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HomeMy WebLinkAboutCC 6 MBE PROGRAM 09-21-81A ENDA · · Z'~I i~ DATE: SE:PT'IAU~_,A 14, 1981 CONSENT CALENDAR No. 6 9-21-81 Inter-Corn TO: FROH: SUBJECT: ESTm~~OF C~T~OFTUS~NM~NO~TYSUSn~SS ENT~SE (MSE) It is reu~ti,~_nded that the City Council, at their meeting of Sept. 21, 1981, by minute order approve and adopt the attached "City of Tustin Minority Business BACKG~/~D: Recent revisions in Federal regulations now require that cities applying for Department of Transportation FAI3 funding must first prepare and obtain appro~ul of their own Minority Business Enterprise (MBE) Progr~. The Engineering Division is in the process of finalizing FAU plans and specifications for the improvement of Irvine Blvd. between Yorba St. & Red Hill Ave. consisting of center ~dians, traffic signals, traffic signal interconnect, pavement rehabilitation and pavement overlay. The deadline for this F~3 project s,,~ittal is Oct. 1, 1981. Ail indications fr~ Caltrans are that if w~ m~et this deadline, we will most likely get funding. The project in~lves approximately $725,000.00 in U.S. Department'of Transportation FAU funds. This is probably the last of the FAU progr~, since it appears funding will be phased out in 1983. The attached MBE Progr~ must be adopted prior to Oct. 1, 1981 for the City to be elegible for funding. The progr~ will only be utilized on the Irvine Blvd. project because this is the only project to be submitted and also due to the pb_~ing out of the FAU progr~. Under the previous ~E regulations, the possibility existed that a city could not award to the low bidder if said low bidder did not meet MBE goals. Under the revised regulations, proposed herein for adoption, the contract may be awarded to a low bidder not meeting the MBE goals if the contractor can show that he has made a good faith effort to do so. Staff has reviewed the attached MBE progr~ with, and has incorporated ~hanges suggested by, the City Attorney's office. Attad~ed also is a mem~ with on the MBE progr~ from the City Attorney's office. MINORITY BUSINESS ENTERPRISE PROGRAM S~Fr~BER 14, 1981 PAGE 2 PAST HISTORY: Sept. 18, 1978 - City Council adepts resolution requesting the Orange County Transportation Comnission to include within the Orange County FAU progra~ the development of Irvine Blvd. May 4, 1981 - City Council, by minute order, adopts center median master plan for IrvineBlvd. between ProspectAve. & Newport Ave. June 15, 1981 - City Council, by minute order, adopts center n~dian lar~seaping plan consisting of stamped concrete with cut-outs at 100'i on center for tree wells. D~/.R A. WICK ASSISTANT CITY E~GINEER db At tadmments cc: City Clerk / City Attorney t98i an~ ~e ~ro~sed ~li~- s~ate~nt, of ~e City cha~ge~ be ~ ~ ~he pro~sed Pr~r~ wh~ we ~lieve will F~ 9~an~. if Tu~t~ des=res t0 p~t~=~pate ~ ~he FAU grant re~-t ~o ~ ~ro~ent project on Z~ine Bo~l=va~d~ cc: R~ ./ CITY OF TUSTIN MINORITY BUSINESS PROGRAM Policy Statement It is the policy of the City of Tustin to utilize Minority Business Enterprises in all aspects of contracting to the maximum extent feasible. This policy is fully described in the City of Tustin Minority Business Program which constitutes City policy and a commitment to substantially increase Minority Business and Female Business Utilization. This policy includes any program or facility funded wholly or in part by any U.S. Department of Transportation modal element. The City of Tustin, its contractors and subcontractors which are the recipients of Federal-aid funds, agree to ensure that minority business enterprises have the maximum opportunity to participate in. the performance of contracts and subcontracts. In this regard, the City of Tustin and all of its contractors and subcontractors will take all reasonable steps in accordance with 49CFR23 to ensure that minority business enterprises have the maximum opportunity to compete for and perform contracts. RObert S. Ledendecker Director of Public Works/ City Engineer II. Minority Business Enterprises (MBE) Liaison Officer Mr. Dale A. Wick, Assistant City Engineer is the MBE Liaison Officer for the City until such time that a new position of Administrative Aide is filled. At that time the Administrative Aide will be appointed as MBE Liaison Officer for the City. The MBE Liaison Officer shall report to the Director of Public Works/City Engineer and will be assigned such staff as is necessary to fully implement the provisions of 49CFR Part 23 and such other MBE programs as may be required. The reporting structure and duties of support staff are shown on Exhibit "A" attached. III. Duties of the MBE Liaison