Sec. 28-148(1). Duties of the director. The director shall implement and monitor the SBE program. The director shall be the chief administrative officer for the program and shall have the following duties and authority:
(1) The administration and enforcement of this article.
(2) Coordination of the development of administrative procedures and policies with the applicable department(s) to effectuate this article.
(3) Coordination of outreach efforts, including increased working relationships with local community organizations to identify and increase the availability of SBE firms.
Sec. 28-148(2). Records retention requirements.
(1) The director shall, ensure that data and records are maintained in order to conduct on-going analysis and evaluation of the SBE program and its objectives and may make recommendations to the city manager and mayor and council regarding additional efforts necessary to ensure SBE participation.
(2) All city departments shall maintain and retain complete and accurate records relating to any professional design, construction, or construction services procurements.
(3) The director of the procurement department shall maintain records of source selection and record of the inclusion of SBEs for awarded procurements.
Sec. 28-148(3). Administrative provisions for certification. The director shall be responsible for the certification and verification of program eligibility. DBE and SBE criteria and definitions shall be applied in accordance with 49 CFR part 26 to establish eligibility for certification of local firms as a SBE. Only local firms shall qualify for certification as a SBE. Firms outside of the Tucson/Pima metropolitan area meeting the eligibility criteria for DBE certification will qualify only as a DBE and are not eligible to participate in the local SBE program. The director shall:
(1) Maintain a listing of certified SBEs segmented into specified trades or lines of business to be maintained as public record; and
(2) Participate and effectuate reciprocity of DBE certification through the AZUCP.
Sec. 28-148(4). Standards for SBE certification. The director shall certify and monitor contractors, subcontractors, professional services consultants, professional services subcontractors, vendors, and suppliers as a bona fide SBE for participation in the SBE program based on the certification criteria and definitions as set forth in 49 CFR part 26, including, but not limited to, the following standards:
(1) A SBE shall be an independent business enterprise, continuing in operation for profit, performing a commercially useful function. The ownership and control shall be real and substantial and be indicated by customary incidents of ownership, as demonstrated by an examination of the substance rather than the form of ownership and operating arrangements.
(2) A certified SBE shall have a valid City of Tucson business license.
(3) A certified SBE shall be a local enterprise as defined by this article and an active participant within the Tucson/Pima County metropolitan area.
(4) The SBE applicant(s) must not exceed the personal net worth standard as defined in 49 CFR part 26.
(5) The SBE applicant is responsible for cooperating and providing all necessary documentation in support of all eligibility as set forth in 49 CFR part 26 and this article. A complete certification application is required along with supportive documents including, but not limited to, three (3) years of income tax records (personal and business), bank signature card, a current personal net worth statement, and various other documents confirming ownership, management, and control of the SBE applicant firm. Additionally, an on-site audit is required at the firm's place of business.
Sec. 28-148(5). Certification investigations. In accordance with 49 CFR part 26, the director may investigate SBE ownership, contract transactions, and other relevant arrangements beyond formal documentation at initial certification, during certification, during the annual update, or based on a complaint submitted to the director. To the extent reasonably necessary to ensure compliance, such investigations may include, but are not limited to, the following:
(1) Personal interviews with persons having knowledge or relevant information relating to an SBE's eligibility, certification, or decertification.
(2) Personal interviews with bidders, contractors, vendors, and/or suppliers involved in a contractual relationship with the SBE.
(3) Reviewing records pertaining to certification.
(4) Conducting random on-site visits, audits, and/or relevant inquiries.
Sec. 28-148(6). Certification period. In accordance with 49 CFR part 26, the director shall grant certification to an approved SBE with the requirement for an annual update affirming there have been no changes in the firm's circumstances affecting its ability to meet size, ownership, or control requirements or material changes in the information provided in its application form. If an SBE is denied certification on the basis of the information submitted, the entity may not reapply for a period of one (1) year from the date of the notice of denial provided that such firm shall have the right to appeal such denial to the director in accordance with the process specified in section 28-148(9).
Sec. 28-148(7). Continuing certification. All certified SBEs must annually re-submit disclosure affidavits and any other required documents.
Sec. 28-148(8). Decertification. The director may decertify a business enterprise because of, but not limited to, the following, in accordance with 49 CFR part 26 where applicable, or demonstrates continued poor performance on contracts as determined by City of Tucson staff:
(1) A change in ownership and/or control.
(2) A change in management structuring.
(3) Exceeding small business administration size limits by industry designation.
(4) Exceeding program standard for owner(s) personal net worth.
(5) Fails to comply with annual reporting requirements.
(6) Fails to fulfill the requirements of 28-148(4).
(7) Fails to cooperate as directed in 28-148(5).
(8) Continued poor performance ratings.
Sec. 28-148(9). Protest procedures for SBE certification and decertification decisions.
(1) SBE certification/decertification decisions. All decisions regarding certifications and decertifications 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 as provided herein.
(a) An aggrieved party may submit protest in writing to the director within ten (10) days from the date of notice of the adverse decision. The protest must include the legal and factual basis for the protest along with any supporting documents.
(b) Within fifteen (15) days of receipt of the protest, the director shall review the protest and all relevant supporting documents and render a decision notice in writing which includes the basis for the decision.
(2) Appeal of director’s certification and decertification decisions. If the protest is denied, the aggrieved party may request an appeal review through the director. The request must be in writing and received by the director within seven (7) days of the aggrieved party’s receipt of the decision notice. The aggrieved party shall set forth the legal and factual basis for the appeal of the decision. The director shall retain an independent hearing officer who will have knowledge of the certification standards/criteria as set forth in 49 CFR part 26, construction and procurement law and the small business enterprise program.
(a) Within seven (7) days of receipt of the notice of appeal from the aggrieved party, the director shall forward the notice to the independent hearing officer.
(b) The independent hearing officer shall make a decision based solely on the administrative record.
(c) The independent hearing officer shall make a written decision on the appeal, as soon as practical. The decision may affirm, modify, or reverse the decision by the director.
(d) The independent hearing officer’s decision will be forwarded to the director for a final decision regarding certification or decertification.
(Ord. No. 10993, § 1, 6-12-12, eff. 7-1-12; Ord. No. 11296, § 1, 8-5-15)