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HomeMy WebLinkAboutRES 85-290 R E S O L U T I O N WHEREAS, the City of Beaumont deems it to be in the public interest that small business concerns owned and controlled by socially and economically disadvantaged individuals and by women be utilized to the maximum extent feasible in the city' s contracts for construction, professional services, purchaes of equipment and supplies and all other services required by the city, for Department of Transportation assisted projects, pursuant to 49 CFR, Part 23, as amended; and, WHEREAS, the City Council of the City of Beaumont deems it to be in the public interest for contractors providing services, materials or supplies to the City of Beaumont to provide employment and subcontracting opportunities to disadvantaged individuals and women to the maximum extent feasible; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Council of the City of Beaumont hereby adopts, as its policy , the Disadvantaged/Women-Owned Business Enterprise Program Policy Manual attached hereto; BE IT FURTHER RESOLVED that the City Manager of the City of Beaumont be, and he is hereby, authorized to execute for and on behalf of the City of Beaumont said policy manual and any amendments thereto; BE IT FURTHER RESOLVED that the City Manager of the City of Beaumont or his designee shall be the Disadvantaged/Women-Owned n Business Enterprise Liaison Officer for the City of Beaumont and shall have authority to implement this policy. PASSED BY THE CITY COUNCIL of the City of Beaumont this the /Q� day o f �i���l,,y� J 1985.& - Mayor - 2 - City of Beaumont Disadvantaged/Women-Owned Business Enterprise Program Ff--I-r U. Ili I i z at I on of ,Tn,-,i I I .3nd D i szadv int aged Bust neSST's in Department of Tr a ris p ort- at 11 on -assisted Pro jects ( Pursuant to 49 CYR Part 23 , as Amended'- TABLE OF CONTENTS PAGE I . Policy Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II . Liaison Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III . Support Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 IV . Procurements to Insure Equitable Opportunity. . . . . . . . . . . . . . . . 7 V . Disadvantaged and Women--Owned Banks . . . . . . . . . . . . . . . . . . . . . . . . . 7 VI . DBE/WBE Directory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 VII . DBE/WBE Eligibility and Joint Ventures Involving DBEs and/or WBEs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fs VIII . Percentage Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 IX . Procedures to Require That DBEs/WBEs be Identified by Name by Competitors for Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 1D X . Selection Criteria. to Insure That Prime Contracts are Awarded to Competitors That Meet DBE/WBE Goals . . . . . . . . . . . . 11 XI . Compliance of Subrecipients , Contractors and Sub-Contractors to the DBE/WBE Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 XII . Maintenance of Records and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 12 XIII . Requirements for Transit Vehicle Manufacturers . . . . . . . . . . . . . . 13 XIV . Policy Concerning Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 XV . Set Asides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 XVI . Counting Participation Toward Meeting DBE/WBE Goals . . . . . . . . . 14 4- -,-,?_ ?e),r � s TABLE OF CONTENTS Cont . APPENDIX PAGE Attachment. 1 : Information to be Included in All Contract Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IS Attachment 2 : Information to be Included in Contract Documents With Contract Goals . . . . . . . . . . . . . . . . 1`+ Attachment 3 : Instructions to Bidders . . . . . . . . . . . . . . . . . . . . . . 21 Attachment 4 : Selection Criteria to insure That Prime Contra cts are Awarded to Competitors Thai. ?sleet. DBE/WB Conis . . . . . . . . . . . . . . . . . . . . . . . . . . . `C Attachment 5 : Counting Participation Toward Meeting DBF/WBE Goals . . . . . . . . . . . . . . . . . . . . e . . . . . . . . . , ;; Attachment 6 : Eligibility Standards . . . . . . . . . . . . . . . . . . . . . 32 Attachment 7 : Guidance for Making Determinations for Social and Economic Disadvantages . . . . . . . . . . . . 39 Attachment 8: Challenge Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Attachment 9 : Appeals of Denial of Certification as a DBE orWBE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Attachment 10 : Decertification Procedure . . . . . . . . . . . . . . . . . . . . 51 ScheduleA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 ScheduleB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ScheduleC: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 'oe—f-s--:-2 P? I . POLICY STATEMEINT It is the policy of the City of Beaumont to involve minority businesses , specifically Small and Disadvantaged Businesses (DBEs) and Women-Owned Business (WBEs ) to the fullest extent feasible in all phases of its procurement practices , and to provide them equal opportunities to compete for contracts for construction, provision of professional services , purchases of equipment and supplies , and provision of other services required by the City , pursuant to 49 CFR Part 23 as amended , To attain these policy objectives , the City of Beaumont has adopte:-1 this Policy Statement and the attached Disadvantaged/Women-Owned Business Enterprise Program for all U . S . Department of Transportation assisted contracts . For purposes of this policy ; "small and disadvantaged business'' (DBE ) means a small business concern which ( a) is at least 51 percent owned by one or more socially and economicatly disadvantaged individuals , or , in the case of any publicly owned business , at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals , and (b) whose management and daily business operations are controlled by one or more of the socially and evomonically disadvantaged individuals who own it . "Small business concern" means a small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto . � 5 "Socially and economically disadvantaged individuals means those individuals who are citizens of the United States ( or lawfully admitted permanent residents) who are Black Americans , Hispanic Americans , Native Americans , Asian-Pacific Americans , or Asian-Indian Americans and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section $( a) of the Small Business Act . The City shall make a rebuttable presumption that individuals in the following groups are socially and economically disadvantaged. The City also may determine , on a case-by-case basis , that individuals who are not a member of one of the following groups are socially and economically disadvantaged . ( a) "Black Americans" which includes persons having origins, in any of the Black racial groups of Africa. (b ) "Hispanic Americans" which includes persons of Mexican, Puerto Rican , Central or South America, or other Spanish culture or origin , regardless of race . ( c) "Native Americans" which includes persons who are American Indians , Eskimos , Aleuts , or Native Hawaiians . ( d) "Asian-Pacific Americans" which includes persons whose origins are from Japan , China, Taiwan , Korea , Vietnam, Laos , Cambodia , the Philippines , Samoa., Guam, the U. S . Trust Territories of the Pacific , and the Northern Marianas . ( e) "Asian-Indian Americans" which includes persons whose origins are from India , Pakistan , and Bangladesh . ,& ,Ps-,-p?o 2 t. "Women-owned business" (WBE) means a small business concern which ( a) 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 of which is owned by one or more women, and (b) whose management and daily business operations are controlled by one or more of the women who own it . To the extent legally practicable, the City of Beaumont will insure that all contractors providing services , materials or supplies to the City provide employment: opportunities to disadvantaged individuals and females equal to those provided all other groups or individuals . Such contractors will also be expected to take positive steps toward the utilization of DBEs and WBEs to the maximum extent feasible, consistent with sound procurement principles and applicable law . The City will provide assistance, when requested, to DBEs and WBEs by providing instructions on the preparation of bid specifications , compliance with procurement policy, and fulfillment of general bid requirements . In addition, the City will provide information on job performance requirements , procurement opportunities and prerequisites for bidding on contracts . The City will seek and will use its best efforts to insure that DBEs and WBEs are informed of current and future procurement activities through newsletters , including minority newspapers , local minority chambers of commerce , and other minority organizations as well as through direct, contact with minority entrepreneurs . U �-,- /Z' 3 8 axe a � As evidence of its intent to vigorously pursue the objective of this Disadvantaged/Women-Owned Business Enterprise Program , the City Manager has designated the Director of Transportation as the DBEIWBE Liaison Officer for the Department of Transportation related projects , who will be assisted by the City of Beaumont ' s Transportation and Purchasing Departments in administering, and implementing the City' s Disadvantaged and Women-Owned Business Enterprise Program. II . LIAISON OFFICER The City of Beaumont has designated t.hFv Director of Transportation to serve as the City' s Liaison Officer for the DBEIWBE Program . The Liaison Officer reports directly to t11aF> City of Beaumont ' s City Manager who , in turn , reports directly to the Mayor and City Council - The duties of the Liaison Officer, shall include the following: A . Developing, managing, implementing, and evaluating the DBt;,/WPE program; B . Disseminating information on available business opportunities so that DBEs and WBEs are provided an equitable opportunity to bid on DOT-assisted City contracts . C . Maintaining and updating a directory of small and disadvantaged and women owned business enterprises . D . Providing assistance to City departments in re;.sol.vii,g spe(, ific to i^7 ? �. e":?iE:":t. ?t. ... >7"t of ( h- T)TQ- 1W1J _? >,-;, �r -1ryn <'4�1c:t achievement of stated goals . zed A E . Advising prospective contractors and others on necessary steps to bring them into compliance with requirements regarding DBE/WBE participation . F. Attending pre-bid and pre-construction conferences to explain DBE/WBE requirements and to respond to questions . G . Reviewing bid proposals prior to formal advertising to make sure that proper instructions are included regarding the City' s DBE/WBE requirements . H . Reviewing bids after they have been opened to verify the degre(z of DBE/WBF participation and to assure that those firms listed have been properly certified based on established criteria . K Maintaining accurate and up-to-date records demonstrating DBF/WBF efforts and accomplishments . i . Assisting in the arrangement of joint ventures between DBE/WBE and non-DBE/WILE firms and between two or more DBE/WBF firms . K . Submitting all reports as required by DOT and other Federal regulations . III . SUPPORT STAFF' The DBF/WBE Liaison Officer shall have adequate staff to perform his duties . The department heads of the transportation , purchasing, and other appropriate departments will serve ag the PBF/WPF Coordinators for their respective departments . The Departmental Coordinator will be , at a minimum , responsible for ! a , A. Notifying the DBE/WBE Liaison Officer of all grants being applied for through the U. S . Department of Transportation . B . Notifying the Liaison Officer of approved grant awards . C . Evaluating approved grants for potential DBE and WBE participation. D . Involving the DBE/WBE Liaison Officer in the entire bid process for DOT assisted projects , which includes , but is not limited to. 1 . Notification in advance by appropriate department of consultant and/or construction contracts . 2 . Providing the DBF/WBF Lia-ison Officer the opportunity to review bid proposals and requests for proposals LRFPj prior to their formal advertisements to insure that the City' s DBE/WBE requirements have been met . 3 . Notifying the DBE/WBE Liaison Officer of the time and place for all pre-bid conferences if any, so that the DBE/WBE requirements can be explained and questions answered. 4 . Assuring that the Liaison Officer has an opportunity to evaluate all bids received in an effort. to assure the validity of the degree of DBE and/or WBE participation claimed . E . Reporting to the DBE/WBE Liaison Officer on no less than a quarterly basis the status of achieving DBE/WBF goals . A TV . PROC17REMENTS TO INSURE EQUITABLE OPPORTITNTTY TO COMPETE FOR CONTRACTS AND SUBCONTRACTS The City of Beaumont will develop and use affirmative action techniques to facilitate DBE/WBE participation in contracting activities . These techniques shall include , but are not limited to: A . Arranging solicitations , time for the presentation of bids , quantities , specifications , and delivery schedules so as to facilitate the participation of DBEs and WBEs . B . Providing assistance to DBEs and WBEs in over-coming barriers, such as the inab:1 lity to obtain bonding, financing , -)r- technic-pal assistant._'stance by working with aside agr-rw-ies to provide these C . Carrying out information and cnmmunil cation s pro grams on contracting procedures and specific contracting opportunities in a timely manner , D . Holding pre--bid conference-- to explain the projects and encourage prime contractors to use DBEs and WBFs as subcontractors . E . Including the C"It-\" s goal for DBF,/WIIl" part icipai ion in the bid solicitations for D(DIT-assisted, projects . V . DISADVANIVAGED AND WOMEN- OWNED BANI(4 There are no minority or women - owned banks, in the Beaumont a ro,,i . Should this sittuatio---, (',hange in thy, future , th(• Cl. ty of thorouvilly inkus' t ig!Atu 1 111t_' f'(-i ! 7 extent of services offered, and make the greatest feasible use of such banks . VI . DBE/WBE DIRECTORY The City' s DBE/WBE Liaison Officer is responsible for maintaining a directory to facilitate identification of DBEs and WBEs with capabilities relevant to general contracting requirements and to particular bid solicitations . The directory is available to bidders to assist in their efforts to meet DBE/WBE participation requirements . VII . DBE/WBE ELIGIBILITY AND JOINT VENTURES INVOLVING DBEs AND_�04 WBEs To insure that the DBE/WBE program only benefits firms owned and controlled by disadvantaged individuals or women , the City of Beaumont shall certify the eligibility of DBEs and WBEs and joint ventures involving DBEs and WBEs that are named by competitors by completing Schedule A and/or B . The City shall require prime contractors to make good faith efforts to replace a DBE or WBE contractor that is unable to perform successfully with another DBE or WBE. The City shall reserve the right to approve all substitutions of subcontractors before bid opening and during contract performance, in order to insure that the substitute firms are eligible DBEs and WBEs . VIII . PERCENTAGE GOALS A. Overall Goals The overall goals for the City of Beaumont ' s DBE/WBE program are ten percent ( 10%) of the contract amount for disadvantaged businesses and three percent ( 3% ) for businesses awned by women . 11s=40d 8 In no case shall these goals constitute a fixed quota. The following factors were considered in arriving at these goals : 1 . The number and types of contracts to be awarded by the City during its fiscal year . 2 . The number and types of DBEs and WBEs that have been identified by the City, 3 . The number and types of DBEs and WBEs likely to be available to compete for contracts during the funding period , 4 . The past efforts of the City to contract with DBEs and WBEs . The overall goals shall be reviewed on an annual basis . The review process shall analyze projected versus actual DFE/WBE participation during the previous fiscal year. Whatever revisions are considered necessary, shall be made and submitted to the Department of Transportation for approval . B . Contract Goals Contract goals will be set on specific projects which the bidder/proposer must meet or exceed or demonstrate that it could not meet despite its best efforts . The goals will be set based on the known availability of qualified DBE ' s and WBE ' s . For contracts for professional services exceeding $25 , 000 the City has established a goal of 20% parti "ipation for Disadvantaged Business Enterprises . 91 1 C . Publication of Goals At the time the City submits its overall goals to the Department of Transportation for approval , it shall publish a notice announcing these goals , informing the public that the goals , and a description of how they were selected, are available for inspection during normal hours at the Transportation Department ' s Office for 30 days following the date of the notice. The notice shall include addresses to which comments may be sent , and shall be published in general circulation media and available minority-focus media and trade association publications , and shall state that the comments are for informational purposes only. D . Geographic Area The City of Beaumont and contractor:- shall , at a minimum, seek DBEs and WBEs in the same geographic area in which contractors or subcontractors are sought for a given solicitation. If' the goals cannot be met by using DBEs and WBEs from this geographic area, the City and contractors shall expand the search to a reasonable wider area. IX. PROCEDURES TO REQUIRE THAT DBEs/WBEs BE IDENTIFIED BY NAME BY COMPETITORS FOR CONTRACTS In solicitation for DOT-assisted contracts that provide opportunities for DBE/WBE participation , the City shall indicate its goals for the use of small firms owned and controlled by disadvantaged persons , and by women . (J � �< � 10 A. All bidders/proposers will be required to submit a written assurance of meeting the goals in their bids or proposals by completing Attachment 2 . B . Within a reasonable period of time after the opening of bids , and before the award of the contract the City shall require all bidders wishing to remain in competition for the contract to submit Schedule C which provides : 1 . The names and addresses of DBE and./or WBE subcontractors ; 2 . A description of the work each is to perform; and 3 . The, cl(--,,I I ar v& I ue of each proposed DBF and/or WBE s ub c o n t r a;--- IL . C' . The i i-m e 11 1 (-)w c-d P o r submission o F S c h e d u 1 veil It 1,e individual contracts and may vary , depending on circumstances . D . Agrcement.s between a bidder/proposer and a DBE/WB-F in which the DBE/WBE promises not to provide subcontracting quotations to other bidders/proposers are prohibited. X . SELECTION CRITERIA TO INSURE THAT PRIME CONTRACTS ARE AWARDED TO COMPETITORS THAT MEET DBE/WBE GOALS To insure that prime contracts are awarded to competitors who meet DBFI/WBF goals , the ,elect -ion criteria which is outlined in Attachment 4 will be followed . XI . COMPLIANCE OF SUBRECIPIENTS , CONTRACTORS AND SUBCONTRACTORS TO THE DBE/WBE REQUIREMENTS The City of Beaumont does not have any subrecipients at this time. Should the situation change in the future, all subrecipients must comply with the DBE/WBE requirements outlined in the program. XII . MAINTENANCE OF RECORDS AND REPORTS A. In order to monitor the progress of its DBE/WBE program, the City shall maintain a recordkeeping system which will identify and access DBE/WBE contract awards , prime contractors ' progress in achieving DBE/WBE subcontract goals and other DBE/WBE affirmative action efforts . B . Specifically, the City shall maintain records showing: 1 . Procedures which have been adopted to comply t. ith the requirements of this program . 