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HomeMy WebLinkAboutMINUTES - 09151992 - 2.1 TO: BOARD OF SUPERVISORS 1 Contra FROM: Phil Batchelor County Administrator Wu * DATE: September 15, 1992 oosrA�cc------ SUBJECT: Ratification and Adoption of Minority and Women Business Enterprise Program SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION- RECOMMENDATION(S): 1. FIND and DETERMINE that the facts recited in the Background/Reasons for Recommendations are true and correct. 2. FIND and DETERMINE that there is statistical, anecdotal and other evidence of pervasive discrimination against MBEs and WBEs within the private sector(i.e., construction, professional/personal services, and commodity vending trades) in Contra Costa County and other geographic areas with which the County does business. 3. FIND and DETERMINE that, within Contra Costa County and other geographic areas with which the County does business, the number"' of qualified MBEs and WBEs in the construction, professional/personal services, and commodity vending trades substantially exceeds the number of such firms utilized on both County and private projects; and that this under—utilization constitutes further evidence of discrimination against MBEs and WBEs. 4. FIND and DETERMINE that, while the NERA study did not establish discrimination on the part of the County, the County's conduct of business with firms in the private sector has the potential to counteract and discourage discrimination against MBEs and WBEs in the private sector. 5. FIND and DETERMINE that, in order to remedy discrimination against MBEs and WBEs in the private sector, it is necessary and desirable that the County continue its current M/WBE program in effect and make certain modifications to that program. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR_RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON Sept. 15, 1992 APPROVED AS RECOMMENDED_OTHER X FOR ACTION.TAKEN BY TETE .BOARD-ON THIS.ITEM SEE ADDENWM ATTACHED. VOTE-OF SUPERVISORS 4 I HEREBY CERTIFY THAT THIS IS A -M UNANIMOUS(ABSENT ) TRUE AND CORRECT COPY OF AND AYES: NOES: ACTION TAKEN AND ENTERED ABSENT: ABSTAIN: ON MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. , \ Contact: Emma Kuevor,646-4106 ATTESTED September 15, 1992 PHIL BATCHELOR,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR cc: CAO Affirmative ACtion Officer Interested Parties(via CAO) ' disk2:wbembe.bos BY 6. RATIFY and CONFIRM, pursuant to Public Contract Code section 2000, the United States Constitution and all other applicable legal authorities, the County's existing Minority and Women Business Enterprise Program, which was implemented in part by Board Orders dated September 15, 1987 and July 12, 1988, and ADOPT the following modifications to the County's existing program: a. The goals for MBE and WBE participation on County-funded construction projects shall be 14% and 6% respectively. These goals shall apply to all construction projects exceeding $25,000.00 or $10,000.00, depending upon the applicable public bidding statute. b. The goals for MBE and WBE participation on professional/personal services contracts entered into by the County shall be 24% and 44% respectively. Where services fall within a clearly identifiable Standard Industrial Classification (SIC) code to which different availability percentages apply, these goals will be lowered or raised accordingly. C. The goals for MBE and WBE participation on commodity purchases made by the County shall be 11% and 10% respectively. d. In order to receive credit against the above goals, an MBE or WBE must meet the size criteria of the Small Business Administration set forth in volume 13 of the Code of Federal Regulations, chapter 1. Verification of size parameters will be made during the certification process. There will be no self-certification. e. In order to receive credit against the above goals, an MBE must be owned, managed and controlled by a qualified person or persons from one of the ethnic groups listed in the definitions attached to this Board Order and must be certified by the County or another acceptable agency. The attached definitions are the same definitions used in the Census of Minority and Woman-Owned Businesses, which was used by NERA to determine M/WBE availability. European Spanish are included in the Hispanics group, but Portuguese are not. American Indians/Alaskan Natives are included in the.Asians and Other Minorities group. f. In order to receive credit against the above goals, a WBE must be owned, managed and controlled by a qualified woman or women and must be certified by the County or another acceptable agency. g. Firms owned, managed and controlled by minority women that are certified by the County or another acceptable agency shall receive credit against both MBE and WBE goals. h. In evaluating a-prime contractor's good faith effort to meet project M/WBE goals, the County shall consider the criteria attached to this Board Order, giving such weight to the various criteria as it deems appropriate. L Prime contractors on County-funded construction projects exceeding $1 million are encouraged to meet or exceed the federal and state standard goals for minority and women workforce participation of 25.7% and 6.9% respectively. 