DBE_Program_Requirements.docx

IFB

DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM REQUIREMENTS

(Revised on 03/06/19)

1.0 DBE Goal

To assist Bidders in ascertaining DBE availability based on the specific items of work associated with this procurement, the Authority has determined that DBEs are ready, willing and able to compete for subcontracting opportunities on this project. The DBE Goal for this contract is XX%. (GOAL)

2.0 DBE Policy and Applicability

In accordance with federal financial assistance agreements with the U.S. Department of Transportation (U.S. DOT), the Orange County Transportation Authority (Authority) has adopted a Disadvantaged Business Enterprise (“DBE”) Policy and Program, in conformance with Title 49 CFR part 26, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs.” The contract is subject to the following stipulated regulations. Pursuant to the intent of these Regulations, it is the policy of the Authority to fulfill the spirit and intent of the DBE Program regulations published under U.S. DOT Title 49 CFR, Part 26, by ensuring that DBEs have an equitable opportunity to compete for and participate in Authority’s U.S. DOT-assisted contracts and subcontracts. The Authority is firmly committed to its DBE Program objectives, which are designed to:

2.1 Ensure non-discrimination in the award and administration of Authority’s DOT-assisted contracts.

2.2 Create a level playing field on which DBEs can fairly compete for the Authority’s DOT-assisted contracts.

2.3 Ensure that the DBE Program and Overall Goal are narrowly tailored in accordance with applicable law.

2.4 Ensure that only firms that meet 49 CFR part 26 eligibility standards are permitted to participate as DBEs in the Authority’s DBE program.

2.5 Help remove barriers which impede the participation of DBEs in the Authority’s U.S. DOT-assisted contracts.

2.6 Promote the use of DBEs in all types of U.S. DOT-assisted agreements and procurement activities conducted by the Authority.

2.7 Provide training and other assistance through our resource partners to address capital, bonding and insurance needs.

2.8 Assist in the development of DBE firms that can compete successfully in the marketplace outside the DBE Program; and

2.9 Establish and provide opportunities for DBEs by providing flexibility in the implementation of the Authority’s DBE Program.

Bidders shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts.

Any terms used in this section that are defined in 49 CFR part 26, or elsewhere in the Regulations, shall have the meaning set forth in the Regulations. In the event of any conflicts or inconsistencies between the Regulations and the Authority’s DBE Program with respect to U.S. DOT-assisted contracts, the Regulations shall prevail.

Race-Neutral/Race-Conscious DBE Program Measures The Authority will utilize both race-neutral and race-conscious means to meet its Overall DBE Program goals.

Race-neutral measures will include but are not limited to conducting outreach, training, providing other resource assistance, and assessing bid delivery schedules to ensure that DBEs interested in bidding for U.S. DOT-assisted solicitations are provided accurate and adequate information about the plans, specifications, and requirements of the solicitation in a timely manner to assist them in responding to the bid. Additional Authority race-neutral measures include ensuring that DBEs and other small business are afforded ample opportunity to participate in the Authority’s U.S. DOT-assisted solicitations by unbundling large contracts to make them more accessible to small businesses and requiring or encouraging prime contractors to subcontract portions of work that they might otherwise perform with their own forces. Race-neutral participation also includes any time a DBE obtains a Prime Contract through customary competitive procurement procedures or is awarded a subcontract on a prime contract that does not carry a DBE goal.

In conjunction with the race-neutral measures listed above, the Authority will implement race-conscious measures through the use of contract goals and good faith efforts. When a contract-specific goal is assigned to a project, bidders must demonstrate responsiveness by committing to meet the DBE goal or documenting a bona fide good faith effort to do so, as a condition of award. Contract-specific goals are specifically targeted at DBEs certified through the California Unified Certification Program (“CUCP”).

3.0 Definitions

The following definitions apply to the terms as used in these provisions:

3.1 "Disadvantaged Business Enterprise (“DBE”)" means a for-profit small business concern: (a) which is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such individuals; and (b) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.

3.2 "Small Business Concern" means a small business as defined pursuant to Section 3 of the Small Business Act and Small Business Administration (SBA) regulations implementing it (13 CFR Part 121) that also does not exceed the cap on average annual gross receipts specified in §26.65(b).

3.3 "Socially and Economically Disadvantaged Individuals" means 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 identity as a member of a group and without regard to his or her individual qualities. The social disadvantage must stem from circumstances beyond the individual’s control:

3.3.1 Any individual who a recipient finds to be a socially and economically disadvantaged individual on a case-by-case basis. An individual must demonstrate that he or she has held himself or herself out, as a member of a designated group if you require it.

3.3.2 Any individual in the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged:

3.3.2.1 "Black Americans," which includes persons having origins in any of the Black racial groups of Africa;

3.3.2.2 "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

3.3.2.3 "Native Americans," which includes persons who are enrolled members of a federally or State recognized Indian tribe, Alaska Natives, or Native Hawaiians;

3.3.2.4 "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), Republic of the Northern Marianas Islands, Samoa, Macao, Fiji, Tonga, Kirbati, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong;

3.3.2.5 "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, and Bangladesh, Bhutan, the Maldives Islands, Nepal or Shri Lanka;

3.3.2.6 Women; and

3.3.2.7 Any additional groups whose members are designated as socially and economically disadvantaged by the SBA, at such time as the SBA designation becomes effective.

3.3.3 Being born in a particular country does not, standing alone, mean that a person is necessarily a member of one of the groups listed in this definition.

3.4 "Owned and Controlled" means a business: (a) which is at least 51 percent owned by one or more "Socially and Economically Disadvantaged Individuals," or, in the case of a publicly-owned business, at least 51 percent of the stock of which is owned by one or more "Socially and Economically Disadvantaged Individuals;" and (b) whose management and daily business operations are controlled by one or more such individuals.

3.5 "Manufacturer" means a firm that operates or maintains a factory or establishment that produces on the premises the materials or supplies obtained by the contractor.

3.6 "Regular Dealer" means 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 to the public in the usual course of business. The firm must engage in, as its principal business, and in its own name, the purchase and sale of the product in question. A regular dealer in such bulk items as steel, cement, gravel, stone, and petroleum products need not keep such products in stock if it owns or operates distribution equipment.

3.7 “Fraud” includes a firm that does not meet the eligibility criteria of being a certified DBE and that attempts to participate in a U.S. DOT-assisted program as a DBE on the basis of false, fraudulent, or deceitful statements or representations, or under circumstances indicating a serious lack of business integrity or honesty. The Authority may take enforcement action under 49 CFR part 31, Program Fraud and Civil Remedies, against any participant in the DBE program whose conduct is subject to such action under 49 CFR part 31. The Authority may refer cases of identified fraud to the Department of Justice, for prosecution under 18 U.S.C. 1001, or any other applicable provisions of law. Any person who makes a false or fraudulent statement in connection with participation of a DBE in any U.S. DOT-assisted program or otherwise, violates applicable Federal statutes.

3.8 "Other Socially and Economically Disadvantaged Individuals" means those individuals who are citizens of the United States (or lawfully admitted permanent residents), and who, on a case-by-case basis, are determined by the Small Business Administration or the Authority to meet the social and economic disadvantage criteria described below.

3.8.1 Social Disadvantage

3.8.1.1 The individual's social disadvantage must stem from his/her color, national origin, gender, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar cause beyond the individual's control.

3.8.1.2 The individual must demonstrate that he/she has personally suffered social disadvantage.

3.8.1.3 The individual's social disadvantage must be rooted in treatment which he/she has experienced in American society, not in other countries.

3.8.1.4 The individual's social disadvantage must be chronic, longstanding and substantial; not fleeting or insignificant.

3.8.1.5 The individual's social disadvantage must have negatively affected his/her entry into and/or advancement in the business world.

3.8.1.6 A determination of social disadvantage must be made before proceeding to make a determination of economic disadvantage.

3.8.2 Economic Disadvantage

3.8.2.1 The individual's ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities, as compared to others in the same line of business and competitive market area that are not socially disadvantaged.

