HomeMy WebLinkAbout99-173~3C~A.F~D C~~' '~UP~R~/I~OR~
GQUN'i'Y. QF .BUTTE, STATE QF CALIFQRNIA
~c~solufiort No. ~9-t73
RESf)LUTIt~N ADOPTING A DISADVANTAGED BUSINESS PNTFRPRISE (DBE) PROGRAM
FGR ROAD PROJECTS INVOLVING FEDERAL FUNDING
W1~IEREf1S, in compliance with Chapter 49 Part 26 of the Federal Code of Regulations- tl~lc
County of Butte must have a current Disadvantaged Business I~ntelprise (DBE:) Program for capital
improvement construction }~rajects involving Federal Funds; and
VVl IEREf~S, the County of Butte adopted the current DBE Prugram on January 2 ~, 199h, and
WIIERI~AS, it is nccessary to submit a revised DBE program that reflects the ne~~~ rc~iuirc~llents
and changes listed in Chapter 49 Part 26 of the Federal Code of Regulations;
NOS', TIIEREI~'ORE, BE I~l" RESOt~VED that the Butte County Board oi` Supervisors hereby
approves the Butte County Disadvantaged Business Enterprise Prog~-any for capital improvement
construction projects involving Federal funding and authorizes the Director of Public Works to si~~n the
program.
PASSED AND ADOPTED by the Butte County Board of Supervisors this l~`~' day of Dccemher-
1999, by the following vote:
~~YES: Supervisors Beeler, Houx, Josiassen, Davis and Chair Dolan
SUES: None
!1BSENT: None
NO"I- VO"hiNG: None
k 'R _..
-;I~ 'L I~()LAN. Chair __
But e County Board of Supervisors
;y"I-"LEST: JOI~-iN S. BI,ACI{LOCIC, Chief Administrative
Officer and Cl~~< of the Board
~~
__~~~~ ,
P12EAPPROVED llISADVANTAGED BUSINESS EN'T'ERPRISE ([~Bl+:} PROGRAM
County of Butte
I vefinitions of'Terms
The toms used in this program have the meanings defined in 49 CFR ti26.5.
11 l7bjectives /Policy Statement (~~26.1, 26.23)
The County of Butte has established a Disadvantaged Business Enterprise {DBE) program in
accordance with regulations of the U.S. Department of Transportation (DO"1'), 49 CFR ['art 26.
"fhe County of Butte has recc;ived Federal Enancial assistance from the Federal Highway
Administration (FHWA), and as a condition of receiving this assistance, the County of Butte will
sign an assurance as part of the program supplement agreement that it will comply with 49 CFR
Part 2G for each project.
It is the policy of the County of Butte to ensure that DBEs, as defined in part 2G, have an equal
opportunity to receive and participate in FHWA-assisted coniraeis. It is also our policy
1. To ensure nondiscrimination in the award and administration of FH~b'A assisted contracts;
2. To create a level playing field on which DBEs can compete fairly For FHWA assisted
contracts;
3. To ensure that the DBE Program is narrowly tailored in accordance with applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are pe---l~itted to
participate as DBEs;
5. To help remove barriers to the participation of DBEs in FHWA assisted contracts; and
(>. "Fo assist the development of firms that can compete successfully in the market place outside
the DBF, Program.
Paul A. Newsum has been delegated as the DBE Liaison Officer. In that capacity, Paul A.
Newsum is responsible for implementing all aspects of the DBE program. Implementation of~the
DBE program is accorded the same priority as compliance with all other legal obligations
incurred by the County of Butte in its financial assistance agreements ti~-ith the California
Department of Transportation (Caltrans).
l~he County of Butte has disseminated this policy statement to the Butte Cou-Zty Board of
Supervisors and all the components of our organisation. We have distributed this statement to
DBE and non-DBE business communities that perform work for us an FHI~~~A-assisted contracts
by publishing this statement in general circulation, minority-focused and trade association
publications.
III Nondiscrimination. 026.7}
The County of Butte will never exclude any person from participation in, deny any person the
benefits of, or otherwise discriminate against anyone in connection with the award and
performance of any contract covered by 49 CFR Part 26 on the basis of race, color, sex, or
national origin.
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in administering its DBE program, the County of Butte will not, directly or through contractual
or other arrangements, use criteria ar methods of administration that have the effect of defeating
or substantially impairing accomplishment of the objectives of the DBE program with respect to
individuals of a particular race, color, sex, or national origin.
IV DBE Program Updates 026.21)
We will continue to carry out this program until we have established a new goal setting
methodology or until signiCcant changes to this Preapproved DBE Program arc adapted. We
will provide to Caltrans a proposed new goal setting methodology and other program updates by
June 1, 2000.
V Quotas 026.43}
We do not use quotas in any way in the administration of this DBE program.
VI DBE Liaison Officer (DBELO) (526.45)
We have designated the following individual as our DBE Liaison Officer: Paul A. Newsum, # 7
Co~u~ty Center Drive, Oroville, CA 95965, (530) 538-7681, anewsum ceibuttecaunty.net. I-i that
capacity, Paul A. Newsum is responsible for implementing all aspects of the DBE program and
ensuring that the County of Butte complies with all provisions of 49 CFR Part 26. This is
available an the Internet at osdbuweb.dotgovrmain.cfim. Paul A. Newsum has direct,
independent access to Mike Crump, Director of Public Works concerning DBE program matters.
The DBELO is responsible for developing, implementing and monitoring the DBE program, in
coordination other appropriate officials. Duties and responsibilities include the following:
1. Gathers and reports statistical data and other information as required.
2. Reviews third party contracts and purchase requisitions for compliance with this program.
3. Works with all departments to set overall annual goals.
4. Ensures that bid notices and requests far proposals are available to DBEs in a timely manner.
S. Identifies contracts and procurements so that DBE goals are included in solicitations (both
race-neutral methods and contract speeihc goals) and monitors results.
6. Analyzes the County of Butte's progress toward goal attainment and identifies ways to
improve progress.
7. Participates in pre-bid meetings.
8. advises the CEOlgoverning body on DBE matters and achievement.
9, Chairs the DBE Advisory Committee
10. Participates with the legal counsel and project director to determine contractor compliance
with good faith efforts.
11. Provides DBEs with information and assistance in preparing bids, obtaining bonding and
insurance.
12. Plans and participates in DBE training seminars.
13. Provides outreach to DBEs and community organizations to advise them of opportunities.
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VII Federal linancial Assistance Agreement Assurance (526.13)
The County of Butte will sign the following assurance, applicable to all FHWA-assisted
contracts and their administration as part of the progra-n supplement agreement for each project:
The County of Butte shall not discriminate on the basis of race, color, national origin, or
seY in the award and performance of any F1-I WA assisted contract or in the administration
of its DBE Program or the requirements of 49 CFR part 26. The recipient shall take all
necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the
award and administration of FHVVA assisted contracts. The recipient's DBE Program, as
required by 49 CFR part 26 and as approved by FHtiVA, is incorporated by reference in
this agreement. Implementation of this program is a legal obligation and failure to carry
out its terms shall be treated as a violation of this agreement. Upon notification to the
County of Butte of its failure to carry out its approved program, the Department may
impose sanctions as provided for under part 26 and may, in appropriate cases, refer the
matter for enforcement under I8 U.S.C. 1001 and/or the Program Fraud Civil Remedies
Act of 1986 (31 U.S.C. 3801 et seq.).
VIII DBE Financial institutions
It is the policy of the County of Butte to investigate the mull extent of services offered by
financial institutions owned and controlled by socially and economically disadvantaged
individuals in the community, to make reasonable efforts to use these institutions, and to
encourage prime contractors on FH WA-assisted contracts to make use of these institutions.
Information on the availability of such institutions can be obtained fi,om the DBE Liaison
Officer. Caltrans' Business Enterprise Program may offer assistance to the DBE Liaison Officer.
IX Directory (§26.31)
The County of Butte will refer interested persons to the DBE directory available from Caltrans'
Business Enterprise Program website at www.dot.ca.govinglbep.
X Required Contract Clauses (§~~'26.13, 26.29)
Contract Assurance
~Vc will ensure that the following clause is placed in every FNWA-assisted contract and
subcontract:
The contractor or subcontractor shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this contract. The contractor shall carry out
applicable requirements of 49 CFR part 26 in the award and administration of FHW.A
assisted contracts. Failure by the contractor to carry out these requirements is a material
breach of this contract, which may result in the termination of this contract or such other
remedy as the local agency recipient deems appropriate.
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Prompt Payment
~Ve will include the following clause or equivalent in each FHWA-assisted prime contract:
The prime contractor agrees to pay each subcontractor under this prime contract for
satisfactory perfor-1lance of its contract no later than l0 days from the receipt of each
payment the prime contractor receives from the County of Butte. The pri-11e contractor
agrees further to return retainage payments to each subcontractor within 30 days after the
subcontractor's work is satisfactorily completed. Any delay or postponement of payment
from the above referenced time frame may occur only for good cause following written
approval of the County of Butte. This clause applies to both DBE and non-DE3E
subcontractors.
~l Monitoring and Enforcement Mechanisms 026.37)
The County of Butte will assign a Resident Engineer (RE) or Contract Manager to monitor and
track actual DBE participation through contractor a-1d subcontractor reports of pay111ents in
accordance with the following:
A. After Contract Award
After the contract award the County of Butte will review the award documents for the portion
of items each DBE and first tier subcontractors will be doing and the dollar value of that
work. ~~'ith these documents the ltE/Contract Manager will be able to determine the work to
be performed by the DBEs or subcontractors listed.
B. Preconstruetion Conference
1. A preeonstruction conference will be scheduled between the RE and the contractor or
their representative to discuss the work each DBE subcontractor will perform.
2. Before work can be started on a subcontract, the local agency will require the contractor
to submit a completed "Subcontracting Request," Exhibit 16-B of the LAPM. W'~hen the
RE receives the completed form it will be checked for agreement of the first tier
subcontractor and DBEs. "I'he RE will not approve the request when it identifies
someone other than the DBE or first tier subcontractor listed in the previously completed
"Local Agency Bidder DBE Information," Exhibit 15-G. The "Subcontracting Request"
will not be approved until any discrepancies are resolved. if an issue cannot be resolved
at that time, or there is some other concern, the RE will require the contractor to eliminate
the subcontractor in question before signing the subcontracting request. A change in the
DBE or first tier subcontractor nlay be addressed during a substitution process at a later
date.
3. Suppliers, vendors, or manufacturers listed on the "Local Agency Bidder DBE
Information" will be compared to those listed in the completed Exhibit 16-I of the
LAPM. Differences must be resolved by either making corrections or req~lesting a
Sllbstltutlo-1.
Substitutions will be subject to the Subletting and Subcontracting Fair Practices Act
(FPA). Local agencies will require contractors to adhere to the provisions within
Subletting and Subcontracting Fair Practices Act (State Law) Sections 4100-4144. FPA
requires the contractor to list all sllbeontractors in excess of one half of one percent
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(0.5`%} of the contractor's total bid or $10,000, which ever Is greater. The statute is
designed to prevent bid Shopping by contractars. The FPA explains that a contractor may
not substitute a subcontractor listed in the original bid except with the approval of the
awarding authority.
~. The RE will give the contractor a blank Exhibit 17-F, "Final Rcport Utilisation ot~
Disadvantaged Business Enterprises," and will explain to them that the document will be
required at the end of the project, for which payment can he withheld, in conformance
with the contract.
C Construction Contract Monitoring
l . The RE will ensure that the RE's staff (inspectors) know what items ofwork each DBE is
responsible for. hlspectors will notify the RE inlnlediately of apparent violations.
?. When someone other than the listed DBE subcontractor is found performing the work
(i.e., employees noted earlier as contractor's or non-DBE subcontractor's), the RE
notifies the contractor of the apparent violation and potential loss of payment. Based on
the contractor's response, the RE will take appropriate action: 1) If the contractor's
response is that the employees will he on the listed DBE subcontractor payroll, payrolls
will be checked when received, and if the employees in question are not on the listed
DBE subcontractor payroll, payment for the work will be withheld. If the employee is on
the payroll our DBE Liaison Officer will perforl~l a preliminary investigation to identify
any potential issues related to the DBE subcontractor performing a commercially useful
function. Any substansive issues will be forwarded to Caltrans' Business Enterprise
Program. 2) If the contractor's response to the RE is anything other than in action 1 }
above, payment for the work will be withheld and a letter will be sent to the contractor
referencing the applicable specification violation and the required withhold of payment.
3. ]f the contract requires the sLlbmittal of a monthly truck document, the contractor will be
required to submit documentation to the RE showing the owner's name; California
Highway Patrol CA number; and the DBE certification number of the owner of the truck
for each truck used during that month for which DBE participation will be claimed. The
trucks will be listed by California Highway Patrol CA number in the daily diary or on a
separate piece of paper for documentation. The numbers are checked by inspectors
regularly to confirm compliance.
The burden of proof of DBE payment is the responsibility of the contractor.
]]. SLlbstltutloll
When a DBE substitution is requested, the RE/Contract Manager will request a letter
from the contractor explaining why substitution is needed. The REIContract Manager
will obtain a written concurrence from the DBE regarding this change. If the contractor
is not meeting the contract goal with this substitution, the contractor must provide the
required good faith effort to the RE;"Contract Manager for local agency consideration.
2. If there is any doubt in the RE/Contract Manager's mind regarding the requested
substitution, the RElContract Manager play contact the DLAE for assistance and
direction.
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E. Record Keeping and Final Report Utilization of Disadvantaged Business Ente-prises
1. The contractor shall maintain records showing the name and address of each first-tier
subcontractor. The records shall also show:
a) "fhe name and business address, regardless of tier, of`every DBE subcontractor, DBE
vendor of materials and DBE trucking company.
b) The date of payment and the total dollar figure paid to each of the firms.
c) The DBE prime contractor shall also show the date of work performed by their own
forces along with the corresponding dollar value of the work claimed toward DBE
goals.
?. When a construction contract has been completed the contractor will provide a summary
of the records stated above. The DBE utilization information will be documented on
Exhibit l7-F and will be submitted to the DLAE attached to the Report of Expenditures,
a) The RE will compare the completed Exhibit 17-F to the contractor's completed
Exhibit 15-G and if applicable to the completed Exhibit 16-B.
b) The DBEs shown on the completed Exhibit 17-F should be the same as those
originally listed unless an authorized substitution was allotived, or the contractor used
more DBEs and they were added.
c} The dollar amount should reflect any changes made in planned work done by the
DBE.
d} The contractor will be required to explain in writing tivhy the names of the
subcontractors, the work items or dollar figures are different from what was originally
shown on the completed Exhibit l 5-G when:
(I) There have been no changes made by the RE.
(2) The contractor has not provided a sufficient explanation in the comments section
of the completed Exhibit 17-F.
The explanation will be attached to the completed Exhibit 17-F for submittal. The
RE will hle this in the project records.
The local agency's Liaison Of'cer will keep track of the DBE certification status on the h~ternet
at www.dotca.gov/hq/bep and keep the RE informed of changes that affect the contract. The RE
will require; the contractor to act in accordance with existing contractual commitments regardless
of decertification.
We will bring to the attention of the FHWA any false, fraudulent, or dishonest conduct in
connection with the program, so that FHWA can take the steps (e.g., referral to the Department
of ,lustice for criminal prosecution, referral to the FI-IW~ Inspector General, action under
suspe-lsion and debarment or Program Fraud and Civil Penalties rules} provided in X26.109. We
also will consider similar action under our own legal authorities, including responsibility
determinations in future contracts.
Xil Overall and Contract Goals {26.45 and 26.51)
Amount of goal
The County of Butte's overall goal for the Federal fiscal year FY 1999100 is the following: 10%
of the Federal financial assistance in FHWA-assisted contracts. For the 00/Ol fiscal year, the
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County of Butte will submit their revised DBE Program and DBE Coverall Goal to Caltrans by
J yule 1, 2000.
The County of Butte will use the results of a C'altrans' survey of contractors to assist in the
development of a bidders list. This bidders list will be used to determine the overall goal for the
00%Ol fiscal year.
~1~e will establish contract goals only on those FHWA-assisted contracts that have subcontracting
possibilities. We need not establish a contract goal on every such contract, and the size of
contract goals will be adapted to the circumstances of each such contract (e. g., type and location
of work, availability of DBEs to perfornl the particular type of work). We will compare the
contract work items with eligible DBE contractors willing to work on the project. A
determination will also be made to decide which items are likely to be performed by the prime
contractor and which ones are likely to be perfonmed by the subcontractor(s). The goal will then
be incorporated into the contract documents. We will express our contract goals as a percentage
of the total amount of a FFIWA-assisted contract.
XIII Good Faith Efforts 026.53)
h~for-mation to be submitted
The County of Butte treats bidder;offerors' compliance with good faith effort requirements as a
matter of responsiveness. A responsive bid is meeting all the requirements of the advertisement
and proposal.
Cacti solicitation for which a construction contract goal has been established will require the
bidderslofferors to submit the following information to Butte County Department of Public
Works, #7 County Center Drive, Oroville, CA >5938 no later than 4:00 p.m. following bid
OpC-1111g.
1. The names and addresses of DBE firms that will participate in the contract;
2. A description of the work that each DBE will perform:
3. The dollar amount of the participation of each DBE firm participation
~. Written and signed documentation of commihment to use a DBF subcontractor whose
participation it submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating in the contract as
provided in the prime contractor's commitment; and
6. If the contract goal is not met, evidence of good faith efforts.
Demonstration of good faith efforts
The obligation of the bidder/offeror is to make good faith efforts. The bidder/offeror can
demonstrate that it has done so either by meeting the contract goal or documenting good faith
efforts. Examples of good faith efforts are found in State of California, Department of
Transportation, Local Assistance Program Procedures Manual, Chapter l5, Exhibit 15-H.
The following personnel are responsible for determining whether abidder/offeror who has not
met the contract goal has documented sufficient goad faith efforts to be regarded as responsive:
Paul A. Ne~vsum.
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We will ensure that all information is complete and accurate and adequately doer-ments the
bidder/offeror's good faith efforts before we commit to the performance of the contract by the
kidder/offeror.
administrative reconsideration
Within 1O days of being informed by the County of Butte that it is not responsive because it has
not documented sufficient good faith efforts, a bidder/offeror may request administrative
reconsideration. Bidder/offerors should make this request in writing to the following
reconsideration official: Mike Crump, Director of Publie Forks, # 7 County Center Drive,
Oroville, CA 95965, (~30) 538-7681, ntcr~un~~~;?hi~tte~nu~itv.rlet. The reconsideration official
will not have played any role in the original determination that the bidder%offeror did not make
document sufficient good faith efforts.
r1s part of this reconsideration, the bidderiofferor will have the opportunity to provide written
documentation or argument concerning the issue of whether it -1~et the goal or made adequate
good faith efforts to do so. The bidderiofferor will have t11e opportunity to meet in person with
our reconsideration official to discuss the issue of whether it met the goal or made adequate good
frith efforts to do. ~Ve will send the bidder/offeror a written decision on reconsideration,
explaining the basis for finding that the bidder- did or did not meet the goal or make adequate
good faith efforts to do so. The result of the reconsideration process is not administratively
appealable to Caltrans or the FHWA.
Good Faith Efforts when a DBE is replaced an a contract
We will require a contractor to make good faith efforts to replace a DBE that is tern~inated or has
otherwise failed to complete its work on a contract with another certified DBE, to the extent
needed to meet the contract goal. We will require the prime contractor to notify the RE
immediately of the DBE's inability or umvillingness io perform and provide reasonable
documentation,
In this situation, we will require the prime contractor to obtain our prior approval of the
substitute DBE and to provide copies of new or amended subcontracts, or docru~entation of good
faith efforts. If the contractor fails or refuses to comply in the time specified, our contractin~~
office will issue an order stopping all or part of paymentlwork until satisfactory action has been
taken. If the contractor still fails to comply, the contracting officer may issue a tern~ination for
default proceeding.
XIV Counting DBE Participation 026.55)
We will count DBE participation toward overall and contract goals as provided in the contract
specifications for the prime contractor, subcontractor, joint venture partner with prime or
subcontractor, or vendor of material or supplies. See Caltrans' Sample Boiler Plate Contract
Documents previously mentioned. Also, refer to X1, A. "After Contract Award."
X~' Certification 026.83(a})
The County of Butte ensures that only DBE fir--ns currently certified on Caltrans' directory will
participate as DBEs in our program.
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~VI Information Collection and Reporting
Bidcicrs List
"fhc Co~u~ty cif Butte will create a bidders list, consistin~~ of information about all DBE and non-
DBE firms that bid or quote on FHWA-assisted contracts. The bidders list will include the
name, address, DBE%non-DBE status. Initially, the results from a Caltrans' contractor survey
will be used to start a bidders list.
Monitoring P'avments to DBEs
We will require prime contractors to maintain records and docru»ents of payments to DBEs for
three wars following the performance of the contract. These records will he made available for
inspection upon request by any a~-thorized rcprese.ntative of the County oI~ BLitte, Caltrans or'
FHW:~. "Phis repo-ling requirement also extends to any certified DBE subcontractor.
We will review payments to DBE subcontractors to ensure that the actual amount paid to DBE
subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation.
Reporting to C~altrans
The County of Butte - We will report bnal utilization of DBE participation to file DLAF using
Exhibit 17-F of the Caltrans' L~PM,
Conlidentialit
We will safeguard from disclosure to third parties information that may reasonably be regarded
as confidential business information, consistent with ~~'ederal, state, and local laws.
Mike Cr~u11p
Butte County
Director of Public Works
Date:
This I'reapproved Disadvantaged Business Enterprise Program is accepted by:
JSignat-u~e of Caltrans' Uistrrct Local Assistance I'ngiltcer~ Date:
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