168.01 Purpose.
168.02 Definitions.
168.03 Contents of program.
168.04 General policy.
168.05 Administration by Mayor; implementation by office of equal opportunity.
168.06 Certification program.
168.07 Application for certification.
168.08 Renewal of certification.
168.09 Educational and technical assistance program.
168.10 Complaints.
168.11 Subcontracts and waiver requirements.
168.12 Community Relations Board.
168.13 Notification for bid advertisement.
168.14 Notice of requirements to ensure MBE opportunity.
168.15 Requirements and terms of notice.
168.16 Reviews by Office of Equal Opportunity.
168.17 Joint venture program.
168.18 Review and evaluation program.
168.19 Denial of certification.
168.20 Compliance review.
168.21 Revocation of certification.
168.22 Denial of recertification.
168.23 Hearing procedures.
CROSS REFERENCES
Development loan program - see Ohio R.C. 122.71 to 122.85
Minority Business Development Division - see Ohio R.C. 122.92 to 122.94
Contracts set aside for minority businesses - see Ohio R.C. 123.151
Discrimination by contractors - see ADM. 113.03
Affirmative action - see ADM. Ch. 167
Interfering with civil rights - see GEN. OFF. 525.13
The purpose of the Minority Business Enterprise Program is to promote the economic welfare of the people of the City by encouraging the establishment and expansion of minority business enterprises, to stabilize the economy, to provide and preserve employment opportunities and to ensure the representative participation of minority business enterprises.
(Ord. 83-75. Passed 4-4-83.)
As used in this chapter:
(a) "Minority" means United States citizens who are black, Hispanic-American, Asian- American or American Indian.
(b) "Minority business enterprise" or "MBE" means a business at least fifty-one percent owned by one or more minorities who share in the capital invested to establish and maintain the business entity as well as in the profits and/or losses of the business. The contributions of capital or expertise of the minority owners to acquire their interest in the business shall be real and substantial. The owners must also maintain proportionate control over the day-to-day operations of the business, including, but not limited to, exercising the power to make policy decisions, planning how contracts will be fulfilled, being actively involved in day-to-day management decisions, organizing and controlling the finances of the business and supervising the employees who will be performing the necessary labor to fulfill the contract. The ownership and control by minority owners shall be real, substantial and continuing and shall enjoy the formal ownership of the entity as reflected in its ownership documents. The minority owners shall enjoy the customary incidents of ownership and the consideration of such shall focus on substance rather than on the form of arrangements. If a nonminority owner of the entity is disproportionately responsible for the operation of the organization, the business is not controlled by minorities and shall not be considered as a minority business enterprise. For the purposes of this chapter, where the actual management of the business is entrusted to an individual other than the owner, the person who exercises the power to hire and fire the managers or supervisors shall be considered as controlling the business.
(c) "Women's business enterprise" or "WBE" means a business at least fifty-one percent owned by one or more women who share in the capital invested to establish and maintain the business entity as well as the profits and/or losses of the business. The contributions of capital or expertise of the women owners to acquire their interest in the business shall be real and substantial. The owners must also maintain proportionate control over the day-to-day operations of the business, including, but not limited to, exercising the power to make policy decisions, planning how contracts will be fulfilled, being actively involved in day-to-day management decisions, organizing and controlling the finances of the business and supervising the employees who will be performing the necessary labor to fulfill the contract. The ownership and control by women owners shall be real, substantial and continuing and shall enjoy the formal ownership of the entity as reflected in its ownership documents. The women owners shall enjoy the customary incidents of ownership and the consideration of such shall focus on substance rather than on the form of arrangements. If a nonminority or nonfemale owner of the entity is disproportionately responsible for the operation of the organization, the business is not controlled by women and shall not be considered as a minority business enterprise. For the purposes of this chapter, where the actual management of the business is entrusted to an individual other than the owner, the person who exercises the power to hire and fire the managers or supervisors shall be considered as controlling the business.
