HomeMy WebLinkAboutRESO 8047RESOLUTION NO. 8047
RESOLUTION OF THE COUNCIL OF THE CITY OF· PALO
ALTO ADOPTING A DISADVANTAGED BUSINESS
ENTERPRISE (DBE) PROGRAM FOR FEDERALLY FUNDED
C~TY TRANSPORTATION PROJECTS
WHEREAS, in order to comply with federal requirements to
obtain federal funds for City transportation projects, the City
of .Palo Alto must approve and implement a Disadvantaged Busin:ess
Enterprise ("DBE") program prior to approval by Caltrans and the
United States Department of Transportation ("DOT") of any
request for federal funds; and
·~
WHEREAS, the overall goal established by the DBE program
for DBE participation in the pe.rformance of contracts financed
· in whol~ or in part with DOT funds shall be 29 percent and shall
cover the period from July 1, 2000 to June 30, 2001; and
WHEREAS, the City Manager has caused newspaper·notice to
be published for a forty~five (45) day period, setting forth the
goal established by. the City for fiscal year 2000-2001 for DBE
participation in the performance of contracts financed in whole
or iri part with DOT funds.
NOW, THEREFORE, the Council of the City of Palo Alto
does RESO~VE .as follows:
SECTION 1. The Council hereby adopts the "Disadvantaged
Business Enterprise (DBE) program 2000-2001 City of Palo Alto",
a copy of which is attached hereto and incorporated herein by
reference.
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010416 cl 0032440 1
SECTION 2. The Council hereby establishes the overall
goal of 2 9 percent for DBE participation in the performance of
contracts financed in whole or in part with DOT funds during the
period of July 1, 2000 to June 30, 2001.
INTRODUCED AND PASSED: April 23, 2001
AYES: BEECHAM, BURCH, EAKINS,
OJAKIAN, WHEELER .
NOES:
ABSENT: FAZZINO
0 ABSTENTIONS:
APPROVED AS TO FORM:
~vJ.·~
1E?enior Asst. City Attorney
010416 cl 0032440
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0 Rem Le~ ~
01-ti L~ffl_ D BE
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KLEINBERG, LYTLE, MOSSAR,
APPROVED: ~L~i~~
Services
Disadvantaged Business
Enterp~ise Liaison Officer
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DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM
: 2000-2001
CITY OF PALO ALTO
I.
DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM 2000-20001
. CITY OF PALO ALTO/COUNTY OF SANTA CLARA
Policy Statement
It is the policy of the City of Palo Alto to provide to Disadvantaged Business
Enterprises (DBE), as defined in Title 49, Code of Federal Regulations (CFR)
Part 26, a maximum practicable .opportunity to compete for the award of
contracts which receive financial assistance from the U.s: Department of
Transportation (DOT). This policy, which is fully described herein, constitutes
poiicy and commitment to substantially increase the DBE utilization in all program
activities funded in whole. or ir:1 part by the U.S. Department ~f Transportation .
. The City of Palo Alto, its .contractors, and subcontractors, which are recipients of
Federal aid funds, agree to ensure that DBE firms have the maxim.um opportunity
to participate. in the performance of Federally fuhded contracts and subcontracts.
In this regard, this agency and all of its contractors and subcontractors will take
all re.asonab!e steps in accordance with 49CFR Part 26 to ensure tnat OBE firms
have the maximum opportunity to compete for and perform contracts.
Mayor •. City of Palo Alto
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I. Definitions of Terms
· The terms used in this program have the meanings defined in 49 CFR §26.5.
11. Objectives/Policy Statement (§§26.1 ,26.23)
The City of Palo Alto has established a Disadvantaged Business Enterprise
(DBE) program in accordance. with regulations ofthe U.S. Department of
Transportation (DOT), 49 CFR Part 26. The City of Palo Alto has received
Federal financial assistance from the DOT, and as a condition of receiving this
· assistance, the City of Palo Alto will sign an assurance that it will comply with 49
CFR Part 26. :
It is the policy of the City of Palo Alto to ensure that bBEs, as defined ·in part 26,
have an equal opportunity to receive and participate in DOT-assist~d contracts.
It is also ourpolicy:
To ensure nondiscrimination in the award and administration of DOT-
assisted contracts;
To create a level playing field on which DBEs can compete fairly for DOT-
. · assisted contracts; · · .
To ensure that the DBE Program is narrowly tailored in ·accordance with
applicable law;
To ensure that only firms that fully meet 49 CFR Part 26 eligibility
standards are permitted to participate as DBEs;
To help remove barriers to the participation of DBEs in DOT-assisted
contracts; and · ·
To assist the development affirms than can compete successfully in the
market place outside the DBE Program.
The Manager, Purchasing and Contract Ar:Jministration has been delegated as
. the DBE Liaison Officer. In that capacity, The Manager, Purchasing and
Contract Administration is responsible for implementing all aspects of the DBE
. program. Implementation of the DBE program is ac.corded the same priority c:~s
compliance with all other legal obligations incurred by the City of Palo Alto in its
. financial assistance agreements with the California Department of Transportation
(Caltrans).
