DISADVANTAGED BUSINESS ENTERPRISE PROGRAM 49 CFR PART 26

Transcription

1 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM 49 CFR PART 26

2 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM 49 CFR PART 26 Table of Contents I. Definition of Terms... Page 1 II. Objectives/Policy Statement (26.1, 26.23)... Page 1 III. SUBPART A GENERAL REQUIREMENTS... Pages 2 3 A. Objective (Part 26.1)... Page 2 B. Applicability (Part 26.3)... Page 2 C. Definition of Terms (Part 26.5)... Page 2 D. Non-Discrimination Requirements (Part 26.7)... Page 2 E. Record Keeping Requirements (Part 26.11)... Page 2 F. Federal Financial Assistance Agreement (Part 26.13)... Pages 2-3 IV. SUBPART B ADMINISTRATIVE REQUIREMENTS... Pages 3 7 A. DBE Program Updates (Part 26.21)... Page 3 B. Policy Statement (Part 26.23)... Page 3 C. DBE Liaison Officer (Part 26.25)... Pages 3-4 D. DBE Financial Institutions (Part 26.27)... Pages 4-5 E. Prompt Payment Mechanisms (Part 26.29)... Page 6 F. Directory (Part 26.31)... Page 6 G. Overconcentration (Part 26.35)... Page 6 H. Business Development Program (Part 26.35)... Page 6 I. Monitoring and Enforcement Mechanisms (Part 26.37)... Page 6 J. Fostering Small Business Participation (Part 26.39)... Pages 6-7 V. SUBPART C GOALS, GOOD FAITH EFFORTS, and COUNTING... Pages 8 13 A. Set-Asides or Quotas (Part 26.43)... Page 8 B. Calculating the Overall DBE Program Goals (Part 26.45)... Page 8 C. Transit Vehicle Manufacturers Goals (Part 26.49)... Page 8 D. Contract Goals (Part 26.51)... Page 9 E. Good Faith Efforts Procedures (Part 26.53)... Pages 9-11 F. Counting DBE Participation (Part 26.55)... Pages VI. SUBPART D CERTIFICATION STANDARDS... Page 13 A. Certification Process (Part )... Page 13 VII. SUBPART E CERTIFICATION PROCEDURES... Page 13 VIII. SUBPART F COMPLIANCE ENFORCEMENT... Page 14 IX. ATTACHMENTS... Pages A. Attachment 1 - Organizational Chart... Page 15 B. Attachment 2 - Monitoring and Enforcement Mechanisms... Page 16 C. Attachment 3, Form1 - Contractor/Respondent Certification... Page 17 D. Attachment 3, Form2 - Small Business Subcontractor Certification... Page 18 E. Attachment 3, Form3 - Contractor Payment Report Form... Pages F. Attachment 4 Overall Goals Calculation... Pages G. Attachment 5, Form 1 - DBE Utilization... Page 25 H. Attachment 5, Form 2 - Letter of Intent... Page 26

3 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM 49 CFR PART 26 Definitions of Terms The terms used in this program have the meanings defined in 49 CFR Part 26. Objectives/Policy Statement (26.1, 26.23) The City of Arlington - Handitran (City) has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR Part 26. The City of Arlington - Handitran has received Federal financial assistance from DOT, and as a condition of receiving this assistance, The City of Arlington - Handitran has signed an assurance that it will comply with 49 CFR Part 26. It is the policy of The City of Arlington - Handitran to ensure that DBEs, as defined in part 26, have an equal opportunity to receive and participate in DOT-assisted contracts. It is also our policy: 1. To ensure nondiscrimination in the award and administration of DOT-assisted contracts; 2. To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts; 3. To ensure that the DBE Program is narrowly tailored in accordance with applicable law; 4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as DBEs; 5. To help remove barriers to the participation of DBEs in DOT-assisted contracts; and 6. To assist the development of firms that can compete successfully in the market place outside the DBE Program. Gilbert Perales, Deputy City Manager, has been delegated as the DBE Liaison Officer (DBELO). In that capacity, DBELO is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by The City of Arlington - Handitran in its financial assistance agreements with DOT. The City of Arlington - Handitran will disseminate this policy statement to the Arlington City Council and all the components of our organization. We will distribute this statement to DBE and non-dbe business communities that perform work for us on DOT-assisted contracts by posting the Program on The City of Arlington - Handitran s website and the City of Arlington supplier portal. Trey Yelverton, Chief Executive Officer Date 1

