City of Culver City, California
City Council Agenda Item Report
RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution approving and adopting
a race-neutral Disadvantaged Business Enterprise (DBE) program and setting the
annual goals for all capital projects funded with assistance from the Federal Transit
Administration (FTA) for Fiscal Year 2006-2007.
BACKGROUND:
Every year, the Transportation Department has recommended the City Council re-
adopt the DBE program, which allows the Department to comply with FTA
requirements for grantees receiving federal capital assistance in excess of $250,000
(excluding bus procurements). By approving this program, the City Council will
reaffirm its commitment to award contracts to bidders without regard to the individual
or entity’s race, color, creed, gender, age, national origin or physical disability.
Over the last several years, the Transportation Department has exceeded its
previously approved goals and awarded several contracts to DBE firms for
consulting and other services. In the last year, the Department awarded contracts
that utilized DBE firms as part of the Automatic Vehicle Locator system and CNG
fueling facility expansion contracts.
DISCUSSION:
Transportation Department staff prepared the FY 2006-07 DBE policy in accordance
with the federal guidelines provided by the FTA in 49 CFR, Parts 23 and 26. DBE
Meeting Date: 8/28/2006 Item Number: A-6
AGENDA ITEM: Adoption of a Resolution approving and adopting the
Disadvantaged Business Enterprise Program and Setting of Goals for Fiscal Year
2006-07
Contact Person/Dept.: Andre Colaiace Phone Number: (310) 253-6543
Fiscal Impact: Yes [] No [X] General Fund: Yes [] No [X]
Public Hearing: [] Action Item: [X] Attachments: [X]
Public Notification:
Public Notice placed in Culver City News on July 13, 2006 and Passenger Transport on
July 17, 2006; Master Notification List on 8/24/06
Department Approval:
Stephen C. Cunningham on 8/16/2006
City Manager Approval:
Martin Cole for Jerry Fulwood 8/22/06
City Controller Approval:
N/ACity of Culver City, California
City Council Agenda Item Report
goals are based on projections of contract awards in the fiscal year and the
availability of DBEs given the size and nature of the contracts to be awarded. After
an analysis of projected FY 07 contract awards, staff recommends a FY 07 DBE
goal of 8%. This goal is in line with DBE goals set by other transit agencies.
Because of a recent Ninth Circuit Court Decision (see attached Metro memo), the
FY 07 DBE program will be conducted in a race neutral manner, which essentially
means that the Department will try and reach its annual goals without resorting to
so-called “contract goals” which mandate that accepted bidders employ DBE firms
as subcontractors. Since the Department has not utilized contract goals in the past,
this court decision should have no effect on its ability to carry out the FY 07 DBE
program.
The Transportation Department adhered to the public notification element of the
DBE guidelines by placing a notice in the Culver City News and Passenger
Transport. The program was available for review for thirty (30) days following the
publication of the notice. Written comments were accepted for forty-five (45) days
from the date of the first notice. At this time, the Department has not received any
comments.
FISCAL ANALYSIS:
This item has no fiscal impact. Approval of a DBE goal is required to ensure the
Department can continue to receive funds from the Federal Transit Administration.
ATTACHMENTS:
1. Resolution
2. FY 2006-07 Disadvantaged Business Enterprise Program
3. METRO memo dated June 26, 2006
MOTION:
That the City Council:
1.) Adopt a resolution approving and adopting a Disadvantaged Business Enterprise
Program for FTA-funded projects and approving and adopting the Disadvantaged
Business Enterprise Goal of 8% for Fiscal Year 2006-07.
MEETING DATE: 8/28/06
AGENDA ITAM:
Approval of a Resolution adopting the Disadvantaged Business
Enterprise Program and Setting of Goals for Fiscal Year 2006-07
ATTACHMENTS
Pages
1. Resolution 1
2. Disadvantaged Business Enterprise Program FY 06-07 2-36
3. METRO memo dated June 26, 2006 37-411|1010101010101010 10
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Afra c,V) I
RESOLUTION NO. 2006-R
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CULVER CITY, CALIFORNIA, ADOPTING A
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
AND SETTING GOALS FOR FISCAL YEAR 2006-2007
WHEREAS, pursuant to Department of Transportation regulation 49 CFR Parts
23 and 26, as amended and regulations promulgated thereunder, to be eligible for federal
funds the City of Culver City is required to have a Federal Transit Administration (FTA)
approved Disadvantaged Business Enterprise (DBE) program and set goals for Fiscal Year
2006-2007.
NOW, THEREFORE, the City Council of the City of Culver City, California, DOES
HEREBY RESOLVE, as follows:
1. The DBE program attached hereto and made a part hereof is hereby
reapproved, readopted and extended for FY 2006-2007.
2. The DBE goal of eight (8) percent in FTA-funded contracting opportunities
is hereby approved and adopted for FY 2006-2007.
APPROVED and ADOPTED this day of 2006.
GARY SILBIGER, MAYOR
City of Culver City, California
ATTEST: APPROVED AS TO FORM:
CHRISTOPHER ARMENTA, CAROL A. SCHWAB,
City Clerk City Attorney
RDBE Council ResoDISADVANTAGED
BUSINESS ENTERPRISE
PROGRAM
FY 2006-07
CULVER CITY
MUNICIPAL BUS LINES
CULVER CITY, CATABLE OF CONTENTS
PAGE(S)
POLICY
1
I. OBJECTIVES
2
II. APPLICABILITY
3
III. DEFINITIONS
3
IV. RESPONSIBILITY FOR DBE PROGRAM IMPLEMENTATION AND
ADMINISTRATION 5
V. ADMINISTRATIVE REQUIREMENTS 7
VI.
DETERMINING, ACHIEVING AND COUNTING OVERALL ANNUAL AND
CONTRACT SPECIFIC DBE GOALS 9
VII. REQUIRED CONTRACT PROVISIONS 16
VIII. DBE CERTIFICATION STANDARDS 18
IX. CERTIFICATION PROCEDURES 22
X. MONITORING AND RECORD-KEEPING 26
XI. PUBLIC PARTICIPATION AND OUTREACH 27
XII. COMPLIANCE WITH FEDERAL LAW 28
ATTACHMENT A: ESTABLISHING THE BASE FIGURE 29
ATTACHMENT B: CCMBL ANNUAL GOAL 32
ATTACHMENT C: CONTROL DETERMINATIONS FOR DBE
CERTIFICATION EVALUATIONS 34
APPENDIX U.S. CENSUS BUREAU COUNTY BUSINESS PATTERNS
FOR LOS ANGELES
CALIFORNIA DEPARTMENT OF TRANSPORTATION
DBE DIRECTORY FOR LOS ANGELESPOLICY
Culver City Municipal Bus Lines (CCMBL) began operations in 1928, and is the
second oldest municipal bus operation in Los Angeles County. After over
seventy (70) years of operations, CCMBL provides 7 fixed-route local transit lines
in the West Los Angeles area of Los Angeles County. In FY 05, over 5.4 million
customers rode CCMBL.
The City Council of Culver City encourages the participation of Disadvantaged
Business Enterprises (DBEs) in its procurement and contracting activities. The
City reaffirms its commitment to award its contracts and purchase orders in a
non-discriminatory manner regardless of the individual's or entity's race, color,
creed, sex, age, national origin or physical disability. CCMBL is committed to
carrying out all of the requirements set forth in 49 CFR Parts 23 and 26, as
amended, "Participation by Disadvantaged Business Enterprises in the
Department of Transportation Programs," substantial amendments to which were
made effective as of March 4, 1999. In striving to include DBEs in all phases of
DOT-assisted projects under this Program, CCMBL is also committed to
employing race neutral means, as that term is defined in the federal regulations,
to the maximum extent possible. Starting in FY 07, CCMBL shall not establish
contract goals until regional Los Angeles County disparity studies are completed.
Passed and adopted by the City Council of Culver City on August 28, 2006.
Transportation DirectorI. OBJECTIVES
Culver City Municipal Bus Lines (CCMBL) encourages ready, willing and able
DBEs to become involved in all phases of its contracting, including but not limited
to. CCMBL procurement activities, fixed-price contracting, regular purchases of
goods and services, and special government grant procurements. Pursuant to
this Program, CCMBL may establish, pending the findings of appropriate
regional disparity studies, appropriate contract goals for expenditures on
federally funded programs entered into with small business concerns owned and
controlled by socially and economically disadvantaged individuals; provided,
however, that it has first made a determination, on an annual basis, that its
overall goals for DBE participation in DOT-assisted projects cannot be met
through the use of race neutral means. Starting in FY 07, CCMBL shall not
establish contract goals until regional Los Angeles County disparity studies are
completed.
