HomeMy WebLinkAboutOrdinance 20020-12-2011ORDINANCE NO. 20020-12-2011
AN ORDINANCE REPEALING ALL PREVIOUS MINORITY AND WOMEN
BUSINESS ENTERPRISE ORDINANCES AND POLICIES PREVIOUSLY ADOPTED;
ADOPTING AN ORDINANCE TO REMEDY THE UNDERUTILIZATION OF
MINORITY AND WOMEN BUSINESSES, AND TO ENHANCE THE UTILIZATION
OF SAME; DEFINING MINORITY BUSINESS ENTERPRISE, AND WOMEN
BUSINESS ENTERPRISE FOR PURPOSE OF CERTIFICATION; REQUIRING
MINORITY BUSINESS ENTERPRISE AND WOMEN BUSINESS ENTERPRISE
PARTICIPANTS TO BE QUALIFIED AND DOING BUSINESS IN LOCALITY FROM
WHICH THE CITY REGULARLY SOLICITS; ESTABLISHING SEPARATE
CATEGORIES FOR GOALS FOR MINORITY BUSINESS ENTERPRISES IN THE
SPECIFIC AREAS OF CONSTRUCTION, AND PROFESSIONAL SERVICES OTHER
THAN ARCHITECTURAL AND ENGINEERING AND MINORITY AND WOMEN
BUSINESS ENTERPRISES IN THE SPECIFIC AREA OF PURCHASING;
ESTABLISHING PROCEDURES FOR CONTRACT SPECIFIC GOALS; PROVIDING
GENERALLY FOR THE PROCEDURES TO BE FOLLOWED IN THE
PROCUREMENT PROCESS; REQUIRING CONTRACTORS TO SUBMIT
DOCUMENTATION OF COMPLIANCE IN ORDER TO BE RESPONSIVE TO CITY
SPECIFICATIONS; ESTABLISHING WAIVER OF GOALS PROCEDURES;
APPLYING THE SELECTIVE USE OF SMALL BUSINESS ENTERPRISE
PROVISIONS AS DEEMED APPROPRIATE; ALLOWING FOR DEBARMENT FOR
MISREPRESENTATION OF FACTS AS IT RELATES TO COMPLIANCE;
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council has commissioned Availability/Disparity Studies
(Studies) conducted by Browne, Bortz & Coddington, Inc. (BBC), Carl Anderson, Esq., MGT,
Inc. and most recently Mason Tillman Associates, Ltd. and found disparities in the utilization of
minority and women business enterprises in contracts awarded by the City of Fort Worth (City);
and
WHEREAS, the Studies found that discrimination occurred in the major contracting
areas (construction, purchasing, and professional services) of the City of Fort Worth and resulted
in significant underutilization of minority and women business enterprises; and
WHEREAS, minority and women business enterprises have had and continue to have
difficulties in obtaining financing, bonding, credit and insurance, and assistance programs have
not been effective in either remedying the effects of underutilization in City contracting or in
preventing ongoing underutilization; and
WHEREAS, the Studies determined that race -neutral alternatives for enhancing
minority and women business enterprise contracting are not completely sufficient; and
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Urdtnance No 20020-12-201 1
WHEREAS, the City has also been a passive participant in discriminatory behavior
practiced by private industry within the relevant Marketplace in the award of contracts to
minorities and women businesses,
WHEREAS, the purpose of this ordinance is to overcome the effects of this past
underutilization and prevent any ongoing discrimination in the City's contracting processes; and
WHEREAS, the provisions of this ordinance may increase the utilization of minority
and women business enterprises in contracts awarded by the City of Fort Worth; and
WHEREAS, the City Council now desires to provide a narrowly tailored remedy for
past underutilization of minority and women businesses through the annual setting and defining
of percentage goals for different categories of contracts, providing penalties for fraudulent
misuse of this ordinance, requiring regular review of the necessity for the provisions of this
ordinance, limiting those minority and women's business enterprises that participate under this
ordinance to those that qualify and do business in the City's Marketplace, providing for post bid
submission of required information about minority and women business enterprises and
establishing waiver of goals procedures;
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF FORT WORTH, TEXAS, THAT:
SECTION 1.
It is the policy of the City of Fort Worth to attempt to provide a remedy for past underutilization
of qualified minority and women businesses and prevent ongoing underutilization of minority
and women business enterprises in the City's contracting process by ensuring the full and
equitable participation of minority and women business enterprises in the provision of goods and
services to the City on a contractual basis in the manner identified in Attachment I of this
ordinance, said Attachment I being a part of this ordinance.
SECTION 2.
The ultimate goal of this ordinance is to remedy the effects of past underutilization in the
Marketplace by increasing the use of minority and women business enterprises in the Fort Worth
Marketplace. The City Manager shall recommend an annual aspirational goal for MBE/WBE
participation in City procurement activities, based on utilization and availability analyses of the
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Ordinance No.20020-12-2011
most current procurement activity data within the Marketplace. An annual goal will provide a
mechanism for adjustments as reflected by the relevant conditions in the Marketplace. This will
be a measurement goal, not a quota.
SECTION 3.
The provisions of this ordinance shall apply to all contracts awarded by the City, except as may
be hereafter specifically exempted. Where contracts involve the expenditure of federal or state
funds, the state or federal policy related to MBE/WBE or DBE participation may take
precedence over this ordinance. The provisions of this ordinance shall be liberally construed for
the accomplishment of its policies and purposes. Specific goals shall be established in the areas
of construction and professional services. A goal may be set on individual contracts based on
the type of work or services to be performed, or goods to be acquired and the availability of
minority and women businesses in the City's Marketplace.
SECTION 4.
The provisions of this ordinance shall be considered in determining the responsiveness to
specifications of offerors to the City. The City shall consider the offeror's responsiveness to this
ordinance in the evaluation of bids and proposals and shall award contracts in accordance with
governing law, inclusive of compliance to this business diversity ordinance.
SECTION 5.
Debarment procedures shall be established for firms willfully misrepresenting the facts in
compliance with this ordinance to the City.
SECTION 6.
Waiver procedures to the regulations established in this ordinance shall be provided for City
procurement activities where a public calamity requires the emergency expenditure of funds; the
purchase of goods or services from source(s) where subcontracting or supplier opportunities are
nonexistent; where an economic risk or undue delay for the acquisition of goods or services will
be imposed on the City, or when the availability of minority and women businesses is negligible.
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Ordinance No. 20020-12-2011
SECTION 7.
From and after the date this ordinance takes effect, it shall supersede all previous City Council
Policies affecting minority and women business enterprises.
SECTION 8.
The City Manager, with the advice and counsel of the Minority and Women Business Enterprise
Advisory Committee ("MWBE-AC") in accord with City of Fort Worth Resolution No. 3698-12-
2008, is hereby authorized to establish, implement and administer regulations necessary to carry
out the intent of this ordinance.
SECTION 9.
The City Council shall regularly, approximately every five (5) years, determine whether there is
a continuing need for a minority and women business enterprise program, make relevant
findings, and, if necessary, repeal in whole or in part or enact appropriate amendments to this
ordinance.
SECTION 10.
It is hereby declared to be the intention of the City Council that the sections, paragraphs,
sentences, clauses and phrases of this ordinance are severable, and, if any phrase, clause,
sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid
judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not
affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this
ordinance, since the same would have been enacted by the City Council without the
incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph
or section.
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SECTION 11.
This ordinance shall take effect and be in full force and effect from on and after June 1, 2012;
provided, however, that this ordinance shall not affect any procurement activity where formal
solicitation began before the effective date of this ordinance, and it is so ordained.
APPROVED AS TO FORM AND LEGALITY:
0,0
Assistant City Attorney
December 13, 2012
Adopted
June 1, 2012
Effective
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Ordinance No 20020-12-201 1
Minority and Women Business Enterprise Ordinance Attachment 1
ATTACHMENT 1
TABLE OF CONTENTS
Subject Page No.
I.DEFINITIONS 1
II.PURPOSE 6
III.CERTIFICATION 6
IV.PROGRAM GOAL 7
V.PROGRAM ENHANCEMENTS 7
A. Joint Ventures
B. MWBE Prime Contract Program
C. Small Business Enterprise (SBE) Subcontracting Program
D. Procurements Less than $50,000
VI. APPLICABLE CONTRACTS 11
A. Construction
B. Professional Services
C. Purchases
VII. POST AWARD COMPLIANCE 21
VIII. CONTRACT MONITORING AND REPORTING 23
IX. EXCEPTIONS AND WAIVERS 24
X. PROGRAM ADMINISTRATION 25
XI. SANCTIONS 26
XII. SEVERABILITY 27
Minority and Women Business Enterprise Ordinance Attachment 1
I. DEFINITIONS:
1. Applicable Contract means any contract greater than $50,000 for construction projects and
professional services and greater than $50,000 for purchase agreements, as well as any other
contracts that the City Council or City Manager deem appropriate.
2. Best Practice means a technique, method, process, activity, incentive, or reward that is generally
accepted as one of the most effective and most efficient methods to deliver and accomplish a
particular outcome.
3. Best Value means the optimum combination of economy and quality that is the result of fair,
efficient, and practical procurement decision -making and which achieves the City's procurement
objectives.
The City will award contracts to the Offeror who presents the "best value" to the City, price and
other factors considered.
The following criteria may be considered to determine the best value:
a. Purchase Price
b. Reputation of the bidder and of the bidder's goods or services;
c. Quality of the bidder's goods or services;
d. Extent to which the goods or services meet the City's needs;
e. Bidder's past relationship with the City;
f. Impact on the ability of the City to comply with laws and rules relating to contracting with
M/WBE's and non-profit organizations employing persons with disabilities;
g. Total long-term cost to the City to acquire the bidder's goods or services; and
h. Any relevant criteria specifically listed in the request for bids or proposals
4. Business Diversity Coordinator means the day-to-day administrator of the M/WBE Office of the
City of Fort Worth.
5. Business/Technical Assistance means education and training that improves business
performance, profitability, competitiveness, skills, expertise and other qualities that enhance a
business.
6. Certified means those firms, located within the Marketplace, that have been determined to be a
bonafide minority or women business enterprise by the North Central Texas Regional
Certification Agency (NCTRCA) or other certifying agencies that the City may deem appropriate
and accepted by the City of Fort Worth.
