260206_SBE_DBE_Provisions.pdf

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BUSINESS SERVICES DEPARTMENT

BUSINESS ENTERPRISE & COMPLIANCE PROGRAM (BECP)

FEMA SMALL BUSINESS PROGRAM PROVISIONS

As a recipient of Federal Emergency Management Funds (FEMA) funds; the City of Tucson and all Contractors must adhere to DBE requirements contained in 2 CFR Part 200.321. The City previously met those requirements through the USDOT 49 CFR Part 26 regulations, but some of those regulations are temporarily paused due to the USDOT Interim Final Rule (IFR) issued on October 3, 2025.

However, the City is still required to enforce compliance with regulations that were not paused such as prompt payment, review/approve/reject changes to subcontractors and the requirements listed in 2 CFR Part 200.321 which requires that Affirmative Steps (Good Faith Efforts) are taken by the Bidder to assure that small businesses are used where possible.

Since this project is funded with both federal and local funds, the City has determined it can meet the requirements of 2 CFR Part 200.321 using its SBE Program and the firms certified by the Small Business Administration (SBA).

As such, refer to the following provisions for further guidance on those requirements.

Submission Check List

In order to be in compliance with the DBE and SBE regulations, the Offeror must comply with the following: WITH YOUR SEALED BID, submit:

1. Each bidder/proposer MUST submit the Subcontractors List and Proposed SBE Plan listing all SBE subcontractors and all subcontractors with contracts valued at $5,000 or greater.

2. Each bidder/proposer MUST submit the 2 CFR Part 200.321 Affirmative Steps form.

PRIOR TO CONTRACT AWARD, submit to BECP at ContractorCompliance@tucsonaz.gov

1. Final Federal List of Subcontractors (w/ Federal Tax ID) for all subcontractors and all tier subcontractors. This list should include ALL subcontractors that will perform work during the duration of the project.

PRIOR TO NOTICE TO PROCEED (NTP),

1. Upload the subcontract for each subcontractor (including any tier subcontractors) and all https://tucsonaz.gob2g.com provisions to ensure the subcontractor abide by the contract requirements. Additional reporting requirements may include monthly and annual Equal Employment Opportunity compliance reports, as indicated in the contract.

260206: FEMA Regional Catastrophic Preparedness Grant Program: Community Resilience Hub Planning and Engagement Services

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DURING THE PERFORMANCE OF THE CONTRACT, BUT PRIOR TO FINAL PAYMENT

1. Report Subcontractor Payments: The prime contractor is required to report, by the 15th of each month, all payments made to the subcontractors system https://tucsonaz.gob2g.com ). In addition, all subcontractors must verify, by the end of each month, that they were paid the amount indicated and if they were paid promptly.

2. Subcontractor Modifications:

a. The prime contractor must complete and submit the Subcontractor Modification

Form for any modifications to the list. The form must be uploaded using subcontractor agreement. You may also email to BECP at ContratorCompliance@tucsonaz.gov for review and approval. All subcontractor modifications are at the sole description of the Procurement Director. Approval must be received prior to any subcontractor changes being made.

b. In addition, the prime contractor must submit a revised Federal List of Subcontractors form for review and approval.

3. Pay Estimates: BECP will review all pay estimates. If there are any issues regarding the DBE program requirements, BECP may delay payment processing.

PRIOR TO FINAL PAYMENT

1. The prime contractor is required to complete the Prime Contractor/Consultant Evaluation of Subcontractor/Subconsultant. This form must be completed when a subcontractor has completed their work on the project. The form must be emailed to ContractorCompliance@tucsonaz.gov.

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PROJECT GOAL

The City of Tucson is required to follow 2 CFR Part 200.321. The regulations do not require the City to assess a SBE goal for this project. However, the regulations do require the prime contractor/applicant to take affirmative steps to use SBEs as set forth in 2 CFR Part 200.321 Affirmative Steps.

In consideration of establishing SBE participation on this project, the trade areas must be identified as potential prime and subcontracting opportunities.

