HomeMy WebLinkAboutRES.689.12-16-1991 BILL NO. 91-261 RESOLUTION NO. VJ ��
A RESOLUTION ADOPTING THE 1992 DISADVANTAGED BUSINESS
ENTERPRISE PROGRAM FOR THE CITY OF CAPE GIRARDEAU AND
AUTHORIZING THE CITY MANAGER TO SUBMIT SAME TO THE
FEDERAL AVIATION ADMINISTRATION
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRAR�EAU,
MISSOURI , AS FOLLOWS:
ARTICLE 1 . The City Council of the City of Cape Girardeau,
Missouri , hereby adopts the City of Cape Girardeau Disadvantaged
Business Enterprise Program for the Federal Fiscal Year 1991 . The
City Manager, for and on behalf of said City Council , is hereby
authorized and directed to submit said Program to the Federal
Aviation Administration. A copy of said Program is attached to
this Resolution and made a part hereof .
PASSED AND ADOPTED THIS �,DAY OF / , 19�•
�'
�� � ,
� , , ��
Francis E. Rhodes , Mayor
ATTEST:
Jul A. Dale, Deputy City Clerk
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CITY OF CAPE G[RARDEAU, MISSOURI
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
For The Federal Fiscal Year 1992
,
Submitted By : Approved By:
J. Ronald Fischer Authorized Representative
City Manager Central Region
Cape Girardeau, Missouri Department of Transportation
DI�PAR'fMF.,N'I' Of� 'CRANSPOR"I'A'I'ION
49 CFR PART 23
DISADVANTAGEI� E3USINESS ENTERPRISE PROGRAM
TABLE OF CONTENTS
Statement of Policv . . . . . . . . . . . • • • • • • • . . . 1
DBE Participation . . . . . . . . . . . . . . . . . . . . . . 2
Long Term Ex.clusive Leases . . . . . . . . . . . . . . . . . 3
Lessees P�fust Avoid Discrimination . . . . . . . . . . . . . . 3
Leasing Goals . . . . . . . . . . . . . . . . . . . . . . . . 4
DBE Liaison Oi f icer . . . . . . . . . . . . . . . . . . . . . 5
DBE Directory . . . . . . . . . . . . . . . . . . . . . . . 6
Procedures for DBE Certification . . . . . . . . . . . . . . 7
Uniform Certification Standards . . . . . . . . . . . . . . . 8
On-Site Certification Visits . . . . . . . . . . . . . . . . 9
Decertification Procedures . . . . . . . . . . . . . . . . . 10
DBE Def inition . . . . . . . . . . . . . . . . . . . . . . . 11
Determination of Business Size . . . . . . . . . . . . . . . 12
Socially and Economically Disadvantaqed Individuals . . . . . la_
Challenge Procedures . . . . . . . . . . . . . . . . . . . . 15
Eligibility Standards . . . . . . . . . . . . . . . . . . . . 16
DBE Percentages ar.d Goals . . . . . . . . . . . . . . . . . . 19
DBE Goal . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Overall DBE Goal t�7ethodology . . . . . . . . . . . . . . . . 21
Counting DBE Farticipation Toward I�ieeting the Gcal . . . . . 22
Procedures for Naning DBE's In Bids . . . . . . . . . . . . . 2a
Award Selection Procedure . . . . . . . . . . . . . . . . . . 25
DBE Set-Asides . . . . . . . . . . . . . . . . . . . . . . . 26
Methods to Require Compliance with DBE Requirements . . . . . 27
Required Clauses for DOT/FAA-Assisted Contracts . . . . . . . 31
Appendix A - DBE Information Sheet . . . . . . . . . . . . . 32
Appendix B - Af`idavit . . . . . . . . . . . . . . . . . . . 33
Appendix C - Leasing Goals . . . . . . . . . . . . . . . . . 34
� Appendix D - DBE Goal for Cape Girardeau Municipal Airport . 35
Appendix E - DBE Goal I�'ethodology . . . . . . . . . . . . . . 36
i
D[SADVANTAGED f3USINESS ENTERPRISE PROGRAM
FOR THL:
CITY OP CAPE GIRARDEAU, MISSOURI
STATEMENT OF POLICY
It is the policy of the City oi Cape Girardeau that Disad-
vantaged Business Enterprises (hereinafter referred to as "DBE" ) as
defined in 49 CFR Part 23 (hereinafter referred to as "the
regulations , " ) shall have the maximum opportunity to participate in
the performance of all DOT-assisted contracts awarded by the City
of Cape Girardeau and that DBE requirements of the regulations
shall be included in and become a binding part of such contracts
awarded to contractors , subcontractors , vendors , and other
entities . rurther, it is the policy of tne City of Cape Girardeau
that it shall not discriminate on the basis oi race, color,
national origin, or sex in the award and performance of all DOT-
assisted contracts . This policy and DBE program covers only the
City of Cape Girardeau.
,
J. Ronald Fischer
City Manager
Date
1
DBE PAR"TICIPATION
The City of Cape Girardeau will require its contractors to
ensure that Disadvantaged Business Enterprises as defined in 49 CFR
Part 23 will 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, contractors shall take all necessary and reasonable steps
in accordance with 49 CFR Part 23 to ensure that Disadvantaged
Business Enterprises have the maximum opportunity to compete for
and perform contracts . The City of Cape Girardeau will ensure
their contractors shall not discriminate on the basis of race ,
color, national origin, or sex in the award and performance of DOT—
assisted contracts .