7. DIRECT the County Counsel to develop, for consideration and adoption by the Board, a procedure by which a contractor may object to a recommended determination by the Contract Compliance Officer that the contractor has failed to meet project goals or to demonstrate a good faith effort to meet the goals. 8. DIRECT the Public Works Department and General Services Department to do all of the following: a. Establish procedures soliciting and providing opportunities to certified MBEs and WBEs for County-funded construction contracts involving $25,000/$10,000 or less. b. No later than 15 days after the end of each calendar quarter, submit a report to the Contract Compliance Officer listing: (1) name of contract (2) type of contract (3) number of firms solicited (4) number of MBEs and WBEs solicited (5) dollar amount of contract (6) contract completion or expiration date (7) name of awardee (8) total number and dollar amount of contracts for the quarterly reporting period 2 C. Continue purchasing outreach activities to advise vendors of upcoming contracts, requirements and procedures. d. Advise and encourage prime contractors to pay all subcontractors, truckers and suppliers within ten days of receiving County payments. 9. DIRECT the Contract Compliance Officer to contact the AGC, Minority Business Development Agency, Women Contractors Association and minority contractors associations to request them to: a. Co-sponsor with Contra Costa County a series of workshops on bonding, financing, business strategies, working with suppliers, and business networking for MBEs and WBEs; b. Identify and develop a "pool" of certified MBE/WBE subcontractors, suppliers and truckers in the various trades; C. Refer MBEs and WBEs to the County for certification; d. Discuss and develop procedures to eliminate potential abuse in the certification process; and e. Develop guidelines for a successful subcontracting firm for MBEs and WBEs to use as a model. 10.. DIRECT the Contract Compliance Officer to advise all County departments to continue to establish and maintain a broad-based and diverse list of service providers for professional/personal services contracts. 11. DIRECT that, no later than December 31, 1997, the Contract Compliance Officer present to the Board updated data on the utilization of MBEs and WBEs by the County and the availability of MBEs and WBEs within the County's geographical market for the Board's consideration in reviewing the County's M/WBE program and the necessity for continuing or modifying the program. In addition, DIRECT that the Public Works Department and General Services Department gather and maintain adequate utilization data for each project (i.e., total amount paid to prime contractor or consultant, amount paid to each MBE and WBE, race/ethnicity of each MBE and WBE, etc.) to assist in such review and submit such data to the Contract Compliance Officer upon the completion of each project. 12. DIRECT the County Administrator's Office to continue its policy of considering, as a component of department head evaluations, the department's adherence to the County's Affirmative Action Program, which includes the Minority and Women Business Enterprise Program. BACKGROUND/REASON(S) FOR RECOMMENDATIONS: On September 15, 1987, Contra Costa County adopted a Minority and Women Business Enterprise Program for construction projects in excess of $50,000.00. Since that date, construction projects that are funded by the County or other entities governed by the Board (referred to collectively as "County") have been subject to goals of 13% for minority business enterprises ("MBEs") and 2% for women business enterprises ("WBEs"). The program was expanded to cover purchasing on July 12, 1988. Since that date, purchases of supplies involving $2,500.00 or more have been subject to goals of 15% (MBE) and 5% (WBE). The program was expanded to cover professional and personal services on June 15, 1989. Since that date, services contracts exceeding $2,500.00 have been subject to goals of 15% (MBE) and 7% (WBE). On November 14, 1990, Contra Costa County and Alameda County jointly entered into a contract with National Economic Research Associates, Inc. ("NERA"). Under this contract, NERA undertook a detailed study of the counties' M/WBE programs and policies. This study included the compilation of data on the County's utilization of M/WBEs in the various program areas and.the availability of M/WBEs within the County's geographic market, the determination of the disparity between M/WBE utilization by the County and availability of M/WBEs, the documentation of oral and written evidence of discrimination, and the preparation of a report setting forth the study findings. On June 9, 1992, the Board received the NERA report; directed staff to distribute copies of the,NERA report to contractor trade associations, community organizations, public entities and other interested groups; and 3 On July 28, 1992, the Board