SPECIAL PROVISION. Disadvantaged Business Enterprise/Historically Underutilized. in State Funded Construction

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1 1993 Specifications SPECIAL PROVISION Disadvantaged Business Enterprise/Historically Underutilized Business in State Funded Construction The purpose of this Special Provision is to carry out the Texas Department of Transportation's policy of supporting the fullest possible participation of firms owned and controlled by minority or socially and economically disadvantaged individuals in Texas Department of Transportation programs. If the Disadvantaged Business Enterprise (DBE)/Historically Underutilized Business (HUB) goal is greater than zero, Article A, "Disadvantaged Business Enterprise/Historically Underutilized Business In State Funded Construction", of this special provision shall apply to this contract. If the DBE/HUB goal is zero, Article B "Disadvantaged Business Enterprise/Historically Underutilized Business Requirements - State Funded Construction", of this Special Provision shall apply to this contract. The percentage goal for Disadvantaged Business Enterprise/Historically Underutilized Business participation in the work to be performed under this contract will be shown on Form DBE/HUB contained in the proposal. Article A: Disadvantaged Business Enterprise/Historically Underutilized Business in State Funded Construction 1. Purpose. The purpose of this Special Provision is to carry out the Texas Department of Transportation's policy of supporting the fullest possible participation of firms owned and controlled by minority or socially and economically disadvantaged individuals in Texas Department of Transportation programs. 2. Policy. The Texas Department of Transportation is committed to providing contracting opportunities for minority-owned and womenowned businesses. In this regard, it is the Department's policy to create an environment that will enhance participation of Disadvantaged Business Enterprises (DBE) and Historically Underutilized Businesses (HUB) in Department contracts and procurements. The policy objective is to form partnerships with the DBE, HUB, and Contractor communities and to continuously improve the programs that assist DBEs and HUBs. Consequently, the DBE/HUB requirements of the Department's Disadvantaged Business Enterprise/Historically Underutilized Business Program apply to this contract as follows. a. The Contractor agrees to insure that he/she shall take all necessary and reasonable steps to meet the DBE/HUB goal for this contract. b. The Contractor and any subcontractors shall not discriminate on the basis of race, color, national origin, age, disability or sex in the award and performance of contracts. c. The requirements of this Special Provision shall be physically included in any subcontract and/or purchase order. d. After a conditional award is made to the low bidder, the State will determine the adequacy of a Contractor's efforts to meet the contract goal, as is outlined in this Special Provision under Section 5, Contractor's Responsibilities. If the requirements of

2 Section 5 are met, the conditional situation will be removed and the contract will be forwarded to the Contractor for execution. The Contractor's performance, during the construction period of the contract, in meeting his approved goal will be monitored by the Department. e. Failure to carry out the requirements set forth above shall constitute a breach of contract and may result in termination of the contract by the Department; a deduction from the money due or to become due to the Contractor, not as a penalty but as damages to the Department's DBE/HUB program; or such other remedy or remedies as the Department deems appropriate. 3. Definitions. a. "Department" means the Texas Department of Transportation. b. "Contract" is the agreement between the Texas Department of Transportation and a Contractor for the construction or improvement of a highway. c. "Joint Venture" means an association of two or more businesses to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills and knowledge. d. (1) "Disadvantaged Business Enterprise" or "DBE" means a small business concern (1) which is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and, (2) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it as certified by the Texas Department of Transportation. (2) "Historically Underutilized Business" or "HUB" means a corporation, sole proprietorship, partnership, or joint venture formed for the purpose of making a profit in which at least 51 percent of all classes of the shares of stock or other equitable securities are owned by one or more persons who are socially disadvantaged because of their identification as members of certain groups. These individuals must have a proportionate interest and demonstrate active participation in the control, operation, and management of the corporation's affairs as certified by the General Services Commission. e. "Socially and economically disadvantaged individuals" means those individuals who are citizens of the United States (or lawfully admitted permanent residents), and who are Women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans, and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8(a) of the Small Business Act. For convenience, these individuals and groups are referred to as "disadvantaged". The Department may make a rebuttable presumption that individuals in the following groups are socially and economically disadvantaged:

