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Home My WebLink AboutMINUTES - 12091997 - D8 a s c, fie: BO,,ARD,OF SUPERVISORS _ Contra FROM: PHIL BATCHELOR t ,s Costa County Administrator December 2, 1997 '' County �. fy DATE: trq coiiK`� SUBJECT: REPORT ON INTERIM OUTREACH PROGRAM SPECIFIC REQUEST(S)OR RECOMMENDATION(S)6 BACKGROUND AND JUSTIFICATION SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION(S): APPROVE the interim Outreach Program and direct County Administrator to return with final Outreach Program on January 27, 1998. DIRECT the Contract Compliance Officer and County Counsel to develop interim specifications for Purchasing and Professional/Personal Services Proposals. DIRECT the Contract Compliance Officer to: • continue to compile "statistical reports and monitor the Construction, Purchasing, and Professional/Personal.Services programs. • submit periodic reports based on the `Verification of Performance' forms completed by first tier subcontractors, suppliers, manufacturers, truckers that are submitted by the prime contractor. • meet with the various advisory committees, interested parties, and County staff to review the interim Outreach Program and obtain input or suggested changes. • review other City and County MBE/WBE, DBE, SBE, and LBE programs. X CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON December 9, 1997 APPROVED AS RECOMMENDED X OTHER X IT IS BY THE BOARD ORDERED that the recommendations as listed above are APPROVED; and the County Administrator is DIRECTED to include in his report to the Board of Supervisors on January 27, 1998, an evaluation of the proposal of Clifford Tong and the comments made on this date. VOTE OF SUPERVISORS' I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. cc: County Administrator ATTESTED December 9, 1997 General Services PHIL BATCHELOR,CLERK OF THE BOARD OF Public Works Department SUPER ORS AND OUNTY ADMINISTRATOR County Counsel Affirmative Action Officer a BY ,DEPUTY M382 (10188) r Board of Supervisors December 2, 1997 Report on Interim Outreach Program Page 2 DIRECT the General Services and Public Works Departments to: • continue to conduct an annual workshop for prime contractors, subcontractors, suppliers, manufacturers, and truckers with a special focus on MBEs, WBEs, SBEs, and LBEs. • continue to conduct prebid meetings. • advertise for projects in daily or weekly newspapers,trade association publications, trade journals, or other media, such as the Daily Construction Service,the Daily Pacific Builder or Small Business Exchange, including minority and women publications, trade journals, or other media. The advertisement(s) should state the following: * Bid due date * Description of the entire project * Identification of trades involved in the project * Engineer's or architect's estimated construction contract cost * Other pertinent information. • respond to inquiries for available lists of MBEs, WBEs, SBEs, and LBEs. • compile a list of certified MBEs, WBEs, and SBEs using the CalTrans, County, and other directories from the County's acceptable certifying agencies. The list should be tailored based on the items of work to be performed on the project. • add annually and upon request MBE, WBE, SBE, and LBE firms from CalTrans, County, and other directories from the acceptable certifying agencies to the list of potential bidders maintained by the departments. • continue to submit reports to the Affirmative Action Office on construction contracts less than $50,000 and projects of$50,000 or more, which will be formally bid. • include a contracting section in their annual performance reports. DIRECT County Counsel to prepare legislation that would authorize the County to develop and adopt a Small Business Enterprise (SBE) Contract Compliance Program, as defined in Section 3 of the Small Business Act and implementing regulations(Volume 13 of the Code of Federal Regulations, Chapter 1), and to submit the legislation to the County Administrator for consideration for inclusion in the County's legislative program. ACKNOWLEDGE General Services Department for developing a representative pool of architectural landscape consultants and encourage other departments to explore the creation of similar pools. The representative pool of consultants should include MBEs, WBEs, SBEs, and LBEs. ACKNOWLEDGEreceipt of letters from the County Human Relations Commission, Women's Advisory Committee, Advisory Council on Equal Employment Opportunity, Black Families Association, and William Dahn Construction. REFER the interim Outreach Program to the General Services and Public Works Departments, Advisory Council on Equal Employment Opportunity, County Human Relations Commission, Women's Advisory Committee, Youth Commission, and community groups and organizations for review and comment, and with responses to be submitted to the Affirmative Action Office. FISCAL IMPACT No fiscal impact from the adoption of an interim Outreach Program. BACKGROUND/REASONS(S) FOR RECOMMENDATION(S): On September 16, 1997, the Board of Supervisors suspended the County's MBE/WBE Contract Compliance Program for Construction, Purchasing, and Professional/Personal Services contracts. The Board also Board of Supervisors December 2, 1997 Report on Interim Outreach Program Page 3 directed staff to prepare and distribute a notice to various community groups, commissions, and organizations (attachment A)informing them of the Board's action. Responses received to date are included (attachment B). The Board clarified its intent for the County to continue notification and outreach and to continue to encourage good faith efforts in the County's proposals and advertisements. The Board directed that the matter come back to the Board for review within 60 days; however, the earliest time available for staff to return to the Board was for the December 9, 1997 agenda. The recommended interim Outreach Program(Attachment C) contains the following: 1 A policy that encourages opportunities to develop, support, and utilize firms, including MBEs, WBEs, SBEs, and LBEs, by providing opportunities for participation in construction, purchasing, and professional/personal services contracts financed with County funds. 2. Encouragement to bidders to conduct a broad outreach to minority, women, small, and local businesses for each construction project to provide notification of the opportunity to participate in County-funded projects. 3. For monitoring purposes, requirement for the contractor to submit a `Verification of Performance' form(attachment D)listing all first tier subcontractors, suppliers, manufacturers, and truckers used by the prime contractor on the project. 