CC Resolution 9810
RESOLUTION NO. 9810
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CA PBELL
APPROVING THE SUBMITTAL OF THE CITY'S REVISED DISADV
BUSINESS ENTERPRISE GOALS TO CAL TRANS
WHEREAS, the City has obtained Federal funds for the design and c nstruction of the
"Winchester Boulevard Bicycle Video Detection Program"; and
WHEREAS, Public Works staff has prepared a DBE plan for the City of Campbell and has
determined an annual goal of 0% for DBE participation in this project due to the absel ce of qualified and
registered DBE companies for the type of work in this project within the City of ampbell and Santa
Clara County; and
WHEREAS, On January 17,2001, the DBE program was advertised in the Ca pbell Express and
the CAL-SBA Entrepreneur (formerly known as the United Minority Business Entrep eneur) to fulfill the
30-day public notice requirement as outlined in Section 9.4 of the Interim DB Local Programs
Procedures; and
WHEREAS, the 45 day required public comment period ended on March 2, 001 and no public
comments were received; and
WHEREAS, Public Works is asking City Council approval of the DBE Progr m; and
WHEREAS, future Federal and State funded projects will require annual go Is and goal setting
methods to be determined and submitted prior to June 1 for each federal fiscal year b ginning October 1
as required by the Local Assistance Procedures Manual;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City fCampbel1 hereby
approves the revised Disadvantaged Business Enterprise Program and goals for the urrent fiscal year,
and that the City Council authorizes the City Engineer to set DBE goals for futur Federal and State
Funded projects in accordance with the procedures and methodology set forth by C ltrans in the Local
Assistance Procedures Manual.
PASSED AND ADOPTED this 6th day of March 200 I by the following roll c II vote:
AYES:
Councilmembers: Furtado, Kennedy, Burr, Watson, Dean
NOES:
Councilmembers: None
ABSENT:
Councilmembers: None
DISADVANTAGED BU INESS
ENTERPRISE (D E)
PROGRAM
FOR THE CITY F
CAMPBELL
This Program was prepared in accordance with Title 49 of the Code of Federa Regulations Part
26.
MODEL DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRJ M
The City of Campbell, County of Santa Clara
I Definitions of Terms
The terms used in this program have the meanings defined in 49 CFR ~26.5.
II Objectives/Policy Statement (SS26.1, 26.23)
The City af Campbell 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 afCampbell has received Federal financial assistance from the DOT, nd as a condition
of receiving this assistance, the City af Campbell will sign an assurance that it will comply with
49 CFR Part 26.
It is the policy of the City af Campbell to ensure that D BEs, as defined in part 26, have an equal
opportunity to receive and participate in DOT-assisted contracts. It is also our I olicy:
To ensure nondiscrimination in the award and administration ofDOT-a~sisted contracts;
To create a level playing field on which DBEs can compete fairly "or DOT -assisted
contracts;
To ensure that the DBE Program is narrowly tailored in accordance witt applicable law;
To ensure that only firms that fully meet 49 CFR Part 26 eligibi ity standards are
permitted to participate as DBEs;
To help remove barriers to the participation ofDBEs in DOT-assisted c( ntracts; and
To assist the development of firms that can compete successfully in the market place
outside the DBE Program.
Michelle Quinney, City Engineer, has been delegated as the DBE Liaison Officer. In that
capacity, Michelle Quinney is responsible for implementing all aspects of t e DBE program.
Implementation of the DBE program is accorded the same priority as compliance with all other
legal obligations incurred by the City af Campbell in its financial assistance ag eements with the
California Department of Transportation (Caltrans).
Michelle Quinney has disseminated this policy statement to the Campbell Ci v Council and all
the components of our organization. We have distributed this statement to DBE and non-DBE
business communities that perform work for us on DOT -assisted contracts l y publishing this
statement in general circulation, minority-focused and trade association publica ions.
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III Nondiscrimination (926.7)
The City of Campbell will never exclude any person from participation in, de y any person the
benefits of, or otherwise discriminate against anyone in connection wit the award and
performance of any contract covered by 49 CFR Part 26 on the basis of r ce, color, sex, or
national origin.
In administering its DBE program, the City of Campbell will not, directly or t rough contractual
or other arrangements, use criteria or methods of administration that have the ffect of defeating
or substantially impairing accomplishment of the objectives of the DBE progr m with respect to
individuals of a particular race, color, sex, or national origin.