3 (1) "Black Americans," which includes persons having origins in any of the Black racial groups of Africa; (2) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (3) "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; (4) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U. S. Trust Territories of the Pacific and the Northern Marianas; (5) Asian-Indian Americans," which includes persons whose origins are from India, Pakistan, and Bangladesh; and Note: Under the HUB Program, "Asian-Indian Americans" are not identified as socially and economically disadvantaged. (6) Women f. The "Manufacturing Material Supplier" is a DBE/HUB firm that operates or maintains a factory or establishment that produces or significantly alters on the premises the materials or supplies obtained by the Contractor. Should the DBE/HUB firm obtain the final product(s) provided to the Contractor from a source other than its own factory or establishment, then the DBE/HUB firm, for that case, will not be considered to be a manufacturing material supplier and its supply work will be credited toward the DBE/HUB goal using an adjustment percentage no greater than that used for a non-manufacturing material supplier. Brokers and packagers shall not be regarded as manufacturers. g. "Non-manufacturing Material Supplier" is a DBE/HUB regular dealer 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. To be a regular dealer, the firm must engage in, as its principal business and in its own name, the purchase and sale of the products in question. A firm which performs supplier like functions on an "ad hoc" basis, or for only one or two Contractors with whom it has a special relationship, is not regarded to be a regular dealer within the meaning of this Provision. A regular dealer in such bulk items as steel, cement, gravel, stone, and petroleum asphalts need not keep such products in stock if it owns or operates distribution equipment. The term "or operates" is intended to cover a situation in which the supplier leases the equipment on a regular basis for its business operation. It is not intended to cover a situation in which the firm simply provides drivers for trucks owned or leased by another party, or leases such a party's trucks on an "ad hoc" basis for a specific project or job. Brokers and packagers shall not be regarded as regular dealers. h. "Broker" is an intermediary or middleman that does not take possession of a commodity or act as a regular dealer selling to

4 the public. 4. Percentage Goal. The percentage goal for Disadvantaged Business Enterprise/Historically Underutilized Business participation in the work to be performed under this contract will be as shown on Form DBE/HUB contained in the proposal. 5. Contractor's Responsibilities. These requirements must be satisfied by the Contractor unless he/she is a Disadvantaged Business Enterprise, a Historically Underutilized Business, or a combination thereof. a. After conditional award of the contract, the Contractor shall furnish the following information so as to arrive in the Department's Construction and Maintenance Division in Austin, Texas not later than 5:00 P.M. on the fifteenth (15th) day after the conditional award of the contract: (1) The names and addresses of the DBE/HUB subcontractors and/or vendors he/she intends to use to satisfy the DBE/HUB goal, (2) An agreement for each proposed DBE/HUB containing: 1) The items of work to be performed, and incidental goods and services to be provided for the project 2) The quantities of work, materials, goods or services 3) The appropriate unit of measure 4) The unit price 5) The total amount for each item or purchase 6) The total amount of the respective DBE/HUB commitment signed by an officer of the contracting firm and the proposed DBE/HUB agreeing that if the contract is signed by the contractor, the proposed DBE/HUB will be given the opportunity to do the respective proposed subcontract work and/or purchases. Note: Only DBE/HUB firms meeting the eligibility requirements given in Section 6.d. will be considered as DBE/HUB subcontractors or vendors. Certified DBEs and HUBs will only be allowed to perform work in the categories or classes the firm is identified or listed in the respective directories. b. A Contractor who cannot meet the contract goal, in whole or in part, shall document the steps taken to obtain DBE/HUB participation including, but not limited to, the following: (1) Attendance at a pre-bid meeting, if any, scheduled by the Department to inform DBEs/HUBs of subcontracting and other opportunities under a given solicitation; (2) Timely advertisement of subcontracting and other opportunities in general circulation and minority-focus media at least 15 days before bid opening, or 10 days prior to submission of information required under 5.a. and b. above;