The City of Palo Alto has disseminated this policy statement to the City Council
and all the components of our organization. We have distributed this statement
to DBE and non-DBE business communities that perform work for us on DOT-
assisted contracts by publishing this statement In general circulation, minority-
focused C~nd trade association publications.
Ill. Nondiscrimination (§26.7)
The City of Palo Alto will never exclude any person· from participation in, deny.
any person the benefits of, or otherwise discriminate against anyone iri
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connection with the award and performance of any contract covered by 49 CFR
. Part 26 on the basis of race, color, sex, or national origin.
In administering its DBE program, the City of Palo Alto 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 c;>f the DBE pr9gram with' respect to individuals of a particular race,
·color, sex, or national origin;
IV. DBE Program.Updates (§26 .. 21)
The City of Palo Alto will continue to carry out this program until the City of Palo
Alto has established a new goal setting methodology or until significant changes
to this Model DBE Program are adopted. The City of Palo Alto will provide .to
Caltrans a proposed overall goal and goal setting methodology and other
program updates by June 1-of every year.
V. Quotas (§26.43)
The City ·of Palo Alto will not use quotas or set-asides in any way in the
administration of this DBE prqgram. ·
VI. DBE Liaison Officer {DBELO) (§26.45)
The City of Palo Alto has designated the following individual as the DBE Liaison
Officer: · · ·
M. Howard Edwards
Manager, Purchasing and Contract Administration
City of Palo Alto ·
250 Hamilton Ave.
Palo Alto, California 94301
650~329-2319
howard · edwards@citv.palo-alto.ca.us
In that capacity, M. Howard Edwards is responsible for implementing .all aspects
of the DBE program and ensuring that the City of Palo Alto complies with all
provisions of49 CFR Part 26. This is available on the ln~ernet at
osdbuweb.dot.gov/main.cfm. M. Howard Edwards has direct, independent
. access to the City Manger concerning DBE program matters. The DBELO
allocates a portion of his time to the program, designating roles to other. staff
members as required. An organization ch:art displaying the DBELO's position in
the organization is found in Attachment 1 to this_ program.
The DBELO is responsible for developing, implementing and monitoring the DBI=
program, in coordination with other appropriate officials. Duties and
responsibilities include following: ·
1. Gathers and reports statistical data and other information as required.
2 .. Reviews third party contracts and purchase requisitions for compliance with
this program.
3. Works with all departments to set overall annual goals.
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4. Ensures that bid notices and requests for proposals are available to DBEs in
a timely manner. · ·
5. Identifies contracts and procwements so that DBE goals are included in
solicitations (both race-neutral methods and contract specific goals) and
monitors results.
6. Analyzes the City of Palo· Alto's p·rogress toward goal attainment and
identifies ways to improve progress.
7. Participates in pre-bid meetings.
8. Advises the CEO/governing body on DBE matters and achievement.
9. Chairs.the DBE Advisory-Committee. ·
· 10. Participates with the legal counsel and project director to d.etermine
contractor compliance' with good faith efforts.
11. Provides DBEs with information and assistance in preparing bids, obtaining
bonding and insurance.
1 ~· Pians and participates in DBE training seminars. .
13. Provides outreach to DBEs and community organizations to advise them of
opportunities. ·
VU. Federal Financial Assistance Agreement Assurance (§26.13)
The Qity.of Palo Alto will sign the following ass1,1rance, application to all· FHWA-
assisted contracts and their administration a part of the program supplement•
agreement for each project: · ·
The recipient shall not discriminate on the basis of race, color, national origin, or
sex in the award and performance of any DOT -assisted contra"ct or in the. administrc:~tion of .its DBE Program or the requirement of 49 CFR part 26. The
recipient shall take all necessary and reasonable steps under 49 CFR part 26 to
· ensure nondiscrimination in the award .and administration of DOT -assisted
contracts. The recipient's DBE Program, as required by 49 CFR part 26 and as
approved by DOT, is incorporated by reference in this agreement. ·
Implementation of this program is a legal obligation and failure to carry out its
ternis shall be treated as a violation of this agreement. Upon notification to the
recipient of its failure to carry out its approved program, the Department m.ay
impose sanctions as provided for under.part"26 and may, In appropriate cases,
refer the matter for enforcement urider f8 U.S.C. 1001 and/or the Program Fraud
Civil Remedies Act of 1986(31 U.S. C. 3801 et seq.). ·
VIII. DBE Financial Institutions
It is the policy of the City of Palo Alto to investig_ate 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 ~ncourage prime contractors on DOT-
assisted contracts to make use of these institutions.
Information on the availability of such institutions can be obtained from the DBE
Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may
offer assistance to the DBE Liaison Officer. ·
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IX. Directory {§26.31)
The City of Palo Alto wiil refer interested persons to the DBE directory available·
fro~ the Caltrans Disadvantaged Business Enterprise program website at
www.dot.ca.gov/hqq/bep.
