The following provisions shall be made conditions of all bid
specifications prepared by the Albany County Purchasing Department
which are estimated by the County to result in a contract exceeding
$100,000.
A.
The purpose of the regulations in this Article V is to achieve the objectives of Part IV of the Executive/Legislative Order for the promotion and ensuring of equal opportunity for socially and economically disadvantaged businesses. The regulations in this Article V apply to all Albany County administering agencies awarding contracts for goods and services or construction.
B.
The performance goals of these regulations are 7% for minority business
enterprises (MBEs) and 5% for women business enterprises (WBEs) which
may also be disadvantaged business enterprises (DBEs). From this point
forward DBE will represent all minorities.
C.
The workforce goals are also 7% and 5% women.
For all purposes of these regulations, the following definitions
shall apply:
Any department or agency which administers a program involving
County financial assistance, including a grant, loan, insurance, tax
abatement or guarantee.
Albany County.
The Albany County Affirmative Action Director or his/her
designee.
A business controlled by one or more socially or economically
disadvantaged individuals and whose management and daily business
operation are controlled by one or more socially or economically disadvantaged
individuals who own it. Such disadvantage may arise from cultural,
racial, chronic economic circumstances or background or other similar
cause. Such persons include, but are not limited to, citizens of the
United States (or lawfully admitted permanent residents) and who are
African Americans, Puerto Ricans, Hispanic Americans, Asian-Pacific
Americans, American Indians, Eskimos, Aleuts, Asian-Indians and women.
A concern as defined pursuant to Section 3 of the Small Business
Act and relevant regulations promulgated thereto, except that a small
business concern shall not include any concern or group of concerns
controlled by the same socially and economically disadvantaged individual
or individuals.
Those individuals who are citizens of the United States (or
lawfully admitted permanent residents) and who are women, Black Americans,
Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indians
and any other individuals found to be disadvantaged by the Small Business
Administration pursuant to Section 8(a) of the Small Business Act.
The County shall make a rebuttable presumption that individuals in
the following groups are socially and economically disadvantaged:
ASIAN-INDIAN AMERICANSIncludes persons whose origins are from India, Pakistan and Bangladesh.
ASIAN-PACIFIC AMERICANSIncludes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific and the Northern Marianas.
BLACK AMERICANSIncludes persons having origins in any of the black racial groups of Africa.
HISPANIC AMERICANSIncludes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or American, or other Spanish or Portuguese culture or origin, regardless of race.
NATIVE AMERICANSIncludes persons who are American Indians, Eskimos, Aleuts or Native Hawaiians.
The State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, the territories and possessions of
the United States and the Trust Territory of the Pacific Islands.
The Director, as he/she deems necessary or appropriate to enable
him/her to better fulfill the responsibilities, may:
A.
With the participation of other County departments and agencies as
appropriate, develop plans and specific program goals for the disadvantaged
business enterprise program; establish regular performance monitoring
and reporting systems to assure that goals are being achieved; and
evaluate the impact of County support in achieving the objectives
established by this program. The County Executive will approve any
such plan.
B.
Explain the DBE participation requirements at pre-bid conferences.
C.
Maintain a file of successful bid documents from past procurements
and permit DBEs to review and evaluate these documents.
D.
The Director of Affirmative Action will ensure the County makes periodic
outreach to the DBE community. As part of this function, the Director
will work with the Purchasing Department to provide information, advice
and technical assistance to DBEs interested in bidding County contracts.
E.
Provide DBE firms with information on future procurements and contracting
schedules.
F.
Provide information on certification procedures.
G.
Send bid notices on DBE trade associations, technical assistance
agencies, DBE economic development groups, and to DBEs with capabilities
relevant to the bid notice, as identified by the County's DBE
directory.
A.
Purchasing will work in cooperation with Affirmative Action to ensure
maximum opportunity for DBE participation. Such cooperation shall
include at least, but not limited to:
B.