2 . Awards to DBEs and WBEs . These awards shall be measured against projected awards and/or goals . To assist in this effort , the City shall obtain regular reports from prime contractors on their progress in meeting contractual DBE/WBE obligations . C . Records shall be available , upon request , to an authorized officer or employee of the government . D . The City shall. submit reports conforming in frequency and format to existing contract reporting requirements of the applicable department element. . Where no such contract reporting 12 requirements exist , DBE/WBE 'reports shall be submitted quarterly. These reports shall include as a minimum: 1 . The number of contracts awarded to DBEs and WBEs . 2. A description of the general categories of contracts so awarded. 3 . The dollar value of contracts so awarded. 4 . The percentage of the dollar value of all contracts awarded during this period which were awarded to DBEs and WBEs . 5 . An indication of whether , and the extent to which , the percentage met or exceeded the goal specified in the application . E . The records and reports shall provide information relating to small firms owned and controlled by disadvantaged persons separately from information relating to firms owned and controlled by women . If the records and reports include any SBA 8(a) contractors that are not disadvantaged or women , information concerning these contractors shall also be recorded and reported separately. XIII . REQUIREMENTS FOR TRANSIT VEHICLE MANUFACTURERS The City shall require all transit vehicle manufacturers who bid on DOT-assisted contracts to certify that they have complied with the requirements of Section 23 . P7 of 49 CFP . Part 22 , Suhpart 1) dated July 21 , 1983 . The manufacturer may make the certification if it ?,�) 13 a 6 has submitted its DBE/WBE goals to the UMTA Administrator, and the UMTA Administrator has either approved, or not disapproved, said goals . XIV . POLICY CONCERNING LEASES The following action will be taken concerning leases : A. The City of Beaumont shall not exclude DBEs or WBEs from participation in business opportunities by entering into long-term exclusive agreements with non-DBEs/WBEs for the operation of major transportation related activities or major activities for the provision of goods and services to the facility or to the public on the facility . XV . SET ASIDES The City of Beaumont will limit the use of set asides to include subcontracts as they are utilized by the prime or general contractor . The City of Beaumont is prohibited by the Texas Competitive Bidding Statute , Article 236a, Tex. Rev . Civ. Stat . Ann . ( Vernon' s Supp. 1980) to bid total contract amounts only to DBEs/WBEs . Based on these rulings , the City of Beaumont cannot take the whole contract and allow only DBEs/WBEs to bid on it , but the City can specify in the contract with the prime contractor that a certain percentage of the contract money will be spent by the prime contractor with DBE,/WBE subcontractors . XVI . COUNTING PARTICIPATION TOWARD MEETING DBE/WBE GOALS DBE/WBE participation shall be counted toward meeting goals set in accordance with DOT ' s DBE/hBE regulations at 43 CFF? Fart 2? and the City of Beaumont ' s program as follows : 14 1 . Once a firm is determined to be an eligible DBE or WBE in accordance with the provisions specified in this program, the total dollar value of the contract awarded is counted toward ttie applicable goal . 2 . The total dollar value of a contract to a firm owned and controlled by both disadvantaged males and non-disadvantaged females is counted toward the goals for DBEs and WBEs respectively, in proportion to the percentage of ownership and control of each group in the business . The total dollar value of a contract with a firm owned and controlled by disadvantaged women is counted toward either the DBE goal or the WBE goal , but not to both. The contractor employing the firm or the City of Beaumont may choose the goal to which the contract value is applied. 3 . The City of Beaumont or the contractor employing a DBE: or WBE firm may count toward its goals a portion of the total dollar value of a contract with a joint venture eligible under the DBE/WBE eligibility criteria specified herin equal to the percentage of the ownership and control of the DBE or WBE partner in the joint venture . 4 . The City or a contractor will count toward its goals only expenditures to DBEs or WBEs thit perform a commercially useful function in the work of a contract . A DBE or WBE considered is to perform a commercially useful function when it is responsible for execution of a distinct element. of the work of a contract and carrying out its responsibilities by actually performing, managing, and supervising the work involved . To determ=ine O �e/10 15 whether a DBF/WBE is performing a commercially useful function , the City or a contractor shall evaluate the amount of work subcontracted, industry practices , and other relevant factors . 5 . Consistent with normal industry practices , a DBE or WBE may enter into subcontracts . If a DBE or WBE contractor subcontracts a significantly greater portion of the work of the contract than would be expected on the basis of normal industry practices , the DBE/WBE shall be presumed not to be performing a commercially useful function . The DBE,,/WBE may present evidence to rebut this presumption to the City . The City ' s decision on the rebuttal of this presumption is final , subject to review by the Department of Transportation in instances of DOT-assisted contracts , 6 . The City or a contractor may count toward its DBE/WBF goals expenditures for materials and supplies obtained from DBF/WBE suppliers and manufacturers provided that the DBFs/WBEs assume the actual and contractual responsibility for the provision of the materials and supplies . The City or a contractor may count its entire expenditure to a DBE/WBE manufacturer ( i . e . , a supplier that produces goods from raw materials or substantially alters them before resale:; . The City will count 20 percent of its expenditures to DBE/WBF suppliers that are not manufacturers , provided that such suppliers perform a commercially useful function in the supply process . , . ~ APPENDIX ' ( To be included in all Bid Solicitations ) 'TACHMENT 1 , Page I of I INFORMATION TO BE INCLUDED IN ALL CONTRACT DOCUMENTS A. Policy. It is the policy of the Department of Transportation that small and disadvantaged businesses and women-owned businesses as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement . Consequently, the DBE and WBE requirements of 49 CFR Part 23 , as amended will be included in all contract documents . B . DBE/WBE Obligation . The City of Beaumont or its contractor agrees to insure that small and disadvantaged businesses and women--owned businesses as defined in 49 CFR Part 23 , have the maximum opportunity io participate in the performanen of contracts and subcontracts financed in whole or in part with KO . T . funds provid- d under this agreemani . in this regard , the Cif or its contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to insure that DBEs and WISES have- the maximum opportunity to compete for and perform contracts . The City and its contractors shall not discriminate on the basis of race, color , national origin , or sex in the award and performance of DOT-assisted contracts . C . The City shall advise each subrecipient , contractor , or subcontractor that failure to carry out the requirements set forth in this program shall constitute a breach of contract and , after the notification of the Department , may result in termination of the agreement or contract by the City or such remedy as the City deems appropriate . 18 TTACHMENT 2 , Page I of 2 INFORMATION TO BE INCLUDED IN CONTRACT DOCUMENTS WITH CONTRACT GOALS A. Policy . It is the policy of the Department of Transportation that small and disadvantaged businesses and women-owned businesses as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement . Consequently, the DBE and WBE requirements of 49 CFR Part 23 , as amended will be included in all contract documents . B . DBE/WBF Obligation . The City of Beaumont or its contractor agrees to insure that small and disadvantaged businesses and women-owned businesses as defined in 49 CYR Part 23 , hav,= the maximum opportunity to part if., i-pat (- in the performance of coniracts and suhc,ontvacts mane--c! in wholr, ,-)r in : ,, -, t with D . O . T . funds provided under this agree.ment , In this regard , the City or its contractors shall take all necessary and reasonable steps Jin accordance with 49 CFR Part 23 to insure that DBEs and WBEs have the maximuir opportiin .lty to compete for and perform contracts . The- City and its contractors shall not discriminate OD the basis of race , color , national origin , or sex in the award and performance of DOT-assisted contracts . C . Th(-, Citv shall advise eac-h subrecipient , contractor , or subcontractor that failure to carry out the requirements set forth in this prograi,,,, shall constitute a of conti- cjc1L drid , after t is n ot F ca t i c I n o f t h cl rlep a r- i TV e n t m o.v r-t-_�s ti 1 t in t k,r m i n a t ion o f th o a t,i u,_-,me,iii or c ozi t ra c t L)y the C t y or _U Ch 1,eme dy -j t 11 Cl' I t ATTACHMENT 2 , Page 2 of 2 D . In addition , the following items will be provided to prospective bidders in the specification documents : 1 . DBE/WBE goals ; (Attachment 3 ) 2 . DBE/WBE selection criteria; (Attachment 4) 3 . Certification Schedules A and B ; 4 . DBE and WBE definitions ; (Attachment 3 ) 5 . Methods of counting