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HomeMy WebLinkAbout1981-25 Adopting the Minority Business Enterprise Program for the Town of VailRESOLUTION #25 Series of 1981) A RESOLUTION OF THE TOWN COUNCIL ADOPTING A MINORITY BUSINESS ENTER- PRISE PROGRAM FOR THE TOWN OF VAIL, COLORADO. WHEREAS, the Town is, and from time to time may be, an applicant for financial assistance under various programs administered by the, U.S. Department of Transportation {"W,S.D.O.T,"}; and WHEREAS, certain federal laws, including particularly, the Civil Rights Act of 1964, as amended, forbid discrimination in the provision of benefits, services and participation in federally assisted programs; and other laws, including particularly, the Urban Mass Transportation Act of 1964, as amended, require federal agencies to affirmatively ensure that such discrimination does not occur; and WHEREAS, the U.S,O.O.T. has issued regulations (49 CFR 23) imple- menting these laws which require agencies receiving certain amounts and forms of financial assistance to consider, adopt, implement, and enforce local Minority Business Enterprise Programs to provide for affirmative action ensuring the elimination of discrimination in the award of contracts pertaining to applicable federally assisted projects; NObd, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. That it is the policy of the Town of Vail to prohibit discrimination on the basis of race, color, sex, creed, religion, ancestry, or national origin, in connection with the award of, and performance under, any contract with any person or firm for the procurement of goods or services for the Town of Vail, its various departments, or agencies; and Section 2. That the Town of Vail hereby adapt a Minority Business Enterprise Program to affirmatively ensure and encourage the participation of minority business enterprises in contracts for goods and services awarded through any project meeting the criteria established in the Program Plan and that toward these ends, the Town hereby adopts the percentage goals contained in the Program Plan for the participation of MBE's in such contracts, and shall follow the procedures prescribed therein to assure the achievement of these goals; and The Minority Business Enterprise Program shall remain in effect until the successful completion of all projects meeting the criteria established in the Program Plan; and Section 3. That the Town Manager, or his designated subordinates, is hereby authorized to take such actions which are necessary or advis- able to implement and enforce the Program, its goals, objectives, and procedures; and the Town Manager is further authorized to make such amendments to the Program Plan, as presented the day of adoption of this Resolution, which may, from time to time, be necessary or advis- able to ensure the successful and efficient achievement of the goals and objectives hereby adopted and established, provided such amendme~~ts are consistent with federal law and lawfully promulgated agency regula- tions and orders of courts issued thereunder. INTRODUCED, READ, APPROVE[? AND ADOPT F.i) THIS 15th day o- September 198I. w..., fr~/~ Mayo r i` ATT T Town Clerk y l PgO~~~ ~~ TEgPg~~g PR~~g~ , Y~Qp.I.T`I BUS~~gsS E~ Td A~GUS~j 19$~- i~ A. ovrRVx~r i'he purpose of this document is to provide for the establishment and successful execution of a Minority Business Enterprise ("MBE") program for the Town of Vail, Colorado. This pr.ograrc~ will only be used in con-- junction with certain Town projects funded in whole or in part by the U.S. Department of Transportation. Since Vail is an extremely small 3.980 estimated population about 4,000) rural community, the antici- pated number .of such projects is extremely limited. In fact, the only project in the history of the community, or within its forseeable future; which requires a specific MBE program is the proposed construction of a Bus Storage Building Addition under Section 3 of the Urban Mass. Transportation Act of 19G4, as amended. Therefore, while the Town' AZBE program will be written to permit its application to other projects, the program has been designed specifically with the Bus Storage Building Addition in mind. xri the past, the Town has had successful experience with nontraditional construction and bidding techniques. Tlae Town has found, for .example, that under some circumstances, use of the "construction management"=~~' approach has produced a project of superior quality in less time and': at a lower cost than the traditional process involving the award of -: a single bad to a general contractor. Similarly, with regard to tools, eguipment and furnishings, the Town has found that, under some circum- stances, a bidding process which permits multiple awards on an item- by-item basis produces superior quality at less cost than a single contract far all items in the bid. Until design of the Bus Storage Building Addition is t~nc~~rway, it will not be possible to determine . w: at t.