HomeMy WebLinkAboutIR 7903 REVISED NUMBER
R
INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 7903
PTE
March 28, 1995
1' ogIFOR T
k o the Mayor and MeImbers of the City Council
Subject: PROPOSED MINORITY BUSINESS ENTERPRISE (MBE) AND
WOMEN BUSINESS ENTERPRISE (WBE) ORDINANCE
On October 4, 1994, the Disadvantaged Business Enterprise Advisory Committee (DBEAC)
provided the City Council with a recommended MBE and WBE Ordinance. At the direction of
the City Council, subsequent meetings between the DBEAC; the Law Department and the City
Manager's staff were held to discuss areas of contention in the recommended ordinance. The
attached ordinance is the result of those meetings and the areas of concern have been addressed.
This ordinance establishes the basis for implementing a City-wide program, based on the
findings of the Availability and Disparity Study and the Public Hearing, which will meet legal
scrutiny and provide the opportunities for increased MBE and WBE participation on City
procurement.
Most of the day-to-day operating procedures recommended in the October 4, 1994 document will
become an Administrative Regulation, written by the City Manager, with the advice and counsel
of the DBEAC and reviewed by the Law Department.
Please review the attached ordinance. If there are no changes, it will be presented on the April
4, 1995 City Council agenda for your consideration.
Z 4156b Terrell
City Manager
BT:cmj
Attachment
ISSUED BY THE CITY MAN4r,;=R.—,. — —
ORDINANCE NO.
REPEALING ALL MINORITY AND WOMEN BUSINESS ENTERPRISE
POLICIES AND DISADVANTAGED BUSINESS ENTERPRISE POLICIES
PREVIOUSLY ADJUSTED; 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; ADOPTING THE U.S. SMALL
BUSINESS ADMINISTRATION'S DEFINITION FOR A SIZE STANDARD;
ESTABLISHING SEPARATE GOALS FOR MINORITY BUSINESS
ENTERPRISES AND WOMEN BUSINESS ENTERPRISES IN THE
SPECIFIC AREAS OF CONSTRUCTION, PROFESSIONAL SERVICES
AND PURCHASING; ESTABLISHING PROCEDURES FOR PROJECT
SPECIFIC GOALS; PROVIDING GENERALLY FOR THE PROCEDURES
TO BE FOLLOWED IN THE BID/PROPOSAL PROCESS; REQUIRING
BIDDERS TO SUBMIT DOCUMENTATION OF COMPLIANCE IN ORDER
TO BE RESPONSIVE TO BID/PROPOSAL SPECIFICATIONS;
ESTABLISHING WAIVER OF GOALS PROCEDURES; ALLOWING FOR
DEBARMENT FOR MISREPRESENTATION OF FACTS AS IT RELATES
TO COMPLIANCE; PROVIDING SEVERABILITY CLAUSE; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council commissioned an Availability/Disparity Study (Study)
conducted by Browne, Bartz & Coddington, Inc. (BBC) and a Public Hearing (Hearing)
conducted by Carl Anderson, Esq, 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 Study and Hearing 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, 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 Study and the Hearing determined that race-neutral alternatives for
enhancing minority and women business enterprise contracting are not completely
sufficient; and
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, 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 N.
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.
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
above the present low level to one more comparable to their availability in the Fort Worth
Marketplace. The City Manager shall set an annual goal for MBE and WBE participation
in City procurement activities, based upon the availability within the Marketplace. The
initial goals, based upon availability, shall be thirteen percent (13%) for minority
businesses and twelve percent (12%) for women businesses and shall be reviewed as
provided for elsewhere herein. These goals are not quotas.
SECTION 3.
The provisions of this ordinance shall apply to all contracts awarded by the City,
except as may be hereafter specifically exempted, and shall be liberally construed for
the accomplishment of its policies and purposes. Specific goals shall be established in
the areas of construction, professional services and purchases of other goods and
services. Goals may be set on individual projects based on the type of work or services
to be performed, or goods to be acquired and the availability of minority and women
4 businesses in the City's Marketplace.
