HomeMy WebLinkAbout05 DBE GOAL 09-18-00 NO. 5
AGENDA RE, ORT
TO:
FROM:
SUBJECT:
WILLIAM A. HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
APPROVAL OF DRAFT DISADVANTAGED BUSINESS ENTERPRISE (DBE)
PROGRAM AND PROPOSED OVERALL ANNUAL DBE GOAL OF 13% FOR
FEDERAL FISCAL YEAR 2001
SUMMARY
In order to maintain eligibility for receipt of federal funds on various City Capital Improvement
Projects, the City of Tustin is required to develop and submit to Caltrans a Disadvantaged
Business Enterprise (DBE) Program and Overall Annual Goal for DBE participation for U.S.
Department of Transportation (DOT) assisted contracts. In accordance with new DBE regulations,
the City of Tustin has developed a Draft DBE Program and Proposed Overall Annual DBE Goal
for Federal Fiscal Year 2001, to ensure full compliance with DBE Program requirements.
RECOMMENDATION
It is recommended that the City Council adopt Resolution No. 00-64, approving the Draft
Disadvantaged Business Enterprise (DBE) Program and Proposed Overall Annual DBE Goal of
13% for Federal Fiscal Year 2001.
FISCAL IMPACT
City Council adoption of Resolution No. 00-64 will ensure the City's continued receipt of federal
funding for various Capital Improvement Projects, which are partially funded through the U.S.
Department of Transportation.
BACKGROUND
The Draft Disadvantaged Business Enterprise (DBE) Program and Proposed Overall Annual DBE
Goal for Federal Fiscal Year 2001 addresses critical components and elements of recently revised
federal Department of Transportation regulations. The City of Tustin's Proposed Overall Annual
DBE Goal for Federal Fiscal Year 2001 is 13% and once finalized will be upgraded annually to
maintain relevancy to local market conditions and factors impacting DBE availability.
The attached Draft Disadvantaged Business Enterprise (DBE) Program and Proposed Overall
Annual DBE Goal for Federal Fiscal Year 2001 must be submitted to the California Department of
Transportation (Caltrans) for approval by October 1, 2000. The Draft (DBE) Program and
Proposed Overall Annual Goal will be subject.to completion of a required public participation
process and finalized.
Approval of Draft Disadvantaged Business Enterprise (DBE) Program and Proposed Overall
Annual DBE Goal of 13% for Federal Fiscal Year 2001
September 18, 2000
Page 2
Upon completion of the public participation process, the finalized Disadvantaged Business
Enterprise (DBE) Program and Overall Annual DBE Goal for Federal Fiscal Year 2001 will be
scheduled for City Council approval at the December 4, 2000 City Council meeting to ensure
submission to Caltrans prior to January 1, 2001.
Tim D. Serlet
Director of Public Works/City Engineer
ttes~
Associate Civil Engineer
TDS:JO:ccg:Draft DBE approval & Reso 00-64.doc
Attachments: Resolution No. 00-64
Draft Disadvantaged Business Enterprise (DBE) Program
20
2!
2~
27
28
RESOLUTION NO. 00-64
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA, APPROVING THE DRAFT DISADVANTAGED
BUSINESS ENTERPRISE (DBE) PROGRAM AND PROPOSED
OVERALL ANNUAL GOAL OF 13% FOR FEDERAL FISCAL YEAR
2001, FOR ADOPTION AND SUBMISSION TO THE CALIFORNIA
DEPARTMENT OF TRANSPORTATION (CALTRANS)
WHEREAS, the City of Tustin is required to develop and submit a
Disadvantaged Business Enterprise (DBE) Program and Overall Annual Goal for
DBE participation for U.S. Department of Transportation (DOT) assisted contracts, as
a condition of federal financial assistance, pursuant to Title 49 Code of Federal
Regulations (CFR) Part 26; Participation by Disadvantaged Business Enterprises
(DBE) in DOT Programs; and
WHEREAS, in accordance with new DBE regulations, the City of Tustin has
developed a narrowly tailored Draft DBE Program and Proposed Overall Annual DBE
Goal of 13% for Federal Fiscal year 2001; and
WHEREAS, City Council adoption is required to ensure compliance with
Department of Transportation federal funding requirements, provisions and financial
responsibilities.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Tustin that the Draft DBE Program and Proposed Overall Annual Goal for Federal
Fiscal Year 2001 is hereby approved.