4. Monitoring of contracts by the Affirmative Action Office will continue, and departments will continue to maintain records to assess utilization of MBEs, WBEs, SBEs, and LBEs. Adoption of the interim Outreach Program will allow the General Services and Public Works Departments to include these provisions as a part of construction bid documents for County-funded projects. Referral of the interim Outreach Program to staff and the various committees and community groups will provide for input prior to consideration of the adoption of a final Outreach Program on January 27, 1998, Contra Costa County's MBE/WBE Contract Compliance Program was successful. The County met and exceeded the 14% MBE and 6% WBE goals for construction projects for two consecutive years. We recommend approval of the interim Outreach Program and direction to staff to return to the Board on January 27, 1998 with the proposed final Outreach Program. ATTACHMENTS * Correspondence to community groups * Committee Responses * Interim Outreach Program * Verification of Performance form bd2091197 r • r ' r Office of the County Administrator Contra Costa County Affirmative Action Office 651 Pine Street, Martinez, CA 94553 (510) 335-1045 fax: (510) 646-1353 Memorandum Date: September 26, 1997 To: Community Groups, Commissions, Organizations From: Emma KuevorY?�4'O*" Affirmative Action Officer Subject: Board Action Regarding Proposition 209 Enclosed is the Board Resolution on the action the County has taken regarding the Minority Business Enterprise(MBE)and Women Business Enterprise(WBE) Contract Compliance Program based on Proposition 209. The Board of Supervisors has requested comments from various community groups, commissions, and organizations. Please submit your comments .on the recommendations regarding programs, policies, and/or procedures you would like to have continued if we are legally able to implement them. Submit your comments and recommendations by October 10, 1997,to the Affirmative Action Office, 651 Pine Street, 10th Floor, Martinez, California, 94553 or fax to(510)646-1353. Ifyou need clarification on the issues or wish to discuss your comments prior to submitting them mi writing or verbally advise me of your comments, please call me at 510-335-1045. IOOROUPS.WPD(9l97) ATTACHMENT A SEP 2 5 �� TC: Board of Supervisors AF"°MAr)v- AC710,,OFFI, Ic FROM: Phil Batchelor, County Administrator Victor Westman, County Counsel DATE: September 16, 1997 SUBJECT: PROPOSITION 209 SPECIFIC REQUEST(S) OR RECOMMENDATIONS) Q BACKGROUND AND JUSTIFICATION Insofar as State Proposition 209 is no longer stayed by court order, and in order to comply with existing law, this Board, acting in all of its capacities, orders as follows: 1. The County's MBE/WBE Program for construction contracts, professional/personal services contracts, and purchasing is suspended pending further action in the event Proposition 209 is enjoined or is determined to be invalid or unenforceable; and 2. The Board declares its continued support for efforts to promote the utilization of MBEs and WBEs and the hiring of minorities and women. CONTUMED ON ATrA 39CM _M SIr.NA1= iux)"womoN or COUNTY AmomasTRA=t Or SIGNATURE(S) AUTON Or aoAM ON September 16. 1997 APH OM AS PZ0M*C =., OTHCR X Please see Addendum (Attached) for a list of speakers and additional Board Action. SOtE or SMOVISOM I HCRUT CGAMry SNRT TM IS A TM AND CORRECT copy or AN ACTION TML( . �— Moxnaus (ASSENT - - - t AND Ommw oN nm NDww or am SOARD AMs N WWI or SVFZMBORB ON SUE DATE SNOIBI. ABSM@ ABSTAIN' September 16. 1997 ATTzem. pm SASCtm'wR, CI.ERm or THE sow or ;;ccrry� SurERVISM AND COUNTY MaXISTRA SuTOR cc. CouuntyiAdministrator - County Affirmative Action Officer I • County Counsel sy ` 40 Public Workd Director Christine Wampler Equal Enployment Opportunity Advisory Council Human Relations Commission Women's Advisory Committee County Louth Commission ATTACHMENT A D.3 ADDENDUM Item D.3 September 16, 1997 Phil Batchelor, County Administrator and Victor J. Westman, County Counsel, provided the attached recommendations to the Board of Supervisors relative to Proposition 209. The Board members discussed the issues and then Chairman DeSaulnier invited the public to comment. The following persons addressed the Board: Jonothan Dumas, Equal Employment Opportunity Advisory Council, Contra Costa Building&Construction Trades Council, 41 Carter Court, El Sobrante; Kofi Opong-Mensah, MENSA Laboratories, P.O. Box 5771, Hercules; Greg Feere, Contra Costa Building Trades Council, 935 Alhambra Avenue, Martinez; Wanda Harris, Women's Advisory Committee, 5289 Pine Hollow Road, Concord; Zenohia Thomas, Women's Advisory Committee,4745 Kangaroo Court, Antioch; Lindsay Johnson, Women's Advisory Committee, 1125 Discovery Way, Concord; and Sharon Barone, Women's Advisory Committee, 3174 Naranja Drive, Walnut Creek. All persons desiring to speak having been heard, the Board further discussed the issues and took the following action: 1. APPROVED Recommendations Nos. 1 and 2, as listed on the attached Board Order; 2. DIRECTED staff to prepare and distribute a notice to appropriate community groups informing them of the Board's action today; 3. REFERRED this matter to the Human Relations Commission, the Women's Advisory Committee, the County Youth Commission and the Equal Employment Opportunity AdvisoryCouncil for review; 4. DIRECTED that this matter come back to the Board for review within 60 days; and 5. CLARIFIED the Board's intent to continue notification and outreach; to continue to maintain records and monitor contracts through the Affirmative Action Office; and to continue to encourage good faith efforts in the County's proposals and advertisements. cc: Supervisors County Administrator - County.Affirmative Action Officer County Counsel Public Works Director Equal Employment Opportunity Advisory Council Human Relations Commission Women's Advisory Committee County Youth Commission ATTACHMENT A y CONTRA COSTA COUNTY HUMAN RELATIONS COMMISSION 2020 North Broadway, Suite 203A Walnut Creek, CA 94596 (' T 7 510-646-6160 �'�FIpMATIVB ACTION OFFICE October 13, 1997 Ms. Emma Kuevor Affirmative Action Officer Contra Costa County 651 Pine Street Martinez, CA 94553 Subject: Comments on changes to the County's Minority/Women's Business Enterprise Programs Ms. Kuevor, This letter is in response to the Board of Supervisor's summary of proceedings for their meeting held Tuesday, September 16, 1997, and your memorandum to this Commission dated Wednesday, September 24, 1997. Those documents requested comments from this Commission on the Board's action to suspend the Minority/Women's Business Enterprise (MBE/WBE) programs for Contra Costa County. By unanimous vote of those Commissioners present at the general meeting held Wednesday, October 8, 1997, the Contra Costa County Human Relations Commission declares its non-support for the decision of the Board of Supervisors on September 16, 1997 to suspend MBE/WBE progrums. In addition, the general opinion of the Commission is that the September 16th decision is counter to our goals and objectives. The Commission understands that no governing body can please all citizens With every position it takes and hopes that the decision to suspend MBE/WBE programs was made in a sincere effort to serve the greater good and not some political expediency. The members of 1 of 2 AT'rACRMFNT R I the Board are advised that over the period 1994 through 1996, fair employment and housing complaints originating from Contra Costa County increased 65%. This is almost four times the rate for the rest of the state. In an effort to reduce the anticipated impact of Proposition 209 and the decision of September 16th, the Commission is forwarding several recommendations for alternative programs (attached). These recommendations have not been reviewed by legal personnel for feasibility and are forwarded as concepts to be considered as points of departure for discussion and eUta if alt alive program ideas are sought. rn aan Chairman Attachment: HRC Recommendations for Alternative MBE/WBE Programs CF:.Each County Supervisor Each Human Relations Commissioner October 13, 1997 Attachment: HRC Recommendations for Alternative MBE/WBE Programs, page 1. 