DBE/WBE participation; (Attachment 5 ) 6 . Form for reporting names and addresses of DBE/WBE subcontractors , work to be performed, and dollar value of each proposed DBE/WBE contract . (Schedule C) 7 . Eligibility standards ; ( Attachment 6) 8. Guidance for making determinations for social and economic disadvantage; ( Attachment 7 ) 9. Challenge procedure ; "Attachment 8) 10 . Appeals of denial of certification as a DBE or WBE ; (Attachment 9) 11 . Decertification Procedure (Attachment 10) -�s� � go ATTACHMENT 3 , Page 1 of 5 INSTRUCTIONS TO "BIDDERS REGARDING THE CITY OF BEAUMONT DISADVANTAGED/WOMEN-OWNED BUSINESS ENTERPRISE PROGRAM The City of Beaumont has a Disadvantaged/Women-Owned Business Enterprise program which has set goals of 10%8 of the contract amount for participation on the part of small and disadvantaged businesses and 3% women-owned businesses in DOT-assisted projects . Failure to carry out the requirements set forth in this program shall constitute a breach of contract and, after notification of the Department of Transportation , any result in termination of the agreement or contract by the City, or such other remedy as the City deems appropriate . For purposes of this program: "small and disadvantaged business" (DBE) means a small business concern which (a) is at least 51 percent owned by one or more socially and economically disadvantaged individuals , or , in the case of any publicly owned business , at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals , and (b) whose management and daily business operation are controlled by one or more of the socially and economically disadvantaged individuals who own it. . "Small business concern" means a small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. "Socially and economically disadvantaged individuals" means those individuals who are citizens of the United States ( or lawfully admitted permanent residents ) who are Black American, Hispanic Americans , Native Americans , Asian-Indian, Americans and any other minorities or individuals found to be disadvantaged by thE. Small Business xe_6�Z�16, 21 ATTACHMENT 3 , Page 2 of 5 Administration pursuant to Section 8( a) of the Small Business Act . The City shall make a rebuttable presumption that individuals in the following groups are socially and economically disadvantaged. The City also may determine, on a case-by-case basis , that individuals who are not a member of one of the following groups are socially and economically disadvantaged. (a) "Black Americans" which includes persons having origins in any of the Black racial groups of Africa. (b ) "Hispanic Americans" which includes persons of Mexican , Puerto Rican , Central or South American , or other Spanish culture or origin , regardless or race. (c) "Native. Americans" which includes persons who are American Indians , Eskimos , Aleuts , or Native Hawaiians . (d) "Asian-Pacific Americans" which includes persons whose origins are from Japan , China, Taiwan , Korea , Vietnam, Laos , Cambodi :� , the Philippines , Samoa , Guam, the U. S . Trust Territories of the Pacific , and the Northern Marianas . (e) "Asian-Indian Americans" which includes persons whose origins are from India , Pakistan , and Bangladesh . "Women-owned business" (WBE) means a small business concern which ( a) 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 of which is owned by one or more women , and (b) whose management and daily business operations are controlled by one or more of the women who own it. . �� .��� 22 'TACHMENT 3 , Page 3 of b A ' Y In order to receive favorable consideration on this project , bidders are expected to provide assurances , in writing, that. at least 10% of the contract amount will go to disadvantaged businesses and at least 3% will go to women business enterprises . This can be done by completing the bottom portion of this attachment and supplying whatever other supplemental information necessary . In any event , the lowest bidder, meeting the DBE/WBE requirements will receive the most favorable consideration. THE UNDERSIGNED BIDDER HEREBY ASSURES THAT HIS/HER FIRM IS IN COMPLIANCE WITH THE CITY OF BEAUMONT ' S DBE/WBF PROGRAM AND HAS A GOAL OF OF THE DOLLAR VALUE OF' THIS PROJECT FOR DISADVANTAGED BUSINESS AND ro FOR WOMEN--OWNED BUSINESSES . NAME OF COMPAN a' DATE SIGNATURE � TITLE ATTACHMENT 3 , Page 4 of 5 ' s SUPPLEMENTAL INSTRUCTIONS TO BIDDERS A. Other Attachments 1 . The selection criteria to insure that prime contractors are awarded to the bidder/proposer that meets DBE/WBE goals is outlined in Attachment 4 . 2 . The method for counting DBE/WBE participation toward meeting goals is discussed in Attachment 5 . 3 . The eligibility standards for determining whether firms are small business and are owned and controlled by disadvantaged persons or women are outlined in Attachment 6. 4. Guidance on determining social and economic disadvantage is set forth in Attachment 7 . 5 . The third party challenge procedure is described in Attachment 8 . 6. The process for appealing denials or certification as a DBE or WBE is outlined in Attachment 9. 7 . The procedure for decertifying DBE/WBE firms is outlined in Attachment 10 . B . In order to comply with the City of Beaumont ' s DBE/WBE requirements , it may be necessary to complete all of the following forms : 1 . Schedule A -- Certification of DBE/WBE Eligibility . This form must be completed and placed on file with the City for each DBF/WBE listed Jri Schedule C prior to contract. award . If t_hFa ��� 1 `- 24 ATTACHMENT 3 , Page 5 of 5 prime contractor is a DBE or WBE , Schedule A should accompany the bid submission . 2 . Schedule B - Joint Venture Eligibility. This form must be completed and placed on file with the City for all joint ventures between DBE/WBE and non-DBE/WBE firms on DOT-assisted projects . 3 . Schedule C - Schedule of DBE/WBE Participation . Bidders must indicate the DBE and/or WBE firms they propose to use, the type of work to be performed, and the dollar value of the Contract . The time allowed for submission of Schedule C will be set for individual contracts , and may vary , depending on circumstances , but will in all cases be after the deadline for submission of bids , and prior to contract award . C . Agreements between a bidder/proposer and DBEs and WBFs in which the DBE/WBF promises not to provide subcontracting quotations to other bidders/proposers are prohibited. �—'5 1 25 ATTACHMENT 4 , Page 1 of 4 SELECTION CRITERIA TO INSURE THAT PRIME CONTRACTS ARE AWARDED TO COMPETITORS THAT MEEfi DBE WBE GOALS A. If any competitor offering a reasonable price meets the DBE/WBE contract goal , the City shall presume that all competitors that failed to meet the goal have failed to exert sufficient reasonable efforts , and consequently are ineligible to be awarded the contract . B . To implement this presumption, the City shall determine whether the competitor offering the lowest price of firms meeting the DBE/WBE contract goal has offered a reasonable price for the contract : 1 . If it is determined that this competitor has offered a reasonable price, the City shell. award the contract to the firm; 2 . If the City determines that this competitor' s price is not reasonable , it shall consider the next price offered by the competitor with the highest percentage of DBE/WBE participation of those firms that failed to meet the goal . If the City determines that this price is reasonable , it shall award the contract to this competitor . 3 . If it is determined that this price is not reasonable, the City shall consider the other competitors that failed to meet the goal in order of their percentage of DBE/WBE participation until it selects one with a reasonable price ; ar,d, 4 . If it is determined that no competitor with DBE/WBE participation 'spas offered a reasonable price , L may awat_d the contract to any competitor that demonstrates that it has ,/`'�/v z C ,:::� 26 ATTACHMENT 4, Page 2 of 4 made sufficient reasonable efforts to meet the DBE/WBE contract goal . C . To decide whether a price offered by a competitor is reasonable, the City shall use the same criteria that it would use to determine whether, if the competitor had made the only offer to perform the contract , the City would award the contract . D. To demonstrate sufficient reasonable efforts to meet the DBE/WBE contract goal , a contractor shall document the steps it has taken to obtain DBE/WBE participation , including, but not limited to, the following. 1 . Attendance at a pre-bid conference , if any, scheduled by the City to inform DBEs and WBEs of subcontracting opportunities ur."cler a giver solicitation . 2 . Advertisement in general circulation media, trade association publications , and minority--focus media at least 20 days before bids or proposals are due. If 20 days are not available, publication for a shorter reasonable time is acceptable. 3 . Written notification to DBEs and WBEs that their interest in the contract is solicited. 4 . Efforts made to select portions of the work proposed to he performed by DBEs and WBEs in order to increase the likelihood of achieving the stated goal ; 5 . Efforts to negotiate with DBEs and/or WBEs for specific subbids including at minimum: 27 TTACHMENT 4 , Page 3 of 4 ( a) The names , addresses , and telephone numbers of DBEs and/or WBEs -that were contacted; (b ) A description of the information provided to DBEs and/or WBEs regarding the plans and specifications for portions of the work to be performed, and ( c) A statement of why additional agreements with DBEs and/or WBEs were not reached. 