DBE_Program_Plan_incl._forms_(2024-12-03).pdf

DEPARTMENT OF TRANSPORTATION

DBE PROGRAM - 49 CFR PART 26

~NT

0 TARIQ

INTERNATIONAL AtRPORT

Ontario International Airport (ONT)

Prepared for

Ontario International Airport Authority

Ontario, CA

Prepared by

Mead , lunt

March 10, 2021

Ontario International Airport

TABLE OF CONTENTS

Page

Preface ... 1

Policy Statement. .. 2

Subpart A - General Requirements .. . 3

Subpart B -Administrative Requirements ... 5

Subpart C - Goals, Good Faith Efforts, and Counting ... 12

Subpart D - Certification Standards ... 21

Subpart E - Certification Procedures ... 22

Subpart F - Compliance & Enforcement. .. 22

List of Attachments ... 24

TOCI 49 CFR Part 26 Program

OIAA 49 CFR Part 26 FAA Version 2020-10-21

Preface

The Ontario International Airport Authority (OIAA) is the owner and operator of the Ontario International Airport (ONT). The OIAA controls, operates, and manages all airport operations. It establishes policy to ensure that quality aviation related services are provided to the region. The OIAA has established the following Disadvantaged Business Enterprise (DBE) program for the Ontario International Airport in accordance with Code of Federal Regulations (CFR) of the U. S. Department of Transportation (DOT), 49 CFR Part 26. All reference to Subparts and Section numbers throughout this DBE policy (i.e. Subpart A, 26.1, 26.3, etc.) are to the 49 CFR Part 26 regulations.

Ontario International Airport Authority (OIAA) Page 1 of 24 49 CFR Part 26 Program

POLICY STATEMENT

Section 26.1, 26.23 Objectives/Policy Statement

The Ontario International Airport Authority (OIAA), owner of Ontario International Airport (ONT), has established a Disadvantaged Business Enterprise (DBE) Program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Part 26. OIAA has received Federal financial assistance from the Department of Transportation, and as a condition of receiving this assistance, OIAA has signed an assurance that it will comply with 49 CFR Part 26 (hereafter referred to as "Part 26").

It is the policy of the OIAA to ensure that DBEs as defined in Part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also OIAA policy to engage in the following actions on a continuing basis:

1. Ensure nondiscrimination in the award and administration of DOT- assisted contracts;

2. Create a level playing field on which DBEs can compete fairly for DOT assisted contracts;

3. Ensure that the DBE Program is narrowly tailored in accordance with applicable law;

4. Ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs;

5. Help remove barriers to the participation of DBEs in DOT assisted contracts;

6. Promote the use of DB Es in all types of federally-assisted contracts and procurement activities;

7. Assist the development of firms that can compete successfully in the market place outside the DBE Program; and

8. Make appropriate use of the flexibility afforded to recipients of Federal financial assistance in establishing and providing opportunities for DBEs.

Aaron Flake, Management Analyst, has been delegated as the DBE Liaison Officer. In that capacity, Aaron Flake is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the OIAA in its financial assistance agreements with the Department of Transportation.

OIAA has disseminated this policy statement to the Ontario International Airport Authority and all of the components of our organization. This statement has been distributed to DBE and non-DBE business communities that may perform work on OIAA DOT-assisted contracts. The Policy Statement is available for public access on OIAA's website www.fl ontario.com).

M

Ontario International Airport Authority (OIM) Page 2 of 24 49 CFR Part 26 Program

Cliff Cortes Cross-Out

Cliff Cortes Inserted Text Jamaal Avilez, Chief Administrative Officer

Cliff Cortes Cross-Out

Cliff Cortes Inserted Text Jamaal Avilez

GENERAL REQUIREMENTS

Section 26.1 Objectives

The objectives are elaborated in the policy statement on the first page of this program.

Section 26.3Applicability

OIAA is the recipient of Federal airport funds authorized by 49 U.S.C. 47101, et seq.

Section 26.5 Definitions

OIAA will use terms in this program that have their meanings defined in Part 26, §26.5.

Section 26.7 Non-discrimination Requirements

OIAA will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin.

In administering its DBE program, OIAA 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 DBE program with respect to individuals of a particular race, color, sex, or national origin.

Section 26.11 Record Keeping Requirements

Reporting to DOT

OIAA will provide data about its DBE Program to the Department as directed by DOT operating administrations.

