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(A) Prohibition on Discrimination. A Bidder may not discriminate in its selection of Subcontractors against any person on the basis of race, gender, or any other basis prohibited by law. The City Administrator shall work the Human Rights Commission to ensure that this provision is effected to the fullest extent allowed by law. Contract Awarding Authorities and the City Administrator shall refer all formal complaints of discrimination and all other instances where discrimination may have occurred of which they become aware to the Human Rights Commission for investigation and resolution pursuant to Administrative Code Chapter 12A and Section 14B.9(D).
(B) Availability Data. In order to prevent unlawful discrimination in the selection of subcontractors, and to identify and correct unlawful practices, the City will monitor the administration of City Contracts, including the selection of Subcontractors, as provided in this Section 14B.9. For Public Work/Construction, Architect/Engineering, Professional Services, and General Services Contracts which the Contract Awarding Authority reasonably anticipates will include Subcontractor participation, prior to the solicitation of Bids, the Director shall assemble data regarding the availability of MBEs, WBEs, and OBEs to provide work that is likely to be subcontracted. The Director, in the Director's sole discretion, shall determine the appropriate methodology.
(C) Requirements for Solicitations. In all solicitations of Public Work/Construction, Architect/Engineering, Professional Services, and General Services Contracts for which the Contract Awarding Authority reasonably anticipates will include Subcontractor participation, the Contract Awarding Authority shall include the availability data described above. Bidders shall undertake all required good faith efforts outreach steps in such a manner as to ensure that neither MBEs nor WBEs nor OBEs are unfairly or arbitrarily excluded from the required outreach.
(D) Review and Investigation by the Human Rights Commission. The Director of the Human Rights Commission may review or investigate any Bid, including the selection of the Bidder's Subcontractors, to determine whether discrimination may have occurred. The Director of the Human Rights Commission shall review Bids, during the bid protest period, to determine whether: (1) a potential Subcontractor or other person has filed a complaint of discrimination; (2) there is a significant difference between the percentages of MBEs, WBEs, or OBEs available to provide goods and services as Subcontractors on the Contract and the percentages of the Bidder's Subcontractors who are MBEs, WBEs, or OBEs; or (3) other facts and circumstances suggest that further inquiry is warranted. The Director of the Human Rights Commission, in the Director of the Human Rights Commission's sole discretion, shall determine whether and when to investigate further the conduct of a Bidder or Contractor.
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015)
(A) City Administrator. In addition to the duties and powers given to the City Administrator elsewhere, the City Administrator or designee shall:
(1) When necessary, subpoena persons and records, books and documents for any hearing or investigation by the City Administrator or Director or audit pursuant to Section 14B.10(B)(5) concerning certification under, or compliance with this Chapter.
(2) Adopt rules and regulations establishing standards and procedures for effectively carrying out this Chapter.
(3) Issue forms for the Controller or Contract Awarding Authorities to collect information from Contractors as the City Administrator deems necessary to perform its duties under this Chapter.
(4) Hear appeals challenging certification denial decisions by the Director or the imposition of any sanction specified in Section 14B.17(D) against a Bidder, Contractor, Subcontractor, certified LBE, or applicant for certification.
(5) Direct Contract Awarding Authorities, departments and the Controller to provide to the Director such information as will be necessary to enable the Director to issue reports required by this Chapter to the Mayor and the Board of Supervisors, and otherwise to perform his/her duties imposed hereunder.
(B) CMD Director. In addition to the duties and powers given to the CMD Director elsewhere, the Director shall:
(1) Levy the same sanctions that a Contract Awarding Authority may levy as specified in Section 14B.17(D).
(2) Ensure that the necessary data concerning LBE, MBE, and OBE availability and participation in City Contracting is collected, analyzed, and included in CMD's annual report required by Section 14B.15(B). The Director shall identify areas of contracting where the City or any of its departments are failing to meet LBE subcontracting requirements or are contracting with MBEs, WBEs, or OBEs at rates less than would be anticipated by the availability data.
(3) Provide information and other assistance to LBEs to increase their ability to compete effectively for the award of City Contracts.
