[HISTORY: Adopted by the County Council of
Allegheny County 8-30-2016 by Ord.
No. 29-16.[1] 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
[1]
Editor's Note: This ordinance also provided for the repeal
of former Ch. 435, Minority Business Enterprise Program, adopted 6-18-1981,
as amended.
A.
The following words and terms, when used in this chapter, unless
the context clearly indicates otherwise, or specifically redefined
for purposes of a section or subsection, shall have these meanings:
- ALLEGHENY COUNTY (or THE COUNTY)
- The County of Allegheny, a home rule county and political subdivision of the Commonwealth of Pennsylvania.
- BIDDER/PROPOSER
- Any individual, partnership, joint venture, corporation or firm submitting a bid or proposal for a contract with the County.
- BUSINESS, BUSINESS CONCERN or BUSINESS ENTERPRISE
- A small business concern organized for profit with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the United States economy through payment of taxes or use of American products, materials, or labor.
- CFR
- The Code of Federal Regulations.
- COMPLIANCE
- The condition existing when a contractor or subcontractor has correctly implemented the requirements of the program as set forth in this chapter.
- CONTRACT
- A mutually binding agreement, or any modification thereof, under which a bidder/proposer agrees, as a contractor, to furnish or provide work, goods or services to the County.
- CONTRACTOR
- A bidder/proposer who has entered into a contract to provide work, goods or services to the County.
- DEPARTMENT
- The County's Department of M/W/DBE Programs.
- DIRECTOR
- The person appointed by the County Manager in consultation with the Chief Executive to supervise the operations of the Department.
- DISADVANTAGED BUSINESS ENTERPRISE (or DBE)
- A small business concern which is both owned and controlled by a socially or economically disadvantaged person. This means that the socially or economically disadvantaged person or persons must own 51% of the business and must control the management and daily operations of the business.
- GOOD-FAITH EFFORT
- Efforts to achieve an MBE, WBE or DBE goal or other requirement of this chapter which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill a requirement or the requirements of the program.
- JOINT VENTURE
- An association of an MBE, WBE or DBE firm and one or more other firms to carry out a single, for-profit business enterprise, for which the parties combine their property, capital, efforts, skills and knowledge, and in which the MBE, WBE or DBE is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest.
- LEASE
- A mutually binding agreement, or any modification thereof, under which a bidder/proposer agrees, as a lessee, to rent space at a County-owned building or recreational facility from the County for the purpose of providing goods or services to the individuals working or using the County-owned building or recreational facility.
- LESSEE
- A person or business who rents space at a County-owned building or recreational facility from the County for the purpose of providing goods or services to the individuals working or using the County-owned building or recreational facility.
- M/W/DBE
- Minority, Women and Disadvantaged Business Enterprise.
- M/W/DBE ADVISORY COMMITTEE
- The committee established by the Chief Executive and County Council performing the duties and functions described in § 435-4 of this chapter.
- MANUFACTURER
- A supplier which produces goods from raw materials or substantially alters them before resale. The gross proceeds from a sale by an M/W/DBE 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 who is rebuttably presumed to be disadvantaged:
- (1) Because that person is a member of the groups listed below; or
- (2) Because that person holds him or herself out to be a member of a group listed below; or
- (3) Because that person is currently identified by others as a member of a group listed below:
- (a) "Black Americans," which includes persons having origins in any of the Black racial groups of Africa; or
- (b) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; or
- (c) "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; or
- (d) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the United States Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru, Federated States of Micronesia, or Hong Kong; or
- (e) "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka; or
- (f) Any additional groups whose members are designated as a minority by the SBA at such time as the SBA designation becomes effective.
- (a)
- MINORITY BUSINESS ENTERPRISE (or MBE)
- A small business concern which is both owned and controlled by a minority. This means that the minority or minorities must own 51% of the business and control the management and daily operations of the business.
- MINORITY/WOMEN/DISADVANTAGED BUSINESS ENTERPRISE DIRECTORY
- The list of the M/W/DBEs found on the Pennsylvania Unified Certification Program (PA UCP) website. Such M/W/DBEs have been certified as having met the eligibility requirements as outlined in the Federal Department of Transportation regulations found in Title 49 of the CFR Parts 23 and 26, respectively.
- NONCOMPLIANCE
- The condition existing when a contractor or a subcontractor has not correctly implemented the requirements of the program as set forth in this chapter.
