Public Works Department 200 Lincoln Avenue Salinas, CA 93901

Transcription

1 CITY OF SALINAS Public Works Department 200 Lincoln Avenue Salinas, CA Disadvantaged Business Enterprise (DBE) Program Updated January 2013 Submitted to the Federal Aviation Administration in fulfillment of: 49 Code of Federal Regulations Part 26

2 TITLE TABLE OF CONTENTS PAGE NUMBER CITY OF SALINAS... 1 OBJECTIVES/POLICY STATEMENT... 5 SUBPART A GENERAL REQUIREMENTS... 6 A. OBJECTIVES ( 26.1)... 6 B. APPLICABILITY ( 26.3)... 6 C. DEFINITIONS ( 26.5)... 6 D. NON-DISCRIMINATION REQUIREMENTS ( 26.7)... 6 E. RECORD KEEPING REQUIREMENTS ( 26.11) Reporting to DOT ( 26.11(b)) Bidders List ( 26.11(c))... 6 F. FEDERAL FINANCIAL ASSISTANCE AGREEMENT ( 26.13) Assurance ( 26.13(a)) Contract Assurance ( 26.13(b))... 7 SUBPART B - ADMINISTRATIVE REQUIREMENTS... 8 A. DBE PROGRAM UPDATES ( 26.21)... 8 B. POLICY STATEMENT ( 26.23)... 8 C. DBE LIAISON OFFICER (DBELO) ( 26.25)... 8 D. DBE FINANCIAL INSTITUTIONS ( 26.27)... 9 E. PROMPT PAYMENT MECHANISMS ( 26.29)... 9 F. DIRECTORY ( 26.31) G. OVER-CONCENTRATION ( 26.33) H. BUSINESS DEVELOPMENT PROGRAMS ( 26.35) I. MONITORING AND ENFORCEMENT MECHANISMS ( 26.37) J. SMALL BUSINESS ELEMENT ( 26.39) SUBPART C GOALS, GOOD FAITH EFFORTS, AND COUNTING A. SET-ASIDES OR QUOTAS ( 26.43) B. OVERALL GOALS ( 26.45) C. FAILURE TO MEET OVERALL GOALS ( 26.47) D. BREAKOUT OF ESTIMATED RACE-NEUTRAL & RACE-CONSCIOUS PARTICIPATION ( 26.51(ac)) E. CONTRACT GOALS ( 26.51(d-g))... 14

3 F. GOOD FAITH EFFORTS PROCEDURES ( 26.53) Demonstration Of Good Faith Efforts ( s 26.53(a) & (c)) Information To Be Submitted ( 26.53(b)) Administrative Reconsideration ( 26.53(d)) Good Faith Efforts When A DBE Is Replaced On A Contract ( 26.53(f)) G. COUNTING DBE PARTICIPATION ( 26.55) SUBPART D CERTIFICATION STANDARDS A. CERTIFICATION PROCESS ( thru 26.73) SUBPART E CERTIFICATION PROCEDURES A. UNIFIED CERTIFICATION PROGRAMS ( 26.81) B. PROCEDURES FOR CERTIFICATION DECISIONS ( 26.83) Re-Certifications ( 26.83(a) & (c)) No Change Affidavits and Notices of Change ( 26.83(j)) C. DENIALS OF INITIAL REQUESTS FOR CERTIFICATION ( 26.86) D. REMOVAL OF A DBE S ELIGIBILITY ( 26.87) E. CERTIFICATION APPEALS ( 26.89) SUBPART F COMPLIANCE AND ENFORCEMENT A. INFORMATION, CONFIDENTIALITY, COOPERATION ( ) Monitoring Payments to DBEs APPENDIX A TO PART 26-GUIDANCE CONCERNING GOOD FAITH EFFORTS ATTACHMENT 1 - ORGANIZATIONAL CHART ATTACHMENT 2 BIDDERS LIST COLLECTION FORM ATTACHMENT 3 MONITORING AND ENFORCEMENT MECHANISMS ATTACHMENT 4 OVERALL GOAL CALCULATION ( 36.45) A. AMOUNT OF GOAL B. METHODOLOGY USED TO CALCULATE OVERALL GOAL Step 1. Establishing a Base Figure: ( 26.45(c) Step 2 Adjusting the Base Figure: 26.45(d) Step 3 Breakout of Estimated Race-Neutral & Race Conscious Participation Public Participation (both consultation and publish notice) ATTACHMENT 4(a d) GOAL CALCULATIONS ATTACHMENT 5 FORMS FOR DEMONSTRATION OF GOOD FAITH EFFORTS FORM 1 - LOCAL AGENCY BIDDER - DBE - INFORMATION SHEET... 34

