Purpose and Findings. | |
Definitions. | |
LBE Certification. | |
Term of Certification, Certification Denial Protests and Appeals. | |
PUC-LBE Certification. | |
Non-Profit LBE Certification. | |
Prime Contracts. | |
Subcontracting. | |
Ensuring Non-Discrimination in Subcontracting. | |
Powers and Duties of the City Administrator and the Contract Monitoring Division (CMD). | |
Powers and Duties of the Controller. | |
Powers and Duties of the Mayor. | |
Powers and Duties of Contract Awarding Authorities. | |
Powers and Duties of the Office of Contract Administration. | |
Reporting and Review. | |
San Francisco Bonding and Other Assistance. | |
Enforcement. | |
Applicability and Exceptions. | |
Subcontracting Participation Requirements: Design-Build and Integrated Project Delivery Contracts. | |
Additional Joint Venture and Core Discipline Incentive Trial Program. | |
Pilot Neighborhood LBE Program. | |
(A) Short Title. This Chapter shall be entitled "Local Business Enterprise Utilization and Non-Discrimination in Contracting Ordinance."
(B) Findings.
(1) The Board of Supervisors finds that San Francisco's small businesses are a significant sector of the local economy and form the backbone of our neighborhoods. Small businesses contribute hundreds of millions of dollars to San Francisco's economy each year. Through payroll taxes alone, small businesses make a significant investment in the economic health of our City and the quality of life of its citizens and visitors.
(2) Because San Francisco's small businesses experience higher costs than large businesses or businesses located outside the City, they suffer disadvantage in any competition with those businesses. The Board finds that small local businesses are at a competitive disadvantage in competing for work on public contracts. Because of their size, very small, or "micro," local businesses are at an even greater competitive disadvantage in competing for work on public contracts.
(3) The public has an interest in fostering a strong and vibrant network of small and very small micro businesses in San Francisco. In part, San Francisco can accomplish this goal by ensuring that small and micro local businesses can compete for public contracts on a level playing field.
(4) The Board finds that the disadvantages suffered by very small and micro local businesses in competing as prime contractors on public contracts can be reduced by discounting their bids and ratings by ten percent. Granting a ten percent discount does not unduly burden businesses not eligible for such discounts, and is similar to the corrective adjustments given to small and very small micro businesses in other jurisdictions. The Board finds that the additional disadvantages suffered by micro local businesses can be reduced by setting aside appropriate small contracts for competition only among micro businesses.
(5) San Francisco has a long history of working to end discrimination in all aspects of public contracting. The City must continue to award and administer its public contracts in a manner that is fair and provides equal opportunity to all local businesses, regardless of race, gender, or other category protected by law. San Francisco must ensure that it does not discriminate and does not contract with any business that discriminates on the basis of race, gender, or other protected category.
Specifically, this Board initially passed Ordinance No. 139-84 on April 2, 1984 to combat the City and County of San Francisco's own active and passive participation in discrimination against minority- and women-owned businesses, both in its own contracting for goods and services, and in the private market for such goods and services. At the time of passage, women- and minority-owned businesses were virtually excluded as contractors on prime City contracts.
Since that time, this Board and the City's Human Rights Commission have actively and extensively documented and studied discrimination against and disadvantages faced by these groups to gauge the effectiveness of the prior Minority, Women and Local Business Enterprise Ordinances (the "M/W/LBE Ordinances") and to assess the need for further and continuing action. The earlier studies are documented in the legislative history of the previous amendments and re-enactments of the ordinance, including Ordinance Nos. 175-89, 155-92, 210-97, 457-97, 82-98, 296-98, 210-99, 283-99, and 134-03. The findings underlying these ordinances have been reviewed and analyzed in the preparation of this Chapter and are hereby incorporated by reference into the legislative history of this Chapter. These materials include disparity studies, transcripts of live testimony by dozens of witnesses, case studies of discrimination, and voluminous other materials. An index and a separate synopsis of this material are on file with the Clerk of this Board in File No. 98-0612. These materials are all incorporated by reference into the legislative history of this Chapter. The collection and analysis of relevant information is ongoing.
On July 26, 2004, in Coral Construction, Inc. v. City and County of San Francisco (Sup. Ct. No. 421249), the San Francisco Superior Court enjoined the City from enforcing certain provisions of the M/W/LBE Ordinance. In a subsequent order, the court clarified that the injunction applied to Sections 12D.A.6, 12D.A.7, 12D.A.8, 12D.A.9, 12D.A.10, 12D.A.14, and 12D.A17 of the Administrative Code, for all contracts for which bids or proposals are advertised or solicited on or after July 26, 2004. The injunction became effective immediately.
