MBE & VSBE Pre-Bid Meeting Script.pdf

MBE/VSBE Pre-Bid Meeting Script

Opening Statement

Good (morning/afternoon). My name is ______________________ and I am the

MBE/VSBE/SBR representative for the Office of State Procurement, Strategic

Sourcing and Procurement Diversity Programs at the Maryland Department of

General Services.

As the MBE/VSBE/SBR representative, the unit is responsible for ensuring that the MBE & VSBE goals are being met on all contracts. The team of Compliance

Officers are responsible for all aspects of the MBE & VSBE compliance process.

MBE Prime Self-Performance

When a certified MBE firm participates as a prime contractor on a Contract, a procurement agency may count the distinct, clearly defined portion of the work of the Contract that the certified MBE firm performs with its own workforce toward fulfilling up to, but no more than, fifty-percent (50%) of the overall Attachment D

– MBE Forms Page D-2. MBE participation goal, including up to one hundred percent (100%) of not more than one of the MBE participation subgoals, if any, established for the Contract.

In order to receive credit for self-performance, an MBE prime must be certified in the appropriate NAICS code to do the work and must list its firm in the MBE

Participation Schedule, including the certification category under which the MBE prime is self-performing and include information regarding the work it will self-perform.

For the remaining portion of the overall goal and the remaining subgoals, the MBE prime must also identify on the MBE Participation Schedule the other certified

MBE subcontractors used to meet those goals or request a waiver.

These guidelines apply to the work performed by the MBE Prime that can be counted for purposes of meeting the MBE participation goals. These requirements do not affect the MBE Prime’s ability to self-perform a greater portion of the work in excess of what is counted for purposes of meeting the MBE participation goals.

Please note that the requirements to meet the MBE participation overall goal and subgoals are distinct and separate. If the contract has subgoals, regardless of MBE

Prime’s ability to self-perform up to 50% of the overall goal (including up to 100% of any subgoal), the MBE Prime must either commit to use other MBEs for each of any remaining subgoals or request a waiver. As set forth in Attachment 1-B Waiver

Guidance, the MBE Prime’s ability to self-perform certain portions of the work of the Contract will not be deemed a substitute for the good faith efforts to meet any remaining subgoal or the balance of the overall goal.

In certain instances where the percentages allocated to MBE participation subgoals add up to more than 50% of the overall goal, the portion of self-performed work that an MBE Prime may count toward the overall goal may be limited to less than

50%.

MBE Subcontractors

MBE means a Minority Business Enterprise that is certified by the Maryland

Department of Transportation (MDOT). When selecting MBE’s, all MBE subcontractors must be certified with the Maryland Department of Transportation

(MDOT) at the time of bid. No MBE can be pending certification. To view the list of certified MBE’s go to the MDOT’s website at marylandmdbe.mdbecert.com.

At the time of bid, attachment D-1A (MBE Utilization and Fair Solicitation

Affidavit & MBE Participation Schedule) must be submitted. If the bidder or offeror fails to accurately complete and submit this affidavit and schedule with the bid or proposal as required, the procurement officer shall deem the bid non-responsive.

After being notified as the apparent low bidder, you have 10 business days to submit attachment D-2 (Outreach Efforts Compliance Statement), attachment D-3A

(MBE Subcontractor Project Participation Certification) to the procurement officer and D-3B (Prime Self-Performing Form).

In addition, the MBE participation goal on this contract is not based on 3rd Tier vendors.

http://www.marylandmdbe.mdbecert.com/

MBE Third-Tier Contracting

Third-tier contracting is not the usual way for a prime contractor to achieve an

MBE goal. However, the Department of General Services also realizes that there may be rare occasions when third-tier contracting would be acceptable. Two conditions must be met before the Agency may approve a third-tier contracting arrangement which may be entered to meet a MBE goal:

The Agency awarding the contract must be satisfied that there is no way except by third-tier contracting that a MBE goal can be achieved;

The prime contractor must request from the Agency, in writing, prior to awarding of a contract, that approval be granted for each third-tier contract arrangement. The request must contain the specifics as to why a third-tier contractor arrangement is being requested to meet the MBE goal.

