CC - Item 4C - Adoption Of Disadvantaged Business Enterprise (DBE) Program5 E M F
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TO: HONORABLE MAYOR
AND MEMBERS
ROSEMEAD CITY COUNCIL
epor
FROM: FRANK G. TRIPEPI, CITY MANAGER
DATE: DECEMBER 5, 2000
RE: ADOPTION OF DISADVANTAGED BUSINESS ENTERPRISE (DBE)
-PROGRAM
Recent changes in the law regarding disadvantaged (small, minority-owned, and
woman-owned) businesses have resulted in the requirement for each city to develop a
new DBE Program. After January 1, 2001, Caltrans will not approve Federal funds for
any project unless the requesting city has an approved DBE Program. The proposed
DBE Program for the City of Rosemead is attached for your review and approval.
In the past, there was a federal requirement to have DBE participation set at a fixed
percentage of overall annual construction costs. But agencies were being sued on the
grounds that this was arbitrary and discriminated against contractors who could not
qualify as DBEs. The new legislation mandates a different approach to be taken by
agencies concerning DBEs. Now agencies must calculate their proposed DBE
percentages on a definitive basis and file an approved DBE Program with Caltrans.
There are three methodologies available to agencies for calculating their DBE goals: (1)
the "Bidders List" methodology; (2) the "Approved Goal of Another Local Agency'
methodology; and (3) the "Census Data and DBE Directory" methodology. The first
methodology, which involves using data from a bidders list that is to be created and
maintained by each city, is the most accurate and favored approach. It is also the
methodology that all cities must use once they have developed bidders lists.
Performing these calculations will produce the "Base Figure" for DBE participation.
Absent warranted and documented adjustments approved by Caltrans, this Base Figure
will be the city's overall annual DBE goal.
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December 5, 2000
Page 2
Staff developed a bidders list from an analysis of bid proposals received during the past
five fiscal years. Contractors and sub-contractors were identified and listed with one or
more of the eleven work elements of Federally funded public works projects. (The
eleven work elements are: paving, concrete, cold mill, crack fill/seal, manhole adjusting,
striping/signing, storm drains, street lighting, traffic signals, landscaping, and bridge
work.) The list of bidders developed by this analysis was then compared to the on-line
DBE Directory to identify DBE firms, and DBE percentages for each work element were
calculated by dividing the number of DBE firms by the total number of firms for each
work element. (These figures will be calculated and updated annually.) Finally, the
DBE percentages were applied to the cost of each work element for each project during
the upcoming fiscal year and multiplied by the percentage of Federal funding available
on each project, resulting in a Base Figure of 15.63% (rounded up to 16%). Caltrans
did not approve a downward adjustment of the Base Figure for the City; therefore,
Rosemead's overall annual DBE goal for FY 2000-01 is 16%.
The overall annual DBE goal consists of two parts: race-neutral and race-conscious
components.
Race-neutral: Race-neutral methods include: (1) configuring large contracts into
smaller contracts, when to do so would make contracts more accessible to smaller
businesses and would not impose significant additional cost, delay, or risk to the City;
(2) encouraging contractors to consider subcontractors for parts of the work for which
there is a known supply of ready, willing, and able subcontractors; (3) assisting in
overcoming limitations in bonding and financing; (4) providing technical assistance in
orienting small businesses to public contracting procedures, use of the Internet, and the
City's contracting activities; (5) providing outreach and communications programs on
contract procedures and opportunities; and (6) accepting the lowest responsive bidder
for a project regardless of whether it is a DBE firm.
Race-conscious: If a city is not meeting its goals through race-neutral measures, it
must use contract-specific (race-conscious) goals. Contract goals are established so
that, over the course of a fiscal year, they will cumulatively result in meeting any portion
of the overall goal that is not expected to be met through the use of race-neutral means.
The City of Rosemead plans to achieve its overall annual goal of 16% for DBE
participation with 11 % race-neutral and 5% race-conscious components. The prime
contractor for each project is responsible for obtaining sufficient DBE participation and
must make good faith efforts on the City's behalf. Good faith efforts are investigated if a
city's goal is not met.
Once a city has adopted its DBE Program, it must publish and post a notice of the
proposed overall goal informing the public that the goal and its rationale are available
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December 5, 2000
Page 3
for inspection during normal business hours for 30 days following the date of the notice,
with comments being accepted for 45 days following the date of the notice. One-time
advertisements in newspapers, woman/minority-focused media, trade publications, and
websites, in addition to public posting, are suggested.
Recommendation
It is recommended that the City Council adopt the attached proposed DBE Program,
authorize the City Clerk to advertise the proposed overall goal, and submit the adopted
DBE Program to Caltrans for approval.
1
Disadvantaged Business
Enterprise (DBE) Program
For the City of
.Rosemead, California
This Program is in accordance with Title 49 of the Code of Federal Regulations Part 26 -
12!7/2000
City of Rosemead, CA
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
PROGRAM
CITY OF ROSEMEAD, CALIFORNIA
I: Definitions of Terms
The terms used in this Program have the meanings defined in 49 CFR §26.5.
II. Objectives / Policy Statement (§§26.1, 26.23)
The City of.Rosemead (City) has established a Disadvantaged Business Enterprise
~j (DBE) Program in accordance with. regulations of the U.S. Department of
Transportation (DOT), 49 CFR Part 26. City has received Federal financial
assistance from the DOT, and as a condition of receiving this assistance, City will
sign an assurance that it will comply with 49 CFR Part 26.
