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)