HomeMy WebLinkAbout(0071) BDE Ordinance.Amendments.Redline.PDFORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 20, ARTICLE X OF THE CODE
OF THE CITY OF FORT WORTH (2015), AS AMENDED, AS SHOWN ON
THE ATTACHED EXHIBIT A, MAKING CHANGES INCLUDING, BUT
NOT LIMITED TO NEW DEFINITIONS FOR THE CITY'S
MARKETPLACE AND SIGNIFICANT BUSINESS PRESENCE,
BROADENING THE DEFINITION OF A CONTRACT, AND MAKING
CERTAIN ADDITIONS, INCLUDING, BUT NOT LIMITED TO ADDING
A MECHANISM FOR COUNTING OUT -OF -MARKETPLACE BUSINESS
EQUITY FIRMS TOWARD MEETING BUSINESS EQUITY GOALS,
DETAILING PAYMENT REPORTING PROCEDURES, AND
CLARIFYING THE VIOLATIONS AND SANCTIONS SECTION;
PROVIDING A SAVINGS AND A CUMULATIVE CLAUSE; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, on November 17, 2020, the Fort Worth City Council approved Ordinance
No. 54531-11-2020 (the "Business Equity Ordinance") that repealed all previous minority and
women business enterprise ordinances and policies previously adopted and enacted a new
business equity program in accordance with federal law and the findings of the City's most
recent Disparity Study; and
WHEREAS, the Disparity Study supports the City's compelling interest in continuing a
race and gender -conscious Business Equity Firm program because statistical data and anecdotal
testimony provide a sound basis for use of narrowly tailored remedial race and gender -based
measures to ensure equal opportunities for all firms to do business with the City; and
WHEREAS, City staff determined that Chapter 20, Article X of the Code of the City of
Fort Worth (the "Article") which was repealed and replaced in the Business Equity Ordinance
needed further changes and addition; and
WHEREAS, it is the City Council's intent for this ordinance to clarify the Business
Equity Ordinance and Article and add certain terms to the Article that reflect the business
processes of the City that will continue to reduce barriers to opportunities on City contracts for
Business Equity Firms.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FORT WORTH, TEXAS, THAT:
SECTION 1.
That the Code of the City of Fort Worth, Texas (2015), as amended, is hereby further
amended by changing portions of Chapter 20, Article X: Minority and Women Business
Enterprises as detailed on Exhibit "A," attached hereto and incorporated herein. The provisions
of this ordinance shall apply to all Contracts (as defined in Exhibit A) unless explicitly excepted,
awarded by the City, except as may be hereafter specifically exempted. Definitions for this
Ordinance No. Page 1 of 22
ordinance and Contract administration procedures, including Debarment and Sanctions for
Bidders, Contractors, Business Equity Firms, and other parties related to this ordinance are
described on Exhibit "A."
SECTION 2.
It is hereby declared to be the intention of the City Council that the phrases, clauses,
sentences, paragraphs and sections 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.
SECTION 3.
This ordinance shall be cumulative of all provisions of ordinances of the Code of the City
of Fort Worth, Texas, (1986), as amended, except where the provisions of this ordinance are in
direct conflict with the provisions of such ordinances and such Code, in which event conflicting
provisions of such ordinances and such Code are hereby repealed.
SECTION 4.
This ordinance shall be in full force and effect for any procurement or contracting activity
where formal solicitation from on and after approval, and it is so ordained. This ordinance shall
terminate on December 31, 2030, the same date of termination as the Business Equity Ordinance.
APPROVED AS TO FORM AND LEGALITY:
Senior Assistant City Attorney
ADOPTED: , 2021
EFFECTIVE: .2021
Ordinance No. Page 2 of 22
EXHIBIT "A"
TABLE OF CONTENTS
20-366 Definitions
20-367 Purpose and Application
20-368 Business Equity Goal Setting
20-369 Joint Ventures and Mentor -Protege
20-370 Contract Award Compliance Procedures
20-371 Contract Administration Procedures
20-372 Contract Exceptions and Waivers
20-373 Violations and Sanctions
20-374 Appeal
20-375 Sunset Date
0 20-376 - 20-382 Reserved
Ordinance No. Page 3 of 22
§ 20-366 DEFINITIONS.
(a) Annual Goal means the overall target for Business Equity Firm utilization in
Contracts (prime contracts and subcontracts combined) as defined by the calculation method
used in the City's most recent Disparity Study, and should be the basis for consideration of
overall, annual spending targets for City fw4lsFunds. This target can be the City's goal for its
overall spending with certified firms across all industry categories.
(b) Article means Chapter 20, Article X Code of the City of Fort Worth (2015).
(c) Best Value means a procurement method in which the selected Bidder is not
determined solely y the lowest price bid.
(b)(d)—Bidder means any Person seeking to be awarded a Contract.
(OLeeLBid Shopping the practice of divulging a contractor's or Subcontractor's bid to
other prospective contractor(s) or Subcontractor(s) before the award of a contract in order to
secure a lower bid.
(d)(D—Business Equity Board is the group of industry stakeholders established by City
Council tasked with advising the City on Business Equity Firm participation in City procurement
activities and is formerly known as the Minority and Women Business Enterprise Advisory
Committee.
(e)(gLBusiness Equity Firm means an Independent Firm that is a Certified MBE and/ -or
WBE with a Significant Business Presence in the Cit s Marketplace.