4 A. Objective (Part 26.1) SUBPART A GENERAL REQUIREMENTS The objectives are found in the policy statement on the first page of this Program. B. Applicability (Part 26.3) The City of Arlington - Handitran is a recipient of U.S. DOT funds and has a Disadvantaged Business Enterprise (DBE) Program that meets the requirements of the Federal Transit Administration (FTA) for federally funded projects under 49 CFR Part 26. C. Definition of Terms (Part 26.5) The City of Arlington - Handitran will adopt the definitions contained in Section 26.5 of Part 26 for this program. The terms used in this program have the meanings defined in 49 CFR D. Non-Discrimination Requirements (Part 26.7) The City of Arlington - Handitran will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or national origin. In administering its DBE program, The City of Arlington - Handitran will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin. E. Record Keeping Requirements (Part 26.11) The City of Arlington - Handitran will report DBE participation to DOT as follows: We will report DBE participation on a semi-annual basis, using DOT Form These reports will reflect payments actually made to DBEs on DOT-assisted contracts. Bidders List: The City of Arlington - Handitran will create and maintain a bidders list, consisting of information about all DBE and non-dbe firms that bid or quote on DOT-assisted contracts. The purpose of this requirement is to allow use of the bidders list approach to calculating overall goals. The bidder list will include the name, address, DBE and non-dbe status, age, and annual gross receipts of firms. We will collect this information by including a notice in all solicitations, and otherwise widely disseminated, request to DBE and non-dbe contractors and subcontractors quoting to report information directly to the recipient. F. Federal Financial Assistance Agreement (Part 26.13) The City of Arlington - Handitran has signed the following assurances, applicable to all DOTassisted contracts and their administration. 2

5 Assurance: 26.13(a) The City of Arlington - Handitran shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE Program or the requirements of 49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient s DBE Program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C et seq.). This language will appear in financial assistance agreements with sub-recipients. Contract Assurance: 26.13(b) We will ensure that the following clause is placed in every DOT-assisted contract and subcontract: 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. SUBPART B ADMINISTRATIVE REQUIREMENTS A. DBE Program Updates (Part 26.21) Since The City of Arlington - Handitran has received a grant of $250,000 or more in FTA planning capital, and or operating assistance in a federal fiscal year, we will continue to carry out this program until all funds from DOT financial assistance have been expended. We will provide to DOT updates representing significant changes in the program. B. Policy Statement (Part 26.23) The Policy Statement is elaborated on the first page of this program. C. DBE Liaison Officer (26.25) We have designated the following individual as our DBE Liaison Officer (DBELO): Gilbert Perales, Deputy City Manager 101 W. Abram St., Arlington TX (817) gilbert.perales@arlingtontx.gov Mr. Perales is responsible for implementing all aspects of the DBE and SBE program and ensuring that The City of Arlington - Handitran complies with all provisions of 49 CFR Part 26. 3

6 Mr. Perales has direct, independent access to the City Manager concerning DBE and SBE Program matters. The DBELO and DBE Program have a staff of one (1) FTE to assist in managing The City of Arlington - Handitran s DBE Program. Bob Johnson, Transit Manager, is designated to administer and manage the day to day operational matters concerning the DBE Program. The DBELO or his/her delegate is responsible for developing, implementing and monitoring the DBE program in coordination with other appropriate officials. Duties and responsibilities include the following: 1. Gathers and reports statistical data and other information as required by DOT. 2. Reviews third party contracts and purchase requisitions for compliance with this program. 3. Ensures that bid notices and requests for proposals are available to DBE s in a timely manner. 4. Identifies contracts and procurements so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals) and monitoring results. 5. Analyzes The City of Arlington - Handitran's progress towards goal attainment and identifies ways to improve progress. 6. Participates in pre-bid/proposal meetings. 7. Advises The City of Arlington - Handitran Executives and affected departments on DBE matters and achievement. 8. Determine contractor compliance with good faith efforts. 9. Plans and participates in DBE training seminars. 10. Acts as liaison to the Texas Unified Certification Program (TUCP). 11. Provides outreach to DBE s and community organizations to advise them of opportunities. D. DBE Financial Institutions (Part 26.27) It is the policy of The City of Arlington - Handitran to investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions, and to encourage prime contractors on DOT-assisted contracts to make use of these institutions. The City of Arlington - Handitran has researched the availability of DBE-owned financial institutions in the Texas Unified Certification Program Directory (TUCPD) and the Federal Reserve s website. To date we have identified no DBE bank institutions in this area in the TUCPD. 4