4 FORM 2 -DBE INFORMATION GOOD FAITH EFFORTS ATTACHMENT 6 - REGULATIONS: 49 CFR PART

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6 A. OBJECTIVES ( 26.1) SUBPART A GENERAL REQUIREMENTS The objectives are found in the policy statement on the first page of this program. B. APPLICABILITY ( 26.3) The City of Salinas is the recipient of federal airport funds authorized by 49 U.S.C , et seq. C. DEFINITIONS ( 26.5) The City of Salinas will use terms in this program that have the meaning defined in Section D. NON-DISCRIMINATION REQUIREMENTS ( 26.7) The City of Salinas will never 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 part 26 on the basis of race, color, sex, or national origin. In administering its DBE program, the City of Salinas 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 of a particular race, color, sex, or national origin. E. RECORD KEEPING REQUIREMENTS ( 26.11) 1. Reporting to DOT ( 26.11(b)) We will report DBE participation to DOT as follows: We will report DBE participation to DOT/FAA as follows: We will transmit to FAA annually on December 1, the Uniform Report of DBE Awards or Commitments and Payments form, found in Appendix B to this part. We will also report the DBE Contractor firms contact information either on the FAA DBE Contractor s Form or other similar format. 2. Bidders List ( 26.11(c)) City of Salinas Disadvantaged Business Enterprise Program Page 6

7 The City of Salinas will create and maintain a bidders list. The purpose of the list is to provide as accurate data as possible about the universe of DBE and non-dbe contractors and subcontractors who seek to work on our DOT-assisted contracts for use in helping to set our overall goals. The bidders list will include the name, address, DBE non-dbe status, age, and annual gross receipts of firms. We will collect this information in the following ways: All contract specifications will include a contract clause requiring prime bidders to report the names/addresses, and annual gross receipts of all firms who quote to them on subcontracts. This information will be required to be submitted to the City by the lowest and second lowest bidder within 5 business days of opening bids. F. FEDERAL FINANCIAL ASSISTANCE AGREEMENT ( 26.13) City of Salinas has signed the following assurances, applicable to all DOT-assisted contracts and their administration: 1. Assurance ( 26.13(a)) City of Salinas 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 of this agreement. Upon notification to the [Recipient] of its failure to carry out its approved program, the Department may impose sanction as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C et seq.). This language will appear in financial assistance agreements with sub-recipients. 2. Contract Assurance ( 26.13(b)) The City of Salinas will ensure that the following clause is placed in every DOT-assisted contract and subcontract: The contractor, sub-recipient, or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in 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 requirements is a material breach of this contract, which may City of Salinas Disadvantaged Business Enterprise Program Page 7

8 result in the termination of this contract or such other remedy as the City of Salinas deems appropriate. SUBPART B - ADMINISTRATIVE REQUIREMENTS A. DBE PROGRAM UPDATES ( 26.21) The City of Salinas will receive grants for airport planning or development totaling $250,000 or more in a Federal Fiscal year. We will continue to carry out this DBE Program until all funds from DOT financial assistance have been expended. We will provide to DOT updates representing significant changes in the program for approval The City of Salinas is not eligible to receive DOT financial assistance unless DOT has approved our DBE Program and we are in compliance with it and this part. We will continue to carry out our program until all funds from DOT financial assistance have been expended. B. POLICY STATEMENT ( 26.23) The Policy Statement is elaborated on the first page of this program. C. DBE LIAISON OFFICER (DBELO) ( 26.25) We have designated the following individual as our DBE Liaison Officer: Mr. Robert C Russell, City Engineer/Department Deputy Director Public Works Department City of Salinas 200 Lincoln Avenue, Salinas, CA Telephone: (831) robr@ci.salinas.ca.us In that capacity, the DBELO is responsible for implementing all aspects of the DBE program and ensuring that the City of Salinas complies with all provision of 49 CFR Part 26. The DBELO has direct, independent access to the City Manager concerning DBE program matters. An organization chart displaying the DBELO s position in the organization is found in Attachment 1 to this program. The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. The DBELO has a staff of two (2) to assist in the administration of the program. The duties and responsibilities include the following: 1. Gathers and reports statistical data and other information as required by DOT. 2. Reviews third party contracts and purchase requisitions for compliance with this program. City of Salinas Disadvantaged Business Enterprise Program Page 8

