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:
ADMINISTERING AGENCY
Any department or agency which administers a program involving
County financial assistance, including a grant, loan, insurance, tax
abatement or guarantee.
DIRECTOR
The Albany County Affirmative Action Director or his/her
designee.
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
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.
SMALL BUSINESS ENTERPRISE
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.
SOCIALLY AND ECONOMICALLY DISADVANTAGED INDIVIDUAL
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:
B.
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.
C.
BLACK AMERICANSIncludes persons having origins in any of the black racial groups of Africa.
D.
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.
E.
NATIVE AMERICANSIncludes persons who are American Indians, Eskimos, Aleuts or Native Hawaiians.
STATE
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.
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 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.
(1) Records of all progress payments made by prime contractors are required
on a monthly basis. Prime contractors must also report to the County
when a DBE is terminated for any reason.
(2) These records are periodically verified by obtaining certified statements
from DBE subcontractors.
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.