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(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.)