An Agency approving a third-tier contract should do so in writing, setting forth the parameters of the third-tier contract. All records of third-tier contracts will be maintained by the Agency granting approval.

Third-Tier Contracting is to be considered the exception and not the rule. If the third-tier results from an MBE subcontracting to a non-MBE third-tier contractor, this participation shall not be counted as MBE participation towards goal attainment.

Materials and Supplies: Guidelines Regarding MBE Participation

Regular Dealer (generally identified as a wholesaler or supplier in the MDOT

Directory): Up to 60% of the costs of materials and supplies provided by a certified

MBE may be counted towards the MBE participation goal(s) if such MBE is a

Regular Dealer of such materials and supplies.

• Regular Dealer is defined as a firm that owns, operates, or maintains a store, a warehouse, or any other establishment in which the materials, supplies, articles, or equipment are of the general character described by the specifications required under the contract and are bought, kept in stock, or regularly sold or leased to the Attachment D – MBE Forms Page D-3 effective public in the usual course of business; and does not include a packager, a broker, a manufacturer’s representative, or any other person that arranges or expedites transactions.

Example for illustrative purposes of applying the 60% rule: Overall contract value: $2,000,000 Total value of supplies: $100,000 Calculate Percentage of

Supplies to overall contract value: $100,000 divided by $2,000,000 = 5% Apply

60% Rule - Total percentage of Supplies/Products 5% x 60% = 3% 3% would be counted towards achieving the MBE Participation Goal and Subgoal, if any, for the MBE supplier in this example.

• Manufacturer: A certified MBE firm’s participation may be counted in full if the MBE is certified in the appropriate NAICS code(s) to provide products and services as a manufacturer.

• Broker: With respect to materials or supplies purchased from a certified

MBE that is neither a manufacturer nor a regular dealer, a unit may apply the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, fees, or transportation charges for the delivery of materials and supplies required on a procurement toward the

MBE contract goals, provided a unit determines the fees to be reasonable and not excessive as compared with fees customarily allowed for similar services. A unit may not apply any portion of the costs of the materials and supplies toward MBE goals.

• Furnish and Install and other Services: The participation of a certified MBE supplier, wholesaler, and/or regular dealer certified in the proper NAICS code(s) to furnish and install materials necessary for successful contract completion may be counted in full. Includes the participation of other MBE service providers in the proper NAICS code(s) may be counted in full. 9.

Dually certified firms. An MBE that is certified in more than one subgroup category may only be counted toward goal fulfillment of ONE of those categories with regard to a particular contract.

VSBE Subcontractors

The VSBE Utilization Affidavit and Subcontractor Participation Schedule

(Attachment E-1) must be fully and accurately completed and submitted at the time of bid.

On the E-1 form, you must first acknowledge and express your intention to meet the overall VSBE goal percentage established for the solicitation.

The VSBE Subcontractor Participation Schedule should include the names of the veteran-owned business enterprises that you intend to use to meet the required

VSBE goal, along with their DUNS Number. Only United States Department of

Veterans Affairs certification is acceptable (verify via eMMA). VSBE certification from another entity or jurisdiction will not be accepted. Additionally, the percentage of the of the total contract value to be provided by the particular VSBE should be entered as well as a specific description of the work that is to perform by that particular VSBE.

Within 10 working days of receiving notice that your firm is the apparent awardee, you must submit your Subcontractor Project Participation Statement (Attachment

E-3).

You may request a waiver of the VSBE goal and within 10 working days of receiving notice that your firm is the apparent awardee, you must submit all required waiver documentation in accordance with COMAR 21.11.13.07.

Waivers

If for any reason, the apparent bidder or offeror is unable to achieve the contract goal(s) for each certified MBE/VSBE classification specified as having a subcontract goal or the overall MBE/VSBE contract goal, the bidder or offeror may request a waiver, in writing. Please utilize attachments D-1B (Waiver

Guidance) and D-1C (Good Faith Efforts Documentation to Support Waiver

Request) for the MBE waiver and the VSBE attachment 1B (VSBE Unavailability

Verification Form) with your Bid/Proposal submission.