7 Texas Unified Certification Program (TUCP) DBE Directory Texas Unified Certification Program (TUCP) DBE Directory pid=/bop&fileid= &status=/reporterror.jsp&configfile=wfservletconfig.xml 5

8 E. Prompt Payment Mechanisms (Part 26.29) The City of Arlington - Handitran will include the following clause in each DOT assisted prime contract: The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than ten (10) days from the receipt of each payment the prime contract receives from City. The prime contractor agrees further to return retainage payments to each subcontractor within ten (10) days after the subcontractors work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of The City of Arlington - Handitran. This clause applies to both DBE and non-dbe subcontracts. F. Directory (Part 26.31) The City of Arlington - Handitran utilizes the TUCPD which is maintained by the Texas Department of Transportation (TXDOT). The directory lists the firm s name, address, phone number, date of the most recent certification, and the type of work the firm has been certified to perform as a DBE. The directory can be accessed at: G. Overconcentration (Part 26.33) The City of Arlington - Handitran has not identified that over-concentration exists in the types of work that DBEs perform. H. Business Development Program (Part 26.35) The City of Arlington - Handitran has not established a business development program. I. Monitoring and Enforcement Mechanisms (Part 26.37) The City of Arlington - Handitran will take the following monitoring and enforcement mechanisms to ensure compliance with 49 CFR Part We will bring to the attention of the Department of Transportation any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in We will consider similar action under our own legal authorities, including responsibility determinations in future contracts. Attachment 2 lists the regulation, provisions, and contract remedies available to us in the events of non-compliance with the DBE regulation by a participant in our procurement activities. 3. We will also provide a monitoring and enforcement mechanism to verify that work committed to DBEs at contract award is actually performed by the DBEs. 4. We will keep a running tally of actual payments to DBE firms for work committed to them at the time of contract award. 6

9 J. Fostering Small Business Participation (Part 26.39) To facilitate competition with small businesses, The City of Arlington - Handitran will make efforts to expend a portion of DOT-assisted contracts with small businesses using the following strategies: 1. Small businesses cannot exceed the Small Business Size Limits, as defined by the Small Business Administration (SBA). These limits can be found at 2. On prime contracts without DBE contract goals, The City of Arlington - Handitran will require prime contractors to pursue contracting opportunities with Small Business Enterprise (SBE) firms that can reasonably perform the work rather than self performance by the prime contractor. During the procurement process and subsequent contract the bidder/offeror will be required to: Identify and subcontract work with a contract to disadvantaged and small businesses to perform the tasks. If the prime contractor cannot contract with a disadvantaged or small business they will be required to submit proof of their good faith efforts, e.g. phone log, s, etc., to find a disadvantaged or small business to perform the work in a form that is satisfactory to The City of Arlington; Verify the small business is eligible to participate as a small business. TXDOT provides a list of firms eligible to participate as an SBE, which can be found at Submit the small business(es) information on the Contractor/Respondent Certification form (See Attachment 3 Form 1) with the bid or proposal; Submit the Small Business Subcontractor Certification form (See Attachment 3 Form 2) with the bid or proposal. This form is completed by the DBE or small business; and Submit the Contractor Payment Report form (See Attachment 3 Form 3) with the monthly invoices throughout the life of the contract. 3. If The City of Arlington - Handitran has a large contract it will attempt to identify possible portions of the contract which could be unbundled and bid separately to help small businesses participate in City contracts funded in part by DOT funds. The City of Arlington - Handitran will send the bid solicitation to eligible small businesses by utilizing the SBA eligible firm list. In addition, The City of Arlington - Handitran will present information on the small business participation element during its outreach presentations to different groups in and around the community. The small business participation element is a permanent part of this DBE Program. The City of Arlington - Handitran participants are the DBE Liaison Officer, City Council and the Finance Department. Attachment 2 lists the regulations, provisions, and contract remedies available to us in the events of noncompliance with the DBE regulation by a participant in our procurement activities. 7

