An Ordinance of the County of Allegheny, Commonwealth of Pennsylvania setting forth a new Chapter 435 of the County Code of Ordinances in order to improve operations of the County's MBE Program.
WHEREAS, the then Board of Allegheny County Commissioners established by ordinance in 1981 a County-wide Minority Business Enterprise (MBE) Program in order to eliminate impediments to and to increase the participation of minority and woman business enterprises (MBEs and WBEs) in the award of County contracts for supplies and services; and
WHEREAS, the County's original MBE Program Ordinance, which is currently codified in Chapter 435 of the County Code of Ordinances, has only been amended twice since its enactment more than thirty years ago; and
WHEREAS, the County's Department of Minority, Women and Disadvantaged Business Enterprise has, at the request of the Chief Executive, conducted a review of the County MBE Program Ordinance; and
WHEREAS, the County's Department of Minority, Women and Disadvantaged Business Enterprise has recommended that the existing MBE Program Ordinance should be amended to improve operations of the County's MBE Program; and
WHEREAS, County Council is of the considered opinion that substituting an improved MBE Program Ordinance as recommended by the County's Department of Minority, Women and Disadvantaged Business Enterprise and by the Chief Executive for the existing MBE Ordinance will improve and enhance the operations of the County's MBE Program.
The Council of the County of Allegheny hereby enacts as follows:
SECTION 1. Repeal of Existing Chapter 435 of the County Code of Ordinances and Replacement with a new Chapter 435.
Chapter 435 of the County's Code of Ordinances is deleted in its entirety and the following is hereby substituted in its place:
Chapter 435. MINORITY, WOMEN AND DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
§ 435-1. Definitions.
As used in this Minority, Women and Disadvantaged Business Enterprise (M/W/DBE) Program, the following terms shall have the following meanings:
AC - Allegheny County.
APPLICANT - One submitting an application request or plan to be approved by a departmental official or by a primary recipient for financial assistance.
BIDDER/PROPOSER - Any individual, partnership, joint venture, corporation or firm submitting a bid or proposal for the contract.
COMPLIANCE - The existing condition when a contractor has met and implemented all the provisions of this program.
CONTRACT - A mutually binding agreement or any modification thereof obligating the seller to furnish goods or services, including construction, and the buyer to pay for them.
CONTRACTOR - One who participates in a contract or subcontract authorized by Allegheny County.
DISADVANTAGED -
A. Socially (individuals who have been subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups and without regard to individual qualities).
B. Economically (individuals that are socially disadvantaged and whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged).
FINANCIAL ASSISTANCE - Any grant, loan, guarantee, contract (other than a direct contract) or any other arrangement by which Allegheny County provides or otherwise makes available assistance to a recipient in the form of funds, guarantees authorized by statute as financial assistance, services of personnel, real or personal property or any interest in, or use of such property.
JOINT VENTURE - An association of two or more businesses to carry out a single business enterprise for profit, for which purpose they combine their property, capital, efforts, skill and knowledge.
LESSEE - A business or person that leases, or is negotiating to lease, property from the County for the purpose of providing goods or services at the facility.
M/W/DBE ADVISORY COMMITTEE - The committee established by the Chief Executive and County Council pursuant to Ordinance No. 24.09.
M/W/DBE DEPARTMENT DIRECTOR - The individual appointed as Director by the County Manager in consultation with the Chief Executive.
MANUFACTURER - A supplier that produces goods from raw materials or substantially alters them before resale. The gross proceeds from a sale by an M/W/DBE manufacturer may be credited toward the percentage for minority business utilization.
MINORITY - A person who is a citizen or lawful permanent resident of the United States and who is:
A. Black (a person having origin in any of the black racial groups of Africa).
B. Hispanic (a person of Spanish or Portuguese culture with origins in Mexico, South America or Central America or the Caribbean Islands).
C. Asian-American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands).
D. Native American and Alaskan Native (a person having origins in any of the original peoples of North America).
MINORITY BUSINESS ENTERPRISE (MBE) - A small business that is both owned and controlled by minorities. This means that minorities must own 51% of the business, and that they must control the management and daily operations of the business. Minorities include Blacks, Hispanics, Asian-Americans, Native Americans, Alaskan natives and members of other groups or other individuals whom the Small Business Administration (SBA) has determined are economically and socially disadvantaged under § 8(a) of the Small Business Act.