(4)(hLBusiness Equity Goal means a calculation prepared by the DVIN that includes all
the following factors: the detailed cost estimate of the work to be performed, or goods purchased;
the Marketplace; the availability of Business Equity Firms and non -Business Equity Firms in the
Marketplace determined on a Contract -by -Contract basis; and the subcontracting/supplier
opportunities of each project.
(i) Business Equity Management System means an online business equity contract
tracking system utilized by DVIN.
Certified means those firms identified by the North American Industry
Classification System (NAICS) that have been determined to be a bona fide MBE or WBE by the
North Central Texas Regional Certification Agency (NCTRCA), the Dallas/Fort Worth Minority
Supplier Development Council (DFW/MSDC), Women's Business Council -SW (WBCS), Texas
Department of Transportation (TxDOT) or other certifying agency that the DVIN may deem
appropriate and accepted by the City of Fort Worth.
{Ir}(k_ y means the City of Fort Worth, Texas.
(1) City Funds means all revenues derived from any_ source other than federal or state
,grants or allocations.
( (m — y Manager means the City Manager of the City of Fort Worth, Texas.
q) nL_Combined Project means a construction contract including more than one of the
following: paving, drainage, or water/sanitary sewer; the term does not include a standard water/
sanitary sewer contract where the pavement is only temporarily or permanently repaired
incidental to the water/sewer work.
Ordinance No. Page 4 of 22
{k}(o) Commercially Useful Function means responsibility for the execution of a distinct
element of the work of a Contract, which is carried out by actually providing materials,
equipment, supplies, goods, or performing, managing, and supervising the work nvref
fulfilling responsibilities as a joint lv7entuFe paFtaeF..
( )(p)—Construction means the processes involved in delivering buildings, infrastructure,
or facilities; the term includes but is not limited to 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.
(m)(g)-Contract means any purchase order or contract that (i) involves expenditure of
$100,000 or more of Ci . Funds; (ii) „*could use Subcontractors; and (iii) is awarded by the
City, whether directly or indirectly, for work, labor, services, supplies, equipment, professional
services, goods, construction, or construction -related activities, and materials or any combination
of the foregoing; the term specifically includes but shall not be limited to, any purchase or lease
of materials pursuant to Texas state law, any public work project authorized pursuant to Texas
state law, or contract in which public bids are not required by law. A Contract does not include
an Emergency Contract.
(n&L—Contractor means any Person that has been awarded a Contract.
`Debar or Debarment of a Bidder- ^r Conifaeter means tithe City will not
consider offers from; or award new contracts to, re -A, -- other -wise extend pAfaets with,
(0C-s)_1 &U-!— Hat -off -ffletie f s the ^ ^h sio a Bidder. A debarred Business
Equity Firm shall not be included in calculating a person s f ^m equal business
disability, >
ntatio^ OF end ff identity oF express r.Business Equity
(q)�t — parity Study means the City of Fort Worth Disparity Study finalized and
presented to City Council on June 16, 2020 or a study presented to the City Council after that
date.
(f)(uL_Doing Business means engaging in for -profit activities in the scope of the
expertise of the firm and having a physical location and/or digital presence from which to do so.
(O vLDVIN means the City's Department of Diversity and Inclusion.
(0 w -Emergency Contract means a Contract that is awarded on an emergency basis due
to a threat of harm to person or property or threat of disruption of governmental services and
approved by the City Attorney's office as an emergency contract exempt from Texas public
bidding laws.
(t)LxLGood Faith Efforts means the actions undertaken by a Contractor and approved
by DVIN as described in §20-370, below.
(v)(yLHorizontal 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
Article.
(w)LzLIndependent Firm means a ( Person whose viability does not depend on its
relationship with another €x:mPerson.
W as Joint Venture means a business entity formed by two or more independent
Persons for the purpose of pursuing a common objective, such as a prime contract. The resulting
business entity has additional resources and capacity, enhancing its ability to compete for larger
Ordinance No. Page 5 of 22
awards. A joint venture is generally characterized by shared ownership, shared returns and risks,
and shared governance. In a joint venture, the prime managing partner holds 5 1 % or more
interest in the business. Partner(s) hold less than 5 1 % interest but in most cases, not less than
20%.
(y)Cbbb�Marketplace means the geographic area as defined by the City's most current
Disparity Study and ineludethe City Fet4 Wet4h, ineluding pettiensofPa 4er-, Wise"ther- eeu*ties like Collin within a 100 mile radius fFem 200 Texas StFeet,—YeFt -anc
,
02 -na -a -n-ase by ease basis when eeatfaeter-s loea4ed within those eettnties ean pr-ov-e
they have done business in the City of Fai4 Wefth-..
(z) cc Mayor means the Mayor of the City of Fort Worth, Texas.
(dd) Mentor Protege Program means the mentor prot6ge program described more fully
in §20-369, below.
(-aa) ee)Minority Individual means a person who is a member of any of the
following:
(1) 'Black Americans," whieh ine' means persons having origins in any
of the Black racial groups of Africa;
(2) LHispanic Americans," whieh ine! means persons of Mexican, Puerto
Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese
culture or origin, regardless of race;
(3) LNative Americans," •• -hieh ine! means persons who are enrolled
members of a federally or State recognized Indian tribe, Alaska Natives, or Native
Hawaiians;
(4) `Asian -Pacific Americans," whie ine! means persons whose origins
are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia
(Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the
U.S. Trust Territories of the Pacific Islands (Republic of Palau), Republic of the Northern
Marianas Islands, Samoa, Macao, Fiji, Tonga, Kirbati, Tuvalu, Nauru, Federated States
of Micronesia, or Hong Kong; and
(5) "Subcontinent Asian Americans," whie ine! means persons whose
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri
Lanka;_
(bb)nMinority-Owned Business Enterprise (MBE) means a business entity, including
but not limited to a sole proprietorship, partnership, corporation, limited liability company,
association or joint venture:
(1) which is at least fifty one percent (51 %) owned by one or more Minority
Individuals, or in the case of a publicly traded business, at least fifty one percent (51%) of
all classes of the stock of which is owned by one or more Minority Individuals; and
(2) whose management, policies, major decisions and daily business
operations are independently managed and controlled by one or more such more Minority
Individuals;_
below.
