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HomeMy WebLinkAboutMINUTES - 09262000 - C81 TO: BOARD OF SUPERVISORS FROM: MAURICE SHIU, PUBLIC WORKS DIRECTOR DATE: September 26, 2000 SUBJECT: Authorize Filing Draft DBE Program with Caltrans for U.S. Department of Transportation (FHWA and FAA) Funded Projects Specific Request(s) or Recommendations) & Background & Justification I. RECOMMENDED ACTION: AUTHORIZE the Public Works Director to file with Caltrans the Draft County DBE Program, as required to continue receipt of Federal Aid Road Funds. DIRECT the Public Works Director and County Affirmative Action Officer to provide notification of the draft program to minority and women groups, trade organizations, and the general public, requesting their review and comments prior to final program adoption by the Board in accordance with Title 49, Part 26 of the Code of Federal Regulations. Continued on Attachment: X SIGNATURE: 2L « IM . _RECOMMENDATION OF COUNTY ADMINISTRATOR .- _RECOMMENDATION OF BOARD COMMITTEE _APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON ,t?G,,,,P,2gPPROVED AS RECOMMENDED I hereby certify that this is a true and correct copy of an action taken and entered on the vt7,,TE OF SUPERVISORS , minutes of the Board of Supervisors on the UNANIMOUS(ABSENT JY d,r�C } date shown. AYES: NOES: ABSENT: ABSTAIN: MH:ag ATTESTED: \\PWS4ISHARDATA\GrpData\Design\Board Orders\ PHIL BATCFTELOIR, Clerk of the Board of BO 2000\DBE 9-28.doc Supervisors and County Administrator Orig.Div: Public Works(Design Division) Contact: Mike Hollingsworth(3132231) C: E.Kuevor,CAO County Counsel By Caltrans,via PWD Deputy ' SUBJECT: Authorize Filing Draft DBE Program with Caltrans for U.S. Department of Transportation (FHWA and FAA) Funded Projects DATE: September 26, 2000 PAGE: 2 DIRECT the Public Works Director to follow the draft DBE program with an interim DBE goal of 15% of all contract costs for federally funded County road projects as required by Caltrans until the Board adopts the final program and goal. II. FINANCIAL IMPACT: There will be no impact on the General Fund. Filing the draft DBE program by October 1, 2000 is a pre-requisite to maintain eligibility for federal funding in FY 2001. ill. REASONS FOR RECOMMENDATION/BACKGROUND: The federal government issued new regulations for federal aid recipients' DBE programs and the process for establishing the DBE goal. The prior practice of reaffirming annually our existing DBE program and goal without review or public participation is no longer allowed. Because the federal fiscal year starts October 1, we are required to file our proposed DBE program with Caltrans by October 1, 2000 (June 1 in subsequent years) to continue receiving federal highway funds. We are also required to adopt the final program by January 1, 2001 (September 1 in subsequent years). There are over$15,000,000 of federal aid projects in various stages of design in Public Works that could be impeded if these deadlines are not met. (The FAA has not been as accommodating as FHWA with the local agencies in the transition to the new federal mandate. All new funding by FAA for airport projects is held up until we have the final program adopted.) Because of the federal regulations, the program leaves very little latitude for variations by local agencies. Our proposed program is essentially the model local agency program that Caltrans had pre-approved by FHWA. The most significant change is the DBE goal setting criteria. Our DBE goal "must be based on demonstrable evidence of the availability of ready, willing and able DBEs relative to all businesses ready, willing and able to participate on our DOT-assisted contracts"(Sec. 26.45, 49CFR26). Our methodology for establishing our proposed annual goal is outlined in the program. The Public Works Department and the County Administrator's Affirmative Action Office will publish, more broadly than prescribed by federal regulations, an invitation to the public, especially special interest groups, to review and comment on the proposed plan and DBE goals prior to final adoption by the Board in December. IV. CONSEQUENCES OF NEGATIVE ACTION: If the Board does not take the recommended actions, FHWA will stop authorizing additional federal highway funds earmarked for County road rehabilitation and improvements, and delay the FAA approval process further delaying their resumption of funding airport rehabilitation projects. CONTRA COSTA COUNTY DRAFT September 19, 2000 ((This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26)) DISADVANTAGED BUSINESS ENTERPRISE (DBE) PICOGRAM County of Contra Costa I Definitions of Terms The terms used in this program have the meanings defined in 49 CFR §26.5. H Objectives/Policy Statement (§§26.1, 26.23) The County of Contra Costa has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation(DOT), 49 CFR Part 26. The County of Contra Costa has received Federal financial assistance from the DOT, and as a condition of receiving this assistance, the County of Contra Costa will sign an assurance that it will comply with 49 CFR Part 26. It is the policy of the County of Contra Costa to ensure that DBEs, as defined in part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also our policy.