The compliance officer will perform the following actions:

• Good Faith Effort, using COMAR language as guidance

• Review vendors “detailed” reason for waiver request

• Conduct verification, including contact the sub-vendors listed by the prime contractor as not available or not interested

• Using all pertinent information, make a determination regarding the approval or disapproval of the waiver request

• Forward the determination to the Procurement Officer to notify them of the

OSP recommendation

Liquidated Damages for MBE Non-Compliance

• Attachment D-4A (Prime Contractor Paid/Unpaid MBE Invoice Report)

• Attachment D-4B (MBE Prime Contractor Report)

• Attachment D-5 (Subcontractor Paid/Unpaid MBE Invoice Report)

The Contractor shall make Good Faith Efforts to comply with the Minority

Business Enterprise (MBE) Program and contract provisions. The State and the

Contractor acknowledge and agree that the State will incur damages, including but not limited to loss of goodwill, detrimental impact on economic development and diversion of internal staff resources if the Contractor does not make a good faith effort to comply with the requirements of the MBE Program and MBE contract provisions. The parties further acknowledge and agree that the damages the State might reasonably be anticipated to accrue as a result of such lack of compliance are difficult to ascertain with precision.

Therefore, upon a determination by the State that the Contractor failed to make a

Good Faith Effort to comply with one of more of the specified MBE Program requirements or contract provisions, the Contractor agrees to pay Liquidated

Damages to the State at the rates set forth below. The Contractor expressly agrees that the State may withhold payment on any invoices as a set-off against liquidated damages owed. The Contractor further agrees that for each specified violation, the agreed upon Liquidated Damages are reasonably proximate to the loss the State anticipated to incur as a result of such violation.

• FAILURE TO SUBMIT EACH MONTHLY PAYMENT

REPORT IN FULL COMPLIANCE WITH COMAR

21.11.03.13B (3): TBD PER DAY UNTIL THE MONTHLY

REPORT IS SUBMITTED AS REQUIRED. ATTACHMENTS

D-4A AND D-4B

• FAILURE TO INCLUDE IN ITS AGREEMENTS WITH MBE

SUBCONTRACTORS A PROVISION REQUIRING

SUBMISSION OF PAYMENT REPORTS IN FULL

COMPLIANCE WITH COMAR 21.11.03.13B (4): TBD PER

WEEK MBE SUBCONTRACTOR. ATTACHMENT D-5

• FAILURE TO COMPLY WITH COMAR 21.11.03.12 IN

TERMINATING, CANCELING, OR CHANGING THE SCOPE

OF WORK/VALUE OF A CONTRACT WITH AN MBE

SUBCONTRACTOR AND/OR AMENDMENT OF THE MBE

PARTICIPATION SCHEDULE: THE DIFFERENCE

BETWEEN THE DOLLAR VALUE OF THE MBE

PARTICIPATION COMMITMENT ON THE MBE

PARTICIPATION SCHEDULE FOR THAT SPECIFIC MBE

FIRM AND THE DOLLAR VALUE OF THE WORK

PERFORMED BY THAT MBE FIRM FOR THE CONTRACT.

• FAILURE TO MEET THE CONTRACTOR’S TOTAL MBE

PARTICIPATION GOAL AND SUBGOAL COMMITMENTS:

THE DIFFERENCE BETWEEN THE DOLLAR VALUE OF

THE TOTAL MBE PARTICIPATION COMMITMENT ON THE

MBE PARTICIPATION SCHEDULE AND THE MBE

PARTICIPATION ACTUALLY ACHIEVED.

• FAILURE TO PROMPTLY PAY ALL UNDISPUTED

AMOUNTS TO AN MBE SUBCONTRACTOR IN FULL

COMPLIANCE WITH THE PROMPT PAYMENT

PROVISIONS OF THIS CONTRACT: TBD PER DAY UNTIL

THE UNDISPUTED AMOUNT DUE TO THE MBE

SUBCONTRACTOR IS PAID.

NOTE

If you have any questions or need assistance, contact the Procurement Officer in writing.

Revised: April 2024