In issuing its injunction, the Superior Court did not dispute the accuracy of the City's disparity studies or otherwise take issue with the City's underlying findings of discrimination and disparity. However, the Court ruled that California's Proposition 209 does not allow the City to address the identified problem through its prior methods. The Board finds and declares that the need for the City to identify, rectify, and prevent discrimination in its public contracting still exists, and the City is committed to ensuring that neither MBEs nor WBEs nor any other business is arbitrarily or unfairly excluded from contracting opportunities. The City remains committed to addressing discrimination in public contracting to the fullest extent allowed by law, in a manner that is consistent with all requirements of Federal and State law.
(6) The Board further finds that the public interest is served well if the City is self-sustaining. Stimulating the expansion of small firms or development of new enterprises fosters economic growth and independence for San Francisco and its taxpayers. This expansion of local small businesses advances the public interest, contributes to the economic well-being of all San Franciscans, and tends to minimize the burden on the General Fund to provide for general welfare.
(C) Purpose.
(1) Assistance to Small Local Businesses. This Chapter 14B is intended to improve the ability of certified Local Business Enterprises (LBE), particularly micro LBEs, to compete effectively for the award of City contracts. The Mayor shall establish Citywide goals for participation by small and micro local businesses in contracting. The City shall use Discounts, set asides, and LBE subcontracting participation requirements set forth in this Chapter, information and training, and other assistance in order to reach these goals. The City Administrator and Director of the Contract Monitoring Division shall oversee and assist other City departments in implementing this Chapter and otherwise promoting the goal of increasing LBE participation in City contracts.
(2) The City, as a municipal corporation, shall strive to be economically self-sustaining.
(3) Nondiscrimination. Neither the City nor any of its officers or employees shall discriminate against any person or business on any basis prohibited by law in the award or administration of City contracts. Persons or businesses that are awarded City contracts shall not discriminate against any person or business on any basis prohibited by law in the performance or administration of any City Contract, including in the selection of subcontractors.
(D) Rules and Regulations. The City Administrator shall adopt rules, regulations, guidelines, and forms and take any and all other actions reasonable and necessary to implement and enforce this Chapter.
"Architect/Engineering Contract" means an agreement for architectural, engineering, or other professional design, consulting, or construction management services for a public work/construction project.
"Back Contracting" shall mean any agreement or other arrangement between a prime Contractor and its Subcontractor that requires the prime Contractor to perform or to secure the performance of the subcontract in such a fashion and/or under such terms and conditions that the prime contractor enjoys the financial benefits of the subcontract. Such agreements or other arrangements include, but are not limited to, situations in which either a prime Contractor or Subcontractor agrees that any term, condition, or obligation imposed upon the Subcontractor by the subcontract shall be performed by or be the responsibility of the prime Contractor.
"Bid" means a quotation, proposal, solicitation, or offer by a Bidder or Contractor to perform or provide labor, materials, equipment, supplies, or services to the City for a price.
"Bidder" means any business that submits a Bid or proposal.
"City" means the City and County of San Francisco.
"City-wide LBE Participation Goal" means the overall, aspirational City-wide LBE participation goal set by the Mayor each fiscal year as a percentage of the overall dollar value of Contracts anticipated to be awarded in the upcoming fiscal year subject to this Chapter.
"CMD" means Contract Monitoring Division.
"Commercially Useful Function" shall mean that the business is directly responsible for providing the materials, equipment, supplies or services to the City as required by the solicitation or request for quotes, Bids or proposals. Businesses that engage in the business of providing brokerage, referral or temporary employment services shall not be deemed to perform a "Commercially Useful Function" unless the brokerage, referral or temporary employment services are those required and sought by the City. When the City requires and seeks specialty products made to order for the City or otherwise seeks products which, by industry practice, are not regularly stocked in warehouse inventory but instead are purchased directly from the manufacturer, no more than five percent of the cost of the product shall be credited towards LBE subcontracting participation requirements. When the City requires and seeks products which are, by industry practice, stocked in warehouse inventory and are, in fact, regularly stocked by the listed supplier or distributor, no more than sixty percent of the cost of the product shall be credited towards subcontracting participation requirements. If the listed supplier or distributor does not regularly stock the required product, no more than five percent of the cost of the product shall be credited towards LBE subcontracting participation requirements.
"Commodities Contract" means an agreement to purchase any product, including materials, equipment, and supplies, including associated incidental services.
