It is the policy of the City of Tacoma that citizens be afforded an opportunity for full participation in our free enterprise system and that historically underutilized business enterprises shall have an equitable opportunity to participate in the performance of City contracts. The City finds that in its contracting for supplies, services and public works, there has been historical underutilization of small and minority-owned businesses located in certain geographically and economically disfavored locations and that this underutilization has had a deleterious impact on the economic well-being of the City. The purpose of this chapter is to remedy the effects of such underutilization through use of narrowly tailored contracting requirements to increase opportunities for historically underutilized businesses to participate in City contracts. It is the goal of this chapter to facilitate a substantial procurement, education, and mentorship program designed to promote equitable participation by historically underutilized businesses in the provision of supplies, services, and public works to the City. It is not the purpose of this chapter to provide any person or entity with any right, privilege, or claim, not shared by the public, generally, and this chapter shall not be construed to do so. This chapter is adopted in accordance with Chapter 35.22 RCW and RCW 49.60.400.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28625 Ex. A, 2019-11-05)
Terms used in this chapter shall have the following meanings unless defined elsewhere in the Tacoma Municipal Code (“TMC”), or unless the context in which they are used clearly indicates a different meaning.
A. 
1.07.020.A.
B. 
1.07.020.B.
“Bid”
means an offer submitted by a Respondent to furnish Supplies, Services, and/or Public Works in conformity with the Specifications and any other written terms and conditions included in a City request for such offer.
“Bidder”
means an entity or individual who submits a Bid, Proposal or Quote. See also “Respondent.”
C. 
1.07.020.C.
“Certified business”
means an entity that has been certified as a Disadvantaged Business Enterprise (“DBE”), Small Business Enterprise (“SBE”), Minority Business Enterprise (“MBE”), Women Business Enterprise (“WBE”), or Minority and Women’s Business Enterprise (“MWBE”) by the Washington State Office of Minority and Women’s Business Enterprise.
“City”
means all Departments, Divisions and agencies of the City of Tacoma.
“Contract”
means any type of legally binding agreement regardless of form or title that governs the terms and conditions for provision of supplies, services, or public works to the City. Contracts include the terms and conditions found in Specifications, Bidder or Respondent Submittals, and purchase orders issued by the City.
“Contractor”
means any Person that presents a Submittal to the City, enters into a Contract with the City, and/or performs all or any part of a Contract awarded by the City, for the provision of Public Works, or Non-Public Works and Improvements, Supplies or Services.
D. 
1.07.020.D.
E. 
1.07.020.E.
F. 
1.07.020.F.
G. 
1.07.020.G.
“Goals”
means the annual level of participation by Certified Businesses in City Contracts as established in this chapter, the Program Regulations, or as necessary to comply with applicable federal and state nondiscrimination laws and regulations. Goals or requirements for individual Contracts may be adjusted as provided for in this chapter or in regulations and shall not be construed as a minimum for any particular Contract or for any particular geographical area.
H. 
1.07.020.H.
I. 
1.07.020.I.
J. 
1.07.020.J.
K. 
1.07.020.K.
L. 
1.07.020.L.
M. 
1.07.020.M.
N. 
1.07.020.N.
O. 
1.07.020.O.
P. 
1.07.020.P.
“Person”
means individuals, companies, corporations, partnerships, associations, cooperatives, any other legally recognized business entity, legal representative, trustee, or receivers.
“Program manager”
means the individual appointed, from time to time, by the City’s Community and Economic Development Director to administer the Program Regulations.
“Program regulations”
means the written regulations and procedures adopted pursuant to this chapter for procurement of Supplies, Services and Public Works.
“Proposal”
means a written offer to furnish Supplies or Services in response to a Request for Proposals. This term may be further defined in the Purchasing Policy Manual and/or in competitive solicitations issued by the City.
“Public works (or “public works and improvements”)
means all work, construction, alteration, repair, or improvement other than ordinary maintenance, executed at the cost of the City, or that is by law a lien or charge on any property therein. This term includes all Supplies, materials, tools, and equipment to be furnished in accordance with the Contract for such work, construction, alteration, repair, or improvement.