MINORITY/WOMEN/DISADVANTAGED BUSINESS ENTERPRISE DIRECTORY - The list of the M/W/DBEs found on the Pennsylvania Unified Certification Program (PA UCP) website at www.paucp.com <http://www.paucp.com>. Such M/W/DBEs have been certified as having met the eligibility requirements as outlined in DOT regulations, Code of Federal Regulations (CFR) 49 Parts 23 and 26.
NONCOMPLIANCE - The condition of existing when a recipient or contractor has failed to implement the M/W/DBE program requirements.
SUPPLIER - A business enterprise which owns and provides the goods or materials which it sells.
WOMEN - Females (women, regardless of race or ethnicity).
WOMEN BUSINESS ENTERPRISE (WBE) - A small business that is both owned and controlled by a woman or women. This means that the woman or women must own 51% of the business, and must control the management and daily operations of the business.
§ 435-2. Purpose; Participation Goal.
Allegheny County recognizes that minority and women business enterprises have not participated in County contracts for supplies and services to the extent that is desirable. Allegheny County further recognizes that there are certain impediments to achieving greater participation. Consequently, Allegheny County has established a County-Wide Minority, Women and Disadvantaged Business Enterprise (M/W/DBE) Program that will remove any impediments to minority or women involvement in County contracts and will assure the success and growth of minority and women business by establishing an overall goal of 13% minority and 2% women participation.
§ 435-3. Advisory Committee.
A. The Chief Executive and County Council will establish an M/W/DBE Advisory Committee. The purpose of this Committee will be to recommend specific M/W/DBE goals for various types of procurement of goods or services. The Committee will also monitor the County's M/W/DBE efforts on a quarterly basis.
B. The Chief Executive and County Council will also commit the necessary resources to implement the program that follows:
(1) Organization.
An M/W/DBE Advisory Committee will be established that will consist of no more than 15 members, selected as follows: up to five members may be County department directors who are engaged in procurement activities; with all remaining members to be representatives of such civic, community, minority and other entities as the Chief Executive and County Council may, from time to time in their discretion, designate. The role of this Committee will be to recommend specific M/W/DBE goals for:
(a) Construction contracts.
(b) Supplies.
(c) Development.
(d) Services, including professional services.
(e) Monitoring progress toward these objectives on a quarterly basis, and posting written quarterly progress reports conspicuously on the County's website.
(f) Recommending to the Chief Executive and County Council specific activities for improving M/W/DBE participation.
(2) Appointment and Committee membership.
All Committee members shall be appointed by the Chief Executive, with the approval of County Council. Of the initial Committee member appointments, five shall be for a term of two years, five shall be for a term of three years, and five shall be for a term of four years. Thereafter, all Committee member appointments shall be for a term of four years. In the event that the Chief Executive does not offer an appointment for approval within 30 days of the expiration of any Committee member's term, Council shall nominate and approve an appointee for that member's seat. All seated members of County Council, the Chief Executive and the County Manager shall be deemed ineligible to serve on the Committee and shall not, at any time, serve as or perform any function of a member of the Committee. No County employee, elected County official, or party to any County contract shall serve as or perform the function of the Chair for the Committee at any time. No Committee member may serve beyond the expiration of his or her term of appointment unless and until his or her reappointment is approved.
§ 435-4. Staff.
The Department of Minority, Women and Disadvantaged Business Enterprise (M/W/DBE) staff will monitor all County bid documents, contracts and leases for proper M/W/DBE goals and language and to monitor all records and documentation on M/W/DBE involvement. These individuals will act as staff to the M/W/DBE Advisory Committee reporting on progress and compiling information as requested by the Committee.
§ 435-5. Eligibility Certification Procedures.
As outlined in 49 CFR Parts 23 and 26.
§ 435-6. Eligibility Standards.
A. In accordance with 49 CFR Parts 23 and 26, all eligible M/W/DBEs must be independent-owned businesses controlled and operated by socially and economically disadvantaged individuals. The ownership shall be real, substantial and continuing. The socially and economically disadvantaged owners shall enjoy the customary incidents of ownership, possessing the power to direct or cause the direction of management and policies of the firm on a daily basis. The firm shall not be subject to any formal or informal restrictions through bylaw provisions, partnership agreements, charter requirements or any other form, written or oral including, but not limited to, voting rights, ultimate power to hire and fire, buy-out rights, etc.
B. A joint venture will be acceptable and weighed individually.
§ 435-7. Equitable Opportunities to Obtain Contracts.
