§ 4.46.110. Goals.

A.

Goals are race/gender-conscious measures that may be established in the event that periodic review of the Metropolitan Government procurement practices reveal a continuing pattern of underutilization of and discrimination against MWBEs by the Metropolitan Government. Goals shall only be considered in the event the Metropolitan Government has exhausted all race/gender neutral remedies and continues to fall below identified Benchmarks in contracting.

B.

Procedure for Adopting Goals. After using Benchmarks and Good Faith Efforts of the Program for 24 months, if the BAO semiannual review shows continuing underutilization of MWBEs and can demonstrate a compelling interest to support imposition of goals in specific subcategories, upon concurrence of the Purchasing Agent, the BAO shall recommend to the Finance Director and the Director of Law the implementation of goals for selected contracts in the identified subcategories. If the Finance Director and the Director of Law agree that goals are warranted and necessary and that the goals proposed by the BAO and the Purchasing Agent are reasonably likely to result in achieving satisfactory utilization, the BAO shall publish the proposed goals three times over a period of thirty days in a newspaper of general circulation. After such time BAO will hold a ten (10) day comment period to receive written comments from any interested individual or entity regarding implementation of a race/gender-conscious program. Subsequent to this comment period, upon approval of the Finance Director and the Director of Law, the BAO with the concurrence of the Purchasing Agent, shall prepare a resolution for submission to the Metropolitan Council with a proposal to implement goals and the proposed goals.

C.

Goals in Bids/Proposals. Should the Metropolitan Council approve the imposition of goals by a resolution receiving twenty-one affirmative votes, the Purchasing Agent may consider the inclusion or underutilization of MWBEs in specific industry subcategory as an additional factor in the evaluation of a Bid. The 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. This includes the fees and commissions charged for professional services, legal counsel, manufacturers, financial consultants, and insurance agents.

(2)

The actual portion of MWBE participation in a joint venture is counted toward the goal.

D.

MWBE Participation in Meeting Goals. In the event that goals are established, all Participants, including MWBE Participants, shall make good faith efforts to attain goals through all subcontractor work.

(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 or sub-subcontractors to attain any goal(s) for an underutilized subcategory, the prime contractor may count said subcontractor or sub-subcontractor work toward goals. In no way shall subcontractors' or sub-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 shall review and approve all contractual agreements and other supporting documentation to determine the percentage of MWBE 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 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.

E.

BAO Monitoring: Ending Goals. In the event that goals are established, the BAO shall review and report to the Purchasing Agent semi-annually and to the Metropolitan Council, the Finance Director, and Director of Law annually, the effectiveness of the goals in reducing underutilization of MWBEs. The BAO shall recommend termination of a goal for a Purchasing Sector established by the Metropolitan Council when the semiannual review shows underutilization has ceased. In any event, a goal for a Purchasing Sector shall automatically expire two years after adoption by the Metropolitan Council.

(Amdt. 1 to Ord. BL2008-161 § 1, 2008; Ord. BL2008-161 § 1, 2008)