X .. Overconcentration (§26.33)
The City ofPalo Alto has not identified any types of work in POT-assisted
contracts that have an overconcentration of DBE participation.· Jf·in the future the '
. City of Palo Alto identifi~d t.he need to a_ddress overconcetration, measures for
addressing c;>verconcentration will be submitted tq the DLAE for approval.
XI. Business Development Programs (§26.35)
· The City of Palo Alto does not have a business deveiopment or mentor-protege
program. If the City of Palo Alto identifies the need for such a program in the
future, the rationale for adopting such a program and a comprehensive
description of it will be submitted to FHWA for their approval.
XII. Required Contract Clauses (§§26.1~,26.29)
Contract Assurance
The City of Palo Alto 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 perf~rmance of this contract. The contractor shall
carl)t out applicable requirements of 49 CFR part 26 in the award Jmd
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 rem.edy, as recipient deems
appropriate.
Prompt Payment
City of Palo Alto ensures that the following clauses or equivalent will be included
in each DOT-;:~ssisted prime contract: · ·
The prime· contractor agrees to pay each subcontractor under this prime contract
for satisfactory performance of its contract no later than 1 0 days from the receipt
of each payment the prime contractor receives from the City of Palo Alto.
The prime contractor agrees to pay each subcontractor under this prime contract
for satisfactqry performance of its contract no later than 1 0 days from the receipt
of each payment the prime contractor receives City of Palo Alto.
The prime contractor agrees further to release retainage payments to each
· subcontractor within 30 days after the subcontractor's works is satisfactorily
COrJlpleted. ·
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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 Palo Alto.
This clause applies to both DBE and non-DBE subcontractors. ·
XIII. Monitorin·g and Enforcement Mechanism (§26.37)
The City of Palo Alto will assign a Resident Engineer (RE) or Contract Manager
to monitor and track actual DBE participation through contractor and
subcontractor reports of payments in accordance with the following: . . .
After Contract Award
After the contract award the City of Palo Alto will review fhe award documents for
the portion of items each DBE and first tier subcontractors wil! be performing and
the dollar value of that work. With the·se documents the RE/ContractManager
will be able to determine the work to be performed by the DBEs or · ·
subcontractors listed.
Preconstruction Conference
A preconstruction conference will be scheduled between the. RE and the
contractor or their representation to discuss the work each DBE subcontractor
will perform. . · · ·
. Before work can begin on a subcontract, the local agency will require the .
contractor to submit a completed "S.ubcontracting Request," Exhibit 16.-B of the
LAPM or equivalent. When the RE receives the completed form it will be ·
checked for agreement of the first tier subcontractors and DBEs. The RAE will
not approve the request when it identifies someone other than the DBE or first
tier subcontractor listed in the previously completed "Local Agency Bidder DBE
Information," Exhibit 15-G. The "Subcontracting Request" will not be approved .
until any discrepancies are resolved. If an issue cannot be resolved atthat time,
or there is-some other concern, theRE 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
lnformatioF:J" will be compared to those listed in the completed Exhibit· 16-1 of the.
LAPM or equivalent. Differences must be resolved by either making corrections
or requesting a substitution. · ·
Substitutions will be subject to the Subletting and Subcontracting Fair Practices
Act (FPA). Local agencies will require contractors to adhere to the provisions
within Subletting and Subcontracting Fair Practices act (State Law) Sections
4100-4144. FPA requires the contractor to list all SL!bcontractors in excess of
one half of one percent (0.5%) of the contractor's total bid or $10,000, which ever
is greater. The statute is designed to prevent bid shopping by contractors. The
FPA explains that a contractor may not substitute a subcontractor listed in the
original bid except with the approval of the awarding authority.
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TheRE V\lill give the contractor a blank Exhibit 17-F, ''Final Report Utilization of
Disadvantaged Busin~ss.Enterprises," and will explain to them that the document
will be required at the end of the project, for which payment can be withhelc;i, in
conformance with the contract. ·
Construction. Contract Monitoring
The RE will ensure that the RE's staff (inspectors) knows what items of work
· each DBE is responsible for performing. Inspectors will notify theRE
immediately of apparent violations.
When a firm other than the listed DBE subcontractor is found performing the
work, the RE will notify the contractor of th·e apparent discrepancy and potential
loss of payment. Based on the contractor's response, the RE will take
appropriate action: The DBE Liaison Officer will perform a preliminary
investigation to fdentify any potent.ial issues related to the DBE subc.ontractor.
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 wil! be sent to the contractor referencing the
applicable specification violation and the required withholding of payment.
If the contract require~ the submittal of a monthly truck document, the contractor
will be required to submit documentation to the RE showing· the owner's name;
California Highway Patrol CA number; and the DBE certification number of the
·owner of the truck for each truck used during that month for which DBE ·
participation will be claim~d. ·The trucks will be listed by California· Highway
Patrol CA number in the daily diary or on a separate piece of paper for
documentation. The numbers are checked by inspectors regularly to confirm
compliance.