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LONG TERM EXCLUSIVE LEASES
The City of Cape Girardeau shall not exclude DBE's from
participation in business opportunities by entering into long term
( five years or over) , exclusive agreements with Non-DBE's for the
operation of major transportation related activities or major
activities for the provision of goods and services to the facility
or the public on the facility, as set forth in 49 CFR Part 23 .
This requirement will not necessitate the reformation of any
existing long-term leases , but the City of Cape Girardeau shall
encourage their lessees to afford opportunities for DBE sub-leases .
New long-term exclusive leases may be permitted by the DOT if
justification results in an exemption from the prohibition and if
the long-term exclusive lease provides opportunities for DBE sub-
leasing. Long-term exclusive leases caith Non-DBE's are forbidden,
except under the followirg circumstances : ( 1) conditions warrant
an exemption, granted by the Secretary or the Secretary's designee
and the lease includes sub-leasing opportunities for DBE's ; or ( 2)
with regards to airport leasing, the lessee is an airline; cr ( 3 )
� the long-term lease is exclusive only to a portion of the airport
and not to the entire facility. The City of Cape Girardeau will
request exemptions from DOT from this policy prior to awarding tne
lease .
3
LESSEES MUST AVOID DISCRIMINATION
Lessees are not required to establish an affirmative DBE
program, however they are required to practice nondiscrimination in
their activities .
I_EASING GOALS
See Appendix C.
Due to the limited nature of the leasing opportunities
available, the City of Cape Girardeau is not establishing any
leasing goals at this time. If in the future there are
opportunities for leasing of aviation service oriented enterprises ,
the City of Cape Girardeau will actively solicit DBE controlled
firms and goals may be established.
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4
DBE LIAISON OFFICER
The City Manager has designated the following named person as
the DBE Liaison Officer for airport related projects . The Liaison
Officer shall be responsible for developing, managing, and
implementing the DBE program on a day-to-day basis , and who shall
report directly to the City Manager:
Name: A�ark J. Seesing
Title : Airport Manager
Airport: Cape Girardeau Municipal Airport
Address : P.O. Box 617 , Cape Girardeau, i�i0 63702-0617
Phone : ( 314 ) 334-6230
The DBE Liaison Officer, in conjunction with the City of Cape
Girardeau Purchasing Department, GJ�'10 in turn reports to the
Director of Finance , shall develop and use affirmative action
techniques in accordance with the City of Cape Girardeau Purchasing
Procedures to facilitate DBE participation in ccntracting
activities in relation to all DOT/FAA-assisted contracts , including
professional , technical , consultant, or managerial services ;
construction; and the procurement of materials , supplies ,
personnel , facilities , and equipment. Tnese technia,�.�es will
, include:
l . Arranging solicitations , time for presentation of bids ,
quantities , specifications , and delivery schedules so as
to facilitate the participation of DBE's .
2 . DBE's who experience difficulty in obtaining bonding,
financing, or need technical assistance will be referred
to the City of Cape Girardeau Economic Developm.er.t.
3 . Carrying out inicrmation and ccmnunicaticns programs on
contracting procedures and specific contracting
opportunities in conjunction with the City of Cape
Girardeau Department of Purchasing.
5
DBE DIRECTORY
The City of Cape Girardeau will be utilizing a listing of
DBE's as published by the Missouri Highway and Transportation
Department, P.O. Box 270 , Jefferson City , l�fissouri 65102 . A copy
of this listing will be available in the office of City Engineering
and will provide the majority of DBE's to be utilized in the City's
general operations . The only exceptions will be in the specific
airport-related services and supplies at which time DBE's can be
sought and utilized whenever there is a DBE available.
The City of Cape Girardeau, Engineering Department, will
procure an updated copy of this directory yearly from 2�IHTD.
The City of Cape Girardeau will also utilize other available
State and Federal Directories (if available) when a greater nunber
of DBE's is sought or specific airport related services and
supplies are sought.
The DBE listing shall be made available to bidders at the time
formal requests for proposals are solicited.
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6
PROCEDURES FOR DBE CERTIFICATION
In order to insure that the City of Cape Girardeau DBE Program
benefits only firms owned and controlled by DBE's , the City of Cape
Girardeau shall seek to insure the eligibility of DBE's and joint
ventures by requiring:
1 . A DBE has been certified using a process which is as
effective or more effective than the procedures of Part
23 .
2 . A DBE which has been certified by another Federal agency
nay submit its certification to the City of Cape
Girardeau for eligibility.
3 . A DBE which has been certified by the Small Business
Administration may submit its certification for
eligibility.
Eligibility will be determined prior to bid award. Standards
for determining eligibility, not covered by the above, will be in
accordance with 49 CFR Parts 23 . 51 and 23 . 53 .
Prime contractors shall be required to make good faitn efforts
to replace a DBE subcontractor that is unable to perform
successfully with another DBE. All substitutions of subcontractors
subsequent to bid opening and durir.g contract perforMance shall be
, approved by the City of Cape Girardeau to ensure that the
substitute firms are eligible DBE's .
7
UNIFORM CERTIFICATION STANDARDS
The City of Cape Girardeau will not certify DBE firms itself .