County Purchasing Agent. The Albany County Purchasing Director shall:
(1)
On a periodic basis, discuss with the Director means of structuring
RFPs to facilitate DBE participation without increasing costs to the
County.
(2)
Ensure that solicitations contain clauses and goals required by this
program.
(3)
Provide bidders with information and assistance to maximize vendor
competition without respect to an owner's gender or minority
status. In addition, with the assistance of the Director, the County
Purchasing Agent will conduct periodic outreach to the DBE community
to facilitate their participation in the bid and proposal process.
(4)
Place bid notices as required by Albany County Legislature Resolution
#243 in the Dodge Bulletin, DBE trade association newsletters, major
local newspaper, as well as periodicals of interest to the disadvantaged
community.
(5)
Make bid specifications available to DBE contractor associations
and technical assistance agencies.
(6)
Provide DBEs and DBE organizations with lists of majority firms bidding
as prime contractors.
(7)
Use a lead time of at least 14 days, if allowable, for advertisements
of all invitations for bid so that all firms have ample time to develop
a complete bid package or proposal and secure necessary assistance.
A.
The Albany County Affirmative Action Department will compile and
maintain an updated DBE Directory, with copies located at the Albany
County Affirmative Action Office. The County will update the Directory
periodically to include firms certified during the previous period.
B.
The Directory will be made available to bidders and proposers to
enhance their efforts to meet the DBE goals established by the County.
The Directory will be used as a source for locating potential DBE
contractors.
C.
The County's Directory will list firms that are classified as
performing contracting and other goods and/or services solicitations.
The Directory will be organized by the type of work the contractor
desires to perform, i.e., general construction, lighting, marking,
engineering, etc.
D.
The Directory will include the firms that have passed the County's
own certification policy and those certified by other recognized agencies.
E.
The Albany County Affirmative Action Office will certify the eligibility
of DBEs and joint ventures involving DBEs that are named as competitors
for contracts to be let by the County. The Director may also accept
the certifications made by other government agencies which are in
compliance with Albany's DBE policy.
A.
Any business that desires to participate as a DBE with the County
of Albany will be required to complete and submit an application for
certification to the County. Any business that desires to participate
as a joint-venture DBE will, in addition, be required to complete
a joint venture application. The schedules must be signed and notarized
by the authorized representative of the business(es).
B.
A firm seeking certification as a DBE may or may not be required
to submit an application if either of the following applies:
(1)
The potential DBE contractor states in writing that it has submitted
the same information to or has been certified by the state government
or other federal agency that uses essentially the same definition
and ownership and control criteria as the County. In this case, the
potential DBE must obtain the information and certification (if made)
for the other agency and submit it to the County; or
(2)
The potential DBE contractor must fit the definition of the Small
Business Administration to be owned and controlled by the socially
and economically disadvantaged individuals under Section 8(a) of the
Small Business Act, as amended.
The Albany County Affirmative Action Office will process the
applications for disadvantaged business enterprise certification in
the order received, unless, at the discretion of the Director, to
do so undermines the overall objectives of the DBE program. Affirmative
Action will take at least the following steps in determining whether
a firm may be certified as a DBE.
A.
When possible, perform on-site visits to the offices of the firm
and to any job sites on which the firm is working at the time of the
eligibility investigation, except:
(1)
When the County, at its discretion or/and in conformance with federal
regulations, accepts the certification of another recipient.
(2)
When the County obtains the report of a site visit completed by another
government agency on which the County relies. A firm applying for
certification may be required to supply such report or cause the other
government agency to supply it. The County will then draw its own
conclusions regarding eligibility.
(3)
When the County recertifies a firm that it previously reviewed on-site,
and eligibility issues (e.g., change in ownership) have not arisen
that make a second visit necessary.
B.
Analyze the ownership of stock in the firm, if it is a corporation.
C.
Receive the work history of the firm.
D.
Obtain a statement from the firm of the type of work it prefers to
perform as part of the DBE program.
E.
Require the submission of additional information or verification
when existing submittals render inconclusive finding.
F.
Notify the applicant of the Director's decision within five
days of a determination.
