§ 2-1443. Definitions.

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

African American shall mean persons having origins in any black racial group of Africa.

African American Business Enterprise (AABE) shall mean a business which is an independent and continuing enterprise for profit, performing a commercially useful function, which is owned and controlled by one or more African Americans.

African American Business Enterprise (AABE) small business enterprise shall mean an AABE that is also certified as an SBE under section 2-1363.

Asian Pacific American shall mean persons having origins in any of the original people of the Far East, Southeast Asia, or the Indian subcontinent.

Asian Pacific American Business Enterprise (APABE) shall mean a business which is an independent and continuing enterprise for profit, performing a commercially useful function, which is owned and controlled by one or more Asian Pacific Americans.

Asian Pacific American Business Enterprise (APABE) small business enterprise shall mean an APABE that is also certified as an SBE under section 2-1363.

Atlanta Region shall mean the geographical area consisting of Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton, Paulding, Pickens, Rockdale, Spalding, and Walton counties.

Bid shall mean a quotation, proposal, sealed bid or offer to perform or provide labor, materials, supplies or services to the city for a price on an eligible project, or for an eligible project that generates revenue for the city.

Bidder shall mean any individual, sole proprietorship, partnership, joint venture, or corporation that submits a bid to the city, or a vendor or contractor that has entered a contract with the city regarding an eligible project.

Certification or recertification shall mean official recognition and approval by the office of contract compliance that a business meets the qualification criteria of an AABE, APABE, HABE, or FBE, as set forth in this subdivision. Certification or recertification relates to qualifications regarding ownership, control, and the applicant's economic disadvantage, not the quality of the service or product.

Certified AABE, APABE, HABE, or FBE shall mean an AABE, APABE, HABE, or FBE which meets the requirements of section 2-1453 of this subdivision, and which has been approved by the office of contract compliance.

City shall mean the City of Atlanta.

Commercially useful function. For the purpose of determining whether a business enterprise is performing a commercially useful function, OCC shall consider all of the facts in the record, viewed as a whole, including without limitation the following:

(1)

An MFBE 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.

(2)

To perform a commercially useful function, the MFBE must be responsible, with respect to material 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.

(3)

To determine whether an MFBE is performing a commercially useful function, OCC will evaluate the amount of work subcontracted by the MFBE, industry practices regarding subcontracting, whether the amount the MFBE is to be paid under the contract is commensurate with the work it's actually performing, the MFBE credit claimed for its performance of the work, and other relevant factors.

(4)

An MFBE 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 MFBE participation. In determining whether an MFBE is such an extra participant, OCC will examine similar transactions, particularly those in which MFBEs do not participate.

Control or controlled for the purpose of determining whether the owner or owners of a potential MFBE (as used in this definition, "MFBE-owner," which shall denote one or more owners) controls the potential MFBE, OCC shall consider all of the facts in the record, viewed as a whole, including without limitation the following:

(1)

For an MFBE-owner to be deemed to control the potential MFBE, the potential MFBE must be independent. An independent business enterprise is a business whose viability does not depend on its relationship with another firm or firms.

(a)

In determining whether a potential MFBE is independent, OCC will scrutinize relationships with other firms, in such areas as personnel, facilities, equipment, financial and/or bonding support, and other resources.

(b)

OCC will consider whether present or recent employer/employee relationships between the MFBE-owner and other firms or persons associated with other firms compromise the independence of the potential MFBE firm.

(c)

OCC will examine the potential MFBE's relationships with prime contractors to determine whether a pattern of exclusive or primary dealings with a prime contractor compromises the independence of the potential MFBE firm.

(d)

In considering factors related to the independence of a potential MFBE firm, OCC will consider the consistency of relationships between the potential MFBE and other firms with normal industry practice.

(2)

A potential MFBE firm must not be subject to any formal or informal restrictions which limit the customary discretion of the MFBE-owner. There can be no restrictions through corporate charter provisions, by-law provisions, contracts or any other formal or informal devices (e.g., cumulative voting rights, voting powers attached to different classes of stock, employment contracts, requirements for concurrence by persons other than the MFBE-owner, conditions precedent or subsequent, executory agreements, voting trusts, restrictions on or assignments of voting rights) that prevent the MFBE-owner, without the cooperation or vote of any other individual, from making any business decision of the business enterprise. This paragraph does not preclude a spousal co-signature on documents.

(3)

The MFBE-owner must possess the power to direct or cause the direction of the management and policies of the business enterprise and to make day-to-day as well as long-term decisions on matters of management, policy and operations.

