes of this section only, the following definitions apply:

   "Alternative Construction Delivery System" means a delivery system other than the traditional design-bid- build delivery system. An alternative construction delivery system may include, but not be limited to, a design-build delivery system and construction management.

   "Alternative Construction Delivery System Contract" means a contract for the construction of a public project between the city and a person, which was awarded under an alternative construction delivery system.

   "Construction management" means a delivery system that provides responsibility within a single contract for the administration, management and coordination of all aspects of a construction project from conception to completion to ensure the project is properly designed, engineered and constructed within a specific time period and budget.

   "Delivery System" means the design and construction approach used to develop and construct a project.

   "Design-bid-build" means the traditional delivery system used on public projects pursuant to the Municipal Purchasing Act.

   "Design-build" means a delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying and related services as required, and the labor, material, equipment, and other construction services for the project.

   "Municipal Purchasing Act" means the Municipal Purchasing Act for cities of five hundred thousand or more in population, 65 ILCS 5/8-10-1, et seq., as amended.

   (b)   In lieu of awarding a construction contract through the traditional design-bid-build process and without following the competitive bidding requirements pursuant to Illinois law, including, without limitation, section 8-10-3 of the Municipal Purchasing Act, the chief procurement officer is authorized to award contracts for construction projects utilizing an alternative construction delivery system, including, but not limited to, design-build and construction management. The chief procurement officer is further authorized to procure such alternative construction delivery systems through requests for qualifications, requests for proposals, competitive negotiations and similar competitive procurement processes as determined by the chief procurement officer to be consistent with the purposes of the projects and best interests of the city. The chief procurement officer is further authorized to include value engineering, and alterations in project scope consistent with value engineering, within such competitive procurement processes.

   The alternative construction delivery system contract may be conditioned upon subsequent refinements in scope and price and may allow the chief procurement officer to make modifications in the project scope without invalidating the contract.

   Except as otherwise authorized herein, such requests for proposals and contracts shall be executed and administered pursuant to the provisions of the Municipal Purchasing Act and relevant provisions of the Municipal Code.

   In selecting an alternative construction delivery system and awarding a contract pursuant to this section, the chief procurement officer shall consider the following factors:

      (1)   the needs of the city;

      (2)   time requirements for the project and potential time savings strategies;

      (3)   the complexity of the project;

      (4)   estimated project costs;

      (5)   cost savings to the city; and

      (6)   any other factor the chief procurement officer deems to be in the city's best interest.

   (c)   An alternative construction delivery system contract will include such provisions as required by the chief procurement officer and such provisions as required by law, including, but not limited to, non- discrimination, payment of living wage, payment of prevailing wages, and M.B.E./W.B.E. participation.

   (d)   With respect to alternative construction delivery system contracts awarded pursuant to this section, the chief procurement officer is authorized to take any and all actions, including but not limited to the execution of the other documents, certifications and agreements, as may be necessary or desirable to implement the objectives of this section, all of which are consistent with the terms and provisions of the contracts, as executed.

(Added Coun. J. 4-9-08, p. 24621, § 2)

ARTICLE IV. MINORITY-OWNED AND WOMEN-OWNED BUSINESS ENTERPRISE PROCUREMENT PROGRAM (2-92-420 et seq.)

2-92-420 Definitions.

   As used in Sections 2-92-420 through 2-92-570 of this chapter, the following terms shall have the following meanings:

   (a)   "Affiliate" of a person or entity means a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person or entity specified.

   (b)   "Board" means the affirmative action advisory board established in Section 2-92-510 of this chapter.

   (c)   "Broker" means a person or entity that fills orders by purchasing or receiving supplies from a third party supplier rather than out of its own existing inventory and provides no substantial service other than acting as a conduit between his or her supplier and his or her customer.

   (d)   "Business enterprise owned or operated by people with disabilities" or "B.E.P.D." shall have the meaning ascribed to it in Section 2-92-586 of this chapter.

   (e)   "Certifying agency" means a private or public entity designated by the Contracting Equity officer as an agency eligible to certify businesses as C.E.B.s.

   (f)   "Certification eligible business" or "C.E.B." means any one or more businesses in the group consisting of M.B.E.s., W.B.E.s., B.E.P.D.s. and such other categories of business enterprises established by the Contracting Equity officer from time to time as eligible for participation in a certification program, when in the officer's judgment the best available evidence supports such establishment.

   (g)   "Certification program" means any one or more programs in the group consisting of the City's minority- and women-owned business enterprise programs, and business enterprises owned by people with disabilities program, and such other programs as the Contracting Equity officer may from time to time develop and implement, when in the Contracting Equity officer's judgment the best available evidence supports such establishment.