~chriquPS of t~idding/construc~ti~,:~ are the most appropriate for this t.,.v jec:t. ~3~herefore, the MBE plan presented here has been drafted to permit adoption to whatever technique the Town may subsequently choose to employ. As a result, the plan encompasses overall goals only; con- tract goals wi11 not be determined until the structure of contracting for the project has been established. B. DEFYNITxONS The definition used herein shall be the same as those adopted by the U.S. Department of Transportation in its MBE Program Regulations. 49 CFR 23.5, entitled "Participation by Minority Business Enterprises in Department of Transportation Programs; Definitions," as amended or may be amended, is hereby incorporated as part of the Town's MBE pro- gram by reference. C. POLICY It is the policy of the Town of Vaal to prohibit discrimination on the basis of race, color, sex, creed, religion, ancestry, or national origin, in connection with the award of, and performance under, any contract with any person or firm for the procurement of goods or services for the Town of Vail, its various departments, or agencies. It is further the policy of the Town of Vail. with regard to any project meeting the criteria established in this MBE Plan, to affirmatively ensure and encourage the participation of minority business enterprises iii contracts far goods and services awarded through the project. i~ Toward these ends, the '.Gown has adopted the percentage goals con- tained herein for the participation of MBE's in such contracts, and shall follow the procedures prescribed herein to assure the achieve- ment of these goals. This policy and the implernentation plan provided herein shall remain in effect until the successful completion of all projects meeting the criteria established in this plan. D. PROJECT CRITERIA The Minority Business Enterprise Program shall apply to all Town spon- sored projects meeting one of the following criteria established below; 1} Involving grant funds in excess of $250,000, exclusive of transit vehicle purchases, under Section 3,5 and 17 of the Urban Mass Transportation Act of 1964, as amended, and Federal Aid Urban Systems; 2) Involving grant funds in excess of $100,000 under Section r. 6 and 8 of the Urban Mass Transportation Act of 1964, as amended, 3} involving grant funds under Section 402 of the National Highway Traffic Safety Act; ~- 4) Snvo).ving funds in excess of $250,000 awarded by the Feder~+~ Aviation Administration to general aviation airports; 5) involving funds iii ex cess of $400,000 awarded by the Fed- eral Aviation Administration to non~hub airports; 6) involving funds in excess of $75,000 awarded by the Federal Aviation Administration for planning purposes; and Involving a license under the Deepwater Part Act of 1964. E. LIAISON OFFICER The Director of the Department of Public Works and Transportation is hereby designated as the MBE Liaison Officer far the Town of Vail. This staff person reports directly to the Town Manager who is the Chief Executive Officer of the Town. The Liaison Officer shall be responsible for developing, managing, and implementing the MBE program on a day-to-day basis; for carrying aut technical assistance activities for MBEs; and for disseminating informat~.on on available business opportunities so that MBEs are provided ayl equitab7.e opportunity to bid on the Town's contracts. F. PROCEDURES General. Each solicitation to bid or contract subject to MBE goals under this plan shall incorporate the entire terms of this plan, its attachments, and reference provisions, by reference. Invitations to bid, requet~ts far proposals, specifications, delivery schedules, and prebid conferences shall bG arranged to facilitate the participation of MBEs ~~. The 7~'ot~rn shall. arrange assistance to MBE's where appro- priate, iaz overcoming barriers to participation such as inability to obtain bonding, financing, or techinical assistance. The Town shall assist all potential. and successful bidders/proposers, and subcontrac- tors thereunder, in thea.r development, submission, and implementation of programs to mast the requirements of the Tovrn's MBE plan. Informa- tion pertaining to contracting opportunities and procedures shall be directed to MBEs in a timely and appropriate fashion which encourages their participation. Contractors shall be encouraged to use the ser- vices of banks owned and controlled by minorities or women, (Nate: There are no such local banks; consequently, the Town shall make no use of such banks.) . Solicitations and Bids. The Town shall state, in all solicitations for contracts under projects covered by this plan, where an MBE goal is other than zero, the goals for use of MBE minority and MBE female firms. Bidders/propasers shall be prohibited from entering into an agreement with any MBE which prevents the MBE's participation in other bids/proposals. Contract Award. Any contract under projects covered by this plan, which is not set aside for exclusive MBE competition, where an MBE goal is other than zero, shall. only be awarded to a bidder/praposer who has met the M23E goal or expended sufficient reasonable efforts toward meeting the MBE goal. The apparently successful bidder/proposer shall be required to provide the following information for the Town's use in determining whether the