ACDBE-N_RCS_Clause_-_Pre-Award.pdf

04_26-IFR AVN RCS

City of Phoenix

EQUAL OPPORTUNITY DEPARTMENT

Airport Concession Disadvantaged Business Enterprise - Neutral (ACDBE-N) Concession Revenue Contract Solicitation (RCS) Clause

Pre-Award

The City of Phoenix has shown a historical commitment to advancing the economic growth of small businesses through its small business programs.

The City of Phoenix’s Airport Concession Disadvantaged Business Enterprise - Neutral (ACDBE-N) is managed and administered by the City’s Equal Opportunity Department (EOD). Through a coordinated effort among EOD and the City of Phoenix Aviation Department, the ACDBE-N Program provides certification and opportunities in concessions at the city’s three airports.

SECTION I. DEFINITIONS

Agency means the City of Phoenix Aviation Department for the purpose of this Contract.

Airport Disadvantaged Business Enterprise (ACDBE) means a for-profit business that has successfully completed the ACDBE certification process and has been granted ACDBE status by a Unified Certification Program (UCP) member pursuant to the criteria contained in 49 Code of Federal Regulations (C.F.R.) Part 23 and 49 Code of Federal Regulation (C.F.R.) Part 26.81 and whose certification is in force at the time of the award of business by the Agency. A directory of certified ACDBE firms is located at https://utracs.azdot.gov/Search.

ACDBE-Neutral Measures means a measure or program that is or can be used to assist all Small Businesses

Arizona Unified Certification Program (AZUCP) means a consortium of government agencies organized to provide reciprocal DBE- N certification within Arizona pursuant to 49 Code of Federal Regulations (CFR) Part 26. The official DBE-N database containing eligible DBE-N firms certified by AZUCP can be accessed at: https://utracs.azdot.gov.

Arizona’s Unified Transportation Registration and Certification System (AZ UTRACS) is a comprehensive internet-based business directory containing certified ACDBEs, DBEs and SBCs. The directory includes detailed firm profiles that includes capabilities and geographic locations that can be accessed at: https://utracs.azdot.gov/Search.

City means the City of Phoenix for purposes of this Contract.

City of Phoenix Certification and Compliance System means the web-based certification and compliance system used to track and monitor Small Business Participation. The system can be accessed at: phoenix.gob2g.com.

Commercially Useful Function (CUF) as defined in 49 C.F.R. Parts 23 and 26, relates to independent performance of contractual work by an ACDBE or goods and services provider. If a Small Business does not perform or exercise responsibility for at least 30% of the total cost of its contract with its own work force, or if the Small Business subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, the Small Business is presumed not to be performing a Commercially Useful Function.

Compliance Specialist means an Agency employee responsible for Small Business Program compliance with this contract.

Concession as defined by 49 C.F.R. Part 23, means one or more of the types of for-profit businesses that serve the traveling public listed in paragraph (A) or (B) of this definition:

A. A business, located on an airport subject to this part, that is engaged in the sale of consumer goods or services to the traveling public under an agreement with the City, another concessionaire, or the owner or lessee of a terminal, if other than the City.

B. A business conducting one or more of the following covered activities, even if it does not maintain an office, store, or other business location on an airport subject to this part, as long as the activities take place on the airport: management contracts and subcontracts, a web-based or other electronic business in a terminal or which passengers can access at the terminal, an advertising business that provides advertising displays or messages to the public on the airport, or a business that provides goods and services to concessionaires.

Contract means a legally binding agreement that creates obligation between any of the following parties to furnish concessions services (including food and beverage, retail, or other services) and the City: Concessionaire, JV partner, lessee, sublessee, subcontractor, or a Goods and Services Provider.

Contractor means firm that was awarded the given contract with the Agency, to perform the work or service as specified by the contract.

EOD means the City of Phoenix Equal Opportunity Department.

Goods and Services Providers are firms that provide goods and services that represent a CUF as a Small Business.

Joint Venture (JV) means an association between two or more persons, partnerships, corporations, or any combination thereof, formed to carry on a single business activity. The JV is limited in scope and duration to this Contract. The resources, assets, and labor of the participants must be combined in an effort to accrue profit.

Lease is a written agreement for a direct concession opportunity with the City that includes the use of space.

Lessee means an individual, partnership, JV, corporation, or firm that submits a response to, and is awarded a Contract or Lease by the City to perform services requested in accordance with applicable procurement requirements.

