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Editor’s note:
Ord. 24534-11-2020, adopted November 17, 2020, effective January 1, 2021, superseded all previous policies relating to minority and women business enterprises and established the policies set forth below. Section 7 of that ordinance provides that “For any procurement activity where formal solicitation occurred prior to January 1, 2021, the 2011 Ordinance shall continue to be in full force and effect.” Prior to the effective date of Ord. 24534-11-2020, policies relating to minority, women and disadvantaged business enterprises were set forth in this article and derived from Ord. 20020-12-2002, adopted December 13, 2011, Ord. 21606-01-2015, passed 1-13-2015, Ord. 21650-02-2015, passed 2-17-2015, Ord. 21652-02-2015, passed 2-17-2015, and Ord. 22972-10-2017, passed 10-24-2017. Prior to the adoption of that ordinance, this article pertained to similar subject matter and derived from Ord. 11923, adopted April 18, 1995, 13571, adopted June 2, 1998, and 15530, adopted April 22, 2003.
ANNUAL GOAL. The overall target for business equity firm utilization in contracts (prime contracts and subcontracts combined) as defined by the calculation method used in the city's most recent disparity study, and should be the basis for consideration of overall, annual spending targets for city funds. This target can be the city's goal for its overall spending with certified firms across all industry categories.
ARTICLE. Chapter 20, Article X Code of the City of Fort Worth (2015).
BEST VALUE. A procurement method in which the selected bidder is not determined solely by the lowest price bid.
BIDDER. Any person seeking to be awarded a contract.
BID SHOPPING. The practice of divulging a contractor's or subcontractor's bid to other prospective contractor(s) or subcontractor(s) before the award of a contract in order to secure a lower bid.
BUSINESS EQUITY BOARD. The group of industry stakeholders established by city council tasked with advising the city on business equity firm participation in city procurement activities and is formerly known as the minority and women business enterprise advisory committee.
BUSINESS EQUITY FIRM. An independent firm that is a certified MBE and or WBE with a significant business presence in the city's marketplace.
BUSINESS EQUITY GOAL. A calculation prepared by the DVIN that includes all the following factors: the detailed cost estimate of the work to be performed, or goods purchased; the marketplace; the availability of business equity firms and non-business equity firms in the marketplace determined on a contract-by-contract basis; and the subcontracting/supplier opportunities of each project.
BUSINESS EQUITY MANAGEMENT SYSTEM. An online business equity contract tracking system utilized by DVIN.
CERTIFIED. Those firms identified by the North American Industry Classification System (NAICS) that have been determined to be a bona fide MBE or WBE by the North Central Texas Regional Certification Agency (NCTRCA), the Dallas/Fort Worth Minority Supplier Development Council (DFW/MSDC), Women's Business Council-SW (WBCS), Texas Department of Transportation (TxDOT) or other certifying agency that the DVIN may deem appropriate and accepted by the City of Fort Worth.
CITY. The City of Fort Worth, Texas.
CITY FUNDS. All revenues derived from any source other than federal or state grants or allocations.
CITY MANAGER. The city manager of the City of Fort Worth, Texas.
COMBINED PROJECT. A construction contract including more than one of the following: paving, drainage, or water/sanitary sewer; the term does not include a standard water/sanitary sewer contract where the pavement is only temporarily or permanently repaired incidental to the water/sewer work.
COMMERCIALLY USEFUL FUNCTION. Responsibility for the execution of a distinct element of the work of a contract, which is carried out by actually providing materials, equipment, supplies, goods, or performing, managing, and supervising the work.
CONSTRUCTION. The processes involved in delivering buildings, infrastructure, or facilities; the term includes but is not limited to the erection, rehabilitation, alteration, conversion, extension, demolition, improvement, remodeling or repair to any real property, including streets, storm drains and facilities providing utility service owned by the city.
CONTRACT. Any purchase order or contract that (i) involves expenditure of $100,000 or more of city funds; (ii) could use subcontractors; and (iii) is awarded by the city, whether directly or indirectly, for work, labor, services, supplies, equipment, professional services, goods, construction, or construction-related activities, and materials or any combination of the foregoing; the term specifically includes but shall not be limited to, any purchase or lease of materials pursuant to Texas state law, any public work project authorized pursuant to Texas state law, or contract in which public bids are not required by law. A contract does not include an emergency contract.
CONTRACTOR. Any person that has been awarded a contract.
