DISADVANTAGED_BUSINESS_ENTERPRISE_-_NETUTRAL_(DBE-N)_PROGRAM_.pdf

Disadvantaged Business Enterprise - Neutral (DBE-N) Program Professional Services Contract Clause - Negotiated

01/2026 G

The City of Phoenix has shown a historical commitment to advancing the economic growth of small businesses through its Small Business Program.

The City of Phoenix Small Program is managed and administered by the City’s Equal Opportunity Department. Through a coordinated effort among several city departments and partner agencies, the Program provides certification and opportunities in construction, purchasing, management and technical assistance.

SECTION I. DEFINITIONS

Agency means the City of Phoenix for the purpose of this Contract

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.

Bidders List means a list created by the submitter, consisting of information about all DSMB and non-DSMB firms that bid or quote on the project. The list should include the firm’s name; address; firm’s Small Business; 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.

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: https://phoenix.gob2g.com.

Commercially Useful Function (CUF) means that a Small Business is responsible for executing the work of the contract and is carrying out its responsibilities by performing, managing, and supervising the work involved. To perform a commercially useful function, the Small Business must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. 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.

Contract means a legally binding agreement that creates obligation between a seller to furnish supplies or services (including construction and professional services) and the buyer to pay for them.

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

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

Disadvantaged Business Enterprise (DBE) means a for-profit Small Business Concern, that has at least 51% owned and controlled by individuals or individual who are socially and economically disadvantaged, that successfully completed the DBE certification process and have been granted DBE status by a UCP member pursuant to the criteria contained in 49 CFR Part 26. A directory of certified DBE firms is located at https://utracs.azdot.gov/Search.

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.

Outreach Efforts means the diligent and good faith efforts demonstrated by a Submitter to solicit participation from interested and qualified Small Businesses.

Submitter 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 Submitter’s selection decisions relating to Small Business participants.

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

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

Small Business Concern (SBC) means, with respect to firms 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 § 26.65(b). “Small Business” and “Small Business Concern” are used interchangeably in this Contract Clause.

Small Business Enterprise (SBE) means a for-profit Small Business that has been determined to meet the requirements for SBE certification with the City of Phoenix and whose certification is in force at the time of the award of business by the Agency. A directory of currently City of Phoenix certified SBE firms is located at https://phoenix.gob2g.com.

Small Business Participation Plan (SBPP) details of the types of subcontracting work or services firms (with projected dollar amount) that the submitter 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 a firm that holds a contract/agreement between a firm and a lower-tier contractor, including a vendor under a purchase order.

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

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

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

SECTION II. GENERAL REQUIREMENTS

A. Applicable Federal Regulations

This Contract is subject to DBE-N requirements issued by USDOT in 49 CFR Part 26. 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.

B. Small Business Participation

The Agency will track the participation of all small businesses throughout the life of this contract. The Agency will count SB 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 Bidder/Contractor shall provide a Small Business Participation Plan (SBPP) on an annual basis by the anniversary date of contract execution.

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 proposer will solicit Small Businesses to perform. The SBPP must include an estimated time frame in which actual small business subcontracts would be executed.

D. Civil Rights Assurances.

As a recipient of USDOT funding, the Agency has agreed to abide by the assurances found in 49 CFR Parts 26. Each Contract signed by the Agency and the Contractor, and each Subcontract signed by the Contractor and any Subcontractor, must include the following assurance verbatim:

a. “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.

b. The contractor, sub recipient or Subcontractor 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.”

E. Nondiscrimination/Equal Opportunity

The Agency will not 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 Parts 26.

In administering its DBE-N Program, the Agency 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-N Program with respect to individuals of a particular race, color, national origin, creed, sex, age or disability.

The Agency further agrees to meet the nondiscrimination requirements provided in 49 CFR Part 26, with respect to the award and performance of any agreement, contract or Subcontract.

The Agency will take all necessary and reasonable steps to ensure nondiscrimination in the award and administration of contracts and agreements covered under the DBE-N Program. This same provision binds the Contractor and its subcontractors from bid solicitation through the completion of the contract.

F. Required Outreach Efforts The Agency has implemented outreach requirements for this contract. Specifically, each contract 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.