(d) "Recipient" means any entity, public or private, to whom financial assistance is extended, directly or through another recipient for the program.
(e) "Lorain-Elyria SMSA" means the Lorain-Elyria Standard Metropolitan Statistical Area in Lorain County.
(f) "Contractor" means any person, partnership, corporation, association or joint venture who or which has been awarded a public contract, and includes every subcontractor on such contract.
(g) "Subcontractor" means any person, partnership, corporation, association or joint venture who or which has contracted with the contractor for the performance of all or part of the work or services which such contractor has contracted to perform. For purposes of this chapter, a subcontractor who provides goods, materials, equipment or supplies to a contractor shall only be given credit for one-half of the dollar amount of the subcontract The transportation cost of materials shall, for purposes of this subsection, be considered a supply contract.
(h) "Reasonable trade area" means:
(1) For construction purposes, the Lorain-Elyria SMSA and all other Ohio counties; and
(2) For supplies and professional services, the entire State.
(i) "Joint venture" means a venture where two or more separate entities form one legal entity for the purpose of competing for City contracts.
(j) "OEO" means the Office of Equal Opportunity.
(k) "Bidder" meaning any person, partnership, corporation, association or joint venture that responds to the City's invitation to bid on a City requirement. For these regulations, the terms "bidder, " "offerer" and "vendor" are considered synonymous.
(l) "Certified" means having been approved by the Office of Equal Opportunity as being a minority business enterprise qualified to participate in the MBE Program or as being a women's business enterprise qualified to participate in the WBE Program.
(Ord. 87-257. Passed 9-21-87.)
The MBE Program shall be comprised of the Minority Subcontractor Program, the Educational and Technical Assistance Program and the certification and registration of Minority Business Enterprises, as more fully set forth in the following sections of this chapter.
(Ord. 83-75. Passed 4-4-83.)
The purpose of the MBE Program is to ensure the representative participation of all segments of the population. It shall be administered by the Mayor, or his or her designee, who shall be charged with the responsibility of establishing and maintaining a strong MBE Program and developing such rules or guidelines necessary to implement such Program. The City shall, from time to time, re-evaluate the Program, assess its effectiveness and adjust and/or otherwise amend the Program to best achieve the objectives thereof. The City MBE Program shall apply to the expenditure of City funds, the sources of which funds are gifts, grants (except as stated in this section), user fees, service fees, taxes and assessments, as well as such other funds which are administered by the City without regard to their sources Whenever a grant is received from another governmental entity which has an established set of requirements, as expressed in rules, regulations or policy, concerning the participation of specific business groups, the City's specifications for contracts may contain MBE Program procedures in conformity with the granting agency's requirements, in lieu of the Program outlined in this chapter as the City's Program.
(Ord. 85-203. Passed 10-21-85.)
(a) The Mayor has the responsibility of administering the City's MBE Program. The implementation of the Program will be the responsibility of the Office of Equal Opportunity.
(b) Specific duties of the Office of Equal Opportunity are as follows:
(1) Technical assistance, including the following:
A. Assist in securing management and technical assistance for the establishment, expansion and overall development of MBE's;
B. Provide MBE's with information in sufficient time to prepare bids and quotations; and
C. Plan and participate in training seminars for the purpose of informing potential bidders of the MBE Program;
(2) Publicizing of business opportunities to MBE's;
(3) Attendance at pre-bid and pre-construction conferences to explain MBE requirements and respond to questions;
(4) Maintenance of accurate and up-to-date records demonstrating MBE efforts and accomplishments. Records will be kept for documentation of the MBE efforts in three categories, as follows:
A. Affirmative action, which includes MBE's technical assistance, communications, goals and specific rules;
B. Awards for all contracts, including types of work and dollar values; and
C. Specific efforts by contractors, mailing lists (MBE's identified), responses, advertising and conferences;
(5) Monitoring of contractors' and subcontractors' compliance with MBE commitments throughout the life of the contract;
(6) Service as a liaison with economic development organizations and agencies working in support of economic development in the minority community; and
(7) Monitoring and recommending revisions to the MBE Program as needed.