It is the policy of City to ensure that DBEs, as defined in Part 26, have an equal
'
s
opportunity to receive and participate in DOT-assisted contracts. It is also City
policy:
'
1. To ensure nondiscrimination in the award and administration of DOT-
assisted contracts;
'
2. To create a level playing field on which DBEs can compete fairly for DOT-
assisted contracts;
3. To ensure that the DBE Program is narrowly tailored in, accordance with
applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards
are permitted to participate as DBEs;
'
5. To help remove barriers to the participation of DBEs in DOT-assisted
contracts; and
6. To assist the development of firms that can compete successfully in the
marketplace outside the DBE Program.
Tom Kirk, P.E., Supervising Engineer, has been designated the DBE Liaison
Officer (DBELO). In that capacity, Mr. Kirk is responsible for implementing all
1
aspects of the DBE Program. Implementation of the DBE Program is accorded the
same priority as compliance with all other legal obligations incurred by City in its
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financial assistance agreements with the California Department of Transportation
(Caltrans).
City has disseminated this policy statement to the City Council and all the
components of City's organization. City has distributed this statement to DBE and
non-DBE business communities that perform work for it on DOT-assisted contracts
f by publishing this statement in general circulation, woman/minority-focused, and
trade association publications.
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City of Rosemead, CA
III. Nondiscrimination (§26.7) .
7 City will never exclude any person from participation in, deny any person the
benefits of, or otherwise discriminate against anyone in connection with the award
and performance of any contract covered by 49 CFR Part 26 on the basis of race,
color, sex, or national origin.
In administering its DBE Program, City will not, directly or through contractual or
other arrangements, use criteria or methods of administration that have the effect of
defeating or substantially impairing accomplishment of the objectives of the DBE
Program with respect to individuals of a particular race, color, sex, or national
origin.
IV. DBE Program Updates (§26.21)
. City will continue to carry out this Program until City has established a new goal
setting methodology or until significant changes to. this DBE Program are adopted.
City will provide to Caltrans a proposed overall goal and goal setting methodology
and other Program updates by June 1 of every year.
V. Quotas (§26.43)
City will not use quotas or set-asides in any way in the administration of this DBE
Program.
VI. DBE Liaison Officer (DBELO) (§26.45)
City has designated the following individual as the DBE Liaison Officer:
Tom Kirk, P.E., Supervising Engineer
City of Rosemead .
8838 East Valley Boulevard
Rosemead, CA 91770
(562) 908-6284
tkirk@willdan.com
In this capacity, Mr. Kirk is responsible for implementing all aspects of the DBE
Program and ensuring that City complies with all provisions of Title 49 CFR Part 26,
"Participation by Disadvantaged Business Enterprise Regulations in Department of
Transportation Financial Assistance Programs." This is available on the Internet at
the website htto://osdbuweb.dot.qov/business/dbe/index.htm1. Mr. Kirk has direct,
independent access to the City Engineer of the City of Rosemead concerning DBE
Program matters. City has a staff of 2 professional employees who devote a
portion of their- time to the DBE Program. An organization chart showing the
DBELO's position within City's organization is attached as Exhibit A hereto.
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City of Rosemead, r_4
The DBELO is responsible for developing, implementing, and monitoring the DBE
Program, in coordination other appropriate officials. Duties and responsibilities
include the following:
1. Gather and report statistical data and other information as required.
2. Review third-parry contracts and purchase requisitions for compliance with
this Program.
3. Work with all departments to set overall annual goals.
4. Ensure that bid notices and requests for proposals are available to DBEs in
a timely manner.
5. Identify contracts and procurements so that DBE goals are included in
solicitations (both race-neutral methods and contract-specific goals) and
monitor results.
6. Analyze City's progress toward. goal attainment and identify ways to
improve progress. _
7. Participate in pre-bid meetings.
8. Advise the CEO/governing body on DBE matters and achievement.
9. Chair the DBE Advisory Committee.
10. Participate with legal counsel and project director(s) to determine contractor
compliance with good faith efforts.
11. Provide DBEs with information and assistance in preparing bids and
obtaining bonding and insurance.
12. Plan and participate in DBE training seminars.
13. Provide outreach to DBEs and community organizations to advise them of
opportunities.
' VII. Federal Financial Assistance Agreement Assurance (§26.13)
City will sign the following assurance, applicable to all DOT-assisted contracts and
their administration as part of the Program supplement agreement for each project:
The City of Rosemead shall not discriminate on the basis of race, color,
national origin, or sex in the award and performance of any DOT-assisted
contract or in the administration of its DBE Program or the requirements of 49
CFR Part 26. The City of Rosemead shall take all necessary and reasonable
steps under.49 CFR Part 26 to ensure nondiscrimination in the award and
administration of DOT-assisted contracts. The City of Rosemead's DBE
Program, as required by 49 CFR Part 26 and as approved by DOT, is
incorporated by reference in this Agreement. Implementation of this Program is
a legal obligation, and failure to carry out its terms shall be treated as a
violation of this Agreement. Upon notification to the City of Rosemead of its
failure to carry out its approved Program, the Department may impose
sanctions as provided for under Part 26 and may, in appropriate cases, refer
the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud
Civil Remedies Act of 1986 (31 U.S.C. 3801, etseq.).
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City of Rosemead CA -
VIII. DBE Financial Institutions
It is the policy of City to investigate the full extent of services offered by financial
institutions owned and controlled by socially and economically disadvantaged
individuals in the community, to make reasonable efforts to use these institutions,
and to encourage prime contractors on DOT-assisted contracts to make use of
these institutions.
Information on the availability of such institutions can be obtained from the DBELO.
The Caltrans Disadvantaged Business Enterprise Program may offer assistance to
the DBELO. r•
IX.