If a Contractor fails to conduct these Outreach Efforts or fails to submit the required documentation of Contractor’s Outreach Efforts as indicated, the Agency may determine that the Contractor is noncompliant.

SECTION III. PRE-AWARD SUBMITTAL REQUIREMENTS

A. Form EO1 - 100 – Statement of Outreach Commitment At the time of bid submittal, Submitter must sign, date and submit a completed Form EO1 - 100 Statement of Outreach Commitment, with its initial qualifications-based submittal.

B. Form EO2 - 100 - Bidders List and Small Business Outreach Efforts At the time of bid submittal, Submitter must complete and submit Form EO2–100 Bidders List and Small Business Outreach Efforts. Submitter must complete columns A and B documenting its diligent, earnest outreach efforts for all subcontracting work as described in this clause for which Submitter received a proposal.

Submitter must complete columns C, D, and E for each business identified by the Submitter as a Small Business documenting its efforts for subcontracting work as described in this clause.

Submitter must provide the following minimum information to document its Outreach Efforts and Bidders List in the designated columns within Form EO2

- 100:

1. 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. Submitter 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.

2. 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 submitter must include a description of the scope(s) of work being requested.

3. 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:

http://www.ecfr.gov/ https://www.ecfr.gov/current/title-49/part-26

• List the Solicitation Method

• Name of Submitter’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

4. Column D - Selection Decision

Indicate the Submitter’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.

6. Column E - Method of Communication of Final Selection Outcome

The Submitter 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

Submitter must provide supporting documentation that shows Submitter 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 Contract.

C. Form EO3 – 100 Small Business Utilization Commitment

At the time of bid submittal, the Submitter must complete, sign, date and submit EO3 – 100 Small Business Utilization Commitment, which commits the Submitter to the Agency as follows:

1. The firms indicated as “Selected” on Form EO2 - 100- Small Business Outreach Efforts and Bidders List, will participate in this Contract;

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

3. Submitter understands and agrees that any and all changes or substitutions to Subcontracts with Small Businesses must be authorized by the Compliance Specialist prior to implementation; and

4. The following statement is true and correct: The proposed total participation of small business firms on this contract will be designated on

Form EO3 by the Submitter.

D. Failure to Submit Forms EO1-100, EO2-100, EO3-100 Submittals that do not have these forms completed and signed, including the supporting documentation required by EO2-100, may be deemed non-responsive. A non-responsive submittal may be disqualified from further evaluation.

E. Failure to Meet Outreach Requirements The Compliance Specialist will determine, in writing, whether the Submitter has satisfied all outreach requirements. If the Compliance Specialist determines the Submitter failed to satisfy the outreach requirements, then the Compliance Specialist may determine the submittal is non-responsive. A determination of non-responsiveness disqualifies Submitters from further consideration for the Contract award. The Agency must send written notice to Submitter stating the basis for the Compliance Specialist’s decision.

F. Administrative Reconsideration In the event the Agency determines the Submitter failed to submit required documentation to meet the Small Business Outreach Requirements, an opportunity for reconsideration of this determination will be provided. This opportunity for reconsideration will seek to obtain clarification of documentation submitted with the bid.

Within seven (7) business days of being informed by the Agency that the Submitter is not responsive based on insufficient demonstration and/or documentation of Outreach Efforts, the Submitter may submit its written request to:

City of Phoenix Disadvantaged Business Enterprise Liaison Officer (DBELO) or Designee Equal Opportunity Department 200 W. Washington, St. 15th Floor Phoenix, AZ 85003 Phone: (602) 262-6258 Fax: (602) 534-1124 TTY: 7-1-1 Friendly

If the request for Administrative Reconsideration is not submitted within the allotted seven (7) business days, the non-responsive Submitter will not utilize the Small Business Program submittal requirements as the basis for its future protest.

As part of this reconsideration process, the Submitter will have an opportunity to provide written clarification or argument concerning the issue of whether it met the Outreach Requirements or provided sufficient supporting and completed documentation of good faith efforts at the time of bid. The City DBELO or Designee will review solely the written clarification or argument, along with any document(s) originally submitted at the time of bid. No new or revised forms or supporting documentation will be reviewed for consideration.