To further Program goals, CCMBL shall do the following:
1. Ensure that its contracts are awarded and administered in a non-
discriminatory manner;
2. Help remove barriers to DBE participation in the bidding, award and
administration of CCMBL contracts;
3. Ensure that only firms that fully meet the eligibility standards set forth in
49 CFR Parts 23 and 26, as amended, are certified as eligible DBEs;
4. Identify DBE enterprises that are qualified to provide CCMBL with required
materials, equipment, supplies and services, and develop a good rapport
with the owners, managers and sales representatives of those
enterprises;
5. Develop communications programs and procedures that will acquaint
prospective DBEs with CCMBL's contract procedures, activities and
requirements and allow DBEs to provide CCMBL with feedback on
existing barriers to participation and effective procedures to eliminate
those barriers; and
6. Administer the Program in close coordination with the various divisions
within CCMBL so as to facilitate the successful implementation of this
Program.II. APPLICABILITY
As a recipient of federal financial assistance from the Federal Transit
Administration ("FTA") of the DOT, CCMBL is required to implement a DBE
Program in accordance with the requirements of 49 CFR Parts 23 and 26, as
amended. The Program set forth herein applies to all CCMBL contracts that are
funded over $250,000 (excluding bus procurements), in whole or in part, by FTA
federal financial assistance.
It is the policy of CCMBL that no person will be excluded from participation in,
denied the benefits of, or otherwise be discriminated against in connection with
the award and performance of any contract on the basis of race, color, sex,
national origin or other protected status.
In the administration of the DBE Program, CCMBL will not directly or through
contractual or other arrangements, use criteria or methods of administration that
have the affect of defeating or substantially impairing the accomplishment of the
objectives of this DBE Program.
III. DEFINITIONS
Where applicable, the definitions set forth in 49 CFR Parts 23 and 26, as
amended, shall be used to implement this Program. Some of the most common
terms are defined below:
1. DBE
A DBE is a for-profit, small business concern: 1) that is at least fifty-one
percent (51%) owned by one or more individuals who are socially and
economically disadvantaged, or, in the case of a corporation, in which
fifty-one percent (51%) of the stock 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.
2. Small Business Concern
A small business concern is an existing small business, as defined by
section 3 of the Small Business Act and the Small Business
Administration regulations (13 C.F.R. Part 121), whose average annual
gross receipts for the previous three years has not exceeded $16.6 million
(or as adjusted for inflation by the Secretary of FTA) pursuant to the terms
and 49 CFR Part 26.3. Socially and Economically Disadvantaged Individuals
The following classes of individuals will be rebuttably presumed to be
socially and economically disadvantaged individuals:
a. Black or African Americans (including persons having origins in any
of the Black racial groups of Africa);
b. Hispanic or Latino Americans (including persons of Central or
South American, Cuban, Dominican, Mexican, Puerto Rican, or
other Spanish or Portuguese culture or origin, regardless of race);
c. Native Americans (including persons who are Aleuts, American
Indians, Eskimos, or Native Hawaiians);
d. Asian-Pacific Americans (including persons whose origins are from
Brunei, Burma (Myanmar), Cambodia (Kampuchea), China, the
Commonwealth of the Northern Marianas Islands, the Federated
States of Micronesia, Fiji, Guam, Hong Kong, Indonesia, Japan,
Juvalu, Kirbati, Korea, Laos, Macao, Malaysia, Nauru, the
Philippines, Samoa, Taiwan, Thailand, Tonga, the U.S. Trust
Territories of the Pacific Islands (Republic of Pilau), or Vietnam);
e. Subcontinent Asian Americans (including persons whose origins
are from Bangladesh, Bhutan, India, the Maldives Islands, Nepal,
Pakistan, or Sri Lanka);
f. Women; or
g.
A member of any other group that is designated as socially and
economically disadvantaged by the Small Business Administration
or applicable federal law.
Additionally, any other individual who is able to demonstrate, by a
preponderance of evidence, that he or she is socially and economically
disadvantaged may be eligible for DBE certification.
However, as provided in 49 CFR Parts 23 and 26, as amended, any otherwise
eligible individual whose personal net worth is in excess of Seven Hundred and
Fifty Thousand Dollars ($750,000) may not qualify for a social and economic
disadvantage status.4. Race-Neutral
A procedure or program that is used to assist all small businesses,
regardless of whether they may have received or are eligible to receive
DBE certification. For the purposes of this Program, race-neutral includes
gender neutrality.
5. Race-Conscious
A measure or program that is specifically focused on assisting DBEs,
including women-owned DBEs. Measures typically will involve
establishing DBE contract goals, where necessary.
IV. RESPONSIBILITY FOR DBE PROGRAM IMPLEMENTATION AND
ADMINISTRATION
A. The City Council is ultimately responsible for ensuring that CCMBL fully
implements its DBE Program.
B. The Transportation Director is responsible for overseeing DBE Program
implementation.
C. The Purchasing Officer is responsible for the contracting and
procurement of goods and services; for initiating procedures and
developing strategies to ensure that CCMBL's purchasing and contracting
activities are carried out in a non-discriminatory manner; problem
identification when DBE goals are included in contracts; auditing specific
contracts and removing obstacles to achieving DBE contract goals, where
applicable; and providing the DBE Liaison Officer and other staff with
assurance that DBE program guidelines have been followed.
D. The City Attorney's Office is responsible for providing advice to the City
Council, the Transportation Director, division managers on the legal
ramifications of DBE Program implementation.
E. DBE Liaison Officer. The Senior Management Analyst (Transportation
Administration) has been designated DBE Liaison Officer. The Liaison
Officer is the primary person responsible for all aspects of this Program,
and will work closely with the operating division and other divisions and
consultants of CCMBL, including procurement and others who are
responsible for making decisions relative to CCMBL's construction,
procurement and professional service contracts. The Liaison Officer shall
have full authority for the implementation and administration of this
Program, including efforts to contact and assist DBEs, maintain a close
/er-,working relationship with local DBE affiliates, and to develop information
and recommendations in the development of bid packages and
procurement plans. The DBE Liaison Officer shall have direct and
independent access to the Transportation Director, who shall assign
adequate staff to assist the Liaison Officer in the performance of his/her
duties. The Liaison Officer shall also hold the following duties and
responsibilities:
Li Gathering and reporting statistical data and other information as required
by FTA;
Li Reviewing third party contracts and purchase requisitions for compliance
with this program;
Li Working with appropriate departments to establish overall annual goals;
Ensuring timely notification to the DBE community of bid and contract
opportunities;
Li Identifying contracts and procurements so that required DBE goals are
included in solicitations for both race-neutral and race-conscious DBE
participation, and monitoring the results;
LI Analyzing CCMBL progress toward DBE goal attainment, and identifying
ways to improve progress;
Li Participating in pre-bid meetings;
El
Analyzing and assessing the available resources and evidence for the
establishment and achievement of an annual overall participation goal for
DBEs each fiscal year;
Li Advising the Transportation Director, City Attorney's Office and City
Council on DBE matters;
LI
Conducting race-neutral measures to facilitate DBE participation through
outreach and other communication programs, training and business
development programs, restructuring contracting opportunities, simplifying
bonding, surety and insurance requirements or other race-neutral means;
LI Planning and conducting DBE training and providing technical assistance;
LI Providing outreach to DBEs and community organizations with advice on
DBE Program issues and contract opportunities;Li Participating in the contract bid and award process including establishing
specific contract goals where appropriate, reviewing contract
specifications, attending pre-bid conferences and evaluating bids for
contractor responsibleness, responsibility and good faith efforts;
Li Monitoring specific contract performance and actual DBE participation;
Li Monitoring overall DBE participation, adjusting overall goals and means of
achievement, assessing areas of over concentration of DBE participation
and reporting to CCMBL, the City Council and appropriate federal
authorities, FTA as needed;
Participating in the statewide Unified Certification Program in accordance
with 49 CFR 26.81; and
El Maintaining all appropriate records and documentation of the DBE
Program.
F. Reconsideration Official. The Transportation Director appoints the
Deputy Transportation Director as the Reconsideration Official for fiscal
year 2006-2007. The Reconsideration Official shall be responsible for
responding to challenges or complaints arising out of or related to this
DBE Program, including those related to certification challenges, the
review of good faith compliance efforts by bidding firms, and
determination of the amount of work actually performed by DBEs, except
those decertification proceedings requiring a hearing officer, as set forth
below in Section 9(E).
V. ADMINISTRATIVE REQUIREMENTS
a) Financial Institutions
CCMBL, through the Culver City Camber of Commerce and those specific
area chambers in which we provide service, shall investigate the full
extent of services offered by financial institutions owned and controlled by
socially and economically disadvantaged individuals in the Los Angeles
area and shall make reasonable efforts to use these institutions in
connection with its DOT-assisted projects. In order to determine eligible
DBE financial institutions, CCMBL may use the investigations and
determinations of other relevant public entities receiving DOT assistance;
such as the Los Angeles County Metropolitan Transportation Authority.