(Ord. 83-75. Passed 4-4-83.)
(a) The Office of Equal Opportunity will certify MBE's which meets the requirements of this chapter for participation in the various programs of the City.
(b) In considering each application for certification, the OEO will determine whether persons represented in the application are members of a minority by reviewing the application and accompanying documentation, the results of staff investigations and other relevant information. Other relevant information may include birth certificates, employment records, OEO and affirmative action records and other evidence of the minority status of persons named in the application.
(Ord. 83-75. Passed 4-4-83.)
(c) In determining whether an applicant meets the requirements for participation set forth in Section 168.02(b), the OEO will review the extent to which minority or women participants have actual rights of ownership and control of the business enterprise, including the proportion of ownership and control over decision making, day-to-day operations and profit and loss. The OEO will review all information relating to the operation, management, accounts and financing of the business enterprise.
(Ord. 83-232. Passed 11-7-83.)
(d) The OEO staff, will certify MBE's using a certification form to be prescribed. Upon acceptance of this form, the staff will conduct a full review and analysis of the form. This review may include interviews and discussions with the applicant or the applicant's representative, a request for the submission of additional documentation or information and an on-site inspection by the OEO staff.
(e) Additional information and documentation may be requested by the OEO in connection with a recertification, compliance review, investigation or other process undertaken as a result of the rules set forth in this chapter.
(f) Certification shall be valid for one year, January 1 to December 31, unless revoked by the OEO. Renewal of certification shall be in accordance with the recertification procedures set forth in Section 168.08.
(g) Minority business enterprises participating in joint ventures must be individually certified in accordance with this chapter.
(h) If an MBE has not been certified by the OEO prior to its participation in a joint venture, the applications for individual certification of the joint venture may be submitted to and reviewed by the OEO simultaneously.
(i) Minority business enterprises must apply for recertification each year and it must be approved by the OEO prior to bidding for any contract.
(Ord. 83-75. Passed 4-4-83.)
(a) All applications for certification must meet the following requirements in order to be accepted by the Office of Equal Opportunity for review:
(1) All applications must be completely filled out.
(2) All required documentation must be supplied.
(3) The application must be notarized.
(b) Any application which does not meet the requirements set forth in subsection (a) hereof will not be accepted.
(c) Upon receipt of an application, the OEO staff will conduct a preliminary review.
(1) If the application is complete, it will be accepted for Division review.
(2) If the application is incomplete, it will be returned to the applicant with a notice indicating the need for additional action or material in order for the application to be accepted for review.
(d) The OEO staff may hold interviews or discussions with an applicant or an applicant's representative as part of the preliminary review process in order to assist the applicant in fulfilling the application requirements of this section.
(e) The staff review may include a financial review of the books and records of the applicant. Each applicant shall be required to grant permission for such a financial review on the application form submitted to the office.
(f) Upon completion of the staff review, the OEO staff shall prepare a report setting forth its findings and recommendations. The report and application shall be submitted for consideration by the staff in making its determination.
(Ord. 83-75 . Passed 4-4-83.)
(a) MBE or WBE certification is effective for one calendar year, beginning January 1 to December 31 of each year.
(b) Every MBE and WBE will have until January 31 after the December 31 expiration date to become recertified if it is not recertified after January 31 the MBE or WBE will not be able to participate in the MBE or WBE Program until recertified. Any MBE or WBE that wishes to participate in a contract must apply for certification at least ten calendar days prior to bid opening.
(c) Applications for recertification shall be sent by certified mail to all certified MBE's and WBE's sixty days prior to bid opening.
(d) Applications for recertification shall meet all of the requirements for application for certification set forth in Section 168.07, with all information, documents, other data and verification updated to the date of the application for recertification
(Ord 87-257. Passed 9-21-87.)