- To olicy:To ensure nondiscrimination in the award and administration of DOT-assisted contracts; To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts; To ensure that the DBE Program is narrowly tailored in accordance with applicable law; To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs; To help remove barriers to the participation of DBEs in DOT-assisted contracts; and To assist the development of firms that can compete successfully in the market place outside the DBE Program. The Affirmative Action Officer has been delegated as the DBE Liaison Officer (DBELO). In that capacity, the Affirmative Action Officer is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the County of Contra Costa in its financial assistance agreements with the California Department of Transportation(Caltrans). County of Contra Costa will disseminated this policy statement to the Contra Costa County Board of Supervisors and all the components of our organization. We have distributed this statement to DBE and non-DBE business communities that perform work for us on DOT-assisted contracts by publishing this statement in general circulation, minority-focused and trade association publications. Page 1 of 12 r CONTRA COSTA COUNTY DRAFT September 19, 2000 III Nondiscrimination (§26.7) The County of Contra Costa will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin. In administering its DBE program, the County of Contra Costa will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin. IV DBE Program Updates (§26.21) County of Contra Costa will continue to carry out this program until the County of Contra Costa has established a new goal setting methodology or until significant changes to this DBE Program are adopted. County of Contra Costa will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June 1 of every year. V Quotas (§26.43) County of Contra Costa will not use quotas or set asides in any way in the administration of this DBE program. VI DBE Liaison Officer(DBELO) (§26.45) County of Contra Costa has designated the following individual as the DBE Liaison Officer: Emma Kuevor, Affirmative Action Officer, 651 Pine Street, 10h Floor, Martinez, CA 94553- 1229, (925) 313-1045, ekuev@cao.co.contra-costa.ca.us. In that capacity, Affirmative Action Officer is responsible for implementing all aspects of the DBE program and ensuring that the County of Contra Costa complies with all provisions of 49 CFR Part 26. This is available on the Internet at osdbuweb.dot.gov/main.cfm. The Affirmative Action Officer has direct, independent access to the County Administrator concerning DBE program matters. The DBELO has a staff of 1 professional employee assigned to the DBE program on a full-time basis and four collateral duty support personnel who devote a portion of their time to the program. An organization chart displaying the DBELO's position in the organization is found in Attachment 1 to this program. The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. Duties and responsibilities include the following: 1. Gathers and reports statistical data and other information as required. 2. Reviews third party contracts and purchase requisitions for compliance with this program. 3. Works with all departments to set overall annual goals. 4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner. 5. Identifies contracts and procurements so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals) and monitors results. Page 2 of 12 � �`� CONTRA COSTA COUNTY DRAFT September 19, 2000 :5' 6. Analyzes County of Contra Costa's progress toward goal attainment and identifies ways to improve progress. 7. Participates in pre-bid meetings. 8. Advises the CEO/governing body on DBE matters and achievement. 9. Chairs the DBE Advisory Committee. 10. Participates with the legal counsel and project director to determine contractor compliance with good faith efforts. 11. Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance. 12. Plans and participates in DBE training seminars. 13. Provides outreach to DBEs and community organizations to advise them of opportunities. VII Federal Financial Assistance Agreement Assurance (§26.13) The County of Contra Costa will sign the following assurance, applicable to all DOT-assisted contracts and their administration as part of the program supplement agreement for each project: The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE Program or the requirements of 49 CFR part 26. The recipient shall take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE Program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). VM DBE Financial Institutions It is the policy of the County of Contra Costa to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contracts to make use of these institutions. Information on the availability of such institutions can be obtained from the DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer. IX Directory (§26.31) County of Contra Costa will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hq/bep. X Overconcentration (§26.33) Page 3 of 12 � r CONTRA COSTA COUNTY DRAFT September 19, 2000 County of Contra Costa has not identified any types of work in DOT-assisted contracts that have a overconcentration of DBE participation. If in the future County of Contra Costa identifies the need to address overconcentration, measures for addressing overconcentration will be submitted to the Caltrans District Local Assistance Engineer(DLAE) [Caltrans