1. Recommendation: Target workshops, job fair training and development as well as outreach programs be targeted to MBE and WBE's. That more technical support be given to emerging.small businesses and more staff support be given to the Affirmative Action Office of the County to assist in implementing these workshops etc. and monitoring the County's employment of MBE's and WBE's with the current suspension of these programs. 2. Recommendation: Institute an "Honor Program" to recognize contractors who have made good faith efforts in utilizing MBE and WBE vendors. In addition, that good faith efforts exhibited by trade unions to solicit membership from low income areas be acknowledged and honored. 3. Concept: Create a list of qualified contractors and sub-contractors for each specialty and award jobs on a rotational basis. The list would have to be monitored to ensure that no contractor appears more than once on the list regardless of name or license number. Rationale: This concept should ensure that all contractors on the list get an equal chance at all work in the county. This concept is conceivable if the bid process is eliminated. This might be done by collecting job cost data from all the other counties to establish a historical data base. A cost range would be established for each job. The next contractor on the list would be asked if they were willing to fulfill the contract within the established range. If the contractor indicates that he cannot perform the contract for any reason, the next contractor on the list is solicited until a contractor accepts the terms of the contract If a cost overrun occurs a breach of contract would exist and that contractor is removed from the job in favor of the next contractor on the list that will accept the task to completed the job. 4. Concept: Insure that there is not connection between the contractor doing work for the county and an individual involved in the decision making process that determines who gets the contract. Those relationships could be social, family, money, religious, or educational background. The monitoring of this effort might fall to the EEO Advisory Board of the county. October 13, 1997 Attachment: HRC Recommendations for Alternative MBE/WBE Programs, page 2. Rationale: This concept is forwarded because so much discrimination can be traced to some type of familiarity or financial connection between those that get the work and those that decide who gets the work. S. Concept: Insure that contractors working for the county employ a certain percentage of their workforce from residents of low income areas of the county. These areas could be identified based on most recent census data and identified by school district. Rationale: By using school districts and income levels, racial statistics would cease to be a basis for employment. The county EEO Advisory Board could monitor this by comparing employee lists with DMV, state tax records, and voter roles. 6. Concept: Encourage labor unions that have members working in the county to conduct outreach and public relations programs in the middle and high schools, and churches of the low and moderate income areas in the county to promote their trade and solicit membership. Rationale: This is an attempt to reduce the response by many employers that they can't find qualified employees. This would also place success images in front of those students that have no role model, no plans for college, and no expectations for their futures. 7. Concept: Require contractors to actively solicit workers from the unemployment rolls of the California Employment Development Department (Contra Costa offices) and the welfare rolls of the county Social Services Department. The County would review the-listed skills of those on the unemployment and welfare rolls and compare them with active contracts to see if there had been any contact between the unemployed person and the contractor. Rationale: Reduce the welfare and unemployment rolls. 8. Concept: Begin monitoring all personnel actions concerning county employees by race, sex, and depart anent Rationale: This is in recommended because of the extremely unique information from the California Department of Fair Employment and Housing. The concern here is that since the complaint statistics for Contra Costa County for 1994 through 1996 were so high as I October 13, 1997 Attachment: HRC Recommendations for Alternative MBE/WBE Programs, page 3 compared to any other county and the state that personnel actions in the county may be an area of concern. It is recommended that the Human Relations Commission be the monitoring,agency for this task. 9. Concept Establish open communications with other counties to find our how they plan on addressing the issue. Rationale: A good idea doesn't have to originate in Contra Costa. i November 7, 1997 Mark De Saulnier, Chair Board of Supervisors Clerk of the Board of Supervisors 651 Pine Street, First Floor Martinez, CA 94553 Dear Supervisor De Saul -der: At our October 24, 1997 meeting we discussed your referral to our Council for comments and recommendations regarding Proposition 209 and the Board's action to suspend the Minority and Women Business Enterprise(MBE/WBE) Contract Compliance Programs. On behalf of the Equal Employment Opportunity Advisory Council, I am writing to express our opposition to the action taken by the Board of Supervisors to suspend the Minority and Women Business Enterprise (MBE/WBE) Contract Compliance Programs for Contra Costa County. We believe that your decision was based on limited information and a narrow interpretation of activities sustainable under Proposition 209 guidelines. The reason given by the Board of Supervisors for suspending the program was a reference to potential law suits and their threat to the general fund. We wish that you were able to give other reasons to support your actions. There was no pronouncement that this action was being taken to reestablish equitable access to business opportunities for all residents of the county. No statement citing that there was no longer a need for mechanisms focused on establishing and maintaining fair access to business opportunities for women and minority owned businesses. No indication that minority and women owned businesses were achieving participation in contracting near or equal to their availability in the marketplace. We are recommending the following program activities: 1. Workshops, job fair training and development should be provided to small contractors by County staff. Subjects would include `how to do business in the county'. 2. The County should develop an outreach program to target small businesses so they are aware of upcoming County construction projects and professional services contracts. 