7-BPS Policy 5414.pdf

2019 5414

Non-Instructional/Business Operations

B/

SUBJECT: MINORITY AND/OR WOMEN OWNED BUSINESS ENTERPRISE

Purpose of Policy

It is the policy of the Buffalo City School District (the "BCSD') to ensure maximum feasible participation of certified minority-and women-owned business enterprises ("MWBE's"), i.e., independent business concerns which are at least 51 percent owned and controlled by minority group members (citizens of the United States or permanent resident aliens who are Black, Hispanic, Asian, or Native American), and women-owned business enterprises (citizens of the Unites States or permanent resident aliens in which 51 percent of the business is owned and controlled by a woman) in projects that receive District support.

The BCSD will promote equality of economic opportunities for MWBEs and to eliminate barriers to their participation when contracting with BCSD. The BCSD will ensure that MWBEs are given the opportunity to demonstrate their ability to provide the District with commodities and services at competitive prices.

The District shall take measures to enhance the ability of MWBE's to compete for contracts and to ensure their meaningful participation in the procurement process. Such measures shall include but are not limited to:

a) Wherever feasible, participate in and implement outreach initiatives, such as, conferences, contractor fairs and other forums held to enhance the ability of minority and women-owned business enterprises to compete for BCSD contracts.

b) Make all reasonable efforts to include MWBE's in bidder lists.

Definitions

a) Business enterprise: Any entity, including a sole proprietorship, partnership, limited liability partnership, limited liability company or corporation, including not-for-profit corporations, which is authorized to and engages in lawful business transactions in accordance with New York law.

b) Certified enterprise or certified business: A business enterprise which has been certified by the Erie County/City of Buffalo Joint MBE/WBE Certification Committee or a business enterprise certified by New York MWBE Certification.

c) District: Buffalo City School District including its Board of Education.

d) Joint Venture: A contractual agreement joining together two or more business enterprises, one of which is a certified minority- or woman-owned business enterprise, for the purpose of performing on a District contract. The certified minority- or woman-owned business enterprise must provide a percentage of value added services representing an equitable interest in the joint venture. All parties agree to share in the profits and losses of the business endeavor according to their percentage of equitable interest.

(Continued)

B/

SUBJECT: MINORITY AND/OR WOMEN OWNED BUSINESS ENTERPRISE (Cont'd.)

e) Minority Group Member: A United States citizen or permanent resident alien who is and can demonstrate membership in one of the following groups:

1. Black persons having origins in any of the African racial groups;

2. Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central American or South American descent of either Native American or Latin American origin, regardless of race;

3. Native American or Alaskan native persons having origins in any of the original peoples of North America; or

4. Asian and Pacific Islander persons having origins in any of the Far East countries, South East Asia, the Indian Subcontinent or the Pacific Islands.

f) Minority-owned business enterprise: A business enterprise that is:

1. At least 51 percent owned by one or more United States citizens or permanent resident aliens who are minority group members;

2. An enterprise in which such minority ownership is real, substantial and continuing;

3. An enterprise in which such minority ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the business enterprise; and

4. An enterprise authorized to do business in this State and is independently owned and operated.

g) Women-owned business enterprise: A business enterprise that is:

1. At least 51 percent owned by one or more United States citizens or permanent resident aliens who are women;

2. An enterprise in which the ownership interest of such women is real, substantial and continuing;

3. An enterprise in which such women ownership has and exercises the authority to control and operate, independently, the day-to-day business decisions of the enterprise;

4. An enterprise authorized to do business in this State and which is independently owned and operated;

B/

SUBJECT: MINORITY AND/OR WOMEN OWNED BUSINESS ENTERPRISE (Cont'd.)

h) Contractor: An individual, a business enterprise, including a sole proprietorship, a Partnership, a limited liability corporation or corporation, or any other to a BCSD contract, or a bidder in conjunction with the award of a BCSD contract.

i) Utilization Plan: Shall mean a plan prepared by a contractor and submitted in connection with a proposed BCSD contract. The utilization plan shall identify any subcontractors and/or certified minority- and/or women-owned business enterprises, if known, who have committed to perform work in connection with the proposed BCSD contract, including any components of the contract scope of work in which the MWBE and subcontractors will perform. The utilization plan shall specifically contact a list, including the name, a contact person, address and phone number of each certified enterprise which the contractor intends to subcontract.

j) Equal Employment Opportunities (EEO): Shall mean the conscientious and active efforts by a contractor to afford opportunities to minority group members and women without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.

k) Subcontract: A contract in which a portion of the contractor's obligation under the BCSD contract is undertaken or assumed by a business enterprise not controlled by the prime contractor.

Application

This policy applies to every Board member and employee of the District, and it shall take effect immediately.

Consideration of Other Laws and Regulations

The Board affirms its commitment to adhere to all applicable provisions of law. This policy does not supersede the requirements of any applicable law, regulation, or order.

MWBE Participation Goal

The MWBE participation goal is 25% of the total dollar amount of this contract as awarded. Only MWBE firms that are certified by the Erie County/City of Buffalo Joint MBE/WBE Certification Committee or New York State MWBE Certification can be used to fulfill this goal.

The contract dollar value thresholds for purchases of commodities/services greater than $25,000, and construction and construction-related contracts greater than $100,000. Contracts that meet or exceed the minimum thresholds must be assessed for MWBE goals.

B/

SUBJECT: MINORITY AND/OR WOMEN OWNED BUSINESS ENTERPRISE (Cont'd.)

The Goal Setting Methodology

MWBE goals are defined as the percentage of aggregate District expenditures targeted for the participation of certified MWBEs sought to be included in BCSD procurement opportunities as prime contractors, subcontractors, suppliers, consultants, joint ventures or similar arrangements. Goals may be expressed as contract goals.

When calculating contract-specific goals the MWBE designee shall:

a) Determine whether goals are feasible in the participation of certified MWBEs in the procurement or contract opportunity.

b) Conduct a vendor and spend analysis to determine whether there are NYS and Joint Commission certified MWBEs that are available to participate in the contract.

c) Determine whether, based upon commodity codes relevant to procurement, there are NYS and Joint Commission certified MWBEs that have indicated their availability.

d) Prepare a list of potential MWBEs who have indicated an interest in the procurement or contract.

Factors to Consider when Establishing Contract Goals

a) MWBE designee shall establish goals for participation of certified MWBEs on all BCSD contracts, where applicable.

b) MWBE designee must consider the following factors:

1. The contract and subcontract scope of work;

2. The number and type of certified MWBEs available to perform the BCSD contract work;

3. The total dollar value of the work required by the BCSD contract, in relation to the dollar value of subcontracts of the contract scope of work; and

4. The potential subcontract opportunities available in a contract and the availability of certified MWBEs to respond to the potential subcontract opportunities.

Designation of Responsibility

The Superintendent shall appoint an employee within the District's Purchase Department as a MWBE designee who shall be responsible for the District's compliance with the MWBE program and the monitoring for compliance on contracts.

B/

SUBJECT: MINORITY AND/OR WOMEN OWNED BUSINESS ENTERPRISE (Cont'd.)

Good Faith Efforts, Requests for Modification or Waiver of a Contract's MWBE Participation Goal

The District shall not grant automatic waivers of goal requirements on a District contract but may grant a partial or total waiver of the goal requirement upon the submission of a waiver form to the District's Purchase Department designee by a contractor to document the contractor's good faith efforts.

The Procurement Department designee will then evaluate the good faith efforts once the waiver form is received by a contractor.

a) Contractors must document their good faith efforts toward utilizing certified minority and women owned business enterprises, including but not limited to those certified MWBEs identified within a utilization plan. A contractor must make the following documented efforts:

1. Must provide copies of solicitations of certified minority and women owned business enterprises appearing in the NYS directory or the Joint Commission which were solicited to provide bids and any responses thereto;

2. Must document if the contractor did not receive solicitations from certified MWBEs and if solicitations were received, the contractor must provide the specific reasons that such enterprise was not selected;

3. Must provide documentation to show that it advertised or published an advertisement in an appropriate general circulation, trade and minority or women-orientated publications;

4. Must show the specific steps taken to reasonably structure the contract scope of work for the purpose of subcontracting with, or obtaining supplies from, certified MWBEs;

5. Selecting portions of the work to be performed by MWBEs in order to increase the likelihood the goal will be achieved;

6. Must show any documentation of any negotiations between the contractor and/or certified MWBEs for the purpose of establishing the goal requirement; and

7. Any other information determined to be relevant by the District or the contractor.

Annual Report

On the first Board meeting in November of each year, the CFO shall issue a report to the Board detailing the total amount of funds awarded to MWBE certified contractors in the prior fiscal year, broken down by contract type for participation of certified MWBEs and equal employment opportunity (EEO) participation on all BCSD contracts. The annual report shall also include information on any partial or total waivers provided to contractors.

Adopted: 8/16/17