Trade Categories ID Trade Categories

SUBMISSION REQUIREMENTS

See section II. Bid Opening Procedures, A. Submission of the Subcontractors List and Proposed SBE Plan for instructions on submitting the MANDATORY forms, including 2 CFR Part 200.321 Good Faith Efforts.

I. SMALL BUSINESS ENTERPRISE REQUIREMENTS

A. DEFINITIONS

Bidder - A firm who submits a bid or quote on an individual project which conforms in all material respects to the requirements set forth in the solicitation, including compliance with any SBE participation requirements.

Certified Small Business Enterprise (SBE) A local small business that is an independent and continuing enterprise for profit, performing a Commercially Useful Function, that has completed the application process for certification, and has met the requirements set forth in Title 49, Code of Federal Regulations, (49 CFR Part 26).

Commercially Useful Function - Is defined as the performance of real and actual services in the discharge of any contractual endeavor. An SBE subcontractor is performing a commercially useful function when it is responsible for execution of a distinct element of a contract and carries out its responsibilities by actually performing, managing and supervising the work involved.

Contractor - The individual, partnership, or corporation who, as a result of the competitive solicitation process, is awarded a contract by the City.

Eligible Contract - Any construction, construction services or professional design services contract undertaken by the City, unless otherwise precluded by law, provided the estimate for construction meets or exceeds one hundred thousand dollars ($100,000). An Eligible Contract does not include any project in which the estimated contract value is below one hundred thousand dollars ($100,000); contracts which require a disadvantaged business enterprise goal pursuant to federal law; contracts awarded under sections 28-21 (sole source procurement), 28-22 (emergency procurement) or 28-23 (special procurement) of the Tucson Procurement Code.

None

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Joint Venture An association of two (2) or more persons, partnerships, corporations, business enterprises, or any combination of these entities established to form a single business enterprise but limited in scope and duration for the purpose of carrying out a business activity. The agreement establishing the Joint Venture shall be in writing. The SBE partner(s) must be responsible for a clearly defined portion of the work performed which is set forth in detail and separately from the work to be performed by the non-SBE partner and is assigned a commercially reasonable dollar value.

sharing real economic interest in the venture, include proportionate control over management, and interest in capital acquired by the Joint Venture and interest in earnings. Only the portion of work, supplies, and/or services attributed to the SBE, as a member of the Joint Venture, may be counted towards relevant SBE participation goals.

Small Business Enterprise (SBE) A Minority, woman or non-Minority Owned business that meets the North American Industry Classification System (NAIC) size standard adopted by the City for the purposes of qualifying for SBE certification.

Subcontractor and Subconsultant A person or entity that contracts to perform work or render service to a Contractor or to another Subcontractor as part of a contract with the City.

B. APPLICABILITY

The SBE program and policies are codified in Chapter 28, Article XIII of the Tucson Procurement Code. It is the responsibility of all contractors, subcontractors, vendors, suppliers and others who are interested in contracting with the City of Tucson to read and become familiar with this section of the City Code.

Only firms that are certified by the City of Tucson under Chapter 28, Article XIII of the Tucson Procurement Code, at the time of bid opening, are eligible to fulfill SBE participation for City of Tucson projects.

In addition to subcontractors, the Prime Contractor may use their own participation towards fulfillment of SBE participation if they are certified through the City of Tucson SBE program.

https://tucsonaz.gob2g.com . If the name of an SBE firm does not appear in the directory, it shall be the responsibility to ascertain the certification status of the SBE and determine the eligibility of the firm to meet SBE participation. For any questions regarding the SBE Program and requirements, please call (520) 837-4000 or email at ContractorCompliance@tucsonaz.gov for assistance.

C. SBE PARTICIPATION

An SBE may participate as a prime contractor, subcontractor, second-tier subcontractor, joint venture partner with either a prime contractor or a subcontractor, or as a vendor of materials or supplies. An SBE shall be responsible for a clearly defined portion of the work to be performed.

A certified SBE must perform a commercially useful function, i.e., must be responsible for a clearly defined portion of the work and must carry out its responsibility by actually performing, managing and supervising the work. Bidders may meet SBE participation through the following methods:

Prime Contractor Participation SBE prime contractors may use their own participation towards fulfillment of SBE participation.