6. Concerning each DBE and/or WBE the competitor contacted but rejected as unqualified, the reasons for the competitor ' s conctusion : 7 . Ffforts, made to assist tht., DBE-4 and WBEs, contacted that nced, assistance in obtaining bonding ur insurance required 1)g the coripetitor or F . Compet Mors that fail to meet 11BF,/WBF goals and fail to demonstrate sufficient reasonable efforts shall not be eligible to be awarded the contract . F . To insure that all obligations under contracts awarded to DBEs and/or WBEs are met , the City shall review the contractor ' s DBE/WBE involvement efforts during the p(-_,rformance of the contract . The contractor shall bring to the attention of the City of Beaumorit , and situation in which regularly scheduled progress payments are not made to DBE/WBE contractors . 2 R TACHMENT 4 , Page 4 of 4 CHART I Selection Process for DBE/WBE Contracts Did any Bid Meet DBE WBE Goals at Reasonable Price? Yes Reasonably Priced None Reasonably BUT Priced Failed to Meet Goals Award to Lowest Responsive Bidder in This Group Reject Bids V V DBE/WBE Pari i c i P a 4 on No DBE/W11; Below -Goal Participation Award to that Bid which Bidden Can No Bidder Can has Highesi DBE/WBE Prove Reasonable Prove Reasonable Participation Efforts Efforts I Award to Lowest Responsive Bidder Reject Bids In This Group 1119 TTACHMENT v , Page I of 2 COUNTING PARTICIPATION TOWARD MEETING DBELWBE GOALS DBE/WBE participation shall be counted toward meeting goals set in accordance with DOT' s DBE/WBE regulations at 49 CFR Part 23 and the City of Beaumont ' s program as follows : 1 . Once a firm is determined to be an eligible DBE or WBE in accordance with the provisions specified in this program, the total dollar value of the contract awarded is counted toward the applicable goal . 2 . The total dollar- value of a contract to a firm owned and controlled by both disadvantaged males and non-disadvantaged females is counted tow:3rd the go-,tls for MBEs and WBEs respectively , in proportion to the percentage of ownership and control of each group in the business . The total dollar value of a contract with a f i_rtri ownr-d and controlled by disadvantaged women is counted toward either the DBE goal or the WBE goal , but not to both . The contractor employing the firm or the City of Beaumont may choose the goal. to which the contract value is applied. 3 . The City of Beaumont or the contractor employing a DBE or WBE firm may count toward its goals a portion of the total dollar value of a contract with a joint venture eligible under the DBEWBF eligibility criteria specified herein equal. to the percentage of the ownership and control of the DBE or WBF partner in the joint venture . 4 . The Cite or a contractor will. count toward its goals only expenditures to DBEs or WUEs that perform a commerci-+l l y use_Ful function in the work of a coat: act . A D=IL or, Whh is considered to pe rf orm n usr% Fiil fund i on wh( n it i s respons i cal e for- ev_!3_�f� 30 TTACHMENT 5 , Page 2 of 2 execution of a distinct element of the work of a contract and carrying out its responsibilities by actually performing , managing, and supervising the work involved. To determine whether a DBE/WBE is performing a commercially useful function, the City or a contractor shall evaluate the amount of work subcontracted , industry practices , and other relevant factors . 5 . Consistent with normal industry practices , a DBE or WBE may enter into subcontracts . if a DBE or WBE contractor subcontracts a significantly greater portion of the work of the contract than would be expected on the basis of normal industry practices , the DBF,/WBE shall be presumed not to be performing a commercially useful function . The DBF/WBF may present evidence to rebut this presumption to the City . The City ' s decision on the rebuttal of this presumption is final , subject to review by the Department of Transportation in instances of DOT-assisted contracts . F . The City or a contractor may count toward its DBF/WBE goals expenditures for materials and supplies obtained from DBE/WBE suppliers and manufacturers prokdded that the DBEs/WBEs assume the actual and contractual responsibility for the provision of the materials and supplies . The City or a Contractor may count its entire expenditure to a DBE/WBE manufacturer ( i . e . , a supplier that produces goods from raw materials or substantially alters them before resale) . The City will count 20 percent of its expenditures to DBE/WBF suppliers that ate not manufacturers , provided that sueti, suppliers perform a commercially user" I function in the supVly process . 31 TACHMENT 6 , Page 1 of 7 ELIGIBILITY STANDARDS A. Determination of Small Business Status In determining the eligibility of a business as a DBE or WBE , the City will first determine whether or not the firm is a small business concern as defined by Section 8 of the Small Business Act . If a business is not a small business concern according to these standards , it is not eligible to participate as a Women—Owned, or a small and disadvantaged business under 49 CFR Part 23 , as amended . This is true even though the business may be owned and controlled by women , or socially and economically disadvantaged individuals , and is eligible in all other respects . Even a firm certified by the SBE under the 8! a program is not eligible under this regulation if it is not also a small business . In determining whether u business is a small business concern , the City shall apply the standards established by the Small Business Administration in 13 CFR Dart 121 as follows : 1 . Subcontracts of $10 , 000 or less : A business is small if, including its affiliates , it does not have more than 500 employees . 2 . Subcontracts over $10 , 000 and prime contracts : A business is regarded as small if it meets the following; criteria: ( a ) Construction ( l 1 General Construct icon ( in which less than 75 p ranni of' the work falls into one of the categories in paragraph • �� .1 2 ATTACHMENT 6 , Page 2 of f The firm' s average annual receipts for three preceding fiscal years do not exceed $17 million . (2) Special trade contractors : Maximum average annual receipts in preceding Type of Firm 3 fiscal years Plumbing, heating (except electric) and air $7 million for all conditioning types of contractors Painting, paperhanging, and decorating on this list Masonry, stone setting, and other stonework Plastering, drywall , acoustical and insulating work Terazzo, tile, marble, and mosaic work Carpentering and flooring Floor laying and other floorwork Roofing and sheet metal work Concrete work Water- well drilling Structural steel erection Glass and glazing work Excavating and foundation work Wrecking and demolition work Tnstallct._ion or erection of building equipment. Special trade contractors , no elswhere classified (b ) Suppliers of manufactured goods : The firm. including its affiliates , must not have more than 500 employees . (c) Service Contractors : Maximum average annual. receipts in preceding 3 fiscal years Type of Firm min millions of dollars ) Engineering $7 . 5 Janitorial and custodial 8. 0 Computer programming or data processing 7 . 0 Computer maintenance 7 . 0 Protective Service 4 . 5 Others not mentioned in 13 CRF 121 . 3-B ( e ) 2 . 0 -, ',-5-,{_g":�7 3 3 ATTACHMENT 6, Page 3 of 7 F y B . Determination of Ownership and Control The additional following standards shall be used in determining whether a firm is 51 percent owned by socially and economically disadvantaged individuals or women , and whether one or more of the owners control the firm. Businesses aggrieved by the determination may appeal in accordance with procedures set forth in Attachment 8. 1 . Bona fide disadvantaged group membership shall be established on the basis of the individual ' s claim that he or she is a member of a disadvantaged group and is so regarded by that particular disadvantaged community. However , the City is not required to accept this claim if it determines the claim to be invalid. ? . An eligible DBF or WBE shall be an independent business , and a . The ownership and control by disadvantaged persons or women shall be real , substantial , and continuing and shall go beyond the pro forma ownership of the firm as reflected in its ownership documents . b . The disadvantaged or women owners steal -' enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests , as demonstrated by an examination of the substance rather than form or arrangements . C. Recognit.ion of the business as a separate entity for tax or corporate purposes is not necessarily sufficient for recognition as a DBE or WBE . "��� 34 a ATTACHMENT 6, Page 4 of 7 d. In determining whether a potential DBE or WBE is an independent, business , the City shall consider all relevant. factors , including the date the business was established, the adequacy of its resources for the work of the contract , and the degree to which financial , equipment leasing, and other relationships with non-minority firms vary from industry practice. 3 . The disadvantaged or women owners shall also possess the power to direct or cause the direction of the management and policies of the firm and to make day--to-day as well as major decisions on matters of management , policy , and operations . The firm shall not be subject to any formal or informal restrictions which limit the customary discretion of the disadvantaged or women owners . There shall be no restrictions through , for example , by-law provisions , partnerhsip agreements , or charter requirements for cumulative voting rights or otherwise that prevent the disadvantaged or women owners , without the cooperation or vote of any owner who is not disadvantaged or a woman , from making a business decision of the firm. 4 . If the owners of the firm who are not disadvantaged or women are disproportionately responsible for the operation of the firm , then the firm is not, controlled by disadvantaged individuals or women and shall not be considered a DBE or WBE within the meaning of this program. Where the actual management of the firm is contracted out to individuals other than the owner , those persons who have the u' timate power to hire and fire the ��� C v 35 ATTACHMENT 6, Page 5 of 7 managers can, for the purpose of *this part , be considered as controlling the business . 