A.
Qualifications. To qualify for certification, a firm must meet the definition of a disadvantaged business enterprise (DBE) as defined in § 305-24.
B.
Determination of business size. The first step in the certification
process is to make a determination of business size. If the applicant
is not a "small business concern," as defined below, it will not be
certified by the County, even though it may be owned and controlled
by socially and economically disadvantaged individuals and eligible
in all other respects. Even a firm certified by the Small Business
Administration (SBA) under the Section 8(a) program is not eligible
if it is not small.
(1)
The size standards established by the SBA are used for making size
determinations.
(2)
However, no firm is considered small if, including its affiliates,
it averages annual gross receipts in excess of $14 million over the
previous three fiscal years.
(3)
Contractors will still be subject to applicable lower limits established
by the SBA. For example, the SBA size limit for electrical contractors
is $7 million (average of annual gross receipts for three-year period).
The $7 million limit, rather than the $14 million ceiling, governs
in size determinations of these contractors.
(4)
For subcontractors of $10,000 or less, a firm is small under the
SBA regulations if, including its affiliates; it has no more than
500 employees.
(5)
For subcontractors over $10,000 and prime contractors, a firm is
small under the SBA regulations if, including its affiliates, it meets
the applicable standard in terms of average gross receipts, number
of employees or other measure.
(6)
All affiliates of a firm, as well as the firm itself, are considered
when determining gross receipts earned or number of persons employed.
Affiliations exist if one firm controls or has the power to control
the other, or a third party or parties control or have the power to
control both firms.
(7)
Information on gross receipts earned by an applicant is obtained
from its submission of the application.
(8)
If a firm applies for certification in more than one category (e.g.,
general construction and special trade subcontractor), the applicable
(SIC) is the one that describes the work the firm will perform under
the County contract.
C.
Socially and economically disadvantaged individuals. The Director makes a "rebuttal presumption" that individuals as defined in § 305-24 are socially and economically disadvantaged individuals. The County will generally assume that business owners who fall into one of these groups are socially and economically disadvantaged. Their disadvantaged status may or may not be investigated. Any persons having a current Section 8(a) certification from the Small Business Administration are considered to be socially and economically disadvantaged.
D.
Eligibility standards. Albany County will use the following standards
to determine whether a firm is owned and controlled by one or more
socially and economically disadvantaged individuals:
(1)
Bona fide membership in a group of socially and economically disadvantaged
individuals must be established on the basis of the applicant's
claim that he/she is a member of such group that is so regarded by
the particular disadvantaged community. However, the County is not
required to accept the claim if it is determined to be invalid.
(2)
Proof of ancestry alone is not conclusive evidence of membership
in a group of socially and economically disadvantaged individuals.
The fact that a person's grandfather or other relative belonged
to one of these groups does not necessarily qualify the applicant
as a member for purposes of DBE certification.
(3)
An eligible DBE must be an independent business. The ownership and
control by disadvantaged persons must be real, substantial and continuing
and must go beyond the pro-forma ownership of the firm as reflected
in its ownership documents. This disadvantaged ownership must enjoy
the customary incidents of ownership and must share in the risks and
profits commensurate with their ownership interests, as demonstrated
by an examination of the substance rather than form of arrangements.
Recognition of the business as a separate entity for tax or corporate
purposes is not necessarily sufficient for recognition as a DBE. In
determining whether a potential DBE is an independent business, the
County considers all relevant factors, including the date the business
was established, the adequacy of its resources for the work of the
contract and the degree to which financial, equipment leasing and
other relationships with non-DBE firms vary from industry practice.
(4)
The owners must also possess the power to direct or cause the direction
of the management and day-to-day, as well as major decisions on matters
of management, policy and operations. The firm must not be subject
to any formal or informal restrictions which limit the customary discretion
of the disadvantaged owners. There must not be restrictions through,
for example, bylaw provisions, partnership agreements or charter requirements
for cumulative voting rights or otherwise that prevent the disadvantaged
owners, without the cooperation or vote of any owner who is not socially
and economically disadvantaged, from making a business decision of
the firm.