IV DBE Program Updates (926.21)
The City of Campbell will continue to carry out this program until the City of Campbell has
established a new goal setting methodology or until significant changes to this BE Program are
adopted. The City of Campbell will provide to Caltrans a proposed overall go I and goal setting
methodology and other program updates by June 1 of every year.
V Quotas (926.43)
The City of Campbell will not use quotas or set asides in any way in the ad inistration of this
DBE program.
VI DBE Liaison Officer (DBELO) (926.45)
The City of Campbell has designated the following individual as the DBE Liais n Officer:
Michelle Quinney, 70 N 1st Street, Campbell CA 95008
Telephone (408) 866-2159
E-Mail: MQuinney@ci.campbell.ca.us.
In that capacity, Michelle Quinney is responsible for implementing all as ects of the DBE
program and ensuring that the City of Campbell complies with all provisions 0 49 CFR Part 26.
This is available on the Internet at osdbuweb.dot.gov/main.cfm. Michelle Q inney has direct,
independent access to the City Manager, the chief executive officer of the ity of Campbell
concerning DBE program matters. Michelle Quinney, the DBELO oversees n administrative
analyst who devotes a portion of her time to the DBE program, and two upport staff who
devote a portion of their time to the program. An organization chart display ng the DBELO's
position in the organization is found in Attachment A to this program whi h shows that the
DBELO has direct access to the City Manager, the highest ranking offici 1 in the City of
Campbell .
The DBELO is responsible for developing, implementing and monitoring the DBE program, in
coordination with other appropriate officials. Duties and responsibilities includ the following:
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1. Gathers and reports statistical data and other information as required.
2. Reviews third party contracts and purchase requisitions for compliance ;vith this program.
3. Works with all departments to set overall annual goals.
4. Ensures that bid notices and requests for proposals are available to )BEs in a timely
manner.
5. Identifies contracts and procurements so that DBE goals are includ~ d in solicitations
(both race-neutral methods and contract specific goals) and monitors results.
6. Analyzes the City of Campbell's progress toward goal attainment and dentifies ways to
Improve progress.
7. Participates in pre-bid meetings.
8. Advises the CEO/governing body on DBE matters and achievement.
9. Chairs the DBE Advisory Committee.
10. Participates with the legal counsel and project director to dete mine contractor
compliance with good faith efforts.
11. Provides DBEs with information and assistance in preparing bids, obta'ning bonding and
msurance.
12. Plans and participates in DBE training seminars.
13. Provides outreach to DBEs and community organizations to advise then of opportunities.
VII Federal Financial Assistance Agreement Assurance (926.13)
The City of Campbell will sign the following assurance, applicable to al FHW A-assisted
contracts and their administration as part of the program supplement agreement for each project
The recipient shall not discriminate on the basis of race, color, national ori in, or sex in the
award and performance of any DOT-assisted contract or in the administr tion of its DBE
Program or the requirements of 49 CFR part 26. The recipient shall take III necessary and
reasonable steps under 49 CFR part 26 to ensure nondiscrimination ir the award and
administration of DOT -assisted contracts. The recipient's DBE Program, as re uired by 49 CFR
part 26 and as approved by DOT, is incorporated by reference in this agreemen. Implementation
of this program is a legal obligation and failure to carry out its terms sha I be treated as a
violation of this agreement. Upon notification to the recipient of its failur ~ to carry out its
approved program, the Department may impose sanctions as provided for unde part 26 and may,
in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 a d/or the Program
Fraud Civil Remedies Act of 1986 (31 U.S.c. 3801 et seq.).
VIII DBE Financial Institutions
It is the policy of the City of Campbell to investigate the full extent of services offered by
financial institutions owned and controlled by socially and economical y disadvantaged
individuals in the community, to make reasonable efforts to use these in titutions, and to
encourage prime contractors on DOT-assisted contracts to make use of these in titutions.
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Information on the availability of such institutions can be obtained from he DBE Liaison
Officer. The Caltrans Disadvantaged Business Enterprise Program may offe assistance to the
DBE Liaison Officer.
IX Directory (S26.31)
The City of Campbell will refer interested persons to the DBE directory a ailable from the
Caltrans Disadvantaged Business Enterprise Program website at www.dot.ca.g v/hq/bep.
X Overconcentration (926.33)
The City of Campbell has not identified any types of work in DOT -assisted co tracts that have a
overconcentration of DBE participation. If in the future The City of Campbell identifies the need
to address overconcentration, measures for addressing overconcentration will b submitted to the
DLAE for approval.