9 3. Works with all departments to set overall annual goals. 4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner. 5. Identifies contracts and procurements so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals attainment and identifies ways to improve progress. 6. Analyzes the City of Salinas progress toward attainment and identifies ways to improve progress. 7. Participates in pre-bid meetings. 8. Advises the governing body on DBE matters and achievement. 9. Participates in DBE training seminars. 10. Provides outreach to DBEs and community organizations to advise them of opportunities. 11. Maintains the City of Salinas updated directory on certified DBEs. 12. Determine contractor compliance with good faith efforts D. DBE FINANCIAL INSTITUTIONS ( 26.27) It is the policy of the City of Salinas to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contract to make use of these institutions. The City of Salinas currently has no minority or women-owned banks. City of Salinas will continue to investigate the availability of minority and women-owned banks. If through our investigation, minority and/or women-owned banks are found, City of Salinas shall, by letter, inform minority and women-owned financial institutions of the provisions contained in CFR 49 Part 26, relative to opportunities for their use in federally funded projects. City of Salinas shall request that minority and women-owned financial institutions provide the department with documents outlining the extent of the services offered by such institutions. City of Salinas shall disseminate information of the services offered by such institutions to the construction industry. Information on the availability of such institutions can be obtained from the DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer. E. PROMPT PAYMENT MECHANISMS ( 26.29) The City of Salinas has established, as part of its DBE Program, a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment made to the prime contractor. City of Salinas Disadvantaged Business Enterprise Program Page 9

10 The City of Salinas will ensure prompt and full payment of retainage from the prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. We will use the following method to comply with this requirement: Decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage kept by prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. The City of Salinas will include the following clause in each DOT-assisted prime contract: A prime Contractor or Subcontractor shall pay any Subcontractor not later than 7 calendar days of receipt of each progress payment in accordance with the Provision in ( of the California Business and Professions Code concerning prompt payment to Subcontractors. The 7 calendar days is applicable unless a longer period is agreed in writing between the Contractor and the City Engineer. Any delay or postponement of payment over 30 calendar days may take place only for good cause and with the City Engineer s prior written approval. Any violation of Section shall subject the violating Contractor or Subcontractor to the penalties, sanction, and other remedies of the Section. Federal law (49CFR26.29) require that any delay or postponement of payment over 30 calendar days of receipt of each payment may take place only for good cause and with the agency s prior written approval. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime Contractor or Subcontractor in the event of a dispute involving late payment or nonpayment by the prime Contractor, deficient subcontract performance, or noncompliance by a Subcontractor. This provision applies to both Contractors and Subcontractors. F. DIRECTORY ( 26.31) The City of Salinas uses the DBE directory available from the California Department of Transportation s (Caltrans) Disadvantaged Business Enterprise Program website at: maintained by the State. The Directory lists the firm s name, address, phone number, date of the most recent certification, and the typ0e of work the firm has been certified to perform as DBE. In addition, the directory lists each type of work for which a firm is eligible to be certified by using the most specific NAICS code available to describe each type of work. The State revises this Directory daily. We make the Directory available via the City webpage: Additionally, assistance is provided to firms seeking to bid on a Federally funded project at the pre-bid meeting. G. OVER-CONCENTRATION ( 26.33) City of Salinas Disadvantaged Business Enterprise Program Page 10

11 City of Salinas has not identified that over concentration exists in the types of work that DBEs perform. H. BUSINESS DEVELOPMENT PROGRAMS ( 26.35) City of Salinas has not established business development program. I. MONITORING AND ENFORCEMENT MECHANISMS ( 26.37) The City of Salinas will take the following monitoring and enforcement mechanisms to ensure compliance with 49 CFR Part We will bring to the attention of the Department of Transportation any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in We will implement similar action under out own legal authorities, including responsibility determinations in future contracts. Attachment 3 lists the regulation, provisions, and contract remedies available to us in the events of non compliance with the DBE regulation by a participant in our procurement activities. 3. We will implement a monitoring and enforcement mechanism to ensure that work committed to DBEs at contract award or subsequently (i.e. as the result of modification to the contractor) is actually performed by the DBEs to which the work was committed. We will implement a mechanism that will provide for a running tally of actual DBE attainments (e.g. payment actually made to DBE firms), including a means of comparing these attainments to commitments. IN our reports of DBE participation to DOT, we will show both commitments and attainments, as required by the DOT uniform reporting form. J. SMALL BUSINESS ELEMENT ( 26.39) In accordance with the new section added to 49 CFR Part 26, the City of Salinas DBE Program has been revised to include a Small Business Element which will include ways to facilitate competition by small business enterprises (SBE). For the purpose of this program, an SBE is defined as a Small Business Concern that does not exceed the Business Size Standard as established by the U.S. Small Business Administration (SBA). The City of Salinas will rely upon the State s Department of General Services Office of Small Business & Disabled Veteran Business Enterprise Services (OSDS) database to verify SBE eligibility. City of Salinas Disadvantaged Business Enterprise Program Page 11