Officer The MBE Liaison Officer shall develop, manage and implement the MBE Program on a day-to-day basis. Liaison Officer shall: The Develop and carry out technical assistance programs for MBE's. Arrange solicitations, time for the presentation of bids, quantities, specifications and delivery schedules, so as to facilitate the participation of MBE's. Where changes are found necessary to increase MBE utilization, they will be made in consultation and cooperation with the functional unit involved. -2- Provide such assistance as the City is capable of providing to MBE's in overcoming barriers, such as inability to obtain bonding or financing. Carry out information and communication programs on contracting opportunities in a timely manner. Programs shall be bilingual where appropriate. Investigate the full extent of services offered by banks owned and controlled by minorities or women. Ensure that, where feasible, the City utilizes said banks. Utilize a listing of MBE's certified by Caltrans. Said listing to be made available to all bidders on City of Tustin projects. Such listing shall include, at a minimum, the following information: Name, address, telephone number, ethnic and/or sexual ownership, type of work performed by firm. Approve any removal and/or substitution of a Minority Business Enterprise during contract performance. Prior to approval of substitution and/or removal of MBE, prime contractors will be required to prove performance of good faith efforts to replace the MBE with another eligible MBE. Establish overall City goals for both minority and female business enterprises. Goals shall be evaluated on September 30 of each year and adjusted as necessary. -3- Establish individual project goals for minority and' female business enterprises. All projects with an estimated cost of $100,000 or more will be evaluated for the appropriateness of goals. IV. Ve Maintain such documentation as is necessary to verify the City of Tustin performance of the above activities. Establishment of Overall City Goal The City of Tustin will establish an overall goal for its use of MBE's. This goal will be updated annually as of September 30, of each year. The City's overall goal and the methodology used to determine the goal for the fiscal year, beginning October 1, 1981, .is shown on Exhibit "B" attached. Contract Goals Ail projects with an estimated value of $100,000 or more, receiving U.S. DOT funds, will be evaluated for the appropriateness of MBE goals. Projects will be evaluated and goals established, utilizing the following criteria: Size of project.~ Opportunities for MBE's as subcontractors, vendors, suppliers. Minority population of county in which work is to be performed. -4- Existing MBE Goals being utilized in the project area by other State, Federal or local jurisdictions. Availability of MBE's. Past experience on projects similar to the project being evaluated. Such other factors as may effect the utilization of MBE's. Each project will be evaluated in conformance with the above criteria. Complete documentation will be retained for every project so evaluated. Contracts which do not contain Specific goals will contain the following provisions: (1) "Policy. It is the policy of 'the City of Tustin that Minority Business Enterprises as defined in 49 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal funds under this agreement. Consequently, the MBE requirements of 49 CFR Part 23 apply to this agreement." (2) "MBE Obligation. (i) The City of Tustin or its contractor agrees to ensure that minority business -5- VI. enterprises as defined in 49 CFR Part 23 have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard, the City of Tustin or its contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that minority business enterprises have the maximum opportunity to compete for and perform contracts. The City and their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of DOT-assisted contracts." MBE use on projects without goals will be reported to the Liaison Officer and will be included in City reports to Caltrans and to the appropriate DOT element. MBE use on such projects will be counted toward attainment of the overall City goal. Public Notification At the time of submittal of this program to the U.S. Department of Transportation, the City of Tustin will publish a notice in both minority and majority local media. Said publication shall: Announce the City of Tustin overall goals. Inform the public that the goals and a description of how they were set are available for public inspection. Inform the public that both U.S. DOT and the City of Tustin will accept comments on the goals for 45 