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Legislation #: 970828 Introduction Date: 6/5/1997
Type: Ordinance Effective Date: none
Sponsor: COUNCILMEMBER FINLEY
Title: Amending Article II, Chapter 38 of the Code of General Ordinances entitled "Civil Rights Ordinance of Kansas City, Missouri" by repealing Sections 38-84 through 38-91 and Sections 38-93 through 38-100 and enacting in lieu thereof new Sections 38-84 through 38-91 and Sections 38-93 through 38-100.4 to be known as "Minority and Women Business Enterprise Program of Kansas City, Missouri".

Legislation History
DateMinutesDescription
6/5/1997

Prepare to Introduce

6/5/1997

Referred City Operations Committee

6/11/1997

Hold On Agenda

6/25/1997

Hold On Agenda

7/9/1997

Hold Off Agenda

7/15/1998

Hold On Agenda

8/19/1998

Do Pass as a Committee Substitute

8/20/1998

Assigned to Third Read Calendar

8/27/1998

Passed as Substituted


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COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 970828

 

Amending Article II, Chapter 38 of the Code of General Ordinances entitled Civil Rights Ordinance of Kansas City, Missouri by repealing Sections 38-84 through 38-91 and Sections 38-93 through 38-100 and enacting in lieu thereof new Sections 38-84 through 38-91 and Sections 38-93 through 38-100.4 to be known as Minority and Women s Business Enterprise Program of Kansas City, Missouri.

 

WHEREAS, the City of Kansas City, Missouri in consortium with the Kansas City Area Transportation Authority and Kansas City, Missouri School District (the Consortium) undertook a study to:

 

Examine and analyze contracting activities in the market area to determine whether there is a disparity between MBE/WBE availability and utilization; and

 

If MBE/WBEs were found to be underutilized, investigate the causes of their underutilization; and

 

Determine and document the extent that current availability of MBEs and WBEs may reflect past and/or present discrimination; and

 

Determine the ability of race-neutral and gender-neutral programs to redress the effects of discrimination; and

 

Examine whether the evidence supports the establishment or continuance of remedial programs, or whether program or policy changes are appropriate; and

 

WHEREAS, the City of Kansas City has operated an MBE/WBE program based on race, ethnicity and gender since December of 1981; and

 

WHEREAS, the City of Kansas City found it necessary to study its MBE/WBE program to insure that it met the constitutional standards established by the United States Supreme Court in Croson v. City of Richmond; and

 

WHEREAS, the Consortium contracted with MGT of America, a corporation with extensive experience in conducting studies of this nature, to prepare a disparity study (the Study); and

 

WHEREAS, the Study covered the post MBE/WBE program period of fiscal years 1987 through 1992 for the areas of construction, professional services, other services and goods and analyzed the participation of MBE/WBEs as prime contractors and subcontractors in each market; and

 

WHEREAS, the Study found that MBE/WBEs received significantly fewer contracts and contract dollars than would be expected given their availability in the geographic market from which


the City procures construction, professional services, other services and goods; the principal cause for this is racial, ethnic and gender discrimination; and

 

WHEREAS, the Study also found availability of MBE/WBEs suppressed by racial, ethnic and gender discrimination within the relevant market area, most manifest among African-American and Hispanic providers of construction, professional services, other services and goods;

 

WHEREAS, the statistical findings establish a prima facia case that discrimination hinders meaningful participation by MBE/WBEs in the City procurement process; and

 

WHEREAS, anecdotal evidence corroborates the statistical findings based on testimony of 49 people who testified at four (4) public hearings, interviews of 94 MBE/WBE firms and survey responses from 432 firms; and

 

WHEREAS, the anecdotal evidence reports frequent incidents of discrimination in the commercial markets of Kansas City, particularly among African-American MBEs demonstrating the pervasive scope and depth of such discrimination; and

 

WHEREAS, the anecdotal evidence shows that discrimination impedes the access of MBE/WBEs to resources which are critical to business success: (1) banking services; (2) working capital; (3) financing, such as commercial loans; (4) bonding; (5) union labor and skilled employees; (6) membership in private and professional associations; (7) sub-contracting opportunities; (8) favorable prices and credit terms from suppliers; (9) membership in construction and skilled trade unions and union apprentice programs; (10) timely receipt of City procurement solicitations; (11) end-user consumers; and (12) residential housing; and

 

WHEREAS, the Study s findings are consistent with the findings of other studies and surveys concerning Kansas City and the State of Missouri; and

 

WHEREAS, race, ethnic and gender neutral initiatives to increase the participation of MBE/WBEs in the City contracting process has borne few results; the City has tried price preferences and set-asides for small businesses; the City has improved its procurement rules by calling for formal and inclusive bidder's list, wide publication of notices of solicitations of bids and proposals and prompt payment of bills; even with these and other race and gender neutral initiatives, the City s utilization of MBE/WBEs has not increased significantly; and

 

WHEREAS, the City Council has re-evaluated and modified the program; and

 

WHEREAS, the City Council concludes that the foregoing constitutes compelling evidence of the need to continue to implement an affirmative action program to remedy the on-going impact of discrimination against MBE/WBEs seeking to participate in the City s procurement process and is directed at increasing their participation in the City s contracting process; NOW, THEREFORE,

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section 1. That Article II, Sections 38-84 through 38-91 and Sections 38-93 through 38-100 Chapter 38, Code of Ordinances are hereby repealed and new Sections 38-84 through 38-91 and Sections 38-93 through 38-100.4 are hereby enacted, to read as follows:

 

Sec. 38-84. Definitions.

 

The following definitions apply to Article II.

 

(1) Affidavit of intended utilization: The affidavit that must be submitted with the bid stating the percentage of MBE/WBE participation that a bidder intends to achieve on the project.

 

(2) Agency: Any public or private entity that receives sixty-six percent (66%) of its funding from the City of Kansas City, Missouri.

 

(3) Agency Head: Person authorized to act on behalf of an Agency as defined in Section 38-84(2).

 

(4) Award of Contract: Execution of a Contract and, if necessary, City Council or Park Board authorization.

 

(5) Bid: An offer to enter into a Contract submitted pursuant to an Invitation for Bid.

(6) Bidder: Any Person who submits a Bid to the City or an Agency in response to an Invitation for Bid.

 

(7) Bid Opening: The event whereby bids are opened and read aloud at the place, date and time specified in the Invitation for Bid and any subsequent amendment thereto.

 

(8) Certified MBE: A business enterprise certified by the Human Relations Department pursuant to this Article II as a minority-owned business enterprise. Except as provided in 38-90(3), such business shall be deemed certified for a particular contract if it is certified or if it is listed on the most current MBE/WBE Directory or addendum thereto on the date the contractor utilization plan is submitted.