10 SUBPART C GOALS, GOOD FAITH EFFORTS, and COUNTING A. Set-asides or Quotas (Part 26.43) The City of Arlington - Handitran does not use quotas in any way in the administration of this DBE program. B. Calculating the Overall DBE Program Goals (Part 26.45) The City of Arlington - Handitran establish overall goals every three years in accordance with the 2-Step process as specified in 49 CFR Part for U.S. DOT-assisted contracts. The first step is to determine the relative availability of DBEs in the market area, base figure. The second step is to adjust the base figure percentage from Step 1 so that it reflects as accurately as possible the DBE participation the recipient would expect in the absence of discrimination based on past participation, a disparity study and/or information about barriers to entry to past competitiveness of DBEs on projects. A description of the methodology to calculate the overall goal and the goal calculations is found in Attachment 4 to this program. In accordance with Section 26.45(f), City of Arlington - Handitran will submit its overall goal to DOT every three years on August 1. In establishing the overall goal, City of Arlington - Handitran will consult with minority, women s and general contractor groups, community organizations, and other officials or organizations to obtain information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and The City of Arlington - Handitran efforts to establish a level playing field for the participation of DBEs. City of Arlington - Handitran will review the overall goal on an annual basis and submit any significant adjustments to the goal to the appropriate DOT operating administration (FHWA, FTA, and FAA). Following this consultation, City of Arlington - Handitran will publish a notice of the proposed overall goals, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at The City of Arlington - Handitran offices for 45 days following the date of the notice, and informing the public that City of Arlington - Handitran and DOT will accept comments on the goals for 45 days from the date of the notice. Notice will be issued in general circulation media and available minority-focus media and trade publications, websites. Normally, City of Arlington - Handitran will issue this notice by June 1 of each year. The notice will include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. C. Transit Vehicle Manufacturers Goals (Part 26.49) The City of Arlington - Handitran will require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on FTA-assisted transit vehicle procurements, to certify that it has complied with the requirements of this section. Alternatively, The City of Arlington - Handitran may, at its discretion and with FTA approval, establish project-specific goals for DBE participation in the procurement of transit vehicles in lieu of the TVM complying with this element of the program. 8

11 D. Contract Goals (Part 26.51) The City of Arlington - Handitran will use contract goals to meet any portion of the overall goal the department does not project being able to meet using race-neutral means. Contract goals are established so that, over the period to which the overall goal applies, they will cumulatively result in meeting any portion of our overall goal that is not projected to be met through the use of race-neutral means. We will establish contract goals only on those DOT-assisted contracts that have subcontracting possibilities. We need not establish a contract goal on every such contract and the size of contract goals will be adapted to the circumstances of each such contract (e.g. type and location of work, availability of DBEs to perform the particular type of work). We will express our contract goals as a percentage of the total of the DOT-assisted contract. E. Good Faith Efforts Procedures (Part 26.53) The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. Good Faith Effort requirements for DOT-assisted contracts are specified in 49 CFR Part 26, Appendix A. The bidder/offeror can meet this requirement by either: 1. Documenting commitments for participation by DBEs sufficient to meet the goal; or 2. Documenting good faith efforts to meet the goal. The bidder/offeror must show that it took all necessary and reasonable steps to achieve the goal(s), which, by their scope, intensity and appropriateness to the objective, could reasonably be expected to obtain DBE participation, even if they were not fully successful. A bidder/offeror need not actually meet a contract goal (i.e., obtain a specified amount of DBE participation) in order to be awarded a contract if the bidder/offeror demonstrates adequate good faith efforts (see Attachment 5). Bidders/Offerors must notify DBEs of subcontracting opportunities at least five business days before submission of the bid/proposal. The City of Arlington - Handitran treats bidders/offerors compliance with good faith efforts requirements as a matter of responsiveness. We will ensure that all information is complete and accurate and adequately documents the bidder/offer s good faith efforts before we commit to the performance of the contract by the bidder/offeror. Information to be Submitted The City of Arlington - Handitran treats bidders/offerors compliance with good faith efforts requirements as a matter of responsiveness. The bidder/offeror shall submit the following information with its bid/proposal as a condition of responsiveness: 1. The names and addresses of DBE firms that will participate in the contract; 2. A description of the work that each DBE will perform; 3. The dollar amount of each DBE firm s participation; 4. Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; 9