(5) In cooperation with the Controller, randomly audit at least three prime Contractors each fiscal year in order to insure their compliance with the provisions of this Chapter. The Director, in cooperation with the Controller, shall furthermore randomly audit 10 percent (10%) of the Joint Ventures granted Bid Discounts in each fiscal year.
(6) Take actions to ensure compliance with the provisions of this Chapter, including, without limitation, intervening in the selection process in the event of actual discrimination or harm, or issuing recommendations for selection processes administered directly by Contract Awarding Authorities to ensure that the minimum qualifications, evaluation criteria, or scoring methodologies set forth in the requests for bids, qualifications, or proposals, or the selection panel deliberations do not inadvertently disadvantage qualified Small-LBEs, Micro-LBEs, and MBEs, WBEs and OBEs, in competing for opportunities in City contracting.
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015)
(A) In addition to the duties given to the Controller elsewhere, the Controller shall work cooperatively with the Director to provide such contractual encumbrance and payment data as the Director advises are necessary to monitor the participation of Small-LBEs, Micro-LBEs, MBEs, WBEs, and OBEs in City contracts. If any department refuses or fails to provide the required data to the Controller, the Controller shall immediately notify the Mayor, the Board of Supervisors, and the Director.
(B) The Controller shall not certify the award of any Contract subject to this Chapter where the Director has notified the Controller that the Contract Awarding Authority has not provided the information the Director advises is necessary under this Chapter.
(C) The Controller shall have the right to audit the books and records of Contractors, Joint Venture participants, and Subcontractors to ensure compliance with the provisions of this Chapter.
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015)
In addition to the duties given to the Mayor elsewhere, the Mayor shall:
(A) By July 1st of each fiscal year, set and report to the Board of Supervisors a City-wide LBE Participation Goal on the overall dollar value of all Contracts projected to be awarded in the upcoming fiscal year that will be subject to this Chapter. The City-wide LBE Participation Goal shall be based on prior fiscal year LBE utilization data and current LBE availability, but shall not be less than forty percent (40%). The City-wide LBE Participation Goal shall include a sub-Goal of at least twenty percent (20%) participation by Micro-LBEs. Contract Awarding Authorities shall use, among other methods, the good faith efforts in Section 14B.7(A) to attain the City-wide LBE Participation Goal. The City-wide LBE Participation Goal may be achieved by Small and Micro LBE participation as a prime Contractor, Joint Venture partner, or Subcontractor.
(B) Issue notices to all City departments informing them of their duties under this Chapter. The notice shall contain the following information: (1) the City-wide LBE Participation Goal set in Section 14B.12(A) that all City departments are encouraged to attain during the fiscal year, and that a department's failure to attain the City-wide LBE Participation Goal shall be reported in CMD's annual report; (2) the availability of MBEs, WBEs, and OBEs to perform City contracting and that departments are expected to take all steps necessary to ensure against illegal or arbitrary discrimination or exclusion of any certified business; and (3) the data each department is required to provide the Controller on each contract award.
(C) Coordinate and enforce cooperation and compliance by all City Departments with this Chapter.
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015)
(A) In addition to the powers and duties given to Contract Awarding Authorities elsewhere, Contract Awarding Authorities shall:
(1) Adjust bond and insurance requirements in accordance with the requirements set by the Risk Manager, or as allowed by law.
(2) Make information available about the City's Bonding and Financial Assistance Program set forth in Section 14B.16 to assist LBEs bidding on and performing City public works/construction Contracts to meet bonding requirements and/or obtain construction loans.
(3) Advertise all Bid opportunities, requests for Proposals, and solicitations for which published notice or advertising is required, at least 10 calendar days prior to the Bid due date.
(4) Require each request for payment submitted by a Contractor to the Contract Awarding Authority to include Subcontractor participation data in a form approved by the Director, verifying the Contractor's payments to its LBE Subcontractors and the Contractor's progress toward meeting its LBE participation requirements.
If a request for payment fails to include the required information in the form approved by the Director, the Contract Awarding Authority in consultation with the Director, after notice and an opportunity to be heard, may notify the Controller to withhold twenty percent (20%) of the requested payment until the information is provided. Such notice shall be made within two working days of the request for payment, and must inform the Contractor that the Contract Awarding Authority has tentatively determined that the Contractor has not submitted required information, list what information is missing, and provide that if the failure is substantiated, twenty percent (20%) of the requested payment will be withheld until the information is provided.
