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HomeMy WebLinkAboutOrdinance 21606-01-2015 ORDINANCE NO. 21606-01-2015 AN ORDINANCE AMENDING CHAPTER 20 "LICENSES AND MISCELLANEOUS BUSINESS REGULATIONS", ARTICLE X "MINORITY AND WOMEN BUSINESS ENTERPRISES" OF THE CODE OF THE CITY OF FORT WORTH, TEXAS (1986), AS AMENDED, BY AMENDING SECTION 20-366, "DEFINITIONS", SECTION 20-368, "CERTIFICATION", AND SECTION 20-371, "APPLICABLE CONTRACTS"; REDUCING THE SUBMISSION TIME FOR MINORITY AND SMALL BUSINESS ENTERPRISE COMPLIANCE DOCUMENTATION FROM FIVE (5) DAYS AFTER DAY OF BID OPENING TO TWO (2) DAYS AFTER DAY OF BID OPENING; PROVIDING A PENALTY FOR FAILING TO SUBMIT MINORITY AND SMALL BUSINESS ENTERPRISE DOCUMENTATION IN A TIMELY MANNER; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL PRIOR ORDINANCES AND REPEAL CONFLICTING ORDINANCES; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER OF THE CITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on December 13, 2011, the City Council of the City of Fort Worth ("City Council") adopted Ordinance No. 20020-12-2011, the Business Diversity Enterprise (BDE) Ordinance, with an effective date of June 1, 2012; and WHEREAS, it is advisable to amend Chapter 20 of the Code of the City of Fort Worth (1986), as amended, ("Chapter 20") to amend the definitions of "Certified", "Minority Business Enterprise", "Non-responsive", "Small Business Enterprise", and "Women Business Enterprise"; and WHEREAS, it is advisable to add definitions for the terms "M/WBE", "Principal Place of Business" and "Significant Business Presence"; and WHEREAS, the BDE Ordinance currently provides a five (5) day window after the date of bid opening for an Offeror to submit its Business Diversity Enterprise Utilization Plan; and WHEREAS, the City Council seeks to promote greater efficiency and expediency in entering into contracts with third parties; and WHEREAS, it is advisable to amend Chapter 20 to provide for a two (2) day window after the date of bid opening for an Offeror to submit its Business Diversity Enterprise Utilization Plan; and Ordinance No.21606-01-2015 Page 1 of 8 WHEREAS, it is also advisable to amend Chapter 20 to provide a penalty for repeated failure of a low bidder to submit required Minority Business Enterprise or Small Business Enterprise documentation within the mandated timeframes; and WHEREAS,the City Council finds this Ordinance to be reasonable and necessary. NOW,THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH,TEXAS,THAT: SECTION 1. The definitions of"Certified", "Minority Business Enterprise", "Small Business Enterprise" and "Women Business Enterprise" contained in Chapter 20 "Licenses and Miscellaneous Business Regulations", Article X "Minority and Women Business Enterprises", Section 20-366, "Definitions" of the Code of the City of Fort Worth are hereby amended to be and read as follows and the definitions of "M/WBE", "Principal Place of Business" and "Significant Business Presence" are hereby added to read as follows: Certified means those firms that have been determined to be a bona fide Minority, Women, or Small Business Enterprise by the North Central Texas Regional Certification Agency ("NCTRCA") or other certifying agencies that the City may deem appropriate and whose certifications are accepted by the City of Fort Worth. M/WBE means Minority Business Enterprises, as defined herein, and Women Business Enterprises, as defined herein. Minority Business Enterprise ("MBE") means a Certified business that meets the following criteria: (1) 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 (2) management and daily business operations are controlled by one or more minority persons who own it. Non-responsive means failure of an Offeror to comply with this Article's requirements upon submission of a bid or proposal, herein specifically defined by failing, within the time limits specified within the ordinance,to: (1) meet or exceed the stated contract Goal, or (2) make a good faith effort to meet the contract Goal, or (3) submit the prime contractor waiver, or (4) submit the Joint Venture form and agreement. Ordinance No.21606-01-2015 Page 2 of 8 Principal Place of Business means the address reflected in the North Central Texas Regional Certification Agency current database as the Principal Place of Business. Significant Business Presence means a place of business whose Principal Place of Business is outside the Marketplace and whose location within the Marketplace has been verified to be in existence for a minimum of 24 months and from which (1) at least 40% of the business's full-time and part-time employees are based in the Marketplace and (2) a Commercially Useful Function is conducted that is significant to the specific project. A location utilized solely as a post office box, mail drop, or telephone message center or any combination thereof, with no other substantial work function, shall not be construed to constitute a Significant Business Presence. Small Business Enterprise ("SBE") means a Certified business that meets the United States Small Business Administration's definition of a small business as outlined in the Code of Federal Regulations, 13 C.F.R. Part 121 and that is accepted by the City of Fort Worth as a Small Business Enterprise. Women Business Enterprise ("WBE") means a Certified