- Definitions of Terms
The terms used in this program have the meanings defined in 49 CFR §26.5.
- Objectives /Policy Statement (§§26.1, 26.23)
The City of Millbrae has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Part 26. The City of Millbrae has received Federal financial assistance from the DOT, and as a condition of receiving this assistance, the City of Millbrae will sign an assurance that it will comply with 49 CFR Part 26.
It is the policy of the City of Millbrae to ensure that DBEs, as defined in part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also our policy:
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 of firms that can compete successfully in the market place outside the DBE Program.
The Public Works Director has been delegated as the DBE Liaison Officer. In that capacity, the Public Works Director is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the City of Millbrae in its financial assistance agreements with the California Department of Transportation (Caltrans).
The City of Millbrae 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 and trade association publications.
- Nondiscrimination (§26.7)
The City of Millbrae 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, the City of Millbrae 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.
- DBE Program Updates (§26.21)
The City of Millbrae will continue to carry out this program until the City of Millbrae has established a new goal setting methodology or until significant changes to this DBE Program are adopted. The City of Millbrae will provide to Caltrans a proposed overall goal and goal setting methodology and other program updates by June 1 of every year.
- Quotas (§26.43)
The City of Millbrae will not use quotas or set asides in any way in the administration of this DBE program.
- DBE Liaison Officer (DBELO) (§26.45)
The City of Millbrae has designated the following individual as the DBE Liaison Officer: Public Works Director, 621 Magnolia Avenue, Millbrae, CA 94030, (650) 259-2339, public-works@ci.millbrae.ca.us. In that capacity, the Public Works Director is responsible for implementing all aspects of the DBE program and ensuring that the City of Millbrae complies with all provisions of 49 CFR Part 26. This is available on the Internet at osdbuweb.dot.gov/main.cfm. The Public Works Director has direct, independent access to the City Manager concerning DBE program matters. An organization chart displaying the DBELO's position in the organization is found in Attachment A to this program.
The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination other appropriate officials. Duties and responsibilities include the following:
- Gathers and reports statistical data and other information as required.
- Reviews third party contracts and purchase requisitions for compliance with this program.
- Works with all departments to set overall annual goals.
- Ensures that bid notices and requests for proposals are available to DBEs in a timely manner.
- Identifies contracts and procurements so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals) and monitors results.
- Analyzes the City of Millbrae's progress toward goal attainment and identifies ways to improve progress.
- Participates in pre-bid meetings.
- Advises the CEO/governing body on DBE matters and achievement.
- Chairs the DBE Advisory Committee.
- Participates with the legal counsel and project director to determine contractor compliance with good faith efforts.
- Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance.
- Plans and participates in DBE training seminars.
- Provides outreach to DBEs and community organizations to advise them of opportunities.
- Federal Financial Assistance Agreement Assurance (§26.13)
The City of Millbrae will sign the following assurance, applicable to all FHWA-assisted contracts and their administration as 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 contract or in the administration of its DBE Program or the requirements 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 terms 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 may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
- DBE Financial Institutions
It is the policy of the City of Millbrae 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 DBE Liaison Officer. The Caltrans Disadvantaged Business Enterprise Program may offer assistance to the DBE Liaison Officer.
- Directory (§26.31)
The City of Millbrae will refer interested persons to the DBE directory available from the Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.gov/hq/bep.
- Overconcentration (§26.33)
The City of Millbrae has not identified any types of work in DOT-assisted contracts that have a overconcentration of DBE participation. If in the future the City of Millbrae identifies the need to address overconcentration, measures for addressing overconcentration will be submitted to the DLAE for approval.
- Business Development Programs (§26.35)
The City of Millbrae does not have a business development or mentor-protégé program. If the City of Millbrae 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.
- Required Contract Clauses (§§26.13, 26.29)
Contract Assurance
The City of Millbrae 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 carry out 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 recipient deems appropriate.
Prompt Payment
The City of Millbrae 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 10 days from the receipt of each payment the prime contractor receives from the City of Millbrae. 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 Millbrae. 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 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 th City of Millbrae. This clause applies to both DBE and non-DBE subcontractors.
