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HomeMy WebLinkAbout2001-11-01 - Agendas - Final •1 5 AGENDA FOR THE AIRPORT BOARD MEETING 1 :30 p.m Thursday, November 1 , 2001 Conference Room - Airport Terminal 4500 S. School Avenue 1 . Call to Order. 2. Minutes of the October 4, 2001 meeting. 3 . Old Business. a. Update: T-hangar drainage project. b. Update: Scenario development for future development of the Airport. C. Update: New Airport Manager 4. New Business. a. Request approval of the updated Year 2002 DBE Program (required by the FAA) for Drake Field. b. Request approval of a Lease Agreement with Sunshine Totally Wireless for office space in the terminal. C. 31 Quarter Financial Report - Steve Davis, Budget Coordinator s 5 . Other Business. 6. Adjourn . • FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS DAN COODY, MAYOR 4500 School Ave., Sulo F Fayetteville, AR 73701 501.718.7047 AIRPORT MANAGEMENT GARY DUMAS, UTILITIES DIRECTOR I AIPRORT MANAGER INTERIM TO: Airport Board Members FROM : Gary Dumas, Utility Services Director / Interim Airport Manager DATE: October 31 , 2001 SUBJECT: Arkansas Department of Aeronautics grant request, AIP #29 Background : Grant funding for AIP Project No. 3-05-0020-2901 , "Airfield Pavement Rehabilitation & Taxiway Widening & Strengthening ," was approved by the FAA on June 4, 2001 . A Notice to Proceed with construction was issued October 4, 2001 . The Arkansas Department of Aeronautics will fund 5% of the total project cost. The City's Policies and Procedures regarding grants and grant applications requires that the application be reviewed and approved by the Staff Review Committee, and be submitted to the City Council as an informational item through inclusion on the Council Agenda. Purpose: The Arkansas Department of Aeronautics grant will fund 50% of the federally required 10% local matching funds, or 5% of the total project cost. The total cost of the project is $2,716, 557. The amount being requested on this grant application to the Arkansas Department of Aeronautics is $ 135,678. Budget Considerations : $ 150,000 in Passenger Facility Charge (PFC) funds are approved by the FAA as eligible for this project. There is $ 143,950 remaining in the Airport's PFC revenue account (deferred revenue). Thus, the City's local match of 5%D of the project funding is available through the use of PFC funds. Budget adjustments for this project have been submitted and approved. Action Requested : This is an informational item Staff Recommendation: Staff recommends review of the grant request GD/jn attachment: Grant Application • FAYETTEVILLE AIRPORT DEPARTMENT • THE CITY OF FAYETTEVILLE. ARKANSAS Z October 25, 2001 Mr. John Knight, Director Arkansas Department of Aeronautics One Airport Drive, 3rd Floor Little Rock, Arkansas 72202 RE: GRANT APPLICATION, AIP Project #3-05-0020-2901 - "Airfield Pavement Rehabilitation and Taxiway Widening & Strengthening" Dear Mr. Knight; Enclosed please find two (2) copies of a proposal for Arkansas Department of Aeronautics grant funding under the SAAG 90-5-5% grant classification. Fayetteville Municipal Airport requests funding in the amount of $ 135,678, or 5% of a total project cost of $2,716,557. The project proposal is for AIP Project #3-05-0020-2901 - "Airfield Pavement Rehabilitation and Taxiway Widening & Strengthening." The project has been approved by the FAA and a notice to proceed with construction has been issued by • our FAA Regional office. The Project consists of: New apron N of Taxiway D; Northwest apron extension; taxiway rehabilitation, crack sealing & overlay taxiways C, D, & E; Rehab of taxiway B between C & terminal apron; taxiway widening of A, B, F, & D; crack sealing, rubber removal, and rejuvenation sealer of runway. The project has been awarded to APAC - Arkansas Inc., McClinton-Anchor Division. Fayetteville Municipal Airport respectfully requests your consideration and approval of this grant application. Please contact me if you desire further information, or have any question concerning this application. Sincerely, Gary Dumas Airport Manager / Environmental Services Director GD:jn • Enclosures:\2\ Grant Application, 2 copies 4500 SOUTH SCHOOL AVENUE, SUITE F • AIRPORT TERMINAL BUILDING • FAYETTEVILLE. AR 72701 PHONE 501 .718.7640 Ext. 5 • FAX 501 .718-7646 ARKANSAS DEPARTMENT OF AERONAUTICS • APPLICATION FOR STATE AIRPORT AID The City/EettnEy of Fayetteville , herein called "Sponsor" , hereby makes application to the Arkansas Department of Aeronautics for State funds pursuant to Act 733 of 1977 , for the purpose of aiding in financing a project for the development of a municipal airport located in the City of Fayetteville Arkansas , Washington County . Date of Request : October 25 , 2001 Name of Airport : Fayetteville Municipal Airport / Drake Field ( FYV) Name and address of City/ County Commission sponsoring request : City of Fayetteville Person to contact about project : 113 West Mountain St . James Nicholson , Financial Coord . Fayetteville , AR 72701 4500 S School Ave , Suite F Phone / Fax Number : Phone/ Fax Number : 501 - 718 - 7643 501 - 718 - 7646 fax • Name and address of Engineering Firm ( If Applicable ) : McClelland Consulting Engineers , Inc . Contact Person : Wayne Jones , P . E . PO Box 1229 Fayetteville , AR 72702 - 1229 Phone/ Fax Number : 501 - 443 - 2377 Describe the work to be accomplished : AIP #3 - 05 - 0020 - 2901 "Airfield Pavement Rehabilitation and Taxiway Widening & Strengthening . " Project consists of : Widening & strengthening of Taxiways A. Be F , & D ; Crack sealing and overlay of Taxiways C . D , & E ; Crack sealing , rubber removal , & rejuvenation sealer for Runway 16 / 34 . State and Local Project Costs : Federal AIP Projects : Please indicate : _ 50 - 50 % Match _ 75 - 75 % Match AIP # 3 - 05 - 0020 - 2901 90 - 10 % Match Total Cost of Project Total Cost of Project 21716 , 557 Local Share / Funds Federal Share ( 90 % ) 2 , 442 , 201 Local Share / In - Kind Local Share ( 5 & ) 135 , 678 State Share State Share 135 , 678 • State Airport Aid Application Page Two • Provide the information listed below as it applies to your project : FUNDS : Source of Funds Federal Funding DOT/FAA State Funding : Arkansas Department of Areronautics Local Funding : Airport PFC Source of In - Kind Services N/A Estimate starting date of project : October 2001 Estimate completion date of project : April 2002 Project will be for : New Airport Existing Airport XX • Is land to be leased or purchased? NO Description of land and cost per acre : Provide the Federal AIP Grant Number (AIP Projects Only ) 3 - 05 - 0020 - 2901 State Representatives for your area : State Senator David Malone State Representative Bill Pritchard - District 8 • State Airport Aid Application Page Three • The Sponsor agrees to furnish the Arkansas Department of Aeronautics a copy of the legal instrument affecting use of the property for an airport . In application for a new landing site or expansion of existing facility , the FAA Form 7480 . 1 , Notice of Landing Area Proposal , must be approved by FAA before review for grant can be made by the state . No land purchased with State Grant Funds may be sold or disposed of without State Commission approval . All requests for sale or disposal of property will be considered on an individual case basis . No airport accepting State Grant funding may issue an Exclusive Rights Lease . All applications for navigational aids ( such as NDB or ILS ) must have FAA site approval before a state grant can be approved . All Grant applications involving Federal Airport Improvement Program (AIP ) funding must be accompanied by the approved FAA application . If this project is approved by the Arkansas Department of Aeronautics , and is accepted by the sponsor , it is agreed that all developments and construction shall meet standard FAA construction practices as outlined in the specifications of this agreement . Runways , Taxiways , Parking Ramps , etc . , shall have a base and a thickness that will accommodate the weight of aircraft expected to operate at this airport . • All grant applicants ( City and/or County ) are totally responsible for compliance with all Federal ', State , County and City Laws , Statutes , Ordinances , Rules , Regulations , and Executive Orders concerning contracts and purchases for which this grant is approved and issued . All grant applicants must submit with their applications a completed Contract and Grant Disclosure and Certification Form . ( Form F - 1 - Pages 1 &2 ) . It is understood and agreed that should the sponsor fail to start this project within three ( 3 ) months of the Arkansas Department of Aeronautics ' date of acceptance , that this grant is null and void . It is also agreed that this project , except FAA funded projects , shall be completed within