DEBAR or DEBARMENT. The city will not consider offers from or award new contracts to a bidder. A debarred business equity firm shall not be included in calculating a business equity goal.
DISPARITY STUDY. The City of Fort Worth Disparity Study finalized and presented to city council on June 16, 2020 or a study presented to the city council after that date.
DOING BUSINESS. Engaging in for-profit activities in the scope of the expertise of the firm and having a physical location and/or digital presence from which to do so.
DVIN. The city's department of diversity and inclusion.
EMERGENCY CONTRACT. A contract that is awarded on an emergency basis due to a threat of harm to person or property or threat of disruption of governmental services and approved by the city attorney's office as an emergency contract exempt from Texas public bidding laws.
GOOD FAITH EFFORTS. The actions undertaken by a contractor and approved by DVIN as described in § 20-370, below.
HORIZONTAL CONSTRUCTION. Construction of highways, roads, streets, bridges, utilities, water supply projects, water plans, wastewater plants, water and wastewater distribution or conveyance facilities, wharves, docks, airport runways and taxiways, drainage projects, or related types of projects associated with civil engineering construction as referenced in this article.
INDEPENDENT FIRM. A person whose viability does not depend on its relationship with another person.
JOINT VENTURE. A business entity formed by two or more independent persons for the purpose of pursuing a common objective, such as a prime contract. The resulting business entity has additional resources and capacity, enhancing its ability to compete for larger awards. A joint venture is generally characterized by shared ownership, shared returns and risks, and shared governance. In a joint venture, the prime managing partner holds 51% or more interest in the business. Partner(s) hold less than 51% interest but in most cases, not less than 20%.
MARKETPLACE. The geographic area as defined by the city's most current disparity study.
MAYOR. The mayor of the City of Fort Worth, Texas.
MINORITY INDIVIDUAL. A person who is a member of any of the following:
(1) “Black Americans” means persons having origins in any of the Black racial groups of Africa;
(2) “Hispanic Americans” means persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;
(3) “Native Americans” means persons who are enrolled members of a federally or State recognized Indian tribe, Alaska Natives, or Native Hawaiians;
(4) “Asian-Pacific Americans” means persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), Republic of the Northern Marianas Islands, Samoa, Macao, Fiji, Tonga, Kirbati, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong; and
(5) “Subcontinent Asian Americans” means persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka.
MINORITY-OWNED BUSINESS ENTERPRISE (MBE). A business entity, including but not limited to a sole proprietorship, partnership, corporation, limited liability company, association or joint venture:
(1) Which is at least fifty one percent (51%) owned by one or more minority individuals, or in the case of a publicly traded business, at least fifty one percent (51%) of all classes of the stock of which is owned by one or more minority individuals; and
(2) Whose management, policies, major decisions and daily business operations are independently managed and controlled by one or more such more minority individuals.
PERSON. A natural person or business entity, including but not limited to a sole proprietorship, partnership, corporation, limited liability company, association or joint venture.
PROGRAM. The administrative regulations for contracts with business equity firms that do not involve subcontractors.
RESPONSIVE. A person is in compliance with the requirements of this article.
SIGNIFICANT BUSINESS PRESENCE. A person:
(1) Which has its principal place of business located inside the marketplace;
(2) Which has its principal place of business located outside the marketplace but has been verified to be in existence for a minimum of 24 months and from which at least 20% of the business's workforce is based in the marketplace; or
(3) Which has cumulative business receipts greater than $1,000,000 for work done in the marketplace since January 1, 2013.
SOLICITATION. The process of inviting companies to bid on opportunities to provide goods and services.
SUBCONTRACTOR. Any person entering into a contract with a contractor or a higher tier subcontractor to directly furnish services or supplies toward the contract.
TIER. The numerical level of subcontracting below the contractor.
UTILIZATION PLAN. The list of business equity firms that a contractor commits will be utilized to meet the business equity goal for a specific project, the scopes of the work and the dollar values or the percentages of the work to be performed.
VERTICAL CONSTRUCTION. The construction or remodeling of any building, structure or other improvement that is predominantly vertical, including, without limitation, buildings, the design and construction of which are governed by accepted building codes.
WOMAN. An adult person of the female gender.
WOMEN-OWNED BUSINESS ENTERPRISE (WBE). A business entity, including but not limited to a sole proprietorship, partnership, corporation, limited liability company, association or joint venture:
(1) Which is at least fifty-one percent (51%) owned by one or more women, or in the case of a publicly traded business, at least fifty-one percent (51%) of all classes of the stock of which is owned by one or more women; and
(2) Whose management, policies, major decisions and daily business operations are independently managed and controlled by one or more such women.