 

(9) Certified WBE: A business enterprise certified by the Human Relations Department pursuant to this Article II as a woman-owned business enterprise. Except as provided in 38-90(3), such business shall be deemed certified for a particular contract if it is certified or if it is listed on the most current MBE/WBE Directory or addendum thereto on the date the contractor utilization plan is submitted.

 

(10) City: City of Kansas City, Missouri.

(11) City Department: Department of the City of Kansas City, Missouri or the Division of Purchases and Supplies when acting on behalf of a Department Director.

 

(12) Commercially useful function: A certified MBE or WBE is providing a commercially useful function when it is performing real and actual services that are a distinct and verifiable element of the contracted work based upon private sector trade or industry standards. In determining whether a certified MBE/WBE is performing a commercially useful function, factors including but not limited to the following will be considered:

 

(a) Whether the MBE or WBE has the skill and expertise to perform work for which it is being utilized;

 

(b) Whether the cost of materials is an ordinary and necessary part of the subcontractors responsibility;

 

(c) Whether the MBE or WBE is in the business of performing, managing or supervising the work for which it has been certified and is being utilized;

 

(d) Whether the MBE or WBE is participating in the Contract as a middle person or broker in the normal course of that business or trade by purchasing the goods and/or services from another business, thereby qualifying expenditures for such goods and/or services to be counted toward utilization requirements for certified MBEs and WBEs;

 

(e) Whether the MBE or WBE is responsible for the purchase and quality of, and payment for, materials used to perform its work under the contract.

 

There shall be a rebuttable presumption that, when the MBE or WBE subcontracts a greater portion of the contract work than normal industry practice, the MBE or WBE is not performing a commercially useful function.

 

(13) Contract: Any contract or lease more than $35,000.00 in which the City or Agency is a party, except the following:

 

(a) Personal services contracts;

 

(b) Emergency contracts;

 

(c) Imprest accounts in the nature of petty cash funds.

 

(14) Contractor: Any person who enters into a contract with the City or an Agency.

 

(15) Contractor Utilization Plan: The statement that must be submitted by a bidder or proposer pursuant to Section 38-89 that states its plan to utilize qualified, certified MBEs and/or WBEs in the performance of a contract.

 

(16) Day: A calendar day, except as otherwise indicated.

 

(17) Department: The Human Relations Department (HRD).

 

(18) Department Director: Person appointed by the City Manager to be responsible for a City Department or the Commissioner of Purchases and Supplies when acting on behalf of a Department Director or the City.

 

(19) Director: The Director of the Human Relations Department or his authorized representative.

(20) Goal: A numerical objective stated as a percentage of contract dollars for participation by qualified, certified MBEs and WBEs in contracts.

 

(21) Invitation for Bid: A request or invitation for submission of an offer to enter into a contract pursuant to a competitive bidding process.

(22) Joint venture: An association, of limited scope and duration, between two or more persons, one of whom is a certified MBE or WBE who has entered into a written agreement to act as a contractor or subcontractor and in which each member of the association performs a commercially useful function, contributing property, capital, effort, skill and/or knowledge, and in which each such person is entitled to share in the profits and losses of the venture in reasonable proportion to the economic value of its contribution.

 

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

 

(24) MBE/WBE Directory: A source list compiled by the Department containing names and addresses of certified MBEs and WBEs in the business of providing construction, professional services and other services and goods from whom bids and proposals can be solicited. The directory is to facilitate identifying MBEs and WBEs with capabilities relevant to general contracting requirements and to particular solicitations.

 

(25) Mentor/Protg: A relationship between a Minority or Women s Business Enterprise (Protg) certified by the Human Relations Department for a minimum of one (1) year and a person (Mentor) in the same trade or industry as the Protg. The Mentor/Protg relationship is not to exceed three (3) years and is to provide technical, financial, bonding, equipment and personnel assistance. The purpose of the relationship is to increase the capacity of certified MBE/WBEs to perform contracts. A person is limited to one Mentor/Protg relationship per lifetime.

 

(26) Minority: A person who is a citizen or lawful permanent resident of the United States and who is:

 

(a) Black, a person having origins in any of the Black racial groups of Africa;

 

(b) Hispanic, a person having origins of Mexican, Puerto Rican, Cuban, Central or South American regardless of race;

 

(c) Asian, a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or Pacific Islands; or

(d) American Indian, Eskimo, Aleut, or those who maintain cultural identification through tribal affiliation or community recognition; or those who demonstrate at least one-quarter descent from such groups.

 

(27) Minority business enterprise (MBE) means a business concern that is at least 51 percent owned and independently controlled by one or more minorities and either has its principal place of business in the Kansas City Metropolitan Area or has made substantial efforts to become a market participant in Kansas City, Missouri, and whose annual receipts do not exceed:

 

(a) The amount of $17,000,000.00 per year for general construction contractors;

 

(b) The amount of $7,000,000.00 per year for specialty construction contractors;

 

(c) The amount of $5,000,000.00 per year for professional services, other services and goods.

 

(28) Person: One or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, fiduciaries and other organizations; except Person does not include any local, state or federal governmental entity.

 

(29) Personal Services Contract: A contract or agreement of employment with an individual who is not acting as an independent contractor and who is not part of the Citys classified or unclassified service.

(30) Principal place of business: The location at which the business records of the MBE/WBE applicant concern are maintained and the location at which the individual who manages the concerns day-to-day operations spends the majority of his/her working hours.

 

(31) Proposal: Any offer or list of qualifications submitted to the City in response to a Request for Proposal.

 

(32) Proposer: Any person who submits a proposal to enter into a contract, either in response to a Request for Proposals, Request for Qualifications or otherwise, but not pursuant to an Invitation for Bid.

 

(33) Qualified: The demonstrated ability to perform the contracted task.

 

(34) 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.

 

(35) Woman: A person who is a citizen or lawful permanent resident of the United States and who is a female.

 

(36) Women's business enterprise (WBE) means a business concern that is at least 51 percent owned and independently controlled by one or more women and whose principal place of business is in the Kansas City Metropolitan Area or has made substantial efforts to become a market participant in Kansas City, Missouri, and whose annual receipts do not exceed:

 

(a) The amount of $17,000,000.00 per year for general construction contractors;

 

(b) The amount of $7,000,000.00 per year for specialty construction contractors;

 

(c) The amount of $5,000,000.00 per year for professional services, other services and goods.

 

Sec. 38-85. Application of ordinance.

 

(1) The provisions of this Article II shall apply to all Contracts, as defined in Section 38-84(13), entered into by the City or an Agency. Federal or state requirements for minority or women business enterprise participation or disadvantaged business enterprise participation shall supercede this Article when required by law or federal or state contract.

 

(2) Each Department Director and Agency Head is responsible for using best efforts to achieve the City-wide MBE and WBE goals set forth in Section 38-86.