"Contract" means any agreement between the City and a person to provide or procure labor, materials, equipment, supplies, or services to, for, or on behalf of the City for a price to be paid out of monies deposited in the City Treasury or out of trust monies under the control of or collected by the City. "Trust monies" include, without limitation, all monies to which the City is entitled to receive or deposit in the City Treasury. A "Contract" includes an agreement between a non-profit or public entity and a Contractor for the performance of construction or construction-related services, where the Contract is funded by the City. A "Contract" includes any agreement between the City and a person to provide or procure labor, materials, equipment, supplies, or services to, for, or on behalf of the City for PUC Regional Projects. A "Contract" does not include: (1) grants, whether funded by the City or by Federal or State grant funds, to a nonprofit entity to provide services to the community; (2) sales of the City's personal or real property; (3) loan transactions, whether the City is a debtor or creditor; (4) lease, franchise, or concession agreements; (5) agreements to use City real property; (6) gifts of materials, equipment, supplies or services to the City; (7) agreements with a public agency except for contracts or other agreements between the City and persons or entities, public or private, in which such persons or entities receive money from or through the City for the purpose of contracting with businesses to perform public improvements; or (8) agreements awarded under the emergency provisions of Administrative Code Sections 6.60 or 21.15 where there is either (a) no time to apply Discounts or establish subcontracting participation requirements, or (b) no immediately available LBEs are certified for the needed emergency work.
"Contract Awarding Authority" means any City officer, department, commission, employee, or board authorized to enter into Contracts on behalf of the City. A non-profit or public entity that receives funds from the City to pay for construction or construction related services is a "Contract Awarding Authority" for the purposes of contracting for the performance of those services.
"Contract Monitoring Division (CMD)" means the Contract Monitoring Division of the Office of the City Administrator to which the City Administrator has delegated responsibility to implement this Chapter, and shall also mean and include any department or division of the Office of the City Administrator that the City Administrator may in the future designate as successor to the Contract Monitoring Division to assume the duties of the Contract Monitoring Division set forth in this Chapter.
"Contractor" means any person who enters into a Contract with the City.
"Control" means a person possesses the legal authority to manage business assets, good will, and the day-to-day operations of a business and actively and continuously exercises such authority.
"Design-Build Contracts" means Public Works/Construction Contracts authorized under Administrative Code Section 6.61.
"Director" means the Director of the Contract Monitoring Division, or his or her designee.
"Discount" means a downward adjustment in price or upward adjustment in rating of a proposal, whichever applies, that is made under Section 14B.7.
"Eligible Public Works/Construction Contract" means a Contract with (1) an estimated cost which exceeds $10,000 but is less than or equal to the Threshold Amount, and (2) a scope of work which, based on CMD Micro-LBE availability data, would attract bids from at least two qualified Micro-LBEs. Eligible Public Works/Construction Contracts include Job Order Contracts set aside for Micro-LBEs under Administrative Code Section 6.62(C).
"Eligible Services/Commodities Contract" means a Professional Services, General Services, Architect/Engineering or Commodities Contract with (1) an estimated cost which exceeds $10,000 but is less than or equal to the Minimum Competitive Amount, and (2) a scope of work which, based on CMD Micro-LBE availability data, would attract bids from at least two qualified Micro-LBEs.
"General Manager" means the General Manager of the San Francisco Public Utilities Commission, or his or her designee.
"General Services Contract" means an agreement for those services that are not professional services. Examples of "general services" include, but are not limited to, janitorial, security guard, pest control, and landscaping services.
"Integrated Project Delivery Contracts" means Public Works/Construction Contracts authorized under Administrative Code Section 6.68.
"Joint Venture" means an association of two or more professional services or architect/engineering businesses acting as a Contractor and performing or providing services on a Professional Services or Architect/Engineering Contract, in which each Joint Venture partner combines property, capital, efforts, skill, and/or knowledge and each Joint Venture partner shares in the Ownership, Control, management responsibilities, risks, and profits of the Joint Venture in proportion to its claimed level of participation. Joint Venture partners may be in different industries provided that each joint venture partner meets the minimum qualifications in the Bid, and each is acting as a prime contractor and otherwise meets the definition of a Joint Venture.
"LBE" means Local Business Enterprise.
"Local Business Enterprise (LBE)" means a business that is certified as an LBE under Section 14B.3.
"MBE" means Minority Business Enterprise.
“Minimum Competitive Amount” means (1) for the procurement of commodities, professional services, and architect/engineering services, the “Minimum Competitive Amount” as defined in Section 6.40(a) of the Administrative Code, and (2) for the procurement of general services, an amount equivalent to the “Threshold Amount” as defined in Section 6.1 of the Administrative Code.
"Minority Business Enterprise (MBE)" means a business that is certified as an MBE under Section 14B.3(E)(1).
"OBE" means Other Business Enterprise.
"Other Business Enterprise (OBE)" means a business that is certified as an OBE under Section 14B.3(E)(3).