- PA UCP APPEALS COMMITTEE
- A nine-member committee composed of participants in the PA UCP which entertains appeals concerning:
- (1) The Department's denial of certification of a person, business, business concern or business enterprise as an MBE, WBE and DBE under the program; or
- (2) The Department's removal of the certification of a person, business, business concern or business enterprise as an MBE, WBE and DBE under the program.
- PENNSYLVANIA UNIFIED CERTIFICATION PROGRAM (PA UCP)
- The statewide program in which the County is a participant that provides "one-stop shopping" for firms seeking certification as an MBE, WBE and DBE in accordance with 49 CFR Part 26.
- PERSON
- An individual.
- PRIME CONTRACTOR
- A bidder/proposer who has entered into a contract to provide work, goods or services to the County under which it is contemplated that that bidder/proposer will enter into an agreement or agreements with one or more subcontractors to furnish or provide a defined piece of work and/or delivery of specified goods or services making up the total work, goods or services to be furnished or provided to the County under the contract.
- PROGRAM
- The Minority, Women and Disadvantaged Business Enterprise requirements established by this chapter and administered by the County through the Department and by other County departments.
- PROJECT
- The work to be performed or the goods or services to be provided under a particular contract.
- SMALL BUSINESS ADMINISTRATION (or SBA)
- The United States Small Business Administration.
- SMALL BUSINESS CONCERN
- A for-profit business that does not exceed the size standards under 49 CFR 26.5.
- SOCIALLY AND ECONOMICALLY DISADVANTAGED
- The determination made by the County, through the Department, on a case-by-case basis that:
- (1) A person has been subjected to racial or ethnic prejudice or cultural bias within American society due to the person's identification with or as a member of a particular group or for other reasons and causes not common to individuals who are not socially disadvantaged made without regard to a person's individual qualities or character; or
- (2) A person whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially or economically disadvantaged.
- SUBCONTRACTOR
- A person, partnership, joint venture, corporation or firm approved by the County with whom a contractor, acting as a prime contractor, enters into an agreement to furnish or provide a defined piece of work and/or delivery of specified goods or services that are part of the total goods, services or work that the prime contractor is obligated to furnish or provide to the County.
- SUPPLIER
- A business enterprise which owns and provides the goods or materials which it sells.
- WOMAN (or WOMEN)
- A person(s) of the female gender regardless of race or ethnicity.
- WOMEN BUSINESS ENTERPRISE (or WBE)
- A small business concern which is both owned and controlled by a woman or women. This means that the woman or women must own 51% of the business and must control the management and daily operations of the business.
B.
Except as they may have been modified or changed above, all other
words and terms set forth in 49 CFR 26.5, as are necessary to fully
and completely implement the program and its goals described herein,
are incorporated by reference in their entirety as part of this chapter.
A.
The County recognizes that businesses owned by minorities, women,
and socially and economically disadvantaged persons have not participated
in County contracts and leases to the extent that is desirable.
B.
The County further recognizes that there are certain impediments
to achieving greater participation by businesses, business concerns
or business enterprises owned by minorities, women, and socially and
economically disadvantaged persons in the award of County contracts
and leases.
C.
Based upon these findings, Allegheny County hereby reaffirms the
County-Wide Minority, Women and Disadvantaged Business Enterprise
Program originally established in 1981 (the program) with the goal
of removing any impediments to the involvement of minorities, women,
and socially and economically disadvantaged persons in the award of
County contracts and leases.
To assure the success and growth of minority, women, and socially
and economically disadvantaged businesses, business concerns or business
enterprises in the County and to achieve the purposes described in
this chapter, the County hereby establishes the following general
program goals:
A.
The County establishes overall goals of having 13% minority business
enterprise and 2% women/socially and economically disadvantaged business
enterprise participation in the award of various types of County contracts
and in the award of County leases.
B.
The County shall make a diligent effort to award various types of
County contracts and County leases to M/W/DBE contractors, manufacturers,
suppliers and lessees where the County has, by law, the discretion
to select its contractors, manufacturers, suppliers and lessees.
C.
The County shall undertake to provide the equitable opportunities described in § 435-9 of this chapter to assist M/W/DBE contractors, manufacturers, suppliers and lessees in obtaining the award of various types of County contracts and County leases or in participating in the award of various types of County contracts and County leases based upon the goals established in Subsection A above.
D.
The County shall encourage other municipalities within Allegheny
County to develop similar M/W/DBE programs and to assist them in implementing
these programs.