(Ord. 24534-11-2020, § 1, passed 11-17-2020, eff. 1-1-2021; Ord. 25165-10-2021, § 1, passed 10-19-2021)
(a) The purpose of this article is to remedy past underutilization and provide a fair and level playing field for business equity firms and to encourage the participation of business equity firms to contract with the city.
(b) It is intended to promote equal opportunity and the utilization of business equity firms in the city's contracting opportunities.
(c) This article applies to any contract awarded by the city or any of its departments, boards or commissions for work, labor, services, supplies, equipment, materials or any combination of the foregoing; specifically including but not be limited to, any purchase or lease of materials, any public work project, or contract in which public bids are not required by law.
(d) The requirements of this article shall not apply to emergency contracts, however any department that procures an emergency contract must notify the DVIN, in writing, at the time it seeks legal approval of an emergency contract.
(e) Where contracts involve the expenditure of federal or state funds, the state or federal policy related to business equity firms participation may take precedence over this article.
(f) The provisions of this article shall be liberally construed for the accomplishment of its policies and purposes.
(g) Narrowly tailored goals shall be established in the areas of procurement and contracting.
(h) A business equity goal may be set on a contract-by-contract basis based on the type of work or services to be performed, or goods to be acquired and the availability of business equity firms in the marketplace.
(i) All required notifications under this article must be made to the DVIN at the following email address: DVIN_BEOffice@fortworthtexas.gov.
(Ord. 24534-11-2020, § 1, passed 11-17-2020, eff. 1-1-2021; Ord. 25165-10-2021, § 1, passed 10-19-2021)
(a) A business equity goal should be set by DVIN for the entire scope of work on a contract.
(b) A business equity goal shall be expressed in terms of a percentage of the total dollar value of each contract awarded by the city.
(c) Except as stated otherwise herein, a business equity goal shall be established for all contracts where business equity firms exist within the marketplace.
(d) DVIN shall set a business equity goal for community facilities agreements, infrastructure construction agreements, and any other agreement relating to the construction of public infrastructure or a public building when the city's participation in the agreement is $1,000,000.00 or more in city funds.
(e) If city funds are used in conjunction with state or federal grants or allocations, the city shall not set a business equity goal for community development block grants, HOME programs, or other projects that include federal funds except where the city is mandated to set goals by state or federal requirements.
(f) A business equity goal may be established for tax abatement agreements and Chapter 380 grant agreements if allowed by and in accordance with the most recently adopted Tax Abatement Policy and Chapter 380 Grant Agreement Policy.
(g) The city will count a business equity firm's self-performance towards meeting a business equity goal.
(Ord. 24534-11-2020, § 1, passed 11-17-2020, eff. 1-1-2021; Ord. 25165-10-2021, § 1, passed 10-19-2021)
(a) Joint ventures. Where it is economically feasible, the establishment of joint ventures to ensure prime contracting opportunities for business equity firms on certain solicitations is encouraged. The factors used to evaluate economic feasibility, include, but are not limited to, the estimated dollar value of the solicitation, the scope of work, the duration of the work, the complexity of the work, the availability of potential business equity firm joint venture partners in the relevant market area and the nature of the work.
(1) When the city uses a procurement method other than lowest responsible bidder, the city may, at its discretion, designate a particular solicitation as a "joint venture preferred" solicitation.
(2) A prospective joint venture partner shall state within its proposal or its statement of qualifications information that specifies the role and extent of the business equity firm joint venture partner(s) involvement. Such information shall include, but is not limited to:
a. The name of the business equity firm joint venture partner(s) that will participate on the project.
b. The percentage of prime contract dollars attributable to the services to be provided by the business equity firm joint venture partner; and, as appropriate the total dollar value of the services to be provided.
c. A description of the work that each business equity firm joint venture partner shall be responsible for performing under the terms of the joint venture agreement.
(3) The prospective joint venture partner must also submit a "joint venture eligibility form." DVIN will review the "joint venture eligibility form" and will have final approval, as to whether the proposed joint venture conforms to the DVIN's definition of a joint venture.