(*(gg)---Person means a natural person or business entity, including but not limited
to a sole proprietorship, partnership, corporation, limited liability company, association or joint
venture.
Ordinance No. Page 6 of 22
(ee) h� h) Program means the Administrative Regulations for contracts with
Business Equity Firms that do not involve Subcontractors.
(ii) Responsive means that a Person is in compliance with the requirements of this
Article.
(€f (jjLSignificant Business Presence means a ems -Person (1) which has its principal
place of business located inside the Marketplace; (2) which has its principal place of business
located outside the Marketplace and a ',,,.a4io,, within the Mar-ko,,..laee ut has been verified
to be in existence for a minimum of 24 months and from which (-}at least 20% of the business's
workforce is based in the Marketplace and (2) p ides a r,..,...,. er-eially T se fit Ftmetio that ;
signifieant to a speeifie pi:qjeet. A post offiee box, mail dfop-,, or telephone message eente
any -binatio thereof with no other- substant '(3) which has cumulative business receipts
greater than $1,000,000 for work f;,.,etio., shall not be e„s*..,,oa to e„stit to a Sign fie ,r*
Business Pr-ese eedone in the Marketplace since January 1, 2013.
{gg)(kk) Solicitation means the process of inviting companies to bid on
opportunities to provide goods and services.
(WfUI Subcontractor means any person entering into a contract with a Contractor or a
higher Tier Subcontractor to directly furnish services or supplies toward the Contract.
(ii)(mm _Tier means the numerical level of subcontracting below the Contractor.
{jj) nn Utilization Plan means the list of Business Equity Firms that a Contractor
commits will be utilized to meet the Business Equity Goal for a specific project, the scopes of the
work and the dollar values or the percentages of the work to be performed.
{} oo Vertical Construction means the construction or remodeling of any
building, structure or other improvement that is predominantly vertical, including, without
limitation, buildings, the design and construction of which are governed by accepted building
codes.
(U)fpp) Woman means an adult person of the female gender.
( )(qg) Women -Owned Business Enterprise (WBE) means a business entity,
including but not limited to a sole proprietorship, partnership, corporation, limited liability
company, association or joint venture:
(1) which is at least fifty-one percent (51 %) owned by one or more women, or
in the case of a publicly traded business, at least fifty-one percent (51%) of all classes of
the stock of which is owned by one or more women; and
(2) whose management, policies, major decisions and daily business
operations are independently managed and controlled by one or more such women.
§20-367 PURPOSE AND APPLICATION.
(a) The purpose of this Article and the Program is to remedy past underutilization and
provide a fair and level playing field for ^"Business Equity Firms and to encourage the
participation of Business Equity Firms to contract with the City.
(b) It is intended to promote equal opportunity and the utilization of Business Equity
Firms in the City's contracting opportunities.
(c) This Article applies to any Contract awarded by the City or any of its
departments, boards or commissions for work, labor, services, supplies, equipment, materials or
Ordinance No. Page 7 of 22
any combination of the foregoing; specifically including but not be limited to, any purchase or
lease of materials, any public work project, or contract in which public bids are not required by
law.
(d) The requirements of this Article shall not apply to Emergency Contracts, however
any department that procures an Emergency Contract must notify the DVIN, in writing, at the
time it seeks legal approval of an Emergency Contract.
(e) Where Contracts involve the expenditure of federal or state funds, the state or
federal policy related to Business Equity Firms participation may take precedence over this
Article.
(f) The provisions of this Article shall be liberally construed for the accomplishment
of its policies and purposes.
(g) Narrowly tailored goals shall be established in the areas of procurement and
contracting.
(h) A Business Equity Goal may be set on a Contract -by -Contract basis based on the
type of work or services to be performed, or goods to be acquired and the availability of Business
Equity ltFirms in the Marketplace.
(i) All required notifications under this Article must be made to the DVIN at the
following email address: DVIN_ BEOffice(d),fortworthtexas.gov.
§20-368 BUSINESS EQUITY GOAL SETTING
(a) A Business Equity Goal should be set by DVIN for the entire scope of work on a
prej eetContract.
(b) A Business Equity Goal shall be expressed in terms of a percentage of the total
dollar value of each Contract awarded by the City.
(c) Except as stated otherwise herein, a Business Equity GealsGoal shall be
established for all Contracts where Business Equity Firms exist within the Marketplace.
fd) DVIN ffiayshall set a Business Equity Goal for Community Facilities
Agreements, Infrastructure Construction Agreements, and any other agreement relating to the
construction of public infrastructure or a public building when the Citesparticipation in the
agreement is $1,000,000.00 or more in City Funds.
(e) If nt diFe tly as pai4 of City Funds are used in conjunction with
state or federal grants or allocations, the City shall not set a Business Equity Goal for
Community Facilities ^ greement Development Block Grants, HOME programs, or other
projects that include federal funds except where the City is mandated to set goals state or
federal reauirements.
