(1) To achieve the aspirational goals and the contract specific goals, the Contracting Equity officer shall undertake, in addition to the other measures provided herein, to establish uniform procedures and criteria for certification, recertification and decertification as a M.B.E. or W.B.E. and appeals of and challenges to certification decisions, and maintain a directory of certified M.B.E.s or W.B.E.s and participating established businesses.
(2) To achieve the aspirational goals and the contract specific goals, the Chief Procurement Officer shall undertake, in addition to the other measures provided herein, the following measures:
(a) [Reserved.]
(b) Include with the bid specifications for each competitively bid contract a list of certified M.B.E.s and W.B.E.s that are available to perform the work required by the specifications or otherwise make such a list available to potential contractors.
(c) Insert within specifications for each contract let through competitive bidding with an estimated value in excess of $10,000.00 for which contract specific goals have been established:
(i) a description of this article and the program, including the requirement of an approved compliance plan; the requirements related to achieving the goals and counting M.B.E. or W.B.E. participation towards meeting the goals; if goals are not met, the requirement of documentation of the contractor's good faith efforts to achieve the goals, including the good faith efforts of M.B.E.s and W.B.E.s to achieve the goal for which they do not qualify; and a requirement that the contractor commit to the expenditure of at least the dollar value of the contract specific goals with one or more M.B.E.s and one or more W.B.E.s, or make good faith efforts to do so. This commitment may be met by the contractor's status as a M.B.E. or W.B.E., a joint venture with one or more M.B.E.s or W.B.E.s as prime contractor (to the extent of the M.B.E.'s or W.B.E.'s participation in such joint venture), subcontracting a portion of the work to one or more M.B.E.s or W.B.E.s, purchasing materials or services for the work from one or more M.B.E.s or W.B.E.s, or by any combination of the foregoing;
(ii) a requirement that prime contractors on City construction contracts notify M.B.E.s and W.B.E.s utilized on those contracts about opportunities on contracts without affirmative action contracting goals;
(iii) a requirement that where the contractor cannot achieve the contract specific goals it must document its good faith efforts to do so. In determining whether the contractor has made such good faith efforts, the performance of other contractors in meeting the goals may be considered. The Chief Procurement Officer shall consider, at a minimum, the contractor's efforts to do the following:
(A) Soliciting through reasonable and available means the interest of M.B.E.s or W.B.E.s that have the capability to perform the work of the contract. The contractor must solicit this interest within sufficient time to allow the M.B.E.s or W.B.E.s to respond. The contractor must take appropriate steps to follow up initial solicitations with interested M.B.E.s or W.B.E.s.
(B) Providing interested M.B.E.s or W.B.E.s with adequate information about the plans, specifications and requirements of the contract, including addenda, in a timely manner to assist them in responding to the solicitation.
(C) Negotiating in good faith with interested M.B.E.s or W.B.E.s that have submitted bids. Documentation of negotiation must include the names, addresses and telephone numbers of M.B.E.s or W.B.E.s that were solicited; the date of each such solicitation; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why agreements could not be reached with M.B.E.s or W.B.E.s to perform the work. That there may be some additional costs involved in soliciting and using M.B.E.s and W.B.E.s is not a sufficient reason for a contractor's failure to meet the goals, as long as such costs are reasonable.
(D) Not rejecting M.B.E.s or W.B.E.s as being unqualified without sound reasons based on a thorough investigation of their capabilities. The M.B.E.s' or W.B.E.s' standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations are not legitimate causes for rejecting or not soliciting bids to meet the goals.
(E) Making a portion of the work available to M.B.E. or W.B.E. subcontractors and suppliers and to select those portions of the work or material consistent with the available M.B.E. or W.B.E. subcontractors and suppliers, so as to facilitate meeting the goals.
(F) Making good faith efforts, despite the ability or desire of a contractor to perform the work of a contract with its own organization. A contractor who desires to self-perform the work of a contract must demonstrate good faith efforts unless the goals have been met.
(G) Selecting portions of the work to be performed by M.B.E.s or W.B.E.s in order to increase the likelihood that the goals will be met. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate M.B.E. or W.B.E. participation, even when the contractor might otherwise prefer to perform these work items with its own forces.
(H) Making efforts to assist interested M.B.E.s or W.B.E.s in obtaining bonding, lines of credit or insurance as required by the City or contractor.
(I) Making efforts to assist interested M.B.E.s or W.B.E.s in obtaining necessary equipment, supplies, materials or related assistance or services, including participation in a City-sponsored mentor-protégée program; and
(J) Effectively using the services of the City; minority or women community organizations; minority or women contractors' groups; local, state and federal minority or women business assistance offices; and other organizations to provide assistance in the recruitment and placement of M.B.E.s or W.B.E.s.
(d) Provide a procedure similar to that described in Section 2-92-445 whereby the contractor may protest the determination that it did not make good faith efforts.
(e) Provide a private sector credit program, whereby contractors may receive credit applicable towards meeting contract specific goals, based on their utilization of M.B.E.s and W.B.E.s in projects without public funding and which do not have affirmative action contracting goals. One dollar of credit shall be earned for each three dollars of eligible use, up to a maximum credit of five percent of the dollar value of the city contract. Credits shall be awarded only to the party responsible for hiring the M.B.E. or W.B.E., and if there is more than one responsible party, credits shall be allocated ratably among such parties. Credits may not be applied more than one year after closeout of the contract sought to be credited towards the goals.
(f) Negotiate with any contractor whose contract is in excess of $10,000 in value and is not awarded by competitive bidding a commitment, where practicable, to meet at least the aspirational goals as percentages of the dollar value of the contract.
(g) Include M.B.E.s and W.E.B.s on solicitation mailing lists, and encourage that they be solicited for suitable contracts.
(h) Publicize the program through appropriate means, in order to attract qualified M.B.E.s and W.E.B.s.
(Added Coun. J. 5-26-04, p. 24585, § 3; 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)