 

3) Each person with whom the City or an Agency enters into a contract for which goals have been set shall either:

(a) Meet or exceed the goals set for that contract; or

 

(b) Make and provide evidence of best faith efforts to achieve the goals and request a waiver of the contract goals.

 

Sec. 38-85.5. Application to leases and TIF.

 

(1) Lease of city property for development. The provisions of this Article II shall apply to all projects on property leased by the city to any person for development of the property by that person or any other authorized person.

 

(2) Projects under tax increment financing. The Tax Increment Financing Commission shall adopt an affirmative action program and a minority and womens business enterprise program that is consistent with the Citys affirmative action program and minority and womens business enterprise program, as determined by the Director of Human Relations, and that applies to all projects financed in whole or in part by tax increment financing as that term is used in RSMo 99.800 et seq. For purposes of this subsection, the Citys affirmative action program and minority and womens business enterprise program shall have the same meaning as used in Chapter 38.

 

Sec. 38-86. City-wide goals.

 

(1) The goals set forth in this section are City-wide goals to be used by City Departments and Agencies. The City-wide goals are not goals for individual contracts. They are goals for total MBE and WBE participation in contracts. The City-wide goals are established as follows:

 

CLASSIFICATION

CONSTRUCTION

PROFESSIONAL

OTHER

MATERIALS AND

 

 

 

SERVICE

SERVICES

SUPPLIES

Black American

9%

8%

13%

9%

 

 

 

 

 

Hispanic American

5%

3%

3%

3%

 

 

 

 

 

Native American/

 

 

 

 

Asian American

1%

2%

2%

2%

 

 

 

 

 

 

White Women

7%

8%

10%

9%

 

(2) The City Council shall review the City-wide goals at least every three (3) years and determine whether to maintain, modify, or terminate the program.

 

(3) Neither City-wide goals nor individual contract goals should be construed as a limitation on contracting opportunities for the above listed classifications. Such classifications shall be eligible to be awarded contracts consistent with bidding or other contract procedures over and above the percentages listed.

 

Sec. 38-87. City Department and Agency MBE/WBE utilization plan.

 

(1) Each City Department and Agency shall prepare and submit to the Director by April 1 an annual MBE/WBE utilization plan for the next City fiscal year. Each City Department and Agency MBE/WBE utilization plan shall include:

 

(a) Separate City Department or Agency goals for participation by qualified, certified MBEs and WBEs as prime contractors and subcontractors in the procurement of goods, professional services, services and construction for the upcoming fiscal year. The goals should be expressed as a percentage of the City Department or Agency s total fiscal year contract expenditures; and

 

(b) Any other information that the City Department or Agency or the Director deems relevant or necessary.

 

(2) A City Department or Agency may amend its MBE/WBE utilization plan during the fiscal year to reflect changes in its projected contract expenditures or other relevant circumstances.

 

(3) In planning its individual contracts, each City Department and Agency shall utilize the methodologies described in this Article II and use its best efforts to encourage and attempt to obtain participation of qualified, certified MBEs and/or WBEs and shape the scope, specifications and size of a contract to enhance such participation.

 

(4) City Departments and Agencies shall encourage eligible businesses to:

 

(a) Apply to the Human Relations Department, Kansas Department of Transportation (KDOT) and Missouri Department of Transportation (MDOT) for certification;

 

(b) Have their names included on departmental bidders and proposers lists and in the MBE/WBE directory;

 

(c) Seek pre-qualification when applicable;

 

(d) Compete for City business as prime contractors, subcontractors and suppliers.

 

(5) City Departments and Agencies shall make reasonable efforts to:

 

(a) Advertise contract opportunities in general circulation media, trade and professional association publications, small business media, and publications of minority and women s business organizations;

 

(b) Send written notice of specific contract opportunities to minority and women s business organizations and those entities on the departmental bidders and proposers list;

 

(c) With the assistance of the Director, shape the scope, specifications and size of a contract to enhance participation opportunities for qualified, certified MBEs and WBEs.

 

(6) Each Department Director, as part of his or her annual evaluation, shall be reviewed concerning the implementation of the Citys MBE/WBE Program. In the event a deficiency is found, the Human Relations Director or his or her designee will work with the Director to identify prohibiting factors and offer any assistance necessary to successfully implement this program.

 

Sec. 38-88. Setting goals for individual contracts.

 

(1) Goals shall be established for individual contracts when deemed practical by the Director, as determined pursuant to this section.

 

(2) Individual contract goals shall be flexible and are to be determined on a contract- by-contract basis. In determining whether goals should be established for an individual contract or in setting the specific goal for an individual contract, the following shall be considered:

 

(a) The scope of work;

 

(b) The number and types of qualified, certified MBEs and WBEs available to perform such work, or portions of it;

 

(c) Whether the contract can be structured to create potential opportunities for qualified, certified MBEs and WBEs to participate as joint venturers, subcontractors, service providers and/or suppliers;

 

(d) The level of participation of qualified, certified MBEs and WBEs in similar contracts awarded by other City Departments and Agencies, and on local projects awarded by the state and federal governments in the previous and current fiscal years;

 

(e) The City Departments or Agencys progress toward meeting its annual MBE/WBE goals and its expectations as to how future contracts will be used toward meeting such goals;

 

(f) The potential dollar amount of the contract.

 

(3) When goals for individual City contracts are set, they shall be set by the following:

 

(a) For City construction contracts, by the Fairness in Construction Board upon recommendation of the Director;

 

(b) For all other City contracts, by the Director.

(4) When goals are established for a contract, such goals shall be stated in any Invitation for Bid or Request for Proposals.

 

Sec. 38-89. Contractor Utilization Plan.

 

When goals have been established for a contract, each bidder or proposer shall submit a notarized contractor utilization plan to the City or Agency which shall include the following:

 

(1) Names and addresses of each qualified, certified MBE or WBE that will participate in the contract;

 

(2) The work to be performed by each qualified, certified MBE and/or WBE, and the amounts each is to be paid for such work;

(3) Verification letters from each listed MBE and WBE evidencing that it has agreed to execute a formal agreement for the work and indicating the price agreed upon for such work.

 

Sec. 38-90. Determining contract participation credit for MBEs and WBEs.

 

(1) The following contract amounts shall be credited toward achieving the goals:

 

(a) The total contract dollar amount that a prime contractor has paid or is obligated to pay to a subcontractor that is a qualified, certified MBE or WBE.

 

(b) Twenty-five percent (25%) of the total dollar amount paid or to be paid by a prime contractor to obtain supplies or goods from a supplier who is not a manufacturer and who is a qualified, certified MBE or WBE. If the MBE/WBE is a manufacturer of such supplies then one hundred percent (100%) may be credited.