The City DBELO or designee will send the Submitter a written decision on the reconsideration, explaining the basis for finding that the Submitter did or did not meet the Outreach Requirements. The result of the reconsideration process is not administratively appealable and cannot be escalated or included in any other protest not related to the Program.

SECTION IV. POST-AWARD GENERAL REQUIREMENTS

The Agency has implemented outreach efforts requirements for this Contract. Specifically, the Contractor must:

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

(2) Actively solicit proposals from small and minority businesses;

(3) Evaluate small-business proposals; and

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

A. Subcontracting Commitment The Small Business Subcontractors 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.

The Contractor will submit to the Agency, through the City of Phoenix Certification and Compliance System, all executed contracts, purchase orders, subleases, agreements, and other arrangements formalizing agreements between Contractor and all Subcontractors, upon execution throughout the life of this contract.

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 the Compliance Specialist’s prior written approval. Any request to alter a Subcontract must be submitted in writing to the Compliance Specialist before any change is made. If the Contractor fails to do so, the Agency may declare the Contractor in breach of contract.

B. Small Business Participation Plans Submitter must submit a Small Business Participation Plan (SBPP) every year on the anniversary date of the executed contract and/or at the start of every GMP (as applicable). The Contractor must provide the Agency with an updated SBPP detailing the Contractor’s continued commitment to utilizing Small Businesses. The SBPP must contain updated strategies to foster small business participation and information concerning the participation of Small Businesses, including any changes to the initial EO2-100 and EO3-100.

SBPP must include a narrative of their commitment to use good faith efforts and provide details of the types of subcontracting work or services (with projected dollar amount) that the Submitter will solicit Small Businesses to perform. The SBPP must include an estimated time frame/schedule in which the subcontracted work to be performed by the Small Business will be accomplished.

Once the contract is awarded, the Agency and the Contractor may agree to make written revisions to the SBPP throughout the life of the project. The Agency will monitor and evaluate whether the Contractor is using good faith efforts to comply with the SBPP, the schedule, and the Contractor’s Small Business utilization commitment.

C. Counting Small Business Participation The Contractor may only count expenditures for certified Small Business Subcontractors that perform a Commercially Useful Function (CUF), in the NAICS Codes in which it is approved for the contract. A Small Business performs a CUF when it is responsible for execution of the work of the contract and is carrying out its responsibilities by performing, managing, and supervising the work involved. To perform a CUF, the Small Business must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable) and paying for material itself. A Small Business Subcontractor must perform or exercise responsibility for at least 30% of the total cost of its Subcontract value with its own workforce and equipment before its participation can be counted. Small Businesses must manage and control the performance of its contract and not be dependent on the prime’s personnel and equipment to complete its work. Scope(s) of work not covered in the firm’s description will not be counted as participation.

D. Commercially Useful Function (CUF) & Counting of Small Business Trucking/Hauling – If Applicable

49 CFR Part 26.55 Section (d) defines CUF and the counting of participation Trucking/Hauling as follows:

• The Small Business must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose achieving participation.

• The Small Business must itself own and operate at least one fully licensed, insured, and operational truck used on the contract.

• The Small Business receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs.

• The Small Business may lease trucks from another small business firm, including an owner-operator who is a small business. The Small

Business who leases trucks from another Small Business receives credit for the total value of the transportation services the lessee provides on the contract.

• The Small Business may lease trucks without drivers from a Non-Small Business truck leasing company. If the Small Business leases trucks from a Non-Small Business truck leasing company and uses its own employees as drivers, it is entitled to credit for the value of these hauling services.

E. Counting Small Business Certified Manufacturers, Suppliers, and Brokers – If Applicable 49 CFR Part 26.55 Section (e) permits the counting of expenditures with Small Businesses for materials or supplies toward participation as provided in the following:

• If the materials or supplies are obtained from a Small Business manufacturer, count 100% of the cost of the materials or supplies toward participation.

• If the materials or supplies are purchased from a Small Business regular dealer (supplier), count 60% of the cost of the materials or supplies, including transportation, toward participation.

• If materials or supplies purchased from a Small Business which is neither a manufacturer nor a regular dealer, (packager, broker, or manufacturer’s rep.) count 40% of materials or supplies (including transportation costs toward participation.

If an approved Small Business is no longer found to be a Small Business during the course of the Subcontract, the Agency will consider all work performed by the Small Business under the original contract to count as participation. No increased scope of work negotiated after expiration or revocation of the Small Business designation may be counted. Any work performed under a Contract extension granted by the Agency may not be counted as small business participation. If a designation is lost while under contract with a Contractor solely because the Small Business exceeded the size standard during the performance of the contract, the performance may count toward the contract small business utilization commitment. If a Small Business loses its designation because it was acquired by or merged with a non-small business, the continued performance may not count toward the contract small business utilization commitment. If this negatively impacts the Contractor’s ability to meet the contract small business utilization commitment, the Contractor is strongly encouraged to Subcontract with other small businesses.

F. Small Business Substitutions If a Small Business was approved by the City, the Compliance Specialist will consider whether or not the Contractor has exercised diligent and good-faith efforts to find another Small Business replacement. The Contractor will notify the Compliance Specialist in writing of the necessity to substitute a Small Business and provide specific reason(s) for the substitution or replacement. Actual substitution or replacement of a small business may not occur before the Compliance Specialist’s written approval has been obtained.

G. Relief from Proposed Small Business Utilization After Contract award, the City will not grant relief from the proposed Small Business utilization except in extraordinary circumstances. The Contractor’s request to modify Small Business participation must be in writing to the Compliance Specialist.

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 the Compliance Specialist 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.

H. Prompt Payment of Subcontractors The prompt payment clause must be included in every contract and Subcontract.

The Contractor must promptly pay its Subcontractors, subconsultants, subconsultants or suppliers. For projects governed by 49 CFR, Part 26, payment must be made within five (5) calendar days after the Contractor has received payment for scope of work completed by the Subcontractor.

If the Contractor diverts any payment received for a small business’ work performed on the Contract or fails to reasonably account for the application or use of the payment, the Agency may declare the Contractor in breach of contract.

Under the prompt-payment provisions of 49 CFR Part 26, the Contractor must ensure prompt and full payment of retentions to Subcontractors and suppliers. The Contractor must pay each Subcontractor’s and supplier’s retention no later than 30 days the satisfactorily completion of and scope of work, and after the Agency has paid for the scope(s) of work. If the Agency reduces the Contractor’s retention, the Contractor must correspondingly reduce the retentions of Subcontractors and suppliers that have performed satisfactory work.

Nothing in this section prevents the Contractor from enforcing its Subcontract with a Subcontractor or supplier for defective work, late performance, and other claims arising under the Subcontract.

SECTION V. 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. The required records include:

1. All bidders’ information to include firm’s name; address; or other status; NAICS code(s) 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.

2. A complete listing of all Subcontractors and suppliers on the project.

3. Each Subcontractor’s and supplier’s scope performed.

4. The dollar value of all Subcontracting work, services, and procurement.

5. Copies of all executed Subcontracts, purchase orders, invoices, and Subcontractor receipts.

6. Total operating expenses and total costs of goods sales.

7. Copies of all payment documentation and Change Orders.

B. Records Maintenance The City requires the Contractor to maintain records and documents of payments to subcontractors, including DBEs, 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 subcontractors, 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. Progress Payments: By the 15th of each month, the Contractor must enter payment information and related supporting documentation into the City of Phoenix Certification and Compliance System.

a. The total of all payments received from the Agency during the previous month.

b. All payments made to Subcontractors during the previous month.

i. Supporting documentation to collaborate the payment amounts, which include but not limited to invoices and pay receipts.

The Contractor is responsible for ensuring that Subcontractors confirm receipt of payment in the City of Phoenix Certification and Compliance System by the end of each month.

2. Final Payment:

Before the Agency processes the Contractor’s final payment and/or outstanding retention held against the Contractor, the Contractor must notate in the City of Phoenix Certification and Compliance System:

a. The payment to each Subcontractor is considered “Final”.

b. Every Subcontractor must confirm they have received full and “Final” payment in the City of Phoenix Certification and Compliance System.

For federal reporting purposes, the Certification of Final Payment must be completed and signed by the Contractor and Small Business firm(s). The Contractor is responsible for ensuring that Subcontractors confirm the receipt of full and “Final” payment in the Phoenix Contract Compliance System.