5 (3) Written notification to DBEs/HUBs, located within the State of Texas and other States, as appropriate, of subcontracting and other opportunities soliciting their participation including documentation of follow-up efforts; (4) Efforts made to select work, materials, goods and services that could be performed by DBEs/HUBs in order to increase the likelihood of achieving the stated goal and documentation of additional efforts if initial efforts were not satisfactory; (5) Efforts to negotiate with DBEs/HUBs for specific sub-bids including, as a minimum: (a) (b) (c) The names, addresses, and telephone numbers of DBEs/HUBs that were contacted; A description of the information provided including but not limited to the plans and specifications for the work, materials, goods and services selected for goal attainment; A statement of why additional agreements could not be reached for DBEs/HUBs to perform. (6) Reasons for rejecting a DBE/HUB as unqualified; (7) Reasons for rejecting a DBE's/HUB's bid; (Rejecting a DBE's/HUB's bid because it was not the lowest quotation received will not be a satisfactory reason without an acceptable explanation of how it was determined to be unreasonable. A statement, by itself, that the DBE's/HUB's quotation was more than the Contractor's bid price for an item or items will be unacceptable.) (8) Efforts made to assist the DBEs/HUBs contacted in obtaining bonding and/or insurance if such was required by the Contractor, and if the DBE/HUB needed assistance in either area. c. Should the bidder to whom the contract is conditionally awarded refuse, neglect or fail to meet the DBE/HUB goal and furnish acceptable documentation, the proposal guaranty filed with the bid shall become the property of the State, not as a penalty, but as damages to the Department's DBE/HUB program. d. The appropriate information satisfying the preceding requirements shall be submitted directly to the Construction and Maintenance Division; Texas Department of Transportation; 125 E. 11th Street; Austin, Texas e. The Contractor shall make all reasonable efforts to honor commitments to DBE/HUB subcontractors and vendors named in the original commitment submitted under Section 5.a. of this Special Provision. Prior to terminating or removing a DBE/HUB subcontractor or vendor named in the initial commitment, the Contractor must demonstrate to the satisfaction of the Construction and Maintenance Division in Austin that the originally designated DBE/HUB was not able or willing to perform. f. The Contractor shall also make a reasonable effort to replace a

6 DBE/HUB subcontractor or vendor that is unable or unwilling to perform successfully with another DBE/HUB. Any substitution of DBEs/HUBs shall be subject to approval by the Construction and Maintenance Division in Austin. The Construction and Maintenance Division may request a statement from the replaced firm concerning its being replaced prior to approving the substitution. g. The Contractor shall designate a DBE/HUB liaison officer who will administer the Contractor's DBE/HUB program and who will be responsible for maintenance of records of efforts and contacts made to subcontract with DBEs/HUBs. h. Contractors are encouraged to investigate the services offered by banks owned and controlled by disadvantaged individuals and to make use of these banks where feasible. 6. Eligibility of DBEs/HUBs a. The Department will certify the eligibility of DBEs and joint ventures to perform subcontract work on State contracts. The General Services Commission will certify the eligibility of HUBs. b. This certification will be accomplished through the use of the appropriate certification schedule contained in this Department's DBE program or through the General Services Commission HUB program, respectively. c. The Department publishes quarterly a Directory of Disadvantaged Business Enterprises containing the names of firms that have been certified to be eligible to participate as DBEs on State contracts. An addendum to this Directory is published each month in the Department's "Notice to Contractors of Forthcoming Texas Highway Construction". This Directory is available from the Department's Construction and Maintenance Division for Contractor's information. The HUB Directory is available through the Department's Construction and Maintenance Division. d. Only DBE/HUB firms certified and identified in specific categories and classes at the time commitments are submitted are eligible to be used in the information furnished by the Contractor as required under Section 5.a. above. e. If during the course of project's completion it becomes necessary to substitute another DBE/HUB firm for a firm named in the information submitted by the Contractor as required by Section 5.a. above, then only DBE/HUB firms certified by the Department and/or the General Services Commission at the time of the substitution will be considered eligible as a substitute firm. f. The 73rd Legislature passed House Bill 2310 relating to contracts between governmental entities and certain disadvantaged businesses. The Bill also provides for civil penalties as follows: 1) The attorney general or a district, county, or city attorney may institute an action in district court to recover a civil penalty against a person who claims disadvantaged business status and the general Contractor who knowingly contracts with a person claiming the disadvantaged business status in

