§ 4.46.060. Annual aspirational goal and project-by-project goals.

A.

Annual Aspirational Goal. A non-mandatory annual aspirational percentage goal for overall MWBE Prime and Subcontract participation in Metropolitan Government contracts shall be established for Construction, Professional Services, Goods and other Services contracts. This Annual Aspirational Goal is to be based upon the MBE/WBE availability and utilization data collected and analyzed every five years as part of a duly-authorized disparity study. The Annual Aspirational Goal is not to be applied to individual contracts, but rather, is intended to serve as a benchmark against which to measure the overall effectiveness of the EBO Program on an annual basis, and to gauge the need for future adjustments to the mix and to the aggressiveness of various remedies being applied under the EBO Program.

B.

Percentage Goals for MBE and WBE participation may be established by the BAO Staff on a project-by-project or contract-by-contract basis, using updated MBE and WBE utilization data for the particular goods and services being purchased in a given contract. It is intended that such goal-setting will be based upon careful analysis by the BAO Staff of the availability of Commercially Useful subcontracting opportunities within a given contract/project and the relative availability of MBE and WBE firms to perform required tasks on such subcontracting opportunities. Such goals shall be timely provided to the GSC for its consideration and are subject to the approval of the Purchasing Agent. Although no subcontractor goals shall be set project-by-project or contract-by-contract for Goods, any utilization of MWBEs that provide goods shall be counted toward annual aspirational percentage and overall project or contract goals.

C.

Goals in Bids/Proposals. The BAO and Purchasing Agent may consider the following types of participation toward achievement of a goal:

1.

The total dollar value of the contract may be counted toward the specified goal when the Prime Contractor demonstrates a commercially useful function(s) for each proposed Subcontractor. This includes the fees and commissions charged for professional services, legal counsel, manufacturers, financial consultants, and insurance agents.

2.

The actual portion of MBE or WBE participation in a joint venture is counted toward the goal.

D.

MBE/WBE Participation in Meeting Goals. All Prime and Subcontractor participants, including MBE/WBE participants, shall make good faith efforts to attain goals through all subcontractor work, as described in the below subsection addressing Good Faith Efforts (GFE).

1.

Prime Contractors: A Participant may subcontract portions of its contract consistent with industry standards. However, should a prime contractor subcontract greater portions of the project than are consistent with industry standards, then the MWBE will not have performed a commercially useful function as defined herein. Therefore, such participation by a MWBE will not be counted towards any goal.

2.

Subcontractor Participation: Where a Participant utilizes one or more subcontractors to attain any goal(s) for an underutilized subcategory, the prime contractor may count said subcontractor work toward goals. In no way shall subcontractors' work or dollar amount be construed to count toward said goal more than once. Only expenditures to MWBE subcontractors that perform a commercially useful function in the work of the project or contract may be counted.

3.

Supplier Participation: Where a Participant utilizes suppliers to satisfy the goal(s) in whole or in part, the MWBE suppliers must perform a commercially useful function. Supplier participation may be approved upon review of the following factors:

a.

the nature and amount of supplies to be furnished;

b.

whether the MWBE is a manufacturer, wholesaler or distributor of the supplies and has the capabilities to deliver same in accordance with its certification;

c.

whether the MWBE actually performs, manages and supervises the work to furnish the supplies; and

d.

whether the MWBE intends to purchase supplies from a non-MWBE and simply resell same to the general or prime contractor for allowing those supplies to be counted towards fulfillment of the goal(s).

4.

Joint Venture Participation: Where Participants engage in a joint venture to meet a goal, the prime contractor shall demonstrate that the MWBE joint venturer's participation meets the standards for a commercially useful function. The BAO and Purchasing Agent shall review and approve all contractual agreements and other supporting documentation to determine the percentage of MBE/WBE participation resulting from the joint venture that may be credited towards applicable goals of the project; and shall make the determination based on the following factors:

a.

the initial capital investment of each venture partner;

b.

the proportional allocation of profits and losses to each venture partner;

c.

the sharing of the right to control the ownership and management of the joint venture;

d.

actual participation of the venture partners in the performance of work under the project or contract; and

e.

other pertinent factors of the joint venture.

5.

The degree to which any goals have been attained by joint ventures between MWBE firms, and between MWBE and non-MWBE firms, shall be calculated as follows:

a.

A joint venture consisting of a MWBE and non-MWBE firm functioning as a prime contractor will be credited with MWBE participation based on the percentage of the dollar amount of the work to be performed by the MWBE.

b.

In joint venture Proposals in which all joint venture Participants are MWBEs, the joint venture will be credited with MWBE participation only for that portion of the dollar amount of the contract which MWBEs perform and that portion subcontracted to MWBE firms.

c.

In joint venture Proposals, Participants will receive credit toward the goal for the dollar amount purchased from MWBE suppliers.

(Ord. BL2018-1419 § 1, 2019)