HomeMy WebLinkAboutOrdinance 119049
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ORDINANCE NO.
REPEALING ALL .MINORITY AND WOMEN BUSINESS ENTERPRISE
POLICIES AND DISADVANTAGED BUSINESS ENTERPRISE POLICIES
PREVIOUSLY ADOPTED; ADOPTING AN ORDINANCE TO REMEDY THE
UNDERUTILIZATION OF MINORITY AND WOMEN BUSINESSES, AND TO
ENHANCE THE UTILIZATION OF SAME; DEFINING MINORITY
BUSINESS ENTERPRISE, AND WOMEN BUSINESS ENTERPRISE FOR
PURPOSE OF CERTIFICATION; REQUIRING MINORITY BUSINESS
ENTERPRISE AND WOMEN BUSINESS ENTERPRISE PARTICIPANTS TO
BE QUALIFIED AND DOING BUSINESS IN LOCALITY FROM WHICH
THE CITY REGULARLY SOLICITS; 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, Bortz & 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 in the City's contracting processes; and
WHEREAS, the provisions of this ordinance may increase the
utilization of minority and women business enterprises in
contracts awarded by the City of Fort Worth; and
WHEREAS, the City Council now desires to provide a narrowly
tailored remedy for past underutilization of minority and
women businesses through the annual setting and defining
of percentage goals for different categories of
contracts, providing penalties for fraudulent misuse of
this ordinance, requiring regular review of the necessity
for the provisions of this ordinance, limiting those
minority and women's business enterprises that
participate under this ordinance to those that qualify
and do business in the City's Marketplace, providing for
post bid submission of required information about
minority and women business enterprises and establishing
waiver of goals procedures;
NOW THEREFORE., BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF FORT WORTH, TEXAS, THAT:
SECTION 1.
It is the policy of the City of Fort Worth to attempt to
provide a remedy for past underutilization of qualified minority
and women businesses and prevent ongoing underutilization of
minority and women business enterprises in the City's contracting
process by ensuring the full and equitable participation of
minority and women business enterprises in the provision of goods
and services to the City on a contractual basis in the manner
identified in Attachment I of this ordinance, said Attachment I
being a part of this ordinance.
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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 Council 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
businesses in the City's Marketplace.
SECTION 4.
The provisions of this ordinance shall be considered in
determining the responsiveness to specifications of offerors to
the bid/proposal. The City shall consider the offeror's
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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.
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.i148, is hereby
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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.
SECTION 11.
This ordinance shall take effect and be in full force and
effect from on and after June 1, 1995; 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.
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APPROVED A5 TO FORM AND LEGALITY:
/L~~ City Atto ey /
Date : ~~ ~'' / ~.S'
ADOPTED' ~1_ ~~ ~~
EFFECTIVE' ~`' / ` 7
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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 for which City funds are expended. 'The
term includes "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 steps shall satisfy the Good Faith Effort
requirement absent proof of fraud, misrepresentation, or
intentional discrimination by the bidder:
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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 M/WBE subcontractors
and/or suppliers from the City's M/WBE 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. Provide plans and specifications or information
regarding the location of plans and specification
to M/WBEs.
10.8. Submit documentation if M/WBE 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 10.4 and 10.5. 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 10.4 and
10.5.
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.
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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 located in the Marketplace or doing business
in the Marketplace at the time of bid opening or during
negotiations related to proposals 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.
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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 located in the Marketplace or doing business in the
Marketplace at the time of competitive bid opening or during
negotiations related to proposals 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.
II. PROGRAM GOALS
(A) City-wide goals for the utilization of minority business
enterprises (MBE) and women business enterprises (WBE) shall
be reviewed and approved annually by the City Council.
(1) The City Manager shall, on or before October 31 of each
year, beginning October 31, 1996, conduct an analysis of the
availability of MBEs and WBEs and present to the City Council
an annual report on MBE and WBE availability and utilization.
Based on the availability of MBE/WBEs in the Marketplace and
the City's most recent goals attainment and with the advice
and counsel of the DBEAC, the City Manager shall recommend to
the City Council reasonable goals for the remainder of the
current fiscal year.
(2) 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 M/WBE 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
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(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 MBE/WBE
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 will be given credit toward the MBE/WBE
contract goal only when the MBE or WBE performs a
commercially useful function. An MBE or WBE is
considered to have performed 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) the firm receives due compensation as agreed upon
for the work performed.