7 violation of Section 3 of this Act. (HB 2310, Section 3, Prohibited Act. A Contractor may not claim disadvantaged business status in bidding on a public contract unless the Contractor meets the definition of a disadvantaged business and that Contractor will personally execute the terms of the contract.) 2) A civil penalty assessed under this section may not exceed $1,000 for each violation and may not exceed $100,000 in aggregate, for all violations arising from a single action. Each day of violation constitutes a separate violation for purposes of penalty assessment. 3) A civil penalty recovered in an action brought by the attorney general shall be deposited in the State Treasury. civil penalty recovered in an action brought by a political subdivision shall be deposited in the general fund of that political subdivision. A 4) A civil penalty under this section is in addition to any other criminal, civil, or administrative penalty assessed by this State or a political subdivision to which a person in violation of Section 3 of this Act may be liable. 7. Determination of DBE/HUB Participation. DBE/HUB participation shall be counted toward meeting the DBE/HUB goal in this contract in accordance with the following: a. Once a firm is determined to be a DBE/HUB, the total eligible dollar amount paid on the contract or purchase order awarded to the DBE/HUB is counted toward the DBE/HUB goal. Proof of payment, such as copies of invoices and cancelled checks, may be required to substantiate the payment, as deemed necessary by the Department. Invoices and cancelled checks should contain the Department project number or control number so that proper crediting can be monitored. Invoices and cancelled checks that are not properly identified will not be counted toward the goal. b. A Contractor may count toward its DBE/HUB goal contract fees paid to disadvantaged truck owner-operators provided the following requirements are met: (1) Truck Owner-Operators must be certified as eligible to participate in this program through submitting a Schedule O to the Civil Rights Division. (2) To receive credit toward the DBE/HUB goal for certified disadvantaged Truck-Owner Operators, the Contractor must furnish the Engineer and the Construction and Maintenance Division the following information on each owner-operator to be used: (a) (b) (c) (d) (e) (f) name of owner-operator social security number drivers license number copy of vehicle registration receipt current vehicle license number truck number

8 (3) The record of payments to each disadvantaged Truck Owner- Operator, whether paid by the prime Contractor or one of his subcontractors, must be attached to the prime Contractor's monthly report for the respective month to receive credit toward the DBE/HUB goal for the earnings of disadvantaged Truck Owner-Operators. c. A Contractor may count toward its DBE/HUB goal a portion of the dollar amount paid to a joint venture equal to the percentage of the ownership and control of the DBE/HUB partner in the joint venture. d. (1) A Contractor may count toward its DBE/HUB goal only expenditures to DBEs/HUBs that perform a commercially useful function in the work of a contract or purchase order. A DBE/HUB is considered to perform a commercially useful function when it executes a distinct element of the work of a contract or purchase order and is responsible for the management, supervision, and control of the materials, equipment, employees, and all other business obligations attendant to the satisfactory completion of the contracted work or purchase order. A DBE/HUB subcontractor or vendor will perform all of their work of their trade with their own employees or, if the subcontractor uses an employee leasing firm for the purpose of providing salary and benefit administration, with employees who in all other respects are supervised and perform on the job as if they were employees of the subcontractor. (2) Consistent with industry practices and the Department's DBE/HUB Program, a DBE/HUB subcontractor may enter into second-tier subcontracts, amounting to up to 70 percent of their contract, for work outside of their trade. Brokers and firms with brokerage-type operations will not be considered to be performing a commercially useful function and will only receive credit for their commission. (3) A DBE/HUB prime Contractor who intends to subcontract specific trades may do so if the dollar value of the subcontracts does not exceed 75 percent of the original value of the contract, and all work in the trade of the prime Contractor is accomplished by employees of that Contractor, or, if the prime Contractor uses an employee leasing firm for the purposes of salary and benefit administration, with employees who in all other respects are supervised and perform on the job as if they were employees of the prime Contractor. (4) Following are two basic examples of a DBE/HUB not performing a commercially useful function, and the sanctions that may be levied by the Department: (a) In the event that the prime Contractor or his non-dbe/hub subcontractor(s) is found to be involved in the actual execution of the DBE's/HUB's subcontracted work function, the prime Contractor will be denied credit toward his goal for the amount of the dollar value of the work performed on the DBE's/HUB's subcontract at the time that the DBE/HUB is discovered not to be performing a commercially useful function; or