12 5. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor s commitment; and 6. If the contract goal is not met, evidence of good faith efforts. In the event the bidder/offeror is unable to meet the contract goal, the following documentation will need to be submitted along with the above information: At a minimum, the following should be submitted to support Good Faith Effort documentation (documentation is not limited to this list): Fax logs/ s and copies of documents sent. Copies of written correspondence to certified firms (include names, addresses, and other identifying information). Phone logs with responses (Phone contacts, alone, will not be sufficient.). Lists and copies of letters sent by mail, hand delivered, or ed. The following additional Good Faith Efforts factors may also be considered Advertising in local newspapers. Copies of all bids received in response to bidder/offeror contacting other Firms. Other communications regarding contacts with trade associations and Chambers of Commerce. The DBE Liaison Officer (DBELO) is responsible for determining whether a bidder/offeror, who has not met the contract goal, has document sufficient good faith efforts to be regarded as responsive. The DBELO will ensure all information is complete, accurate and adequately documents the bidder s/offeror s good faith efforts before The City of Arlington - Handitran commits to the performance of the contract by the bidder/offeror. Administrative Reconsideration Within 10 days of being informed by City that it is not responsive because it has not documented sufficient good faith efforts, a bidder/offeror may request administrative reconsideration. Bidders/offerors should make this request in writing to: Regional Civil Rights Officer, Federal Transit Administration, Region 6, 819 Taylor Street, Fort Worth, TX The reconsideration official will not have played any role in the original determination that the bidder/offeror did not make/document sufficient good faith efforts. As part of this reconsideration, the bidder/offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The bidder/offeror will have the opportunity to meet in person with our reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. We will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation. Good Faith Efforts When a DBE is Replaced on a Contract The City of Arlington - Handitran will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal. We will require the prime contractor to notify the DBE Liaison Officer immediately of the DBE s inability or unwillingness to perform and provide reasonable documentation. 10

13 The prime contractor must obtain the approval of The City of Arlington - Handitran prior to the substitution and provide copies of new or amended subcontracts, or documentation of good faith efforts. If the contractor fails or refuses to comply in the time specified, The City of Arlington - Handitran will issue an order stopping all or part of payment and/or work until satisfactory action has been taken. If the contractor still fails to comply, The City of Arlington - Handitran s Project Manager/Contract Administrator may initiate a termination for default proceeding. Also, the DBELO will issue a violation notice to the contractor for failure to comply with The City of Arlington - Handitran s DBE Program requirements. F. Counting DBE Participation (Part 26.55) The City of Arlington - Handitran will count the following expenditures towards the DBE Goal: (A) When a DBE participates in a contract, only the value of the work actually performed by the DBE will be counted towards the goal. 1. When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted work may be counted toward the DBE goal only if the DBEs subcontractor is itself a DBE. Work that a DBE subcontracts to a non-dbe does not count towards the DBE goal. 2. The entire amount of that portion of a construction contract that is performed by the DBE s own forces shall be counted, including the cost of supplies and materials obtained by the DBE for the work of the contract, and supplies purchased or equipment leased by the DBE (except supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate). 3. The entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a contract, toward the DBE goal, provided the fee is reasonable and not excessive as compared with fees customarily allowed for similar services shall be counted. (B) When a DBE performs as a participant in a joint venture, only the portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces shall be counted. (C) Only expenditures to a DBE that is performing a commercially useful function shall be counted. In determining whether a DBE is performing a commercial useful function, the following considerations shall be taken into account: 1. A DBE performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE 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. The determination that a DBE is performing a commercially useful function will be informed by the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing, and other relevant factors. 11

14 2. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. 3. If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or the DBE 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, it is not performing a commercially useful function. 4. When a DBE is presumed not to be performing a commercially useful function as provided in paragraph (C)(3) of this section, the DBE may present evidence to rebut this presumption. The DBELO may determine that the firm is performing a commercially useful function given the type of work involved and normal industry practices. 5. The DBE may also lease trucks from a non-dbe firm, including an owner-operator. The DBE who leases trucks from a non-dbe is entitled to credit only for the fee or commission it receives as a result of the lease arrangement. The DBE does not count for the total value of the transportation services provided by the lessee toward the goal, since these services are not provided by a DBE. 6. For purposes of this paragraph, a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. (D) Expenditures with DBEs for materials or supplies shall be counted as follows: 1. If the materials or supplies are obtained from a DBE manufacturer or regular dealer, 100 percent of the cost of the materials or supplies toward DBE goals shall be counted. 2. For purposes of this paragraph (D), a manufacturer is a firm that operates or maintains a factory or establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the contract and of the general character described by the specifications. 3. For purposes of this section, a regular dealer is a firm that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. 4. To be a regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. 5. A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business if the person both owns and operates distribution equipment for the products. Any supplementing of regular dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. 12