City of Cape Girardeau will utilize only those firms which have
been previously certified by MHTD or other sources as referenced on
page 7 .
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8
ON-SITE CERTIFICATION VtSITS
City of Cape Girardeau will ensure that the entities from
which it accepts certification status utilize the criteria as
mandated by 49 CFR Part 23 .
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9
DECERTIFICATION PROCEDURES
tahenever the City of Cape Girardeau comes to believe that a
firm with a current certification is no longer eligible , the City
of Cape Girardeau will forward the documentation regarding the
matter to the MHTD or certifying agency for review. City of Cape
Girardeau shall abide with the decision of the certifying agency
regarding the continuing status of the firm in question as a DBE.
The firm will be notified of its rights to appeal by the MHTD.
All appeals must be in writing, dated, signed and submitted
to:
Departmental Office of Civil Rights
Department of Transportation
400 7th Street, Southwest
Washington, DC 20590
.
10
DBE DEFIN[TION
To qualify for certification, a firm must meet the definition
of a disadvantaged business enterprise (DBE) . The definition used
by the City of Cape Girardeau is as follows:
A small business concern:
1 . Which is at least 51 percent owned by one or more
socially and economically disadvantaged individuals , or,
in the case of any publicly owned business , at least 51
percent of the stock of which is owned by one or more
socially and economically disadvantaged individuals ; and
2 . 6ahose management and daily business operations are
controlled by one or more of the socially and
economically disadvantaged individuals who own it.
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11
DETERMINATION OF BUSINESS SI`GE
The first step in the certification process is to make a
determination of the business size . If the applicant is not a
"sr�all business concern" as defined below, it will not be certified
by MHTD or other certifying agencies even though it may be owned
and controlled by socially and economically disadvantaged
individuals and eligible in all other respects . City of Cape
Girardeau shall ensure that the certifying agency used are
utilizing the criteria as outlined in 49 CFR vart 23 . Even a firm
certif ied by the Small Business Administration (SBA) under the 8 (a)
program is not eligible if it is not small .
1 . The size standards established by the SBA in 13 CFR Part 121 ,
as revised, are used for making size determinations .
2 . However, no firm is considered small if , including its
affiliates , it averages annual gross receipts in excess of
$15 , 370 , 000 over the previous three fiscal years (Section
505(d) ( 2) , Airport and Airway Improvemer,t Act of 1982 , as
amended) . Thus , a general contractor must "graduate" from the
program once its gross receipts exceed the $15 , 370 , 000
ceiling, even though the SBA standard for general contractors
is $17 million.
3 . Contractors are still subject to applicable lower limits
established by the SBA. For example , the SBA size linit for
, electrical contractors is $7 million (average of annual gross
receipts for three year period) . The $7 nillion limit, rather
than the $15 , 370 , 000 ceiling, governs in size determination of
these contractors .
4 . For DOT/AIP-funded subcontracts of $10 , 000 or less , a firn is
small under the SBA regulations if , including its affiliates ,
it has no more than 500 employees .
5 . For DOT/AIP-funded subcontracts over $10 , 000 and prime
contracts , a firm is small under the SBA regulations if ,
including its affiliates , it has no more than 500 employees .
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6 . For DOT/AIP-funded subcontracts over $10 , 000 and prime
contracts , a firm is small under the SBA regulations if ,
including its affiliates, it meets the applicable standard in
terms of average gross receipts, number of employees , or other
measure.
���hile for many of the businesses used in DOT/AIP projects , the
SBA standard is measured in gross receipts , this may not
always be so. For example, a manufacturer of concrete
products (SIC 3272) is small if it has no more tnan 500
employees . If one of these businesses earns gross receipts in
excess of the $15 , 370 , 000 cap, it would not qualify as small
and hence for eligibility as a DBE, even though it may have
less than 500 employees .
7 . Al1 affiliates of a firm, as well as the firm itself , are
considered when determining gross receipts earned or number of
persons employed. Affiliation exists if one firm controls or
has the power to control the other, or a third party or
parties controls or has the power to control both firms.
8 . Information on gross receipts earned by an applicant is
obtained from its submissicn of Schedule A.
9 . If a firm applies for certification in more than one category
(e .g. , general construction and special trade subcontractor) ,
the applicabl� SBA standard is the one that describes the work
the firm will perforn under the DOT/AIP-funded contract.
10 . Size determinations will be reviewed annually in connection
with the recertification process .
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13
SOCIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS
l . Any person having a current 8 (a) certification from the Small
Business Administration is considered socially and
economically disadvantaged.
2 . The City of Cape Girardeau makes a "rebuttable presumption"
that individuals in the following groups who are citizens of
the United States (or lawfully permanent residents} are
socially ar.d econoMically disadvantaged:
a . Women;
b. Black Americans , which includes persons having origins in
any of the Black racial groups of Africa ;
c. Hispanic Anericans , which includes persons of Mexican,
Puerto Rican, Cuban, Central , or South American, or other
Spanish or Portuguese culture of origin , regardless of
race;
d. Native Americans, which includes persons who are American
Indians , Eskimos , Aleuts , or Native Hawaiians;
e. Asian-Pacific Americans , which includes persons whose
origins are from Japan, China , Taiwan , Korea , Vietnam,
Laos , Cambodia , the Philippines , Samoa , Guam, the U. S .