(a) The Office of Equal Opportunity shall establish an education and technical assistance program which is designed to enhance the skills of minority business enterprises and provide assistance by disseminating information on loan availability, by financial counseling and by estimating and providing such general assistance to the minority business community as may be necessary to effectively improve the participation of minority business enterprises in the City's procurement process.
(b) Direct and indirect technical assistance will be provided to minority construction contractors through the OEO. A directory of agencies that might assist such contractors will be kept by the OEO and referrals to these agencies shall be made on an as-needed basis.
(c) Appropriate personnel will be available to answer specific questions and provide instructions for completing the bid documents before the bid closing date.
(d) The OEO, in conjunction with local MBE organizations, will conduct technical assistance workshops and training sessions to acquaint such enterprises with all aspects of the City's procurement process.
(Ord. 83-75. Passed 4-4-83.)
(a) Any person or organization with information indicating unjust participation by an enterprise or individual under this chapter, or who believes that the MBE participation is being improperly applied, should contact the Office of Equal Opportunity and provide a detailed statement, in writing, for the basis of the complaint.
(b) Upon receipt of a complaint, the OEO will attempt to resolve the issues in dispute. If the complainant believes the issues raised have not been satisfactorily resolved, the complainant should contact the Director of Safety-Service.
(Ord. 83-75. Passed 4-4-83.)
(a) Any public contract valued at more than twenty thousand dollars ($20,000) shall provide that the contractor shall award subcontracts to MBE's according to the following minimum percentages of the total dollar value of the contract:
(1) Fourteen percent for construction, repair or maintenance contracts;
(2) Five percent for supplies, services or professional contracts.
(b) Any public contract valued at thirty thousand dollars ($30,000) or more shall provide that the contractor shall award subcontracts to WBE's according to the following minimum percentages of the total dollar value of the contract:
(1) Three percent for construction, repair or maintenance contracts;
(2) Three percent for supplies, services or professional contracts.
(Ord. 87-257. Passed 9-21-87.)
(c) At the time of submission of a bid, the bidder shall complete and attach a commitment to achieve the foregoing minimum participation percentages. Each bidder shall complete and attach a schedule of MBE and WBE participation, showing all minority business enterprises and all women's business enterprises that will participate as subcontractors or joint ventures in this contract, and a signed letter of intent from each MBE or WBE listed on the schedule. Technical errors or omissions may be corrected or completed on forms included in the bid packet within ten calendar days after the bid opening date, provided, however, that there shall be no change in the dollar amount of the bid, or in any of the terms or conditions of the bid, or in the designated MBE or designated WBE. If the prime contractor does not meet or comply with the MBE or WBE percentage goals as provided herein, or as agreed to in any contract entered into between the prime contractor and the City, including any exhibits or attachments thereto, then the City at its sole option, may withhold from the prime contractor an amount not to exceed the MBE or WBE percentage goals as agreed to by the prime contractor in its contract with the City, including any exhibits or attachments thereto.
(Ord 89-279. Passed 12-18-89.)
(d) The Mayor may authorize a partial or total waiver of the subcontracting requirements upon application and demonstration by the contractor that there are not sufficient qualified MBE's or WBE's reasonably available to the contractor to fulfill the minority or women's subcontracting requirements, or that no meaningful portion of the contract being awarded may be completed by a subcontractor.
(e) For supplies, service or professional contracts, if there is no supplier on the list of certified MBE and/or WBE suppliers, the City may give an exemption from the requirements of this chapter through the Office of Economic Opportunity.
(Ord. 87-257. Passed 9-21-87.)
The Community Relations Board shall be comprised of five members, each serving a five-year term, appointed by the Mayor with the advice and consent of Council, with its members to include representatives of the public and members of the minority groups and business community. The original appointments shall be for a one-year, two-year, three-year, four-year and five-year term ending on September 30 of each following year, and each appointment thereafter shall be for a full five-year term. The Board shall conduct an annual review of the effectiveness of the Minority Business Enterprise Program and report its finding and recommendations, in writing, to Council, not later than thirty days before the expiration of such Program. The Board shall serve as a review or appeals board to which an aggrieved party may appeal from the decision of the Director of Safety-Service as otherwise provided for in this chapter.
