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(A) In addition to the general findings set forth in Section 12D.A.2, and based upon the record before this Board, the Board hereby finds that the evidence before the Board relating to the award of professional services contracts for fiscal years 1993-93, 1993-94, 1994-95, 1996-97, 1997-98 and 1998-2003 reflects that MBEs and WBEs continue to be disadvantaged by discriminatory practices when competing for City prime professional service contracts. Further, the Board finds that race-neutral measures employed by the City do not prevent such discrimination against MBEs and WBEs from occurring.
(B) Contract awarding authorities shall apply bid/ratings discounts as enumerated in Section 12D.A.9(A) to all bids and proposals as enumerated in Section 12D.A.9(A) to all professional service contracts the estimated cost of which exceeds $10,000. Where professional service contracts are formally bid, all consultants selection panels and awarding officers shall apply the bid/rating discounts to each stage of the selection process, e.g., qualifications, proposals and interviews. Minorities and women shall be included on consultant selection panels.
(C) The Director is empowered to take actions to ensure compliance with the provisions of this ordinance, including, without limitation, intervening in the selection process by modifying the criteria used to select selection panelists or prime professional service contractors to correct any contracting practice that hinders equal business opportunities for MBEs and WBEs.
(Added by Ord. 296-98, App. 10/5/98; amended by Ord. 134-03, File No. 030347, App. 6/1/2003)
All City departments, commissions, boards, officers and employees, in the performance of their duties, and in the award of leases, franchises, concessions, and other contracts not subject to the race and gender-conscious bid/ratings discounts of this ordinance, shall make best efforts to use the services of MBEs, WBEs and LBEs.
(Added by Ord. 296-98, App. 10/5/98; amended by Ord. 134-03, File No. 030347, App. 6/1/2003)
(A) The Director shall waive the race- and gender-conscious bid discounts and good faith efforts requirements of this ordinance under the following circumstances:
1. Whenever the Director finds, with the advice of the contract awarding authority and the Office of Contract Administration, that needed goods or services are available from a sole source that is not currently disqualified from doing business with the City.
2. If the contract awarding authority certifies in writing to the Director, prior to the Controller's contract certification, that (a) the contract is being awarded under emergency circumstances as described and defined in Administrative Code Section 6.60 or Administrative Code Section 21.15 and (b) (i) there is no time to apply bid/ratings discounts or establish subcontracting goals, or (ii) there are no immediately available MBEs and WBEs that are capable of performing the emergency work.
(B) The Director shall waive the five-percent LBE bid discount for contracts in excess of $5,000,000 whenever a contract awarding authority establishes that:
1. Sufficient qualified LBEs capable of providing the needed goods and services required by the contract are unavailable and sufficient qualified businesses located outside San Francisco capable of providing the needed goods and services required by the contract are available; or
2. The application of the five-percent LBE discount will result in significant additional costs to the City if the waiver of the bid discount is not granted.
(C) The bid/ratings discount provisions of this ordinance are not applicable to any contract estimated by the contract awarding authority to cost in excess of $10,000,000.
(Added by Ord. 296-98, App. 10/5/98; amended by Ord. 134-03, File No. 030347, App. 6/1/2003)
(A) The Director shall monitor the City's progress toward achievement of the goals stated in Section 12D.A.3. The Director shall issue an exit report for any contract that includes MBE/WBE subcontracting participation or MBE/WBE prime contract participation as a joint venture partner. The purpose of this exit report is to ensure that prime contractors are complying with their commitments to use MBE and WBE subcontractors and MBE/WBEs are performing services as set forth in the bid/proposal and contract documents for the joint ventures.
(B) Noncompliance By Contractors. In cases in which the Director has cause to believe that a contractor has failed to comply with any of the requirements of this ordinance, rules and regulations adopted pursuant to this ordinance or contract provisions pertaining to MBE or WBE participation, the Director shall notify the contract awarding authority and shall attempt to resolve the noncompliance through conference and conciliation. If the noncompliance cannot be resolved, the Director shall conduct an investigation and, where the Director so finds, issue a written finding of noncompliance. The Director's finding shall indicate whether the contractor acted in good faith or whether noncompliance was based on willful or bad faith noncompliance with requirements of this ordinance, rules and regulations adopted pursuant to this ordinance or contract provisions pertaining to MBE or WBE participation. Where the Director finds that the contractor acted in good faith, after affording the contractor notice and an opportunity to be heard, the Director shall recommend that the contract awarding authority take appropriate action. Where the Director finds willful or bad faith noncompliance, after affording the contractor notice and an opportunity to be heard, the Director shall impose sanctions for each violation of the ordinance, rules and regulations adopted pursuant to this ordinance or contract provisions pertaining to MBE or WBE participation that may include:
1. Declaring the bidder or contractor nonresponsive and ineligible to receive the award of any pending contract;
2. Declaring the bidder or contractor to be an irresponsible bidder and disqualifying the bidder or contractor from eligibility for providing goods or services to the City for a period of up to five years, with a right of review and reconsideration by the Commission after two years upon a showing of corrective action indicating violations are not likely to recur;
3. If the bidder or contractor is a MBE, WBE and/or LBE, revoking that business' certification as a MBE, WBE and/or LBE;
4. Determining that the bidder or contractor has wilfully failed to comply with the provisions of this ordinance and, pursuant to the provision in the contract contemplated by Section 12D.A.9(D)(3) of this ordinance, calculating the liquidated damages for which the bidder or contractor shall be liable. Thereafter the Director shall send a written notice to the Controller, the Mayor and all contract awarding authorities overseeing any contract with the bidder or contractor, that a determination of willful or bad-faith compliance has been made and that all payments due the bidder or contractor shall be withheld as agreed by the bidder or contractor and the City pursuant to Section 12D.A.9(D)(3).