5 . All securities which constitute ownership and/or control of a corporation for purposes of establishing it as a DBE or WBE shall be held directly by disadvantaged persons or women. No securities held in trust , or by any guardian for a minor, shall be considered as held by a disadvantaged individual or a woman in determining the ownership or control of a corporation . 6 . The contributions of capital or expertise by the disadvantaged or women owners to acquire their interests in the firm shall be real and substantial . Examples of insufficient. contributions include a promise to contribute capital , a note payable to the firm or its ou.r:ers who are not socially and economically disadvantaged, or the mere participation as an employee, rather than as a manager . C . In addition to the above standard, the City shall give special attention to the following circumstances in determining eligibility under this program: 1 . Newly formed firms , and firms whose ownership and/or control has changed since the date of the advertisement of the contract , are closely scrutinized to determine the reasons for the timing of the formation of, or change in , the firm. Z . A previous and/or continuing employer- employee relationship between or among present owners is carefully reviewed to ensure 'TACHMENT 6, Page 6 of 7 that the employee-owner has management responsibilities and capabilities discussed in this section . 3 . Any relationship between a DBE/WBE and a business which is not a DBE or WBE which has an interest in the DBE/WBE is carefully reviewed to determine if the interest of the non-DBE/WBE conflicts with the ownership and control requirements of this program. D . A joint venture is eligible under this program if the DBE/WBE partner of the joint venture meets the standards for an eligibl- DBE,"WBE set forth above , and the DBE,"WBE partner is responsible I or a clearly defined portion of the work to be performed and shares in the ownership , control , ni.a.r.agelitent respor)sibi l i i ies , rlls-ks , and profits of the joint venture . E . A business wishing to he certified as a DBY or WBE or Joint venture DBF.'WBE by the City, shall cooperate with the City by supplying additional information which may be requested in order to make a determination . F. Once certified , a DBE or WBE shall update its submission annually by submitting a new Schedule A or certifying that: the Schedule A on, filE-' is still aC(:LtrFt (, , if at any t4M,- tll(,r(- 4S L - J a change in ownership or control. of the firm , the firm sha'JI submit a new Schedule A. C . P f.-hmenl 9 , the rlenjal c.t' i cf- rt .i -rication by F x c et I i s r)1,ov i d e(I i n A t t -i the City of Beaumont shall. be. final f o r t h.--I t C or,t ra-t a Ild C,t L,--- o n t r a is being i I f,t by the C i t y a i I TI c t i Ili f, ()f t11 (1 e r)i a I of L i. 1, 1Cat i <)11 D B E S , VV B s and J u i I I f V e 1) t 1-1 1,f-s d el i d t i f i i o ,A4 ATTACHMENT 6, Page 7 of 7 F may correct deficiencies in their ownership and control and apply for certification only for future contracts . H. The City shall safeguard from disclosure to unauthorized persons information that reasonably may be regarded as confidential business information, consistent with Federal , state and local law. ATTACHMENT 7 , Page I of 7 GUIDANCE FOR MAKING DETERMINATIONS FOR SOCIAL AND ECONOMIC DISADVANTAGES A. Before making any determination of social and economic disadvantage, the City will determine whether a firm is a small business concern as described in Attachment 6 . If it is not , then the firm is not eligible to be considered a disadvantaged business , and no further determinations need be made. B . Under the definition of "socially and economically disadvantaged individual" , members of the named groups (Black Americans , Hispanic Americans , Native Americans , Asian--Pacific Americans , and Asian-Indian Americans ) and persons certified as socially and economically disadvantaged by the Small Business Administration under the SBE ' s Section 8( a ), program are presumed to be both socially and economically disadvantaged . This presumption is rebuttable . A third party may challenge the eligibility of a firm certified by the City by presenting evidence that the firm' s owners are not truly socially and/or economically disadvantaged, even though they are members of one of the presumptive groups . In case of challenge, the City will follow the procedure described in Attachment 8. C . Any person who has been certified by SBA under its 8(a) program as socially and economically disadvantaged is automatically considered to be a socially and economically disadvantaged individual . However- , the absence of an 8( al/ certification does not meat) that an individual or firm is inc, ligible . 39 ATTACHMENT 7 , Page 2 of r D . The City will make its own judgment about whether an individual is in fact a member of one of the presumptive groups . If' an individual has not maintained identification with the group to the extent that he or she is commonly recognized as a group member, it is unlikely that he or she is will in fact have suffered the social disadvantage which members of the group are presumed to have experienced. If an individual has not held himself or herself out to be a member of one of the groups , has not acted as a member of a community of disadvantaged persons , and would not be identified by persons in the population at large as belonging to the disadvantaged group, the individual should be required to demonstrate social disadvantage on an individual basis . For example. , an individual could demonstrate that he had a Chinese ancestor . However , this hypothetical person has never lived in a Chinese-American community, has held himself out to be white for driver ' s license or other official record purposes , has not previously claimed to be a Chinese-American , and would not be perceived by others in either the Chinese-American community or non-minority community to be a Chinese-American (or any other sort of Asian-Pacific American) by virtue of his appearance , culture , language or associations . The City would not regard this individual to be an Asian-Pacific American . E . Individuals who are not presumed to be socially and economically disadvantaged by virtue of membership in one of the presumptive groups may, nevertheless , bf• found to be socially and economically disadvantages( on a case-by--case basis . it an individual requests that his or her business be certified as an eligible dis�idvantaged �� �� 40 TACHMENT 7 , Page 3 of 7 business , the City as a part of its certification process , is responsible for making a determination of social and economic disadvantage. In making determinations of social and economic disadvantage , the City will be guided by the following standards , which have been adopted from materials prepared by the SBA . 1 . Elements of Social Disadvantage In order to determine that an individual is socially disadvantaged, the City must conclude the individual meets the following standards . ( a) The individual ' s social disadvantage must stein from hi F: ot- her color ; national origin < gender ; physical handicap ; long­ term residence ii., an envirr,,nmei-it isolatc-, front the mainstream of American society ! or other similar cause beyond the individual ' s control . The individual cannot establish social disadvantage on the basis of factors which are common to small business persons who are not socially disadvantaged . For example , because of their marginal financial status , many small businesses have difficulty obtaining credit through normal banking channels . An individual predicating a social disadvantage claim on denial of bank credit to his or her firm would have to establish that tlir= dler.ial was on one or more of the listed causes " or siini I -i Ll fz, ; 1)0 t individual ' s or the fi_ rin ' ., inarpi-11al finanriaO 41 ATTACHMENT 7 , Page 4 of 7 (b) The individual must demonstrate that he or she has personally suffered social disadvantage, not merely claim membership in a non-designated group which could be considered socially disadvantaged. This can be achieved, for example, by describing specific instances of discrimination which the individual has experienced, or by recounting in some detail how his or her development in the business world has been thwarted by one or more of the listed causes or similar causes . As a general rule, the more specific an explanation of how one has personally suffered social disadvantage , the more persuasive it will be . In assessing such facts , the City will place substantial weight on prior administrative or judicial findings of discrimination experienced by the individual . Such findings , however , are not necessarily conclusive evidence of an individual ' s social disadvantage, nor are they a prerequisite for establishing social disadvantage. (c) The individual ' s social disadvantage must be rooted in treatment which he or she has experienced in American society, not in other countries . ( d) The individual ' s social disadvantage must be chronic, longstanding, and substantial , not fleeting or insignificant . Typically, a number of incidents illustrating a person ' s social disadvantage, occurring over a substantial period of tinge , would be necessary to make a successful claim. Usually, only by demonstrating a series of obstacles which have imt>ed,ad one ' s progress in the 42 ATTACHMENT 7 , Page b of 7 d business world can an individual demonstrate chronic, longstanding, and substantial social disadvantage . {e} The individual ' s social disadvantage must have negatively affected his or her entry into, and advancement in, the business world. The closer the individual can link social disadvantage to impairment of business opportunities , the stronger the case. For example, the City would place little weight on annoying incidents experienced by an individual which have had little or no impact on the person ' s career or business development . On the other hand, the City would place greater weight on concrete occurrences which have tangibly disadvantaged an individual in the business world. 2 . Evidence of Social Disadvantage. . The City will entertain any relevant evidence in support of an individual ' s claim of social disadvantage. In addition to a personal statement from the individual claiming to be socially disadvantaged, such evidence may include, but is not limited to, third party statements ; copies of administrative or judicial findings of discriminations , and other documentation in support of matters discussed in the personal statement . The City will particularly consider and place emphasis on the following experiences of the individual , where relevant ; education , employment and business history . However, the individual may present evidence relating to other- matters as well . Moreover , the attainment of a quality education or job should not absolutely disqualify the individual from being ��� Q43 AACHMENT 7 , Page 6 of 7 found socially disadvantaged if sufficient other evidence of social disadvantage is presented . ( a) Education . The City will consider, as evidence of an individual ' s social disadvantage , denial of equal access to business or professional schools , denial of equal access to curricula, exclusion from social and professional association with students and teachers , denial of educational honors , social patterns or pressures which have discouraged the individual from pursuing a professional or business education , and other similar factors . ( b ) Employment . The City will consider , as evidence of an individual ' s social disadvantage : discrimination in hiring , discrimination in promotions and other aspects of professional advancement , discrimination in pay and fringe benefits , discrimination in other terms and conditions of employment , retaliatory behavior by an employer , social patterns or pressures which have channelled the individual into non-professional or non-business fields , and other similar factors . ( c ) Business History, The City will consider, as evidence of an individual ' s social disadvantage , unequal access to credit or capital , acquisition of credit under unfavorable circumstances , discrimination in receipt ( award and/or bi & or government contracts , discrimination by potential clients , exclusion from business or professional 4 il ATTACHMENT 7 , Page 7 of 7 organizations , and other similar factors which have retarded the individual ' s business development . 3 . Economic Disadvantage. The City will always make a determination of social disadvantage before proceeding to make a determination of economic disadvantage. If the City determines that the individual is not socially disadvantaged, it is not necessary to make the economic disadvantage determination . As a general rule, economically disadvantaged individuals are socially disadvantaged individuls whose ability to compete in tlae free enterprise system has been impaired due to diminished capital and credit opportunities , as compared to others in the same or similar line of business and competitive market, area who are not socially disadvantaged . In determining the degree of diminished credit and capital opportunities of a socially disadvantaged individual. , consideration will be given to both the disadvantaged individual. and the applicant concern with which he or she is affiliated . It is the responsibility of applicant firms and their owners to provide information to the City about their economic situation when they seek eligibility as disadvantaged businesses . TACHMENT 8, Page I of 3 CHALLEN. - PROCEDURE A. To challenge the eligibility of a firm that the City has certified, a third party may present evidence that the firm' s owners are not truly socially and/or economically disadvantaged, even though they are members of one of the presumptive groups . B . The City' s challenge procedure will be as follows : 1 . Any third party may challenge the socially and economically disadvantaged status of any individual ( except an individual who has current 8 ( a) certification from the Small Business Administration ) presumed to be socially and economically disadvantaged if that individual is an owner of a firm certifier! by or seeking certification from the City as a disadvantaged business . The challenge shall be made in writing to the City , 2 , With its letter , the challenging party shall include all information available to it relevant to a determination of whether the challenged party is in fact socially and economically disadvantaged . � a) If the City determines that there is not reason to believe that the challenged party is not socially and economically disadvantaged, the City shall so inform the challenging party in writing . This terminates the proceeding . Tf the City determinev that t. here is reason t beii -ve thol the ohallengmd party is not socially and eponomicqlly disadvantaged, the City shall begin a proceeding as provided in thn fnil owl ng payagrapbs 4 , 5 , and G . I G1 ATTACHMENT 8, Page 2 of 3 < L 4 . The City shall notify the challenged party in writing that his or her status as a socially and economically disadvantaged individual has been challenged . The notice shall identify the challenging party and summarize the grounds for the challenge. The notice shall also require the challenged party to provide the City, within a reasonable time, information sufficient to permit the City to evaluate his or her status as a socially and economically disadvantaged individual . 5 . The City shall evaluate the information available to it and make a proposed determination of the social and economic disadvantage of the challenged party . The City shall notify both parties of this proposed determination in writing, setting forth the reasons for its proposal . The City shall provide an opportunity to the parties for an informal hearing , at which they can respond to this proposed determination in writing and in person . 6 . Following the informal hearing, the City shall make a final determination . The City shall inform the parties in writing of the final determination , setting forth the reasons for its decision . 7 . In making the determination called for in paragraphs 3 , 5 , and 6 of this procedure, the City shall use the standards set forth in Attachment 6. 8. During the pendency of a challenge under this attachment. , the presumption that the challenged party is a socially and economically disadvantaged individual shall remain, ii, effect . 'Ooe—O 5=.,G`' 'G' 47 ATTACHMENT 8, Page 3 of C . The final determination of the City may be appealed to the Department of Transportation by the adversely affected party to the proceeding under the procedures of 49 CFR 23 . 55 . 48 a ATTACHMENT 9, Page 1 of 2 APPEALS OF DENIAL OF CERTIFICATION AS A DBE OR WBE A. Filin Any firm which believes that it has been wrongly denied certification as a DBE/WBE or joint venture by the City may file an appeal in writing, signed and dated , with the Department of Transportation . The appeal shall be filed no later than 180 days after the date of denial of certificatton. The Secretary of Transportation may extend the time for filing or waive the time limit in the interest, of justice, specifying in writing the reasons for so doing . Third parties who have reason to believe that another firm has been wrongly denied or granted certification as a DBE , WBE or joint venture may advise the Secretary . This information is not considered an appeal pursuant to this section. B . Decision to Invesligate The Secretary insures that a prompt investigation is made pursuant to prescribed DOT Title VI investigation procedures . C . Status of Certification During the Investigation The Secretary may at his/her discretion , deny the DBE , WBE or joint venture in question eligibility to participate as a DBE/WBE in DOT-assisted contracts let during the pendency of the investigation , after providing the DBE , WBE or joint venture in question an opportunity to show cause by written statement to the Secretary why this should not occur. D . Cooperation in Investigation All parties shall cooperate fully with the investigation . Failure or refusal to furnish requested information or- other failure to cooperate is a violations of this procedure . ,�`-- O —.•G 49 ATTACHMENT 9, Page 2 of 2 E . Determinations The Secretary makes one of the following determinations and informs the DBE , WBE or joint venture in writing of the reasons for the determination: ( 1) The DBE , WBE or joint venture is certified; or (2) The DBE , WBE or joint venture is not eligible to be certified and is denied eligibility to participate as a DBE or WBE in any direct or DOT-assisted contract until a new application for certification is approved by the City. 50 ATTACHMENT 10 , Page I of 2 DECERTIFICATION PROCEDURE A . Reasons for Decertification The City reserves the right to decertify an existing DBE/WBE for any of the following reasons . ( 1 ) The firm' s structure has changed to the extent that the business is no longer owned or controlled by aneligible person ( s ) ; ( 2) The business is no longer active ; ( 3 ) The business is not financially responsible; (4 ) The business is not competent to do the work for which it was certified in accordance with generally accepted industry standards ; The firm has refused or failed without good cause to perform the work for which it was certified; and ( 6) The business has failed to comply with the City' s request for documents , including an annual Schedule A, and other documents required for continuation of certification , or has failed or refused to permit inquires of bonding companies , banking institutions ; previous and/or existing contractors and clients, to ascertain the history of the firm ' s financial responsibility and contract performance . Faiilure to permit such inquires and subM4ttal of necessary documents will be ground--, for decertification . 