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| CITY COUNCIL AGENDA ITEM NO. 18
Meeting Date: November 12, 2002
Subject/Title: Annual Disadvantaged Business Enterprise (DBE) Goal for U.S. Department of Transportation (DOT) Contracting Opportunities
Submitted by: Finance: P. Ehler/K. Wahl
Engineering: B. Grewal
Approved by: John Stevenson, City Manager
Approve a Resolution approving the City of Brentwood 2002/2003 Disadvantaged Business Enterprise (DBE) Program goal of 3% for U.S. Department of Transportation (DOT) contracting opportunities.
On November 27, 2001, the City Council passed Resolution 2414 approving the City of Brentwood 2001/2002 Disadvantaged Business Enterprise (DBE) goal of 3.96% for U.S. Department of Transportation (DOT) contracting opportunities.
A Disadvantaged Business Enterprise (DBE) is a for-profit “small business concern” that is at least 51% owned and controlled by one or more socially and economically disadvantaged individuals. The DBE term includes the Minority Business Enterprise (MBE) and the Women-Owned Business Enterprise (WBE) programs. The certification of firms as eligible DBE’s is a decision made by the Caltrans Disadvantaged Business Enterprise Program.
Title 49 of the Code of Federal Regulations (CFR), Part 23 has been the Federal requirement that provides guidance for all DOT-assisted contracts. A September 9, 1999, letter from Caltrans notified all transportation agencies receiving or with approval to receive Federal-aid highway funds of new Federal DBE regulations and the proposed implementation for California pending approval of the Caltrans DBE Program Plan by the Federal Highway Administration (FHWA). On April 3, 2000, Caltrans received conditional approval of its DBE Program from FHWA and has authority to approve the DBE goals local agencies are required to develop under the new regulations.
Part 26 has replaced Part 23, Title 49 of the CFR, as the final rule binding on all recipients of DOT-assisted contracts. Previous DBE requirements (49 CFR 23) are now superseded by the new regulations (49 CFR 26), titled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. The provisions of Title 49, Part 26 apply to all Federal-aid funded transportation projects and require local agencies’ participation of disadvantaged business enterprises in local Federal-aid contracts. The provisions of Part 26 are to assure that firms competing for DOT-assisted contracts are not disadvantaged by unlawful discrimination.
Staff has established a Disadvantaged Business Enterprise Program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR, Part 26. The overall DBE participation goal is expressed as a percentage of all Federal-aid highway funds that an agency will expend in FHWA-assisted contracts in the forthcoming year. The overall goal is a determination of the level of DBE participation the City would expect absent the effects of discrimination. The City of Brentwood has been awarded federal funds for transportation projects and as a condition of receiving the funds is required to sign an assurance that the City will comply with 49 CFR, Part 26.
The goal established and approved by Caltrans for the City of Brentwood is 3% of the Federal financial assistance in FHWA-assisted contracts. The goal was derived using the following methodology:
Determining the Relative Availability of Ready, Willing and Able DBE Contractors
A list of DOT assisted contracts was developed from projects that are anticipated to be in the construction process in the next two years. The current Caltrans statewide list of certified DBE firms in each of the anticipated work code categories for transportation projects willing to work in Contra Costa County and/or statewide was compared to the corresponding statewide Census Bureau data for all firms in those work category codes. The resulting percentage was further refined by selecting only DBE firms in Northern California and comparing to the total number of firms statewide.
Calculating the Base Figure (Step 1)
Draft engineer’s estimates were used for Federal-aid projects that have been approved but are not yet under construction. Using the estimates, the projects were broken down into categories of work with percentages of the project assigned for each. The relative availability percentage for DBE’s, which was established previously, was applied to give the total dollar amount that could be expected to be subcontracted to DBE firms. In addition, projects were also factored in where a DBE could potentially be awarded the contract as a prime contractor.
Calculating the Overall Goal (Step 2)
Transportation projects that have been constructed during the three prior fiscal years were used to develop a list of bidders, subcontractors and suppliers that have historically bid on projects within the City of Brentwood. This data was also used to determine what has been our typical market area. The contract total amount was compared against the dollar amount to DBE’s to arrive at a DBE participation percentage. That number was then compared to the total dollars in all those projects combined. The average of Step 1 and Step 2 is the established DBE annual goal.
The amount of overall goal, the method used to calculate the goal and the breakdown of estimated race-neutral and race-conscious participation is required annually for FHWA-assisted contracts. The Disadvantaged Business Enterprise Program must be implemented and an annual overall goal must be established prior to submitting a “Request for Authorization” to proceed with each phase of a Federal-aid project and becoming eligible for Federal funding.
