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HomeMy WebLinkAboutRES.810.03-15-1993 , � x BILL NO. 93-62 RESOLUTION NO. ����-� A RESOLUTION ADOPTING A NEW 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 GIRARDEAU, MISSOURI , AS FOLLOWS: ARTICLE l . The City Council of the City of Cape Girardeau, Missouri, hereby adopts the City of Cape Girardeau Disadvantaged Business Enterprise Program dated March 15, 1993 . 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 <~,`/l DAY OF � � ;'l.r".i:��+ , 19�. Francis E. Rhodes, Mayor ATTEST: �- %. �_ ri .�,�. Gayl L. Conrad, Deputy City Clerk • � CITY OF CAPE GIl2ARDEAU, MISSOURI March 15, 1993 DISADV�rAGED BUSINESS ENTERPRISE PROGRAM Submitted By: Approved By: J. Ronald Fischer Authorized Representative City Manager Central Region Cape Girardeau, Missouri Department of Transportation . , DEPARTMENT OF TRANSPORTATION 49 CFR PART 23 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM TABLE OF CONTENTS STATEMENT OF POLICY . . . . . . . . . . . . . . . . . . . . . 1. DBE PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . 2 . LONG TERM EXCLUSIVE LEASES . . . . . . . . . . . . . . . . . 2 . LESSEES MUST AVOID DISCRIMINATION . . . . . . . . . . . . . . 2 . LEASING GOALS . . . . . . . . . . . . . . . . . . . . . . . . 2 . DBE LIAISON OFFICER . . . . . . . . . . . . . . . . . . . . . 3 . DBE DIRECTORY . . . . . . . . . . . . . . . . . . . . . . . . 3 . PROCEDURES FOR DBE CERTIFICATION . . . . . . . . . . . . . . 4 . UNIFORM CERTIFICATION STANDARDS . . . . . . . . . . . . . . . 5 . ON-SITE CERTIFICATION VISITS . . . . . . . . . . . . . . . . 5 . DECERTIFICATION PROCEDURES . . . . . . . . . . . . . . . . . 5. DBE DEFINITION . . . . . . . . . . . . . . . . . . . . . . . 6. DETERMINATION OF BUSINESS SIZE . . . . . . . . . . . . . . . 6 . SOCIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS . . . . . 7 . CHALLENGE PROCEDURES . . . . . . . . . . . . . . ' . . . . . . 8 . ELIGIBILITY STANDARDS . . . . . . . . . . . . . . . . . . . . 9 . DBE PERCENTAGES AND GOALS . . . . . . . . . . . . . . . . . . 11. DBE GOAL . . . . . . . . . . . . . . . . . . . . . . . . . . 12 . OVERALL DBE GOAL METHODOLOGY . . . . . . . . . . . . . . . . 12 . COUNTING DBE PARTICIPATION TOWARD MEETING THE GOALS . . . . . 12 . PROCEDURES FOR NAMING DBE'S IN BIDS . . . . . . . . . . . . . 14 . AWARD SELECTION PROCEDURE . . . . . . . . . . . . . . . . . . 15 . DBE SET-ASIDES . . . . . . . . . . . . . . . . . . . . . . . 15 . METHODS TO REQUIRE COMPLIANCE WITH DBE REQUIREMENTS . . . . . 15. REQUIRED CLAUSES FOR DOT/FAA-ASSISTED CONTRACTS . . . . . . . 18 . APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . 20. DBE INFORMATION SHEET . . . . . . . . . . . . . . . . . 20. APPENDIX B . . . . . . . . . . . . . . . . . . . . . . . . . 21. AFFIDAVIT . . . . . . . . . . . . . . . . . . . . . . . 21. , . � DISADVANTAGED BUSINESS ENTERPRISE PROGRAM FOR THE CITY OF CAPE GIRARDEAU, MISSOURI STATEMENT OF POLICY It is the policy of the City of 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 aE such contracts awarded to contractors, subcontractors, vendors, and other entities. Further, it is the policy of the City of Cape Girardeau that it shall not discriminate on the basis of 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. This Policy Statement shall be disseminated throughout all departments of the City of Cape Girardeau. The City of Cape Girardeau will endeavor to supply this Policy Statement to all other DBE organizations, as well as all non-minority and community organizations. This DBE Program covers the City of Cape Girardeau. J. Ronald Fischer Date City Manager l. . DBE PARTICIPATION 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. 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 with Non-DBE's are forbidden, except under the following 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; or (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 the lease. LESSEES MUST AVOID DISCRIMINATION Lessees are not required to establish an affirmative DBE program, however they are required to practice nondiscrimination in their activities. LEASING GOALS Due to the limited nature of the leasing opportunities available, the City of Cape Girardeau is not establishing any 2 . 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. DBE LIAISON OFFICER The City Manager has designated the following named person as the DBE Liaison Officer. 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: Douglas K. Leslie Title: Public Works Director Airport: Cape Girardeau Municipal Airport Address: c/o Department of Public Works 219 N Kingshighway, Cape Girardeau, MO 63701 Phone: (314) 334-9151 The DBE Liaison Officer, in conjunction with the City of Cape Girardeau Purchasing Department, who 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 contracting activities in relation to all FAA-assisted contracts, including professional, technical, consultant, or managerial services; construction; and the procurement of materials, supplies, personnel, facilities, and equipment. These techniques 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 Southeast Missouri Small Business Development Center. 3 . Carrying out information and communications programs on contracting procedures and specific contracting opportunities in conjunction with the City of Cape Girardeau Department of Purchasing. DBE DIItECTORY 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, Missouri 65102 and the other sources set forth under "Uniform Certification Standards" 3 . herein. 