received written and oral comments from the Associated General Contractors of California, Inc. ("AGC"), the Hispanic Chamber of Commerce of Contra Costa County, and the San Francisco Lawyers' Committee for Urban Affairs. Additional meetings were held and letters were sent to more than seventy-five agencies, organizations, cities and individuals for comments. Comments were reviewed_.and many have been incorporated in the above recommendations The Board has reviewed and considered the NERA report (including the statistical data, survey questionnaires and anecdotal testimony compiled by NERA), the oral and written comments received on the NERA report, and the recommendations of County staff. \ 4 r fi T RACE/ETHNIC GROUPS African Americans: Black persons having origins in any of the Black African racial groups. Hispanics: Cuban, Mexican, Puerto Rican, Latin American, European Spanish (but not Portuguese) and other Hispanic origins or ` cultures. Asians and Other Minorities: Asian and Pacific Island ancestral groups of Asian Indians, Chinese, Japanese, Filipino, Hawaiian, and other Asian or Pacific Islander; and Native American ancestral groups of Aleut, Eskimo and American Indian. di":ethniic.del f r "GOOD FAITH EFFORT" REQUIREMENTS A good faith effort shall include, at a minimum, specific affirmative action steps and complete documentation thereof. The following list is not exclusive or exhaustive. Other ' factors or types of efforts may be relevant in appropriate cases. In determining whether a contractor has made good faith efforts, it will usually be important for a recipient to look not only at the different kinds of efforts that the contract has made, but also the quantity f` and intensity of these efforts. The following list details the kinds of efforts that recipients may consider. a. Whether the bidder attended any pre—solicitation or pre—bid meetings that were scheduled by the County by listing date of the pre—bid meeting, person who attended the pre—bid meeting and project name and number or by listing previous pre—bid meetings with dates and project number, and person(s) who attended; b. Whether the bidder identified, listed, and selected specific items of the project for which the contract will be awarded to be performed by minority and/or women business enterprises to provide an opportunity for participation by those enterprises (including, where appropriate, breaking down contracts into economically feasible units to facilitate MBE/WBE participation); C. Whether the bidder advertised, not less than ten (10) calendar days before the date the bids are opened, in one or more daily or weekly newspapers, trade association publications, trade journals, or other media such as Daily Construction Service, the Daily Pacific Builder and the Small Business Business Exchange by submitting copies of the advertisement with the dates they were advertised; d. Whether the bidder provided certified or registered written notice of his or her interest in bidding on the contact to at least three minority and three women business enterprises (for each identified specific item of the contract) licenses to provide the specific items of the project not less than ten (10) calendar days prior to the opening of bids. The following represents the minimum information that primes must submit to prospective MBE/WBE subcontractors, suppliers, and truckers so that MBE/WBEs can make informed bid/no bid decisions: 1. bid opening date 2. description of total job 3. prime contractors bond requirements 4. identification of items to be subcontracted 5. engineering estimate of entire project 6. working days in the contract 7. other pertinent information. Copies of the written notice(s) must be submitted with "good faith effort" documentation; e. Whether the bidder followed up initial solicitations of interest to at least 50% of ' those firms mailed by contacting the enterprises to determine with certainty whether the enterprises were interested in performing specific items of the project by listing r the name and phone number of the certified MBE/WBE and date of initial contact and follow up call; G f. Whether the bidder provided interested minority and women business enterprises with information about the plans, specifications and requirements for the selected subcontracting or material supply work by listing the name of the firm, contact person, and telephone number of the certified MBE/WBE; i' g. Whether the bidder requested assistance form at least one (1) of the minority and women community organizations, minority women contractor groups; local, state and federal minority and women business assistance offices; -the County's acceptable certifying agencies; or other organizations that provide minority or women business enterprises by certified mail at least ten (10) calendar days prior to bid opening. List agencies, organizations and the people contacted, date contacted and responses from the contact. The Public Works and/or General Services Department and the Affirmative Action Office are local agencies to be contacted for assistance in identifying MBE/WBE businesses