Trust Territories of the Pacific, and the Northern
ASarianas; and
f . Asian-Indian Americans , �-ahich includes persons whose
origins are from India, Pakistaiz, Bangladesh, ar.d Sri
Lanka .
The City of Cape Girardeau will generally assum,e that business
owners who fall into one of these groups are socially and
, economically disadvantaged. Their disadvantaged status will not
generally be investigated, unless a third-party challenge is made .
3 . Other individuals may be found to be socially and econonically
disadvantaged on a case-by-case basis . For example , a
disabled Vietnam veteran , an Appalachian white male , or
another person may clain to be disadvantaged. If such
individual requests that his cr her firm be certified as a
DBE, the City of Cape Girardeau, as part of the certification
process , will determine whether the individual is socially and
econemically disadvantaged under the criteria in Appendix C oi
Subpart D. These owners must demonstrate that their
disadvantaged status arose from the individual circumstances ,
rather than by virtue of r�er�bership in a grcup.
14
CHALLENGE PROCEDURES
Any third party may present evidence challenging whether a
firm's owners who are presumed to be socially and economically
disadvantaged are truly disadvantaged . Individuals certified as
8(a) , however, are not subject to the challenges .
When the City of Cape Girardeau receives a written challenge
to the disadvantaged status of a business owner that is certified
or seeking certification, the City of Cape Girardeau will make a
determination of social and economic disadvantage . The City of
Cape Girardeau itself may also initiate an inquiry.
The guidelines in 49 CFR 23 . 69 and Appendix C will be used for
these actions . The procedures are informal ; strict rules of
evidence do not apply.
While a challenge is in progress , the presumption of social
and economic disadvar.tage continues , and if the firm has been
certified, it will continue to be eligible as a DBE.
,
1�
ELIGIQILI"I'Y STANI)ARDS
The City of Cape Girardeau will ensure that the MHTD or other
certifying agency utilizes t}�e following standards to determine
whether a firm is owned and controlled by one or more socially and
economically disadvantaged ind?viduals .
1 . Bona fide membership in a group of socially and ecor.omically
disadvantaged individuals must be established on the basis of
the applicant's claim that he or she is a member of such group
and is so regarded by that particular disadvantaged community.
However, the City of Cape Girardeau is not required to accept
the clain if it is deternined to be invalid.
Proof of ancestry is not conclusive evidence of inembership in
a group of sociaily and economically disadvantaged
individuals . The fact that a person's grandfather or other
relative belonged to one of these groups does not necessarily
qualify the applicant as a member for purposes of DBE
certification.
If the individual has not held hir�self or herself out to be a
member of the community oi disadvantaged indiv?duals , has not
acted as a member of tY?at community, and would not be
identified by persons in th� r�opulation at large as a member
of the group, the indi�ridual is not considered as belonging to
that disadvantaged group for purposes of DBE certification.
2 . An eligible DBE must be an independent business . 7he ownership
and control by disadvantaged persons must be real ,
substantial , and continuing and must go beyond the pro forma
ownership of the firM as reflected in its c:•mersnip docuMents .
The disadvantaged owners must enjoy the customary incidents of
, ownership and must share in the risks and profits commensurate
with their ownership interests , as der�onstrated by an
examination of the substance rather than form of arrangements .
Recognition of the business as a separate entity for tax or
corporate purposes is not necessarily sufficient for
recognition as a DBE. In determining whether a potential DBE
is an independent business , the City of Cape Girardeau
considers all relevant factors , including the date the
business established, the adequacy of its resources for the
work of the contract, and the degree to which financial ,
equipment leasing, and other relationships with non-DBE rirms
vary from industry practice.
1��
3 . The disadvantaged owners must also possess the power to direct
or cause the direction of the management and day-to-day , as
well as major decisions on matters of management, policy, and
operations . The first must not be subject to any formal or
information restrictions which limit the customary c3iscretion
of the disadvantaged owners . There must not be restrictions
through, for example , bylaw provisions , partnership
agreements , or charter requirements for cumulative voting
rights or otherwise that prevent the disadvantaged owners ,
without the cooperation or vote of any owner wno is not
socially a;,d economically disadvantaged, from making a
business decision of the iirm.
4 . If the owners of the firm who are not socially and
economically disadvantaged individuals are disproportionately
responsible for the operation of the firm, then the firm is
not controlled by socially and economically disadvantaged
individuals and is not eligible . �tihere the actual management
of the firm is contracted out to individuals other than the
owner, the persons having the ultimate power to hire and fire
the nanagers are considered as controlling the business .
5 . All securities which constitute ownership and/or control of a
corporation for purposes of establishing it as a DBE must be
held directly by socially and economically disadvantaged
individuals . No securities held in trust, or by any guardian
for a minor, shall be considered as held by socially and
economically disadvantaged individuals in determining tne
ownership or control of a corporaticn.
6 . The contributions of capital or expertise by the socially and
economically disadvantaged individuals to acquire their
interests in the firm shall be real and substantial . Examples
of insufficient contributions include a promise to contribute
capi�al , a note payable to the firm cr its owners who are not
socially and economically disadvantaged , or the mere
participation as an employee, rather than as a :�anager .