7. City means the City of Fort Worth, Texas.
8. City business day means Monday through Friday, inclusive, excluding legal holidays or
applicable furlough days. Legal holidays shall be observed as prescribed by the City Council for
observance as follows:
New Year's Day
M. L. King, Jr. Birthday
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Thanksgiving Friday
Christmas Day
January 1
Third Monday in January
Last Monday in May
July 4
First Monday in September
Fourth Thursday in November
Fourth Friday in November
December 25
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Minority and Women Business Enterprise Ordinance Attachment 1
A furlough day is a temporary layoff from work during which an employee is without duties or pay
because of a lack of work or funds or for other non -disciplinary reasons declared by the City
Manager.
When one of the above named holidays falls on a Saturday, the holiday shall be observed on the
preceding Friday. When one of the above named holidays falls on a Sunday, the holiday shall be
observed on the following Monday.
9. Combined Projects means a construction contract, which includes paving and/or drainage
elements of construction and water and/or sanitary sewer construction elements, but does not
include a standard water and/or sanitary sewer contract where the pavement is temporarily or
permanently repaired and that repair is not a separate unit.
10. Commercially Useful Function means a firm that is responsible for the performance,
management and supervision of a distinct element of the work and/or materials or supplies. A
firm will not be considered to perform a commercially useful function if the role is limited to that of
an extra participant in a transaction, contract or project through which funds are passed in order
to obtain the appearance of participation.
11. Compliance means an Offeror adheres with the Ordinance's requirements during and/or at
completion of the contract.
12. Construction means the erection, rehabilitation, alteration, conversion, extension, demolition,
improvement, remodeling or repair to any real property, including streets, storm drains and
facilities providing utility service owned by the City.
13. Contract means a binding agreement whereby the City either grants a privilege or is committed
to expend or does expend its funds or other resources for or in connection with a) construction of
any public improvement, and b) purchase of any services (including professional services). The
term includes "purchase order".
14. Contract Officer means the person employed by the City to oversee the performance of the
contract.
15. Contracting Department means the department responsible for payment of contract obligations.
16. Contractor means the business entity with whom the City has entered into an agreement.- and
includes the terms "Vendor", "Prime Contractor" and "Prime Consultant".
17. Fee/Commission means the reasonable cost associated with the assistance in the procurement
of materials and supplies.
18. Goal means the percentage of minority business enterprise and/or small business enterprise
participation on an applicable contract as determined by the City, based on the availability of such
businesses in the marketplace and the subcontracting/supplier opportunities of the project.
19. Good Faith Effort means an honest and conscientious effort by the Offeror to explore all
available options to achieve, to the maximum extent practical to meet the City's contract goal for
MBE and/or SBE participation. Compliance with each of the following steps shall satisfy the
Good Faith Effort (GFE) requirement absent mere pro forma efforts, proof of fraud,
misrepresentation, or intentional discrimination by the Offeror:
a. List each and every subcontracting/subconsultant/supplier opportunity for the completion
of this contract. On combined projects list each subcontracting and/or supplying
opportunity through the 2nd tier.
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Minority and Women Business Enterprise Ordinance Attachment 1
b. Obtain a current list (not more than two (2) months old from the bid open date) of MBE
subcontracting/subconsultant/suppliers from the City's M/WBE Office and/or a current SBE
listing, if available and applicable.
c. Solicit bids from MBEs and/or SBEs, within the subcontracting/subconsultant/supplier
areas previously listed, at least ten calendar days prior to bid opening, exclusive of the day
the bids are opened. Both MBEs and/or SBEs and non -MBEs and/or non-SBEs must
receive the same solicitation for each area of opportunity. The four methods identified
below are acceptable for soliciting bids, and each selected method must be applied to the
applicable contract. The Offeror must document that at least two attempts were made
using two of the four methods or that at least one successful contact was made using one
of the four methods in order to be deemed responsive to the Good Faith Effort
requirement.
1) Email - A copy of sent confirmation to subcontracting/subconsultant/suppliers
identifying the MBE and/or SBE firm name, date and time must be printed directly
from the email system for proper documentation. If an email is returned as
undeliverable, then that "undeliverable message" received must be printed
directly from the email system for proper documentation. Failure to submit
confirmation and/or "undeliverable message" documentation may render the GFE
non -responsive.
2) Fax - A copy of sent confirmation to subcontractors/subconsultants/suppliers
identifying the MBE and/or SBE firm name, date and time must be printed directly
from the facsimile for proper documentation. If a fax is returned as undeliverable,
then that "undeliverable confirmation" received must be printed directly from the
facsimile for proper documentation. Failure to submit confirmation and
"undeliverable confirmation" documentation may render your GFE non-
responsive.
3) Mail - Copies of all individual letters to MBE and/or SBE
subcontracting/subconsultant/suppliers to include firm name, date and address.
The letters will identify all solicited scopes of work. All returned mail must be
submitted as part of the GFE documentation. The Offeror must submit a signed
letter to the City of Fort Worth that affirms letters were mailed within the required
time frame. Failure to submit this affirmation may render your GFE non-
responsive.
4) Telephone - A call log that identifies the MBE and/or SBE firm name, phone
number, name of individual contacted, time, date and outcome of phone call.
Failure to submit the call log may render your GFE non -responsive.
d. Provide plans and specifications or information regarding the location of plans and
specifications which shall be communicated to all MBEs and/or SBEs in each
subcontracting/supplier area. Attach a copy of the solicitation sent to MBEs and/or SBEs
identifying the instructions on how to obtain plans and specifications for this solicitation.
All communications shall be documented and submitted to the City.
e. Submit documentation if MBE and/or SBE quotes were rejected. The documentation
submitted should be in the form of an affidavit, include a detailed explanation of why the
MBE and/or SBE was rejected and any supporting documentation the Offeror wishes to
be considered by the City. In the event of a bona fide dispute concerning quotes, the
Offeror will provide for confidential review of any relevant documentation by City
personnel.
20. Horizontal Construction means construction of highways, roads, streets, bridges, utilities, water
supply projects, water plans, wastewater plants, water and wastewater distribution or conveyance
facilities, wharves, docks, airport runways and taxiways, drainage projects, or related types of
projects associated with civil engineering construction as referenced in this ordinance.
21. Joint Venture means a business enterprise jointly owned by two or more businesses, who share
the initial investment, risks, and profits, at least one must be a certified M/WBE firm. The M/WBE
firm must be responsible for a dearly defined portion of the work to be performed, equal to a
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Minority and Women Business Enterprise Ordinance Attachment 1
share in the ownership, control, knowledge, management, responsibility, risks, and profits of the
joint venture. A joint venture constitutes the establishment of a new company formed for a
specific project as reflected in a formal joint venture agreement document. Joint venture
agreements are subject to review and acceptance by the City relative to its M/WBE component.
The joint venture M/WBE ownership percentage will be counted towards the M/WBE
subcontracting goal. Joint ventures are strongly encouraged.
22. Lease Agreement means a written agreement to transfer control and use of truck(s) from one
business entity to another, which outlines fees and/or commissions.
23. Lease Trucks means trucks that are leased from another M/WBE (or SBE, if applicable) firm,
including M/WBE owner -operators. Trucks leased from non-M/WBE (or non-SBE, if applicable)
firms will only receive credit for the fees and commissions earned by the M/WBE (or SBE, if
applicable) as outlined in the lease agreement.
24. MWBE-AC means the Minority and Women Business Enterprise Advisory Committee appointed
by the City Council to review the findings of Availability and Disparity Studies conducted for the
City and present recommendations to the City Manager and City Council, on any amendments to
the Business Diversity Enterprise Ordinance. Additionally, the Committee reviews the
appropriateness of any economic incentive agreement's M/WBE commitment to use Fort Worth
M/WBEs when that commitment is less than the standard twenty-five (25%) percent and to serve
in an advisory capacity to the City Council on the on -going progress of the M/WBE Ordinance
and/or any subsequently adopted Ordinances.
25. Managing Department means the department responsible for overseeing the day-to-day
completion of the contract.
26. Manufacturer means one that makes something into a finished product using raw materials.
27. Marketplace means the geographic market area as defined in the Availability and Disparity Study
represented by the counties of Tarrant and Dallas, plus Denton, Wise, Parker and Johnson which
reflect counties into which the geographical boundaries of the City of Fort Worth extend.
28. Mediation means the intervention by a third party between two or more sides in a dispute in an
attempt to help them reach an agreement.
29. Minority means a citizen of the United States or lawfully admitted permanent resident that is
Asian American, American Indian, Black or Hispanic.
30. Minority Business Enterprise is defined as a business concern located in the Marketplace and
meeting the following criteria:
a. is at least 51 percent owned by one or more minority persons, or, in the case of any
publicly owned business, at least 51 percent of the stock is owned by one or more
minority persons; and
b. management and daily business operations are controlled by one or more minority
persons who own it.
The business must be certified prior to recommendation of award in order for the participation to
be counted towards the established goal.
31. Nepotism means the state or fact of showing favoritism to a relative on the basis of a
relationship.
32. Non-compliance means failure of an Offeror to comply with the Ordinance's requirements during
the contract and/or at completion of the contract.
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Minority and Women Business Enterprise Ordinance Attachment 1
33. Non -responsive means failure of an Offeror to be responsive to the Ordinance's requirements
upon submission of a bid or proposal, herein specifically defined by either 1) meeting or
exceeding the stated contract goal, or 2) making a good faith effort to meet the contract goal or 3)
submitting the prime contractor waiver or 4) submitting the Joint Venture form and agreement.
34. Offeror means any person, firm, corporation, or partnership that submits a bid or proposal to
provide labor, goods or services to the City where funds are expended. The term includes bidder
and proposer.
35. Payment Dispute means a conflict or controversy regarding the amount owned under a contract
or subcontract/supplier agreement.
36. Procurement means the buying, renting, leasing or otherwise obtaining or acquiring any
supplies, materials, equipment or services.
37. Professional Services means services which require predominantly mental or intellectual labor
and skills, and includes, but is not necessarily limited to, architects, engineers, surveyors,
doctors, attorneys, and accountants.
38. Project Manager see Contract Officer.
39. Purchasing means the buying, renting, leasing or otherwise obtaining or acquiring any supplies,
materials, equipment or services excluding construction and professional services previously
defined.
40. Qualified means an individual or business entity having previously performed or received training
in the work, industry or profession required.
