§ 2-1448. Equal business opportunity subcontracting program.

(a)

Program requirements.

(1)

All bidders are required to make efforts to ensure that businesses are not discriminated against on the basis of their race, ethnicity or gender, and to demonstrate compliance with these program requirements at or prior to the time of bid opening, or upon request by OCC. Bidders are required to ensure that prospective subcontractors, vendors, suppliers and other potential participants are not denied opportunities to compete for work on a city contract on the basis of their race, ethnicity, or gender, and must afford all firms, including those owned by racial or ethnic minorities and women, opportunities to participate in the performance of the business of the city to the extent of their availability, capacity and willingness to compete.

(2)

Bidders shall prohibit discrimination against any person or business on the basis of race, color, creed, religion, sex, domestic relationship status, parental status, familial status, sexual orientation, disability, age, national origin, political affiliation, gender identity, or racial profiling. Bidders shall develop a written policy statement that shall be approved by the office of contract compliance and distributed to all employees. Bidders shall conduct their contracting and purchasing programs so as to prohibit any discrimination and to resolve all allegations of discrimination. Bidders shall include a clause in its subcontracts that require the subcontractor to adopt and distribute a written non-discrimination policy that is the same as that of the contractor. The office of contract compliance shall review and investigate all allegations of discrimination which claim that prohibited forms of discrimination have occurred. Allegations of discrimination that are determined to have merit may be subject to penalties decided upon by the office of contract compliance in consultation with the initiating department.

(3)

OCC will review information submitted by bidders pertaining to efforts to promote opportunities for diverse businesses, including MFBEs, to compete for business as subcontractors and/or suppliers. A bidder is eligible for award of a city contract upon a finding by OCC that the bidder has engaged in, and provided with its bid submission documentation of, efforts to ensure that its process of soliciting, evaluating and awarding subcontracts, placing orders, and partnering with other companies has been non-discriminatory.

(b)

Determination of non-discrimination during bid process. No bidder shall be awarded a 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, unless the office of contract compliance determines that the bidder has satisfied the non-discrimination requirement of this section 2-1448(a). Accordingly, each bidder shall submit with each bid the following:

(1)

Covenant of non-discrimination. Each bidder shall submit with her/his bid a covenant of non-discrimination in such form as directed in the solicitation document by the office of contract compliance.

(2)

Outreach efforts documentation. Each bidder shall submit with her/his bid written documentation demonstrating the bidder's outreach efforts to identify, contact, contract with, or utilize businesses, including certified MFBEs and SBEs, as subcontractors or suppliers on the contract. The office of contract compliance shall set forth in the solicitation document the documents that a bidder may submit to demonstrate its outreach efforts, and such documentation may include, without limitation, evidence of the following:

a.

The bidder contacted the office of contract compliance, other private sector and government entities, or local MFBE and SBE organizations, to identify available businesses to work on the contract, including certified MFBEs and SBEs, regardless of race, gender or ethnicity.

b.

The bidder placed notices of opportunities for qualified businesses to perform subcontracting work on the contract in newspapers, trade journals, and other relevant publications, including publications specifically targeted to MFBEs and SBEs, or communicated such notices of opportunities via the Internet or by other available media or means.

c.

The bidder submitted invitations to bid for work on the contract to qualified businesses, including certified MFBEs and SBEs, regardless of race, gender or ethnicity.

d.

The bidder included in such notices and invitations a full disclosure of the criteria upon which bids, proposals or quotes would be evaluated, and also included contact information for inquiries, submissions, or requests to review any necessary bid documents.

e.

The bidder promptly responded to inquiries, provided necessary physical access and time for interested businesses to fully review all necessary bid documents, and otherwise provided information, access and time necessary to allow all interested businesses to prepare bids and quotes, regardless of race, gender or ethnicity.

f.

The bidder considered, or hired, or otherwise utilized qualified and available businesses, including certified MFBEs and SBEs, regardless of race, gender or ethnicity.

g.

For each business which contacted or was contacted by the bidder regarding subcontracting or other services on the contract, but was not contracted with or otherwise utilized on the contract, the bidder shall provide a written statement setting forth the dates of such contacts, the nature of such contacts, and the reasons why an agreement was not reached regarding work to be performed on the project. The bidder shall maintain all written documents reflecting such contacts, including bids, quotes and proposals.

(3)

Subcontractor project plan. Each bidder shall submit with her/his bid a completed and signed subcontractor project plan, in a form approved and provided by the office of contract compliance, which lists the name, address, telephone number and contact person of each subcontractor or other business to be used in the contract, the NAICS Code and the type of work or service each business will perform, the dollar value of the work and the scope of work, the ownership of each business by race and gender, if applicable the AABE, APABE, HABE, FBE, or SBE certification number of each business, and any other information requested by the office of contract compliance. In order for the office of contract compliance to officially consider a firm to be an MFBE, the MFBE firm must be certified by or have a certification application pending with the office of contract compliance prior to the bidder's submission of the bid. The subcontractor project plan shall not be changed or altered after approval of the plan and award of the contract without the written approval of the director of the office of contract compliance. A written letter to the director of the office of contract compliance requesting approval to change the subcontractor project plan must be submitted prior to any change in the plan or termination of an MFBE's contract.

(c)

OCC review of all bidder submissions. The office of contract compliance shall determine whether a bidder has satisfied the requirements of section 2-1448(a) and (b) based on its review of the covenant of non-discrimination, the outreach efforts documentation, the subcontractor project plan, and its review of other relevant facts and circumstances, including complaints received as part of the bid process.

(1)

Receipt of complaint of discrimination in the bid process. The office of contract compliance shall accept complaints of alleged discrimination during the bid process regarding any participant in the bid process. Where the complaint of discrimination is specific to the procurement which is under consideration by the city, the office of contract compliance may investigate said complaint, determine its validity, and determine whether the actions complained of impact the bidder's responsiveness on the specific procurement. Allegations of discrimination based on events, incidents or occurrences which are unrelated to the specific procurement will be placed in the bidder's file maintained in the vendor relations database and handled in accordance with the procedure established in the city's vendor relations subdivision, section 2-1465, et seq.

(2)

Determination of violation of EBO process. Where the office of contract compliance investigates a complaint of discrimination that is related to the specific bid process, the details of that investigation, including findings, shall be recorded and maintained in the vendor relations database, pursuant to section 2-1471.

(3)

Office of contract compliance determination of non-compliance. When, based upon the totality of the circumstances, the office of contract compliance determines that a bidder fails to satisfy the requirements of section 2-1448(a) of a city bid solicitation, the director of the office of contract compliance shall present a written determination of noncompliance to the Chief Procurement Officer which states the determination and lists the reasons for the determination. A bid that does not comply with the requirements set forth in section 2-1448(a) shall be deemed non-responsive and rejected.

(4)

Office of contract compliance determination of non-responsiveness. The covenant of non-discrimination, the outreach efforts documentation, the subcontractor project plan, and any other information required by OCC in the solicitation document pursuant to section 2-1448(b) must be completed in their entirety by each bidder and submitted with the other required bid documents in order for the bid to be considered as a responsive bid. Failure to timely submit these forms, fully completed, will result in the bid being considered as a non-responsive bid, and therefore, excluded from consideration.

(d)

OCC review of bidder submissions on eligible projects for AABEs, eligible projects for APABEs, eligible projects for HABEs, and eligible projects for FBEs. In addition to the review described in section 2-1448(c), the office of contract compliance will conduct additional reviews of procurements that involve eligible projects for AABEs, eligible projects for APABEs, eligible projects for HABEs, or eligible projects for FBEs. In reviewing the documents submitted by a bidder on eligible projects for AABEs, eligible projects for APABEs, eligible projects for HABEs, or eligible projects for FBEs to determine whether the bidder has satisfied the good faith efforts requirement to subcontract with AABEs, APABEs, HABEs, or FBEs (as the case may be), the office of contract compliance will consider, among other things, the total project dollars subcontracted to or expended for services performed by other businesses, including certified AABEs, APABEs, HABEs, or FBEs, whether such businesses perform commercially useful functions in the work of the contract based upon standard industry trade practices, whether any amounts paid to supplier businesses are for goods customarily and ordinarily used based upon standard industry trade practices, and the availability of certified AABEs, APABEs, HABEs, or FBEs (as the case may be) within the relevant NAICS Codes for such contract. To assist prime contractors in this effort, the office of contract compliance shall set forth in the solicitation documents for the eligible project the availability of businesses, including certified AABEs, APABEs, HABEs, and FBEs within the relevant NAICS Codes for such eligible project.

(1)

Database. The city will maintain a database identifying AABEs, APABEs, HABEs, or FBEs, that will include the types of services provided by the business enterprise and contact information for the business enterprise. A list from the database will be made available to bidders to assist them in their efforts to meet the requirements of the equal business opportunity subcontracting program. The list prepared from the database will specify which firms the City of Atlanta has determined to be certified minority and female business enterprises, in accordance with the City of Atlanta definitions for MFBEs. This list is not exhaustive.

(2)

Minority and female business enterprise utilization. To ensure that the equal business opportunity subcontracting program achieves its purpose, the office of contract compliance will verify the AABE, APABE, HABE, or FBE certification status of each firm claiming such designation. Only certified AABEs, APABEs, HABEs, or FBEs (as the case may be) may be designated in reports as AABEs, APABEs, HABEs, or FBEs (as the case may be) for purposes of city projects. The percentage of AABEs, APABEs, HABEs, or FBEs (as the case may be) utilized by a bidder will be calculated by dividing the AABE, APABE, HABE, or FBE's price for providing direct labor or a bona fide service by the bidder's total dollars as identified in the bid.

(3)

Equal business opportunity program compliance, monitoring and audit. The City of Atlanta reserves the right to conduct an audit of a bidder's work on eligible projects for AABEs, eligible projects for APABEs, eligible projects for HABEs, or eligible projects for FBEs to confirm the bidder's compliance with this equal business opportunity subcontracting program.

(4)

Contract progress. The office of contract compliance shall require contractors on eligible projects for AABEs, eligible projects for APABEs, eligible projects for HABEs, and eligible projects for FBEs to complete and submit to OCC documentation regarding their utilization of AABEs, APABEs, HABEs, or FBEs (as the case may be), along with all other pertinent records required by OCC. Said documentation shall be in a format that is established by the office of contract compliance. These records will be submitted to OCC monthly.

(e)

Penalties. Breach of any of the provisions of this section by a bidder shall be subject to any or all of the penalties set forth in section 2-1452 below.

(Ord. No. 2009-78(09-O-1876), § 12, 12-15-09)