7 . In addition to the above standards , special consideration is
given to the following circumstances :
a. Newly iorned firms and firms whose ownersnip and/or
control has changed since the date of the advertisement
of the DOT-assisted contract are closely scrutinized to
determine the reason for the timing oi the iormation or
change in the firm.
b. A previous and/or continuing er�ployer-employee
relationship between or among present cwners is carefully
reviewed to ensure that the employee-owner has management
responsibilities and capabilities as referenced above .
17
c. Any relationship between a DBE and a non-DBE which has an
interest in the DBE is carefully reviewed to determine if
the interest of the non-DBE conflicts with the
requirements for ownership and control .
8 . A joint venture will be certified if the DBE partner of the
joint venture meets the eligibility standards , is responsible
for a clearly defined portion of the work to be performed, and
shares in the ownership, control , management responsibilities ,
risks , and profits of the joint venture.
9 . No DBE set-asides are permitted by the City of Cape Girardeau
Charter .
10 . A business applying for certification as a DBE or as a joint
venture DBE nust cooperate with the City of Cape Girardeau in
supplying any additional information wizich may be requested in
order to make a determination. For example , the applicant may
be required to provide income tax statenents .
11 . The City of Cape Girardeau safeguards fron disclosure to
unauthorized persons information that reasonably may be
regarded as confidential business information , consistent with
Federal , State and Local law.
12 . Once certified, a DBE will be required to update its
submission annually by submitting a ne��� Schedule A or
certifying that the Schedule A on file is still accurate .
Firms are notified upon certification tha� a r.ew Scnedule A
must be submitted whenever there is a change in the fir�'s
ownership or control .
13 . The denial or certification by the City of Cape Girardeau is
final for the particular contract and any other ccntracts
being let at the time of the denial (excep�. when DCT reverses
the denial , following an appeal ) . Firms denied certification
may correct deficiencies in their ownership and control and
' reapply for certification only for future contracts .
18
DBE PERCENTAGES AND GOALS
The City of Cape Girardeau in setting its DBE goals , both
overall and contract goals, will establish goals that are
representative percentages of the availability of DBE's for each
project.
Contract goals may vary according to the availability of DBE's
in specific contracting and/or subcontracting positions . If a
local DBE does not exist, the City of Cape Girardeau shall seek
DBE's in a wider but reasonable geographical area and also suggest
prime contractors follow such a procedure when subcontracting.
It shall be the responsibility of the contractor to meet City
of Cape Girardeau specified goals for the contract. If the
contractor is unable to fulfill this requirement, adequate
documentation and justifications of failure to lr�eet DBE goals will
be required.
The overall goal shall be reviewed annually. The review
process shall analyze projected versus actual DBE participation
during the previous year. Necessary revisions shall be made based
, on the analysis ar.d submitted to the DOT/FAA for their approval .
The City of Cape Girardeau will publish a notice announcing
that the proposed goal and methodology are available for inspection
for a 30-day period at the Office of the City Er,gineer, City Hall ,
401 Independence, Cape Girardeau, Missouri 63701 .
This :�,otice will be published at the time of advertising for
Request for Proposals or Qualifications for the next DOT assisted
19
contract or project. These notices will be placed in city-wide ,
community, and trade newspapers and journals in the area.
A narrative description of the DBE program that will be
published is noted on Page 21 .
20
Df3E GOAL
See Appendix D.
OVERALL DBF_ GOAL METHODOLOGY
Narrative Description of Overall DBE Goal Methodology:
This overall DBE goal vaill be obtained by recruiting
contractors from the counties of Southeast Missouri . Estimates
have been based on the availability of qualified DBE's through
lists supplied by the State . However, travel time and distances
for some of the DBE's may preclude them from participating in this
project. We do feel that the DBE firm that did extensive work on
previous projects will be involved with this project also.
Methodoloav:
See Appendix E.
21
COUNTING D13E PARTICIPAT[ON TOWARD MEP,TING THE GOALS
The City of Cape Girardeau will count DBE participation toward
the goals in accordance with the guidelines outlined below.
Although the language may suggest otherwise , only the Federal Share
of the contract amour.ts is ccunted toward the overall goal .
1 . Once a firm is determined to be an eligible DBE under 49 CFR
Part 23 , the total dollar value of the contract awarded to the
DBE is counted toward the DBE goal .
2 . The City of Cape Girardeau and its contracts will count
towards the DBE goals a portion of the total dollar value of
a contract with a certified joint venture equal to the
percentage of ownership and control of the DBE partner in the
joint venture .
3 . The City of Cape Girardeau and its contractors will count
toward the DBE goals the total value of a contract with a firm
owned and controlled by t�ao socially and economically
disadvantaged individual , each of whom has a 50 percent
interest in the firm.
4 . Only expenditures to DBE's that periorm a commercially useful
function in the work of a contract will be ceunted teward the
DBE goals . A DBE is considered to perform a commercially
useful function when it is respor.sible for execution of a
distinct element of the work of a contract and carrying out
its responsibilities by actually performing, managing, and
supervising the work involved. To determine whether a DBE is
performing a commercially useful function , the City of Cape
Girardeau and its c�ntractors will evaluate the amount of work
subcontracted, industry practices , and other relevant factors .