41. Race Neutral means business/technical assistance and other processes and techniques that are
intended to benefit all companies regardless of race and/or gender.
42. Regular Dealer is defined as a firm that owns, operates, or maintains a store, a warehouse, or
other establishments in which the materials or supplies required for the contract are bought, kept
in stock, and are regularly sold retail or wholesale. When a firm does not meet the regular dealer
definition, nor is a manufacturer, only the cost of the fees or commissions charged for assistance
in the procurement of the materials and supplies required for a job site will be counted towards
the goal. The fee or commission must be determined to be reasonable and not excessive.
43. Responsive means an Offeror's response to the Ordinance's requirements upon submission of a
bid or proposal, herein specifically defined by either 1) meeting or exceeding the stated contract
goal, or 2) making a good faith effort to meet the contract goal or 3) submitting the prime
contractor waiver or 4) submitting the joint venture form and agreement.
44. Small Business Enterprise is defined as a business concern located in the Marketplace that
meets the United State Small Business Administration's definition of a small business as outlined
in the Code of Federal Regulations 13 CFR 121.
The business must be certified prior to recommendation of award in order for the participation to
be counted towards the established goal.
45. Subcontract means an agreement between the contractor and another business entity for the
performance of work.
45. Subcontract/Subconsultant/Supplier Opportunity means an area where there is more than
one M/WBE or SBE subcontractor/subconsultant/ supplier in the market place
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Minority and Women Business Enterprise Ordinance Attachment 1
46. Tier means the level of subcontracting below the prime contractor/consultant, i.e., a direct
payment from the prime contractor to a subcontractor/subconsultant is considered 1st tier, a
payment by a subcontractor/subconsultant to its supplier/subcontractor/subconsultant is
considered 2nd tier.
47. Vertical Construction means construction of a facility. Facility means buildings, the design and
construction of which are governed by accepted building codes. The term does not include: (a)
highways, roads, streets, bridges, utilities, water supply projects, water plans, wastewater plants,
water and wastewater distribution or conveyance facilities, wharves, docks, airport runways and
taxiways, drainage projects, or related types of projects associated with civil engineering
construction or (b) buildings or structures that are incidental to projects that are primarily civil
engineering construction projects.
48. Women Business Enterprise is defined as a business concern located in the Marketplace
meeting the following criteria:
a. is at least 51 percent owned by one or more women, or, in the case of any publicly
owned business, at least 51 percent of the stock is owned by one or more women; and
b. management and daily business operations are controlled by one or more women who
own it.
The business must be certified prior to recommendation of award in order for the participation to
be counted towards the established goal.
II. PURPOSE:
The ultimate goal of this ordinance is to remedy the effects of past underutilization in the City's
Marketplace by increasing the utilization of minority and women business enterprises above the present
level to one comparable to their availability in the City's Marketplace.
Specific goals shall be established in the areas of construction, professional services, and purchases of
other goods and services, as applicable. A goal may be set on applicable individual contracts based on
the type of work or services to be performed, or goods to be acquired and the availability of minority and
women businesses in the City's Marketplace.
The City shall review its goals periodically for M/WBE participation in City procurement activities and
determine if those goals remain consistent with the results of the City's Availability and Disparity Study.
The provisions of this ordinance shall apply to all contracts awarded by the City, except as may be
hereafter specifically exempted. Where contracts involve the expenditure of federal or state funds, the
state or federal policy related to M/WBE or DBE participation may take precedence over this ordinance.
Award of a contract shall be recommended when the Offeror has complied with the requirements of this
ordinance via meeting the goal, demonstrating a Good Faith Effort to meet the goal or meeting the
requirements for a Prime Contractor Waiver. Failure to comply with the Ordinance by any of the required
methods shall result in an Offeror being deemed non -responsive.
III. CERTIFICATION:
The City will recognize M/WBE firms that are certified by the North Central Texas Regional Certification
Agency (NCTRCA) or other certifying agencies that the City may deem appropriate and accepted by the
City of Fort Worth, including acceptable SBE certifying agencies. The firms shall be located in the
Marketplace at the time of bid/proposal opening or no later than the Request for Compliance date.
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Minority and Women Business Enterprise Ordinance Attachment 1
IV. PROGRAM GOAL:
A. Citywide goals, when applicable, for the utilization of minority business enterprises (MBE),
women business enterprises (WBE) and small business enterprises (SBE) shall be reviewed and
approved by the City Council. Citywide goals may be periodically revised and approved by the
City Council, if changes in Marketplace availability, City utilization of MBEs, WBEs and SBEs or
other relevant factors change to a degree that is deemed sufficient to warrant goal revisions.
1. The City Manager shall present to the City Council an annual report on M/WBE utilization
by the second quarter of the new fiscal year.
2. Based on the availability of M/WBEs in the Marketplace and the City's most recent goal
attainment and with the appropriated advice and counsel, the City Manager shall, if
deemed appropriate and warranted, recommend to the City Council revised and
reasonable goals for the remainder of the current fiscal year.
3. Goals shall be expressed in terms of a percentage of the total dollar value of all
applicable contracts awarded by the City. Goals shall be established, when applicable,
separately for categories of construction, professional services, and purchasing, as well
as, any other categories that the City Council or City Manager deems appropriate.
B. An individual contract goal shall be set by the M/WBE Office in collaboration with the Contracting
Department and Risk Management and the Purchasing Division (where appropriate) prior to
solicitation. The contract goal shall be reasonable and shall be based upon:
1. Specific subcontracting and/or materials opportunities required to complete the project,
and
2. The availability of MBEs and/or SBEs in the identified subcontracting and/or materials
opportunities in the Marketplace.
VI. PROGRAM ENHANCEMENTS
A. Joint Ventures
1. The City shall encourage, where it is economically feasible, the establishment of joint
ventures to ensure prime contracting opportunities for M/WBEs on eligible solicitations.
When evaluating economic feasibility, the City shall consider factors including, but not
limited to, the estimated dollar value of the solicitation, the scope of work, the duration of
the work, the complexity of the work, the availability of potential M/WBE joint venture
partners in the relevant market area, the nature of the work.
2. Therefore, when the City uses a Best Value/Alternative Method of Procurement, which
includes the evaluation of responses and the corresponding allocation of points, the City
may, at its discretion and on a solicitation-bv-solicitation basis, designate a particular
solicitation as a "Joint Venture Preferred" solicitation.
3. For solicitations designated as "Joint Venture Preferred." the City will, consequently,
apply Evaluation Preference Points for a joint venture that consists of at least one
M/WBE joint venture partner. The Evaluation Preference Points may equal up to 20% of
the total Points assigned for purposes of evaluating and ranking prospective proposals or
statements of qualifications.
4. No Evaluation Preference Points will be awarded to Respondents, that are not joint
ventures when a solicitation is designated "Joint Venture Preferred."
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Minority and Women Business Enterprise Ordinance Attachment 1
5. A prospective joint venture Respondent shall state within its statement of proposal or its
statement of qualifications information that specifies the role and extent of the M/WBE
joint venture partner(s) involvement. Such information shall include, but is not limited to:
a. The name of the M/WBE joint venture partner(s) that will participate on the
project;
b. The percentage of prime contract dollars of the services to be provided by the
M/WBE joint venture partner; and, as appropriate the total dollar value of the
services to be provided,
c. A description of the work that each M/WBE joint venture partner shall be
responsible for performing under the terms of the joint venture agreement.
6. The prospective joint venture Respondent must also submit the City's "Joint Venture
Eligibility Form." The City's Housing and Economic Development Department's Minority
and Women Business Enterprise Office will review the "Joint Venture Eligibility Form" and
will have final approval, as to whether the proposed joint venture conforms to the City's
definition of a "true joint venture."
7. The joint venture should ensure that, at a minimum, the following areas are addressed:
a. The initial capital investment of each venture partner;
b. The proportional allocation of profits and losses to each venture partner;
c. The sharing of the right to control the ownership and management of the joint
venture;
d. Actual participation of the venture partners on the project;
e. The method of and responsibility for accounting;
f. The method by which disputes are resolved; and
g. Any additional or further information required by the City as set forth in this
Ordinance, bid documents and/or otherwise.
8. To the extent practical, the City encourages joint venture partners to be of different
ethnicities and/or genders to achieve the highest degree of diversity possible (i.e.
diversity within the diversity).
B. M/WBE Prime Contract Program
1. M/WBE Prime Contract Program - Construction
The City shall encourage the use of M/WBEs as primes in Construction, when it is
feasible to do so. For Construction solicitations that are estimated by the City to be at or
below $100,000 in value, the City may, at its discretion and on a solicitation-bv-
solicitation basis, establish an M/WBE Prime Contractor capacity -building initiative to
enhance long-term competition and to provide the City with its "Best Value" on
Construction projects using alternative methods of procurement (i.e. a method other than
low bid) for the solicitation and selection of construction services in accordance with
Texas Local Government Code, Chapter 271. Under this M/WBE Prime Contract
Program, the City may allocate up to 20% of weighted selection criteria in favor of the
selection of a Respondent that is a certified M/WBE firm. An M/WBE firm that is awarded
a prime contract under this program may not subcontract more than 49% of the contract
value to a non-M/WBE firm. In determining whether a particular contract is eligible for the
M/WBE Prime Contract Program, the City shall, at a minimum, consider a) whether there are
at least three M/WBE firms that are available and capable to participate in this prime
contract; and b) the degree of underutilization of M/WBEs in the specific Industry Categories.
8
Minority and Women Business Enterprise Ordinance Attachment 1
2. M/WBE Prime Contract Program — Architectural and Engineering (A&E)
a. The City shall encourage the use of M/WBEs as primes in Architectural and
Engineering (A&E), when it is feasible to do so. For Architectural and
Engineering Services solicitations that are estimated by the City to be at or below
$150.000 in value, the City may, at its discretion and on a solicitation-bv-
solicitation basis apply to Formal Solicitations on City A&E contracts that are
issued pursuant to a method of procurement under Chapter 2254 of the Texas
Local Government Code wherein criteria other than price, such as demonstrated
competence and qualifications, are factored into the selection process. Under the
terms of this Evaluation Preference, the City shall assign Point preferences equal
to up to 20% of the total Points assigned for the evaluation, scoring and ranking
of A&E responses submitted by those certified M/WBE A&E firms.
b. An M/WBE that is awarded a prime contract under this program may not
subcontract more than 49% of the contract value to a non-M/WBE firm. In
determining whether a particular contract is eligible for this Program, the City shall
consider (a) the relative availability of M/WBEs to participate in this prime contract;
and (b) the degree of underutilization of the M/WBEs in the specific Industry
Categories.
