2-92-690 Aspirational goals.

   The chief procurement officer shall establish biannual, aspirational goals for the award of construction contracts and subcontracts to M.B.E.s and W.B.E.s, based upon the best available evidence. Quotas are prohibited.

   Upon the effective date of this article, the biannual, aspirational goals shall be to award 26 percent of the annual dollar value of all construction contracts to qualified M.B.E.s and six percent of the annual dollar value of all construction contracts to qualified W.B.E.s.

(Added Coun. J. 5-26-04, p. 24585, § 3; Amend Coun. J. 2-10-16, p. 18343, § 1)

2-92-700 Contract specific goals.

   As one method to achieve the aspirational goals, the chief procurement officer is authorized to establish contract specific goals for M.B.E. and W.B.E. participation for each construction contract let through competitive bidding. Contract specific goals shall be based on normal industry practice, as determined in consultation with the appropriate departments, the scopes of work of the contract, the availability of at least three M.B.E.s and three W.B.E.s to perform the functions of those individual contracts, and the city's progress to date towards meeting the biannual, aspirational goals of Section 2-92-690.

(Added Coun. J. 5-26-04, p. 24585, § 3)

2-92-710 Race- and gender-neutral measures.

   The City shall develop and use race- and gender-neutral measures to facilitate the participation of small business enterprises in City contracting activities. Race- and gender-neutral measures shall be used to the maximum feasible extent to meet the biannual, aspirational goals established in Section 2-92-690. These measures shall include, but are not limited to:

   (a)   arranging solicitation times for the presentations of bids, quantities, specifications, and delivery schedules so as to facilitate the participation of interested contractors and subcontractors;

   (b)   segmenting contracts so as to facilitate the participation of small business enterprises;

   (c)   in consultation with the Department of Business Affairs and Consumer Protection and the Department of Finance, providing assistance to businesses in overcoming barriers such as difficulty in obtaining bonding and financing;

   (d)   providing timely information programs on contracting procedures, bid preparation and specific contracting opportunities;

   (e)   holding pre-bid conferences, where appropriate, to explain the projects and to encourage contractors to use small business enterprises as subcontractors;

   (f)   adopting prompt payment procedures, including requiring by contract that prime contractors pay subcontractors within specified days of receipt of payment from the City and, where necessary, issuing payments to subcontractors;

   (g)   reviewing bonding, insurance, retainage and other requirements to eliminate unnecessary barriers to and reduce the burdens of contracting with the City;

   (h)   expediting payments and advancing payments to cover start-up and mobilization costs, where appropriate;

   (i)   in consultation with the Department of Business Affairs and Consumer Protection and the Department of Finance, providing information concerning City-sponsored small business loan programs and other programs providing access to capital to small business enterprises;

   (j)   collecting information from all prime contractors on City construction contracts detailing the bids received from all subcontractors for City construction contracts and the expenditures to subcontractors utilized by prime contractors on City construction contracts;

   (k)   at the discretion of the Chief Procurement Officer, letting a representative sample of City construction contracts without goals, to determine M.B.E. and W.B.E. utilization in the absence of goals;

   (l)   [Reserved.]

   (m)   limiting the self-performance of prime contractors, where appropriate;

   (n)   creating a target market program for bidding on City prime construction contracts by small local business enterprises;

   (o)   to the extent practicable, awarding contracts requiring the expenditure of funds not exceeding $10,000 to small local business enterprises; and

   (p)   referring complaints of discrimination against M.B.E.s or W.B.E.s to the Chicago Commission on Human Relations and the City's Inspector General, or other appropriate authority, for investigation and resolution.

(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. 2-15-12, p. 20488, § 1; Amend Coun. J. 10-27-21, p. 39543, Art. III, § 2)

2-92-720 Contract award procedures.

   (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)

2-92-725 Established businesses participation in the MBE and WBE construction procurement program.

   (a)   A local business entity which meets all the requirements to be certified as an MBE or WBE under this article except that it has become an established business may participate in the city's minority- and women-owned business enterprise construction procurement program according to the time periods and percentages set forth in subsection (a) of Section 2-92-470 of this chapter. Such time periods and percentages shall apply to both the aspirational goals of Section 2-92-690 of this chapter and the contract specific goals of Section 2-92-700 of this chapter.

   (b)   An established business entity shall not be eligible to participate in the city's minority-and women- owned business enterprise construction procurement program starting on the three-year anniversary of the date the business entity became an established business.

   (c)   The chief procurement officer shall provide notice to established businesses of the allowed level of participation by such businesses in the city's minority- and women-owned business enterprise construction procurement program.

(Added Coun. J. 3-14-12, p. 22581, § 1)

2-92-730 Contract performance procedures.