Outreach Efforts means the diligent and good faith efforts demonstrated by a Respondent to solicit participation from interested and qualified Small Businesses. Respondent must identify and document potential business opportunities for Small Businesses, describe what efforts were undertaken to solicit Small Business participation, disclose results of negotiations with Small Businesses, and communicate and record Respondent’s selection decisions relating to Small Business participants.

ATTACHMENT F

https://utracs.azdot.gov/Search https://utracs.azdot.gov/ https://utracs.azdot.gov/Search https://phoenix.gob2g.com/

Participants List means a list created by the Respondent, consisting of information about all small business firms that bid or quote on the solicitation. The list should include the firm’s name; address; NAICS code applicable to each scope of work the firm sought to perform in its bid; age of the firm; and the annual gross receipt of the firm.

Personal Net Worth (PNW) has the same meaning as the term has in 49 C.F.R. 26.68.

Responsible Respondent means a firm that has been selected to continue in the procurement process by the Agency.

Responsive Respondent means a firm that has met and submitted the solicitation requirements.

Small Business (SB) means a for-profit business seeking to participate in contracts funded by the U.S. Department of Transportation (US DOT), a Small Business Concern as defined in section 3 of the Small Business Act and Small Business Administration regulations implementing the Act (13 CFR part 121), which Small Business Concern does not exceed the cap on average annual gross receipts specified in 49 CFR § 23.33 seeking to participate on concession contracts. “Small Business” and “Small Business Concern” are used interchangeably in this Contract Clause.

Small Business Participation Plan (SBPP) details of the types of work or services firms (with projected dollar amount) that the Respondent will solicit small businesses to perform. The SBPP must include an estimated timeframe in which actual small business subcontracts will be executed. The Agency requires firms to submit a written SBPP annually throughout the life of the contract.

Subcontract means a contract at any tier below the prime contract, including a purchase order.

Subcontractor means an individual, partnership, joint venture, corporation, or firm that holds a contract/agreement at any tier below the prime contract, including a vendor under a purchase order.

Respondent means a contractor, corporation, or firm that tenders a response to the Agency to perform services requested by a solicitation or procurement. The submittal may be direct or through an authorized representative. (Respondent is inclusive of the terms:

Bidder, Offeror, Proposer, Submitter, etc.).

Successful Respondent means a firm that has been awarded the contract by the Agency to perform services requested by a solicitation or procurement.

SECTION II. GENERAL REQUIREMENTS

A. Applicable Federal Regulations

This Contract is subject to ACDBE-N requirements issued by USDOT in 49 CFR Part 23. The Agency must track and report participation that occurs as a result of any procurement, goods/services, or other arrangement involving a Small Business.

For this reason, the Contractor must provide all relevant information to enable the required reporting. The requirements in the following provisions apply to small and non-small Contractors.

B. Small Business Participation

The Agency will track the participation of all small businesses, to include ACDBEs, throughout the life of this contract. The Agency will count small business participation as authorized by federal regulations. A summary of these regulations can be found at www.ecfr.gov (49 CFR Part 26.39).

C. Small Business Participation Plan

The Successful Respondent/Contractor shall provide a Small Business Participation Plan (SBPP) on an annual basis by the anniversary of the Effective Date of the Lease. The SBPP must contain strategies to foster small business participation.

It must also detail the types of subcontracting work or services (with projected dollar amount) that the respondent will solicit Small Businesses to perform. The SBPP must include an estimated time frame in which actual small business subcontracts would be executed.

D. Nondiscrimination/Equal Opportunity

1. Civil Rights Assurances

As a recipient of USDOT funding, the City has agreed to abide by the assurances found in 49 C.F.R. Part 23. Each Lease signed by the City and the Lessee, and each subcontract signed by the Lessee and any sublessees, must include the following assurances verbatim:

“The concessionaire or contractor, shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:

(a) Withholding monthly progress payments;

(b) Assessing sanctions;

(c) Liquidated damages; and/or

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

The concessionaire or contractor agrees to include the above statements in any subsequent agreement or contract covered by 49 CFR, Part 26, that it enters and cause those businesses to similarly include the statement in further agreements.”

Note: For purposes of the required lease and sublease language above, the Recipient is the City and the Lessee is the Concessionaire or Contractor.