(4) The joint venture shall ensure that, at a minimum, the following items are addressed in the formation and governance of the joint venture:
a. The initial capital investment of each joint venture partner;
b. The proportional allocation of profits and losses to each joint venture partner;
c. The sharing of the right to control the ownership and management of the joint venture;
d. Actual participation of the joint venture partners on the project;
e. The method of and responsibility for accounting;
f. The method by which disputes are resolved; and
g. Any additional or further information required by the DVIN as set forth in this article, bid documents and/or otherwise.
(b) Mentor protégé program.
(1) The mentor protégé program is designed to foster relationships between contractors and underutilized business equity firms. The objective of the mentor protégé program is to provide professional guidance and support to the protégé (which must be a business equity firm) in order to facilitate protégé growth and development and increase the number of contracts and subcontracts awarded to business equity firm.
(2) The mentor-protégé relationship is intended to be mutually beneficial because it allows mentors to utilize their proteges to fulfill business equity goals when bidding on contracts. It is advantageous to build a partnership prior to a solicitation or contract award to establish confidence in performance.
(3) DVIN shall serve as a sponsor for the mentor protégé program. Companies interested in joining the mentor protégé program should contact DVIN to search a list of potential business equity firm proteges that may provide complementary services, and supply chain opportunities.
(4) DVIN may prioritize protégé businesses in critical areas of city procurement or contract needs.
(5) DVIN will consider the following criteria for selection of a mentor in the mentor protégé program:
a. The mentor must be registered with the City of Fort Worth;
b. Previous mentoring experience and or successful prior work history;
c. The mentor must have been in operation for at least five years;
d. Ability to provide developmental guidance in areas identified by the protégé; and
e. "Good standing" in doing business with the City of Fort Worth and regional partners.
(6) DVIN will consider the following criteria for selection of a protégé in the mentor protégé program:
a. Eligibility and willingness become a business equity firm, as defined herein;
b. Business in operation for at least one year;
c. Desire to participate with a mentoring firm;
d. Ability to work with DVIN in identifying the type of guidance needed for business development; and
e. "Good standing" in doing business with the City of Fort Worth and regional partners.
(Ord. 24534-11-2020, § 1, passed 11-17-2020, eff. 1-1-2021; Ord. 25165-10-2021, § 1, passed 10-19-2021)
(a) Any contract that is required to publicly bid work in accordance with the use of city funds must follow the rules in this article, including the requirement to publicly advertise all contracts for at least 21 days before opening any bids.
(b) All bidders seeking to enter into a contract with the city shall be registered as a vendor with the city.
(c) For a low bid procurement, the lowest bidder shall submit a utilization plan no later than 2:00 p.m. on the 3rd business day after bids are opened detailing all Subcontractors the contractor intends to utilize in its performance of a contract. Contractors that are business equity firms may count their self-performed services towards meeting a business equity goal.
(d) For a best value procurement, all bidders who wish to be considered for evaluation scoring shall submit a utilization plan by 2:00 p.m. on the 3rd business day after the bids are opened detailing all subcontractors the contractor intends to utilize in its performance of a contract. Contractors that are business equity firms may count their self-performed services towards meeting a business equity goal.
(e) Non-compliance. If the lowest bidder for a low bid procurement or any bidder for a best value procurement does not timely submit its utilization plan with the required documents, that bidder will be deemed non-responsive. For a low bid procurement, the city will notify the next lowest bidder who shall then submit a utilization plan with required documents no later than 2:00 p.m. on the 3rd business day after the bidder receives notification. This process will be followed until a bidder submitting the required documents is selected.
(f) A bidder who was previously debarred must apply to DVIN for reinstatement in order for its bid to be considered.
(g) Good faith effort. Where the bidder cannot achieve the business equity goal, the bidder must provide proof of having made good faith efforts to meet the business equity goal. Good faith effort requirement means an honest and conscientious effort by the bidder to explore all available options to achieve, to the maximum extent practical to meet the business equity goal.
(1) Compliance with each of the following steps shall satisfy the good faith effort requirement absent mere pro forma efforts or proof of fraud, misrepresentation, or intentional discrimination by the bidder:
a. List each and every opportunity for subcontractors for the completion of a contract. On combined projects list each opportunity for subcontractors through the 2nd tier.
b. Obtain a current list (dated not more than six months old prior to the bid open date) of business equity firms from the DVIN.
c. Solicit participation from business equity firms, within the subcontractor areas previously listed, at least ten calendar days prior to bid opening, exclusive of the day the bids are opened. Both business equity firms and non-business equity firms must receive the same solicitation for each area of opportunity. The three methods identified below are acceptable for soliciting participation, and each selected method must be applied to the applicable contract. The bidder may meet the good faith effort requirement by making at least one successful contact with a business equity firm using either (i) email, (ii) fax, or (iii) telephone. The bidder may also meet the good faith effort requirement by documenting, in the manners detailed below, that at least two attempts were made using two of the three following methods:
1. Email: a copy of the sent confirmation to each business equity firm with the date and time of the email printed directly from the email system for proper documentation. If an email is returned as undeliverable, then that "undeliverable message" received must be printed directly from the email system for proper documentation.
2. Fax: a copy of sent confirmation to each business equity firm with the date and time printed directly from the facsimile for proper documentation. If a fax is returned as undeliverable, then that "undeliverable confirmation" received must be printed directly from the fax for proper documentation.
3. Telephone: a call log that identifies each business equity firm contacted with the phone number, name of individual contacted, time, date and outcome of each phone call.
d. Provide plans and specifications or information regarding the location of plans and specifications which shall be communicated to all business equity firms in each subcontractor area.
e. Attach a copy of the solicitation sent to the business equity firm identifying the instructions on how to obtain plans and specifications for this solicitation.
f. Submit documentation of any business equity firm whose quotes were rejected. The documentation submitted should be in the form of an affidavit, include a detailed explanation of why the business equity firm was rejected and any supporting documentation the bidder wishes to be considered by the city. In the event of a bona fide dispute concerning quotes, the Bidder will provide for confidential review of any relevant documentation by city personnel.
g. All communications from the bidder to potential business equity firms shall be documented and submitted to the city.
(2) In making a good faith effort determination, DVIN will also consider, at a minimum, the bidder's efforts to:
a. Solicit through all reasonable and available means (e.g., attendance at prebid meetings, advertising and written notices) the interest of all business equity firms in the scopes of work of the contract. The bidder shall provide interested business equity firms with timely, adequate information about the plans, specifications, and requirements of the contract to allow such firms to respond to the solicitation. The bidder must follow up initial solicitations with interested business equity firms.
b. Select portions of the work to be performed by business equity firms in order to increase the likelihood that the business equity goal will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate participation, even when the bidder would otherwise prefer to perform these work items with its own forces. It is the bidder's responsibility to make a portion of the work available to business equity firms and to select those portions of the work or material needs consistent with the availability of such business equity firms to facilitate their participation.
c. Negotiate in good faith with interested business equity firms. Evidence of such negotiation includes the names, addresses, and telephone numbers of business equity firms that were contacted; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and why agreements could not be reached. The bidder may not reject business equity firms without sound reasons based on a thorough investigation of their capabilities. That there may be some additional costs involved in finding and using business equity firms is not in itself sufficient reason for a bidder's failure to meet the business equity goal, as long as such costs are reasonable.
d. The performance of other bidders in meeting the business equity goal may be considered. For example, when the apparent successful Bidder fails to meet the business equity goal but others meet it, it may be reasonably questioned whether, with additional reasonable efforts, the apparent successful bidder could have met the business equity goal.
(h) A signed letter of intent from each listed business equity firm describing the work, materials, equipment or services to be performed or provided by the business equity firm and the agreed upon dollar value shall be due at the time specified in the solicitation.
(i) If DVIN determines that a good faith effort was not made, the bidder shall be disqualified from that specific bid.
(j) Exclusive contract and non-compete agreement. A bidder or contractor may not require a business equity firm to enter into an exclusive contract or non-compete agreement that restricts a business equity firm's ability to grow and build capacity in the marketplace unless the business equity firm demonstrates to DVIN that an exclusive contract or noncompete agreement with a bidder or contractor will result or has resulted in the growth of the business equity firm's capacity in the marketplace and the business equity firm freely consents to the contract or agreement.
(k) Bid protest and procedure. In accordance with city general purchasing policies, bidders have certain rights to protest a bid award. The protesting bidder must submit a protest, in writing, in accordance with those general purchasing policies.
(l) If a bidder, contractor, subcontractor, or business equity firm desires to make an allegation of discrimination based on a protected class in the city's award of a contract, they shall submit such allegation, in writing, to DVIN before the performance of the contract. DVIN shall refer such allegation to the city human resources labor relations unit for investigation.
(Ord. 24534-11-2020, § 1, passed 11-17-2020, eff. 1-1-2021; Ord. 25165-10-2021, § 1, passed 10-19-2021)
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