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HomeMy WebLinkAboutOrdinance 11923ORDINANCE NO. l 190_ 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 TN 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. -2- 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 -3- 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. From and after the date this ordinance takes effect, it shall supersede all previous City Council Policies affecting minority and women business enterprise and disadvantage business enterprises. SECTION 8. The City Manager, with the advice and counsel of the Disadvantaged Business Enterprise Advisory Committee ("DBEAC") in accord with City of Fort Worth Resolution No.1148, is hereby -4- 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. =5- APPROVED AS TO FORM AND LEGALITY: _v ity Att Date• ADOPTED • ~' /U `~ ~~ EFFECTIVE: -6- 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: -7- 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. -8- 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. -9- 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 far 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 -10- (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, busi-nesses 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 -11- 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. -12- (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 -13- comply 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; -14- (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 and within 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 -15- (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. NOTE: 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 -16- the provisions of this ordinance with respect to such amendment, change order, or extra work. IV. EXCEPTIONS AND WAIVERS (A) If a bidder is unable to comply with the goal requirements established in the Program Goals section of this ordinance, such bidder shall submit one of the two forms listed below within the allotted time. (1) A Prime Contractor Waiver Form (Attachment 1B) is submitted if the bidder will perform the entire contract without subcontractors or suppliers. (2) A Good Faith Effort Form (Attachment 1C) is submitted if the bidder has subcontracting and/or supplier opportunities but was unable to meet or exceed the project 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 . -17- V. PROGRAM ADMINISTRATION (A) The City Manager, with the advice and counsel of the DBEAC in accord with City of Fort Worth Resolution No. 1148, is authorized to establish and implement the regulations set forth in this ordinance. The MBE/WBE Office shall be responsible .for the overall administration of the City's MBE and WBE Program, and its duties and responsibilities shall include: (1) Recommending rules and regulations to effectuate this ordinance; (2) Maintaining a current listing of certified WBE and MBE for distribution internally and externally on contracts; (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 -18- and shall review, on a continuing basis, all aspects of the program's operations to assure that the purpose is being attained. (2) The contracting department shall take the following action to ensure that MBEs and WBEs have the maximum opportunity to participate on City contracts: (a) The advertisements for formal bids required to be advertised according to .statute shall appear in minority and women-targeted media, no less than 30 days before bids are due for specific contracting opportunities; (b) A written notification shall be sent to minority and women trade associations, contractor's associations, and minority and women chambers of commerce about the availability of formally advertised 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 -19- shall perform extensive outreach to MBE and WBE associations or other relevant organizations to inform them of the contracting opportunity. VI. CERTIFICATION The City will recognize MBE and WBE that are certified by the Texas Department of Transportation (TxDOT), highway division, or the North Central Texas Regional Certification Agency (NCTRCA). VII. CONTRACT MONITORING, REPORTING, AND COMPLIANCE (A) The 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, -20- the nature of the goods or services provided, and the name of the subcontractor. (E) The City Manager, with the advice and counsel of the DBEAC in accord with City of Fort Worth Resolution No. 1148, shall submit an annual report to the City Council on the progress of the City toward the utilization goals established by this ordinance, together with an identification of problems and specific 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. -21- (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 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. _.,,-~, -22- City of Fort Worth, Texas Mayor and Council ~unication DATE REFERENCE NUMBER LOG NAME PAGE 04/18/95 G-11054 12WOMEN 1 of 1 SUBJECT RECONSIDERATION OF THE MINORITY AND WOMEN BUSINESS ENTERPRISE ORDINANCE AS A RESULT OF A CLERICAL ERROR AND ADOPTION OF THE MINORITY AND WOMEN BUSINESS ENTERPRISE ORDINANCE ~ llq~ RECOMMENDATION It is recommended that the City Council (1) reconsider the adoption of the M~nor~ty and Women Business Enterprise Ordinance approved at the City Council meeting of April 1 1, 1995, and (2) adopt the attached Minority and Women Business Enterprise Ordinance DISCUSSION The Minority and Women Business Enterprise Ordinance presented to the City Council at its April 1 1, 1995, meeting contained. a clerical error The error is in Section 7 of the ordinance which abolished all prior Minority, Women, and Disadvantaged Business Enterprise policies upon adoption of the ordinance Because the new ordinance does not take effect until June 1, 1995, this creates a period of time in which no MBE/WBE/DBE policies will be in effect Therefore, it is necessary to reconsider the ordinance adopted last week, and adopt the attached ordinance with the correction to Section 7 providing that the existing policies shall remain in effect until June 1, 1995 FISCAL INFORMATION/CERTIFICATION The Director of Fiscal Services certifies that this action requires no expenditure of City Funds CB w Submitted for City Manager's FUND ACCOUNT' CIsNTER AMOUNT CITY SECRETARY Office by: (to) ~~~~ CQUi~CIL Charles Boswell 8500 Originating Department Head: APR 1S ~~~~ Wade Adkins 7623 (from) ~rf.ttrl.t,.~I For Additional Information City 3®Otreiary Of the Ci Contact: ty of Port ~Poxth, T~xass Gary Steinberger 7628 Adopted Ord~nanee NQ. +,~ i-' printed on recycled paper