 

(c) When a Mentor and its Protg jointly perform work on a project, the Mentor may receive up to a five (5) percent incentive toward the applicable MBE/WBE goal for that project. The Mentor shall be credited a bonus of two times the Protgs actual participation toward meeting the applicable MBE/WBE goal. The maximum bonus credit that a Mentor may receive on a project is five (5) percent. Example: Protg contracts with Mentor to perform 2% of the contract. Mentor will receive credit for 4% participation. Mentor contracts with Protg to perform 30% of the contract, Mentor will receive a bonus of 5%.

 

(d) Subcontractor participation with a lower tier MBE/WBE subcontractor by the subcontractor using one of the above methods of participation.

 

(2) Notwithstanding any other provision of this section, no credit toward achieving the goals on an individual contract shall be given for:

 

(a) Participation in a contract by any qualified, certified MBE or WBE that does not perform a commercially useful function. The prime contractor shall have the burden of proving that a certified MBE or WBE is performing a commercially useful function.

(b) Any portion of the value of the contract that an MBE or WBE subcontractor subcontracts back to the prime contractor or any other contractor who is not a qualified, certified MBE/WBE.

 

(c) A certified MBE or WBE prime contractors own participation in its contract with the City.

 

(3) In order to be credited towards the MBE or WBE goals on a particular solicitation, an application for certification as a MBE/WBE must be filed no later than forty-five (45) days prior to the Invitation for Bid, or Request for Proposals, or Qualifications for construction-related services. A person must have received its certification by the date on which the bid, proposal or qualifications is due.

 

Sec. 38-91. Waiver of MBE/WBE goals.

 

(1) When a request for waiver has been filed, the Director may recommend a full or partial waiver of contract goals when the Director has determined a bidder or proposer has not met the goals despite its best faith efforts, as defined in Section 38-93.

 

(2) Notwithstanding any other provision of this Article II, the City Council may waive the requirements of this Article II and award a City contract to a lowest and best bidder or a best proposer if the Council determines it is in the best interests of the City.

 

Sec. 38-93. Standards to determine best faith efforts.

 

(1) Best faith efforts are efforts that, given all relevant circumstances, a bidder or proposer actively and aggressively seeking to meet the goals can reasonably be expected to make. In evaluating best faith efforts made toward achieving the goals, the Director may consider whether the bidder or proposer has performed the following, along with any other relevant factors:

(a) Advertised opportunities to participate in the contract in general circulation media, trade and professional association publications, small and minority business media, and publications of minority and women s business organizations in sufficient time to allow MBE and WBE firms to participate effectively;

 

(b) Provided notice to a reasonable number of minority and womens business organizations of specific opportunities to participate in the contract in sufficient time to allow MBE and WBE firms to participate effectively;

 

(c) Sent written notices, by certified mail or facsimile, to qualified, certified MBEs and WBEs soliciting their participation in the contract in sufficient time to allow them to participate effectively;

 

(d) Attempted to identify portions of the work for qualified, certified MBE and/or WBE participation in order to increase the likelihood of meeting the goals, including breaking down contracts into economically feasible units;

 

(e) Requested assistance in achieving the goal from the Director and acted on the Directors recommendations;

 

(f) Conferred with qualified, certified MBEs and WBEs and explained the scope and requirements of the work for which their bids or proposals were solicited;

 

(g) Attempted to negotiate in good faith with qualified, certified MBEs and WBEs to perform specific subcontracts; not rejecting them as unqualified without sound reasons based on a thorough investigation of their capabilities.

 

(2) Additional standards for construction contracts: Within five (5) working days after drawing the bid specifications, bidder sent certified letters or facsimiles to qualified, certified MBEs and WBEs listed by the MBE/WBE Directory.

 

(3) A bidder or proposer shall submit documentation of its best faith efforts when requested by the City or Agency.

 

(4) Best faith efforts shall be made prior to submission of the contractor utilization plan.

 

Sec. 38-94. Modification or Substitution.

 

(1) After bid or proposal opening or after a contract is awarded, the Director may approve substitutions of other qualified, certified MBE/WBEs for those listed in the contractor utilization plan or approve modifications of the amount of participation listed in the contractor utilization plan, if the Director finds that the bidder, proposer or contractor made and provided evidence of best faith efforts to substitute the listed MBE/WBE with other qualified, certified MBE/WBEs for the listed scope of work or any other scope of work in the project and also finds one of the following:

 

(a) The listed qualified, certified MBE/WBE is non-responsive or cannot perform; or

(b) The listed qualified, certified MBE/WBE has increased its previously quoted price to the bidder, proposer or contractor without a corresponding change in the scope of the work; or

 

(c) The listed qualified, certified MBE/WBE has committed a material default or breach of its contract with the contractor; or

(d) Requirements of the scope of work of the contract have changed and render subcontracting not feasible or not feasible at the levels required by the goals established for the contract; or

 

(e) The listed MBE/WBE is unacceptable to the contracting department; or

 

(f) The listed qualified, certified MBE/WBE thereafter had its certification revoked; or

 

(g) The bidder, proposer or contractor has not attempted intentionally to evade the requirements of this Article II and it is in the best interests of the City to allow a modification or substitution.

 

(2) If there is an increase in the quantity of the scope of work performed by an MBE/WBE, Contractor shall make good faith efforts to use such MBE/WBE for the increased work. If extra work not within the general scope of the contract and in excess of $35,000 is required, the Director shall assign MBE/WBE goals for the extra work, if appropriate, and the Contractor shall make best faith efforts under the circumstances to achieve those goals.

 

Sec. 38-95. Contract award process.

 

(1) Whenever a bidder or proposer has submitted a bid or proposal that is not in material compliance with the requirements of this Article II, the contracting Department or Agency shall reject the bid or proposal unless the goals are waived pursuant to Section 38-91(2).

 

(2) If, after a contract is awarded, it is determined that a solicitation or award is in violation of this Article II, the contractor may continue performance if the City Department Director or Agency Head makes a written determination that it is in the best interests of the City or the Agency, without prejudice to any other legal remedies available to it under the contract.

 

Sec. 38-96. Liquidated damages.

 

All contracts which contain goals shall contain a provision which provides for liquidated damages in the event the contractor fails to achieve the MBE/WBE participation specified in the contractor utilization plan as finally approved by the Director. The liquidated damages may not exceed the difference between the monetary amount of the MBE/WBE participation finally approved by the Director and the amount actually paid to qualified, certified MBEs and WBEs.

 

Sec. 38-97. Fairness in City Contracts Board.

 

(1) There is hereby established a Fairness in City Contracts Board, consisting of five members including a chairperson appointed by the Mayor. Members of the City Council and employees of the City are ineligible for appointment. The Board will issue advisory opinions or determinations for issues arising out of professional services contracts, other services contracts, goods, materials and supplies contracts. The Board is hereby authorized to establish its own rules and regulations to implement this charge.

 

(2) All Board appointments shall be for a period of four years except the initial appointments of two members which shall be two years.

(3) Conflict of interest. In the event a Board member has a conflict of interest in a contract or issue that comes before the Board, the member shall recuse themselves.