(5)
If the owners of the firm who are not socially and economically disadvantaged
individuals are disproportionately responsible for the operation of
the firm, then the firm is not controlled by socially and economically
disadvantaged individuals and is not eligible. Where the actual management
of the firm is contracted out to individuals other than the owner,
the persons having the ultimate power to hire and fire the managers
are considered as controlling the business.
(6)
All securities which constitute ownership and/or control of a corporation
for purposes of establishing it as a DBE must be held directly by
socially and economically disadvantaged individuals. No securities
held in trust, or by any guardian for a minor, shall be considered
as held by socially and economically disadvantaged individuals in
determining the ownership or control of a corporation.
(7)
The contributions of capital or expertise by the socially and economically
disadvantaged individuals to acquire their interests in the firm shall
be real and substantial. Examples of insufficient contributions include:
a promise to contribute capital, a note payable to the firm or its
owners who are not socially or economically disadvantaged or the mere
participation as an employee, rather than as a manager.
(8)
In addition to the above standards, special consideration is given
to the following circumstances:
(a)
Newly formed firms and firms whose ownership and/or control
have changed within the prior year are closely scrutinized to determine
the reasons for the timing of the formation or change in the firm.
(b)
A previous and/or continuing employer-employee relationship
between or among present owners is carefully reviewed to ensure that
the employee-owner has management responsibilities and capabilities,
as referenced above.
(c)
Any relationship between a DBE and a non-DBE which has an interest
in the DBE is carefully reviewed to determine if the interest of the
non-DBE conflicts with the requirements for ownership and control.
(9)
A joint venture will be certified if the DBE partner of the joint
venture meets the eligibility standards, is responsible for clearly
defined portion of the work to be performed, and shares in the ownership,
control, management responsibilities, risks and profits of the joint
venture.
(10)
A joint venture is eligible to compete as a DBE contractor if
the DBE partner of the joint venture meets the eligibility standards;
the DBE partner's share in the ownership, control, management
responsibilities, risks and profits of the joint venture is at least
51%; and the DBE partner is responsible for a clearly defined portion
of the work to be performed.
(11)
A business applying for certification as a DBE or as a joint
venture DBE must cooperate with the County in supplying any additional
information which may be requested in order to make a determination.
For example, the applicant may be required to provide income tax statements.
(12)
The County safeguards from disclosure to unauthorized persons
information that reasonably may be regarded as confidential business
information, consistent with Federal, state and local law.
(13)
Firms are notified upon certification that a new application
must be submitted whenever there is a change in the firm's ownership
or control.
(14)
The denial of certification by the County is final for the particular
contract and any other contracts being let at the time of the denial
(except when the Department of Transportation or other federal agency
reverses the denial, following an appeal). Firms denied certification
may correct deficiencies in their ownership and control and reapply
for certification after two years.
A.
All solicitation for a contract will contain the DBE contract goal.
The County will follow this procedure for non-construction as well
as construction projects. Thus, the appropriate goal will be included
in all invitations for bids (IFBs) for construction work and in requests
for proposals (RFPs) for architectural, engineering and other professional
services.
(1)
The solicitation will include a statement that the apparent successful
bidder will be required to submit DBE participation information and
that, as a condition of receiving the contract, the competitor must
meet the DBE goal or demonstrate to the County that it made good-faith
efforts. The actual clause to be used is:
"The bidder/proposer shall make good faith efforts, to utilize
at least 7% MBE and 5% WBE of the dollar value of the prime contract
to small business concerns certified as disadvantaged business enterprise.
In the event that the bidder for this solicitation qualifies as a
MBE or WBE, that percent of the contract goal shall be deemed to have
been met. The apparent successful competitor will be required to submit
information concerning the DBEs that will participate in the contract.