Q. 
1.07.020.Q.
“Quote”
means a competitively solicited written offer to furnish Supplies or Services by a method of procurement that is less formalized than a Bid or a Proposal. This term may be further defined in the Purchasing Policy Manual.
R. 
1.07.020.R.
“Respondent”
means any entity or Person, other than a City employee, that provides a Submittal in response to a request for Bids, Request for Proposals, Request for Qualifications, request for quotes or other request for information, as such terms are defined in Section 1.06.251 TMC. This term includes any such entity or Person whether designated as a supplier, seller, vendor, proposer, Bidder, Contractor, consultant, merchant, or service provider that; (1) assumes a contractual responsibility to the City for provision of Supplies, Services, and/or Public Works; (2) is recognized by its industry as a provider of such Supplies, Services, and/or Public works; (3) has facilities similar to those commonly used by Persons engaged in the same or similar business; and/or (4) distributes, delivers, sells, or services a product or performs a Commercially Useful Function.
S. 
1.07.020.S.
“Services”
means non-Public Works and Improvements services and includes professional services, personal services, and purchased services, as such terms are defined in Section 1.06.251 TMC and/or the City’s Purchasing Policy Manual.
“Submittal”
means Bids, Proposals, Quotes, qualifications or other information submitted in response to requests for Bids, Requests for Proposals, Requests for Qualifications, requests for Quotations, or other City requests for information, as such terms are defined in Section 1.06.251 TMC.
“Supplies”
means materials, Supplies, and other products that are procured by the City through a competitive process for either Public Works procurement or Non-Public Works and Improvements procurement unless an approved waiver has been granted by the appropriate authority.
T. 
1.07.020.T.
“Tacoma public utilities service area”
means any ZIP code in which Tacoma Public Utilities maintains infrastructure or provides retail services.
U. 
1.07.020.U.
V. 
1.07.020.V.
W. 
1.07.020.W.
“Waiver”
means a discretionary decision by the City that the one or more requirements of this chapter will not be applied to a Contract or Contracts.
X. 
1.07.020.X.
Y. 
1.07.020.Y.
Z. 
1.07.020.Z.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28141 Ex. A, 2013-03-26; Ord. 28274 Ex. A, 2014-12-16; Ord. 28625 Ex. A, 2019-11-05; Ord. 28766 Ex. A, 2021-06-08; Ord. 28931 Ex. A, 2024-01-09)
A. 
No person that is engaged in the construction of public works for the City, engaged in the furnishing of laborers or craftspeople for public works of the City, or is engaged for compensation in the provision of non-public works and improvements supplies and/or services to the City, shall discriminate against any other person on the basis of race, religion, color, national origin or ancestry, sex, gender identity, sexual orientation, age, marital status, familial status, or the presence of any sensory, mental or physical disability, or “pregnancy outcomes” under TMC § 1.29.040, in employment. Such discrimination includes the unfair treatment or denial of normal privileges to a person as manifested in employment upgrades, demotions, transfers, layoffs, termination, rates of pay, recruitment of employees, or advertisement for employment.
B. 
The violation of the terms of RCW Chapter 49.60 or Chapter 1.29 TMC by any person that is engaged in the construction of public works for the City, is engaged in the furnishing of laborers or craftspeople for public works of the City, or is engaged for compensation in the provision of non-public works and improvements supplies and/or services shall result in the rebuttable presumption that the terms of this chapter have also been violated. Such violation may result in termination of any City contract the violator may have with the City and/or the violator’s ineligibility for further City Contracts.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28859 Ex. A, 2022-11-22)
A. 
The Community and Economic Development Director, or their designated Program Manager, shall be responsible for administering this chapter and obtaining compliance with respect to contracts entered into by the City and/or its contractors. It shall be the duty of the Director to pursue the objectives of this chapter by conference, conciliation, persuasion, investigation, or enforcement action, as may be necessary under the circumstances. The Director is authorized to implement an administrative and compliance program to meet these responsibilities and objectives.
B. 