DBE participation will be reported to Federal Aviation Administration as follows:

OIAA will transmit to Federal Aviation Administration annually, by or before December 1, the information required for the "Uniform Report of DBE Awards or Commitments and Payments", as described in Appendix B to Part 26. OIAA will similarly report the required information about participating DBE firms. All reporting

Ontario International Airport Authority (OIAA) Page 3 of 24 49 CFR Part 26 Program will be done through the Federal Aviation Administration official reporting system, or another format acceptable to Federal Aviation Administration as instructed thereby.

Bidders List

OIAA will create and maintain a bidders list. The purpose of the list is to provide as accurate data as possible about the universe of DBE and non-DBE contractors and subcontractors who seek to work on OIAA DOT-assisted contracts, for use in helping to set overall goals. The bidders list will include the name, address, DBE and non-DBE status, age of firm, and annual gross receipts of firms.

This information will be collected using the form in Attachment 3 which will be included in bidding documents. The information will be submitted by primes and subcontractors whether or not they were successful in be awarded a subcontract or the prime contract.

OIAA will provide this information in the public domain.

Records retention and reporting:

The OIAA, as a member of the California UCP established pursuant to §26.81, will report to the Department of Transportation's Office of Civil Rights each year the percentage and location in the State of certified DBE firms in the UCP Directory controlled by the following:

1) Women;

2) Socially and economically disadvantaged individuals (other than women); and

3) Individuals who are women and are otherwise socially and economically disadvantaged individuals.

Section 26.13 Federal Financial Assistance Agreement

OIAA has signed the following assurances, applicable to all DOT-assisted contracts and their administration:

Assurance: - Each financial assistance agreement OIAA signs with a DOT operating administration (or a primary recipient) will include the following assurance:

[Note: The following language is to be used verbatim, as stated in 26.13(a)]

The OIAA shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR Part 26. The OIM shall take all necessary and reasonable steps under 49 CFR Part 26 to

Ontario International Airport Authority (OIAA} Page 4 of 24 49 CFR Part 26 Program ensure nondiscrimination in the award and administration of DOT-assisted contracts. The OIAA DBE program, as required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in this agreement.

Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the OIAA of its failure to carry out its approved program, the Department may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).

Contract Assurance: OIAA will ensure that the following clause is included in each DOT funded contract it signs with a contractor (and each subcontract the prime contractor signs with a subcontractor):

[Note: The following language is to be used verbatim, as stated in 26. 13(b)]

The contractor, sub recipient or subcontractor 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:

1) Withholding monthly progress payments;

2) Assessing sanctions;

3) Liquidated damages; and/or

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

SUBPART B - ADMINISTRATIVE REQUIREMENTS

Section 26.21 DBE Program Updates

OIAA is required to have a DBE program meeting the requirements of this part as it will receive grants for airport planning or development and will award prime contracts, cumulative total value of which exceeds $250,000 in FAA funds in a federal fiscal year.

OIAA is not eligible to receive DOT financial assistance unless DOT has approved this DBE program and OIAA is in compliance with it and Part 26. OIAA will continue to carry out this program until all funds from DOT financial assistance have been expended.

OIAA does not have to submit regular updates of the DBE program document, as long as it remains in compliance. However, significant changes in the program, including those required by regulatory updates, will be submitted for DOT approval.

Ontario International Airport Authority (OIM) Page 5 of 24 49 CFR Part 26 Program

Section 26.23 Policy Statement

The Policy Statement is elaborated on the first page of this DBE Program.

Section 26.25 DBE Liaison Officer (DBELO)

The following individual has been designated as the DBE Liaison Officer for OIAA:

Jamaal Avilez Chief Administrative Officer Ontario International Airport Authority 1923 E Avion Avenue Ontario, CA 91761 909/ 544-5387 javilez@flyontario.com

In that capacity, the DBELO is responsible for implementing all aspects of the DBE program and ensuring that the OIAA complies with all provision of 49 CFR Part 26. The DBELO has direct, independent access to the Mark Thorpe - Chief Executive Officer of OIAA concerning DBE program matters. An organizational chart displaying the DBELO's position in the organization is included in Attachment _to this program.

The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. The DBELO has support from OIAA's Airport Consultant to assist in the administration of the program. The duties and responsibilities include the following:

1. Gathers and reports statistical data and other information as required by

DOT.

2. Reviews third party contracts and purchase requisitions for compliance with this program.

3. Works with all departments to set overall annual goals.

4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner.

5. Identifies contracts and procurements so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals) and monitors results.

6. Analyzes OIAA's progress toward attainment and identifies ways to improve progress.

7. Participates in pre-bid meetings.

Ontario International Airport Authority (OIAA) Page 6 of 24 49 CFR Part 26 Program

8. Advises the CEO/governing body on DBE matters and achievement.

9. Determine contractor compliance with good faith efforts.

10. Provides DB Es with information and assistance in preparing bids, obtaining bonding and insurance.

11. Plans and participates in DBE training seminars.

12. Provides outreach to DBEs and community organizations to advise them of opportunities.

Section 26.27 DBE Financial Institutions

It is the policy of the OIAA to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contracts to make use of these institutions.