3. M/WBE Prime Contract Program — Professional Services
a. The City shall encourage the use of M/WBEs as primes in Professional Services,
when it is feasible to do so. For Professional Services solicitations that are
estimated by the City to be at or below $150.000 in value, the City may, at its
discretion and on a solicitation -by -solicitation basis apply Evaluation Preference
Points to M/WBEs proposing as primes. Under the terms of this Evaluation
Preference, the City shall assign Point preferences equal to up to 20% of the
total Points assigned for the evaluation, scoring and ranking of Professional
Services proposals submitted by those certified M/WBE Professional Services
firms.
b. An M/WBE that is awarded a prime contract under this program may not
subcontract more than 49% of the contract value to a non-M/WBE firm. In
determining whether a particular contract is eligible for this Program, the City shall
consider (a) the relative availability of M/WBEs to participate in this prime contract;
and (b) the degree of underutilization of the M/WBEs in the specific Industry
Categories.
C. Small Business Enterprise (SBE) Subcontracting Program
1. The City may, at its discretion and on a contract -by -contract basis, establish a SBE
subcontracting goal.
a. A prospective Offeror, to a City solicitation for which price and scope are defined,
shall submit such documentation as required by the City that provides:
1) The name(s) of the SBE subcontractor(s) it intends to use on the project;
2) The percentage of prime contract dollars and the projected absolute
dollar value of subcontracting services to be provided by each SBE;
3) A description of the work that each SBE subcontractor shall perform; and
4) Documentation confirming subcontractor commitment to perform the
work.
b. A prospective Offeror on a City solicitation for which Offerors are not initially
evaluated based on price or for which the project scope is not predefined, shall
submit at the time of response such documentation as required by the City to
affirm its intent to address the SBE subcontracting goal that is indicated in the
solicitation.
9
Minority and Women Business Enterprise Ordinance Attachment 1
c. During the price proposal negotiation phase, Offeror(s) shall be required to
submit:
1) Subcontractor(s) it intends to use on the project;
2) The percentage of prime contract dollars and the projected absolute
dollar value of subcontracting services to be provided by each SBE;
3) A description of the work that each SBE subcontractor shall perform; and
4) Documentation confirming subcontractor commitment to perform the
work.
d. The failure of an Offeror to meet the SBE subcontracting goal or to establish that
it made good faith efforts to comply or to establish that it complied with other
applicable requirements of the City's Ordinance shall render the Offeror as non-
responsive.
e. Except as otherwise noted and/or where it is not applicable or inconsistent with
the race -neutral nature of an SBE subcontracting program, solicitations and
subsequent contracts that have a SBE subcontracting goal shall be governed by
the same requirements, as applicable, for the race -conscious elements of this
Ordinance (e.g. reporting, request for change of an SBE subcontractor, payment
requirements, application and payment of retainage, dispute resolution
processes and other applicable sections of this Ordinance).
2. Small Business Enterprise (SBE) Certification
a. In order for a firm to participate in the City's SBE Subcontracting Program, it must
fall within the Small Business Administration's (SBA) Table of Small Business
size standards as outlined in the Small Business Size Regulations, 13 CFR 121.
b. All SBEs shall:
1) Be registered in the City's vendor database and
2) Have a certification that is accepted by the City and that meets the SBA
size standards.
c. Firms that do not have a City accepted certification that also meets the SBA size
standard can not participate in the SBE Subcontracting Program.
d. The City reserves the right to audit any firm that asserts that it meets the City's
SBE Subcontracting certification requirements. Any firm that is determined to
have intentionally and/or knowingly misrepresented or falsified its claim to be a
SBE for the purpose of participating in the SBE Subcontracting Program may be
debarred from doing any business with the City for a designated period of time,
but no Tess than three (3) nears and the City may also pursue other legal
remedies, including criminal prosecution.
D. Procurements of $50,000 or Less
M/WBEs shall be solicited and utilized to the fullest extent practicable for purchases of
construction, professional services and goods and services of $50,000 or less. To facilitate this
objective, the City Manager shall:
1. Require that each department submit to the Minority and Women Business Enterprise
Office and the Advisory Committee a quarterly M/WBE participation report that shows the
total amount of departmental expenditures and the dollars spent with M/WBEs and the
corresponding M/WBE participation percentage.
2. Recommend that each department designate at least one person in the department to
serve as the primary liaison that will be responsible for ensuring that MWBEs are solicited
for purchases of $50,000 or less.
3. Require that each department utilize the City's M/WBE Office's list of potential vendors to
assist it with identifying certified M/WBEs and consult with the M/WBE Office as needed
10
Minority and Women Business Enterprise Ordinance Attachment 1
4. Require that each department identify and track its use of M/WBEs for purchases of
$50,000 or less.
5. Require that each department evaluate if it is consistently soliciting at least two M/WBEs,
when there is availability and a minimum of three bids are required.
6. Require that each department, when there is availability and only one bid is required,
evaluate if it is consistently soliciting M/WBEs to the fullest extent possible.
7. Require that each department rotates, to the fullest extent practical, the use of M/WBEs
to ensure broad -based M/WBE participation; thereby spreading the overall participation
across numerous MWBEs.
8. An Offeror may count toward its subcontracting goal a portion of the total dollar value of a
contract with a joint venture equal to the percentage of participation in the joint venture.
The M/WBE Office, however, at its discretion and prior to solicitation, may require joint
ventures to meet or establish good faith efforts to meet its goal solely through the use of
subcontracting participation.
VI. APPLICABLE CONTRACTS:
A. CONSTRUCTION PROJECTS
1. MBE UTILIZATION REQUIREMENTS
a. In addition to the requirements set forth elsewhere, bid conditions shall include a
statement of the MBE (and SBE, if applicable) goal established for the contract.
The requirements below also apply to circumstances where change orders or
extra work give rise to new trade or vendor opportunities outside the original
scope of work.
b. Bid conditions and all other specifications for applicable contracts to be awarded
by the City shall require that Offerors make a good faith effort (GFE) to
subcontract with or purchase supplies from MBE (and SBE, if applicable) firms.
Such specifications shall require the Offeror to meet or exceed the stated goal or
submit documentation of GFE for all applicable contracts to permit a
determination of compliance with the specifications.
c. Construction contracts (estimated cost greater than $50,000) shall be awarded
and administered in accordance with the following standards and procedures:
1) Competitive bids for applicable contracts shall include the MBE (and
SBE, if applicable) requirements and documentation in the bid
specifications. MBE (and SBE, if applicable) documentation consists of
the SPECIAL INSTRUCTIONS TO BIDDERS, the SUBCONTRACTOR
UTILIZATION FORM, the PRIME CONTRACTOR WAIVER FORM, the
GOOD FAITH EFFORT FORM, and the JOINT VENTURE FORM.
a) Competitive bids where the Offeror equals or exceeds the project
goal must submit the SUBCONTRACTOR UTILIZATION FORM
or the JOINT VENTURE FORM.
b) Competitive bids where the Offeror does not have subcontracting
and/or supplier opportunities must submit the PRIME
CONTRACTOR WAIVER FORM.
c) Competitive bids where the Offeror has subcontracting and/or
supplier opportunities but does not include MBE (and SBE, if
applicable) participation in an amount which equals or exceeds
the contract goal, must submit the SUBCONTRACTOR
UTILIZATION FORM and the GOOD FAITH EFFORT FORM
(GFE) and documentation.
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Minority and Women Business Enterprise Ordinance Attachment 1
d) Competitive bids where the Offeror has subcontracting and/or
supplier opportunities but do not include any MBE (and SBE, if
applicable) participation must submit the SUBCONTRACTOR
UTILIZATION FORM and the GOOD FAITH EFFORT FORM
and documentation.
2) The Offeror shall submit the SUBCONTRACTOR UTILIZATION FORM
and/or the GOOD FAITH EFFORT FORM or the PRIME
CONTRACTOR WAIVER FORM, or the JOINT VENTURE FORM ("and
documentation") as appropriate. The Managing Department must
receive the documentation no later than 5:00 p.m., five (5) City business
days after the bid opening date, exclusive of the bid opening date. The
Offeror shall obtain a receipt from the appropriate employee of the
managing department to whom delivery was made. Such receipt shall
be evidence that the City received the documentation. The submission
of the applicable completed form(s) within the allotted time will be
considered when determining the responsiveness of the bid. Failure to
comply with the bid specifications, inclusive of the M/WBE requirements
and documentation, shall render the Offeror non -responsive.
3) The GFE documentation shall demonstrate the Offeror's commitment
and honest efforts to utilize MBE(s) (and SBE, if applicable). The burden
of preparing and submitting the GFE information is on the Offeror and
will be evaluated as part of the responsiveness to the bid/proposal. An
Offeror who submits GFE shall be required to submit documentation to
support a review with the MBEs (and SBEs, if applicable) who did not
submit the lowest bid. An Offeror who intentionally and/or knowingly
misrepresents facts on the documentation submitted will constitute a
basis for classification as non -responsive and possible debarment.
4) The contracting department may request the M/WBE Office to waive the
goal requirements of this subsection, or to reduce the amount of the
goal, in accordance with the provisions of the Exceptions and Waivers
section.
2. COUNTING MBE PARTICIPATION
MBE (and SBE, if applicable) participation shall be counted toward meeting the goal in
accordance with the following provisions:
a. For the purpose of determining compliance with the goal requirements
established in this ordinance, businesses will be counted as MBE (and SBE, if
applicable) only when they have been certified as such prior to a
recommendation for award being made to the City Council.
1) Any firm listed by an Offeror as participation must be reflected on a City
MBE service/supplier listing (or have met the City's SBE certification
requirements, if applicable). Firms listed by the Offeror to meet MBE
participation that are not on a City MBE listing will not be counted towards
meeting the goal. The burden of ensuring that listed firms are accepted by
the City is the responsibility of the Offeror. Offerors are strongly
encouraged to request and use City MBE listings.
2) Any business listed by an Offeror that is not certified at the time of bid
opening must file an application for certification to a city authorized
certification agency within a reasonable time for the City to consider the
business and dollar amount towards meeting the goal.