   (h)   "Contracting Equity officer" has the meaning ascribed to this term in Section 2-92-070.

   (i)   "Chief Procurement Officer" or "CPO" means the Chief Procurement Officer of the City of Chicago.

   (j)   "Contract" means any contract, purchase order or agreement (other than a delegate agency contract or lease of real property or collective bargaining agreement or a construction contract as defined in Section 2-92-670) awarded by any officer or agency of the City other than the City Council, and whose cost is to be paid from funds belonging to or administered by the City of Chicago, regardless of source.

   (k)   "Contractor" means any person or business entity that shall enter into a contract with the city, and includes all partners and all joint venturers of such person.

   (l)   "Credit program" means the program provided for in Section 2-92-530 of this chapter.

   (m)   "Delegate agency contract" means a contract with a not-for-profit or for-profit organization which provides social services (including but not limited to job training and placement, education, child day care, emergency shelter, home-delivery meals, and health care) to targeted communities under agreements with the city which are funded by federal or state grants and paid on a pass-through basis.

   (n)   "Disadvantaged business enterprise" or "D.B.E.", in connection with a contract which is funded in whole or in part from state or federal governmental sources, means a business entity which is a disadvantaged business enterprise pursuant to the rules and regulations of such governmental source.

   (o)   "Established business" means a business entity which, by virtue of its size and capacity for competing in the markets in which it operates, does not need to be a full participant in the program in order to effectuate the purposes of the program, as determined by the Contracting Equity officer pursuant to regulations adopted by the Department of Procurement Services. For calendar year 2000, a business entity shall be presumed to be an established business if the business entity and its affiliates have had annual average gross receipts in excess of $27,500,000.00 over the previous three fiscal years. For calendar year 2001 and beyond, this sum shall be adjusted upwards or downwards by applying to it a rate equal to the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) published by the United States Bureau of Labor Statistics for that calendar year. Such adjustment shall be made for a given year in January of the following year and shall remain in effect for that given year until the following year's adjustment is made. The Contracting Equity officer, after computing the adjustment for a given year, shall cause the new sum as adjusted to be published for five consecutive business days in two or more newspapers of general circulation in the City.

   (p)   "Joint venture" means an association of two or more businesses formed to carry out a single business enterprise for profit, and for which purpose they combine their expertise, property, capital, efforts, skills and knowledge.

   (q)   "Local business" means a business entity located within the counties of Cook, Du Page, Kane, Lake, McHenry or Will in the State of Illinois (the "Six-County Region").

   (r)   "Minority group" means any of the following racial or ethnic groups:

      (i)   African-Americans or Blacks (persons having origins in any of the Black Racial groups of Africa);

      (ii)   Hispanics (persons of Spanish culture with origins in Mexico, South or Central America or the Caribbean Islands, regardless of race);

      (iii)   Asian-Americans (persons having origins in any of the original peoples of East Asia, Southeast Asia, the Indian subcontinent, or the Pacific Islands);

      (iv)   Other groups, or other individuals, found by the board to be socially and economically disadvantaged and to have suffered actual racial or ethnic discrimination and decreased opportunities to compete in Chicago area markets or to do business with the city; and

      (v)   For purposes of contracts funded by state or federal governmental sources, groups found to be eligible for purposes of the designation of D.B.E.s by such governmental sources.

   (s)   "Minority-owned business" or "M.B.E." means a local business which is at least 51 percent owned by one or more members of one or more minority groups, or, in the case of a publicly held corporation, at least 51 percent of the stock of which is owned by one or more members of one or more minority groups, whose management and daily business operations are controlled by one or more members of one or more minority groups, and which is not an established business.

   (t)   "M.B.E. percentage" means, from the effective date of this ordinance through December 31, 1990, 25 percent; from January 1, 1991, through December 31, 1991, 21.1 percent; from January 1, 1992, through December 31, 1992, 19.5 percent; from January 1, 1993, through December 31, 1993, 17.7 percent; and from and after January 1, 1994, 16.9 percent. For contracts procured by public solicitation, the M.B.E. percentages shall apply as of the date the solicitation is publicly advertised.

   (u)   "M.B.E. target market percentage" means, from January 1, 1991 through December 31, 1991, 5.0 percent; from January 1, 1992, through December 31, 1992, 7.0 percent; from January 1, 1993, through December 31, 1993, 9.0 percent; and from and after January 1, 1994, 10.0 percent.

   (u-5)   "Non-participating established business" means an established business which is not eligible to participate in the city's minority- and women-owned business enterprise procurement program.

   (v)   "Owned" means having all the customary incidents of ownership, including the right of disposition, and sharing in all risks and profits commensurate with the degree of ownership interest.