15 6. Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not regular dealers. 7. With respect to materials or supplies purchased from a DBE which is neither a manufacturer nor a regular dealer, the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on a job site, shall be counted if the fees are reasonable and not excessive as compared with fees customarily allowed for similar services. No portion of the cost of the materials and supplies themselves shall be counted, however. (E) If a firm ceases to be a certified DBE during a contract, the dollar value of work performed under a contract with that firm after it has ceased to be certified shall not be counted. (F) In determining achievement of DBE goal, the participation of a DBE subcontractor shall not be counted until the amount being counted toward the goal has been paid to the DBE. (G) Where the solicitation requires the bidder/offeror to submit a base bid and one or more alternates, The City of Arlington - Handitran s decision regarding whether the Compliance Plan demonstrates the bidder s achievement of the goal or sufficient good faith efforts will be determined only on the base bid. However, the bidder/offeror is encouraged to use DBEs to complete any additional work added through alternates. The City of Arlington - Handitran will not use quotas or set-asides for DBE participation as part of the DBE Program. SUBPART D CERTIFICATION STANDARDS A. Certification Process (Part ) The City of Arlington - Handitran participates with fellow DOT recipients in Texas to organize and develop a Unified Certification Program and is a participant of the Texas Unified Certification Program (TUCP). To be certified as a DBE, a firm must meet all certification eligibility standards. For information about the certification process or to apply for certification, information can be found at the following website: rterror.jsp&configfile=wfservletconfig.xml We will make out certification based on the facts as a whole found in the application and information provided in the TXDOT/NCTRA application. SUBPART E CERTIFICATION PROCEDURES Unified Certification Program (Part ) The City of Arlington - Handitran is the member of Texas Unified Certification Program (TUCP) administered by TXDOT. TXDOT TUPC Listing can be found at this website: 13

16 The TUPC will meet all of the requirements of this section. See Attachment 4 for TXDOT Memorandum of Understanding. SUBPART F COMPLIANCE AND ENFORCEMENT Information, Confidentiality, Cooperation (Part ) We will safeguard from disclosure to third parties information that may reasonably be regarded as confidential business information, consistent with Federal, state, and local law. Firms should be advised The City of Arlington - Handitran will adhere to guidelines found in the Freedom of Information Act. The Act outlines mandatory disclosure procedures as well as the nine associated exemptions. Notwithstanding any contrary provisions of state or local law, we will not release personal financial information submitted in response to the personal net worth requirement to a third party (other than DOT) without the written consent of the submitter. Monitoring Payments to DBEs We will require prime contractors to maintain records and documents of payments to DBEs for three years following the performance of the contract. These records will be made available for inspection upon request by any authorized representative of The City of Arlington - Handitran or DOT. This reporting requirement also extends to any certified DBE subcontractor. We will perform interim audits of contract payments to DBEs. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. ATTACHMENTS Attachment 1 Organizational Chart Attachment 2 Monitoring and Enforcement Mechanisms Attachment 3 Forms 1 3 Small Business Participation Forms Attachment 4 Overall Goals Calculation Attachment 5 Forms 1 & 2 for Demonstration of Good Faith Efforts 14

17 Attachment 1 ORGANIZATIONAL CHART Trey Yelverton City Manager Gilbert Perales Deputy City Manager; DBE Liaison Officer Debra Twinam Purchasing Manager Janice Hughes, Sr. Purchasing Agent Reginald Cleveland, MWBE Coordinator Will Velasco, Purchasing Agent Bob Johnson Transit Manager Paul Price, Operations Supervisor Alex Radke, Transit Supervisor Natalie Tutt, Customer Service Supervisor 15

18 Transit Manager Bob Johnson Transit Operations Supervisor Alex Radke Customer Service Specialist Natalie Tutt Operations Support Supervisor Paul Price Dispatch Lyntis Moten Said Elsamra Lori Sellers Jim Woodard Administrative Aide Vanessa Villiareal Scheduling Agents Shelly Russell Joyce Zuniga Christina Dunnn Faviola Reyes Bus Drivers - FT 18 Ground Transportation and Permitting / Yellow Cab Administration Bus Drivers - PT 3 16

19 Attachment 2 Monitoring and Enforcement Mechanisms In accordance with 49 CFR Part 26 Section , firms participating in The City of Arlington - Handitran s DBE program face the following enforcement actions: (a) If a firm that does not meet the eligibility criteria of subpart D of this part and that attempts to participate in a 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 City of Arlington Handitran may initiate suspension or debarment proceedings against you under 2 CFR parts 180 and (b) If a firm that, in order to meet DBE contract goals or other DBE program requirements, uses or attempts to use, on the basis of false, fraudulent or deceitful statements or representations or under circumstances indicating a serious lack of business integrity or honesty, or uses another firm that does not meet the eligibility criteria of subpart D of this part, the Department may initiate suspension or debarment proceedings against you under 2 CFR parts 180 and (c) In a suspension or debarment proceeding brought under paragraph (a) or (b) of this section, the concerned operating administration may consider the fact that a purported DBE has been certified by a recipient. Such certification does not preclude the Department from determining that the purported DBE, or another firm that has used or attempted to use it to meet DBE goals, should be suspended or debarred. (d) The Department 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. (e) The Department may refer to the Department of Justice, for prosecution under 18 U.S.C or other applicable provisions of law, any person who makes a false or fraudulent statement in connection with participation of a DBE in any DOT-assisted program or otherwise violates applicable Federal statutes. 17