3.8.2.2 The following criteria will be considered when determining the degree of diminished credit and capital opportunities of a person claiming social and economic disadvantage:

With respect to the individual:

• availability of financing

• bonding capability

• availability of outside equity capital

• available markets

With respect to the individual and the business concern:

• personal and business assets

• personal and business net worth

• personal and business income and profits

4.0 DBE Bid Submission Requirements

Bidder shall complete and submit the following DBE Exhibits (forms) with their bid:

· DBE Participation Commitment Form

· Written Confirmation (required from each proposed DBE firm listed on the DBE Participation Commitment Form)

· Bidders List

Bidder must complete and submit the following DBE Exhibits (forms) to the Authority no later than 4:00 p.m. on the 2nd business day after the bid due date:

· DBE Letter of Acknowledgement and Commitment (required from each proposed DBE firm listed on the DBE Participation Commitment Form)

· DBE Information – Good Faith Efforts (if sufficient participation to meet the DBE goal has not been proposed on the DBE Participation Commitment Form)

4.1 “DBE Participation Commitment Form” (Exhibit C-1) required at time of Bid. The Bidder is to provide the following information for each DBE that will participate in the contract:

4.1.1 The complete name and address of each DBE who will participate in the contract;

4.1.2 Valid DBE Certification ID to confirm eligibility status through the CUCP, in conformance with 49 CFR Part 26;

4.1.3 A description of the work that each DBE will perform or provide;

4.1.4 The dollar amount of the work to be performed or provided by the DBE;

4.1.5 The bid item (#) associated with the proposed scope(s) of work;

4.1.6 The dollar amount of the work eligible to be credited for each DBE towards the DBE goal (should not include lower-tier participation and should account for the type of work to be performed);

4.1.7 The bidder shall also submit, for each DBE to perform under this Agreement, a DBE Letter of Acknowledgement and Commitment (Exhibit C-2) form signed and dated from each DBE listed, acknowledging that the DBE is participating in the contract for the specified dollar value and scope of work listed on the DBE Participation Commitment Form. A signed quote or bid from the DBE firm can be used in lieu of the written confirmation; however, the dollar amount and scope(s) in the quote/bid, and the amount and scope reflected on the DBE Participation Commitment Form must match identically.

4.2 “DBE Information - Good Faith Efforts” (Exhibit C-3)

To be a responsible and responsive bidder, the bidder must make good faith efforts to meet the goal. The Bidder can meet this requirement in two ways: (i) the bidder can meet the goal by documenting commitments for participation by DBE firms sufficient for this purpose; or (ii) the bidder can demonstrate that he/she took all necessary and reasonable steps to achieve the DBE goal, or other requirement of this part, which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful.

If the Bidder did not meet or obtain enough DBE participation to meet the DBE goal, the bidder must complete and submit the “DBE Information – Good Faith Efforts,” form demonstrating that the Bidder made adequate good faith efforts to meet the goal.

If the bidder has met the DBE goal based on the participation of DBEs listed on the bidder’s “DBE Participation Commitment Form,” it is at the bidder’s discretion (i.e. this is not mandatory) to submit “DBE Information – Good Faith Efforts,” form However, the submission of good faith efforts documentation can protect the bidder’s eligibility for award of the contract if the Authority determines that the bidder failed to meet the goal for various reasons (e.g., a DBE firm was not certified at bid submission or the bidder made a mathematical error). Submittal of only the “DBE Information – Good Faith Efforts,” form may not provide sufficient documentation to demonstrate that adequate good faith efforts were made; therefore, the bidder is encouraged to attach additional information and supporting documents as necessary.

Good Faith Efforts documentation must be submitted to the Authority no later than 4:00 p.m. on the 2nd business day after the bid due date.

For further guidance, refer to instructions on Exhibit C-3 “DBE Information – Good Faith Efforts” form and the United States Department of Transportation’s (“U.S. DOT”) DBE Program, Appendix A of Title 49 CFR Part 26 “Guidance Concerning Good Faith Efforts,” and the DBE Section of the Authority’s Pre-Bid PowerPoint.

4.3 “Bidders List” (Exhibit C-4)

The Authority is required by Regulations to create and maintain a “Bidders List,” of all firms bidding or quoting on the Authority’s U.S. DOT-assisted contracts for use in calculating the Authority’s DBE goal(s). Bidders are required to complete and submit the requested information listed on the “Bidders List” form, for all firms (DBE[s] and Non-DBE[s]) who submitted a bid, proposal or quote, including firms who were contracted by the prime bidder.

The “Bidders List” must be submitted to the Authority at time of bid.