Subcontractor Participation - The bidder may utilize one or more certified SBE subcontractors to satisfy its SBE participation commitment and may claim the value of the commercial useful function to be performed by such subcontractor(s) to obtain SBE credit.

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1. Bidders who utilize certified SBE firms whose participation are included in Force Account items, Allowances or in a Cost Reimbursement type contract, shall establish a signed contract value with the SBE firm and may only take credit for the dollar value of that contract towards satisfying its SBE commitment in their proposed SBE plan. The dollar value must be a specific amount based on anticipated work calculated by the subcontractor and is not reliant on any estimated values that may be listed in the bid schedule and cannot be specified as a range.

2. If a certified SBE subcontractor enters into second tier subcontracts consistent with the standard industry practices, such SBE subcontractor is performing a commercially useful function. If an SBE subcontractor subcontracts a significantly greater portion of its work to a non-SBE than would be expected by standard industry practices, it shall be presumed that the SBE is not performing a commercially useful function. Therefore, bidders are required to identify and report the use of any second tier subcontractors on the project.

3. Credit will be given when a SBE subcontracts part of the work of its contract to another firm only

Supplier Participation - The bidder may contract with one or more certified SBE suppliers, provided that the supplier is a regular dealer of the materials supplied, to obtain credit toward SBE goals. The value of the applicable SBE goals is as follows:

1. If an SBE supplier manufactures the goods supplied, one hundred percent (100%) of the contract amount is credited towards the applicable SBE participation goal.

2.

representative, the total contract amount is credited toward the established SBE goal; however, only twenty-five percent (25%) of the total SBE project goal may be met in this manner.

3. If an extraordinarily large proportion of a contract price is for equipment or supplies, a lower project goal may be set than otherwise would be required, or the twenty-five percent (25%) limit for suppliers may be increased, or a combination of these two methods may be utilized.

Joint Venture - Where a bidder engages in a joint venture to satisfy its SBE commitment, the SBE joint venture partner must be responsible for a clearly defined portion of the work to be performed in addition to satisfying the requirements of ownership and control. The SBE joint venture partner must submit information for determining joint venture eligibility. The SBE joint venture must be approved as a SBE joint venture prior to bid opening. The Department of Procurement, Business Enterprise & Compliance Program shall determine the degree of SBE participation resulting from the joint venture which may be credited toward the applicable SBE goal of the project.

II. BID OPENING PROCEDURES

A. SUBMISSION OF THE SUBCONTRACTORS LIST AND SBE PLAN

In accordance with the Tucson Procurement Code Sections 28-48(2) and 28-150(4), all bidders must submit Subcontractors List and the Proposed SBE Plan and 2 CFR Part 200.321 Affirmative Steps form with their bid. Bidders must list (1) all SBE subcontractors regardless of contract value and;

(2) all first tier subcontractors with a contract value at or above $5,000.

The Subcontractors List and Proposed SBE Plan must include:

1. SBE Firms

a. The name of the SBE firm

b. The trade/industry (scope of work) of the SBE subcontractors/suppliers

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c. The dollar value of subcontract

d. Include the prime contractor as an SBE, if applicable

i. The dollar value of the prime self-performed work if claiming SBE credit

e. The total dollar value of SBE work performed and percentage of contract value

f. If the contract goal is not met, evidence of good faith efforts.

2. First Tier Subcontractors with contract value at and above $5,000

a. The name of the Subcontractor

b. The trade/industry (scope of work) the subcontractor will perform on the project

B. REVIEW OF SBE PLANS

The Procurement Director may determine that the bidder is nonresponsive where the bidder: (1) failed to provide a completed Subcontractors List and a Statement of Proposed SBE Plan form; (2) failed to identify SBEs by name, the scope of work and value of work as a percent of the total bid(3) failed to achieve the dollar value of credible participation by certified SBEs; or (4) failed to meet the requirements for a waiver.

C. PRIME CONTRACTOR REPORTING OF SUBCONTRACTOR UTILIZATION

Prior to commencement of work, the Contractor is required to identify all subcontractors proposed to perform work on the project utilizing the City of Contract Compliance Reporting System. Prior to contract closeout, Prime Contractor shall provide subcontractors performance ratings in accordance with Paragraph IV. Miscellaneous Provisions; C. Contractor Performance Evaluation, below.