20 Attachment 3 Form 1 City of Arlington - Handitran Contractor/Respondent Certification Instructions: The Respondent/Contractor shall complete this form by listing 1) Names of all proposed subcontractors. 2) Contact information, 3) Description of work to be performed/product to be provided, 4) Status as a DBE or non-dbe, 5) Ethnic Code of firm, 6) Age of the firm, 7) Annual gross receipts of the firm, 8) % or $ amount of Total Contract. Subcontractors which are listed on this form as DBEs must have current certification and must complete the DBE Subcontractor Certification form. Subcontractors which are listed on this form as Small Businesses must be eligible to participate as a small business per the Small Business Administration and must complete the Small Business Subcontractor Certification form. Name of Prime Contractor (Respondent/Contractor): Project Name: Ethnic Codes A) Black American B) Hispanic American C) Native American D) Sub-Continental Asian American E) Asian-Pacific American F) Non-Minority Women G) Other DBE, non- Age % or $ of Total Contact Person, Address, Description of Work DBE or Ethnic Annual Gross Name of Subcontractor of Contract to Telephone No. Provided Small Code Receipts Firm Sub Business This schedule must be completed and include every subcontractor proposed on this project. More than one form may be used. The undersigned will enter into a formal agreement with DBE and Small Business subcontractors for work listed in this schedule upon execution of a contract with City of Arlington - Handitran. The contractor agrees to the terms of this schedule by signing below and submitting the DBE and/or Small Business Subcontractor Certification as completed by subcontractor(s). The contractor also certifies that no more than % of the work for this project will be subcontracted. Signature and Title of Authorized Representative Date 1

21 Attachment 3 Form 2 City of Arlington - Handitran Small Business Subcontractor Certification NOTE: In accordance with 49 C.F.R. Part 26 and City policy, DBE firms participating in the DBE Program must be certified as a DBE by the due date established for this bid/request for proposal. To: (Name of Respondent/Prime Contractor) 1. The undersigned is either currently registered with the SBA as a small business or will be at the time this bid/proposal is due. 2. The undersigned is prepared to perform the following described work and/or supply the material listed in connection with the above project (where applicable specify "supply" or "install" or both) and at the following price $ and/or % of the total contract amount (should be the same $ or % found on Contractor/Respondent Certification Form). 3. The small business subcontractor should complete this section only if the small business is subcontracting any portion of its subcontract. With respect to the proposed subcontract described above, the undersigned small business anticipates that % of the dollar value of this subcontract will be sublet and/or awarded to other contractors. Any and all small business subcontractors uses must be listed on the Contractor/Respondent Certification Form and must also be registered as a small business with the SBA. Name of Small Business Firm Name of Respondent/Prime Contractor Signature of Authorized Representative Signature of Authorized Representative Printed Name Printed Name Phone Number Phone Number Date Date 19

22 Attachment 3 Form 3 City of Arlington - Handitran Contractor Payment Report Form Instructions: Contractors are required to complete and submit this report, as specified in the contract or as requested, until final payment of the contract has been made. Failure to comply with the DBE provisions may result in contract termination, or the suspension or debarment of the contractor from doing business with The City of Arlington - Handitran in the future in accordance with the procedures set forth in the DBE Program. This report must be submitted with each invoice Contract Number (if applicable) Invoice Number Reporting Period From - To Contractor s Business Name Contact Person Address Telephone Number Date of Contract Award Schedule Date of Completion Original Contract Amount Current Contract Modifications Total Amount Received to Date Total Amount Owed Committed DBE % Actual DBE Participation to Date Actual DBE % to Date 20

23 City of Arlington - Handitran Contractor Payment Report Form Name of DBE Subcontractor Description of Work Amount of payments made during current period Date of payments made during current invoice period Subcontract Dollars Amount paid to date % Paid to Date Amount of this invoice allocated to DBE Subcontractor By completing this form, the Contractor acknowledges The City of Arlington - Handitran s prompt payment policy, which requires the Contractor to pay all subcontractors within 30 days of receiving payment from The City of Arlington - Handitran. Signature Name and Title of Individual Completing this Report Date 21