XI Business Development Programs (926.35)
The City of Campbell does not have a business development or mentor-proteg ~ program. If the
City of Campbell identifies the need for such a program in the future, the rati( nale for adopting
such a program and a comprehensive description of it will be submitted 0 the DLAE for
approval.
XII Required Contract Clauses (SS26.13,26.29)
Contract Assurance
The City of Campbell ensures that the following clause is placed in every DO" -assisted contract
and subcontract:
The contractor or subcontractor shall not discriminate on the basis of race, colc r, 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 recipient deems appr priate.
Prompt Payment
The City of Campbell ensures that the following clauses or equivalent will be included in each
DOT-assisted prime contract:
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Satisfactory Performance
The prime contractor agrees to pay each subcontractor under this prime contra t for satisfactory
performance of its contract no later than 10 days from the receipt of each p yment the prime
contractor receives from the City of Campbell. 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 Campbell. This clause applies to both DBE and non-DBE subcontracto s.
Release of Retainage
The prime contractor agrees further to release retainage payments to each suI contractor within
30 days after the subcontractor's work is satisfactorily completed. Any delay 0 postponement of
payment from the above referenced time frame may occur only for good cause following written
approval of the City of Campbell. This clause applies to both DBE and non-DEE subcontractors.
XIII Monitoring and Enforcement Mechanisms (S26.37)
The City of Campbell will assign a Resident Engineer (RE) or Contract Manag er to monitor and
track actual DBE participation through contractor and subcontractor report of payments in
accordance with the following:
After Contract Award
After the contract award, the City of Campbell will review the award docume ts for the portion
of items each DBE and first tier subcontractor will be performing and the d< lIar value of that
work. With these documents the RE/Contract Manager will be able to determine the work to be
performed by the DBEs or subcontractors listed.
Preconstruction Conference
A preconstruction conference will be scheduled between the RE and the c )ntractor or their
representative to discuss the work each DBE subcontractor will perform.
Before work can begin on a subcontract, the local agency will require the cont actor to submit a
completed "Subcontracting Request," Exhibit 16-B of the LAPM or equivale t. When the RE
receives the completed form it will be checked for agreement of the first tier s Llbcontractors and
DBEs. The RE will not approve the request when it identifies someone othe than the DBE or
first tier subcontractor listed in the previously completed "Local Ager cy Bidder DBE
Information," Exhibit IS-G. The "Subcontracting Request" will not be ar proved until any
discrepancies are resolved. If an issue cannot be resolved at that time, or th~re is some other
concern, the RE will require the contractor to eliminate the subcontractor i question before
signing the subcontracting request. A change in the DBE or first tier subcontractor may be
addressed during a substitution process at a later date.
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Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE Information" will
be compared to those listed in the completed Exhibit 16-1 of the LAP M or equivalent.
Differences must be resolved by either making corrections or requesting a subst tution.
Substitutions will be subject to the Subletting and Subcontracting Fair Pra tices Act (FP A).
Local agencies will require contractors to adhere to the provisions within. Subletting and
Subcontracting Fair Practices Act (State Law) Sections 4100-4144. FP A requ res the contractor
to list all subcontractors in excess of one half of one percent (0.5%) of the cor tractor's total bid
or $10,000, whichever is greater. The statute is designed to prevent bid shoppi hg by contractors.
The FP A explains that a contractor may not substitute a subcontractor listed ih the original bid
except with the approval of the awarding authority.
The RE will give the contractor a blank Exhibit 17-F, "Final Report Utilization of Disadvantaged
Business Enterprises, First Tier Subcontractors" and will explain to them that he document will
be required at the end of the project, for which payment can be withheld, in onformance with
the contract.
Construction Contract Monitoring
The RE will ensure that the RE's staff (inspectors) know what items of work each DBE is
responsible for performing. Inspectors will notify the RE immediately of appar nt violations.
When a firm other than the listed DBE subcontractor is found performing the Nork, the RE will
notify the contractor of the apparent discrepancy and potential loss of payment. Based on the
contractor's response, the RE will take appropriate action: The DBE Lia'son Officer will
perform a preliminary investigation to identify any potential issues rela ed to the DBE
subcontractor performing a commercially useful function. Any substanti' e issues will be
forwarded to the Caltrans Disadvantaged Business Enterprise Program. If the contractor fails to
adequately explain why there is a discrepancy, payment for the work will be wi hheld and a letter
will be sent to the contractor referencing the applicable specification violatio and the required
withholding of payment.
If the contract requires the submittal of a monthly truck document, the contract r will be required
to submit documentation to the RE showing the owner's name; California Hl;hway Patrol CA
number; and the DBE certification number of the owner of the truck for each ruck used during
that month for which DBE participation will be claimed. The trucks will be Ii ted by California
Highway Patrol CA number in the daily diary or on a separate piece of paper Dhr documentation.
The numbers are checked by inspectors regularly to confirm compliance.
Providing evidence of DBE payment is the responsibility of the contractor.
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Substitution
When a DBE substitution is requested, the RE/Contract Manager will reques a letter from the
contractor explaining why substitution is needed. The RE/Contract Manage must review the
letter to be sure names and addresses are shown, dollar values are included, <: nd reason for the
request is explained. If the RE/Contract Manager agrees to the substitution the RE/Contract
Manager will notify, in writing, the DBE subcontractor regarding the proposei substitution and
procedure for written objection from the DBE subcontractor in accordance w'th the Subletting
and Subcontracting Fair Practices Act. If the contractor is not meeting the cont act goal with this
substitution, the contractor must provide the required good faith effort to the RE/Contract
Manager for local agency consideration.
If there is any doubt in the RE/Contract Manager's mind regarding the requestd substitution, the
RE/Contract Manager may contact the DLAE for assistance and direction.
Record KeeoinQ: and Final Reoort Utilization of DisadvantaQ:ed Business Enterr rises
The contractor shall maintain records showing the name and address )f each first-tier
subcontractor. The records shall also show:
1. The name and business address, regardless of tier, of every DBE subcontra~tor, DBE vendor
of materials and DBE trucking company.
2. The date of payment and the total dollar figure paid to each of the firms.
3. The DBE prime contractor shall also show the date of work performed b, their own forces
along with the corresponding dollar value of the work claimed toward DBE goals.
When a contract has been completed the contractor will provide a summary of the records stated
above. The DBE utilization information will be documented on Exhibit 7-F and will be
submitted to the DLAE attached to the Report of Expenditures. The RE will compare the
completed Exhibit 17-F to the contractor's completed Exhibit 15-G and, if lpplicable, to the
completed Exhibit 16-B. The DBEs shown on the completed Exhibit 17-F sho ld be the same as
those originally listed unless an authorized substitution was allowed, or the cor tractor used more
DBEs and they were added. The dollar amount should reflect any changes mad" in planned work
done by the DBE. The contractor will be required to explain in writing why the names of the
subcontractors, the work items or dollar figures are different from what was or ginally shown on
the completed Exhibit 15-G when:
. There have been no changes made by the RE.
. The contractor has not provided a sufficient explanation in the comme ts section of the
completed Exhibit 17-F.
The explanation will be attached to the completed Exhibit 17-F for submittal. The RE will file
this in the project records.
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The local agency's Liaison Officer will keep track of the DBE certification sta us on the Internet
at www.dot.ca.gov/hq/bep and keep the RE informed of changes that affect the contract. The RE
will require the contractor to act in accordance with existing contractual comm tments regardless
of decertification.
The DLAE will use the PS&E checklist to monitor the City of Campbell's commitment to
require bidders list information to be submitted to the City of Campbell from t le awarded prime
and subcontractors as a means to develop a bidders list. This monitoring will only take place if
the bidders list information is required to be submitted as stipulated in the speci 11 provisions.
The City of Campbell will bring to the attention of the DOT through the DLAE 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 t le DOT Inspector
General, action under suspension and debarment or Program Fraud and Civ I Penalties rules)
provided in ~26.1 09. The City of Campbell also will consider similar action ur der our own legal
authorities, including responsibility determinations in future contracts.
XIV Overall Goals (~26.45)
Amount of Goal
The City of Campbell's overall goal for the Federal fiscal year FY 2000101 is )% of the Federal
financial assistance in FHW A-assisted contracts. The overall goal of 0% was determined based
on several unusual factors as listed below:
- The City of Campbell anticipates the award of only one minor FHW P assisted contract
during Federal FY 2000101
-this contract will be for the installation of City furnished materials on a ld within existing
facilities only - no new construction will be required
-the installation of this material requires a rather specialized electricallsi snal contractor
-a thorough review of the Caltrans DBE Directory and other DBE s )urces within the
anticipated market area for this smaller sized project did not reveal he availability of
DBE firms able to perform this type of work.
A more detailed review of the establishment of the City's goal follows.
Methodolo~
Step 1. Determination of the Base Figure for the Overall Goal
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The City of Campbell has elected to establish the Base Figure by utilizing he Caltrans DBE
Directory for 1997 (latest available data from Caltrans) of certified firms in th County of Santa
Clara (market area) to calculate the numerator, and the Census Bureau dat for 1997 (latest
available SCI data from Census Bureau) for the County of Santa Clara to calculate the
denominator. Based on a review of past work completed within the City 0 Campbell of the
same size and scope, the market area for establishment of the current goal was determined to be
the County of Santa Clara. It is unlikely that firms outside of this area would id on a project of
this size and scope.
The City of Campbell has elected to establish the Base Figure by utilizing he Caltrans DBE
Directory for 1997 (latest available data from Caltrans) of certified firms in th County of Santa
Clara (market area) to calculate the numerator, and the Census Bureau dat for 1997 (latest
available SCI data from Census Bureau) for the County of Santa Clara to calculate the
denominator. Based on a review of past work completed within the City 0 Campbell of the
same size and scope, the market area for establishment of the current goal was determined to be
the County of Santa Clara. It is unlikely that firms outside of this area would 1 id on a project of
this size and scope.
Upon Establishing the Base Figure, the City of Campbell reviewed and asse sed other known
data to determine what additional adjustments, if any, were needed to tailor t e Base Figure to
the City of Campbell's marketplace. The factors considered in determil ing the City of
Campbell's DBE participation that can be expected, absent discrimination, inc uded a review of
past capacity of DBEs measured by actual attainments based on actual D 3E utilization on
projects for fiscal years 1997/98, 1998/99 and 1999/2000.
Below is a narrative of the methodology with statistical data utilized in establ shing the City of
Campbell's overall annual goal for its DBE goal.
I. DOT -ASSISTED CONTRACTING PROGRAM FOR FY 20 )0/01
Work Category
SIC Category Estimated Dollar Value
% of Federa Funding
By Work Ca egory
Detectors (C8608)
1611
$ 24,000
1 0%
10
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II. DETERMINATION OF A BASE FIGURE
The Base Figure is intended to be a measurement of the current percentage of eady, willing and
able businesses that are DBE's in the County of Santa Clara (Market Place).
STEP 1
SIC 1611 0 Caltrans DBE Directory Firms
Detectors 3121 Census Bureau Firms (CBP)
Base Figure = 1.Or 0 DBE's in SIC 16111
3121
Base Figure = 1.00x[ 0/3121 ]
Base Figure = 0%
STEP 2: Adjusting the Base Figure:
Historical data for federally assisted projects within the City of Campbell for FY 1997/98
through FY 2000/01 is presented below:
FY 1997/98 - FY 1999/00 HISTORICAL DATA
Work Category Project Name Amount Paid Amount Paid DBEG oal DBE
To Contractors To DBE Firms Attainment
Resurfacing/Highway Hamilton ISTEA $1,930,216 $ 325,322 1 00;1 16.8% I
Resurfacing/Highway Hamilton/Eden $ 286,269 $ 115,076 1 00;1 40.2%
Total Resurfacing/Highway $2,216,485 $ 440,398 10% 19.9%
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Historical data for projects that include only Past DBE goals have been exceeded for all
Federally assisted projects within the City of Campbell. However, DBE ut" ization by prime
contractors in these past contracts has been primarily in certain types of con truction, such as
trucking, paving fabric and road oils, traffic control, traffic striping, concrete and landscaping.
For these work categories, there are many Caltrans certified DBE's within th County of Santa
Clara and the DBE goals were met successfully. For the current wor category under
consideration, detector installation, there are no available Caltrans certified BE's within the
County of Santa Clara.
JUSTIFICATION
The City of Campbell does not believe an adjustment to the base figure as det rmined in Step 1
is appropriate for setting a goal for the FY 2000/01 federally assisted proje t currently under
consideration due to the following unique factors:
-Due to the lack of certified DBE contractors in the "Detector" wor category for our
market area, it is anticipated that the project will be bid and complet d by a non DBE
certified prime contractor specializing in traffic signal detector install a ions and will not
include opportunities for any portion of the work to be subcontracted t a certified DBE
subcontractor
-Due to the small size of the proposed installation contract, it is anti ipated that DBE
prime contractors outside of our immediate County area who woul be qualified to
complete the work will not consider bidding on the work
-No disparity studies have been found or are known to exist which refle t the Santa Clara
County market.
Again, due to the nature of current FY 2000/01 Federally assisted project, the City of Campbell
does not anticipate meeting any portion of the proposed 0% goal for DBE part' cipation utilizing
race-neutral methods.
Breakout of Estimated Race-Neutral and Race -Conscious Participation
In the future, the City of Campbell may establish individual project contract gals only on those
FHW A or any other federally funded contracts that have subcontracting oppo unities. The goal
for each project will be based on past participation of DBE's in similar projects and the
availability of such firms. The individual goal will then be incorporated into the contract
documents and stated as a percentage of the total amount of contract.
The City of Campbell will monitor its progress during the course of th year to ensure
compliance with DBE program requirements.
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Process
Starting with the Federal fiscal year 2002, the amount of overall goal, the meth d to calculate the
goal and the breakout of estimated race-neutral and race-conscious participation will be required
annually by June 1 in advance of the Federal fiscal year beginning October 1 f( r FHW A-assisted
contracts. Submittals will be to the Caltrans' DLAE. An exception to this will Je ifFTA or FAA
recipients are required by FT A or FAA to submit the annual information to tl em or a designee
by another date. FHW A recipients will follow this process:
Once the DLAE has responded with preliminary comments and the comnents have been
incorporated into the draft overall goal information, the City of Campbell will I ublish a notice of
the proposed overall goal, informing the public that the proposed goal anc its rationale are
available for inspection during normal business hours at the City of Campbell s principal office
for 30 days following the date of the notice, and informing the public that the City of Campbell
comments will be accepted on the goals for 45 days following the da e of the notice.
Advertisements in newspapers, minority focus media, trade publications, and w;:bsites will be the
normal media to accomplish this effort. The notice will include addresses to which comments
may be sent and addresses (including offices and websites) where the proposal nay be reviewed.
The overall goal resubmission to the Caltrans DLAE, will include a summary ( f information and
comments received during this public participation process and the Cit.J of Campbell's
responses. This will be due by September 1 to the Caltrans DLAE. The r:: LAE will have a
month to make a final review so the City of Campbell may begin using thp overall goal on
October 1 of each year.
XV Contract Goals (~26.51)
The City of Campbell will use contract goals to meet any portion of the overa I goal the City of
Campbell does not project being able to meet by the use of race-neutral mea s. Contract goals
are established so that, over the period to which the overall goal applies, they will cumulatively
result in meeting any portion of the overall goal that is not projected to be met hrough the use of
race-neutral means.
Contract goals will be established only on those DOT -assisted contracts that ha ve subcontracting
possibilities. Contract goals need not be established on every such contrac , 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). The contract work items
will be compared with eligible DBE contractors willing to work on the project. A determination
will also be made to decide which items are likely to be performed by the pri ne contractor and
which ones are likely to be performed by the subcontractor(s). The gJal will then be
incorporated into the contract documents. Contract goals will be expressed as a percentage of the
total amount of a DOT-assisted contract.
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XVI Transit Vehicle Manufacturers (926.49)
If DOT -assisted contracts will include transit vehicle procurements, the City of Campbell will
require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on
transit vehicle procurements, to certify that it has complied with the requiremer ts of 49 CFR Part
26, Section 49. The City of Campbell will direct the transit vehicle manufact rer to the subject
requirements located on the Internet at http://osdbuweb.dot.gov/programs/dbe/dbe.htm.
XVII Good Faith Efforts (926.53)
Information to be Submitted
The City of Campbell treats bidders'/offerors' compliance with good faith effo"1 requirements as
a matter of responsiveness. A responsive proposal is meeting all the ree uirements of the
advertisement and solicitation.
Each solicitation for which a contract goal has been established will require the bidders/offerors
to submit the following information to 70 North First Street, Campbell, CA 9 008 no later than
4:00 p.m. on or before the fourth day, not including Saturdays, Sundays at d legal holidays,
following bid opening:
1. The names and addresses of known DBE firms that will participate in the ccntract;
2. A description of the work that each DBE will perform;
3. The dollar amount of the participation of each DBE firm participation;
4. Written and signed documentation of commitment to use a DBE sub"ontractor whose
participation it submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating 'n the contract as
provided in the prime contractor's commitment; and
6. If the contract goal is not met, evidence of good faith efforts.
Demonstration of Good Faith Efforts
The obligation of the bidder/offeror is to make good faith efforts. The 1 idder/offeror can
demonstrate that it has done so either by meeting the contract goal or docurr enting good faith
efforts. Examples of good faith efforts are found in Appendix A to part 26 whi( h is attached.
The following personnel are responsible for determining whether a bidder/of eror who has not
met the contract goal has documented sufficient good faith efforts to be regar< ed as responsive:
Michelle Quinney, City Engineer, and Derek Gade, Senior Civil Engineer.
The City of Campbell will ensure that all information is complete and accura e and adequately
documents the bidder/offeror's good faith efforts before a commitment to the performance of the
contract by the bidder/offeror is made.
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Administrative Reconsideration
Within 10 days of being informed by the City of Campbell that it is not respon~ ive because it has
not documented sufficient good faith efforts, a bidder/offeror may reqw st administrative
reconsideration. Bidder/offerors should make this request in writing 0 the following
reconsideration official: Bob Kass, Public Works Director, 70 North First U, Campbell, CA
95008, (408)866-2150, BobK@ci.campbell.ca.us. The reconsideration offic al will not have
played any role in the original determination that the bidder/offeror did no make document
sufficient good faith efforts.
As part of this reconsideration, the bidder/offeror will have the opportunity ip provide written
documentation or argument concerning the issue of whether it met the goal I'lr made adequate
good faith efforts to do so. The bidder/offeror will have the opportunity to m et in person with
the reconsideration official to discuss the issue of whether it met the goal or m, de adequate good
faith efforts to do. The City of Campbell will send the bidder/offeror a witten decision on
reconsideration, explaining the basis for finding that the bidder did or did no meet the goal or
make adequate good faith efforts to do so. The result of the reconsiderati m process is not
administratively appealable to Caltrans, FHW A or the DOT.
Good Faith Efforts when a DBE is Replaced on a Contract
The City of Campbell will require a contractor to make good faith efforts to rep ace a DBE that is
terminated or has otherwise failed to complete its work on a contract with anot er certified DBE,
to the extent needed to meet the contract goal. The prime contractor is require to notify the RE
immediately of the DBE's inability or unwillingness to perform and plOvide reasonable
documentation.
In this situation, the prime contractor will be required to obtain the City of Campbell's prior
approval of the substitute DBE and to provide copies of new or amendec subcontracts, or
documentation of good faith efforts. If the contractor fails or refuses to cc mply in the time
specified, the City of Campbell's contracting office will issue an order stoPI ing all or part of
payment/work until satisfactory action has been taken. If the contractor still f, ils to comply, the
contracting officer may issue a termination for default proceeding.
XVIII Counting DBE Participation CS26.55)
The City of Campbell will count DBE participation toward overall and contract goals as provided
in the contract specifications for the prime contractor, subcontractor, joint ve ture partner with
prime or subcontractor, or vendor of material or supplies.
XIX Certification CS26.83(a))
The City of Campbell ensures that only DBE firms currently certified on the ( altrans' directory
will participate as DBEs in our program.
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XX Information Collection and Reporting
Bidders List
The City of Campbell will create and maintain a bidders list, consisting of inti rmation about all
DBE and non-DBE firms that bid or quote on its DOT-assisted contracts. The bidders list will
include the name, address, DBE/non-DBE status, age, and annual gross receipts of firms.
Monitoring Payments to DBEs
Prime contractors are required to maintain records and documents of payments 0 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 Camrybell, Caltrans or
FHW A. This reporting requirement also extends to any certified DBE subcontnctor.
Payments to DBE subcontractors will be reviewed by the City of Campbell 0 ensure that the
actual amount paid to DBE subcontractors equals or exceeds the dollar amollnts stated in the
schedule ofDBE participation.
Reporting to Caltrans
The City of Campbell - Final utilization of DBE participation will be repo ed to the DLAE
using Exhibit 17-F of the Caltrans' LAPM.
Confidentiality
The City of Campbell will safeguard from disclosure to third parties info mation that may
reasonably be regarded as confidential business information, consistent with ederaI, state, and
local laws.
Robert Kass, Public Works Director
Date:
This Disadvantaged Business Enterprises Program is accepted by:
Michelle Quinney, DBELO
Date:
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APPENDIX A TO PART 26 - GUIDANCE CONCERNING
GOOD FAITH EFFORTS
I. When, as a recipient, you establish a contract goal on a DOT-assisted contract, bidder must, in
order to be responsible and/or responsive, make good faith efforts to meet the g )al. The bidder
can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting
commitments forparticipation by DBE firms sufficient for this purpose. Seconc, even if it
doesn't meet the goal, the bidder can document adequate good faith efforts. Thi means that the
bidder must show that it took all necessary and reasonable steps to achieve a DI E goal or other
requirement of this part which, by their scope, intensity, and appropriateness to he objective,
could reasonably be expected to obtain sufficient DBE participation, even if the v were not fully
successful.
II. In any situation in which you have established a contract goal, part 26 requires ou to use the
good faith efforts mechanism of this part. As a recipient, it is up to you to make a fair and
reasonable judgment whether a bidder that did not meet the goal made adequate good faith
efforts. It is important for you to consider the quality, quantity, and intensity of he different
kinds of efforts that the bidder has made. The efforts employed by the bidder should be those that
one could reasonably expect a bidder to take if the bidder were actively and agg essively trying
to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro L'orma efforts are
not good faith efforts to meet the DBE contract requirements. We emphasize, h wever, that you
determination concerning the sufficiency of the firm's good faith efforts is ajucgment call:
meeting quantitative formula is not required.
III. The department also strongly cautions you against requiring that a bidder meet contract goal
(i.e., obtain a specified amount ofDBE participation) in order to be awarded a contract, even
though the bidder makes an adequate good faith efforts showing. This rule spec fically prohibits
you from ignoring bona fide good faith efforts.
IV. The following is a list of types of actions that you should consider as part of the bidder's good
faith efforts to obtain DBE participation. It is not intended to be a mandatory c ecklist, nor is it
intended to be exclusive or exhaustive. Other factors or types of efforts may be relevant in
appropriate cases.
A. Soliciting through all reasonable and available means (e.g. attendance a pre-bid
meetings, advertising and/or written notices) the interest of all certified )BE's who have
the capability to perform the work of the contract. The bidder must soli it this interest
within sufficient time to allow the DBEs to respond to the solicatation. T'he bidder must
determine with certainty if the DBE's are interested by taking appropria e steps to follow
up initial solicitations.
B. Selecting portions of the work to be performed by DBE's in order to inc ease the
likelihood that the DBE goals will be achieved. This includes, where arpropriate, where
appropriate, breaking out contract work items into economically feasibll units to facilitate
DBE participation, even when the prime contractor might otherwise pre er to perform
these work items with its own forces.
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C. Providing interested DBEs with adequate information ab ut the plans~
specifications, and requirements of the contract in a time y manner to assist then
in responding to a solicitation.
D. (1) Negotiating in good faith with interested DBEs. It is the bidder's
responsibility to make a portion of the work available to )BE subcontractors and
suppliers and to select those portions of the work or mate ial needs consistent with
the available DBE subcontractors and suppliers, so as to acilitate DBE
participation. Evidence of such negotiation includes the lames, addresses, and
telephone numbers of DBEs that were considers; a descri ption of the information
provided regarding the plans and specifications for the w)rk selected for
subcontracting; and evidence as to why additional agreen ents could not be
reached for DBEs to perform the work.
(2) A bidder using good business judgment would con ider a number of factors
in negotiating with subcontractors, including DBE subcontractors, and would take
a firm's price and capabilities as well as contract 10als into consideration.
However, the fact that there may be some additional cos s involved in finding and
using DBEs is not in itself sufficient reason for a bidier's failure to meet the
contract DBE goal, as long as such costs are reasona Ie. Also, the ability or
desire of a prime contractor to perform the work of a contract with its own
organization does not relieve the bidder of the responsi Jility to make good faith
efforts. Prime contractors are not, however, required to , ccept higher quotes from
DBEs if the price difference is excessive or unreasonable
E. Not rejecting DBEs as being unqualified without so nd reasons based on a
thorough investigation of their capabilities. The contra::tor's standing within its
industry, membership in specific groups, organizaticns, or associations and
political or social affiliations (for example union vs. no l-union employee status)
are not legitimate causes for the rejection or non-so icitation of bids in the
contractor's efforts to meet the project goal.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or
insurance as required by the recipient or contractor.
G. Making efforts to assist interested DBEs in obtainir g necessary equipment,
supplies, materials, or related assistance or services.
H. Effectively using the services of available mine rity/women community
organizations; minority/women contractors' groups; bcal, state, and Federal
minority/women business assistance offices; and other organizations as allowed
on a case-by-case basis to provide assistance in the reCf itment and placement of
DBEs.
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IV. In determining whether a bidder has made good faith efforts, you may tak into account the
performance of other bidders in meeting the contract. For example, when the a parent successful
bidder fails to meet the contract goal, but others meet it, you may reasonably ra se the question of
whether, with additional reasonable efforts, the apparent successful bidder c uld have met the
goal. If the apparent successful bidders fails to meet the goal, but meets or e eeds the average
DBEs participation obtained by the other bidders, you may view this, in conj nction with other
factors, as evidence of the apparent successful bidder having made good faith e forts.
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