-2-
SECTION 4.
The provisions of this ordinance shall be considered in determining the
responsiveness to specifications of offerors to the bid/proposal. The City shall consider
the offeror's responsiveness to this ordinance in the evaluation of bids/proposals and
shall award contracts to the lowest responsible offeror meeting the specifications,
inclusive of compliance to this minority and women business enterprise ordinance.
SECTION 5.
Debarment procedures shall be established for firms willfully misrepresenting the
facts in compliance with this ordinance to the City. The City has the right to withhold
payments otherwise due for failure to comply with the requirements of this ordinance.
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.
SECTION 7.
The provisions of this ordinance from the date, of adoption shall supersede all
previous City Council Policies affecting minority and women business enterprise and
disadvantage business enterprises.
SECTION 8.
The City Manager, with the advice and counsel of the Disadvantaged Business
Enterprise Advisory Committee ("DBEAC") in accord with City of Fort Worth Resolution
No.1148, 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, at least every three (3) 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.
-3-
SECTION 11.
This ordinance shall take effect and be in full force and effect from and after its
' passage; 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:
City Attorney
Date:
ADOPTED:
EFFECTIVE:
t
-4-
ATTACHMENT I
I. DEFINITIONS:
1. "Bidder"" means any person, firm, corporation, or partnership which submits a bid
or proposal to provide labor, goods or services to the City where City funds are
expended. The term includes.the term "Offeror" as well as offers received from
providers of professional services.
2. "Certified" means those firms, within the Marketplace, that are certified by either
the North Central Texas Regional Certification Agency (NCTRCA) or the Texas
Department of Transportation (TxDOT), highway division.
3. "City" means the City of Fort Worth, Texas.
4. "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.
5. "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".
6. "Contract Officer" means the person employed by the City to oversee the
performance of the contract.
7. "Contracting Department" means the department responsible for payment of
contract obligations.
8. "Contractor" means the person, firm, corporation, or partnership with whom the
City has entered into an agreement. Includes the terms "Vendor" and "Prime
Contractor".
9. "Coordinator" means the administrator of the MBE/WBE Office.
10. "Good Faith Effort" means having: absence of malice or any intentions to
deceive; good intentions and sincerity to meet the goals of this ordinance.
Documentation submitted by the bidders to explain why its good and honest
efforts did not meet or exceed the stated MBE/WBE goals. Compliance with each
of the following is required for a Good Faith Effort:
10.1. List each and every subcontracting and/or supplier opportunity for the
completion of this project.
10.2. Obtain a current (less than two (2) months old from the bid open date) list
of MMBE subcontractors and/or suppliers from the City's MMBE Office.
10.3. Attend the pre-bid conference, if scheduled by the City, and attempt to
utilize M/WBEs that attended.
10.4. Solicit bids from M/WBEs, within the subcontracting and/or supplier areas
previously listed, at least ten days prior to bid opening by mail.
10.5. Solicit bids from M/WBEs, within the subcontracting and/or supplier areas
previously listed, at least ten days prior to bid opening by telephone.
10.6. Solicit bids from M/WBEs, within the subcontracting and/or supplier,areas
previously listed, at least ten days prior to bid opening by advertisement in
a local newspaper.
10.7. Pro vide plans and specifications or information regarding the location of
plans and specification to M/WBEs.
10.8. Submit documentation if MIWBE bids were rejected on the basis of
quotation not being commercially reasonable, qualifications, etc.
Note: If a SIC code list of M/WBEs is five or less, the bidder must contact the entire list to be
in compliance with 10.5 and 10.6. If a SIC code list of M/WBEs is more than five, the
bidder must contact at least two-thirds of the list but not less than five to be in compliance
with 10.5 and 10.6.
Note: Bidders who continuously list the same M/WBEs when contact has. previously been
unsuccessful as result of disconnected numbers or returned mail, will not be deemed in
compliance with the Good Faith Effort requirements.