days from the date of the notice. The notice shall advise interested parties that comments are for informational purposes only. In addition to the foregoing, interested minority and majority contractor organizations will receive direct mailings of this complete program with a request that they provide written comments to the City of Tustin on ~this program. VII. Contract Procedure This plan shall be implemented through the utilization of a contract special provision which is attached hereto as Exhibit "C". These procedures require bidders to submit the names of MBE subcontractors and suppliers, a description of the work each is to perform or material to be furnished, and the dollar value of each MBE subcontract. -7- VIII. MBE Notification Ail MBE's on the Caltrans certified MBE listing will receive appropriate notification of projects scheduled to be advertised. MBE assistance centers will also receive notification. All assistance centers funded by the U.S. Department of Commerce (Minority Business Development Administration) and designated as State Plan Rooms will receive complimentary plans and specifications for projects withfn their geographical area of responsibility. IX. Minority and Female Owned Banks The City of Tustin will make available to all contractors a list of banks owned and controlled by minorities or females. This list will be available during pre-bid and pre-construction conferences (if scheduled). Me Selection Criteria for Contracts with MBE Goals Every contract containing MBE goals shall be evaluated by the MBE Liaison Officer or his/her designee to ascertain bidding contractor's efforts to attain the MBE goals. The award of any project with MBE goals must be concurred with by the MBE Liaison Officer or his/her designee before said contract may be awarded. -8- Should there be disagreement between City of Tustin functional units concerning contractor's efforts to attain contract goals for MBE participation, the matter shall be referred to the Director of Public Works/City Engineer or his/her designee for final determination. Competitors that fail to meet the MBE goals and fail to demonstrate sufficient reasonable efforts shall not be eligible to be awarded the contract. Any contracts that contain MBE goals, pursuant to this policy, will be monitored on an ongoing basis by project personnel during the course of construction. The MBE Liaison Officer' is to be immediately advised of any circumstances wherein contractor compliance with the MBE provision is questionable. The contractor shall submit a final report for each project with MBE goals which includes total payments to the prime contractor as well as payments the prime contractor has made to MBE subcontractors, vendors and suppliers. If the report indicates the prime contractor has not achieved the project goals, project personnel shall attach an evaluation, in narrative form, of the reasons for failure to attain the goals and any corrective action that was taken. -9- Prime contractors will be required to notify City of Tustin personnel of any situation in which regularly scheduled progress payments are not made to MBE subcontractors, vendors or suppliers. XI. Set-Asides If determined necessary by the MBE Liaison Officer, the City of Tustin will consider the use of MBE set-asides as a tool to achieve the overall City goal. XII. Counting MBE Participants The City of Tustin, its contractors and subcontractors shall count MBE participation in accordance with the provisions of Section 23.47, Title 49 of the Code of Federal Regulations. XIII. Records and Reports The MBE Liaison Officer shall maintain such records and provide such reports as are necessary to ensure full compliance with this policy. Such records and reports shall include, as a minimum, the following information: Procedures which have been adopted to comply with this MBE policy. Awards to MBE's. Awards to majority contractors. Final project reports concerning MBE utilization. -10- XIV. Such other data as is needed to fully evaluate City of Tustin compliance with this program. The MBE Liaison Officer shall submit reports to Caltrans and to U.S. DOT elements as required. reports will include: These Number and dollar value of contracts awarded to MBE's. Description of general categories of contracts awarded to MBB's. The percentage of the dollar value of all contracts awarded during the quarter which were awarded to MBE'S. Indication as to the extent of which the percentage met or exceeded the overall City goal. Reports shall be broken down separately by ethnic grouping and sex. MBE Listing The City of Tustin will utilize a listing of firms certified by Caltrans to be Minority Businesses in accordance with the DOT Order. This listing will be developed and maintained in accordance with Sections 23.51, 23.53, 23.55 and 23.87 of 49 CFR. This listing -11- XV. shall be made available to prospect, ive contractors at no charge. Contractors will be permitted to rely upon the authenticity of firms listed in this directory.' A contractor desiring to use a MBE not included in the Caltrans certified listing will be allowed to do so, but will be required to provide the appropriate certification from the MBE before such participation is counted towards award of the project. Complaints Any complaints received by the City of Tustin concerning this program will be investigated by the City. The City of Tustin will endeavor to resolve said complaints within 90 days of receipt by the MBE Liaison Officer. The appropriate DOT element will be furnished a copy of the complaint and invited to participate in the investigation/resolution. The DOT element will receive a complete investigative report on the complaint and will be requested to concur in the proposed disposition of said complaint. Contractors will be directed to notify the City of Tustin of any complaints they may receive concerning this program. -12- August 26, 1981 Mr. Stanley Higgins Local Assistance Engi --~cr Caltrans, District No. 7 P.O. Box 2304 Los Angeles, CA 90051 RE: ES~A~.ISH~NT OF OVER~r.r. MBE GOAL FOR THE CITY OF TUSTIN Dear Mr. Higgins: The following information and re~,,,=ndation is hereby submitted for your review and approval of an overall MBE goal for the City of Tustin for the fiscal year beginning Oct. 1, 1981. Ina-~mu~h as the only ~roject involving Federal funds proposed for construction during this period will be the Irvine Blvd. FAU project, ~ propose to evaluate this project and expand it to be the overall MBE goal for the City of Tustin. TYPE OF FRfl]ECT The work will co,mist of traffic signals, interconnect conduit, pavement rehabilitation, overlay, raised center medians and landscaping. ® SIZE OF ~ The construction cost estimate for this project is $838,800.00. 'It is estimated that the project is divided into the following construction areas and percentage of the total project. · '~'~ AMOUNT PERC~'SX~ A. Traffic signals & related work $450,000 54% B. Pavement rehabilitation & overlay 240,500 29% C. Concrete m~dian curbs 41,300 5% D. St~,~ed concrete ~dian paving 60,000 7% E. r~ndscaping 47,000 5% IO~ALS $838,800 100% ® OPPO~TJNITIES FOR MBE'S The largest percentage of the project consists of traffic signal work (Item A). The remaining items (B thru C) would usually require specialty contractors. City Center 300 Centennial Way EXHIBIT "5" Tustin, California 92680 (714) 544-8890 EST~.IS~WENT OF (NEl~r.n MBE GOAL FOR THE CITY OF TUSTIN August 26, 1981 Page 2 MINORIT~ POPUIATI~ T~e minority population of the City of Tustin was 20.6% and the minority population of the County of Orange was 22.2%, based on the 1980 census. AGENCY MINORITY BUSINESS FEM~n~. B~SINESS OVEPAL5 ~OAL Caltrans 6.5% 2.6% 9.1% City of Anaheim 4.9% 1.6% 6.5% PAST E~ERIENCE Due to the requirement that the contracto~ perfom over 50% of the work with his ~n forces, the prim~ co~tractor for the project w~uld have to be the signal contractor (Item A) and the remaining items of work (Ite~ B thru E) would be subcontract work. It has been our e~perience in this type of a project that the prime contractor would probably not subcontract Item B to a small MBE and there ar~ no known MBE's specializing in Item D. Consequently, it appears that Items C and E could be subcontracted to MBE's. AVAIIAB~ OF There are no MB~ contractors certified in traffic signal work indicated on the Caltrans MBE list dated Aug. 5, 1981. There are a total of 27 MBE contractors in ~he Orange County/Los Angeles County area specializing in concrete work (Item C) indicated on said Caltrans ~E list. Of these 27 contractors, 2 of them are listed as female contractors. There a total of 11 MBE contractors in the Orange County/Los Angeles County area specializing in lam4scaping (Item E) indicated on said Caltrans list. Of these 11 contractors, 4 of them are listed as female contractors. ~TION It~mm C and E represent 10% of the total project. Item C (median curb) could require the use of an automatic curb extrusion mad~ine, whid~ equipment may not be available to a sm~ll Mmm.. Thus it is re~,.,=nded that the MBE goal for this project be adjusted downward to reflect the fact than an MBE may not be the successful bidder on Item C. Item B includes clearing & grubbing a~ounting to about 1.5% of the project. The prime contractor could award this work to a sm~ll MBE to m~et the project goals. Therefor, it is recc~rended that the MBE goal be set as follows: MINORITY BUSINESS F~ALE ~JSINESS OVE~r.r. GOAL 5.5% 1.0% 6.5% Very truly yours, r~r.~ A. WICK ~ LIAI~DN OFFI(~R db D-XVIII - MINORITY BUSINESS ENTERPRISE R~QUIR~WENTS Minority Business ~lter~rise - This project is subject to Part 23, Title 49, C°de of Federal Regulations entitled "Participation by Minority Business Enterprise in Department of Transportation Programs". Portions of the regulations are set forth in Section D-XVI of these general Drovi.~ion.~, and the regulation~ in their entirely are incorporated herein by this reference. Bidders shall be fully informed respecting the requirements of the regulations; particular attention is directed to the following matters: (a) A Minority Business Enterprise (MBE) must be a small business concern as defined pursuant to Section 3 of U.S. Stall Business Act; (b) An MBE may participate as a prime contractor, subcontractor, joint venture partner with a prime or subcontractor, or vendor of mterial or suppl les; (c) An MBE joint venture partner ~_st be responsible for a clearly defined portion of the work to be performed in additio~ to satisfying requirements for ownership and control. The MBE joint venturer m,-~t submit Schedule B of the Regulations. (d) An MBE must perfom a commercially useful function, i.e., must be responsible for the execution of a distinct element of the work and must carry cut its responsibility by actually performing, managing and supervising the work; (e) Credit for an MBE vendor of mterials or supplies is limited to 20 percent of the ~mount to be paid to the vendor for the mterial unless the veDa]or manufactures or substantially alters the goods; (f) An MBE must be certified before credit my be allowed toward the MBE goal. The Department's MBE Directory identifies MBEs which have been certified and others which my qualify for certification. The MBE directory may be obtained from the City of Tustin. (g) Nonccmpliance by the Contractor with the requirements of the regulations constitutes a breach of this contract and may result in termination of the contract or other appropriate remedy for such breach. (h) Bidders are encouraged to utilize services offered by banks owned and controlled by minorities or wc~mn. MBE Goals for this Project - The City has established a total Minority Business Enterprise (MBE) participation goal of __ percent for this project cc~posed of __ percent to __ percent MBEs owned and co~trolled by minorities and percent to __ percent owned and controlled by women. It is the bidder's responsibility to make a sufficient portion of the work available .to subcontractors and suppliers and to select these portions of the work or mterial needs consistent with the available MBE subcontractors and suppliers, so as to assure meeting the goal for MBE participation. D-11 EXHISIT "C" D-XIX - SUBMISSIC~ OF MINORIT~ ~3SINESS ENTERPRISE INFOI~MATICN, Ak~RD AND EXECUTION OF CON-'re%CT General -The bidder's attention is directed to the provisions in Section 3, "Award and Execution of Contract", of the Standard Specifications and these special provisions for the requirements and conditions c~%cerning submittal of ~E information, award and execution of contract. MBE Information - The apparant successful bidder (iow bidder) shall s,,~it MBE information to the office at which bids w~re received no later than 5 working days after the bid opening unless a later time is authorized by the City. Other bidders need not submit MBE information unless requested to do so by the City: When such request is made, the MBE information of such bidder shall be submitted within 5 days, unless a later time is authorized by the City. The information shall include: (1) N~nes of MBEs to be used, with a complete description of work or supplies to be provided by each and the dollar value of each such MBE · transaction; (Note: MBE subcontractors for signal and lighting items, if there are such items of work, must have been nan~d in the bid - see section entikled "Subcontracting" of these general provisions.) (2) A "Minority and Female Business Enterprise Questionnaire" (Schedule A) for each MBE not already certified. (3) A Schedule B for each MBE joint venturer. Bidders whose sukmittal in (1) above indicates they will meet the stated MBE goal need not submit any further MBE information, unless the City in its review finds that the goal has not been m~t in which case additional information will be requested by the City. The additional information may be requested to clarify claimed MBE participation, add MBE participation, or demonstrate that a good