(C) The bidder or contractor may appeal the Director's decision to the Commission. The Commission may sustain, reverse or modify the Director's findings and sanctions imposed or take such other action to effectuate the purpose of this ordinance. An appeal by a contractor under this subsection shall not stay the Director's findings.
(D) The Director may require such reports, information and documentation from contractors, subcontractors, bidders, contract awarding authorities, and heads of departments, divisions, and offices of the City as are reasonably necessary to determine compliance with the requirements of this ordinance.
(E) Wilful Noncompliance by Contract Awarding Authority. Whenever the Director finds after investigation that a contract awarding authority has willfully failed to comply with its duties pursuant to Section 12D.A.9, the Director shall transmit a written finding of noncompliance specifying the nature of the noncompliance, to the contract awarding authority, the Commission, the Mayor and this Board.
The Director shall attempt to resolve any noncompliance through conference and conciliation. Should such attempt fail to resolve the noncompliance, the Director shall transmit a copy of the finding of noncompliance along with a finding that conciliation was attempted and failed to the Commission and this Board.
The finding of noncompliance shall be communicated to the Mayor for appropriate action to secure compliance pursuant to Section 12D.A.8(2).
(F) If the Director has reason to believe that any person has knowingly made, filed, or caused to be filed with the City any materially false or misleading statement or report made in connection with this ordinance, the Director shall report that information to the City Attorney or the District Attorney for appropriate action. The Director shall be empowered to conduct an investigation and for each violation of this Subsection 12D.A.16(F), to impose sanctions as set forth in Subsection 12D.A.16.
(Added by Ord. 296-98, App. 10/5/98; amended by Ord. 134-03, File No. 030347, App. 6/1/2003)
(A) The findings set forth in Section 12D.A.2 that relate to MBEs, WBEs are hereby incorporated by reference. This Board further finds that requiring prime contractors to demonstrate good faith efforts to use MBEs and WBEs as subcontractors on the City's contracts would offset some of the disadvantages that such businesses face and would promote competition by requiring prime contractors to solicit the participation of MBEs and WBEs that they might not otherwise solicit.
(B) For all public works/construction, architect/engineering, professional service, and general service contracts which the contract awarding authority reasonably anticipates will include subcontractor participation, prior to the solicitation of bids or proposals, the contract awarding authority shall provide the Director with a proposed job scope, and may submit written recommendations to the Director regarding MBE and WBE subcontractor participation goals to be set for the contract.
(C) Upon receipt of a proposed job scope and/or a written recommendation from a contracting awarding authority pursuant to Section 12D.A.9 (A)(3), the Director shall set the MBE and WBE participation goals for each public works/construction, architect/engineering, professional services, and general service contract based upon the following factors:
1. The extent of subcontracting opportunities presented by the contract;
2. The availability of MBE/WBE subcontractors capable of providing goods and services on the contract.
3. The Director shall set these goals within 10 working days of the date the Director receives from a contract awarding authority a proposed job scope and/or written recommendation. If the Director fails to act within 10 days, and the contract awarding authority submitted to the Director recommended goals, the recommended goals shall be deemed approved by the Director, provided the goals are based upon the factors identified above.
(D) All solicitations for bidders on prime public works/construction, architect/engineering, professional services, and general service contracts shall require each bidder to do the following:
1. Demonstrate in its bid that it has used good-faith efforts to use MBE and WBE subcontractors; and
2. Identify the particular MBEs and WBEs subcontractors to be used in performing the contract, specifying for each the dollar value of the participation, the type of work to be performed and such information as may reasonably be required to determine the responsiveness of the bid.
(E) A contract awarding authority may request that the Director waive or reduce the MBE and WBE subcontractor participation goals on public works/construction, architect/engineering and professional services contracts by submitting the reasons therefor in writing to the Director prior to the solicitation of bids.
