(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)