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;
(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)