Allegheny County, PA
 
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Table of Contents
Table of Contents
Chapter 435: MINORITY BUSINESS ENTERPRISE PROGRAM
[HISTORY: Adopted by the Board of County Commissioners (now County Council) of Allegheny County 6-18-1981. Amendments noted where applicable.]
ADMINISTRATIVE CODE REFERENCES
For additional information regarding competitive procurement and contracting, see Part 9.
For additional information regarding County authorities' obligation to develop policies to ensure participation of minority- and women-owned and disadvantaged business enterprises, see § 5-203.08.
GENERAL REFERENCES
Human Relations Commission and prohibitions against discriminatory practices — See Ch. 215, Art. V.
435a Policy Commitment

§ 435-1 Definitions.

As used in this Minority Business Enterprise (MBE) Program, the following terms shall have the following meanings:
AC
Allegheny County.
AGENCY
A consortium of local minority agencies/organizations which have formed to develop and implement an MBE program in conjunction with Allegheny County.
AGENCY REPRESENTATIVE
The person designated by the agency to coordinate the day-to-day activities of the MBE program.
APPLICANT
One submitting an application request or plan to be approved by a departmental official or by a primary recipient for financial assistance.
ASSISTED CONTRACT
Any contract or modification thereof between a recipient and a contractor which is paid for in whole or in part with financial assistance or any contract or modification thereof between a recipient and a lessee.
BIDDER
Any individual, partnership, joint venture, corporation or firm submitting a bid for the contract.
COMPLIANCE
The existing condition when a contractor has met and implemented all the provisions of this program.
CONTRACT
A mutually binding legal relationship or any modification thereof obligating the seller to furnish goods or services including construction, and the buyer to pay for them.
CONTRACTOR
One who obtains or participates in a contract or subcontract in any program covered by the County of Allegheny.
CONTRACT PRICE
A total bid price of the successful bidder to whom the contract is awarded.
FINANCIAL ASSISTANCE
Any grant, loan, guarantee, contract (other than a direct contract) or any other arrangement by which the County provides or otherwise makes available assistance to a recipient in the form of funds, guarantees authorized by statute as financial assistance, services of personnel, real or personal property or any interest in, or use of such property.
JOINT VENTURE
An association of two or more businesses to carry out a single business enterprise for profit, for which purpose they combine their property, capital, efforts, skill and knowledge.
LESSEE
A business or person that leases, or is negotiating to lease for the purpose of operating an activity or for the provision of goods or services to the facility or the public on the facility.
LETTER OF INTENT
A letter to the MBE signed by the prime contractor specifying the dollar value and the work to be performed by the MBE under the contract.
LIAISON OFFICER
Allegheny County's top official responsible for the MBE plan of the County, having direct contact with the Board of County Commissioners.
MANUFACTURER
A supplier that produces goods from raw materials or substantially alters them before resale. The gross proceeds from a sale by an MBE manufacturer may be credited toward the percentage for minority business utilization.
MINORITY
A person who is a citizen or lawful permanent resident of the United States and who is:
A. 
Black (a person having origin in any of the black racial groups of Africa).
B. 
Hispanic (a person of Spanish or Portuguese culture with origins in Mexico, South America or Central America or the Caribbean Islands).
C. 
Asian-American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands).
D. 
American Indian and Alaskan Native (a person having origins in any of the original peoples of North America).
E. 
Female (a woman, regardless of race or ethnicity).
MINORITY BUSINESS ENTERPRISE (MBE)
A small business that is both owned and controlled by minorities. This means that minorities must own 51% of the business, and that they must control the management and daily operations of the business. Minorities include Blacks, Hispanics, Asian-Americans, American Indians, Alaskan natives and members of other groups or other individuals whom the Small Business Administration (SBA) has determined are economically and socially disadvantaged under § 8(a) of the Small Business Act.
MINORITY BUSINESS ENTERPRISE DIRECTORY
A list of the MBE's for the County of Allegheny's contracts in keeping with the regulations of the County's MBE program, and who have been certified as having met the eligibility requirements as outlined in DOT regulations, 49 CFR Part 23, as those regulations existed on June 1, 1981.
NONCOMPLIANCE
The condition of existing when a recipient or contractor has failed to implement the MBE program requirements.
SUPPLIER
A business enterprise which owns and provides the goods or materials which it sells. The gross proceeds from a sale by a minority business supplier may be credited toward the percentage for minority business utilization.

§ 435-2 Purpose; participation goal.