   (v-5)   "Participating established business" means an established business which is eligible to participate in the city's minority- and women-owned business enterprise procurement program as set forth in Section 2-92-470 of this chapter.

   (w)   "Program", unless used as part of the term "certification program", means the minority-owned and women-owned business enterprise procurement program established in Sections 2-92-420 through 2-92-570 of this chapter.

   (x)   "Target market contract" means a contract designated for competition limited to M.B.E.s or W.B.E.s on either a negotiated or competitive bid process pursuant to Section 2-92-460 of this chapter.

   (y)   "Women-owned business" or "W.B.E." means a local business which is at least 51 percent owned by one or more women, or, in the case of a publicly held corporation, 51 percent of the stock of which is owned by one or more women, whose management and daily business operations are controlled by one or more women, and which is not an established business.

   (z)   "W.B.E. percentage" means, from the effective date of this ordinance through December 31, 1991, 5.0 percent; from January 1, 1992, through December 31, 1992, 4.9 percent; from January 1, 1993, through December 31, 1993, 4.8 percent; and from and after January 1, 1994, 4.5 percent. For contracts procured by public solicitation, the W.B.E. percentage shall apply as of the date the solicitation is publicly advertised.

   (aa)   "W.B.E. target market percentage" means, from January 1, 1991, through December 31, 1991, 0.25 percent; from January 1, 1992, through December 31, 1992, 0.5 percent; from January 1, 1993, through December 31, 1993, 0.75 percent; and from and after January 1, 1994, 1.0 percent.

(Prior code § 26-101; Added Coun. J. 7-31-90, p. 19319; Amend Coun. J. 7-19-00, p. 38206, § 1; Amend Coun. J. 9-4-02, p. 92670, § 3; Amend Coun. J. 5-26-04, p. 24585, § 1; Amend Coun. J. 7-9-08, p. 32427, § 1; Amend Coun. J. 12-2-09, p. 78837, Art. 4, § 1; Amend Coun. J. 11-16-11, p. 13798, Art. IV, § 3; Amend Coun. J. 3-14-12, p. 22581, § 2; Amend Coun. J. 10-27-21, p. 39543, Art. III, § 2)

2-92-430 Award goal – Established.

   The chief procurement officer shall establish a goal of awarding not less than 25 percent of the annual dollar value of all contracts to qualified M.B.E.s and five percent of the annual dollar value of all contracts to qualified W.B.E.'s.

(Prior code § 26-102; Added Coun. J. 7-31-90, p. 19319; Amend Coun. J. 7-19-00, p. 38206, § 1)

2-92-440 Award goal – Implementation.

   In order to achieve the goal stated in Section 2-92-430 of this chapter, the Chief Procurement Officer shall undertake, in addition to the other measures provided herein, the following measures:

   (a)   Insert within specifications for each contract let through competitive bidding with an estimated value in excess of $10,000.00 a requirement that the contractor commit to the expenditure of at least the MBE percentage of the dollar value of the contract with one or more MBEs and at least the WBE percentage of the dollar value with one or more WBEs, or make good faith efforts to do so. This commitment may be met by the contractor's status as MBE or WBE, or by joint venture with one or more MBEs or WBEs as prime contractor (to the extent of the MBE's or WBE's participation in such joint venture), or by subcontracting a portion of the work to one or more MBEs or WBEs, or by purchase of materials or services for the work from one or more MBEs or WBEs, or by any combination of the foregoing. In determining whether a contractor has made good faith efforts, the chief procurement officer shall consider the factors enumerated in Section 2-92-720(c)(iii) of this chapter, and the indirect participation of MBEs or WBEs in other aspects of the contractor's business (but no dollar of such indirect MBE or WBE participation shall be credited more than once against a contractor's good faith efforts to achieve the MBE or WBE commitment with respect to all contracts of such contractor);

   (b)   Review each proposed contract modification request that, by itself or aggregated with previous modification requests, increases the contract value by ten percent of the initial contract value or $50,000.00, whichever is greater, for opportunities to increase participation of MBEs or WBEs already involved in the contract;

   (c)   Consider the extent of each bidder's commitment to MBE/WBE participation as further evidence of the responsibility of the bidder;

   (d)   Negotiate with any contractor whose contract is in excess of $10,000.00 in value and is not awarded by competitive bidding a commitment, where practicable, to MBE participation of at least the MBE percentage and WBE participation of at least the WBE percentage of the dollar value of the contract;

   (e)   Insert in each contract containing a commitment to MBE and/or WBE participation:

