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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.)
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.)
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