12 An important part of the City of Salinas small business element is its outreach activities. These outreach efforts include active, effective steps to increase small business participation by: 1. Soliciting bids/proposals from DBEs and SBEs; 2. Responding to requests for information; 3. Informing and inviting DBEs and SBEs to participate at pre-bid and pre-proposal meetings; and 4. Identifying and Publishing training opportunities. In order to further promote small business participation, the City of Salinas will consider, on a case-by-case basis, unbundling contracts in order to enable small businesses to bid as prime contractors. On larger contracts, prime contractors will be encouraged to provide subcontracts appropriate to small businesses. The City of Salinas will track any race neutral participation by currently certified DBEs and SBEs. To the extent feasible, data on small business participation will be collected and maintained in order to respond to any future questions regarding the results of the City s DBE Program. SUBPART C GOALS, GOOD FAITH EFFORTS, AND COUNTING A. SET-ASIDES OR QUOTAS ( 26.43) The City of Salinas does not use quotas in any way in the administration of this DBE program. B. OVERALL GOALS ( 26.45) The City of Salinas will establish an overall DBE goal covering a three-year federal fiscal year period if we anticipate that we will award prime contracts exceeding $250,000 during any one or more reporting fiscal years within the three-year goal period. In accordance with 49 CFR Part 26.45(f) the City of Salinas will submit its Overall Three-year DBE Goal to FAA by August 1 as required by the established schedule. DBE goals will be established for those fiscal years we anticipate awarding DOT-assisted prime contracts exceeding $250,000 during the three year period. The DBE goals will be established in accordance with the 2-Step process as specified in 49 CFR Part If the City of Salinas does not anticipate awarding more than $250,000 in DOT-assisted prime contracts during any of the years within the three-year reporting period, we will not develop an overall goal; however this DBE program will remain in effect and the City of Salinas will seek to fulfill the objectives outlined in 49 CFR Part 26.1 City of Salinas Disadvantaged Business Enterprise Program Page 12

13 The first step is to determine the relative availability of DBEs in the market area, base figure. The second step is to adjust the base figure percentage from Step 1 so that it reflects as accurately as possible the DBE participation the recipient would expect in the absence of discrimination based on past participation, a disparity study and/or information about barriers to entry to past competitiveness of DBEs on projects. In establishing the overall goal, the City of Salinas will consult with the Chamber of Commerce and Builders Exchange to obtain information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and the City of Salinas efforts to establish a level playing field for the participation of DBEs. Following this consultation, we will publish a Public Notice in general circulation media of the proposed overall goals, informing the public that the proposed goal and its rational are available for inspection during normal business hours at City of Salinas Public Works Department for 30 days following the date of the notice, and informing the public that City of Salinas and DOT/FAA will accept comments on the goals for 45 days from the date of the notice. Notice will be issued in general circulation median and available minority-focus media. Normally, we will issue this notice by June 1 or each year. The notice must include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. Our Overall Three-Year DBE Goal submission to DOT/FAA will include a summary of information and comments received during this public participation process and our responses. We will begin using our overall goal on October 1 of the reporting period, unless we have received other instructions from DOT. If we establish a goal on a project basis, we will begin using our goal by the time of the first solicitation for a DOT-assisted contract for the project. A description of the methodology to calculate the overall goal and the goal calculations can be found in Attachments 4a thru 4d to this program. C. FAILURE TO MEET OVERALL GOALS ( 26.47) The City of Salinas will maintain an approved DBE Program and overall DBE goal, if applicable as well as administer our DBE Program in good faith to be considered to be in compliance with this part. If the City of Salinas awards and commitments shown on our Uniform Report of Awards or Commitments and Payments at the end of any fiscal year are less than the overall goal applicable to that fiscal year, we will do the following in order to be regarded by the Department as implementing your DBE Program in good faith: City of Salinas Disadvantaged Business Enterprise Program Page 13