3) If a business described in the subparagraph immediately above fails to
submit an application for certification within a reasonable time, or if the
business is denied certification, the Offeror shall be afforded five (5) City
business days to secure additional certified/certifiable MBE (and/or SBE, if
12
Minority and Women Business Enterprise Ordinance Attachment 1
applicable) participation, starting the next City business day following the
day the written notification was received from the Managing Department.
4) Evidence of the additional certified/certifiable MBE (and/or SBE, if
applicable) participation shall be delivered to and received by the
Managing Department within five (5) City business days after the
notification was received by the Offeror, exclusive of the date that the
notification was received.
b. Except as provided for in paragraph c. below, if the Offeror is ruled non-
responsive for failure to comply with the requirements of this ordinance, the
Managing Department will provide written notification to the Offeror stating the
specific basis for the ruling. The Offeror may then submit documentation that it
will either meet or exceed the stated goal and if the documentation satisfies this
ordinance, the Offeror may then be considered for an award of contract.
c. If the Offeror is ruled non -responsive solely for its failure to identify a
subcontract/supplier opportunity and that opportunity is less than three (3%)
percent of the total bid, the Offeror may submit documentation that an MBE
(and/or SBE, if applicable) will be utilized for that subcontract/supplier
opportunity, and may be considered for an award of contract.
d. Documentation required under either paragraph 2 or 3 above must be received
by the Managing Department within five (5) City business days, exclusive of the
date that the Offeror was notified that it was non -responsive. If the
documentation is not received within the stated time, the Offeror shall be deemed
to have withdrawn its bid. The City will not communicate with another Offeror
regarding award of the contract until five (5) City business days after the original
Offeror has been notified that it is non -responsive.
e. The Offeror may count toward the goal any tier of MBE (and/or SBE, if
applicable) subcontractors and/or suppliers
f. The Offeror will be given credit toward the goal only when the MBE (and/or SBE,
if applicable) subcontractor performs a commercially useful function. An MBE
(and/or SBE, if applicable) subcontractor is considered to have performed a
commercially useful function when.
1) It is responsible for the execution of a distinct element of the work by
actually performing, managing and supervising the work involved in
accordance with normal business practice;
2) When the firm receives due compensation as agreed upon for the work
performed; and
3) The firm's role is not limited to that of an extra participant in a
transaction, contract or project through which funds are passed in order
to obtain the appearance of participation.
g. The Offeror will be given credit toward the MBE (and/or SBE, if applicable) goal
only when the MBE (and/or SBE, if applicable) supplier performs a commercially
useful function. An MBE (and/or SBE, if applicable) supplier is considered to
have performed a commercially useful function when the MBE (and/or SBE, if
applicable) supplier is a manufacturer or a regular dealer.
h. The Offeror will be given credit for utilizing an MBE (and/or SBE, if applicable)
hauling firm as long as the MBE (and/or SBE, if applicable) owns and operates at
least one fully licensed and operational truck used on the contract. The MBE
(and/or SBE, if applicable) may lease trucks from another MBE (and/or SBE, if
applicable) firm, including MBE (and/or SBE, if applicable) owner -operators and
receive full MBE (and/or SBE, if applicable) credit. The MBE (and/or SBE, if
applicable) may lease trucks from non-, MBE (and/or SBE, if applicable)
including owner -operators, but will only receive credit for the fees and
commissions earned by the MBE (and/or SBE, if applicable) as outlined in the
lease agreement.
Regardless of whether an arrangement between the contractor and the MBE
(and/or SBE, if applicable) represents standard industry practice, if the
13
Minority and Women Business Enterprise Ordinance Attachment 1
arrangement erodes the ownership, control or independence of the MBE (and/or
SBE, if applicable) or does not meet the commercially useful function
requirement, the Offeror shall receive no credit toward the goal.
j. An Offeror may count toward its subcontracting goal a portion of the total dollar
value of a contract with a joint venture equal to the percentage of participation in
the joint venture. The M/WBE Office, however, at its discretion and prior to
solicitation, may require joint ventures to meet or establish good faith efforts to
meet its goal solely through the use of subcontracting participation. Also see
Section VI., Program Enhancements, Section A., Joint Ventures.
1) The Managing Department must receive the documentation no later than
5:00 p.m., five (5) City business days after the bid opening date,
exclusive of the bid opening date. The Offeror shall obtain a receipt from
the appropriate employee of the managing department to whom delivery
was made. Such receipt shall be evidence that the City received the
documentation. The submission of the applicable completed form(s)
within the allotted time will be considered when determining the
responsiveness of the bid. Failure to comply with the bid specifications,
inclusive of the MBE (and/or SBE, if applicable) requirements and
documentation, shall render the Offeror non -responsive.
2) The MBE involved in the joint venture must be responsible for a clearly
defined portion of the work to be performed, equal to a share in the
ownership, control, knowledge, management, responsibility, risks, and
profits of the joint venture.
k. Except for joint ventures, the prime contractor (regardless of their MBE or WBE
status) and any work performed by the prime contractor is not counted toward
meeting the MBE (and/or SBE, if applicable) contract goal and is not considered
when determining compliance with this ordinance.
An Offeror may not count toward its goal any arrangement with an MBE (and/or
SBE, if applicable) that is nepotism or where an MBE (and/or SBE, if applicable)
has been a recent employee (less than one year) of the Offeror.
m. The Offeror may not count toward the goal any agreement with an MBE (and/or
SBE, if applicable) that does not meet the requirements of this ordinance.
3. PAYMENTS
The City Manager shall implement procedures to comply with the following:
a. For vertical construction contracts, procedures will be established to ensure that the prime
shall submit an invoice at least monthly and the City will pay the invoice as required by the
Texas Prompt Payment Act (Tex. Gov't. Code, Chap. 2251) or any successor statute. The
prime shall pay subcontractors as required by the Texas Prompt Payment Act or any
successor statute. The prime contractor's failure to make payments as provided by state
law shall, in addition to any other remedies provided by law, authorize the City to withhold
future payments and/or reject future bids from the contractor until compliance with this
ordinance is attained.
b. For horizontal construction contracts, procedures will be established to ensure that all
progress payments are made twice a month and that subcontractors are paid in accordance
with the provisions of the Texas Prompt Payment Act (Tex. Gov't. Code, Chap. 2251) or
any successor statute. A contractor's failure to make payments as required by state law
shall, in addition to any other remedies provided by state law, authorize the City to withhold
future payments and/or reject future bids from the contractor until compliance with this
ordinance is attained.
c. Whenever there is a dispute over payment due between the prime and subcontractor and/or
supplier, the City shall strongly encourage the parties to seek mediation before the City
takes any action under this ordinance.
14
Minority and Women Business Enterprise Ordinance Attachment 1
4. RETAINAGE
a. The Contractor cannot withhold retainage from the subcontractor at a greater level than
what the City withholds from the Contractor.
b. If the Contractor and the subcontractor have an agreement and such agreement requires
that additional monies or a fee in excess of the retainage amount required by the City and
there is no dispute about payment the Contractor shall release the additional monies after
the completion of subs work.
c. The required retainage will be due upon project completion, acceptance and final
payment by the City.
d. Where contracts involve the expenditure of federal or state funds, the state or federal
policy related to M/WBE or DBE retainage may take precedence over this ordinance.
B. PROFESSIONAL SERVICES
1. MBE UTILIZATION REQUIREMENTS
a. In addition to the requirements set forth elsewhere, requests for proposals shall
include a statement of the MBE (and/or SBE, if applicable) goal established for
the project. The requirements below shall also apply to circumstances where
amendments or extra work give rise to new subconsulting/supplier opportunities.
b. Requests for proposals and all other specifications for applicable contracts to be
awarded by the City shall require that Offeror make a good faith effort (GFE) to
sub -consult with or purchase supplies from MBE (and/or SBE, if applicable)
firms. Such specifications shall require the Offeror to meet or exceed the stated
goal or submit documentation of GFE for all applicable contracts to permit a
determination of compliance with the specifications.
c. Professional Services contracts and such other contracts which may be
competed for under sealed proposal procedures (estimated cost greater than
$50,000) shall be awarded and administered in accordance with the following
standards and procedures:
1) Other than responses to Requests for Proposals for those professional
services defined in Chapter 2254 of the Texas Government Code,
responses to Request for Proposals shall be submitted by the proposal
deadline date and include a section, which identifies the particular MBE
(and/or SBE, if applicable) utilization plan in performing the contract.
a) The proposal shall specify the estimated percentage of the MBE
(and/or SBE, if applicable) participation, the type of work to be
performed by the MBE (and/or SBE, if applicable), and such
other information as may reasonably be required to determine
the responsiveness to the Request for Proposal.
b) Proposals that do not meet or exceed the utilization goal, as
required by the Request for Proposal, must submit a GFE
explanation. Failure to include such GFE explanation shall
render the proposal non -responsive.
2) Initial responses to requests for proposals for those professional services
defined in Chapter 2254 of the Texas Government Code shall not include
a response to the requirements of this ordinance. The City shall comply
with the requirements of said Chapter and rank the professional on the
basis of demonstrated competence and qualifications. During
negotiations, the proposer shall respond to this ordinance in the manner
specified in paragraph 1) a) above.
3) The GFE documentation shall demonstrate the Offeror's commitment
and honest efforts to utilize MBE (and/or SBE, if applicable). The burden
of preparing and submitting the GFE information is on the Offeror and
15
Minority and Women Business Enterprise Ordinance Attachment 1
will be evaluated as part of the responsiveness to the proposal. An
Offeror who submits GFE shall be required to submit documentation to
support a review with the MBEs (and/or SBEs, if applicable) who were
not selected by the Offeror. The documentation should reflect and
validate the reason why the Offeror did not select the MBEs (and/or
SBEs, if applicable). An Offeror who intentionally and/or knowingly
misrepresents facts on the documentation submitted may be classified
as non -responsive and be subject to possible debarment.
4) The contracting department may request the M/WBE Office to waive the
goal requirements of this subsection, or to reduce the amount of the
goal, in accordance with the provisions of the Exceptions and Waivers
section.