 

(4) In the event the Chairperson is not in attendance at any Board meeting, a majority of Board members shall select a member to act as chairperson for that meeting.

 

(5) Quorum. Three members of the Board shall constitute a minimum quorum unless otherwise increased by Board rules.

 

(6) An aggrieved bidder or proposer on a professional services contract, other services contract, goods, materials and supplies contract may appeal to the Board any recommendations or determinations by the Director concerning the following issues:

 

(a) Recommendations to waive the individual contract goals pursuant to section 38-91(1);

(b) Recommendations regarding substitution for an MBE/WBE listed on a contractor utilization plan prior to bid or proposal award pursuant to section 38-94;

 

(c) Recommendations regarding modification of the percentage of the participation on a contractor utilization plan prior to bid or proposal award pursuant to section 38-94;

 

(d) Recommendations regarding award of a contract to or continued performance by a person who has violated this Article II;

(e) Recommendation or to assess liquidated damages;

 

(f) Determinations to approve or deny a substitution for an MBE/WBE listed on a contractor utilization plan pursuant to section 38-94 after contract award;

 

(g) Determinations to approve or deny modifications of the percentage of the participation on a contractor utilization plan pursuant to section 38-94 after contract award.

 

(7) Appeals shall be made to the Fairness in City Contracts Board by filing with the Director within ten (10) working days after notice of the Directors determination or recommendation appealed from, a written request for review by the Board, stating the grounds of such appeal with specificity. The Director shall promptly forward to the Chairperson and members of the Board a copy of any appeal.

 

(8) Failure to file a timely appeal shall constitute a waiver of the right of a bidder, proposer or contractor to appeal the Directors recommendation or determination and such person shall be estopped to deny the validity of any order, recommendation, determination or action which could have been timely appealed.

 

(9) Authority of Board. The Board shall hold a hearing within ten (10) working days of the date of filing of the appeal. The Board shall have authority to investigate appeals, rejecting those it determines to be frivolous and without merit. The Board shall have the power to inquire into all the facts and circumstances of appeals within its jurisdiction and may hold investigative hearings for such purpose. The Board shall have the authority to issue advisory opinions concerning appeals of the Directors recommendations to the Audit and Operations Committee of the City Council, including making recommendation that the City reverse, affirm or modify recommendations of the Director concerning the issues set forth in subsections (6). The Board shall issue a written report of its opinion within ten (10) days of the start of the hearing. The report will be filed with the Audit and Operations Committee of the City Council. The Boards decisions on recommendations of the Director are advisory and are not binding on the City Council.

(10) Intervention. A bidder who has been declared an apparent successful bidder shall have the right to intervene in any appeal filed on that project. Any bidder, proposer or contractor whose interests will be affected by any appeal may be permitted by the Board to intervene in the appeal.

 

(11) In the event an appeal is pending before the Fairness in City Contracts Board and the project is presented to the City Council for consideration prior to the Boards issuance of an advisory opinion, the City Council shall be notified by including in the fact sheet that there is an appeal pending before the Board and that the Board requests the City Council to delay award of the project until after the Board issues its advisory opinion.

(12) Any bidder, proposer or contractor may notify the Board of the Directors failure to make a determination or recommendation or take action within the time required by this Ordinance and the Board has the authority to inquire into the circumstances of the matter.

 

(13) The Board is authorized to make its own rules.

Sec. 38-98. Fairness in Construction Board.

 

(1) There is hereby established the Kansas City Fairness in Construction Board. The Boards jurisdiction is limited to City construction bids, proposals and contracts in which the estimated cost thereof is more than $35,000. The Boards authority is limited to setting goals for each such City contract and hearing and investigating appeals set forth in section 38-99 hereof arising from bids, proposals and contracts under its jurisdiction.

 

(2) Board Composition: The Board shall be composed of seven members and six alternates appointed by the Mayor, as follows:

 

(a) One member and one alternate recommended by the Builders Association,

 

(b) One member and one alternate recommended by the Heavy Constructors Association,

 

(c) One member and one alternate recommended by the Minority Contractors Association of Kansas City,

 

(d) One member and one alternate recommended by the Kansas City Hispanic Association Contractors Enterprise, Inc.,

 

(e) One member and one alternate recommended jointly by the Women Construction Owners and Executives and National Association of Women in Construction,

 

(f) One member and one alternate recommended by Allied Professional Specialty Contractors Association,

 

(g) Chairperson appointed by the Mayor and submitted to the entities named in Section 38-98(2)(a) - (2)(f) for approval. Any one of the named entities can veto the Mayors submission and require another submission.

(3) Board members who were serving on the Fairness in Construction Board as it was constituted prior to March 1, 1998, shall remain members and shall have new terms which expire as follows: For Board members recommended pursuant to subsection (2)(a), (c) and (f), their initial term shall expire on March 1, 2000; for all other Board members, March 1, 2002. The terms of all subsequent Board members shall be for a period of four (4) years.

(4) Alternates. In the event a Board member is unable to attend a meeting of the Board or has a conflict of interest with regard to a particular contract or issue, the alternate shall temporarily serve in such members stead. The term of an alternate shall expire at the expiration of the term of the Board member.

 

(5) Ineligible for appointment. The following are ineligible to serve on the Fairness in Construction Board:

 

(a) Staff or board members of the entities named in Section 38-98(2)(a)-(2)(f);

 

(b) Members of City of Kansas City Council;

 

(c) Employees of City of Kansas City.

 

(6) Conflict of interest. In the event a Board member has a conflict of interest in a contract or issue that comes before the Board, the elected member shall be temporarily replaced by the alternate. In the event an alternate has a conflict of interest in a bid, contract or issue that comes before the Board, the alternate shall recuse himself.

 

(7) In the event the Chairperson is not in attendance at any Board meeting, a majority of Board members shall select a member to act as chairman for that meeting.

 

(8) Quorum. Four members of the Board shall constitute a minimum quorum unless otherwise increased by Board rules.

 

Sec. 38-99. Responsibilities of the Fairness in Construction Board.

 

(1) Goal setting. Prior to release for bid, the Department and appropriate City staff shall present to the Board recommended MBE/WBE goals for each proposed construction contract. The Board shall determine whether any goals are appropriate and, if so, shall set the goals in conformance with section 38-88 hereof. The goals shall be included in the bid specifications.

 

(2) Any bidder or proposer on a City construction project that has an estimated cost of over $35,000 may appeal to the Board any recommendations by the Director concerning the following issues:

 

(a) Waiver of bid informalities with respect to this Article II;

 

(b) Waiver of the individual contract goals pursuant to section 38-91(1);

 

(c) Substitution for an MBE/WBE listed on a contractor utilization plan prior to bid award pursuant to section 38-94;

 

(d) Modification of the percentage of the participation on a contractor utilization plan prior to bid award pursuant to section 38-94;

 

(e) Award of a contract to or continued performance by a person who has violated this Article II.

(3) Any contractor on a City construction contract over $35,000 may appeal to the Board from determinations or recommendations of the Director concerning the following issues:

 

(a) Determinations of MBE/WBE contract credit towards meeting the percentage of MBE/WBE participation in the contractor utilization plan;

 

(b) Recommendations to assess liquidated damages;

 

(c) Determinations to approve or deny a substitution for an MBE/WBE listed on a contractor utilization plan pursuant to section 38-94;

 

(d) Determinations to approve or deny modifications of the percentage of the participation on a contractor utilization plan pursuant to section 38-94.

 

(4) Appeals shall be made to the Fairness in Construction Board by filing with the Director within ten (10) working days after notice of the Directors determination or recommendation appealed from, a written request for review by the Board, stating the grounds of such appeal with specificity. The Director shall promptly forward to the Chairperson and members of the Board a copy of any appeal.

 

(5) Failure to file a timely appeal shall constitute a waiver of the right of a bidder, proposer or contractor to appeal the Directors recommendation or determination and such person shall be estopped to deny the validity of any order, recommendation, determination or action which could have been timely appealed.

 

(6) Authority of Board. The Board shall hold a hearing within ten (10) working days of the date of filing of the appeal. The Board shall have authority to investigate appeals, rejecting those it determines to be frivolous and without merit. The Board shall have the power to inquire into all the facts and circumstances of appeals within its jurisdiction and may hold investigative hearings for such purpose. The Board shall have the authority to issue advisory opinions concerning appeals of the Directors recommendations to the Audit and Operations Committee of the City Council, including making recommendation that the City reverse, affirm or modify recommendations of the Director concerning the issues set forth in subsections (2) and (3) hereof. The Board may reverse, affirm or modify determinations of the Director set forth in subsections (2) and (3) hereof. The Board shall issue a written report of its opinion or determination within ten (10) days of the start of the hearing. The report will be filed with the Audit and Operations Committee of the City Council. The Boards decisions on recommendations of the Director are advisory and are not binding on the City Council.

 

(7) Intervention. A bidder who has been declared an apparent successful bidder shall have the right to intervene in any appeal filed on that project. Any bidder, proposer or contractor whose interests will be affected by any appeal may be permitted by the Board to intervene in the appeal.

 

(8) For purposes of this section only, bidder shall mean any person who submits to the City or an Agency in response to a Invitation for Bid, a competitive bid that is opened and read aloud.

 

(9) Notwithstanding any other provision of this Article II, a bidder shall have the right to seek and the Board shall have the authority to issue advisory opinions as set forth in subsection (6) to the City Council even when the City rejects any and all bids and regardless of whether the contract is awarded.

 

(10) In the event an appeal is pending before the Fairness in Construction Board and the project is presented to the City Council for consideration prior to the Boards issuance of an advisory opinion, the City Council shall be notified by including in the fact sheet that there is an appeal pending before the Board and that the Board requests the City Council to delay award of the project until after the Board issues its advisory opinion.

 

(11) Any bidder, proposer or contractor may notify the Board of the Directors failure to make a determination or recommendation or take action within the time required by this Ordinance and the Board has the authority to inquire into the circumstances of the matter.

 

Sec. 38-100. Procedures for construction contracts.

 

(1) The following shall apply to construction contracts in which the estimated cost thereof is more than $35,000:

 

(a) Bid Submissions. In conformance with Code Section 2-1652, all bidders shall submit an affidavit executed by the bidder affixed to the outside of the sealed bid envelope, attesting that a notarized affidavit of intended utilization of subcontractors to meet any MBE and WBE goals specified for the project is included with the bid documents.

 

(b) Forty Eight (48) Hours Submission. All Bidders shall submit the following within forty-eight (48) hours after bid opening:

 

1. A notarized contractor utilization plan in conformance with Section 38-89 hereof, except the requirements of Section 38-89(3) shall be submitted when requested by the City or the Agency;

 

2. A request for waiver of the contract goals pursuant to Section 38-91(1) if the bidder failed to meet or exceed the goals,

 

(c) The apparent successful bidder shall submit documentation of best faith efforts made prior to 48 hours after bid opening when requested by the City or the Agency.

 

(d) A notarized affidavit certifying actual MBE/WBE participation in the contract, including the names of such MBE/WBEs and the participation amount, must be submitted by the contractor prior to final payment under the contract.

 

(2) No increase in MBE/WBE participation. Any increase in the amount of MBE/WBE participation after submission of the contractor utilization plan shall not count toward meeting the contract goals, unless otherwise permitted under Section 38-94 hereof. Timely submission of the affidavit of intended utilization and the contractor utilization plan is a material element of the bid submission and cannot be waived.

Sec. 38-100.1 Procedures for all other contracts.

 

(1) The following procedures shall apply to all contracts not covered by Section 38-100:

 

(a) Contracts awarded pursuant to competitive bidding:

1. Bidders shall submit the following with their bids:

 

A. A notarized contractor utilization plan in conformance with Section 38-89 hereof, except the requirements of Section 38-89(3) shall be submitted when requested by the City or the Agency.

 

B. A request for waiver of contract goals pursuant to Section 38-91(1), if the bidder fails to meet or exceed the goals.

 

2. Documentation of best faith efforts shall be submitted when requested by the City or the Agency.

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(b) Contracts awarded pursuant to Requests for Proposals: Proposers shall submit the following prior to award of the Contract:

 

1. A notarized contractor utilization plan in conformance with Section 38-89 hereof.

 

2. A request for waiver of the contract goals pursuant to Section 38-91(1) if the Proposer fails to meet or exceed the goals.

 

3. Documentation of best faith efforts when requested by the City or the Agency.

 

(2) No increase in MBE/WBE participation. Any increase in the amount of MBE/WBE participation after submission of the contractor utilization plan shall not count toward meeting the contract goals, unless otherwise permitted under Section 38-94 hereof. Timely submission of the contractor utilization plan is a material element of the bid submission.

 

Sec. 38-100.2 Certification of eligibility of minority and women business enterprises.

 

(1) To ensure that this Article II benefits only MBEs and WBEs that are owned and controlled by bona fide MBE/WBEs, the Director shall certify MBEs and WBEs and Mentor/ Protgs who wish to participate in the program.