14 (1) Analyze in detail the reasons for the difference between the overall goal and our awards and commitments in that fiscal year; (2) Establish specific steps and milestones to correct the problems we have identified in our analysis and to enable us to meet fully your goal for the new fiscal year; D. BREAKOUT OF ESTIMATED RACE-NEUTRAL & RACE-CONSCIOUS PARTICIPATION ( 26.51(a-c)) The breakout of estimated race-neutral and race-conscious participation can be found in Attachment 4 to this program. E. CONTRACT GOALS ( 26.51(d-g)) The City of Salinas will arrange solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate participation by DBEs and other small businesses and by making contracts more accessible to small businesses, by means such as those provided under If our approved projection under paragraph (c) of this section estimates that we can meet our entire overall goal for a given year through race-neutral means, we will implement our program without setting contract goals during that year, unless it becomes necessary in order meet our overall goal. We 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 DBEs to perform the particular type of work.) We will express our contract goals as a percentage of the total amount of a DOT-assisted contract. F. GOOD FAITH EFFORTS PROCEDURES ( 26.53) 1. Demonstration Of Good Faith Efforts ( s 26.53(a) & (c)) The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. Examples of good faith efforts are found in Appendix A to Part 26. The City Engineer is responsible for determining whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive. City of Salinas Disadvantaged Business Enterprise Program Page 14

15 We will ensure that all information is complete and accurate and adequately documents the bidder/offer s good faith efforts before we commit to the performance of the contract by the bidder/offeror. 2. Information To Be Submitted ( 26.53(b)) City of Salinas treats bidder/offers compliance with good faith efforts' requirements as a matter of responsiveness. Each solicitation for which a contract goal has been established will require the bidders/offerors to submit the following information: i. The names and addresses of DBE firms that will participate in the contract; ii. A description of the work that each DBE will perform; iii. The dollar amount of the participation of each DBE firm participating; iv. Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; v. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractors commitment and vi. If the contract goal is not met, evidence of good faith efforts. 3. Administrative Reconsideration ( 26.53(d)) Within seven (7) working days of being informed by City of Salinas that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration. Bidder/offerors should make this request in writing to the following Reconsideration Official: Mr. Ray Corpuz, City Manager City of Salinas 200 Lincoln Avenue, Salinas, CA Telephone: (831) rayc@ci.salinas.ca.us The Reconsideration Official 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. The bidder/offeror will have the opportunity to meet in person with our reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do. 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 City of Salinas Disadvantaged Business Enterprise Program Page 15

16 so. The result of the reconsideration process is not administratively appealable to the Department of Transportation. 4. Good Faith Efforts When A DBE Is Replaced On A Contract ( 26.53(f)) City of Salinas will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. We will require the prime contractor to notify the DBE Liaison officer immediately of the DBE s inability or unwillingness 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. We will provide such written consent only if we agree, for reasons stated in our concurrence document, that the prime contractor has good cause to terminate the DBE firm. For purposes of this paragraph, good cause includes the following circumstances: i. The listed DBE subcontractor fails or refuses to execute a written contract; ii. The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided however, that good cause does not exist if the failure or refusal of the DBE subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime contractor; iii. The listed DBE subcontractor fails or refuses to meet the prime contractor s reasonable, non-discriminatory bond requirements. iv. The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness; v. The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant to 2 CFR Parts 180, 215 and 1,200 or applicable state law; vi. We have determined that the listed DBE subcontractor is not a responsible contractor; vii. The listed DBE subcontractor voluntarily withdraws from the project and provides to us written notice of its withdrawal; viii. The listed DBE is ineligible to receive DBE credit for the type of work required; ix. A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its work on the contract; x. Other documented good cause that we have determined compels the termination of the DBE subcontractor. Provided, that good cause does not exist if the prime contractor seeks to terminate a DBE it relied upon to obtain the contract so that the prime contractor can self-perform the work for which the DBE contractor was City of Salinas Disadvantaged Business Enterprise Program Page 16