A.
Organization.
(1)
An M/W/DBE Program Advisory Committee (the "Advisory Committee")
consisting of no more than 15 members is hereby established. The Chief
Executive shall appoint all Advisory Committee members with the approval
of County Council.
(2)
Up to five members of the Advisory Committee may be County department
directors who are engaged in procurement activities. The remaining
members of the Advisory Committee shall be representatives of such
civic, community, minority and other entities as the Chief Executive
shall determine in the Chief Executive's discretion.
(3)
The terms of the members of the Advisory Committee shall be as follows:
(a)
Of the initial Advisory 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.
(b)
After the appointment of the initial Advisory Committee, all
appointments to the Committee shall be for a term of four years.
(c)
In the event that the Chief Executive does not offer an appointment
for approval within 30 days of the expiration of any Advisory Committee
member's term, the County Council may nominate and approve an
appointee for that member's seat.
(4)
All seated members of County Council, the Chief Executive and the
County Manager shall be ineligible to serve on the Advisory Committee
and shall not, at any time, serve as or perform any function as a
member of the Advisory Committee. No County employee, elected County
official, or party to any County contract shall serve as or perform
the functions of the Chair for the Advisory Committee at any time.
No Advisory Committee member may serve beyond the expiration of his
or her term of appointment unless and until the member is reappointed
to serve on the Advisory Committee.
B.
Purposes of the Advisory Committee.
(1)
The Advisory Committee generally shall review the availability of
M/W/DBEs in construction, services and related businesses, the progress
of existing M/W/DBE programs currently in operation within the Commonwealth
of Pennsylvania, and the current level of M/W/DBE participation in
various types of County contracts and in County leases.
(2)
The Advisory Committee may from time to time make recommendations
to the Chief Executive and County Council concerning M/W/DBE participation
in various types of County contracts and County leases, including,
but not limited to, the following:
(3)
The Advisory Committee also may from time to time make recommendations
to the Chief Executive and County Council concerning any other specific
activities which would improve the program.
A.
The County's program and the program requirements established
by this chapter shall be primarily administered through the Department.
To the extent provided for in this chapter, other County departments
shall be involved in the efforts to achieve the general goals of the
program.
B.
The Department's Director shall report to the County Manager
on all matters related to the implementation and administration of
the program. At his or her discretion, the Chief Executive may consult
directly with the Director and the Department staff concerning any
matter relating to the implementation and administration of the program.
A.
The County shall provide resources to implement the program established
under this chapter, including the provision of staff for the Department.
B.
The Department's staff shall perform the following duties:
(1)
Review documents soliciting bids or proposals for various types of
County contracts and for County leases for inclusion of desired M/W/DBE
goals and language.
(2)
Monitor records either by itself or with the assistance of other
County departments to document compliance with M/W/DBE participation
goals and program requirements.
(3)
Report from time to time to the Advisory Committee on the progress
of the program.
(4)
Compile information on the program as may be requested from time
to time by the Advisory Committee.
A.
To the fullest extent possible, the Department shall adhere to and
follow the standards as set forth in detail in 49 CFR Parts 23 and
26 in certifying a business, business concern or business enterprise
as an MBE, WBE or DBE under the program.
B.
In accordance with the requirements set forth in 49 CFR Parts 23
and 26 and in this chapter, all MBEs, WBEs and DBEs must be independently
owned businesses controlled and operated by minorities, women, and
socially and economically disadvantaged persons. The ownership shall
be real, substantial and continuing. The minority, women, and socially
and economically disadvantaged 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 business
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, buyout rights, and other
similar corporate limitations.
C.
The Department also shall recognize as an MBE, WBE and DBE under
the program:
(1)
Any person, business, business concern or business enterprise furnishing
adequate proof that the business, business concern or business enterprise
has been certified as an MBE, WBE and DBE by a federal agency, by
another governmental agency whose method of certification has been
approved by a federal agency, or by the Small Business Administration;
provided, however, that the County shall not recognize the person,
business, business concern or business enterprise obtaining the MBE,
WBE and DBE status from a federal or governmental agency through a
process of self-certification; or
(2)
Any person business, business concern or business enterprise which
appears on the Minority/Women/Disadvantaged Business Enterprise Directory
found on the Pennsylvania Unified Certification Program (PA UCP) website.
D.
The Department may within its sound discretion review all MBEs, WBEs
and DBEs participating in a joint venture to determine whether the
distinct and clearly defined portion of the work being performed by
the MBE, WBE and DBE as part of the joint venture has a commercially
useful function. Nothing herein shall be construed or interpreted
as exempting any MBE, WBE and DBE participating in a joint venture
from compliance with MBE, WBE and DBE reporting requirements established
under this chapter or by the Department.
E.
If the Department denies the certification of a person, business,
business concern or business enterprise as an MBE, WBE and DBE under
the program or if the Department removes the certification of a person,
business, business concern or business enterprise as an MBE, WBE and
DBE under the program, then that person, business, business concern
or business enterprise shall have the right to appeal the Department's
action to the PA UCP Appeals Committee. The Department shall provide
assistance to any person, business, business concern or business enterprise
wishing to file an appeal to the PA UCP Appeals Committee.
A.
The County requires all contractors and lessees to demonstrate a
good-faith effort to include M/W/DBEs to the greatest extent possible
in the award of County contracts and County leases by satisfying the
minimum goals of 13% minority business enterprise and 2% women/socially
and economically disadvantaged business enterprise participation.
B.
The Department shall determine whether a contractor or lessee has
demonstrated a good-faith effort by using the standards set forth
in 49 CFR 26.53.
A.
Consistent with sound planning, construction, procurement principles
and applicable laws and policies, the County shall adopt and implement
the following procedures and techniques to achieve the goal of having
13% minority business enterprise and 2% women/socially and economically
disadvantaged business enterprise participation in the award of various
types of County contracts and in the award of County leases:
(1)
Authorize the solicitation/invitation in specific publications (to
include special invitations) in order to apprise all potential bidders/proposers
of Allegheny County's M/W/DBE Program.
(2)
Arrange prebid or prequalification meetings to be advertised and
scheduled to facilitate M/W/DBE participation.
(3)
Provide technical assistance, including assistance to overcome barriers
in contract bid preparation, bonding requirements and financing; to
provide pertinent information necessary to answer bidder/proposer
questions; and to 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 M/W/DBE experience.
(5)
Use and encourage the use of M/W/DBE banks and other financial institutions.
(6)
Give priority to M/W/DBE suppliers and manufacturers in areas of
purchasing where a County department has discretion in the award of
a contract or lease.
(7)
Encourage the directors of all County departments to the extent permitted
by applicable law and regulations to take the appropriate steps involving
the award of contracts or leases let by their respective departments
in their discretion to be structured and implemented to enable the
County to achieve its overall M/W/DBE goals.
(8)
Encourage existing contractors and lessees having contracts and leases
with the County to voluntarily develop goals for the use of M/W/DBE
contractors, suppliers, manufacturers and financial institutions.
B.
In cases where sound planning, construction, procurement principles
and applicable laws and policies dictate that goals for M/W/DBE participation
in a County contract or in a County lease are less than those overall
goals established under this chapter, the County shall prepare and
retain a written explanation as to why M/W/DBE participation in a
County contract or in a County lease are less than the overall goals
established under this chapter.
A.
Where appropriate, solicitations of bids and proposals for various
types of County contracts or for County leases shall require that
bidders/proposers to do the following:
(1)
Create, at the time of bid or proposal submission, an M/W/DBE plan
identifying M/W/DBEs to be utilized, a description of the work to
be performed by each M/W/DBE and the dollar value of the services
to be provided or the goods to be supplied by each M/W/DBE.
(2)
Submit a written assurance of meeting the M/W/DBE plan submitted
in the bid or proposal.
(3)
Provide written assurances that no agreement, written or oral, between
the prime contractor and M/W/DBEs exists or will be entered into,
whereby any M/W/DBE promises or agrees not to provide quotes to other
prime contractors.
(4)
Submit a written assurance that, if any M/W/DBE contractor(s) is/are
unable to perform successfully, the bidder/proposer shall make every
effort to replace the unsuccessful M/W/DBE with another M/W/DBE in
accordance with the M/W/DBE plan and the utilization of the resource
identified to provide assistance.
B.
Where appropriate, the County, through the Department, shall use
the following methods to require prime contractors to comply with
the M/W/DBE requirements stated in this chapter:
(1)
M/W/DBE goals shall be applicable in accordance with the specifications
for each such contract.
(2)
Allegheny County will provide assistance and direction in drafting
and implementing the prime contractor's M/W/DBE plan.
(4)
The County shall be advised as to exactly how much work, if any,
an M/W/DBE subcontractor intends to contract out 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 for that particular
contract or lease, will be used to ensure that contracts and leases
are awarded to bidders/proposers who meet the M/W/DBE goals stated
in this chapter. If any bidder/proposer offering a reasonable price
meets the M/W/DBE participation goals, Allegheny County shall presume
that all competitors that failed to meet the goals have failed to
exert a good-faith effort, are in noncompliance and, consequently,
are ineligible to be awarded the contract or lease. To implement this
presumption:
(1)
Allegheny County shall determine whether a bidder/proposer offering
the lowest price of all those meeting the M/W/DBE participation goals
has made a reasonable bid. If reasonable, that bidder shall be awarded
the contract or lease.
(2)
If unreasonable, Allegheny County shall consider the price offered
by the bidder/proposer with the highest percentage of M/W/DBE participation
who has failed to meet the M/W/DBE participation goals. If the price
is reasonable, Allegheny County shall award the contract or lease
to that bidder/proposer.
(3)
If unreasonable, Allegheny County shall next consider other bidders/proposers
that did not meet the M/W/DBE goals in order of the percentage of
M/W/DBE participation until a bidder/proposer with a reasonable price
is selected.
(4)
If no bidder/proposer with M/W/DBE participation has offered a reasonable
price, Allegheny County can award the contract or lease to any bidder/proposer
which has demonstrated that it has made sufficient reasonable good-faith
effort to meet the M/W/DBE participation goals.
D.
The precise selection criteria applicable to each contract and lease
will be set forth in the instructions, specifications and other contract
documents published by Allegheny County for that particular contract
or lease.
E.
Bidders/proposers failing to meet the M/W/DBE participation goals
and failing to demonstrate sufficient good faith effort to meet the
M/W/DBE participation goals shall be deemed to be in noncompliance
and shall not be eligible to be awarded the particular contract or
lease.
In accordance with federal Executive Order 11625, the prime
contractor agrees to:
A.
Be bound by the terms of its M/W/DBE plan included as a general provision
in the bid specifications, which plan is expressly made a part of
its bid.
B.
Take action to the fullest extent consistent with sound procurement
principles, applicable law and efficient construction of a project:
(1)
To identify minority, women, and socially and economically disadvantaged
businesses, business concerns or business enterprises;
(2)
To solicit bids and quotations from M/W/DBEs; and
(3)
To give special consideration to minority, women, and socially and
economically disadvantaged businesses, business concerns or business
enterprises in making awards and purchases.
C.
Submit periodic reports to document continued maintenance of its
M/W/DBE plan.
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 create a written report for every contract for
which the County receives bids or proposals that identifies:
(a)
The purpose of the contract for which bids or proposals were
considered;
(b)
The aggregate value of the contract for which bids or proposals
were considered;
(c)
The business(es) or individual(s) identified by name that submitted
each bid or proposal considered for final selection of the award of
a contract; and
(d)
The M/W/DBE status of each listed individual or business as
determined by the Department.
(2)
The reports required under Subsection A(1) of this § 435-12 above shall be created immediately upon the identification of candidates for consideration for the award of a County contract or lease. Copies of the reports required under the terms of this section shall be forwarded to County Council and to the Chief Executive no less frequently than once every three months.
(3)
The County Controller, with the assistance and cooperation of the
Allegheny County's Department of Administrative Services, Division
of Computer Services, shall 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 bids or 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 bids or proposals which
are not identified by the County for final selection shall receive
a letter from the County Controller informing them that their bid
or proposal will receive no further consideration, together with the
reasons for the County's decision, if known.
(6)
The County Controller shall provide written notice no less frequently
than once every three months to the County Council and the Chief Executive
describing any award or any amendment to the terms of any existing
contract to which Allegheny County is a party. Such written notice
shall include a delineation of the M/W/DBE status of each party to
the awarded or amended contract as determined by the Department and
a description of the M/W/DBE status of any subcontractors known at
the time of the award or amendment of the contract.
(7)
The 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 Council's Chief Clerk.
Nothing in this chapter shall be read to fix, alter, or redefine
in any fashion the prerogative of the Chief Executive to negotiate,
award or sign on behalf of the County any and all contracts, agreements
and other instruments as described in Article V, § 1.5-502(i)
of the Home Rule Charter[1] of Allegheny County or in other applicable law.
[1]
Editor's Note: The Charter is included at the beginning
of this volume.