2. Title VI Solicitation Notice

The City of Phoenix, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (42 USC §§ 2000d to 2000d-4) and the Regulations, hereby notifies the Successful Respondent that it will affirmatively ensure that for any contract entered into pursuant to this lease, all businesses will be afforded full and fair opportunity to submit bids in http://www.ecfr.gov/ response to any invitation and no businesses will be discriminated against on the grounds of race, color, national origin, creed, sex, age, or disability in consideration for an award. .

3. Non-Discrimination/Equal Opportunity for Successful Respondent

In administering its ACDBE-N program, the Successful Respondent will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the ACDBE-N program.

The Successful Respondent further agrees to meet the non-discrimination requirements provided in 49 CFR Part 26, §26.7 with respect to the award and performance of any concession agreement, management contract or subcontract, purchase or lease agreement, or other agreement covered by this subpart.

The Successful Respondent will take all necessary and reasonable steps to ensure nondiscrimination in the award and administration of contracts and agreements covered under the ACDBE-N program..

4. Compliance with Nondiscrimination Requirements During the performance of this contract, the Successful Respondent, for itself, its subcontractors, its assignees, and successors in interest, agrees as follows:

A. Compliance with Regulations: The Successful Respondent (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities (Acts), as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.

B. Nondiscrimination: The Successful Respondent, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin, creed, sex, age, or disability in the selection and retention of subcontractors, including procurements of materials and Leases of equipment. The Successful Respondent will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 C.F.R. Part 21.

C. Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Successful Respondent for work to be performed under a subcontract, including procurements of materials, or Leases of equipment, each potential subcontractor or supplier will be notified by the Successful Respondent of the Respondent’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, national origin, creed, sex, age or disability.

D. Information and Reports: The Successful Respondent will provide all information and reports required by the Acts, the related regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City of Phoenix or the Federal Aviation Administration (FAA) to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Successful Respondent will so certify to the City of Phoenix or the FAA, as appropriate, and will set forth what efforts it has made to obtain the information.

E. Sanctions for Noncompliance: In the event a Successful Respondent is determined to be in noncompliance with the nondiscrimination provisions of this contract, the City will impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to:

1. Applying administrative actions to the Successful Respondent under the contract until the Successful Respondent complies; and/or

2. Cancelling, terminating, or suspending a contract, in whole or in part.

The Successful Respondent will include provisions of paragraphs A through E in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto.

The Successful Respondent will act with respect to any subcontract or procurement as the City or the FAA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided that if the Successful Respondent becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Successful Respondent may request the City to enter into any litigation to protect the interests of the City.

In addition, the Successful Respondent may request the United States to enter into the litigation to protect the interests of the United States.

SECTION III. SMALL BUSINESS OUTREACH REQUIREMENTS

Phoenix Sky Harbor International Airport has a national market for small business participation. The City has implemented outreach requirements for this RCS and Lease. To facilitate this, the City requires outreach to small businesses. Specifically, each Respondent must:

(1) Identify small-business-participation opportunities, including Commercially Useful Functions (CUF);

(2) Actively solicit proposals from small businesses;

(3) Evaluate small-business proposals; and

(4) Communicate selection decisions to small businesses, including each rejection of a small-business proposal.

Successful Respondents must fulfill all required small business outreach requirements and submit all required outreach effort documentation at the time of submittal and on an annual basis.

To be considered for a Lease, each Respondent must conduct and document Small Business Outreach Efforts in compliance with the Airport Concession Disadvantaged Business Enterprise-Neutral (ACDBE-N) Concession Pre-Award RCS Clause (Attachment __) and the USDOT 49 C.F.R. Part 23. Although there are no ACDBE or small business participation goals set for this lease, the City strongly encourages each Respondent to utilize small businesses in its response.

A. PRE-AWARD SUBMITTAL REQUIREMENTS

The Small Business Outreach forms, EO1-200 - Statement of Outreach Commitment, EO2-200 - Participants List and Small Business Outreach Efforts, and EO3-200 - Small Business Utilization Commitment, marked in Attachment __ are due at the time of submittal.

1. Form EO1 - 200 – Statement of Outreach Commitment At the time of submittal, Respondent must sign, date and submit a completed Form EO1 - 200 Statement of Outreach Commitment.

2. Form EO2 - 200 - Participants List and Small Business Outreach Efforts At the time of submittal, Respondent must complete and submit Form EO2–200 Participants List and Small Business Outreach Efforts. For each proposal received, Respondent must complete columns A and B documenting its diligent, earnest outreach efforts for all subcontracting work as described in this clause.

For each business identified as a Small Business in column A, Respondent must complete columns C, D, and E documenting its efforts for subcontracting work as described in this clause.

Respondent must provide the following minimum information to document its Participants List and Outreach Efforts and in the designated columns within Form EO2 - 200:

a. Column A - Business Name and Contact Information Must list each business’ full legal name and contact information, including address, phone number and email and/or fax.

Respondent must inquire to obtain the following: the number of years in business, its range of annual gross receipts. If business is a Small Business, check the box.

b. Column B - Scope(s) of Work Solicited List the NAICS Codes and scope(s) of work solicited for which the business was considered for participation in the proposal. The solicitation to firms by the Respondent must include a description of the scope(s) of work being requested.

c. Column C - Solicitation Method Indicate the solicitation method by which each small business was contacted. The solicitation to small businesses may be in the form of letters or attachments to email, phone logs, newspapers, websites, and trade papers, outreach events, etc. Supporting documentation must include a copy of the actual solicitation sent to small business. If using a log as supporting documentation, it must include:

• List the Solicitation Method

• Name of Respondent’s Representative

• Name of Company Contacted

• Name of Person Contacted

• Company’s Contact Information Used to Reach the Company (e.g. phone number, email)

• Date and Time of Contact

• Details of the Communication

d. Column D - Selection Decision Indicate the Respondent’s selection decision for each small business that responded to the solicitation.

Whether or not a firm was selected.

If not selected, provide an explanation of why the firm was not selected.

If selected, indicate the Dollar ($) Value.

e. Column E - Method of Communication of Final Selection Outcome The Respondent must notify the final selection outcome to all small businesses that responded. The supporting documentation for this notification may be in the form of an email, letter, or a telephone log, etc. This documentation must show the following information regarding the final selection:

• Date firm was notified of outcome

• Method used to communicate selection:

o Email o Phone o Fax o Letter o In person

Respondent must provide supporting documentation that shows Respondent has communicated its final selection decisions and outcomes to all Small Businesses for which the box was checked, including those not chosen to participate in this opportunity.

3. Form EO3 – 200 Small Business Utilization Commitment At the time of submittal, the Respondent must complete, sign, date and submit EO3 – 200 Small Business Utilization Commitment, which commits the Respondent to the Agency as follows:

1. The firms indicated as “Selected” on Form EO2 - 200- Participants List and Small Business Outreach Efforts, will participate in this Contract opportunity;

2. The Respondent will comply with the post-award compliance requirements as stated in the ACDBE-N contract clause;

3. Respondent understands and agrees that any and all changes or substitutions to Subcontracts with Small Businesses must be authorized by EOD prior to implementation; and

4. The following statement is true and correct: The proposed total participation of small business firms on this contract opportunity will be designated on Form EO3 by the Respondent.

4. Delivery of Response As instructed in Section __ – Delivery of Response of the RCS, Respondents may submit the Small Business Outreach Requirements in a sealed package marked “Small Business Outreach Requirements” as instructed in the solicitation.

5. Failure to Submit Forms EO1-200, EO2-200, EO3-200 Submittals that do not have these forms completed and signed, including the supporting documentation required by EO2- 200, may be deemed non-responsive. A non-responsive submittal may be disqualified from further evaluation.

6. Failure to Meet Small Business Outreach Requirements The Equal Opportunity Department (EOD) will determine in writing whether a Respondent has satisfied all outreach requirements. If EOD determines that the Respondent has failed to satisfy the outreach requirements, EOD may determine that the Respondent is non-responsive. A non-responsive determination disqualifies the Respondent from further consideration for the Lease award. The City shall send written notice to the Respondent stating the basis for EOD’s decision.

7. Outreach Administrative Reconsideration If EOD determines that the Respondent failed to submit required documentation to meet the stated outreach requirements of this solicitation, the Respondent will have an opportunity to request EOD to administratively reconsider this determination, in accordance with the protest provisions in this RCS.

The Respondent may clarify its response, but the Respondent will not be allowed to submit or refer to new or revised documents or information. The City will only reconsider the original response as clarified in the request for reconsideration

B. POST-AWARD REQUIREMENTS

1. Subcontracting Commitment

The small business identified and accepted in the Small Business Outreach documents must have an executed contract in place prior to the performance of work. Executed contracts and all lower tier contracts must contain the required Civil Rights Assurances and Prompt Payment provisions.

a. The Successful Respondent will be held to the Small Business Utilization Commitment percentages proposed on the EO3-200 form.

b. If a Successful Respondent proposes a Joint Venture (JV) with a small businesses as any part of their response, upon award recommendation, the Successful Respondent must provide a draft copy of the JV operating agreement to the Equal Opportunity Department. Additionally, the Successful Respondent must provide any requested JV documentation to the Equal Opportunity Department to facilitate the review and approval of the proposed JV.

2. Small Business Partcipation Plan Every year on the anniversary of the Effective Date of the Lease, the Successful Respondent must provide the Equal Opportunity Department (EOD) with a Small Business Participation Plan (SBPP). The SBPP will detail the Successful Respondent’s continued commitment to outreach and engagement to small businesses. The SBPP must contain strategies to foster small business participation and information concerning the small businesses, including any changes to the initial Airport-approved participation plan (EO2-200 and EO3-200).

3. Small Business Reporting Successful Respondents are required to comply with the Airport ACDBE-N Program Plan and 49 C.F.R. Part 23.

Successful Respondents must track and report all revenue and all small business participation that occurs at the Airport as a result of the lease, procurements, purchase orders, subleases, joint ventures, goods and services, or other arrangements involving sub-tier participation. Such documentation must be entered monthly into the internet-based reporting program City of Phoenix Certification & Compliance System at https://phoenix.gob2g.com throughout the life of this contract.

4. Small Business Substitution/Relief from Proposed Small Business Utilization After Contract award, the Agency will not grant relief from the proposed Small Business utilization except in extraordinary circumstances as identified in 49 CFR § 26.53(f)(3). The Contractor will not terminate any approved Small Business subcontracts, nor will the Contractor alter the scope of work or reduce the subcontract amount without EOD’s prior written approval. The Contractor’s request to modify Small Business participation must be in writing to the EOD.

A Contractor’s written request must set forth the amount of relief sought, evidence that demonstrates why relief is necessary, and any additional relevant information that EOD should consider. The Contractor must include with the request all documentation of Contractor’s attempts to subcontract with the Small Business and any other action taken to locate and solicit a replacement Small Business.

Any request to alter a subcontract must be submitted in writing to the EOD before any change is made. If the Contractor fails to do so, the Agency may declare the Contractor in breach of contract.

SECTION IV. RECORDS & REPORTING REQUIREMENTS

A. Records

During performance of the Contract, the Contractor must keep all records necessary to document small business participation. The Contractor must provide the records to the Agency within seventy-two (72) hours of the request and at final completion of the Contract. The Agency will prescribe the form, manner, and content of reports.

B. Records Maintenance The Agency requires the Contractor to maintain records and documents of revenues received and payments to subcontractors, including ACDBEs, for a minimum of three (3) years, unless otherwise provided by applicable record retention requirements for the Agency’s financial assistance agreement, whichever is longer. These records will be made available for inspection upon request by any authorized representative of the Agency or USDOT. The reporting requirement extends to all Concessionaire, JV partner, sublessee, subcontractor, or a Goods and Services Provider, for both small and non-small business firms.

C. Reports Contractor is required to file the following payment reports in the City of Phoenix Certification and Compliance System:

1. Revenue or Payments By the 15th of each month, the Contractor must enter revenue and/or payment information and related supporting documentation into the City of Phoenix Certification and Compliance System.

https://phoenix.gob2g.com/

a. The total revenues generated by small businesses during the previous month to include supporting documentation, which may include but not limited to register receipts and reports from POS systems.

b. The total payments made to small businesses during the previous month.to include supporting documentation to collaborate the payment amounts, which may include but not limited to invoices and pay receipts.

The Contractor is responsible for ensuring that small businesses confirm revenue amounts and/or receipt of payment in the City of Phoenix Certification and Compliance System by the end of each month.

2. Contract Close Out Before EOD processes the Contractor’s file for close out, the Contractor must notate in the City of Phoenix Certification and Compliance System:

a. The Contractor’s final revenue (Final) payment made to the airport;

b. Every Concessionaire, JV partner, sublessee, subcontractor, or a Goods and Services Provider must confirm

“Final” payment made (or received). The Contractor is responsible for ensuring that subcontractors confirm the receipt of full and final payment in the Phoenix Contract Compliance System.