business that meets the following criteria: (1) 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 (2) management and daily business operations are controlled by one or more women who own it. SECTION 2. Chapter 20 "Licenses and Miscellaneous Business Regulations", Article X "Minority and Women Business Enterprises", Section 20-368, "Certification" of the Code of the City of Fort Worth is hereby amended to be and read as follows: The City will recognize MBE and SBE firms that are Certified by the North Central Texas Regional Certification Agency ("NCTRCA") or other certifying agencies that the City may deem appropriate and whose certifications are accepted by the City of Fort Worth, including acceptable SBE certifying agencies. SECTION 3. Chapter 20 "Licenses and Miscellaneous Business Regulations", Article X "Minority and Women Business Enterprises", Section 20-371, "Applicable contracts" of the Code of the City of Fort Worth is hereby amended to be and read as follows: Section 20-371(a)(1)c.2.: Ordinance No. 21606-01-2015 Page 3 of 8 The Offeror shall submit the Subcontractor Utilization Form and/or the Good Faith Effort Form or the Prime Contractor Waiver Form, or the Joint Venture Form, including all required documentation, as appropriate. The Purchasing Division must receive the documentation no later than 2:00 p.m., on the second City business days after the bid opening date, exclusive of the bid opening date. The Offeror shall obtain a receipt from the appropriate employee of the Purchasing Division to whom delivery was made. Such receipt shall be evidence that the City received the documentation. The submission of the applicable completed form(s) within the allotted time will be considered when determining the responsiveness of the bid. Failure to comply with the bid specifications, inclusive of the MBE or SBE requirements and documentation, shall render the Offeror Non-responsive. Section 20-371(a)(2)a.: For the purpose of determining compliance with the Goal requirements established in this Article, businesses will be counted as MBE and SBE only if the business's Principal Place of Business is located in the Marketplace or the business has a Significant Business Presence in the Marketplace. Section 20-371(a)(2)a.3: If a business described in Section 20-371(a)(2)a.2 above fails to submit an application for certification within a reasonable time, or if the business is denied certification, the Offeror shall be afforded until 2:00 p.m. on the second City business days following written notice by the Project Manager to secure additional Certified/Certifiable MBE and/or SBE participation. Section 20-371(a)(2)a.4: Evidence of the additional Certified/Certifiable MBE and SBE participation shall be delivered to and received by Purchasing Division no later than 2:00 p.m., on the second City business days after the written notification was received by the Offeror, exclusive of the date that the notification was received. Section 20-371(a)(2)a.5: If a business described in Section 20-371(a)(1)c.2. above fails to submit its MBE and SBE documentation by the deadline, the second Offeror will be notified in writing by the Project Manager and must submit its MBE and SBE documentation to the Purchasing Division no later than 2:00 p.m. on the second City business day after the notification was received by the second Offeror, exclusive of the date that the notification was received. If the second Offeror fails to submit its documentation prior to the deadline, the third Offeror shall be notified by the Project Manager in writing and must comply with the requirements set forth in this paragraph. Ordinance No.21606-01-2015 Page 4 of 8 Section 20-371(a)(2)d: Documentation required under Section 20-371(a)(2)a.2. or (a)(2)a.3. above, must be received by the Purchasing Division no later than 2:00 p.m., on the second City business day, exclusive of the date that the Offeror was notified that it was Non-responsive. If the documentation is not received within the stated time, the Offeror shall be deemed Non- responsive. The City will not communicate with another Offeror regarding award of the contract prior to 2:00 p.m. on the second City business days after the original Offeror has been notified that it is a Non-responsive bidder. Section 20-3 71(a)(2)j.I: The Purchasing Division must receive the documentation no later than 2:00 p.m., on the second City business days after the bid opening date, exclusive of the bid opening date. The Offeror shall obtain a receipt from the appropriate employee of the Purchasing Division to whom delivery was made. Such receipt shall be evidence that the City received the documentation. The submission of the applicable completed form(s) within the allotted time will be considered when determining the responsiveness of the bid. Failure to comply with the bid specifications, inclusive of the MBE and SBE requirements and documentation, shall render the Offeror Non-responsive. Section 20-371(a)(5): Alternative Contracting and Delivery Methods for Construction Projects. A prospective Offeror on a City solicitation for which Offerors are not initially evaluated solely based on price or for which the project scope is not predefined, shall submit at the time of response such documentation as required by the City to affirm its intent to address the