certified with the County ; h. Whether the bidder negotiated in good faith with the minority or women business enterprises and did not unjustifiably reject as unsatisfactory bids prepared by any minority or women business enterprises as determined by the County. List the name, telephone number, and dates MBE/WBEs were contacted. List MBE/WBEs you received bids from for this project. If MBE/WBEs were not utilized, list detailed reasons why bids were not utilized; i. Whether the bidder, where applicable, advised and made efforts to assist interested minority and women business enterprises in obtaining bonds, lines of credit, or insurance required by the County or contractor by listing the name, telephone number and date assistance was given to the MBE/WBE; j. Whether the bidder's efforts to obtain certified minority and women business enterprise participation.could reasonably be expected by the County to produce a level of participation sufficient to meet the goals and requirements of the County. Bidders are cautioned that even though their submittal indicates they will meet the MBE/WBE goal, the lowest three (3) bidders should document their good faith efforts and submit this information two working days after bid opening to protect eligibility for award of the contract in the event the County's review results in a finding that the goal has not been met. Addendum to Item 2 . 1 September 15, 1992 Scott Tandy, Assistant County Administrator, reviewed the study by NERA and Associates, and the recommendations contained in the County Administrator' s Report. Emma Kuevor, Affirmative Action Officer, reviewed her memo of September 10, 1992 listing the following three particular areas of concern that require additional attention: 1. The dollar threshold for the construction MBE/WBE Program. 2. The County' s Certification Procedures. 3 . "Good Faith Effort" requirements. Supervisor Fanden stated that she has an ongoing concern that Portuguese are not listed as Hispanic even though the Spanish from the Iberian Peninsula are, and that other agencies and .the State do include Portuguese. Supervisor Schroder commented that he recalled the Board had already debated this issue some time ago and had determined that persons from Portugal or of Portuguese descent would be considered Hispanic along with persons from the Iberian Peninsula, and that the Board had also had discussions about Spanish speaking persons from South America being considered Hispanic. Supervisor Schroder commented on the long history of Portuguese people in Contra Costa County and declared that to discriminate against the Portuguese Community would not be proper, and that he hoped that when the Board does adopt its program, that European Spanish and Portuguese are included in the Hispanic group rather than excluded. Supervisor Powers commented that when the data was collected, Portuguese was not reflected on the census data as_ an ethnic group and therefore there was no information collected, that it was not a matter of wanting or not wanting to include them, it was a matter of not being able to identify them based on the study. The Chair inquired of the Affirmative Action Officer what would happen if the Board determined, as a matter of policy or preference, to expand the definition of Hispanic to include Portuguese withodt it being specifically addressed in the study, what it would do the the rest of the policy and the study. The Affirmative Action Officer responded that they had specifically asked the consultants to look at Portuguese as a part of the study. What they looked at for availability was the census of minority and women businesses, and in the census data, they identified Portuguese as a part of the "white" category, and not part of the Hispanic category, and that is the reason why we can' t compare Portuguese to anything connected with a goal or potential goal. The Chair invited members of the public to comment and the following appeared: Nicolas C. Vaca, 1850 Mt. Diablo Boulevard, Suite 440 , representing the Advisory Council on Equal Employment Opportunity, commented that Portuguese historically have not been included as . Hispanic simply because they have not been viewed as a group who has suffered any discrimination. Mr. Vaca suggested that if the Board insists on including Portuguese, that a companion category be established for Portuguese or any other group that are economically disadvantaged. Chair McPeak distributed to the Board a written presentation from Wayne Smith on behalf of the position of including Portuguese as part of the Hispanic definition. Matt Gonsalves, 3686 Hobby Court, Concord, spoke in opposition to excluding Portuguese from the Hispanic group of minorities. He noted that both Caltrans and the Federal Government include Portuguese, and - 1 - • that Contra Costa County had always included them in the past. He urged the Board to include all of the Iberian Peninsula. Tom Holsman, 1350 Treat Boulevard, Suite 450 , Walnut Creek, representing the Associated General Contractors (AGC) , (Executive Director for Northern California) advised that the AGC had concerns relating to the study, not with the effort to promote minority employment in the County, but with the program that it may evolve resulting from the study. He noted that the study failed to give any credible attention to the bonding or capability of minority firms and both 'of those speak directly to the ability to fulfill the goals of a program such as this. He enumerated some of the other concerns ACG had brought to the meetings, including the threshold, and recognizing Portuguese in the Hispanic definition; noting that Caltrans, Port of Oakland, and the City of Richmond all recognize that classification. He submitted additional written comments, including the threshold, and good faith efforts. He suggested changing the word "and" to "or" in the section dealing with advertising, in order to conform to the Public Contract Code. David A. McCosker, P. O. Box 5307 , Concord, representing the AGC, noted that the impetus for this program seems to come from the July 10 study and the conclusion that was reached was that the contractors, not the County, discriminated, and the example used then is that the County would not accept a bid from an independent construction company or from any AGC contractor if not presented with a bid bond, so it is not unrealistic for a general contractor to expect to get a bid bond from his subcontractor, and if the subcontractor cannot provide the bond, then whether he is MBE or WBE or a majority contractor, is it fair to say that the contractor has discriminated against a MBE or WBE if they happen to be one of those two? Mr. McCosker indicated that he felt the report was erroneous in the conclusion it draws, and he inquired if it was known if there are the right percentages of MBE and WBE in the County to meet the percentage goals, or would it be necessary to go out of the County to fulfill the established percentages. He suggested analyzing on a project basis, not an overall percentage. He further suggested that contractors will hesitate to bid small County jobs because of the red tape and paper work. Board members discussed the various concerns raised related to this item, including Portuguese as part of the Hispanic category, the need for a bonding program, the threshold amount for targeted contracts, and review by the Advisory Council on Equal Employment. Opportunity, and how the overall program affects the business community in the County. Supervisor Powers advised that he believed the Board should move forward with this matter, but that there are some referrals that must be made and also some changes that need to be placed in the program', and he thereupon moved to adopt recommendations with modifications, one being consistent with Public Contract Code where good faith "or" is the language as opposed to "and. " Also, the limits of value of the contract be $250,000 and that the County develop a summary program that would be referred to the Internal Operations Committee, County Counsel and the Affirmative Action Officer to deal with so that the County can develop a meaningful good faith program that is not burdensome on small bids and small businesses; and that there be an evaluation of the inclusion of Portuguese in Hispanic or setting up a separate category, and to develop the needed facts; a more precise definition of what good faith effort is; and an evaluation of the bonding issue at it relates to minority contractors. Supervisor Fanden suggested delaying action on the recommendation for a week and asking the Affirmative Action Officer and the County Administrator to hold workshops so everyone can have input after they have heard the direction and concerns of the Board and can finalize the report and come back in a week. The Board discussed the level of threshold, good faith requirements and other suggested modifications . - 2 - h • Supervisor Powers modified his motion to one of intent to adopt, with flexibility in the threshold amount. The Board thereupon DECLARED its intent to ratify and adopt, on October 6 , 1992, the Minority and Women Business Enterprise Programs as proposed, subject to the following considerations, modifications and referrals: 1. Change "and" to "or" on Item C of the "good faith effort" requirements documentation. 2. Consider increasing the threshold to which the program applies to at least $100,000, up to $250,000 . 3 . Refer to the Internal Operations Committee, County Counsel and the County Administrator consideration of a summary program for those projects below the threshold. 4. Evaluate how to include Portuguese in the Hispanic definition of minority, and determine what data needs to be gathered to achieve this. 5. Review the "good faith effort" language to remove as much subjectivity as possible. 6. Work with the Associated General Contractors of California, Inc. to evaluate the feasibility of a bonding program for MBE/WBE small business entities. 7. Refer this item to the Advisory Council on Equal Employment Opportunity, to be scheduled for its meeting of October 2 , 1992 , to obtain additional input, with comments to be returned to the Board on October 6, 1992. - 3 -