The Director is hereby authorized to adopt and to amend administrative regulations known as the Program Regulations, to properly implement and administer the provisions of this chapter. The Program Regulations shall be in conformance with City of Tacoma policies and state and federal laws and be designed to encourage achievement of the Goals set forth herein.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28110 Ex. B, 2012-12-04; Ord. 28141 Ex. A, 2013-03-26; Ord. 28766 Ex. A, 2021-06-08)
(Approval as a Certified Business. Ord. 27867 Ex. A, 2009-12-15; Ord. 28110 Ex. B, 2012-12-04; Ord. 28141 Ex. A, 2013-03-26; Ord. 28147 Ex. A, 2013-05-07; Ord. 28274 Ex. A, 2014-12-16; Ord. 28625 Ex. A, 2019-11-05; Ord. 28766 Ex. A, 2021-06-08; repealed by Ord. 28931 Ex. A, 2024-01-09)
A. 
The program shall meet the following requirements:
1. 
Establishment of annual goals. The Program Regulations adopted pursuant to this chapter shall state reasonably achievable cumulative annual goals for utilization of Certified Businesses in the provision of supplies, services, and public works procured by the City. Cumulative annual goals for the participation of Certified Businesses in City contracts shall be based on the number of qualified Certified Businesses operating within the Tacoma Public Utilities Service Area. The dollar value of all contracts awarded by the City to Certified Businesses in the procurement of supplies, services, and public works shall be counted toward the accomplishment of the applicable goal.
2. 
Application to contracts. The Program Manager shall establish department/division specific requirements for Certified Business participation in City contracts in accordance with this chapter and the Program Regulations.
B. 
Exceptions. City departments/divisions or the Program Manager may request an exception to one or more of the requirements of this chapter as they apply to a particular Contract or Contracts. Exceptions may be granted in any one or more of the following circumstances:
1. 
Emergency. The supplies, services and/or public works must be provided with such immediacy that neither the City nor the contractor can comply with the requirements herein. Such emergency will be deemed documented whenever a waiver of competitive solicitation for emergency situations is authorized under Tacoma Municipal Code Chapter 1.06.257 or as may be hereinafter amended.
2. 
Not practicable. The Contract involves special facilities or market conditions or specially tailored or performance criteria-based products, such that compliance with the requirements of this chapter would cause financial loss to the City or an interruption of vital services to the public. Such circumstances must be documented by the department/division awarding the Contract and approved by the senior financial manager or, for Contracts where the estimated cost is over $500,000 (excluding sales tax), approved by the Board of Contracts and Awards (“C&A Board”).
3. 
Sole source. The supplies, services, and/or public works are available from only one feasible source, and subcontracting possibilities do not reasonably exist as documented by the department/division awarding the Contract and approved by the senior financial manager or, for Contracts where the estimated cost is over $500,000 (excluding sales tax), approved by the C&A Board.
4. 
Government purchasing. The Contract or Contracts are the result of a federal, state or inter-local government purchasing agreement and the use of such agreement in lieu of a bid solicitation conducted by the City is approved by the senior financial manager.
5. 
Lack of certified businesses. An insufficient number of qualified contractors exist to create any utilization opportunities as documented by the Program Manager.
C. 
Waiver. If, after receipt of Submittals but prior to Contract award, it is determined that due to unforeseen circumstances, a full or partial waiver of requirements is in the best interests of the City, the Director or Superintendent of the department/division awarding the Contract may request in writing that the City Manager or designee, on behalf of General Government, or the Director of Utilities or designee, on behalf of the Department of Public Utilities, approve such waiver.
Waivers may be granted only after determination by the City Manager or Director of Utilities that compliance with the requirements of this chapter would impose unwarranted economic burden on, or risk to, the City of Tacoma as compared with the degree to which the purposes and policies of this chapter would be furthered by requiring compliance.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28141 Ex. A, 2013-03-26; Ord. 28625 Ex. A, 2019-11-05; Ord. 28766 Ex. A, 2021-06-08; Ord. 28931 Ex. A, 2024-01-09)
A. 
