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HomeMy WebLinkAboutCP 148 CBM 9 D /telo HM u `I Y .A^SI,:*FILE-1 ACCOUNfTI1W-2 Js ISI'ORTATIONIPUSLbo W ,` LNIF+ E �s �Iftq POLICY P R Q► S A L DATE FILE NUMBER SUBJECT City-Wide'Dfsadvantaged Business PAGE.!—OF-1- 03-13-90 AGE1 OF803-13-90 C. P. 148- Enterprise Policy PROPOSAL PROPOSED BY: CI MANAG 'SREVIEW Those Listed Below RECOMMENDATION It is recommended that the City Council repeal Council Policy 145 (C.P. 145) as approved on September 26, 1989 and adopt the revised .Policy for the Disadvantaged Business Enterprise (DBE) Program as -out 1-+rred below. BACKGROUND n 1978, the City Council adopted a policy that was aimed at increasing the level of participation of minority business enterprises (MBEs) on City. projects funded by the Department of Transportation, primarily the Urban Mass Transportation Administration (UMTA) . The policy was revised in 1980 to include women-owned businesses (WBEs) ; and was further revised in 1983 to comply with UMTA' s requirement to change to a Disadvantaged Business Enterprise Program. This policy applied to only those projects which were federally funded. After program implementation, the reports submitted to UMTA reflected that there was sufficient participation by MBEs and WBEs to meet the federal requirements. In comparing the MBE and WBE participation on City-let, City-funded projects during the same time period, it became readily apparent that the level of participation was extremely low and in some areas non-existent. On July 8, 1986, in order to address this passive discrimination, the City Council adopted C.P. 123, instituting a program aimed at increasing the level of MBE and WBE participation in all City unded procurement activities. The participation by MBE and WBE firms has Ancreased each year the program has been in existence. ' COURT ACTIONS The United States Supreme Court decision in the case of City of Richmond v. J. A. Croson Co. . 109 S. Ct. 706 (1989) , establishes new standards by which the constitutionality of local governments' MBE and WBE programs gill be judged. . In Croson. the Supreme Court held that a local government may maintain a program if it is necessary to assure that. the local government is not a "passive participant" in a system of racial/social exclusion practiced by contractors in the private sector ; or if such a program is necessary to eradicate the vestiges of its own part discrimination. LEGALITY ® OFFICIAL RECORD FISCAL NOTE ® CITY SECRETARY CITY MANAGER'S COMMENTS ® f T. WORTH, Tal el JLICY PROPOSAL (cont PAGE_OF 8 The Court further held ". . . that any public entity, state or federal , has a compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice. " In the concluding section of the majority opinion, the Court reiterated that "[Wlhere there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality' s prime contractors, an inference of discriminatory exclusion could arise." Pending completion of additional surveys and studies which are required as a result of Croson, it is necessary to repeal C. P. 123 and adopt a DBE program. The DBE Program will be narrowly tailored to include the major presumptive groups in the metroplex that have suffered as direct recipients of the past exclusionary practices in the private and public sectors. DEFINITIONS For the purposes of this policy: 1. "Disadvantaged Business Enterprise" is defined as a business concern currently doing business and/or located in the Fort Worth/Dallas metroplex meeting the following criteria: ae which is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of the stock is owned by one or more socially and economically disadvantaged indi- viduals; and b. whose management and daily business operations are controlled by one or more of the socially and econom- ically disadvantaged individuals who own It; and co whose owners are citizens of the United States or lawfully admitted permanent residents. d. Any person, firm, corporation, or partnership which has a current certification from the Small Business Administration under Section 8(a) of the Small Business Act. 2. "Socially -Disadvantaged Individuals" means individuals who have been been subject to racial or ethnic prejudice or cultural bias be- cause of their identity as a member of a group without regard to their qualities as individuals or capabilities as a business. OFFICIAL RECORD CRY OF TORT WORTH CITY SECRETARY FT. WORTH, TK � JLICY PROPOSAL (coni d) PAGE 3 OF 8 3. "Economically Disadvantaged Individuals" means socially disadvantaged individuals whose ability to compete in the free enterprise system Is impaired due to diminished opportunities to obtain capital and credit as compared to others in the same line of business who are not socially disadvantaged. 