3. We continue to request staffing for the Affirmative Action Office in order to provide staff support to departments and small businesses and to monitor construction, vendor, and professional/personal services contracts. 4. Recognize construction contractors who have subcontracted continuously with small businesses including minority and women owned businesses. 5. Recognize unions that increase their memberships with local residents from low income areas and areas that include large numbers of minority and women residents. 6. Public Works and General Services Departments should provide to contractors at the time specifications for projects, lists of small businesses including minority and women owned businesses. If there are several subcontracting opportunities, the lists should reflect small businesses in each of the those areas of potential subcontracting. Suppliers, manufacturers and truckers should also be included. The County should continue to use the CalTrans listing of DBE firms. DBE firms are certified small businesses. 7. Public Works and General Services Departments should select several contractors including minority and women owned contractors to be selected to work as consultants on County projects. This should be monitored by the Affirmative Action Office. 8. The Council strongly supports the Affirmative Action Office continued implementation of any modified program in this area. We do not agree that the Public Works and General Services should now be given the responsibility of implementing any revised or modified small business or DBE Contract Compliance program. 9. Staff connected with consultants or contractors bidding on projects with the County should not be involved with the solicitation, screening, or selection of the contractor or consultant. This should be monitored by the Affirmative Action Office. 10. For construction projects more than one million dollars, introduce language in the specifications that encourage the participation of local trades, especially those who will commit to referring a broad representation of County residents including minority, female, and low income. 11. Require contractors to solicit workers with trade experience from: Unemployment rolls of the California Employment Development Department in Contra Costa County Offices; welfare rolls; trade union rolls: and directories from other agencies with small businesses,like CalT cans firms that are DBE certified and other agencies that certify firms as small businesses 12. Public Works and General Services Departments should monitor the reduction of welfare rolls and unemployment rolls to determine if employment was due to Contractors working on County projects. Their findings should be reported to the EEO Advisory Council and the Affirmative Action Office. 13. Require Public Works and General Services Departments to continue submittal of three lowest bid proposals within one week of bid opening to the Affirmative Action Office for the purpose of monitoring patterns of subcontractor utilization. 14. Direct County Counsel's Office to monitor other Counties (such as Los Angeles) and Cities, and other agencies with MBE/WBE programs in order to review how they are continuing with their programs regardless of Proposition 209 and document the pros and cons of their approach to the County Administrator. Copies of their report would also be sent to the EEO Advisory Council and the Board of Supervisors. 15. Prior to decisions regarding MBE/WBE programs, request input from a broad spectrum of participants like the EEO Advisory Council, Women's Advisory Committee, Human Relations Commission, and other community groups and organizations. 16. Direct the Public Works and General Services Departments to continue to submit documentation showing their contracting participation of firms including MBE and WBE firms on contracts less than $50,000. We are prepared to answer any questions regarding our recommendations and thank you for the opportunity to express our concerns and present our views. Our county had two years of meeting and/or exceeding both goals. We were headed toward requesting the elimination of the construction requirements after several more years because we would have shown the County had met its objectives. We still need to work on Purchasing and Professional Services contracts, but even in that area there has been improvement. Our county must maintain and improve its ability to monitor and assess the impact of Proposition 209 on the equitable access of all businesses in Contra Costa County to contracting opportunities generated and paid for by the County. Sincerely, I* 0no=d =, Chair dvion Equal Employment Opportunity CC: EEO Advisory Council Members Emma Kuevar Contra Costa County WOMEN'S ADVISORY COMMITTEE VIA FACTSTMTLE 20 Allen Street o Martinez, CA a 510-370-5055 Patricia Seek,Chair 510/228-0940 November 13, 1997 Cheryle Bernard-Shaw Diss is r Emma Kuevor LcAnn Winton Affirmative Action Officer DistrictH 651 Pine Street, 1011 Floor Kathleen DcFronzo ,Datrictrff Martinez,CA 94553 Lindsay Johnson District IV Dear Ms.Kuevor: To be filled District V On September 16, 1997 The Board of Supervisors asked that the Women's Advisory Committee provide comment regarding Item D9,which recommended AT-LARGE MEMBERS suspension of the County's MBE/WBE program in order to comply with Sharon done Proposition 209. The following are comments and recommendations from the Mary Salmon Women's Advisory Committee. Kate Ertz•Berger Whitnie Henderson paw Seek Executive Order 1.1246 requires maintenance of all Affirmative Action programs Elaine Swenson when a county receives federal dollars. Within the last two years the target goals Joan fey for the affirmative action programs within the county were either met or Svc Osborn exceeded_ Contra Costa County is a federal contractor. We would like to make Fem Spector the following points regarding the implementation of Proposition 209: Wanda Harris Lona Stern Banks . Donna Baldwin I- The County does not have to act at this time.The County has the Dunaway discretion to act or wait until later. Based on the law,there are a number Zenobia ThO°as of exceptions available to the County to support maintaining the B'rb"'Jensen Af a—snative Action program: Twiana Armstrong- Bryant Mitzi Sala 2. The legal process for filing a discrimination claim.against the County if Eaadi 1Kautmm the County retains the program is a lengthy one. Any person filing such Phyllis� a claim against the County must exhaust all administrative remedies prior to filing a lawsuit. Failure to do this results in the suit being dismissed. While the County would have to answer any lawsuits filed and let a court resolve the issues,there are staff already assigned to Julie Kelley,staff handle such matters in the County Counsel's Office. Hence,there is a 510/370=5055 minimal loss of money at this stage. 5101370-5098(fax) 3. Any suits which made it to trial would be"stayed"pending a Supreme Court decision. 