AND BE IT FURTHER RESOLVED that the City Manager is hereby
authorized to execute the Draft Disadvantaged Business Enterprise (DBE) Program
and Proposed Overall Annual Goal for Federal Fiscal Year 2001, and, submission to
the California Department of Transportation (Caltrans), on behalf of the City, for
funding authority approval.
PASSED AND ADOPTED at a regular meeting of the City Council of the City
of Tustin held on the 18th day of September 2000.
Jeffery M. Thomas, Mayor
ATTEST:
City Clerk
CITY OF TUSTIN
Draft
Disadvantaged. Business Enterprise
Program
Submitted in fidfillment of:
Section 1101 of the Transportation Equity Act for the 21st Century
49 Code of Federal Regulations Part 26
and
Caltrans Local Assistance Procedures Manual
lo
II.
III.
IV.
Vo
VI.
VII.
VIII.
IX.
Xo
gIo
givo
XVII.
XVIII.
XIXo
XXo
CITY OF TUSTIN
DISAD VANTA GED BUSINESS ENTERPRISE (DBE) PROGRAM
Table of Contents
Definition of Terms ........................................................................................... 1
Objectives/Policy Statement ........................................................................... 1
Nondiscrimination ......................................... 2
DBE Program Updates ................................................................................... 2
Quotas ' 2
DBE Liaison Officer ....................................................................................... 2
Federal Financial Assistance Agreement Assurance .................................. 3
DBE Financial Institutions ' 4
4
Directory ........................................................................................................
Overconcentration. ........................................................................................ 4
Business Development Programs ................................................................. 4
Required Contract Clauses ........................................................................... 4
Monitoring and Enforcement Mechanisms ................................................ 5
ooooeoooooooe'ooeooooooooooooooeoooe°°°°°°°°° 8
Overall Goals .....................................................
Contract Goals ............................................................................................ 11
Transit Vehicle Manufacturers ................................................................. 11
Good Faith Efforts ..................................................................................... 12
Counting DBE Participation .................................................................... 13
Certification ................................................................................................ 13
Information Collection and Reporting ................................................... 14
Appendix A: Guidance Concern. ing Good Faith Efforts ...................................... 15
Appendix B: DBE Program Organizational Chart ............................................... 18
Appendix C: Bidders List ........................................................................................ 19
Appendix D:' Overall Annual DBE Goal Analysis for FFY 2000/01
Ie
Definitions of Terms
The terms used in this Program have the meanings defined in Title 49 CFR {}26.5.
II.
Objectives/Policy Statement (§§26.1, 26.23)
The City of Tustin has established a Disadvantaged Business Enterprise (DBE) Program in
accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Part 26;
"Participation by Disadvantaged Business Enterprise Regulations in Department of
Transportation Financial Assistance Programs". The City of Tustin receives Federal financial
assistance from the DOT, and as a condition of receiving this assistance, the City of Tustin will
sign an assurance that it will comply with 49 CFR Part 26.
It is the policy of the City of Tustin to ensure that DBEs, as defined in CFR Part 26, have an
equal opportunity to receive and participate in DOT-assisted contracts. It is also our policy:
· 'To ensure nondiscrimination in the award and administration of DOT-assisted contracts;
· To create a level playing field on which DBEs can compete fairly for DOT-assisted
contracts;
· To ensure that the DBE Program is narrowly tailored in accordance with applicable laws;.
· To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are
permitted to participate as DBEs;
· To help remove barriers impacting the participation of DBEs in DOT-assisted contracts;
and
· To assist in the development of DBEs firms to enable them to compete successfully in the
market place outside the DBE Program.
.Mr. Tim D. Serlet is the DBE Liaison Officer for the City of Tustin. In this capacity, Mr. Serlet
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 Ci.ty of Tustin in its financial assistance agreements with the California Department of
Transportation (Caltrans).
The City of Tustin has disseminated this policy statement to the Tustin City coUncil and all the
components of our organization. We have distributed this statement to DBE and non-DBE
business communities that perform work for us on DOT-assisted contracts.
City of Tustin Disadvantaged Business Enterprise Program
Page 1
III. Nondiscrimination (§26.7)
The City of Tustin 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 Title 49 CFR Part 26 on the basis of race, color, sex, or
national origin.
In administering its DBE Program, the City of Tustin 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.
IV.
DBE Program Updates (§26.21)
The City of Tustin will continue to carry out this Program until we have established a new goal
setting methodology or until'significant changes to this DBE Program are adopted. The City of
Tustin will provide to Caltrans a proposed overall annual goal and goal setting methodology and
other pro,am updates by June 1 of every year.
V®
Quotas ({}26.43)
The City of Tustin will not use quotas or set-asides in any way in the administration of this DBE
program.
VI.
DBE Liaison Officer (DBELO) ({}26.45)
The City of Tustin has designated the following individual as the DBE Liaison Officer:
Mr. Tim D. Serlet, Director of Public Works
City of Tustin
300 Centennial Way, Tustin, CA 92680
(714) 573-3152
t s erl et ~tustinc a. org
In this capacity, Mr. Serlet is responsible for implementing all aspects of the DBE Program and
ensuring that the City of Tustin complies with all provisions of Title 49 CFR Part 26;
"Participation by Disadvantaged Business Enterprise Regulations in Department of
Transportation Financial Assistance Programs". This is available on the Intemet at
osdbuweb.dot.gov/main.cfrn. Mr. Serlet has direct, independent access to the City Manager
concerning DBE program matters. The DBELO has two (2) support personnel who devote a
portion of their time to the Program. An organization chart displaying the DBELO's position in
the organization is found in Attachment B to tiffs Program.
City of Tustin Disadvantaged Business Enterprise Program
Page 2
The DBE Liaison Officer is responsible for developing, implementing and monitoring the DBE
Program, in coordination other appropriate officials. Duties and responsibilities include the
following:
1. Gathers and reports statistical data and other information as required.
2. Reviews third party contracts and purchase requisitions for compliance with this Program.
3. Works with all departments to set overall annual goals for DBE participation in DOT-
assisted contracts.
4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner.
5. Identifies contracts and procurements to ensure DBE goals are included in solicitations when
warranted (both race-neutral methods and contract specific goals) and monitors results.
6. Analyzes the City of Tustin's progress toward goal attainment and identifies ways to improve
progress.
7. Participates in pre-bid meetings.
8. Advises the CEO/governing body on DBE matters and achievement.
9. Determines contractor compliance with good faith efforts.
10. Provides DBEs with information and assistance in preparing bids, obtaining bonding and
insurance.
11. Plans and participates in DBE training seminars.
12. ])rovides outreach to DBEs and community organizations to advise them of DOT contracting
opportunities.
13. Develops and maintains a Bidders List of DBE and non,DBE finns bidding on prime
contracts and bidding or quoting subcontracts on DOT-assisted projects.
VII®
Federal Financial Assistance Agreement Assurance ({}26.13)
The City of Tustin will sign the following assurance, applicable to all DOT-assisted contracts
and their administration as part of the program supplement agreement for each project:
The City of Tustin 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 City of Tustin 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 City of Tustin'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 City
of Tustin of its failure to carry out its approved Program, the Department may impose
sanctions as provided for under Part 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.).
City of Tustin Disadvantaged Business Enterprise Program
Page 3
VIII.
DBE Financial Institutions
It is the policy of the City of Tustin 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 contracts to make use of these institutions.
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.
IX. DBE Directory ({}26.31)
The City of Tustin will refer interested persons to the DBE directory available from the Caltrans
Disadvantaged Business Enterprise Program website at www. dot. ca. gov/hq/bep.
Ko
Overconcentration ({}26.33)
The City of Tustin has not identified any types of work in DOT-assisted contracts that have an
overconcentration of DBE participation. If in the future, the City of Tustin identifies the need to
address overconcentration, measures for addressing overconcentration will be submitted to the
DLAE for approval.
XI.
Business Development Programs ({}26.35)
The City'of Tustin does not have a business development or Mentor-Prot6g6 Program. If the
City of Tustin identifies the need for such a program in the future, the rationale for adopting such
a program and a comprehensive description of it will be submitted to the DLAE for approval.
XII.
Required Contract Clauses ({}{}26.13, 26.29)
Contract Assurance
The City of Tustin ensures 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 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 result in the termination of this contract or such other
remedy as recipient deems appropriate."
City of Tustin Disadvantaged Business Enterprise Program
Page 4
Prompt Payment
The City of Tustin ensures that the following clauses or equivalent will be included in each
DOT-assisted prime contract:
Satisfacto~_ Performance
The prime contractor agrees to pay each subcontractor under this prime contract for
satisfactory performance of its contract no later than 10 days from the receipt of each
payment the prime contractor receives fi.om the City of Tustin. Any delay or postponement
of payment fi.om the above referenced time frame may occur only for good cause
following written approval of the City of Tustin. This clause applies to both DBE and non-
DBE subcontractors.
Release of Retainage
The prime contractor agrees further to release retainage payments to each subcontractor within
30 days after the subcontractor's work is satisfactorily completed. Any delay or postponement
of payment from the above referenced time frame may occur only for good cause following
written approval of the City of Tustin. This clause applies to both DBE and non-DBE
subcontractors.
Ongoing Compliance Monitoring
It is the responsibility of the prime contractor to provide evidence of all subcontractor payments
in accordance with the above stated Prompt Payment Provisions. The prime contractor shall
maintain all relevant records and provide access to such at the request of the City of Tustin.
The City of Tustin will conduct periodic reviews to ensure full compliance.
XIII.
Monitoring and Enforcement Mechanisms ({}26.37)
The City of Tustin will assign a Resident En~neer (RE)' or Contract Manager to monitor and
track actual DBE participation through contractor and subcontractor reports of payments in
accordance with the following:
After Contract Award
After the contract award, the City of Tustin 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 RE/Contract Manager will be able to determine the work to be
performed by the DBEs or subcontractors listed.
City of Tustin Disadvantaged Business Enterprise Program
Page 5
Pre-construction Conference
A pre-construction conference will be scheduled between the RE and the prime contractor or
their representative to discuss the work each DBE subcontractor will perform.
Before work can begin on a subcontract, the City of Tustin will require the contractor to submit a
completed "Subcontracting Request," Exhibit 16-B of Caltrans' Local Assistance Program
Manual (LAPM) or equivalent. When the RE receives the completed form it will be checked for
agreement of the first tier subcontractors and DBEs to ensure DBE goal commitment are adhered
to. The RE will not approve the request when it identifies someone other than the DBE or first
tier subcontractor listed in the previously completed "Local Agency Bidder DBE Information,"
Exhibit 15-G of Caltrans' LAPM. The "Subcontracting Request" will not be approved until all
discrepancies are resolved. If an issue cannot be resolved at that time, or there is some other
concern, the RE will require the contractor to eliminate the subcontractor in question before
signing the subcontracting request. A change in the DBE or first tier subcontractor may be
addressed during a substitution process at a later date.
Suppliers, vendors, or manufacturers listed on the "Bidder DBE Information" will be compared
to those listed in the completed Exhibit 16-1 of Caltrans' LAPM or.equivalent. Differences must
be resolved by either making corrections or requesting a substitution.