one year from the date of acceptance of this grant by the Arkansas Department of Aeronautics . Applications for extension will be entertained if circumstances beyond the sponsor ' s control occur . Funds will be disbursed according to Department procedures and final inspection of completed project . ( See Instruction Page ) . IN WITNESS WHEREOF , the sponsor has caused this Application for State Airport Aid to be duly executed in its name , this day of 20 01 CitV of FaVetteville Name of Sponsor • Authorized Signature Gary Dumas , Airport Manager ( Interim) Title PAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS DAN COODY, MAYOR • 1500 School Ave., Suite F Fayetteville, AR 73701 501.718.7643 AIRPORT MANAGEMENT GARY DUMAS, UTILITIES DIRECTOR I AIPRORT MANAGER INTERIM TO: Airport Board Members FROM: James Nicholson, Financial Coordinator / DBE Liason THRU: Gary Dumas, Utility Services Director / Interim Airport Manager DATE: October 21 , 2001 SUBJECT: Disadvantaged Business Enterprise (DBE) Program Goal Update for FY 2002. Background: On October 14, 2000, the Fayetteville City Council approved the Fayetteville Municipal Airport's revised Disadvantaged Business Enterprise Program. The Airport's DBE Program is federally mandated under 49 CFR Part 26 for all Department of Transportation (DOT/FAA) grant recipients which anticipate receiving more than $250,000 in federal funds in the fiscal year. Drake Field anticipates receiving approximately $2.4 million from the DOT/FAA in FY 2002. The DBE Program assures that Minority & Women-owned businesses, and other economically disadvantaged small businesses have an equal opportunity, or "level playing field," in competing for Airport procurement contracts. 49 CFR Part 26 requires that our DBE Program Goal be updated annually. The Updated Goal describes • the overall DBE participation percentage and value of procurement contracts targeted for award to DBE contractors in the fiscal year. The regulation provides the methodology to be used to set contract DBE participation goals. Purpose: The purpose of this item is a new resolution amending Fayetteville City Council Resolution No. 147-00. Resolution No. 147-00 approves the Revised Disadvantaged Business Program to be implemented for all DOT/FAA grant assisted contracts entered into by the City of Fayetteville Municipal Airport. The approved program contains the DBE participation goal level in FY 2001 . The new resolution will accept and approve the airport's updated DBE participation goal for FY 2002. Budget Considerations: No budget effect. Action Requested: A motion to accept and approve the updated DBE participation Goal for FY 2002, and forward to the Fayetteville City Council. Staff Recommendation: Review & Approval GD/jn attachment: FY 2002 Goal Update & Methodology Resolution 147-00 Approved DBE Program FY2001 Federal Register - 49CFR Part 26, Subpart B - Administrative Requirements • • Overall Goal and Methodology Fayetteville Municipal Airport / Drake Field (FYV) FY 2002 Update Airport Sponsor: City of Fayetteville Name of Preparer: James Nicholson, Financial Coordinator Fayetteville Municipal Airport/Drake Field 4500 S School Ave., Suite F Fayetteville, AR 72701 Goal Period: 10-1 -2001 Thru: 9-30-2002 Overall DBE Goal: For review .52 % Introduction to 2002 DBE Goal update: The City of Fayetteville / Fayetteville Municipal Airport DBE Goal update for Fiscal Year (FY) 2002 is provided to describe the Airport Projects which are funded in part with Department of Transportation (DOT) / Federal Aviation Administration (FAA) funds, and to determine by the federally prescribed methodology the portion or percentage of those funds targeted for contract award to Disadvantaged Business Enterprises (DBE's) in accordance with Federal Regulations 49 CFR Part 26. The Goal Update is a prerequisite for Airport Improvement Project (AIP) grant funding for airports which anticipate receiving more than $250,000 in federal funding from the FAA. The 2002 DBE Goal Update revises the DBE participation goal in federally funded airport • contracts anticipated for the 2002 fiscal year, from that originally described in the airport's previously published DBE Program Plan and successive annual goal updates. The FY 2002 Goal Update is effective October 1 ", 2001 through September 30' , 2002. Public Participation and Consultation in the DBE Goal Update process is a requirement under federal regulations. The updated Goal and Methodology is published for 30 days prior to submittal to the FAA for approval. Comments on the Goal Update are accepted for 45 days after the date of public notification of its availability for public review. Copies of this document were mailed to a number of interested private and public entities for review and comment, ( see attachment # 1 - list of consulting agencies). Public comments on the updated goal and methodology are incorporated with the submission to the FAA. No public comments on the proposed FY 2002 Goal were received as of October 24, 2001 . Comments on the FY 2002 DBE Goal Update may be submitted to the Fayetteville Municipal Airport's DBE Liaison Officer by phone, writing, fax, or e-mail to the following: James Nicholson, DBE Liaison Officer Fayetteville Municipal Airport / Drake Field 4500 South School Ave., Suite F Fayetteville, AR 72701 501 -718-7643 • 501 -718-7646 fax inicholson@ci.favetteville.ar.us • Overall Goal and Methodology Fayetteville Municipal Airport / Drake Field (FYV) FY 2002 Update OVERALL GOALS (§26.45) Amount of Goa! Fayetteville Municipal Airport's overall goal for FY 2002 is: . 52% Fayetteville Municipal Airport anticipates one AIP (federally funded) project in FY 2002. The estimated project cost is $2.7 million for Taxiway Extension of taxiway "A" including related aircraft ramp extension. Thus, the projected dollar amount of DBE participation in the project is: $ 14,040 Determination of Market Area Step 1 of the methodology for determining DBE percentage goal requires an assessment of the relative availability of DBE's in the local market area. The local market area is the area which provides, or is most likely to provide, the firms considered qualified to perform the needed work. • We used the most recent Census data available (1999) for Washington County, Arkansas and the four surrounding Arkansas counties, Benton, Crawford, Franklin, and Madison counties. Effectively all contractors for airport improvement work of the nature described in the first section have historically come from the local area, specifically, Washington or Crawford County. Except that occasionally a contractor performing ancillary tasks may be recruited from a further distance. However, for the sake of including contractors within a reasonable, feasible range, three other counties bordering Washington County are included in this assessment: Benton, Franklin, and Madison counties. A primary condition of asphalt pavement work is the distance from the asphalt material producer's location to the worksite. Asphalt is time limited in its workability before spoilage due to the material's working temperature range. Thus, local producers are most apt to provide material for this project. Also, local asphalt contractors performing this type work have long established relationships with the local asphalt producers. Our Washington County, Arkansas location, situated in a central valley of the Boston Mountains, also contributes to the insulated climate for this type of construction work. Accessibility to distant asphalt producers by trans-state highway is limited by mountain terrain and distances of surrounding rural area. • The available DBE Contractors in Local Market Area are those listed as being certified DBE by the Arkansas State Highway & Transportation Department (AHTD), and listed in AHTD' s "Disadvantaged Business Enterprise Directory," published July 13, 2001 . • Overall Goal and Methodology Fayetteville Municipal Airport / Drake Field (FYV) FY 2002 Update Methodology - Step 1 The Fayetteville Municipal Airport / Drake field anticipates awarding one AIP project contract in FY 2002. The project consists of extending Taxiway "A" and associated aircraft apron approximately 3,200 ft. south of Taxiway "D" on the east side and parallel to Runway 16/34, including approximately 800 ft. of taxiway access to the runway. This project is identified in the most recent draft of the airport's Conceptual Land Use Plan. Project No. 1 - Taxiway Extension NAICS Work Item DBE's in Local All Available Code Market Area Firms 23411 Heavy Construction; Hwy, Streets 0 12 32412 Asphalt paving - manufacture 0 2 • 23531 Electrical Contractors 0 99 23599 Markings (other specialty contractor) 0 35 23593 Excavation contractors 1 55 48411 Trucking, local (dump truck) 1 35 Totals for this Construction Contract 2 238 Calculation of Base Figure The base figure is calculated as: the number of available DBE contractors as a percentage of all available contractors in the Local Market Area. Base Figure = DBE contractors / all contractors Base Figure = 2 / 238 = .84% • 'I 1 • Overall Goal and Methodology Fayetteville Municipal Airport / Drake Field (FYV) FY 2002 Update Methodology - Step 2 Step 2 is an adjustment to the base figure percentage from Step 1 so that the updated goal accurately reflects the actual attainable DBE participation in FY 2002 airport contracts. Past years DBE accomplishment results data for similar projects are examined and averaged with the base figure to determine the adjusted percentage goal. Only projects comprising like work are used for comparison. DBE Goal Accomplishments - Historical Information Year Goal % Accomplishment % Project Type 2000 1 . 