4. If the Supreme Court refuses to review this case,it will be sent to the Appeals Court for answers to questions and clarifications needing to be answered by the parties and/or the judge. The judge at the.Appeals Court level is required to review for errors only and is limited to review of the record created at the trial court level. If the Appeals Court judge exceeds his authority,his decision can be overturned. spowmW by The Cawm Costa Conary Board of sxpa vhors E. Knevor Letter Page 2 S. If the Supreme Court hears the case and agrees with the Appeals Court, the implementation date of the law could be decreed to be prospective from the date of the Supreme Court action. 6. Affirmative Action programs can be revised to comply with Proposition 209. 7. Public hearing(s)could have been held prior to the Board of Supervisor's action to inform and solicit input from the community. 8. Any County can legitimately provide for preferences where there is evidence that the race.and gender-conscious programs are necessary to cure the effects of active prior discrimination by a municipality (Richmond vs.J.A.Croson Co.) Surely there must be such eases in the County. Based on the above points,The Women's Advisory Committee recommends the. Board of Supervisors perform the following actions:. 1. RESCIND the action of September 16, 1997 and vote again on the matter once an appropriate review of the matter has been conducted. 2. REVISE the MBEIWBE program by to bring it within compliance of the edicts of Proposition 209 rather than a total abandoning of these programs. 3. CONDUCT a Croson study to determine if the County qualifics to establish race and gender preferences,where needed. Finally,as an advisory body to the Board of Supervisors,the Women's Advisory Committee anticipates and expects that the Board will solicit their input prior to nialdng decisions that will affect women in Contra Costa County. We hope in the future the Board will take advantage of our Committee in order to assist them with the very difficult decisions they are faced with on a regular basis. Thank you for the opportunity to comment. Sincerely, �ciaSeek, hair Women's Advisory Committee TOTAL P.03 BLAC%FAMILIESASSOCIATION of mmim ownu cosm oxwrr P.O.BOX21481, CONCORD, CA. 94521 V (SIO) 680-2849 Over 20 Years of ComnuutUy Service" October 10, 1997 Emma Kuevor Affirmative Action Officer Office of the County Administrator 651 Pine Street Martinez, California 94553 Subject: Board Action Regarding Proposition 209 Dear Ms. Kuevor: This letter is directed to you concerning the Resolution adopted by the Board of Supervisors on September 16, 1997 relating to Proposition 209. The Black Families Association (BFA) is appalled and dismayed that the'Board of Supervisors of Contra Costa County would be the first Bay Area Supervisory Body to take such a hasty and controversial position. The Black Families Association is composed of African-American citizens who represent a cross section of our general community. We protest the action of the Board of Supervisors,which is a position we intend to maintain ad infinitum. We are not in agreement or supportive of the Board's Resolution because itis ambiguous and confusing. The first paragraph and Item No. l of the Board Resolution relates to MBEIWBE Programs for construction contracts,professionallpersonal services contracts,and purchasing pending further court opinion,how then will there be any continuous activity as proposed in Item No.2 that relates to MBE/WBE hiring practices? Does the matter as outlined in Item No. 2 involve federal law? If so,how can Item No. 1 exist? Unfortunately,the record of our County as it relates to its entire Affirmative Action process has not been one that we are particularly proud of and the members of this organization have been hoping that some changes would be forthcoming. The action taken by the current Board of Supervisors certainly gives us reasons for concern, in that it does not demonstrate a gesture of sensitivity toward the large minority population of this County. Emma Kuevor Re: Board Action Regarding Proposition 209 October.10, 1997 Page -2- That the Board proposes to continue notification and outreach; to continue to maintain records and monitor contracts through the Affirmative Action Office; and to continue to encourage good faith efforts in the County's proposals and advertisements of its suspended action appears to be a multiplication of its confusing position. As previously stated, we are law-abiding citizens of Contra Costa County who are aware of pending Supreme Court action, and reiterate our position of opposition to the hasty and illconceived Board Resolution. As always,we remain a loyal citizenry of an awakening community that bodes better times for the future. Please notify us when the review of this matter comes before the Board. Sincerely, Madlin A. King President /mak Attachments cc: Members of the Board of Supervisors Equal Employment Opportunity Advisory Council NAACP, Pittsburg Branch Women's Advisory Committee Mayor, City of Concord Mayor, City of Richmond Mayor, City of Pittsburg Mayor, City of Walnut Creek William a '7 Dahn Construction October 9 , 1997 Contra Costa County Affirmative Action Office 651 Pine Street 10th Floor Martinez , CA 94553 Attn: Emma Kuevor Subject:. Board Action Regarding Proposition 209 Dear Ms . Kuevor: I am very pleased with the board' s recent decision on Proposition 209. I feel it was a waste of time and did not accomplish what it set out to. I . myself , am an American Indian. But , because my ancestors were not in attendance at the role call . I can not be offically classified as one. Therefore . I always bid the County lobs as 'a non-minority. I felt I was being discriminated against because I wasn' t "registered" as a minority. I also ran into many situations in which people were trying to go around the program. Many "woman-owned" businesses . - were really ran by men, but put in either their wife's name or their daughter's name. Second, we found minority contractors inflating their Prices because they knew we had to use them. We also ran uv aaainst a minority women-owned business that said we can use her name for a certain amount of money (a bribe) . . All of the paper work, the crooked subcont.Kactors, and :the many hours involved in bidding the jobs was such a headache, that many good contractors avoided bidding Contra Costa County work. Again, I am very pleased with the decision. I feel the County will achieve a higher quality of work, and at the same time save .thousands of taxpayers' dollars. Sincerely, C3rady urner P.O. BOX 5248 BAY POINT,CALIFORNIA 94565 PHONE: (510)458-6339 4 Third Draft Third Draft Contra Costa County Interim Outreach Program I. Policy Statement The Contra Costa County Board of Supervisors encourages opportunities to develop, support, and utilize firms, including Minority-owned Business Enterprises(MBEs), Women-owned Business Enterprises (WBEs), Small Business Enterprises(SBEs),and Local Business Enterprises (LBEs), by providing opportunities for participation in the performance of construction,purchasing, and professional/personal services contracts financed in whole or in part with County funds. II. Introduction The Outreach Program is presented in four broad sections: A. Program Responsibility B. Input from County Advisory Groups C. Outreach Program Areas 1. Construction 2. Purchasing 3. Professional/Personal Services D. Program Evaluation The first section identifies specific areas of responsibility for the Board of Supervisors,the County Administrator,Affirmative Action Officer,Department Head, and Program Administrator. Their roles and responsibilities are discussed. The second section describes the County's Outreach Program, identifying areas coordinated and implemented by the Affirmative Action Office. The third section addresses input from County advisory groups. The fourth section reviews how the Outreach Program is evaluated. The Appendix is provided to present examples of some.of the documents used in the implementation of the Outreach Program. III. Program Responsibility A. Board of Supervisors 1. The Board of Supervisors has policy responsibility for the County's Outreach Program. 