subcontracting Goal that is indicated in the solicitation. Section 20-371(b)(2)a.: For the purpose of determining compliance with the Goal requirements established in this Article, businesses will be counted as MBE and SBE only if the business's Principal Place of Business is located in the Marketplace or the business has a Significant Business Presence in the Marketplace. Section 20-371(c)(1)c.2: The Offeror shall submit the Subcontractor Utilization Form and/or the Good Faith Effort Form or the Prime Contractor Waiver Form, or the Joint Venture Form, including all required documentation, as appropriate. The Purchasing Division must receive the documentation no later than 2:00 p.m., City business days after the bid opening date, exclusive of the bid opening date. The Offeror shall obtain a receipt from the appropriate Ordinance No. 21606-01-2015 Page 5 of 8 employee of the Purchasing Division to whom delivery was made. Such receipt shall be evidence that the City received the documentation. The submission of the applicable completed form(s) within the allotted time will be considered when determining the responsiveness of the bid. Failure to comply with the bid specifications, inclusive of the SBE requirements and documentation, shall render the Offeror Non-responsive. Section 20-371(c)(2)a.2: If a business described in Section 20-371(c)(2)a.l above fails to submit an application for certification within a reasonable time, or if the business is denied Certification, the Offeror shall be afforded until 2:00 p.m. on the second City business day following written notice by the Purchasing Division to secure additional Certified/Certifiable SBE participation, starting the next City business day following the day the written notification was received from Purchasing Division. Section 20-371(c)(2)a.3: Evidence of the additional Certified/Certifiable SBE participation shall be delivered to and received by the Purchasing Division no later than 2:00 p.m., on the second City business days after the notification was received by the Offeror, exclusive of the date that the notification was received. Section 20-371(c)(2)d: Documentation required under either Sections 20-371(c)(2)b. or 20-371(c)(2)c. above must be received by the Purchasing Division no later than 2:00 p.m on the second-City business day following written notice by the Purchasing Division, exclusive of the date that the Offeror was notified that it was Non-responsive. If the documentation is not received within the stated time, the Offeror shall be deemed Non-responsive. The City will not communicate with another Offeror regarding award of the contract prior to 2:00 p.m. on the second City business days after the original Offeror has been notified that it is a Non- responsive bidder. Section 20-371(c)(2)j.1: The Purchasing Division must receive the Joint Venture form from the Offeror no later than 2:00 p.m., on the second City business days after the date of bid opening, exclusive of the day of the bid opening, for certification by the M/WBE Office. SECTION 4. Chapter 20 "Licenses and Miscellaneous Business Regulations", Article X "Minority and Women Business Enterprises" of the Code of the City of Fort Worth is hereby amended to add Section 20- 371.1 to be and read as follows: Ordinance No. 21606-01-2015 Page 6 of 8 Section 20-371.1 —Failure to provide MBE or SBE documentation. (a) If an Offeror fails to provide required MBE and/or SBE documentation as set forth in section 20-371, a written notification shall be forwarded to the noncompliant Offeror by the Project Manager or the Purchasing Division, as appropriate. A second failure to provide required MBE and/or SBE documentation within a five (5) year period shall result in the Offeror being disqualified and therefore ineligible to bid on City contracts for a period of one year from the date of notification of the second instance of Non-responsiveness. (b) Any Offeror who has failed to provide required MBE and/or SBE documentation three times within a five (5) year period is ineligible to bid on City contracts for a period of three (3)years from the date of notification of the third instance of Non-responsiveness. (c) Any Offeror who has been disqualified under this section may apply to be reinstated upon the expiration of the ineligibility period. (d) Debarment under this section shall not operate as a waiver of any statutory remedy or penalty provided for by federal, state or local statute, rule, regulation or ordinance. SECTION 5. 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 6. 