(Ord. 83-233. Passed 11-7-83.)
All bids or offers on prime contracts covered by this section shall include the following:
(a) The name of the employee of the offerer or bidder who will administer the subcontracting program, and a description of the duties of such employee;
(b) A proposed plan for the implementation of the MBE subcontracting goal or requirement of the prime contract, including a description of the records which will be kept and made available to the Office of Equal Opportunity to show compliance with the subcontracting program aspect of the contract; and
(c) A statement that no contract will be awarded until an acceptable plan is reviewed by the OEO and incorporated in the contract. Acceptable plans must, in the opinion of the OEO, provide the maximum practical opportunity for approved MBE participation in the performance of the contract.
(Ord. 83-75. Passed 4-4-83.)
(a) MBE participation will be counted toward meeting the goals outlined in the notice provided for in Section 168.14, as follows:
(1) The total dollar value of a contract or subcontract awarded to a certified MBE will be counted toward the applicable goal.
(2) In the case of a joint venture, certified by the City, the portion of the total dollar value of the contract equal to the percentage of the ownership and control of the MBE partner in the joint venture will be counted toward the applicable goal.
(3) Only expenditures to MBE's that perform a commercially useful function in the work of a contract or subcontract will be counted toward MBE goals. An MBE is considered to perform a commercially useful function when it is responsible for the execution of a distinct element of the work of a contract or subcontract and carries out its responsibilities by actually performing, managing and supervising the work involved. If an MBE contractor subcontracts a significantly greater portion of the work of the contract than would be expected on the basis of normal industrial practices, the MBE is presumed not to be performing a commercially useful function. The MBE may present evidence to rebut this presumption.
(4) The total dollar value of materials and supplies obtained from an MBE supplier and manufacturer will be counted toward MBE goals if the MBE assumes the actual and contractual responsibility for the provision of the materials and supplies. The total dollar value will be counted in the case of an MBE manufacturer. Five percent of the total dollar value will be counted if the MBE supplier performs a commercially useful function in the supply process.
(b) The contractor's goal as set forth in this notice shall express the contractor's commitment to the percentage of MBE objectives and is not intended and shall not be used to discriminate against any qualified company or group of companies.
(c) The contractor must receive the approval of the City before making substitutions for any subcontractor listed in this notice.
(d) The contractor's commitment to a specific goal is to meet the MBE objectives and is not intended and shall not be used to discriminate against any qualified company or group of companies.
(e) Only MBE's and joint ventures that have been certified by the City will be considered eligible for inclusion in the contractor's goals for MBE utilization. Where a contractor wishes to include, as a subcontractor or joint venture, a minority business enterprise which has not been certified by the City, the contractor must request and receive such certification from the Office of Equal Opportunity prior to the submission of the bid or proposal.
Any firm which believes that it has been wrongly denied certification as an MBE or joint venture may request reconsideration by the Director of Safety-Service. However, the decision of the Community Relations Board, which must be presented in writing, will be considered final.
(f) The contractor's commitment to a specific goal for minority business enterprise utilization as required by this notice shall constitute a commitment to make every good faith effort to meet such goal by subcontracting to or undertaking a joint venture with minority business enterprise firms. If the contractor fails to meet the goal, it will carry the burden of furnishing sufficient documentation, as part of the bid response, of its good faith efforts to justify a grant of relief from the goals set forth in the notice. Such justification shall include at least the following information:
(1) Required attendance at the pre-bid meeting, if any, scheduled by the City to inform MBE's of subcontracting opportunities under a given solicitation;
(2) Written notification to MBE associations that minority participation in the contract is solicited;
(3) Efforts made to select portions of the work proposed to be performed by MBE's in order to increase the likelihood of achieving the stated goals;
(4) Efforts to negotiate with MBE's for specific subbids, including, at a minimum:
A. The names, addresses and telephone numbers of MBE's that were contacted;
B. A description of the information provided to MBE's regarding the plans and specifications for portions of the work to be performed; and
