§ 18-257. Definitions.

For the purposes of this division, the following definitions shall apply, unless otherwise clearly required by the context:

Annual goal means the annual goal established by the board of commissioners under subsection 18-251(c).

Bid means a bid to perform a construction project made in response to an invitation for bid, as provided in section 29-153 of the procurement code.

Bid shopping means the practice in which a person divulges or requires another to divulge a subcontractor's bid or proposal for the purpose of securing a lower bid or proposal.

Broker means a business enterprise that performs a commercially useful function as an intermediary, for a fee, in the acquisition of materials, supplies, or equipment, regardless of whether or not it takes title to such materials, supplies, or equipment, for the unified government or its contractors or suppliers, but that is not a manufacturer, manufacturer's representative, or regular dealer. Only bona fide commissions earned by a broker for its activities in performing a commercially useful function on a unified government contract shall be counted toward the project goal.

Business enterprise or business means an individual, sole proprietorship, corporation, limited liability company, partnership, limited partnership, limited liability limited partnership, joint stock company, joint venture, professional association, or any other legal entity operated for profit that is properly licensed or registered, as applicable, owned and controlled by persons who are citizens or lawful permanent residents of the United States, and otherwise authorized to do business in the State of Kansas.

Commercially useful function means real and actual services that are a distinct and verificable element of the contracted work based upon private sector trade or industry standards. An MBE or WBE performs a commercially useful function when it is responsible for executing the ordinary and necessary work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To determine whether an MBE or WBE is performing a commercially useful function, all relevant factors will be evaluated, including the following:

a.

The amount of work subcontracted;

b.

Industry practices;

c.

Whether the amount the MBE or WBE is to be paid under the contract is commensurate with the work it is actually performing;

d.

Whether the MBE or WBE has the skill and expertise to perform the work for which it is being utilized;

e.

Whether the MBE or WBE is responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering, installing (where applicable), and paying for the material and supplies itself; and

f.

The credit claimed for its performance of the work.

Competitive selection process means the process of using competitive sealed proposals, as described section 29-154 of this Code.

Conduit means an MBE or WBE that knowingly agrees to pass the scope of work for which it is listed for participation and is scheduled to perform or supply on a contract to a non-MBE or non-WBE. In this type of relationship, the MBE or WBE has not performed a commercially useful function and the arranged agreement between the two parties is not consistent with standard industry practice. This arrangement does not meet the commercially useful function requirement, and, therefore, the MBE's or WBE's participation does not count toward the MBE or WBE goals on the contract.

Construction means the process of building, altering, repairing, improving, or demolishing any public structure or building or other public improvements of any kind to any public real property. It does not include routine operation, repair, or maintenance of existing structures, buildings, or real property.

Construction contract means any unified government construction contract whose value exceeds $250,000.00, except those that are exempted from a competitive bidding or selection process under the procurement code in chapter 29. This definition shall encompass design-build contracts, but does not include stand-alone contracts with the unified government for professional design and construction services or for construction-related supplies.

Contractor means a business enterprise that enters into a competitively bid or otherwise competitively selected contract with the unified government, in privity of contract with the unified government.

Coordinator means the coordinator of the office of supplier opportunity.

Day , unless otherwise indicated, means working day.

Design-build contract means a contract for the procurement of both the design and the construction of a structure, building, or other improvement in a single contract with a single design-build contractor or combination of such contractors that are capable of providing the necessary design and construction services.

Good faith efforts means substantive and meaningful good faith actions undertaken by a contractor to achieve the MBE or WBE project goals as defined in more detail in section 18-261 of this division.

Individual or person means a natural human being and not a legally-created or maintained entity.

Joint venture means an association of two or more business enterprises to constitute a single business enterprise to perform a unified government construction contract for which purpose they combine their property, capital, efforts, skills, and knowledge and in which endeavor each joint venturer is responsible for a distinct, clearly defined portion of the work of the contract, performs a commercially useful function, and shares in the capital contribution, control, management responsibilities, risks, and profits of the joint venture to an extent equal to its ownership interest. Joint ventures must have an agreement in writing specifying the terms and conditions of the relationship between the joint venturers and their relationship and responsibility to the contract.

Manufacturer means a business enterprise that operates or maintains a factory or establishment that produces, or substantially alters on the premises, the materials, supplies, or equipment provided to contractors, subcontractors, manufacturer's representatives, or suppliers on a contract, required under the contract and of the general character described by the contract specifications. The percentage of the value of the commercially useful function performed by a manufacturer on a unified government contract shall be counted toward the applicable project goal in the same manner as for a supplier.

Manufacturer's representative means a business enterprise that sells products for one or more manufacturers. The manufacturer's representative must possess any licenses or certifications required by the manufacturer to sell its products. A manufacturer's representative does not take legal title to or physical possession of the products that it sells, the products generally being sent directly from the manufacturer to the contractor or subcontractor purchasing the products. Only bona fide commissions earned by a manufacturer's representative in performing a commercially useful function on a contract shall be counted toward the project goal as set out in section 18-259.

Minority or minority individual means a person who is a citizen or lawful permanent resident of the United States and who is:

a.

African American, a person whose origins are in any of the black racial groups of Africa, and who has historically and consistently identified himself or herself as being such a person;

b.

Hispanic American or Latino American, a person whose origins are in Mexico, Central, or South America, or any of the Spanish-speaking islands of the Caribbean (for example, Cuba and Puerto Rico) regardless of race, and who has historically and consistently identified himself or herself as being such a person;

c.

Asian or Pacific Islander American, a person whose origins are in any of the original peoples of the Far East, Southeast Asia, the islands of the Pacific or the Northern Marianas, or the Indian Subcontinent, and who has historically and consistently identified himself or herself as being such a person; or

d.

Native-American, a person having origins in any of the original peoples of North America, and who maintains tribal affiliation or demonstrates at least one-quarter descent from such groups, and who has historically and consistently identified himself or herself as being such a person.

Minority business enterprise or MBE means a business enterprise that is owned and controlled by one or more minority individuals and that is certified as a minority business enterprise by one of the entities set forth in subsection 18-258(a)(1).

Packager means a business enterprise that performs a commercially useful function in the packaging of goods, but is not itself a regular dealer, manufacturer, or manufacturer's representative. A package shall be considered and treated as a broker.

Principal place of business means the location at which the business records of the business enterprise are maintained and the location at which the individual who manages the business enterprise's day-to-day operations spends the majority of his or her working hours.

Professional design and construction services means those areas of services ancillary to construction as encompassed within the unified government's contracting processes, including but not limited to architectural, engineering, real estate appraisal, land surveying, testing, and construction management services.

Proposal means a proposal to perform a construction project submitted in response to a request for proposals, as provided in section 29-154 of the procurement code.

Qualified means that a business enterprise has the financial ability, expertise, skill, experience, licensing and registration, and access to the necessary staff, facilities, and equipment to complete contracts or subcontracts that it may undertake on projects. The unified government makes no representations as to the qualification of any business enterprise.

Regular dealer means a business enterprise that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles, or equipment of the general character described by the contract specifications and required for the performance of the contract are bought and regularly sold or leased to the public in the usual course of business. To be a regular dealer, the business enterprise must be an established, regular business engaged in, as a substantial and material portion of its business, and in its own name, the purchase and sale or lease of the products in question. A regular dealer is presumed to keep such materials, supplies, articles, or equipment in stock, but must in any event bear the risk of loss of such items. A regular dealer in such bulk items as steel, cement, gravel, stone, asphalt, and petroleum products need not own, operate, or maintain a place of business if it both owns and operates distribution equipment for the products. Any supplementation of a regular dealer's distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. Brokers, conduits, packagers, manufacturers, and manufacturer's representatives shall not be regarded as regular dealers within the meaning of this term.

Subcontractor means a business enterprise that directly contacts with a contractor or subcontractor to perform work on a unified government contract.

Supplier means a business enterprise that directly contracts with a contractor or subcontractor to provide materials, supplies, or equipment on a unified government contract. A supplier may be a regular dealer, manufacturer, manufacturer's representative, or broker.

Unified government's marketplace means the geographic and procurement area in which the unified government contracts on an ongoing basis and includes Cass, Clay, Jackson, and Platte counties in Missouri and Johnson, Leavenworth, and Wyandotte counties in Kansas.

Woman business enterprise or WBE means a business enterprise that is owned and controlled by one or more women who are citizens or lawful permanent residents of the United States and that is certified as a woman business enterprise by one of the entities set forth in subsection 18-258(a)(1).

(Ord. No. O-17-09, § 1(18-157), 2-19-2009)