Additionally, CCMBL shall encourage its prime contractors on DOT-
assisted projects to use such financial institutions.
yx°
10b) DBE Directory
1. Pursuant to 49 CFR § 26.31, the Liaison Officer will maintain and
update a DBE directory. The DBE Directory shall include the firm's
name, address, telephone number, and types of work (utilizing
Standard Industry Codes (SICs) for which the firm is certified as a
DBE. Additionally, the DBE Directory may include, whenever
possible, the date the firm was established, the legal structure of
the firm, the percentage owned by disadvantaged individuals,
capacity, previous work experience and a contact person.
2. CCMBL will use the DBE Directory as a resource in developing
overall and contract-specific DBE participation goals and in
conducting outreach and other programs for DBEs. In maintaining
this DBE Directory, CCMBL will use, in part or in whole, the
directory from the California Department of Transportation
(Ca!trans) or the Los Angeles County Metropolitan Transportation
Authority (METRO).
c) Overconcentration of DBEs
Should the Liaison Officer determine that DBE participation is so over
concentrated in certain types of work or contracting opportunities that it
unduly burdens the participation of non-DBEs in that type of work, he or
she, or his or her designee, will develop appropriate measures to address
the overconcentration. The DBE Representative will seek approval from
the FTA or appropriate federal authority, and upon receipt of the FTA or
appropriate federal authority's approval, the measures will become part of
this Program.
d) Business Development and Mentor-Protégé Programs
Where necessary to solicit ready, willing and able DBEs or to ensure that
an over concentration of DBEs does not exist in any type or activity of
work, CCMBL may, at its discretion, implement business development
and/or mentor-protegee programs for DBEs. Additionally, where directed
to do so by the FTA, DOT or other appropriate operating administration,
CCMBL shall implement such programs. These programs shall assist
DBEs develop business skills and experience in areas related to the
services required by CCMBL. Any such programs implemented by
CCMBL shall comply with the federal guidelines set forth in Appendices C
and D to 49 CFR Part 26.
e) Transit Vehicle Manufacturer CertificationCCMBL will require all of its transit vehicle manufacturers to certify that
they have established an annual overall DBE participation goal that has
been approved by the FTA (or has been submitted but not disapproved)
before they can bid on any CCMBL contracts.
VI. DETERMINING, ACHIEVING AND COUNTING OVERALL ANNUAL AND
CONTRACT SPECIFIC DBE GOALS
A. OVERALL ANNUAL DBE GOAL
In accordance with 49 CFR § 26.41 et seq., the City Council shall
establish an annual overall goal on a federal fiscal year basis for the
participation of DBEs in all budgeted contracts utilizing FTA or other DOT
federal financial assistance. The annual overall goal shall be expressed
as a percentage of the total amount of FTA funds CCMBL anticipates
expending in the fiscal year. CCMBL's annual overall goal represents the
number of ready, willing and able DBEs that are available to participate in
contracting opportunities and is reflective of the amount of DBE
participation CCMBL would expect absent the effects of discrimination.
CCMBL Transit intends to meet this goal to the maximum extent feasible
by implementing the race-neutral measures described below_ Where
race-neutral measures are inadequate to meet the annual overall goals,
CCMBL will establish specific contract goals for particular projects with
subcontracting opportunities. Starting in FY 07, CCMBL shall not establish
contract goals until regional Los Angeles County disparity studies are
completed.
The method by which CCMBL will establish its DBE Program goals is
more fully described in Attachment A to this Program.
As set forth in the Report attached as Attachment B and hereby
incorporated by reference into this Program, CCMBL's overall DBE
program goals for fiscal year 2006-2007 will be 8 percent.
1. DBE Eligibility
CCMBL shall require all DBEs listed in bids to have obtained
appropriate certification. The DBE Liaison Officer shall review
each bidder's DBE Report to confirm the status of each DBE listed.
CCMBL will accept current certifications by FTA and its agencies,
the Small Business Administration, or other FTA federal financial
assistance recipients. CCMBL will require any firm listed but not
currently certified as a DBE to submit the proper certification
information within five days of bid opening in order to be included in
the bidder's DBE achievements.CCMBL shall require all prime contractors to make good faith
efforts to replace any DBE subcontractor that is unable to perform
successfully with another DBE subcontractor. In order to ensure
that a particular substitute firm is an eligible DBE, all such
substitutions of subcontractors must be approved by CCMBL
before bid opening and/or promptly during contract performance.
2. Race Neutral Means
This Program does not establish DBE quotas or set-asides for
CCMBL contracts. Rather, this Program reflects a good faith effort
on CCMBL's part to support DBE firms that are ready, willing, and
able to carry out work on its behalf. Under no circumstances shall
CCMBL exclude any person or firm from participation, deny any
person or firm the benefits of, or otherwise discriminate against any
person or firm on the basis of race, color, sex or national origin.
Only after it makes a determination, on an annual basis,that its
overall goal for DBE participation in its DOT-assisted projects
cannot be reached through race neutral means shall CCMBL
establish DBE contract goals for the fiscal year.
To that end, CCMBL may use one or more of the following
measures and others, where appropriate, to meet its overall
Program goals in a race-neutral manner:
1) Arrange solicitations, times for the presentations of bids,
quantities, specifications, and delivery schedules in a way
that will facilitate DBE participation;
2) Assist in DBE's overcoming limitations in bonding and
financing;
3) Provide technical assistance;
4) Provide outreach and communications programs to DBEs;
5) Provide business development activities including financial
ability, technical/business capacity, use of emerging
technology and start-ups in non-traditional business areas
for DBEs; and
6) Distribute the DBE directory electronically and otherwise as
requested.
II CONTRACT GOALS
( 31. Establishing Contract Goals
CCMBL shall establish contract-specific DBE participation goals on
particular prime contracts with subcontracting opportunities only
when it cannot achieve its annual overall Program goal using race-
neutral measures. Starting in FY 07, CCMBL shall not establish
contract goals until regional Los Angeles County disparity studies
are completed. Where a contract-specific DBE goal has been
established, the bidder or proposer must meet the contract-specific
goal or demonstrate that it has made good faith efforts to do so. A
bidder shall be ineligible for an award if it does not meet the
contract goals or demonstrate it has made good faith efforts to do
so.
Contract goals, where applicable, shall be established based on a
recommendation and information furnished by the Liaison Officer.
These goals shall be set, where necessary, according to the factors
outlined below:
1) The projected portion of the overall annual goal that will be
met by establishing contract-specific goals;
2) The progress towards achieving annual overall goals;
3) The full range of activities in the proposed contract;
4) The availability of DBEs as prime contractors or
subcontractors in the types of work involved in the
performance of the proposed contract;
5) The unique conditions of the project that might affect the
ability of the prime contractor to coordinate, utilize or
incorporate subcontractors or suppliers into the project.
(Projects consisting of only one or two subtrades may not be
appropriate for a contract-specific goal due to the fact that
establishing a goal could result in restrictive bidding);
6) The effect that the contract-specific goal might have on the
time of completion; and
7) Any other relevant criteria.
If, during the course of a fiscal year, CCMBL determines that
through the implementation of its contract goals it has met itsoverall DBE goals for that year, it shall reduce or eliminate its
contract goals to the extent necessary.
If CCMBL has obtained DBE participation that exceeds its overall
DBE goals for two consecutive fiscal years, it shall reduce its
contract goals for the next fiscal year accordingly. Additionally, if
CCMBL has met its overall DBE goals through race neutral means
for two consecutive years, it will continue to use race neutral means
and not set contract goals until such time that it has not met its
overall DBE goals for a fiscal year.
2. Awarding Contracts with Contract-Specific Goals
Each solicitation for which a DBE contract goal has been
established will require the bidders/offerors to submit the following
information under sealed bid procedures as a matter of
responsiveness, with the initial proposals under contract
negotiation procedures, or, where applicable, prior to the
commitment to perform the contract:
a) The names and addresses of DBE firms that will participate
in the contract;
b) A description of the work that each DBE will perform;
c) The dollar amount of the participation of each DBE firm;
d) Written documentation of commitment to the use DBE
subcontractors whose participation the prime submits as part
of its efforts to meet a contract goal;
e) Written confirmation from the DBE that it is participating in
the contract as provided in the prime contractor's
commitment; and
t") If the DBE contract goal has not been met, evidence of good
faith efforts to meet the goal.
CCMBL shall award applicable contracts to the lowest responsible
bidder as required by the California Public Contract Code Sections
20914 and 20916. A bidder that fails to demonstrate that it
achieved the contract-specific DBE participation goal and fails to
demonstrate that it made good faith efforts to do so shall be
deemed non-responsive and shall, therefore, be ineligible for award
of the contract.
7;5-The Liaison Officer, or his or her designee, shall review the total
dollar value of the work and the percentage of the total contract bid
price reported on the bidder/contractors's DBE Report for accuracy
and shall compare it to the contract-specific goal established for the
contract.
3. Determination of Good Faith Efforts
If the amount of DBE participation submitted by a bidder/contractor
does not meet the contract-specific-goal, the DBE Representative
shall review the good faith effort report submitted by the
bidder/contractor as required by the contract document. The DBE
Representative shall determine whether the bidder Contractor has
demonstrated good faith efforts to meet the contract-specific goal
in accordance with 49 CFR Part 26 Appendix A.
