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(A) State or Federal Provisions. In Contracts which involve the use of any funds furnished, given or loaned by the Government of the United States or the State of California, all laws, rules and regulations of the Government of the United States or the State of California or of any of its departments relative to the performance of such work and the conditions under which the work is to be performed, shall prevail over the requirements of this Chapter when such laws, rules or regulations are in conflict.
(B) Severability. The provisions of this Chapter are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this Chapter, or the invalidity of the application thereof to any Person or circumstances shall not affect the validity of the remainder of this Chapter, or the validity of its application to other persons or circumstances.
(C) General Welfare Clause. In undertaking the enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
(D) Municipal Transportation Agency. Consistent with Charter Section 8A.101(d), the Municipal Transportation Agency shall comply with the provisions of this Chapter and shall be solely responsible for its administration and enforcement with respect to matters within the Municipal Transportation Agency's jurisdiction.
LBE Subcontracting participation requirements shall be implemented for Design-Build and Integrated Project Delivery Contracts as follows:
(A) Design-Build Contracts.
(1) The Director shall establish separate LBE participation requirements for the design and construction portions of the Design-Build Contract.
(B) Integrated Project Delivery Contracts. The Director shall establish a project-wide LBE subcontracting participation requirement.
(C) LBE Subcontracting Participation Requirements for Trade Subcontractors. LBE Subcontracting participation requirements for trade package subcontracts awarded under Design-Build Contracts under Administrative Code Section 6.61(L) and Integrated Project Delivery contracts under Administrative Code Section 6.68 shall be as follows:
(1) Prior to the advertisement of any trade packages, the Design-Builder or Construction Manager/General Contractor (Prime Contractor), in consultation with the Director, shall establish a written plan for achieving the LBE subcontracting participation requirement. The plan shall be based on the availability of LBEs who could perform the work or supply materials and equipment for each trade package. In the case of a Design-Build Contract, the professional design services such as architectural or engineering performed by LBE firms will be credited toward the established LBE participation requirement on the design portion of the Contract. In the case of a trade package subcontract where some or all of the work is design-build, the plan should credit professional design services such as architectural or engineering performed by LBE firms toward the established trade package LBE participation requirement.
(2) The Prime Contractor shall set forth the applicable LBE subcontracting participation requirements in the bid specifications for each trade package. The Prime Contractor shall undertake the good faith outreach required in Section 14B.8(D) for each trade package until the cumulative trade package LBE utilization commitments meet the project-wide subcontracting participation requirements.
(3) The Director shall have sole authority for determining whether or not each trade package low bidder has met the applicable LBE subcontracting participation requirement.
(4) In the event a trade package apparent low bid does not meet the LBE subcontracting participation requirement, the Prime Contractor shall allow the bidder up to ten business days after bid opening to amend the bid to make up the shortfall, provided that the amendment conforms with CMD Rules and Regulations and does not violate the California Subletting and Subcontracting Fair Practices Act (Public Contract Code Section 4100 et seq.). The Prime Contractor shall deem an apparent low bid that does not make up a shortfall in LBE subcontracting participation requirements within the ten day extension, or such additional time as the Director may, in writing, allow, non-responsive and ineligible for award of the trade package subcontract. In such an instance, the Director and the Prime Contractor shall proceed to evaluate the second low bidder in the same manner, and so on for potential contract award.
(5) The Director shall monitor the Prime Contractor's actual LBE subcontracting participation as the trade package bids are received. In the event the Director determines that LBE subcontracting participation commitments at a particular time in the bidding of trade packages are materially lower than stated in the Prime Contractor's plan prepared under Section (C)(1) above, the Prime Contractor shall make all efforts to take immediate corrective steps, including to negotiate and award trade packages to LBEs using the seven and one half percent (7½%) of total trade package costs available to it for negotiating subcontracts under Administrative Code Sections 6.61(L)(3) or 6.68(H)(3), as applicable. The Prime Contractor shall be solely responsible for complying with the LBE subcontracting participation requirements and may be subject to sanctions as described herein in Section 14B.17 for failure to do so.
(Added by Ord. 18-10, File No. 091404, App. 2/10/2010; amended by Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015)
In addition to any requirement in Section 56.7 of the Administrative Code, a development agreement entered into by the City under Chapter 56 of the Administrative Code shall require a detailed LBE utilization plan. The plan shall require compliance with the Good Faith Outreach requirements in Section 14B.8(D), the nondiscrimination provisions in Section 14B.9, and shall include a LBE utilization requirement set by the Director in conformance with the City-wide LBE Participation Goal, a reporting and monitoring program as approved by the Director, and an enforcement plan that allows the Director to assess penalties or other sanctions as provided in Section 14B.17.
(a) Joint Venture Incentives For Use By Contract Awarding Authorities.
(1) Prime Professional Services Contracts. For Professional Services and Architecture/Engineering prime Contracts estimated by the Contract Awarding Authority to cost in excess of $20,000,000, the Contract Awarding Authority may apply a rating bonus as described in subsection (a)(3) to proposals from Joint Ventures with Small and/or Micro-LBE Joint Venture partners. The applicability of the rating bonus shall be clearly identified in the request for qualifications/proposals or other solicitation document.
(2) Design-Build Contracts. For Design-Build Contracts estimated by the Contract Awarding Authority to cost in excess of $20,000,000, Contract Awarding Authorities may apply a rating bonus as described in subsection (a)(3) to proposals from design-builders where the lead designer is a Joint Venture with a Small and/or Micro-LBE Joint Venture partner. The applicability of the rating bonus shall be clearly identified in the request for qualifications/proposals or other solicitation document.
