Sec. 18-105. Bidder’s requirements regarding submission of an SBE utilization plan.
A. Notwithstanding a bidder’s compliance with any other requirement of City ordinances, if SBE participation goals have been set for an eligible project, no bidder shall be awarded a contract for the project unless the City Manager has approved the bidder’s SBE utilization plan or granted the bidder a waiver on the project. The bidder’s SBE utilization plan shall demonstrate how the bidder will meet the applicable SBE participation goals set for the project and shall be incorporated into the contract.
B. Each bidder shall submit a completed SBE plan or fully documented waiver request with the bid submission. The plan shall contain, at a minimum, the names, addresses, and contact persons of the SBEs to be used in the contract, the type of work or service each business will perform, and the dollar value of the SBE subcontract. These requirements may be changed by the City Manager from time to time. Prime contractors/bidders may meet the applicable SBE project goals through a variety of methods, as follows:
1. Subcontractor participation. Where a prime contractor utilizes one or more subcontractors to satisfy its SBE participation commitment, the prime contractor may claim only expenditures to certified SBE subcontractors performing a commercially useful function in the work of the contract and performing work in the trade area where SBE certification has been granted.
2. Non-SBE firms not counted. Work subcontracted by SBE subcontractors to non-SBE firms will not be counted towards achieving the SBE utilization goal established for the project.
3. Supplier participation. Where a prime contractor utilizes one or more SBE suppliers to satisfy its SBE commitment, in whole or in part, the SBE supplier participation may be credited towards the applicable SBE participation goal as follows:
a. If SBE suppliers manufacture the goods supplied, then 100 percent of the contract amount is credited towards the applicable SBE participation goal.
b. If the SBE suppliers are wholesalers warehousing the goods supplied, then 100 percent of the contract amount is credited towards the applicable SBE participation goal; but only 25 percent of the applicable SBE goal may be attained by nonmanufacturing supplier contracts to SBEs.
4. Joint ventures and mentor-protege programs.
a. The City Manager shall encourage, where economically feasible, establishment of joint ventures and mentor-protege programs to promote prime contracting opportunities for SBEs on all eligible projects.
b. Where a prime contractor/bidder engages in a joint venture to satisfy its SBE commitment, the City Manager shall review and approve all joint venture agreements. On the basis of these agreements, the City Manager shall determine the degree of SBE joint venture participation that may be credited towards applicable SBE project goals.
c. The prime contractor/bidder shall permit the City Manager to review all records pertaining to joint venture agreements before and after the contract award, to the extent reasonably necessary to assess compliance with this article.
d. The degree to which a joint venture may satisfy relevant SBE participation goals cannot exceed the proportionate interest held by the SBE as a member of the joint venture as demonstrated in the written agreement establishing the joint venture. Further, SBE economic interest in the joint venture shall be based on sharing of real economic interest in the joint venture and shall include proportionate control over management, interest in capital acquired by the joint venture, and participation in the joint venture’s profit or loss.
e. The City Manager shall also encourage mentor-protege programs to assist SBEs on financing, bonding, construction management, and technical matters. The City Manager shall review and approve the following terms of each mentor-protege agreement:
(1) Type of technical assistance to be provided by mentor;
(2) Rights and responsibilities of each mentor and protege for each contracting activity;
(3) The specific duration of the agreement, which shall not exceed three years; and
(4) The amount of the protege participation that may be credited toward the applicable SBE goal.
C. After the City executes the project contract, the successful prime contractor/bidder may not alter the SBE utilization plan as submitted at the time of the bid without prior written consent of the City Manager.
D. Subcontractor goals packet SBE plan.
1. The City will publish its SBE subcontracting goals in the project specifications and the instructions to bidders. All bidders shall submit at the time of bid a subcontractor goals packet containing their proposed SBE utilization plan and letter(s) of intent for the project, a complete list of SBE subcontractors, and the dollar value and participation percentage of each SBE proposed subcontract, a complete list of subcontractors/suppliers contacted in preparation for bid, or a good faith request for waiver or both as applicable.
2. Each bidder shall certify on the subcontractor goals packet that the bidder 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 entitled to a waiver. If this certification is not included as part of the bid for any reason, the bid shall not be read. In addition, the bid shall not be read or as applicable, deemed nonresponsive unless it includes either the complete subcontractor goals packet if the bidder has met the established SBE project participation goals; or a fully documented waiver request if, notwithstanding good faith efforts, the bidder has failed to meet the goals. All bids that include the certification and either the complete subcontractor goals packet or a fully documented waiver request shall be read, unless otherwise deemed nonresponsive.
E. Waiver.
1. All waiver requests shall indicate whether a complete or partial waiver is sought and shall indicate the scope of any partial-waiver request. The waiver request shall provide evidence of the prime contractor’s/bidder’s efforts to meet the project goals, and the waiver will be resolved in the manner described below.
2. The prime contractor’s/bidder’s application for waiver of the project goals shall include full documentary evidence of the prime contractor’s/bidder’s good faith efforts to meet the project goals, and the application shall state why the request for waiver should be granted. The application shall be in writing and shall include a narrative, affidavits and/or exhibits that explain in detail and verify the actions taken by the prime contractor/bidder to meet the goals. The fact that other prime contractors/bidders could meet, or claim to meet, the project goals shall not by itself constitute grounds for denying a waiver request. All requests for waivers shall be evaluated on the basis of the objective criteria set forth below.
3. The prime contractor/bidder shall provide as part of the waiver request the following evidence of its good faith efforts, and the request will be evaluated on these items:
a. Copies of written notifications to SBEs that their interest in the subcontract is solicited;
b. Evidence of the efforts made to divide the work into small, economically feasible units in order to increase the likelihood of achieving the stated project goals;
c. Evidence of efforts made to negotiate with SBEs including at a minimum:
(1) The names, addresses and telephone numbers of SBEs that were contacted;
(2) A description of the information provided to SBEs regarding the plans and specifications for portions of the work to be performed;
(3) A statement of the reasons why additional agreements with SBEs if needed to meet the stated goals, were not reached;
d. Evidence of efforts made to help SBEs contacted that need assistance in obtaining bonds and insurance required by the prime contractor/bidder;
e. As to each contacted SBE the prime contractor/bidder considered unqualified, a written statement of the reasons for the prime contractor’s/bidder’s conclusion;
f. Written quotes or records of verbal quotes solicited from all SBEs seeking subcontract work with the prime contractor/bidder.
4. The City shall waive a project goal, at least in part, if the quotes or proposals received by the prime contractor/bidder requesting a waiver from all SBEs in one trade exceed the quote or proposal of the lowest non-SBE competing for the same work by the lesser of 20 percent or $100,000.00. The City shall adopt administrative rules, with input from the Small Business Enterprise Subcontracting Goals Oversight Committee, to implement the waiver criteria specified above. (Ord. No. G-5518, § 1, 2010; Ord. No. G-6742, § 1, 2020)