11. "Joint Venture" means an association of two or more persons or businesses to
carry out a single business enterprise for profit for which purpose they combine
their property, capital, skills, knowledge and management in an agreed to
proportionate share.
12. "Marketplace" means the geographic market area represented by the Fort Worth/
Dallas Consolidated Metropolitan Statistical Area.
13. "Minority" means a citizen of the United States or lawfully admitted permanent
resident who is Asian-American, American Indian, Black or Hispanic.
14. "Minority Business Enterprise" is defined as a qualified business concern
currently doing business and/or located in the Marketplace area meeting the
following criteria:
a. which 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. whose management and daily business operations are controlled by one
or more minority persons who own it; and
C. meeting the size standards set forth by SBA.
15. "Procurement" means the buying, renting, leasing or otherwise obtaining or
acquiring any supplies, materials, equipment or services.
16. "Professional Services" means services which require predominantly mental or
intellectual labor and skills, includes, but is not necessarily limited to, architects,
engineers, surveyors, doctors, attorneys, and accountants.
17. "Project Manager" see Contract Officer.
18. "Purchasing" means the buying, renting, leasing or otherwise obtaining or
acquiring any supplies, materials, equipment or services excluding construction
and professional services previously defined.
19. "Qualified" means an individual or business entity having previously performed
or received training in the work, industry or profession required.
20. "Size Standard" is the average annual gross receipts for a company and its
affiliates for the previous three (3) fiscal years which must not exceed the
amounts as defined by the United States Small Business Administration's (SBA)
standard industry classification (sic) codes. These codes are outlined in the most
recent edition of SBA 49 CFR 23.62, Appendix B and 13 CFR 121.401-407 and
601.
21. "Subcontract" means an agreement between the contractor and another
business entity for the performance of work.
22. "Women Business Enterprise" is defined as a qualified business concern
currently doing business and/or located in the Marketplace area meeting the
following criteria:
a. which 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. whose management and daily business operations are controlled by one
or more women who own it.
C. meeting the size standards set forth by SBA.
-7-
IL PROGRAM GOALS
OP, (A) City-wide goals for the utilization of minority business enterprises (MBE) and
women business enterprises (WBE) shall be reviewed annually by the City
Council.
(1) The City Manager shall, on or before October 31 of each year, present an
annual report on MBE and WBE utilization and, based on availability of
MBE/WBEs and the City's most recent goals attainment and with the
advice and counsel of the DBEAC, set goals for the remainder of the
current fiscal year.
(2) The annual goals shall be reasonable and shall be established by the City
Manager based upon the availability of MBE/WBE in the Marketplace.
(3) These goals shall be expressed in terms of percentages of the total dollar
value of all contracts to be awarded by the City, and shall be established
separately for categories of construction, professional services, and
purchasing as well as any other categories that the City Council or City
Manager deem appropriate.
(B) Individual project goals shall be set by the MNVBE Office in collaboration with the
Contract Officer and Risk Management (where appropriate) prior to solicitation.
These project goals 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 MBE/WBE in the identified subcontracting and/or
materials opportunities in the Marketplace.
(C) MBE/WBE participation shall be counted toward meeting MBE and WBE goals in
accordance with the following provisions:
(1) For the purpose of determining compliance with the goals requirements
established in this ordinance, businesses will be counted as MBE and WBE
only when they have been certified as such prior to award of the bid or
proposal.
(2) Any business(es) listed by an offeror which is not certified prior to award
of bid/proposal will have that amount of participation deducted from the
total MBE/WBE utilization in order to determine the offeror's
responsiveness. It is the responsibility of the offeror to secure additional
certified or certifiable MBENVBE participation before responsiveness to this
ordinance is determined.
(3) The offeror may count toward its MBE or WBE goals first and second tier
MBE and WBE subcontractors and/or suppliers.
(4) The offeror may count toward its MBE or WBE goal only expenditures to
MBE and WBE that perform commercially useful functions in the execution
of a contract. An MBE or WBE is considered to perform a commercially
useful function when:
a) 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; and
b) when the firm receives due compensation as agreed upon for the
work performed.