III. AFFIRMATIVE STEPS 2 CFR Part 200.321

A contractor must, in order to be responsive, take affirmative steps towards SBE participation. The contractor can meet this requirement in either of three ways. First, the contractor can document commitments for participation by SBE firms using the Subcontractors List & SBE Commitment Form.

Second, the contractor can document adequate affirmative steps using the 2 CFR Part 200.321 Good Faith Efforts form. This means that the contractor must show that it took all necessary and reasonable steps to achieve SBE participation. Third, if the contractor is self-performing 100% of the scope of work, then submit 2 CFR Part 200.321 Form answering item #6.

The contractor must provide documented evidence including a narrative statement with supporting affidavits and/or exhibits verifying the affirmative steps to meet SBE participation.

The following is a list of types of actions which the City will consider affirmative steps to obtain SBE participation.

It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in appropriate cases.

A. Soliciting through all reasonable and available means the interest of all certified SBEs who have the capability to perform the work of the contract. The contractor must solicit this interest within sufficient time to allow the SBEs to respond to the solicitation. The contractor must determine with certainty if the SBEs are interested by taking appropriate steps to follow up initial solicitations.

B. Selecting portions of the work to be performed by SBEs in order to increase the likelihood that SBE participation will be achieved. This includes, where appropriate, breaking out contract work items into economically feasible units to facilitate SBE participation, even when the prime contractor might otherwise prefer to perform these work items with its own forces.

C. Providing interested SBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicitation.

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D. (1) Negotiating in good faith with interested SBEs.

the work available to SBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available SBE subcontractors and suppliers, so as to facilitate SBE participation.

Evidence of such negotiation includes the names, addresses, and telephone numbers of SBEs that were considered; a description of the information provided regarding the plans and specifications for the work selected for subcontracting; and evidence as to why additional agreements could not be reached for SBEs to perform the work.

(2) A contractor using good business judgment would consider a number of factors in negotiating with subcontractors, including SBE subcontractors, and would take a price and capabilities as well as SBE participation into consideration. However, the fact that there may be some additional costs involved in finding and using SBEs is not itself sufficient reason for failure to meet SBE participation, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to perform the work of a contract with its own organization does not relieve them of the responsibility to make good faith efforts. Prime contractors are not, however, required to accept higher quotes from SBEs if the price difference is excessive or unreasonable.

E. Not rejecting SBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities. groups, organizations, or associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for rejection or non-participation.

F. Making efforts to assist interested SBEs in obtaining bonding, lines of credit, or insurance as required by the City of Tucson or contractor.

G. Making efforts to assist interested SBEs in obtaining necessary equipment, supplies, materials, or related assistance or services.

H. Effectively using the services of available minority/women community organizations; minority/women organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of SBEs.

I. Communicating with the Business Enterprise & Compliance Program seeking technical or professional assistance in identifying available SBEs and searching the B2GNow directory of certified SBE firms.

The Director of Procurement shall review the documentation submitted and approve where the contractor has demonstrated affirmative steps or deem them nonresponsive where they failed to take affirmative steps.

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IV. MISCELLANEOUS PROVISIONS

A. SUBCONTRACTOR PERFORMANCE & SUBSTITUTION REQUESTS:

The distinct contract items of work to be awarded to shall be performed by the designated SBE. The SBE must perform a commercially useful function, that is, the SBE must manage, perform, and supervise a distinct element of work.

All subcontractor modifications (addition, substitution, deletion) pursuant to the Tucson Procurement Code Section 28-48(2), may only be allowed at the sole discretion of the Procurement Director. Approval must be obtained prior to the subcontractor beginning the work.

In the event that an SBE is unable or unwilling to fulfill its agreement with the contractor, the contractor shall immediately notify the Procurement Business Enterprise & Compliance Program, the Contract Officer and the Project Manager. The SBE firm can only be terminated for good cause. The contractor shall immediately take reasonable good faith efforts to obtain another certified SBE firm to perform an equal or greater dollar value of the work. The contractor shall provide all pertinent information regarding the SBE substitution request including but not limited to:

1. The name of the original SBE firm, the description of work, the dollar value, the reason for the the work.;

2. The name of the proposed substitute description of proposed work and estimated dollar value of the work and any relevant information such as a written quote, etc.