The information will include: (1) the name and address of each DBE;
(2) whether the firm is a WBE or MBE; (3) a description of the work
to be performed by each named firm; and (4) the dollar value of the
work of the contract. If the bidder fails to achieve the contract
goal(s) stated herein, it will be required to provide documentation
demonstrating that it made good faith efforts in attempting to do
so. A bid that fails to meet these requirements will be considered
"non-responsive." Priority shall be given to businesses located in
the Capital District."
(2)
The DBE participation information will be required prior to committing
the County to award the contract to the apparent successful bidder.
A bidder may not meet the requirements of the bid specification by
stating that it will accomplish all work of the contract using its
employees. It first must demonstrate to the County's satisfaction
that it made good-faith efforts to meet the goal and, despite those
efforts, was unable to subcontract any of the work to DBEs.
B.
If the contract goal specified in the solicitation is not met, the
apparent successful competitor will be required to submit documentation
of the efforts it made. The County will then determine whether these
are "good-faith efforts." The following criteria will be used:
(1)
Whether the contractor attended any pre-solicitation or pre-bid meetings
that are scheduled by the recipient to inform DBEs of contracting
and subcontracting opportunities;
(2)
Whether the contractor advertised in general circulation, trade association
and minority-focus media concerning the subcontracting opportunities;
(3)
Whether the contractor provided written notice to a reasonable number
of specific DBEs that their interest in the contract was being solicited,
in sufficient time to allow the DBEs to participate effectively;
(4)
Whether the contractor followed up initial solicitations of interest
by contacting DBEs to determine with certainty whether the DBEs were
interested;
(5)
Whether the contractor selected portions of the work to be performed
by DBEs in order to increase the likelihood of meeting the DBE goals
(including, where appropriate, breaking down contracts into economically
feasible units to facilitate DBE participation);
(6)
Whether the contractor provided interested DBEs with adequate information
about the plans, specifications, and requirements of the contract;
(7)
Whether the contractor negotiated in good faith with interested DBEs,
not rejecting DBEs as unqualified without sound reasons based on a
thorough investigation of their capabilities.
(8)
Whether the contractor effectively used the services of available
minority community organizations, minority contractor groups; local,
state and federal minority business assistance offices, and other
organizations that provide assistance in the recruitment and placement
of DBEs.
C.
The following points apply to "good-faith efforts" determinations:
(1)
"Good-faith efforts" are those that could reasonably be expected
to result in goal attainment by a bidder who aggressively and actively
seeks to obtain DBE participation.
(2)
The above list of eight efforts is recommended by the County as ones
that bidders may make to obtain DBE participation. It does not represent
a mandatory checklist of required actions; no one or combination is
required in all classes.
(3)
The list above is not intended to be exhaustive; other factors or
efforts may be relevant in appropriate instances.
(4)
The County will examine the quantity and intensity of the efforts
as well as the type of actions taken. Efforts that are merely pro
forma are not sufficient, even though they may be sincerely motivated.
A description of the methods by which Albany County will require
contractors and subcontractors to comply with applicable DBE requirements:
A.
The County requires prime contractors to submit information on the
subcontract awards made to DBEs and non-DBEs. The information must
be reported within five days of the award and include the firm's
name, a description of the work to be performed and contract amount.
B.
Other appropriate actions will be taken to ensure that prime contractors
and subcontractors comply with the DBE provisions. These actions will
include:
(1)
Desk audits to review all material and information concerning the
contractor's compliance.
(2)
On-site reviews that include interviews, visits to project locations
and inspection of documents and/or information not available at the
desk audit that pertains to the contractor's compliance.
(3)
Any additional investigation that may be called for by a lack of
proper recordkeeping; failure of the prime contractor to cooperate;
failure of DBEs to cooperate; visible evidence of unsatisfactory performance;
other evidence as may warrant further investigation.
C.
The County will make prompt compliance determinations regarding its
prime contractors. Documentation of noncompliance will include the
specific areas in which the contractor failed to comply. In these
instances, appropriate action consistent with the DBE and other contract
provisions will be taken, and may include withholding future payments,
under the contract involved, disqualification of the contractor from
future contracting opportunities for a period not to exceed two years,
and cancellation of the contract and declaration of forfeiture of
performance bond.