Good faith efforts include, but are not limited to, the following:
1) Whether the contractor solicited capable DBEs through all
reasonable and available means (e.g. attendance at pre-bid
meetings, advertising and/or written notices);
2) Whether the contractor solicited DBEs with sufficient time to
allow them to respond, and if appropriate steps were taken,
to follow up with interested DBEs;
3)
Whether the bidder/contractor selected portions of work to
be performed by DBEs and, where appropriate, broke out
contract work items into economically feasible units to
facilitate DBE participation even when the prime contractor
might otherwise prefer to perform these work items with its
own forces;
4) Whether the contractor negotiated in good faith with
interested DBEs (documentation includes names, addresses
and phone numbers; description of information provided
regarding plans and specifications; and indication as to why
additional agreements could not be reached);
Whether the contractor made efforts to assist interested
DBEs in obtaining necessary equipment, supplies, materials
or related assistance or services;
6) Whether the contractor made efforts to assist interested
DBEs in obtaining bonding, lines of credit or insurance;
b7) Whether the contractor effectively used the services of
available minority/women community organizations,
contractor groups or other organizations to provide
assistance in recruitment and placement of DBEs;
8)
Whether other bidders on the procurement met DBE goals;
and
9) Whether the contractor makes any other form of good faith
effort as set forth in Appendix A to 49 CFR Part 26.
4.
Bidder's Right to Administrative Reconsideration
In the event that the Liaison Officer determines that the apparent
low bidder has not met the contract-specific goal and has not
demonstrated good faith efforts to do so, the Liaison Officer will
notify the bidder in writing. The notification shall explain the basis
and include the reasons for the determination, and shall inform the
bidder of his or her right to submit further written documentation
and have an opportunity to meet with the Reconsideration Official
pursuant to the provisions of Section 9(D).
In the event that the Reconsideration Officer finds that the bidder
has not met the contract goal or demonstrated good faith efforts,
CCMBL will deem said bidder non-responsive and evaluate the
bidder submitting the next lowest bidder.
5. Recommendation for Award of Contract with DBE Goal
Following the determination of the lowest responsible bidder, the
DBE Representative shall prepare a report to the Transportation
Director on the lowest responsible bidder's compliance with the
DBE requirements, which may be reviewed by the City Council
prior to the time its awards the contract. If the City Council
disagrees with the recommendation, it shall reject all bids or refer
the matter back to the Transportation Director and/or Liaison
Officer or their designee for further evaluation and
recommendation. The decision of the City Council on the award of
contract, if such a decision is made, shall be final and binding on all
parties.
C. COUNTING AND TRACKING DBE PARTICIPATION
Once a firm has received DBE certification, the total dollar value of the
work actually performed by the DBE may be counted toward the contract
goal, provided the DBE performs a commercially useful function. In
tr7determining what proportion of the expenditure shall be applied towards
the DBE goal, the criteria set forth in 49 CFR Section 26.55 and the
following shall apply:
1) The total dollar amount of the contract actually performed by a DBE
or a subcontractor who is a DBE.
2) Where a DBE performs work for CCMBL as part of a joint venture,
the total dollar amount equal to the distinct, clearly defined portion
of the work carried out on the contract by the DBE may be counted
towards the DBE goal.
3) Only 60% of the expenditures for materials and supplies required
under the contract and obtained from regular dealers who are
DBEs, as defined in 49 C.F.R. Section 26.55, may be counted
toward the award goals if the vendor is not the manufacturer.
100% of such expenditures may be counted if the DBE
manufacturer is the manufacturer.
4) If the DBE is not a manufacturer or a regular dealer, the following
fees and/or commissions may be counted, provided that the fee
and/or commission is not unreasonable or excessive as determined
by CCMBL in light of the customary fees charged for similar
services:
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 the contract may be counted;
b) The fees charged for delivery of materials and supplies
required on the job site (but not the cost of the materials and
supplies) when the hauler, trucker or delivery service is not
also the manufacturer or a regular dealer in the materials
and supplies; and
c) The fees or commissions charged for providing any bonds or
insurance specifically required for the performance of the
contract.
No prime contractor may terminate for convenience any DBE
subcontractor listed in its bid and perform the work with its own forces or
those of an affiliate without CCMBL's prior written approval.A contractor must make a good faith effort to replace a defaulting DBE
subcontractor with another certified DBE. The prime must immediately
notify the Liaison Officer of any DBE's inability to perform and provide
reasonable documentation to substantiate its claim. The contractor must
receive COMBL's approval prior to substituting a DBE. The contractor will
provide copies of new or amended subcontracts and a completed DBE
certification application form for each new DBE, or must provide sufficient
good faith efforts documentation. If the contractor fails or refuses to
comply in the time specified by CCMBL, the Transportation Department
will issue an order stopping all or part of payment/work until satisfactory
action has been taken. If the contractor still fails to comply, the contract
officer may issue a termination for default proceeding.
VII. REQUIRED CONTRACT PROVISIONS
CCMBL shall require the following provisions be included in agreements arising
out or related to all its federally assisted projects:
A. Nondiscrimination Affirmation
1. Each financial assistance agreement that CCMBL executes with
the FTA will include the following statement:
"The recipient shall not discriminate on the basis of race, color,
national origin, or sex in the award and performance of any FTA-
assisted contract, or in the administration of its DBE Program. The
recipient shall take all necessary and reasonable steps under 49
CFR Part 26 to ensure nondiscrimination in the award and
administration of FTA-assisted contracts. The recipient's DBE
Program, as required by 49 CFR Part 26, and as approved by FTA,
is incorporated by reference in this agreement. Implementation of
this DBE Program is a legal obligation and failure to carry out its
terms shall be treated as a violation of this agreement. Upon
notification to CCMBL of its failure to carry out its approved
program, the Federal Transit Administration may impose sanctions
as provided for under Part 26 and may, in appropriate cases, refer
the matter for enforcement under 18 U.S.C. 1001 and/or the
Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et
seq.)"
2. Each FTA-assisted contract CCMBL signs with a contractor, and
each subcontract the prime contractor signs with a subcontractor,
will include the following statement:"The contractor, subrecipient or subcontractor shall not discriminate
on the basis of race, color, national origin or sex in the performance
of this contract. The contractor shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of
FTA-assisted contracts. Failure by the contractor to carry out these
requirements is a material breach of this contract, which may result
in termination of this contract or such other remedy as CCMBL
deems appropriate."
B. Prompt Payment Policy and Provisions
CCMBL shall include the following provision in each FTA-assisted
contract:
"No later than Thirty (30) days after receiving payment from CCMBL for
work satisfactorily performed by any of its subcontractors for services
rendered arising out of or related to this Agreement, CONTRACTOR shall
make full payment to its subcontractors of all compensation due and
owing under the relevant subcontract agreement, unless excused by
CCMBL for good cause pursuant to provisions of Section 1.1 below."
"No later than Fifteen (15) days after receiving payment of retention from
CCMBL for work satisfactorily performed by any of its subcontractors for
services rendered arising out of or related to this Agreement,
CONTRACTOR shall also make full payment to its subcontractors of all
retentions withheld by it pursuant to the relevant subcontract agreement,
unless excused by CCMBL for good cause pursuant to provisions of
Section 1.1 below."
"1.1 Good Cause
"CONTRACTOR may only delay or postpone any payment
obligation (or retention) to any of its subcontractors for services
rendered arising out of or related to this Agreement where, in
CCMBL's sole estimation, good cause exists for such a delay or
postponement. All such determinations on CCMBL's part that good
cause exists for the delay or postponement of CONTRACTOR's
payment obligation to its subcontractor must be made in writing
prior to the time when payment to the subcontractor would have
been otherwise due by CONTRACTOR."
Legal Remedies
CCMBL requires that its contracts with prime contractors and prime
contractor/subcontractor contracts shall include the following provision:'in addition to those contract remedies set forth under relevant provisions
of California law, either party to this Agreement may, where applicable,
seek legal redress for violations of this Agreement pursuant to relevant
provisions of 49 C.F.R. Parts 23 and 26, federal or state statutory
provisions governing civil rights violations, and relevant federal and state
provisions governing false claims or 'whistle blower' actions, as well as
any and all other applicable federal and state provisions of law."
D. Administrative Remedies
CCMBL requires that its contracts with prime contractors contain the
following provision:
"CONTRACTOR's failure to make good faith efforts to comply with
CCMBL's DBE program shall be considered a material breach of this
AGREEMENT and may give rise to certain administrative penalties and
proceedings, including, but not limited to, those set forth in 49 C.F.R. Part
26.107."
DBE Program Compliance
COMBL requires that its contracts with prime contractors and prime
contractor/subcontractor contracting shall include the following provision:
"CCMBL has established a DBE Program pursuant to 49 C.F.R. Parts 23
and 26. The requirements and procedures of CCMBL's DBE Program are
hereby incorporated by reference into this Agreement. Failure by any
party to this Agreement to carry out CCMBL's DBE Program procedures
and requirements or applicable requirements of 49 C.F.R. Part 26 shall be
considered a material breach of this Agreement, and may be grounds for
termination of this Agreement, or other such appropriate administrative
remedy. Each party to this Agreement shall ensure that compliance with
CCMBL's DBE Program shall be included in any and all sub-agreements
entered into which arise out of or are related to this Agreement."
VIII. DBE CERTIFICATION STANDARDS
A. Burden of Proof
Each firm, partnership or individual claiming DBE certification and
submitting bids to CCMBL has the burden of proof by a preponderance of
the evidence standard to show that it has met the requirements for DBE
certification. In making determinations regarding DBE eligibility, social
and economic disadvantage (as defined below) will be rebuttably
presumed where the firm, partnership or individual has submitted
9.1affidavits and required supporting documentation representing that it holds
a social and economic disadvantage status, as defined below. The
presumption of social and economic disadvantage may be rebutted
where, in CCMBL's estimation and in accordance with the procedures for
determining certification eligibility set forth below, insufficient evidence
supports the affidavit of the firm, partnership or individual claiming such
social and economic disadvantage status.
Where CCMBL has a reasonable basis to doubt an individual's or firm's
claim of social and economic disadvantage, it shall require the individual
or firm to demonstrate, by a preponderance of the evidence, that he or
she falls within a category of social and economic disadvantage and may
institute, where applicable, a certification review proceeding as more fully
described in Section IX.
All firms, partnerships, or individuals who do not submit affidavits
asserting social and economic disadvantage status, or whose assertion of
social and economic disadvantage has been rebutted, will not be
presumed to hold such a status and bear the burden of demonstrating to
CCMBL that they are socially and economically disadvantaged.
B. Definitions
1) "Disadvantaged Business" is a small business concern owned and
controlled by socially and economically disadvantaged individuals.
2) "Socially and Economically Disadvantaged Individuals" means
those individuals who are citizens of the United States (or lawfully
admitted permanent residents) and who are women, Black or
African Americans, Hispanic Americans, Native Americans, Asian-
Pacific Americans, or Asian-Indian Americans and any other
individuals found to be disadvantaged by the Small Business
Administration pursuant to Section 8(a) of the Small Business Act.
CCMBL shall make a rebuttable presumption that individuals in the
following groups are socially and economically disadvantaged:
a) "Black or African Americans," which includes persons having
origins of any of the Black racial groups of Africa;
b) "Hispanic Americans," which includes persons of Mexican,
Puerto Rican, Cuban, Central or South American,
Portuguese or other Spanish culture or origin, regardless of
race;
c) "Native Americans," which includes persons who are
American Indians, Eskimos, Aleuts, or Native Hawaiians;d) "Asian-Pacific Americans," which includes persons whose
origins are from Japan, China, Taiwan, Korea, Burma
(Myanmar),Vietnam, Laos, Cambodia (Kampuchea),
Thailand, Malaysia, Indonesia, the Philippines, Brunei,
Samoa, Guam, the U.S. Trust Territories of the Pacific
(Republic of Palua), the Commonwealth of the Northern
Marianas Islands, Macao, Fiji, Tonga, Kirbat, Juvalu, Mauru,
Federated States of Micronesia, or Hong Kong;
e) "Subcontinent Asian Americans," which includes persons
whose origins are from India, Pakistan, Bangladesh, Bhutan,
the Maldives Islands, Nepal or Sri Lanka;
f) Women;
g) Any additional groups whose members are designated as
socially and economically disadvantaged by the SBA; and
h) CCMBL may determine that individuals who are not a
member of one of the above-listed groups are socially and
economically disadvantaged.
3) "Rebuttal of Presumption of Disadvantage" means there is
creditable evidence supporting a finding that an individual
presumed to be socially and economically disadvantaged has a
personal net worth in excess of Seven Hundred and Seventy
Thousand Dollars ($750,000), or a reasonable basis to believe that
the individual is not a member of an above-described socially
disadvantaged group.
4) "Small Business Concern" means a small business as defined
pursuant to Section 3 of the Small Business Act and relevant
regulations promulgated pursuant thereto. If a business is not a
small business concern, it is not an eligible DBE regardless of
ownership by socially and economically disadvantaged individuals.
a) In general, a small business concern shall not include any
concern or group of concerns controlled by the same socially
and economically disadvantaged individual or individuals
which has annual average gross receipts in excess of
$16.6 million over the previous three fiscal years. (See 13
C.F.R. Part 121.402.) This figure may be adjusted from time
to time for inflation.
)8;b) In determining whether a particular business is a small
business concern, CCMBL shall apply the standards
established by the Small Business Act (13 CFR Part 121 et
seg.) which may impose more restrictive annual gross
receipt restrictions, depending on the type of business.
5) "Owned and Controlled" is defined as a business concern that 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, or, in
the case of a partnership or limited liability company, at least 51
percent of the interest is owned by one or more socially and
economically disadvantaged individuals, as demonstrated by the
substance, not merely the form, of these various ownership
arrangements.
6) "Joint Venture" is an association of two or more businesses formed
to carry out a single business enterprise for profit, for which
purpose they combine their property, money, efforts, skills and
knowledge.
Firms Not Presumed to Be Socially or Economically Disadvantaged, CCMBL
has established a procedural form for certification determinations of individuals
who are not members of one of the presumed socially and economically
disadvantaged groups listed above.
Individuals applying for certification who must meet the following criteria:
(a) Their business must be a small business concern.
(b) They must have had a personal experience of substantial and chronic
social disadvantage in American society, not in other countries.
(c)
They must possess at least one of the following features of individual
social disadvantage: that is, they must feel that their individual social
disadvantage stems from color; gender; national origin; physical handicap;
long-term residence in an environment isolated from the mainstream of
American society; or other similar cause beyond their control.
(d) They must demonstrate a negative impact on entry into or advancement
in the business word because of social disadvantage. This may be
determined by considering the following:
( i)
Education. They can demonstrate they have been denied equal
access to business or professional schools, curricula, exclusionfrom social and professional association with students and
teachers, educational honors, or any other social patterns of
pressure which have discouraged them from pursuing a
professional or business education.
(ii) Employment. They can demonstrate unequal treatment in hiring,
promotions, professional advancement, or other terms or
conditions of employment.
(iii) Business History. They can demonstrate unequal access to credit
or capital, acquisition of credit or capital, or other unequal treatment
in pursuing and obtaining business opportunities.
IX. CERTIFICATION PROCEDURES
A. Unified Certification Program (UCP)
CCMBL has adopted and is now a full participant in the UCP.
B. Initial Certification Program
Until it has entered a UCP agreement, CCMBL shall establish procedures
designed to ensure that this Program secures only those firms that meet
DBE certification requirements, as defined by federal law and regulations.
CCMBL may accept as evidence DBE certification determinations made
by other appropriate public entities.
In order to determine whether a firm is an eligible DBE upon its initial
request for DBE certification, CCMBL or another certifying entity, shall, at
a minimum, require that the following steps have been taken by the
agency conducting the certification:
(1) Perform an on-site visit to the offices of the firm and to any job sites
on which the firm is working at the time of the eligibility
investigation;
(2) Obtain the resumes and/or work histories of the principal owners of
the firm and personally interview these individuals;
(3)
Analyze the ownership of stock in the firm, if it is a corporation, and
analyze the bonding and financial capacity of the firm;
(4) Determine the work history of the firm, including contracts it has
received and work it has completed;
7ds-(5) Obtain or compile a list of equipment owned or available to the firm
and the licenses held by the firm and its key personnel to perform
the work it seeks to do as part of this DBE Program; and
(6) Obtain a statement from the firm of the type of work it prefers to
perform as part of this DBE Program.
When making determinations regarding certification, CCMBL or other
certifying entity shall consider all facts contained in the record as a whole.
Additionally, all information provided by bidders or contractors that is
labeled by contractor as being proprietary information and which CCMBL
reasonably determines as such, shall be kept confidential by CCMBL to
the extent allowed by law.
If, at any time during the bidding process or after the applicant has been
awarded a CCMBL contract, a change in circumstances has occurred
affecting the applicant's ability to continue to claim a DBE status, it must
submit written notification, in the form of an affidavit, of this change and
the reasons therefor to CCMBL within Thirty (30) days of the occurrence
of the change. Whenever the factual basis upon which a decision DBE
certification has changed, CCMBL may at any time conduct a certification
review of the firm prior to its regular time for recertification.
Where required, CCMBL or the certifying entity shall make its
determination of a firm's eligibility for initial DBE certification within Ninety
(90) days of receiving all the required information from the applicant.
CCMBL or the certifying entity may extend the time in which to consider a
firm's eligibility for DBE certification by an additional Sixty (60) days;
provided written notice is given to the applicant of the delay in the
determination and the reasons therefor.