Directory (§26.31)
City will refer interested persons to the DBE directory at the website for the Caltrans
Disadvantaged Business Enterprise Program: httr)://www.dot.ca.g6y/hq/bep.
X.
Overconcentration (§26.33) ----y`°
City has not identified any types of work in DOT-assisted contracts that have an
overconcentration of DBE participation. If in the future City identifies the need to
address overconcentration, measures for addressing overconcentration will be
submitted to the Caltrans District Local Assistance Engineer (DLQE)'for approval.
XI.
Business Development Programs (§26.35)
City does not have a business development or mentor-protege program. If City
identifies the need for such a program in the future, the rationale for adopting such
a program and a comprehensive description of it will be submitted-to the DLAE for
approval.
XII.
Required Contract Clauses (§§26.13., 26.29)
1. Contract Assurance
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C
ty ensures that the following clause is placed in every DOT-assisted contract and
subcontract:
The contractor or subcontractor shall not discriminate on the basis of race,
color, national origin, or sex in the performance of this contract. The contractor
■
shall carryout applicable requirements of 49 CFR Part 26 in the award and
administration of DOT-assisted contracts. Failure by the contractor to carry out
these requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy. as the City of Rosemead
deems appropriate.
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a City of Rosemead, CA
4 2. Prompt Payment
City ensures that the following clauses or-equivalent will be included in each DOT-
assisted prime contract:
Satisfactory Performance. The prime contractor agrees to pay each
subcontractor under this prime contract for satisfactory performance of its
contract no later than ten (10) days from the receipt of each payment the prime
contractor receives from the City of Rosemead. Any delay or postponement of
payment from the above-referenced time frame may occur only for good cause
following written approval of the City of Rosemead. This clause applies to both
DBE and non-DBE subcontractors.
Release of Retainage. The prime contractor agrees further to release
retainage payments to each subcontractor within thirty (30) days after the
subcontractor's work is satisfactorily completed. Any delay or postponement of
payment from the above-referenced time frame may occur only for good cause
following written approval of the City of Rosemead. This•clause applies to both
DBE and non-DBE subcontractors.
XIII. Monitoring and Enforcement Mechanisms (§26.37)
City will assign a Resident Engineer (RE) or Contract Manager to monitor and track
actual DBE participation through contractor and subcontractor reports of payments.
in accordance with the following:
1. After Contract Award
After the contract award, City will review the award documents for the portion of
items each DBE and first-tier subcontractor will be performing and the dollar value
of that work. With these documents, the RE/Contract Manager will be able to
determine the work to be performed by the DBEs or subcontractors listed.
2. Pre-construction Conference
A pre-construction conference will be scheduled between the RE/Contract Manager
and the contractor or its representative to discuss the work each DBE subcontractor
will perform.
Before work can begin on a subcontract, City will require the contractor to submit a
completed "Subcontracting Request," Exhibit 16-B of the Caltrans Local Assistance
Procedures Manual (LAPM), or equivalent. When the RE/Contract Manager
receives the completed form, it will be checked for agreement of the first-tier
subcontractors and DBEs. The RE/Contract Manager will not approve the
Subcontracting Request when it identifies someone other than the DBE or first-tier
subcontractor listed in the previously completed "Local Agency Bidder DBE
Information," Exhibit 15-G of the LAPM, or equivalent. The Subcontracting Request
will not be approved until any discrepancies are resolved. If an issue cannot be
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City of Rosemead, CA
resolved at that time, or if there is some other concern, the RE/Contract Manager
will require the contractor to eliminate the subcontractor in question before signing
the Subcontracting Request. A change in the DBE or first-tier subcontractor may be
addressed during a substitution process at a later date.
Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE
Information" will be compared to those listed in the completed Exhibit 16-1 of the
LAPM or equivalent. Differences must be resolved by the contractor making
corrections or requesting a substitution.
Substitutions will.:be subject to the Subletting and Subcontracting Fair Practices Act
(FPA). Local agencies will require contractors to adhere to the provisions within the
Subletting and 5015contracting Fair Practices Act (State Law) Sections 4100-4144.
FPA requires the contractor to list all subcontractors whose work will exceed one-
half of one percent (0.5%) of the contractor's total bid or $10,000, whichever is
greater. The statute is designed to prevent bid shopping by contractors. The FPA
states that a'-contractor may not substitute a subcontractor listed in the original bid
except with the approval of the awarding authority.
The RE/Contract Manager will give the contractor a blank "Final Report Utilization
of DisadvantagedBusiness Enterprises, First Tier Subcontractors," Exhibit 17-F of.
the LAPM, or.equivalent, and will explain to the contractor that the document will be
required at the end; of the project and that payment can be withheld for failure to
submit the completed document, in conformance with the contract.
3. Construction Contract Monitoring
The RE/Contract"Manager will ensure that the RE/Contract Manager's staff
(inspectors) knows what items of work each DBE is responsible for performing.
Inspectors will notify the RE/Contract Manager immediately of apparent violations.
When a firm other than the listed DBE subcontractor is found performing the work,
the RE/Contract Manager will notify the contractor of the apparent discrepancy and
potential loss of payment. Based on the contractor's response, the RE/Contract
Manager will take appropriate action: The DBELO will perform a preliminary
investigation to identify any potential issues related to the DBE subcontractor
performing a commercially useful function. Any substantive issues will be
forwarded to the Caltrans Disadvantaged Business Enterprise Program. If the
contractor fails to adequately explain why there is a discrepancy, payment for the
work will be withheld and a letter will be sent to the contractor referencing the
applicable specification violation and the required withholding of payment.