is FHWA's primary recipient for administering the local agency program in California.] and/or FAA(as applicable)for approval. XI Business Development Programs (§26.35) County of Contra Costa does not have a business development or mentor-protege program. If the County of Contra Costa identifies the need for such a program in the future, the rationale for adopting such a program and a comprehensive description of it will be submitted to the DLAE and/or FAA(as applicable) for approval. XII Required Contract Clauses (§§26.13, 26.29) Contract Assurance County of Contra Costa ensures that the following clause is placed in every DOT-assisted contract and subcontract: The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as recipient deems appropriate. Prompt Payment County of Contra Costa ensures that the following clauses or equivalent will be included in each DOT-assisted prime contract: Satisfactory Performance The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 10 days from the receipt of each payment the prime contractor receives from County of Contra Costa. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the County of Contra Costa. This clause applies to both DBE and non-DBE subcontractors Release of Retainage The prime contractor agrees further to release retainage payments to each subcontractor within 30 days after the subcontractor's work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the County of Contra Costa. This clause applies to both DBE and non-DBE subcontractors. Page 4 of 12 , t; c. CONTRA COSTA COUNTY DRAFT September 19, 2000 , XIII Monitoring and Enforcement Mechanisms (§26.37) The County of Contra Costa will assign a Resident Engineer (RE) or Contract Manager to monitor and track actual DBE participation through contractor and subcontractor reports of payments in accordance with the following: After Contract Award After the contract award the County of Contra Costa will review the award documents for the portion of items each DBE and first tier subcontractor will be performing and the dollar value of that work. With these documents the RE/Contract Manager will be able to determine the work to be performed by the DBEs or subcontractors listed. Preconstruction Conference A preconstruction conference will be scheduled between the RE and the contractor or their representative to discuss the work each DBE subcontractor will perform. Before work can begin on a subcontract, the local agency will require the contractor to submit a completed "Subcontracting Request," Exhibit 16-B of the Caltrans Local Assistance Program Manual (LAPM) or equivalent. When the RE receives the completed form it will be checked for agreement of the first tier subcontractors and DBEs. The RE will not approve the request when it identifies someone other than the DBE or first tier subcontractor listed in the previously completed "Local Agency Bidder DBE Information," Exhibit 15-C of the LAPM or equivalent. The "Subcontracting Request" will not be approved until any discrepancies are resolved. If an issue cannot be resolved at that time, or there is some other concern, the RE will require the contractor to eliminate the subcontractor in question before signing the subcontracting request. A change in the DBE or first tier subcontractor may be addressed during a substitution process at a later date. Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE Information" will be compared to those listed in the completed"Notice of Materials to be Used", Exhibit 16-I of the LAPM or equivalent. Differences must be resolved by either making corrections or requesting a substitution. Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act (FPA). Local agencies will require contractors to adhere to the provisions within Subletting and Subcontracting Fair Practices Act (State Law) Sections 4100-4144. FPA requires the contractor to list all subcontractors in excess of one half of one percent (0.5%) of the contractor's total bid or $10,000, whichever is greater. The statute is designed to prevent bid shopping by contractors. The FPA explains that a contractor may not substitute a subcontractor listed in the original bid except with the approval of the awarding authority. The RE will give the contractor a blank Exhibit 17-F of the LAPM, "Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors" and will explain to them that the document will be required at the end of the project, for which payment can be withheld, in conformance with the contract. Page 5 of 12 � .« CONTRA COSTA COUNTY DRAFT September 19, 2000 Construction Contract Monitoring The RE will ensure that the RE's staff (inspectors) know what items of work each DBE is responsible for performing. Inspectors will notify the RE immediately of apparent violations. When a firm other than the listed DBE subcontractor is found performing the work, the RE will notify the contractor of the apparent discrepancy and potential loss of payment. Based on the contractor's response, the RE will take appropriate action: The DBE Liaison Officer will perform a preliminary investigation to identify any potential issues related to the DBE subcontractor performing a commercially useful function. Any substantive issues will be forwarded to the Caltrans Disadvantaged Business Enterprise Program. If the contractor fails to adequately explain why