The Allegheny County Commissioners recognize that minority and female enterprises have not participated in County contracts for suppliers and services to the extent that is desirable. They further recognize that there are certain impediments to achieving greater participation. Consequently, the County Commissioners are establishing a County-Wide Minority Business Enterprise (MBE) Program that will remove any impediments to minority or female involvement in County contracts and will assure the success and growth of minority business by establishing an overall goal of 13% minority and 2% female participation.

§ 435-3 Advisory Committee.

[Amended 5-20-2009 by Ord. No. 24-09[1]]
A. 
The Chief Executive and County Council will establish an MBE Advisory Committee. The purpose of this Committee will be to recommend specific MBE goals for various types of procurement of goods or services. The Committee will also monitor the County's MBE efforts on a quarterly basis.
B. 
The Chief Executive and County Council will also commit the necessary resources to implement the program that follows:
(1) 
Organization. An MBE Advisory Committee will be established that will consist of no more than 15 members, selected as follows: up to five members may be County department directors who are engaged in procurement activities; with all remaining members to be representatives of such civic, community, minority and other entities as the Chief Executive and County Council may, from time to time in their discretion, designate. The role of this Committee will be to recommend specific MBE goals for:
(a) 
Construction contracts.
(b) 
Supplies.
(c) 
Development.
(d) 
Services, including professional services.
(e) 
Monitoring progress toward these objectives on a quarterly basis, and posting written quarterly progress reports conspicuously on the County's website.
(f) 
Recommending to the Chief Executive and County Council specific activities for improving MBE participation.
(2) 
Appointment and Committee membership. All Committee members shall be appointed by the Chief Executive, with the approval of County Council. Of the initial Committee member appointments, five shall be for a term of two years, five shall be for a term of three years, and five shall be for a term of four years. Thereafter, all Committee member appointments shall be for a term of four years. In the event that the Chief Executive does not offer an appointment for approval within 30 days of the expiration of any Committee member's term, the Council shall nominate and approve an appointee for that member's seat. All seated members of County Council, the Chief Executive and the County Manager shall be deemed ineligible to serve on the Committee and shall not, at any time, serve as or perform any function of a member of the Committee. No County employee, elected County official, or party to any County contract shall serve as or perform the function of the Chair for the Committee at any time. No Committee member may serve beyond the expiration of his or her term of appointment unless and until his or her reappointment is approved.
[1]:
Editor's Note: This ordinance also provided that, upon approval, "all previously seated MBC Committee members' terms shall be deemed to have expired. New appointments shall be forwarded to Council by the Executive no later than 15 days after the effective date of this ordinance for approval. In the event that the Chief Executive does not offer an appointment for approval in accordance with the terms of this section, the Council shall nominate and approve an appointee for that member's seat."

§ 435-4 Staff.

One or more MBE staff positions will be created in the Department of Administration. The purpose of these positions will be to monitor all County bid documents, contracts and leases for proper MBE goals and language and to monitor all records and documentation on MBE involvement. These positions will act as staff to the MBE Advisory Committee reporting on progress and compiling information as requested by the Committee.

§ 435-5 Eligibility certification procedures.

A. 
All prospective MBEs (including both partners in a joint venture) wishing to participate in any AC contract or agreement must complete and submit Exhibit A[1] to AC for determination of eligibility. In addition, each business entity, including prospective MBEs wishing to participate in a joint venture, must complete and submit Exhibit B to AC for determination of eligibility.
[1]:
Editor’s Note: All exhibits are on file in the County offices.
B. 
Exceptions to the aforesaid eligibility procedures shall be considered if a potential MBE contractor states, in writing, that it has been certified by a federal agency, or another agency whose method of certification has been approved by a federal agency, or the Small Business Administration, or AC in accordance with § 8(a) of the Small Business Act, as amended, or the Associated Contractors Agency, Inc., and submits or causes the other agency to submit proof of certification. All potential MBEs should be aware, however, that AC will require proof of eligibility as an MBE and the MBE may have to be certified by the appropriate agency (such as those mentioned above, or any other agency).
C. 
Complaints shall be channeled for mediation using the following steps:
(1) 
Direct consultation and appeal to the MBE Liaison Officer.
(2) 
Upon failure to resolve through Subsection C(1) above, direct appeal is made to a special committee appointed by the County Commissioners. The County Commissioners shall determine, when appropriate, the sanctions to be administered against any contractor found to be violating his commitment under Executive Order 1162, his contract may be terminated or suspended in whole or in part, and the contractor may be declared ineligible for further government contracts in accordance with procedures as authorized in Executive Order 11625 and P.L. 95-507.
(3) 
Should the Committee be unable to resolve the problem, it shall be referred to the County Commissioners or to arbitration.

§ 435-6 Eligibility standards.