Ordinance No. Page 8 of 22
(d4(f)
L A Business Equity Goal may be established for tax abatement agreements and
Chapter 380 grant agreements if allowed by and in accordance with the most recently adopted
Tax Abatement Policy and Chapter 380 Grant Agreement Policy.
(O(gLThe City will count a Business Equity Firm's self -performance towards meeting a
Business Equity Goal.
§20-369 JOINT VENTURES AND MENTOR -PROTEGE.
(a) Joint Ventures. Where it is economically feasible, the establishment of Joint
Ventures to ensure prime contracting opportunities for Business Equity Firms on certain
Solicitations is encouraged. The factors used to evaluate economic feasibility, include, but are
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 Business Equity Firm joint
venture partners in the relevant market area and the nature of the work.
(1) When the City uses a procurement method other than lowest responsible
bidder, the City may, at its discretion, designate a particular Solicitation as a "Joint
Venture Preferred" Solicitation.
(2) A prospective Joint Venture partner shall state within its proposal or its
statement of qualifications information that specifies the role and extent of the Business
Equity Firm Joint Venture partner(s) involvement. Such information shall include, but is
not limited to:
i. The name of the Business Equity Firm Joint Venture partner(s) that
will participate on the project.
ii. The percentage of prime contract dollars attributable to the
services to be provided by the Business Equity Firm Joint Venture partner; and, as
appropriate the total dollar value of the services to be provided.
iii. A description of the work that each Business Equity Firm Joint
Venture partner shall be responsible for performing under the terms of the Joint
Venture agreement.
(3) The prospective Joint Venture partner must also submit tea "Joint
Venture Eligibility Form." DVIN will review the "Joint Venture Eligibility Form" and
will have final approval, as to whether the proposed Joint Venture conforms to the
DVIN's definition of a Joint Venture.
(4) The Joint Venture shall ensure that, at a minimum, the following items are
addressed in the formation and governance of the Joint Venture:
i. The initial capital investment of each Joint Venture partner;
ii. The proportional allocation of profits and losses to each Joint
Venture partner;
Ordinance No. Page 9 of 22
iii. The sharing of the right to control the ownership and management
of the Joint Venture;
iv. Actual participation of the Joint Venture partners on the project;
V. The method of and responsibility for accounting;
vi. The method by which disputes are resolved; and
vii. Any additional or further information required by the DVIN as set
forth in this Article, bid documents and/or otherwise.
(b) Mentor Prot6g6 Program.
(1) The MRPMentor Prot&g6 Program is designed to foster relationships
between Contractors and underutilized Business Equity Firms. The objective of the
M"Mentor Prot6g6 Program is to provide professional guidance and support to the
prot6g6 (which must be a Business Equity Firm) in order to facilitate prot6g6 growth and
development and increase the number of Contracts and c4eeilt-Fact-subcontracts
awarded to Business Equity Firm.
(2) The mentor-prot6g6 relationship is intended to be mutually beneficial
because it allows mentors to utilize their prot6g6s to fulfill Business Equity Goals when
bidding on Contracts. It is advantageous to build a partnership prior to a Solicitation or
Contract award to establish confidence in performance.
(3) DVIN shall serve as a sponsor for the MP-P-Mentor Prot6 e�Pro Program.
Companies interested in joining the MPPMentor Prot6g6 Program should contact DVIN
to search a list of potential Business Equity Firm prot6g6s that may provide
complementary services, and supply chain opportunities.
(4) DVIN may prioritize prot6g6 businesses in critical areas of City
procurement or Contract needs.
(5) DVIN will consider the following criteria for selection of a mentor in the
MP-gMentor Prot6g6 Program:
i. The mentor must be registered with the City of Fort Worth;
ii. Previous mentoring experience and or successful prior work
history;
iii. The mentor must have been in operation for at least five years;
iv. Ability to provide developmental guidance in areas identified by
the prot6g6; and
V. "Good Standing" in doing business with the City of Fort Worth
and regional partners.
(6) DVIN will consider the following criteria for selection of a prot6g6 in the
MP-R-Mentor Prot6g6 Program:
i. Eligibility and willingness become a Business Equity Firm, as
defined herein;
Ordinance No. Page 10 of 22
ii. Business in operation for at least one year;
iii. Desire to participate with a mentoring firm;
iv. Ability to work with DVIN in identifying the type of guidance
needed for business development; and
V. "Good Standing" in doing business with the City of Fort Worth
and regional partners.
§20-370 CONTRACT PRE -AWARD COMPLIANCE PROCEDURES
(a) Any Contract that is required to publicly bid work in accordance with the use of
City Funds must follow the rules in this Article, includingthe he requirement to publicly advertise
all Contracts for at least 21 days before opening any bids.
(0hLAll Bidders seeking to enter into a Contract with the City shall be registered as a
vendor with the City.
{For a low bid procurement, the lowest bidder shall submit a
Utilization Plan no later than 2pm on the 3rd business day after bids are opened detailing all
Subcontractors the Contractor intends to utilize in its performance of a Contract. Contractors that
are Business Equity Firms that are a Goat, ,, to may count their self -performed services towards
meeting a Business Equity Goal.
(d) For a Best Value procurement, all bidders who wish to be considered for
evaluation scoring shall submit a Utilization Plan by on the 3rd business day after the bids
are opened detailing all Subcontractors the Contractor intends to utilize in its performance of a
Contract. Contractors that are Business Eauitv Firms may count their self -performed services
towards meeting a Business Equity Goal.