(5) Regardless of whether an arrangement between the contractor and the
MBENVBE represents standard industry practice, if the arrangement erodes
the ownership, control or independence of the MBE/WBE or does not
meet the commercially useful function requirement, the offeror shall receive
no credit toward the goals.
(6) An offeror may count toward its MBE or WBE goal a portion of the total
dollar value of a contract with a joint venture equal to the percentage of
MBE or WBE participation in the joint venture. The MBE or WBE involved
OPP11111 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.
(7) Except for joint ventures, all prime contractors, whether same be majority
firms, MBE or WBE, shall comply with this ordinance in order to be
considered responsive.
(8) The bidder may not count toward the goal any agreements with MBE or
WBE that are not located within the Marketplace or otherwise do not meet
the guidelines as set forth in this section.
Ill. MBE AND WBE UTILIZATION REQUIREMENTS
(A) In addition to the requirements set forth elsewhere, bid conditions and requests
for proposals shall include a statement of both MBE and WBE goals established
for the project.
-9-
(B) Bid conditions, requests for proposals, and all other specifications for contracts
to be awarded by the City shall require that offerors make a good faith effort to
subcontract with or purchase supplies from MBE and WBE. Such specifications
shall require the offeror to meet or exceed the stated goals or submit
documentation of GFE for all contracts of $25,000 or more to permit a
determination of compliance with the specifications.
(C) Construction and Professional Services contracts (estimated cost of $25,000 or
more) and Purchasing contracts (estimated cost of $15,000 or more) shall be
awarded and administered in accordance with the following standards and proce-
dures:
(1) Competitive bids shall include the MBE and WBE specifications in the bid
specifications. MBE and WBE specifications consist of the SPECIAL
INSTRUCTIONS TO BIDDERS, AFFIDAVIT STATEMENT, MBE/WBE
UTILIZATION FORM, PRIME CONTRACTOR WAIVER FORM and the
GOOD FAITH EFFORT FORM.
(a) The AFFIDAVIT STATEMENT must be submitted with the bid on
bid opening date.
(b) The MBENVBE UTILIZATION FORM, PRIME CONTRACTOR
WAIVER FORM and/or the GOOD FAITH EFFORT FORM must be
submitted to the contracting department no later than 5:00 p.m., five
(5) City business days after bid opening date.
(c) Competitive bids that equal or exceed the MBE and WBE project
goals, must submit the MBENVBE Utilization Form.
(d) Competitive bids that do not have subcontracting and/or supplier
opportunities must submit the Prime Contractor Waiver Form.
(e) Competitive bids that have subcontracting and/or supplier
opportunities but do not include both MBE and WBE participation
in an amount which equals or exceeds the MBE and WBE project
goals, must submit the Good Faith Effort (GFE) documentation.
(f) 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 WBE specifications, shall
render the bid non-responsive.
(2) Responses to requests for proposals shall include a section which identify
the particular MBE and WBE to be utilized in performing the contract.,
Specify for each; the estimated percentage of the MBENVBE participation,
the type of work to be performed by the MBE or WBE, and such
_10-
information as may be reasonably required to determine the
responsiveness to the request for proposal, except where prohibited by
law. Responses that do not meet or exceed the MBE and WBE utilization
goals, as required by the request for proposal, must submit a GFE
explanation. Failure to include such GFE explanation shall render the
response non-responsive.
(3) The Good Faith Effort documentation shall demonstrate the Offeror's
commitment and honest efforts to utilize MBE and WBE. 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. Any willful
misrepresentation of facts on the documentation submitted will constitute
a basis for classification as non-responsive and possible debarment.
(4) The contracting department may request the MBE/WBE Office to waive the
goal requirements of this subsection, or to reduce the amount of the goals,
for either or both MBE/WBE, in accordance with the provisions of the
Exceptions and Waivers section.
(D) The City Manager, with the advice and counsel of the DBEAC in accord with City
of Fort Worth Resolution No. 1148, shall adopt regulations governing the
purchase of goods and services under $15,000.
(E) In addition to such other requirements as may be set forth elsewhere, the
following shall apply to construction, professional service, discretionary service,
and applicable purchasing contracts awarded by the City:
(1) Contracts shall incorporate this ordinance by reference, and shall provide
that the failure of any bidder, contractor or subcontractor to comply with
this ordinance shall be a material breach of contract.
(2) During the term of any contract awarded, any unjustified failure to comply
with the levels of MBE and WBE participation identified in the bid or
proposal shall be considered a material breach of contract.
(3) Contracts shall require that during the term of the contract, the contractor
shall:
(a) Fulfill the MBE and WBE participation commitments submitted with
the bids or proposal;
(b) Continue to make every effort to utilize _MBEs and WBEs ; and
(c) Maintain records reasonably necessary for monitoring their
compliance with the provisions of this ordinance.
(4) During the term of any contract, if a contractor -finds it necessary to
change, add or delete MBE and/or WBE subcontractors, the contractor
shall submit a Request for Additions or Deletions to Original Certified List
of Subcontractors form for approval by the MBENVBE Office.
(5) Whenever contract, amendments, change 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, amendment,
change orders, or extra work order.
(a) If the amendment, change order, or extra work affects the
subcontract of an MBE or WBE, such MBE or WBE shall be given
the opportunity to perform such amendment, change order or extra
work.
(b) If the amendment, change order or extra work is not covered by any
subcontractor performing like or similar work, and the amount of
such amendment, change order or extra work exceeds ten percent
(10%) of the original contract amount, the contractor shall comply
with the provisions of this ordinance with respect to such
amendment, change order, or extra work.
IV. EXCEPTIONS AND WAIVERS
(A) If a bidder is unable to comply with the goal requirements established in the
Program Goals section of this ordinance, such bidder shall submit one of the two
forms listed below within the allotted time.
(1) A Prime Contractor Waiver Form (Attachment 1 B) is submitted if the bidder
will perform the entire contract without subcontractors or suppliers.
(2) A Good Faith Effort Form (Attachment 1C) is submitted if the bidder has
subcontracting and/or supplier opportunities but was unable to meet or
exceed the project MNVBE goals. The bidder will submit requested
documentation which demonstrates a good faith effort to comply with the
goals requirements as described in the Program Goals section above.
(B) If, after award of a contract, the contractor is unable to utilize the MBE or WBE
listed in the bid submittal, the contractor must seek substitute MBE or WBE to
fulfill his/her contractual agreement.
(1) The substitution must be approved by the MBE/WBE Office, per
procedures outlined in the Program Goals section of this Ordinance.
-12-
(2) If, after reasonable good faith efforts, the contractor is unable to secure a
substitute, a Post-Award Waiver letter may be submitted to the MBE/WBE
office. The request shall document the reasons for the contractor's inability
to fulfill his/her contractual agreement.
(3) If the request is denied, the contractor may appeal the denial to the City
Manager whose decision will be final.
(C) A contracting department may request the MBE/WBE Office to waive or modify
the goal requirements for MBE and/or WBE by submitting a Departmental Waiver
Form in writing, prior to solicitation of bids or proposals. The MBE/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 business other than the bidder or
proposer infeasible; or
(2) A public or administrative emergency exists which requires the goods or
services to be provided with unusual immediacy; or
(3) Sufficient MBE and WBE providing the services required by the contract
are unavailable in the market area of the project, 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.
(5) Whenever the MBE/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.
V. PROGRAM ADMINISTRATION
(A) The City Manager, with the advice and counsel of the DBEAC in accord with City
of Fort Worth Resolution No. 1148, is authorized to establish and implement the
regulations set forth in this ordinance. The MBE/WBE Office shall be responsible
for the overall administration of the City's MBE and WBE Program, and its duties
and responsibilities shall include:
(1) Recommending rules and regulations to effectuate this ordinance;
(2) Maintaining a current listing of certified WBE and MBE for distribution
internally and externally on contracts;
-13-
(3) Providing information and needed assistance to MBE and WBE 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 and women's
business enterprises;
(7) Making recommendations to appropriate City staff regarding methods to
further the policies and goals of this ordinance;
(8) Determining MBEANBE compliance on contracts before they are submitted
to the City Council for award;
(9) Maintaining accurate contract performance reporting system; and
(10) Compiling a report reflecting the progress in attaining the City's annual
goals; quarterly and annually,
(B) It shall be the responsibility of the contracting department to ensure that bids or
proposals emanating from the department 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 and WBEs have the maximum opportunity to participate on City
contracts:
(a) The advertisements for formal bids required to be advertised
according to statute shall appear in minority and women-targeted
media, no less than 30 days before bids are due for specific
contracting opportunities;
(b) A written notification shall be sent to minority and women trade
associations, contractor's associations, and minority and women
chambers of commerce about the availability of formally advertised
0/1"0 contracting opportunities no less than 30 days before bids are due;
-14-
(c) All contract solicitations shall include the MBE and WBE policy;
(d) All contracting opportunities shall be evaluated in an effort to divide
the total requirements of a contract to provide reasonable
opportunities for MBE and WBE;
(e) For construction contractor, establish procedures to ensure that all
contractors submitting correct invoices are paid twice a month and
that subcontractors are paid within five (5) business days after
receipt of payment;
(f) Establish guidelines to ensure that a notice to proceed is not issued
until signed letters of intent or executed agreements with the MBE
and WBE have been submitted;
(g) Ensure that all required statistics and documentation are submitted
to the MBE/WBE Office as requested; and
(h) If circumstances prevent the contracting department from meeting
the thirty-day advertising and notification requirements, the
contracting department shall perform extensive outreach to MBE
and WBE associations or other relevant organizations to inform
them of the contracting opportunity.
VI. CERTIFICATION
The City will recognize MBE and WBE that are certified by the Texas Department of
Transportation (TxDOT), highway division, or the North Central Texas Regional
Certification Agency (NCTRCA).
VII. CONTRACT MONITORING, REPORTING, AND COMPLIANCE
(A) The MBENVBE 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 and WBE utilization,
the MBE/WBE Office shall notify the contracting department and the contractor.
The MBE/WBE Office shall attempt to resolve the noncompliance through
conciliation. If the noncompliance cannot be resolved, the Coordinator 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 ordinance.
-15-
(B) Whenever the MBE/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 noncompliance shall be transmitted to the
contracting department, and the MBE/WBE Office shall attempt to resolve any
noncompliance through conference and conciliation. Should such attempt fail to
resolve the noncompliance, the Coordinator shall transmit a copy of the -findings
of noncompliance, with a statement that conciliation was attempted and failed, to
the City Manager who shall take appropriate action to secure compliance.
(C) The MBE/WBE Office may require such reports, information, and documentation
from contractors, bidders, 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, within ten (10) days after the notice
of noncompliance.
(D) Contracting departments shall maintain accurate records for each contract
awarded, including 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 bids from MBE and WBE, identifying for each its dollar value, the nature
of the goods or services provided, and the name of the subcontractor.
(E) The City Manager, with the advice and counsel of the DBEAC 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 goals established by this
ordinance, together with an identification of problems and specific recommenda-
tions for improving the City's performance.
VIII. DEBARMENT
(A) The willful misrepresentation of facts by an offeror will 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 three (3) years.
(B) The MBE/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.
(C) 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.
(D) 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.
-16-
(E) The Offeror will be afforded an opportunity to appear with Counsel if they so
desire, submit documentary evidence, and confront any person the City presents.
(F) The Appeal Board will render its decision not more than thirty (30) days of the
hearing and send a certified notice to the Offeror.
(G) If the Appeal Board upholds the original debarment, the Offeror may appeal to the
City Council within ten (10) days from the date of receipt of the Appeal Board's
decision by giving written notice to the City Manager.
(H) 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.
(1) 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.
IX. 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.
-17-