,
5 . Consistent with normal industry practices , a DBE may enter
into subcontracts . If a DBE contractor subcontracts a
significantly greater portion of the work of the contract than
would be expected on the basis of normal industry practices ,
the DBE shall be presumed not to be performing a commercially
useful function. The DBE may present evidence to the City of
Cape Girardeau to rebut this presumption. The decision by the
City of Cape Girardeau is subject to review by the Department
of Transportation .
6 . The City of Cape Girardeau and its contractors will count
toward the DBE goals 60 percent of expenditures from materials
and supplies required under a contract and obtained from a DBE
22
regular dealer, and 100 percent of such expenditures obtained
from a DBE manufacturer.
7 . For purposes of this DBE program, a manufacturer is a firm
that operates or ^aintains a factcry cr �stablishnent that
produces on the premises the materials or supplies obtained by
the City of Cape Girardeau.
8 . For purposes of this DBE program, a regular dealer is a firm
that owns , operates , cr ::�aintains a store , warehouse , or other
establishment in which the r�aterials or supplies required for
the performance of the centract are brought , kept in stock,
and regularly sold to the public in the usual course of
business . To be a regular dealer , the fir;� must engage in , as
its principal business , and in its own name , the purchase and
sale of the products in question . A regular dealer in such
bulk itens as steel , cenent, gravel , stone and petroleun
products need not keep such products in stock, if it owns or
operates distribution equipment. Brokers and packagers will
not be regarded as manufacturers or regular dealers under this
DBE program.
9 . The City of Cape Girardeau and its contractors may count
toward the DBE goals the following expenditures to DBE firms
that are not manufacturers or regular dealers :
a. The fees or commissions charged for providing a bona fide
service, such as professional , tecnnical , consultant or
managerial services and assistance in the procurement of
essential personr.el , iacilities , equipnent, materials or
supplies required for performance of t�:e contract,
provided that the fee or conmission is determined by the
City of Cape Girardeau to be reasonable and not excessive
as compared with fees customarily allowed for similar
services .
b. The fees charged for delivery of materials and supplies
' required on a job site (but not the cost of the materials
and supplies themselves ) when the hauler, trucker , or
delivery service is not also the manufacturer of or a
regular dealer in the materials and supplies , provided
that the fee is determined by the City of Cape Girardeau
to be reasonable and not excessive as compared witr fees
customarily allocved for similar services .
c. The fees of commission charged for providing any bonds or
insurance specifically required for the performance of
the contract provided that the fee or commission is
determined by the City oL Cape Girardeau to be reasonable
and not excessive as compared with fees customarily
allowed for similar services .
23
PROCEDURES FOR NAMING DF3E'S IN f3(DS
Whenever the City of Cape Girardeau issues an invitation for
bids on a DOT-financially assisted contract, the solicitation will
include the DBE goals that have been determined for that contract.
It will also include a statement that exclusive agreements between
DBE's and bidders are forbidden. The wording will also require the
bidders to include in their proposal written assurance that they
have met these goals or what measure that they have taken in their
attempt to meet the goals . The invitaticn to bid will include
notification that the bid must include the names , addresses and
telephone numbers of DBE's included in their bid, as well as copy
of document which certifies them as DBE's . Tnis information shall
also contain a description of the work each DBE will perform and
the dollar anount of the work on each DBE sub-contract. This
information shall be submitted with tne bid using the forms shown
on Appendices A and B.
,
24
AWARD SELECTION PROCEDURE
According to City of Cape Girardeau Purchasing Ordinances , it
is stipulated that all contracts shall be awarded to "the lowest
responsible bidder" who has the "ability, skill , or capacity to
perform the contract or provide the service required. "
,
25
DBE SET-ASIDES
The "Purchasing Code of the City of Cape Girardeau" states the
following:
"all supplies and contractual services shall be purchased
by formal written contract from the lowest responsible
bidder. "
In accordance with the above ordinance, there will not be any DBE
Set-Asides provided by tne City of Cape Girardeau.
.
26
METHODS TO REOUIRE C:OMPLIANCF WITH Df3E RF(�UIRFMFNTS
The bid solicitation will include a statement that every
reasonable effort will be made zo meet all subcontracting goals .
It will state that all bidders , potential contractors , or sub-
contractors for this DOT assisted contract are hereby r.otified that
failure to carry out the DOT Policy and the DB� cbligation shall
constitute a breach of contract which may result in termination of
the contract or such other remedy as deemed appropriate by the
recipient. The solicitation will include a statement that all
bidders will be required to submit DBE participation infornation
and that as a condition of receiving the contract, the competitor
must meet the DBE goal or demonstrate to tne City of Cape Girardeau
that it made good faith efforts . The actual clause to be used in
the solicitation is :
"The bidder/prcposer shall nake good faith efforts , as
defined in Appendix A of 49 CFR Part 23 , Regulations of
the Office of the Secretary oi Transportation , to
subcontract ten ( 10 ) percent of the dollar value of the
prime contract to small business concerns oo�ned and
controlled by socially and econonically disadvantaged
individuals (DBE) . In the event tnat the bidder for this
solicitation qualifies as a DBE, the contract goal shall
,
be deemed to have been met. Individuals who are
rebuttably presuned to be socially and ecenomically
disadvantaged include women, Black Americans , Hispanic
Americans , ilative Americans , Asian-Pacific Americans , and
Asian-Indian Americans . All bidders will be required to
submit information concerning the DBE's that will
participate in the contract. The information will
include: ( 1 ) the nane and address of each DBE; ( 2 ) a
description of the work to be performed by each named
firm; and ( 3 ) the dollar value of the work of the
contract. If the bidder fails to achieve the contract
goal stated 'nerein , it will be required to provide
documentation demonstrating that it made good faith
efforts in attempting to do so . A bid that fails to meet
these requirenents will be considered nonrepresentative. "
27
If the contract goal specified in the solicitation is not met,
the apparent successful competitor will be required to submit
documentation of the efforts it �ade . The City of Cape Girardeau
will then determine whether these are "good faith efforts . " The
following criteria will be used :
l . Whether the contractor attended any pre-solicitation or pre-
bid meetings that were scheduled by the recipient to inform
DBE's of contracting and subcontracting opportunities;
2 . Whether the contractor advertised in general circulation ,
trade association, and minority-focus media concerning tne
subcontracting opportunities .