Providing evidence of DBE payment is the responsibility of the contractor.
Substitution
When a DBE substitution is requested; the RE/Contract Manager will .request a
letter from the contractor explaining why substitution is needed. The RE/Contract
Manager will <;>btain a written concurrence from the DBE regarding this change.
If the contractor is not meeting the contract goal with this substitution, the
contractor must provide the required good faith effort to theRE/Contract
Manage·r for local agency consideration.
If there is any doubt in the RE/Coritract Manager's mind regarding the requested
substitution, the RE/Contract Manager may contact DLAE for assistance and · ·
direction.
Record Keeping and Final Report Utilization of Disadvantaged.Busines·s
Enterprises
The contractor shall maintain records snowing the name and address of each
first-tier. subcontractor. The records shall also. show:
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1. The name and business address, regardless of tier, of every DBE
subcontractor, DBE vendor of materials and DBE trucking company.
2. The date of payment and the total dollar figure paid to each of the firms.
3. The DBE prime contractor shall also show the date of work performed by
their own forces along witti the corresponding dollar· value c:if the work
· claimed toward DBE goals.
When a construction contract has been completed the contractor will provide a
summary of the records stated above. The DBE utilization information will be
· documented on Exhibit 17 -F and will be submitted to the DLAE attached to the
Report of expenditures. The RE will compare the completed Exhibit 1.7 -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 allowed, or the
contractor used more DBEs and they were added. The dollar amount should
reflect any changes made in planned work done by the DBE. The contractor will
·be required to explain in writing why the names of the subcontractors, the work
items or dollar figures are different from what was originally on the completed
Exhibit 15,.G when:
.. There _have been no changes made by the RE.
. The contractor has not provided a sufficient explanation in the comment
section of the compl_eted Exhibit 17-F. ·
The explanation will be attached to the completed Exhibit 17 -F for submittal_. The
RE will file this in the project records .
.The :local agency's Liaison Officer will keep track of the DBE certification status
on the Internet at www.dot.ca.gov/hq/bep and keep the RE informed of changes
that affect the contract. The REwill require the contractor to act in accordance .
with existing contractual commitments regardless of decer:tification .
. The DLAE will used the PS&E checklist to monitor the .CitY of Palo Alto's
commitment to require bidders list information to be submitted to the City of Palo
Alto from the awarded prime and subcontractors as a means to develop a
bidders list. This monitoring will only take place if the bidders list information is -
required to be submitt~d as stipulated in th~ special provisions~
The City of Palo Alto will bring to the attention of the DOT through the DLAE any
false, fraudulent, or dishonest conduct in connection with the program, so that ·
DOT can take.the steps (e.g., referral to the Department of Justice for criminal
prosecution, referral to the DOl Inspector General, action under suspension and
debarment or Program Fraud and Civil Penalties rules) provided in §26.109: ·City
of Palo Alto also will consider similar action under our own authorities, including
responsibility determinations in future_contracts.
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XIV~ Ov~rall Goals (§26.45)
The City of Palo Alto's overall goal for the Federal fiscal yeat FY 2001 is 29% of
the Federal financial assistance in FHWA-assisted contracts. This. overall goal is ·
broken down into 5% race-neutral and 24% race-conscious components.
Process·
Starting with Federal-fiscal year 2002, the amount of overall goal, the method to
calculate the goal and the breakout of estimated race-neutral and race-conscious
· participation will be required annually by June 1 in advance of th~ Federal fiscal
year beginning October 1 for FHWA-assisted contracts. Submittals will be to the
. Caltrans' D_istrid Local Assistance. Engineer (DLAE). Ari exception to this will be
if FTA or FAA recipients are required by FTA or FAA to submit the annual
information to them or a designee by another date. · FHWA recipients will fqllow
this process: ·
The City of Palo Alto will develop a local bidders list. This list will be used to
determine the overall· goal. As· part of establishing an overall goal, the City of · .
Palo Alto will make good faith efforts to consult with minority, women and general
contractorgro1Jps; community orgaQizations and officials; and'buslness
· organizations. With that consultation referenced, the City of Palo Alto will submit
the.draft qverall goal information (amount of overall goal, the method to calculate
. the goal, and the breakout of estimated race-neutral and race-con·scious
participation) on June 1 to the Caltrans' DLAE, for preliminary comments. Once
the DLAE ~as responded with preliminary comments and the comments have
been incorporated into the draft overall goal information, the City of Palo Alto will
publish. a notice of the proposed overall goal, informing the public that the
proposed goal and its rationale -are available for inspection during normal
business hours at the City of Palo Alto'.s principal office for 30 days following the
date of the notice, and informing the public that the City of Palo Alto will accept
comments on _the goals fo·r 45 days following the date of the notice.
Advertisements in newpapers, minority focus 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. ·
The overall goal resubmission to the Caltrans'·DLAE, will incl.ude a summary of
information and comments received during this public participation process and,
the City of Palo Alto's responses .. This will be due by September 1 to the
Caltrans' DLAE. The DLAE will have a month to make a final reviE3W so the City
of Palo Alto may begin using the overall goal o.n Octob~r 1 of each year:
XV. Contract Goals (§26.51)
The City of Palo Alto Agency Recipient will use contract goals to meet any
portion of the overall goal the City of Palo Alto does not project being able to
meet by the use of race:-neutral means. Contract goals are established so that,
over the period to which the overall goal applies, they will cumulatively result in
·g
meeting any portion of the overall goal that is not projected to be met through the
use of race-neutral means. · ·
Contract g.oals will be established only on those DOt -assisted. contracts that
have subcontracting possibilities. Contract goals need not .be established on
every such contract, and the size of contract goals will be adapted to the
circumstances of each such contract (e.g., type and location of work, availability
of DBEs to perform the particular type! of work). The contract work items will be
compared with eligible DBE contractors willing to work on the project. A
determination will also be rriade to decide which items are likely to be performed .
by the prime contractor and which ones are likely to be performed by the
subcontractor(s). The goal will then be incorporated into the contract documents.
Contract goals will be expressed as a percentage of the total amount. of a DOT-
assisted contract. .
XVI. Transit V~hicle Manufacturers (§26.49}.
If DOT-assisted contracts will include transit vehicl.e procurements, the City of
Palo Alto will require each tr~msit vehicle manufacturer, as a condition of being· ·
authorized to bid or propose on transit vehicle. procurements, tp certify that it has
·complied with the requirements of 49 CFR Part 26, Section 49. The City of Palo
Alto will direct the transit vehicle manufacturer to the subject requirements
located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm.
XVII •. Good Faith Efforts (§26.53)
Information to be submitted
The City of Palo Alto treats bidder'/offerors' compliance with good faith effort
requirements as a matter of responsiveness. A responsive proposal is meeting
all the requirements of the advertisement and solicitation.
Each solicitation for which a construction contract goal has been established-will
require the bidders/offerors to submit the following inforrn_ation ·to:
City of Palo. Alto .
Manager, Purchasing and·Contract Administration
250 Hamilton Ave.
Palo Alto, CA 94301
RE:
Project:-=--~-----'-
IFB or RFP#
No later than 4:00 p.m. on or before the fourth day, not including Saturdays,
Sundays and legal holidays, following bid opening·: ·
1. The names and addresses of DBE firms that will participate in the contract;
2. A description of the work that ~ach DBE will perform:
3. The dollar amount of the participation of each DEB fir participation
4. Written and signed documentation of commitment to use a DBE
subcontractor whose participation it submits to meet a contract goal;
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5. Written and signed confirmation from the DBE that it is participating in the ·
contract as provided in the prime contractor's commitment;· and
6. · If the contract goal is not met, evidence of good faith efforts. ·
Demonstration of Good Faith Efforts
The obligation of the bidder/offeror is to make. good faith efforts. The
bidder/offeror can demonstrate that it has done so either by meeting the contract
goal or documenting good faith efforts. Examples of good·faith efforts are found
in Appendix A to part 26 which is attached. · ·
The folloWing personnel are responsible for determining-:whethera bidder/offeror
who has not met the contract goal has· documented sufficient good faith efforts to
be regarded as responsive: Manager, Purchasing and Contract Administration
The City of Palo Alto will ensure that all information is complete and ~ccurate and
adequately documents the bidder/offeror's good faith efforts before a.
commitment to the performance of the contract by the bidder/offeror is made.
Administrative Reconsideration.
. .
Within 10 days of being informed by the City ·of Palo Alto that it is not responsive
because it has not documented sufficient goqd faith efforts, a bidder/offeror may
request administrative reconsideration. Bidder/offerors should make thil? request
in writing to the following reconsideration official:
.Carl Yeats . ·
Director, Administrative Services Division
City of Palo Alto ·
250 Hamilton Ave. .
Palo Alto, CA 94301
650-329-2450
carl yeats@city.palo-alto.ca.us
The reconsideration official will not have played any role in the original
determination that the bidder/offeror did not mak~ 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 mad adequate good faith efforts to do so. The bidder/offeror will
have the opportunity to meet in person with the reconsideration official to discuss
. the issue of whether it met the goal or made adequate good faith efforts to do.
The City of Palo Alto will send the bidder/offeror a written decision on
reconsideration, explaining the basis for finding that the bidder did or did not
meet the goal or make adequate good faith efforts to do so. The result of the
reconsideration-process is not administratively appealable to Caltrans, FHWA or
the DOT.
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Good ·Faith Efforts when a DBE is Replaced on a Contract
The City of Palo Alto will require a contractor to make good faith efforts to replace
a DBE that is terminated or has otherwise failed to complete its work on·a ·
contract With another certified DBE, to the extent needed to meet the contract
goal. The prime contractor is required to .notify the RE immediately on the DBE's
·inability 6r unwillingness to perform and provide reasonable documentation.
In this· situation, the prime contractor will be required to obtain City of 'Palo Alto
prior approval of the substitute DBE and to provide copies of new or amended ·
subcontracts, or documentati_on of good faith efforts. If the contractor fails or
refuses to comply in the time specified, City of Palo Alto contracting office will-
issue an order stopping all or part of payment/work until satisfactory action has
been taken: If the contractor still fails to comply, the contracting officer may issue
a termination for default proceeding. ·
XVIII. Counting DBE P~rticipation (§26.55)
The City of Palo Alto will count DBE participation toward overall and contract
goals as~provide,d in the contract specifications for the prime contractor,
subcontractor, joint venture partner with prime or subcontractor, or vendor of
material or supplies. See the Caltrans's Sample Boiler Plate Contract
Documents previously mentioned. Also, refer to XI, A. "After Contract Award."
XIX. Certification (§26:83(a)).
City of Palo Alto ensures that only DBE firms currently certified on the Caltrans'
directory Will participate as DBEs in our program. ·
XX. Information Collection and .Reporting
Bidders List
The City ·of Palo Alto Will create a bidders list, consisting of information. about all
DBE and non-DBE firms that bid or quote on DOT -assisted contracts .. The
bidders list will include the name, address, DBE/non-DBE status, age, and
annual gross receipts of firms. · ·· ·
Data gathering to construct a bidders list will be accomplished by a public notice
advertised annually to solicit applicable .consulting firms and contractors who
participate in DOT -assisted contracts.
Monitoring Payments to DBEs
Prime contractors are required to maintain records and documents of payments
to DBEs for three years following the performance of the contract. These records
Will be made available for inspection upon request by any authorized
representative of the City of Palo Alto, Caltrans or FHW A. This reporting
requirements also extends to any certified DBE subcontractor. ·
12
Payments to DBE subcontr(;!ctors will be reviewed by t~e City of Palo Alto to
.. ensure that the actual ainount paid to DBE subcontractors equals or exceeds the
·. dollar amounts stated in the schedule of DBE participation.
Reporting to Caltrans
The City of Palo Alto -Final utilization of DBE parti9ipation will be reported to the
DLAE using Exhibit 17-F of the Caltrans' LAPM. ·
Confidentiality ·
.The City of Palo Alto will safeguard from disclosure to third parties information
that ·ll]ay reasonable be regarded as confidential business information, consistent
with Federal, state, and local laws.
City Manager
Date: __ __:. ____ .
This .Disadvantaged Business Enterprise Program is accepted by:
Date:-------..,..-
DLAE
13
APPENDIX A TO 49 CFR PART 26 ··GUIDANCE CONCERNING GOOD FAITH
EFFORTS .
. I. When, as a recipient, you establish a contract goal.on a DOT ·assisted contract, a
bidder must, in order to be responsible and/or responsive, make good faith efforts to
meet ~he goal. The bidder can meet this requirement in either of two ways. First, the
bidder can meet the goal, documenting commitments for participation by .DBE firms
sufficient for this purpose. Second; even if it doesn'~ meet the goal, the bidder ca·n
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 appropri~teness 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 go~l. part 26 requires you to
. use t~e good faith efforts mechanism of this part. As a recipient, it is up to you to make
a fair and reasonable judgment whether 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 eautions you against requiring that a bidder meet a
contract goal(i.e.; obtain a specified amount of DBE participation) in order to· be awarded
a contract, even though the bidder makes an adequate good faith efforts showing. This
rule specifically prohibits you from ignoring bona fide good faith efforts. ·
IV. The following is a Jist 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. Otherfactors or
types of efforts may be relevant in appropriate cases. ·
. A. Soliciting through all reasonable and available means (e.g.att~ndance at pre-
bid meetings, advertising and/or written notice) the interest of all certified
DBEs who have the capability to perform the work of the contract. The
bidder must solicit this interest within sufficient time to allow the DBEs to
· respond to the solicitation. The bidder. must determine with certainty if the
DBEs are interested by taking appropriate steps to follow up initial
solicitations. ·
B. Selecting portions .of the work to be performed by DBEs in order to increase.
the likelihood that the DBE goals will be achieved. This includes, where
appropriate, breaking out contract .work items into economically feasible units
to facilitate DBE participation, even when the prime contractor might
otherwise prefer to perform these work items with its own forces.
14
C. Providing interested DBEs with adequate information about the plans,
specifications, and requirements of the contract in a. timely manner to assist
them in responding to a solicitation. ·
D. (1) Negotiating in good faith with interested DBEs. It is the bidder's
responsibility to make a portion· of the work available to DBE subcontractors
and suppliers and to select those portions of the work or material needs
consistent with the available DBE subcontractors and suppliers, so as to
facilitate DBE participation. .Evidence of such negotiation includes the ·
names, addresses, and telephone numbers of D~Es that were considered; a
description of the information provided regarding the plans and specifications
for the work selected for subcontracting; and evidence as to why additional
agreements could not be reached for DBEs to perform the work.
(2) A bidder using good business judgment would consider a number of
factors in negotiating with subcontractors, including DBE subcontractors,. and
wo.uld take a firm's price and capabilities as well as contract goals into
consideration. However, the fact that there may .be some additional costs
involved ·in finding and using DBEs is not in itself sufficient reason for a
bidder's failure.to meet the contract DBE goal, as long as such costs are
reasonable. Also, the ability or desire of 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 fndustry, membership in specific groups, organi.zations, or associations
and political or social affiliations (for example union vs. non-unioh employee ·
status) are not legitimate causes for the a rejection-or non-solicitation-of bids
in the contractor's efforts to meet the project goal. · ·
F: Making efforts to assist interested DBEs in obtaining bonding, lines "of. credit,
or insurance .as required by the recipient or· contractor. ·
G.· Making efforts to assist interested DBEs in obtaining necessary equipment,
supplies, materials, or related assistance or services.
H. Effectively using the services of available minority/women community
organizations; minority/women contractors' groups: local, state, and federal
minority/women business assistance offices; and other organizations as
allowed on a case-by-case basis to provide assistance in the recruitment and
placement of DBEs. ·
V. In determining whether a bidder has made good faith effort, you may take into ·
account the performance of other bidders in meeting_the contract. For example, when
the apparent successful bidder fails to meet the contract goal, but other meet it, you may
reasonably raise·the question of whether, with additional reasonable efforts, the
apparent successful bidder could have met the goal. If the apparent successful bidder
fails to meet the goal, but meets or exceeds the average DBE participation obtained by
15
other bidders, you may view this, in conjunction with other factors, as evidence of
apparent successful bidder having made good faith efforts. ·
16
LOCAL AGENCY BIDDER • DBE ·INFORMATION·
This information may be submitted with your bid proposal. If it is not, and you are the
apparent low bidder of the second or third low bidder, it must be submitted and received as
specified in Section 201.028 of the Special Provisions. Failure to submit the required DBE
information will be grounds for finding the proposal nonresponsive. · ·
CO.-RTE.-K.P.::-:-::::-------------------~---------
CONTRACTOR NO.:.~-------.....------......;,.-----------
BID AMOUNT: $ BID OPENING D"":'A=TE:::-:------------~-----....-------
BIDDER'S NAME: DBE GOAL FROM:,..-C"""O:-:N'""'T=RA....,.....,C.,...,T-: ----------'----.,..----------
. DBE PRIME CONTRACTOR CERTIFICATION1:_·-----------------
CONTRACT ITEM OF WORK AND
ITEM NO. DESCRIPTION OR
SERVICES TO BE
SUBCONTRACTED OR
MATERIALS TO BE
PROVIDED
DBE
CERT.NO.
NAME OF DBEs (MUst be
certified on the date bids are
opened-include.dBE address
an~ phone number} ·-..
IMPORT ANT: Identify all DBE firms being claimed for Total Claimed
credit, regardless of tier. Copies of the DBE quotes are Participation
required.
Names of the First Tier DBE Subcontractors and their
respective ltem(s} of work listed above shall be · ·
consistent, where applicable, with the names and Items
of work in the "List of Subcontractors" submitted with
your bid pursuant to the Subcontractors Listing Law and
Section 2-1.01; "General," of the Spe~iai.Provisions. ·
1. DBE prime contractors shall enter their DBE certification
number. DBE prime contractors shall indicate all work to
be performed by DBEs including work performed by its
own forces.
2. If 100% of item is not to be performed or furnished by
DBE, describe exact portion of item to be performed or
Signature of Bidder
furnished by DB~. · Date (Area Code} Tei.No.
3. . See Section 2-1.02, "Disadvantaged Business
Enterprise," to determine the credit allowed for DBE
firms.
17 .
Person to Contact (Please
· Type or Print)
DOLLAR
.AMOUNT
DBE3
$ __
__ %
· CITY.OF PALO ALTO
OVERALL ANNUAL DBE GOAL AND METHODOLOGY
FEDERAL FISCAL YEAR 2000/01
UtilizingAnother DOT Recipient's Approved Goal
I. DOT -Assisted Contracting Program for FY 2000/01
The following table represents 'the City ofPalo Alto's projected DOT-assisted contracts
. by work category;· Standard Industry Classification and dollar value. of DOT -a~sisted
·funds considered in the goal setting analysis: ·
WORK SIC ESTIMATED · %OF FEDERAL
CATEGORY CATEGORY · DOLLAR VALUE FUNDING BY
WORK
CATEGORY
Consulting Services .. s 87 $676,000. 15%
Heavy Construction s 16 $3,846~500 85%
TOTAL $4,522,500 100%
II. . GOAL METHODOLOGY
Step 1: Determining a Base Figure
The City of Palo Alto.will utilize the City of Sunnyvale's Approved Overall Annual Goal
for DBE Participation as a means of establishing the City's Base ·Figure of relative
availability ofDBEs for FFY 2000/0L Sunnyvale's Approved Overall Annual Goal was
set in ac.cordance with 49 CFR Part 26.45 criteria and has a similar contracting program
within a similar market as Ule City of Palo Alto. ·
Sunnyvale's Approved Overall Annual Goal for DBE Participation for FFY 200/01 is as
follows:.
RACE-NEUTRAL RACE-CONSCIOUS ANNUAL DBE GOAL
:METHOD METHOD
2% 10% 12%
Step 2: Adjusting the Base Figure
The City of Palo Alto, however needs to make an imme"diat~ adjustment to Sunnyvale's
goal to ensure that the base figure of relative availability ofDBEs more correctly reflects
the City's projected contracting program for FFY 2000/01.
Page 1
To do this the mix of the work categories w.as adjusted· to reflect the respective dollar·
values of consultfug and contracting categories, and the Sunnyvale base figure was
recaiculatedto more accurat~ly r~flect the City of Palo Alto's requirements. ·The result' of
· this recalculation reqUires the City of Palo Alto to make a+ 13% adjustment to the
Sunnyvale goal, as shown ·below;
DETERMINATION OF THE ADJUSTED BASE FIGURE
FOR THE CITY OF PALO ALTO
(BASED ON DATA PROVIDED IN SUNNYVALE
. DBE PROGRAM FOR FFY 2000/01)
·~
SIC 87 16. # Caltrans DBE Directory Firms
Engineers & . 2986 # Census Bureau Firms (CaP)
Management Services
SIC 16 10 # Caltrans DBE Directory Firms .
Heavy Constructio:o. 112 # Census Bureau Firm~ (CBP)
Percentage ofDBEs in the overall marketplace available. to the City of Palo Alto. ·The
percentages ofDBEs have been weighted by the relative dollars to be spent in ~ach SIC
code as shoWn. in the followhig computation: ·
. . .
Palo Alto Modification of Sl.mnyvale Base Figure:
Adjusted .15 (16 DBEs in SIC 87) + ·.85 (10 DBEs in SIC 16} ·
Sunnyvale •r.~ 2986. 112
Base Figure
-.15 (16/2986) + .. 85 (1 0/112)
-0.0008 + o·.o758
-0.0766 or 7.66%
The City of Palo Alto also assessed other known relevant evidence to determine what
addi_tional adjustments were needed to narrowly tailor the Base Figure to the City ·of Palo
Alto's marketplace and prior experience as follows:
+ Current capacity ofDBEs (volume of work DBEs have performed in recent
~~-.
+ Another recipient/Local Agency's app~oved DBE Goal
Page2
Palo Alto Goal Attainment Experience:
FFY 1993-94 thru 1995-96
FFY 1996-97 thru 1999-00
Average Goal Attainment
18%
25%
21.5%
Adjustment = Adjusted Base Figure + Average Goal Attainment
Adjustnient = 7.66% + 21.50%
Adjuste~ Goal = 29%
RACE-NEUTRAL RACE-CONSCIOUS ANNUAL DBE GOAL
METHOD· :METHOD
5% 24% 29%
Thls overall goal is determined to be the level ofDBE participati()n that would. be
expected if there were no discrimination. Of the overall annual29% goal for DBE
participation, the C~ty of Palo Alto projects ine~ting 5% of the goal utilizing race-neutral
. method~, including making efforts to assure that bidding and contract requttemeilts .
facilitate participation by DBEs and othe:J," small businesses; unbundling large contracts to
make them more accessible to small businesses; .encouraging prime contractors to
· subcontract portions of the work that they might otherwise perform themselves, and
providing tec~cal assis~ance and other support services to facilitat~ consideration of
DBEs and other small businesses. Additionally, the goal will be attained through ·
aggressive sourcing, prime contractor cooperation and striiigent contract monitoring.
·The remaining 24% of the goal is anticipated to be accomplished through race-conscious
measures. These include establishing contract-specific goals on contracts with contracting
possibilities, when needed, to meet the City's overall annual DBE goal. .
The City will make a. good wilr effort to achieve this goal, but the City's most recent
experience indicates that a realistic goal is the 25% level we. have experienced in the most
recent years.
Rev. 2, 1/23/01
Page 3 .
·City ·Alto
Orga
..
-City Attorney
Ariel Pierre Calonn~
City Auditor City Manager City Clerk
. D~nna Rog~rs
.Adminstr~tive
Services
Department
Planning &
Community
Environment
Vacant Fran.k Benest
Asst City Manager
Em.tly Harrison ·
J-H Community
Services
Qepartment
W-J· Police
Department
I I
I I
DBE Liaison Officer
M. H·oward Edwards
Fire·
Department.
Public Works
Department
Human
·Resources
Department .
Utilities
·Department
Cam)()