2. COUNTING MBE PARTICIPATION
MBE (and/or SBE, if applicable) participation shall be counted toward meeting the goal in
accordance with the following provisions:
a. For the purpose of determining compliance with the goal requirements
established in this ordinance, businesses will be counted as MBE (and/or SBE, if
applicable) only when they have been certified as such prior to a
recommendation for award being made to the City Council.
1) Any business listed by an Offeror that is not certified at the time of
response opening must file an application for certification to a °City
authorized certification agency within a reasonable time for the City to
consider the business and dollar amount towards meeting the goal.
2) If a business described in the subparagraph immediately above fails to
submit an application for certification within a reasonable time, or if the
business is denied certification, the Offeror shall be afforded five (5) City
business days to secure additional certified/certifiable MBE (and/or SBE,
if applicable) participation, starting the next City business day following
the day the written notification was received from the Managing
Department.
3) Evidence of the additional certified/certifiable MBE (and/or SBE, if
applicable) participation shall be delivered to and received by the
Managing Department within five (5) City business days after the
notification was received by the Offeror, exclusive of the date that the
notification was received.
b. The Offeror may count toward the goal any tier of MBE (and/or SBE, if
applicable) sub -consultants and/or suppliers.
c. The Offeror will be given credit toward the goal only when the MBE (and/or SBE,
if applicable) sub -consultant performs a commercially useful function. An MBE
(and/or SBE, if applicable) sub -consultant is considered to have performed a
commercially useful function when:
1) It is responsible for the execution of a distinct element of the work by
actually performing, managing and supervising the work involved in
accordance with normal business practice;
2) When the firm receives due compensation as agreed upon for the work
performed; and
3) The firm's role is not limited to that of an extra participant in a
transaction, contract or project through which funds are passed in order
to obtain the appearance of participation.
d. The Offeror will be given credit toward the MBE (and/or SBE, if applicable)
contract goal only when the MBE (and/or SBE, if applicable) supplier performs a
commercially useful function. An MBE (and/or SBE, if applicable) supplier is
16
Minority and Women Business Enterprise Ordinance Attachment 1
considered to have performed a commercially useful function when the MBE
(and/or SBE, if applicable) supplier is a manufacturer or a regular dealer.
e. Regardless of whether an arrangement between the consultant and the MBE
(and/or SBE, if applicable) represents standard industry practice, if the
arrangement erodes the ownership, control or independence of the MBE (and/or
SBE, if applicable) or does not meet the commercially useful function
requirement, the Offeror shall receive no credit toward the goal.
f. An Offeror may count toward its subcontracting goal a portion of the total dollar
value of a contract with a joint venture equal to the percentage of MBE
participation in the joint venture. The M/WBE Office, however, at its discretion
and prior to solicitation, may require joint ventures to meet or establish good faith
efforts to meet its goal solely through the use of subcontracting participation.
1) The Joint Venture Form must be submitted to the Managing Department
with the proposal when determining the responsiveness of the proposal
by the M/WBE Office. Failure to comply with the proposal scope of
services, inclusive of the MBE (and/or SBE, if applicable) requirements,
shall render the Offeror non -responsive.
2) The MBE (and/or SBE, if applicable) involved in the joint venture must be
responsible for a clearly defined portion of the work to be performed,
equal to a share in the ownership, control, knowledge, management,
responsibility, risks, and profits of the joint venture.
g. Except for joint ventures, the prime consultant (regardless of their MBE (and/or
SBE, if applicable) status) and any work performed by the prime consultant is not
counted toward meeting the MBE (and/or SBE, if applicable) contract goal and is
not considered when determining compliance with this ordinance.
h. An Offeror may not count toward its goal any arrangement with an MBE (and/or
SBE, if applicable) that is nepotism or where an MBE (and/or SBE, if applicable)
has been a recent employee (less than one year) of the Offeror.
The Offeror may not count toward the goal any agreement with an MBE (and/or
SBE, if applicable) that does not meet the requirements of this ordinance.
3. PAYMENTS
The City Manager shall implement procedures to comply with the following:
a. The prime shall submit an invoice at least monthly or as designated by the
contract documents and the City will pay the invoice as required by the Texas
Prompt Payment Act or any successor statute. The prime shall pay sub -
consultants as required by the Texas Prompt Payment Act (Tex. Gov't. Code,
Chap. 2251) or any successor statute. A consultant's failure to make payments
in accordance with state law shall, in addition to any other remedies provided by
law, authorize the City to withhold future payments and/or reject future proposals
from the consultant until compliance with this ordinance is attained.
b. Whenever there is a dispute over payment due between the prime and sub -
consultant and/or supplier, the City shall strongly encourage the parties to seek
mediation before the City initiates a stop payment order.
C. PURCHASES
1. M/WBE UTILIZATION REQUIREMENTS
a. In addition to the requirements set forth elsewhere, bid conditions shall include,
when applicable, a statement of the SBE goal established for the contract. The
requirements below also apply to circumstances where purchase orders or extra
work cause new subcontracting/supplier opportunities.
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Minority and Women Business Enterprise Ordinance Attachment 1
b. Bid conditions and all other specifications for applicable contracts to be awarded by
the City shall require that Offeror make a good faith effort (GFE) to subcontract with
or purchase supplies from SBE firms. Such specifications shall require the Offeror
to meet or exceed the stated goal or submit documentation of GFE for all
applicable contracts to permit a determination of compliance with the
specifications.
c. Purchase contracts and such other contracts which may be competed for under
sealed proposal procedures (estimated cost greater than $50,000) shall be
awarded and administered in accordance with the following standards and
procedures:
1) Competitive bids for applicable contracts shall include the SBE
requirements and documentation in the bid specifications. M/WBE
documentation consists of the SPECIAL INSTRUCTIONS TO BIDDERS,
the SUBCONTRACTOR UTILIZATION FORM, the PRIME
CONTRACTOR WAIVER FORM, the GOOD FAITH EFFORT FORM,
and, the JOINT VENTURE FORM.
a) Competitive bids where the Offeror equals or exceeds the
contract goal must submit the SUBCONTRACTOR
UTILIZATION FORM.
b) Competitive bids where the Offeror does not have subcontracting
and/or supplier opportunities must submit the PRIME
CONTRACTOR WAIVER FORM.
c) Competitive bids where the Offeror has subcontracting and/or
supplier opportunities but does not include SBE participation in
an amount which equals or exceeds the contract goal, must
submit the SUBCONTRACTOR UTILIZATION FORM and the
GOOD FAITH EFFORT FORM and documentation.
d) Competitive bids where the Offeror has subcontracting and/or
supplier opportunities but do not include any SBE participation
must submit the GOOD FAITH EFFORT FORM and
documentation.
2) The Offeror shall submit the SUBCONTRACTOR UTILIZATION FORM
and/or the GOOD FAITH EFFORT FORM or the PRIME
CONTRACTOR WAIVER FORM, or the JOINT VENTURE FORM ("and
documentation") as appropriate. The Managing Department must
receive the documentation no later than 5:00 p.m., five (5) City business
days after the bid opening date, exclusive of the bid opening date. The
Offeror shall obtain a receipt from the appropriate employee of the
managing department to whom delivery was made. Such receipt shall
be evidence that the City received the documentation. The submission
of the applicable completed form(s) within the allotted time will be
considered when determining the responsiveness of the bid. Failure to
comply with the bid specifications, inclusive of the SBE requirements and
documentation, shall render the Offeror non -responsive.
3) The GFE documentation shall demonstrate the Offeror's commitment
and honest efforts to utilize SBE(s). The burden of preparing and
submitting the GFE information is on the Offeror and will be evaluated as
part of the responsiveness to the bid/proposal. An Offeror who submits
GFE shall be required to submit documentation to support a review with
the MWBEs who did not submit the lowest bid. An Offeror who
intentionally and/or knowingly misrepresents facts on the documentation
submitted will constitute a basis for classification as non -responsive and
possible debarment.
4) The contracting department may request the M/WBE Office to waive the
goal requirements of this subsection, or to reduce the amount of the
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Minority and Women Business Enterprise Ordinance Attachment 1
goal, in accordance with the provisions of the Exceptions and Waivers
section.
2. COUNTING SBE PARTICIPATION
SBE participation shall be counted toward meeting Goal in accordance with the following
provisions:
a. For the purpose of determining compliance with the goal requirements
established in this ordinance, businesses will be counted as SBEs only when
they have been certified as such prior to a recommendation for award being
made to the City Council.
1) Any business listed by an Offeror that is not certified at the time of
bid/response opening must file an application for certification within a
reasonable time for the City to consider the business towards meeting
the goal.
2) If a business described in the subparagraph immediately above fails to
submit an application for certification within a reasonable time, or if the
business is denied certification, the Offeror shall be afforded five (5) City
business days to secure additional certified/certifiable SBE participation,
starting the next City business day following the day the written
notification was received from the Managing Department
3) Evidence of the additional certified/certifiable SBE participation shall be
delivered to and received by the Managing Department within five (5)
City business days after the notification was received by the Offeror,
exclusive of the date that the notification was received.
b. Except as provided for in paragraph c. below, if the Offeror is ruled non-
responsive for failure to comply with the requirements of this ordinance, the
Managing Department will provide written notification to the Offeror stating the
specific basis for the ruling. The Offeror may submit documentation that it will
either meet or exceed the stated goal, and if the documentation satisfies this
ordinance, the Offeror may then be considered for an award of contract.
c. If the Offeror is ruled non -responsive solely for its failure to identify a
subcontract/supplier opportunity and that opportunity is less than three (3%)
percent of the total bid, the Offeror may submit documentation that an SBE will
be utilized for that subcontract/supplier opportunity, and may be considered for
an award of contract.
d. Documentation required under either paragraph b. or c. above must be received
by the Managing Department within five (5) City business days, exclusive of the
date that the Offeror was notified that it was non -responsive. If the
documentation is not received within the stated time, the Offeror shall be deemed
to have withdrawn its bid. The City will not communicate with another Offeror
regarding award of the contract until five (5) City business days after the original
Offeror has been notified that it is non -responsive.
e. The Offeror may count toward the goal any tier of SBE subcontractors and/or
suppliers. It is the sole responsibility of the Offeror to report and document all
subcontracting and/or supplier participation dollars counted towards the goal,
irrespective of tier level. Failure to submit documentation as required in this
subparagraph; shall entitle the City to withhold payments and/or reject future
purchasing orders until compliance is attained.
f. The Offeror will be given credit toward the goal only when the SBE subcontractor
performs a commercially useful function. An SBE subcontractor is considered to
have performed a commercially useful function when:
1) It is responsible for the execution of a distinct element of the work by
actually performing, managing and supervising the work involved in
accordance with normal business practice;
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Minority and Women Business Enterprise Ordinance Attachment 1
2) When the firm receives due compensation as agreed upon for the work
performed; and
3) The firm's role is not limited to that of an extra participant in a
transaction, contract or project through which funds are passed in order
to obtain the appearance of participation.
g. The Offeror will be given credit toward the SBE contract goal only when the SBE
supplier performs a commercially useful function. An SBE supplier is considered
to have performed a commercially useful function when the SBE supplier is a
manufacturer or a regular dealer.
h. The Offeror will be given credit for utilizing an SBE hauling firm as long as the
SBE owns and operates at least one fully licensed, insured and operational truck
used on the contract. The SBE may lease trucks from another SBE firm,
including SBE owner -operators and receive 100% SBE credit. The SBE may
lease trucks from non- SBEs, including owner -operators, but will only receive
credit for the fees and commissions earned by the SBE as outlined in the lease
agreement.