C. A statement of why additional agreements with MBE's were not reached.
(5) Names of enterprises which the supplier/contractor contacted but rejected as unqualified and the reasons for the conclusion;
(6) Efforts made to help the MBE's contacted that needed assistance in obtaining required bonds, lines of credit or insurance; and
(7) Use of the services of minority community organizations, minority contractor's groups, governmental minority business assistance offices and other organizations which assist in the recruitment and placement of MBE's.
(g) Suppliers/contractors that fail to meet MBE goals and fail to demonstrate sufficient good faith efforts are not eligible to be awarded the contract.
(h) If, after submitting the above information to the OEO, the waiver is denied, the contractor has the following appeal rights:
(1) To the Director of Safety-Service; and
(2) If not satisfied with the Director's decision, to the Community Relations Board.
(i) The bidder to whom a contract has been awarded must, prior to execution of the contract, submit to the City a schedule of MBE participation, setting forth the names of MBE subcontractors, a description of the work each is to perform and the dollar value of each MBE subcontract. lf such bidder fails to meet the MBE percentage goals or to demonstrate sufficient reasonable efforts to attain such goals, such failure shall constitute grounds for forfeiture of the bid guaranty.
(Ord 88-289. Passed 10-17-88.)
The City, through its Office of Equal Opportunity, will review the contractor's minority business enterprise involvement efforts during performance of the contract, as follows:
(a) The OEO shall review each contractor's minority business enterprise efforts to determine compliance with the stated percentage goals of each bid.
(b) If the contractor meets or exceeds the stated requirements, the contractor shall be presumed to be in compliance and the bid shall be approved.
(c) When it is found that a contractor has failed to meet the stated goal of his or her plan, the OEO shall review the plan with the contractor and allow five days for revision. This review shall be in writing and made a part of the bidder's file for future reference.
(d) If the contractor fails to comply, the OEO shall recommend disapproval and refer the matter to the Director of Safety-Service for further disposition.
(e) If the contractor ensures that the goals will be met during the performance of the contract and later it is learned that he or she has failed to comply, the Director will issue a withhold payment notice to the appropriate City departments.
(f) Following the withholding of payment, no further payment will be made until the contractor meets the goals. Failure of the contractor to meet the goals will result in the contractor being declared in default, and the City may procure the article or services from other sources and hold the contractor responsible for any excess cost occasioned thereby.
(g) Responsibility for determining whether or not a nonregistered MBE is qualified as an MBE will be the contractor's. Where the City finds that the offered MBE is not qualified, as stated by the contractor, the City reserves the right to impose such sanctions against the contractor as may be necessary, including the termination of the contract and rejection of future bids for a period of one year from the date the sanctions were approved.
(h) The contractor shall keep records and documents for one year following performance of the contract to indicate compliance with the notice of Requirements to Ensure MBE Opportunity. These records and documents, or copies thereof, shall be made available at reasonable times and places for inspection by any authorized representative of the City and shall be submitted to the City upon request, together with any other compliance information which such representative may require.
(i) Bidders and contractors are bound by all the requirements, terms and conditions of such notice.
(Ord. 83-75. Passed 4-4-83.)
(a) The Office of Equal Opportunity will certify joint ventures involving minority business enterprises where such combinations will contribute to minority and nonminority business development and where the participation of minority contractors involved in such joint venture entities is substantial.
(b) Minority business enterprises participating in joint ventures must be individually certified in accordance with this chapter.
(c) Individual certification of an MBE participating in a joint venture shall not automatically qualify the joint venture for registration. Each joint venture must be certified as a separate business entity under this section in order to participate in established programs.
(d) If an MBE has not been certified by the OEO prior to its participation in a joint venture, the applications for individual certification of the joint venture may be submitted to and reviewed by the OEO simultaneously.