24 Attachment 4 OVERALL GOALS CALCULATION ANTICIPATED DBE EXPENDITURES: Approximately $222, DBE GOAL: 10% Pursuant to Section 49 Code of Federal Regulations Part 26, The City of Arlington - Handitran Texas (City) has proposed an overall goal of 10% for the participation of Disadvantaged Business Enterprises (DBEs) in its Transportation Department contract funded by the U.S. Department of Transportation (DOT), through the Federal Transit Administration (FTA), effective October 1, 2014 through September 30, The following is a list of categories that City anticipates issuing consultant/contractor procurements utilizing U.S. DOT funds for FY FY Good and Services For FTA-assisted vehicle procurements, vehicle manufacturers must certify compliance with 49 CFR Part 26. Procurements for transit vehicles will not be considered in calculating the overall DBE goal. It is the policy of City to award a fair share of contract awards to DBE firms without regard to the funding source utilized. The City of Arlington - Handitran will apply the principles of the DBE program for non U.S. DOT-assisted contracting and service provision opportunities to the fullest extent possible. MARKET AREA The market area for the DBE availability analysis is the Dallas-Fort Worth-Arlington Metropolitan Statistical Area (MSA) which includes Collin, Dallas, Denton, Ellis, Johnson, Parker, Tarrant, and Wise counties. DBE availability was determined utilizing data from the Texas Uniform Certification Program (TUCP) for the Dallas and Fort Worth Districts of the Texas Department of Transportation (TxDOT). Firms certified through the TUCP identify each TxDOT district where they conduct business. Several firms do business in multiple districts throughout the State. DETERMINATION OF MARKET AREA The Dallas-Fort Worth-Arlington MSA was used as the market area because: a. A substantial majority of the bidders (contractors and subcontractors) are based in the Dallas-Fort Worth region, and b. A substantial majority of the contracting dollars will be expended in the Dallas-Fort Worth region. 22

25 METHODOLOGY The methodology employed to develop the overall DBE Goal for FY 2014 FY 2015 is a twostep process. First, City analyzed data to develop a percentage of ready, willing, and able DBE firms in the Dallas-Fort Worth market area to perform the work anticipated to be awarded during this period. The City of Arlington - Handitran projected the types of procurements and potential contract awards and developed data to determine the number of DBE firms ready, willing, and able to perform those functions. The City of Arlington - Handitran assumed that a DBE firm was ready, willing and able to perform the types of work anticipated if the firm had a current DBE certification for that business classification code. The Step 1 figure was developed without regard to the previous DBE goal, past performance, or the national aspirational goal. The City of Arlington - Handitran reviewed DBE percentages weighted by the value of the potential contract award compared with a non-weighted average. The result of Step 1 was the development of a base figure for the DBE goal. Second, in order to develop a more precise DBE goal, The City of Arlington - Handitran analyzed data to determine whether any adjustments to the base figure were warranted. The City of Arlington - Handitran reviewed drafts of disparity studies and other agencies DBE goals. These items were evaluated to determine whether to adjust the base figure developed under Step 1. STEP 1 BUSINESS PATTERN DATA SOURCES In order to determine an overall goal, the following data sources were utilized to determine a base figure for the relative availability of DBEs: 2012 Dallas-Fort Worth-Arlington Metropolitan Statistical Area Business Patterns State of Texas Texas Unified Certification Program (TUCP) DBE Directory ( Pattern Data for all firms in the Dallas-Fort Worth-Arlington MSA was identified for the applicable contracting areas. The Dallas-Fort Worth-Arlington MSA was used as the local market area, since the majority of contractors and subcontractors that bid on City proposals are located in this area. The TUCP consolidates all DBE firms certified by six different agencies into one centralized DBE Directory for DOT-funded contracts. The initial calculation of DBE availability was accomplished using data from the most recent County Business Pattern Data for the Dallas-Fort Worth-Arlington MSA (2007) and the 2013 TUCP data. The North American Industry Standard Classification (NAICS) codes used in the calculation for the DOT-assisted contracts for FY 2014 FY 2015 are reflected in Table 1. Table 1 below identifies the potential contracting opportunities, number of DBE firms, total firms, and percentage of DBE firms by type of work. Based on the availability analysis in Table 1, DBE firms comprise approximately 10% of the total number of firms ready, willing, and able to perform the services anticipated for FY2014 FY Since the DBE percentages and potential contract awards by type of work are not uniform, The City of Arlington - Handitran weighted the DBE availability by the amount of the potential contract awards resulting in a weighted average of 10%. 23