(a)

An MFBE-owner must hold the highest officer position in the company (e.g., chief executive officer or president).

(b)

In a corporation, the MFBE-owner must control the board of directors.

(c)

In a partnership, the MFBE-owner must serve as a general partner, with control over all partnership decisions.

(4)

Individuals who are not the MFBE-owner may be involved in an MFBE as owners, managers, employees, stockholders, officers, and/or directors. Such individuals must not, however, possess or exercise the power to control the business enterprise, or be disproportionately responsible for the operation of the business enterprise.

(5)

The MFBE owners of the business enterprise may delegate various areas of the management, policymaking, or daily operations of the business enterprise to other participants in the firm, regardless of whether these participants are African American, Asian Pacific American, Hispanic American, or female. Such delegations of authority must be revocable, and the MFBE-owner must retain the power to hire and fire any person to whom such authority is delegated. The managerial role of the MFBE-owner in the business enterprise's overall affairs must be such that OCC can reasonably conclude that the MFBE-owner actually exercises control over the business enterprise's operations, management, and policy.

(6)

The MFBE-owner must have an overall understanding of, and managerial and technical competence and experience directly related to, the type of business in which the business enterprise is engaged and the business enterprise's operations. The MFBE-owner is not required to have experience or expertise in every critical area of the business enterprise's operations, or to have greater experience or expertise in a given field than managers or key employees. The MFBE-owner must have the ability to intelligently and critically evaluate information presented by other participants in the business enterprise's activities and to use this information to make independent decisions concerning the business enterprise's daily operations, management, and policymaking. Generally, expertise limited to office management, administration, or bookkeeping functions unrelated to the principal business activities of the business enterprise is insufficient to demonstrate control.

(7)

If state or local law requires the owner of a particular type of firm to have a particular license or other credential, then the MFBE-owner of that type of firm must possess the required license or credential in order to be deemed in control. If state or local law does not require an owner to have such a license or credential, OCC will not deny certification solely on the ground that the MFBE-owner lacks the license or credential. However, OCC may take into account the absence of the license or credential as one factor in determining whether the MFBE-owner actually controls the firm.

(8)

OCC may consider differences in remuneration between the MFBE-owner and other participants in the business enterprise in determining whether the MFBE-owner controls the business enterprise. Such consideration shall be in the context of the duties of the persons involved, normal industry practices, the business enterprise's policy and practice concerning reinvestment of income, and any other explanations for the differences proffered by the business enterprise. OCC may determine that a business enterprise is controlled by its MFBE-owner although the MFBE-owner's remuneration is lower than that of some other participants in the business enterprise. In a case where someone other than the MFBE-owner formerly controlled the business enterprise, and the MFBE-owner now controls it, OCC may consider a difference between the remuneration of the former and current owner of the business enterprise as a factor in determining who controls the business enterprise, particularly when the former owner remains involved with the business enterprise and continues to receive greater compensation than the current MFBE-owner.

(9)

In order to be viewed as controlling a business enterprise, an MFBE-owner cannot engage in outside employment or other business interests that conflict with the management of the business enterprise or prevent the MFBE-owner from devoting sufficient time and attention to the affairs of the business enterprise to control its activities. For example, absentee ownership of a business and part-time work in a fulltime firm are not viewed as constituting control. However, an MFBE-owner could be viewed as controlling a part-time business that operates only on evenings and/or weekends, if the MFBE-owner controls the business enterprise when it is operating.

(10)

An MFBE-owner may control a business enterprise even though one or more of the MFBE-owner's immediate family members (who themselves are not African American, Asian Pacific American, Hispanic American, or female) participate in the business enterprise as a manager, employee, owner, or in another capacity. Except as otherwise provided in this paragraph, OCC must make a judgment about the control the MFBE-owner exercises vis-a-vis other persons involved in the business enterprise as it does in other situations, without regard to whether or not the other persons are immediate family members.

If OCC cannot determine that the MFBE-owner, as distinct from the family as a whole, controls the business enterprise, then the MFBE-owner has failed to carry her/his burden of proof concerning control, even though s/he may participate significantly in the business enterprise's activities.

Eligible project for AABEs shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, as amended, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of AABEs.

Eligible project for AABE small business enterprises shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of AABE small business enterprises.

Eligible project for APABEs shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of APABEs.

Eligible project for APABE small business enterprises shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of APABE small business enterprises.

Eligible project for HABEs shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of HABEs.

Eligible project for HABE small business enterprises shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of HABE small business enterprises.

Eligible project for FBEs shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of FBEs.

Eligible project for FBE small business enterprises shall mean any city contract as described in section 2-1188 and section 2-1189, excluding sole source procurement under section 2-1191, special procurement under section 2-1191.1, emergency procurement under section 2-1192, and contracts governed by 49 CFR Parts 23 and 26, that involves a procurement within a given NAICS Code within which the 2009 Disparity Report as supplemented by the 2015 Disparity Report found an underutilization of FBE small business enterprises.

Female business enterprise (FBE) shall mean a business which is an independent and continuing enterprise for profit, performing a commercially useful function, which is owned and controlled by one or more females.

Female business enterprise (FBE) small business enterprise shall mean an HABE that is also certified as an SBE under section 2-1363.

Hispanic American shall mean persons of Spanish or Portuguese culture with origins in Mexico, South or Central America or the Caribbean Islands, regardless of race.

Hispanic American business enterprise (HABE) shall mean a business which is an independent and continuing enterprise for profit, performing a commercially useful function, which is owned and controlled by one or more Hispanic Americans.

Hispanic American business enterprise (HABE) small business enterprise shall mean an HABE that is also certified as an SBE under section 2-1363.

Joint venture shall mean an association of two or more persons, partnerships, corporations, or any combination of them, established to carry on a single business activity that is limited in scope and duration. The agreement establishing the joint venture, partnership or other multi-entity relationship shall be in writing. Further, participation in a joint venture shall be based on the sharing of real economic interest in the venture and shall include proportionate control over management, interest in capital acquired by the joint venture and interest in earnings.

Minority and female business enterprise (MFBE) shall mean a business which is an independent and continuing operation for profit, performing a commercially useful function, and which is owned and controlled by one or more African Americans, Asian Pacific Americans, Hispanic Americans, or females, or a combination thereof.

North American Industry Classification System (NAICS) Code shall mean the standard code that classifies industries by the type of activity in which such industries are primarily engaged.

Office of contract compliance (OCC) shall mean the Mayor's Office of Contract Compliance in the City of Atlanta.

Owned or ownership. In determining whether a potential MFBE is owned by one or more African Americans, Asian Pacific Americans, Hispanic Americans, or females, OCC will consider all of the facts in the record, viewed as a whole, including without limitation the following:

(1)

OCC shall deem the owner of a business enterprise to be whoever possesses at least 51 percent of the business enterprise. There may be more than one owner.

(a)

In the case of a corporation, such individual(s) must possess at least 51 percent of each class of voting stock outstanding and 51 percent of the aggregate of all stock outstanding.

(b)

In the case of a partnership, such individual(s) must possess at least 51 percent of each class of partnership interest. Such ownership must be reflected in the business enterprise's partnership agreement.

(c)

In the case of a limited liability company, such individual(s) must possess at least 51 percent of each class of member interest.

(2)

All securities which constitute ownership of an entity for purposes of establishing it as an AABE, APABE, HABE, or FBE must be held directly by African American, Asian Pacific American, Hispanic American, or female individuals or by AABEs, APABEs, HABEs, or FBEs. No securities held in trust or by any guardian for a minor shall be considered held by African Americans, Asian Pacific Americans, Hispanic Americans, or females in determining the ownership or control of a corporation.

(3)

Ownership shall be measured as though not subject to the community property interest of a spouse if both spouses certify that only one spouse owns the business and if such assertion is supported by the totality of the evidence considered by the office of contract compliance.

(4)

OCC must find that the individual(s) ownership is real, substantial, and continuing, going beyond pro forma ownership of the business enterprise as reflected in ownership documents. The individual(s) must enjoy the customary incidents of ownership, and share in the risks and profits commensurate with their ownership interests, as demonstrated by the substance, not merely the form, of arrangements.

Satisfactorily completed or satisfactory completion shall mean when all of the tasks called for in the subcontract have been accomplished and documented as required by the city. When the city has made an incremental acceptance of a portion of a prime contract, the work on a subcontractor covered by the acceptance is deemed to be satisfactorily completed.

Supplier shall mean a warehouser or manufacturer of materials, supplies or equipment which contracts directly with a bidder to provide such materials, supplies or equipment on an eligible project which involves a trade or service. For purposes of measuring the total contract dollars awarded or paid to suppliers on eligible projects, only amounts paid to suppliers of goods customarily and ordinarily used based upon standard industry or trade practices shall be counted.

(Ord. No. 2009-78(09-O-1876), § 12, 12-15-09; Ord. No. 2015-63(15-O-1556), § 3, 12-16-15 )