bidder/px'opcser has met the goal: {1) the names and`addresses of MBE participants in the bid/proposal, {2) a description of the work each is to perform, and {3} the dollar value of such work. In instances where the goal has not been met, the Town shall require additional information, outlined below, to determine whether the bidder/proposer has made good faith efforts toward meeting the goal. Good Faith Efforts. xn instances where the apparently successful bidder/ praposer has not met the slated MBE goals, the following factors will b~ considered by the Town in determining whether the bidder/proposer has made adequate good faith efforts toward meeting the goal: 1} Whether the contractor attended any prebid meetings that were scheduled by the Town to inform MBEs of subcontracting opportunities; 2) Whether the contractor advertised in general circulation, trade association, and minority-focus media concerning the subcontracting opportunities; 3) Whether the contractor provided written notice to a reason- able number of specific MBEs that their interest in the contract is being solicited; 4} Whether the contractor followed up initial. solicitations of interest by contacting r1~3~:s to determine with-certainty whether the MBEs were interested; 5) Whether the contractor selected portions of the work to be performed by MBEs in order to increase the likelihood of mc:cting the MBE goals; 6} Whether the contractor provided interested MBEs with adequate information about the plans; specifications, and requirements of the contract; 7} Whether the contractor negotiated in good faith with interested MBEs, not rejecting idBEs as unqualified without sound reasons based on a thorough investigation of their capabilities; and 8) Whether the contractor made efforts to assist interested MBEs in obtaining bonding or insurance required by the rew cipient ar contractor. Determination of Goal Achievement. Prior to the award of any con- tract to a firm claiming to be an MBE or to have achieved MBE goals through subcontracts with an MBE(s), and prior to the certif ication of MBE eligibility, the Town shall determine whether the firm has proposed MBE participation in a manner which in fact meets the MBE goals. This determination shall be conducted in conformance with the procedure established by the U.S. Department of Transportation in its MBE Program Regulations. a4 CFR 23.7, entitled "Participation by Minority Business Enterprises in Department at Transportation Programs; Counting MBE Participation Toward Meeting MBE Goals, as amended, or may be amended, is hereby incorporated as part of the Town's MBE program by reference. Certification. Prior to the award~of any contract to a firm claiming to be an MBE or to have achieved MBE goals through subcontracts with an MBE (s}, the Town shall certify the eligibility of all MBEs encom- passed by the contract. The bidder/proposer or contractor, as appro- priate, sha11 inform the Town of any proposed substitutions of MBE contractors until such substitute subcontractors have been certified eligible by the Town Certification shall be conducted in conformance with the procedures established by the U.S. Department of Transporta- tion in its MBE Program Regulations. 49 CFR 23.51. - 23.53, entitled Participation by Minority Business Enterprises in Department of Trans- portation Programs; Certification of the Eligibility of Minority Business Enterprises; Eligibility Stan.dards," as amended or may be amended, is hereby incorporated as part of the Town s MBE program by reference. Post Award Enforcement. To ensure a~Z obligations under contracts awarded to MBES~, or to firms pxo~:osing to meet MBE goals through the use of MBEs , are met, the Town shall review each contractors' MBE involvement efforts d~~ring the term of the contract. Contractors s}gall be rcc~uired to briny to the attention of the Tawn any situation in which regularly scheduled progress payments are not made to MBE subconl:ractor.s. The Town may issue: stop work orders, withhold pay- ments due, oz' terminate contracts, at ~.ts discretion, upon a finding that any firm is not n~aeting its MBE related commitments; specific enabling provisions outlining the procedures for use of these enforce- ment powers shall be incorporated into each contract subject to MBE goals. G . D 11tECT0 RX The Town hereby adopts and incorporates by reference the current edition of the Colorado Minority Business Enterprise Directory, as it may be revised and updated, published by the Colorado Office of Minority Business Enterprise, as the official directory of the Town for use in the conduct of its MBE program. The Tawn will make this directory available to bidders/proposers in their efforts to meet MBE requirements. The Town will use this directory in its determina- tions of appropriate goals for various types of MBE contracts: The Tom will use this directory in its solicitation of bidders/proposers for contracts subject to MBE goals. H. ~~ GOAD The overall percentage goals for the dollar value of work to be awarded to MBEs shall be as provided in Attachment 1, "Goals". These overall goals shall be applicable to the entire Tawn MBE program