[HISTORY: Adopted by the Town Board of the Town of Amherst 7-18-2005 by L.L. No. 5-2005; amended in its entirety 7-21-2014 by L.L. No. 31-2014. Subsequent amendments noted where applicable.]
This Chapter shall be known as the "Town of Amherst MBE/WBE Utilization Commitment Act."
The Town Board hereby finds, declares and determines that Town of Amherst residents comprise a diverse workforce, consisting of many local residents employed by businesses owned by minorities or women. The Town Board further finds that the existing local policy concerning MBE/WBE utilization has not been successful toward the goal of equality of opportunity for minority-owned and women-owned businesses, as it relates to contracts for the provision of goods and services to the Town of Amherst.
For the purposes of this Chapter, the following terms shall have the following meanings:
- MINORITY BUSINESS ENTERPRISE
- A business which performs a commercially useful function, at least 51% of which is owned by minority group members or, in the case of a publicly owned business, at least 51% of all stock is owned by minority group members, with such ownership certified by the Erie County Office of Equal Employment Opportunity or by a state or federal agency. For the purposes of this definition, "minority group members" are citizens of the United States who are African-American, Hispanic-American, Asian-American, and Native American (American Indian).
- Any person, business, company, entity, or independent contractor seeking to enter into contractual agreements with the Town of Amherst or an entity acting as an agent for the Town of Amherst for the provision of supplies, materials, equipment, insurance, professional, technical or other consultant services, in accordance with the Town's competitive procurement procedures, local, state and federal laws governing such agreements.
- WOMEN-OWNED BUSINESS ENTERPRISE
- A business which performs a commercially useful function, at least 51% of which is owned by a woman or women or, in the case of a publicly owned business, at least 51% of all stock is owned by a woman or women, with such ownership certified by the Erie County Office of Equal Employment Opportunity or so certified by a state or federal agency.
The following provisions shall be inserted in and made a condition of all bid specifications prepared by the Town of Amherst or its agents as follows:
All public works contracts in excess of $100,000.00;
All purchase contracts in excess of $50,000.00; and
The provisions of this Chapter shall not be applicable to any contracts which are excepted or exempted from the bidding requirements of New York State General Municipal Law § 103, including emergency, "piggybacking" and professional contracts.
Minority- and women-owned business utilization commitment.
The supplier of all which are subject to the requirements of this Chapter, shall take reasonable steps to provide equal opportunity to such firms and organizations to contract with the Town of Amherst through the utilization of a bona fide minority business enterprise (MBE) and women business enterprise (WBE) on all contracts, including entering into subcontracts with MBE/WBE firms. Reasonable action shall include, but not be limited to:
Utilizing a source list of MBEs and WBEs;
Solicitation of bids, RFQs and RFPs from MBEs and WBEs;
Providing MBEs and WBEs sufficient time to submit proposals in response to solicitations;
Maintaining records showing utilization of MBEs and/or WBEs as well as the specific efforts taken to identify and utilize these companies;
A policy goal of awarding at least 10% of the total dollar value of the Town's contribution to a contract to MBEs and/or WBEs and at least 2% of the total dollar value of the Town's contribution to regulations with respect to MBE and/or WBE hiring, the prevailing percentage set forth therein, whichever is higher, subject to a waiver as provided below; and
Entering into subcontracts with MBE/WBE firms, if appropriate and feasible, to effectuate the policy goal set forth herein.
All bidders or proposers on each contract subject to this chapter shall submit to the Purchasing Department a list of all MBEs and WBEs from which the supplier has solicited bids or proposals, or with which the supplier has signed a binding contractual agreement, or with which the contractor is presently negotiating an agreement, for the purposes of meeting the MBE and WBE utilization goals provided in Subsection B(1)(e) above.
A supplier's bid or proposal shall not be considered where the supplier fails to submit a list of MBEs and WBEs as provided for herein. A supplier's bid or proposal shall not be considered where examination of said list of MBEs and WBEs evidences failure by the supplier to comply with the requirements provided herein, except that the Town Board may grant a complete or partial waiver of the provisions of Subsection B(1)(e) herein, in accordance with § 32-5 of this chapter.
As evidence of reasonable compliance with the policy goals set forth in Subsection B(1)(e) above, the supplier shall submit to the representative of the Purchasing Department at the time of the bid a schedule for MBE and WBE participation, listing the MBEs and WBEs which the supplier intends to utilize; specifying the agreed-upon price to be paid for such goods or services and identifying in detail the contract intent or items to be supplied or performed by each MBE and WBE. Contingent upon a contract award, a letter of intent to enter into a purchase agreement, signed by both the supplier and the MBE and/or WBE, indicating the agreed-upon price and scope of work, shall be provided.
The Town Board, upon written request by the supplier and subject to the authorization of the Town Board by resolution, may grant a complete or partial waiver of the provisions of § 32-4B(1)(e) where the availability of MBEs and/or WBEs in the market area of the contract is less than the 10% MBE goal and the 2% WBE goal. However, the supplier must illustrate good faith efforts in its attempts to reach the policy goals.