Regardless of whether an arrangement between the contractor and the SBE
represents standard industry practice, if the arrangement erodes the ownership,
control or independence of the SBE or does not meet the commercially useful
function requirement, the Offeror shall receive no credit toward the goal.
j. An Offeror may count toward its subcontracting goal a portion of the total dollar
value of a contract with a joint venture equal to the percentage of SBE
participation in the joint venture. The M/WBE Office, however, at its discretion
and prior to solicitation, may require joint ventures to meet or establish good faith
efforts to meet its goal solely through the use of subcontracting participation.
1) The Managing Department must receive the Joint Venture form from the
Offeror within five (5) City business days after the date of bid opening,
exclusive of the day of the bid opening, for certification by the M/WBE
Office.
2) The SBE involved in the joint venture must be responsible for a clearly
defined portion of the work to be performed, equal to a share in the
ownership, control, knowledge, management, responsibility, risks, and
profits of the joint venture.
k. Except for joint ventures, the prime contractor (regardless of their SBE status)
and any work performed by the prime contractor is not counted toward meeting
the SBE contract goal and is not considered when determining compliance with
this ordinance.
An Offeror may not count toward its goal any arrangement with an SBE that is
nepotism or where an SBE has been a recent employee (less than one year) of
the Offeror.
m. The Offeror may not count toward the goal any agreement with an SBE that does
not meet the requirements of this ordinance.
3. PAYMENTS
The City Manager shall implement procedures to comply with the following:
a. Establish procedures to ensure that purchase orders for all vendors' invoices be
paid as required by the Texas Prompt Payment Act (Tex. Gov't. Code, Chap.
2251) or any successor statute and that subcontractors are also paid as required
by state law A vendor's failure to make payments as required by law shall, in
addition to any other remedies provided by law, authorize the City to withhold
future payments from the vendor until compliance with this ordinance is attained.
b. Whenever there is a dispute concerning payment due between the prime and
subcontractor and/or supplier, the City shall strongly encourage the parties to
seek mediation before the City initiates a stop payment order.
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Minority and Women Business Enterprise Ordinance Attachment 1
4. BEST VALUE CRITERIA
a. In order to increase SBE, as well as M/WBE primes in direct purchases, the City
will apply the best value criteria codified in State law (Tex. Local Gov't Code,
Sec. 252.043 or any successor statute) to all purchasing activities as outlined in
the state legislation.
b. The City Manager, with the advice and counsel of the MWBE-AC in accord with
City of Fort Worth Resolution No. 3698-12-2008, shall implement procedures for
the purchase of goods and services under the formal bid amount to emphasize
the inclusion of SBEs, as well as M/WBEs (see Program Enhancements).
VII. POST -AWARD COMPLIANCE:
A. In addition to such other requirements as may be set forth elsewhere, the following shall apply to
applicable contracts awarded by the City:
1. Contracts shall incorporate this ordinance by reference, and shall provide that the
contractor's violation of this ordinance shall constitute a breach of such contract and may
result in debarment in accord with the procedures outlined in this ordinance.
2. Following the date and time of bid/proposal opening, any proposed change or deletion in
MBE and/or WBE (and/or SBE, if applicable) participation identified in the bid, proposal or
contract shall be reviewed by the M/WBE Office to determine whether such change or
deletion is justified in accord with paragraphs 3 and 4 immediately below. Any unjustified
change or deletion shall be a material breach of contract and may result in debarment in
accord with the procedures outlined in this ordinance.
3. Following the date and time of bid/proposal opening, the contractor shall:
a. Make no unjustified changes or deletions in its MBE and/or WBE (and/or SBE, if
applicable) participation commitments submitted with the bid, proposal or during
negotiation, without prior submission of the proper documentation for review and
approval by the M/WBE Office.
b. Shall submit a detailed explanation of how the requested change or deletion will
affect the MBE, WBE or SBE commitment. If the detailed explanation is not
submitted, it will affect the final compliance determination.
c. If substantial subcontracting and/or supplier opportunities arise during the term of
any contract when the contractor represented in its bid to the City that it alone
would perform the subcontracting/supplier opportunity work, the contractor shall
notify the City before subcontracts for work and/or supplies are awarded and
shall be required to comply with definition number 19 in the definition section
(Good Faith Effort Requirements) of this Attachment I, exclusive of the time
requirements stated in such subsections;
d. Maintain records reasonably necessary for monitoring their compliance with the
provisions of this ordinance;
e. After the first payment and beginning with the second application for payment,
submit the required MBE, WBE and/or SBE Periodic Payment Reports, including
copies of MBE, WBE and/or SBE subcontractor's/ subconsultant's/supplier's
applications for payment / invoices (as appropriate) and proof of payment
documentation, to the M/WBE Office. Additionally, upon request of the M/WBE
Office, the contractor shall submit such other documentation as may be
reasonably required to verify proof of payments. Failure to submit these reports
and other requested information, if any, as required shall authorize the City to
withhold payment and/or reject future bids from the contractor until compliance
with this ordinance is attained.
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Minority and Women Business Enterprise Ordinance Attachment 1
4. The contractor shall submit to the M/WBE Office for approval an MBE, WBE and/or SBE
REQUEST FOR APPROVAL OF CHANGE FORM if, during the term of any contract, a
contractor wishes to change or delete one or more MBE, WBE and/or SBE
subcontractor(s), subconsultant(s) or supplier(s).
a. Within three (3) City business days after receipt by the M/WBE Office, exclusive
of the date of receipt, the Request shall be reviewed. The Request shall be
approved if the change or deletion is justified. The following shall constitute
justification for the requested change or deletion:
1) An MBE, WBE and/or SBE's failure to provide workers' compensation
insurance evidence as required by state law; or
2) An MBE, WBE and/or SBE's failure to provide evidence of general
liability or other insurance under the same or similar terms as contained
in the contract documents with limits of coverage no greater than the
lower of 1) the limits required of the contractor by the City; or 2) the limits
contained in the contractor's standard subcontract or supply agreements
used on other projects of similar size and scope and within the
contractor's normal business practice with non-M/WBE
subcontractors/subconsultants or suppliers; or
3) An MBE, WBE and/or SBE's failure to execute the contractor's standard
subcontract form, if entering a subcontract is required by the contractor
in its normal course of business, unless such failure is due to:
a) A change in the amount of the previously agreed to bid or scope
of work; or
b) The contract presented provides for payment once a month or
longer and the contractor is receiving payment from the City
twice a month; or
c) Any limitation being placed on the ability of the MBE, WBE
and/or SBE to report violations of this Ordinance or any other
ordinance or violations of any state or federal law or other
improprieties to the City or to provide notice of any claim to the
contractor's surety company or insurance company.
d) Mediation shall be a consideration before the request for change
is approved.
4) An MBE, WBE and/or SBE defaults in the performance of the executed
subcontract. In this event, the contractor shall:
a) Request bids from all MBE (and/or SBE, if applicable and/or
WBE, if applicable) subcontractors previously submitting bids for
the work,
b) If reasonably practicable, request bids from previously non -
bidding MBEs (and/or SBEs, if applicable and/or WBEs, if
applicable), and
c) Provide to the M/WBE Office documentation of compliance with
a) and b) above.
5) Any other reason found to be acceptable by the M/WBE Office in its sole
discretion.
NOTE: The contractor shall submit such documentation as may reasonably
be requested by the M/WBE Office to support the contractor's
request. The time between the request by the M/WBE Office for
additional documentation and the delivery of such documentation
shall not be included within the time period that the M/WBE Office is
required to respond as stated in subparagraph (a) above.
b. If the M/WBE Office approves the deletion of an M/WBE or SBE and replacement
by a non-M/WBE or non-SBE, such approval shall constitute a post award waiver
to the extent of the value of the deleted subcontract.
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Minority and Women Business Enterprise Ordinance Attachment 1
c. If the M/WBE Office denies the request for change or deletion, the contractor
may appeal the denial to the City Manager whose decision will be final.
5. Whenever contract amendments, change orders, purchase orders or extra work orders
are made individually or in the aggregate, the contractor shall comply with the provisions
of this ordinance with respect to the alternates, amendments, change orders, or extra
work orders.
a. If the amendment, change order, purchase order or extra work affects the
subcontract of an MBE, WBE and/or SBE, such MBE, WBE and/or SBE shall be
given the opportunity to perform such amendment, change order, purchase order
or extra work.
b. If the amendment, change order, purchase order or extra work is or is not
covered by any subcontractor performing like or similar work, and the amount of
such amendment, change order, purchase order or extra work is greater than
$50,000.00, the contractor shall comply with definition number 19 in the definition
section (Good Faith Effort Requirements), of this Attachment I (exclusive of the
time requirements stated therein) with respect to such amendment, change order
purchase order or extra work.
6. If the contractor/consultant in its bid/proposal included any second or lower tier
subcontractor/subconsultant/supplier towards meeting the goal, it is the sole
responsibility of the Offeror to report and document all subcontracting/subconsulting
and/or supplier participation dollars counted towards the goal, irrespective of tier level.
Failure to comply with the City's request to provide the required documentation shall
entitle the City to withhold payments and/or to reject future bids/proposals from the
Offeror until compliance with this ordinance is attained.