If the contract requires the submittal of a monthly truck document, the contractor will
be required to submit documentation to the RE/Contract Manager showing the
owner's name, California Highway Patrol CA number, and, the DBE certification
number of the owner of the truck for each truck used during any month for which
DBE participation will be claimed. The trucks will be listed by California Highway
Patrol CA number in the daily diary or on a separate piece of paper for
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I City of Rosemead, CA
documentation. The numbers will be checked regularly by inspectors to confirm
compliance.
Providing evidence of DBE payment is the responsibility of the contractor.
4. Substitution
When a DBE substitution is requested, the RE/Contract Manager will request a
letter from the contractor explaining why substitution is---heeded. The RE/Contract
Manager must review the letter to be sure names and addresses are shown, dollar
values are included, and the reason for the request•is~'explained. If the RE/Contract
Manager agrees to the substitution, the RE/Contract-`Manager will notify the DBE
subcontractor in writing regarding the proposed substitution and procedure for
written objection from the DBE subcontractor in accordance with the Subletting and
Subcontracting Fair Practices Act. If the contractor-is-not meeting the contract goal
with this substitution, the contractor must provide the'=required good faith effort to
the RE/Contract Manager for local agency consideration..-•:
If there is any doubt in the RE/Contract Manager-'s. mind regarding the requested
substitution, the RE/Contract Manager may contact the'`'DLAE for assistance and
direction." "
5. Record Keeping and Final Report
`
The contractor shall maintain records showing the name
and address of each first-
tier subcontractor. The records shall also show: _ • .
a. The name and business address, regardless 'of tier, of every DBE
subcontractor, DBE vendor of materials, and DBE trucking company; and
b. The date of payment and the total dollar figurepaid to each of the firms.
The DBE prime contractor shall also show the date of work performed by its own
forces, along with the corresponding dollar value of the"work claimed toward DBE
-
goals.
4
When a contract has been completed, the contractor will provide a summary of the
records stated above. The DBE utilization information will be documented on the
"Final Report Utilization of Disadvantaged Business Enterprises, First Tier
Subcontractors," Exhibit 17-F of the LAPM, or equivalent, and will be submitted to
the DLAE attached to the Report of Expenditures. The RE/Contract Manager will
compare the completed Exhibit 17-F to the contractor's completed Exhibit 15-G
and, if applicable, to the completed Exhibit 16-B. The DBEs shown on the
completed Exhibit 17-F should be the same as those originally listed unless an
authorized substitution was made or the contractor used additional DBEs. The
dollar amount should reflect any changes made in planned work done by the DBEs.
The contractor will be required to explain' in writing why the names of the
subcontractors, the work items, or the dollar figures are different from what was
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City of Rosemead, CA
a. There have been no changes made by the RE/Contract Manager; or
b. The contractor has not provided a sufficient explanation in the comments
section of the completed Exhibit 17-F.
The explanation will be attached to the completed Exhibit 17-F for submittal. The
RE/Contract Manager will file this in the project records.
_
The DBELO will keep track of the DBE certification status on the Internet at
-
http://www.dot.ca.gov/hq/bep and keep the RE/Contract Manager informed of
changes that affect the contract. The RE/Contract Manager will require the-:,• q 6; _
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contractor to act in accordance with existing contractual commitments regardless of-,
*
decertification.
The DLAE will use the Plans, Specifications, and Estimates (PS&E) checklist in the
LAPM to monitor City's commitment to require bidders list information to be
submitted to City from the awarded prime and subcontractors as a means.
develop a bidders list. This monitoring will only take place if the bidders list.
.,•Fs'.
information is required to be submitted as stipulated in the special provisions.
City will bring to the attention of the DOT through the DLAE any false, fraudulent, or
_
dishonest conduct in connection with the Program, so that the DOT can take the _
steps provided in §26.109 (e.g., referral to the Department of Justice for criminal
prosecution, referral to the DOT Inspector General, action under suspension and
debarment or Program Fraud and Civil Penalties rules). City also will consider -
similar action under its own legal authority, including responsibility determinations
in future contracts.
XIV. Overall Goals (§26.45)
1. Amount of Goal
City's overall goal for the Federal Fiscal Year 2000-2001 is the following: 16% of
the Federal financial assistance in DOT-assisted contracts. This overall goal is
broken down into 11 % race-neutral and 5% race-conscious components.
"
2. Methodology
City's methodology for Fiscal Year 2000-2001 is detailed in Exhibit B hereto.
3. Process
City will, on or before June 1 of each year beginning in 2001, submit to the DLAE its
draft overall goal information (the amount of the overall goal, the method to
calculate the goal, and the breakout of estimated race-neutral and race-conscious
participation).
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CIty of Rosemead, CA
Once the DLAE has responded with preliminary comments and the comments have
been incorporated into the draft overall goal information,. City will publish a notice of
the proposed overall goal, informing the public that the proposed goal and its
rationale are available for inspection during normal business hours at City's
principal office for 30 days following the date of the notice, and informing the public
' that comments will be accepted on the goals for 45 days following the date of the
notice.. Advertisements in newspapers, woman/minority-focused media, trade
publications, and websites will be the normal media to accomplish this effort. The
notice will include addresses to which comments may be sent and addresses
(including offices and websites) where the proposal may be reviewed.
City will;- on or before September 1 of each year, resubmit the final overall goal
information to the DLAE, along with a summary of information and comments
received during the public participation process and City's responses.
The DLAE. will have one month to make a final review so that City may begin using
the;,overall.goal on October 1 of each year. .
XV. Contract Goals (§26.51)
' City will_~use contract goals to meet any portion of the overall goal that City does not
project. 'being able to meet by use of race-neutral means. Contract goals are
established so that, over the period to which the overall goal applies, they will
cumulatively result in meeting any portion of the overall goal that is not projected to
be met through the use of race-neutral means.
' Contract „goals will be established only on DOT-assisted contracts that have
subcontracting possibilities. Contract goals need not be established on every such
contract; and the size of contract goals will be adapted to the circumstances of each
such contract (e.g., type and location of work and availability of DBEs to perform
the particular type of work). The contract work items will be compared with eligible
DBE contractors willing to work on the project. A determination will be made
I regarding which items are likely to be performed by the prime contractor and which
- ones are likely to be performed by the subcontractor(s). The goal will then be
incorporated into the contract documents. Contract goals will be expressed as a
percentage of the total amount of a DOT-assisted contract.
XVI. Transit Vehicle Manufacturers (§26.49)
If DOT-assisted contracts will include transit vehicle procurements, City will require
I each transit vehicle manufacturer, as a condition of being authorized to bid or
propose on transit vehicle procurements, to certify that it has complied with the
requirements of 49 CFR Part 26, Section 49. City will direct the transit vehicle
I manufacturer to the subject requirements located on the Internet at
http://osdbuweb.dot.gov/programs/dbe/dbe.htm.
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City of Rosemead, CA
' XVII. Good Faith Efforts (§26.53)
' 1. Information to be Submitted
City treats bidders'/offerors' compliance with good faith effort requirements as a
' matter of responsiveness. A responsive proposal meets all the requirements of the
advertisement and solicitation.
Each solicitation for which a contract goal: has been established will require the
bidders/offerors to submit the following information to City no later than 4:00 p.m.
on or before the fourth day, not including'Saturdays, Sundays, and legal holidays,
following bid opening:
a. The names and addresses of'kn6wn DBE firms that will participate in the
t contract;
b. A description of the work that each DBE will perform;
C. The dollar amount of each DBE firm?s' participation;
d. Written and signed documentation of commitment to use a DBE
subcontractor whose participationi's' submitted to meet a contract goal;
' e. Written and signed confirmation from the DBE that it is participating in the
contract as provided in the prime cohtractor's commitment; and
f. If the contract goal is not met, evidence"of good faith efforts.
2. Demonstration of Good Faith Effortsm
The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror
can demonstrate that it has done so either _by meeting the contract goal or by
documenting good faith efforts. Examples-of good faith efforts are found in
' Appendix A to Part 26, Exhibit C hereof.-"'4J.
The following person is responsible for-determining whether a bidder/offeror who
' has not met the contract goal has documented sufficient good faith efforts to be
regarded as responsive: Tom Kirk, Supervising Engineer.
City will ensure that all information is complete and accurate and adequately
documents the bidder's/offeror's good faith efforts before a commitment to the
performance of the contract by the bidder/offeror is made.
3. Administrative Reconsideration
' Within ten (10) days of being informed by City that it is not responsive because it
has not documented sufficient good faith efforts, a bidder/offeror may request
administrative reconsideration. Bidders/offerors should make this request in writing
to the following reconsideration official:
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City of Rosemead,, CA
William Crowe, Director of Administrative Services
City of Rosemead
8838 East Valley Boulevard
Rosemead, CA 91770
(626) 569-2110
The reconsideration official will not have played any role in the --original
determination that the bidder/offeror did not make or document sufficient good faith
efforts.
As part of this reconsideration, the bidder/offeror will have the opportunity-to,provide
written documentation or argument concerning the issue of whether it met-.the goal
or made adequate good faith efforts to do so. The bidder/offeror will Jiave the
opportunity to meet in person with the reconsideration official to discuss the issue of
whether it met the goal or made adequate good faith efforts to do so. City will '.send
the bidder/offeror a written decision-on reconsideration, explaining the,.,basis.for
finding that the bidder did or did' not meet the goal or make adequate good faith
efforts to do so. The result of the reconsideration process is not administratively
appealable to Caltrans, the Federal Highway Administration (FHWA), or. DOT.;',; -
4. Good Faith Efforts when a DBE is Replaced on a Contract
City will require a contractor to make good faith efforts to replace a DBE-.that is
terminated or has otherwise failed to complete its work on a contract with ;another
certified DBE, to the extent needed to meet the contract goal. The prime. contractor
is required to notify the RE/Contract Manager immediately of a DBE's inability or
unwillingness to perform, and it must provide reasonable documentation.:
In this situation, the prime contractor will be required to obtain City's prior.-approval
of a substitute DBE and to provide copies of new or amended subcontracts, or
documentation of good faith efforts. If the contractor fails or refuses .to.comply, in
the time specified, City's contracting office will issue an order stopping all:or;part of
the payment and/or work until satisfactory action has been taken. If the:contractor
still fails to comply, the contracting officer may issue a termination for default
proceeding.
XVIII.Counting DBE Participation (§26.55)
City will count DBE participation toward overall and contract goals as provided in
the contract specifications for the prime contractor, subcontractor, joint venture
partner with prime or subcontractor, or vendor of materials or supplies.
XIX. Certification (§26.83(a))
City ensures that only DBE firms currently certified on the Caltrans directory will
participate as DBEs in City's DBE Program.
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XX. Information Collection and Reporting
Bidders List
City will create and maintain a bidders list, consisting of information about all DBE
and non-DBE firms that bid or quote on its DOT-assisted contracts. The bidders list
will include the name, address, DBE/non-DBE status, age,-=and annual gross
receipts of firms. City has incorporated a Bidders Information=Form, a sample of
which is attached as Exhibit D hereto, into its solicitation documents, requiring that
bidders/offerors provide all requested information in their submissions.
2. Monitoring Payments to DBEs
Prime contractors are required to maintain records and documents of payments to
DBEs for three (3) years following the performance of the contract These records
shall be made available for inspection upon request -by":any authorized
representative of City, Caltrans, FHWA, or DOT. This repo requirement also
extends to any certified DBE subcontractor.
Payments to DBE subcontractors will be reviewed by City to ensurethat the actual
amount paid to DBE subcontractors equals or exceeds the-dollar'amounts stated in
the schedule of DBE participation.
3. Reporting to Caltrans
City will report final DBE participation to the DLAE using ExhibittVzF of the LAPM
or equivalent.
4. Confidentiality
City will safeguard from disclosure. to third parties information-that may reasonably
be regarded as confidential business information, consistent-.with Federal, state,
and local laws.
[Signature of Frank Tripepi, City Manager] Date
City of Rosemead
This Disadvantaged Business Enterprises Program is accepted by:
[Signature of DLAE] Date
State of California, Department of Transportation, District 7
DsEPmgmm
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City of Rosemead, CA
EXHIBIT A
ORGANIZATION CHART
CITY OF ROSEMEAD
City of cII City Council 11
City "anager
Chief race utiveOfficer II
Ken Rukavina, P.E. William Crowe
City Englneer
1111 Director of Administrative Services
Reconsideration Official
Tom Kirk, P.E.
Supervising Engineer
DBE Liaison Officer
II Support Staff 11
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EXHIBIT .B
!9 OVERALL ANNUAL GOAL-SETTING METHODOLOGY
1. Projecting Federal-Assisted Contract Awards/Expenditures for Federal
Fiscal Year--- -
A In conjunction with the preparation and adoption of the budget for each fiscal year,
the Disadvantaged Business Enterprise Liaison Officer (DBELO), in consultation
with the appropriate divisions and departments responsible for contracting
activities, will conduct a thorough analysis of the projected number and types of
projects, associated work elements, and dollar amounts of contracting opportunities
that will be funded,, in whole or in part, by DOT Federal financial assistance for that
year. > z=;c
For Federal' Fiscal,,Year 2000-2001, City's DOT-funded projects by work category
are as follows- ~
A
F`~Wotk'.Cate
f
;Estimat'ed Dolla-:Ualue
i 3 ?Overla u q~ t i is MmN
$O
Traffic"Si nal r Y
$120,000
iarix.
$0
)Storm-Drain
$0
,Street--Re``construction
$0
'Sf~eetryY!tidernn awt~; ~1~~<
$0
'Bnd e,x aY u
$816,000
II. Goal Determination
City used the "Bidders List" methodology to establish DBE percentages and the
overall annual goal for Federal Fiscal Year 2000-2001, with the exception of
s bridgework, as discussed below.
~A Step 1: Determining a Base Figure 26.45)
First, City determined its Base Figure of relative DBE availability:
-0~ For the numerator: DBE Firms in City's Bidders List per work element
* For the denominator: Firms in City's Bidders List per work element
City calculated its Base Figure by first determining the number of ready, willing, and
able DBEs in its Bidders List by work element and then dividing that number by the
total number of firms in its Bidders List for that work element. Through this method,
City measured availability by the number of firms that directly participated in, or
IN attempted to participate in, its contracting between October 1, 1995 and September
1. DBEPmgmm Page 15 of 24 isnrzooo
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30, 2000. A five-year analysis was conducted in order to accurately and fairly
sample City's contracting work.
Due to the lack of Bidders List data for one work element, Bridge, City consulted
census data for the total number of bridge contractors and then surveyed the DBE
Directory for DBE bridge contractors.
TABLE 1: DBE AVAILABILITY
= m,
,WorkiElementf
'F'xx j'Z aw 'rev
'#,xDBEs
~ ,a
Firms, W
cz t }iLL
MA DBE`
Paving
0
20
0.006%
Concrete
5
31
16.13%
Cold Mill
0
0.00%
Crack.Fill/Seal
1
a;4
25.00%
Manhole Ad'.
1
.2
50.00%
Striping
2 - °
41' 12 .
16.67%
Storm Drains
6
"$'39
15.38%
Street Lighting
1
----1.0.
10.00%
Traffic Signals
1
_ -42-
8.33%
Landscaping
2 -
- =1'6
12.50%
Bride
2
1.0.
20.00%
The percentages of DBE as shown in Table..lwweresapplied to the estimated costs
of the various work elements of each project-scheduled for fiscal year 2000-2001.
The total estimated DBE dollar amount determined thereby-was multiplied by the
percent of Federal funds and divided by the total,-project cost to determine the DBE
percent for the project. The same calculation., is.performed "on each project, work
element by work element, to provide the base figure for the year.
City's Base Figure for fiscal year 2000-2001 'is 15163% (say 16%), based on one
bridge project and one traffic signal/signing project. See Table 2 on the following
page for calculation results.
1 OBEPmgmm Page 16 of 24 12n2000
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I City of Rosemead, CA
Step 2: Adjusting the Base Figure
Criteria
Upon establishing the Base Figure each year, City will review and assess other
■ relevant evidence to determine what adjustments, if any, are needed to tailor the
Base Figure to City's marketplace. Factors City may consider are the following:
1 _ Evidence of DBE capacity to perform work in City's Federally-assisted and non-
Federally-assisted contracting program. The volume of work that DBEs
performed in City's DOT-assisted contracting program for prior fiscal years was
-_examined, and actual attainments, based on projects' "Final Report of
`Utilization of Disadvantaged Businesses," are as follows:
Fiscal Year 1998-1999
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-Landscaping
Fiscal Year 1999-2000
-2. The number, types, and dollar values of contracting opportunities projected to
- - be financed with Federal funds and to be awarded during the Federal Fiscal
,.Year.
3. City's Bidders List. City has developed a bidders list from bid proposals
received over the course of the last five fiscal years. Beginning with this fiscal
year, City will gather information for its bidders list using a "Bidder Information
Sheet" such as the one attached hereto as Exhibit D.
$ Paid to
DBE Goal
Project T Pe
Contractors
$ Paid to DBEs
Attainment
Overlay, Concrete,
$3,427,178.00
$571,622.00
16.68%
„
Project Type
$ Paid to
Contractors
$ Paid to DBEs
DBE Goal
Attainment
phone
$0
$0
4. Other agencies' goal results in similar contracting opportunities and markets,
and the rationale behind those results.
5. The methods used by City to increase DBE participation in Federally-assisted
contracts.
6. The demographics and business activities of the geographical area in which the
City solicits bids or proposals.
7. The results of disparity studies; DBE availability ratios and utilization ratios.
OBEPmgmm Page 18 of 24 12r7/2000
I City of Rosemead, CA
8. The data on employment and self-employment, education, and training
programs, to the extent that City can relate such'data to the opportunities for
DBEs to perform in City's DBE Program.
Adjustments Made
'
s base
The impact of these factors has resulted, in no net adjustment to City
figure of 16%. -
'
s bridge project involves approximately 95% integral
It should be noted that City
bridge construction with a minimal amount of paving, concrete, cold milling,
striping, and storm drain. In addition, while it would be possible to break out
structural excavation, structural baekfill, or steel tying, these are work elements
normally performed by the prime., contractor as fundamental parts of bridge
construction. Statistically, a high7percentage of prime bridge contractors in the
area are DBE firms (two in ten; ,or 20%, of area firms). Therefore, it is
reasonably possible that though..race-neutral means a DBE prime bridge
contractor will be selected-.for -thisproject, and that selection would greatly
increase City's actual DBE attainment.
III. Breakout of Estimated Race-Neutral and Race-Conscious Participation
City shall achieve its overall annual goal of 16% for DBE participation with 11%
race-neutral and 5% race-conscious components.
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Race-Neutral Measures
City intends to use race-neutral ymeasures to the extent feasible to achieve its
overall annual goal. City will use the following measures as appropriate to facilitate
DBE and other small business participation in City's contracting program:
1. Configuring large contracts into smaller contracts when feasible, when to do so
would make contracts more accessible to smaller businesses, and would not
impose significant additional cost, delay, or risk to City;
2. Encouraging contractors to consider subcontractors for components of the work
for which there is a known supply of ready, willing, and able subcontractors,
including DBE subcontractors, in preparing their bids;
3. Assisting in overcoming limitations in bonding and financing;
4. Providing technical assistance in orienting small businesses to public
contracting procedures, use of the Internet, and facilitating introductions to
City's and other DOT recipients' contracting activities; and
5. Providing outreach and communications programs on contract procedures and
contract opportunities to ensure the inclusion of DBEs and other small
businesses.
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I Race-Conscious Measures
' City will annually consider various factors to project levels of DBE participation to be
met through race-conscious measures and will use race-conscious measures such
as contract-specific goals to meet that portion of the overall goal that is not likely to
be met using race-neutral measures. City shall monitor and adjust the estimated
use of race-neutral and race-conscious measures as required in accordance with
regulatory guidelines.
IV. Public Participation in Setting Overall Annual DBE Goals
In conformance with the public participation requirements of 49 CFR'Paif26.45 and
the LAPM, this goal analysis has been reviewed with minorities; women, local
business chambers, community organizations, and other DOT recipients. These
entities are knowledgeable about the availability of disadvantaged`' nd non-
disadvantaged businesses and the effects of discrimination , on`.7 contracting
opportunities for DBEs within City's marketplace. F{
City has published a public notice in general circulation media avid worn"an7minority-
focused media announcing its proposed overall annual DBE goal. for -fiscal year
2000-2001. Such notice informed the public that the proposedgoals-and their
rationale were available for inspection at City during normal business-hours for
thirty (30) days following the date of the notice and that City.=would accept
comments on the goal for forty-five (45) days from the date of the notice:
The required public participation provisions will be fully satisfied. prior tQ submitting
City's.DBE Program for final review and approval.
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EXHIBIT C
I~ APPENDIX A TO PART 26
GUIDANCE CONCERNING GOOD FAITH EFFORTS
1. When, as a recipient, you establish a contract goal on a DOT-assisted contract,
a bidder must, in order to be responsible and/or responsive, make good faith
`•.p efforts to meet the goal. The bidder can meet this requirement in either of two
ways. First, the bidder can meet the •goal, documenting commitments for
participation by DBE firms sufficient for this purpose. Second, even if it does
• not meet. the goal, the bidder can document adequate good faith efforts. This
means that the bidder must show that it took all necessary and reasonable
steps to achieve a DBE goal or other requirement of this Part which; by their
• scope, intensity, and appropriateness to the objective, could reasonably be
expected to obtain sufficient DBE participation, even if they were not fully
successful. -
II. In any situation in which you have established a contract goal, Part 26 requires
you to use the good faith efforts mechanism of this Part. As a recipient, it is up
j= to you to make a fair and reasonable judgment whether a bidder that did not
meet the goal made adequate good faith efforts. It is important for you to
consider the quality, quantity, and intensity of the different kinds of efforts that
the bidder has made. The efforts employed by the bidder should be those that
one could reasonably expect a bidder to take if the bidder were actively and
aggressively trying to obtain DBE participation sufficient to meet the DBE
contract goal. Mere pro forma efforts are not good faith efforts to meet the DBE
contract requirements. We emphasize, however, that your determination
concerning the sufficiency of the firm's good faith efforts is a judgment call;
meeting quantitative formulas is not required.
III. The Department also strongly cautions you against requiring that a bidder meet
a contract goal (i.e., obtain a specified amount of DBE participation) in order to
be awarded a contract, even though the bidder makes an adequate good faith
efforts showing. This rule specifically prohibits you from ignoring bona ride
r good faith efforts.
IV. The following is a list of types of actions which you should consider as part of
the bidder's good faith efforts to obtain DBE participation. It is not intended to
be a mandatory checklist, nor is it intended to be exclusive or exhaustive.
Other factors or types of efforts may be relevant in appropriate cases:
t
A. Soliciting through all reasonable and available means (e.g., attendance at
pre-bid meetings, advertising, and/or written notices) the interest of all
certified DBEs who have the capability to perform the work of the contract.
The bidder must solicit this interest within sufficient time to allow the DBEs
to respond to the solicitation. The bidder must determine with certainty if
oBEPMgmm Page 21 of 24 12n12000
City of Rosemead, CA
the DBEs are interested by taking appropriate steps to follow up initial
solicitations.
B. Selecting portions of the work to be performed by DBEs in order to increase
the likelihood that the DBE goals will be achieved. This includes, where
appropriate,. breaking out contract work items into economically feasible
i units to facilitate DBE participation, even when the prime contractor might
w otherwise prefer to perform these work items with its own forces.
C. Providing .interested DBEs with adequate information about the plans,
specifications; and requirements of the contract in a timely manner to assist
them in respor' 4-g to a solicitation.
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D. 1. Negotiating yin good faith with interested DBEs. It is the bidder's
responsibility= to make a - portion of the work available to DBE
subcontractors and suppliers and to select those portions of the work or
material-needs consistent with the available DBE subcontractors and
suppliers,. #§o ,-as to facilitate DBE participation. Evidence of such
negotiatioWincludes the names, addresses, and telephone numbers of
DBEs that were considered; a description of the information provided
regarding Attie plans and specifications for the work selected for
subcont(acting;, and evidence as to why additional agreements could
not be reached for DBEs to perform the work.
2. A bidder using good business judgment would consider a number of
factors:" in ;,negotiating with subcontractors, including DBE
subcontractors, and would take a firm's price and capabilities as well as
contract goals into consideration. However, the fact that there may be
some additional costs involved in finding and using DBEs is not in itself
sufficient reason for a bidder's failure to meet the contract DBE goal, as
long as sdch_costs are reasonable. Also, the ability or desire of a prime
contractor,,to,perform. the work of a contract with its own organization
does not relieve the bidder of the responsibility to make good faith
efforts. Prime contractors are not, however, required to accept higher
quotes from DBEs if the price difference is excessive or unreasonable.
E. Not rejecting DBEs as being unqualified without sound reasons based on a
thorough investigation of their capabilities. The contractor's standing within
its industry, membership in specific groups, organizations, or associations
and political or social affiliations (for example union vs. non-union employee
status) are not legitimate causes for the rejection or non-solicitation of bids
in the contractor's efforts to meet the project goal.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit,
or insurance as required by the recipient or contractor.
G. Making efforts to assist interested DBEs in obtaining necessary equipment,
supplies, materials, or related assistance or services.
DsEPmgmm Page 22 of 24 12nr2000
City of Rosemead,, CA
H. Effectively using the services of available woman/minority community
organizations, woman/minority contractors' groups, local, state, and Federal
woman/minority business assistance offices, and other organizations as
allowed on a case-by-case basis to provide assistance in the recruitment
and placement of DBEs.
V. In determining whether a bidder has made good faith efforts, you may take into
account the performance of other bidders in meeting the contract. For
example, when the apparent successful bidderfails-to meet the contract goal
,
but others meet it, you may reasonably raisethe question of whether
with
,
additional reasonable efforts, the apparent successful bidder could have met
the goal. If the apparent successful bidder fails to meet the goal, but meets or
exceeds the average DBE participation obtained56b -other bidders, you may
view this, in conjunction with other factors-,'`as evidence of the apparent
successful bidder having made good faith efforts:'
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EXHIBIT D
CITY OF ROSEMEAD
BIDDER INFORMATION SHEET
Project/Contract No.:
DBE Goal for Contract (if any):
The following information is needed for. all DBE and non-DBE contractors who=
provide a bid, proposal, or quote, or who are contacted by the proposed prime'-
contractor. This information should be submitted with your bid, proposal, or quote:. =
If you are the apparent low bidder (or the second or third low bidder), the y' :T-
information must be submitted as specified in the Special Provisions. Your failure'`'
to submit the required DBE information will be grounds for finding your proposal
non-responsive. Information provided will be held in confidence.
Firm Name: -
Address:
Contact: =
Telephone:
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Facsimile:
Years in
Business: Is the firm currently certified as a DBE?
If yes, DBE Certification No.:
Bid Opening Date:
-4 NAICS or WCC code(s), if known:.
Services/products in bid (contract items and/or description):
❑ Yes
Dollar Amount of items bid on (this contract):
Gross Annual Receipts (last year):'
❑ Less than $1 million
❑ $1 million - $5 million
❑ $5 million - $10 million
❑ $10 million-$15 million
❑ Over $15 million
(Please duplicate this form and provide information on all bidders.)
THE CITY OF ROSEMEAD THANKS YOU FOR YOUR ASSISTANCE.
This information is requested pursuant to Federal law.
I DBE Program Page 24 of 24
12172000