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 7. All rights and remedies of the City of Fort Worth, Texas, are expressly saved as to any and all violations of the provisions of the Code of the City of Fort Worth, or any other ordinances of the City, that have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance, but may be prosecuted until final Ordinance No.21606-01-2015 Page 7 of 8 disposition by the courts. SECTION 8. The City Secretary of the City of Fort Worth, Texas is hereby directed to publish the caption, penalty clause and effective date of this ordinance for two (2) days in the official newspaper of the City of Fort Worth, Texas, as authorized by Texas Local Government Code, Section 52.013. SECTION 9. All other provisions of Chapter 20 of the Code of the City of Fort Worth, as amended, shall remain in full force and effect, save and except as amended by this ordinance. SECTION 10. This ordinance shall take effect upon adoption and publication as required by law, and it is so ordained. APPROVED AS TO FORM AND LEGALITY: ATTEST: V Charlene Sanders Mary J. Assistant City Attorney City Secretary ADOPTED: January 6, 2015 EFFECTIVE: L 2"t' Ordinance No. 21606-01-2015 Page 8 of 8 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/6/2015 - Ordinance No. 21606-01-2015 CONTINUED FROM A PREVIOUS WEEK DATE: Tuesday, December 09, 2014 REFERENCE NO.: G-18380 LOG NAME: 17BDEAMEND SUBJECT: Adopt Ordinance Amending Chapter 20, Licenses and Miscellaneous Business Regulations, Article X, Minority and Women Business Enterprises, to Amend and Add Definitions, Reduce the Time Period for Persons Bidding on Certain City Contracts to Submit Minority Business Enterprise and Small Business Enterprise Documentation from Five Days to Two Days and Include a Penalty for Failure to Submit Such Documentation (ALL COUNCIL DISTRICTS) RECOM EEN nw TION: nu""n v� It is recommended that the City Council adopt the attached ordinance amending Chapter 20, Licenses and Miscellaneous Business Regulations, Article X, Minority and Women Business Enterprises to add and amend the definitions, reduce the time period for submission of Minority Business Enterprise and Small Business Enterprise documentation and include a penalty for failure to submit the required Minority Business Enterprise and Small Business Enterprise. DISCUSSION: The current Business Diversity Enterprise (BDE) ordinance requires that persons or businesses wishing to bid on certain City contracts must submit Minority Business Enterprise (MBE) and Small Business Enterprise (SBE) documentation within five City business days after bid opening date. In order to reduce the amount of time it takes to complete the award process, Staff recommends reducing the current five City business day requirement to two City business days. The proposed reduction was reached after evaluating input from the Minority/Women Business Enterprise Advisory Committee (M/WBE Committee) and the contracting community. If the lowest bidder does not timely submit the required MBE and SBE documentation, that bidder will be deemed non-responsive and the second lowest bidder will be given two City business days to submit the required documents. This process will be followed until the lowest bidder submitting the required MBE and SBE document is selected. In order to discourage contractors from not submitting the required documentation, various penalties were discussed. A progressive penalty schedule for failure to submit required documentation within required timelines was proposed by Staff and is supported by both the M/WBE Committee and acceptable to the contracting community. The proposed progressive penalty schedule is: First failure to submit Warning Second failure to submit required Disqualification from bidding for a period documentation within a 5 year period of one year hird failure to submit required Disqualification from bidding for a period (documentation within a 5 year period of three years Logname: 17BDEAMEND Page 1 of 2 A contractor who is removed from the pre-qualification lists must apply for reinstatement after the expiration of the penalty period in order to be eligible to bid. The M/WBE Committee also supports efforts to increase opportunities for regional firms that wish to have a business presence in the region. Therefore, for purposes of the Business Diversity Enterprise Ordinance, the MMBE Committee recommends that the City count not only MBEs and SBEs whose principal places of business are located in the six county area comprising the Marketplace, but also those who have a significant business presence in the marketplace, even if their principal places of business are located elsewhere. The proposed ordinance defines a business with a "Significant Business Presence" in the Marketplace as one whose principal place of business is outside the marketplace, but that has conducted business operations from a location within the marketplace for at least 24 months and from which (1)at least 40 percent of the business's full-time and part-time employees are based and (2) a commercially useful function is conducted that is significant to the specific project. A business whose only location in the marketplace is utilized solely as a post office box, mail drop, or telephone message center or any combination thereof, with no other substantial work function, would not be considered to have a significant business presence in the marketplace. All MBEs and SBEs must be certified as such by the North Central Texas Regional Certification Agency (NCTRCA) or other certification agencies that subsequently may be acceptable to the City. A company's principal place of business will be established by the certification agency. FISCAL INFORMATION / CERTIFICATION: The Financial Management Director certifies that this action will have no material effect on City funds. FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers CERTIFICATIONS: Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Jay Chapa (5804) Robert Sturns (212-2663) Additional Information Contact: Coy Gray (871-6007) Logname: 17BDEAMEND Page 2 of 2