3 . Whether the contractor provided written notice to a reasonable
number of specific DBE' s that their interest in the contract
was being solicited, in sufficient time to allow the DBE's to
participate effectively.
4 . Whether the contractor followed up initial solicitations of
interest by contracting DBE's to determine with certainty
whether the DBE's were interested.
5 . Whether the contractor selected portions of the work to be
perforned by DBE's in order to increase the likelihood of
meeting tne DBE goals ( including, where appropriate , breaking
down contracts into econonically feasible units to facilitate
DBE participation) ;
6 . Whether the contractor provided interested DBE`s with adequate
information about the plans , specifications , and reauirements
of the contract.
' 7 . Whether the contractor negotiated in good faith with
interested DBE's , not rejecting DBE's as unqualified without
sound reasons based on a thorough investigation of their
capabilities .
8 . Whether the contractor made efforts to assist interested DBE's
in obtaining bonding, lines of credit, or insurance required
by the City of Cape Girardeau contractor; and
9 . Whether the contractor eff_ectively used the services of
available minority community organizations; minority
contractors groups ; local , state , and Federal minority
business assistance offices , and other organizations that
provide assistance in the recruitmer.t and placement of DBE' s .
28
The following points apply to good faith effort determinations :
1 . Good faith efforts are those that could reasonably be expected
to result in goal attainment by a bidder who aggressively and
actively seeks to obtain DBE participation.
2 . The above list of nine efforts are recommended by the
department as ones that bidders/proposers may make to obtain
DBE participation. It does not represent a mandatory
checklist of required actions ; ^o one or combinaticn is
required in all cases .
3 . The list above is not intended to be exhaustive; ot;:er factors
or efforts may be relevant in appropriate instances .
4 . The City of Cape Girardeau will examine the quantity and
intensity of the efforts as well as the type of actions .
Efforts that are merely proforma are not sufficient, even
though they may be sincerely motivated.
When the award proposal is submitted to the Departr,ient oi
Transportation/Federal Aviation Administration for approval , the
City of Cape Girardeau will include evidence of the prime
contractors "good-faith" efforts.
In the post-contract award period, the City of Cape Girardeau
will take the following measures to assure compliance with the pre-
contract conditions:
a. On-site reviews by the DBE Liaison Officer to include
interviews , visits to project lccations , and inspection
of documents and/or information which pertains to the
' contractors DBE perforn�nce .
These reviews shall be conducted on a once per month
basis if the project lasts in excess of a weeks . For
projects whose duration is less than four weeks , there
will be at least one on-site visit during the project.
b. Such further investigation as nay be called for by a lack
of proper records; visible evidence of unsatisfactory
performance; and/or such other evidence as may warrant
further investigation. Payment documents will be
reviewed to determine that the named DBE is doing the
work as outlined in the contract, and being paid the full
amount outlined in the contract .
29
c. A prompt determination of a finding of compliance,
partial compliance, or non-compliance will be made.
d. In the case of willful and deliberate non-compliance by
a contractor, appropriate steps vaill be taken and
sanctions imposed consistent with applicable contract
law.
e. The City of Cape Girardeau requires prime contractors to
report progress payments made to subcontractors monthly
and to report any terminations of DBE firms. This
information will be verified periodically by obtaining
certified statements from DBE subcontractors .
,
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REOUIRED CLAUS[:S FOR DO"I'/FAA-ASSIS"I'LD CONTRAC"t'S
The following clauses should be included in all DOT/FAA-
assisted contracts between the sponsor and any contractor;
Policv. It is policy of the Department of Transportation that
disadvantaged business enterprises as defined in 49 CFR Part
23 shall have the maximuM opportunity to participate in the
performance of contracts financed in wnole or in part witn
Federal Funds under this agreement. Consequently, the DBE
requirements of 49 CFR Part 23 apply to this agreement.
DBE Obliqation . The recipient of its contracts agrees to
ensure that disadvantaged business enterprises as defined in
49 CFR Part 23 have the maximum opportunity to participate in
the performance of contracts and subcontracts financed in
whole or in part with Federal Funds provided under this
agreement . In this regard, contractors shall take all
necessary and reasonable steps in accordance with 49 CFR Part
23 to ensure that disadvantaged business enterprises have the
maximum opportunity to compete for and perform contracts .
Recipients and their contractors shall not discriminate on the
basis of race , color, national origin , or sex in the award and
performance of DOT-assisted contracts .
