§ 18-262. Identification of participating MBEs and WBEs.

(a)

At the time of bid opening or date of final project-specific proposal in the case of a competitive selection process, the bidder or proposer shall provide to the unified government an affidavit of intended utilization in a form prescribed by the coordinator stating its intent to meet the project goals or to submit evidence of good faith efforts to meet those goals.

(b)

Within two days of bid opening or date of final project-specific proposal in the case of a competitive selection process, the bidder or proposer shall provide to the unified government the following:

(1)

A notarized contractor utilization plan in a form prescribed by the coordinator. The contractor utilization plan shall list all MBEs and WBEs that are being utilized toward the satisfaction of the project goal, whether as a self-performing bidder or proposer or as joint venturers, subcontractors, or suppliers. The list shall specify:

a.

The name and contact name for each MBE or WBE;

b.

The dollar value and description of the commercially useful function to be performed by the MBE or WBE, consistent with subsections (e) and (f) of this section;

c.

The percentage of the value of the commercially useful function to be performed by the MBE or WBE, consistent with subsections (e) and (f), as compared to the total contract amount;

d.

The designation of each business enterprise as either an MBE or WBE; and

e.

An adequate statement from the bidder or proposer that the dollar amount of work to be performed by each MBE or WBE on the contract, other than that self-performed by the bidder or proposer, was furnished to the bidder or proposer and agreed upon before the bid opening or date of final project-specific proposal in the case of a competitive selection process.

(2)

An executed letter of intent for each MBE or WBE listed by the bidder or proposer, affirming that the contractor agrees to utilize the MBE or WBE on the project and describing the commercially useful function to be performed and the agreed upon dollar amount to be paid by the contractor; and

(3)

If the bidder or proposer has failed to meet the project goals, the statement of good faith efforts required by section 18-261.

(c)

Failure to provide the documentation required by subsections (a) and (b) in a timely manner will render the bid or proposal non-responsive.

(d)

Only that level of MBE or WBE utilization demonstrated in accordance with this section at the time of bid opening or date of final project-specific proposal in the case of a competitive selection process may be counted in satisfaction of the project goal, except as otherwise set out in sections 18-265 and 18-266.

(e)

All MBE or WBE contractors, joint venturers, subcontractors, or suppliers must actually perform a commercially useful function in the work of a contract within the areas for which they are certified, and must not function as a conduit. Consistent with industry practice, and as permitted by rules and regulations adopted by the coordinator, MBEs and WBEs may enter into subcontracts, including subcontracts with non-MBEs and non-WBEs. In no case, however, shall an MBE or WBE act as a conduit, nor shall the participation of an MBE or WBE count toward a project goal to the extent it fails to perform a commercially useful function.

(f)

Expenditures for materials, supplies, and equipment obtained from an MBE or WBE supplier shall count toward the appropriate project goal. Expenditures for materials, supplies, and equipment paid to MBEs and WBEs that are not suppliers may count toward an appropriate project goal only to the extent of fees or commissions charged for providing a bona fide service, such as professional, technical, consultant, or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for performance of the contract, provided that the fee or commission is determined by the coordinator to be reasonable and not excessive as compared with fees customarily allowed for similar services.

(g)

Any agreement between a bidder or proposer and an MBE or WBE in which the bidder or proposer requires that the MBE or WBE not provide quotations to other bidders or proposers is prohibited and shall render the bid or proposal non-responsive.

(h)

Bid shopping is prohibited and shall render the bid or proposal non-responsive.

(Ord. No. O-17-09, § 1(18-162), 2-19-2009)