A. 
In accordance with 49 CFR Part 23, all eligible MBEs must be independent-owned businesses controlled and operated by minorities. The ownership shall be real, substantial and continuing. The minority owners shall enjoy the customary incidents of ownership, possessing the power to direct or cause the direction of management and policies of the firm on a daily basis. The firm shall not be subject to any formal or informal restrictions through bylaw provisions, partnership agreements, charter requirements or any other form, written or oral including, but not limited to, voting rights, ultimate power to hire and fire, buy-out rights, etc.
B. 
A joint venture will be acceptable and weighed individually.

§ 435-7 Equitable opportunities to obtain contracts.

A. 
AC shall adopt MBE procedures and techniques that will be consistent with sound planning, construction and procurement principles and applicable laws and policies.
B. 
The Allegheny County Commissioners shall:
(1) 
Authorize the solicitation in specific publications (to include special invitations) in order to apprise all potential bidders or proposers of Allegheny County's policy commitment to its MBE program.
(2) 
Arrange pre-bid or pre-qualification meetings to be advertised and scheduled to facilitate MBE participation.
(3) 
Provide assistance to overcome barriers in contract bid preparation, bonding requirements, financing and provide pertinent information necessary to answer bidder/proposer questions and enhance bidder/proposer opportunities to bid and to be awarded contracts in the proper manner.
(4) 
Use outside consultants, when appropriate, to assist in getting proper financial and technical MBE experience.
(5) 
Use and encourage the use of MBE banks and other financial institutions.
(6) 
Give priority to MBE suppliers and manufacturers in areas of purchasing where a department has discretion; encourage the County of Allegheny to use MBE suppliers and manufacturers in its centralized purchasing process.
(7) 
Encourage existing contractors and lessees with Allegheny County to voluntarily develop goals for use of MBE suppliers, manufacturers and financial institutions and encourage equitable employment of minorities.
(8) 
Implement MBE set-asides as an additional means when necessary to meet the County's MBE goals. Set-asides will be implemented only when at least three MBE firms with capabilities consistent with particular contract requirements can be identified, so as to permit competition, or where SBA § 8(a) type contracts can be identified.

§ 435-8 General goals.

A. 
The County Commissioners will adopt the MBE program based upon recommendations of the MBE Advisory Committee and will also provide for:
(1) 
Technical and managerial assistance to minority- and female-owned businesses by utilizing existing minority community-based organizations.
(2) 
Making a diligent effort to award contracts to minority suppliers, consultants and contractors where the County has, by law, the discretion to select its contracts.
(3) 
The encouragement of municipalities within the County to develop similar MBE programs and to assist them in implementing these programs.
B. 
In attempting to set adequate goals, the Committee will review:
(1) 
The availability of MBEs and FBEs in construction, services and related business; and the progress of existing MBE programs currently in operation within the state, and review in depth the current level of minority participation in all Allegheny County business ventures.
(2) 
MBE participation in all County business ventures.

§ 435-9 Contract goals.

Contact goals will be established using the methodology established above, and shall be calculated to achieve the overall goals set forth hereinabove. In cases where the individual contract objectives are less than those established by the MBE Participation Committee, Allegheny County shall prepare and retain a written explanation of the reason for the setting of those objectives.

§ 435-10 Prime contractor submission of MBE plan and selection criteria.

A. 
Projects. Where appropriate, solicitations shall require that bidders or those submitting proposals must:
(1) 
At the time of bid or proposals submission, identify MBEs, a description of the work to be performed by each MBE and the dollar value of the services to be provided or goods to be supplied by each MBE.
(2) 
Submit a written assurance of meeting the MBE plan submitted in the bid or proposal.
(3) 
Assure, in writing, that no agreement written, oral or tactic, between prime contractors and MBEs have or will be entered into, whereby any MBE promises, covenants or agrees not to provide quotes to other prime contractors.
(4) 
Submit a written assurance that if any MBE contractor(s) is/are unable to perform successfully that the bidder or proposer shall make every effort to replace the unsuccessful MBE with another MBE, in accordance with the MBE policy and the utilization of the resource identified to provide assistance.
B. 
Where appropriate, Allegheny County shall use the following methods to require contractors to comply with the MBE requirements:
(1) 
MBE goals shall be applicable to a wide range of contracts, in accordance with the specifications for each such contract.
(2) 
AC and its resources will provide assistance and direction in drafting and implementing the programs for MBEs.
(3) 
All efforts are to be substantiated and documented to evidence contractor's actions in complying with the MBE program.
(4) 
AC is to be advised as to exactly how much work, if any, an MBE subcontractor intends to himself contract, and to whom such work is being contracted.
C. 
The following selection procedure, or such other selection procedure as the County Solicitor may determine to be appropriate, will be used to insure that contracts are awarded to bidders who meet the MBE goals. If any bidder offering a reasonable price meets the MBE contract goal, AC shall presume that all competitors that failed to meet the goal have failed to exert sufficient reasonable efforts and consequently are ineligible to be awarded the contract. To implement this presumption:
(1) 
Allegheny County shall determine whether a bidder offering the lowest price of all those meeting the MBE contract goal has made a reasonable bid. If reasonable, that bidder shall be awarded the contract.
(2) 
If unreasonable, Allegheny County shall consider the price offered by the bidder with the highest percentage of MBE participation who has failed to meet the MBE contract goal. If the price is reasonable, Allegheny County shall award the contract to that bidder.
(3) 
If unreasonable, Allegheny County shall next consider other bidders that did not meet their goals, in order of the percentage of MBE participation, until a bidder with a reasonable price is selected.
(4) 
If no bidder with MBE participation has offered a reasonable price, Allegheny County can award the contract to any bidder that has demonstrated that it has made sufficient reasonable efforts to meet the MBE contract goal.
D. 
The precise selection criteria applicable to each contract will be set forth in the instructions, specifications and other contract documents published by the County for that particular contract.
E. 
Bidders/proposers that fail to meet MBE goals and fail to demonstrate sufficient reasonable efforts shall not be eligible to be awarded the contract.