2. The Board of Supervisors acknowledges achievement in the area of the Outreach Program and recognizes outstanding performance by departments. c:outreach 1 ATTACHhE TT C Interim Outreach Program B. County Administrator 1. It is the responsibility of the County Administrator's Office to administer and implement the Outreach Program. 2. The County Administrator will include a section in department head evaluations. each year for rating the department's efforts in connection with the Outreach Program. C. Affirmative Action Office Direct responsibility for development,coordination, implementation, and evaluation of the Outreach Program is with the County's Contract Compliance Officer. Some of the Officer's duties and responsibilities in the Outreach Program area are the following: 1. Assists departments and special districts in administering the Outreach Program consistent with the overall program for the County. 2. Plans,coordinates,and directs the day-to-day activities of the Outreach Program. 3. Develops and recommends the implementation of policies and procedures needed to attain the purposes of the Outreach Program. 4. Disseminates information on the Outreach Program, legal developments, and articles concerning the Outreach Program to County departments and special districts. 5. Stays informed of developments in the Outreach Program area. 6. Reviews departmental Outreach Plans and advises the department head and the designated staff person(s)of suggested revisions. Assists departmental personnel in developing effective methods of achieving outreach efforts by: a. Reviewing department procedures for monitoring achievement of outreach efforts. b. Evaluates departments' outreach efforts. 7. Evaluates and prepares reports on the progress of the County and individual departments in the Outreach Program. 8. Makes recommendations to further the achievements of the Outreach Program. c:outreach 2 Interim Outreach Program 9. Acts as liaison with community and professional groups concerned with outreach programs. 10. Prepares,analyzes and provides statistical surveys to department heads annually. Reports on data pertinent to outreach programs. 11. Ascertains requirements of federal and state agencies that may impact outreach programs. 12. Reviews the need for formalized training for department heads and recommends training classes that department heads or their designated staff person(s)should attend. 13. Requests regularly scheduled meetings with trade union representatives to present changes in the County's Outreach Program. D. Department Heads Department Heads are responsible for implementing the Outreach Program within their department or agency. Their areas of responsibility include: 1. Appoint one or more staff person(s) to assist and advise the department head in carrying out the Outreach Program. The staff person(s) implement(s) the requirements of the County Outreach Program, including departmental outreach and reporting. 2. Assess compliance in carrying out the purposes of the Outreach Program. 3. Make available copies of the County Outreach Program to employees and the public, especially contractors, consultants, and vendors. 4. Direct annual review of departments' performance and prepare progress reports with copies sent to the Affirmative Action Office. 5. Direct annual review and update of departmental outreach and reporting. E. County Counsel Provides advice and counsel to department heads, Contract Compliance Officer, County Administrator, and the Board of Supervisors. IV. Input from County Advisory Groups A. The Advisory Council on Equal Employment Opportunity will continue to serve in an advisory role. c:outreach 3 Interim Outreach Program B. Input will be obtained from other County advisory groups. C. The County and City of Richmond's Private Industry Council are available to assist MBEs, WBEs, SBEs, and LBEs develop their businesses. V. Outreach Program Areas A. Construction Outreach Program 1. Minority Business Enterprise A Minority Business Enterprise(MBE)is a business that is at least 51%owned by,and whose management and daily business operations are controlled by, one or more minority persons who are citizens or lawful permanent residents of the United States. The control must be substantial, real, and on-going on a regular basis. The applicable minority groups are defined as follows: a) Black: All persons having origins in any of the Black racial groups of Africa. b) Latino(a): All persons having origins in Mexico,Puerto Rico, Cuba, Central America,or South America, regardless of race. C) Asian/Pacific All persons having origins in any of the original peoples Islander: of Japan, China,the Indian Subcontinent,the Philippines, Vietnam, Cambodia, Laos, Korea, Samoa, Guam,the U.S.Trust Territories of the Pacific,Northern Marianas, Taiwan, Hawaii, or the Pacific Islands. d) American All persons having origins in any of the original peoples Indian/ of North America(including Aleuts and Eskimos)who Alaskan maintain cultural identification through tribal affiliation or Native: community recognition. 2. Women Business Enterprise A Women Business Enterprise(WBE)is a business that is at least 51%owned by, and whose management and daily business operations are controlled by, one or more women who are citizens or lawful permanent residents of the United States. The control must be substantial, real, and on-going on a regular basis. 3. Small Business Enterprise A Small Business Enterprise (SBE) is a small business concern, as defined in Section 3 of the Small Business Act and implementing regulations (Volume 13 of the Code of Federal Regulations, Chapter 1). c:outreach 4 Interim Outreach Program 4. Local Business Enterprise A Local Business Enterprise(LBE) is a business entity whose principal place of business is located within the boundaries of Contra Costa County. 