and the only project anticipated to fall within the scope of this program, the construction of the Bus Storage Building Addition. These goals shall be reviewed annually in comparison with actual MBE participation rates for the year and updated accordingly. Overall goals have been and shall be based upon a consideration of the percentage of minority population within Eagle County and the numbers and types of contracts to be awarded by the Town, under projects subject to this MBE program, and the numbers and types of MBEs likely to be available to compete far these contracts. For purposes of making these determinations, the Town has used a 1~0 mile driving radius of the Town of Vail as the area of Colorado appropriate for considering firms "available to compete." This encompasses the Denver metropolitan area and other Front Range communities. The initial goals are not based upon the Town's past MBE experience, as the Town has no past experience administering MBE programs. Prior to the solicitation of bids on .any contract under a project covered by this plan, contr~.c~~-specific goals shall be established by the Town Manager .for alb contracts and, where appropriate, sub- 3 contracts anticil-~atcd for the project. The Tawn Manager may amend contract-specific goals while a project is underway to adjust to change-11g circurnstancas or new information which may warrant such rrfondments. Contract-specific goals shall be based upon a consid- eration of the overall goals, the contracting/construction methods to be employed on the project, and tl~e number, type, and quality of MBEs likely to be available to compete far these contracts. r.r I. SET-ASIDES Where the Town Manager deems it appropriate, a specific contract, subcontract, ox part thereof, may be set aside exclus~ve~y fo.r an MBE firrtt or firms_ Where set-asides are used, the.Town Manager shall initially establish them in conjunction with the setting of all con-- tract-specific goals for the project. ~'he Town Manager may amend any set-aside from time to time while the project is in process to adjust to changing circumstances or new information which may warrant such amendments. Where Town purchasing policies require such contracts or Subcontracts to be bid, a set--aside shah. only be used if the Town determines that three or more MBEs are eligible to compete for the contract. Where it has been determined that three ar more MBEs are eligible to compete, a contract award shall net be prohibited because three or more MBEs were not found to be responsive to the bid.soli- citation. J. MONITORING, RECORDS, AND REPORTS The Liaison Officer shall be responsible for ongoing monitoring of the performance under the MBE plan. The Town shall maintain such records as are necessary to determine performance, meet the requirements of this plan and the U.S. Department of Transportation MBE Program Regu- lations, and document that such requirements have been met. These reports shall include special efforts to solicit MBE bids/proposals; determination of apparently successful bidders; MBE eligibility certification; determinata_on of apparently successful bidder goal achievement; comparison of Town MBE performance with MBE goals; and any other such records or reports which may be required by the U.S. bepartment of Transportation, the Urban Mass Transportation Admin- istration, or other applicable Departmental element. All such reports shall distinguish M~iE goals, activities and achievements between those applicable to minorities and those applicable to women. Contractors and subcontractors subject to MBE goals shall be required to keep such records and submit such reports as are required to meet the intent of this paragraph. All records and reports shall be retained for a period of three years. subsequent to project termination or completion. K. APPEALS AND COMPLAINTS Any firm or person believing she/he/it has been wrongfully denied certification as an MBE or joint venture, or believe she/he/it or another person or firm, or class of persons or firms, has been sub- ject to a violation of this plan ar the U.S. Department of Transpor- tation MBE Program Regulations, may file an appeal or complaint, as appropriate, in writing with the U.S. Department of Transportation. A full copy of such complaint or appeal, and all attachments thereto, shall. be submitted to the Town Liaison Officer. Procedures for filing such appeals or complaints are provided in the U.S. Department of Transportation MBE Program Regulations. 49 CFR 23.55 and 23.73, entitled, "Participation by Minority Business Enterprise in Department of Transportation Programs; Appeals of Denials of Certification as an MSE; Complaints", as amended or may be amended, are hereby incarpor- atec~ as part of the Town's MBE program by reference. Attachment 1 . Goals MINORITY BUSINESS ENTERPRISE PROGRAM Town of Vail, Colorado The overall goals for i~tI3E participation i.n projects covered by the MBE Plan shall be as follows: Minority Women Total MB3~s MBEs-. MBEs; Percent of dollar value of contracts awarded for can- struction, equipment, material, su~aplies, furnishings, or sexvices l~ '~~ 1~~ 1: ---r