(a) If the Chief Procurement Officer determines, upon reviewing a particular contract, that the M.B.E. or W.B.E. participation commitments have not been met, a penalty in the amount of the discrepancy between the amount of the commitment, as such amount may be amended through change orders or otherwise over the term of the contract, and the achieved amount may be applied to the contractor. The Contracting Equity officer may at any time recommend that the Chief Procurement Officer take action pursuant to this section with respect to a particular contract.
(b) Prior to imposing the penalty specified by this section, the chief procurement officer shall notify the contractor of the fact and amount of the proposed penalty. The contractor shall have the opportunity to present evidence to the chief procurement officer to controvert the fact or amount of the proposed penalty. Within 15 days of receiving the final decision of the chief procurement officer on the matter, and in the event that such final decision is adverse to the contractor, the contractor may submit to the chief procurement officer a written request for a hearing to be conducted by the city's department of administrative hearings.
(c) Upon receipt of a timely request for a hearing, the city shall institute an action with the department of administrative hearings, which shall appoint an administrative law officer who shall conduct the hearing within 30 days of receiving the request.
(d) The penalty specified by this section shall be imposed either upon expiration of the time period in which the contractor may seek review by the department of administrative hearings, or upon the administrative law officer's finding adverse to the contractor, as applicable.
(e) The city shall use all funds collected as penalties under this section exclusively for development of M.B.E./W.B.E. programs and encouragement of M.B.E./W.B.E. participation in the city.
(f) In addition to the penalty specified by this section, after a contractor's second failure to meet M.B.E./W.B.E. commitments, the chief procurement officer may declare the contractor ineligible for an award of contracts for a period of up to three years, following the procedures set forth in subsections (b), (c) and (d) of this section. In determining whether to declare a contractor ineligible, the chief procurement officer shall take into account the contractor's record for meeting its commitments regarding W.B.E./W.B.E. participation in contracts with the city.
(Added Coun. J. 7-19-00, p. 38206, § 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. 10-27-21, p. 39543, Art. III, § 2)