The OIM shall use the State of California, Department of General Services online directory https://caleprocure.ca.gov/pages/PublicSearch/supplier search.asoxgov/licenseForm.htm to search for commercial banking, credit unions, and consumer lending businesses. This will be done on an annual basis.

Section 26.29 Prompt Payment Mechanisms

OIAA requires that all subcontractors performing work on DOT-assisted contracts shall be promptly paid for work performed pursuant to their agreements, in accordance with all relevant federal, state, and local law.

In accordance with 49 CFR §26.29, the OIAA established a contract clause implementing this requirement and requires prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from the prime contractor's receipt of each payment from the OIAA.

OIAA ensures prompt and full payment of retainage from the prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed.

Pursuant to §26.29, OIAA has selected the following method to comply with this requirement:

OIAA will hold retainage from prime contractors and provide for prompt and regular incremental acceptances of portions of the prime contract, pay retainage to prime

Ontario International Airport Authority (OIAA) Page 7 of 24 49 CFR Part 26 Program contractors based on these acceptances, and require a contract clause obligating the prime contractor to pay all retainage owed to the subcontractor for satisfactory completion of the accepted work within 30 days after payment to the prime contractor.

Additionally, for Federal Aviation Administration (FAA) Recipients include the following:

To implement this measure, OIAA includes the following clause from FAA Advisory Circular 150/5370-10 in each DOT-assisted prime construction contract:

"a. From the total of the amount determined to be payable on a partial payment, 5% percent of such total amount will be deducted and retained by the Owner for protection of the Owner's interests. Unless otherwise instructed by the Owner, the amount retained by the Owner will be in effect until the final payment is made except as follows:

(1) Contractor may request release of retainage on work that has been partially accepted by the Owner in accordance with Section 50-14 of the General Provisions. Contractor must provide a certified invoice to the RPR that supports the value of retainage held by the Owner for partially accepted work.

(2) In lieu of retainage, the Contractor may exercise at its option the establishment of an escrow account per paragraph 90-08 of the General Provisions.

b. The Contractor is required to pay all subcontractors for satisfactory performance of their contracts no later than 7 days after the Contractor has received a partial payment. Contractor must provide the Owner evidence of prompt and full payment of retainage held by the prime Contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. A subcontractor's work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented as required by the Owner. When the Owner has made an incremental acceptance of a portion of a prime contract, the work of a subcontractor covered by that acceptance is deemed to be satisfactorily completed.

c. When at least 95% of the work has been completed to the satisfaction of the RPR, the RPR shall, at the Owner's discretion and with the consent of the surety, prepare estimates of both the contract value and the cost of the remaining work to be done. The Owner may retain an amount not less than twice the contract value or estimated cost, whichever is greater, of the work remaining to be done. The

Ontario International Airport Authority (OIAA) Page 8 of 24 49 CFR Part 26 Program remainder, less all previous payments and deductions, will then be certified for payment to the Contractor."

Section 26.31 Directory

OIAA is a non-certifying member of the California Unified Certification Program (UCP).

The UCP maintains a directory identifying all firms eligible to participate as DBEs, which contains all the elements required by §26.31 .

Section 26.33 Over-concentration

OIAA has not identified that over-concentration exists in the types of work that DB Es perform.

Section 26.35 Business Development Programs

OIAA has a DBE Business Development Program (BDP) to assist firms in gaining the ability to compete successfully in the marketplace outside the DBE Program. The OIAA actively participates with professional associations, industry organizations, and chambers of commerce. Project contracting opportunities are listed on the Airport's website as well as other sites that can be found on the world wide web. Additionally, the OIAA is a non-certifying member of the California Unified Certification Program which also provides opportunities for business development. Interested persons can find more information through the OIAA website https://www.flyontario.com.

Section 26.37 Monitoring Responsibilities

OIAA implements and carries out appropriate mechanisms to ensure compliance with 49 CFR Part 26 program requirements by all program participants, including prompt payment, and describes and set forth these mechanisms in OIAA's DBE program.

OIAA actively monitors participation by maintaining a running tally of actual DBE attainments (e.g., payments actually made to DBE firms), including a means of comparing these attainments to commitments.