(e) The OEO will consider the following capitalization and financial factors in determining whether to certify a joint venture:
(1) The percentages of profits, losses and liabilities to be shared by the MBE participant;
(2) Agreements or other arrangements among the joint venture participants with regard to working capital, including, but not limited to, the following:
A. The percentage of initial capital contributions by each joint venture participant;
B. Additional capital contributions beyond initial capitalization;
C. Withdrawal of working capital; and
D. Effects of the failure to advance by the participants;
(3) The cost of construction items to each participant, including items not reimbursable;
(4) The methods and applications of returns from the sale of assets and equipment acquired; and
(5) The nature of the joint venture's banking arrangements.
(f) The OEO will consider the administrative and management structure of the joint venture, including, but not limited to, the following factors:
(1) Accounting and budgeting methods;
(2) Methods of supervision of on-site and office work and operation;
(3) Methods of purchase or other acquisition of equipment, materials, goods, services and supplies;
(4) Personnel policies and methods, including hiring, promotion and adverse actions;
(5) The manner of controlling the operations of the joint venture, including methods for decision making and resolution of disputes.
(g) The OEO will also consider additional factors affecting the relationship of the joint venture participants, including, but not limited to, the following:
(1) Arrangements among the participants for the procurement of performance and bid bonds;
(2) Arrangements among the participants for the procurement of insurance;
(3) The specific nature and proportion of the contract work to be performed by each participant;
(4) The nature of any rights to assign, transfer, mortgage, pledge or otherwise alienate any portion of the joint venture; and
(5) The nature of the rights of the participants to legally bind the joint venture.
(Ord. 83-75. Passed 4-4-83.)
(a) The Community Relations Board appointed by the Mayor will have the authority to review and report annually on the progress of the City's Minority Business Enterprise Program.
(b) The Board will review the relevant impact of the Program upon MBE's simultaneously with the quarterly review process.
(c) The Board will review annually minority contracting problems and make recommendations for the improvement of minority business development in accordance with this chapter.
(Ord. 83-75. Passed 4-4-83.)
(a) The Office of Equal Opportunity will deny certification as a minority business enterprise or MBE joint venture to any business entity which fails to meet the requirements of this chapter.
(b) The OEO shall base its denial of certification on any of the following grounds:
(1) Failure to qualify as a minority business enterprise under this chapter;
(2) Failure to provide sufficient information to the OEO on which a determination of eligibility can be based;
(3) Refusal to permit on-site inspections by the OEO staff; or
(4) Refusal to comply with a reasonable OEO request for information, data or access to records pertinent to the application for certification.
(c) If certification is denied, the OEO shall notify the applicant of the denial, in writing, within ten days, along with the reasons for the denial.
(Ord. 83-75. Passed 4-4-83.)
(a) The Office of Equal Opportunity shall periodically review the practices and status of certified MBE's to determine whether they continue to meet the eligibility requirements for certification and are conducting their business activities in accordance with this chapter.
(b) Informal compliance review shall consist of monitoring reports and information submitted by departments, MBE's and joint ventures, on-site visits or interviews and discussions conducted by the OEO staff.
(c) If the OEO discovers correctable noncompliance as the result of an informal compliance review, it may seek compliance by the MBE prior to instituting further proceedings. In such cases, the OEO shall issue a notice of noncompliance to the MBE, specifying the nature of the alleged noncompliance, and shall recommend steps to be taken by the MBE to correct the stated deficiencies. The OEO may enter into discussions with the MBE to attempt to resolve the compliance problem informally.
(d) If the informal compliance procedures result in the correction of the deficiencies, the OEO shall keep on file a copy of the notice of noncompliance, the steps taken to correct any deficiencies and the results of a follow-up investigation. If the informal compliance procedures do not result in the correction of all deficiencies, the OEO may institute formal compliance review proceedings.
(e) Upon completion of the formal compliance review process, the OEO shall prepare a report setting forth its findings.