17 engaged or so that the prime contractor can substitute another DBE or non-dbe contractor after contract award. Before transmitting to us its request to terminate and/or substitute a DBE subcontractor, the prime contractor must give notice in writing to the DBE subcontractor, with a copy to us, of its intent to request to terminate and/or substitute, and the reason for the request. The prime contractor must give the DBE five days to respond to the prime contractor s notice and advise us and the contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why we should not approve the prime contractor s action. If required in a particular case as a matter of public necessity (e.g., safety), we may provide a response period shorter than five days. In addition to post-award terminations, the provisions of this section apply to pre-award deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements. If the contractor fails or refuses to comply in the time specified, our contracting office will issue an order stopping all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, the contracting officer may issue a termination for default proceeding. Sample Bid Specification: The requirements of 49 CFR Part 26, Regulations of the U.S. Department of Transportation, apply to this contract. It is the policy of the City of Salinas to practice nondiscrimination based on race, color, sex, or national origin in the award or performance of this contract. All firms qualifying under this solicitation are encouraged to submit bids/proposals. Award of this contract will be conditioned upon satisfying the requirements of this bid specification. These requirements apply to all bidders/offerors, including those who qualify as a DBE. A DBE contract goal of percent [as determined in the goal calculation Attachment 4] has been established for this contract. The bidder/offeror shall make good faith efforts, as defined in Appendix A, 49 CFR Part 26 (attachment 1), to meet the contract goal for DBE participation in the performance of this contract. The bidder/offeror will be required to submit the following information: (1) the names and addresses of DBE firms that will participate in the contract; (2) a description of the work that each DBE firm will perform; (3) the dollar amount of the participation of each DBE firm participating; (4) Written documentation of the bidder/offeror s commitment to use a DBE subcontractor whose participation it submits to meet the contract goal; (5) Written confirmation from the DBE that it is participating in the contract as provided in City of Salinas Disadvantaged Business Enterprise Program Page 17

18 the commitment made under (4); and (6) if the contract goal is not met, evidence of good faith efforts. G. COUNTING DBE PARTICIPATION ( 26.55) We will count DBE participation toward overall and contract goals as provided in 49 CFR We will not count the participation of a DBE subcontract toward a contractor s final compliance with its DBE obligations on a contract until the amount being counted has actually been paid to the DBE. SUBPART D CERTIFICATION STANDARDS A. CERTIFICATION PROCESS ( thru 26.73) City of Salinas ensures that only DBE firms currently certified on the Caltrans directory will participate as DBEs in our Program. The Certification Application form is available to view and download within the following link: SUBPART E CERTIFICATION PROCEDURES A. UNIFIED CERTIFICATION PROGRAMS ( 26.81) The City of Salinas will rely upon CALTRANS Unified Certification Program, their certifying agencies, certification procedures and decisions by verifying DBE eligibility via Caltrans database. B. PROCEDURES FOR CERTIFICATION DECISIONS ( 26.83) 1. Re-Certifications ( 26.83(a) & (c)) The City will coordinate with CALTRANS regarding the eligibility of DBES that are certified to make sure that they will meet the standards. 2. No Change Affidavits and Notices of Change ( 26.83(j)) The City will require all DBEs to inform CALTRANS, in a written affidavit, of any change in its circumstances affecting its ability to meet size, disadvantaged status, ownership or control criteria of 49 CFR Part 26 or of any material changes in the information provided in the application for certification. City of Salinas Disadvantaged Business Enterprise Program Page 18

19 The City also requires all owners of all DBEs that have been certified under CALTRANS to submit, on the anniversary date of their certification, a no change affidavit meeting the requirements of 26.83(j). I swear (or affirm) that there have been no changes in the circumstances of [name of DBE firm] affecting its ability to meet the size, disadvantaged status, ownership, or control requirements of 49 CFR part 26. There have been no material changes in the information provided with [name of DBE] s application for certification, except for any changes about which you have provided written notice to the Monterey Peninsula Airport District under 26.83(j). [Name of firm] meets Small Business Administration (SBA) criteria for being a small business concern and its average annual gross receipts (as defined by SBA rules) over the firm s previous three fiscal years do not exceed $16.6 million. C. DENIALS OF INITIAL REQUESTS FOR CERTIFICATION ( 26.86) The City will rely upon procedures in place by CALTRANS. D. REMOVAL OF A DBE S ELIGIBILITY ( 26.87) The City will rely upon procedures in place by CALTRANS. E. CERTIFICATION APPEALS ( 26.89) Any firm or complainant may appeal a CALTRANS decision in a certification matter to DOT. Such appeals may be sent to: U.S. Department of Transportation Departmental Office of Civil Rights External Civil Rights Programs Division (S-33) 1200 New Jersey Ave., S.E. Washington, DC Phone: (202) TTY: (202) Fax: (202) The City will promptly implement any DOT certification appeal decisions affecting the eligibility of DBEs for the City s DOT-assisted contracting (e.g., certify a firm if DOT has determined that our denial of its application was erroneous). SUBPART F COMPLIANCE AND ENFORCEMENT City of Salinas Disadvantaged Business Enterprise Program Page 19