Monitoring Payments to DBEs and Non-DBEs OIAA undertakes ongoing monitoring of prime payments to subcontractors over the course of any covered contract. Such monitoring activities will be accomplished through the following method(s):

Ontario International Airport Authority (OIAA} Page 9 of 24 49 CFR Part 26 Program

1. Announcing prime contractor payments at regularly scheduled progress meetings.

2. Posting payments to a website, database, or other place accessible to subcontractors.

OIAA requires prime contractors to maintain records and documents of payments to subcontractors, including DB Es, for a minimum of three (3) years unless otherwise provided by applicable record retention requirements for the OIAA's financial assistance agreement, whichever is longer. These records will be made available for inspection upon request by any authorized representative of OIAA or DOT. This reporting requirement extends to all subcontractors, both DBE and non-DBE.

• OIAA proactively reviews contract payments to subcontractors including DBEs on a quarterly basis. Payment reviews will evaluate whether the actual amount paid to DBE subcontractors is equivalent to the amounts reported to OIAA by the prime contractor.

Prompt Payment Dispute Resolution OIAA will take the following steps to resolve disputes as to whether work has been satisfactorily completed for purposes of §26.29.

Meetings will be conducted including OIAA, prime, subconsultant, and the resident project representative (RPR) and/or project manager (PM) presence as appropriate. The purpose of meeting will be to discuss satisfactory completion requirements and dispute resolution.

OIAA has established, as part of its DBE program, the following mechanism(s) to ensure prompt payment and return of retainage:

(1) When the work on which the claim for payment and/or retainage release is based has been completed, the Subcontractor shall, within 10 calendar days after not being paid as per the prompt payment clause listed in the Contract, submit a written claim to the Resident Project Representative (RPR) or Project Manager (PM) who will present it to OIAA for consideration in accordance with contract requirements or local laws I ordinances. The OIAA will immediately contact the Prime and require their compliance with Contract specifications. The matter will be monitored until payment has been satisfied.

Ontario International Airport Authority (OIAA) Page 10 of 24 49 CFR Part 26 Program

Prompt Payment Complaints Complaints by subcontractors regarding the prompt payment requirements are handled according to the following procedure:

1. The affected contractor shall notify the Project Manager (PM) and/or Resident Representative (RPR) in writing within 10 days of non-payment. The PM or RPR shall contact the prime to inquire and resolve the issue.

2. If the affected contractor is not satisfied within 30 days of non-payment they shall notify the DBELO in writing clearly defining the issue including the dates of non payment.

3. If the affected contractor is not satisfied within 90 days of the complaint, they shall notify the FAA Office of Civil Rights.

Pursuant to Sec. 157 of the FAA Reauthorization Act of 2018, all complaints related to prompt payment will be reported in a format acceptable to the FAA, including the nature and origin of the complaint and its resolution.

Enforcement Actions for Noncompliance of Participants OIAA will provide appropriate means to enforce the requirements of §26.29. These means include:

1. We will bring to the attention of the Department of Transportation (DOT) any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in 26.107.

2. Advise subcontractors of the availability of the payment and performance bond to assure payment for labor and materials in the execution of the work provided for in the contract

3. Issue a stop-work order until payments are released to subcontractors, specifying in the contract that such orders constitute unauthorized delays for the purposes of calculating liquidated damages if milestones are not met

4. Other penalties for failure to comply, up to and including contract termination.

OIAA will actively implement the enforcement actions detailed above.

Monitoring Contracts and Work Sites OIAA reviews contracting records and engages in active monitoring of work sites to ensure that work committed to DBEs at contract award or subsequently (e.g., as the result of modification to the contract) is actually performed by the DBEs to which the

Ontario International Airport Authority (OIAA) Page 11 of 24 49 CFR Part 26 Program work was committed. Work site monitoring is performed by DBELO and with the assistance of the Project Consultant. Contracting records are reviewed by DBELO and with the assistance of the Project Consultant. OIAA will maintain written certification that contracting records have been reviewed and work sites have been monitored for this purpose.

Section 26.39 Fostering small business participation

OIAA has created a Small Business element to structure contracting requirements to facilitate competition by small business concerns, taking all reasonable steps to eliminate obstacles to their participation, including unnecessary and unjustified bundling of contract requirements that may preclude small business participation in procurements as prime contractors or subcontractors.

The small business element is incorporated as Attachment 10 to this DBE Program.

The program elements will be actively implemented to foster small business participation.

SUBPART C - GOALS, GOOD FAITH EFFORTS. AND COUNTING

Section 26.43 Set-asides or Quotas

OIAA does not use quotas in any way in the administration of this DBE program.

Section 26.45 Overall Goals

OIAA will establish an overall DBE goal covering a three-year federal fiscal year period if it anticipates awarding DOT-funded prime contracts the cumulative total value of which exceeds $250,000 in DOT funds during any one or more of the reporting fiscal years within the three-year goal period. In accordance with §26.45(f), OIAA will submit its Overall Three-year DBE Goal to Federal Aviation Administration by August 1st of the year in which the goal is due, as required by the schedule established by and posted to the website of Federal Aviation Administration (FAA):

Ontario International Airport Authority (OIAA) Page 12 of 24 49 CFR Part 26 Program

DBE and ACDBE Reporting Requirements For Airport Grant Recipients

49 CFR Part 26 All Airports -- 3-Year Overall DBE Goals DUE: ~ UGUST l!

Airport Type Region Due Period Covered Next Goal Due

2019 Large and Medium Hub Primary All 2016 2017 /2018/2019 (2020/2021/2022)

The DBE goals will be established in accordance with the 2-step process as specified in 49 CFR Part 26.45. If OIAA does not anticipate awarding prime contracts the cumulative total value of which exceeds $250,000 in DOT funds during any of the years within the three-year reporting period, an overall goal will not be developed. However, this DBE Program will remain in effect and OIAA will seek to fulfill the objectives outlined in 49 CFR Part 26.1.

Step 1. The first step is to determine a base figure for the relative availability of DBEs in the market area. OIAA will use a Bidders List, a Disparity Study, the goal of another DOT recipient, DBE Directory information and Census Bureau Data, and other alternative methods that comply with §26.45 as a method to determine the base figure.

OIAA understands that the exclusive use of a list of prequalified contractors or plan holders, or a bidders list that does not comply with the requirements of 49 CFR Part 26.45(c)(2), is not an acceptable alternative means of determining the availability of DBEs.

Step 2. The second step is to adjust, if necessary, the "base figure" percentage from Step 1 so that it reflects as accurately as possible the DBE participation the recipient would expect in the absence of discrimination. Adjustments may be made based on past participation, information from a disparity study (to the extent it is not already accounted for in the base goal), and/or information about barriers to entry to past competitiveness of DB Es on contracts. OIAA will examine all of the evidence available in its jurisdiction to determine what adjustment, if any, is needed. If the evidence does not suggest an adjustment is necessary, then no adjustment shall be made.

Any methodology selected will be based on demonstrable evidence of local market conditions and be designed to ultimately attain a goal that is rationally related to the relative availability of DBEs in the OIAA market.

Ontario International Airport Authority (OIAA) Page 13 of 24 49 CFR Part 26 Program

In establishing the overall goal, OIAA will provide for consultation and publication. This includes consultation with minority, women's and general contractor groups, community organizations, and other officials or organizations which could be expected to have information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and the efforts by OIAA to establish a level playing field for the participation of DBEs. The consultation will include a scheduled, direct, interactive exchange (e.g., a face-to-face meeting, video conference, teleconference) with as many interested stakeholders as possible focused on obtaining information relevant to the goal setting process, and it will occur before OIAA is required to submit the goal methodology to the operating administration for review pursuant to §26.45(f). The goal submission will document the consultation process in which OIAA engaged. Notwithstanding paragraph (f)(4) of §26.45, the proposed goal will not be implemented until this requirement is met.

In addition to the consultation described above, OIAA will publish a notice announcing the proposed overall goal before submission to the Federal Aviation Administration on August 1st. The notice will be posted on [Recipient's] official internet web site and may be posted in other sources (e.g., minority-focused media, trade association publications). If the proposed goal changes following review by Federal Aviation Administration, the revised goal will be posted on the official internet web site.

The public will also be informed that the proposed overall goal and its rationale are available for inspection during normal business hours at the principal office of OIAA.

This notice will provide that the OIAA and Federal Aviation Administration will accept comments on the goals for 30 days from the date of the notice. Notice of the comment period will include the addresses to which comments may be sent (including offices and websites) where the proposal may be reviewed. The public comment period will not extend the August 1st deadline.

The Overall Three-Year DBE Goal submission to Federal Aviation Administration will include a summary of information and comments received, if any, during this public participation process and OIAA responses.

OIAA will begin using the overall goal on October 1 of the relevant period, unless other instructions from Federal Aviation Administration have been received.

Project Goals

If permitted or required by the Federal Aviation Administration Administrator, an overall goal may be expressed as a percentage of funds for a particular grant or project or group of grants and/or projects, including entire projects. Like other overall goals, a project goal may be adjusted to reflect changed circumstances, with the concurrence of the appropriate operating administration. A project goal is an overall goal, and must meet all the substantive and procedural requirements of this section pertaining to overall

Ontario International Airport Authority (OIAA) Page 14 of 24 49 CFR Part 26 Program goals. A project goal covers the entire length of the project to which it applies. The project goal will include a projection of the DBE participation anticipated to be obtained during each fiscal year covered by the project goal. The funds for the project to which the project goal pertains are separated from the base from which the regular overall goal, applicable to contracts not part of the project covered by a project goal, is calculated.

If a goal is established on a project basis, the goal will be used by the time of the first solicitation for a DOT-assisted contract for the project.

Prior Operating Administration Concurrence

OIAA understands that prior Federal Aviation Administration concurrence with the overall goal is not required. However, if the Federal Aviation Administration review suggests that the overall goal has not been correctly calculated or that the method employed by OIAA for calculating goals is inadequate, Federal Aviation Administration may, after consulting with OIAA, adjust the overall goal or require that the goal be adjusted by OIAA. The adjusted overall goal is binding. In evaluating the adequacy or soundness of the methodology used to derive the overall goal, the U.S. DOT operating administration will be guided by the goal setting principles and best practices identified by the Department in guidance issued pursuant to §26.9.

A description of the methodology to calculate the overall goal and the goal calculations can be found in Attachment 5 to this program.

Section 26.47 Failure to meet overall goals

OIAA cannot be penalized, or treated by the Department as being in noncompliance with Part 26, because DBE participation falls short of an overall goal, unless OIAA fails to administer its DBE program in good faith.

OIAA understands that to be considered to be in compliance with this part, an approved DBE Program and overall DBE goal, if applicable, must be maintained, and this DBE Program must be administered in good faith.

OIAA understands that if the awards and commitments shown on the Uniform Report of Awards or Commitments and Payments at the end of any fiscal year are less than the overall goal applicable to that fiscal year, the following actions must be taken in order to be regarded by the Department as implementing this DBE Program in good faith:

(1) Analyze in detail the reasons for the difference between the overall goal and the awards and commitments in that fiscal year;

Ontario International Airport Authority (OIAA) Page 15 of 24 49 CFR Part 26 Program

(2) Establish specific steps and milestones to correct the problems identified in the analysis to enable the goal for the new fiscal year to be fully met;

Section 26.51 Means Recipients Use to Meet Overall Goals

Breakout of Estimated Race-Neutral & Race-Conscious Participation

OIAA will meet the maximum feasible portion of its overall goal by using race-neutral means of facilitating race-neutral DBE participation. 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.

Race-neutral means include, but are not limited to the following:

(1) Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate participation by DBEs and other small businesses and by making contracts more accessible to small businesses, by means such as those provided under §26.39.

(2) Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surety costs from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing);

(3) Providing technical assistance and other services;

(4) Carrying out information and communications programs on contracting procedures and specific contract opportunities (e.g., ensuring the inclusion of DBEs, and other small businesses, on recipient mailing lists for bidders; ensuring the dissemination to bidders on prime contracts of lists of potential subcontractors; provision of information in languages other than English, where appropriate);

(5) Implementing a supportive services program to develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses;(6) Providing services to help DBEs, and other small businesses, improve long-term development, increase opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve eventual self-sufficiency;

Ontario International Airport Authority (OIAA) Page 16 of 24 49 CFR Part 26 Program

(7) Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has historically been low;

(8) Ensuring distribution of the DBE directory, through print and electronic means, to the widest feasible universe of potential prime contractors; and

(9) Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media.

The breakout of estimated race-neutral and race-conscious participation can be found in Attachment 5 to this program.

The OIAA will arrange solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate participation by DBEs and other small businesses and by making contracts more accessible to small businesses, by means such as those provided under §26.39.

Contract Goals

If the approved projection under paragraph (c) of §26.51 estimates that the entire overall goal for a given year can be met through race-neutral means, contract goals will not be set during that year, unless the use of contract goals becomes necessary in order meet the overall goal.

Contract goals will be established only on those DOT-assisted contracts that have subcontracting possibilities. A contract goal need not be established on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability of DBEs to perform the particular type of work).

Contract goals will be expressed as a percentage of Federal share of a DOT-assisted contract.

Section 26.53

Contract Goals

Good Faith Efforts Procedures in Situations where there are

Demonstration of good faith efforts (pre-award)

In cases where a contract goal has been established, the contract in question will only be awarded to a bidder/offerer that has made good faith efforts to meet the contract goal. The bidder/offerer can demonstrate that it has made good faith efforts by either meeting the contract goal or documenting that it has made adequate good faith efforts to do so. Examples of good faith efforts are found in Appendix A to Part 26.

Ontario International Airport Authority (OIAA) Page 17 of 24 49 CFR Part 26 Program https://www.ecfr.gov/current/title-49/subtitle-A/part-26/appendix-Appendix%20A%20to%20Part%2026

DBE LO is responsible for determining whether a bidder/offerer who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive

OIAA will ensure that all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts before committing to the performance of the contract by the bidder/offerer.

In all solicitations for DOT-assisted contracts for which a contract goal has been established , the following information will be required of every bidder/offeror:

(1) Award of the contract will be conditioned on meeting the requirements of this section; and

(2) All bidders or offerers will be required to submit the following information to the recipient, at the time provided in paragraph (3) of this section:

(i) The names and addresses of DBE firms that will participate in the contract; and

(ii) A description of the work that each DBE will perform. To count toward meeting a goal, each DBE firm must be certified in a NAICS code applicable to the kind of work the firm would perform on the contract; and

(iii) The dollar amount of the participation of each DBE firm participating; and

(iv) Written documentation of the bidder/offeror's commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; and

(v) Written confirmation from each listed DBE firm that it is participating in the contract in the kind and amount of work provided in the prime contractor's commitment; and

(vi) If the contract goal is not met, evidence of good faith efforts (as elaborated in Appendix A of Part 26). The documentation of good faith efforts must include copies of each DBE and non-DBE subcontractor quote submitted to the bidder when a non-DBE subcontractor was selected over a DBE for work on the contract; and

(3) The bidder/offerer will be required to present the information stipulated in paragraph (2) of this section.

Administrative reconsideration

Within 10 days of being informed by OIAA that it is not responsive because it has not documented adequate good faith efforts, a bidder/offerer may request administrative reconsideration. Bidder/offerers should make this request in writing to the following reconsideration official:

Keith Owens, PE Director of Program Management Ontario International Airport Authority 1923 E Avion Avenue

Ontario International Airport Authority (OIAA) Page 18 of 24 49 CFR Part 26 Program

OIAA 49 CFR Part 26

Ontario, CA 91761 909/ 544-5300 KOwens@flyontario.com

FAA Version 2020-10-21

The reconsideration official will not have played any role in the original determination that the bidder/offerer did not document sufficient good faith efforts. The reconsideration official is not someone who reports to the DBELO who made the original determination.

The reconsideration official is well-acquainted with the requirements outlined in Appendix A of 49 CFR Part 26.

As part of this reconsideration, the bidder/offerer will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The bidder/offerer will have the opportunity to meet in person with the reconsideration official to discuss the issue of whether the goal was met or the bidder/offerer made adequate good faith efforts to do. The bidder/offerer will be sent a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation.

Good Faith Efforts procedural requirements (post-solicitation)

The awarded contractor will be required to make available upon request a copy of all DBE subcontracts. The contractor shall ensure that all subcontracts or agreements with DBEs to supply labor or materials include all required contract provisions and mandate that the subcontractor and all lower tier subcontractors perform in accordance with the provisions of Part 26.

Prime contractors will be prohibited from terminating a DBE subcontractor listed in response to a covered solicitation (or an approved substitute DBE firm) without the prior written consent of OIAA. This includes, but is not limited to, instances in which a prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non-DBE firm, or another DBE firm.

Such written consent will be provided only if OIAA agrees, for reasons stated in the concurrence document, that the prime contractor has good cause to terminate the DBE firm. For purposes of this paragraph, good cause includes the following circumstances:

(1) The listed DBE subcontractor fails or refuses to execute a written contract;

(2) The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with normal industry standards. Provided however, that good cause does not exist if the failure or refusal of the DBE

Ontario International Airport Authority (OIM) Page 19 of 24 49 CFR Part 26 Program subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime contractor;

(3) The listed DBE subcontractor fails or refuses to meet the prime contractor's reasonable, non-discriminatory bond requirements.

(4) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;

(5) The listed DBE subcontractor is ineligible to work on public works projects because of suspension and debarment proceedings pursuant to 2 CFR Parts 180, 215 and 1,200 or applicable state law;

(6) OIM determined that the listed DBE subcontractor is not a responsible contractor;

(7) The listed DBE subcontractor voluntarily withdraws from the project and provides OIM written notice of its withdrawal;

(8) The listed DBE is ineligible to receive DBE credit for the type of work required;

(9) A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its work on the contract;

(10) Other documented good cause that OIAA has determined compels the termination of the DBE subcontractor. Provided, that good cause does not exist if the prime contractor seeks to terminate a DBE it relied upon to obtain the contract so that the prime contractor can self-perform the work for which the DBE contractor was engaged or so that the prime contractor can substitute another DBE or non-DBE contractor after contract award.