(f) The OEO may hold an informal preliminary hearing at which the MBE shall be allowed to appear and state its position on the allegations. After an informal preliminary hearing, or without such informal hearing if the OEO so determines, the OEO shall take one of the following actions:
(1) Dismiss the allegations as unfounded; or
(2) Adopt formal charges and conduct a formal hearing on the allegations.
(Ord. 83-75. Passed 4-4-83.)
(a) Formal charges against an MBE joint venture which may result in revocation of certification may be brought and adopted on any of the following grounds:
(1) Failure to report changes in the status or activities of the business entity or its minority membership which affect the MBE's eligibility for certification; or
(2) Violation of any of the provisions of this chapter.
(b) The Office of Equal Opportunity shall give written notice of the adoption of charges to the MBE or joint venture. The notice shall set forth the grounds and reasons for the denial and shall set forth the right to a hearing and hearing procedures.
(c) A hearing before the Community Relations Board to contest the revocation of certification may be obtained by filing a written request for a hearing within ten days of the receipt of the notice of revocation. A written response to the charges may be filed with the request for a hearing or at any time prior to the conclusion of the hearing.
(d) Hearings shall be conducted in accordance with the procedures set forth in Section 168.23.
(Ord. 83-75. Passed 4-4-83.)
(a) The Office of Equal Opportunity may deny recertification of an MBE/joint venture on one or more of the grounds set forth in Section 168.19.
(b) If recertification is denied, the OEO shall notify the applicant of the denial, in writing, along with the grounds and specific reasons for the denial. Notice of denial of recertification shall also include notice of the right to a hearing and hearing procedures.
(c) A hearing before the Community Relations Board to contest the denial of recertification may be obtained by filing a written request for a hearing within ten days of the receipt of the notice of denial. A written response to the grounds and reasons for denial may be filed with the hearing request or at any time prior to the conclusion of the hearing.
(d) Hearings shall be conducted in accordance with the procedures set forth in Section 168.23.
(Ord. 83-75. Passed 4-4-83.)
(a) Hearings held in connection with denials of recertification and revocation of certification shall be conducted in accordance with the procedures set forth in this section.
(b) Upon receipt of a request for a hearing, the Community Relations Board shall set a date for the hearing and shall give the party requesting the hearing at least thirty days written notice of the date and time set for the hearing. The MBE or joint venture may waive its right to a full thirty days notice of the hearing by stating that such right is waived in the request for a hearing. If the right to thirty days notice is waived, the Board shall inform the MBE or joint venture of the hearing date and time at least ten days prior to the hearing.
(c) The Board has the authority to request the attendance of persons and the production of documents.
(d) MBE's shall have the right to be represented by counsel, present evidence and witnesses and cross-examine adverse witnesses.
(e) All hearings shall be open to the public.
(f) An electronic recording of the hearing shall be made which shall be a part of the official record of the proceedings. A copy of the recording shall be made available to the MBE, at cost, upon request.
(g) All testimony shall be given under oath or affirmation.
(h) Any person may be excluded from the hearing for conduct which interferes with the hearing process.
(i) The rules of evidence shall not strictly apply. However, the Board shall have the authority to exclude irrelevant or repetitive evidence or testimony.
(j) The official record of the hearing shall consist of the notice of the hearing, the written submissions of the MBE/joint venture, if any, the report of the Office of Equal Opportunity staff upon which the charges or denial is based, briefs and proposed findings and conclusions filed by the parties, exceptions to proposed findings and conclusions and the electronic recording of the hearing.
(k) The Board's final decision shall be based upon the record of the hearing, and a decision to revoke the certification of an MBE must be supported by a preponderance of the evidence.
(l) The final decision of the Board shall be issued, in writing, within thirty days of the date on which the charges were adopted or a notice of denial of recertification was issued by the OEO.
(m) The official record of the proceedings and actions of the Board shall be maintained by the OEO.
(Ord. 83-75. Passed 4-4-83.)