A. Allegheny County shall adopt M/W/DBE procedures and techniques that will be consistent with sound planning, construction and procurement principles and applicable laws and policies.
B. Allegheny County shall:
(1) Authorize the solicitation in specific publications (to include special invitations) in order to apprise all potential bidders or proposers of Allegheny County's policy commitment to its M/W/DBE program.
(2) Arrange pre-bid or pre-qualification meetings to be advertised and scheduled to facilitate M/W/DBE participation.
(3) Provide technical assistance.
(4) Use outside consultants, when appropriate, to assist in getting proper financial and technical M/W/DBE experience.
(5) Use and encourage the use of M/W/DBE banks and other financial institutions.
(6) Give priority to M/W/DBE suppliers and manufacturers in areas of purchasing where a department has discretion; encourage the County of Allegheny to use M/W/DBE suppliers and manufacturers in its centralized purchasing process.
(7) Encourage existing contractors and lessees with Allegheny County to voluntarily develop goals for use of M/W/DBE suppliers, manufacturers and financial institutions.
§ 435-8. General Goals.
A. Based upon recommendations of the M/W/DBE Advisory Committee, Allegheny County will also provide for:
(1) Technical assistance to minority, women and disadvantaged business enterprises.
(2) Making a diligent effort to award contracts to M/W/DBE suppliers, consultants and contractors where the County has, by law, the discretion to select its contracts.
(3) The encouragement of municipalities within Allegheny County to develop similar M/W/DBE programs and to assist them in implementing these programs.
B. The Committee will review:
(1) The availability of M/W/DBEs in construction, services and related business; and the progress of existing M/W/DBE programs currently in operation within the state, and review in depth the current level of M/W/DBE participation in all Allegheny County business ventures.
(2) M/W/DBE participation in all Allegheny County business ventures.
§ 435-9. Contract Goals.
Allegheny County requires all firms to demonstrate a good faith effort as more fully defined in 49 CFR Part 26 to include M/W/DBEs to the greatest extent possible in County contracts.
§ 435-10. Prime Contractor Submission of M/W/DBE Plan
and Selection Criteria.
A. Projects. Where appropriate, solicitations shall require that bidders or those submitting proposals do the following:
(1) At the time of bid or proposal submission, identify M/W/DBEs, a description of the work to be performed by each M/W/DBE and the dollar value of the services to be provided or goods to be supplied by each M/W/DBE.
(2) Submit a written assurance of meeting the M/W/DBE plan submitted in the bid or proposal.
(3) Assure, in writing, that no agreement written, oral or tactic, between prime contractors and M/W/DBEs have or will be entered into, whereby any M/W/DBE promises or agrees not to provide quotes to other prime contractors.
(4) Submit a written assurance that if any M/W/DBE contractor(s) is/are unable to perform successfully that the bidder or proposer shall make every effort to replace the unsuccessful M/W/DBE with another M/W/DBE in accordance with the M/W/DBE policy and the utilization of the resource identified to provide assistance.
B. Where appropriate, Allegheny County shall use the following methods to require contractors to comply with the M/W/DBE requirements:
(1) M/W/DBE goals shall be applicable to a wide range of contracts, in accordance with the specifications for each such contract.
(2) Allegheny County and its resources will provide assistance and direction in drafting and implementing the programs for M/W/DBEs.
(3) All efforts are to be substantiated and documented to evidence contractor's actions in complying with the M/W/DBE program.
(4) Allegheny County is to be advised as to exactly how much work, if any, an M/W/DBE subcontractor intends to himself contract, and to whom such work is being contracted.
C. The following selection procedure, or such other selection procedure as the County Solicitor may determine to be appropriate, will be used to insure that contracts are awarded to bidders who meet the M/W/DBE goals. If any bidder offering a reasonable price meets the M/W/DBE contract goals, Allegheny County shall presume that all competitors that failed to meet the goals has failed to exert sufficient reasonable efforts and consequently are ineligible to be awarded the contract. To implement this presumption:
(1) Allegheny County shall determine whether a bidder offering the lowest price of all those meeting the M/W/DBE contract goals has made a reasonable bid. If reasonable, that bidder shall be awarded the contract.
(2) If unreasonable, Allegheny County shall consider the price offered by the bidder with the highest percentage of M/W/DBE participation who has failed to meet the M/W/DBE contract goals. If the price is reasonable, Allegheny County shall award the contract to that bidder.