Before transmitting to OIAA a request to terminate and/or substitute a DBE subcontractor, the prime contractor must give notice in writing to the DBE subcontractor, with a copy to OIM, of its intent to request to terminate and/or substitute the DBE, and the reason(s) for the request.

The prime contractor must give the DBE five days to respond to the prime contractor's notice and advise OIAA and the prime contractor of the reasons, if any, why the DBE objects to the proposed termination of its subcontract and why the prime contractor's action should not be approved. If required in a particular case as a matter of public necessity (e.g., safety), a response period shorter than five days may be provided.

In addition to post-award terminations, the provisions of this section apply to pre-award deletions of or substitutions for DBE firms put forward by offerers in negotiated procurements.

Each prime contract will include a provision stating:

The contractor shall utilize the specific DBEs listed in the contractor's [bid/solicitation] response to perform the work and supply the materials for which each is listed unless the contractor obtains prior written consent of OIM as

Ontario International Airport Authority (OIAA) Page 20 of 24 49 CFR Part 26 Program provided in 49 CFR Part 26, §26.53(f). Unless such consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE.

OIAA will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the contract as the DBE that was terminated, to the extent needed to meet the contract goal that was established for the procurement. The good faith efforts shall be documented by the contractor. If OIAA requests documentation from the contractor under this provision, the contractor shall submit the documentation within 7 days, which may be extended for an additional 7 days, if necessary, at the request of the contractor. OIAA shall provide a written determination to the contractor stating whether or not good faith efforts have been demonstrated.

If the contractor fails or refuses to comply in the time specified, the contracting office/representative of OIAA may issue an order stopping all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, the contracting officer may issue a termination for default proceeding.

Section 26.55 Counting DBE Participation

DBE participation will be counted toward overall and contract goals as provided in §26.55. The participation of a DBE subcontractor will not be counted toward a contractor's final compliance with its DBE obligations on a contract until the amount being counted has actually been paid to the DBE.

In the case of post-award substitutions or additions, if a firm is not currently certified as a DBE in accordance with the standards of subpart D of this part at the time of the execution of the contract, the firm's participation will not be counted toward any DBE goals, except as provided for in §26.870).

Pursuant to Sec. 150 of the FAA Reauthorization Act of 2018, firms that exceed the business size standard in§ 26.65(b) will remain eligible for DBE certification and credit on FAA-funded projects as long as they do not exceed the small business size standard, as adjusted by the United States Small Business Administration, for the NAICS code(s) in which they are certified.

SUBPART D - CERTIFICATION STANDARDS

Section 26.61 - 26.73 Certification Process

Ontario International Airport Authority (OIAA) Page 21 of 24 49 CFR Part 26 Program

OIAA is a non-certifying member of the California Unified Certification Program (UCP).

California UCP will use the certification standards of Subpart D of Part 26 to determine the eligibility of firms to participate as DBEs in DOT-assisted contracts. To be certified as a DBE, a firm must meet all certification eligibility standards. Certifying California UCP members make all certification decisions based on the facts as a whole.

For information about the certification process or to apply for certification, firms should contact:

Janice Salais Certification Officer California Department of Transportation, Civil Rights-MS 79 1823 14th Street Sacramento, California 95811 916/ 324-0990 Janice. salais@dot.ca. gov

Or https:llwww.transportation. gov/sites/dot. qovlfiles/docs/mission/civil rightsldisadvantaged-business-enterprise/276536/dbe-state-certifyinq agencies-list-8312017.pdf

The Uniform Certification Application form and documentation requirements are found in Attachment 8 to this program.

SUBPART E - CERTIFICATION PROCEDURES

Section 26.81 Unified Certification Programs

OIAA is the member of a Unified Certification Program (UCP) administered by Caltrans.

The UCP will meet all of the requirements of this section. Declaration form included in Attachment 9.

SUBPART F - COMPLIANCE AND ENFORCEMENT

Section 26.101 Compliance Procedures Applicable to OIAA

OIAA understands that if it fails to comply with any requirement of this part, OIAA may be subject to formal enforcement action under §26.103 or §26.105 or appropriate program sanctions by the concerned operating administration, such as the suspension

Ontario International Airport Authority (OIM) Page 22 of 24 49 CFR Part 26 Program or termination of Federal funds, or refusal to approve projects, grants or contracts until deficiencies are remedied. Program sanctions may include, in the case of the FHWA program, actions provided for under 23 CFR 1.36; in the case of the FAA program, actions consistent with 49 U.S.C.