With Caltrans approval of the proposed DBE goal for 2002/2003, a notice of the proposed goal was published September 11, 2002, informing the public that the proposed goal and its rationale were available for inspection during normal business hours at the City of Brentwood Engineering Department for 30 days from the date of publication and that comments would be accepted for 45 days after the date of publication. Any comments received during this period were required to be documented, responded to, and forwarded to the Caltrans District Local Assistance Engineer. No comments have been received regarding the City of Brentwood DBE goal for 2002/2003.
The City of Brentwood will continue to carry out this program until a new goal setting methodology has been established or until significant changes to the DBE Program are adopted. All agencies must provide to Caltrans a proposed overall goal and goal setting methodology and other program updates each year.
The Disadvantaged Business Enterprise Program must be implemented and an annual overall goal must be established prior to submitting a “Request for Authorization” to proceed with each phase of a Federal-aid project and becoming eligible for Federal funding. If the goal is not approved by Caltrans the City will not be eligible to receive reimbursement of grant funds for federally funded transportation projects.
Exhibit A: Disadvantaged Business Enterprise Program, 2002-2003
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE CITY OF BRENTWOOD 2002/2003 DISADVANTAGED BUSINESS ENTERPRISE (DBE) GOAL OF 3% FOR U.S. DEPARTMENT OF TRANSPORTATION (DOT) CONTRACTING OPPORTUNITIES
WHEREAS, Federal regulations have been issued regarding Disadvantaged Business Enterprises (DBE); and
WHEREAS, previous DBE requirements (Title 49 Code of Federal Regulations [CFR] Part 23) are now superseded by the new regulations (Title 49 CFR Part 26), titled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs” as the final rule binding on all recipients of DOT-assisted contracts; and
WHEREAS, all Federal-aid recipients are required by Title 49 CFR Part 26, to develop and submit for approval an agency-specific Disadvantaged Business Enterprise Program; and
WHEREAS, a DBE Program has been prepared with a 3% DBE participation goal for all Federally funded transportation projects for the Federal fiscal year 2002/2003; and
WHEREAS, the DBE Program, the proposed goal and its rationale are described in Exhibit A; and
WHEREAS, the State Department of Transportation (Caltrans) has reviewed and approved the contents and elements of the program and finds that it meets the requirements of Title 49 CFR Part 26; and
WHEREAS, a notice of the proposed overall goal must be published, informing the public that the proposed goal and its rationale are available for inspection for thirty days following the date of the notice and comments accepted on the proposed goal for forty-five days following the date of the notice; and
WHEREAS, said notice was published on September 11, 2002 and no comments were received.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Brentwood that the 2002/2003 Disadvantaged Business Enterprise Program and the goal of 3% is approved.
BE IT FURTHER RESOLVED that for each successive Federal fiscal year a proposed overall goal and goal setting methodology and any other DBE Program updates will be submitted to Caltrans annually by June 1.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 12th day of November 2002 by the following vote:
DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM
CITY OF BRENTWOOD
I Definitions of Terms
The terms used in this program have the meanings defined in 49 CFR §26.5.
II Objectives/Policy Statement ( §§26.2, 26.23)
The City of Brentwood has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Part 26. The City of Brentwood has received Federal Financial assistance from the DOT, and as a condition of receiving this assistance, the City of Brentwood will sign an assurance that it will comply with 49 CFR Part 26.
It is the policy of the City of Brentwood to ensure that DBEs, as defined in 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 law;
To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs;
To help remove barriers to the participation of DBEs in DOT-assisted contracts; and
To assist the development of firms that can compete successfully in the market place outside the DBE Program.
The Grants Administrator and the Contract/Project Manager have been delegated as the DBE Liaison Officers. In their respective capacity the Grants Administrator and the Contract/Project Manager are responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City of Brentwood in its financial assistance agreements with the California Department of Transportation (Caltrans).
The City of Brentwood has disseminated this policy statement to the Mayor and 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 by publishing this statement in newspapers of general circulation as well as minority-focused and trade association publications.
III Nondiscrimination (§26.7)
The City of Brentwood 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 Brentwood 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 Brentwood will continue to carry out this program until the City of Brentwood has established a new goal setting methodology or until significant changes to this DBE Program are approved. The City of Brentwood will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June 1 of every year.
V Quotas (§26.43)
The City of Brentwood 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 Brentwood has designated the following individuals as DBE Liaison Officers: Karen Wahl, Grants Administrator, 150 City Park Way, Brentwood, CA 94513, (925) 516-5420, firstname.lastname@example.org, and Marna Huber, Contract/Project Manager, 150 City Park Way, Brentwood, CA 94513, (925) 516-5420, email@example.com. In that capacity, Karen Wahl and Marna Huber are responsible for implementing all aspects of the DBE program and ensuring that the City of Brentwood complies with all provisions of 49 CFR Part 26. This is available on the Internet at asdbuweb.dot.gov/main.cfm. Karen Wahl and Marna Huber have direct, independent access to the City Manager concerning DBE program matters. The DBELOs are assigned to the DBE program and devote a portion of their time to the program. An organization chart displaying the DBELOs positions in the organization is found in Exhibit A to this program.