 

(2) Each person that seeks certification as an MBE/WBE, must demonstrate by written documentation or affidavit that it has suffered from past race or gender discrimination in the City of Kansas City and in the applicable trade or industry. For purposes of construction contracts subject to section 38-100, as long as the MBE/WBE meets the definitions of section 38-84(27) and 38-84(36), a Missouri Highway and Transportation Department certification or a Kansas Department of Transportation certification along with the documentation stated in this subsection, is sufficient for certification as an MBE/WBE so long as the firm has never been denied certification by any federal, state or local authority at any time. In addition, each person that seeks certification must either:

 

(a) have its principal place of business in the Kansas City Metropolitan Area; or

(b) prove by a preponderance of the evidence it has made substantial efforts to become a market participant in Kansas City, Missouri. Such evidence may include, but is not limited to: contracts with entities located in Kansas City, Missouri; attempts to bid on or respond to solicitations from entities in Kansas City Missouri; advertising the firms goods or services in Kansas City, Missouri; or any other activity designed to continually seek business opportunities in Kansas City, Missouri, such that the firm would likely be subject to the discrimination sought to be remedied by this Article II.

 

(3) The following standards shall be used by the Director in determining whether a firm is owned and controlled by one or more minorities or women and is therefore eligible to be certified as an MBE or WBE:

 

(a) Bona fide minority group membership shall be established on the basis of the individual s claim that he or she is a member of a minority group and is so regarded by that particular minority community. However, if the Director determines the claim to be invalid, he is not required to accept it.

 

(b) An eligible MBE or WBE shall be an independent business. The ownership and control by minorities or women shall be real, substantial, and continuing and shall go beyond the pro forma ownership of the firm as reflected in its ownership documents. The minority or women owners shall enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests. Recognition of the business as a separate entity for tax or corporate purposes is not necessarily sufficient for recognition as an MBE or WBE. In determining whether a potential MBE or WBE is an independent business, the Director shall consider all relevant factors, including the date the business was established, the adequacy of its resources for the work of the contract, and the degree to which financial, equipment leasing, and other relationships with non-minority firms vary from industry practice.

 

(c) The minority or women owners shall also have the power to direct or cause the direction of the firms management and policies and to make the day-to-day and major decisions regarding management, policy and operations. The firm shall not be subject to any formal or informal restrictions which limit the customary discretion of the minority or women owners. There shall be no restrictions through, for example, by-law provisions, partnership agreements, or charter requirements for cumulative voting rights or otherwise that prevent the minority or women owners, without the cooperation or vote of any owner who is not a minority or women, from making a business decision of the firm.

 

(d) If the owners of the firm who are not minorities or women are disproportionately responsible for the operation of the firm, the firm is not controlled by minorities or women and shall not be considered an MBE or WBE. When the actual management of the firm is contracted out to individuals other than the owner, those persons who have the ultimate power to hire or fire the managers shall, for the purposes of this part, be considered as controlling the business.

 

(e) All securities which constitute ownership and/or control of a corporation for purposes of establishing it as an MBE or WBE under this part shall be held directly by minorities or women. No securities held in trust, or by any guardian for a minor, shall be considered as held by a minority or women in determining the ownership or control of a corporation.

 

(f) The contributions of capital or expertise by the minority or women owners to acquire their interest in the firm shall be real and substantial. Examples of insufficient contributions include a promise to contribute capital, a note payable to the firm or its non-socially and economically-disadvantaged owners, or the mere participation as an employee, rather than as a manager.

 

(g) If a persons annual receipts as determined in Section 38-100.2 exceed the amounts set forth in Sections 38-84(27) and 38-84(36), that person is ineligible to be certified as an MBE/WBE. If a persons annual receipts fall below the amounts in Sections 38-84(27) and 38-84(36) for one year, that person is eligible to reapply for certification.

 

(4) In addition to the above standards, the Director shall give special consideration to the following circumstances in determining eligibility under this section:

 

(a) Newly formed firms and firms whose ownership and/or control has changed since the date of the advertisement of the contract will be closely scrutinized to determine the reason for the timing of the formation or the change in the firm.

 

(b) If a person has been in a line of business for less than one year, there is a rebuttable presumption that the person is not certifiable as an MBE or WBE. Nevertheless, such person may be certified by presenting clear and convincing evidence to the Director that person is qualified to be certified in such line of business. If the Director denies certification under this subsection, there shall be no right to appeal to the Fairness in City Construction Board or the Fairness in City Contracts Board.

 

(c) A previous and/or continuing employer-employee relationship between or among present owners shall be carefully reviewed to ensure that the employee-owner has management responsibilities and capabilities.

 

(d) Any relationship between an MBE or WBE and a business that is not an MBE or WBE which has an interest in the MBE or WBE shall be carefully reviewed to determine if the interest in the non-MBE or WBE conflicts with the ownership and control requirements of this section.

 

(e) A joint venture is eligible under this part if the MBE or WBE partner of the joint venture meets the standards for an eligible MBE or WBE set forth above and the MBE or WBE partner is responsible for a clearly defined portion of the work to be performed and shares in the ownership, control, management responsibilities, risks, and profits of the joint venture.

 

(5) In determining an MBE or WBEs annual receipts, the following shall be used:

 

(a) Definitions:

 

1. Accrual basis is a method of accounting in which accounts and notes receivable are recorded in the regular books of account for the period in which the firm first has a claim of right to them. Claim of right has the meaning attributed to it by the U.S. Internal Revenue Service (IRS).

 

2. Receipts is defined to include all revenue in whatever form received or accrued from whatever source, including from the sales of products or services, interest, dividends, rents, royalties, fees, or commissions, reduced by returns and allowances. However, the term receipts excludes proceeds from sales of capital assets and investments, proceeds from transactions between a person and its domestic and foreign affiliates, amounts collected for another by a travel agent or real estate agent, and taxes collected for remittance to a taxing authority.

 

3. Regular books of account means the general ledger or other book of final entry and, if used, the journals or other books of original entry.

 

4. Completed fiscal year means a taxable year including any short period. Taxable year and short period have the meaning attributed to them by the IRS.

5. Unless otherwise defined in this section, all terms shall have the meaning attributed to them by the IRS.

 

(b) Period of measurement. Annual receipts of a person which has been in business for three or more completed fiscal years means the arithmetic annual average revenue of the person over its last three completed fiscal years (total revenue compiled over the entire three-year period would be divided by three). Annual receipts of a person which has been in business for less than three fiscal years means the arithmetic annual average revenue over the time period the person has been in business. (Total revenues compiled over the period the Person has been in business, divided by the number of weeks, including fractions of a week, the person has been in business, multiplied by 52). Annual receipts of a person which has been in business three or more years but has a short year in the last three years will be the arithmetic annual average revenue over the two full years and the short year. See paragraph (c)1. of this section. The short period may appear at the beginning, middle or end of the three-year calculation period.

(c) Method of determining annual receipts.

1. Revenue may be taken from the regular books of account of the Person. If the person so elects, or has not kept regular books of account, or the IRS has found such records to the inadequate and has reconstructed income of the person, then revenues shown on the Federal income tax return of the person may be used in determining annual receipts. Subject to the exception in paragraph (c)(2) of this section, revenue shown on the regular books of account or the Federal income tax return on the basis other than accrual must be restated to show revenue on an accrual basis for all fiscal years beginning on or after January 1, 1992. Further, where the completed contract method of determining income has been used, revenue must be restated to a percentage of completion method prior to determining annual receipts.