(e) Non-compliance. If the lowest bidder for a low bid procurement or any bidder for
a Best Value procurement does not timely submit its Utilization Plan with the required
documents, that bidder will be deemed non -responsive. For a low bid procurement, the City will
notify the next lowest bidder who shall then submit a Utilization Plan with required documents
no later than 2 pm on the 3rd business day after the bidder receives notification. This process will
be followed until a bidder submitting - the he required documents is selected.
(f) A bidder who was previously debarred must apply to DVIN for reinstatement in
order for its bid to be considered.
{4}(g) Good Faith Effort. Where the Bidder cannot achieve the Business Equity Goal,
the Bidder must provide proof of having made Good Faith Efforts to meet the Business Equity
Goal. Good Faith Effort requirement means an honest and conscientious effort by the Bidder to
explore all available options to achieve, to the maximum extent practical to meet the Business
Equity Goal.
Ordinance No. Page 11 of 22
(1) Compliance with each of the following steps shall satisfy the Good Faith
Effort requirement absent mere pro forma efforts or proof of fraud, misrepresentation, or
intentional discrimination by the Bidder:
i. List each and every opportunity for Subcontractors for the completion of a
Contract. On Combined Projects list each opportunity for Subcontractors through
the 2nd Tier.
ii. Obtain a current list (dated not more than twe42six 6) months old prior to
the bid open date) of Business Equity Firms from the DVIN.
iii. Solicit participation from Business Equity Firms, within the Subcontractor
areas previously listed, at least ten calendar days prior to bid opening, exclusive of
the day the bids are opened. Both Business Equity Firms and non -Business Equity
Firms must receive the same Solicitation for each area of opportunity. The three
methods identified below are acceptable for soliciting participation, and each
selected method must be applied to the applicable contract. The Bidder mus
,beet , e t, to the s fis f �may meet the Good Faith Effort requirement by
making at least one successful contact with a Business Equity Firm using either (i)
email, (ii) fax, or iii, telephone. The Bidder may also meet the DV Good Faith
Effort requirement by documenting, in the manners detailed below, that at least
two attempts were made using two of the three following methods: (i) email, (ii)
fax, oF (iii) telephone eF that at least one sueeessful eantact was made
(i) email, (ii) fax, or- (iii) telephone in order- to be deemed responsive to
1. Email: a copy of the sent confirmation to each Business
Equity Firm with the date and time of the email 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.
2. Fax: a copy of sent confirmation to each Business Equity
Firm with the date and time 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
fax for proper documentation.
3. Telephone: a call log that identifies each Business Equity
Firm contacted with the phone number, name of individual contacted,
time, date and outcome of each phone call.
iv. Provide plans and specifications or information regarding the location of
plans and specifications which shall be communicated to all Business Equity firms
in each Subcontractor area.
Ordinance No. Page 12 of 22
v. Attach a copy of the Solicitation sent to the Business Equity firm
identifying the instructions on how to obtain plans and specifications for this
Solicitation.
vi. Submit documentation of any Business Equity Firm whose quotes were
rejected. The documentation submitted should be in the form of an affidavit,
include a detailed explanation of why the Business Equity firm was rejected and
any supporting documentation the Bidder wishes to be considered by the City. In
the event of a bona fide dispute concerning quotes, the Bidder will provide for
confidential review of any relevant documentation by City personnel.
vii. All communications from the Bidder to potential Business Equity Firms
shall be documented and submitted to the City.
(2) In making a Good Faith Effort determination, DVIN will also consider, at
a minimum, the Bidder's efforts to:
i. Solicit through all reasonable and available means (e.g., attendance at pre -
bid meetings, advertising and written notices) the interest of all Business Equity
Firms in the scopes of work of the Contract. The Bidder shall provide interested
Business Equity Firms with timely, adequate information about the plans,
specifications, and requirements of the Contract to allow such firms to respond to
the Solicitation. The Bidder must follow up initial Solicitations with interested
Business Equity Firms.
ii. Select portions of the work to be performed by Business Equity Firms in
order to increase the likelihood that the Business Equity Goal will be achieved.
This includes, where appropriate, breaking out Contract work items into
economically feasible units to facilitate participation, even when the Bidder would
otherwise prefer to perform these work items with its own forces. It is the Bidder's
responsibility to make a portion of the work available to Business Equity Firms
and to select those portions of the work or material needs consistent with the
availability of such Business Equity Firms to facilitate their participation.
iii. Negotiate in good faith with interested Business Equity Firms. Evidence
of such negotiation includes the names, addresses, and telephone numbers of
Business Equity Firms that were contacted; a description of the information
provided regarding the plans and specifications for the work selected for
subcontracting; and why agreements could not be reached. The Bidder may not
reject Business Equity Firms as being ,,,,qu li fie without sound reasons based on
a thorough investigation of their capabilities. That there may be some additional
costs involved in finding and using Business Equity Firms is not in itself sufficient
reason for a Bidder's failure to meet the Business Equity Goal, as long as such
costs are reasonable.
Ordinance No. Page 13 of 22
iv. The performance of other Bidders in meeting the Business Equity Goal
may be considered. For example, when the apparent successful Bidder fails to
meet the Business Equity Goal but others meet it, it may be reasonably questioned
whether, with additional reasonable efforts, the apparent successful Bidder could
have met the Business Equity Goal.
{0(hLA signed letter of intent from each listed Business Equity F4misFirrn describing
the work, materials, equipment or services to be performed or provided by the Business Equity
FifmsFlrm and the agreed upon dollar value shall be due at the time specified in the Solicitation.