Section 23 . 43 (c) requires sponsors to advise each contractor
and subcontractor who performs on a DOT/FAA-assisted project that
failure to carry out the above requirements shall constitute a
breach of contract. The following clause may be used for this
purpose:
,
All bidders , potential contractors , or subcontractors for this
DOT-assisted contract are hereby notiiied that failure to
carry out the DOT policy and the DBE obligation, as set forth
above, shall constitute a breacn of contract which may result
in termination of the contract or such other remedy as deemed
appropriate by the recipient and the DOT/FAA.
J 1
APPENDIX A
DBE INFORMATION SHEET
NOTE: If , at any time, the City of Cape Girardeau has reason to
believe that any person or firm has willfully and
knowingly provided incorrect information or made false
statements , or acted in a manner nrohibited by 49 CFR
Part 29 , the DBE Liaison Officer shall refer the matter
to the Missouri Highway and Transportation Department and
Federal Aviation Administration , as deemed appropriate .
l . Date
2 . Project Title
3 . Name of Prime Contractor ( if any)
4 . Name of Firm
5 . Address of Firm
6 . Phone Number of Firm
7 . Contact Person
8 . Nature ofBusiness
9 . Specific Services to be Performed Under `I�his Project
- 10 . Compensation to be Received
11 . Is this firm certified as a DBE by the I�Iissouri Highway and
Transportation Department? ( ) Yes ( ) No
12 . Date of last certification by MHTD
NOTE: Enclosed copy of certification by MHTD (required)
13 . Years f irn has been in business
32
APPEND[X B
AFFIDAVIT
"The undersigned swears that the foregoing statements are true
and correct and include all material necessary to identify and
explain the role of
(name of firm) as well as tne
ownership thereof . Further, the undersigned agrees to provide,
both to the prime contractor and to the grantee, current, complete
and accurate information regarding actual work performed on the
project, the payment therefore, and any proposed changes , if any,
of the foregoing arrangements and to permit the audit and
examination of books , records, and files of the named firm. Any
material misrepresentation will be grounds for terminating any
contract which may be awarded and for initiating action under
Federal and State laws concerning false statements . "
Signature
Name (print or type)
Title
Date
Corporate Seal (where appropriate)
State of ?
County of �
On this day of , 19 , before me
appeared , to me personally known, who,
being duly sworn, did execute the foregoing affidavit, and did
� state that he or she was properly authorized by (name of firm)
, to execute the affidavit and did so
as his or her free act and deed.
(SEAL)
Notary Public
My Commission Expires
33
APPEND(X C
LEASING GOALS
The City of Cape Girardeau/Cape Girardeau I�Iunicipal Airport
presently has the following long-term leases in effect:
1 . Trans State Airlines , d/b/a Trans (Terminal Office)
World Express
2 . Cape Central Airways (Land)
3 . WEB Aero (Land)
4 . Robert Niederkorn (Land)
5 . Ronald Burger (Land)
6 . FAA Sector Field Office (Terminal Office)
7 . Midwest Weather (Terminal Office)
8 . B&J Auto Rental (Terminal Office)
9 . Cape Rent A Car (Terminal Office)
10 . Travel-N-Shop (Terminal Office)
11 . Thomlinson Avionics (Land)
12 . Drury Industries (Land)
13 . Drury Southwest (Land)
34
APPENDIX D
DQE GOAL FOR CAPE GIRARDEAU MUNICIPAL A[RPORT
A.I.P PROIECT NO_ 3-29-0013-OS
The Disadvantaged Business Enterprise Program of the City of
Cape Girardeau during the period of October l , 1991 , through
September 30 , 1992 , shall be as follows :
Overall Goal : 10 . 7%
,
35
APPENDIX E
DI3E GOAL METHODOLOGY
Airport Sponsor: City of Cape Girardeau , I�iissouri
Name of Preparer: I�tark J. Seesing, Airport Manager
Goal Period: From: 10/11/91 Thru: 09/30/92
Overall DEE Goal : 10 . 70
Part I : Overall DBE Goal for FAA Assisted Projects
Mark one box below:
An overall DBE goal IS NOT required because the airport
sponsor does not plan to award any contracts during the goal
period based on an FAA grant that exceeds the amount which
requires the setting of a DBE goal .
An overall DBE goal IS required. 'I�he DBE gcal methodology is
contained below.
Part II: Leasing Goals and Methodology
Not Applicable .
Part III: Methodology for Establishing Overall Goal
Previous Years Goals DBE: 10 . 0%
Previous Years Acccmplishnents DBE: 24 . Oo
Explanation for Not Achieving Previous Years Goals
NOT APPLICABLE
Methodoloav
,
Pro�ect Items $ Amount DBE
Prof . Serv. : $ 49 , 856 . 00 $ p
Construction: 368 , 729 . 00 39 , 454 . 00
Total $418 , 535 . 00
$ 39,454.00 (10.7%)
Item Description $ Amount DBE
Site Ydork $ 6 , a67 . 00 $ 6 , �67 . G0
Carpentry 9 , 500 . 00 9 , 500 . 00
Finishings 43 , 005 . 00 1 , 500 . 00
Plumbing 7 , 600 . 00 7 , 600 . 00
Electrical 19 , 760 . 00 S 19 , 760 . 00
Total $ 86 , 332 . 00 $ 44 , 827 . 00
36