- Monitoring and Enforcement Mechanisms (§26.37)
The City of Millbrae 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 Millbrae 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.
Preconstruction Conference
A preconstruction conference will be scheduled between the RE and the contractor or their representative 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 "Subcontracting 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 RE 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 at that time, or there is some other concern, the RE 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-I 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 subcontractors in excess of 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 explains that a contractor may not substitute a subcontractor listed in the original bid except with the approval of the awarding authority.
The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of Disadvantaged Business Enterprises, First Tier Subcontractors" and will explain to them that the document will be required at the end of the project, for which payment can be withheld, in conformance with the contract.
Construction Contract Monitoring
The RE will ensure that the RE's staff (inspectors) know what items of work each DBE is responsible for performing. Inspectors will notify the RE 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 the 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 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 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 claimed. 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 must review the letter to be sure names and addresses are shown, dollar values are included, and reason for the request is explained. If the RE/Contract Manager agrees to the substitution, the RE/Contract Manager will notify, in writing, the DBE subcontractor 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.
Record Keeping and Final Report Utilization of Disadvantaged Business Enterprises
The contractor shall maintain records showing the name and address of each first-tier subcontractor. The records shall also show:
- The name and business address, regardless of tier, of every DBE subcontractor, DBE vendor of materials and DBE trucking company.
- The date of payment and the total dollar figure paid to each of the firms.
- The DBE prime contractor shall also show the date of work performed by their own forces along with the corresponding dollar value of the work claimed toward DBE goals.
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 Exhibit 17-F and will be submitted to the DLAE attached to the Report of Expenditures. The RE 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 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 shown 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 comments section of the completed 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 RE will require the contractor to act in accordance with existing contractual commitments regardless of decertification.
The DLAE will use the PS&E checklist to monitor the City of Millbrae's commitment to require bidders list information to be submitted to the City of Millbrae 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 submitted as stipulated in the special provisions.
The City of Millbrae 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 DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in §26.109. The City of Millbrae also will consider similar action under our own legal authorities, including responsibility determinations in future contracts.
- Overall Goals (§26.45)
Amount of Goal
The City of Millbrae's overall goal for the Federal fiscal year FY 2001-2002 is the following: 7.42 % of the Federal financial assistance in FHWA-assisted contracts. This overall goal is broken down into 6.68 % race-conscious and 0.74 % race-neutral components.
Methodology
To establish the City of Millbrae's base figure/ goal of the relative availability of DBE's in relation to all comparable firms available to participate in the City's DOT assisted contract program for the Federal Fiscal Year 2001 / 2002, the City elected to use the Caltrans DBE Directory of Certified Firms and the Census Bureau Data.
The City commenced the process by using Caltrans' work category codes (WCC) to identify type of work and subcontracting opportunities in each DOT assisted contract. The City determined the percentage of work related to the WCC and then calculated the amount of federal funds applicable to each WCC in each contract. The City then used the Caltrans DBE Directory of Certified Firms to identify DBE firms available for each WCC and also determine if they were willing to work either statewide "SW" or within San Mateo County "41".
The City of Millbrae then proceeded to, using the Census Bureau Data, identify the total number of firms for each WCC where DBE firms had been located (by county). Next, the City calculated the relative availability of DBE firms for each WCC. This percentage was calculated for each WCC by dividing the number of DBE firms by the total number of firms available for each WCC.
It must be noted that the City of Millbrae has not implemented any federally, FHWA or FTA, funded projects over the last three years. As such, the City of Millbrae refined its calculation to more closely represent the geographic areas from which the City of Millbrae received bids for locally funded contracts with similar type work. The City of Millbrae defined their market area to include the following counties - Alameda, Santa Clara, San Mateo, San Francisco, and Riverside.
