§ 4.46.080. Evaluation of bid for program compliance.

A.

If the Bid submitted by the First Ranked Bidder in response to a solicitation issued by the Purchasing Agent includes the documents required by Section 4.46.070 of this Chapter, and if the Bidder has not met the applicable goal, the Good Faith Efforts documentation required in Section 4.46.080(E) below, the Purchasing Agent shall forward the Bid to the BAO. The BAO shall then evaluate whether it believes the First Ranked Bidder has engaged in and adequately documented with its Bid efforts to ensure that its process of soliciting, evaluating and awarding subcontracts, placing orders, and partnering with other companies has met the criteria of the EBO Program, including documented Good Faith Efforts, when appropriate. Upon a recommendation of compliance by the First Ranked Bidder, the BAO shall notify the Purchasing Agent, and the Purchasing Agent shall proceed to award a contract upon concurrence with the BAO recommendation.

B.

If the BAO's preliminary analysis suggests that the First Ranked Bidder has failed to comply with the requirements of the EBO Program, the BAO shall send written notice to the Bidder. The notice shall set forth with particularity the reasons for the questioning of non-compliance and shall schedule a conference at which the issue may be reviewed with the Bidder. The Bidder shall be permitted to present any additional materials relevant to the question of non-compliance for consideration by the BAO. If, after the conference and upon consideration of all relevant materials, the BAO is convinced that the Bidder is in fact compliant with the requirements of this Chapter, the BAO shall notify the Purchasing Agent, who shall proceed with an award of contract upon concurrence with the BAO recommendation. If the BAO concludes that the Bidder is not compliant with the requirements of this Chapter, the BAO shall so notify the Purchasing Agent, who shall, upon concurrence with the conclusion and with notification to the Department of Law, reject that Bidder's Bid as nonresponsive, identify another Bidder as the First Ranked Bidder, and forward that Bidder's Bid to the BAO. The BAO shall then proceed to evaluate the Bid submitted by the new First Ranked Bidder in accordance with this section. The determination of nonresponsiveness shall be made pursuant to Section 4.12.110. Decisions under this section are subject to protest in accordance with Section 4.36.010, et seq., and the rules and regulations of the Purchasing Division.

C.

Good Faith Efforts. In addition to regular and customary solicitation processes for contacting potential subcontractors and/or vendors, all Bidders are required to:

1.

Make efforts to include MWBEs in the procurement process;

2.

Make efforts to ensure that businesses are not discriminated against on the basis of race, ethnicity or gender;

3.

Ensure that prospective subcontractors, vendors, suppliers and others are not denied opportunities to compete for work for the Metropolitan Government on the basis of their race, ethnicity, or gender;

4.

Afford all firms, including those owned by racial or ethnic minorities and women, opportunities to participate in the performance of the business of the Metropolitan Government to the extent of their availability, capacity and willingness to compete;

5.

Demonstrate compliance with these Program requirements with appropriate documentation submitted with their Bids;

6.

Maintain for a minimum of three years after completion of the contract and final payment detailed records of all correspondence and responses thereto, logs of all telephone calls made and received regarding Metropolitan Government solicitations, copies of advertisements in publications and other media, and other relevant papers required by the Program.

7.

Cooperate with any document request or other investigatory effort by the BAO in its consideration of the Bid as provided hereinabove.

D.

Methods of Demonstrating Good Faith Efforts. Where an Annual Aspirational Goal or applicable contract/project goal has not been achieved, Bidders shall provide to BAO a statement that the Bidder has delivered written notice to at least three available certified MWBEs if use of MWBEs is reasonable and if BAO can provide at least three MWBEs for the applicable category. Upon request, names, addresses, and telephone numbers for available MWBEs shall be provided by the BAO for each potential subcontracting or supply category in the solicitation. In addition, a Bidder must deliver written notice to all individuals or entities requesting information on the solicitation. The written notice sent to potential subcontractors or vendors shall contain the following:

i.

Sufficient information about the plans, specifications, and relevant terms and conditions of the solicitation to permit development of an understanding of work requirements. This may include information about the work that will be subcontracted or the goods that will be obtained from subcontractors and suppliers;

ii.

A contact person knowledgeable of the project documents within the Bidder's office to answer questions about the conditions of the contract;

iii.

Information regarding the Bidder's bonding requirements;

iv.

The deadline for submission of price quotations.

In addition, where the applicable goal has not been achieved, the Bidder shall also demonstrate its Good Faith Efforts by methods that may include, as applicable, the following:

1.

Attending informational meetings to update potential subcontractors or vendors of subcontracting or supply opportunities.

2.

Dividing the contract, in accordance with normal industry practice, into small, economically feasible segments that could be performed by a MWBE. Under no circumstances, however, shall a Bidder segment work solely for the purpose of utilizing MWBEs as subcontractors where such segmentation is not in accordance with common and accepted industry practices relating to the utilization of other firms as subcontractors.

3.

Providing a written explanation for rejection of any potential subcontractor or vendor to the Bidder, including the name of the firm awarded the subcontract or supply agreement. The BAO will maintain these records and make same available to any subcontractor or vendor rejected by the Bidder.

4.

Providing a non-discriminatory work site. Maintaining a work environment free of harassment, intimidation and coercion at all construction sites, offices and other facilities at which the Bidder's employees are assigned to work. The Bidder shall specifically ensure that all labor supervisors, superintendents, and other on-site supervisory personnel are aware of and carry out the Bidder's obligation to maintain a non-discriminatory work environment.

5.

Soliciting specific individual MWBEs whose availability as potential sources of goods or services can be reasonably ascertained. This measure includes sending letters or making other personal contacts with specific certified MWBEs including those that the Bidder has contracted with in the past as well as other MWBEs with which the Bidder may be unfamiliar, but whose identities can be ascertained from a directory of certified MWBEs maintained by the BAO.

6.

Sending letters or making other personal contacts with other programs as well as private trade associations in the Program Area which are known to publicize contracting and procurement opportunities for the benefit of their respective associates and/or members.

7.

Advertising in trade publications of general circulation in the Program Area. The advertisement shall identify and describe the specific subcontracting or other opportunity in reasonable detail.

8.

Following up initial solicitations by contacting potential subcontractors or vendors to determine, with certainty, whether these firms are interested in participating on the contract.

9.

Thoroughly investigating the potential subcontractor or vendor's capabilities in good faith.

10.

Providing reasonable assistance to a MWBE in need of equipment, supplies, bonding, letters of credit and/or insurance.

11.

Providing reasonable technical assistance to MWBEs to ameliorate any deficiencies of technical knowledge or advance skill, where such assistance is undertaken by the Bidder to facilitate the MWBE's successful participation on a project or contract.

(Ord. BL2018-1419 § 1, 2019)