74 0 Access Road Construction 2001 .93 .39 Taxiway / Runway Rehabilitation (bid ) • Average % 1 .34 .20 Calculation of adjustment to DBE Base Figure The calculation of the adjusted figure is determined by averaging the base figure and the historical average for like projects. Base Figure + Historical Avg. / 2 = Adjusted Figure (.84 + .20) / 2 = .52 • • Overall Goal and Methodology Fayetteville Municipal Airport / Drake Field (FYV) FY 2002 Update Other Factors Research was conducted to determine if any DBE / small business disparity studies for the region were available. None could be located. The latest U.S. Census Data for minority population, not including women, in the five county area indicates an increase from previous US Census 1998 estimates of 6. 141 % to 9.425 % in 2000. This is indicative of the recent influx of minority emigrants to the area. We anticipate that there will eventually be an increase of DBE's corresponding to the increase of local minority population as the new emigrants settle and become established. No other factors regarding the local DBE environment could be determined to be an influence on the adjusted DBE goal figure. Breakout of Estimated Race-Neutra! and Race-Conscious Participation • In determining what percentage of the 2002 adjusted goal could be met through race-neutral means, we again reviewed historical DBE accomplishments for Fayetteville / Drake Field. FYV has not met its DBE goal in any year since 1997. Therefore, we estimate that in meeting our overall 2002 adjusted goal of .52%, we will obtain 0% from race-neutral participation and .52% from race-conscious measures (e.g. setting contract goals). • • Overall Goal and Methodology Fayetteville Municipal Airport / Drake Field (FYV) FY 2002 Update Attachment #1 - List of Consulting Agencies Arkansas State Highway & Transportation Department Ms. Dana McClellan PO Box 226 Little Rock, AR 72203-2261 Arkansas SBDC College of Business Administration 100 South Main, Suite 401 Little Rock, AR 72201 Small Business Advancement National Center University of Central Arkansas College of Business Administration UCA Box 5018 201 Donaghey Avenue Conway, AR 72035-0001 Small Business-Association (SBA) • Arkansas District Office Joseph T. Foglia 2120 Riverfront Drive, Suite 100 Little Rock, AR 72202- 1794 Arkansas State Chamber of Commerce 410 S Cross PO Box 3645 Little Rock, AR 72203-3645 Veterans Business Development Office Andy Lamonica Arkansas District Office 2120 River Front Drive, Room 100 Little Rock, AR 72202 Arkansas Department of Economic Development DBE Officer One Capitol Mall Little Rock, AR 72201 Fayetteville Chamber of Commerce • PO Box 4216 Fayetteville, AR 72702-4216 • ,Arkansas eniperat ���` �� ($ a -/1�,e to THE Rr=oUpmo AF IDAVIT O1( 1' UOL1CATION I=""�ed �`"" ?pkelOBEslb°0��°�ppy�yg6 FICkMe`tlb�srruda O�OTi I, - - `� , du sulci � inly w+�aF . �esn "ro swear That I am Leal Clerk of the Arkansas d9d „ F wlb IYpaT Democrat-GazcttcNew;cpaper, printed and hubli:;hal at Lowell , ► a�*"""Q0�!'” ero�� ar. ou=emwa o e Arkan:;as and tial from my own puxon;d knowlcdLc and MO W" w of to refercucc to the files of said publication the advertisement ofuroEMOSO � May ee gram a p5W LGE uasm d bOW. D ,� _ a OFF . Ofte IID �s HO� 08E Udsm • Was inserted in the rcgsular editions onwpS. mi SdiIa F &t q' ,mo S31375 Publication Chargc — �- -- Purchasc Ordcr IF Subscribed and sworn to bcfon'- me this day o f • 2001 . Notary Public My commission csoires Sall i` No:a:/ sxs , CoUnty >i \lv Commission Expires 011Y 7.105 � ?ccccaccccccc cca:can:ccacca«c l P.O. non 1607, 212 N. Last Avcnuc, Faycitcvillc, Arkan:;as 71.701 , (501 )571 -6.167 • Arkansgas Democrat 0 0a iv�eae Fro mig lDAYCI' Olr PUBLICATION moreE n+E dry a reyamroefeye�e A6Wdha p6hhed to — - - Fa The h [, kd , du :;ulail111Y awzrodmeaarF F6kh�e6a16re70 dgpkd 1p`50mo SSand Aw.•rryerrie�°AR swear Ilial I ant Lcgal Clerk of llw Arkansas lnKwft a.a edddNare,s A ax Pan 2r%mmweo wINo me lgdmed Gael and arewd*v Democrat-Gazctle Newspaper, printed and publi::hcJ at Lowell , yy#�!y Ct�ya�'"`�°°'�e�ge° laaYdOa Aepol for 1 i1p . F"Calim dale a M mmm Arkan;:;Ls and thal Rum my own pu:wnal knowlulLc and �oPF ftsfim o fte Ami Jh 08E likm 06oer reference ro the riles of said publiwlion the advglisc meat of `S00r, e "wl+2 F Pln 501418-76q on* F�mm@O.faY�evieALM 2631N74301 Wasn�. n the rCSLllar Wilions on 90I Publication Cltarve p61 Purchase Order 11 Subscribed and sworn to before int; this day o l 2001 . Notary Public rrra•rrrrrurru rrKrrrrvctu.�r`�,` My commission Cspi�a _ Catbenm Sall < 2� Noury Pu:11ic, 51stc o, r r •a .• . ,� ly ply Cn r:aitt,.;,n L'.:cr +e p :2716!5 ' >c.«ccaccrccccc:ccccccccccacccc�y , P.O. Doc 1607, 212 N. E.Lit Avcauc, Fayeamllc, Arkan;;as 72701 , (501 )571 -6.167 • PFCEIVEr) MAP 0 k 7001 RESOLUTION NO. 147-00 kii7 rr URT A RESOLUTION APPROVING THE REVISED DISADVANTAGE BUSINESS ENTERPRISE (DBE) PROGRAM TO BE IMPLEMENTED FOR ALL DOT/FAA GRANT ASSISTED CONTRACTS ENTERED INTO BY THE CITY OF FAYETTEVILLE MUNICIPAL AIRPORT AS REQUIRED BY 49 C.F.R. PART 26. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS : Section 1 . That the City Council hereby approves the revised Disadvantage Business Enterprise (DBE) Program to be implemented for all DOT/FAA grant assisted contracts entered into • by the City of Fayetteville Municipal Airport as required by 49 C.F.R. Part 26. A copy of the regulation is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 17" day of October , 2000. APPROVED: By: Fr d Hanna, Mayor ATTEST: By: tefeather Woo ff, City Cl • r EXHIBIT A • FAYETTEVILLE MUNICIPAL AIRPORT _ DISADVANTAGED BUSINESS ENTERPRISE PROGRAbI C C '- Definitions of Terms The terms used in this program have the meanings defined in DOT 49 CFR 26.5. Objectives/Policy Statement (26. 1 ,26.23) The City of Fayetteville/Fayetteville Municipal Airport-Drake Field has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Pan 26. The City of Fayetteville has received Federal financial assistance from the Department of Transportation. and as a condition of receiving this assistance, the City of Fayetteville has signed an assurance that it will comply with 49 CFR Part 26. It is the policy of the City of Fayetteville to ensure that DBEs, as defined in Part 26, have equal opportunities to receive and participate in DOT-assisted contracts. It is also our policy - 1 . To ensure nondiscrimination in the award and administration of DOT-assisted contracts; 2. To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts; 3. To ensure that the DBE program is narrowly tailored in accordance with applicable law; 4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs; S. To help remove barriers to the participation of DBEs in DOT-assisted contracts; and 6. To assist the development of firms that can compete successfully in the marketplace outside the DBE Program. • The Airport's Financial Coordinator has been delegated as the DBE Liaison Officer. In that capacity, the Financial Coordinator is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City of Fayetteville in its financial assistance agreements with the Department of Transportation. The City of Fayetteville has disseminated this policy statement to the Fayetteville City Council and all the departments of our organization. We have distributed this statement to DBE and non-DBE business communities that perform work for us on DOT-assisted contracts by ruining an advertisement in a statewide newspaper. CITY OFF LE By: l/ /—Date !/d Fred Hanna, Mayor Attest: Date x Heather Woodruff; City CIefk X l APPROVED(AS TO SUBSTANCE: Aleft Little, Economic Development Dt:ccior Nondiscrimination. ( 26. 7 ) The City of Fayetteville will not exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Pan 26 on the basis of race, color, sex, or national origin. In administering the DBE Program, the City of Fayetteville will not directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals ora particular race, color, sex, or national origin. DBE Program Updates. (26.21 ) We will continue to carry out this program until all funds from DOT financial assistance have been expended. We will provide DOT updates representing significant changes in the program Quotas. ( 26.43) We do not use quotas in any way in die adminlsirauon of this DBE program • DBF. Liaison Officer (DBELO) ( 26. 25 ) The following individual has been designated as the DBE Liaison Officer: Brenda Moss, Financial Coordinator, Fayetteville Municipal Airport-Drake Field, 4500 S. School Avenue, Suite F, Fayetteville, AR 72701 , phone# 501 - 718.7640 Ext. 5. In that capacity, Ms. Moss is responsible for implementing all aspects of the DBE program and ensuring that the Fayetteville Municipal Airport-Drake Field complies with all provisions of 49 CFR Part 26. The DBE liaison officer has direct, independent access to the City of Fayetteville's Economic Development Director conceming DBE program matters. The City of Fayetteville is the sponsor for the Fayetteville Municipal Airport- Drake Field. All departments are available to assist or advise the DBE Liaison Officer as needed. The Airport recruits engineers for each of our AIP projects who work and assist in the compliance of the Airport's DBE program. The DBELO is responsible for developing, implementing, and monitoring the DBE program, in coordination with other appropriate officials. Duties and responsibilities include the following: 1 . Gathers and reports statistical data and other information as required by DOT. 2 . Sets overall annual goals. 3. Ensures that bid notices and request for proposals are available to DBEs in a timely manner. 4. Identifies contracts and procurement so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals) and monitors results. 5. Participates in pre-bid meetings. 6. Advises the Economic Development Director on DBE matters and achievements. 7. Participates with the project engineer to determine contractor compliance with good faith efforts. 8. Maintains the airport 's updated directory on certified DBEs. • 7 • Federal Financial Assistance Agreement Assurance. (26. 13) The City of Fayetteville has signed the following assurance, applicable to all DOT-assisted contracts and their administration: The City of Fayetteville shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE Program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE Program, as required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation o; this agreement. Upon notification to the City of Fayetteville of its failure to carry out its approved program, the Department may impose sanctions as provided for under Pan 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and'or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.). DBE Financial Institutions. (26.27) The City of Fayetteville utilizes the publication, "Report of the Bank Commissioners of Arkansas," as a source o: financial institutions. This register is published yearly by the Office of State Bank Department. The DBE Liaison Officer will investigate the availability of any DBE Financial Institutions listed in this register and recruit other interested DBE financial institutions by running advertisements at least once a year in a statewide newspaper. l he Fayetteville Municipal Airport will use these mediums to initiate the investigation to the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in our community and make reasonable efforts to use these institutions. We will also encourage prime contractors to use such institutions which we have identified. • To date we have identified no such institutions in our area, but will continue to search. Directory. (26.25 ) The Fayetteville Municipal Airport-Drake Field will maintain and make available to interested persons a directory identifying Tums eligible to participate as DBEs in our program. The directory lists the firm's name, address, phone number, and the types of work the firm has been certified to perform as a DBE. The directory will be revised at least annually. The airport uses the Arkansas Highway Department's directory of certified DBEs as the airport's DBE directory. The directory will be available to contractors and the public on request and will be maintained at the Fayetteville Municipal Airport-Drake Field located at 4500 S. School Ave., Suite F, Fayetteville, AR 72701 or by calling 501-718-7640 ext. 5. Copies may also be obtained by calling the Arkansas State Highway and Transportation Department at 501-569-2259. Required Contract Clauses. (26. 13, 26.29) Contract Assurance. (26. 13) The Fayetteville Municipal Airport-Drake Field will ensure that the following clause is placed in every DOT- assisted contract and subcontract: The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex :n the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these • 3 • requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate. Prompt Payment. (26.29) The Fayetteville Municipal Airport-Drake Fie'd will include the following clause in each DOT-assisted prime contract: The prime contractor agrees to pay tach subcontractor under this prime contract for satisfactory performance of its contract no later than 30 days from the receipt of each payment the prime contractor receives from the City of Fayeneville. The prime contractor agrees further to rcmm retainage payment w each subcontractor within 30 dad's atter the subcontractor's work is satisfactorily completed. Any delay or postponement of payment front the above referenced time frame may occur only for good cause followini written approval of the City of Fayetteville. This clause applies to both DBE and non-DBE subcontractors. Before any written approval for delay or posroonentcnt for payment is issued, both the prime contractor and the subcontractor will be invited to discuss the dist acted issues. The Airport willfully investigate our options with the City of Fayetteville's Legal Department and the Federal Aviation Administration in the most expeditious time possible before written approval for delay or postponement of payment is given. Sanctions for Noncompliance: In the event of the contractor's noncompliance with any terms of a DOT-assisted prime contract, the Cir: of Fayetteville shall impose such Contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to: • (A.) Withholding of payments to the Contractor under the Contract until the Contractor complies, and/or (B.) Cancellation, termination, or suspension of the Contract in whole or in part. Monitoring and Enforcement Mechanisms. (26.37) The Disadvantaged Business Enterprise (DBE) program for the Fayetteville Municipal Airport-Drake Field will be incorporated as part of the Specifications and Contract Documents on all DOT-assisted contracts. The inclusion of this program in the Specifications and Contract Documents provides the same sanctions for noncompliance to the DBE program as any other term of any DOT-assisted contract. Submission of a bid on any federally assisted work advertised by the airport will obligate the Contractor who submitted the bid to use good faith efforts to meet the DBE goal published in the bid document. The Contactor will be required to submit the names, addresses, telephone numbers, EINs (Employer Identification Number), DBE Certification Numbers, the kind of work performed, and the amounts to be paid to all subcontractors participating as DBEs in the project at the time of contract execution. If no DBE participation is expected in the contract, the Contractor must subunit proof at the time of contract execution of good faith efforts to obtain DBE participation. The Fayetteville Municipal Airport-Drake Field will bring to the attention of the Department of Transportation any false, fraudulent, or dishonest conduct in connection with the program which is evident to airport staff. DOT can at their discretion take steps (e.g.. referral to the Department of Justice for criminal prosecution, referral to the DOT • 4 • Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided a 26. 109. We also will consider similar action under our own legal authorities, including responsibility determinations in future contacts. Overall Goals. (26.45) Amount of Boal. The City of Fayetteville's overall goal for FY2000 is the following: 5% of the Federal financial assistance we will expend in DOT-assisted contracts. Method The Fayetteville Municipal Airpon-Drake Field used a weighted average method (Attachment #5 Example 2) to calculate our base figure for our DBE goal. Base Percentage: 1 . The weighted factor was derived by calculating the percentage of the cost expected to be expended in each SIC code for the estimated project costs for the year. 2. The second factor used in the formula for calculating our base figure was derived as follows: the numerator is the number of DBEs located in our four county area (Benton, Crawford, Madison, and Washington Counties) that can perform the kinds of work needed which were identified from the Arkansas State Highway and Transportation Department's directory for DBE. The denominator was derived using the number of individuals listed by the Census Bureau 's County Business Pattern database on the Internet. • This calculation produced the relative-weighted availability of DBE participation of .50 percent. Adiusted Base Goal: The airport staff made inquires at the Chamber of Commerce and the Small Business Administration as to studies or records maintained on DBEs. No records are assembled to represent this group as a minority. A data search of the Census Bureau on the Internet revealed a minority population not including women in our four county area of approximately 3.07 percent in 1990. A review of our recent let contracts for 1997 through 1999 indicate that with advertising outside of out immediate area, the airport can expect a participation of DBE activities as subcontractors at a rate of at least 1 .74 percent ( 1997 accomplishment = 3. 16%, 1998 accomplishment= 0, 1999 accomplishment 2.06 % equals a 1 .74% yearly average)(Attachment #5). The average percentage of our base goal and the average of our last three years accomplishments would indicate an achievable overall goal of 1 . 12% ((.005 + .0174)12=1 . 12). After evaluating the above information, the City of FayettevWc/Fayetteville Municipal Airport's initial base rate goal has been adjusted to 1 . 12% to reflect as accurately as possible the DBE participation the airport staff considers obtainable. • 5 r r • Process The Fayetteville Municipal Airport/Drake Field will submit its overall goal to DOT on August I of each year. Before establishing the overall goal each year. the airport staff will review the Disadvantage Business Enterprise Directory for changes in the nurnber of available DBEs in our area. Staff will also review the contracts let for the previous year, contact other airports in our vicinity, and any other persons or groups who might have know'ledee concerning the availability of disadvantage and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and the airports effons to establish a level playing field for the participation of DBEs. Following this process of determining our new goal, the airport staff will publish a notice of the proposed overal! goal in a statewide newspaper, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at the airport office for 30 days following the date of the notice, and informing the public that the airport and DOT will accept comments on the goals for 45 days from the date of the notice. The notice will include addresses to which comments may be sent and addresses where the proposal may !�e reviewed. All comments wilt be reviewed by the airport staff, and if comments warrant, changes will be made to the proposed goals. The overall goal submission to DOT will include a summary of information and comments received during this public participation process and the airport's responses. The airport will begin using the overall goal on October 1 of each year, unless other instructions have been reccix ed from DOT. Breakout of Estimated Race-Neurral and Race-Conscious Participation • We estimate that, in meeting an overall goal of 1 . 12%. we will obtain 0% from race-neutral participation and 1 . 1 through race-conscious measures. Since the Fayetteville Municipal Airport has not been able to reach our overall goals with race-neutral measures, we will continue to use contract goals in meeting our overall DBE goals. All of our DOT-assisted contracts for the Airport include the requirement of good faith efforts to meet our goal to.- DBE orDBE participation. Because of the few DBEs in the area, we receive very little response to the bids advertised and let. We do require the engineers to include DBE language in both specifications and advertisements that they _ initiate. We also place ads in newspapers encouraging DBE participation in our projects. I believe that the DBE participation that we do receive usually is a result of our efforts, the engineers, and the contractors in recruiting DBEs. Contract Goals The Fayetteville Municipal Airport-Drake Field will use contract goals to meet any portion of the overall goal the airport does not project being able to meet using race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of our overall goal that is not projected to be met though the use of race-neutral means. The airport will establish contract goals only on those DOT-assisted contracts that have subcontracting possibilities. We need not establish a contract goal on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability of DBE's to perform the particular type of work). We will express our contract goals as a percentage of the Federal share of a DOT-assisted contract. • 6 t • Good Faith Efforts: (26.53) Information to be submitted: The City of Fayetteville treats bidder/offerors compliance with good faith efforts requirements as a matter of responsibility. Each solicitation for which a contract goal has been established will require the bidders/offerors to submit the following information at the time of contract execution: 1 . The names and addresses of DBE fitrtis that will participate in the contract; 2. A description of the work that each DBE will perform; 3. The dollar amount of the participation of each DBE firm's participation; 4. Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; S. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and 6. If the contract goal is not met, evidence of good faith efforts. of good faith Demonstration efforts The obligation of the bidder/offeror is to make good faith efforts. The biddedofferor can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. • The Airport's Financial Coordinator will be responsible for determining whether a bidder/offeror who has not mct the contract goal has documented sufficient good faith efforts to be regarded as responsible. The DEB Liaison Officer will ensure that all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before the City of Fayetteville/Faycneville Municipal Airport-Drake Field commits to the performance of the contract by the bidder/offeror. Administrative reconsideration Within 5 days of being informed by The City of Fayetteville that it is not responsible because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration. Bidder/offerors must make this request in writing to the following reconsideration officials: The Airport Board, 113 W. Mountain, Fayetteville AR 72701 , phone number 501- 718-7640 Ext. 5. The reconsideration officials will not have played any role in the original determination that the bidder/offeror did not document sufficient good faith efforts. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. TLC bidder/offeror will have the opportunity to meet in person with our reconsideration officials to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. We will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation. • Good Faith Efforts when a DBE is replaced on a contract We will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise faded tp complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. We ms ill require the prime contractor to notify the DBE Liaison Officer immediately of the DBE's inability or unwilltngne.s to perform and provide reasonable documentation. In this situation, we will require the prime contractor to obtain our prior approval of the substitute DBE and to provide copies of new or amended subcontracts, or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, our contracting office will issue an order stopping all or part of payrncn: until satisfactory action has been taken. Counting DBE Participation. (26.55) We will count DBE participation toward overall and contract goals as provided in 49 CFR 26.55. Certification. (26.61 - 26.91 ) The Fayetteville Municipal Airport will use the certification standards of Subpart D of part 26 and the cerriti:ation procedures of Subpart E of part 26 to determine the eligibility of Tums to participate as DBEs in DOT-assisted contracts. To be certified as a DBE a firm must meet all certification eligibility standards. We will make our certification decisions based on the facts as a whole. Process • Our certification application forth and documentation requirements are found in Attachment _ To this program. For information about the certification process or to apply for certification, funis should contact: Brenda Moss 4500 S. School Avenue, Suite F Fayetteville AR 72701 Phone 501 -718-7646 Or Arkansas State Highway And Transportation Department P.O. Box 2261 Little Rock AR 72203-2261 Phone 501-569-2259 The Arkansas Highway Department has certified all interested individuals who have inquired at the airport about DBE certification (see attached agreement with the State attachment #4). The airport will use the Arkansas Highway and Transportation Department's DBE directory to determine the eligibility of firms to participate as DBEs in DOT-assisted projects, and the Fayetteville Municipal Airport-Drake Field will continue to honor the certification completed by other entities as long as documentation can be provided. . In the event we propose to remove a DBE's certification, we will follow procedures consistent with 26.87. • 8 L • � t • Attachment #2 to this program sets forth these procedures in detail. Unified Certification Program The Fayetteville Municipal Airport-Drake Field will participate in a Unified Certification Program as one becomes available for the State of Arkansas. The Fayetteville Municipal Airport-Drake Field will utilize the Arkansas State Highway and Transportation Department in certifying individuals which we have recruited as candidates as DBEs. Certification Appeals Any firm or complainant about a certification matter should be sent to: Department of Transportation Office of Civil Rights Certification Appeals Branch 400 " St., SW, Room 2104 Washington, DC 20590 The airport will promptly implement any DOT certification appeal decisions affecting the eligibility of DBEs for DOT-assisted contracting (e.g., certify a firm if DOT has determined that our denial of its applicarion was erroneous). "Recertification" • The Arkansas Highway and Transportation Department will handle recertification of DBEs for the airport. The Arkansas Highway and Transportation Department's policy is to fully recertify DBEs every three years. "No Change" Affidavi and Notice of Change The Arkansas Highway and Transportation Department will handle "No Change" affidavits and Notice of Change for the Fayetteville Municipal Airport-Drake Field. They require an acknowledgment (a signed form that the DBE's status has not changed) annually. Personal Net Worth The Arkansas Highway and Transportation Department will handle personal net worth statements. Their statement is compatible with the U.S. Small Business Administration (SBA) form 413 (2-94). A copy of form 413 (2-94) is used as an attachment #3 to this document. Bidders List The Fayetteville Municipal Airport-Drake Field will create a bidders' list, consisting of information about all DBE and non-DBE firths that bid or quote on DOT-assisted contracts. The purpose of this requirement is to allow use of the bidders' list approach to calculating overall goals. The bidders' list will include the name, address, and DBE/non-DBE status, and age of the firm and the annual gross receipts. The bid packet will include a form for the necessary information required on all bidders, and the bidders will be required to return the form at the time of bid opening. • 9 i " r • Monitoring Payments to DBEs We will require prime contractors to ntaintai:: records and documents of payments to DBEs for three years following the performance of the contract. These records will be made available for inspection upon request by ane authorized representative of the City of Fayetteville or Department of Transportation. This reporting requireme-: also extends to any certified DBE subcontractor. We will keep a cumulative total of actual pa}:;ants to DBE firms for work committed to them at the time of contract award. The contractor will be responsible for submitting a record of any payments made to DBEs wher, they submit payment requests from the recipient. We will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of D6 = participation. Reporting to DOT We will report DBE participation to DOT by submitting annually DOT From 4630, as modified for by FAA recipients Confidentiality We will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with federal. state, and local law. The Arkansas State Freedom of Information .-\ :i A.C.A. Title 25- 19- 105 states that examination and copying of public records or files which, if disclosed, could give advantage to competitors and bidders shall not be deemed to be made open to the public under the provisions • of the State FOIA law. However, the company must request this protection in writing with proof that such information would put them at a disadvantage. Notwithstanding any contrary provision of state or local law, wr will not release personal financial information submitted in response to the personal net worth requirements to a third party (other than DOT) without the written consent of the submitter. All local laws are superseded by state and federal laws. APPROVED: U.S. DEPARTMENT OF TRANSPORTATION Federal Aviation Administration By: Date Attachments 1 . Attachment #2. Department of Transportation 49 CFR Parts 23 and 26 rule #26.87. 2. Attachment #3 U.S. Small Business Administrations (SBA) form 413 (2-94). 3. Attachment #4 AHTD Agreement • 4 Attachment #5 Sample Calculation for DBE base. 10 C Tuesday February 2, 1999 ee E a E a � E c � c� L = Part II r� Department of Transportation Office of the Secretary 49 CFR Parts 23 and 26 Participation by Disadvantaged Business Enterprises in Department of Transportation Programs; Final Rule E AMA • Federal Register / Vol. 64, No. 21 / Tuesday, February 2, 1999 / Rules and Regulations 5129 The Ceneral Counsel of the Department of § 26.15 How can recipients apply for administration's financial assistance Transportation has reviewed this document exemptions or waivers? program. and approved it as consistent with the (a) You can apply for an exemption (3) The Secretary has the authorityto language and intent of 49 CFR part 26. from any provision of this part. To approve your application. If the § 26.1111 What records do recipients keep apply, you must request the exemption Secretary grants your application, you and report? in writing from the Office of the may administer your DBE program as (a) (Reserved( Secretary of Transportation, FH WA, provided In your proposal, subject to (b) You must continue to provide data FTA. or FAA. The Secretary will grant the following conditions: about your DBE program to the the request only If it documents special (i) DBE eligibility is determined as Department as directed by DOT or exceptional circumstances, not likely provided in subparts D and E of this operating administrations. to be generally applicable. and not part. and DBE participation is counted (c) You must create and maintain a contemplated In connection with the as provided In § 26.49: bidders list. consisting of all firms rulemaking that established this part. (II) Your level of DBE participation bidding on prime contracts and bidding that make your compliance with a continues to be consistent with the or quoting subcontracts on DOT-assisted specific provision of this part objectives of this part; projects. For every firm, the following Impractical. You must agree to take any (Iii) There is a reasonable limitation information must be included: steps that the Department specifies to on the duration of your modified (1) Firm name: comply with the Intent of the provision program; and (2) Firm address: from which an exemption is granted. (iv) Any other conditions the (3) Firm's status as a DBE or non-DBE: The Secretary will Issue a written Secretary makes on the grant of the (4) The age of the firm; and response to all exemption requests. waiver. (5) The annual gross receipts of the (b) You can apply for a waiver of any (4) The Secretary may end a program firm. provision of Subpart B or C of this part waiver at any time and require you to § Sec0on 26.11 What assurances must Including. but not limited to. any comply with this pari s provisions. The recipients and contractors make? provisions regarding administrative Secretary may also extend the waiver, If requirements, overall goals. contract he or she determines that all (a) Each financial assistance goals or good faith efforts. Program requirements of paragraphs (b)(2) and agreement you sign with a DOT 3 of this section continue to be met. operating administration include t ora rima authwaiorizing i g Y r the operate of ( ) � g ( primary authorizin you too rote a DBE Any such extension shall be for no recipient) must include the following program that achieves the objectives of longer than period originally set for the assurance: this part by means that may differ from duration of the program. The recipient shall not discriminate on the one or more of the requirements of • basis of race. color. national origin, or sex in Subpart B or C of this part. To receive—�ubpart B—Administrative the award and performance of any DOT- a program waiver, you must follow Requirements for DBE Programs for assisted contract or In the administration of these procedures: Federally-Assisted Contracting Its DBE program or the requirements of 49 CFR part 26. The recipient shall take