Sec. 28-150(1). Contractor’s SBE plan for construction projects. Notwithstanding its compliance with any other requirement, no bidder shall be awarded a contract for an eligible project, unless the director or designee has approved the SBE plan or granted a waiver on the project. Such SBE plan shall be designed to meet the applicable project goals which shall be incorporated into the contract. Each bidder shall submit a completed and signed SBE plan or fully documented waiver request with the bid submission.
Sec. 28-150(2). Contractor’s SBE plan for construction services projects. Notwithstanding its compliance with any other requirement, respondents shall receive director or designee approval of the SBE plan or be granted a waiver on the project in accordance with the requirements set forth in the solicitation. Such SBE plan shall be designed to meet the applicable project goals, which shall be incorporated into the contract.
Sec. 28-150(3). Contractors for eligible projects. Contractors for eligible projects may meet the SBE project goals through the following methods:
(1) Prime contractor participation.
(a) Certified SBE prime contractors may use their own participation towards fulfillment of the project's subcontracting goals.
(2) Subcontractor participation.
(a) When a contractor utilizes one or more certified SBE subcontractors to satisfy its SBE participation commitment, the contractor may claim only the value of the commercially useful function to be performed by such subcontractor(s) in order to obtain credit toward the satisfaction of the applicable goal.
(b) If a certified SBE subcontractor enters into second tier subcontracts consistent with the standard industry practices, such SBE subcontractor is performing a commercially useful function. If a SBE subcontractor subcontracts a significantly greater portion of its work to a non-SBE than would be expected by standard industry practices, it should be presumed that the SBE is not performing a commercially useful function
(3) Supplier participation. Contractors for construction or construction services may contract with one or more certified SBE suppliers provided that the supplier is a regular dealer of the materials supplied to obtain credits toward SBE goals. The value of the commercially useful function to be performed by such SBEs and credited toward satisfaction of the applicable SBE goals is as follows:
(a) If a certified SBE supplier manufactures the goods supplied, one hundred (100) percent of the contract amount is credited towards the applicable SBE participation goal.
(b) If a certified SBE supplier is a wholesaler warehousing the goods supplied or a manufacturer's representative, then the total contract amount is credited toward the established SBE goal; however, only twenty-five (25) percent of the total SBE project goal may be met in this manner.
(c) If an extraordinarily large proportion of a contract price is for equipment or supplies, a lower project goal may be set than otherwise would be required, the twenty-five (25) percent limit for suppliers may be increased, or a combination of these two (2) methods may be utilized.
Sec. 28-150(4). Submission of SBE plan for construction projects.
(1) The city shall publish the SBE subcontracting goals in the solicitation and the specifications. All bidders shall submit the SBE participation plan or request for good faith waiver with the bid unless otherwise specified.
(2) The completed and signed SBE plan for the project must include a list of names of the certified SBE prime contractor, SBE subcontractors and/or suppliers to be used in the project, the type of work or service each business will perform, and the dollar amount of a certified SBE prime contractor and/or each certified SBE’s subcontract and/or suppliers of the total project.
(3) The bidder shall certify that the SBE plan has met the established SBE project participation goals, or notwithstanding good faith efforts to meet the goals, the bidder has been unable to do so and therefore is requesting a good faith effort waiver in part or in full. If the bidder's certification, the SBE plan or a fully documented good faith effort waiver (partial or full) is not submitted with the bid for any reason, the bid shall be deemed non-responsive.
Sec. 28-150(5). Submission of SBE plan for construction services projects.
(1) The solicitation shall contain SBE requirements. All respondents shall comply with the SBE requirements as set forth in the solicitation.
(2) The contractor shall submit an SBE participation plan or request for good faith waiver for each project awarded under the job order contracts, that are estimated above the amount specified in section 28-16(1) and has a goal established by the director unless exempted by sections 28-21(sole source procurements), 28-22 (emergency procurements) or 28-23 (special procurements).
(3) The contractor shall submit an SBE participation plan or request for good faith waiver for all construction manager at risk contracts and design build contracts, in accordance with the solicitation, prior to award or prior to establishing a guaranteed maximum price (GMP), if applicable.
(4) The completed and signed SBE plan for the project shall include a list of names of the certified SBE prime contractor, SBE subcontractors and/or suppliers to be used in the eligible project, the type of work or service each business will perform, and the dollar amount of a certified SBE prime contractor, and/or each certified SBE's subcontract and/or suppliers of the total project.
