attachment-7-bid-68-25.pdf

Attachment 7: Disadvantaged Business RFB 68-25 Enterprise Security Camera Installation

S P E C I A L A T T E N T I O N

Disadvantaged Business Enterprise (DBE)

Disadvantaged Business Enterprise (DBE) Policy. It is the policy of the New Hampshire Department of Transportation (NHDOT) to ensure nondiscriminatory opportunity for Disadvantaged Business Enterprises (DBEs) to participate in the performance of all contracts and subcontracts financed with Federal funds as specified by the regulations of the United States Department of Transportation (USDOT), Federal Transit Administration as set forth below.

1. Policy. It is the policy of the USDOT to ensure nondiscriminatory opportunity for disadvantaged business enterprises, as defined in 49 Code of Federal Regulation (CFR) Part 26, to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. Consequently, the DBE requirements of 49 CFR Part 26 applies to this contract.

2. Disadvantaged Business Enterprise (DBE) Obligation. The State and its Contractors agree to ensure nondiscriminatory opportunity for disadvantaged business enterprises, as defined in 49 CFR Part 26, to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds. Each subcontract the Prime Contractor signs with a subcontractor must include this assurance: “The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of USDOT-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 NHDOT deems appropriate.”

3. Sanctions of Non-Compliance. The Contractor is hereby advised that failure of the Contractor, or any Subcontractor performing work under this contract, to carry out the requirements set forth in paragraphs 1 and 2 above shall constitute a breach of contract and, after notification of the USDOT, may result in termination of this contract or such remedy as the State deems appropriate.

Disadvantaged Business Enterprise (DBE) Program Goals. The NHDOT is required to set an overall DBE goal for participation in all transportation related Federal-aid projects which can be obtained through race-neutral means (i.e., voluntary participation and utilization of DBEs on Federal-aid projects). Race-neutral DBE participation includes any time a DBE wins a prime contract through customary competitive procurement procedures or is awarded a subcontract on a prime contract that does not carry a DBE contract goal.

Overall (Race-Neutral) Statewide DBE Goals. The NHDOT strives to meet the set statewide DBE goal by using race-neutral means. The overall DBE goal is determined following guidelines set forth in 49 CFR 26.45, and based on the availability of ready, willing, and able DBEs who submitted bids for transportation related projects, compared as a percentage of all available contractors who submitted bids for transportation related projects during the same time period.

This means that unless otherwise stated in the contract, the NHDOT relies on the voluntary cooperation (race-neutral means) of all contractors to utilize DBEs on every project, sufficient to meet or exceed the current statewide DBE goal.

The DBE goal may be adjusted to consider other factors impacting DBE utilization, to narrowly tailor the overall DBE goal. The detailed goal setting methodology and current overall DBE goal may be viewed on the NHDOT website at www.dot.nh.gov.

Disadvantaged Business Enterprise (DBE) Definition. A DBE is defined as a for-profit business that is owned and controlled by one or more socially and economically disadvantaged person(s). For the purpose of this definition:

A. “Socially and economically disadvantaged person” means any rebuttably presumed individual as defined by 49 CFR and/or any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who has been subjected to racial or ethnic prejudice or cultural bias within American society because of his or her https://www.ecfr.gov/current/title-49/subtitle-A/part-26?toc=1 https://www.ecfr.gov/current/title-49/subtitle-A/part-26?toc=1 https://www.ecfr.gov/current/title-49/subtitle-A/part-26?toc=1 https://www.ecfr.gov/current/title-49/subtitle-A/part-26?toc=1 https://www.ecfr.gov/current/title-49/subtitle-A/part-26?toc=1 https://www.dot.nh.gov/ identity as a member of groups and without regard to his or her individual qualities. The social disadvantage must stem from circumstances beyond the individual's control (49 CFR 26.5).

B. “Owned and controlled” means a business which is:

(1) A sole proprietorship legitimately owned and controlled by an individual who is a disadvantaged person.

(2) A partnership, joint venture, or limited liability Company in which at least 51% of the beneficial ownership interests is legitimately held by a disadvantaged person(s).

(3) A corporation or other entity in which at least 51% of the voting interest and 51% of the beneficial ownership interests are legitimately held by a disadvantaged person(s).

The disadvantaged group owner(s) or stockholder(s) must possess control over management, interest in capital, and interest in earnings commensurate with the percentage of ownership. Disadvantaged participation in a joint venture must also be based on the sharing of real economic interest and must include proportionate control over management, capital, and earnings, as above. If the disadvantaged group ownership interests are real, substantial and continuing and not created solely to meet the requirements of this program, a firm is considered a bona fide DBE.

Certified DBE Directory. The current New Hampshire Disadvantaged Business Enterprise (DBE) Directory is available online at www.dot.nh.gov/doing-business-nhdot/office-access-opportunity-and-compliance/disadvantaged-business-enterprise. This directory contains all currently certified DBEs available for work in New Hampshire and is updated weekly. Only firms listed in this directory are eligible for DBE Program/Goal credit on NH Federal-aid projects.