If DVIN determines that a Good Faith Effort was not made, the Bidder shall be
disqualified from that specific bid.
(i) Exclusive Contract and Non -Compete Agreement. A Bidder or Contractor may
not require a Business Equity Firm to enter into an exclusive contract or non -compete agreement
that restricts a Business Equity Firm's abilitygrow and build capacity in the Marketplace
unless the Business Equity Firm demonstrates to DVIN that an exclusive contract or non -
compete agreement with a Bidder or Contractor will result or has resulted in the growth of the
Business Equity Firm's capacity in the Marketplace and the Business Equity Firm freely
consents to the contract or agreement.
(a)(k) Bid Protest and Procedure. In accordance with CitYgeneral purchasing policies,
Bidders have certain rights to protest a bid award. The protesting Bidder must submit a protest,
in writing, in accordance with those general purchasing policies.
(1) If a Bidder. Contractor, Subcontractor, or Business Equity Firm desires to make
an allegation of discrimination based on a protected class in the City's award of a Contract, they
shall submit such allegation, in writing, to DVIN before the performance of the Contract. DVIN
shall refer such allegation to the City Human Resources Labor Relations Unit for investigation.
§20-371 CONTRACT ADMINISTRATION PROCEDURES
(a) Upon award of a Contract by the City that includes a Business Equity Goal, such
Business Equity Goal becomes a covenant of performance by the Contractor in favor of the City.
(b) Contracts shall incorporate the Ordinance and this Article by reference, and shall
provide that the Contractor's violation of the Ordinance and this Article shall constitute a breach
of such Contract and may result in Debarment in accordance with the procedures outlined in this
Article.
(c) The Contractor shall provide a list of all Subcontractors to be used in the
performance of the Contract, and detailed Subcontractor information to the City with each
request for payment submitted to the City or as otherwise directed by the DVIN.
(d) The DVIN shall monitor Subcontractor participation and Business Equity Goal
attainment during the course of the Contract.
Ordinance No. Page 14 of 22
(e) The DVIN shall have full and timely access to view the Contractor's relevant
books and records relating to each specific Contract with the City to determine the Contractor's
compliance with its commitment to Business Equity Firm participation and the status of any
Business Equity Firms performing any portion of the Contract. The DVIN shall not record,
maintain copies, or disclose industry or trade secrets of a Contractor or Vendors books and
records in its execution of this duty. This provision shall be in addition to, and not a substitute
for, any other provision allowing inspection of the Contractor's records by any officer or official
of the City for any purpose.
(f) Business Equity Firm Subcontractor Substitution.
(1) The Contractor shall not make changes to the Utilization Plan or substitute
Business Equity Firms named in the Utilization Plan without the prior written approval of
the DVIN. Unauthorized changes or substitutions shall be a violation of this Article and a
breach of Contract, and may constitute grounds for rejection of the bid or cause
termination of an executed Contract for breach, the withholding of payment and/or
subject the Contractor to certain sanctions.
(2) A Contractor shall not substitute a Business Equity Firm Subcontractor or
perform the work designated for a Business Equity Firms with its own forces unless and
until approval has been received in writing by the DVIN.
(3) The facts supporting the request for substitution of a Business Equity Firm
must not have been known nor reasonably should have been known by the Contractor
before the submission of the Utilization Plan.
(4) Bid Shopping as a part the substitution of a Business Equity Firm is
prohibited.
(5) The Contractor must negotiate in good faith with the Business Equity Firm
Subcontractor to resolve any issues between the Contractors and Business Equity Firm
Subcontractor. Where there has been a mistake or disagreement about the scope of work,
the Business Equity Firm can be substituted only where an agreement cannot be reached
for a reasonable price for the corrected scope of work.
(6) Substitutions of the Business Equity Firm Subcontractor shall be permitted
only after submission of a request for Subcontractor substitution in the B24aNewBusiness
Equi . Management System and only on the following bases:
i. Unavailability after receipt of reasonable notice to proceed;
ii. Failure of performance;
iii. Financial incapacity;
iv. Refusal by the Subcontractor to honor the bid or proposal price;
V. Mistake of fact or law about the elements of the scope of work of a
Solicitation where agreement upon a reasonable price cannot be reached;
Ordinance No. Page 15 of 22
vi. Failure of the Subcontractor to meet insurance, licensing or
bonding requirements; or
vii. The Subcontractor's withdrawal of its bid or proposal.
(7) The DVIN's final decision whether to permit or deny the proposed
substitution, and the basis of any denial, shall be communicated to the Contractor and
Business Equity Firm Subcontractor in writing within seven (7) business days of receipt
of the request for substitution in the Business Equity Management System.
(8) Where the Contractor has established the basis for the substitution to the
satisfaction of the City, the Contractor shall make Good Faith Efforts to fulfill the
Utilization Plan. The Contractor may seek the assistance of the City in obtaining a new
Business Equity Firm.
(9) If the Business Equity Goal cannot be reached and Good Faith Efforts
have been made, the Contractor may substitute with a non -Business Equity 1sFirm.
(g) Contract Amendment / Change Order. The Contractor shall comply with the
provisions of this Article with respect to any contract amendments, change orders, or extra work
orders.
(1) If a Contract has been assigned a Business Equity Goal and requires a
reduction in work or additional work through a change order, contract amendment or
other mechanism, the Contractor shall notify DVIN.
(2) If the Contract amendment, change order, or extra work adds work to a
project that is already being performed by a Business Equity Firm, such firm shall be
given the opportunity to perform the additional work.
(3) If the amendment, change order, or extra work adds work that like or
similar work is not already being performed by a Business Equity Firm and the amount of
such additional work is greater than or equal to $100,000.00, the Contractor shall comply
with Good Faith Effort requirements of this Article (exclusive of the time requirements
stated therein) with respect to such additional work.
(4) A Contractor may submit an Acceptance of Previous Commitment Form
(APCF) for contract amendments and change orders in which the Contractor agrees to the
original Business Equity Goal for the project, inclusive of any prior change orders or
amendments
(h) Prior to Contract Closeout, the DVIN shall evaluate the Contractor's fulfillment of
the Business Equity Goal, considering all approved substitutions, terminations and changes to the
Contract's scope of work. If the City determines that Good Faith Efforts to meet the Business
Equity Goals were not made, or that fraudulent misrepresentations have been made, or any other
breach of the Contract or violation of the Or -di ,an o er this Article has occurred, a remedy or
sanction may be imposed, as provided in this Article.
Ordinance No. Page 16 of 22
(i) Contract Payment Procedures.
(1) For vertical construction Contracts, the Contractor 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 Contractor
shall pay Subcontractors as required by the Texas Prompt Payment Act or any successor
statute. The 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 Article
is attained.
(2) 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 Article is attained.
(3) For all other Contracts, the Contractor shall pay Subcontractors as
required by the Texas Prompt Payment Act (Tex. Gov't. Code, Chap. 2251) or any
successor statute. The 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
Article is attained.
Payment Compliance Procedures.
(1) Contractors shall report receipt of all payments from the Ci . in the
Business Equi . Management System related to Contracts for which a Business Equity
Goal was established within 30 days of receipt of such payment.
(2) Contractors shall report all payments made to each Business Equity
utilized by the Contractor as a Subcontractor related to Contracts for which a Business
Equity Goal was established within 30 days of making such payment.
(3) Business Equity Firm Subcontractors shall confirm the accuracy and date
of all payments made by Contractors related to Contracts for which a Business Equity
Goal was established in the City's Business Equity Management System within 30 days
of receipt of payment.
(4) If prompted by the City's Business Equi . Management System,
Contractors and Business Equity Firm Subcontractors shall confirm notice and receipt of
all payments.
Ordinance No. Page 17 of 22
The Contractor shall notifv each Business Eauitv Firm Subcontractor that
does not confirm receipt of payment from the Contractor of its responsibility to do so in
the City's Business Equity Management System and provide proof of such notification to
DVIN.
{(k) Contract Close -Out Procedure. At the completion of a Contract, the following
procedures shall be followed by the Contractor. The Program contains further requirements of
City departments for close-out procedures.
(1) The Contractor shall submit a Notice of Final Payment in the B2CWew
Business Equity Management System (B2GNew)._
(2) The Contractor shall work with DVIN to correct any discrepancies in
payments made under a Contract.
(3) If DVIN deter: inatesdetermines that the Contractor failed to meet the
Business Equity Goal and the City made no changes that impacted the Contractor's
ability to meet the Business Equity Goal, it shall be considered a breach of the Contract
and DVIN may impose sanctions in accordance with this Article.
W(D Counting Business Equity Firm's Participation.
(1) In order for a Business Equity Firm to count toward a Business Equity
Goal, such firm must be Certified at the time of bid submission. Business Equity Firms
that are scheduled to become Certified in an additional NAICS area during execution of
the Contract may count participation towards the Business Equity Goal for the additional
certified work upon notifying DVIN with proof of such certification prior to completion
of the work under the Contract.
(2) The entire amount of that portion of a Contract that is performed by the
Business Equity Firm's workforce shall be counted toward a Business Equity Goal,
including the cost of supplies and materials obtained for the work performed by the
Business Equity Firm's workforce.
(3) The entire amount of fees or commissions charged for providing a bona
fide service, such as professional, technical, consultant or managerial services, or for
providing bonds or insurance specifically required for the performance of a Contract,
shall be counted toward the Business Equity Goal, provided the fee is reasonable and not
excessive as compared with fees customarily charged for similar services.
(4) When a Business Equity Firm performs as a participant in a Joint Venture,
only the portion of the total dollar value of the Contract equal to the distinct, clearly
defined portion of the work of the Joint Venture's Contract that is performed by the
Business Equity Firms with its own forces and for which it is separately at risk, shall be
counted toward the Business Equity Goal.
Ordinance No. Page 18 of 22
(5) Only expenditures to a Business Equity Firm that is performing a
Commercially Useful Function shall be counted. To determine whether a Business Equity
Firm is performing a Commercially Useful Function, the City may evaluate the amount
of work subcontracted, industry practices, whether the amount the registered firm is to be
paid under the Contract is commensurate with the work it is actually performing and
other relevant factors. A Business Equity Firms does not perform a Commercially Useful
Function if its role is limited to that of an extra participant in the Contract through which
funds are passed in order to obtain the appearance of participation. When a Business
Equity Firm is presumed not to be performing a Commercially Useful Function, the
Contractor or Business Equity Firm may present evidence to rebut this presumption.
(6) In determining achievement of a Business Equity Goal, the participation
of a Business Equity Firm shall not be counted toward the Business Equity Goal until the
respective amount has been paid to the Business Equity Firm.
(7) Business Equity Firms that meet the Significant Business Presence
definition and bid as a Contractor or Subcontractor may count their participation towards
the goal. Acceptance is on a contract -by -contract basis.