7. Upon completion of the contract and within ten (10) City business days after receipt of
final payment from the City, exclusive of the date the contractor receives payment, the
contractor shall provide the M/WBE Office with the MBE, WBE and/or SBE FINAL
SUMMARY PAYMENT REPORT FORM to reflect the final participation of each
subcontractor/subconsultant and/or supplier (including non-M/WBEs) used on the project.
Failure to comply with the City's request to provide the required documentation shall
entitle the City to reject future bids from the contractor until compliance with this
ordinance is attained.
8. In the event a contractor is in non-compliance and is a subcontractor/subconsultant on a
new quote, then, the contractor will be required to comply with this ordinance prior to a
recommendation for award being made to the City Council.
VIII. CONTRACT MONITORING, AND REPORTING:
A. The M/WBE Office shall monitor compliance with these requirements during the term of the
contract. If it is determined that there is cause to believe that a contractor or subcontractor has
failed to comply with any of the requirements of this ordinance, or the contract provisions
pertaining to MBE, WBE and/or SBE utilization, the M/WBE Office shall notify the contracting
department and the contractor. The M/WBE Office shall attempt to resolve the non-compliance
through conciliation. If the non-compliance cannot be resolved, then, the M/WBE Office, through
its specific department (i.e. Housing and Economic Development Department) and the
contracting department shall submit written recommendations to the City Manager or designee,
and if the City Manager concurs with the findings, sanctions shall be imposed as stated in this
ordinance.
B. Whenever the M/WBE Office finds, after investigation, that a contracting department has failed to
comply with the provisions of this ordinance, a written finding specifying the nature of the non-
compliance shall be transmitted to the contracting department, and the M/WBE Office shall
23
Minority and Women Business Enterprise Ordinance Attachment 1
attempt to resolve any non-compliance through conference and conciliation. Should such attempt
fail to resolve the non-compliance, the M/WBE Office shall transmit a copy of the findings of non-
compliance, with a statement that conciliation was attempted and failed, to the City Manager who
shall take appropriate action to secure compliance.
C. The M/WBE Office may require such reports, information, and documentation from contractors,
Offerors, contracting agencies, and the head of any department, division, or office of the City of
Fort Worth, as are reasonably necessary to determine compliance with the requirements of this
ordinance.
D. Contracting departments shall maintain accurate records for each contract awarded, including the
names of contractors providing quotes, dollar value, the nature of the goods or services to be
provided, the name of the contractor awarded the contract, the efforts it employed to solicit
quotes from MBEs, WBEs and/or SBEs, identifying for each its dollar value, the nature of the
goods or services provided, and the name of the subcontractors/suppliers.
E. The City Manager, with the advice and counsel of the MWBE-AC in accord with City of Fort Worth
Resolution No. 1148, shall submit an annual report to the City Council on the progress of the City
toward the utilization goal established by this ordinance, together with an identification of
problems and specific recommendations for improving the City's performance.
IX. EXCEPTIONS AND WAIVERS:
A. If an Offeror is unable to comply with the goal requirements established in the Program Goal
section of this ordinance, such Offeror shall submit one of the two forms listed below within the
allotted time.
1. A Prime Contractor Waiver Form is submitted if the Offeror will perform the entire
contract without subcontractors or suppliers.
2. A Good Faith Effort Form is submitted if the Offeror has a subcontracting and/or supplier
opportunity but was unable to meet or exceed the contract goal. The Offeror will submit
requested documentation that demonstrates a good faith effort to comply with the goal
requirements as described in the Program Goal section above.
B. A contracting department may request the M/WBE Office to waive or modify the goal requirements
by submitting a Departmental Waiver Form, in writing, prior to solicitation of bids or proposals. The
M/WBE Office may grant such a waiver or reduction upon determination that:
1. The reasonable and necessary requirements of the contract render subcontracting or
other participation of businesses other than the Offeror infeasible; or
2. A public or administrative emergency exists which requires the goods or services to be
provided with unusual immediacy; or
3. Lack of sufficient MBE, WBE and/or SBE subcontracting/ subconsulting/suppliers
providing the services required by the contract are unavailable in the marketplace,
despite attempts to locate them; or
4. The application of the provisions of this ordinance will impose an unwarranted risk on the
City or unduly delay acquisition of the goods or services.
C. Whenever the M/WBE Office denies a request to waive a goal; the contracting department may
appeal that denial to the City Manager whose decision on the request shall be final.
24
Minority and Women Business Enterprise Ordinance Attachment 1
X. PROGRAM ADMINISTRATION:
A. The City Manager, with the advice and counsel of the MWBE-AC in accord with City of Fort Worth
Resolution No. 3698-12-2008, is authorized to establish and implement the regulations set forth
in this ordinance. The MWWBE Office shall be responsible for the overall administration of the
City's Business Diversity Enterprise Program, and its duties and responsibilities shall include:
1. Recommending rules and regulations to effectuate this ordinance;
2. Maintaining a current listing of certified firms for distribution internally and externally on
contracts;
3. Providing information, outreach (to include workshops, seminars, etc.) and needed
assistance to MBEs, WBEs and SBEs to increase their ability to compete effectively for
the award of City contracts;
4. Investigating alleged violations of this ordinance and making written recommendations to
appropriate City authorities for remedial action when appropriate;
5. Developing and distributing all necessary forms, applications, and documents necessary
to comply with this ordinance;
6. Reviewing, on a regular basis, the progress of departments toward achieving the
category goals for the utilization of minority, women and small business enterprises;
7. Making recommendations to appropriate City staff regarding methods to further the
policies and goals of this ordinance;
8. Determining ordinance compliance on bids and proposals before they are submitted to
the City Council for award;
9. Maintaining an accurate contract performance reporting system; and
10. Compiling a report reflecting the progress in attaining the City's annual goal, quarterly
and annually.
B. It shall be the responsibility of the contracting department to ensure that bids or proposals for the
department's projects adhere to the procedures and provisions set forth in this ordinance.
1. The department director or designee shall assume primary responsibility for achieving the
goals of this program and shall review, on a continuing basis, all aspects of the program's
operations to assure that the purpose is being attained.
2. The contracting department shall take the following action to ensure that MBEs, WBEs
and SBEs have the maximum opportunity to participate on City contracts:
a. Effectively use the City's website, email blasts and other tools, techniques and
forms of relevant media to effectively advertise and notify minority, women and
small business trade associations, professional associations, contractor's
associations, and minority, women and other chambers of commerce and
technical assistance organizations about the availability of formally advertised
contracting opportunities no less than 28 days before bids are due;
b. All applicable contract solicitations shall include the requirements contained in
this ordinance;
c. All contracting opportunities shall be evaluated in an effort to divide the total
requirements of a contract to provide reasonable opportunities for MBEs, WBEs
and/or SBEs;
25
Minority and Women Business Enterprise Ordinance Attachment 1
d. Establish procedures to ensure that all contractors' invoices are paid on
construction, professional services and purchases as follows:
1) Vertical construction shall be paid monthly or whenever practical, within
ten (10) City business days after receipt of an approved invoiced,
2) Horizontal construction shall be paid twice monthly,
3) Professional Services shall be paid within ten (10) City business days
after receipt of an approved invoice, and
4) Purchases shall be paid within ten (10) City business days after receipt
of an approved invoice.
e. Ensure that applicable contracts with prime contractors/consultants that provide
construction, professional services, all other services and applicable goods have
appropriate contract language that require primes to pay all of its
subcontractors/subconsultants within five (5) business days after receipt of
payment from the City (exclusive of the date payment is received).
f. Establish guidelines to ensure that a notice to proceed is not issued until signed
letters of intent evidencing receipt by the MBEs, WBEs and/or SBEs or executed
agreements with the MBEs, WBEs and/or SBEs have been submitted to
substantiate the participation commitment along with the project work schedule, if
applicable;
g Ensure that all required statistics and documentation are submitted to the
M/WBE Office as requested; and
h. If circumstances prevent the contracting department from meeting the 28-day
advertising and notification requirements, the contracting department shall
perform extensive outreach to MBE, WBE and/or SBE associations or other
relevant organizations to inform them of the contracting opportunity.
XI. SANCTIONS:
A. The GFE documentation shall demonstrate the Offeror's commitment and honest efforts
to utilize MBEs, WBEs and/or SBEs. The burden of preparing and submitting the GFE
information is on the Offeror and will be evaluated as part of the responsiveness to the
bid/proposal. An Offeror who intentionally and/or knowingly misrepresents facts in the
documentation submitted will be classified as non -responsive and be subject to possible
debarment.
B. A contractor's failure to make payments within five (5) City business days shall authorize
the City to withhold payment from the contractor until compliance with this ordinance is
attained.
C. Debarment:
1. An Offeror who intentionally and/or knowingly misrepresents material facts shall
be determined to be an irresponsible Offeror and barred from participating in City
work for a period of time of not less than three (3) years.
2. The failure of an Offeror to comply with this ordinance where such non-
compliance constitutes a material breach of contract as stated herein, may result
in the Offeror being determined to be an irresponsible Offeror and barred from
participating in City work for a period of time of not less than one (1) year.
3. The M/WBE 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.
26
Minority and Women Business Enterprise Ordinance Attachment 1
4. 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.
5. 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.
6. The Offeror will be afforded an opportunity to appear with Counsel if they so
desire, submit documentary evidence, and confront any witness that the City
presents.
7. The Appeal Board will render its decision not more than thirty (30) days after the
hearing and send a certified notice to the Offeror.
8. 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.
9. The appeal will be placed on the City Council agenda within thirty (30) days from
receipt of written notice, unless Offeror requests an extension in writing.
10. 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.
11. Any MBE, WBE, SBE or other relevant subcontractor or supplier who
intentionally and/or knowingly misrepresents facts or otherwise violates the
provisions of this ordinance may be determined to be irresponsible for a period
not to exceed one (1) year, and if deemed irresponsible, such MBE, WBE or SBE
subcontractor or supplier shall not be included in calculating an Offeror's
responsiveness and barred from bidding on City work.
XII. SEVERABILITY:
If any provision of this attachment or ordinance, the application thereof to any person or
circumstance is held invalid for any reason in a court of competent jurisdiction, such invalidity
shall not affect the other provisions of any other application of this attachment or ordinance which
can be given effect without the invalid provision or application, and to this end, all the provisions
of this attachment or ordinance are hereby declared to be severable.
27