(5) Require all Contractors to submit, within 10 days following payment by the City to the Contractor for work completed or services performed on a Contract, in a form approved by the Director, a statement signed under penalty of perjury, attesting that the Contractor has paid all Subcontractors, less any contractually provided retention, for the Subcontractor's portions of the work invoiced and included in the City's payment. Contract Awarding Authorities shall notify the Director of any failure to provide the required information or statement. The Director shall investigate and, as necessary, take appropriate enforcement action against any noncomplying Contractor as authorized under Section 14B.17.
(6) Impose, in consultation with the Director, such sanctions or take such other actions as are designed in Section 14B.17(D) to ensure compliance with the provisions of this Chapter.
(7) Not award any Contract to a Person or business that is disqualified from doing business with the City under the provisions of this Chapter.
(8) Designate a staff person to be responsible for responding to the Director and City Administrator regarding the requirements of this Chapter.
(9) Maintain accurate records as required by this Chapter.
(10) Provide technical assistance to LBEs to increase their ability to compete effectively for City Contracts.
(11) Notify the Director in writing within 10 days whenever the cumulative value of amendments, modifications, supplements, and change orders to a Contract subject to this Chapter increase or decrease the Contract's dollar amount by more than ten percent (10%).
(12) Whenever amendments, modifications, supplements, or change orders to a Contract subject to this Chapter increase the total dollar value of a Contract, the Contract Awarding Authority shall require compliance with those provisions of this Chapter that applied to the original Contract.
(13) Obtain prior approval of the Director for all Contract amendments, modifications, supplements, or change orders to a Contract originally valued at or above fifty percent (50%) of the Minimum Competitive Amount, that cumulatively increase the contract's total value by more than twenty percent (20%) of its original or last CMD approved value. The Director shall ensure that the proposed amendment, modification, supplement, or change order does not adversely impact contracting opportunities that would have been present for LBEs had the Contract been initially awarded at the proposed increased value.
(B) Contract Awarding Authorities or departments may issue Bids for Professional Services or Architect/Engineering Services that invite, encourage, or request businesses to form Joint Ventures to promote LBE participation.
(C) For the purpose of determining LBE participation, contracts awarded to joint ventures in which one or more LBEs are combined with one or more business that are not LBEs shall be deemed by the Contract Awarding Authority to be awarded to LBEs only to the extent of the LBE participation in the joint venture.
(D) Subject to the budgetary and fiscal provisions of the San Francisco Charter and to any limitations or requirements associated with the issuance of municipal financings, including but not limited to the use of tax-exempt financing and other long-term obligations, Contract Awarding Authorities shall set aside the following percentage of the value of each Contract, to be used solely to fund CMD's actual costs of administering and enforcing this Chapter. This Section 14B.13(D) shall not apply to Contracts funded by bonds that were authorized prior to June 10, 2006.
(1) For Contracts having an estimated value under $1 million, the Contract Awarding Authority shall set aside two percent (2%) of the value of the Contract for the purpose described in this Section.
(2) For Contracts having an estimated value of at least $1 million but less than $10 million, the Contract Awarding Authority shall set aside one percent (1%) of the value of the Contract for the purpose described in this Section.
(3) For Contracts having an estimated value of at least $10 million but less than $50 million, the Contract Awarding Authority shall set aside one half of one percent (0.5%) of the value of the Contract for the purpose described in this Section.
(4) For Contracts having an estimated value of $50 million or more, the Director, in consultation with the Contract Awarding Authority, shall determine the level of funding necessary to administer and enforce this Chapter with respect to the subject Contract, provided that the funding shall not exceed one half of one percent (0.5%) of the value of the Contract. The Contract Awarding Authority shall set aside the designated funds to be used solely for the purpose described in this Section.
(5) Notwithstanding Sections 14B.13(D)(1), (2), (3) and (4), with respect to each Contract to be issued by the Port of San Francisco, the San Francisco Public Utilities Commission, the San Francisco Department of Public Works, and the San Francisco International Airport, each such Contract Awarding Authority shall confer with the Director and jointly shall estimate the costs of administering and enforcing this Chapter with respect to each Contract. The Contract Awarding Authority shall set aside the agreed-upon funds to be used solely for the purpose described in this Section.
If, after exchanging information regarding the nature of the Contract and the administrative activities required, the Contract Awarding Authority and the Director do not agree on the cost of administering and enforcing this Chapter, the Mayor or the Mayor’s designee provided that the designee is not the department head of the Contract Awarding Authority, shall determine the appropriate amount to be set aside for the purpose described in this Section.
(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. 220-12
, File No. 120818, App. 10/23/2012, Eff. 11/22/2012; Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015; Ord. 220-20
, File No. 200949, App. 11/6/2020, Eff. 12/7/2020)
In addition to the duties given the Office of Contract Administration elsewhere, the Office of Contract Administration shall:
(A) Maintain, with the assistance of the Director, a current list of Small-LBEs, Micro-LBEs, MBEs, WBEs, and OBEs to provide each of those commodities or services subject to this Chapter that the Office of Contract Administration indicates are required by the City.
(B) Maintain a central website where the following information for all formal bids, requests for proposals and solicitations for Commodities and Services will be posted and kept current: the title and number; the name of the Contract Awarding Authority; and the name and telephone number of the person to be contacted for further information. Such information shall be posted with sufficient lead time to provide adequate notice and opportunity to potential City contractors and vendors to participate in the bid opportunity, request for proposals or solicitation, but in no event less than 10 calendar days prior to the due date for such bid opportunity, request for proposals, or solicitation.
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015)
(A) Quarterly Reports by CMD. By July 1, October 1, January 1, and April 1 of each fiscal year, CMD shall issue quarterly written reports for the prior fiscal quarter to the Mayor and the Board of Supervisors. The report shall document:
(1) Each Contract Awarding Authority's progress toward achieving the goals of this Chapter, including, among other things, each Contract Awarding Authority's progress in meeting the City-wide LBE Participation Goal, individual Contract LBE participation requirements, and ensuring non-discrimination against MBEs, WBEs and OBEs. The report shall also document the level of participation of all categories of LBEs, and whether or not each Contracting Awarding Authority has fully reported all data required by this Chapter or requested by CMD, the City Administrator, or the Controller.
(a) Whenever CMD's report concludes that a Contract Awarding Authority has intentionally disregarded or negligently performed any obligation imposed by this Chapter, finds consistent non-compliance with this Chapter by a Contract Awarding Authority's Prime Contractors, or concludes that a Contract Awarding Authority failed to provide any data required by this Chapter or requested by CMD, the City Administrator, or the Controller, a member of the Board may schedule before the appropriate Committee of the Board a hearing on that report. At the hearing, the Department heads 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 CMD's report.
(B) Annual Report by City Departments. As part of their annual report to the Board of Supervisors, City departments shall report:
(1) On their progress toward achievement of the City-wide LBE Participation Goal and Contract-specific LBE subcontracting participating requirements and steps to ensure non-discrimination against MBEs, WBEs, and OBEs in the preceding year; and
(2) On their compliance with the Micro-LBE Set Aside Program in accordance with Section 14B.7(K)(3).
(C) Annual Report by the City Administrator. By July 1st of each fiscal year, the City Administrator shall submit an annual report to the Mayor and Board of Supervisors on the progress of the City toward achieving the goals of this Chapter, together with an identification of problems and specific recommendations for improving participation by all categories of LBEs in City contracting. The report shall include an analysis of the availability of MBEs, WBEs, and OBEs and the bidding environment in the various industries that participate in City contracts.
(D) Board of Supervisors Public Hearing. Each year, after receiving CMD's quarterly reports and the annual reports of CMD and City departments, the Board may hold a hearing to review the City's performance under this Chapter, the administration of this Chapter by CMD, and the progress of City departments towards achieving the purposes of this Chapter, and other subjects pertaining to the Chapter.
(A) San Francisco Bonding and Financial Assistance Program.
(1) Program Description. The City and County of San Francisco, acting through the City Administrator, or, in the City Administrator’s discretion, as delegated to the Risk Manager, intends to provide guarantees to private bonding companies and financial institutions in order to induce those entities to provide required bonding and financing to eligible Contractors and Subcontractors bidding on and performing City Public Works/Construction Contracts, and, upon the approval of the Risk Manager and provided that funds are available, projects subject to development agreements or other agreements for construction of facilities where the City and County of San Francisco is partially or wholly funding the project. This bonding and financial assistance program is subject to the provisions of this Section 14B.16(A).
(2) Eligible Contracts. The assistance described in this Section 14B.16(A) shall be available for any City Public Works/Construction Contract to which this Chapter 14B applies.
(3) Eligible Businesses. Businesses must meet the following criteria to qualify for assistance under this Section 14B.16(A).
(a) The business may be either a prime Contractor or Subcontractor; and
(c) The business may be required to participate in a “bonding assistance training program” as offered by the Risk Manager, which is anticipated to provide the following:
(i) Bond application assistance,
(ii) Assistance in developing financial statements,
(iii) Assistance in development of a pre-bond surety profile,
(iv) Identification of internal financial control systems, and
(v) Development of accurate financial reporting tools.
(4) Agreements Executed by the Risk Manager. The Risk Manager is hereby authorized to enter into the following agreements in order to implement the bonding and financial assistance program described in this Section 14B.16(A):
(a) With respect to a surety bond, the agreement to guaranty up to 40% of the face amount of the bond or $750,000, whichever is less;
(b) With respect to a construction loan to be made to a Contractor or Subcontractor, an agreement to guaranty up to 50% of the original principal amount of the construction loan or 50% of the actual loss suffered by the financial institution as a result of a loan default, whichever is less; provided that in any event the City’s obligations with respect to a guaranty shall not exceed $1,000,000;
(c) Any other documents deemed necessary by the Risk Manager to carry out the objectives of this program, provided that such documents shall be subject to review and approval by the City Attorney’s Office.
(5) Monitoring and Enforcement. The Risk Manager shall maintain records on the use and effectiveness of this program, including but not limited to (1) the identities of the businesses and bonding companies participating in this program, (2) the types and dollar amounts of public work Contracts for which the program is utilized, and (3) the types and dollar amounts of losses which the City is required to fund under this program. The Risk Manager shall submit written reports to the Board of Supervisors every six months beginning January 1, 2015, advising the Board of the status of this program and its funding capacity, and an analysis of whether this program is proving to be useful and needed.
(6) Contributions to the San Francisco Self-Insurance Surety Bond Fund. Subject to the budgetary and fiscal provisions of the Charter, each department that conducts public works or improvements under Chapter 6 of the Administrative Code shall contribute annually to the San Francisco Self-Insurance Surety Bond Fund (“the Fund”) an amount that is set by multiplying the annual contribution rate set pursuant to Administrative Code Section 10.100-317(c) times its total appropriations for capital construction and improvement.
(7) Annual Certification of Funds. The Risk Manager shall seek annual certification of funds from the Self Insurance Bond Fund and approval as to form of such certification from the Controller and City Attorney. Such certification shall be monitored by the Risk Manager to ensure the program operates within the transactional bounds of the Self Insurance Bond Fund and the appropriated budget for its administration. The Risk Manager will review the amount certified each fiscal year with the Controller and City Attorney, should there be a call on any bond funded through the program.
(8) Line of Credit; Credit Enhancement Program. The Risk Manager is hereby authorized to negotiate a line(s) of credit or any credit enhancement program(s) or financial product(s) with a financial institution(s) to provide funding; the program’s guaranty pool may serve as collateral for any such line of credit.
In the event the City desires to provide credit enhancement under this Subsection for a period in excess of one fiscal year, the full aggregate amount of the City’s obligations under such credit enhancement must be placed in a segregated account encumbered solely by the City’s obligations under such credit enhancement.
(9) Default on Guarantees. The Director shall decertify any Contractor that defaults on a loan or bond for which the City has provided a guarantee on the Contractor’s behalf. However, the Director may in the Director’s sole discretion refrain from such decertification upon a finding that the City has contributed to such default.
(B) Education and Training. The City Administrator and Director shall continue to develop and strengthen existing education and training programs for LBEs and City Contract awarding personnel.
(C) Cooperative Agreements. With the approval of the Board of Supervisors, the City Administrator may enter into cooperative agreements with agencies or entities, public and private, concerned with increasing the use of LBEs in government contracting or in private developments within San Francisco.
(D) Mentor-Protégé Program.
(1) The Director shall establish a Mentor-Protégé Program (MPP) to foster partnerships between established, successful contractors and LBEs to provide training, networking, and mentoring opportunities with the goal to improve LBE MPP participants’ ability to compete effectively for City contracts. As a benefit to participating in the MPP, the Director may, pursuant to duly promulgated rules and regulations, exempt mentor Contractors from the good faith outreach requirements in Section 14B.8.
(2) Pilot Mentor-Protégé Expansion Program. The Director shall develop and implement an expansion of the Mentor-Protégé Program to better incentivize participation by prime contractors in the program. This expansion program shall apply to mentor Contractors bidding on Administrative Code Chapter 6 public works construction projects who the Director determines have meaningfully participated in the MPP for a minimum period of time not less than three months. The expansion program shall provide mentor Contractors with (i) up to a 1% Bid Discount, not to exceed $300,000, provided that the Bid Discount shall not result in an LBE losing status as the apparent low bidder or highest ranked proposer; and/or (ii) a waiver of the good faith outreach requirements in Section 14B.8. The Director shall apply the mentor benefit in consultation with the Contract Awarding Authority, and cannot combine the benefit with any other available Chapter 14B preference. This pilot program shall sunset five years from the operative date of the ordinance in Board File No. ______, which created the pilot program. Four years and six months after the start of the pilot program, the Director shall prepare a report on the efficacy of the program to the City Administrator.
(E) Reserved.
(F) City Lease and Concession Agreements. The Office of Economic and Workforce Development shall convene a working group with members including but not limited to representatives from the Real Estate Division, Port, Municipal Transportation Agency, Airport, Recreation and Park Department, and the LBE community, to investigate a local business enterprise preference program for City leases and concession agreements. The working group shall submit its program recommendations to the Mayor and Board by June 1, 2015.
(G) The City Administrator shall convene a working group to investigate whether there are barriers to participation by LBE firms in specific industries such as architecture. The working group shall report any findings to the Mayor and Board by September 1, 2015.
(H) Pilot Trucking Program. The Director shall develop and implement a set-aside utilization program for Micro-LBE certified trucking firms. This pilot program shall apply to public works projects where trade subcontractors are procured under Administrative Code subsections 6.61(c)(5) and 6.68(c). This pilot program shall sunset five years from the operative date of the Ordinance in Board File No. ______ establishing the program. Four years and six months after the start of the pilot program, the Director shall prepare a report on the efficacy of the program to the City Administrator.
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 314-08, File No. 081443, App. 12/19/2008; Ord. 8-11, File No. 101006, App. 1/7/2011; Ord. 40-13
, File No. 121211, App. 3/28/2013, Eff. 4/27/2013; Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. (in part)* 7/1/2015; Ord. 203-21, File No. 210835, App. 11/12/2021, Eff. 12/13/2021, Oper. 7/1/2022)
* Editor's Note:
Section 3 of Ord. 250-14 provides, in part, that "[e]xcept for Sections 14B.16(E) and 14B.16(F) of the Administrative Code which shall become operative on the effective date, this ordinance shall become operative on July 1, 2015 . . . ."
Section 3 of Ord. 250-14 provides, in part, that "[e]xcept for Sections 14B.16(E) and 14B.16(F) of the Administrative Code which shall become operative on the effective date, this ordinance shall become operative on July 1, 2015 . . . ."
(A) The Director shall monitor the City's utilization of Small-MBEs, Micro-LBEs, MBEs, WBEs, and OBEs in City contracting. The Director shall issue Contract exit reports for any Contract with LBE subcontracting participation requirements and/or LBE participation as a Joint Venture partner. The purpose of this exit report is to verify that Contractors satisfied their LBE Subcontractor participation requirements and LBEs Joint Venture partner commitments, if applicable.
(B) Investigations. The Director shall, at his or her discretion, investigate instances of potential noncompliance with this Chapter.
Bidders, Contractors, and Subcontractors shall cooperate in all respects with such an investigation. The Director may issue a written request for information to a Bidder, Contractor, or Subcontractor that identifies the records and any other information CMD requires and impose a reasonable deadline for responding. A Bidder, Contractor, or Subcontractor that fails to respond to the Director's request for information, or otherwise fails to cooperate in the investigation, or any such party who the Director determines, after investigation, has not complied with the Chapter, shall be subject, after notice and a full and adequate opportunity to be heard, to appropriate sanctions, including but not limited to the sanctions set forth in Section 14B.17(D).
(C) Conference and Conciliation. In the Director's sole discretion, the Director may attempt to resolve noncompliance with this Chapter by any Bidder, Contractor, or Subcontractor through informal processes, including conference and conciliation.
(D) Sanctions. The City, including the Director and Contract Awarding Authorities, as appropriate, may after affording notice of the alleged noncompliance and full and adequate due process, impose any of the following sanctions on a Bidder, Contractor, or Subcontractor who fails to comply with this Chapter:
(1) Declare a Bid non-responsive;
(2) Suspend a Contract;
(3) Withhold Contract payments;
(4) Assess contractual or statutory penalties;
(5) Debar a Bidder under Chapter 28;
(6) Revoke certification.
(E) Referral to Human Rights Commission. The City, including the Director and Contract Awarding Authorities, as appropriate, shall refer instances of alleged discrimination in contracting to the Human Rights Commission for investigation as set forth in 14B.9 and, as appropriate, imposition of sanctions under Administrative Code Chapter 12A.
(F) Notwithstanding any other provision of this Chapter, a Bidder, Contractor, or Subcontractor who demonstrates by clear and convincing evidence that such person or entity made reasonable efforts to comply with, and monitor its compliance with, the provisions of this Chapter, that its failure to fully comply occurred in spite of such measures, that such party or entity acted at all times in good faith and without knowledge of its noncompliance, and that it has taken corrective steps to remedy future noncompliance, shall not be subject to Sanctions.
(G) Procedures for Revocation of Certification and Appeals Thereof. The procedures for appealing the Director's denial of an application for certification or nonrenewal upon expiration of the Certification term, shall be governed by Section 14B.4(C). The procedures for appealing the revocation or suspension of Certification during the Certification term shall be governed by Section 14B.17(I).
(H) Procedures for Debarment. The Director shall have the authority to act as a charging official under San Francisco Administrative Code Chapter 28 to debar a Bidder, Contractor, or certified LBE for violations of this Chapter. The debarment procedures of Chapter 28 shall govern.
(I) City Administrator to Hear Appeals. Except as provided in Sections 14B.4(C) and 14B.17(H), the City Administrator or Hearing Officer appointed by the City Administrator shall hear appeals challenging any determination of the Director under this Section 14B.17. The City Administrator or Hearing Officer appointed by the City Administrator may sustain, reverse or modify the Director's findings and sanctions imposed, or take such other action to effectuate the purpose of this Chapter. Unless the City Administrator or Hearing Officer appointed by the City Administrator so orders, an appeal shall not stay the Director's determination and the imposition of sanctions.
(J) Willful Noncompliance by Contract Awarding Authority. Whenever the Director determines that a Contract Awarding Authority has willfully failed to comply with its duties under this Chapter, the Director shall attempt to resolve the matter informally with the Contract Awarding Authority. Should such attempt fail to resolve the issue, the Director shall inform the City Administrator of the Director's determination and the impasse in resolving the matter. If the City Administrator confirms the noncompliance and also is unable to resolve the matter informally, the City Administrator shall issue a written finding of noncompliance specifying the nature of the noncompliance, to the Contract Awarding Authority, the Mayor and the Board of Supervisors.
(K) Reporting Improper Government Activity; Protection of Whistleblowers. Complaints that a City officer or employee has engaged in improper government activity, including acts of reprisal, retaliation, threats, coercion, or similar acts, shall be made in accordance with the provisions of Article IV of the Campaign and Governmental Conduct Code.
(Added by Ord. 92-06, File No. 050784, App. 5/11/2006; amended by Ord. 250-14
, File No. 140999, App. 12/17/2014, Eff. 1/16/2015, Oper. 7/1/2015)
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