51 'ACHMENT 10 , Page 2 of B . The Decertification Processes is as Follows : 2 . Irregularities of any certified DBE/WBE business with regards to ownership , control , financial responsibility or competency, including refusal or failure to perform will be reported to the liaison officer in writing. If the irregularity is verified, the liaison officer will issue a written notice to the DBE/WBF detailing the verified irregularities and stating why decertification is being recommended . This notice will indicate a specific date (within 30 working days ! for the certified party to meet with the liaison office and/or any other necessary designee involved in the decertification process . This meeting will provide the DBE/WBF the opportunity to defend or clarify the firm ' s irregularities . The liaison officer reserves the right to the final decertification decision . All written rebuttals must be submitted to the liaison officer within ten working days of the decertification meeting. 2 . Decertification firms may re-apply for certification one year from the date of the final order . 5,1 CITY OF BEAUMONT schedule A DISADVANT. :D BUSINESS/WOMEN-OWNCD BUSINES -NTERP?ISES CERTIFICATION FORM 1 . Name of Firm 2. Address 3. Phone Number 4. Legal Structure: Sole-Proprietorship [1 Joint Venture [� Corporation [� Partnership [� Other, Specify [� 5. Nature of Business 6. Number of years in Business *7. Ownership: Identify those who own 5% or more. Columns e and f need to be filled out only if the firm is less than 100 percent minority owned. (a) (b) (c) (d) (e) (f) Years of Ownership Voting Name Race Sex Ownership Percentage Percentage With firms less than 100 percent minority owned, list the contributions of money, equipment, real estate, or expertise of each of the owners: Name Money Equipment Real Estate Expertise *NOTE : Use the following codes for race information: p B=Black; H=Hispanic; C=Caucasian ; and , O=Other '5;;4) 53 Schedule A Certification For: CONTROL OF FIRM: Identify by name, race, sex, and title in the firm those individuals (including owners and non-owners) who are responsible for day-to-day management and policy decision-making, including, but not limited to, those with prime responsibility for: Name Race Sex Title Financial Decisions Management Decisions , such as estimating, marketing/sales, hiring/firing of management per- sonnel , and pur- chases of major items/supplies Supervision of Field Operations 9. For each of those listed in question B, provide a brief summary of the person's experience and number of years with the firm, indicating the person's qualification for the responsibilities given him/her. 10. Describe or attach a copy of any stock options or other ownership options that are outstanding, and any agreements between owners or between owners and third parties which restrict ownership or control of DBE/WBE owners . ���� � 54 Schedule A Identify any owner (see item 7) or management official (see item 8) of the named firm who is or has been an employee of another firm that has an ownership interest in or a present business relationship with the named firm. Present business re- lationships include shared space, equipment, financing, or employees as well as both firms having some of the same owners. 12. What are the gross receipts of the firm for each of the last two years? Year ending $ Year ending $ 13. Name of bonding company, if any: Bonding Limit: 14. Are you authorized to do business in the state as well as locally? Yes F-1 No 1— { Licenses Held: 15. Indicate if this firm or other firms with any of the same officers have previously re- ceived or been denied certification or participation as an MBE and describe the circumstances Certifying Authority Date of Certification (or Denial ) 55 Schedule A AFFIDAVIT CERTIFICATLQN OF ELIGIBILITY "The undersigned swears that the foregoing statements are true and correct and include all material information necessary to identify and explain the operations of (name of firm) as well as the owner- ship thereof. Further, the undersigned agrees to provide through the prime con- tractor of, if no prime, directly to the grantee current, complete and accurate information regarding actual work performed on the project, the payment therefor and any proposed changes, if any, of the foregoing arrangements and to permit the audit and examination of books, records and files of the named firm. Any material mis- representation will be grounds for terminating any contract which may be awarded and for initiating action under Federal or State laws concerning false statements." NOTE: If, after filing this Schedule A and before the work of this firm is completed on the contract covered by this regulation, there is any significant change in this information submitted, you must inform the City of Beaumont of the change through the prime contractor or, if no prime contractor, inform the City directly. Signature Name Title Date Corporate Seal (where appropriate) Date State of County of ������ 56 Schedule A 9 e On this day of , 19__, before me appeared to me personally known, who being duly sworn , did execute the foregoing affidavit, and did state that he/she was properly authorized by (name of firm) to execute the affidavit and did so as his/her free act and deed. Notary Public Commission Expires SCHEDULE B CITY OF BEAUMONT DISADVANTAGED BUSINESS/WOMEN-OWNED BUSINESS ENTERPRISE JOINT VENTURE ELIGIBILITY (This form need not be filled in if all joint venture firms are are DBE/WBE owned) . 1 . Name of Joint Venture 2. Address 3. Phone Number 4. Identify the firms which comprise the joint venture. (The MBE partner must complete Schedule A. ) (a) Describe the role of the DBE/WBE firm in the joint venture. (b) Describe very briefly the experience and business qualifications of each DBE/WBE joint venture. 5. Naure of the joint venture's business 6. Provide a copy of the joint venture aareement. JEDULE B 7. What is the claimed percentage of DBE/WBE ownership? 8. Ownership of joint venture: (This need not be filled in if described in the joint venture agreement, provided by question 6. ) (a) Profit and loss sharing. (b) Capital contributions , including equipment. (c) Other applicable ownership interests . 5. Control of and participation in this contract. Identify by name, race, sex, and "firm" those individuals (and their titles) who are responsible for day- to-day management and policy decisionmaking, including, but not limited to, those with prime responsibility for: (a) Financial decisions (b) Management decisions, such as : (1 ) Estimating (2) Marketing and sales (3) Hiring/Firing of management personnel (4) Purchasing of major item/supplies (5) Supervision of field operations Note: If, after filing this Schedule B and before the completion of the joint venture's work on the contract covered by this regulation, there is any significant change in the information submitted, the joint venture must inform the City, either directly or through the prime contractor if the joint venture is a subcontractor. 59 Schedule C JOINT VENTURE The undersigned swear that the foregoing statements are correct and include all material information necessary to identify and explain the terms and operation of our . joint venture and the intended participation by each joint venturer in the undertaking. Further, the undersigned covenant and agree to provide to the City current, complete and accurate information regarding actual joint venture work and the payment therefor and any proposed changes in any of the joint venture arrangements and to permit the audit and examination of the books, records and files of the joint venture, by authorized representatives of the City or the Federal funding agency,. Any material misrepresentation will be grounds for terminating any contract which may be awarded and for initiating action under Federal or State law concerning false statements ." Name of Firm Name of Firm Signature Signature Name Name Title Title Date Date ate State of County of On this day of 19__, before me appeared to me personally known, who, being duly sworn, did execute the foregoing affidavit, and did state that he/she was properly authorized by (firm) to execute the affidavit and did so as his/her free act and deed. Notary Public Commission xpire Schedule C e (Seal ) Date State of County of On this day of , 19—, before me appeared to me personally known, who , being duly sworn, did execute the foregoing affidavit, and did state that he/she was properly authorized by to execute the affidavit and did so as his/her act and deed . Notary Public Commission Expires r, Schedule C Schedule of DBE/WBE Participation Date of Report �+ NAME OF PRIME CONTRACTOR Total Contract Amount $ Department tU Project No. Location T TYPE OF WORK ELECTRICAL, PAVING PROJECTED NAME OF MINORITY ADDRESS ETC. ) AND CONTRACT ITEMS OR PARTS COMMENCEMENT & AGREED CONTRACTOR THEREOF TO BE PERFORMED COMPLETION PRICE The undersigned will enter into a formal agreement with DBE/VIBE Contractors for work listed in this sche ule con itioned upon execution of a contract of a contract with the City of Beaumont. NOTE: 1 . Any business listed above must have Schedule A on file with the City. 2. Schedule C is due no later than working days after bid opening. Title