(5) Regardless of whether an arrangement between the
contractor and the MBE/WBE 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 participa-
tion in the joint venture. The MBE or WBE involved in
the joint venture must be responsible for a clearly
defined portion of the work to be performed, equal to a
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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.
III. 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.
(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 or requests for proposals.
(C) Construction and Professional Services contracts and such
other contracts which may be competed for under sealed
proposal procedures (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 procedures:
(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 shall be submitted with the
bid on the bid opening date.
(b) The MBE/WBE UTILIZATION FORM, PRIME CONTRACTOR
WAIVER FORM and/or the GOOD FAITH EFFORT FORM shall
be submitted to the contracting department no later
than 5:00 p.m., five (5) City business days after
bid opening date.
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(c) An offeror that equals or exceeds the MBE and WBE
project goals, shall submit the MBE/WBE UTILIZATION
FORM.
(d) The PRIME CONTRACTOR WAIVER FORM shall be submitted
with any bid that includes no subcontracting
and/supplier opportunities. If substantial
subcontracting and/or substantial supplier
opportunities arise in the performance of a
contract awarded in reliance on the PRIME
CONTRACTOR WAIVER FORM, the contractor shall notify
the City before subcontracts for work and/or
supplies are let and the contractor shall comply
with the requirements of this ordinance.
(e) GOOD FAITH. DOCUMENTATION, including the GOOD FAITH
EFFORT FORM, shall be submitted with any bid and/or
proposal that fails to include MBE/WBE
participation that equals or exceeds the MBE/WBE
project goals.
(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) Other than responses to Requests for Proposals for those
professional services defined in Chapter 2254 of the
Texas Government Code, responses to Requests for
Proposals shall include a section which identifies the
particular MBEs and/or WBEs to be utilized in performing
the contract.
(a) Specify as to MBEs and WBEs, the estimated
percentage of the MBE and WBE participation, the
type of work to be performed by the MBE or WBE, and
such other information as may reasonably be
required to determine the responsiveness to the
Request for Proposal.
(b) 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) Initial responses to requests for proposals for those
professional services defined in Chapter 2254 of the
Texas Government Code shall not include a response to the
requirements of this ordinance. The City shall comply
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with the requirements of said Chapter and rank the
professional on the basis of demonstrated competence and
qualifications. During negotiating the contract with the
highest ranked professional, the professional shall
respond to this ordinance in the manner specified in
paragraph 2(a) above.
(4) 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 or appropriate
proposal. Any willful misrepresentation of facts on the
documentation submitted will constitute a basis for
classification as non-responsive and possible debarment.
(5) 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, profes-
sional 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., any proposed change or
deletion in MBE/WBE participation identified in the bid,
proposal or contract shall be reviewed by the MBE/WBE
Office to determine whether such change or deletion is
justified in accord with the immediate following two (2)
paragraphs. Any unjustified change or deletion shall be
a material breach of the contract.
(3) Contracts shall require that during the term of the
contract, the contractor shall:
(a) Make no unjustified changes or deletions in its MBE
and WBE participation commitments submitted with
the bids, proposals or during negotiations;
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(b) If substantial subcontracting and/or substantial
supplier opportunities arise during the term of any
contract that the contractor represented to the
City that the contractor alone would perform
required by the contract, the contractor shall
notify the City before subcontracts for work and/or
supplies are let and shall be required to comply
with the provisions of this ordinance; and
(c) Maintain records reasonably necessary for monitor-
ing their compliance with the provisions of this
ordinance.
(4) The contractor shall submit to the MBE/WBE Office for
approval a REQUEST FOR APPROVAL OF CHANGE FORM if, during
the term of any contract, a contractor wishes to change
or delete one or more MBE and/or WBE subcontractor(s).
(a), Within three (3) business days after receipt by the
MBE/WBE Office, the Request shall be reviewed. The
Request shall be approved if the change or
deletions is justified. The following shall
constitute justification for the requested change
or deletion:
(1) an MBE or WBE's failure to provide workers'
compensation insurance evidence as required by
state law; or
(2) an MBE or WBE's failure to provide evidence of
general liability or other insurance under the
same or similar terms as contained in the
contract documents with limits of coverage no
greater than the lower of 1) the limits
required of the contractor by the City; or 2)
the limits contained in the contractor's
standard subcontract or supply agreements used
on other projects of similar size and scope
andwithin the contractor's normal business
practice with non MBE or WBE subcontractor's
or suppliers; or
(3) an MBE or WBE's failure to execute the
contractor's standard subcontract form in the
amount of the bid, if entering a subcontract
is required by the contractor in its normal
course of business; or
(4) an MBE or WBE's default in the performance of
the executed subcontract; and
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(5) all MBE and WBE subcontractors previously
submitting bids for the work are requested to
bid on the work, and, if reasonably
practicable due to time constraints, the
contractor obtains bids from previously non-
bidding MBEs and WBEs, and no MBE or WBE
subcontractor submits the lowest bid.
(b) If the MBE/WBE Office approves the deletion of an
MBE or WBE and replacement by a non-MBE or WBE,
such approval shall constitute a post award waiver
to the extent of the value of the deleted
subcontract.
(c) If the MBE/WBE Office denies the Request for Change
or Deletion, the contractor may appeal the denial
to the City Manager whose decision will be final.
NQTE: The contractor shall submit such documentation
as may reasonably be requested by the MBE/WBE Office to
support the contractor's request. The time between the
request by the MBE/WBE Office for additional
documentation and the delivery of such documentation
shall not be included within the time period that the
MBE/WBE Office is required to respond.
NOTE: Upon completion of the contract and within ten
(10) days after receipt of final payment from the City,
the contractor shall provide the MBE/WBE Office with
documentation to reflect the final participation of each
subcontractor and/or supplier used on the project,
inclusive of MBEs and WBEs.
(5) Whenever contract, amendments, change order, 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 subcontract of like or similar work,
is work not to be performed by the contractor,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.
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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 1B) i.s
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 M/WBE 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) 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
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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;
(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, applica-
tions, and documents necessary to comply with this
ordinance;
(6) Reviewing, on a regular basis, the progress of depart-
ments 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 MBE/WBE 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.
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(2) The contracting department sYiall 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 contracting opportunities no less than
30 days before bids are due;
(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 contracts, establish procedures to
ensure that all contractors submitting correct
invoices are paid twice a month and that
subcontractors are paid in accord with the
subcontract within five (5) business days after
receipt of payment; a contractor's failure to make
payments within five (5) business days shall
authorize the City to withhold future payments from
the contractor until compliance with this ordinance
is attained.
(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 documenta-
tion are submitted to the MBE/WBE Office as
requested; and
(h) If circumstances prevent the contracting department
from meeting the thirty-day advertising and notifi-
cation requirements, the contracting department
shall perform extensive outreach to MBE and WBE
associations or other relevant organizations to
inform them of the contracting opportunity.
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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 MBE/WBE Office shall monitor compliance with these
requirements during the term of the contract. If it is
determined that there is cause to believe that a contractor or
subcontractor has failed to comply with any of the require-
ments 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.
(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 contrac-
tor 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
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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 recommendations for improving the City's performance.
VIII. DEBARMENT
(A) The misrepresentation of facts (other than a negligent
misrepresentation) and/or the commission of fraud 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.
(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.
(I) From the date of notification of debarment and during the
pendency of any appeal, the City will not consider offers
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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.
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City o,~ Fort Worth, Texas
o Mayor and Council' Communication
DATE RSFSRSNCS NIIM88R LOG NAME PAGE
04/04/95. 02MIN 1 of 1
susJECT ADOPTION OF THE MINORITY AND WOMEN BUSINESS ENTERPRISE (MBEM/BE)
ORDINANCE
RECOMMENDATION
It is recommended that the City Council adopt the attached Minority and Women Business
Enterprise (MBE/WBE) Ordinance
DISCUSSION
On March 28, 1995, the City Council adopted the findings of the Availability and Disparity Study
(Study) and the Public Hearing (Hearing) These findings are the basis for the recommended
ordinance
The Disadvantaged Business Enterprise Advisory Committee (DBEAC), a City Council appointed
Advisory Board, along with City staff reviewed the findings and recommendations from the Study
and Hearing before proposing the attached ordinance
The DBEAC, staff and other interested parties have had extensive negotiations and meetings and
agreement was reached on one or more issues
The ordinance will provide the City with anarrowly-tailored Minority and Women Business
Enterprise program The intent of the ordinance is to increase the utilization of minority and
women business enterprises in contracts awarded by the City
FISCAL INFORMATION/CERTIFICATION
8~'fICIAt RECORD
Director of Fiscal Services certifies that no city funds are required f r
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