9 (b) In the event that the DBE/HUB subcontractor permits its work to be performed by another Contractor who is not a recognized second tier subcontractor, he/she shall be considered not to be performing a commercially useful function, and the Department may suspend the DBE/HUB subcontractor's certification and will deny the prime Contractor credit toward its goal for the entire amount of the work subcontracted to the DBE/HUB. e. A Contractor may count toward its DBE/HUB goals expenditures for materials, goods and services obtained from DBE/HUB suppliers and manufacturers, provided that the DBEs/HUBs assume the actual and contractual responsibility for the provision of the materials, goods and services. (1) The Contractor may count its entire expenditure to a DBE/HUB manufacturing goods and materials. In order to be considered a manufacturing firm, a DBE/HUB must conform to the definition given in Section 3.f. of this special provision. Should the DBE/HUB firm obtain the final product(s) provided to the Contractor from a source other than its own factory or establishment, then the DBE/HUB firm, for that case, will not be considered to be a manufacturing material supplier and its supply work will be credited toward the DBE/HUB goal using an adjustment percentage no greater than that used for a non-manufacturing material supplier. Brokers and firms with brokerage-type operations will not be considered to be performing a commercially useful function and will only receive credit for their commission. Joint checks to suppliers of materials, goods and services will not be allowed for DBE/HUB goal credit. (2) The Contractor may count 60 percent of its expenditures to DBE/HUB non-manufacturing material suppliers provided that the DBE/HUB supplier performs a commercially useful function in the supply process. In order to be considered a nonmanufacturing material supplier, a DBE/HUB must conform to the definition given in Section 3.g. of this Special Provision. Brokers and firms with brokerage-type operations will not be considered to be performing a commercially useful function and will only receive credit for their commission. Joint checks to suppliers of materials, goods and services will not be allowed for DBE/HUB goal credit. f. A Contractor may count toward its DBE/HUB goal the following expenditures to DBE/HUB firms that are not manufacturing material suppliers or non-manufacturing material suppliers: (1) The fees or commissions charged for providing a bona fide, customary industry service, such as professional, technical, consultant, or managerial services, and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for performance of the contract, provided that the fee or commission is determined by the Department to be reasonable and not excessive as compared with fees customarily allowed for similar services. (2) The fees charged for delivery of materials and supplies required on a job site (but not the cost of the materials and supplies themselves) when the hauler, trucker, or

10 delivery service is not also the manufacturer of or a regular dealer in the materials and supplies, provided that the fee is determined by the Department to be reasonable and not excessive as compared with fees customarily allowed for similar services. (3) The fees or commissions charged for providing any bonds or insurance specifically required for the performance of the contract, provided that the fee or commission is determined by the Department to be reasonable and not excessive as compared with fees customarily allowed for similar services. g. If a Contractor chooses to assist a DBE/HUB firm other than a supplier of materials, goods and services by assuring payment for the materials to be placed in the DBE's/HUB's work and wants to receive credit toward the DBE/HUB goal for the cost of the material, then the material supplier may invoice the DBE/HUB firm and be paid by remittance from the DBE/HUB firm or the material supplier may invoice the prime Contractor and the DBE/HUB firm jointly and be paid by the prime Contractor making remittance to the DBE/HUB firm and the material supplier jointly. No credit will be given toward the DBE/HUB goal for the cost of the DBE's/HUB's required materials paid by the prime Contractor directly to the material supplier. Joint check payment arrangements must be included in the original prime Contractor-DBE/HUB agreement submitted to the Construction and Maintenance Division. h. No credit will be given toward the DBE/HUB goal for the cost of materials placed by a DBE/HUB firm or for the cost of equipment leased or rented and used in the DBE/HUB firm's work when payment for those costs is effected by making a deduction from the prime Contractor's payment(s) to the DBE/HUB firm. 8. Compliance of Contractor. To ensure that DBE/HUB requirements of this contract are complied with, the Department will monitor the Contractor's efforts to involve DBEs/HUBs during the performance of this contract. This will be accomplished by a review of monthly reports submitted to the Construction and Maintenance Division by the Contractor indicating his progress in achieving the DBE/HUB contract goal, and by compliance reviews conducted by the Department. The Contractor shall receive credit toward the DBE/HUB goal based on actual payments to the DBE/HUB subcontractor or vendor. The Contractor shall notify the Construction and Maintenance Division if he/she withholds or reduces payment to any DBE/HUB subcontractor or vendor. The Contractor shall submit an affidavit detailing the DBE/HUB subcontract or vendor payments prior to receiving final payment for the contract. Contractors' requests for substitutions of DBE/HUB subcontractors or vendors shall be accompanied by a detailed explanation which should substantiate the need for a substitution. The Construction and Maintenance Division may verify the explanation with the DBE/HUB firm being replaced before giving approval of the substitution. The Contractor will not be allowed to count work on those items being substituted toward the DBE/HUB goal prior to approval of the substitution from the Construction and Maintenance Division. The Contractor's providing work crews and equipment to DBEs/HUBs is prohibited. The occasional formal leasing of a major piece of