there is a discrepancy, payment for the work will be withheld and a letter will be sent to the contractor referencing the applicable specification violation and the required withholding of payment. If the contract requires the submittal of a monthly truck document, the contractor will be required to submit documentation to the RE showing the owner's name; California Highway Patrol CA number; and the DBE certification number of the owner of the truck for each truck used during that month for which DBE participation will be claimed. The trucks will be listed by California Highway Patrol CA number in the daily diary or on a separate piece of paper for documentation. The numbers are checked by inspectors regularly to confirm compliance. Providing evidence of DBE payment is the responsibility of the contractor. Substitution When a DBE substitution is requested, the RE/Contract Manager will request a letter from the contractor explaining why substitution is needed. The RE/Contract Manager must review the letter to be sure names and addresses are shown, dollar values are included, and reason for the request is explained. If the RE/Contract Manager agrees to the substitution, the RE/Contract Manager will notify, in writing,the DBE subcontractor regarding the proposed substitution and procedure for written objection from the DBE subcontractor in accordance with the Subletting and Subcontracting Fair Practices Act. If the contractor is not meeting the contract goal with this substitution, the contractor must provide the required good faith effort to the RE/Contract Manager for local agency consideration. If there is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the RE/Contract Manager may contact the DLAE or FAA for assistance and direction. Record Keeping and Final ReportUtilization of Disadvantaged Business Enterprises The contractor shall maintain records showing the name and address of each first-tier subcontractor. The records shall also show: 1. The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of materials and DBE trucking company. 2. The date of payment and the total dollar figure paid to each of the firms. Page 6 of 12 � < CONTRA COSTA COUNTY DRAFT September 19, 2000 3. The DBE prime contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward DBE goals. When a contract has been completed the contractor will provide a summary of the records stated above. The DBE utilization information will be documented on Exhibit 17-F of the LAPM, "Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors" and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare the completed Exhibit 17-F to the contractor's completed "Local Agency Bidder DBE Information," Exhibit 15-G of the LAPM or equivalent, and, if applicable, to the completed "Subcontracting Request,", Exhibit 16-B of the LAPM. The DBEs shown on the completed Exhibit 17-F should be the same as those originally listed unless an authorized substitution was allowed, or the contractor used more DBEs and they were added. The dollar amount should reflect any changes made in planned work done by the DBE. The contractor will be required to explain in writing why the names of the subcontractors, the work items or dollar figures are different from what was originally shown on the completed Exhibit 15-G when: + There have been no changes made by the RE. + The contractor has not provided a sufficient explanation in the comments section + of the completed Exhibit 17-F. The explanation will be attached to the completed Exhibit 17-F for submittal to the RE. The RE will file this in the project records. The local agency's Liaison Officer will keep track of the DBE certification status on the Internet at www.dot.ca.gov/hq/bep and keep the RE informed of changes that affect the contract. The RE will require the contractor to act in accordance with existing contractual commitments regardless of decertification. The DLAE will use the PS&E checklist to monitor the County of Contra Costa's commitment to require bidders list information to be submitted to the County of Contra Costa from the awarded prime and subcontractors as a means to develop a bidders list. This monitoring will only take place if the bidders list information is required to be submitted as stipulated in the special provisions. County of Contra Costa will bring to the attention of the DOT through the DLAE any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in §26.109. County of Contra Costa also will consider similar action under our own legal authorities, including responsibility determinations in future contracts. XIV Overall Goals (§26.45) Amount of Goal Page 7 of 12 CONTRA COSTA COUNTY DRAFT September 19, 2000 County of Contra Costa's overall goal for the Federal fiscal year FY 2000/2001 is the following: 15% of the Federal financial assistance in FHWA-assisted contracts. This overall goal is broken down into 12% race-conscious and 3% race-neutral components. MethodolpZ To determine the relative availability of DBEs for construction contract work, the County of Contra Costa used the bidder's list composed of all contractors, subcontractors, suppliers, and truckers who bid or quoted on DOT-assisted contracts in 1999 and 2000. Firms on the bidder's list presently certified by Caltrans as DBEs were identified and used in the calculation for the base figure. The