   To achieve the contract specific goals, the Chief Procurement Officer shall undertake, in addition to the other measures provided herein, the following measures:

   (a)   include uniform provisions permitting the termination of the contract by the City upon the disqualification of the contractor as a M.B.E. or W.B.E., if the contractor's status as M.B.E. or W.B.E. was a factor in the award of the contract and such status was misrepresented by the contractor;

   (b)   include uniform provisions permitting termination of the contract by the City upon the disqualification of any M.B.E. or W.B.E. if the subcontractor's or supplier's status as a M.B.E. or W.B.E. was a factor in the award of the contract and 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 make good faith efforts to engage a qualified M.B.E. or W.B.E. replacement;

   (c)   include 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, to determine the contractor's compliance with its commitment to M.B.E. and W.B.E. participation and the status of any M.B.E. or W.B.E. 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;

   (d)   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 less, for opportunities to increase participation of M.B.E.s or W.B.E.s already involved in the contract;

   (e)   insert in each contract containing a commitment to M.B.E. and W.B.E. 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, which the Contracting Equity officer shall publish on the Internet, shall include the name and business address of each subcontractor and supplier actually involved in the contract, a description of the work performed and product or service supplied by each such subcontractor or supplier, 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;

      (ii)   a requirement that the contractor cannot make changes to its contractual M.B.E. and W.B.E. commitments or substitute such M.B.E. or W.B.E. subcontractors without the prior written approval of the Contracting Equity officer. Unauthorized changes or substitutions, including performing the work designated for a subcontractor with the contractor's own forces, shall be a violation of this article and a breach of the contract with the City, and may cause termination of the executed contract for breach, and/or subject the contractor to contract remedies or other sanctions. The facts supporting the request must not have been known nor reasonably should have been known by the parties prior to entering into the subcontract.

   (f)   substitutions of the subcontractor shall be permitted only on the following bases:

      (i)   unavailability after receipt of reasonable notice to proceed;

      (ii)   failure of performance;

      (iii)   financial incapacity;

      (iv)   refusal by the subcontractor to honor the bid or proposal price or scope;

      (v)   mistake of fact or law about the elements of the scope of work of a solicitation where a reasonable price cannot be agreed;

      (vi)   failure of the subcontractor to meet insurance, licensing or bonding requirements;

      (vii)   the subcontractor's withdrawal of its bid or proposal; or

      (viii)   decertification of the subcontractor as M.B.E. or W.B.E.

   Where the contractor has established the basis for the substitution to the satisfaction of the chief procurement, it must make good faith efforts to substitute with a M.B.E. or W.B.E. subcontractor. If the M.B.E. or W.B.E. contract specific goal cannot be reached and good faith efforts have been made, the contractor may substitute with a non-M.B.E. or non-W.B.E. If a contractor plans to hire a subcontractor on any scope of work that was not previously disclosed in the compliance plan, the contractor must obtain the approval of the chief procurement officer to modify the compliance plan and must make good faith efforts to ensure that M.B.E.s or W.B.E.s have a fair opportunity to bid on the new scope of work.

(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. 10-27-21, p. 39543, Art. III, § 2)

2-92-740 Contract closeout procedures.

   Prior to contract closeout, the Contracting Equity officer shall evaluate the contractor's fulfillment of the contracted goals, taking into account all approved substitutions, terminations and changes to the contract's scope of work. The Contracting Equity officer shall prepare a report of the closeout and file it with the City Council and the Chief Procurement Officer. If the Chief Procurement Officer determines that good faith efforts to meet the M.B.E. or W.B.E. commitments were not made, so that the M.B.E. or W.B.E. participation commitments have not been met, or that fraudulent mis-representations have been made, a remedy or sanction may be imposed. Such remedies or sanctions for failure to make good faith efforts, or for making any fraudulent misrepresentations, may include disqualification from contracting or subcontracting on additional City contracts for a period of up to three years, or 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 imposed upon the contractor. The contractor shall have the opportunity, pursuant to administrative rule, to protest the remedy or other sanctions. The consequences provided herein shall be in addition to any other criminal or civil liability to which such entities may be subject. The Chief Procurement Officer shall inform the City's Inspector General, the State's Attorney of Cook County or other appropriate law enforcement agencies of instances of fraudulent misrepresentation and collusion.

(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. 10-27-21, p. 39543, Art. III, § 2)

2-92-750 City officers – Consultation and cooperation.

   The head of any executive department or agency of the City's government who exercises any contracting power on behalf of the City beyond the scope of the Purchasing Act shall: (i) consult and cooperate with the Contracting Equity officer in achieving the aspirational goals in Section 2-92-690 of this chapter through the exercise of the contracting power and shall, to the extent practicable, implement procedures described in this article, including the applicable procedures described in Sections 2-92-700 and 2-92-720; and (ii) report to the Officer, at times and in the manner reasonably requested by the Officer, regarding compliance with this Section.

(Added Coun. J. 5-26-04, p. 24585, § 3; Amend Coun. J. 12-2-09, p. 78837, Art. 4, § 1; Amend Coun. J. 10-27-21, p. 39543, Art. III, § 2)

2-92-760 Home rule; contracts governed by federal or state laws.

   This article is enacted pursuant to the home rule powers of the city and supersedes any inconsistent provision of any law or regulation of the State of Illinois or any city ordinance. This article shall not apply to any construction contract to the extent that it is inconsistent with procedures or standards required by any law or regulation of the United States or the State of Illinois to the extent such inconsistency is not permitted under the home rule powers of the city. In connection with any construction contract funded in whole or in part from state or federal sources, state or federal standards and regulations shall control to the extent this article is inconsistent.

(Added Coun. J. 5-26-04, p. 24585, § 3)