4. For the purpose of this Policy, the City shall require all Individuals to submit a narrative explaining their economic and social disadvantageness with each certification and renewal application. Certification will not be considered without submission of this narrative. S. "Offeror" means any person, firm, corporation, or partnership which submits a bid or proposal to provide labor, goods or services to the City where City funds are expended. DECLARATION OF POLICY It is in the best interest of the City to promote the equitable utilization of DBE firms in City contracting in order to eradicate the lingering effects of past discrimination and to prevent the City' s own spending decisions from reinforcing and perpetuating the exclusionary effects of past discrimination; while at the same time maintaining a high quality of goods and services provided to the City through competitive bidding as required by law. Therefore, it is the policy of the City of Fort Worth to ensure the full and equitable participation by DBE firms In the provision of all goods and services to the City on a contractual basis. The objective of the Policy is to increase the use of DBE firms to a level comparable to the availability of DBE firms which are capable of providing goods and services directly or indirectly to the City. Upon request, the City will assist DBEs by providing them with information on bid specifications, compliance with procurement policy and fulfillment of general bid requirements. In addition, the City will provide information on job performance requirements, procurement opportunities and prerequisites for bidding on City contracts. The City will encourage joint ventures between DBEs, as well as between majority firms and DBE firms on City procurement activities. The City will use its best efforts to insure that DBEs are informed of current and future procurement activities through direct contact, coordination with assistance organizations and placing certified DBEs on the City' s bid list. RECORD CITY SFCKTARY FT. WORTH, TM CRY OF FORT WORTH POLICY PROPOSAL (cont•d) PAGE-4.-OF $ CITY-WIDE GOALS Based on the availability of DBE firms, the initial City-wide goal for the total dollar value of City procurement activities will be fifteen , percent ( 15%). Based on the growth rate and expanded capabilities studies available in the •etroplex, over the next five years the City's ' goal is to achieve a DBE participation level of twenty percent (20%) of . the total dollar value of City procurement. a. The DBE Office, City Manager and affected Department Heads will meet periodically and review the anticipated procurement opportunities for the fiscal year for the purpose of achieving the City' s overall DBE goal as established by the City Council . Based upon the availability of DBEs, separate goals will be established by the City Manager and assigned to the areas of construction, professional services, and purchases. b. The above goals will generally apply to all City procurements, particularly where the expenditure of City funds is estimated to be $25, 000 or more. Procurement opportunities may be reviewed on an individual basis for the purpose of establish- ing higher or lower goals based on the availability of DBEs. c. The City Manager will be responsible for managing the effec- tiveness of the Policy and, on at least an annual basis, report the City' s performance to the City Council and if necessary, recommend new City-wide goals to be approved by the City Council . d. The DBE Policy will remain in effect for five (5) years from the date of approval of this Policy, at which time the City Council will conduct a review to determine whether the City has achieved its five year goal of twenty percent (20%) DBE participation. Ifthat level of DBE participation has been achieved, the DBE Policy will no longer be in effect. If the five year goal of twenty percent (20%) has not been achieved, the City Council will have the option to continue the Policy. IMPLEMENTATION OF POLICY In order to comply with the new standards established by the Supreme Court, and have an effective City-wide DBE program, it is recommended that the City Council approve a policy that permits the inclusion of DBE requirements in City .procurement activities. It is further recommended that the City Council set overall goals for DBE participation in such procurement activities. Therefore, the following Policy is proposed. 1. Approve a remedial program to prevent the City from once again becoming a passive participant in systematically excluding DBEs from participating in City procurement activities. ' OFFICIAL RECORD CRY OF FORT WORTH PITY LCRETARI� FT. WORTN, � JLICY PROPOSAL (con. J) PAGE.!—OF 8 doft 2. Establish individual goals in relationship to the particular procurement activity based on the availability of DBEs to perform the activity required. 8. Review, eliminate or redesign internal systems that prohibit, discriminate or restrict not only DBE firms but other businesses from conducting business with the City. 4. Participate in a metroplex local governmental fact finding study to provide additional findings of past and present areas of difficulty, including but not limited to bonding, financing, private and public market access, that prohibit DBEs from reaching their full capabilities. The study will analyze anecdotal and statistical in- formation to determine whether discrimination occurred within and Ow without and if it still exists. 5. WAIVER PROCEDURES: The affected Department shall send a written request to the DBE Office requesting a waiver for any applicable contract prior to advertisement and bid. DBE requirements may be waived only upon written approval of the DBE Office. The affected Department shall determine whether the contract is one in which DBE provisions should not be applied. These provisions are not required to be applied in the following circumstances: a* a public or administrative emergency exits which re- quires the goods or services to be provided with unusual Immediacy; or b. the application of DBE provisions would impose an unwarranted economic burden or risk on the City or unduly delay acquisition of the goods or services, or would otherwise not be in the best interest of the City; or C* if, based on DBE availability, participation would be negligible. If the affected department determines that one of the above conditions exists, the department shall notify the DBE Office in writing, stating the specific reasons that the waiver is requested. S. AWARD PROCEDURES: . A DBE Policy� .statement shall be included in the specifications of all eligible projects. The City will consider the Offeror' s responsiveness to the DBE Policy in the evaluation of bids and proposals. Failure to comply with the City' s DBE Policy or failure to demonstrate a "Good Faith Effort" to comply, shall result in a bid or proposal being OFFICIAL RECORD CITY OF FORT WORTH SECRET M1 FT Wf1RTH TFY a . JLICY PROPOSAL (con. . ) PAGE 6 OF 8 considered non-responsive to specifications. The lowest responsible Offeror meeting the specifications, inclusive of DBE compliance, will be awarded the project. 