Questions about DBE certification, or if further assistance is needed, should be directed to the External EEO Coordinator at (603) 271-8252 or dbecertification@dot.nh.gov.

Counting DBE Participation for Project Goals. In order for payments made to DBE contractors to be counted toward DBE goals, the DBE contractors must perform a Commercially Useful function (CUF), which means that DBE must be responsible for execution of the work of the contract and must carry out its responsibilities by actually performing, managing, and supervising the work involved, consistent with standard industry practices:

Furthermore, this means that:

A. The DBE must also be responsible for ordering its own materials and supplies, determining quantity and quality, negotiating price, installing (where applicable) and paying for the material itself;

B. The DBE must perform work commensurate with the amount of its contract;

C. The DBEs contribution cannot be that of an extra participant or a conduit through which funds are passed in order to obtain the appearance of DBE participation;

D. The DBE must exercise responsibility for at least fifty percent of the total cost of its contract with its own work force;

E. None of the DBE’s work can be subcontracted back to the Prime Contractor, nor can the DBE employ the prime’s, or other subcontractor’s supervisors currently working on the project;

F. The DBE’s labor force must be separate and apart form that of the Prime Contractor or other subcontractors on the project. Transferring crews between primes, subcontractors, and DBE contractors is not acceptable;

G. The DBE owner must hold a Public Works license and any other professional or craft licenses required for the type of work he/she performs on the project; and

H. The DBE may rent or lease, at competitive rates, equipment needed on the project from customary leasing sources or from other subcontractors on the project.

Allowable credit for payments made to DBEs for work performed. A contractor may take credit for payments made to a certified DBE that satisfies CUF requirements at the following rate:

https://www.ecfr.gov/current/title-49/subtitle-A/part-26/subpart-A https://www.dot.nh.gov/doing-business-nhdot/office-access-opportunity-and-compliance/disadvantaged-business-enterprise https://www.dot.nh.gov/doing-business-nhdot/office-access-opportunity-and-compliance/disadvantaged-business-enterprise mailto:dbecertification@dot.nh.gov

A. A DBE Prime Contractor: Count 100% of the value of work performed by own forces, equipment and materials count towards DBE goals.

B. An approved DBE Subcontractor: Count 100% of the value of work performed by the DBE’s own forces, equipment, and materials, excluding the following:

• The cost of materials/supplies purchased from a non-DBE Prime Contractor.

• The value of work provided by non-DBE lower tier subcontractors, including non-DBE trucking to deliver asphalt to a DBE contractor.

C. A DBE owner-operator of construction equipment: Count 100% of expenditures committed.

D. A DBE manufacturer: Count 100% of expenditures committed. The manufacturer must be a firm that operates or maintains a factory or establishment that produces on the premises the materials or supplies obtained by the Contractor.

E. A regular DBE dealer/supplier: Count 60% of expenditures committed. A regular dealer/supplier is defined as a firm that owns, operates, or maintains a store, warehouse, or other establishment, in which the materials or supplies required for the performance of the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. A person may be a dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business, if the person both owns and operates distribution equipment for the products, by the means of a long-term agreement, and not by a contract-by-contract basis.

F. A DBE Broker: Count for DBE credit only the fees or commissions charged for assistance in the procurement, and fees and transportation charges for the delivery of materials or supplies required at the job site, but not the cost of materials procured. A broker is defined as any person(s) or firm who arranges or expedites transactions for materials or supplies and does not take physical possession of the materials or supplies at their place of business for resale.

G. A DBE renter of construction equipment to a contractor: Count 20% of expenditures committed, with or without operator.

H. A bona fide DBE service provider: Count 100% of reasonable fees or commissions.

Eligible services include professional, technical, consultant, or managerial, services and assistance in the procurement of essential personnel, facilities, equipment, materials or supplies required for the performance of the contract. Eligible services also include agencies providing bonding and insurance specifically required for the performance of the contract.

I. A trucking, hauling or delivery operation: Count 100% of expenditures committed when trucks are owned, operated, licensed, and insured by the DBE and used on the contract and, if applicable, includes the cost of the materials and supplies. 100% of expenditures committed when the DBE leases trucks from another DBE firm including an owner-operator. 100% of reasonable fees, or commissions, the DBE receives as a result of a lease arrangement for trucks from a non-DBE, including an owner-operator.

J. Any combination of the above.

Reporting Requirements for Payments Made to DBEs. On all Federal-aid projects, due to the prompt payment requirement, contractors are required to report payments made to DBEs during the life of the contract, on a monthly basis.

The NHDOT will provide the Contractor with a monthly Prompt Payment Certification Form, detailing all DBEs subcontracted by the Contractor, per project. The Contractor shall report any payments made to DBEs during the requested reporting period. This form shall be submitted to the of Office of Federal Compliance (OFC) at laborcompliance@dot.nh.gov. Failure of the Contractor to submit this information may result in the Department withholding progress payments.

S P E C I A L A T T E N T I O N