The DBELOs are responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. Duties and responsibilities include the following:
1. Gathers and reports statistical data and other information as required.
2. Reviews third party contracts and purchase requisitions for compliance with this program.
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) and monitors results.
6. Analyzes the City of Brentwood’s progress toward goal attainment and identifies ways to improve progress.
7. Participates in pre-bid meetings.
8. Advises the City Manager and the City Council on DBE matters and achievement.
9. Chairs the DBE Advisory Committee.
10. Participates with the legal counsel and project director to determine contractor compliance with good faith efforts.
11. Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance.
12. Plans and participates in DBE training seminars.
13. Provides outreach to DBEs and community organizations to advise them of opportunities.
VII Federal Financial Assistance Agreement Assurance (§26.13)
The City of Brentwood will sign the following assurance, applicable to all FHWA-assisted contracts and their administration as part of the program supplement agreement for each project:
The recipient 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 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.).
VIII DBE Financial Institutions
It is the policy of the City of Brentwood 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 Directory (§26.31)
The City of Brentwood will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hq/bep.
X Overconcentration (§26.33)
The City of Brentwood 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 Brentwood identifies the need to address overconcentration, measures for addressing overconcentration will be submitted to the Caltrans District Local Assistance Engineer (DLAE) for approval. [Caltrans is FHWA’s primary recipient for administering the local agency program in California]
XI Business Development Programs (§26.35)
The City of Brentwood does not have a business development or mentor-protégé program. If the City of Brentwood 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 FHWA for its approval.
XII Required Contract Clauses (§§26.13, 26.29)
The City of Brentwood 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.
The City of Brentwood ensures that the following clauses or equivalent will be included in each DOT-assisted prime contract:
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 from the City of Brentwood. 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 Brentwood. 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 Brentwood. This clause applies to both DBE and non-DBE subcontractors.
XIII Monitoring and Enforcement Mechanisms (§26.37)
The City of Brentwood will assign a Resident Engineer (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 Brentwood will review the award documents for the portion of items each DBE and first tier subcontractors 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.
A preconstruction conference will be scheduled between the RE and the contractor or their representative to discuss the work each DBE subcontractor will perform.
Before work can begin on a subcontract, the local agency will require the contractor to submit a completed “Subcontracting Request,” Exhibit 16-B of the LAPM or equivalent. When the RE receives the completed form it will be checked for agreement of the first tier subcontractors and DBEs. 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. The “Subcontracting Request” will not be approved until any 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 “Local Agency Bidder DBE Information” will be compared to those listed in the completed Exhibit 16-I of the 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, which ever 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 or as provided in FPA.
The RE will give the contractor a blank Exhibit 17-F, “Final Report Utilization of Disadvantaged Business Enterprises,” 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 the 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 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 truck 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.
Providing evidence of DBE payment is the responsibility of the contractor.
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, the RE/Contract Manager 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:
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 f 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 the LAPM, “Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors” and will be submitted to the DLAE attached to the Report of Expenditures. The RE will compare the completed Exhibit 17-F to the contractor’s completed Exhibit 15-G of the LAPM, “Local Agency Bidder DBE Information,” and, if applicable, to the completed Exhibit 16-B, “Subcontracting Request.” The DBEs shown on the completed Exhibit 17-F 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 subcontractors, the work items or dollar figures are different from what was originally shown on the completed Exhibit 15-G 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.
The explanation will be attached to the completed Exhibit 17-F for submittal. The RE will file this in the project records.
The local agency’s Liaison Officer will keep track of the DBE certification status on the Internet 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 the City of Brentwood’s commitment to require bidders list information to be submitted to the City of Brentwood 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 Brentwood 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 Brentwood also will consider similar action under our own legal authorities, including responsibility determinations in future contracts.
XIV Overall Goals (§26.45)
Amount of Goal
The City of Brentwood’s overall goal for the Federal fiscal year FY 2002/2003 is the following: 3% of the Federal financial assistance in FHWA-assisted contracts. The goal is 100% race conscious.