7. DEBARMENT PROCEDURES: The misrepresentation of facts by an Offeror may result in the Offeror beim determined to be an irresponsible Offeror and barred from participating in City work for a period of time, such time to be determined on a case-by-case basis. a. The DBE Office will send a written statement of facts and a recommendation for debarment to the City Manager. The City Manager, after consultation, with the Department of Law, will make the decision regarding debarment and send a certified notice to the Offeror. b. An Offeror that receives notification of debarment may appeal to an Appeal Board, hereinafter created, by giving written notice within ten (10) days from the date of receipt of the debarment notice, to the City Manager of its request for appeal . c. An Appeal Board, consisting of not less than three members appointed by the City Manager with the approval of the City Council , will meet within thirty (30) days from the date of receipt of the request for appeal of debarment, unless Offeror requests an extension of time. The Offeror will be notified of the meeting time and location. d. The Offeror will be afforded an opportunity to appear with Counsel if they desire, submit documentary evidence, and confront any person the City presents. e. From the date of notification of debarment and during the pendency of any appeal , the City will not consider offers from, award contracts to, renew or otherwise extend contracts with, or contract directly or indirectly through subcontracts with the Offeror pending the Appeal Board' s decision. 1'. The Appeal Board will render its decision within thirty (30) days or sooner of the hearing and send a certified notice to the Offeror. g. If the Appeal Board upholds the original debarment, the Offeror may appeal to the City Council within ten (10) days from the date of receipt of the Appeal Board' s decision by giving written notice to the City Manager. OFFICIAL RECORD CITY OF FORT WORTH rTAnv , 6 FT. WORTH, TEl(. � . JLICY PROPOSAL (con. ,) IAGE,j,_OF $ The appeal will be placed on the City Council agenda within thirty (30) days from receipt of written notice, unless Offeror requests an extension of time. DISADVANTAGED BUSINESS ENTERPRISE OFFICE The City' s Disadvantaged Business Enterprise (DBE) Office will be responsible for monitoring the program, and tracking statistical data. Each affected department will appoint a liaison to assure compliance with City-wide goals and to coordinate with the DBE Office. The DBE Office will also be charged with, but not limited to, the following duties: a. Establish procedures for the implementation of the Policy, such procedures to be narrowly tailored to attain the objec- 01- specified herein without unduly limiting non-DBE businesses. Such procedures shall be reviewed and approved by the City Manager and by the Department of Law prior to Implementation; b. Certify businesses as DBEs, maintaining and distributing a list of those businesses to the affected City departments. A list of such businesses will also be provided to Offerors upon request. c. Develop educational programs to assist DBEs to compete effec- tively for City contracts; d. Make recommendations to the City Manager and other City departments to further the objectives of the Policy; Review documentation required to be submitted by offerors for compliance with the Policy; f. Compile a monthly report reflecting the progress in attaining the City-wide goals. Receive and review complaints and recommendations regarding the implementation of the DBE Policy from any source. b. Audit compliance to the DBE Policy on eligible projects after award, during the performance thereof, and after completion. The DBE Office will make recommendations to the City Manager on any irregularities or misrepresentation of facts as they relate to compliance with the Policy. I. Perform such other duties assigned by the City Manager to carry forth the implementation of the Policy. OFFhAAL R�COA CITY SrCNIrTARY CRY OF FORT WORTH , � JLICY PROPOSAL (coni „�) PAGE�,OF� LEGALITY• The City Attorney has reviewed the proposed policy and there are no known legal impediments that would prohibit or limit the implementation of such a policy. FISCAL NOTE: Funds may be needed to participate in a metroplex study that will provide the data required by law. CITY MANAGER' S COMMENTS: The City Manager concurs with this policy proposal and will assign elresponsibility for implementation and monitoring to the Disadvantaged -3usiness Enterprise Office. . -el r A e"' Mayor Bob Bo en District 1 (2,, uncil outsWO,to Mayo Pro em Garey W. G 1 ey Distric 2 Distr 6 ncilman Wil am Garrison Counc lwoman Virginia Webber District 3 District 8 Loa nc l om ay Gr or C ncilman Da i Chappell Dist ' ict District 9 APPROVED BY Counci an Eugene McCray CITY COUNCK D i s tr i s CITY SECRETARY MAR 13 1990 U 44W. w CRY OF FORT WORTH d as City a Fod Wow.Tdow