20 A. INFORMATION, CONFIDENTIALITY, COOPERATION ( ) We will safeguard from disclose to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local law. Notwithstanding any contrary provisions of state or local law, we well not release personal financial information submitted in response to the personal net worth requirement to a third party (other than DOT) without the written consent of the firm that submitted the information. 1. Monitoring Payments to DBEs We will require prime contractors to maintain records and documents of payments to DBEs for three years following the performance of the contract. These records will be make available for inspection upon request by any authorized representative of the City of Salinas or DOT. This reporting requirement also extends to any certified DBE subcontractor. We will perform interim audits of contract payments to DBEs. The audit 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 DBE participation. ATTACHMENTS Appendix A to Part 26 Guidance Concerning Good Faith Efforts Attachment 1 Organizational Chart Attachment 2 Bidder s List Collection Form Attachment 3 Monitoring and Enforcement Mechanisms Attachment 4 Overall Goal Calculation, Breakout of Estimated Race-Neutral & Race- Conscious Participation, Public Participation, Attachment 5 Form 1 & 2 for Demonstration of Good Faith Efforts Attachment 6 Regulations: 49 CFR Part 26 City of Salinas Disadvantaged Business Enterprise Program Page 20

21 APPENDIX A TO PART 26-GUIDANCE CONCERNING GOOD FAITH EFFORTS I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, a bidder must, in order to be responsible and/or responsive, make good faith efforts to meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this Part, which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful. II. III. IV. In any situation in which you have established a contract goal, part 26 requires you to use the good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and reasonable judgment whether a bidder that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality, quantity, and intensity of the different kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the sufficiency of the firm s good faith efforts is a judgment call: meeting quantitative formulas is not required. The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e., obtain a specified amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This rule specifically prohibits you from ignoring bona fide good faith efforts. The following is a list of types of actions that should consider as part of the bidder's good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases. A. Soliciting through all reasonable and available means (e.g. attendance at pre-bid meetings, advertising and/or written notices) the interest of all certified DBEs who have the capability to perform the work of the contract. The bidder must solicit this interest within sufficient time to allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations. B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. This includes, where appropriate, City of Salinas Disadvantaged Business Enterprise Program Page 21

22 breaking out contract work items into economically feasible units to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces. C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation. D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for DBEs to perform the work. (2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for the rejection or non-solicitation of bids in the contractor's efforts to meet the project goal. F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor. G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. H. Effectively using the services of available minority/women community organizations; minority/women contractors' groups; local, state, and Federal City of Salinas Disadvantaged Business Enterprise Program Page 22

23 minority/women business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. V. In determining whether a bidder has made good faith efforts, you may take into account the performance of other bidders in meeting the contract. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional reasonable efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. City of Salinas Disadvantaged Business Enterprise Program Page 23

24 ATTACHMENT 1 - ORGANIZATIONAL CHART CITY OF SALINAS CITY COUNCIL Ray Corpuz City Manager Reconsideration Official Gary Petersen Department Director Robert C Russell Department Deputy Director/City Engineer DBE Liaison Officer Hilda Garcia PW Compliance Officer DBE Support Staff Jesse Rivas Senior Construction Inspector DBE Support Staff City of Salinas Disadvantaged Business Enterprise Program Page 24

25 ATTACHMENT 2 BIDDERS LIST COLLECTION FORM BIDDER S LIST FOR THE CITY OF SALINAS PUBLIC WORKS DEPARTMENT (This information may be submitted with your proposal. If it is not, and you are the apparent low Bidder or the second low Bidder, it must be submitted and received by the Public Works Department no later than 5 working days after Bid opening date.) All Bidders are required to provide the following information for all DBE and non-dbe contractors, who provided a proposal, Bid, quote, or were contacted by the proposed prime. This information is also required from the proposed prime contractor, and must be submitted with their Bid/proposal. In order for the City of Salinas to conform with Federally-Mandated DBE Program Bidders List, it will use this information to maintain and update a Bidders List" to assist in the overall annual goal DBE goal setting process. Firm Name: Address: Contact Person & Title: Phone: Fax: License No.: Exp. Date: No. of Years in Business: Is the firm currently certified as a DBE under the new regulations (49 CFR Part 26)? Yes No Type of work/services/materials provided by firm: What were your firm s Gross Annual receipts for last year? Less than $1 Million Less than $5 Million Less than $10 Million Less than $15 Million More than $15 Million I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. SIGNED: This form may be copied as needed to report all Bidders (DBEs and non-dbes) information. Revision Date 03/19/03 City of Salinas Disadvantaged Business Enterprise Program Page 25