11 equipment with or without operator by the prime Contractor to a DBE/HUB will be considered on a case-by-case basis by the Construction and Maintenance Division. A Contractor's failure to: Meet the DBE/HUB goal, honor his/her commitments and failure to demonstrate, to the Department's satisfaction, sufficient efforts on his/her part to obtain DBE/HUB participation, or failure to abide by the requirements of the contract calling for contractor enforcement of the commercially useful function provision, shall constitute a breach of contract. In such a case, the Department reserves the right to terminate the contract; to deduct the amount of DBE/HUB goal not accomplished by DBEs/HUBs from the money due or to become due the Contractor, not as a penalty but as damages to the Department's DBE/HUB program; or such other remedy or remedies as the Department deems appropriate. 9. Records and Reports. a. After submission of the initial information required by Section 5.a. of this Special Provision, the Contractor shall submit monthly reports, after work begins, on DBE/HUB involvement. One copy of each monthly report is to be sent to the Construction and Maintenance Division of the Department, and one copy is to be sent to the Area Engineer. These reports will be due within fifteen (15) days after the end of a calendar month. These reports will be required until all DBE/HUB subcontracting or material supply activity is completed. DBE/HUB Monthly Progress Report and Monthly Progress Report (for) Non-DBE Haulers, are to be used for monthly reporting. DBE/HUB Final Report, is to be used as a final summary of DBE/HUB activity submitted upon completion of the project. These forms may be obtained from the Department and reproduced as necessary. The Department may verify the amounts being reported paid to DBEs/HUBs by requesting invoices and copies of cancelled checks paid to DBEs/HUBs on a random basis. Cancelled checks should reference Department project number. b. If the DBE/HUB goal is not being met, the monthly report shall include a narrative description of the progress being made in involving DBEs/HUBs in subcontract work and/or as material suppliers. If sufficient DBE/HUB subcontractors and/or material suppliers to meet the goals are being utilized, they should be identified on the monthly report by Departmental assigned Vendor Number, name, and the amount of actual payment made to each during the monthly period. Negative reports are required when no activity has occurred in a monthly period. c. Monthly reports for Truck Owner-Operators should be in the form of a list of Truck Owner-Operators paid that month, including Vendor Number and the amount of payment made to each. d. All such records must be retained for a period of three years following completion of the contract work, and shall be available at reasonable times and places for inspection by authorized representatives of the Department. e. When the DBE/HUB goal requirement is not being met, documentation supporting Good Faith Efforts, as outlined in Section 5.b. of this Special Provision, must be submitted

12 f. Prior to receiving final payment, the Contractor shall submit an affidavit detailing the DBE/HUB payments on the DBE Final Report. This form may be obtained from the Department or may be reproduced by the Contractor. Article B: Disadvantaged Business Enterprise/Historically Underutilized Business Requirements - State Funded Construction It is the policy of the Texas Department of Transportation that Disadvantaged Business Enterprises/Historically Underutilized Businesses, as defined in the Department's DBE/HUB Program, shall have the maximum opportunity to participate in the performance of State contracts. If the DBE/HUB goal is zero, the Contractor agrees to insure that Disadvantaged Business Enterprises/Historically Underutilized Businesses, as defined in Article A above, have the maximum opportunity to participate in the performance of State contracts and subcontracts. In this regard, the Contractor shall take all necessary and reasonable steps to insure that Disadvantaged Business Enterprises/Historically Underutilized Businesses have the maximum opportunity to compete for and perform contracts. The Contractor and any Subcontractors shall not discriminate on the basis of race, color, national origin or sex in the award and performance of State contracts. These requirements shall be physically included in any subcontract. Failure to carry out the requirements set forth above shall constitute a breach of contract and, after the notification of the Department, may result in termination of the contract by the State or other such remedy as the State deems appropriate