5. Bidder Outreach Efforts a. Bidders are encouraged to make the following outreach efforts: (1) Contact the following agencies for listings of MBEs, WBEs, SBEs, and LBEs: (a) Contra Costa County Affirmative Action Office 651 Pine Street, l Oth Floor Martinez, CA 94553 (510) 335-1045 (510) 646-1353/fax Ekuev@dp.co.contra-cost&ca.us (b) General Services Department Architectural Division 1220 Morello Avenue, Suite 100 Martinez, CA 94553 (510) 313-7200 (510) 313-7299/fax . (c) Public Works Department 255 Glacier Drive Martinez, CA 94553 (510)313-2000 (510)313-2333/fax (d) City of Oakland Office of Public Works One City Hall Plaza Oakland, CA 94612 (510)238-3970 (510)238-2233/fax c:outreach 5 Interim Outreach Program (e) Regional Transit Coordinating Council Golden Gate Bridge, Highway and Transportation District, Chair 1011 Andersen Drive#108 San Rafael, CA 94901-5381 (415) 257-4536 (415)257-4555/fax Cgonzale@ggbhtd.dst.ca.us Includes listings for the following agencies: --Alameda Contra Costa Transit District (AC TRANSIT) (510) 577-8812 (510) 577-8839/fax Sandyp@acbell.net --BART (510)464-6610 (510)464-7587/fax Jmackl@bart.dst.ca.us -CCCTA(Central Contra CostaTransit Authority) (510)676-1976x223 (510) 686-2630/fax MetropolitanTransportationCommission (510)464-7750 (510)464-7848/fax Jmiyaz@mtc.dst.ca.us --San Mateo County Transit District (SAMTRANS) (415) 508-6417 (415) 508-6415/fax --San Francisco Public Transportation (415) 923-6139 (415) 923-6137 (415) 923-6180/fax --Santa Clara Valley Transportation Authority (408) 321-5606 (408)955-0892/fax Andy.flores@vta.org c:outreach 6 Interim Outreach Program (f) San Francisco Human Rights Commission 25 Van Ness, Suite 800 San Francisco, CA 94102-6033 (415)252-2500 (415)431-5764/fax (g) State of California Department of Transportation Division of Civil Rights 1120 N Street,Room 2445 Sacramento, CA 95814 (916) 654-7048 Http://www.dot.c&gov/hq/bep/ (h) Port of Oakland 530 Water Street Oakland, CA 94607 (510)272-1390 (510)272-1172/fax (i) Los Angeles Transportation Commission Contract Compliance 818 West 7th Street, 4th Floor Los Angeles, CA 90017 (j) U.S. Small Business Administration Regional Office 71 Stevenson St., 20th Floor San Francisco, CA 94105-2939 (415) 744-6808 (2) Request assistance in identifying and notifying MBEs, WBEs, SBEs, and LBEs from community organizations; contractor groups; local, state or federal business assistance offices; and/or other agencies or organizations that provide assistance in the recruitment and placement of MBEs,WBEs, SBEs, and LBEs. (3) Conduct broad-based outreach to potential subcontractors, suppliers,manufacturers and truckers, including MBES,WBEs, SBEs,and LBEs,by notifying those firms of this project(via fax, newspaper advertisements, etc.), and by providing project information (bid opening date, location of plans, etc.), and by inviting bids or quotations from all interested firms. c:outreach 7 Interim Outreach Program 6. Verification of Performance Upon completion of work, the contractor shall submit a completed `Verification of Performance' form for each first tier subcontractor, supplier, manufacturer, or trucker utilized by the contractor in connection with the project. This form shall be signed by the subcontractor, supplier, manufacturer, or trucker and shall identify the item(s) of work performed and the actual dollar amount received. Final payment for work done will not be made to the Contractor until all Verification of Performance forms are received. 7. Departmental Outreach and Reporting The General Services and Public Works Department will: (1) continue to conduct an annual workshop for prime contractors, subcontractors, suppliers, manufacturers, and truckers with a special focus on MBEs, WBEs, SBEs, and LBEs, in order to inform bidders about the County's Outreach Program. (2) continue to conduct prebid meetings for projects. (3) advertise for projects in daily or weekly newspapers, trade association publications, trade journals, or other media, such as the Daily Construction Service,Daily Pacific Builder, or Small Business Exchange, including minority and women publications,trade journals or other media. The advertisement(s)should state the following at a minimum: (a) Bid due date (b) Description of the entire project (c) Bidder's bond requirements (d) Identification of trades involved in the project (e) Engineer's or architect's estimated construction contract cost (f) Other pertinent information. (4) compile a list of certified MBEs,WBEs,and SBEs by using the CalTrans directory, the County directory, and other directories from the County's acceptable certifying agencies. The list should be tailored based on the items of work to be performed on the project. (5) add annually and upon request to the list of potential bidders maintained by the departments MBEs,WBEs, SBEs, and LBEs from the CalTrans directory, County directory, and other directories from the County's acceptable certifying agencies. c:outreach 8 Interim Outreach Program (6) continue to submit reports to the Affirmative Action Office on construction contracts less than$50,000 and projects of$50,000 or more, which will be formally bid. (7) In the department's annual performance report submitted to the County Administrator, include a contracting section. B. Purchasing Outreach Program to be developed. C. ProfessionaVPersonal Services Outreach Program to be developed. 1. Departments will review the feasibility of identifying contracts that would allow for the selection of a pool of professional/personal services consultants to receive contract awards on a rotational basis. The pool of consultants would include MBEs, WBEs, SBEs, and LBEs. VI. Program Evaluation The County's Outreach Program is evaluated as follows: A. The County Administrator receives reports of the County's Outreach Program. Each report should describe the overall status of the Outreach Program, results achieved through outreach efforts, identification of any particular problems encountered, and recommendations for corrective actions. B. The Affirmative Action Office submits to the Board of Supervisors progress reports on the County's Outreach Program. C. Department head evaluations are conducted by the County Administrator and include a section on the Outreach Programs effectiveness and success. D. Additional outreach efforts by departments and the County will be evaluated by the County Administrator. c:outreach 9 Contra Costa County CONTRACT COMPLIANCE OUTREACH PROGRAM {' Affirmative Action Office 651 Pine Street,Martinez,CA 94553 (510)335-1045;FAX(510)646-1353 VERIFICATION OF PERFORMANCE SUBCONTRACTOR/SUPPLIER/MANUFACTURER/TRUCKER 1. Name of Prime Contractor 2. Name of Project 3. Project Number 4. The undersigned performed work in connection with the above project as (check one): Sole proprietorship _ Corporation _ Limited Liability Partnership _ Joint Venture 5. Check the following which may apply. *If none apply,check: "None of the above apply". MBE WBE SBE LBE _ Subcontractor _ Subcontractor _ Subcontractor _ Subcontractor _ Supplier _ Supplier _ Supplier _ Supplier _ Manufacturer _ Manufacturer _ Manufacturer _ Manufacturer _ Trucker _ Trucker _ Trucker _ Trucker _ Other _ Other _ Other _ Other Describe Describe Describe Describe *None of the Above Apply 6. The undersigned has performed the following described work in connection with the above project (specify in detail the particular work items or parts that were performed): 7. Total Bid to Prime Contractor:$ 8. Total Amount Received: $ 9. Explain any difference between lines#7 and#8 by attaching a written explanation. 