base figure for consultant (professional services) contract work was calculated in a similar manner from the existing list of potential consultants and those firms on the list presently certified by Caltrans as DBEs. The DOT-assisted projects for FFY 2001 were separated into estimated costs for professional services, prime contractor work, subcontractor work, trucking, and materials. The relative percentage of DBE firms on the bidders list for each type of work or activity were applied to the above estimates to determine our initial overall DBE goal. The initial goal was adjusted to account for the scarcity of DBEs in several areas of material suppliers to arrive at the final overall DBE goal. Breakout of Estimated Race-Neutral and Race-Conscious Participation Contra Costa County determined the race-neutral component by totaling the anticipated amount of work to be performed by DBE prime contractors and consultants. The race-conscious component was comprised of the remaining work to be performed by DBE subcontractors, sub- consultants, suppliers, and truckers. Process Starting with the Federal fiscal year 2002, the amount of overall goal, the method to calculate the goal, and the breakout of estimated race-neutral and race-conscious participation will be required annually by June 1 in advance of the Federal fiscal year beginning October 1 for FHWA-assisted contracts. Submittals will be to the Caltrans' DLAE. An exception to this will be if FTA or FAA recipients are required by FTA or FAA to submit the annual information to them or a designee by another date. FHWA recipients will follow this process: Once the DLAE has responded with preliminary comments and the comments have been incorporated into the draft overall goal information, the County of Contra Costa will publish a notice of the proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at the County of Contra Costa's principal office for 30 days following the date of the notice, and informing the public that County of Contra Costa comments will be accepted on the goals for 45 days following the date of the notice. Advertisements in newspapers, minority focus media, trade publications, and websites will be the normal media to accomplish this effort. The notice will include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. Wage 8 of 12 :`` CONTRA COSTA COUNTY DRAFT September 19, 2000 The overall goal resubmission to the Caltrans DLAE, will include a summary of information and comments received during this public participation process and County of Contra Costa's responses. This will be due by September 1 to the Caltrans DLAE. The DLAE will have a month to make a final review so the County of Contra Costa may begin using the overall goal on October 1 of each year. XV Contract Goals (§26.51) The County of Contra Costa will use contract goals to meet any portion of the overall goal the County of Contra Costa does not project being able to meet by the use of race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of the overall goal that is not projected to be met through the use of race-neutral means. Contract goals will be established only on those DOT-assisted contracts that have subcontracting possibilities. Contract goals need not be established on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability of DBEs to perform the particular type of work). The contract work items will be compared with eligible DBE contractors willing to work on the project. A determination will also be made to decide which items are likely to be performed by the prime contractor and which ones are likely to be performed by the subcontractor(s). The goal will then be incorporated into the contract documents. Contract goals will be expressed as a percentage of the total amount of a DOT-assisted contract. XVI Transit Vehicle Manufacturers (§26.40 If DOT-assisted contracts will include transit vehicle procurements, the County of Contra Costa will require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on transit vehicle procurements, to certify that it has complied with the requirements of 49 CFR. Part 26, Section 49. The County of Contra Costa will direct the transit vehicle manufacturer to the subject requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm. XVII Good Faith Efforts (§26.53) Information to be Submitted The County of Contra Costa treats bidders'/offerors' compliance with good faith effort requirements as a matter of responsiveness. A responsive proposal is meeting all the requirements of the advertisement and solicitation. Each solicitation for which a contract goal has been established will require the bidders/offerors to submit the following information to Public Works Department, 255 Glacier Drive, Martinez, CA 94553-4525, no later than 4:30 p.m. on or before the second day, not including Saturdays, Sundays and legal holidays, following bid opening: 1. The names and addresses of known DBE firms that will participate in the contract; Page 9 of 12 CONTRA COSTA COUNTY DRAFT September 19, 2000 ' 2. A description of the work that each DBE will perform: 3. The dollar amount of the participation of each DBE firm participation 4. Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; 5. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and 6. If the contract goal is not met, evidence of good faith efforts. Demonstration of Good Faith Efforts The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. Examples of good faith efforts are found in Appendix A to Part 26, which is found in Attachment 2 of this program. The following personnel are responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive: DBELO. The County of Contra Costa will ensure that all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before a commitment to the performance of the contract by the bidder/offeror is made. Administrative Reconsideration Within 10 days of being informed by the County of Contra Costa that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration, Bidder/offerors should make this request in writing to the following reconsideration official: Contra Costa County, County Administrator, 651 Pine Street, 11th Floor, Martinez, CA 94553-1229, (925) 313-1085, sroegcao.co.contra-costa.ca.us. The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make or document sufficient good faith efforts. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The bidder/offeror will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do. The County of Contra Costa will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to Caltrans, FHWA, FAA, or the DOT. Good Faith Efforts when a DBE is Replaced on a Contract Page 10 of 12 r CONTRA COSTA COUNTY DRAFT September 19, 2000 The County of Contra Costa will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. The prime contractor is required to notify the RE or Contract Manager immediately of the DBE's inability or unwillingness to perform and provide reasonable documentation. In this situation, the prime contractor will be required to obtain the County of Contra Costa prior approval of the substitute DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, the County of Contra Costa contracting office will issue an order stopping all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, the contracting officer may issue a termination for default proceeding. XVIII Counting DBE Participation (§26.55) The County of Contra Costa will count DBE participation toward overall and contract goals as provided in the contract specifications for the prime contractor, subcontractor, joint venture partner with prime or subcontractor, or vendor of material or supplies. XIX Certification (§26.83(a)) The County of Contra Costa ensures that only DBE firms currently certified on the Caltrans' directory will participate as DBEs in our program. XX Information Collection and Reporting Bidders List The County of Contra Costa will create and maintain a bidders list, consisting of information about all DBE and non-DBE firms that bid or quote on its DOT-assisted contracts. The bidders list will include the name, address, DBE/non-DBE status, age, and annual gross receipts of firms. Monitoring Payments to DBEs Prime contractors are required to maintain records and documents of payments to DBEs for three years following the performance of the contract. These records will be made available for inspection upon request by any authorized representative of the County of Contra Costa, Caltrans, FAA or FHWA. This reporting requirement also extends to any certified DBE subcontractor. Payments to DBE subcontractors will be reviewed by the County of Contra Costa to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. Reporting to Caltrans Page 11 of 12 CONTRA COSTA COUNTY DRAFT September 19, 2000 The County of Contra Costa will report final utilization of DBE participation to the DLAE and FAA (as applicable) using "Final Report Utilization of Disadvantaged Business Enterprises (DBE), First Tier Subcontractors,"Exhibit 17-F of the Caltrans' LAPM. Confidentiality The County of Contra Costa will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local laws, Phil Batchelor, County Administrator Date: This Disadvantaged Business Enterprises Program is accepted by: [Signature of DLAE] Date: Page 12 of 12 Contra Costa County Attachment 1 J Ir 01 Fil F1 i r a J LL Q 103 CONTRA COSTA COUNTY ATTACHMENT 2 APPENDIX A TO PART 26-- GUIDANCE CONCERNING GOOD FAITH EFFORTS I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First,the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which,by their scope, intensity,and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. 11. In any situation in which you have established a contract goal, part 26 requires you to use the good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm's good faith efforts is a judgment call: meeting quantitative formulas is not required, III, The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e., obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits you from ignoring hm fide good faith efforts. IV. The following is a list of types of actions which you should consider as part of the bidder's good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices)the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations. B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation, CONTRA COSTA COUNTY ATTACHMENT 2 D. (1)Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work. (2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status)are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. O. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. V. In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts.