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HomeMy WebLinkAbout8-87 RESOLUTION• RESOLUTION NO. 8-87 A RESOLUTION AMENDING THE OVERALL GOAL OF MINORITY-OWNED AND WOMEN -OWNED BUSINESSES IN THE MINORITY BUSINESS ENTERPRISE PROGRAM FOR THE FAYETTEVILLE MUNICIPAL AIRPORT. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: That the Minority Business Enterprise Program for the Fayetteville Municipal Airport is hereby amended by amending the percentage of minority- owned businesses to .25% and by amending the percentage of women -owned businesses to 7.75% for an overall goal of 8%. PASSED AND APPROVED this 3rd day of APPROVED By: February , 1987. L MINORITY BUSINESS ENTERPRISE PROGRAM FAYETTEVILLE MUNICIPAL AIRPORT FAYETTEVILLE, ARKANSAS XVII l,K V r luvitD INTRODUCTION This Minority Business Enterprise Program, has been developed by the City of Fayetteville, Fayetteville, Arkansas, in accordance with 49 CFR, Part 23; participation by Minority Business Enterprise in Department of Transportation Programs. STATEMENT In order to satisfy the requirements set forth in the DOT MBE Regulations (49 CFR; Part 23), the following Minority Business Enterprise Program has been prepared by the City of Fayetteville, -Fayetteville, Arkansas, and adopted and approved by the City of Fayetteville Board of Directors for submission to the United States Department of Transportation. The City of Fayetteville Board of Directors hereby approves and adopts the following program elements and recording procedures as the Minority Business Enterprise Program for the Fayetteville Municipal Airport, Fayetteville, Arkansas, to wit:. MBE PROGRAM ELEMENTS 49 CFR,Part 23 sets forth certain required MBE program elements in § 23.45 (e) -(i), to be applicable to activities carried out by the Fayetteville Municipal Airport. The City of Fayetteville agrees to include the following clauses in each procurement initiated directly by the City of Fayetteville, and to adopt the following program ele- ments: Required MBE contract clauses: 1. Policy. It is the policy of the Department of Transportation that minority business enterprises as defined in 49 CFR, Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement. Consequently the MBE requirements of 49 CFR, Part 23 apply to this agreement. 2. MBE Obligation. The recipient or its contractor agrees to ensure that minority business enterprises as defined in 49 CFR, Part 23 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR, Part 23 to ensure that minority business enter- prises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of DOT -assisted contracts. 3. MBE directory 0 23.45 (e). The City of Fayetteville will develop a loose-leaf directory of minority businesses to identify MBEs with capabilities relevant to constructionof airport improvements. The information contained in the MBE source list or directory shall be made available to (sub - recipients), contractors, bidders, and proposers to facilitate their efforts to meet the specific MBE program requirements where opportunities for private sector con- tracting or purchasing exist. C. Procedures to ascertain the eligibility of MBEs and joint ventures involving MBEs (23.45 (f): 1. The City of Fayetteville will ensure that any benefits resulting from the goal -oriented MBE program accrue only to firms owned and controlled by minorities or woolen within the meaning of 49 CFR, Part 23, § 23.5. 2. The City of Fayetteville to certify MBEs in accordance with the requirements of 49 CFR, Part 23, Schedule(s) A & B upon receipt of notification by that the Office of Management and Budget (OMB) has approved the format under the provisions of OMB Circular A-40. 3. The City of Fayetteville will ensure that the certification systems are at least as effective as procedures prescribed in 49 CFR, Part 23 23.51. The City of Fayetteville will when possible replace a MBE subcontractor that is unable to perform sucessfully with another MBE. The City of Fayetteville (and its subrecipients) will approve all substitutions"of MBE subcontractors before bid opening and during contract performance, to ensure the substitution of bona fide MBEs. D. Percentage goals for the dollar value of work to be awarded to MBEs (§ 23.45 (g): 1. Each fiscal year, the Fayetteville Municipal Airport will review its various Programs so as to identify those proposed contracts having potential for MBE participation and set an overall goal for MBE participation within the generated activities to be carried out and goods to be purchased. The overall MBE goal shall include a separate goal for firms owned and controlled by minorities, and a goal for firms owned and controlled by women. The Fayetteville Municipal Airports over- all goal for minority-owned firms for FY 1982 is .25%, and the goal for women -owned businesses is .25%. These percentages are based upon the total dollar value of contracts with, and goods purchased from, the private sector. 2, Contract goals will be negotiated where MBE subcontracting opportunities have been identified. The goal(s) will be expressed as a percent of the total dollar amount of the contract. The City of Fayetteville will meet or exceed the goal(s) or be prepared to demonstrate that best efforts were expended so as to accomplish the MBE obligation. 3. The overall goal (and/or subsequent contract goals) will be based on a review of the availability of MBEs located within at least the usual market area for contractors and vendors. The overall goal will reflect the results that reasonably could be expected as a consequence of aggressive efforts to implement the MBE program. 4. The OMB Circular A-95 Clearinghouse review shall suffice as the goal -related 45 -day comment period required by § 23.45 (g). .64 ----Procedures to require that participating MBEs are identified by name by competitors for contracts. (8 23.45 (h). The City of Fayetteville will require prime contractors to submit the names of any MBE subcontractor(s), their respective scope of work, and the dollar value of the proposed MBE sub- contract(s) within a reasonable timewithin the circumstances of each solicitation after bid opening(s) and prior to the actual contract award. F. Selection criteria to ensure that prime contracts are awarded to competitors that meet MBE goals (§ 23.45 (i). 1. The City of Fayetteville's contracting activities incorporate procedures whereby bids will be reviewed to determine whether the lowest bidder meeting the MBE contract goal is within the zone of competition as to price for the contract. 2. If the City of Fayetteville determines that this competitor has offered a reasonable price, the firm shall be awarded the contract. If the bidder's price is not reasonable, the com- petitor with the next highest percentage of MBE participation shall be considered and so on, in order of their percentage of MBE participation until one with a reasonable price is selected. In the event no bidder with MBE participation has offered a reasonable price, then the City of Fayetteville may elect to award the contract to any bidder or offeror that demonstrated a resonable effort to meet the MBE contract goal. 3. The City of Fayetteville will consider steps, including.but not limited to the following, as to determining whether reason- able efforts were made to meet MBE contract goals: _,._..._. a. Attendance at a pre-bid meeting, if any, scheduled by the recipient to inform MBEs of subcontracting opportunities under solicitation, b. Advertisement in general circulation media, trade associ- ation publications, and minority-focus media for at least 20 days before bids or proposals are due. If 20 days are' not available, publication for a shorter reasonable time is acceptable; c. Written notification to MBEs that their interest in the contract is solicited; - d. Efforts made to select portions of the work proposed to be performed by MBEs in order to increase the likelihood of achievingthe stated goal; e. Efforts to negotiate with MBEs for specific bids for subcontracts including at a minimum: i. The names, addresses, and telephone numbers of MBEs that were contacted; ii. A description of the information provided to MBEs regarding the plans and specifications for portions of the work to be performed; and iii. A statement of why additional agreements with MBEs were not reached, - - . • f. Concerning each MBE the competitor contacted but rejected 'as unqualified, the reasons for the competitor's conclusion;.and g. Effort made to assist the MBEs contacted that needed assistancein obtaining bonding or insurance required by the contractor or recipient. 4. Bidders, proposers, offerors, that fail to meet (MBE contract goals and/or) the foregoing "reasonable efforts" test, will not be certified as eligible to be awarded the federally - assisted. contract. 5. The City of Fayetteville will ensure that all obligations under .MBE contracts are met, by reviewing the contractor's MBE in- volvement efforts during the life of the contract. (Any interruption of'scheduled progress payments to MBEs shall be. brought to the attention of the City of Fayetteville.) REPORTING PROCEDURES. A. The City of Fayetteville will maintain records on specific contract awards to MBEs, in a format and frequency (quarterly) to be prescribed by DOT. B. The minimum MBE data elements to be maintained are as follows: 1. The number of contracts awarded to MBEs; 2. A description of the contract(s) awarded to MBEs; 3. The dollar value of MBE contract awards; 4. The percentage of the dollar value of all contracts awarded to the private sector that were awarded to MBEs; and 5. An appraisal of the extent to which the MBE awards met or exceeded the SHSA's MBE goal.. THIS program is offered in consideration of and for 'the purpose of obtaining any and all Federal grants, loans, contracts, property, discounts or other Federal financial assistance extended after the date hereof to the Fayetteville Municipal Airport by the Department of Transportation and is binding on it, other recipients, subgrantees, contractors, subcontractors, transferees, successors in interest and other participants. Approved and adopted by the City of Fayetteville Board of Directors, Fayetteville, Arkansas on 4.1 1982. 6d,sq)g)k,i/ MAYOR CITY CLERK ATTACHMENT 3 MICROFILMED SUMMARY OF DISADVANTAGED BUSINESS (DBE) PROVISIONS Subpart D, 49 CFR Part 23 A. Effective Date of Amendment. The amendment placing FAA under the Subpart D requirements became effective when published in the Federal Register on May 23, 198S (53 F.R. 18285). B. Coverage. • 1. Subpart D is concerned only with projects funded by FAA under the Airport Improvement Program (AIP); it does not affect leasing. 2. Sponsors who are required to comply with Subpart D are those who receive an AIP grant after January 1988, and who fall into one of these categories: a. A recipient of planning funds in excess of $75,000.. b. A sponsor of a general aviation airport receiving funds in excess of $250,000.. c. A sponsor of a non -hub airport receiving funds in excess of $400,000. d. A sponsor of a hub airport receiving funds in excess of $500 000. C. Goals. 1. Single Goal for DBE's. Subpart D requires a single overall goal for disadvantaged businesses (DBE's), rather than separate goals for minority and women -owned firms (MBE/VBE). A single DBE goal is also used in bid solicitations which require a contract goal. (Attachment 1 contains a sample clause that may be used in these solicitations.) Since women, like Blacks, Hispanics, and certain other grc::ps, are presumed to be socially and economically disadvantaged, the two -goal system is not used under Subpart D. Recipients and contractors may meet the DBE goal by using any combination of disadvantaged firms. 2 2. Reporting DBE Awards. Although Subpart D utilizes a single goal, sponsors should continue to keep records on the awards made to the several disadvantaged groups. This information will be reported to the FAA on DOT Form 4630 or another form. • 3. Based on Federal Share Only. The overall DBE goal should be based only on the Federal share of AIP contract awards. Previously, MBE/MBE goals were based on the total contract value, including the sponsor's matching funds. 4. Goal Period. Overall DBE goals may reflect a one-year period or a particular grant, project, or group of grants and/or projects. The overall goal must be updated annually. 5. Overall Goal of 10 Percent or More. Sponsors who request approval for an overall goal of 10 percent or more do so under the procedures in Section 23.45(g). which are the sane procedures used in establishing MBE/WBE goals. 6. Overall Goal of Less than 10 Percent. Sponsors who request approval for an overall goal of less than 10 percent rust take the following steps i. addition to those in Sectior. 23.45(g): a. Sub -_t with the request a justification addressing the elements listed in 7. below; b. Ensure that the request is signed or concurred the elected official, head of the board, or other official responsible for the operation of the airport sponsor; c. Consult with minority and general contractors' associations, community organizations, and other officials or organizations that could be expected to have information concerning the availability of DBE's and the adequacy of the sponsor's efforts to increase DBE participation. The FAA may direct the sponsor to consult with a relevant person or organization if it appears that the sponsor has failed to do so. in by • 7 Content of Justification. A justification for an overall goal of less than 10 percent must include information on: a. The sponsor's efforts to locate DBE's; b. The sponsor's efforts to make DBE's aware of contracting opportunities; DBE's; c. The sponsor's initiatives to encourage and develop • 3 d. Legal or other barriers impeding the participation of DBE's at a level of at least 10 percent in the sponsor's FAA - assisted contracts, and the sponsor's efforts to overcome or mitigate the effects of these barriers; e. The availability of DBE's to work on the sponsor's FAA -assisted contracts; f. The size and other characteristics of the minority population of the sponsor's jurisdiction, and the relevance of these factors to the availability or potential availability of the DBE's to work on the sponsor's FAA -assisted contracts; and g. A surrary of the views and information concerning the availability of DBE's and the adequacy of the sponsor's efforts to increase DBE participation, as provided by persons and organizations consulted by the sponsor (6.c.). Additional guidance on the contents of a justification is found in Appendix D of the regulations. 8. Assignment of DBE Goal. If the FAA does not approve a sponsor's proposed overall goal of less than 10 percent, the FAA may establish an adjusted goal after consulting with the sponsor. D. DBE Definition. 1. A DBE is definedasa small business concern: a. Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and • b. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. 2. Small Business Concern. a. Current Standards. Regulations of the Small Business Administration (SBA), 13 CFR 121, contain guidelines and standards for determining eligibility as a "small business concern." The current standards are set forth in a Table 2 of the Regulations entitled "Final Rule Size Standards by SIC Industry" (Attachment 2). • b. Average Gross Receipts for 3 -year Period. The dollar figures listed in the SBA Regulations refer to the average annual receipts earned by the firm, including its affiliates, for the previous 3 -year period. For example, the standard for electrical contractors is $7 million, meaning that the firm is small if its average gross receipts in the three preceding years is no more than $7 million. c. Size Determinations of AIP Contractors. • 4 As part of the certification process, sponsors should determine whether contractors who will perform on AIP pro3ects qualify as "small business concerns." (1) Contracts of $10,000 or Less. For Al? contracts of $10,000 or less, the firr qualifies as small if it has no more than 500 employees. 12) Contracts over $10,000. For contracts over $10,000, the firm qualifies as small if it meets the size standards in SBA's Regulations 13 CFR Part 121, except that a ceiling of $14 million (average gross receipts in preceding 3 -year period) has been established by the grant legislation. If the SBA's standard for a particular type of contractor, e.g., $7 million for electrical work, is lower than 514 million, the lower figure would govern. If SBA's standard is higher, such as 517 million established for general contractors, the $14 million threshold takes precedence. The Major Groups in the SBA Regulations that may be relevant to AIP contracting include 15, 16, 17, and 87. (Note: The size standards listed in Appendix B of Subpart D were superseded by those shown in Attachment 2.) 5 Socially and Economically Disadvantaged Individuals. a. Any person who has a current certification from the SBA under Section B(a) of the Small Business Act is considered to be socially and economically disadvantaged for purposesof Subpart D. b. Recipients make a "rebuttable presumption" that individuals in the groups listed below who are citizens of the United States (or lawfully admitted permanent residents) are socially and economically disadvantaged. The presumption is a rebuttable one since other parties may challenge whether any particular person in oneof these groups is actually disadvantaged. The groups are: (1) Women; (2) Black Americans, which includes persons having origins in any of the Black racial groups of Africa; • (3) Hispanic Americans, which includes persons of Mexica-, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (4) Native Americans, which includes persons who are America- Indians, Eskimos, Aleuts, or Native Hawaiians; (5) Asian -Pacific Americans, which includes persons whose crigins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Tem _=ries of the Pacific, and the Northern Marianas; and (6) Asian -Indian Americans, which includes persons whose origins are from India„ Pakistan. Bangladesh, and Sri Lanka. (Note: Sri Lanka was recently added as a "presumptive group" by the SBA and has not yet been incorporated into the Subpart D Regulations.) c. Persons who are not members of any of the "preszrptive groups" listed in b. may nevertheless be found to be socially and economically disadvantaged by the sponsor on a case- by-case basis. For example, a disabled Vietnam veteran, an Appalachian white male, or any other person may claim to be disadvantaged due to individual circumstances. If one of these individuals owns a business and applies for eligibility as a DBE, the sponsor must determine, as part of the certification, whether that person qualifies as socially and economically disadvantaged under the guidelines in Appendix C. It is emphasized that these persons would have to make an individual showing of disadvantage rather than on the basis of group membership. • E. Challenge Procedures. Any third -party may challenge whether the owner of a firm certified by the sponsor or seeking certification, who is presumed to be socially and economically disadvantaged, actually is disadvantaged. Sponsors may also make such a challenge. However, the disadvantaged status of an individual who has • current certification under Section 8(a) of the Small Business Act is not subject to challenge. 1. Inquiry. When a written challenge is filed by a third -party, the sponsor must conduct an inquiry and provide appropriate notifications to the parties involved. The inquiry may be informal; strict rules of evidence are not required. Section 23.69 of the regulations contains guidance on the procedures to be followed, while Appendix C is used as guidelines for making determinations of social and economic disadvantage. 2. Eligibility Status. While the challenge is in social and economic disadvantage if certified, nay continue to be F. Directory. progress, the presumption of remains in effect, and the firm, considered eligible. Sponsors subject to Subpart D must compile and update their directories annually. The directory should include the addresses of the DBE firms. G. Steps to Verify Eligibility. The regulations establish uniform standards for certifying the eligibility of DBE firms. As part of the certification process, sponsors are required to take at least the following steps in determining whether a firm is eligible: 1. Perform an on-site visit to the offices of the firm and to any job sites on which the firm is working at the time of the eligibility investigation; 2. Obtain the resumes or work histories of the principal owners of the firm and personally interview these individuals; 3. Analyze the ownership of stock in the firm, if it is a corporation; 4. Analyze the bonding and financial capacity of the firm; 5. Deterrine the work history of the firm, including contracts it has received and work it has cozpleted; • • • Y - 6. Obtain or compile a list of equipment owned or available to the firm and the licenses of the firm and its key personnel to perform the work it seeks to do as part of the DBE program; and 7. Obtain a statement from the firm of the type of work it prefers to perform as part of the DBE program. H. Contract Award Mechanism. Subpart D utilizes the same contract award mechanism as the other provisions of the regulations. That is, sponsors may award FAA -assisted contracts to bidders who meet the goals or who demonstrate that they made good faith efforts in attempting to do so. • I. Compliance. 1. Failure to Have Approved DBE Program. A sponsor is in noncompliance with Subpart D if it fails to have an approved DBE program, including an approved overall goal. 2. Failure to Meet Goal. Failure to reet an overall goal, by itself, does not constitute noncor:pliance with Subpart D. If the overall goal is not achieved, the sponsor will have an opportunity to explain why the goal could not be met and why failure to meet it was beyond the sponsor's control. 3. Remedial Action. If the explanation for not meeting the overall goal is not acceptable or not made, the FAA may direct the sponsor to take appropriate remedial action. Remedial action =ay include additional outreach and assisting DBE's for the purpose of improving DBE participation in future contracting activities. The sponsor may have to devote additional resources in order to take these steps. Failure to take such remedial action would put the sponsor in a noncompliance status.