"Owns" or "Ownership" means a Person who:
(a) possesses a record ownership interest, such as partnership interest or stock interest, of at least fifty-one percent (51%) of the business or such lesser amount as the CMD determines, under the circumstances of the particular business' overall ownership and control structure, constitutes a significant ability to influence business operations and a strong personal stake in the business's viability;
(b) possesses incidents of ownership, including an interest in profit and loss, equal to at least the record ownership interest;
(c) contributes capital to the business equal to at least the record ownership percentage (unsecured promissory notes or notes secured by the business or business assets are not sufficient to constitute capital contributions); and
(d) actively and continuously devotes expertise to the operations of the business relevant to the business's "Commercially Useful Function" of a quality and quantity proportionate to the record ownership interest.
"Owns" or "Ownership" for purposes of determining whether a business is an MBE means that a minority Person possesses all of the above indicia of ownership, and either individually, or in combination with the interests of other owners who are minority Persons, the ownership by minority Persons constitutes at least fifty-one percent (51%) of the overall business ownership.
"Owns" or "Ownership" for purposes of determining whether a business is a WBE means that a woman possesses all of the above indicia of ownership, and that either individually, or in combination with the interests of other owners who are women, the ownership by women constitutes at least fifty-one percent (51%) of the overall business ownership.
"Person" means any individual or group of individuals, including but not limited to partnerships, associations, and corporations.
"Professional Services Contract" means an agreement for services that require extended analysis, the exercise of discretion and independent judgment, or the application of an advanced, specialized type of knowledge, expertise, or training customarily acquired either by a prolonged course of study or equivalent experience in the field. Examples of professional service providers include, but are not limited to, licensed professionals such as accountants, and non-licensed professionals such as parking lot management, software developers and financial consultants. For the purpose of this Chapter, a Contract for architectural, engineering, or other professional design, consulting or construction management services for a public work project shall be considered an Architect/Engineering Contract and not a Professional Services Contract.
"Public Works/Construction Contract" means a Contract for the erection, construction, renovation, alteration, improvement, demolition, excavation, installation, or repair of any public building, structure, infrastructure, bridge, road, street, park, dam, tunnel, utility, or similar public facility that is performed by or for the City, and the cost of which is to be paid wholly or partially out of moneys deposited in the City Treasury or out of trust monies under the control of or collected by the City. For purposes of this Chapter only, "Public Works/Construction Contract" includes Contracts between a Person, including a non-profit entity or public agency, and a Contractor for construction or construction-related services, where the Contract is funded by the City.
"PUC" or "Public Utilities Commission" means the San Francisco Public Utilities Commission (SFPUC), the City Department that provides water, wastewater, and municipal power services to San Francisco and, under contractual agreement with 29 wholesale water agencies, also supplies water to 1.6 million additional customers within three Bay Area counties.
"PUC Regional Projects" means (1) projects to be performed outside of the jurisdictional boundaries of San Francisco that are identified as regional projects and included in the formally approved Capital Improvement Program of the San Francisco Public Utilities Commission's approximately $4.6 billion project to seismically reinforce and otherwise enhance the Hetch Hetchy water supply system, also known as the Water System Improvement Program ("WSIP"), as it may be amended from time to time; (2) projects to be performed exclusively outside of the jurisdictional boundaries of San Francisco for which some or all of the cost will be shared by members of the Bay Area Water Supply and Conservation Agency ("BAWSCA"); or (3) projects under Contracts with the SFPUC to be performed exclusively 70 miles or more beyond the jurisdictional boundaries of San Francisco. "PUC Regional Projects" shall include, but are not limited to, Repair and Replacement work ("R&R") to be performed in association with a regional Capital Improvement Program or other BAWSCA cost sharing project, or to be performed exclusively 70 miles or more beyond the jurisdictional boundaries of San Francisco.
"Risk Manager" means the Director of Risk Management, a division of the Office of the City Administrator.
"Subcontractor" means any LBE providing goods or services to a Contractor or a lower tier Subcontractor in fulfillment of the Contractor or Subcontractor's LBE utilization obligations arising from a Contract.
“Threshold Amount” means, for public works/construction projects, the “Threshold Amount” as defined in Administrative Code Section 6.1.
"Woman Business Enterprise (WBE)" means a business that is certified as a WBE under Section 14B.3(E)(2).
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 20-10, File No. 091405, App. 2/10/2010; Ord. 97-10, File No. 100333, App. 5/13/2010; Ord. 8-11, File No. 101006, App. 1/7/2011; Ord. 30-13
, File No. 121105, App. 3/5/2013, Eff. 4/4/2013; Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015; Ord. 108-15
, File No. 150175, App. 7/2/2015, Eff. 8/1/2015; Ord. 203-21, File No. 210835, App. 11/12/2021, Eff. 12/13/2021, Oper. 7/1/2022)
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