all (1) You must apply through the § 26.21 Who must have a DBE program? necessary and reasonable steps under 49 CFR concerned operating administration. (a) If you are in one of these categories Pan 26 to ensure nondiscrimination in the The application must Include a specific and let DOT-assisted contracts. you award and administration of DOT-assisted program proposal and address how you must have a DBE program meeting the contracts. The recipients DBE program, as will meet the criteria of paragraph (b)(2) requirements of this part: required by 49 CFR part 26 and as approved of this section. Before submitting your (I) All FHWA recipients receiving by DOT. Is incorponned by reference in this application, you must have had public funds authorized b a statute to which agreement. Implementation of this program is Y a legal obligation and failure to carry out its Participation in developing your this part applies; terms shall be treated as a violation of this proposal. Including consultation with (2) FTA recipients that receive agreement. Upon notification to the recipient the DBE community and at least one $250.000 or more in FTA planning, 1 of its failure to carry out Its approved public hearing. Your application must capital, and/or operating assistance in a program. the Department may Impose include a summary of the public Federal fiscal year; sanctions as provided for under part 26 and participation process and the (3) FAA recipients that receive a grant may. In appropriate cases, refer the matter for information gathered through It. of $250,000 or more for airport planning enforcement under 18 U.S.C. 1001 and/or the (2) Your application must show that— or development. Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seg.). (i) '[here Is a reasonable basis to (b)(1) You must submit DBE conclude that you could achieve a level program conforming to this part by (b) Each contract you sign with a of DBE participation consistent with the August 31. 1999 to the concerned contractor (and each subcontract the objectives of this part using different or operating administration (OA). Once the prime contractor signs with a Innovative means other than those that OA has approved your program, the subcontractor) must include the are provided In subpart B or C of this approval counts for all of your DOT- following assurance: part; assisted programs (except that goals are The contractor, sub recipient or (it) Conditions in your jurisdiction are reviewed and approved by the subcontractor shall not discriminate on the appropriate for Implementing the particular operating administration that basis of race. color. national origin. or sex In proposal; provides funding for your DOT-assisted the performance of this contract. The (ill) Your proposal would prevent contracts). contractor shall carry out applicable discrimination against any individual or (2) You do not have to submit regular requirements of 49 CFR pan 26 In the award group In access to contracting updates of your DBE programs, as long and administration of DOT-assisted opportunities or other benefits of the as you remain in compliance. However, • contracts. Failure by the contractor to carry and you must submit si ni ficant changes in our these requirements is a material breach program; Y 6 g of this contract, which may result in the Ove) Your proposal is consistent with the program for approval. termination or this contract or such other applicable law and program (c) You are not eligible to receive DOT remedy as the recipient deems appropriate. requirements of the concerned operating financial assistance unless DOT has 5130 Federal Register / Vol. 64, No. 21 /Tuesday, February 2, 1999 / Rules and Regulations approved your DBE program and you additional mechanisms to ensure § 26.35 What role do business are in compliance with It and this part. prompt payment: development and mentor-protege programs You must continue to carry out your (1) A contract clause that requires have In the DBE program? program until all funds from DOT prime contractors to include in their (a) You may or. If an operating financial assistance have been subcontracts language providing that administration directs you to. you must expended. prime contractors and subcontractors establish a DBE business development § 26.23 What Is the requirement for a will use appropriate alternative dispute program (BDP) to assist firms in gaining policy m s resolution mechanisms resolve You mustt Issue m the marketplace outside the DBE the ability to compete successfully in Issue a signed and dated Payment disputes. You may specify the program. You may require a DBE firm. policy statement that expresses your nature of such mechanisms. as a condition of receiving assistance commitment to your DBE program, (2) A contract clause providing that through the BDP, to agree to terminate states Its objectives, and outlines the prime contractor will not be its participation in the DBE program responsibilities for its Implementation. reimbursed for work performed by after a certain time has passed or certain You must circulate the statement subcontractors unless and until the objectives have been reached. See throughout your organization and to the prime contractor ensures that the Appendix C of this part for guidance on DBE and non-DBE business subcontractors are promptly paid for the administering BDP programs. communities that perform work on your work they have performed. (b) As part of a BDP or separately, you DOT-assisted contracts. (3) Other mechanisms, consistent may establish a "mentor-protege" §26.25 What Is the requirement fora with this part and applicable state and program. In which another DBE or non- liaison officer? local law, to ensure that DBEs and other DBE firm is the principal source of You must have a DBE liaison officer, contractors are fully and promptly paid. business development assistance to a who shall have direct. independent §26.31 What requirements pertain to the DBE firm. access to your Chief Executive Officer DBE directory? (1) Only firms you have certified as concerning DBE program matters. The DBEs before they are proposed for liaison officer shall be responsible for You must maintain and make participation in a mentor-protege Implementing all aspects of your DBE available to interested persons a program are eligible to participate in the program. You must also have adequate directory Identifying all firms eligible to mentor-protege program. staff to administer the program in participate as DBEs In your program. In (2) During the course of the mentor- compliance with this part. the listing for each firm, you must protege relationship. you must: include its address, phone number, and (f) Not award DBE credit to a non-DBE 26.27 What efforts must recipients make the types of work the firm has been mentor firm for using its own protege • conceming DBE financial Institutions? certified to perform as a DBE. You must firm for more than one half of its goal You must thoroughly investigate the revise your directory at least annually on any contract let by the recipient: and full extent of services offered by and make updated information available (it) Not award DBE credit to a non- financial institutions owned and to contractors and the public on request. DBE mentor firm for using Its own controlled by socially and economically §26.33 What slaps must a recipient take to protege firm for more than every other disadvantaged individuals in your address WhatCeps must of DBEs t t contract performed by the protege firm. community and make reasonable efforts certain types overconcentration work? (3) For purposes of making to use these Institutions. You must also determinations of business size under encourage prime contractors to use such (a) If you determine that DBE firms this part. you must not treat protege Institutions. are so overconcentrated in a certain type firms as affiliates of mentor firms, when of work as to unduly burden the both firms are participating under an §2629 What prompt payment opportunity of non-DBE firms to approved mentor-protege program. See mechanisms must recipients have? participate in this type of work, you Appendix D of this part for guidance (a) You must establish, as part of your must devise appropriate measures to concerning the operation of mentor. DBE program, a contract clause to address this overconcentration. protege programs. require prime contractors to payc subcontractors for satisfactory (b) These measures may include the ( ) Your BDPs and mentor-protege use of incentives, technical assistance. programs must be approved by the performance of their contracts no later business development programs. concerned operating administration than a specific number of from mentor-protege programs, and other before you implement them. Once receipt of each paymentt