(a) Consistent with the City's goal of increasing the level of MBE and FBE participation in City Contracts when past or present discrimination against such type of MBEs or FBEs or category of contract has been evidenced as provided in Section 187.28, each Contracting Department shall use its best efforts to utilize certified MBEs and FBEs as Contractors or subcontractors for all contracts in excess of fifty thousand dollars ($50,000.00) where applicable. The Director may determine the appropriate annual City-wide goals for MBE and FBE participation for each type of Contract, including, but not limited to, Construction, non-professional and professional services, supplies, and concessions, and for each type of work to be performed under a particular Contract, based on the availability of certified MBEs and FBEs as to which past or present discrimination has been demonstrated as provided in Section 187.28. The Director shall cause the goals to be published in the Regulations.
The Director shall fix the goals for MBE and FBE participation in a particular Contract in consultation with the Contracting Department based upon the annual City-wide goals for each type of Contract and for each type of work to be performed in the Contract and the availability of certified MBEs and FBEs. The Director may fix the goals for a particular Contract at a level exceeding the annual City-wide goals to assist a Contracting Department in meeting the annual City-wide goal for the particular type of Contract to be awarded.
(b) Contracting Departments shall consider use of certified MBEs and FBEs when recommending a lowest and best or lowest responsible bid to meet the specified annual goals and may apply a Bid Discount for Bid Comparison under division (c) of Section 187.05. However, these goals are not intended as quotas. Each Contracting Department shall ensure that bids or proposals emanating from that department comply with the procedures and provisions in this chapter and the Regulations.
(c) In evaluating the MBE and FBE participation that shall apply toward a Contracting Department's annual goals, the Director shall credit:
(1) Expenditures to certified MBEs and FBEs that perform Commercially Useful Functions in implementation or performance of a Contract;
(2) Expenditures to certified MBE and FBE manufacturers (i.e. Suppliers that produce goods from raw materials or the product of raw materials and add value by substantially altering them before resale);
(3) Sixty percent (60%) of expenditures to certified MBE and FBE Suppliers that are not manufacturers, provided that the MBE and FBE Supplier performs a Commercially Useful Function in the supply process;
(4) Should a MBE or FBE subcontractor further subcontract its participation in a Contract to a non-MBE or non-FBE only the work actually performed by the MBE or FBE subcontractor shall apply towards the Contracting Department's annual MBE or FBE participation goals;
(5) No credit shall apply to a Contractor's or a subcontractor's contract(s) for the purchase of materials, equipment, services, or supplies that are incident to the performance of services under the Contract or for the general operation of its business and not attributable exclusively to the particular subcontract;
(6) A Contractor or subcontractor that qualifies as both a MBE and FBE may obtain certification as both a MBE and FBE. The total dollar value of a particular Contract with such Contractor or subcontractor may count only toward the MBE or FBE goal, but not toward both. The Contractor must choose the category to which the Contract value should be applied; and
(7) A portion of the total dollar value of the Contract with a CSB, MBE, or FBE Joint Venture equal to the percentage of certified CSB, MBE, or FBE participation in the Joint Venture may count toward meeting MBE and FBE goals. The CSB, MBE, or FBE must be responsible for performance of a clearly defined, distinct portion of the Contract work of equal proportion to its share in the ownership, control, management, responsibility, risk, and profits of the Joint Venture.
(d) To fulfill the purposes of the MBE and FBE goals, Contractors shall use MBEs and FBEs to perform a Commercially Useful Function in implementation or performance of the Contract. Failure to do so will not only be considered a material breach of the Contract, but may also subject the Contractor to criminal prosecution for fraudulent misrepresentation, decertification, and to other sanctions.
(e) The Director shall not apply credit toward the MBE and FBE subcontractor participation goals fixed under division (a) of this section for participation under any Contract in a calendar year by any one (1) MBE or FBE subcontractor that has contracted under a City contract more than a maximum annual dollar amount per MBE or FBE per year fixed by the Director in the Regulations from time to time, except that the Director may apply credit toward the MBE or FBE subcontractor participation goals upon written request of a Bidder or Contractor attesting that no other certified MBEs or FBEs are available to perform the work or supply the materials required for the Contract under which the MBE or FBE is a subcontractor, or in an emergency, or for such other reasons that the Director determines require use of that MBE or FBE. Nothing in the foregoing shall be deemed to prohibit a Contractor from subcontracting to that MBE or FBE, or that MBE or FBE from performing work or supplying materials under any Contract without participation credit.
(f) This section shall apply, as remedial action, only to the specified types and categories of Contracts and the contracting for those types and categories of Contracts, for which the City has developed or obtained, by disparity study or otherwise, a legally sufficient basis in evidence to demonstrate past or present discrimination as to participation of Minority Persons, Females, MBEs, or FBEs.
(Ord. No. 532-13. Passed 5-13-13, eff. 5-16-13)