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 4100-4144. 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 RE will give the contractor a blank "Final Report Utilization of Disadvantaged Business
Enterprises, First Tier Subcontractors", Exhibit 17-F of Caltrans' LAPM, 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 RE will ensure that the RE's staff (inspectors) know what items of work each DBE is
responsible for performing. Inspectors will notify the RE immediately of apparent violations.
When a firm other than the listed DBE subcontractor is found performing Se work, the RE will
notify the contractor of the apparent discrepancy and potential loss of payment. Based on the
contractor's response, the RE 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
City of Tustin Disadvantaged Business Enterprise Program
Page 6
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 RE 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 RE/Contract Manager will request a letter from the
contractor explaining why substitution is needed. The RE/Contract Manager must review the
letter to be sure names and addresses are shown, dollar values are included, and reason for the
request is explained. If the RE/Contract Manager agrees to the substitution and with concurrence
of the substitution of the DBE Liaison Officer, the RE/Contract Manager 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 RE/Contract Manager for local agency
consideration.
If there is any doubt in the RE/Contract Manager's mind regarding the requested substitution, the
RE/Contract Manager may contact the DLAE for assistance and direction.
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:
1o 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 DBE utilization information will be documented on Exhibit 17-F of Caltrans' LAPM
and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare
the completed Exhibit 17-F of Caltrans' LAPM to the contractor's completed Exhibit 15-G of
Caltrans' LAPM and, if applicable, to the completed Exhibit 16-B of Caltrans' LAPM. The
DBEs shown on the completed Exhibit 17-F of Caltrans' LAPM should be the same as those
originally listed unless an authorized substitution was allowed, or the contractor used more DBEs
and they were added. The dollar amount should reflect any changes made in planned work done
by the DBE. The contractor will be required to explain in writing why the names of the
City of Tustin Disadvantaged Business Enterprise Program
Page 7
subcontractors, the work items or dollar figures are different from what was originally shown on
the completed Exhibit 15-G of Caltrans' LAPM when:
There have been no changes made by the RE.
The contractor has not provided a sufficient explanation in the comments section of the
completed Exhibit 17-F of Caltrans' LAPM.
The explanation will be attached to the completed Exhibit 17-F for submittal. The RE will file
this in the project records.
The City of Tustin's DBE Liaison Officer will keep track of the DBE certification status on the
Intemet at www.dot.ca, gov/hq/bep and keep the RE informed of changes that affect the contract.
The RE will require the contractor to act in accordance with existing contractual commitments
regardless of decertification.
The DLAE will use the PS&E checklist to monitor City of Tustin's commitment to require
bidders list information to be submitted to the City of Tustin from the awarded prime and
subcontractors as a means to develop a bidders list. This monitoring will only take place if the
bidders list information is required to be submitted as stipulated in the special provisions.
The City of Tustin will bring to the attention of the DOT through the DLAE 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 §26.109. The City of Tustin also will consider similar action under our own legal
authorities, including responsibility determinations in future contracts.
Overall Goals ({}26.45)
Amount of Goal
The City of Tustin's overall goal for the Federal fiscal year FFY 2000/2001 is the following:
13% of the Federal financial assistance in DOT-assisted contracts. This overall goal is broken
down into 10% race-conscious and 3% race-neutral components.
Methodology
Projecting Federal Assisted Contract Awards/Expenditures for Federal Fiscal Year
In conjunction with the preparation and adoption of the budget for each fiscal year, the DBE
Liaison Officer, in consultation with the appropriate divisions and departments responsible for
contracting activities, will conduct a thorough analysis of the projected number, types of work by
industry disciplines and dollar amounts of contracting oppommities that will be funded, in whole
or in part, by DOT federal financial assistance for that year.
City of Tustin Disadvantaged Business Enterprise Program
Page 8
STEP 1: Establishing a Base Figure
Once the City of Tustin defines its DOT-assisted contracting program and relevant market areas
for the fiscal year, the City of Tustin will establish a Base Figure following one of the
methodologies outlined in Title 49 CFR Part 26 and Caltrans' Local Assistance Procedures
Manual.
For federal fiscal year 2000/01, the City of Tustin elected to utilize Caltrans' DBE Directory of
Certified DBE firms (filtered to included 'DBE firms expressing interest in doing business within
the City of Tustin's geographic market area), divided by all comparable firms available within
the County Census Bureau Database to derive the relative availability of DBEs within the
following work industries:
Categories: Highway & Street Construction, Concrete Work and Excavation Work
The City of Tustin further weighted the resultant figure based on the amount of DOT-federal
assistance the City of Tustin is projected to award and/or expend on various industries in
establishing the Base Figure.
Please refer to Attachment D for the City of Tustin's Overall Annual Goal Analysis for FFY
2001/2001.
STEP 2:
Ad}usting the Base Figure
As a mandatory second step, the City of Tustin will survey other relevant market data to consider
adjusting the base figure established. Indicators that City of Tustin may determine to be relevant
to its market, may include, but not be limited to:
1. Demonstrated evidence of DBE capacity to perform work in the City of Tustin's federally
assisted and non-federally assisted contracting program;
2. The number, types and dollar value of contracting opportunities projected to be financed with
federal funds and to be awarded during the federal fiscal year.
3. The City of Tustin's Bidders List.
4. Other recipients' goal results in similar contracting oppommities and markets, and the
reasons for the level of those results.'
5. The methods used by the City of Tustin to increase DBE participation in federally assisted
contracts.
6o The demographics and business activity of the geographical area in which the City of Tustin
will solicit bids or proposals.
7. The data from statistical disparities of DBEs to obtain financing, bonding and insurance
requirements.
8. The data on employment and self-employment, education and training programs, to the
extent the City of Tustin can relate it to the oppommities for DBEs to perform in the City of
Tustin's DBE Program.
City of Tusfin Disadvantaged Business Enterprise Program
Page 9
Breakout of Estimated Race-Neutral and Race-Conscious Participation
The City of Tustin shall achieve the overall annual goals for DBE participation through a
combination of race-neutral and race-conscious measures including the use of contract-specific
goals as needed to meet its overall annual DBE goal.
Race-Neutral Measures
The City of Tustin intends to use race-neutral measures to the extent feasible to achieve its
overall annual goal. The City of Tustin will use the following measures as appropriate to
facilitate DBE and other small business participation in the City of Tustin's contracting program:
(a)
(b)
(c)
(d)
(e)
Configuring large contracts into smaller contracts when feasible, when to so
would make contracts more accessible to small businesses, and would not impose
significant additional cost, delay or risk to the City of Tustin;
Contractors will be encouraged to consider subcontractors for components of the
work for which there is a known supply of ready, willing, and able subcontractors,
including DBE subcontractors, in preparing their bids;
Assisting in overcoming limitations in bonding and financing;
Providing technical assistance in orienting small businesses to public contracting
procedures, use of the Internet, and facilitating introductions to the City of
Tustin's and other U.S. DOT recipients' contracting activities; and
Providing outreach and communications programs on contract procedures and
contract opportunities to ensure the inclusion of DBEs and other small businesses.
Race-Conscious Measures Goals (section 26.51)
The City of Tustin will annually consider various factors to project levels of DBE participation
to be met through race-conscious measures and will use race-conscious measures such as
contract-specific goals to meet that portion of the overall goal which is not likely to be met
utilizing race-neutral measures. The City of Tustin shall monitor and adjust the estimated
utilization of race-neutral and race-conscious measures as required in accordance with regulatory
guidelines.
Process
For subsequent years, the following procedures will be followed:
The City of Tustin will submit its overall annual DBE goal to Caltrans by June 1 of each year.
The goal submission includes the amount of overall goal, the method utilized to calculate the
goal and the estimated race-neutral and race-conscious participation projections.
Once the DLAE has responded with preliminary comments and the comments have been
incorporated into the draft overall goal analysis, the City of Tustin will publish a notice of the
proposed overall goal, informing the public that the proposed goal and its rationale are available
for inspection during normal business hours at the City of Tustin's principal office for 30 days
City of Tustin Disadvantaged Business Enterprise Program
Page 10
from the date. of the notice, and informing the public that the City of Tustin will accept
comments relative to the goal analysis for 45 days following the date of the notice.
Advertisements in newspapers, minority focus media, trade publications, and websites will be
the normal media to accomplish this effort. The notice will include addresses to which
comments may be sent and addresses (including offices and websites) where the proposed goal
and rationale may be reviewed.
The overall final goal resubmission to the Caltrans DLAE, will include a summary of
information and comments received during this public participation process, including the City
of Tustin's responses and a determination on the impact the public comments had on the overall
goal, if any. This will be due by September 1 to the Caltrans DLAE. The DLAE will have a
month to perform a final review enabling the City of Tustin to implement the new overall annual
goal by October 1 of each year.
XV.
Contract Goals (§ 26.51)
The City of Tustin will use contract goals to meet any portion of the overall goal City of Tustin
does not project being able to meet by the use of 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 the overall goal that is not projected to be met through the use of
race-neutral means.
Contract goals will be established only on those DOT-assisted Contracts that have subcontracting
possibilities. Contract goals need not be established 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). The contract work items ·
will be compared with eligible DBE contractors willing to work on the project. A determination
will also be made to decide which items' are likely to be performed by the prime contractor and
which ones are likely to be performed by the subcontractor(s). The goal will then be
incorporated into the contract documents. Contract goals will be expressed as a percentage of
the total amount of a DOT-assisted contract.
Transit Vehicle Manufacturers ({}26.49)
If DOT-assisted contracts will include transit vehicle procurements, the City of Tustin will
require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on
transit vehicle procurements, to certify that it has complied with the requirements of 49 CFR Part
26, Section 49. The City of Tustin will direct the transit vehicle manufacturer to the subject
requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm.
City of Tustin Disadvantaged Business Enterprise Program
Page 11
XVII.
Good Faith Efforts (§26.53)
Information to be Submitted
The City of Tustin treats bidders'/offerors' compliance with good faith effort requirements as a
matter of responsiveness. A responsive proposal is meeting all the requirements of the
advertisement and solicitation.
Each solicitation for which a contract goal has been established will require the bidders/offerors
to submit the following information to: City of Tustin Department of Public Works, 300
Centennial Way, Tustin, CA 92780 no later than 4:00 p.m. on or before the fourth day, not
including Saturdays, Sundays and legal holidays, following bid opening:
1. The names and addresses of known DBE firms 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 f'urn participation
4. Written and signed documentation of commitment to use a DBE subcontractor whose
participation it submits to meet a contract goal;
5. 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.
Demonstration of Good Faith Efforts
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, which is attached.
The following personnel 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: Mr.
Tim D. Serlet.
The City of Tustin will ensure that all information is complete and accurate and adequately
documents the bidder/offeror's good faith efforts before a commitment to the performance of the
contract by the bidder/offeror is made.
Administrative Reconsideration
Within 10 days of being informed by the City of Tustin 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:
City of Tustin Disadvantaged Business Enterprise Program
Page 12
Mr. William A. Huston, City Manager
City of Tustin
300 Centennial Way, Tustin, CA 92680
Telephone: (714) 573-3010
E-Mail: whuston@tustinca.org
The Reconsideration Official will not have played any role in the original determination that the
bidder/offeror did not make 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
the Reconsideration Official to discuss the issue of whether it met the goal or made adequate
good faith efforts to do. The City of Tustin 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 Caltrans, FHWA or the DOT.
Good Faith Efforts when a DBE is Replaced on a Contract
The City of Tustin 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. The prime contractor is required to notify the RE
immediately of the DBE's inability or unwillingness to perform and provide reasonable
documentation.
In this situation, the prime contractor will be required to obtain the City of Tustin's 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, the City of Tustin's 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.
XVIII.
Counting. DBE Participation ({}26.55)
The City of Tustin will count DBE participation toward overall and contract goals as provided in
the contract specifications for the prime contractor, subcontractor, joint venture partner with
prime or subcontractor, or vendor of material or supplies. See Caltrans' Sample Boiler Plate
Contract Documents previously mentioned. Also, refer to XIII: "After Contract Award."
XIXo
Certification (§26.83(a))
The City of Tustin ensures that only DBE firms currently certified on the Caltrans' directory will
participate as DBEs in our Program.
City of Tustin Disadvantaged Business Enterprise Program
Page 13
XX. Information Collection and Reporting
Bidders List
The City of Tustin will create a bidders list, consisting of information about all DBE and non°
DBE firms that bid or quote on its DOT-assisted contracts. The bidders list will include the
name, address, DBE/non-DBE status, age of firm, type of work provided by firm and annual
gross receipts of firms.
The City of Tustin has incorporated a Bidders List form, identified as Appendix C, into Request
for Proposals and Invitation for Bids solicitation documents, which requires that bidders/offerors
provide all required information.
Monitoring Payments to DBEs
Prime contractors are required to maintain 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 any authorized representative of the City of Tustin, Caltrans or
FHWA. This reporting requirement also extends to any certified DBE subcontractor.
Payments to DBE subcontractors will be reviewed by the City of Tustin to ensure that the actual
amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the sChedule
of DBE participation.
Reporting to Caltrans
The City of Tustin will report final utilization of DBE participation to the DLAE using Exhibit
17-F of the Caltrans' LAPM.
Confidentiality
The City of Tustin will safeguard from disclosure to third parties information that may
reasonably be regarded as confidential business information, consistent with Federal, state, and
local laws.
William A. Huston, City Manager
City of Tustin
Date:
This Disadvantaged Business Enterprise PrOgram is accepted by:
Signature of DLAE
Date:
City of Tustin Disadvantaged Business Enterprise Program
Page 14
APPENDIX A
II.
III.
IV.
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.
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 which you 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.
Ao
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 talcing appropriate steps to follow up initial solicitations.
City of Tustm Disadvantaged Business Enterprise Program
Page 15
Be
Co
D,
Eo
Fo
Go
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,
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.
Providing interested DBEs with adequate information about the plan. s,
specifications, and requirements of the contract in a timely manner to assist them
in responding to a solicitation.
(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.
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.
Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or
insurance as required by the recipient or contractor.
Making efforts to assist interested DBEs in obtaining necessary equipment,
supplies, materials, or related assistance or services.
City of Tustin Disadvantaged Business Enterprise Program
Page 16
Ho
Effectively using the services of available minority/women community
organizations; minority/women contractors' groups; local, state, and Federal
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.
Vo
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 Tustin Disadvantaged Business Enterprise Program
Page 17
APPENDIX B
CITY OF TUSTIN
DBE PROGRAM
ORGANIZATIONAL CHART
CITY OF TUSTIN
CITY COUNCIL
William A. Huston
City Manager
Reconsideration Official
Tim D. Serlet
Director of Public Works/City Engineer
DBE Liaison Officer
Dana R. Kasdan
Engineering Service Manager
DBE Support Staff
Jerry Otteson
Associate Civil Engineer
DBE Support Staff
City of Tustin Disadvantaged Business Enterprise Program
Page 18
APPENDIX C
CITY OF TUSTIN
BIDDERS LIST
All bidders/proposers 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. The City of Tustin will use this information to maintain and update a
Bidders List to assist in the overall annual goal DBE goal setting process.
Firm Name:
Phone:
Address:
Fax'
Contact
Person:
No. of Years in Business:
Is the fn-m currently certified as under the new regulations (49 CFR Part 26)? ~YES
NO
Type of work/services/materials provided by firm:
What was 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
This form can be duplicated if necessary to report all bidders (DBEs and non-DBEs) information.
City of Tustm Disadvantaged Business Enterprise Program
Page 19