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 from MHTD as often as such updates become available from the Missouri Highway and Transportation Department. The City of Cape Girardeau will also utilize other available State and Federal Directories (if available) when a greater number 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. These listings shall include, but are not limited to, name of DBE organization, address, point of contact, phone number, and area of work each DBE organization can perform. 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 may 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 faith efforts to replace a DBE subcontractor that is unable to perform successfully with another DBE. All substitutions of subcontractors subsequent to bid opening and during contract performance shall be approved by the City of Cape Girardeau and the Department of 4 . Transportation/Federal Aviation Administration to ensure that substitutions are for legitimate reasons such as failure to perform, default, out of business, or DBE request to withdraw. A good faith effort must be made to replace one DBE subcontractor with another DBE subcontractor. LTNIFORM CERTIFICATION STANDARDS The City of Cape Girardeau/Cape Girardeau Municipal Airport will not certify DBE firms itself . City of Cape Girardeau/Cape Girardeau Municipal Airport will utilize only those firms which have been previously certified by Missouri Highway Transportation Department or other sources such as: 1. State of Missouri Division of Design and Construction. 2 . Bi State Development Agency. 3 . State of Illinois Department of Transportation. 4 . State of Kentucky Department of Transportation. 5 . State of Arkansas Department of Transportation. 6. Other local, state or federal certifying agencies. ON-SITE CERTIFICATION VISITS 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 . DECERTIFICATION PROCEDURES , Whenever 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. Al1 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 5 . DBE DEFINITION 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: l. 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 . Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. DETERMINATION OF BUSINESS SIZE The first step in the certification process is to make a determination of the business size. If the applicant is not a "small 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 Part 23 . Even a firm certified by the Small Business Administration (SBA) under the 8 (a) program is not eligible if it is not small. l. 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 Improvement 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 limit for electrical contractors is $7 million (average of annual gross receipts for three year period) . The $7 million limit, rather than the $15, 370, 000 ceiling, governs in size determination of these contractors. 6 . 4 . For DOT/AIP-funded subcontracts of $10, 000 or less, a firm 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. 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. While 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 than 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 . All 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 submission of Schedule A. 9 . If a firm applies for certification in more than one category (e.g. , general construction and special trade subcontractor) , the applicable SBA standard is the one that describes the work the firm will perform under the DOT/AIP-funded contract. 10 . Size determinations will be reviewed annually in connection with the recertification process. SOCIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUALS 1. 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 and economically disadvantaged: 7 . a. Women; b. Black Americans, which includes persons having origins in any of the Black racial groups of Africa; c. Hispanic Americans, 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 Marianas; and f. Asian-Indian Americans, which includes persons whose origins are from India, Pakistan, Bangladesh, and Sri Lanka. The City of Cape Girardeau will generally assume 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 economically disadvantaged on a case-by-case basis. For example, a disabled Vietnam veteran, an Appalachian white male, or another person may claim to be disadvantaged. If such individual requests that his or 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 economically disadvantaged under the criteria. These owners must demonstrate that their disadvantaged status arose from the individual circumstances, rather than by virtue of membership in a group. 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 forward 8 . all challenges to the certifying agency, MHTD. The City of Cape Girardeau itself may also initiate an inquiry. The guidelines in 49 CFR 23 . 69 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 disadvantage continues, and if the firm has been certified, it will continue to be eligible as a DBE. ELIGIBILITY STANDARDS The City of Cape Girardeau will ensure that the MHTD or other certifying agency utilizes the following standards to determine whether a firm is owned and controlled by one or more socially and economically disadvantaged individuals. 1. Bona fide membership in a group of socially and economically 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 claim if it is determined to be invalid. Proof of ancestry is not conclusive evidence of inembership in a group of socially 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 certif ication. If the individual has not held himself or herself out to be a member of the community of disadvantaged individuals, has not acted as a member of that community, and would not be identified by persons in the population at large as a member of the group, the individual is not considered as belonging to that disadvantaged group for purposes of DBE certification. 2 . An eligible DBE must be an independent business. The ownership and control by disadvantaged persons must be real, substantial, and continuing and must go beyond the pro forma ownership of the f irm as ref lected in its ownership 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 demonstrated 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 9 . 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 firms vary from industry practice. 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 discretion 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 who is not socially and economically disadvantaged, from making a business decision of the firm. 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. Where 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 managers are considered as controlling the business. 5. Al1 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 the ownership or control of a corporation. 6. The contributions of capital or expertise by the socially and economically disadvantaged individuals to acquire their interests in the f irm shall be real and substantial. Examples of insufficient contributions include a promise to contribute capital, a note payable to the firm or its owners who are not socially and economically disadvantaged, or the mere participation as an employee, rather than as a manager. 7 . In addition to the above standards, special consideration is given to the following circumstances: a. Newly formed firms and firms whose ownership 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 of the formation or change in the firm. lo . b. A previous and/or continuing employer-employee relationship between or among present owners is carefully reviewed to ensure that the employee-owner has management responsibilities and capabilities as referenced above. 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 must cooperate with the City of Cape Girardeau in supplying any additional information which may be requested in order to make a determination. For example, the applicant may be required to provide income tax statements: 11. The City of Cape Girardeau safeguards from 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 new Schedule A or certifying that the Schedule A on file is still accurate. Firms are notified upon certification that a new Schedule A must be submitted whenever there is a change in the firm's ownership or control. 13 . The denial or certification by the City of Cape Girardeau is final for the particular contract and any other contracts being let at the time of the denial (except when DOT 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. 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. 11 . 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 meet 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 and 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 Engineer, City Hall, 401 Independence, Cape Girardeau, Missouri 63701. This notice will be published at the time of .advertising for Request for Proposals or Qualifications for the next DOT assisted contract or project. These notices will be placed in city-wide, community, and trade newspapers and journals in the area. DBE GOAL The goals are to be established, altered and amended from time to time, subject to approval of the Federal Aviation Administration. OVERALL DBE GOAL METHODOLOGY Narrative Description of Overall DBE Goal Methodology: This overall DBE goal will 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. COUNTING DBE PARTICIPATION TOWARD MEETING 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 amounts is counted toward the overall goal. 12 . 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 two socially and economically disadvantaged individual, each of whom has a 50 percent interest in the firm. 4 . Only expenditures to DBE' s that perform a commercially useful function in the work of a contract will be counted toward the DBE goals. A DBE is considered to perform a commercially useful function when it is responsible 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 contractors 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 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 maintains a factory or establishment 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, or maintains a store, warehouse, or other establishment in which the materials or supplies required for the performance of the contract are brouqht, kept in stock, 13 . and regularly sold to the public in the usual course of business. To be a regular dealer, the firm 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 items as steel, cement, gravel, stone and petroleum 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, technical, consultant or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials or supplies required for performance of the contract, provided that the fee or commission 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 with fees customarily allowed 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 of Cape Girardeau to be reasonable and not excessive as compared with fees customarily allowed for similar services. PROCEDURES FOR NAMING DBE'S IN BIDS 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 invitation to bid will include notification that the bid must include the names, addresses and 14 . telephone numbers of DBE's included in their bid, as well as copy of document which certifies them as DBE' s. This information shall also contain a description of the work each DBE will perform and the dollar amount of the work on each DBE sub-contract. This information shall be submitted with the bid using the forms shown on Appendices A and B. 