10. Signature Position/Title Date 11. Name of Person Completing this Form 12. ( ) Company Name Phone Number FAX Number c:\fonns\vop.wpd REWSED 11/97 DIVISION E-7 ATTACHMENT D DRAFT The following is a proposed policy for Contra Costa County's public contracting system. Its first component is a subcontracting program designed to insure non-discrimination and non-preferential treatment. Its second component is a program designed to assist small, local businesses in contracting with the County. Legal Background In November 1996, Proposition 209 was passed by the voters of California. Proposition 209 provides that the state and local governments "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of. . . public contracting." Although the initiative was temporarily enjoined by a federal court, it is now in effect. Public entities continue to be bound by federal anti-discrimination mandates, such as Titles VI and VII of the Civil Rights Act of 1964. These statutes expose public entities to liability from women and minorities if the County participates in a procurement system that has the effect of discriminating against women and minorities. As Supreme Court Justice Sandra Day O'Connor has stated, public entities faced with firm evidence of past or current discrimination are"trapped between the competing hazards of liability to minorities if affirmative action in not taken to remedy apparent employment discrimination and liability to non-minorities if affirmative action is taken." Proposition 209 heightens these competing hazards. Contra Costa County Background Until recently, Contra Costa County addressed the under-utilization of MBEs and WBEs, as reflected in its utilization study, through its affirmative action program. Goals for WBE and MBE subcontractor participation were set for prime contracts. The goals were based on MBE and WBE availability. Contractors were given the option of meeting these goals or of demonstrating their good faith efforts to do so. If contractors did not meet the goalsgnd could not demonstrate that they made good faith efforts at outreach, then their bid was rejected as non-responsive. Subcontracting programs such as the one that Contra Costa formerly operated have been challenged on the basis that goaWoutreach are only required for certain groups and not others, and that this is not permitted under Proposition 209. A strong argument exists that in fact such a program does not violate 209, and is mandated by federal anti-discrimination statutes such as Title VI. Contra Costa County nonetheless suspended its affirmative action program in September 1997. A Proposed Alternative The following is an alternative subcontracting policy that does not violate 209, yet furthers the County's interest in maintaining a fair and equitable subcontracting program and in avoiding liability under Titles VI and VII. The subcontracting program looks at utilization of all groups, including white males, in order to insure that there is neither discrimination nor preferential treatment within the procurement system. Under this program, the County would first determine the percentage of a given type of contract that a prime contractor would be required to subcontract (as opposed to retaining for itself). Then, for any particular contract, the County would determine what levels of participation would be expected in the absence of discrimination or preferential treatment. This determination would be based on availability data. For instance, a contract's expected levels of participation might be 8-12% minority subcontractors; 6-10% women subcontractors; and 78-86% white male subcontractors. ( Attachment A for suggested language of policy.) For a contractor whose subcontracting workforce fell within these ranges, there would be no presumption of discrimination or preferences for or against anyone. However, a contractor who fell short on any of the percentages would have to demonstrate that he made good faith efforts to do outreach to the underrepresented group. Because such outreach would be required to any group that was underrepresented, the program would be immune from challenge under Proposition 209. Local Business Program In addition to the above, it is recommended that the County adopt a program to assist in the utilization of small, local businesses. To qualify for inclusion in the Small Local Business Program, a business would be limited to gross annual receipts in the three fiscal years preceding its application for certification that did not exceed the following limits: 1)Public works/construction-- $ ; 2) Professional Services -- $ ; 3) Suppliers -- $ Contracts of$10,000 and smaller would be reserved for the Small Business Program. The County would have discretion to develop fair and equitable criteria for the award of such contracts to the available pool. cA...\ccostampd Attachment A All contractors are required to demonstrate that they neither discriminate nor grant preferential treatment in subcontracting as set forth below. Failure to do so will subject a bid to being declared non-responsive. The contracting agency has determined the availability of licensed subcontractors that are Minority Business Enterprises (MBEs), Women Business Enterprises (WBEs), and Other Business Enterprises (OBEs). For the contract for which the agency is currently seeking bids, the availability is as follows: MBE -- 10% WBE -- 8% OBE -- 82% Based upon this availability, it will be conclusively presumed that a contractor that utilizes subcontractors within the following percentage ranges neither discriminates nor extends preferential treatment: MBE -- 8-12% WBE -- 6-10% OBE -- 78-86% If a contractor's MBE, WBE, or OBE participation rate does not fall within the above percentage ranges, the contractor must affirmatively establish non-discrimination and non- preferential treatment by demonstrating that it made good faith efforts in seeking subcontractors from any underrepresented group(s)." cA...\ccostaatt.wpd Contra Costa County MWBE Statistics Total % Total MBE WBE MBE % WBE % Construction $ 3,155,115 3.27% $ 758,281 $ 242,084 24.03% 7.67% Commodities $ 33,308,485 34.57% $ 18,483 $ 901 0.06% 0.00% Services $ 59,898,678 62.16% $ 136,294 $ 177,705 0.23% 0.30% Total $ 96,362,278 $ 913,058 $ 420,690 0.95% 0.44% Source: 1996 Contra Costa County Affirmative Action Progress Report Prepared by Clifford M. Tong 12/9/97 Page 1 REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: DT�1 S..eUS hv-� Phone: SS� S� Yo o City: S""^ '.5-Address: 30 I am speaking for myself or organization: [dAVylzys- CeL 61,4 -II (name of organization) CHECK ONE: f�"'�N►�O1��``i' I wish to�I pea on AgeC da tem # Date: 1 My comments will be: general >o for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: n. . '. Request to Speak Form ( THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: C 1 "O vd —FN - I�ddress: 8 9� o .0 1 am speaking for myself _ or organization: wale of o�santsatioN CHECK ONE: X 1 wish to freak on Agenda Item #= Oate: Z z 9 /g 7 My comments will be: general )(.fbr_against . 1 wish to speak on the subject of 1 do not wish to speak but leave these comments for the Board to consider: REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. _L Name: -�0�lnrfh9-.�/ l�vH,¢ - Phone: Address: City: Lc� So�iefyv�-E I am speaking for myself or organization: z E frD�'/Sam (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date: My comments will be: general for against I wish to speak on the subject of I do not. wish to speak but leave these comments for the Board to consider: