Sec. 28-151.2(1). Good faith effort waiver.
(1) If the SBE plan does not meet the project goals, the bidder or respondent may seek a waiver. A request for waiver shall be available only when certified firms are determined to not be ready, willing, or able to perform. The application for a waiver shall be in writing and must be fully completed and submitted in accordance with sections 28-150(4), 28-150(5) and 28-151.1(3). The waiver request shall indicate whether a complete or partial waiver is sought. If a partial waiver is being sought the scope of such waiver must be indicated and an SBE plan must also be submitted. When a full waiver is sought, an SBE plan does not need to be submitted. The bidder or respondent must provide documented evidence including a narrative statement with supporting affidavits and/or exhibits verifying the bidder's/respondent's good faith efforts to meet the goals. Evidence of the bidder's/ respondent's good faith efforts should include, but is not limited to the following:
(a) Documentation of communication with the Department of Procurement seeking technical/ professional assistance identifying available SBEs.
(b) Copies of written notification to certified SBEs regarding subcontracting opportunities on a project.
(c) Documentation of efforts made to select portions of work for SBE subcontracting in order to increase the likelihood of meeting the SBE goals, including where appropriate breaking down subcontracts into economically feasible units in order to facilitate SBE participation.
(d) Documentation of efforts to assist and negotiate with SBEs for specific sub-bids and reasons for rejection of any such offered, including the names, addresses, and telephone numbers of SBEs who were contacted and reason for the rejection.
(e) As to each SBE contacted which the bidder/respondent considered not to be qualified, a written statement of the reasons for the bidder’s/respondent’s conclusion.
(f) Written quotes or records of verbal quotes solicited from all SBEs seeking subcontract work with prime contractors at the time of the solicitation submittal.
(g) Verification that the contractor/prime consultant rejected available SBEs because they submitted bids/proposals which were unreasonably high, or they were not qualified. Such verification shall include a statement of the amounts of all bids received from potential subcontractors/subconsultants and all relevant dates.
(2) A project goal may be waived, at least in part, if the bid or proposals received by the bidder/respondent requesting a waiver from all SBEs in one trade area exceeds the quote or proposal of the lowest non SBE competing for the same work by the lesser of fifteen (15) percent or two hundred fifty thousand dollars ($250,000.00), and no other trade area is available to meet the established SBE goal. A bidder may not compare self-performed costs against an SBE subcontractor proposal as justification for the rejection of a bid.
(3) If after consultation with certified SBE firms and/or appropriate city employees, the director determines that SBE availability is less than projected, the director may waive or reduce established project goals. In such circumstances, the director shall certify that SBEs are not available.
(4) If the director determines that SBE availability is sufficient to support the established project goals the director shall deny the good faith waiver request. All decisions regarding the denial of good faith waiver requests or plan decisions made by the director shall be made in writing and shall include the reasons for the decision. The notice shall be sent to the affected party and the affected party shall have the right to seek administrative review pursuant to Tucson Code section 28-151.2(2).
(a) Waiver denial for construction. If the apparent low bidder is denied a waiver the director shall determine the bid is non-responsive. The determination shall be subject to Tucson Code section 28-151.2
(2).
(b) Waiver denial for construction services. If the waiver is denied, the director’s determination shall be subject to Tucson Code section 28-151.2
(2).
(c) Waiver denial for professional design services. If the waiver is denied, the director’s determination shall be subject to Tucson Code section 28-151.2
(2).
Sec. 28-151.2(2). Right to appeal good faith effort waiver or plan decision. An aggrieved party has a right to protest a good faith waiver request or plan decision made by the director as follows:
(1) An aggrieved party may submit a protest in writing to the director within five (5) days from the date of notice of the adverse decision notice. The protest must include the legal and factual basis for the protest along with any supporting documents.
(2) Within five (5) days of receipt of the protest, the OEOP director shall review the protest and all relevant supporting documents and render a decision notice in writing which includes the basis for the decision.
The decision of the director is final and not appealable.
(Ord. No. 10993, § 1, 6-12-12, eff. 7-1-12; Ord. No. 11296, § 1, 8-5-15)