(5) The contractor shall certify that the SBE plan has met the established SBE project participation goals or, notwithstanding good faith efforts to meet the goals, the contractor has been unable to do so and therefore is requesting a good faith effort waiver in part or in full.
Sec. 28-150(6). Review of SBE plans for construction projects.
(1) The director shall review and evaluate the apparent low bidder's SBE goals plan and determine whether the bidder met the project goals for the contract and approve or reject such plan. The director may clarify information relative to the SBE plan with the bidder and/or any listed subcontractors.
(2) The director may reject the plan and determine that the bid is non-responsive where the bidder:
(a) Failed to provide a completed SBE plan;
(b) Failed to identify SBEs by name, the scope of work, and value of work as a percent of the total bid sufficient to meet the applicable SBE goals for that project;
(c) Failed to achieve the dollar value and/or percentage of credible participation by certified SBEs necessary to meet the project goals; or
(d) Failed to meet the requirements for a waiver of the SBE goals.
(3) The director's determination shall be in writing and state the basis for such decision.
(4) The director's determination shall be subject to the remedy provisions of Tucson Code section 28-153(2).
(5) Replacement of an SBE.
(a) Notwithstanding the requirements of section 28-48(2) of the Tucson Procurement Code, the Director shall review and approve the replacement of an SBE from a construction project.
(b) Removal of an SBE does not relieve the contractor of responsibility for meeting the SBE project goal.
(c) The contractor shall immediately take adequate good faith efforts to obtain another certified SBE to perform equal or greater dollar value of the work or submit a request for a partial or full good faith effort waiver.
Sec. 28-150(7). Review of SBE plans for construction services projects.
(1) The director shall review and evaluate SBE plans and determine whether the contractor met the project goals, and approve or reject such plan. The director may clarify information relative to the SBE plan with the respondent and/or any listed subcontractors.
(2) For job order contracts, the director may determine that the plan is not acceptable where the contractor:
(a) Failed to provide a completed SBE plan;
(b) Failed to identify SBEs by name, the scope of work, and value of work as a percent of the total bid sufficient to meet the applicable SBE goals for that project;
(c) Failed to achieve the dollar value of credible participation by certified SBEs necessary to meet the project goals; or
(d) Failed to meet the requirements for a waiver of the SBE goals. In the event that a plan is found unacceptable, the Director may pursue remedies up to and including termination of the contract.
(3) For all construction manager-at-risk contracts and design build contracts, the director may determine that the plan is not acceptable where the respondent:
(a) Failed to provide a completed SBE plan;
(b) Failed to identify SBEs by name, the scope of work and value of work of the total bid sufficient to meet the applicable SBE goals for that project;
(c) Failed to achieve the dollar value of credible participation by certified SBEs necessary to meet the project goals; or
(d) Failed to meet the requirements for a waiver of the SBE goals. In the event that a plan is found unacceptable, the director may:
(i) If the contract has not been awarded, formally cease negotiations with the firm and enter into negotiations with the next ranked firm or reject all submittals; or
(ii) If the contract has been awarded, formally terminate the contract for failure to comply with the SBE provisions.
(4) The director's determination shall be in writing and state the basis for such decision.
(5) The director's determination shall be subject to the remedy provisions of section 28-153(2).
Sec. 28-150(8). Maintenance of records and reports by construction contractors. Unless otherwise specified in the solicitation, contractors awarded eligible contracts shall submit a participation report which summarizes the number and dollar amount of all subcontract awarded during the contract term. The participation report must be submitted to the director no later than one (1) month after the contract has been awarded and with the final payment request. In addition to the statutory requirement for retention, failure to submit the one (1) month participation report of all proposed subcontractors will result in the city withholding an additional ten (10) percent of all future payments on the eligible contract until it is determined that the contractor is in compliance. Failure to submit the participation report at the time of request for final payment shall result in withholding final payment from the contractor until it is determined that the contractor is in compliance. For job order contracts, the contractor shall submit subcontractor utilization reports to the director at the completion of each individual project.
(Ord. No. 10993, § 1, 6-12-12, eff. 7-1-12; Ord. No. 11296, § 1, 8-5-15)