faith effort was rode to meet the MBE goal. Such information shall be submitted promptly upon request by the city. It is the bidder's responsibility to meet the goal of MBE participation or to provide information to establish good faith efforts to do so. Such information should include the following: (4) The n~res and dates of advertisement of each newspaper, trade paper, and minority-focus paper in which a request for MBE participation for this project was placed by the bidder; (5) The names and dates of notices of all certified MBE's solicited by direct mail for this project; (6) The items of work for which the bidder requested subbids or mterials to be supplied by MBE's; (7) The names of MBE's who submitted bids for any of the work indicated in (6) above which were not accepted, the name of the subontractor or supplier that was selected for that portion of work and the reasons for the bidder's d~oice. (If the reason was price, give the price bid by the rejected MBE and the price bid by the selected subcontractor or supplier); D-12 (8) Assistance that the bidder has extended to MBEs identified in (7) above to rem~ the deficiency in the MBE'S subbids. (9) Any additional data to support a demonstration of good faith effort; such as contacts with MBE assistance agencies. Award of Contract - The award of contract, if it be awarded, will be to the lowest responsible bidder whose proposal cc~plies with all the requirements prescribed and who has m~t the goal for MBE participation or has demonstrated, to the satisfaction of the City, good faith effort to do so.' Meeting the goal for MBE participation or demonstrating, to the satisfaction of the City, good faith efforts to do so is a condition for being eligible for award of contract. MBE Becords - The Contractor shall maintain records of all subcontracts entered into with certified MBE and female subcontractors and records of mterials purchased from certified MBE and female suppliers. Such records shall shc~ the ~ and business address of each MBE and female subcontractor or vendor and the total dollar amount actually paid each MBE and female subcontractor or vendor. Upon cc~pletion of the contract, a st,,.,ery of these records, shall be prepared and certified correct by the Contractor or his authorized representative, and shall be furnished to the Engineer within 30 days after acceptance by the Director. Subcontracting - Attention is directed to the provisions in Section 8-1.01, "Subcontracting" and Section 2 "Proposal Requir~nts and Conditions" of the standard specifications and, in addition, Section D-XIX, "Submission of Minority Business Enterprise Information, Award and Execution of Contract" of these general provisions. The MBE information furnished under Section D-XIX is in addition to the subcontractor information required to be furnished under said Section 8-1.01. In accordance with the Federal MBE regulations [Section 23.45(f)(2) Part 23, Title 49 CFR]; 1. No substitution of an MBE subcontractor shall be made at any time without the written consent of the City and; 2. If an MBE subcontractor is unable to perform succesfully and is to be replaced, the contractor will be required to make good faith efforts to replace the original MBE subcontractor with another MBE subcontractor. The "Subletting and Subcontracting Fair Practices Act" (Government Code Section 4100-4113, inclusive) applies to the items of signals and lighting and requires subcontractors, if used for such work, to be listed in the prime contractor's proposal; prohibits the substitution of subcontractors, except as therein authorized; and provides for penalties for violations of the Act. Bidders are cautioned that this listing requirement is in addition to the requirement to D-13 provide a list of MBE subcontractors after the opening of the prc~osals. Eaoh bidder shall, with respect to the items of signals and lighting, list in his proposal: 1. The name and the location of the pla~e of business of each sub- contractor who will perform work or labor or render services to the prime contractor in or about the construction of the work or improvement, or a subcontractor licensed by the State of California who, under subcontract to the prime contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans end specifications, in an amount in excess of one-half of one percent of the prime contractor's total bid. 2. The portion of the work which will be done by each such subcontractor. Only one subcontractor shall be listed for each such portion. A sheet for listing the subcontractors, as required by the Subletting and Subcontracting Fair Practices Act, is included in the proposal. D-14