(3) If unreasonable, Allegheny County shall next consider other bidders that did not meet their goals, in order of the percentage of M/W/DBE participation, until a bidder with a reasonable price is selected.
(4) If no bidder with M/W/DBE participation has offered a reasonable price, Allegheny County can award the contract to any bidder that has demonstrated that it has made sufficient reasonable efforts to meet the M/W/DBE contract goals.
D. The precise selection criteria applicable to each contract will be set forth in the instructions, specifications and other contract documents published by Allegheny County for that particular contract.
E. Bidders/proposers that fail to meet the M/W/DBE goals and fail to demonstrate sufficient reasonable efforts shall not be eligible to be awarded the contract.
§ 435-11. Prime Contractor M/W/DBE Commitment.
In accordance with Executive Order 11625, the prime contractor agrees to:
A. Be bound by the terms of the M/W/DBE plan included as a general provision in the bid specifications, which plan is expressly made a part thereof.
B. Take action to the fullest extent consistent with sound procurement principles, applicable law and efficient construction of the project; to identify minority business firms; to solicit bids and quotations from M/W/DBEs and, in making awards and purchases, to give special consideration to minority business enterprises.
C. The inclusion of all maintenance reports.
§ 435-12. Recommendations.
It is recommended that:
A. Allegheny County direct all department Directors to take the appropriate steps involving contracts in their respective departments so that they are structured and implemented as to enable Allegheny County to achieve its overall M/W/DBE goals.
B. The M/W/DBE Department shall be directly responsible for reporting to the Chief Executive through the County Manager for the purpose of implementing and administering the M/W/DBE plan.
C. The M/W/DBE Director should be afforded the opportunity to meet directly with the County Manager and/or the Chief Executive regarding matters relating to the M/W/DBE program.
§ 435-13. Allegheny County Contract Reporting Obligations.
A. The Allegheny County Controller shall forward a written report to the County Council on all contracts to which the County is a party.
(1) The Controller shall, for every contract for which the County receives proposals, create a written report that identifies:
(a) The purpose of the contract for which proposals were considered;
(b) The aggregate value of the contract for which proposals were considered;
(c) The business(es) or individual(s) that submitted each proposal that was considered for final selection by name; and
(d) The M/W/DBE status of each listed individual or business, as classified by the Department of Minority, Women and Disadvantaged Business Enterprise.
(2) The reports required under Subsection A (1) shall be created immediately upon the identification of candidates for consideration for County contracts. Copies of the reports required under the terms of this section shall be forwarded to the Office of Allegheny County Council and Chief Executive no less frequently than once every three months.
(3) The County Controller shall, with the assistance and cooperation of the Allegheny County Division of Computer Services, create and maintain a website upon which the reports required by this section shall be posted immediately upon issuance. Access to this website shall be granted to all individuals at no charge.
(4) All businesses or individuals submitting proposals which are identified by Allegheny County for final selection shall receive a letter from the County Controller informing them of their continued consideration.
(5) All businesses or individuals submitting proposals which are not identified by Allegheny County for final selection shall receive a letter from the County Controller informing them that their proposal will receive no further consideration, together with the reasons for the County's decision.
(6) The County Controller shall, no less frequently than once every three months, provide written notice describing any award or any alteration to the terms of any existing contract to which Allegheny County is a party to County Council and the Chief Executive. Such written notice shall include a delineation of the M/W/DBE status of each party to the awarded or altered contract, as classified by the Department of Minority, Women and Disadvantaged Business Enterprise, as well as a description of the M/W/DBE status of any subcontractors known at the time of the award or alteration.
(7) County Council shall be deemed in receipt of any report required under the terms of this section on the date that such report is received by the Chief Clerk.
B. Nothing in this section shall be read to fix, alter, or redefine in any fashion the prerogative of the Chief Executive to enter contracts on behalf of the County, as described in Article V of the Home Rule Charter of Allegheny County, or by other applicable law.
SECTION 2. Effective Date.
This Ordinance shall enter into effect immediately.
SECTION 3. Severability.
If any provision of this Ordinance shall be determined to be unlawful, invalid, void or unenforceable, then that provision shall be considered severable from the remaining provisions of this Ordinance, which shall be in full force and effect.
SECTION 4. Repealer.
Any Resolution or Ordinance or part thereof conflicting with the provisions of this Ordinance is hereby repealed so far as the same affects this Resolution.