26 ATTACHMENT 3 MONITORING AND ENFORCEMENT MECHANISMS The Airport Authority has available several remedies to enforce the DBE requirements contained in its contracts, including, but not limited to, the following: 1. Breach of contract action pursuant to the terms of the contract In addition, the federal government has available several enforcement mechanisms that it may apply to firms participating in the DBE problem, including but not limited to, the following: 1. Suspension or debarment proceedings, pursuant to 49 CFR part Enforcement action pursuant to 49 CFR part Prosecution pursuant to 18 USC 1001 Furthermore, the City of Salinas Public Works Compliance Officer (PWCO) monitors and tracks actual DBE participation through contractor and subcontractor reports of payments. After Contract Award After the contract award, the City of Salinas will review the award documents for the portion of items each DBE and first tier subcontractor will be performing and the dollar value of that work. With these documents the PWCO will be able to determine the work to be performed by the DBEs or subcontractors listed. Pre-construction Conference A pre-construction conference will be scheduled between the PWCO and the prime contractor or their representative to discuss the work each DBE subcontractor will perform. Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act (FPA). Local agencies will require contractors to adhere to the provisions within Subletting and Subcontracting Fair Practices Act (State Law) Sections FPA requires the contractor to list all subcontractors in excess of one half of one percent (0.5%) of the contractor s total bid or $10,000, whichever is greater. The statute is designed to prevent bid shopping by contractors. The FPA explains that a contractor may not substitute a subcontractor listed in the original bid except with the approval of the awarding authority. The PWCO will give the contractor a blank Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors, Form CEM-2402(f), and will explain to them that the document will be required at the end of the project, for which payment can be withheld, in conformance with the contract. Construction Contract Monitoring The PWCO will ensure that the staff inspectors know what items of work each DBE is responsible for performing. Inspectors will notify the PWCO immediately of apparent violations.

27 Attachment 3 - Continued When a firm other than the listed DBE subcontractor is found performing the work, the PWCO will notify the contractor of the apparent discrepancy and potential loss of payment. Based on the contractor s response, the PWCO will take appropriate action: The DBE Liaison Officer will perform a preliminary investigation to identify any potential issues related to the DBE subcontractor performing a commercially useful function. Any substantive issues will be forwarded to the Caltrans Disadvantaged Business Enterprise Program. If the contractor fails to adequately explain why there is a discrepancy, payment for the work will be withheld and a letter will be sent to the contractor referencing the applicable specification violation and the required withholding of payment. If the contract requires the submittal of a monthly trucking document, the contractor will be required to submit documentation to the PWCO showing the owner s name; California Highway Patrol CA number; and the DBE certification number of the owner of the truck for each truck used during that month for which DBE participation will be claimed. The trucks will be listed by California Highway Patrol CA number in the daily diary or on a separate piece of paper for documentation. The numbers are checked by inspectors regularly to confirm compliance. Substitution When a DBE substitution is requested, the Resident Engineer (RE)/Contract Manager (CM) will request a letter from the contractor explaining why substitution is needed. The RE/CM will submit this request to the PWCO to make sure that names and addresses are shown, dollar values are included, and reason for the request is explained. If the PWCO agrees to the substitution and with concurrence of the substitution of the DBE Liaison Officer, the RE/CM will notify, in writing, the DBE subcontractor regarding the proposed substitution and procedure for written objection from the DBE subcontractor in accordance with the Subletting and Subcontracting Fair Practices Act. If the contractor is not meeting the contract goal with this substitution, the contractor must provide the required good faith effort to the PWCO for local agency consideration. Record Keeping and Final Report Utilization of Disadvantaged Business Enterprises The contractor shall maintain records showing the name and address of each first-tier subcontractor. The records shall also show: 1. The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of materials and DBE trucking company. 2. The date of payment and the total dollar figure paid to each of the firms. 3. The DBE prime contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward DBE goals. When a contract has been completed the contractor will provide a summary of the records stated above. The City of Salinas DBE Liaison Officer or his delegate will keep track of the DBE certification status on the Internet at and keep the RE/CM informed of changes City of Salinas Disadvantaged Business Enterprise Program Page 27