D.
A decision by the Director to invoke the above sanctions shall be
issued in writing by registered mail. The contractor shall have 10
days from receipt of the decision to appeal the MBE officer's
decision to the Grievance Committee of the Albany County Legislature.
Both sides of the dispute shall have the opportunity to be heard at
a meeting of the Grievance Committee to be held within 10 days of
the receipt of an appeal, and the Committee shall send a final decision
to both sides within 10 days by registered mail (or hand delivery
in the case of the Director's copy).
Albany County will count DBE participation toward the goals
in accordance with the guidelines outlined below. Although the language
may suggest otherwise, when the contract is federally funded or federally
assisted, only the federal share of the contract amounts is counted
toward the federal goal.
A.
Once a firm is determined to be certified DBE, the total dollar value
of the contract awarded to the DBE is counted toward the DBE goal.
B.
Albany County and its contractors will count toward the DBE goals
a portion of the total dollar value of a contractor with a certified
joint venture equal to the percentage of ownership and control of
the DBE partner in the joint future.
C.
The County and its contractors will count toward the DBE goals the
total dollar value of a contract with a firm owned and controlled
by two socially and economically disadvantaged individuals; each of
whom has a 50% interest in the firm.
D.
Only expenditures to DBEs that perform a commercially useful function
in the work of a contract will be counted toward the DBE goals. A
DBE is considered to perform a commercially useful function when it
is responsible for execution of a distinct element of the work of
a contract and carrying out its responsibilities by actually performing,
managing and supervising the work involved. To determine whether a
DBE is performing a commercially useful function, the County and its
contractors will evaluate the amount of work subcontracted, industry
practices and other relevant factors.
E.
Consistent with normal industry practices, a DBE may enter into subcontracts.
If a DBE contractor subcontracts a significantly greater portion of
the work of the contract than would be expected on the basis of normal
industry practices, the DBE shall be presumed not to be performing
a commercially useful function. The DBE may present evidence to the
County to rebut this presumption.
F.
Albany County and its contractors will count toward the DBE goals
60% of expenditures for materials and supplies required under a contract
and obtained from a DBE regular dealer, and 100% of such expenditures
obtained from a DBE manufacturer.
G.
For purposes of this DBE program, a "manufacturer" is a firm that
operates or maintains a factory or establishment that produces on
the premises the materials or supplies obtained by the County or a
contractor.
H.
For purposes of this DBE program, a regular dealer is a firm that
owns, operates or maintains a store, warehouse or other establishment
in which the materials or supplies required for the performance of
the contractor are brought, kept in stock and regularly sold to the
public in the usual course of business. To be a regular dealer, the
firm must engage in, as its principal business, and its own name,
the purchase and sale of the products in question. A regular dealer
in such bulk items as steel, cement, gravel, stone and petroleum products
need not keep such products in stock, if it owns or operates distribution
equipment.
I.
The County and its contractors may count toward the DBE goals the
following expenditures to DBE firms that are not manufacturers or
regular dealers:
(1)
The fees or commissions charged for providing a bona fide service,
such as professional, technical, consultant or managerial services
and assistance in the procurement of essential personnel, facilities,
equipment, materials or supplies required for performance of the contract,
provided that the fee or commission is determined by the County to
be reasonable and not excessive as compared with fees customarily
allowed for similar services.
(2)
The fees charged for delivery of material and supplies required on
a job site (but not the cost of the material and supplies themselves)
when the hauler, trucker or delivery service is not also the manufacturer
of or a regular dealer in the materials and supplies, provided that
the fee is determined by the County to be reasonable and not excessive
as compared with fees customarily allowed for similar services.
(3)
The fees or commission charged for providing any bonds or insurance
specifically required for the performance of the contract, provided
that the fee or commission is determined by the County to be reasonable
and not excessive as compared with the fees customarily allowed for
similar services.