§20-372 CONTRACT EXCEPTIONS AND WAIVERS.
(a) If a Bidder or Contractor is unable to comply with the Business Equity Goal
requirements for a Contract, such Bidder or Contractor may submit one of the two forms
prepared by the DVIN listed below. If the DVIN denies a request to waive a goal; the Bidder or
City department may appeal that denial to the City Manager whose decision on the request shall
be final.
(1) A Contractor Waiver Form may be submitted if a Bidder will perform the
entire contract without Subcontractors or suppliers.
(2) A Good Faith Effort Form is submitted if the Bidder or Contractor has a
subcontracting and/or supplier opportunity but was unable to meet or exceed the Business
Equity Goal. The Bidder or Contractor shall submit requested documentation that
demonstrates a Good Faith Effort to comply with the Business Equity Goal.
§20-3-74373 VIOLATIONS AND SANCTIONS.
(4)Lah Violations. If a Business Equity Firm, Bidder, Contractor, Business Equity Firm
Subcontractor, Vendor, or supplier (for purposes of this Section, each referred to as an
"Offender") commits a violations of this Article (including�payment processing and payment of
Business Equity Firm Subcontractors) provides false or misleading information to the City in
connection with submission of a bid, responses to requests for qualifications or proposals, Good
Faith Efforts documentation, post -award compliance, or commits any other violations of this
Article an&or the n,.,,gr-a ,, it may result in a broach f Cont act and the following -sanctions and
penafties:in accordance with this section.
Ordinance No. Page 19 of 22
(b) Payment Reporting. Failure to comply with requirements for payment reporting
procedures will result in an Offender being locked out the Business Equity Management System
until compliance with the Business Equity Management System is achieved.
(-�)(c) Payments Withheld. n Ge tmeter's faith fe to make „ eft^Failure to
S b.,.e t, aeter-s in aeeer-daneaacompl with the provisions of this n 14iole ,r l the Texas Prompt
Payment Act (Tex. Gov't. Code, Chap. 2251) or any successor statute shall authorize the City to
withhold payment from the Contractor until all ,.o,,uire,lpa)q:He1:As are made and compliance is
attained. Noncompliance may impact bidder evaluation scoring on future City bid opportunities.
(d) All other violations of this Article, including persistent payment issues (reporting
or payment of Subcontractors) will result in the following sanctions:
(1) Warning Letter. A formal written warning letter from DVIN that shall
become part of the vendor profile and may impact bidder evaluation scoring on future
Citesopportunities for up to 12 months.
(2) Non -Responsive Designation. DVIN will designate an Offender as non -
Responsive if DVIN determines that an Offender is not Responsive to any requirements
of this Article. This designation shall prevent Offenders from bidding on Contracts for up
to 6 months or until compliance is met as determined by DVIN. whichever is earlier.
1-Year Debarment. Continued
,hats the provisions of this n,-tiele of the Prog-af may be 710baf -e for- .,
period not to a-xeeed one (1) Tcccr-, and if DebaFFed,,-suehBusines;,E,,,, in
shall not be ineldded in ealeulating a Bidder's Business E"4-y Goal and be bafT-ed
-f-roffl- bidding on City work.
three (3) years.
i4.(3LT4+e failure of a uidde,- ^r Co tmet^ran Offender to comply with this
Article the Progr,,,., where stieh „ eemplianee , „st;t„tes a .,to,-ia b.,-eael, may
result in the BiddeF or Co tmete Offender being Debarred for a period of time of not less
than one (1) year.
(4) 3-Year Debarment. An Offender who intentionally and/or knowingly
misrepresents material facts may be Debarred for a period of time of not less than three
3 ears.
(e) Debarment Procedure.
i,�.(1L-DVIN shall determine whether Debarment of an Offender is appropriate.
If it decides in the affirmative, DVIN shall send a written statement of facts and a
Ordinance No. Page 20 of 22
I
recommendation for Debarment to the City Manager. The City Manager, after
consultation with DVIN and the City Attorney's Office, shall make n deei
r-egar- hngultimately decide whether Debarment.- is aftpropriate. If the City Manager
upholds DVIN's recommendation for Debarment of an Offender, the City Manager shall
send a certified notice to the Bidder- or Cent -aete Offender informing them of the
Debarment.
v-.(2) An Offender that receives notification of Debarment may appeal to the
Business Equity Board by giving written notice within ten (10) days from the date of
receipt of notice of Debarment to the City Manager and the Business Equity Board of its
request for an appeal of the Debarment.
§20-374 APPEAL.
(a) The Business Equity Board shall conduct a hearing within thirty (30) days from
the date of receipt of the request for any appeal of this Article, unless the appellant requests an
extension of time. The Business Equity Board will notify the appellant of the hearing time and
location.
(1) The appellant shall be afforded an opportunity to appear with counsel if
they so desire, submit documentary evidence, and confront any witness that the City
presents at the hearing.
(2) The Business Equity Board shall render its decision not more than thirty
(30) days after the hearing and send a certified notice to the appellant.
(3) If the Business Equity Board upholds the sanctions, the appellant may
appeal to the City Manager within ten (10) days from the date of receipt of the Business
Equity Board's decision by giving written notice to the City Manager. The City Manager
has the final determination whether to uphold the sanctions assigned by the Business
Equity Board.
Ordinance No. Page 21 of 22
§20-375 SUNSET DATE
(a) This Article shall terminate on December 31, 2030 unless reauthorized by City
Council.
§§20-376 - 20-382 RESERVED.
Ordinance No. Page 22 of 22