[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
435a Policy Commitment
§ 435-1 Definitions.
§ 435-2 Purpose; participation goal.
§ 435-3 Advisory Committee.
§ 435-4 Staff.
§ 435-5 Eligibility certification procedures.
§ 435-6 Eligibility standards.
§ 435-7 Equitable opportunities to obtain contracts.
§ 435-8 General goals.
§ 435-9 Contract goals.
§ 435-10 Prime contractor submission of MBE plan and selection criteria.
§ 435-11 Prime contractor MBE commitment.
§ 435-12 Recommendations.
§ 435-13 Allegheny County contract reporting obligations.
§ 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.