SBE contract work items shall not be performed by the contractor in lieu of subcontracting, without obtaining prior approval as outlined above.

Contract items eliminated from the project, with the approval of the Project Manager, may not reduce the

B. SBE PROGRAM COMPLIANCE

The contractor and all SBE subcontractors must comply with all aspects of the SBE Program. By submitting a bid to the City of Tucson; bidders bind themselves to make every good faith effort to goal. The contractor must also include a copy of the SBE contract provisions in every subcontract. An executed subcontract with all SBE subcontractors shall be completed prior to commencement of work, and available to the City of Tucson.

Failure by the contractor to comply with the SBE provisions is a material breach of the contract which may result in remedies as deemed appropriate by the City, including but not limited to the following:

(1) Withholding monthly progress or final payments;

(2) Withholding 10% of future payments;

(3) Contract termination;

(4) Disqualifying the contractor from future bidding as non-responsible.

The contractor must comply with applicable Prompt Payment regulations, Tucson Code Section 11-38 and Arizona Revised Statutes Title 32-1183. The City of Tucson may withhold payment from the prime contractor for work performed by subcontractors unless and until the prime contractor ensures that the subcontractors are promptly paid for the work they have performed.

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The prime contractors must provide notice to all subcontractors that complaints of violations of the prompt payment provision may be submitted in writing to the City of Tucson, Procurement Operations, Business Enterprise & Compliance Program, 255 W. Alameda, 6th floor Tucson, Arizona 85701 PO Box 27210, Tucson, Arizona 85726. The complaint shall set forth the facts and identify the prime contractor and the project. Subcontractors will be assisted by the Department of Procurement, Business Enterprise & Compliance Program with the complaint process as detailed in the City of Tucson Ordinance No. 9158 comprised of Chapter 28, Tucson Procurement Code Section 28-101, Tucson Code Chapter 11-38 and Tucson Code, Chapter 8-2.2.

C. CONTRACTOR PERFORMANCE EVALUATION

At the conclusion of every City of Tucson project, the prime contractor is required to provide subcontractors performance ratings. Reporting will include a section to rate the performance of all project subcontractors from 1 5, based on industry standards. A score of 3 is considered average. A score of 4 or 5 is considered above average. A score of 1 or 2 is considered as poor performance. A rating of 1 or 2 of a subcontractor will require the prime contractor to complete a Substandard Performance Report documenting the cause for the substandard performance rating. The City of Tucson Project Manager must concur with all poor performance ratings.

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BUSINESS SERVICES DEPARTMENTBUSINESS ENTERPRISE &

COMPLIANCE PROGRAMSUBCONTRACTORS LIST AND STATEMENT OF

PROPOSED SBE PLAN

Solicitation/Contract No. Project Name:

Enter your SBE subcontractors for this project in the following table per submission requirements contained in the applicable Tucson Procurement Code Section 28-150(4), 28-150(5) or 28-151.1(3). Any addition, deletion or substitution to the listed SBE subcontractors post award requires approval from and is at the sole discretion of the Procurement Director.

ALL PROPOSED SBE FIRMS

(Print additional form to add more SBE firms)

Name Trade/Industry Dollar Value of Contract

Enter your committed subcontractors for this project in the following table per submission requirements contained in Tucson Procurement Code Section 28-48(2). Any addition, deletion or substitution to the listed subcontractors post award requires approval from and is at the discretion of the Procurement Director.

FIRST TIER SUBCONTRACTORS WITH CONTRACTS VALUED AT AND ABOVE $5,000

(Print additional form to add more subcontractors)

Name Trade/Industry Dollar Value of Contract

Base Bid Amount $

Total Claimed SBE $ %

I hereby certify by signing below that the foregoing SBE firms shall be contracted to work on the trades identified above and/or supply material and/or equipment for this project. The information shown above is a true reflection of the proposed subcontracts expressed as a percentage of the base bid.