 

2. Where the Federal income tax return of a person, restated if necessary pursuant to paragraph (c)(1) of this section to reflect the percentages of completion method, shows its annual receipts to be less than 75 percent of the applicable size standard, the person need not restate its revenue to an accrual basis prior to determining annual receipts.

 

3. Where a short period is included in the persons most recent three years, annual receipts are calculated by dividing the sum of the receipts of the short year and the receipts of the two full fiscal years by the sum of the number of weeks in the short fiscal year and the number of weeks in the two full fiscal years, and multiplying that figure (the weekly average receipts) by 52.

 

EXAMPLE: If the short year were 12 weeks and X represents the receipts from the short year, the calculation would be: [(X + receipts for the two full fiscal years) (12 + 52 + 52)] x 52 = Average annual receipts for the three year period including the short year.

 

(d) Annual receipts of affiliates.

1. If a person has acquired an affiliate or been acquired as an affiliate during the applicable averaging period or before small business self-certification, the annual receipts in determining size status include the receipts of both the applicant and the affiliate. Furthermore, this aggregation of the receipts of both the applicant and its affiliate applies for the entire applicable averaging period used in computing size (usually the preceding three complete fiscal years) rather than only for the period after the affiliation arose.

 

2. The annual receipts of a person which had been an affiliate of the applicant during part of the period used in determining size (usually the preceding three completed fiscal years), but was not an affiliate at the time of self-certification for the assistance in question, are not included within the computation of annual receipts in making size determinations. This exclusion of annual receipts of a former affiliate applies during the entire period used in computing size, rather than only for the period after which the affiliation ceased.

 

(6) An MBE/WBEs certification shall expire two years from the date of certification. An application for renewal shall be submitted on forms provided by the Director.

(7) If there is a change in ownership or control of the MBE/WBE firm, the MBE/WBE shall notify the Department within a reasonable time thereafter.

 

(8) 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.

 

(9) If the United States Department of Transportation changes the requirements for certification of MBE/WBEs, the City Council shall re-examine the certification requirements imposed by this Section.

 

(10) Except as provided in subsection 4(b) of this section, Persons who have been denied MBE/WBE certification or who have had MBE/WBE certification revoked by the Director shall have the right to appeal such denial or revocation.

 

(a) Appeals shall be made to the following:

 

1. For persons in construction-related businesses, to the Fairness in Construction Board;

 

2. For persons in other businesses, to the Fairness in City Contracts Board.

 

(b) The appropriate Board shall hold a formal administrative hearing on the appeal of the denial or revocation of MBE/WBE certifications and for that purpose shall have the power to administer oaths, compel the production of books and papers and the attendance of witnesses by subpoenas and to establish procedural rules. The method of judicial review of such appeals shall be pursuant to Chapter 536 RSMo.

 

(12) The Director is authorized to revoke MBE and WBE certification for cause. The certification of a person who has been debarred by the City in a debarment proceeding shall be automatically terminated or modified in a manner provided by the debarment ordinance.

 

Sec. 38-100.3 Duties and authority of Director.

 

(1) The Director is hereby authorized to establish rules and regulations to implement this Article II.

.

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

 

(a) Administer and enforce this Article II to insure that MBE/WBEs have equal opportunity to participate in City contracts and subcontracts and work with all City Department Directors and Agency Heads to implement the City s MBE/WBE program.

 

(b) Coordinate the establishment of MBE/WBE methodologies with all City Departments and Agencies including establishment of goals, except goals for construction contracts subject to Section 38-88(3)(a) hereof, as may be appropriate to remedy underutilization of MBE/WBEs;

 

(c) Update the MBE/WBE Directory at least quarterly. The Directory shall be made available to all bidders and proposers, the general public, City departments and Agencies;

 

(d) Assist City departments and Agencies in finding qualified, certified MBEs and WBEs to participate in contracts;

 

(e) Identify appropriate participation opportunities for qualified, certified MBEs and WBEs in Contracts;

 

(f) Beginning in 1996, publish an annual report for the City s fiscal year by July 1 which states for each City Department and Agency:

 

1. The number of contracts awarded and the total contract dollars awarded pursuant to such contracts;

 

2. The number of prime contracts awarded to certified WBEs and MBEs as identified by race and/or ethnicity and the total dollars awarded and paid pursuant to such contracts;

 

3. The number of subcontracts awarded to certified WBEs and MBEs as identified by race and/or ethnicity and the total contract dollars awarded and paid pursuant to such contracts;

 

4. A summary of total waiver requests submitted that are granted or denied and the reasons for the grant or denial;

 

5. The number of MBE/WBE firms certified by race and/or ethnicity.

 

(g) The Director shall provide a compliance report to the City Manager within 30 days after the end of each quarter. It shall include:

 

1. The total number of contracts awarded and the total contract dollar amount awarded pursuant to such contracts;

 

2. The number of contracts awarded to qualified certified MBEs as identified by race and/or ethnicity and WBEs and the total contract dollar amount awarded and paid pursuant to such contracts;

 

3. The Director of Human Relations evaluation of the City s progress toward meeting MBE/WBE Utilization Plans and any actions he intends to take to address any shortfall in meeting the goals established in such Plans;

 

4. Any other information as may be required by the City Manager.

 

(h) Develop and maintain relationships with organizations representing contractors, including minorities and women organizations, and solicit their support for the City s program;

 

(i) Furnish staff assistance to the Fairness in Construction Board. This shall include but not be limited to providing to the Board within 30 days following the end of each quarter interim reports containing the information described in subsection (f) and such other reports and information as the Board, from time to time, may request.

 

(j) All contractors and subcontractors shall give the Director access, at all reasonable times, to all books, papers, records, reports or accounts in possession of or under the control of such person, as may be necessary to ascertain compliance with this Article, and to furnish such further information as may be required of such person within ten working days of the date it is so requested in writing.

 

(k) Implement any federal or state minority business enterprise program required by law or federal or state contract.

Sec. 38-100.4 Penalties; no retaliation.

 

(1) The making of any false or misleading statement or omission in any instrument submitted to a contracting City Department or Agency pursuant to this Article II shall be a violation of this Article II, and shall be grounds for application of any applicable criminal and/or civil penalties for submitting a false instrument or making a false statement under oath. The making of such a statement by an applicant for certification and/or a certified MBE/WBE shall, in addition, be grounds for revocation of its certification.

 

(2) 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 sections 38-84 through 38-100.4, or because such individual or business filed a complaint or cooperated in the investigation of a complaint.

 

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Section 2. That this Article II shall become effective sixty (60) days after it is enacted by the City Council.

 

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Approved as to form and legality:

 

 

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Assistant City Attorney