HomeMy WebLinkAboutIR 8134 INFORMAL REPORT TO CITY COUNCIL MEMBERS No. 8134
OFP To the Mayor and Members of the City Council
May 26, 1998
Subject: MINORITY AND WOMEN BUSINESS ENTERPRISE ORDINANCE
In June 1995, the City Council approved the Minority and Women Business Enterprise
(M/WBE) Ordinance 11923. The ordinance is based upon the Availability and Disparity Study
(Study) conducted by BBC in 1993.
The purpose of the Ordinance is to remedy the effects of past underutilization in the
marketplace by increasing the use of M/WBEs above the disparity findings identified in the
Study.
The Ordinance is comprised of the following major features: An overall City goal of 25%,
Tracking M/WBE participation in three areas; purchases (goods and services), construction
and professional services, Setting of a per project goal on applicable bids/proposals, Good
Faith Effort compliance or Waiver compliance, A rapid pay mechanism for work completed,
Internal and External monitoring procedures and Debarment procedures,
First, the City Council will be requested to approve the attached amendments to Ordinance
11923. These amendments were initially presented to the City Council on March 3, 1998.
Since that time, there have been numerous meetings with interested groups, which have
resulted in minor changes to the amendments. These amendments have also been
presented to the Minority and Women Business Enterprise Advisory Committee.
Second, there will also be a request for the City Council to continue the amended Ordinance
through December of this year while the City hires a consultant to conduct an updated
Availability and Disparity Analysis of its program.
The current Ordinance requires the City Council to regularly, at least every three years,
determine whether there is a continuing need for a M/WBE program, make relevant findings,
and, if necessary, repeal in whole or in part or enact appropriate amendments to this
Ordinance. The Study will provide the statistical and legal analysis necessary for this review.
City staff is in the process of negotiations for a Study update. Similar to the first Study, the
City hopes to share 'the cost with the "T" and D/FW Airport. The cost of the Study will be
included in the FY 98-99 Budget proposal. An M&C with the two above requests will be
presented on June 2, 1998.
..........
,Bob Terrell
City Manager
ISSUED BY THE CITY MANAGER FORT WORTH,TEXAS
Draft May 1, 1998
1 ORDINANCE NO.
2
r�/ `3 AN ORDIANCE AMENDING CITY OF FORT WORTH
4 ORDINANCE NO. 11923 BY AMENDING SECTIONS 2A AND 8,
5 AND AMENDING ATTACHMENT 1; PROVIDING A
6 SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE
7 DATE.
8
9 BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS,
10 THAT:
11 SECTION 1.
12
13 Section 2 of City of Fort Worth Ordinance No. 11923 is hereby amend and after
14 having been amended shall be and read as follows:
15
16 The ultimate goal of this ordinance is to remedy the effects of past
17 underutilization in the Marketplace by increasing the use of minority and
18 women business enterprises above the present low level to one more
19 comparable to their availability in the Fort Worth Marketplace. The City
20 Manager shall set an annual goal for MBE/WBE participation in City
21 procurement activities, based upon the availability within the Marketplace.
22 The goals, based upon availability, shall be thirteen percent (13%) for
23 minority businesses and twelve percent (12%) for women businesses and
24 shall be reviewed as provided for elsewhere herein. These goals are not
�r, ,5 quotas.
46
27 SECTION 2.
28
29 Section 3 of City of Fort Worth Ordinance No. 11923 is hereby amend and after
30 having been amended shall be and read as follows:
31
32 The provisions of this ordinance shall apply to all contracts awarded by the
33 City, except as may be hereafter specifically exempted. Where contracts
34 involve the expenditure of federal or state funds, the state or federal policy
35 related to MBE/WBE or DBE participation may take precedence over this
36 ordinance. The provisions of this ordinance shall be liberally construed for
37 the accomplishment of its policies and purposes. Specific goals shall be
38 established in the areas of construction, professional services and
39 purchases of other goods and services. Goal may be set on individual
40 projects based on the type of work or services to be performed, or goods
41 to be acquired and the availability of minority and women businesses in
42 the City's Marketplace.
43
44 SECTION 3.
45
46 Attachment I to City of Fort Worth Ordinance No. 11923 is hereby amend and
�7 after having been so amended shall be and read as follows:
49
50
Draft May 1, 1998
1 ATTACHMENT 1
2 I. DEFINITIONS
Aw�
J
3
4 1. "Applicable Contract" means any contract of $25,000 or more for construction
5 projects and professional services and $15,000 or more for purchase
6 agreements, as well as any other contracts that the City Council or City Manager
7 deem appropriate.
8
9 2. "Certified" means those firms, within the Marketplace, that have been determined
10 to be a bonafidle minority or women business enterprise by either the North
11 Central Texas Regional Certification Agency (NCTRCA), or the Texas
12 Department of Transportation (TxDOT), highway division. In the event of denial
13 of certification by either of these entities, the City reserves the right to grant its
14 own certification for use in City contracts.
15
16 3. "City" means the City of Fort Worth, Texas.
17
18 4. "City business day" means Monday through Friday, inclusive, excluding legal
19 holidays. Legal holidays shall be observed as prescribed by the City Council for
20 observance as follows:
21
22 New Year's Day January 1
23 M. L. King, Jr. Birthday Third Monday in January
24 Memorial Day Last Monday in May
25 Independence Day July 4
26 Labor Day First Monday in September
27 Thanksgiving Day Fourth Thursday in November
28 Thanksgiving Friday Fourth Friday in November
29 Christmas Day December 25
30
31 When one of the above named holidays falls on a Saturday, the holiday shall be
32 observed on the preceding Friday. When one of the above named holidays falls
33 on a Sunday, the holiday shall be observed on the following Monday.
34
35 5. "Construction" means the erection, rehabilitation, alteration, conversion, extension,
36 demolition, improvement, remodeling or repair to any real property, including
37 streets, storm drains and facilities providing utility service owned by the City.
38
39 6. "Contract" means a binding agreement whereby the City either grants a privilege or
40 is committed to expend or does expend its funds or other resources for or in
41 connection with a) construction of any public improvement, and b) purchase of
42 any services (including professional services). The term includes "purchase
43 order".
44
45 7. "Contract Officer" means the person employed by the City to oversee the
46 performance of the contract.
47
48 8. "Contracting Department" means the department responsible for payment of
49 contract obligations.
50
2
Draft May 1, 1998
1 9. "Contractor" means the Offeror with whom the City has entered into an agreement.
2 Includes the terms "Vendor" and "Prime Contractor".
4 10."Coordinator" means the administrator of the MBE/WBE Office.
5
6 11."Goal" means the percentage of minority business enterprise and/or women
7 business enterprise participation on an applicable project as determined by the
8 City, based on the availability of such businesses in the marketplace and the
9 subcontracting/supplier opportunities of the project.
10
11 12."Good Faith Effort" means having absence of malice or any intentions to deceive,
12 good intentions and sincerity to meet the goal of this ordinance. Documentation
13 submitted by the offeror to explain why its good and honest efforts did not meet
14 or exceed the stated Goal. Compliance with each of the following steps shall
15 satisfy the Good Faith Effort requirement absent proof of fraud,
16 misrepresentation, or intentional discrimination by the offeror:
17
18 12.1. List each and every subcontracting and/or supplier opportunity for the
19 completion of this project.
20
21 12.2. Obtain a current (not more than three (3) months old from the bid open
22 date) list of MBE/WBE subcontractors and/or suppliers from the City's
23 MBEANBE Office.
24
5 12.3. Solicit bids from MBENVBEs, within the subcontracting and/or supplier
-6 areas previously listed, at least ten calendar days prior to bid opening by
27 mail, exclusive of the day the bids are opened.
28
29 12.4. Solicit bids from MBENVBEs, within the subcontracting and/or supplier
30 areas previously listed, at least ten calendar days prior to bid opening by
31 telephone, exclusive of the day the bids are opened.
32
33 Note: A facsimile may be used to comply with either 12.3 or 12.4, but may not be used for both.
34
35 Note: If the list of MBEIWBEs for a particular subcontracting/supplier opportunity is ten or less,
36 the offeror must contact the entire list within such area of opportunity to be in compliance
37 with 12.3 and 12.4. If the list of IVIBEfWBEs for a particular subcontracting/supplier
38 opportunity is more than ten, the offeror must contact at least two-thirds of the list within
39 such area of opportunity, but not less than ten, to be in compliance with 12.3 and 12.4.
40
41 12.5. Provide plans and specifications or information regarding the location of
42 plans and specification to MBENVBEs.
43
44 12.6. Submit affidavit and/or documentation if MBE/WBE bids were rejected on
45 the basis of quotation not being commercially reasonable, qualifications,
46 etc. Documents may be requested to be produced for an in camera
47 inspection.
10"
50
3
Draft May 1, 1998
1 13. "Joint Venture" means an association of two or more persons or businesses to
2 carry out a single business enterprise for profit for which purpose they combine
3 their property, capital, skills, knowledge and management in an agreed to
4 proportionate share.
5
6 14. "Managing Department" means the department responsible for overseeing the
7 day to day completion of the contract.
8
9 15. "Manufacturer" means one that manufactures a product by hand or machinery
10 suitable for uses; the process of making wares.
11
12 16. "Marketplace" means the geographic market area as defined in the Availability
13 and Disparity Study represented by the counties of Tarrant, Parker, Johnson,
14 Collin, Dallas, Denton, Ellis, Kaufman and Rockwall.
15
16 17. "Minority" means a citizen of the United States or lawfully admitted permanent
17 resident that is Asian American, American Indian, Black or Hispanic.
18
19 18. "Minority Business Enterprise" is defined as a qualified business concern
20 located in the Marketplace or providing proof of doing business in the
21 Marketplace at the time of bid opening or the opening of responses to requests
22 for proposals, meeting the following criteria:
23
24 a. which is at least 51 percent owned by one or more minority persons, or,
25 in the case of any publicly owned business, at least 51 percent of the stock
26 is owned by one or more minority persons; and
27
28 b. whose management and daily business operations are controlled by one or
29 more minority persons who own it.
30
31 19. "Offeror" means any person, firm, corporation, or partnership that submits a bid
32 or proposal to provide labor, goods or services to the City where funds are
33 expended, The term includes the term bidder and proposer.
34
35 20. "Procurement" means the buying, renting, leasing or otherwise obtaining or
36 acquiring any supplies, materials, equipment or services.
37
38 21. "Professional Services" means services which require predominantly mental or
39 intellectual labor and skills, includes, but is not necessarily limited to, architects,
40 engineers, surveyors, doctors, attorneys, and accountants.
41
42 22. "Project Manager" see Contract Officer.
43
44 23. "Purchasing" means the buying, renting, leasing or otherwise obtaining or
45 acquiring any supplies, materials, equipment or services excluding construction
46 and professional services previously defined.
47
48 24."Qualified" means an individual or business entity having previously performed or
49 received training in the work, industry or profession required.
50
4
Draft May 1, 1998
1 25. "Regular Dealer" is defined as a firm that owns, operates, or maintains a store,
2 a warehouse, or other establishment in which the materials or supplies required
%,,3 for the contract are bought, kept in stock, and are regularly sold retail or
4 wholesale.
5
6 25."Subcontract" means an agreement between the contractor and another business
7 entity for the performance of work.
8
9 26."Subcontract/Supplier Opportunity" means an area where there is more than one
10 MBE or WBE subcontractor/supplier in the market place.
11
12 27. "Tier" means the level of subcontracting below the prime contractor/consultant,
13 i.e., a direct payment from the prime contractor to a subcontractor is considered
14 1st tier, a payment by a subcontractor to its supplier is considered 2nd tier.
15
16 28. "Women Business Enterprise" is defined as a qualified business concern
17 located in the Marketplace or provide proof of doing business in the Marketplace
18 at the time of bid opening or the opening of responses to requests for proposals,
19 meeting the following criteria:
20
21 a. which is at least 51 percent owned by one or more women, or, in the case of
22 any publicly owned business, at least 51 percent of the stock is owned by one or
23 more women; and
24
p
r5 b. whose management and daily business operations are controlled by one or
.6 more women who own it.
27
28 11. PROGRAM GOAL
29
30 A. A Citywide goal for the utilization of minority business enterprises (MBE) and women
31 business enterprises (WBE) shall be reviewed and approved annually by the City
32 Council.
33
34 1. The City Manager shall, on or before October 31 of each year, beginning October
35 31, 1996, conduct an analysis of the availability of MBEs and WBEs and present
36 to the City Council an annual report on MBE/WBE availability and utilization.
37
38 2. Based on the availability of MBE/WBEs in the Marketplace and the City's most
39 recent goal attainment and with the advice and counsel of the MWBEAC, the City
40 Manager shall recommend to the City Council a reasonable goal for the
41 remainder of the current fiscal year.
42
43 3. The goal shall be expressed in terms of a percentage of the total dollar value of
44 all applicable contracts awarded by the City. Goals shall be established
45 separately for categories of construction, professional services, and purchasing
46 as well as any other categories that the City Council or City Manager deems
el7 appropriate.
,8
5
Draft May 1, 1998
1 B. Individual project goal shall be set by the MBE/WBE Officp in collaboration with the
2 Contract Officer and Risk Management (where appropriatd) prior to solicitation. The
3 project goal shall be reasonable and shall be based upon:
4
5 1. Specific subcontracting and/or materials opportunities required to
6 complete the project, and
7
8 2. The availability of MBE/WBE in the identified subcontracting and/or
9 materials opportunities in the Marketplace.
10
11 C. The City Manager, with the advice and counsel of the MWBEAC in accord with City
12 of Fort Worth Resolution No. 1148, shall adopt regulations governing the purchase
13 of goods and services under $15,000.
14
15 Ill. COUNTING MBEIWBE PARTICIPATION
16
17 A. MBE/WBE participation shall be counted toward meeting Goal in accordance with
18 the following provisions:
19
20 1. For the purpose of determining compliance with the goal requirements
21 established in this ordinance, businesses will be counted as MBE or WBE only
22 when they have been certified as such prior to a recommendation for award
23 being made to the City Council.
24
25 a) Any business listed by an offeror that is not certified at the time of
26 bid/response opening must file an application for certification within a
27 reasonable time for the City to consider the dollar amount towards meeting
28 the goal.
29
30 b) If a business described in the immediate subparagraph fails to submit an
31 application for certification within a reasonable time, or if the business is
32 denied certification, the offeror shall be afforded five (5) City business days to
33 secure additional certified/certifiable MBE/WBE participation, starting the next
34 City business day following the day the written notification was received from
35 the Managing Department,
36
37 c) Evidence of the additional certified/certifiable MBE/WBE participation shall
38 be delivered to and received by the Managing Department within five (5) City
39 business days after the notification was received by the offeror, exclusive of
40 the date that the notification was received.
41
42 2. Except as provided for in paragraph B below, if the offeror is ruled non-
43 responsive to the requirements of this ordinance, the Managing Department will
44 provide written notification to the offeror stating the specific basis for the ruling.
45 The offeror may submit documentation that it will either meet or exceed the
46 stated goal, and may be considered for an award of contract.
47 "AN
48 3. If the offeror is ruled non-responsive solely for its failure to identify a
49 subcontract/supplier opportunity and that opportunity is less than three (3%)
50 percent of the total bid, the offeror may submit documentation that an MBE/WBE
6
Draft May 1, 1998
1 will be utilized for that subcontract/supplier opportunity, and may be considered
2 for an award of contract.
rP 3
4 4. Documentation required under either paragraph A or B above must be received
5 by the Managing Department within five (5) City business days, exclusive of the
6 date that the offeror was ruled non-responsive. If the documentation is not
7 received within the stated time, the offeror shall be deemed to have withdrawn its
8 bid. The City will not communicate with another offeror regarding award of the
9 contract until five (5) City business days after the original offer has been ruled
10 non-responsive.
11
12 5. The offeror may count toward the goal any tier of MBE or WBE subcontractors
13 and/or suppliers. It is the sole responsibility of the offeror to report and document
14 all subcontracting and/or supplier participation dollars counted towards the goal,
15 irrespective of tier level. Failure to submit documentation as required in this
16 subparagraph, shall entitle the City to withhold payments until compliance is
17 attained.
18
19 6. The offeror will be given credit toward the goal only when the MBE or WBE
20 subcontractor performs a commercially useful function. An MBE or WBE
21 subcontractor is considered to have performed a commercially useful function
22 when:
23
24 a) It is responsible for the execution of a distinct element of the work by actually
-5 performing, managing and supervising the work involved in accordance with
z6 normal business practice; and
27
28 b) When the firm receives due compensation as agreed upon for the work
29 performed.
30
31 7. The offeror will be given credit toward the MBE/WBE contract goal only when the
32 MBE or WBE supplier performs a commercially useful function. A MBE or WBE
33 supplier is considered to have performed a commercially useful function when
34 the MBE/WBE supplier is a manufacturer or a regular dealer.
35
36 8. Regardless of whether an arrangement between the contractor and the
37 MBE/WBE represents standard industry practice, if the arrangement erodes the
38 ownership, control or independence of the MBE/WBE or does not meet the
39 commercially useful function requirement, the offeror shall receive no credit
40 toward the goal.
41
42 9. An offeror may count toward its goal a portion, of the total dollar value of a
43 contract with a joint venture equal to the percentage of MBE or WBE participation
44 in the joint venture.
45
46 a) The Managing Department must receive the Joint Venture form from the
po?""7 offeror within five (5) City business days after the date of bid/proposal
-+8 opening, exclusive of the day of the bid/proposal opening, for certification by
49 the MBE/WBE Office.
50
7
Draft May 1, 1998
1 b) The MBE or WBE involved in the joint venture must be responsible for a clearly
2 defined portion of the work to be performed, equal to a share in the ownership,
3 control, knowledge, management, responsibility, risks, and profits of the joint- ,
4 venture.
5
6 10.Except for joint ventures, the prime contractor and any work performed by the
7 prime contractor is not considered for determining compliance with this
8 ordinance.
9
10 11.The offeror may not count toward the goal any agreement with a MBE or WBE
11 that does not meet the requirements of this ordinance.
12
13 IV. MBE/WBE UTILIZATION REQUIREMENTS
14
15 A. In addition to the requirements set forth elsewhere, bid conditions and requests for
16 proposals shall include a statement of the MBE/WBE goal established for the
17 project.
18
19 B. Bid conditions, requests for proposals, and all other specifications for applicable
20 contracts to be awarded by the City shall require that offerors make a good faith
21 effort (GFE) to subcontract with or purchase supplies from MBE and/or WBE firms.
22 Such specifications shall require the offeror to meet or exceed the stated goal or
23 submit documentation of GFE for all applicable contracts to permit a determination
24 of compliance with the specifications.
25
26 C. Construction and Professional Services contracts and such other contracts which
27 may be competed for under sealed proposal procedures (estimated cost of $25,000
28 or more) and Purchasing contracts (estimated cost of $15,000 or more) shall be
29 awarded and administered in accordance with the following standards and
30 procedures:
31
32 1. Competitive bids for applicable contracts shall include the MBE/WBE
33 specifications in the bid specifications. MBE/WBE specifications consist of the
34 SPECIAL INSTRUCTIONS TO BIDDERS, MBE/WBE UTILIZATION FORM,
35 PRIME CONTRACTOR WAIVER FORM, the GOOD FAITH EFFORT FORM,
36 and, if appropriate, the JOINT VENTURE FORM.
37
38 a) Competitive bids that equal or exceed the project goal must submit the
39 MBE/WBE UTILIZATION FORM.
40
41 b) Competitive bids that do not have subcontracting and/or supplier
42 opportunities must submit the PRIME CONTRACTOR WAIVER FORM.
43
44 c) Competitive bids that have subcontracting and/or supplier opportunities but
45 do not include MBE/WBE participation in an amount which equals or exceeds
46 the project goal, must submit the MBE/WBE UTILIZATION FORM and the
47 GOOD FAITH EFFORT FORM and documentation.
48
Draft May 1, 1998
1 d) Competitive bids that have subcontracting and/or supplier opportunities but
2 do not include any MBE/WBE participation must submit the GOOD FAITH
OF,%,3 EFFORT FORM and documentation.
4
5 e) The offeror shall submit the MBE/WBE UTILIZATION FORM, PRIME
6 CONTRACTOR WAIVER FORM and/or the GOOD FAITH EFFORT FORM
7 ("Documentation") as appropriate. The managing department must receive
8 the Documentation no later than 5:00 p.m., five (5) City business days after
9 the bid opening date, exclusive of the bid opening date. The offeror shall
10 obtain a receipt from the appropriate employee of the managing department
11 to whom delivery was made. Such receipt shall be evidence that the City
12 received the Documentation.
13
14 f) The submission of the applicable completed form(s) within the allotted time
15 will be considered when determining the responsiveness of the bid. Failure to
16 comply with the bid specifications, inclusive of the MBE/WBE specifications,
17 shall render the offeror non-responsive.
18
19 2. Other than responses to Requests for Proposals for those professional services
20 defined in Chapter 2254 of the Texas Government Code, responses to Request
21 for Proposals shall include a section which identifies the particular MBE and/or
22 WBE to be utilized in performing the contract.
23
24 a) Specify as to MBE or WBE, the estimated percentage of the MBE or WBE
Q5
participation, the type of work to be performed by the MBE or WBE, and such
�6 other information as may reasonably be required to determine the
27 responsiveness to the Request for Proposal.
28
29 b) Responses that do not meet or exceed the utilization goal, as required by the
30 Request for Proposal, must submit a GFE explanation. Failure to include
31 such GFE explanation shall render the response non-responsive.
32
33 3. Initial responses to requests for proposals for those professional services defined
34 in Chapter 2254 of the Texas Government Code shall not include a response to
35 the requirements of this ordinance. The City shall comply with the requirements
36 of said Chapter and rank the professional on the basis of demonstrated
37 competence and qualifications. During negotiating the contract with the highest
38 ranked professional, the professional shall respond to this ordinance in the
39 manner specified in paragraph 2(a) above.
40
41 4. The GFE documentation shall demonstrate the Offeror's commitment and honest
42 efforts to utilize MBE or WBE. The burden of preparing and submitting the GFE
43 information is on the Offeror and will be evaluated as part of the responsiveness
44 to the bid/proposal. An Offeror who intentionally and/or knowingly misrepresents
45 facts on the documentation submitted will constitute a basis for classification as
46 non-responsive and possible debarment.
,e117
a 5. The contracting department may request the MBE/WBE Office to waive the goal
49 requirements of this subsection, or to reduce the amount of the goal, in
50 accordance with the provisions of the Exceptions and Waivers section.
9
Draft May 1, 1998
1
2 V. POST-AWARD COMPLIANCE
3
4 A. In addition to such other requirements as may be set forth elsewhere, the following
5 shall apply to applicable contracts awarded by the City:
6
7 1. Contracts shall incorporate this ordinance by reference, and shall provide that the
8 contractor's violation of this ordinance shall constitute a breach of such contract
9 and result in debarment in accord with the procedures outlined in this ordinance.
10
11 2. From and after the date of bid opening, any proposed change or deletion in
12 MBE/WBE participation identified in the bid, proposal or contract shall be
13 reviewed by the MBE/WBE Office to determine whether such change or deletion
14 is justified in accord with paragraphs 3 and 4 immediately below. Any unjustified
15 change or deletion shall be a material breach of contract and may result in
16 debarment in accord with the procedures outlined in this ordinance.
17
18 3. From and after the date of bid opening, the contractor shall:
19
20 a) Make no unjustified changes or deletions in its MBE/WBE participation
21 commitments submitted with the bids, proposal or during negotiations;
22
23 b) If substantial subcontracting and/or substantial supplier opportunities arise
24 during the term of any contract when the contractor represented in its bid to
25 the City that it alone would perform the subcontracting/supplier opportunity
26 work, the contractor shall notify the City before subcontracts for work and/or '
27 supplies are let and shall be required to comply with Article I, subsections
28 12.3 and 12.4 of this Attachment 1, exclusive of the time requirements stated
29 in such subsections;
30
31 c) Maintain records reasonably necessary for monitoring their compliance with
32 the provisions of this ordinance;
33
34 d) After the first payment and beginning with the second application for payment,
35 submit required M/WBE Periodic Payment Reports, including proof of
36 payment documentation, to the MBE/WBE Office. Further, upon request of
37 the M/WBE Office, submit such other documentation as may be reasonably
38 required to verify proof of payments. Failure to submit these reports and
39 other requested information, if any, as required shall authorize the City to
40 withhold payment from 'the contractor until compliance with this ordinance is
41 attained.
42
43 4. The contractor shall submit to the MBE/WBE Office for approval a REQUEST
44 FOR APPROVAL OF CHANGE FORM if, during the term of any contract, a
45 contractor wishes to change or delete one or more MBE or WBE
46 subcontractor(s) or supplier(s).
47
48 a) Within three (3) City business days after receipt by the MBE/WBE Office,
49 exclusive of the date of receipt, the Request shall be reviewed. The Request
10
Draft May 1, 1998 -
1 shall be approved if the change or deletion is justified. The following shall
2 constitute justification for the requested change or deletion:
4 1) A MBE or WBE's failure to provide workers' compensation insurance
5 evidence as required by state law; or
6
7 2) A MBE or WBE's failure to provide evidence of general liability or other
8 insurance under the same or similar terms as contained in the contract
9 documents with limits of coverage no greater than the lower of 1) the limits
10 required of the contractor by the City; or 2) the limits contained in the
11 contractor's standard subcontract or supply agreements used on other
12 projects of similar size and scope and within the contractor's normal
13 business practice with non MBE or WBE subcontractor's or suppliers; or
14
15 3) A MBE or WBE's failure to execute the contractor's standard subcontract
16 form, if entering a subcontract is required by the contractor in its normal
17 course of business, unless such failure is due to:
18
19 i. A change in the amount of the previously agreed to bid or scope of
20 work; or
21
22 ii. The contract presented provides for payment once a month or longer
23 and the contractor is receiving payment from the City twice a month; or
24
5 iii. Any !imitation being placed on the ability of the VIBE or WBE to report
violations of this Ordinance or any other ordinance or violations of any
27 state or federal law or other improprieties to the City or to provide
28 notice of any claim to the contractor's surety company or insurance
29 company.
30
31 4) An MBE or WBE defaults in the performance of the executed subcontract.
32 In this event, the contractor shall:
33
34 i. Request bids from all MBE and/or WBE subcontractors previously
35 submitting bids for the work,
36
37 ii. If reasonably practicable, request bids from previously non-bidding
38 MBEs and WBEs, and
39
40 iii. Provide to the M/WBE office documentation of compliance with (i) and
41 (ii) above.
42
43 5) Any other reason found to be acceptable by the MBE/WBE Office in its
44 sole discretion.
45
46 NOTE: The contractor shall submit such documentation as may reasonably be requested
7 by the MBE/WBE Office to support the contractor's request. The time between the
ril request by the MBEIWBE Office for additional documentation and the delivery of
19 such documentation shall not be included within the time period that the
50 MBE/WBE Office is required to respond as stated in subparagraph (a) above.
51
Draft May 1, 1998
1 b) If the MBE/WBE Office approves the deletion pf a MBE or WBE and
2 replacement by a non-IVIBE or WBE, such approval shall constitute a post
3 award waiver to the extent of the value of the deleted subcontract,
4
5 c) If the MBE/WBE Office denies the request for change or deletion, the
6 contractor may appeal the denial to the City Manager whose decision will be
7 final.
8
9 5. Whenever contract, amendments, change orders, or e ra work orders are made
10 individually or in the aggregate, the contractor shall can ply with the provisions of
11 this ordinance with respect to the alternates, amendments, change orders, or
12 extra work orders.
13
14 a) If the amendment, change order, or extra work affects the subcontract of an
15 MBE or WBE, such MBE or WBE shall be given the opportunity to perform
16 such amendment, change order or extra work.
17
18 b) If the amendment, change order or extra work is not covered by any
19 subcontractor performing like or similar work, and the amount of such
20 amendment, change order or extra work exceeds ten percent (10%) of the
21 original contract amount, the contractor shall comply with Article 1,
22 subsections 12.3 and 12.4 of this Attachment 1 (exclusive of the time
23 requirements stated therein) with respect to such amendment, change order,
24 or extra work.
25
26 6. If the contractor in its bid included any second or lower tier subcontractor/supplier
27 towards meeting the goal, it is the responsibility of the contractor to report and
28 document all subcontracting and/or supplier participation dollars irrespective of
29 tier level. Failure to comply with the City's request to provide the required
30 documentation shall entitle the City to withhold payments (but only to the extent
31 of the Subcontractor's payments related to the MBE/WBE participation dollars
32 which are not documented) and/or to reject future bids from the contractor until
33 compliance with this ordinance is attained.
34
35 7. Upon completion of the contract and within ten (10) City business days after
36 receipt of final payment from the City, exclusive of the date the contractor
37 receives payment, the contractor shall provide the MBE/WBE Office with M/WBE
38 Final Payment Report to reflect the final participation of each subcontractor
39 and/or supplier (including non-MNVBEs) used on the project. Failure to comply
40 with the City's request to provide the required documentation shall entitle the City
41 to reject future bids from the contractor until compliance with this ordinance is
42 attained.
43
44 B. In the event a contractor is in non-compliance with either paragraph 6 or 7 above,
45 and such non-compliance is solely the result of an act or omission by an MBE or
46 WBE, the MBE/WBE Office shall consider such in determining what action, if
47 any, to take.
48
49 VI. EXCEPTIONS AND WAIVERS
50
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Draft May 1, 1998
1 A. If an offeror is unable to comply with the goal requirements established in the
2 Program Goal section of this ordinance, such offeror shall submit one of the two
°3 forms listed below within the allotted time.
4
5 1. A Prime Contractor Waiver Form (Attachment 113) is submitted if the offeror will
6 perform the entire contract without subcontractors or suppliers.
7
8 2. A Good Faith Effort Form (Attachment 1C) is submitted if the offeror has
9 subcontracting and/or supplier opportunities but was unable to meet or exceed
10 the project goal. The offeror will submit requested documentation that
11 demonstrates a good faith effort to comply with the goal requirements as
12 described in the Program Goal section above.
13
14 B. A contracting department may request the MBE/WBE Office to waive or modify the
15 goal requirements for MBE or WBE by submitting a Departmental Waiver Form, in
16 writing, prior to solicitation of bids or proposals. The MBE/WBE Office may grant
17 such a waiver or reduction upon determination that:
18
19 1. The reasonable and necessary requirements of the contract render
20 subcontracting or other participation of business other than the offeror infeasible:
21 or
22
23 2. A public or administrative emergency exists which requires the goods or services
24 to be provided with unusual immediacy; or
e1`11115
-6 3. Sufficient MBE/WBE providing the services required by the contract are
27 unavailable in the marketplace of the project, despite attempts to locate them; or
28
29 4. The application of the provisions of this ordinance will impose an unwarranted
30 risk on the City or unduly delay acquisition of the goods or services.
31
32 C. Whenever the MBE/WBE Office denies a request to waive a goal, the contracting
33 department may appeal that denial to the City Manager whose decision on the
34 request shall be final.
35
36 VII. PROGRAM ADMINISTRATION
37
38 A. The City Manager, with the advice and counsel of the MWBEAC in accord with City
39 of Fort Worth Resolution No. 1148, is authorized to establish and implement the
40 regulations set forth in this ordinance. The MBE/WBE Office shall be responsible for
41 the overall administration of the City's MBE/WBE Program, and its duties and
42 responsibilities shall include:
43
44 1. Recommending rules and regulations to effectuate this ordinance;
45
46 2. Maintaining a current listing of certified MBE and WBE firms for distribution
e7 internally and externally on contracts;
49 3. Providing information and needed assistance to MBE/WBEs to increase their
50 ability to compete effectively for the award of City contracts;
13
Draft May 1, 1998
1
2 4. Investigating alleged violations of this ordinance and making written
3 recommendations to appropriate City authorities for remedial action when
4 appropriate;
5
6 5. Developing and distributing all necessary forms, applications, and documents
7 necessary to comply with this ordinance;
8
9 6. Reviewing, on a regular basis, the progress of departments toward achieving the
10 category goals for the utilization of minority and women business enterprises;
11
12 7. Making recommendations to appropriate City staff regarding methods to further
13 the policies and goals of this ordinance;
14
15 8. Determining MBENVBE compliance on contracts before they are submitted to the
16 City Council for award;
17
18 9. Maintaining accurate contract performance reporting system,- and
19
20 1O.Compiling a report reflecting the progress in attaining the City's annual goal,
21 quarterly and annually.
22
23 B. It shall be the responsibility of the contracting department to ensure that bids or
24 proposals emanating from the department adhere to the procedures and provisions
25 set forth in this ordinance.
26
27 1. The department director or designee shall assume primary responsibility for
28 achieving the goals of this program and shall review, on a continuing basis, all
29 aspects of the program's operations to assure that the purpose is being attained.
30
31 2. The contracting department shall take the following action to ensure that MBEs
32 and WBEs have the maximum opportunity to participate on City contracts:
33
34 a) A written notification shall be sent to minority and women trade associations,
35 contractor's associations, and minority and women chambers of commerce
36 about the availability of formally advertised contracting opportunities no less
37 than 28 days before bids are due;
38
39 b) All applicable contract solicitations shall include the requirements contained in
40 this ordinance;
41
42 c) All contracting opportunities shall be evaluated in an effort to divide the total
43 requirements of a contract to provide reasonable opportunities for MBENVBE;
44
45 d) For construction and professional service contracts, establish procedures to
46 ensure that all contractors' invoices are paid twice a month and that
47 subcontractors are paid within five (5) City business days after receipt of
48 payment. A contractor's failure to make payments within five (5) City
49 business days shall authorize the City to withhold future payments from the
50 contractor until compliance with this ordinance is attained.
14
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Draft May 1, 1998
1
2 e) Establish guidelines to ensure that a notice to proceed is not issued until
flw,3 signed letters of intent evidencing receipt by the MBE/WBE or executed
f
4 agreements with the MBE/WBE have been submitted;
5
6 f) Ensure that all required statistics and documentation are submitted to the
7 MBE/WBE Office as requested; and
8
9 g) If circumstances prevent the contracting department from meeting the 28 day
10 advertising and notification requirements, the contracting department shall
11 perform extensive outreach to MBE/WBE associations or other relevant
12 organizations to inform them of the contracting opportunity.
13
14 VIII. CERTIFICATION
15
16 The City will recognize MBE/WBE that are certified by the Texas Department of
17 Transportation (TxDOT), highway division or the North Central Texas Regional
18 Certification Agency (NCTRCA). In the event of denial of certification by either of these
19 entities, the City reserves the right to grant its own certification for use in City contracts.
20
21 IX. CONTRACT MONITORING, AND REPORTING
22
23 A. The MBE/WBE Office shall monitor compliance with these requirements during the
24 term of the contract. If it is determined that there is cause to believe that a
,o
/PPP, 5 contractor or subcontractor has failed to comply with any of the requirements of this
F
,-6 ordinance, or the contract provisions pertaining to MBE/WBE utilization, the
27 MBE/WBE Office shall notify the contracting department and the contractor. The
28 MBE/WBE Office shall attempt to resolve the noncompliance through conciliation. If
29 the noncompliance cannot be resolved, the Coordinator and the contracting
30 department shall submit written recommendations to the City Manager or designee,
31 and if the City Manager concurs with the findings, sanctions shall be imposed as
32 stated in ordinance.
33
34 B. Whenever the MBE/WBE Office finds, after investigation, that a contracting
35 department has failed to comply with the provisions of this ordinance, a written
36 finding specifying the nature of the noncompliance shall be transmitted to the
37 contracting department, and the MBE/WBE Office shall attempt to resolve any
38 noncompliance through conference and conciliation. Should such attempt fail to
39 resolve the noncompliance, the Coordinator shall transmit a copy of the findings of
40 noncompliance, with a statement that conciliation was attempted and failed, to the
41 City Manager who shall take appropriate action to secure compliance.
42
43 C. The MBE/WBE Office may require such reports, information, and documentation
44 from contractors, offerors, contracting agencies, and the head of any department,
45 division, or office of the City of Fort Worth, as are reasonably necessary to
46 determine compliance with the requirements, within ten (10) days after the notice of
�r�47 noncompliance.
..8
49 D. Contracting departments shall maintain accurate records for each contract awarded,
50 including dollar value, the nature of the goods or services to be provided, the name
15
Draft May 1, 1998
1 of the contractor awarded the contract, the efforts it er-riployed to solicit bids from
2 MBE/WBE, identifying for each its dollar value, the nature of the goods or services
3 provided, and the name of the subcontractor. 07,
4
5 E. The City Manager, with the advice and counsel of the MWBEAC in accord with City
6 of Fort Worth Resolution No. 1148, shall submit an annual report to the City Council
7 on the progress of the City toward the utilization goals established by this ordinance,
8 together with an identification of problems and specific recommendations for
9 improving the City's performance.
16
Draft May 1, 1998
1 IX, DEBARMENT
2
�r3 A. An Offeror who intentionally and/or knowingly misrepresents facts shall be
4 determined to be an irresponsible offeror and barred from participating in City work
5 for a period of time of not less than three (3) years.
6
7 B. The failure of an Offeror to otherwise comply with this ordinance and which
8 constitutes a material breach of contract as stated herein, may result in the Offeror
9 being determined to be an irresponsible Offeror and barred from participating in City
10 work for a period of time of not less than one (1) year.
11
12 C. The MBE/WBE Office will send a written statement of facts and a recommendation
13 for debarment to the City Manager. The City Manager, after consultation with the
14 Department of Law, will make the decision regarding debarment and send a certified
15 notice to the Offeror.
16
17 D. An offeror that receives notification of debarment may appeal to an Appeal Board,
18 hereinafter created, by giving written notice within ten (10) days from the date of
19 receipt of the debarment notice, to the City Manager of its request for appeal.
20
21 E. An Appeal Board, consisting of not less than three members appointed by the City
22 Manager with the approval of the City Council, will meet within thirty (30) days from
23 the date of receipt of the request for appeal of debarment, unless Offeror requests
24 an extension of time. The Offeror will be notified of the meeting time and location.
lelo �5
6 F. The Offeror will be afforded an opportunity to appear with Counsel if they so desire,
27 submit documentary evidence, and confront any person that the City presents.
28
29 G. The Appeal Board will render its decision not more than thirty (30) days of the
30 hearing and send a certified notice to the Offeror.
31
32 H. If the Appeal Board upholds the original debarment, the Offeror may appeal to the
33 City Council within ten (10) days from the date of receipt of the Appeal Board's
34 decision by giving written notice to the City Manager.
35
36 I. The appeal will be placed on the City Council agenda within thirty (30) days from
37 receipt of written notice, unless Offeror requests an extension in writing.
38
39 J. From the date of notification of debarment and during the pendency of any appeal,
40 the City will not consider offers from, award contracts to, renew or otherwise extend
41 contracts with, or contract directly or indirectly through subcontracts with the Offeror
42 pending the Appeal Board's decision.
43
44 K. Any MBE or WBE subcontractor or supplier who intentionally and/or knowingly
45 misrepresents facts or otherwise violates the provisions of this ordinance may be
46 determined to be irresponsible for a period of time not to exceed one (1) year, and if
007 deemed irresponsible, such MBE or WBE shall not be included in calculating an
3 offeror's responsiveness.
49
17
Draft May 1, 1998
1 IX. SEVERABILITY
2
3 If any provision of this attachment or ordinance, the application thereof to any person or
4 circumstance is held invalid for any reason in a court of competent jurisdiction, such
5 invalidity shall not affect the other provisions of any other application of this attachment
6 or ordinance which can be given effect without the invalid provision or application, and
7 to this end, all the provisions of this attachment or ordinance are hereby declared to be
8 severable.
9
10
11
12
13
14
15
18