§ 18-261. Good faith efforts.

(a)

If the bidder or proposer has not fully met the project goal established under section 18-259, then it shall demonstrate that it has made good faith efforts to meet such goal. The bidder or proposer shall furnish to the coordinator, within two days after bid opening by the unified government or date of final project-specific proposal in the case of a competitive selection process, a detailed statement of its good faith efforts to meet the project goal. The statement shall address each of the items in subsection (b) and any additional criteria that the director may establish by rule or regulation consistent with the purposes of this division. Good faith efforts must be demonstrated to be meaningful and not merely for formalistic compliance with this division. The scope and intensity of the efforts will be considered in determining whether the bidder or proposer has achieved a good faith effort.

(b)

The statement of good faith efforts shall include a specific response and verification with respect to each of the following good faith effort categories, which may be further defined by rule or regulation. A bidder or proposer may include any additional information it believes to be relevant. Failure of a bidder or proposer to show good faith efforts as to any one of the following categories shall render its overall good faith effort showing insufficient and its bid or proposal non-responsive:

(1)

If pre-bid or pre-selection meetings are scheduled by the unified government at which MBEs and WBEs may be informed of joint venture, subcontracting, or supplier opportunities under a proposed contract to be bid or procured under a competitive selection process, attendance at such pre-bid or pre-selection meetings is not mandatory; however, bidders and proposers are responsible for the information provided at these meetings.

(2)

The bidder or proposer must solicit by all reasonable and available means, the interest of all MBEs and WBEs certified in the scopes of work of the contract. The bidder or proposer must solicit the interest of the MBEs and WBEs within sufficient time, before the bid opening or date of final project-specific proposal in the case of a competitive selection process, to allow the MBEs and WBEs to respond to the solicitation. The bidder or proposer must determine with certainty if the MBEs and WBEs are interested by demonstrating appropriate steps to follow up initial solicitations.

(3)

The bidder or proposer must select portions of the work of the contract to be performed by MBEs and WBEs to increase the likelihood that the project goal will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate MBE and WBE participation as joint venturers or subcontractors, and for bidder or proposer self-performed work, as suppliers, all reasonably consistent with industry practice, even when the bidder or proposer would otherwise prefer to perform these work items with its own forces. The bidder or proposer must identify what portions of the contract will be self-performed and what portions of the contract will be opened to solicitation of bids, proposals, and quotes from MBE and WBEs. All portions of the contract not self-performed must be solicited for MBE and WBE participation. The ability or desire of a bidder or proposer to perform the work of a contract with its own forces does not relieve the bidder or proposer of the responsibility to meet the project goal or demonstrate good faith efforts to do so.

(4)

The bidder or proposer, consistent with industry practice, must provide MBEs and WBEs at a clearly stated location with timely, adequate access to and information about the plans, specifications, and requirements of the contract, including bonding and insurance requirements, if any, to assist them in responding to the solicitation.

(5)

The bidder or proposer must negotiate in good faith with interested MBEs and WBEs and provide written documentation of negotiation with each MBE or WBE.

(6)

For each MBE or WBE that contacted the bidder or proposer or that the bidder or proposer contacted, consistent with industry practice, the bidder or proposer must supply a statement giving the reasons why the bidder or proposer and the MBE or WBE did not succeed in negotiating a joint venture, subcontracting, or supplier agreement, as applicable.

(7)

The bidder or proposer must provide verification that it rejected each non-utilized MBE and WBE because the MBE or WBE did not submit the lowest bid or was not qualified. Such verification shall include a verified statement of the amounts of all bids received from potential or utilized joint venturers, subcontractors, and suppliers on the contract, whether or not they are MBEs or WBEs. In determining whether an MBE or WBE is qualified, the bidder or proposer shall be guided by the definition of qualified in subsection 18-257(26). Evidence of lack of qualification must be based on factors other than solely the amount of the MBE's or WBE's bid. For each MBE or WBE found not to be qualified by the bidder or proposer, the verification shall include a statement giving the bidder's or proposer's reasons for its conclusion. A bidder's or proposer's industry standing or group memberships may not be the cause of rejection of an MBE or WBE. A bidder or proposer may not reject an MBE or WBE as being unqualified without sound reasons based on a reasonably thorough investigation and assessment of the MBE's or WBE's capabilities and expertise.

(c)

In determining whether a bidder or proposer has satisfied good faith efforts as to a project goal, the success or failure of other bidders or proposers on the contract in meeting the project goal may be considered.

(Ord. No. O-17-09, § 1(18-161), 2-19-2009)