(F) A bidder or contractor may request that the Director waive or reduce the amount of MBE or WBE subcontractor participation goals on a public works/construction, architect/engineering, professional service, and general service contract by submitting in writing with its bid to the contract awarding authority the reasons therefor.
(G) The Director may grant the request for waiver or reduction made pursuant to Sections 12D.A.17(E) and (F) upon a determination that:
1. The reasonable and necessary requirements of the public works/construction, architect/engineering, professional service, and general service contract render subcontracting or the participation of businesses other than the public works/bidder unfeasible;
2. Qualified MBEs and/or WBEs capable of providing the goods or services required by the contract are unavailable, despite the prime contractor's or the department's good-faith efforts to locate MBEs and WBEs to meet the participation goals; or
3. The available MBEs and WBEs have given price quotes that exceed competitive levels beyond amounts that can be attributed to cover costs inflated by the present effects of discrimination.
(H) Whenever the Director denies a contractor's request to waive or reduce the participation goals, the contractor may appeal that denial to the Commission. The Commission's decision on the request shall be final. In reviewing the Director's denial of a contractor's request to waive or to reduce participation goals, the Commission shall consider the extent of subcontracting opportunities presented by the contract and the availability of MBE/WBE subcontractors capable of providing goods and services on the contract.
The Commission may overrule, sustain or modify the Director's decision by applying the same standards that the Director is required to apply, as set forth in Subsection (G) above.
(I) The contract awarding authority shall require bidders or proposers on the contracts to contact MBEs and WBEs before listing them as subcontractors in the bid or proposal. The contract awarding authority shall declare bids or proposals that fail to satisfy this requirement nonresponsive.
(J) During the term of the contract, any failure to comply with the level of MBE and WBE subcontractor participation specified in the contract shall be deemed a material breach of contract.
(Added by Ord. 296-98, App. 10/5/98; amended by Ord. 134-03, File No. 030347, App. 6/1/2003)
(A) Reporting by the Director. Commencing November 1, 2003 and no later than the first day of every third month thereafter, the Director shall issue a written report to this Board. That report shall document each City department's performance under the terms of this ordinance, including, among other things, each City department's progress in meeting its MBE/WBE goals and the success of each department's prime contractors complying with its best efforts obligations to meet MBE/WBE subcontracting goals. That report shall also state whether or not each City department has fully reported all data required by this ordinance or requested by HRC or the Controller.
1. Whenever the Director's report concludes that a department management's intentional disregard or negligent performance of obligations imposed by this ordinance has contributed to that department's failure to meet its prime contracting goals or the failure of its prime contractors to use their best efforts to meet their subcontracting goals or whenever the Director's report concludes that a City department has failed to provide any data required by this ordinance or requested by the HRC or the Controller, the Clerk of this Board shall schedule before the appropriate committee of the Board a hearing on that report. The Clerk shall also give notice of that hearing to the heads of the departments identified in the report and request the attendance of the heads of those departments at the committee hearing. The Clerk's notice shall inform the department heads that they must be prepared to respond to the Director's finding of intentional disregard and/or negligent performance and to explain what steps they intend to take to forestall repetition of the problems, identified in the Directors' report. The same procedure shall be followed whenever the Director's report identifies any department as having failed to meet its prime or subcontracting goals for three consecutive quarters. If the Director's report indicates that a City department has not met its goals for three consecutive quarters, HRC and the City department shall institute a targeted program to remedy lack of participation by or in any affected ethnic group/gender/industry.
2. The Director shall report to the Commission all waivers acted upon pursuant to Section 12D.A.15. Such report shall be made on a monthly basis following the granting of the waiver.
(B) Reporting by the Commission. By July 1st of each fiscal year subject to this ordinance, the Commission shall submit an annual report to the Mayor and this Board on the progress of the City toward the goals stated in Section 12D.A.3 of this ordinance, together with an identification of problems and specific recommendations for: (1) discontinuing the race or gender-conscious bid discounts in those cases where the bid discounts have remedied the identified discrimination against MBEs and WBEs; and (2) improving the City's performance in remedying the identified discrimination against MBEs and WBEs.
(C) This Board shall act upon the Commission's recommendations by the first Board meeting of January in each fiscal year subject to this ordinance.
(D) By the last day of each fiscal year, all contract awarding authorities and City departments shall report annually to the Mayor on their progress in the preceding fiscal year toward the achievement of the MBE and WBE participation goals.
(Added by Ord. 296-98, App. 10/5/98; amended by Ord. 134-03, File No. 030347, App. 6/1/2003)
The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstances shall not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances.
(Added by Ord. 296-98, App. 10/5/98)
In undertaking the enforcement of this ordinance, 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.
(Added by Ord. 134-03, File No. 030347, App. 6/1/2003. Former Sec. 12D.A.20 was added by Ord. 296-98, App. 10/5/98; renumbered by Ord. 134-03)
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