(3) Rating Bonus. The following rating bonus may apply where the Director finds that the Small and/or Micro LBE Joint Venture Partner (i) will be responsible for, and has sufficient skill, experience, and financial capacity to perform a clearly defined portion of the work, (ii) shares in the Ownership, Control, management responsibilities, risks, and profits of the Joint Venture at least in proportion to the value of its assigned Joint Venture work, and (iii) performs a Commercially Useful Function:
(A) Up to 2% rating bonus to a Joint Venture with LBE prime Contractor or lead design partner participation that equals or exceeds 5% but is less than 10% of the prime level work or design portion of a Design-Build Contract.
(B) Up to 4% rating bonus to a Joint Venture with LBE prime Contractor or lead design partner participation that equals or exceeds 10% but is less than 15% of the prime level work or design portion of a Design-Build Contract.
(C) Up to 6% rating bonus to a Joint Venture with LBE prime Contractor or lead design partner participation that equals or exceeds 15% of the prime level work or design portion of a Design-Build Contract.
(4) The rating bonus shall not apply to any cost portion of the selection or evaluation process.
(5) For prime Professional Services Contracts, LBE prime Joint Venture partner participation cannot be used towards meeting the Contract’s LBE Subcontractor Participation Requirement. For Design-Build Contracts, LBE lead design Joint Venture partner participation can be used towards meeting the Contract’s LBE Subcontractor Participation Requirement. For both Contract types, LBE Joint Venture partner participation can be used towards meeting the good faith outreach exemption in Section 14B.8(B)(1).
(b) Core Discipline Incentives For Use by Contract Awarding Authorities. For all Professional Services and Architecture/Engineering prime Contracts, Contract Awarding Authorities may, in consultation with the Director, include as evaluation or selection criteria in the Contract procurement, a prime Contractor’s use of Micro and/or Small-LBEs in core disciplines to meet the Contract’s LBE Subcontractor Participation Requirement. The Contract Awarding Authority shall specify in the request for qualifications/proposals or other solicitation document what trades, scopes of work, or discipline areas will be considered core disciplines for a Contract. The weight of this core discipline selection criteria in the overall selection process will be at the discretion of the Contract Awarding Authority, and shall be clearly identified in the request for qualifications/proposals or other solicitation document.
(Ord. 213-17, File No. 170921, App. 11/3/2017, Eff. 12/3/2017)
(a) The Director shall develop and implement a pilot neighborhood, hyper-local preference program, outlined in subsections (b)-(e), to encourage participation by neighborhood businesses on City public works projects located in their neighborhood.
(b) Eligible Contracts. This neighborhood LBE program shall apply to Administrative Code Chapter 6 Contracts for projects located within the jurisdictional boundary of San Francisco estimated to cost over $10,000 and less than $10,000,000. The program shall not apply to Job Order Contracts (JOC), As-Needed contracts, or other contracts where no specific project location is specified at the time of Bid.
(c) Eligible Businesses. The program preferences as described in subsection (d) shall be available to LBEs who meet one or both of the following criteria:
(1) Project Zip Code LBE. A “Project Zip Code LBE” means a certified Small or Micro-LBE whose principal place of business is located in the same zip code as the zip code in which the project is located; or
(2) Neighborhood LBE. A “Neighborhood LBE” means a certified Small or Micro-LBE whose principal place of business is located in the same Neighborhood as the Neighborhood in which the project is located, where “Neighborhood” is defined as any one of the 11 Supervisorial Districts as defined and established in the San Francisco Charter, Appendix E at time of Bid.
(d) Amount of Discount. Contract Awarding Authorities shall apply the following Bid Discounts to eligible contracts:
(1) A 1% Discount to Bids from a Neighborhood LBE when bidding on a Contract where the project is located in the same Neighborhood as the Neighborhood LBE’s principal place of business.
(2) A 1.5% Discount to Bids from a Project Zip Code LBE when bidding on a Contract where the project is located in the same zip code as the Project Zip Code LBE’s principal place of business.
(3) A 0.5% Discount to Bids from any bidder if the LBE subcontracting participation in the submitted Bid includes participation by Neighborhood LBEs of at least 50% of the LBE subcontracting participation requirement.
(4) A 1.5% Discount to Bids from any bidder if the LBE subcontracting participation in the submitted Bid includes participation by Zip Code LBEs of at least 50% of the LBE subcontracting participation requirement.
(e) The Discounts provided under this Section 14B.22 shall be combined with each other and/or any other Discounts authorized under this Chapter 14B, except that a bidder cannot receive cumulative Discounts based on either (1) and LBE’s status as both a Neighborhood LBE and Project Zip Code LBE simultaneously or (2) a bid that includes LBE subcontracting participation by both Neighborhood LBEs and Project Zip Code LBEs. Contract Awarding Authorities shall apply these Discounts to each evaluation stage of the selection process, as applicable.
(f) Final Report. Four years and six months after the start of the pilot program, the Director shall submit a report on the efficacy of the program to the City Administrator.
(g) This program shall sunset five years from the operative date of the ordinance in Board File No. ______, which created the pilot program.
(Added by Ord. 203-21, File No. 210835, App. 11/12/2021, Eff. 12/13/2021, Oper. 7/1/2022)