The next step was to make any appropriate goal adjustment. As previously mentioned the City of Millbrae has not implemented any federally, FHWA or FTA, funded projects over the last three years. However, The City of Millbrae is working towards soliciting bids on three federally funded projects before the end of the current fiscal year. The City of Millbrae's approved overall DBE goal for FY 00-01 is 8.02%
The average of Step 1 and Step 2 is calculated and the resultant goal is a adjusted accordingly.
Breakout of Estimated Race-Neutral and Race-Conscious Participation
Since the City of Millbrae does not have any historical data due to not having implemented any recent federally funded projects, the City cannot substantiate a race neutral goal by actual evidence. However, despite limited resources the City will make an effort to achieve 10% of the DBE goal with race neutral methods such as developing a website to distribute DBE program information, contract opportunities and DBE directory.
Process
Starting with the 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 the Federal fiscal year beginning October 1 for FHWA-assisted contracts. Submittals will be to the Caltrans' DLAE. An 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 follow this process:
Once the DLAE has responded with preliminary comments and the comments have been incorporated into the draft overall goal information, the City of Millbrae 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 Millbrae's principal office for 30 days following the date of the notice, and informing the public that the City of Millbrae comments will be accepted on the goals for 45 days following the date of the notice. Advertisements in newspapers, 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 include a summary of information and comments received during this public participation process and the City of Millbrae's responses. This will be due by September 1 to the Caltrans DLAE. The DLAE will have a month to make a final review so the City of Millbrae may begin using the overall goal on October 1 of each year.
- Contract Goals (§26.51)
The City of Millbrae will use contract goals to meet any portion of the overall goal that the City of Millbrae 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 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 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 made 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.
- Transit Vehicle Manufacturers (§26.49)
If DOT-assisted contracts will include transit vehicle procurements, the City of Millbrae will require 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. The City of Millbrae will direct the transit vehicle manufacturer to the subject requirements located on the Internet at osdbuweb.dot.gov/programs/dbe/dbe.htm.
- Good Faith Efforts (§26.53)
Information to be Submitted
The City of Millbrae treats bidders'/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 contract goal has been established will require the bidders/offerors to submit the following information to the City of Millbrae's City Hall, 621 Magnolia Avenue, no later than 4:00 p.m. on or before the fourth day, not including Saturdays, Sundays and legal holidays, following bid opening:
- The names and addresses of known DBE firms that will participate in the contract;
- A description of the work that each DBE will perform:
- The dollar amount of the participation of each DBE firm participation
- Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal;
- Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor's commitment; and
- 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 whether a bidder/offeror who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive: Mr. Ron Popp, Interim Director of Public Works
The City of Millbrae will ensure that all information is complete and accurate 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 Millbrae that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration. Bidder/offerors should make this request in writing to the following reconsideration official: Mr. Jeff Killian, 621 Magnolia Avenue, Millbrae, CA 94030, (650) 259-2334, jkillian@ci.millbrae.ca.us. The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make 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 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 Millbrae 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.
Good Faith Efforts when a DBE is Replaced on a Contract
The City of Millbrae 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 of the DBE's inability or unwillingness to perform and provide reasonable documentation.
In this situation, the prime contractor will be required to obtain the City of Millbrae's prior approval of the 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, the City of Millbrae 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.
- Counting DBE Participation (§26.55)
The City of Millbrae 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 material or supplies. See the Caltrans' Sample Boiler Plate Contract Documents previously mentioned. Also, refer to XI, A. "After Contract Award."
- Certification (§26.83(a))
PThe City of Millbrae ensures that only DBE firms currently certified on the Caltrans' directory will participate as DBEs in our program.
- Information Collection and Reporting
Bidders List
The City of Millbrae 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.
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 Millbrae, Caltrans or FHWA. This reporting requirement also extends to any certified DBE subcontractor.
Payments to DBE subcontractors will be reviewed by the City of Millbrae to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation.
Reporting to Caltrans
The City of Millbrae - Final utilization of DBE participation will be reported to the DLAE using Exhibit 17-F of the Caltrans' LAPM.
Confidentiality
The City of Millbrae will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local laws.
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Public Works Director |
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[Signature of DLAE] |
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