§ 435-11 Prime contractor MBE commitment.

In accordance with Executive Order 11625, the prime contractor agrees to:
A. 
Be bound by the terms of the MBE plan included as a general provision in the bid specifications, which plan is expressly made a part thereof.
B. 
Take action to the fullest extent consistent with sound procurement principles, applicable law and efficient construction of the project; to identify minority business firms; to solicit bids and quotations from MBE's and, in making awards and purchases, to give special consideration to minority business enterprises.
C. 
The inclusion of all maintenance reports.

§ 435-12 Recommendations.

It is recommended that:
A. 
The Board of County Commissioners pass a resolution adopting the plan and policy as submitted and establishing an MBE Advisory Committee in accordance with § 435-3 as outlined in this plan.
B. 
The Board of County Commissioners direct all department heads to take the appropriate steps involving contracts in their respective departments that are so structured and implemented as to enable the County to achieve its overall MBE goals.
C. 
The Board of County Commissioners request the State Legislature to liberalize the limit for nonbid procurement.
D. 
MBE position(s) that should be directly responsible for reporting to the County Commissioners for the purpose of implementing and administering the MBE plan.

§ 435-13 Allegheny County contract reporting obligations.

[Added 4-21-2009 by Ord. No. 17-09]
A. 
The Allegheny County Controller shall forward a written report to the County Council on all contracts to which the County is a party.
(1) 
The Controller shall, for every contract for which the County receives proposals, create a written report that identifies:
(a) 
The purpose of the contract for which proposals were considered;
(b) 
The aggregate value of the contract for which proposals were considered;
(c) 
The business(es) or individual(s) that submitted each proposal that was considered for final selection by name; and
(d) 
The M/W/DBE status of each listed individual or business, as classified by the Department of Minority, Women and Disadvantaged Business Enterprises.
(2) 
The reports required under Subsection A(1) shall be created immediately upon the identification of candidates for consideration for County contracts. Copies of the reports required under the terms of this section shall be forwarded to the Office of Allegheny County Council and Chief Executive no less frequently than once every three months.
(3) 
The County Controller shall, with the assistance and cooperation of the Allegheny County Division of Computer Services, create and maintain a website upon which the reports required by this section shall be posted immediately upon issuance. Access to this website shall be granted to all individuals at no charge.
(4) 
All businesses or individuals submitting proposals which are identified by the County for final selection shall receive a letter from the County Controller informing them of their continued consideration.
(5) 
All businesses or individuals submitting proposals which are not identified by the County for final selection shall receive a letter from the County Controller informing them that their proposal will receive no further consideration, together with the reasons for the County's decision.
(6) 
The County Controller shall, no less frequently than once every three months, provide written notice describing any award or any alteration to the terms of any existing contract to which the County is a party to County Council and the Chief Executive. Such written notice shall include a delineation of the M/W/DBE status of each party to the awarded or altered contract, as classified by the Department of Minority, Women and Disadvantaged Business Enterprises, as well as a description of the M/W/DBE status of any subcontractors known at the time of the award or alteration.
(7) 
County Council shall be deemed in receipt of any report required under the terms of this section on the date that such report is received by the Chief Clerk.
B. 
Nothing in this section shall be read to fix, alter, or redefine in any fashion the prerogative of the Chief Executive to enter contracts on behalf of the County, as described in Article V of the Home Rule Charter of Allegheny County, or by other applicable law.