All submittals for supplies, services, or public works and improvements contracts shall be evaluated for attainment of the Certified Business requirements established for that contract in accordance with this chapter and the Program Regulations.
B. 
The determination of Certified Business usage and the calculation of Certified Business requirements per this section shall include the following considerations:
1. 
General. The dollar value of the Contract awarded by the City to a Certified Business in the procurement of supplies, services, or public works shall be counted toward achievement of the annual goal.
2. 
Supplies. A Contractor may receive credit toward attainment of the Certified Business requirement(s) applicable to the Contract for expenditures for supplies obtained from a Certified Business; provided such Certified Business assumes the actual and contractual responsibility for delivering the supplies with its resources. The contractor may also receive credit toward attainment of the Certified Business goal for the amount of the commission paid to a Certified Business resulting from a supplies contract with the City; provided the Certified Business performs a commercially useful function in the process.
3. 
Services and public works subcontracts. Any Contract awarded to a Certified Business or a bidder that utilizes a Certified Business as a subcontractor shall receive credit toward attainment of the Certified Business requirement(s) applicable to the Contract based on the percentage of Certified Business usage stated in the bid. A contractor that utilizes a Certified Business as a subcontractor to provide services or public works shall receive a credit toward the contractor’s attainment of the Certified Business requirement applicable to the contract based on the value of the subcontract with the Certified Business.
C. 
Evaluation of competitively solicited submittals for public works and improvements and for services when a requirement has been established for the contract to be awarded shall be as follows:
1. 
When contract award is based on price. The lowest priced bid submitted by a responsive and responsible bidder will be reviewed to determine if it meets the requirement. Certified Businesses may self-count utilization or self-performance on such bids if they will perform the work for the scope the requirement is based upon. The Program Regulations may establish further requirements and procedures for self-utilization or self-performance by a bidder who is a Certified Business.
a. 
If the low bidder meets the stated Certified Business requirements, the bid shall be presumed the lowest and best responsible bid for contract award.
b. 
Any bidder that does not meet the stated Certified Business requirements shall be considered a non-responsible bidder unless a waiver of one or more of the requirements of this chapter is granted, in the City’s sole discretion, pursuant to the criteria and processes in TMC § 1.07.060C.
2. 
When contract award is based on qualifications or other performance criteria in addition to price, solicitations shall utilize a scoring system that promotes participation by certified contractors. The Program Regulations may establish further requirements and procedures for final selection and contract award, including:
a. 
Evaluation of solicitations for Architectural and Engineering (A&E) services;
b. 
Evaluation and selection of submittals in response to requests for proposals; and
c. 
Selection of contractors from pre-qualified roster(s).
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28141 Ex. A, 2013-03-26; Ord. 28625 Ex. A, 2019-11-05; Ord. 28766 Ex. A, 2021-06-08; Ord. 28931 Ex. A, 2024-01-09)
A. 
The contractor awarded a contract based on Certified Business participation shall, during the term of the contract, comply with the requirements established in said contract. To ensure compliance with this requirement following contract award, the following provisions apply:
1. 
Any substitutions for or failure to utilize or termination of Certified Businesses projected to be used must be approved in advance by the Program Manager. Substitution of one Certified Business with another shall be allowed where there has been a refusal to execute necessary agreements by the original Certified Business, a default on agreements previously made or other reasonable excuse; provided that the substitution does not increase the dollar amount of the bid.
2. 
Where it is shown that no other Certified Business is available as a substitute and that failure to secure participation by the Certified Business identified in the solicitation is not the fault of the respondent, substitution with a non-Certified Business shall be allowed; provided, that, the substitution does not increase the dollar amount of the bid.
3. 
If the Program Manager determines that the contractor has not reasonably and actively pursued the use of replacement Certified Business, such contractor shall be deemed to be in non-compliance.
B. 
Record keeping. All contracts shall require contractors to maintain relevant records and information necessary to document compliance with this chapter and the contractor's utilization of Certified Businesses, and shall include the right of the City to inspect such records.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28141 Ex. A, 2013-03-26; Ord. 28625 Ex. A, 2019-11-05; Ord. 28766 Ex. A, 2021-06-08; Ord. 28931 Ex. A, 2024-01-09)
A. 