To determine the relative availability of DBEs for construction contract work, the City of Brentwood developed a list of DOT assisted contracts which are anticipated to be in the construction process in the next two (2) years. A draft engineer’s estimate was developed for each project. A database was developed of all DBE firms willing to work in the statewide or within the County of Contra Costa, omitting firms located outside our typical market area. The census data was then used to calculate the total number of each of those business categories statewide. The number of DBE firms was divided by the total of those same category firms statewide to arrive at the percentage of DBEs performing that type work. (Step 1)
Next, roadway projects which have been constructed during the past three fiscal years were used to develop a bidder’s list, subcontractors and suppliers that have historically bid on projects within the City of Brentwood. (This data was used to determine our typical market area.) The percentage of DBEs available for each type of work was used to arrive at the DBE goal of 3%.
Breakout of Estimated Race-Neutral and Race-Conscious Participation
Since one of our future projects is potentially a project where a DBE prime might participate, that portion of the contract, along with the potential subcontractors, was included in the calculations for DBE participation. Using this data we concluded that the City of Brentwood DBE goal for FY 2002/2003 would be 3%. The goal is 100% race-conscious goals since the City of Brentwood has had no federally funded projects prior to this time on which to base a race-neutral goal.
Starting with the Federal fiscal year 2001, the amount of overall goal, the method to calculate the goal, and the breakout of estimated race-neutral and race-conscious participation has been required annually by June 1 in advance of the Federal fiscal year beginning October 1 for FHWA-assisted contracts. Submittals will be to the Caltrans’ DLAE. An exception to this will be if FTA or FAA recipients are required by FTA or FAA to submit the annual information to them or a designee by another date. FHWA recipients will follow this process:
Once the DLAE has responded with preliminary comments and the comments have been incorporated into the draft overall goal information, the City of Brentwood 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 Brentwood for 30 days following the date of the notice, and informing the public that comments will be accepted on the goals for 45 days following the date of the notice. The notice must be published in general circulation media and available minority-focused media and trade association publications. The notice will include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed.
The overall goal resubmission to the Caltrans DLAE, will include a summary of information and comments received during this public participation process and responses by the City of Brentwood. This will be due by September 1 to the Caltrans DLAE. The DLAE will have a month to make a final review so the City of Brentwood may begin using the overall goal on October 1 of each year.
XV Contract Goals (§26.51)
The City of Brentwood will use contract goals to meet any portion of the overall goal the City of Brentwood 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.
XVI Transit Manufacturers (§26.49)
If DOT-assisted contracts will include transit vehicle procurements, the City of Brentwood 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 Brentwood will direct the transit vehicle manufacturer to the subject requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm.
XVII Good Faith Efforts (§26.53)
Information to be Submitted
The City of Brentwood 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 construction contract goal has been established will require the bidders/offerors to submit the following information to the City of Brentwood Engineering Department, 150 City Park Way, Brentwood, CA 94513 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 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 firm 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 as Exhibit B.
The following personnel are 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: Balwinder S. Grewal, City Engineer and Marna Huber, Contract/Project Manager.
The City of Brentwood 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.
Within 10 days of being informed by the City of Brentwood 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: Dennis Beougher, City Attorney, City of Brentwood, 150 City Park Way, Brentwood, CA 94513; (925) 516-5440, firstname.lastname@example.org. The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make documented 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 so. The City of Brentwood 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 Brentwood 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 Brentwood’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 Brentwood Engineering Department 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 Brentwood 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 the Sample Contract Documents, Exhibit C, and also refer to Section XIII, “After Contract Award.”
XIX Certification (§26.83(a))
The City of Brentwood ensures that only DBE firms currently certified on the Caltrans’ directory will participate as DBEs in our program.
XX Information Collection and Reporting
The City of Brentwood will create a bidders list, consisting of information about all DBE and non-DBE firms that bid or quote on DOT-assisted contracts. The bidders list will include the name, address, DBE/non-DBE status, age, and annual gross receipts of firms.
Initially, the results from a Caltrans’ contractor survey will be used to start a bidders list. Further data gathering will be accomplished by a public notice advertised annually to solicit applicable consulting firms and contractors who participate in DOT-assisted contracts. Also a survey of consulting firms and contractors, that were awarded DOT-assisted contracts in the past, will be used to obtain bidder list data.
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 Brentwood, Caltrans or FHWA. This reporting requirement also extends to any certified DBE subcontractor.
Payments to DBE subcontractors will be reviewed by the City of Brentwood 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 Brentwood will report final utilization of DBE participation to the DLAE using “Final Report Utilization of Disadvantaged Business Enterprises (DBE), First Tier Subcontractors,” Exhibit 17-F of the Caltrans’ LAPM.
The City of Brentwood will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local laws.
John E. Stevenson, City Manager Date
This Disadvantaged Business Enterprises Program is accepted by:
Signature of DLAE Date
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. 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.
III. 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.
IV. 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.
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, 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 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 Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441