      (i)   A requirement of periodic reporting by the contractor to the Contracting Equity officer on all expenditures made to achieve compliance with the foregoing provisions. Such reports shall include the name and business address of each MBE and WBE solicited by the contractor to work as a subcontractor on the contract and the responses received by the contractor to such solicitation, the name and business address of each MBE and WBE actually involved in the contract, a description of the work performed or product or service supplied by each such MBE or WBE, the date and amount of each expenditure, and such other information as may assist the Contracting Equity officer in determining the contractor's compliance with the foregoing provisions, and the status of any MBE or WBE performing any portion of the contract;

      (ii)   Remedies for a contractor's non-compliance with the commitment to MBE/WBE participation, including an agreement to pay damages to the MBEs and WBEs which were underutilized. The unexcused reduction of MBE or WBE contract participation in connection with a contract (including any modification thereof) shall entitle the affected MBEs and WBEs to damages pursuant to such agreement. Such provisions shall include an undertaking by the contractor to submit any dispute concerning such damages to binding arbitration by an independent arbitrator, other than any department or agency of the City, with reasonable expenses, including attorney's fees, being recoverable by a prevailing MBE or WBE, DPS shall adopt rules and procedures governing such arbitrations. Nothing herein shall be construed to limit the rights of and remedies available to the City;

      (iii)   Uniform provisions permitting the termination of the contract by the City upon the disqualification of the contractor as MBE or WBE, if (a) the contractor's status as MBE or WBE was a factor in the award of the contract and (b) such status was misrepresented by the contractor;

      (iv)   Uniform provisions permitting termination of the contract by the City upon the disqualification of any MBE or WBE subcontractor or supplier of goods or services if (a) the subcontractor's or supplier's status as MBE or WBE was a factor in the award of the contract and (b) the status of the subcontractor or supplier was misrepresented by the contractor. In the event that the contractor is determined not to have been involved in any misrepresentation of the status of the disqualified subcontractor or supplier, the contractor shall discharge the disqualified subcontractor or supplier and, if possible, identify and engage a qualified MBE or WBE as its replacement;

      (v)   Uniform provisions allowing the Contracting Equity officer access to the contractor's books and records, including without limitation payroll records, tax returns and records, and books of account, on five business days' notice, to allow the Contracting Equity officer to determine the contractor's compliance with its commitment to MBE/WBE participation and the status of any MBE or WBE performing any portion of the contract. This provision shall be in addition to, and not a substitute for, any other provision allowing inspection of the contractor's records by any officer or official of the City for any purpose;

   (f)   Send notices to MBEs and WBEs who have been identified as subcontractors in accordance with Section 2-92-440(e)(i) of this chapter, including therein notification of this right of arbitration provided in Section 2-92-440(e)(ii) of this chapter;

   (g)   To the extent practicable, award contracts requiring the expenditure of funds not exceeding $10,000.00 to qualified MBEs and WBEs. Contracts so awarded to MBEs and WBEs shall be considered target market contracts for purposes of satisfying the requirements of Section 2-92-460(a) of this chapter;

   (h)   Include MBEs and WBEs on solicitation mailing lists, and encourage that they be solicited for suitable contracts;

   (i)   Include with the bid specifications for each competitively bid contract a list of certified MBEs and WBEs that are available to perform the work required by the specifications or otherwise make such a list available to potential bidders;

   (j)   Working, as applicable, with the Department of Planning and Development or Department of Housing, review the bonding and insurance requirements applicable to MBEs and WBEs;

   (k)   To the extent practicable, ensure that MBE/WBE invoices for payment are processed expeditiously by the relevant city user departments;

   (l)   Working with the board, issue rules and regulations relating to the credit program;

   (m)   Working with the law department, issue rules and regulations relating to appeals of the decisions of the chief procurement officer under the program.

(Prior code § 26-103; Added Coun. J. 7-31-90, p. 19319; Amend Coun. J. 12-11-91, p. 10936; Amend Coun. J. 7-19-00, p. 38206, § 1; Amend Coun. J. 9-4-02, p. 92670, § 3; Amend Coun. J. 11-19-08, p. 47220, Art. VIII, § 1; Amend Coun. J. 12-2-09, p. 78837, Art. 4, § 1; Amend Coun. J. 11-16-11, p. 13798, Art. IV, § 3; Amend Coun. J. 11-26-13, p. 67481, Art. I, § 4; Amend Coun. J. 1-25-17, p. 41481, § 1; Amend Coun. J. 11-14-18, p. 90308, Art. I, § 26; Amend Coun. J. 10-27-21, p. 39543, Art. III, § 2)

Editor's note– Coun. J. 11-17-10, p. 106597, Art. IX § 2, states that it amends this § 2-92-440. The amendment in fact is to § 2-92-460, and the revision has been made accordingly.