An Advisory Committee shall monitor compliance with all provisions of this chapter and the related Regulations. The Program Manager shall establish procedures to collect data and monitor the effect of the provisions of this chapter to assure, insofar as is practical, that the remedies set forth herein do not disproportionately favor one or more racial, gender, ethnic, or other protected groups, and that the remedies do not remain in effect beyond the point that they are required to eliminate the effects of under utilization in City contracting, unless such provisions are supported by a Disparity Study. The Program Manager shall have the authority to obtain from City departments/divisions, respondents, and contractors such relevant records, documents, and other information as is reasonably necessary to determine compliance.
B. 
The Program Manager shall submit an annual report to the Community and Economic Development Director, Director of Utilities, and the City Manager detailing performance of the program. The report shall document Certified Business utilization levels, waivers, proposed modifications to the program, and such other matters as may be specified in the Program Regulations.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28110 Ex. B, 2012-12-04; Ord. 28141 Ex. A, 2013-03-26; Ord. 28625 Ex. A, 2019-11-05; Ord. 28766 Ex. A, 2021-06-08)
The Director, or designee, may investigate the employment practices of contractors to determine whether or not the requirements of this chapter have been violated. Such investigation shall be conducted in accordance with the procedures established in the Program Regulations.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28110 Ex. B, 2012-12-04; Ord. 28141 Ex. A, 2013-03-26; Ord. 28625 Ex. A, 2019-11-05)
A. 
Upon receipt of a determination of contractor violation by the Program Manager, the City Manager or Director of Utilities, as appropriate, may take the following actions, singly or together, as appropriate:
1. 
Forfeit the contractor’s bid bond and/or performance bond;
2. 
Publish notice of the contractor’s noncompliance;
3. 
Cancel, terminate, or suspend the contractor’s contract, or portion thereof;
4. 
Withhold funds due contractor until compliance is achieved;
5. 
Recommend disqualification of eligibility for future contract awards by the City (debarment) per Section 1.06.279 TMC; and/or
6. 
Any other appropriate action, including a monetary penalty as such penalties may be specified in Program Regulations.
B. 
Prior to imposing of any of the foregoing penalties, the City shall provide written notice to the contractor specifying the violation and the City’s intent to exercise such remedy or remedies. The notice shall provide that each specified remedy becomes effective within ten business days of receipt unless the contractor appeals said action to the Hearing Examiner pursuant to Chapter 1.23 TMC.
C. 
When non-compliance with this chapter or the Program Regulations has occurred, the Program Manager and the department/division responsible for enforcement of the contract may allow continuation of the contract upon the contractor’s development of a plan for compliance acceptable to the Director.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28110 Ex. B, 2012-12-04; Ord. 28141 Ex. A, 2013-03-26; Ord. 28625 Ex. A, 2019-11-05; Ord. 28931 Ex. A, 2024-01-09)
It shall be unlawful for any Person to willfully prevent or attempt to prevent, by intimidation, threats, coercion, or otherwise, any Person from complying with the provisions of this chapter.
(Ord. 27867 Ex. A, 2009-12-15)
If any section of this chapter or its application to any Person or circumstance is held invalid by a court of competent jurisdiction, then the remaining sections of this chapter, or the application of the provisions to other Persons or circumstances, shall not be affected.
(Ord. 27867 Ex. A, 2009-12-15)
This chapter shall be in effect until such point in time that the City Council shall determine, after third party analyses, whether substantial effects or lack of opportunity of Certified Businesses remain true in the relevant market and whether, and for how long, some or all of the requirements of this chapter should remain in effect.
The Department Director or their designee shall review this chapter with City Council standing committee on a biennial basis in order to determine whether adjustments or revisions are required and present those proposals to the City Council for approval.
(Ord. 27867 Ex. A, 2009-12-15; Ord. 28141 Ex. A, 2013-03-26; Ord. 28274 Ex. A, 2014-12-16; Ord. 28625 Ex. A, 2019-11-05; Ord. 28931 Ex. A, 2024-01-09)