In the event CCMBL or certifying entity determines that an applicant is not
eligible for a DBE status, it shall provide the applicant with written reasons
why this determination has been made. All applicants whose applications
for DBE status have been denied by CCMBL may appeal to the DOT
pursuant to the procedures and provisions of 49 CFR 26.89.
C. Recertification Procedures
Unless the factual basis upon which the DBE's initial certification has
changed or reasonable grounds exists for a certification review, CCMBL
shall ensure that all firms considered eligible on its accepted DBE
Directory have been recertified every three (3) years, on or about the
firm's anniversary date of its initial DBE certification. Additionally, upon
request the firm must provide CCMBL with annual affidavits by its
owner(s) by the anniversary date of the firm's initial certification statingthat there have been no changes in the firm's circumstances affecting its
ability to continue meeting DBE certification requirements. Failure to
provide this annual affidavit may be grounds for denial of DBE
recertification.
D. Reconsideration and Reapplication Procedures
Any bidder/contractor whose contention of good faith efforts to comply
with CCMBL DBE Program goals has been denied by CCMBL shall have
an opportunity, at its request, to have the matter reconsidered by CCMBL.
If so requested, the bidder/contractor will have an opportunity to meet with
the Reconsideration Officer, or his or her designee, to discuss CCMBL's
decision denying the good faith efforts claim of the bidder; provided,
however, that the bidder/contractor has presented documentation and
written argument prior to such a reconsideration meeting discussing the
adequacy of the bidder/contractor's good faith efforts. Subsequent to this
meeting, CCMBL shall provide a written response to the bidder/contractor,
explaining the basis for its determination in the matter. Pursuant to 49
CFR section 26.53, CCMBL's reconsideration determination is not
appealable to the DOT.
Where CCMBL has determined that any portion of DBE participation
claimed by a contractor has not served a commercially useful function
pursuant to 49 CFR section 26.55, the contractor may provide evidence to
the Reconsideration Officer rebutting this finding on CCMBL's part. Any
subsequent determination by CCMBL finding that a DBE did not serve a
commercially useful purpose on any of its DOT-assisted projects may be
appealed to the appropriate federal authority.
Any firm whose DBE status has been denied by CCMBL may not reapply
for DBE certification within a Twelve (12) month period from the time the
previous application was made. For purposes of determining when this
twelve month period begins to accrue, the date upon which the applicant
receives its written notice of denial from the CCMBL shall be considered
the date upon which the application has been denied.
E. Removal Procedures
Any person may file a complaint alleging that a firm currently on CCMBL's
DBE Directory may not claim a DBE status; provided, however, any
complaints must state the reasons therefor and provide information
supporting the complaint. The identities of individuals submitting such
complaints shall be kept confidential by CCMBL pursuant to the terms of
49 C.F.R. Section 26.109(b). However, in the event a decertification
proceeding is commenced, the third party complainant shall be informed
by CCMBL that the complaint will be disclosed to the firm sought to be
decertified.When seeking to remove firms that have already received DBE
certification from its Directory on the basis of a third party complaint or on
the basis of its own reasonable information and belief, CCMBL shall do
the following:
(1) If CCMBL determines that there is reasonable cause to decertify
the firm, CCMBL shall provide the affected firm with notice of the
proposed decertification and a statement of reasons for the
decertification. This notice shall also include a statement to the
firm to be certified of its right to a hearing on the matter.
(2) CCMBL shall appoint an individual to be officer at the hearing who
is familiar with DOT DBE certification procedures, but who has not
been involved in CCMBL's consideration of the firm under review
for decertification. This individual may, but need not be, an
administrative law judge.
(3)
A court reporter, or other state-certified transcriber of public
adjudicatory proceedings, shall make a verbatim record of the
decertification hearing proceedings. Should the firm request DOT
or other appropriate federal authority's •review of the hearing
officer's statement of decision, CCMBL shall provide a certified
transcript of the hearing record to the firm at the firm's expense.
(4) At the hearing, the firm under consideration for decertification shall
be provided an opportunity to respond to the reasons for the
proposed action and the right to provide information and arguments
on the matter.
(5)
The hearing officer shall make a determination on the matter based
upon the record and only based upon the grounds for
decertification set forth below. The hearing officer's decision shall
also include a statement of decision and the reasons therefor as
set forth in (6) below. However, the decision may not be based on
a reinterpretation or changed opinion of the information available to
CCMBL at the time of the certification of the firm. The hearing
officer's decision affirming CCMBL's proposed decertification
decision must be based on one of the following grounds:
(a) Changes in the firm's circumstances have occurred since
the certification of the firm that have rendered it ineligible for
DBE certification;(b) Information was not available to CCMBL at the time the firm
was certified which serves as an independent basis for the
firm's decertification;
(e) Information was concealed or misrepresented by the firm in
previous certification actions submitted by the firm;
(d) A change in certification standards has occurred since the
certifying the firm; or
(e) A documented finding of CCMBL error in the prior or
relevant certification of the firm.
(6)
The hearing officer shall provide the firm to be decertified and the
third party complainant, where applicable, with notice of the
decision, which shall include a statement of reasons for the
decision within specific references made to the record supporting
each reason for the decision. Additionally, notice of decision shall
be provided to CCMBL.
(7)
The firm shall remain a DBE certified entity until the decision
regarding decertification has been provided the parties.
F. Process for Certification Appeals
A firm that has been denied certification or whose eligibility is removed
may make an administrative appeal to the DOT, FTA, or other appropriate
federal authority pursuant to 49 C.F.R. Section 26.89. Should a firm seek
an appeal, it must make written request with the appropriate federal
authority within ninety (90) days of the date of CCMBL's final decision,
which written request must include information concerning why CCMBL's
decision should be reversed, and any other legal requirements.
X. MONITORING AND RECORD-KEEPING
A. Bidders List
CCMBL will maintain a bidders list consisting of all firms bidding on prime
contracts and bidding or quoting subcontracts on FTA or other DOT
assisted projects. For every firm, the following information will be
included: firm name, firm address, firm status as a DBE or non-DBE, the
age of the firm, and the annual gross receipts of the firm.
B. Monitoring Payments to DBEs
2.4CCMBL will implement appropriate mechanisms to ensure that its prime
contractors and subcontractors comply with DBE program regulatory
requirements. Specifically, CCMBL will maintain records on the following:
(1) Procedures which have been adopted to implement this Program,
including technical assistance efforts and referral and
communication procedures;
(2) Contracts awarded to DBEs, including name of firm, nature of work,
total value of the contract and/or subcontract and the overall
percentage of DBE awards;
(3)
Specific efforts to identify and award contracts to DBEs including
the number and names of firms contacted and invited to bid on a
contract, the number of names of DBEs responding and the
publications in which the contract procurement was advertised;
(4) Payments made by Prime Contractors to DBE subcontractors; and
(5) All documentation related to the meeting of overall DBE goals
through race neutral means and contract goals. Data related to
race neutral and contract goals DBE program achievements shall
be kept and recorded separately.
C. Federal Reporting Requirements
CCMBL will continue to require information concerning its DBE program to
FTA and other appropriate federal agencies.
XI. PUBLIC PARTICIPATION AND OUTREACH
A. Public Participation
COMBL, in addition to any advertising required by law for construction
bids, will provide bid information to the following:
1) Local and regional DBE focused publications, containing project
description, pre-bid meeting date, bid opening date and a notice to
disadvantaged contractors and/or subcontractors indicating that
they may obtain lists of prospective contractors as well as contract
specifications from CCMBL.
2) Disadvantaged contractors and/or subcontractors who are
identified as firms that may render the necessary construction
activity.B. Outreach Efforts
To the maximum extent feasible, CCMBL will meet its overall DBE goal by
using race-neutral means. Race-neutral efforts may include, but are not
limited to, the following:
1)
Arranging solicitations, times for presentation of bids, quantities,
specifications, and delivery schedules in ways that facilitate DBE
and other small businesses;
2) Providing technical assistance and other similar services;
3) Carrying out information and communications programs on
contracting procedures and specific contract opportunities;
4) Implementing a supportive service program to develop and improve
immediate and long-term business management, record keeping,
and financial and accounting capability for DBEs and other small
businesses through the Regional Certification Reciprocity Council
(RCRC);
5)
Ensuring distribution of CCMBL's DBE data base through print and
electronic means to the widest feasible universe of potential prime
contractors; and
6) Other means and methods as deemed necessary.
XII. COMPLIANCE WITH FEDERAL LAW
It is the intent of CCMBL to comply with all applicable federal laws, regulations,
or other requirements governing its DBE Program, including, but not limited to,
the procedures and requirements set forth 49 C.F.R. Parts 23 and 26 and those
established under the SBE. To the extent that any provision or procedure set
forth in this Program conflicts or is inconsistent with any federal law, regulation or
other requirement, the federal law, regulation or other requirement shall govern
the implementation of this Program.Attachment A
I Establishing a Base Figure
CCMBL will develop a base figure to express the availability of DBEs as a
percentage of all contractors, subcontractors, manufacturers and
suppliers in the relevant contracting markets. CCMBL will follow one of the
methodologies provided in the federal regulations and provide the
appropriate documentation for its annual overall DBE Program goals.
a. Using the goal of another recipient
The last specific example included in the rule is using the goal of
another recipient as the base figure for goal setting. This example
is intended to avoid the duplicative work and to lighten the load on
smaller recipients. Using the goal of another recipient is only
allowable if that recipient's goal was set in accordance with this rule
and the recipient performed similar contracting in a similar market
area.
CCMBL will use the Los Angeles County Metropolitan
Transportation Authority's (LACMTA) goal for FY2005-06 as the
base figure in calculating the goal for FY2006-07. The LACMTA
used the recommended formulas under the new rule to calculate
their goal of 8%. The LACMTA and CCMBL are located in the
same market area and may utilize the same DBE vendors for FTA
assisted capital projects.
b. Analyzing Available DBEs in the Relevant Contracting Markets
The Liaison Officer will conduct, or have conducted, a similar
analysis to determine the DBEs that are available to participate as
contractors, subcontractors, manufacturers and suppliers in the
projected contracts for the fiscal year. This analysis will include a
description of the available DBEs relative to the geographical
boundaries of the solicitations, the SICs for the types of work to be
contracted, and any other factors as described in above. CCMBL
will consult a variety of sources including, but not limited to, the
DBE Directory, the Bidder's List, the County Business Patterns
Database and any relevant disparity studies.
c. Calculating the Base Figure
The Liaison Officer will compare, or have compared, the available
DBEs in the relevant contracting markets for the fiscal year to the
available businesses in the relevant contracting markets for thefiscal year. The calculation will include a weighting factor according
to the contract expenditure patterns.
2. Adjusting the Base Figure:
Pursuant to 49 CFR § 26.45(d), CCMBL will adjust the base figure based
on demonstrable evidence indicating that the availability of DBEs for FTA-
assisted contracts for the fiscal year may be higher or lower than the base
figure indicates. At a minimum, the Liaison Officer will analyze the results
of CCMBL's efforts to contract with DBEs for the past two years, any
available and relevant disparity studies (to the extent that they are not
accounted for in the base figure), any available and relevant results of
other, similar FTA recipients' efforts to contract with DBEs, any relevant
feedback or projections from DBE professional organizations, the Small
Business Administration or others.
Using the data collected regarding over-concentration, DBE availability of
firms ready, willing and able, and other necessary adjustments (such as
how long each project will span), a goal will be set at the level of DBE
participation expected absent the effects of discrimination.
3. Projection of Percentage of Overall Goal to be Achieved Through
Race Neutral and Race Conscious Measures:
Once the annual overall goal is proposed, the Liaison Officer will analyze
and project the maximum feasible portion of that goal that can be
achieved by using race neutral methods. Where the projected portion of
the goal using race-neutral methods is less than the annual overall goal,
the remaining portion will be achieved by establishing contract goals for
particular projects that have subcontracting opportunities. Starting in FY
07, CCMBL shall not establish contract goals until regional Los Angeles
County disparity studies are completed. Any overconcentration of DBEs
in a particular trade will be excluded from race-conscious contract goals.
The Liaison Officer shall monitor and adjust the use of contract-specific
goals in accordance with 49 CFR 26.51(f). When projecting the
percentage of the overall annual goal to be achieved through establishing
contract-specific goals, the Liaison Officer shall analyze the actual
achievement of the overall annual goal through race-neutral methods in
the previous two years. When establishing contract-specific goals during
the current fiscal year, the DBE Representative shall analyze the progress
towards achieving the overall annual goal and increase or reduce the use
of contract-specific goals accordingly. DBE race-conscious contract goals
will be used only on those FTA assisted contracts that have
subcontracting opportunities. DBE contract goals will be established soas to cumulatively result in meeting that portion of CCMBL's overall goal
that is not projected to be met through race-neutral means.
4. Adopting and Publishing the Overall Annual DBE Goal
Upon completion of the analysis described above, the Liaison Officer will
prepare an Overall Annual Goal Report. The report shall document the
analysis and methodology as well as the proposed goal and estimate to
be achieved through race-neutral measures. The Report will be furnished
to the Transportation Director. Upon the Director's recommendation, the
proposed overall annual goal will be submitted to the City Council for
authority to publicize the proposed goal for public comment.
5. Publication of Proposed Overall Annual Goal
Pursuant to 49 CFR § 26.45(g), CCMBL will publish the proposed overall
annual goal in general circulation and DBE-oriented media. The notice
shall include a statement that the methodology and proposed goal are
available for inspection by the public for 30 days from the date of
publication. The notice shall also include a statement that CCMBL will
accept public comments to the proposed goal and methodology for a
period of 45 days from the date of publication and provide instructions for
the submission of comments. Upon receipt of public comments, the
Liaison Officer will prepare a summary report analyzing the public
comments received, if any, to the Transportation Director.
)1;11Attachment B
Culver City Municipal Bus Lines
Disadvantaged Business Enterprise (DBE)
Fiscal Year 2006-07 Annual Goal
CCMBL hereby announces its Fiscal Year 2006-07 transit system procurement goal of
for Disadvantaged Business Enterprises (DBEs). The methodology used to calculate
the base number and the goal is consistent with 49 CFR Parts 23 and 26.
Overall Goal Setting Methodology
1. Expected Funding for FY 2006-2007
Work
Category
Work Category
Description
NAICS
Codes
Estimated
Dollar Value
% of Federal
Funding by
Work Category
A CNG Facility
Expansion
238990/
237
$1,600,000 100%
2. Base Figure Calculations (§26.45)
Work Category # of DBEs # of Firms
A 84 1101
Base Figure = # of Ready, Willing, and Able DBEs
Number of Ready, Willing, and Able Firms
With weighting, the Base Figure resulting from this calculation is as follows:
Base Figures= (DBEs in A)
Firms in A
Base Figure= 84
1101
Base Figure = .076 = 8% FY 06 GOALAttachment C
Control Determinations for DBE Certification Evaluations
1. In determining whether socially and economically disadvantaged owners control
a firm, CCMBL will consider all firms listed in the DBE Directory for the County of Los
Angeles, which is supplied by the California Department of Transportation (Caltrans).
The U. S. Census Bureau County Business Pattern Database will be used to record the
total number of ready, willing, and able firms.4
(3) Metro
Metropolitan Transportation Authority. One Gateway Plaza- 213.922.20oCTei
Los Angeles, CA 90012-2952 metro.net
JUNE 26, 2006
TO: BOARD OF DIRECTORS
THROUGH: ROGER SNOBLE
CHIEF EXECUTIVE OFFICER
FROM: LONNIE MITCHELL
EXECUTIVE OFFICER
PROCUREMENT & MATE 1 MANAGEMENT
SUBJECT: RACE-NEUTRAL DBE PROGRAM & DISPARITY STUDY
PURSUANT TO NINTH CIRCUIT COURT OF APPEALS
DECISION
ISSUE
Ninth Circuit Court Decision
In May,. 2005, the U.S. Court of Appeals for the Ninth Circuit, in the case of Western
States Paving vs. Washing-on Department ofTransportation, held that, in the absence of
adequate evidence of discrimination, it is unconstitutional for a recipient of federal
Department of Transportation (DOT) funds to utilize race- and gender-conscious
(hereinafter race-conscious) goals in its contracting.
U.S. DOT Guidance
As a result of this decision, DOT has advised agencies in the Ninth Circuit's jurisdiction,
including Metro, that a recipient agency's use of Disadvantaged Business Enterprise
(DBE) contract goals must be predicated upon evidence of discrimination or its effects
within the transportation contracting industry
Impact to Metro
Metro has examined the evidence it has on hand concerning discrimination and its
effects. Based on this information, which includes a 1995 disparity study. Staff has
determined that it may not have evidence to support the continued use of race -conscious
goals. Under these circumstances, Metro would be putting itself at significant litigation
risk if it continues to use race-conscious goals.According to the DOT guidance, since Metro may lack the evidence to support the use of
race-conscious contract goals, Metro is required to implement a wholly race- and gender-
neutral (hereinafter race-neutral) program. Additionally, Metro is required to initiate an
evidence gathering process to determine evidence of discrimination or its effects in the
greater Los Angeles area transportation contracting industry. This evidence gathering
process is better known as a disparity/availability study. Metro has earmarked $500,000
for this effort
With few exceptions, generally there is no difference in how the DBE program regulations
apply to a race-and gender-neutral program as compared to a race- and gender-conscious
progra-m. In a wholly race-neutral program, Metro would not establish individual contract
goals for DBE participation on any of its US DOT-assisted contracts. Rather, Metro would
implement methods that aim to facilitate small business and DBE participation on its
contracts. Such methods include the unbundling of contracts, providing technical, capital
and bonding assistance, and facilitating business development programs. Metro would
continue to collect the data required to be reported in the Uniform report of DBE Awards
or Commitments and Payments Form and to monitor compliance with the commercially
useful function, prompt payment and retainage requirements.
The move from a race-conscious program to a wholly race-neutral program does not have
retroactive application. Thus, contracts executed and approved prior to the
implementation of a race-neutral program would not be affected by this change.
BACKGROUND
DBE Program Requirement
DOT recipient agencies who let $250K or more in DOT-assisted contracts, including
Metro, are required under the federal DBE regulations to set an overall goal for DBE
participation on their DOT-assisted contracts. The overall goal must reflect a recipient
agency's determination of the level of DBE participation it would expect absent the effects
of discrimination. The overall goal is determined from an examination of DBE relative
availability in the recipient agency's local market using DBE directory information, census
data, bidders lists, disparity or similar studies, historical information, and data on local
market conditions.
Recipient agencies must meet the maximum feasible portion of its overall goal by using
race-neutral means of facilitating DBE participation. Race neutral means include but are
not limited to: (1) arranging contracts in ways to facilitate small business participation
such as unbundling large contracts or requiring prime contractors to subcontract portions
of the work; (2) providing bonding, financing and technical assistance, (3) communicating
contract opportunities to the small business community and (4) providing business
supportive and development services. Recipient agencies are required to establish contract
goals (race-conscious means) to meet any portion of the overall goal it does not project
being able to meet using race-neutral means. Contract goals must provide for
participation by all certified DBEs and must not be subdivided into group specific goals.
Race-Neutral DBE Program & Disnaxitv Study
2/.Metro's DBE Program
Metro ann-ually submits its overall goal projection to DOT for review and approval. This
overall goal projection consists of a breakout of the portion of the goal that Metro expects
to meet through race-neutral means, including the basis for that projection, and the
portion Metro expects to meet using race-conscious methods, i.e. setting contract goals. In
a narrowly tailored DBE program, Metro must meet the maximum portion of its DBE
overall goal through race-neutral means. 1 To ensure that Metro's DBE program meets the
narrowly tailored requirement to overcome the effects of discrimination, Metro must
adjust its use of contract goals according to the progress it is making in meeting the overall
goal through race-neutral means. As an example, if during the course of any year in which
Metro is using contract goals it projects exceeding the overall goal, it must reduce or
eliminate the use of contract goals.
Since the issuance of the current DBE program requirements in 1998, Metro has regularly
submitted and received DOT approval of its overall goal following this process.
New Evidentiary Standard to Support Use of DBE Contract Goals
However, in May 2005 in the case of Western States Paving vs. Washington Department of
Transportation, the Ninth Circuit held that a recipient agency's DBE program must be
narrowly tailored to accomplish the remedial objectives established by Congress to be
constitutional To be narrowly tailored, the court stated that recipient agencies must as an
element of its DBE program produce sufficient evidence of discrimination or its effects in
its transportation contracting industry to justify the use of race-conscious measures. The
court also suggested that a narrowly tailored program must structure its use of race-
conscious measures to provide remedial relief to those groups that have actually suffered
discrimination. The court added that to include groups within a DBE program who have
not suffered discrimination would provide such groups with an unconstitutional
competitive advantage at the expense of both non-minorities and any minority groups that
have actually been targeted for discrimination.
Caltrans Response to Ninth Circuit Decision
In response to the Ninth Circuit's decision and related guidelines issued by the Federal
Highway Administration (FHWA), the California Department of Transportation (Goitrous)
implemented an evidence gathering process, that concluded in March 2006 to assess
evidence of discrimination and its effects in the State of California's transportation
contracting industry.
Caltrans conducted approximately 20 public forums throughout the State, gathered
testimonials, disparity studies and other related evidence as required by the Ninth Circuit
ruling. In the end, Caltrans along with the FHWA, concurred that the evidence of
discrimination in California's transportation contracting industry did not meet the legal
Narrowly tailored features include: (1) race conscious remedies are used only when race neutral means prove
ineffective, (2) race-conscious measures are employed in a flexible manner and for a limited duration (3) the program is
tied to the labor market in each state and (4) the program is designed to minimize the burden on non-minorities.
lace-Neutral DBE Program & Disparity Studystandards established by the Ninth Circuit case and, therefore, was insufficient to support
continued use of race conscious measures. -
CaItrans subsequently informed the FHWA and the public that, pending the results of a
more comprehensive study of the facts, it would be implementing a wholly race-neutral
DBE program effective May 1, 2006.
DOT Guidance
In March, 2006, the DOT issued through the Federal Registera notice of policy
implementation entitled Western States Guidance for Public Tr.gnspartadon Providers
seeking public comment. In essence, the guidance issued by DOT stated that recipient
agencies who seek to use race-conscious goals must first look to marshal evidence of
discrimination that would respond to the Ninth Circuit's decision in Western States. A
recipient agency's record must contain evidence suggesting that minorities or women
currently suffer or have ever suffered discrimination in the relevant transportation
contracting industry. Otherwise, according to the guidance document, a recipient agency's
DBE program would not be narrowly tailored to further congress' remedial objective and
would conflict with the guarantees of equal protection.
DISCUSSION
Impact to Metro's DBE Program
The impact of the Ninth Circuit decision is that, to use race conscious goals, Metro must
possess evidence of discrimination or its effects that support the continued use of DBE
contract goals to the FTA and/or FHWA. Absent adequate evidence of discrimination or
its effects, it would be unconstitutional for Metro, even under the umbrella of the
constitutional DOT regulations, to use race-conscious goals in its DBE Program.
If the evidence of discrimination and its effects identified by Metro pertains to some, but
not to all, of the groups that the federal DBE regulations presume to be socially and
economically disadvantaged, then the race-conscious goals utilized by Metro would apply
only to the group or groups for which the evidence is adequate. 2 A disparity study will
determine this. The DOT has indicated that it will consider program waivers of the federal
DBE regulations' prohibition of group-specific goals in this situation.
Disparity Study
Upon implementing a wholly race-neu al program, Metro would be required to
immediately begin to conduct a rigorous and valid study to determine whether there is
evidence of discrimination or its effects in the transportation contracting industry. Studies
to determine the presence of discrimination or its effects are often referred to as disparity
or availability studies. The study is designed to determine, in a fair and valid way, whether
evidence of the kind the Ninth Circuit decision determined was essential to a DBE
program including race-conscious elements exists.
2 These groups include women, Black Americnns, Hispanic Americans, Native Americ2ns, Asian-Pacific Amerirans,
Subcontinent Asian Americans, or other minorities found to be disadvantaged by the SBA.
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Metro's FFY07 DBE Program
At the start of the Federal Fiscal Year 2007 (October 1, 2006), Metro will implement a
wholly race-neutral program for its Federal Transit Administration (FTA) related DBE
program. Concurrent with the implementation of this program, Metro will conduct an
availability/disparity study to identify whether a race-conscious program is warranted on
its PTA related DBE program. With respect to FHWA funds, Metro is also a sub-grantee
of FHWA funds through Caltrans. On June 1, 2006, Metro reported to the Coltrane Office
of Local Programs and Alameda Corridor that it does not anticipate awarding any PHWA-
assisted contracts. Barring any changes, the Western States Paving decision will have no
impact on Metro's FHWA related DBE program this Federal Fiscal Year. Should a change
in this status occur, Metro agreed to adopt Caltrans' Race-Neutral DBE Program for all
FY07 FH-WA-related contracts.
Use of Anticipated Levels of Participation to Suggest DBE Participation
Under the wholly race-neutral program, Metro will implement an approach that is
currently being used by other recipient agencies, including Caltrans, where each request
for proposal will include a description of the number of DBE firms that are available to
perform on the contract. Based on the number of ready, willing and able DBE firms
identified, a figure will be presented that describes the Anticipated Level of Participation
(ALP) of DBE firms that would be expected to be achieved based on the relative availability
of DBE firms. Staff will revise the current goal evaluation process to fit this program, and
will also examine boiler plate contract language, DBE plan, reporting forms, other
program items that may need to be adjusted to fit the ALP approach.
Metro's Disparity Study
Consistent with the DOT-issued guidelines, Metro will conduct an independent
availability/disparity study since the demographics of Metro's market area differs from
that of Caltrans and other transit properties that may also be conducting similar studies.
Metro plans to immediately solicit requests for proposals to contract with a consultant to
begin accumulating the evidence necessary to meet evidentiary s andards established in
the Ninth circuit court decision. Metro's study will focus on avoiding the pitfalls that the
court identified in the WSDOT program and will include a breakout of the effects of
discrimination on each of the presumptive groups if necessary. The costs for the disparity
study may be reimbursed by US DOT, according to availability of funds and sharing
formulas.
Upon completion of study and direction of results, Metro may again use race-conscious
goals at least for those groups where the effects of discrimination are shown to affect the
ability of a group to compete on a nondiscriminatory basis.
Race-Neutral DBE Prozram & Disparity Study
e,/