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. " 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 the City of Cape Girardeau. METHODS TO REOUIRE COMPLIANCE WITH DBE REQUIItEMENTS The bid solicitation will include a statement that every reasonable effort will be made to meet all subcontracting goals. It will state that all bidders, potential contractors, or sub- contractors for this DOT assisted contract are hereby notified that failure to carry out the DOT Policy and the DBE obligation 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 information and that as a condition of receiving the contract, the competitor must meet the DBE goal or demonstrate to the City of Cape Girardeau that it made good faith efforts. The actual clause to be used in the solicitation is: "The bidder/proposer shall make good faith efforts, as defined in Appendix A of 49 CFR Part 23 , Regulations of the Office of the Secretary of Transportation, to subcontract a percent of the dollar value of the prime contract to small business concerns owned and controlled by socially and economically disadvantaged individuals (DBE) . In the event that the bidder for this solicitation qualifies as a DBE, the contract goal shall be deemed to have been met. Individuals who are 15 . rebuttably presumed to be socially and economically disadvantaged include women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, and Asian-Indian Americans. Al1 bidders will be required to submit information concerning the DBE's that will participate in the contract. The information will include: (1) the name 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 herein, 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 requirements will be considered nonrepresentative. " If the contract goal specif ied in the solicitation is not met, the apparent successful competitor will be required to submit documentation of the efforts it made. 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 the 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 performed by DBE' s in order to increase the likelihood of meeting the DBE goals (including, where appropriate, breaking down contracts into economically feasible units to facilitate DBE participation) ; 6 . Whether the contractor provided interested DBE's with adequate information about the plans, specifications, and requirements 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. 16 . 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 effectively 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 recruitment and placement of DBE's. 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; no one or combination is required in all cases. 3 . The list above is not intended to be exhaustive; other 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 Department of 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 locations, and inspection of documents and/or information which pertains to the contractors DBE performance. These reviews shall be conducted on a once per month basis if the project lasts in excess of 4 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 may be called for by a lack of proper records; visible evidence of unsatisfactory 17 . 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. 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 will 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. REQUIRED CLAUSES FOR DOT/FAA-ASSISTED CONTRACTS 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 whole or in part with Federal Funds under this agreement. Consequently, the DBE requirements of 49 CFR Part 23 apply to this agreement. DBE Obliaation. 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 f�.nanced 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: 18 . Al1 bidders, potential contractors, or subcontractors for this DOT-assisted contract are hereby notified that failure to carry out the DOT policy and the DBE obligation, as set forth above, shall constitute a breach of contract which may result in termination of the contract or such other remedy as deemed appropriate by the recipient and the DOT/FAA. 19 . 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 prohibited 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 . AddressofFirm 6. Phone Number of Firm 7 . Contact Person 8 . Nature ofBusiness 9 . Specific Services to be Performed Under This Project 10. Compensation to be Received 11. Is this firm certified as a DBE by the Missouri Highway and Transportation Department? ( ) Yes ( ) No 12 . Date of last certif ication by MHTD NOTE: Enclosed copy of certification by MHTD (required) 13 . Years firm has been in business 20 . APPENDIX 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 the 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 21.