yyou make to the appropriate measures designed to assist approved, they become part of your DBE prime Contractor. This clause must also DBEs in performing work outside of the program. require the prompt return of retainage specific field In which you have payments from the prime contractor to §26.37 What are a recipient's the subcontractor within a specific determined that non-DBEs are unduly responsibilities for monitoring the number of days after the subcontractor's burdened. You may also consider performance of other program participants? varying your use of contract goals. to the work is satisfactorily completed. (a) You must implement appropriate (1) This clause may provide for extent consistent with § 26.5 1 . to unsure mechanisms to ensure compliance with appropriate penalties for failure to that non-DBEs are not unfairly the part's requirements by all program comply. the terms and conditions of prevented from competing for participants (e.g.. applying legal and whichyou set. subcontracts. contract remedies available under (2) This clause may also provide that (c) You must obtain the approval of Federal, state and local law). You must any delay or postponement of payment the concerned DOT operating set forth these mechanisms In your DBE • among the parties may take place only administration for your determination of program. for good cause. with your prior written overconcentration and the measures you (b Your DBE program must also approval. devise to address it. Once approved. the Include a monitoring and enforcement (b) You may also establish, as part of measures become part of your DBE mechanism to verify that the work your DBE program, any of the following program. committed to DBEs at contract award is A, f Federal Register / Vol. 64. No. 21 / Tuesday. February 2. 1999 / Rules and Regulations 5131 • actually performed by the DBEs. This (c) Step 1. You must begin your goal jurisdiction to determine what mechanism must provide for a running setting process by determining a base adjustment, if any. Is needed to the base tally of actual DBE attainments (e.g.. figure for the relative availability of figure in order to arrive at your overall payments actually made to DBE firms) DBEs. The following are examples of goal. and Include a provision ensuring that approaches that you may take toward (1) There are many types of evidence DBE participation Is credited toward determining a base figure. These that must be considered when adjusting overall or contract goals only when examples are provided as a starting the base figure. These include: payments are actually made to DBE point for your goal setting process. Any (i) The current capacity of DBEs to firms. percentage figure derived from one of perform work in your DOT-assisted these examples should be considered a contracting program. as measured by the Subpart Coals, Good Faith Efforts, basis from which you begin when volume of work DBEs have performed In and Counting examining all evidence available in your recent years; 126AI What Is the rola of the statutory to jurisdiction. These examples are not (ii) Evidence from disparity studies percent goal In this program? Intended as an exhaustive list. Other conducted anywhere within your methods or combinations of methods tourisdiction. to the extent It is not (a) The statutes authorizing this determine a base figure may be used, already accounted for in your base program provide that, except to the subject to approval by the concerned figure; and extent the Secretary determines operating administration. g otherwise. not less than 10 percent of oth r your base figure is the goal of Pe (1) Use DBE Directories and Census another recipient. you must adjust It for the authorized funds are to be expended Bureau Data. Determine the number of differences In oulocal market and with DBEs. ready, willing and able DBEs in your y your contracting program. (b) This aspirational percent goal is na market from your DBE directory. Using (2) You may also consider available whicthegoal at the national level. the Census Bureau's County Business evidence from related fields that affect whievalch the Department uses as a tool In Pattern (CBP) data base, determine the the opportunities for DBEs to form, grow opportunities and monitoring DBEs' number of all ready, willing and able and compete. These include. but are not opportunities to participate in DOT- businesses available in your market that limited to: assisted contracts. perform work in the same SIC codes. (c) The national 10 percent goal does (Information about the CBP data base (i) Statistical disparities in the ability not authorize or require recipients to set may be obtained from the Census of DBEs to get the financing, bonding overall or contract goals at the 10 Bureau at their web site, and Insurance required to participate in percent level. or any other particular www.census.gov/epcd/cbp/view/ your program; level. or to take any special cbpview.html.) Divide the number of (11) Data on employment, self- administrative steps if their goals are DBEs by the number of all businesses to• employment, education. training and above or below 10 percent. derive a base figure for the relative union apprenticeship programs, to the availability of DBEs in your market. extent you can relate it to the §26.tD Can recipients use sat-asidesor (2) Use a bidders list. Determine the opportunities for DBEs to perform in quotas as part of this program? number of DBEs that have bid or quoted Your program. (a) You are not permitted to use on your DOT-assisted prime contracts or (3) If you attempt to make an quotas for DBEs on DOT-assisted subcontracts in the previous year. adjustment to your base figure to contracts subject to this part. Determine the number of all businesses account for the continuing effects of (b) You may not set-aside contracts for that have bid or quoted on prime or past discrimination (often called the DBEs on DOT-assisted contracts subject subcontracts in the same time period. "but for" factor) or the effects of an to this part, except that. in limited and Divide the number of DBE bidders and ongoing DBE program, the adjustment extreme circumstances. you may use quoters by the number for all businesses must be based on demonstrable set-asides when no other method could to derive a base figure for the relative evidence that is logically and directly be reasonably expected to redress availability of DBEs in your market. related to the effect for which the egregious Instances of discrimination. (3) Use data from a disparity study. adjustment Is sought. § 26.45 How do redplents set overall Use a percentage figure derived from (e) Once you have determined a goals? data in a valid, applicable disparity percentage figure in accordance with stud paragraphs (c) and (d) of this section. (a) You must set an overall goal for (4rbse the goal of another DOT you should express your overall goal as DBE participation in your DOT-assisted recipient. If another DOT recipient in follows: COoe• the same. or substantially similar, (1) If you are an FHWA recipient. as (b) Your overall goal must be based on market has set an overall goal In a percentage or all Federal-aid highway demonstrable evidence of the compliance with this rule, you may use funds you will expend in FHWA- availabilily of ready, willing and able that goal as a base figure for your goal. assisted contracts in the forthcoming DBEs relative to all businesses ready, (5) Alternative methods. Subject to the fiscal year: willing and able to participate on your approval of the DOT operating (2) If you are an FTA or FAA DOT-assisted contracts (hereafter.'the administration, you may use other recipient as a percentage of all FTA or "relative availability of DBEs"). The methods to determine a base figure for FAA funds (exclusive of FTA funds to goal must reflect your determination of your overall goal. Any methodology you be used for the purchase of transit the level of DBE participation you choose must be based on demonstrable vehicles) that you will expend in FTA would expect absent the effects of evidence of local market conditions and or FAA-assisted contracts in the discrimination. You cannot simply rely be designed to ultimately attain a goal forthcoming fiscal year. In appropriate on either the 10 percent national goal, that is rationally related to the relative cases, the FTA or FAA Administrator • your previous overall goal or past DBE availability of DBEs in your market. may permit you to express your overall participation rates in your program (d) Step 2. Once you have calculated goal as a percentage of funds for a without reference to the relative a base figure, you must examine all of particular grant or project or group of availability of DBEs in your market. the evidence available in your grants and/or projects.