§ 4.46.020. Definitions.

For the purpose of this chapter, the following words, terms, phrases and abbreviations shall have the following meanings:

"African American" means persons having origins in any black racial group of Africa. It includes people who indicate their race as "Black, African American, or Negro," or provide written entries such as African American, Afro American, Kenyan, Nigerian, or Haitian.

"African American Business Enterprise (AABE)" means a business that is an independent and continuing enterprise for profit, performing a commercially useful function, and that is owned and controlled by one or more African Americans.

"Asian" means persons having origins in any of the original people of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands.

"Asian Business Enterprise (ABE)" means a business which is an independent and continuing enterprise for profit, performing a commercially useful function, and which is owned and controlled by one or more Asian individuals.

"Availability" means being "qualified" to perform work for the Metropolitan Government. This means that the Bidder does business within an industry group from which agencies of the Metropolitan Government make certain purchases; the firm's owner has demonstrated the belief that the firm is qualified and able to perform the work; the firm is located within the relevant geographical area such that it can do business with agencies of the Metro Government; and the bidder has demonstrated an interest in obtaining work by filling out a vendor application, has bid, or is going through the certification process.

"Bid" means a quotation, proposal, sealed bid or offer to perform or provide labor, materials, supplies or services to the Metropolitan Government for a price.

"Bidder" means any individual, sole proprietorship, partnership, joint venture, or corporation that submits a Bid to the Metropolitan Government.

"Benchmarking" means the method enabling the Metropolitan Government to track the inclusion of MWBEs in the procurement process. Benchmarks are not quotas or goals, rather, they are percentage ranges based on MWBE availability, current MWBE participation, and previous MWBE participation in the Nashville Metropolitan Statistical Area ("MSA").

"Certification" means the qualifying process that assures buyers and local, state, and federal agencies that a particular business is an MWBE that performs a commercially useful function. Certification or Recertification shall mean official recognition and approval by the Metropolitan Government that a business meets the qualification criteria of an MWBE, as set forth in this Program. Certification or recertification relates to qualifications regarding ownership and control, not the quality of the service or product.

"Commercially useful function" means performance or provision of real and actual services by a Participant under a contract with the Metropolitan Government or under a subcontract with another business enterprise under a contract with the Metropolitan Government. In determining whether a business is performing a commercially useful function, the following non-exclusive factors will be considered:

(i)

The nature and amount of work contracted;

(ii)

Whether the MWBE has the skill and expertise to perform work for which it has been certified;

(iii)

Whether the MWBE actually performs, manages and supervises the work;

(iv)

Whether the MWBE intends to purchase commodities and/or services from a non-MWBE and simply resell same to the general or prime contractor for the purpose of allowing those commodities and/or services to be counted towards assessment of a Benchmark or fulfillment of a goal (if implemented);

(v)

Standard industry practices relating to the use of subcontractors. Consistent with standard industry practices, a MWBE subcontractor may enter into second tier subcontracts provided that no more than twenty-five percent of the work thereunder will be performed by a non-MWBE unless the subcontractor demonstrates to the satisfaction of the Metropolitan Government that the subcontracting arrangement is consistent with standard industry practice.

"Compliance" means the condition existing when a Participant has met the requirements of this Program.

"Control" or "controlled" for the purpose of determining whether the owner or owners of a potential MWBE controls the potential MWBE, the Metropolitan Government shall consider all of the facts in the record viewed as a whole, including, without limitation the following:

(i)

Whether the potential MWBE is an independent business, which means that its commercial viability does not depend on another firm or firms.

(ii)

Whether the potential MWBE is subject to any formal or informal restrictions that limit the customary discretion of the MWBE owner. There can be no restrictions through corporate charter provisions, by-law provisions, contracts or any other formal or informal devices that prevent the owner of the potential MWBE from making any business decision without the cooperation of another individual. This paragraph does not preclude a spousal co-signature on documents.

(iii)

Whether the owner of the potential MWBE possesses the power to direct or cause the direction of the management and policies of the business enterprise and to make the day-to-day as well as long term decisions on matters of management, policy and operations.

(iv)

Whether the owner of the potential MWBE has an understanding of, and managerial and technical competence directly related to, the type of business in which the business enterprise is engaged and the business enterprises' operations. Generally, experience limited to office management, administration, or bookkeeping functions, unrelated to the principal business activities of the business enterprise is insufficient to demonstrate control.

(v)

Whether, if a state or local law requires the owner of a particular type of firm to have a particular license or other credential, the owner of the potential MWBE possesses the required license or credential.

"Covenant of non-discrimination" means, collectively, one or more contractual affirmative promises (1) to adopt the policies of the Metropolitan Government relating to the participation of MWBEs in the procurement process; (2) to undertake certain good faith efforts to solicit MWBE participation; and (3) not to otherwise engage in discriminatory conduct against MWBEs.

"First ranked bidder" means an individual, sole proprietorship, partnership, joint venture, or corporation that has submitted a bid that, subject to review as contemplated in this chapter, has been tentatively determined pursuant to the requirements of this Title to be the lowest cost bid or highest ranked proposal.

"Goal" means race/gender-conscious corrective measures.

"Good faith efforts" means the voluntary actions of a Participant undertaken in good faith to ensure that it does not discriminate in its contracting practices.

"Hispanic American" means people who identify with the terms "Hispanic" or "Latino" and who classify themselves in a specific Hispanic or Latino category such as "Mexican," "Puerto Rican," "Cuban, "or "other Spanish, Hispanic, or Latino."

"Hispanic American Business Enterprise" means a business that is an independent and continuing enterprise for profit, performing a commercially useful function, and that is owned and controlled by one or more Hispanic American.

"Joint venture" means an association of two or more independent persons, partnerships, corporations (or any combination of them) formed, consistent with the laws of the State of Tennessee, to perform one or more specific contracts limited in scope and duration.

"Minority or Women Owned Business Enterprise ("MWBE")" refers to a business enterprise maintaining a significant business presence in the MSA and performing a commercially useful function that is owned by one or more of the following: (1) African Americans, (2) Native Americans, (3) Hispanic Americans, (4) Asian Americans and (5) Women. Racial and gender categories are separated for monitoring and tracking purposes only.

"Metropolitan Government" means the Metropolitan Government of Nashville and Davidson County, including any of its operating elements, officers, and/or employees acting with authority, but excluding the Metropolitan Development and Housing Authority, Nashville Electric Service, Metropolitan Transit Authority, the Metropolitan Nashville Public Schools, the Metropolitan Hospital Authority, the Metropolitan Sports Authority and the Metropolitan Nashville Airport Authority.

"Metropolitan Nashville Disparity Study" means the Disparity Study prepared by Griffin & Strong, P.C., and submitted to the Metropolitan Government on December 17, 2004.

"MSA" means the Nashville Metropolitan Statistical Area.

"MWBE owned" means that African American, Native American, Hispanic American, Asian American or woman owner(s) who are citizens or permanent residents of the United States individually or collectively possess an ownership interest of at least fifty-one percent of the business.

"Native American" means persons having origins in any of the original people of North America, including American Indians, Eskimos and Aleuts.

"Native American Business Enterprise (NABE)" means a business that is an independent and continuing enterprise for profit, performing a commercially useful function and which is owned and controlled by one or more Native Americans.

"Non-compliance" means the condition existing when a Participant has failed to meet the requirements of this Program.

"Notice" means written communication delivered to the recipient by hand, including express delivery, electronically or by certified mail.

"Participant" means an individual or entity that enters into a contract with the Metropolitan Government to provide goods or services within the scope of the Program, or a subcontractor or supplier to such an individual or entity.

"Program" means the Procurement Nondiscrimination Program.

"Purchasing agent: Shall have the meaning given in Section 8.108 of the Metropolitan Charter.

"Purchasing sector" means the UNSPSC category for the specific procurement of construction, non-professional services and professional services.

"Race/gender-conscious" means any governmental or legislative policy or programmatic action that uses race or gender as criteria for participation.

"Race/gender-neutral" means any governmental or legislative policy or a programmatic action in which race or gender is not among the criteria for participation.

"Satisfactorily completed" or "satisfactory completion" means all of the tasks called for in a contract or subcontract have been accomplished and documented as required by the Metropolitan Government.

"Significant business presence" means that a business enterprise with an established place of business in the MSA at which one or more of its employees is regularly based and that such place of business has a substantial role in the business' performance of a commercially useful function as herein defined. A location utilized solely as a post office box, mail drop or telephone message center or any combination thereof, with no other substantial work function, shall not constitute a significant business presence.

"Supplier" means a warehouser or manufacturer of materials, supplies or equipment that contracts directly with a bidder to provide such materials, supplies or equipment on a project that involves a trade or service. For purposes of measuring the total contract dollars awarded or paid to suppliers on projects, only amounts paid to suppliers of goods customarily and ordinarily used based upon standard industry or trade practices shall be counted.

"Underutilization" means the percentage of dollars spent by the Metropolitan Government with MWBE's is less than participation of MWBE's than reasonably expected based on the availability of MWBE's within the MSA.

"UNSPSC" means the United Nations Standard Products and Services Code used to identify the Purchasing Sector.

"Women Business Enterprise (WBE)" means a business that is an independent and continuing enterprise for profit, performing a commercially useful function, and which is owned and controlled by one or more women.

(Ord. BL2008-161 § 1, 2008)