Company Name:

Signature: Phone No.

Date: Name & Title:

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2 CFR Part 200.321 Form

(a) The non-Federal entity must take all necessary affirmative steps to assure that minority businesses, veteran-owned businesses, women's business enterprises, and labor surplus area firms are used when possible.

(b) Affirmative steps must include:

(1) Placing qualified small and minority businesses, veteran-owned businesses, and business enterprises on solicitation lists;

(2) Assuring that small and minority businesses, veteran-owned businesses, and business enterprises are solicited whenever they are potential sources;

(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, veteran-owned businesses, and business enterprises;

(4) Establishing delivery schedules, where the requirements permits, which encourage participation by small and minority businesses, veteran-

(5) Use the services and assistance of the SBE Program (https://tucsonaz.gob2g.com ), SBA (https://search.certifications.sba.gov/ ), and the Minority Business Development Agency of the Department of Commerce;

and

(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (b)(1) through (5) of this section.

Revised April 2025

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Business Enterprise and Compliance Program (BECP) Subcontractor Modification Form

The modification of any subcontractor after contract award requires prior approval by the Business Services Director

TYPE OF REQUEST ADDITION REMOVAL REPLACEMENT

INCREASE REDUCTION

ARE ANY SBE / DBE FIRMS AFFECTED? YES _ NO If yes, please explain:

Contract # Contract Name:

Prime Contractor: Contact Name:

Email: Phone:

CURRENT

SUBCONTRACTOR

(as stated in Prime Bid documents)

NEW PROPOSED

SUBCONTRACTOR

SUBCONTRACTOR

NAME

SUBCONTRACT

VALUE

CONTACT NAME

EMAIL

PHONE

ADDRESS

DUNS

SBE / DBE ? SBE / DBE

(circle one, if applicable)

SBE / DBE

(circle one, if applicable)

SIGNATURE By signing below, the Current Subcontractor indicates their understanding of, and agreement with, this modification and the explanation provided by the on this form:

Signature of Current Subcontractor (required)

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(Note: Prime Contractor must explain why the subcontractor that was identified in the Prime bid is now being modified. Reason must demonstrate that this modification does not violate City of Tucson Ordinance 9158 as well as Section 28-48(2), Section 28-150(6)(5), Section 28-151.4(1), and Section 28-151.4(2) of the Tucson Procurement Code. The City seeks to ensure that this request is not being made bid shopping

(attach supporting documentation as necessary)

Signature of Prime Contractor: Date:

*********************************************COT Use Only*********************************************

APPROVAL

BUSINESS ENTERPRISE: DATE:

BUSINESS SERVICES DIRECTOR: DATE:

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SUBCONTRACTORS

Contract #Project:

THE FOLLOWING LIST OF SUBCONTRACTORS SHALL BE

SUBMITTED BY THE AWARDEE AT, OR PRIOR TO, TIME OF CONTRACT EXECUTION. FAILURE TO PROVIDE THIS LIST

AS REQUESTED MAY DELAY CONTRACT EXECUTION.

The undersigned submits the following required list of subcontractors for this project. Federal Regulations requires that the Contractor and each subcontractor provide their and their Business Racial/Ethnic Classification, and the dollar value of each subcontract.

Enter the Ethnic Code with indicates the racial/ethnic character of the owner(s) and controller(s) of 51% of the business.

When 51% or more of the business is not owned or controlled by a single racial/ethnic category, enter the code that seems most appropriate. The Ethnic Code may be a combination of two- code number for example 2/3.

Select Racial/Ethnic Code:

1=White Americans 4=Hispanic Americans 2=Black Americans 5=Asian/Pacific Americans 3=Native Americans 6=Hasidic Jews

If 51% or more of business is Woman Owned, then mark Yes

Work Category Subcontractors Name AZ ROC # DollarValue of Contract

Eth Code

Woman Owned Business

Y N Y N Y N Y N Y N Y N Y N Y N Y N Y N Y N Y N Y N Y N Y N

Contractor: Y N Address: City: State: Zip:

Printed Name: Title:

Signature:

For COT Use Only Approved By:

Approved Date: