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Legislation #: 100802 Introduction Date: 9/23/2010
Type: Ordinance Effective Date: 10/24/2010
Sponsor: COUNCILMEMBER RILEY
Title: Amending Chapter 38, Code of Ordinances, by enacting new Sections 38-82.1 through 38-82.11 for the purpose of establishing a Small Local Business Enterprise (SLBE) Program designed to encourage and promote the development and utilization of small businesses in public procurement.

Legislation History
DateMinutesDescription
9/23/2010 Filed by the Clerk's office
9/23/2010 Referred to Transportation and Infrastructure Committee
9/30/2010 Hold On Agenda (10/7/2010)
10/7/2010 Do Pass as a Committee Substitute
10/7/2010 Assigned Third Read Calendar as Substituted
10/14/2010 Passed as Substituted

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COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 100802

 

Amending Chapter 38, Code of Ordinances, by enacting new Sections 38-82.1 through 38-82.11 for the purpose of establishing a Small Local Business Enterprise (SLBE) Program designed to encourage and promote the development and utilization of small businesses in public procurement.

 

WHEREAS, small businesses are the backbone of our local economy; and

 

WHEREAS, the existence and success of small businesses within the City provides untold benefits to the City and its inhabitants through job creation and retention; and

 

WHEREAS, the City is a large participant in the local marketplace through the expenditure of its financial resources; and

WHEREAS, economic hardships often fall hardest upon small businesses who often do not have access to the same resources and opportunities as do larger businesses; and

 

WHEREAS, it is a proper function of government to foster economic growth and prosperity among all its inhabitants; and

 

WHEREAS, the City desires to enhance contracting and procurement opportunities for small businesses by creating an environment in which they are able to compete and obtain work that may otherwise have been beyond their reach in their capacity as small businesses; and

WHEREAS, a small local business program will provide opportunities through the goods and services procured by the City; and

 

WHEREAS, the small local business program adopted herein is race and gender neutral and open to all who qualify based solely on neutrally applied business criteria; and

 

WHEREAS, application of any incentives available to small local business enterprises will be delayed to April 1, 2011 as to allow ample time for every small business that is eligible to equally participate; NOW, THEREFORE,

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

Section 1. That Chapter 38, Code of Ordinances, is hereby amended by enacting new Sections 38-82.1 through 38-82.11, to read as follows:


Sec. 38-82.1 Definitions.

 

(a) The following definitions apply to Sections 38-82.1 through 38-82.11:

 

(1) Agency - any public or private entity that receives sixty-six percent (66%) of its funding from the City or any entity with the authority to recommend City tax increment financing or City tax abatements.

 

(2) Agency head – the individual authorized to act on behalf of an Agency.

 

(3) Business - an individual, corporation, partnership, limited liability company, or other recognized business association that may lawfully be established for the purpose of conducting a for-profit business within the State of Missouri.

 

(4) City - the City of Kansas City, Missouri.

 

(5) Construction contract - a contract for the construction, reconstruction, improvement, enlargement or alteration of any fixed work or construction site preparation, the majority of which is paid for out of city or agency funds.

 

(6) Construction Supply Contract - a contract for the purchase of construction materials, supplies, articles or equipment intended to be used or consumed on a construction contract, the majority of which is paid for out of city or agency funds.

 

(7) Department – the Human Relations Department (HRD), or the division within the City Manager’s Office that is assigned to perform the tasks delegated to the Human Relations Department.

 

(8) Department Director – the individual appointed by the City Manager to be responsible for a city department or the Manager of Procurement Services when acting on behalf of a department director or the City.

 

(9) Director - the Director of the Human Relations Department or his authorized representative, or the person designated by the City Manager to perform the tasks delegated to the Human Relations Department.

 

(10) Eligible Contract - any construction contract or construction supply contract estimated by the City or agency prior to solicitation as having a value less than $300,000.00, and all other professional services or supplies City or agency contracts having a value less than $117,000.00, the majority of either of which is paid for out of city funds or in which an agency is a party.

 

(11) Invitation for bid - a request or invitation for submission of an offer to enter into a contract pursuant to a competitive bidding process.

 

(12) Kansas City Metropolitan Area - the Missouri counties of Cass, Clay, Jackson and Platte and the Kansas counties of Johnson, Leavenworth and Wyandotte.

 

(13) Person - an individual, corporation, partnership, limited liability company, or other recognized business association which may lawfully be established for the purpose of conducting a for-profit business within the State of Missouri.

 

(14) Principal place of business - the location at which the business records of the SLBE applicant are maintained and the location at which the individual who manages the concern's day-to-day operations spends the majority of his/her working hours.

 

(15) Request for proposals - an invitation for submission of an offer to enter into a contract pursuant to a negotiated process and not a competitive bid, including requests for qualifications.

(16) Professional services or supplies – the term includes contracts for purely labor-related services up to and including highly technical or specialized services and design professional services, as well as contracts for the purchase of materials, supplies, articles or equipment intended to be used or consumed by the City or Agency procuring the same, provided however that the term excludes construction contracts and construction supply contracts.

 

(17) Small Local Business Enterprise (SLBE) - a for-profit business that:

 

(a) Is at least fifty-one percent owned, managed and independently controlled by the applicant(s); and

 

(b) Exists independently and is not an affiliate or subsidiary of any other business.

 

(c) Is able to demonstrate that they have the skill and expertise to perform in the particular area(s) of work for which they are seeking certification; and

 

(d) Has a real and substantial presence in the Kansas City Metropolitan Area. A business enterprise shall be deemed to have a real and substantial presence in the Kansas City Metropolitan Area if:

 

i. The business’ principal place of business is in the Kansas City Metropolitan Area.

 

ii. The business maintains the majority of its full-time employees in the Kansas City Metropolitan Area.

 

iii. The business has transacted business more than once in the Kansas City Metropolitan Area within the last two (2) years; and

 

(e) Has annual gross receipts that, when added with those of its subsidiary or subsidiaries and averaged over three (3) consecutive years, do not exceed five percent (5%) of the applicable business size standard for the SBA General Contractor Classification which is equivalent of the NAIC code 236220 as established in 13 CFR 121.201, as amended; and

 

(f) Is certified by the Human Relations Department as a Small Local Business Enterprise.

 

(18) SLBE Directory – a source list compiled by the Human Relations Department containing names and addresses of SLBEs eligible to participate in the SLBE Program.

 

(19) SLBE Program – the Small Local Business Enterprise Program as enacted in Sections 38-82.1 through 38-82.11.

 

Sec. 38-82.2 Policy; Applicability

 

(a)    The SLBE Program is intended to provide opportunities by limiting solicitations to SLBEs or providing SLBEs a bid incentive, as provided in Section 38-82.4. The SLBE Program is not a goal-based program, nor shall it be extended to every contract. Application of the SLBE Program shall be limited to those eligible contracts in which the Director has determined it to be proper as provided herein.

 

(b)   The SLBE Program, when determined to be applicable by the Director, shall extend to eligible contracts solicited by the City or any Agency. Every Agency shall adopt a Small Local Business Enterprise program that is substantially consistent in every material respect to Section 38-82.1 through 38-82.11, as determined and approved by the Director of Human Relations. No ordinance shall be passed to approve any development plan, redevelopment plan, urban renewal plan, or particular project arising under any such plan and for which economic incentives have been approved or recommended for approval by an Agency, nor shall City execute a contract with an Agency for the purpose of providing funds for their development and redevelopment services, unless the Agency has first adopted and implemented a Small Local Business Enterprise program in the manner provided for herein.

 

(c) The Director shall review the SLBE Program annually and make recommendations to the City Council as to whether the SLBE Program should be maintained or modified, but the failure of the Director to do so shall not invalidate the SLBE Program.

 

(d) The City Council shall have the authority to waive the applicability of the SLBE Program in its entirety, or any portion thereof, if it determines that doing so is in the City’s best interests.

 

Sec. 38-82.3 Applicability of SLBE Program to eligible contract solicitations

 

(a) Prior to issuing any invitation for bid or request for proposal for any eligible contract, the Department Director or Agency head shall confer with the Director for purposes of determining whether the eligible contract is one whose solicitation shall be limited to SLBEs or, on non-construction contracts, whether SLBEs shall be allowed a bid incentive not to exceed five (5) percent, as provided in Section 38-82.4.

(b) The Director shall give consideration to the input of the Department Director or Agency head and shall make the final determination as to which SLBE incentive, if any, shall be applicable to the particular solicitation. Any invitation for bid or request for proposal shall be solicited in compliance with the City’s Code of Ordinances or the procurement policies and procedures of the relevant Agency and shall clearly and conspicuously be delineated with the applicable provision, which shall read substantially as follows:

 

[Applicable to Construction Contracts, Construction Supply Contracts and Professional Services or Supplies Contracts]

 

This Invitation for Bid/Request for Proposal is limited to those entities that are certified by the City of Kansas City, Missouri as a Small Local Business Enterprise (SLBE) or that have applied for certification as a SLBE at least 45 days prior to the date of this solicitation and who will have received that certification by the date on which the bid/proposal/qualification is due. Any bid/proposal/qualification received from any entity not having submitted a timely application or not certified as a SLBE on the due date shall be rejected and will not be considered.

 

-OR-

 

[Applicable only to Professional Services or Supplies Contracts]

 

This Invitation for Bid/Request for Proposal is subject to the City of Kansas City, Missouri’s Small Local Business Enterprise Program. Any entity who has applied for certification as a Small Local Business Enterprise (SLBE) at least 45 days prior to the date of this solicitation and has received that certification by the date on which the bid/proposal/qualification is due shall receive a bid incentive of five percent (5%).

 

(c)    No person shall be entitled to participate in any solicitation as an SLBE or receive the benefit of any incentive reserved for a SLBE unless the person has submitted an application for certification as a SLBE to the Department at least forty-five (45) days prior to the invitation for bid or request for proposals and received SLBE certification by the date on which the bid or proposal is due.

 

(d) In the event any person that is not certified as a SLBE submits a bid or proposal in response to a solicitation that has been limited to SLBEs and did not apply for and receive its certification within the time periods provided for herein, the bid or proposal shall be summarily rejected as non-responsive.

 

Sec. 38-82.4 SLBE Incentives

 

(a) Effective April 1, 2011, The Director is authorized to encourage the utilization of SLBEs on any eligible contract except as otherwise limited in Section 38-82.5 through the utilization of the following SLBE Incentives:

 

(1) Limiting solicitation to SLBEs. The Director is authorized to limit an invitation for bid or request for proposal to SLBEs, and shall consider the following factors in making a determination:

 

i.                    The estimated or potential dollar amount of the contract; and

 

ii. The scopes of work to be performed; and

 

iii. The availability of SLBEs certified in the primary scope of work to be performed; and

 

iv. The City’s utilization of SLBEs to date.

 

(2) Bid incentives. The Director is authorized to allow a bid incentive to SLBEs not to exceed five percent (5%), and shall consider the following factors in making a determination as to whether to allow the incentive and establishing the amount thereof:

i.                    The estimated or potential dollar amount of the contract; and

 

ii.                  The primary scope of work to be performed; and

 

iii.                The City’s utilization of SLBEs to date; and

 

iv.                The amount of the bid incentive awarded on past contracts of a similar nature; and

 

v.                  The amount of the bid incentive reasonably anticipated as being needed for purposes of enabling SLBEs to effectively compete for the contract; and

 

vi.                The ability of the city department or agency to fund any increased cost that may reasonably be expected to arise as a result of the application of a bid incentive.

 

Any bid eligible for the bid incentive shall be adjusted for evaluation purposes by reducing the bid by the percentage of the incentive. This adjustment shall be used solely for the purpose of establishing the apparent low bidder. The actual value of the contract, if awarded to the SLBE, shall be the amount of the actual bid submitted by the SLBE.

 

(b) Any contract awarded to an SLBE pursuant to the SLBE Program shall contain provisions providing for the following, notwithstanding the application of any other SLBE incentive as provided in subsection (a) of this section:

(1) Pre-payment of up to ten percent (10%) of the contract amount to be tendered upon City’s issuance of notice to proceed; and

(2) The elimination of any retainage requirement; and

(3) Payment every two (2) weeks provided the SLBE has requested payment in the manner required by its contract with City and is otherwise entitled to receive payment thereunder.

 

Sec. 38-82.5 Limitations on use of SLBE incentives.

 

(a) Notwithstanding anything contained within Section 38-81.1 through 38.82.11:

 

(1) No bid incentive shall be awarded to any SLBE submitting a bid in response to any invitation for bids that has been expressly limited to SLBEs.

 

(2) No solicitation shall be limited to SLBEs unless the same has been clearly and conspicuously noted in the invitation for bid or request for proposal and no bid incentive shall be allowed any SLBE unless the same has been clearly and conspicuously noted in the invitation for bid.

 

(3) No solicitation shall be limited to SLBEs unless there is a minimum of three eligible SLBEs capable of performing the work and certified in the primary scope of work to be performed.

 

(4) No bid incentive shall be allowed on any construction contract or construction supply contract.

 

(5) No bid incentives shall be allowed on any other eligible contract unless there are fewer than three eligible SLBEs capable of performing the work and certified in the primary scope of work to be performed.

 

(6) No contract shall be awarded to an SLBE who, taking into consideration the applicability of any bid incentive, is not the lowest and best bidder or is not the best proposer.

 

(7) No contract shall be awarded to an SLBE responding to any invitation for bid or request for proposal that has been limited to SLBEs if it is in the City’s or Agency’s best interest to reject all bids or proposals. In the event the City or agency elects to re-solicit the goods or services, the applicability of any provision of the SLBE Program to the re-solicitation shall be determined anew.

 

(8) No solicitation or contract shall be subject to any provision of the SLBE Program if doing so would cause City or Agency to violate the requirements of any grant or otherwise violate any provision of state or federal law.

 

Sec. 38- 82.6 Small Local Business Enterprise Development Program

 

(a) The Director shall establish a Small Local Business Enterprise Development Program designed to assist SLBEs in identifying those organizations that have identified themselves as being able and willing to provide financial and other assistance to SLBEs including, but not limited to, bonding; financing; technical and managerial training and assistance; and referral, networking and outreach activities. The Director may provide small business development services through the Department but shall not provide financial assistance to any SLBE or take any action that would purport to obligate the City to guarantee or repay any debt incurred by any SLBE.

 

(b) The Small Local Business Enterprise Development Program shall include, but shall not be limited to, facilitation of the following services:

 

(1) Surety Bond Prequalification Program through a third party source; and

 

(2) Working capital loans through a third party source; and

 

(3) On-site construction management services; and

 

(4) Technical and managerial training and assistance; and

 

(5) Referral, networking and outreach activities.

Sec. 38-82.7 Certification and Appeals

 

(a) The Director shall be responsible for all certification decisions with regard to SLBEs and shall ensure that only persons meeting the requirements for certification as an SLBE are certified as such. The Director shall apply the standards within this section in making a certification decision. To the extent not otherwise inconsistent with anything contained herein, the Director shall have the authority to establish rules and regulations for purposes of ensuring that only persons meeting the definition of an SLBE as provided in Section 38-82.1 obtain certification.

 

(b) All persons applying for certification or who possess certification shall be subject to an audit by the Director at any time. An applicant's or certified business' refusal to facilitate an audit shall be grounds for denial of its certification application or revocation of its certification.

 

(c) All applicants shall be required to demonstrate that they have the skill and expertise to perform in the particular area(s) of work for which they are seeking certification.

 

(d) All applicants shall be required to demonstrate that they have annual gross receipts that, when added with those of its subsidiary or subsidiaries and averaged over three (3) consecutive years, do not exceed five percent (5%) of the applicable business size standard for the SBA General Contractor Classification which is equivalent of the NAIC code 236220 as established in 13 CFR 121.201, as amended.

 

(e) All applicants shall be required to demonstrate that the business is an independent business and is not a subsidiary or affiliate of any other person.

 

(1) Independence shall be determined by considering the ability of the applicant to perform satisfactorily in its area(s) of specialty without substantial reliance upon finances, resources, bonding, expertise, staff, facilities, or equipment of non-SLBEs. Recognition of the applicant as a separate and distinct entity by governmental taxing authorities is not dispositive of the applicant's assertion of independence.

 

(2) Independence will be established by the degree to which financial, equipment leasing, business and other relationships with larger established firms vary from normal industry practices, and other appropriate factors.

 

(3) Independence will be evaluated as of the date of application submission.

 

(4) Recognition of a business as a separate entity for tax or corporate purposes is not necessarily sufficient to demonstrate that a firm is an independent business and is not a subsidiary or affiliate of another person.

 

(f) All applicants and certified businesses shall submit such information or documentation as may be required by the Director in connection with its certification as an SLBE, including, but not limited to current licenses and federal, state and local tax returns and schedules (business and personal), and all other forms that are required to be included with or attached to the return at the time of filing. Failure to submit such information or documentation shall result in the denial of its certification application or revocation of its certification.

 

(g) A certification application may be withdrawn by an applicant without prejudice at any time prior to an audit. Documentation submitted to support an application will not be returned to the applicant. An applicant may reapply for certification at any time, except that any applicant who withdraws an application for reasons relating to their ownership or control of the business shall be required to wait three months before reapplying.

 

(h) The applicant has the burden of demonstrating to the Director, by a preponderance of the evidence, that it meets all the requirements for certification. The Director shall make determinations concerning whether the applicant has met its burden by considering all the facts in the record, viewed as a whole.

 

(i) Certification of an applicant shall be valid for three years from the effective date of the certification and only as to the area(s) of specialty specified therein, contingent upon the annual establishment by the certified firm of its continued eligibility. The Director is authorized to require SLBEs to submit yearly updates of information including, but not limited to, current licenses and federal, state and local tax returns and schedules (business and personal), and all other forms that are required to be included with or attached to the return at the time of filing.

 

(j) Once certified, an SLBE must notify the Department in writing within 30 calendar days of any change(s) in circumstances affecting the SLBEs continued ability to meet the SLBE certification requirements or of any material change(s) in the information provided in the certification application process. The statement must include supporting documentation describing in detail the nature of any changes. If the SLBE fails to make timely notification of such change(s), it will be deemed to have failed to cooperate and it may have it certification suspended or revoked on that ground, notwithstanding the fact that the changes, if disclosed, may not have impaired the SLBEs ability to retain its certification intact.

 

(k) The Director shall safeguard information that reasonably may be regarded as confidential business information from disclosure to unauthorized persons consistent with federal, state and local law.

 

(l) The Director is authorized to deny certification as an SLBE to any person not meeting the requirements for certification as such, and to suspend or revoke certifications an SLBE as provided in Section 38-82.9.

 

 

 
(m) The Director shall notify an SLBE or applicant for certification as an SLBE of any decision to deny, suspend or revoke that certification. Notification shall be in writing and shall indicate the basis for the Director’s decision. That decision shall be final, subject to the right of appeal to the Fairness in City Contracts Board or Fairness in Construction Board, as appropriate, and as set forth herein. The procedures shall be as follows:

 

(1)             Within ten (10) business days of the date the Director sends written notice of his decision, any aggrieved person wishing to appeal the Director’s decision shall file with the Director a written notice of appeal stating the reasons for the appeal and including all supporting documentation they wish to be considered. The information or documentation submitted shall be limited to the issue(s) raised in the written notice of appeal. No new or additional information shall be considered for the appeal without a showing by the appellant that it was not available or, through due diligence, could not have been made available. The written notice must specify whether the firm wishes to appeal in writing and/or appear personally for a hearing and if they intend to be accompanied by counsel. The failure to file a written notice of appeal complying with the requirements herein shall constitute a full and complete waiver of any right to appeal or otherwise protest any decision.

 

(2)             Within five (5) business days of receipt of an effective written notice of appeal, the Director shall forward the notice to the chairperson or the Fairness in City Contracts Board or chairperson of the Fairness in Construction Board. The Fairness in Construction Board’s jurisdiction shall include appeals from certification decisions that relate to certification in area(s) of work specific to the construction trades or the supply of construction related materials. The Fairness in City Contracts Board shall have jurisdiction over all other appeals. In the event that there is any question as to which body has jurisdiction over the appeal, the matter shall be left to the discretion of the Director whose decision in that regard shall be conclusive.

 

(3)             Within five (5) business days from the date of receipt of notice from the Director, the respective chairperson shall set a hearing date, provided however that the hearing date will be no more than 60 days from the date notice is received from Director. The chairperson shall cause notice of the hearing to be served upon all parties by certified mail. Such notice shall set forth with particularity the issues on appeal and shall include the hearing date, time and place.

 

(4)             At the hearing, all parties shall be provided a fair and impartial hearing. Legal counsel may accompany the SLBE or applicant for certification as an SLBE during the hearing, speak on their behalf, respond to questions, and otherwise make a presentation. Each side will be limited to a period of 15 minutes to address the Board, unless extended by the hearing officer for good cause. Reasonable accommodations will be made for those with disabilities and/or limited language proficiency. For the appeal, the burden of proof rests on SLBE or applicant for certification as an SLBE to establish that the Director’s decision was improper.

 

(5)             The Board shall, within 15 business days of the hearing or within 15 days of the deadline set by the hearing officer for the submission of any additional documentation, if applicable, make a written decision on the appeal, which decision shall affirm, alter, or reverse the Director’s decision. Written notice of the decision on the appeal shall be sent to all parties by mail setting forth the reasons for the decision. The decision of the Board shall be binding on all parties, subject to the right of appeal as provided by law.

 

(6)             Any person receiving a decision upholding the Director’s decision to deny or revoke certification as an SLBE shall be ineligible to reapply for SLBE certification for one (1) calendar year from the later of the date the Board’s decision was issued, or the final date of any court decision.

 

(n) An SLBE shall be graduated from the SLBE Program as follows:

 

(1) If the annual gross receipts of the SLBE when added with those of its subsidiary or subsidiaries and averaged over three consecutive years exceed five percent (5%) of the applicable business size standard for the SBA General Contractor Classification which is equivalent of the NAIC code 236220 as established in 13 CFR 121.201, as amended, the SLBE shall graduate from the SLBE Program.

 

(2) An SLBE shall graduate from the SLBE Program without regard to annual gross receipts 10 years after the date it is first certified as an SLBE.

 

(3) The Director shall notify an SLBE in writing that it has graduated from the SLBE Program

 

(o) Notwithstanding any anything within this section to the contrary, no SLBE shall be entitled to appeal any decision to remove or otherwise deny a renewal of certification on the grounds that the SLBE has graduated from the SLBE Program due to the expiration of the ten year certification period as provided in subsection (n)(2).

 

Sec. 38-82.8. Duties and authority of director

 

(a) The Director is hereby authorized to establish rules and regulations to implement the SLBE Program. This authorization shall include, but not be limited to, authority to establish a uniform application fee to be paid by any person requesting certification as an SLBE, provided however that the application fee shall not exceed the costs reasonably expected to be incurred by the Department in certifying an SLBE.

 

(b) The Director shall, in addition to any other duties specified herein:

 

(1) Administer and enforce the SLBE Program;

 

(2) Update the SLBE Directory available to the general public, City departments and agencies;

 

(3) Assist City departments and agencies in finding qualified SLBEs to participate in the SLBE Program;

 

(4) Identify appropriate contracting opportunities for qualified SLBEs,

 

(5) Publish an annual department and agency report for the City's fiscal year detailing the results of the SLBE Program: and

 

(6) Provide a semi-annual compliance report to the City Manager, the Fairness in Construction Board and the Fairness in City Contracting Board that discloses the total contract dollars awarded to SLBEs and total dollar value of bid incentives awarded to SLBEs.

 

(7) Develop and maintain relationships with organizations representing contractors, including small business organizations, and solicit their support for the SLBE Program.

 

(c) Every city department and Agency shall maintain and provide the Director such information as may reasonably be requested for purposes of monitoring the total contract dollars awarded to SLBEs and total dollar value of bid incentives awarded to SLBEs.

 

(d) Each Department Director shall cooperate in providing the Director the information necessary to publish an annual report.

 

Sec. 38-82.9. Penalties for Non Compliance; no retaliation.

 

(a) The Director is authorized to recommend suspension, revocation, sanction or debarment of any contract or contractor, as appropriate, for providing false or misleading information regarding the SLBE Program to the Department, purposefully omitting or refusing to provide information requested by the Department, or otherwise violating any provision of the SLBE Program.

 

(b) The Director is authorized to suspend or revoke the certification of an SLBE, as appropriate, for providing false or misleading information to the Department, purposefully omitting or refusing to provide information requested by the Department, or otherwise violating any provision of the SLBE Program, without having to make a recommendation to any other person or department.

 

(c) Sanctions shall be imposed in conformity with any applicable federal, state or local laws. In determining whether to suspend or revoke the certification of an SLBE, the Director shall consider the following factors:

 

(1) Whether the failure to comply with applicable requirements involved intentional misconduct or, alternatively, may be reasonably concluded to have resulted from a misunderstanding on the part of the SLBE;

 

(2) The number of specific incidents of failure by the SLBE;

 

(3) Whether the SLBE has been previously suspended;

 

 

 
(4) Whether the SLBE has failed or refused to provide the Director with any information requested by the Director or required to be submitted to the Director pursuant to law or these procedures;

 

(5) Whether the SLBE has materially misrepresented any applicable facts in any filing or communication to the Director; and

 

(6) Whether any subsequent restructuring of the subject business or other action has been undertaken to cure the deficiencies in meeting applicable requirements.

 

(d) Suspensions may be for any length of time not to exceed five years. Suspensions in excess of one year and revocations of certification shall be reserved for cases involving intentional or fraudulent misrepresentation or concealment of material facts, multiple acts in contravention of applicable requirements, cases where the SLBE has been previously suspended, or other similarly egregious conduct.

 

(e) The making of any false or misleading statements shall be grounds for application of any applicable criminal and or civil penalties in addition to the grounds for sanction.

 

(f) No person shall intimidate, threaten, coerce or discriminate against any individual or business for the purpose of interfering with the implementation or enforcement of any provision of the SLBE Program because such individual or business filed a complaint or cooperated in the investigation of a complaint.

 

Sec. 38-82.10 Coordination with Fairness Boards.

 

In addition to semi-yearly reports, the Director shall consult from time-to-time with the Fairness in City Contracts Board and the Fairness in Construction Board for the purpose of reporting on the implementation of the SLBE Program and identifying methods by which the City may increase the participation of SLBEs in eligible contracts. The Boards may make recommendations to the Director with regard to the Small Local Business Enterprise Development Program.

 

Sec. 38-82.11 Severability Clauses

 

The provisions of sections 38-82.1 through 38-82.11 are severable. If any provision or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the remaining provisions, including the application of such provisions to other persons or circumstances, shall continue in full force and effect.

 

________________________________________________________

 

Approved as to form and legality:

 

 

___________________________

Brian T. Rabineau

Assistant City Attorney